ajflrn^U Cam Bcl^aal ICtbtarg [Z^j^J^^^/^eS^^^^^^. Cornell University Library KF 570.Z9C43 Principles of the law of real property a 3 1924 018 741 524 Cornell University Library The original of tliis bool< 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/cu31 92401 8741 524 HOME LAW SCHOOL SERIES No. 10 Principles Law of Real Property AND THE Law of Pleading and Practice at Common Law BY CHARLES E. CHADMAN, LL.D. AUTHOR OF "'tHB HOMB LAW SCHOOL SBRIBS*' ' AND MBnlBBR OP TBB OHXO BAK. Chicago FREDERICK J. DRAKE & CO. Publishers 36^:0 COPYBIQHT, 1906. By Fiusdekick J. Dbakh & Co. LAW OF REAL PROPERTY. CHAPTER I. THE EARLY HISTORY OF PROPERTY. Sec. 1431.* CLASSES OF PROPERTY— MOV- ABLE AND IMMOVABLE.— In the infancy of civ- ilization property consisted almost solely of visible and tangible articles, such as cattle, sheep, buildings and land', now terms corporeal, as distinguished from incorporeal property, as debts, rights in action, and the like, so common to modern civilization. Of tangible, or corporeal property, there are plainly two classes, thus we have, sheep, cattle, and articles that may be transported from place to place, or consumed, on the one hand, and land, houses, and the like, which are permanent and stationary in character; or movable and immovable property. This division of property into movable and immovable was made in the early years of our civilization and continues one of the most fundamental classifications of property, and to which the history of the Anglo Saxon race has added many important circumstances.** ♦This book is No. 10 of The Home Law School Series, the former 1,430 sections comprise the first nine books of the Series. ♦♦Williams^ Real Prop. I, 2. 2 LAW OF REAL PROPERTY Our American law of real property is that of England, which our forefathers brought to this coun- try in colonial times, and which became so firmly root- ed that but few changes, and these chiefly statutory, have been made. A few principles of the English law, such as entails and the principles of pri- mogeniture, being contrary to our system of govern- ment, soon died out, or were legislated away. The history of real property in England has much to do with the rise, development, and fall of feudal- ism, and it therefore becomes important that the stu- dent should investigate to some extent the principles and characteristics of a system which, though it has passed away, has left its markings on our Ifegal sys- tem.* *The feudal system was first established by the Goths and Vandals when they overran and subdued Rome. Under this system land was made the basis of government, and all land was regarded as held by the king. As these barbarian hordes came down from the north of Europe they took possession of all property, both real and personal, belonging to those they subdued. The king, or chief, divided the property among his followers; the real property, or land, was not given to them outright, but was allotted to the chief men and soldiers, in large parcels, which "allotments were called feoda, feuds, fiefs, or fees: which last appellation in the northern language signifies a conditional stipend or reward." (2 Bl. Com. 45.) The condition annexed to these holdings was, that the possessor should do service faithfully, both at home and in the wars, to him by whom they were giv.en, to do which the holder had to take an oath of fealty, and on failure of the condition the lands again reverted to the chief or king who had granted them. The chief men to whom the large tracts were given, called tenants in capita, again divided the LAW OF REAL PROPERTY 3 By the Norman Conquest of England, in 1066, the lands formerly owned by the Saxons were for the most part confiscated, and re-granted by William the Con- queror to his soldiers under the principles "of the feu- dal system, that is, the lands instead of being held freely, or as allodial lands, were held under a sort of rental, consisting in the performance of military service to the immediate superior of the holder, until such service reached the king, or lord paramount, who was deemed to be the owner of all the land. This sys- tem was soon applied to all the lands iri England, both those confiscated and those that were allowed to re- main in the hands of their former Saxon owners.* So that in a short time after the Norman Conquest, the principle became firmly established, that there were no free lands, but that all lands were mere hold- ings, tenures (from tenw, to hold), or estates subject to the claims of the lord paramount or king, in whom the title, and right of disposition rested. This idea, that property in land is a mere holding or estate, has clung to our real property law ever since, so that to- day, title to land is not absolute, the owner only hav- ing an estate therein.** land among his immediate followers on the same principles, granting the use of the land, while reserving the title, the same relation as to rendering military service or returns for the land being kept up as between the king and tenant in capita: (2 BI. Com. 45, 48; Wright's Tenures, 61, 62.) ♦Williams, Real Prop. 4; Stubbs, Const. Hist. Eng. Vol. I, Ch. IX. **Williams, Real Prop. 17. Estate, or in Latin, status, 4 LAW OF REAL PROPERTY The system of tenures, or holdings, established un- der the feudal system, only applied to land, or im- movable property; sheep and cattle and other mov- able property were not of sufficient importance, or were too easily disposed of to bring under the system, and their control and ownership by individuals was re- garded as absolute.* "Lands, houses, and immovable property, — ^things capable of being held in the way above described, — were called tenements or things held. They were also denominated hereditaments, because, on the death of the owner, they devolved by law to his heir. So that the phrase, lands, tenements, and hereditaments, was used by the lawyers of those times to express all sorts of property of the first or immovable class; and the expression is in use to the present day."** The other class of property, movable, was designated as goods or chattels, terms still in common use. Sec. 1432. ORIGIN OF THE TERMS "REAL PROPERTY" AND "PERSONAL PROPERTY." — Under the feudal system land was known by the name of tenements and this designation maintained un- til the feudal system began to decline, commercial systems to spring up, and the growth of liberty among the people demanded a change in the ideas prevail- signifying the condition or circumstances in which the owner stands with regard to his property. *Co. Litt. 191a, n. ♦♦Williams, Real Prop. 5. LAW OF REAL PROPERTY S ing as to the ownership of land. The final blow at the feudal system was not given until the restoration of Charles II, when a statute abolished most of the forms of tenures theretofore ■ existing and simplified the law as to land, though the old forms still remained. This statute (12 Car. II, c. 24) abolished tenures by knight service and many of the feudal restraints upon alienation of land, and reduced nearly all tenures to free and common socage, by which was meant tenure by rendering some conventional service not military. And it was upon such a grant that the land in most of the American colonies was given to the colonists by the king, simply recognizing the doctrine of fealty.* As the feudal system passed away, and disputes over the right to the possession of land arose between the lord and tenant, another important distinction between land and chattels became apparent, the real land could be restored in an action at law, while in the case of goods the remedy was usually against the person who had taken and disposed of them. So that, growing out of the remedy applicable to the recovery of the two sorts of property, and the actions therefore, real actions, and personal actions, land and tenements came to be called real property, and goods and chattels per- sonal property.** ♦Wright's Tenures, 142; Williams, Real Prop. 6n, **3 Bl. Com. 16,384; 3 Id. 144. 6 LAW OF REAL PROPERTY Sec. 1433. OF THE DISTINCTION BETWEEN REAL AND PERSONAL PROPERTY.— The terms real property and personal property are now more common than the ancient designations; while the latter class has grown into almost as much im- portance as the former. Many sorts of property which are in a way fixed and immovable, as shares of stock in railways, are yet personal property, while fol- lowing the old system, titles of honor are considered as real property since in ancient times they were an- nexed to the ownership of certain lands.* On the contrary, a lease of lands or houses for a term of ^ears, was, and is, considered as personal property, since the tenant's possession, though for a long term of years did not make him the owner of the land, or make the tenant liable to any of the feudal dues ex- acted from those holding by other grants, or descend to his eldest son as heir at law, but was merely a chat- tel interest to the use of the land.** Another distinction bet^en real and personal prop- erty coming down from feudal times is, that on the death of the owner intestate, the real property goes to his heir, while personal property is distributed by the administrator arnong the next of kin of the intes- tate, or, under modern statutes, the personal property is first taken to pay debts and obligations, while the real property goes to the heirs, unless necessary to pay debts. *i Hallam's Middle Ages, 158; Williams, Real Prop. 8. **Co. Litt. 46 a ; Williams, Real Prop. 9. LAW OF REAL PROPERTY 7 Sec. 1434. CORPOREAL AND INCORPOREAL PROPERTY.— In addition to the classification of property into movable and immovable, personal and real, there is another division also to be noted, that of corporeal and incorporeal. By corporeal property is meant visible and tangible property, as a house, a parcel of land, chattels, and the like; while an an- nuity, or annual rents derived from land, is incor- poreal property, since it has only a mental existence, is intangible, invisible, and only exists in contemplation of law. In ancient times writing was not commonly employed, as very few people could write, so that the distinction between these two classes of property be- came important in the manner of their transfer. Cor- poreal and tangible property was delivered from one to another by actual transfer (livery of seizin), or by a symbolical delivery in the case of land or bulky arti- cles ; while a transfer of incorporeal property, not be- ing capable of this actual transfer in the presence of witnesses, had to be made in writing.* It is with cor- poreal property, and that class of it known as real *Things incorporeal were anciently said to lie in grant, while corporeal hereditaments were said to lie in livery. 2 Bl. Com. 20; Co. Litt. 9 a. Under the old common law seisin was regarded as the evidence of ownership, and no transfer of title to land was regarded as good until livery of seizin was made to the alienee. So that a deed to land without livery of seizin passed no title, while if livery of seizin was made it was a good transfer, because of the notoriety of the transfer, without any deed. Gilbert on Tenures, yy. 8 LAW OF REAL PROPERTY property or hereditaments, since it descends to the heir on the death of the owner that we are now concerned. Sec. 1435. OTHER TERMS USED TO DESIG- NATE CORPOREAL HEREDITAMENTS, OR LAND. — A number of words and phrases that have come to have general significance and meaning, and are commonly used in the law of real property need some explanation to enable the student to comprehend their meaning. The word messuage is used by the profes- sion the same as house, and while formerly considered as having a more comprehensive meaning, they are* now deemed nearly synonymous, each comprising not only buildings, but also outbuildings, the orchard, cur- tilage, and perhaps the garden surrounding the house, when used in a legal instrument.* The word tenement is also used in law to designate a house, and is the regular synonym following the word messuage in a lease, but whenever the sense re- quires it will be given a more comprehensive meaning, including land generally.** The word land, in its legal signification, includes all soil or earth generally, but in its strict and primary im- port it referred to arable land. But in our law it in- cludes everything attached to it or constructed upon it, as houses, bridges, buildings of every description ; and a grant of a parcel of land carries with it not only *Williams, Real Prop. 13; 27 Beav. 242; Smithson v. Cage, Cro. Jac. 526. **2 Bl. Com. 16, 17, 59. LAW OF REAL PROPERTY 9 the things upon the surface of the land, but also every- thing above and below the surface, from the center of the earth to the highest heavens, the maxim being, cujus est solum, ejus est usque ad caelum.* So that a pond of water passes with the land as land covered by water, and the mines and minerals below the sur- face pass with a grant of the land, except gold and silver, which from immemorial times were claimed by the crown.** But this exception does not prevail in America.*** ♦Williams, Real Prop. 14. **l Inst. 4 a; Case of mines, Plowd. 313. In the last case it was said that "the common law which is founded upon reason, appropriates everything to the persons whom it best suits ; as common and trivial things to the common people ; things of more worth to persons of a higher and superior class, and things most excellent to persons who excel all others; and because gold and silver are the most excellent things which the soil contains, the law has appointed them," as in reason it ought, to the person most excellent, and that is the king." A most remarkable line of reasoning! ***In most of the royal charters to the colonies, "all mines" were expressly included in the grants, with a reservation in some cases of a fourth or fifth of gold and silver ores. The rights of owners of mines, in America are governed by the rules of the common law, but the reservation to the state of the precious metals never obtained in this country to any extent. The right to such mines on the public lands in California is held to be vested in the United States merely as an incident to the ownership of the soil and not by any sovereign prerogative. The States of Pennsylvania and New York, by statute assert prerogative rights over mines to the extent of the English rule. Williams, Real Prop. 3; Kent Com. 378n; Boggs v. Merced Co., 14 Cal. 375-6. 10 LAW OF REAL PROPERTY The extensive meaning of the term land may be Hm- ited and controlled by the context, as where the term-is used in plain contradistinction to houses, it will not include them. And minerals under land may be ex- pressly excepted so as not to pass by a grant of the land, in which case the reservation would include inci- dentally the right to use the land to get out the miner- als, and the duty to leave sufficient support for the- land.* Tlie word premises is commonly used in law -as meaning what has gone before, as, where certain facts have been recited in an instrument, and then follows, "in consideration of the premises" this means in con- sideration of the facts just stated. The word is not commonly used as designating property, unless a de- scription has preceded its use in the same instru- ment.** Sec. 1436. AUTHORITIES ON THE LAW OF REAL PROPERTY.— As our real property law is largely that of England, it follows that the books by EngHsh authors would be of authority _here, and we have many English works, which with American notes are in common use. Among these we may mention the work by Joshua WiHiams, which has reached its 6th American edition and is a very useful compendium of real property law ; and The History of Real Property, ♦Jartnan on Wills, (4th ed.) 777; Earl of Cardigan v. Armitage, 2 B. & C. 197; Livingstone v. Moingona Coal Co., 49 la. 369; Yandes v. Wright, 66 Ind. 319. **Willianis, Real Prop. 15. LAW OF REAL PROPERTY ii by Professor Digby, a book of great value to the per- son who desires to get to the very bottom of the sub- ject. Washburn's treatise on the law of Real Prop- erty, in three volumes, is an exhaustive and authorita- tive work. Bingham's Law of Real Estate is another three volume work. In addition to these authorities the student will find it necessary to read the statutes of his State to ascertain what changes, if any, have been made in the common law as to real property, and these statutes along with the leading decisions which may be found in such works as the Lawyers' Reports Annotated, will equip him not only for admission to the bar, but for actual practice of the law. Note. — In the early history of the Saxon people, land was for the most part owned by the people in common. The only property that was not subdivided among the people generally to be held in common, was that actually occupied by the residence of the family. Thus, if a person built a house the land occupied by the house was regarded as his property, and was not subject to be divided. But the fields outlying the villages were held in common and divided from time to time among the people, as was done in Russia until quite recent times. These lands were then cultivated by the person to whom they were given. This was the system prevailing in England some time prior to the Norman Conquest. At the time of the conquest of England by William, most of the land outside of the cities and towns was divided up into manors held by the crown and tenants in capita, for many of the feudal principles were introduced prior to the conquest by William. After the Norman conquest the feudal system was made to apply to all lands in England. These manors held by the Danish earls contained from three to ten thousand acres, and were divided into acre strips. They were first divided into three great fields, in order that the tenants might have three fields. These fields were again 12 LAW OF REAL PROPERTY divided into acre strips, four rods wide and forty rods long. For convenience in plovifing these strips were made forty rods long, this being the distance the oxen could plow without stopping to rest. It was called a furrow-long, or furlong. Why the strips were four rods wide does not appear. Between each of the acre strips was a little space of uncultivated land which was allowed to grow up in weeds, brush and grass, and these strips were to be seen in England for a thousand years or more. The acre strips were portioned out to the villeins, by which was meant a person not a freeman, and from which word is derived our term villain, or person of bad repute. These tenant farmers occupied the same relation to the lord of the manor as the Russian serfs down to the time of Nicholas. Each villein was apportioned thirty acres to farm, ten acre strips in each of the three large fields, and these strips were not adjoining. In cultivating the land the villeins worked together. Each was obliged to keep two oxen for a team, which he could not sell without the consent of the lord of the manor. The villein formed an agreement with three others so as to have a full team with which to plow the land, and in the plowing each had his particular work to do, and the man holding the plow was obliged to plow his neighbor's land as well a% he did his own. When William the Conquerer ascended the English throne, over one thousand of these manors became his by right of succession. In addition to these crown estates, the estates of the nobles who opposed him, were confiscated and went to the king as lord paramount. These estates were granted by William to his military followers. These chief soldiers took the estates as they were left by their predecessors, so that in many cases the actual occupants of the land were not disturbed in their possession, but there was simply a change of masters. The lands of the church were left undisturbed, and also the manors of some of the nobles who had not op- posed William. In 1085, one year before the Domesday survey, all of the great landholders met the king at Salisbury Plains and took oath of fealty or homage, which was an acknowledgment Law of real property 13 that they held their lands from William as lord paramount. And from that day to this it is the theory of the English law that all title to land is derived immediately from the crown, and that there is no valid title unless the grant can be traced back to the crown. The Domesday survey was an assessment or inventory of all the real property made by William the Conqueror twenty years after the battle of Hastings, in order to ascertain the holdings and value of the various manors. In the first place commissioners were appointed by the king to go through the country and visit the various manors, and ascertain theiu size, the owner thereof, and from whom he derived title; also the number of acres of pasture land, woodland, and waste land, and the fisheries. The assessors also ascertained the number of freemen on the manors, cottagers and villeins, and in effect made a general assessment of all the property in England. From this data, called the Domesday book, the king was able to fix the returns he should receive from the holders of the manors. This land in the manors, under the feudal system was held by military tenure, there being no taxes levied by the king, except directly on the tenants in capita, who were obliged to make certain returns to the king in the way of military serv- ice and equipment; thus to serve the king at least forty days in the year, and when so doing furnish all his arms, equipment, horses and provisions, and this was his return, or rent, for the use of the land. The amount of service and quantity of supplies to be furnished was also fixed in pro- portion to the amount of land held by the various tenants in capita. The relation established between the king and the tenants in capita, was again established between the lords of the manors and their tenants. The tenant could not alienate the land, but he could grant it to another upon the same terms he had received it; this was called sub-infeudation. All persons who did not hold land were obliged to attach themselves to some one who did, for the purpose of obtain- ing their protection. It was an age of profound ignorance, so far as knowledge of writing was concerned. There was not one in ten thousand who could read or write, a knowledge of learning being con- 14 LAW OF REAL PROPERTY fined entirely to the clergy. Many of the barons could neither read or write. As a result of this ignorance, seeing and hearing had to be relied upon rather than writing. The barons could not read, but they could recognize an impres- sion made by their seal upon wax. Hence they carried a seal upon a ring, which they attached to all documents, that they might recognize them as their own. This use of a seal be- came so customary that it has maintained ever since, but is now "gradually giving place, and is not of much importance in the execution of documents. ' Three times a year the king sat in his court composed of the great barons of the household and the bishops of the church, and the "tenants of the land were obliged to appear and kneel before the king and take the oath of allegiance. Having taken the oath, the king threw upon him the robe of office, and this was called his investiture; that is, they were invested, or actually clothed with the land. This ceremony of taking the oath of fealty and investiture as between the king and tenants in capita, was again performed as between the chief tenants and their sub-tenants. After the ceremony of allegiance or fealty the tenant was actually put in pos- session of the land by livery of seizin, which was performed by the lord and tenant going upon the premises, and there in the presence of witnesses the lord would deliver to the tenant a tuft of grass or twig from the land, and declare the tenant to be in possession of all the land then granted to him ; this ceremony taking the place of, and being considered of more importance than the execution of a deed. See, Free- man's Norman Conquest, Ch. xvii. ; Stubbs' Const. Hist. Sec. 95 ; Digb/s Hist, of Real Property, Chapters I, 2 ; 2 Bl. Com. Ch. iv; Williams, Real Prop. Ch. I. LAW OF REAL PROPERTY 15 CHAPTER II.. OF AN ESTATE FOR LIFE. Sec. 1437. ORIGIN OF AN ESTATE FOR LIFE. — It is said by Blackstone and other writers that fees or estates were originally held at the will of the lord, and rose by degrees, through the stages of leases for years and for life, to the dignity of inheritances.* But Williams, in his work on Real Property, claims that an estate for life seems to have been the smallest estate in the conquered lands which the military tenant was disposed to accept.** This estate could not be sold by the tenant without the consent of the lord of the manor. So that a grant of land to A, was simply a grant for his life, and nothing further. It being an early established principle in feudal grants, that they were not to be extended beyond the express terms of the gift, but were to be construed strictly, and such lands on the death of the life tenant reverted to the grantor.*** If a grant was to be of a greater estate than for life, it was necessary to show such intent that the descend- ants of the tenant were to succeed him, as by granting the land to "A and his heirs," or by, other words show- *2 Bl. Com. 57. ♦♦Williams, Real Prop. 17. ♦♦♦Wright's Tenures, 29; 152. i6 LAW OF REAL PROPERTY ing such an intention. At first, in such a grant the heir took from the grantor since he was named in the origi- nal grant, and not from his ancestor. Hence it was said, "the ancestor and the heirs took equally as a suc- cession of usufructuaries, each of whom during his life enjoyed the beneficial, but none of whom possessed, or could lawfully dispose of, the direct or absolute do- minion of the property."* The feudal system did not long prevent the aliena- tion of landed property, and by the statute of Quia Emptores (i8 Edw. I, c. i), the right of every free- man to dispose of his lands, or part of them, was ex- pressly sanctioned, and at a later period by statute (32 Henry VHI, c. i), the power to dispose of an estate in fee simply by will was sanctioned. This enlarge- ment of the rights of the owner of land to dispose of same by devise and will continued until now there are no restrictions on the right of the owner of land to dispose thereof.** And the rule of construction fol- lowed in feudal times has been changed so that a grant of land is to be construed most strongly against the grantor, with the exception, coming down from feudal times, that a grant to A, simply, conveys but a life es- tate, and it is as necessary now, as it was in ancient *Co. Litt. 191 a, n; Burgess v. Wheate, I Wm. Bl. 133. **The statute of Quia Emptores abolished sub-infeudation, declaring "that from henceforth it shall be lawful to every freeman to sell of his own pleasure his lands and tenements, or part of them, so that the feoffee shall hold the same lands or tenements of the chief lord of the same fee, by such service and customs as his feoffor held before." LAW OF REAL PROPERTY 17 times, to use the word heirs, if more than a life estate is to be granted. It is said that ignorance of this rule of law has served to defeat the intentions of many un- learned devisors. The rule has been modified by stat- ute in many of the States of the Union, the words of inheritance being dispensed with by a provision that every conveyance passes the entire estate of the grant- or, unless a contrary intent appears or can be implied from the deed.* Sec. 1438. OF AN ESTATE per autre vie — When the owner of an estate for life sold his interest to another, the new owner had an estate for the life of his grantor, and this in Norman French was called an estate per autre vie, and the person for whose life the land is held is called the cestui que vie. Unless the grant to the new owner included his heirs, if he died before the cestui que vie, the land was left without an occupant while the life of the latter continued, as the ♦"Generally speaking, no common person has the smallest idea of any difference between giving a horse and a quantity of land. Common sense alone would never teach a man the difference; but the distinction which is now clearly estab- lished, is this : If the words of the testator denote only a description of the specific estate or land devised, in that case, if no words of limitation are added, the devisee has only an estate for life. But if the words denote the quantum of interest or property that the testator has in the lands de- vised, then the whole extent of such his interest passes by the gift to the devisee. The question, therefore, is always a question of construction, upon the words and terms used by the testator." Per Lord Mansfield, in Hogan v. Jackson, Cowp. 306. i8 LAW OF REAL PROPERTY law would not allow the cestui que vie to re-enter after having disposed of his estate. Under these circum- stances any one might enter on the land, and the one so entering was called a general occupant. But if the life estate held by A had been granted to "B and his heirs", the estate at the death of B would go to his heir until the demise of A, and such heir was designated a special occupant, since he had a special right of occupation by the words of the grant. To remedy this defect, a spe- cial clause in the Statute of Frauds (29 Car. II, c. 3, s. 12) was inserted, giving the owner of an estate per autre vie the right to dispose of it by will, and in case he made no will, and the estate was not one that would go to his heir, providing that it should go to his execu- tors or administrators. The like statutes and others have been adopted in many of the United States, so that in this country an estate per autre vie is regarded as the real property of a decedent and becomes liable for the payment of his debts.* Sec. 1439. INCIDENTS OF AN ESTATE FOR LIFE— MEANING OF FREEHOLD ESTATE.— The owner of an estate for life, designated as a tenant for life, was simply a holder of the land by feudal prin- ciples. Such an estate, as well as an estate per autre vie was regarded as a freehold estate, since it was re- garded as the least estate worthy the acceptance of a freeman — one holding such an estate was known as a *For other obsolete provisions in regard to such estates see Williams, Real Prop. 20, 22. LAW OF REAL PROPERTY 19 free-holder, and was entitled to certain rights and priv- ileges not common to others, as to be summoned on juries and vote for certain shire officers.* This dis- tinction as to freeholders still maintains in some of the states. These life estates at common law were not only terminable by the natural death of the tenant, but also by his outlawry, or civil death on entering a mon- astery. The tenant for life had the right to cut wood for fuel and for use in his husbandry, repairing the buildings, fences, etc. But he could not cut timber unnecessarily, or commit waste by the wilful destruction of any part of the premises, called voluntary waste, or by negli- gence permit the buildings to go to ruin, called permis- sive waste. The common law decisions as to what constitutes waste on the part of such a tenant do not always apply in this country, as because of our forests and other dissimilar conditions it might be advisable to cut standing timber in order to clear the ground for farming.** At common law the life tenant could not plough up ancient mea.dow, or dig gravel, brick or stone, except in such pits as had theretofore been open and used, neither could he open new mines for coal or minerals, and if he did so it was held to constitute voluntary waste.*** ♦Cruise on Real Prop. I, 61. ♦♦Wilkinson v. Wilkinson, 59 Wis. 557; Stout v. Dunning, 72 Ind. 343; Keeler v. Eastman, 11 Vt. 293; Woodward v. Gates, 38 Ga. 212. ***Simmons v. Norton, 7 Bing. 648; Viner v. Vaughan, 2 Beav. 466; Co. Litt. 54 b. 20 LAW OF REAL PROPERTY A tenant for life could of course not lease or grant his holding to endure beyond his lifetime, unless such a power was given in his deed, and up to 1845, in En- gland, an attempt so to do caused a forfeiture of his estate to the person next entitled. Crops sown by the tenant for life may be gathered by his executors as emblements, and the same rule applied to the under- tenant of the life tenant. Estates for life may be expressly granted, as those already discussed, or they may be such as are created by the construction and operation of law, as the rights possessed by husbands and wives in each other's land, to be hereafter considered. LAW OF REAL PROPERTY CHAPTER III. OF AN ESTATE TAIL. Sec. 1440. MEANING OF AN ESTATE TAIL. — An estate tail arose when land was granted to a man and the heirs of his body. It is such an estate as will descend, on the decease of the first owner, to all of his lawful issue, children, grandchildren, and more remote descendants, so long as his posterity endures, — in a regular order and course of descent from one to an- other ; and, on the other hand, if the first owner should die without issue, his estate, if left alone, will then de- termine.* Estates tail were never common in the Uni- ted States, as being foreign to our institutions, and where existing have been commonly abolished by stat- ute. As a result of state statutes, words which would under the English law create an estate tail, or fee tail, now create a fee simple in the donee, or a life estate in ♦Williams, Real Prop. 35. Blackstone observes, "As the word heirs is necessary to create a fee, so in farther limita- tion of the strictness of the feudal donation, the word body, or some other words of procreation, are necessary to make it a fee-tail, and ascertain to what heirs in particular the fee is limited. If, therefore, either the words of inheritance, or words of procreation be omitted, albeit the others are inserted in the grant, this will not make an estate tail. As, if a grant be to a man and his issue of his body, to a man and his seed, to a man and his children, or offspring; all these are only estates for life, there wanting the words of inheritance, his heirs," 2 Com. 114. 22 LAW OF REAL PROPERTY the donee, with remainder in fee simple to the -issue as tenants in common.* "An estate tail may be either general, that is, to the heirs of his body generally and without restriction, in which case the estate will be descendible to every one of his lawful posterity in due course ; or special, when it is restrained to certain heirs of his body, and does not go to all of them in general ; thus, if an estate be given to a man and the heirs of his body by a particu- lar wife ; here none can inherit but such as are his issue by the wife specified. Estates tail may be also in tail male, or in tail female : an estate in tail male can- not descend to any but males, and male descendants of males ; so an estate in tail female can only descend to females, and female descendants of females.** The possessor of an estate tail is called a donee in tail, the word donee, like grantee, and lessee, being the correla- tive of donor, grantor and lessor, are used to distin- guish the person for whom an act- is done, from him who is to perform it. The donee in tail is also called a tenant in tail, since his possession is but a holding ; his estate is also a freehold, being greater than estate for life. Sec. 1441. EARLY HISTORY AND CON- STRUCTION OF AN ESTATE TAIL.— The life es- tates first granted by feudal lords soon came to be en- *T *Perry v. Kline, 12 Cush. 118; Pollock v. Speidel, 17 O. S, 439; 4 Kent, Com. 15 n. **2 Bl. Com. 113, 114; Litt ss. 13-21. LAW OF REAL PROPERTY 23 larged into estates that were hereditary. To make such a grant we have seen that the word heirs had to be used. This term was at first limited to include only the direct issue of the tenant, but later the word heirs came to include collateral relations, such as brothers and cousins of the tenant, so that if it was desired to limit the estate to the offspring of the donee, it was done by making a grant to A and the heirs of his body, making what was then considered a conditional gift, the condition being that if the donee died without such mentioned heirs, or upon the failure of such heir at any future time, the land should revert to the donor. In the earliest feudal times the ancestor had not the right to alienate his land so as to defeat the expecta- tion of his heir, and the development of the right to alienate land was slow and extended over a long period of time. Part of the ancestor's land might be given as a marriage portion to his daughter, and to religious purposes, and lands so given became free from all manner of feudal service to the donor except the oath of fealty. At first lands were largely granted in con- sideration of services to be rendered, or a species of rent, there being no sales of land for cash, as is now customary. Gradually it came about that when a grant was made to A and his heirs, or the heirs of his body, that A had the unquestioned right to dispose of such lands, so far as it was possible under the feudal system to dispose of them, and thereby cut off the expectancy of the heirs. That is, by the reign of Henry III, it was established that though lands were granted to A and 24 LAW OF REAL PROPERTY the heirs of his body, or to A and his heirs generally, A could by alienation cut off the expectancy of his heirs at once if the estate was granted to him and his heirs generally, and if to him and the heirs of his body, he could do so the moment he had issue born satisfying the condition of the gift, and the alienee or purchaser took the estate not only during the existence of the issue but also after their failure.* Sec. 1442. SAME SUBJECT— OF THE STAT- UTE de donis conditionalihus. — The right of the ten- ant in tail to alienate his holdings the moment he had issue born that satisfied the conditions of the grant, was distasteful to the barons of the reign of Edw. I, since it put an 'end to the reversions which they had intended should come about through the failure of is- sue. To remedy the evil to them, and restore the crumbling feudal system, they passed the famous statute De Donis Conditionalihus (13 Edw. I), also known as the statute of Westminster the Second, or simply the statute De Donis, by which it was enacted that from thenceforth the grant should be construed according to the conditions of the gift, that the will of the donor as expressed therein might be observed. This *Co. Litt. 43 a; Williams, Real Property, 41. The tenant in tail might also have aliened the lands before issue born, but the effect of such alienation would only have been to ex- clude the lord during the life of the tenant, and during that of the issue, if such issue were subsequently born, while if the alienation were after the birth of issue, its effect was complete, Plowden, 241; Nevil's Case, 7 Coke, 34 b. LAW OF REAL PROPERTY 25 statute was intended to put an end to the right of a tenant in tail to dispose of holdings, and cause the property to remain intact to his issue, or on failure thereof to revert to the original donor.* The effect of the statute of De Donis, while satisfactory to the barons or greater lords, was distasteful to the crown, as putting them beyond the penalties of forfeiture, since their estates were limited to their issue, and became galling to the trading and industrious classes. "Chil- dren, it is said, grew disobedient when they knew they could not be set aside ; farmers were deprived of their leases ; creditors were defrauded of their debts ; and in- numerable latent entails were produced to deprive pur- chasers of the land they had fairly bought; treasons also were encouraged, as estates tail were not liable to forfeiture longer than for the tenants' life."** The nobility, notwithstanding these evils, would not consent to repeal the statute, and entails existed in all their severity for a period of two hundred years, when alien- ation of such estates was again introduced by a scheme ♦"Since the passing of this statute, an estate given to a man and the heirs of his body has been always called an estate tail, or, more properly, an estate in fee tail (feudum talliatum). The word fee (feudum) anciently meant any estate feudally held by another person; but its meaning is now confined to estates of inheritance — that is, to estates which may descend to heirs ; so that a fee may now be said to mean an inheritance." Williams, Real Prop. 43; Wright's Tenures, S, i49- **Williams, Real Prop. 44- 36 LAW OF REAL PROPERTY well worthy of the astuteness of the common law judges and lawyers.* Sec. 1443. SAME SUBJECT— OF COMMON RECOVERIES.— The right of the tenant in tail to alienate his land being denied by the statute De Donis, and a repeal of the statute being impossible, the only way was to devise some new plan by which the hold- ing of the donee in tail could be transferred to an- other, and the entail destroyed. This was accom- plished by an unheralded decision of the common law judges in the 12th year of the reign of Edw. IV, which is thus explained by Williams: "In this case, called Taltarum's Case, the destruc- tion of an entail was accomplished by judicial proceed- ings collusively taken against a tenant in tail for the recovery of the lands entailed. Such proceedings were not at that period quite unknown to the English law, for the monks had previously hit upon a similar device for the purpose of evading the statutes of Mortmain, by which open conveyances of lands to their religious houses had been prohibited ; and this device they had practiced with considerable success till restrained by act of parliament. In the case of which we are now speaking, the law would not allow the entail to be de- stroyed simply by the recovery of the lands entailed, by a friendly plaintiff on a fictitious title ; this would have been too barefaced ; and in such a case the issue of the tenant, claiming under the gift to him in tail, might have recovered the lands by means of a writ of forme- don, so called, because they claimed per formam doni, according to the form of the gift, which the statute had *3 Bl. Com. 116; 358. LAW OF REAL PROPERTY 27 declared should be observed. The alienation of the lands entailed was effected in a more circuitous mode, by judicial sanction being given to the following pro- ceedings, which afterwards came in to frequent and open use, and had some little show of justice to the issue, though without any of its reality. The tenant in tail, on the. collusive action being brought, was al- lowed to bring into court some third person, presumed to have been the original grantor of the estate tail. The tenant then alleged that this third person had war- ranted the title ; and accordingly begged that he might defend the title which he had so warranted. This third person was accordingly called on; who, in fact, had had nothing to do with the matter ; but, being a party in the scheme, he admitted the alleged warranty, and then allowed judgment to go against himself by de- fault. Whereupon judgment was given for the de- mandant or plaintiff, to recover the lands from the ten- ant in tail; and the tenant in tail had judgment em- powering him to recover a recompense in lands of equal value from the defaulter, who had thus cruelly failed in defending his title. If any such lands had been recovered under the judgment, they would have been held by the tenant for an estate tail, and would have descended to the issue, in lieu of those which were lost by the warrantor's default. But the default- er, on whom the burden was thus cast, was a man who had no lands to give, some man of straw, who could easily be prevailed on to undertake the responsibility ; and, in later times, the crier of the court was usually employed. So that, whilst the issue had still the judg- ment of the Court in their favor, unfortunately for them it was against the wrong person; and virtually their right was defeated, and the estate tail was said to be barred. Not only were the issue barred of their right, but the donor, who had made the grant, and to 28 LAW OF REAL PROPERTY whom the lands were to revert on failure of issue, had his reversion barred at the same time. So also all es- tates which the donor might have given to other per- sons, expectant on the decease of the tenant in tail without issue (and which estates are called remainders expectant on the estate tail), were equally barred. The demandant, in whose favor judgment was given, be- came possessed of an estate in fee simple in the lands ; an estate the largest allowed by law, and bringing with it the fullest powers of alienation, as will be hereafter explained: and the demandant, being a friend of the tenant in tail, of course, disposed of the estate in fee simple according to his wishes."* This system of barring an estate tail, known as suf- fering common recoveries, held its ground because of the substantial benefits to the general mass of people, and was perfected into a regular procedure, a privilege inseparably incident to an estate tail, which could not be restrained by custom, statute or covenant.** En- tails were also allowed to be barred by a system of lines, or fictitious suits, commenced and then compro- mised by leave of court.*** Both of these systems were later supplanted by an act of parliament, which permitted a tenant in tail in possession by a simple deed enrolled in the Court of Chancery to dispose of the lands entailed for an estate in fee simple.**** In Can- ada and such of the United States as have not abol- *Real Prop. 44, 45. See, also, 2 Bl. Com. 360. **TayIor v. Horde, I Burrow, 84; Dewitt v. Eldred, 4 W. ; S. 421. ***2 Bl. Com. 348. ****WilHams, Real Prop. 48; 3 and 4 Will. IV., c. 74. LAW OF REAL PROPERTY 29 ished entails by statute, the tenant in tail may bar the entail by a simple deed acknowledged in open court for that purpose.* Sec. 1444. SAME SUBJECT— EXCEPTIONS TO THE RIGHT OF TENANT IN TAIL TO BAR THE ENTAIL. — There were several cases in which the tenant in tail was not permitted to bar the entail as shown in the last section. Estates tail granted by the crown as a reward for public services could not be barred so long as the reversion remained in the crown. So it was held that an estate tail could not be barred by any person who is tenant in tail after possibility of issue extinct, as where an estate has been given to A and the heirs of his body by his present wife, and the wife dies without issue, A is then a tenant in tail after possibility of issue extinct, and could not suffer a common recovery so as to bar the reversion.** Sec. 1445. SAME SUBJECT— RIGHTS OF A TENANT IN TAIL.— The tenant in tail could cut down timber and commit waste, without first barring the entail. He was also allowed by statute to make leases of the land, not to exceed twenty-one years, or three lives, from the day of making thereof, and the accustomed yearly rent had to be reserved. . By statute, and otherwise, in England, estates tail are chargeable with the judgments for debts owing by the tenant in *Rev. Stat. Can. 100; Purdon's Dig. 721. **2 Bl. Com. 124, 125. 30 LAW OF REAL PROPERTY tail, and may also be disposed of in bankruptcy pro- ceedings against the tenant in tail.* As estate tail will descend if not barred to the issue of the donee, in due course of law, and in general the same as an estate in fee simple descends, as will here- after be explained. Such estates are subject to the reciprocal claims of husband and wife in each other's property, as will also be hereafter explained. ♦Williams, Real Prop. 56, 57. LAW OF REAL PROPERTY 31 CHAPTER IV. OF A FEE SIMPLE ESTATE, AND THE RULE IN SHELLEY'S CASE. Sec. 1446. MEANING OF AN ESTATE IN FEE SIMPLE. — "An estate in fee simple (feudum simplex) is the greatest estate or interest which the law of En- gland allows any person to possess in landed property. A tenant in fee simple is he that holds lands or tene- ments to him and his heirs; so that the estate is de- scendible, not merely to the heirs of his body, but to collateral relations, according to the rules and canons of descent. An estate in fee simple '« of course an estate of freehold, being a larger estate than one for life or in tail."* The chief importance and characteristic of this es- tate is the unfettered right of alienation on the part of the tenant holding in fee simple. This right was not acknowledged at first, but was of gradual growth, being assisted by the statute of Quia Emptores (18 Edw. I, c. i), which permitted the selling of land, or a part thereof, provided the feofifee, or purchaser, should hold the lands by the same services and cus- toms as his predecessor had held them. The object of the statute being to protect the claims upon the land owing to the chief lord.* Another feature of fee sim- ♦Williams, Real Prdi>. 60; 3 Bl. Com. 224. 32 LAW OF REAL PROPERTY pie estates, is that they are subject, though in the hands of the heir or devisee, to debts of all kinds contracted by the deceased tenant. This liability for debts of the tenant on such an estate, while general and undoubt- ed now, was also of slow growth. It is said, that in the early periods of English history, the heir of a de- ceased person was bound, to the extent of the inherit- ance which descended to him, to pay such of the debts of his ancestor as the goods and chattels of the ances- tor were not sufficient to satisfy, which rule was pos- sibly borrowed from the Roman or Civil law. But the feudal system, seeking to keep the land free from per- sonal obligations, infringed on this ancient rule, and in the reign of Edw. I, it was laid down by Britton that no one should be held to pay the debt of his ancestor, whose heir he was, to any other person than the king, unless he were by the deed of his ancestor especially bound to do so. This continued to be the law of En- gland for a long period, and unless the ancestor had, by a deed in writing, under seal, called a specialty, charged himself as well as his heirs with the payment of a debt or contract, it was not allowed to become a claim against his estate. In 1807, by statute, the fee simple estates of deceased traders were rendered liable to the payment not only of debts in which their heirs were bound, but also of their simple contract debts; and in 1833 this provision was made to apply to all owners of fee simple estates.* ♦Williams, Real Prop. 79, 80 LAW OF REAL PROPERTY 3j In America, the feudal doctrine, as regards the heir of an estate taking it free from the debts of the an- cestor never prevailed, and it is said that from the ear^ liest settlement of the colonies, real estate has been lia- ble to the debts and charges of the ancestor, in the hands of his devisees, his heirs, and bona fide purchas- ers from them. And this common law principle has been ratified by statute in many of the states, in some cases dating back to colonial times. So that, as a gen- eral rule, in the United States, lands are liable for the debts of a decedent, whether due by matter or record, specialty, or simple contract. In the two latter cases, the existence of the debt creates no lien during the debtor's life. By his death, however, its quality is changed, and it becomes a lien upon his real estate, which descends to the heir or passes to the devisee, subject to the payment of all the debts of the ancestor, according to the laws of the state in which the lands are situated, and the right of the creditor can, in most of the states, be enforced against the lands in the hands of a bona fide purchaser, within certain statu- tory limitations as to time. The right of alienation of an estate, except an es- tate tail, is now recognized as inherent, and it is im- possible for any owner, by any means to divest him- self of the right. Neither is it possible for the owner of an estate to prevent the involuntary alienation of it for the payment of his debts. And any condition in 34 LAW OF REAL PROPERTY general restraint of its alienation is void.* Partial restraint on alienation, if reasonable, will be allowed.** And land may be so granted, in trust, that in case the one to be benefited by the trust becomes bankrupt, or attempts to dispose of them, they shall revert to the donor, and the interest of the bankrupt in such prop- erty thereby ceases.*** Sec. 1447. THE RULE IN SHELLEY'S CASE, ITS ORIGIN AND EFFECT.— The rule in Shelley's Case, is a legal construction placed upon the words, "the heirs", "heirs of his body", and the like when used in a conveyance giving the grantor a freehold es- tate. The rule is stated thus : "When the ancestor, by any gift or conveyance (assurance), takes an estate of freehold, and in the same gift or conveyance, an estate is limited, either mediately or immediately, to his heirs in fee or in tail, in such case the expression the heirs are words of limitation of the estate, and not words of purchase."**** This rule takes its name from a cele- brated case in Lord Coke's time, in which the rule was *Schermerhorn v. Meyers, i Denio, 448; Walker v. Vincent, 7 Harris, 369; Gleason v. Fayerweather, 4 Gray, 348. **Laiigdon v. Ingram, 28 Ind. 360; McWilliams v. Nisly, 2 Ser. & R. 507; Oxley v. Lane, 35 N. Y. 347; Hill v. Hill, 4 Barb. 419. ***WilIiams, Real Prop. 94; Lockyer v. Savage, 2 Str. 947; Brandon v. Robinson, 18 Ves. 429. ****Williams, Real Prop. 254 n. LAW OF REAL PROPERTY 35 plainly formulated and laid down, but was in fact of much earlier origin.* The rule as enunciated needs some explanation on account of the wrong meaning that might be given to the word "limitation." The explanation given by Will- iams, in his treatise, may be used for this purpose : "We have already seen that, in ancient times, the feudal holding of an estate granted to a vassal contin- ued only for his life. And from the earliest times to the present day a grant or conveyance of lands, made by any instrument (a will only excepted), to A. B. simply, without further words, will give him an estate for his life, and no longer. If the grant was anciently made to him and his heirs, his heir, on his death, be- came entitled ; and it was not in the power of the an- cestor to prevent the descent of his estate accordingly. He could not sell it without the consent of his lord; much less could he then devise it by his will. The ownership of an estate in fee simple was then but lit- tle more advantageous than the possession of a life in- terest at the present day. The powers of alienation be- longing to such ownership, together with the liabilities to which it is subject, have almost all been of slow and gradual growth, as has already been pointed out. A tenant in fee simple was, accordingly, a person who held to him and his heirs ; that is, the land was given to him to hold for his life, and to his heirs to hold after his decease. It cannot, therefore, be wondered at that a gift expressly in these terms, 'To A. for his life, and after his decease to his heirs,' should have been an- ciently regarded as identical with a gift to A. and his heirs, that is, a gift in fee simple. Nor, if such was the law formerly, can it be matter of surprise that the ♦Shelley's Case, i Rep. 94, 104. 36 LAW OF REAL PROPERTY same rule should have continued to prevail up to the present time. Such indeed has been the case. Not- withstanding the vast power of alienation now pos- sessed by a tenant in fee simple, and the great liability of such an estate to involuntary alienation for the purpose of satisfying the debts of the present tenant, the same rule still holds ; and a grant to A. for his life, and after his decease to his heirs, will now convey to him an estate in fee simple, with all its incidents ; and in the same manner, a grant to A. for his life, and after his decease to the heirs of his body, will now convey to him an estate tail as eflfectually as a grant to him and the heirs of his body. In these cases, there- fore, as well as in ordinary limitations to A. and his heirs, or to A. and the heirs of his body, the words heirs and heirs of his body are said to be words of limitation; that is, words which limit or mark out the estate to be taken by the grantee. At the present time, when the heir is perhaps the last person likely to get the estate, these words of limitation are regarded sim- ply as formal means of conferring powers and privi- leges on the grantee — as mere technicalities, and noth- ing more. But, in ancient times, these same words of limitation really meant what they said, and gave the estate to the heirs or the heirs of the body of the grantee, after his decease, according to the letter of the gift."* In effect, the rule in Shelley's Case determines when a tenant having a freehold grant shall be free to alien- ate it or bar the issue in tail, though the word heir is mentioned in the grant. It being held that in such cases the words heirs or heirs of his body, are not *Real Property, 254, 255. LAW OF REAL PROPERTY 37 words of purchase, designating the person who take under the deed, which would give the heir a present interest which could not be cut off by the grantee, but are simply to describe or Hmit — in the sense of bound- ing — the estate conveyed. That is, if lands are given or granted to A, and after his death to his heirs ; or to A for life, then to B for life, remainder to the heirs of A, this immediate or mediate limitation to the heirs of A, under the rule in Shelley's Case, does not make such heirs purchasers, or confer upon them any inter- est in the grant which A cannot cut off by alienation ; the words being descriptive of the estate given A, showing that it is larger than a life estate, and not descriptive of the persons who take the fee. So that the result of the rule is that A takes such an estate free from any obligations to the heirs, except such as were incident to an estate tail, and already discussed, to bar which, in early times, he would have to suffer a common recovery. The rule in Shelley's Case is, therefore, a rule of law, since it is a rule of construction which determines the force, meaning and legal effect of the words, his heirs, when used in connection with other words and phrases.* *Tiedeman, Leading Cases, 355 ; 131 Pa. St. 56. In the Pennsylvania case, a grant was made to a woman and her heirs, in trust, and the trust was to be for the life of the woman, remainder to her heirs. The woman deeded the property and at her death her children brought a suit in ejectment to recover the land. The question being the con- 38 LAW OF REAL PROPERTY The object of the establishment of a definite rule for the interpretation of words of inheritance is pre- sumed to have been intended to prevent the inherit- ance or fee remaining in abeyance, and perhaps, also, to facilitate the alienation of land.* The rule resulted in a fixed and definite legal construction on the words "his heirs." This meaning, it is to be understood, was the legal and technical meaning, but as regards devises, while the testator is presumed to have this technical mean- ing in view, yet this presumption may be overcome by showing that such an intent is inconsistent with the express meaning of the grant taken as a whole.** struction of the words "her heirs.'' The court held that the rule' in Shelley's Case prevailed in Pennsylvania, and the words simply described or bounded the estate of the mother, and that the heirs did not become purchasers thereunder, the mother taking an absolute fee with the right to dispose of it in her lifetime. And this rule has been extended to cover cases where the word heirs is so used, though the grantor did not intend it so, on the theory that a grantor is presumed to know the legal meaning of the words he uses. *Perrin v. Blake, 4 Burr. 2579. **io Eng. Rul. Cases, 689; 4 Burr. 2579; 1 Wm. Bl. 672; 62 111. 86. "The origin of the rule, however plausible may be the suggestions of learned men upon the subject, is lost in obscurity; but whatever that may be, or whether its con- tinuance can be, justified upon any rational grounds, it still remains as firmly rooted in English jurisprudence as any other rule whose origin is clear, and whose utility is mani- fest." — Tudor's Leading Cases on Real Property, 482, LAW OF REAL PROPERTY 39 Sec. 1448. CASES WHERE THE RULE IN SHELLEY'S CASE DOES NOT APPLY.— There are several cases where the rule in Shelley's Case does not apply, or which may be denominated as exceptions to the rule; these are: — 1. Cases where the ancestor is not granted an es- tate of freehold, that is, his estate is less than a life in- terest. 2. Cases where no estate of inheritance is given to the heirs. 3. When other explanatory words are subjoined to the word heirs showing an intent to have them take as purchasers. 4. Cases where the new estate of inheritance is grafted upon the heirs of his body, and the heirs are thereby made the stock of descent, leather than the ancestor. These cases or exceptions we will now consider briefly. Sec. 1449. CASES WHERE NO FREEHOLD IS GIVEN THE ANCESTOR OR ESTATE OF INHERITANCE TO THE FIEIRS.— The first two exceptions to the rule may be considered in connec- tion, as the reasoning is the same. If the estate given to the ancestor is less than a freehold, it is a mere chattel. There is no seizin of the fee in him, and this being in another, the words "his heirs" become words of pur- chase, indicating the person who are to be seized of the freehold, and the first tenant takes but a chattel 40 LAW OF REAL PROPERTY real, or possession for a term of years. If the life es- tate is given to the heirs, and the freehold to the an- cestor, as where an estate of freehold is granted to A, remainder at his death to his heirs, or to the heirs of his body in fee, he would take an estate of free- hold of fee simple, or fee tail, as the case might be. Whereas, if A grants an estate to B for five hundred years, remainder to his heirs, B takes an estate for five hundred years, and the heirs take the remainder in fee. When the first estate is less than a freehold, as for a term of years, the ancestor does not take the fee simple or fee tail. While if an estate is given to A for life, remainder to his heirs for life, then there are two life estates, and the whole fee has not been granted to either the ancestor or the heirs, but is still in remainder, in such a case the word heirs becomes a word of pur- chase, and is not descriptive of the estate granted to the ancestor. The ancestor takes but a life estate, and the word heirs is not necessary to create such an estate. Sec. 1450. WHEN THE EFFECT OF THE WORD "HEIRS" IS CHANGED BY EXPLANA- TORY WORDS.— It is a primary rule in the con- struction of wills, and devises therein made, as well as in the construction of a deed, to ascertain the intent with which it was executed, and to give effect to every phrase and clause if possible. So that where there is provision in the will or deed wholly inconsistent with a fee simple or fee tail vesting in the ancestor, then the heirs mentioned in such grant must be construed LAW OF REAL PROPERTY 41 to take as purchasers, and the word "heirs" is not con- strued under the rule in Shelley's Case as describing the estate of the ancestor.* Sec. 145 1. WHERE THE NEW ESTATE OF INHERITANCE IS GRAFTED ON THE HEIRS, THE RULE DOES NOT APPLY.— When the free- hold estate for life is given to the ancestor, with the remainder to the heir in fee tail, that is, the heir is made the stock of descent instead of the ancestor, the ancestor does not take an estate in fee or in fee tail, but simply a life estate, and the second taker secures the estate tail. In such cases, the grantor has in mind that the first tenant should have a life estate, and the remainder should go to his oldest son, and to the oldest son of the oldest son. The courts hold the words in such a grant are not descriptive of the estate given to the first taker, because the ancestor has taken the precaution to point out that the estate shall go to the son after the death of the first taker, and to the heirs of that son, and, therefore, the son is made the stock of descent and not the ancestor.** Sec. 1452. OTHER EXAMPLES WHERE THE RULE DOES NOT APPLY.— The rule in Shelley's Case requires that the freehold shall be granted to the ancestor, and in the same instrument the fee simple or fee tail shall be limited to his heirs. Consequently *Perrin v. Blake, 4 Burr. 2579; I Wm. Bl. 672; i Dougl. 343 ; Hargrave's Law Tracts, 489. **i Coke Rep. 66; 2 P. Wms. 176; 17 B. Monr. 282; 13 R. Isl. 71- 4a LAW OF REAL PROPERTY if a freehold is given to A, and remainder to the heirs of B, in fee or fee tail, the heirs of B will take as pur- chasers.* Again, in order that the rule in Shelley's Case may apply, the estate granted to the ancestor and the heir must in each case be both legal or both equitable es- tates. Thus, suppose an estate for life is given to A, and remainder to his heirs, in trust. In this case the word "heirs'' cannot be used as descriptive of the estate given to A, because the estate given to him is a legal estate, and the remainder goes to his heirs in trust — an equitable estate. Hence it follows, that the word heirs cannot be descriptive of the estate given to the ancestor if the estate given the ancestor is dif- ferent from the estate given to the heirs.** Sec. 1453. THE RULE IN SHELLEY'S CASE IS ABROGATED BY STATUTE IN MANY OF THE AMERICAN STATES.— The rule in Shelley's Case, by reason of working out different from the in- tention of the grantor in many cases, has been abolished by statute in Maine, Massachusetts, California, Kansas, West Virginia, Connecticut, New York, Illinois, Mis- souri, Alabama, Kentucky, Minnesota, Tennessee, Vir- ginia, Wisconsin and Michigan. In New Hampshire and New Jersey as to devises ; in Ohio and Oregon as *Coke, Litt. 378 a; 2 Coke, 51; 10 Coke, 50; 3 Coke, 20; ■ 7 Cranch, 456. ♦*2 Term, Rep. 444; 62 111. 86; 133 Pa. St. 342; 45 la. 437; Tallman v. Wood, 26 Wend. 9 ; Curtis v. Rice, 12 Ves. 89. LAW OF REAL PROPERTY 43 to wills, and in Rhode Island as to devises to one for life, remainder to his children or issue generally.* *"When lands, tenements, or hereditaments are given by will, to any person for his life, and after his death to his heirs in fee, or by words to that effect, the conveyance shall be con- strued to vest an estate for life only in such first taker, and a remainder in fee simple in his heirs." — Rev. Stat. Ohio, Sec. 5968. See, also. Bowers v. Porter, 4 Pick. 205; Richardson v. Wheatland, ^ Mete. 172; 2 Washb. Real Prop. 60711. LAW OF REAL PROPERTY 45 CHAPTER V. OF REVERSIONS AND REMAINDERS. Sec. 1454. MEANING OF A REVERSION.— A reversion is that estate which the grantor has after the particular estate which has been granted to another terminates. In other words, a reversion is that por- tion of the fee simple which remains in the grantor after the termination of a particular estate which has been carved out of it. If, for instance, the person hav- ing the fee creates a life estate, the life tenant is vested (clothed with) the estate, and under the feudal sys- tem he was given the actual possession, and was regarded as seized of the freehold during his life. The grantor was vested of the reversion; that is, he had a fee simple estate after the termination of the life estate. The whole estate had not been granted, and that which remained in the grantor to be re-enjoyed after the termination of the estate granted was called a reversion. The legal right of the grantor in the estate is as large before the intermediate estate ter- minates as after, but the reversion applies to the use of the land, of which he is deprived until the life estate terminates.* The life estate is called the particular estate. *Co. Litt. 22b, 142b; Plowd. 151, 195. "If a tenant in fee simple should grant to another person a lease for a term of years, or for life, or even if he should grant an estate tail, 46 LAW OF REAL PROi'ERTy Sec. 1455. MEANING OF A REMAINDER.— "If at the same time with the grant of the particular estate he (the grantor) should also dispose of his re- maining interest or reversion, or any part thereof, to some other person, it then changes its name, and is called, not a reversion, but a remainder. Thus, if a grant be made by A, a tenant in fee simple, to B for life, and after his decease to C and his heirs, the whole fee simple of A will be disposed of, and C's interest will be termed a remainder, expectant on the decease of B. A remainder, therefore, always has its origin in express grant ; a reversion merely arises incidentally, in consequence of the grant of the particular estate. it is evident that he will not thereby dispose of all his interest ; for in each case, his grantee has a less estate than himself. Accordingly, on the expiration of the term of years, or on the decease of the tenant for life, or on the decease of the donee in tail without having barred his estate tail and with- out issue, the remaining interest of the tenant in fee^will revert to himself or his heirs, and he or his heir will again become tenant in fee simple in possession. The smaller estate which he has so granted is called, during its continuance, the particular estate, being only a part or particula, of the estate in fee. And during the continuance of such particular estate, the interest of the tenant in 'fee simple, which still remains undisposed of — that is, his present estate, in virtue of which he is to have again the possession at some future time — is called his reversion." — Williams, Real Prop. 241. The statute De Donis, referred to in Chapter 3, secured to the grantor of an estate tail a reversion upon the death of the tenant in tail without heirs, until common recoveries came into vogue. Co. Litt. 22a. LAW OF REAL PROPERTY 47 It is created simply by the law, whilst a remainder springs from the act of the parties."* Sec. 1456. HOW A REVERSION OR RE- MAINDER MIGHT BE CONVEYED AT COM- MON LAW. — If a tenant in fee simple made a lease of his land for a term of years, his reversion, in law, is but a continuance of his former estate, the tenant by lease being regarded as a mere bailiff for the owner, and the grantor and his heirs have the right to dis- pose of their interest the same as before leasing. But if the owner in fee grants a life estate, or freehold estate, by the rules of the common law the life tenant takes the seizin, or is invested with the property, and is presumed as invested with the estate in fee simple during his life, that is, his life estate carries with it the freehold or feudal seizin, so that, the owner in fee simple could not make a feoffment (conveyance by livery or seizin) since his reversion is strictly incor- poreal during the life of the tenant for life, 'the owner having no seizin, could give none, and to convey this incorporeal reversion the grantor, or owner of the fee simple, had to make a deed of grant.** At the common law a feoffment or conveyance of real property in freehold was affected by livery of seizin. And that seizin meant the putting the tenant in actual possession of the land, and announcing in the presence of witnesses, what estate he took, and for ♦Williams, Real Prop. 242; 2 Bl. Com. 163. **Co. Litt. iS3a ; Id. 366b ; Shep. Touch, 230 ; Williams, Real Prop. 242, 243. 48 LAW OF REAL PROPERTY whom he held in reversion or remainder. Under the old feudal system, when the lord granted an estate to A for life, and put him in possession by livery of seizin, all other tenants were put out of possession, and it was then announced to all of the witnesses present, that A was given possession for himself for life, of the life estate, and possession for B in remainder, if such was the case, or possession for the lord as re- versioner, if there was no remainder granted to any one.* Sec. 1457. WHEN THE SEIZIN OF \NY SUB- , SEQUENT ESTATE MUST TAKE EFFECT.— The seizin of any subsequent estate must take effect immediately upon the termination of the precedent estate. Under the old feudal system there must be some one who had the immediate right to the seizin. The seizin could not be in abeyance. The exigencies of the feudal system required that the immediate seizin of the freehold should never be in abeyance, since upon the seizin of the land by tenants who held by reason of military service or rent, and allegiance to the lord paramount, depended the whole fabric of the feudal government. If the estate was in abeyance, and no one in possession, there would be no one to support the king. The right of a person to an estate depended upon his right to take immediate possession of it upon the termination of the preceding estate.** *Co. Litt. 48, 49, 50. **Co. Litt. 342b, Butler's note. LAW OF REAL PROPERTY 49 As a result of the principle just stated, future estates could not be granted in fee, as the tenant by the future fee could not be put in possession of the title to the land without livery of seizin, and this was in another. Title never passed until possession was given ; the title and possession being regarded as inseparable. Hence, a grant to A for life, remainder to B in fee, is good ; but a grant to A for life, remainder after one year to B in fee, is void at the common law. The reason being, that the moment the life estate is ended there must be some one in being, with the right to take the immediate seizin, and if the person to whom you give the fee is not able to take possession of the fee the moment the life estate drops out, the grant is void as incompatible with the rule of the common law.* So that, it follows from this principle, that a grant of a freehold to take effect in the future can never be made.** Sec. 1458. EVERY REMAINDER OF AN ES- TATE OF FREEHOLD MUST HAVE A PAR- TICULAR ESTATE OF FREEHOLD TO SUP- PORT IT. — The legal conception of a fee simple es- tate in lands is that it may be cut into ever so many parts, or estates, if each of such estates is supported by, or rests upon its predecessor and ready to come into being the moment the other is determined. Thus it is permissible to grant a life estate to A, remainder to B for life, remainder to C for life, remainder to D *Plowden, 29. **Co. Litt. 217a; 5 Coke, g4b. so LAW OF REAL PROPERTY in fee, since each estate is supported by the preceding estate, and taking them altogether you have an en- tire fee simple.* During the continuance of the particular estate of freehold, the freehold in remainder might be in abey- ance, however, because the seizin of the particular estate was sufficient to satisfy the requirements of the feudal tenure. Consequently the remainder could be limited to take effect upon condition, or to vest in some person to be ascertained thereafter, and the un- certainty as to the happening of the event, or the ascer- tainment of the person, could continue so long as the particular estate continued; but the remainder must have become certain before or at the termination of the particular estate, or else it would lapse. Therefore, if an estate is given to A, remainder to the heirs of B, and B is alive, this a good conveyance, so long as the *"So long as a regular order is thus laid down, in which the possession of the lands may devolve, it matters not how many kinds of estates are granted, or on how many persons the same estate is bestowed. Thus a grant may be made at once to fifty diflferent people separately for their lives. In such a case the grantee for life who is first to have the possession is the particular tenant to whom, on a feoffment, seizin would be delivered, and all the rest are remainder- men ; whilst the reversion in fee simple, expectant on the de- cease of them all, remains with the grantor. The second grantee for life has a remainder expectant on the decease of the first, and will be entitled to possession on the determination of the estate of the first, either by his decease or forfeiture, or other- wise. The third grantee must wait until the estate of both the first and second shall have determined; and so of the rest." Williams, Real Prop. 251. See, also, 2 Bl. Com. 167, 171. LAW OF REAL PROPERTY 51 particular estate continues. And if B should die be- fore the tenant for life, thereby giving to his heirs the right to take (as he has no heirs while living) his heirs w^ill take the estate on the death of A ; but if B outlives A, then the remainder over is void, because the seizin would be in abeyance, there being no heir to take.* Sec. 1459. OF VESTED AND CONTINGENT REMAINDERS.— When a remainder is granted to an ascertained and definite person it is called a vested remainder; thus, if an estate is granted to A for life, remainder to B in fee, B is given a vested remainder. While if the remainder is limited to take effect upon the happening of an uncertain event, or is granted to a person whose identity is uncertain, it is called, so long as this uncertainty exists, a contingent remainder. As soon as the uncertain event happens, or the identity of the person becomes certain, the contingent re- mainder becomes a vested remainder. A contingent remainder, because of the fact that it might never vest, was long regarded as illegal by the early common law. ' But about the time of the reign of Henry VI, it was adjudged that such a remainder was valid so long as the particular estate supporting it existed.** *Co. Litt. 342, 378, According to the common law, a per- son has no heirs while living, the maxim being, nemo est haeres viventis, hence in the example given, if B dies before A, the heirs mentioned are determined and vested with the re- mainder in fee, but if A dies first there are no heirs of B, flnder the maxim, and the estate lapses. — Williams, Real Prop. 264. **Year Book, 9 Henry VI, 24a; Williams, Real Prop. 264. S2 LAW OF REAL PROPERTY A remainder is said to be vested in a person when he and his heirs have a right to the immediate posses- sion of the estate upon the termination of the par- ticular estate. And a remainder is nevertheless a vested one, though it may never be enjoyed by reason of the fact that the particular estate may outlast the re- mainder, as where the remainder is a life estate sup- ported by another life estate. It is the uncertainty as to the estate vesting in interest, that characterizes a contingent remainder, and not the vesting of the possession. If an estate is given to A for life, remainder to the heirs of B, and B is dead, the remainder is vested. But if an estate is given to A for life, remainder to the heirs of B, and B is alive, the remainder is not vested, although B may have several children, they are only heirs expectant.* Sec. 1460. HOW A GRANT IS CONSTRUED AS REGARDS CREATING A VESTED OR CON- TINGENT REMAINDER.— Whether a remainder is vested or contingent depends upon the language creat- ing the remainder. If in the creation of the remainder the conditional element is incorporated and made a part of the description of the remainder, it is con- tingent. If, however, after words giving a vested re- mainder, a clause is added divesting it upon certain conditions, it is still a vested remainder, though liable ♦Co. Litt. 342, 378 ; Williams, Real Prop. 265, 266. LAW OF REAL PROPERTY 53 to be divested. Thus, for example, a devise to A for life, remainder to his children, but if any child dies in the life time of A, his share to go to the surviving brothers and sisters ; this is a vested remainder, though the vested remainder of each child is liable to be de- feated by his death. But if the devise is to A, re- mainder to the children who survive him, this re- mainder is not to a single one of the children now in existence, but to the children who survive, and it is uncertain who will survive, so that the remainder is contingent and does not vest until the death of A.* When there is a gift over in a will to the right heirs, it is sometimes difficult to determine whether the right heirs designated are those persons who were his heirs at the time of his death, when the will took efifect, or his heirs when the remainder over is ready for distri- bution, at the death of the first taker. The general rule is, that where a remainder is given over to the heirs of the testator, the testator means the heirs of himself in existence at the time of his death, unless there is something in the will which indicates beyond a question, that he means the heirs that are in existence at the time the life estate terminates.** In such devises the rule as regards the exclusion of the first taker from sharing in the remainder is, that if it appears from the will that the estate given the first taker was all the estate that the testator intended he *I3 R. L 71; 83 Pa. St. 462; 71 Mo. 371. **I39 III. 433; Tiedeman's Cases, 301. 54 LAW OF REAL PROPERTY should have, then the estate goes to those persons who are the right heirs of the testator at the time of his death, and the first taker, although he may be a right heir at that time, is excluded.* *6i Pa. St. Ill; g Beav. 376; 2 M. & K. 80; 3 Sim. 627; 8 Ves, 38; 3 M. & K. 235. LAW OF REAL PROPERTY 55 CHAPTER VI. OF ESTATES UPON CONDITION. Sec. 1461. WHAT IS MEANT BY AN ESTATE UPON CONDITION.— An estate upon condition is such that it will be created, enlarged or defeated, upon the happening of some uncertain event. In regard to all estates upon condition, it may be said as to the condition upon which the estate is limit- ed, that it must be a good or valid condition. What is meant by a good or valid condition is that it must be one not repugnant to the grant which has been made. Thus, if a man is granted a certain estate, and there are certain rights, powers and privileges, passing as incident to that estate, a condition that he could not exercise those rights or powers, would not be good or valid, since it would be repugnant to the grant. Likewise, a condition to be good must not be con- trary to, or in violation of good morals or public policy. And a condition which in its very nature is impos- sible of performance is void, as the courts will never require or expect a man to perform what is impos- sible. Sec. 1462. CONDITIONS ARE DIVIDED INTO CONDITIONS PRECEDENT AND CONDI- TIONS SUBSEQUENT.— Conditions are divided into two classes : Precedent, and Subsequent. When the condition is precedent the estate does not S6 LAW OF REAL PROPERTY come into existence until the condition is performed. Consequently it does not matter whether the condition is impossible, illegal or against public policy, it is always good in the sense that the estate upon condition precedent does not vest until the condition is perform- ed. Therefore, if it is a condition that is impossible to perform, or the condition is illegal and void, the estate never comes into existence. Hence in consid- ering a condition precedent it is unnecessary to ascer- tain whether it is against public policy or good morals, since such conditions must be performed before the estate vests ; in other words, the condition precedent does not enlarge the estate, but simply prevents it from ever coming into the possession of the grantee.* All that is necessary is to consider a condition prece- dent as one that is imposed upon the estate before it can vest, and when it is performed the estate vests. A subsequent condition does not prevent the vest- ing of the estate, but it may restrict the enjoyment of the estate, and, in case it is not complied with, may terminate the estate by giving the grantor or his heirs the right to make a re-entry. Thus, every lease con- tains a condition that if the rent is not paid, the land- lord may re-enter and take possession of the premises and terminate the lease, this is a condition subsequent. In this case, since the estate vests when the condition is subsequent, the tenant cannot be compelled to per- form an impossible condition, or a condition that is against public policy to prevent being divested of his *3 Dallas, 317; 14 Mass. 495. LAW OF REAL PROPERTY 57 vested estate, and such conditions, if imposed are, therefore, void. Sec. 1463. A CONDITION SUBSEQUENT MUST NOT VIOLATE ANY RULE OF PROP- ERTY. — What is meant by a rule of property is, that there are certain incidents to certain estates, which belong or inhere to those estates, since without them the estate could not be granted. They are essential to the existence of the estate, and when a condition sub- sequent deprives the owner of any one of these it is repugnant to the grant, and void. Thus, in the case of a fee simple absolute, there inheres in such a grant these things: i. The right to ahenate. 2. The right to devise by will. 3. The right, in case it is not de- vised or sold, to have it descend to his heirs. All these elements are essential to a fee simple absolute, and any condition in the deed or will which deprives the grantee of the fee simple absolute of these essential rights is void, because it violates a rule of property. We say it violates a rule of property when it is re- pugnant to the grant.* It is not a violation of a rule of property, however, to restrict the power of 'alienation to a particular class of persons. Thus, the right of alienation may be re- stricted to the members of the family, the sisters of the grantor, and their children, and the like.** *Co. Litt. 223a; 20 L. R. Eq. 186; 62 N. Y. 462; 29 Mich. 78. ♦*L. R. 20 Eq. 186; 6 East, 173; 15 N. J. L. 386; 11 Pa. St. 370. S8 LAW OF REAL PROPERTY The rule against restricting the power of aUenation applies to involuntary sales, as well as to voluntary sales. So that estates cannot be placed beyond the reach of creditors by conditions in a will.* Efforts are sometimes made in wills, to provide for spendthrift devisees by conditions that the estate granted shall not be liable to seizure by the devisees' creditors for the debts of the devisees. This cannot be done, as the right of the creditors to collect their debts by sale of the lands devised to the debtor cannot be taken away.** *Where a man conveys land by deed or will, that is a voluntary sale or gift ; if it is sold upon execution for the pay- ment of the owner's debts, it is an involuntary sale. **7S Iowa, 343. In this case the testator granted certain lands to his son, declaring, "It is my will that he shall use, occupy and enjoy the lands during his natural life, but with- out the power or ability to mortgage the same." It was also provided that no creditor of the devisee should have the power to take the land upon execution. Execution was taken out by a creditor of the son, and upon its being returned unsatis- fied, a petition was filed to reach the property or land on which he was placed. The court held that the son had a life estate, and that this life estate was subject to levy upon execution by his creditors. But this is not the universal doctrine, and it has been held in several of the States, that a testator can, if he so chooses, create what is known as spendthrift trusts, making provision for a spendthrift son or daughter, by placing the estate be- yond the reach of such spendthrift and beyond the reach of his or her creditors, so that the gi^pntee can have the profits of the estate from year to year. This is exception to the rule just stated, and seems to have been allowed simply to protect a testator wishing to provide for the exigencies of a relative incapable of looking after himself. — 91 U. S. 716; 133 Mass. 170; III U. S. 247; Gray, Restraints upon Alienation, Sec. 24. LAW OF REAL PROPERTY 59 Sec. 1464. THE USE OF LAND MAY BE RE- STRICTED IN THE GRANT.— The use to which the land may be put can be restricted or Hmited in the grant. Thus, the fee may be conveyed upon condition that it shall not be used for certain purposes, as, for example, the sale of intoxicating liquors, maintaining a slaughter house, boiler house, soap factory, livery stable, and the like. These restrictions or conditions on the use, are held good if the party who has a right to enforce them has any interest in their enforcement.* It has been held in this class of cases, that where the fulfillment of the condition is no longer of any value to the grantor, when he is no longer interested in its performance, the violation of the condition will not work a forfeiture.** *ioo U. S. 55; 41 N. Y. 442; loi Mass. 512; 14 Kansas, 616; 25 O. St. 580. The case in the 100 U. S. 55, grew out of a grant to Colorado Springs, there being a restriction in the deed, that no building should be erected upon the premises for the sale of intoxicating liquors. This condition was violated, and the heirs of the grantor brought suit in ejectment to ob- tain possession of the premises. The Supreme Court held that the condition was a good one, the violation of which terminat- ed the estate. In putting a condition of this kind in a deed, it is well to couple it with a right of re-entry by the grantor or his heirs upon the breach of the condition. The reason for this is, that a violation of the condition does not terminate the estate, but simply gives a right to bring an action for breach of covenant, or breach of condition. **83 Mich. 7 ; 75 Mich. 36 ; 100 U. S. 55. In the first case it appeared that a person had platted certain lands and had sold all the -lots, but in each deed he put the proviso that, no saloon should be erected upon the premises. After he had sold all 6o LAW OF REAL PROPERTY A violation of the condition, does not of itself ter- minate the estate.* Sec. 1465. AN ESTATE UPON CONDITION DISTINGUISHED FROM AN ESTATE UPON CONDITIONAL LIMITATION.— An estate upon condition is granted on the limitation, or condition, that the grantee do certain things, or refrain from do- ing certain specified things. If the grantee violates this prescribed condition, the grantor may re-enter and take possession. While an estate upon conditional limitation is one where the whole estate is given to the grantee absolutely, but upon the happening of a specified event it is to terminate absolutely. There is no re-entry necessary in this kind of an estate. The happening of the event is the end of the estate, and the fee goes immediately to someone else. For exam- ple, an estate is given to A so long as B remains in Rome. Here A has an absolute estate so long as B remains in Rome, but the moment B returns from of the lots a saloon was built upon one of the lots. The court held that this was a good condition so long as the keeping of the condition was a benefit to the grantor or his heirs, but since the grantor had sold all of the lots, he was no longer interested in the performance of the condition, and therefore could not bring an action to recover the lot. But this case does not preclude the bringing an action for the breach of the condition by some one other than the grantor, as one of the several grantees, where the deeds are properly drawn, and the condition is made to be in favor of the several grantees. In such cases a bill in equity may be filed by the grantees to en- force the condition. ♦4 Kent, Com. 127. LAW OF REAL PROPERTY 6l Rome the estate terminates, and no re-entry is neces- sary, since the estate ends on the happening of the event which Hmited its duration. A proviso in a will that the estate devised shall ter- minate upon the happening of a certain event may be good as a conditional limitation, and void as a con- dition. For instance, land is devised upon condition that the devisee does not marry. Such a condition is void as against public policy, since the law favors marriages, and any such obstacle placed in the way of marriage generally is regarded as against public poHcy. But if the estate should be given to the de- visee while he remains single, and to terminate upon his or her marriage, it is good as a limitation. The distinction between the two devises is, the distinc- tion between a condition and a conditional limitation. In the first case the estate is held upon condition that the devisee does not marry, and that condition is void. In the other case the devisee is given an estate for an indefinite period, that is while remaining unmarried, and is not considered as a restraint upon marriage, since the will simply says so long as the devisee re- mains unmarried he shall have the possession of the estate, and upon marriage the estate terminates.* Sec. 1466. A CONDITION IS TO BE DIS- TINGUISHED FROM A TRUST.— The courts in construing an instrument will sometimes construe the *84 Me. 400. It occurs to us that this is a distinction without much difference, as the desire to retain the estate in either case would tend to restrain the devisee from getting married. 62 LAW OF REAL PROPERTY language used as creating a trust and not a condition at all. For instance, where land is given in a will to be used and occupied by a church, the court held that a trust was created for the use and benefit of the church, and that it was not held upon condition.* Where land is deeded for public purposes, and to be used for that purpose only, upon condition that if it is not so used that the grantor or his heirs may re- enter, it is best to have the grant limited upon a con- dition rather than upon a conditional limitation. The reason being that a condition need not be performed within the rule against perpetuities, while the condi- tional limitation would be governed by such rule. Where an estate is granted upon a conditional limita- tion, the event which is to terminate the estate must happen within lives in being and twenty-one years thereafter. So that if a deed conveying land for pub- lic purposes, provides that the grantee shall hold the fee so long as he uses it for a public building, this is a conditional limitation, and must happen within the rule governing perpetuities, or the condition is void and the grantee will take the absolute title. But if the estate is limited upon a condition it is not within the rule against perpetuities.** *84 Me. 386; Tiedeman's Leading Cases, 233. **S9 Pa. St. 335 ; Tiedeman's Leading Cases, 229. In this case the property was deeded to the Methodist Church and the deed provided that the premises should be occupied by the church, but upon failure to be used as a church, the grantor reserved the right to re-enter. It happened that the premises were occupied for several years as a church, when for some reason LAW OF REAL PROPKRTY 63 Sec. 1467. NATURE OF AN ESTATE GRANT- ED UPON CONDITION.— When an estate is grant- ed upon condition, the grantor does not part ^yith his entire interest; he has reserved to himself and his heirs the right to re-enter upon breach of the condi- tion, this portion of the estate remains in him, and the grantee takes subject to this right of re-entry. The grantor may, by subsequent conveyance grant the in- terest he has reserved, and when these two interests are united the estate becomes a fee simple absolute. So that the right to re-enter is something more than an interest which belongs to an individual, it is a right incident to the land itself, being an interest which the grantor did not convey. The possibility of re-entry is created or reserved in the same instrument which creates the first estate. Sec. 1468. NATURE OF AN ESTATE UPON CONDITIONAL LIMITATION.— An estate upon conditional limitation differs from an estate upon con- dition in several particulars: 1. When the grant is upon a conditional limitation, the whole estate passes from the grantor and nothing i3 reserved. Where there is a condition subsequent the right to re-enter upon breach of condition is re- served. 2. When the estate is upon conditional limitation. the Bishop abandoned the church and appointed no one to hold services there. An action was brought to recover pos- session of the premises, and the court held, that the moment the grantee ceased to occupy it as a church, the right to re- enter accrued. 64 LAW OF REAL PROPERTY the happening of the condition specified terminates the estate and no re-entry is necessary. Where the estate is held upon condition merely, the grantor may enter or not, just as he pleases, but if it is limited to cease upon the happening of a particular event, when the event happens it is the end of the estate. 3. In the case of an estate upon condition there are alvi^ays persons in being, the grantor and grantee or their representatives, vi^ho can unite and pass a per- fect tifle in fee simple ; while in the case of an estate upon conditional limitation the whole estate passes to the grantee, and it being uncertain when the con- tingency may happen, there can be no one who can unite with the grantee and pass a perfect title.* *In most cases the estate upon condition is to terminate upon the grantee dying without leaving issue him surviving. It seems to be a universal trait of mankind to desire that property shall be retained in the family. So that the grantor makes a will granting his land to his son in fee and to his heirs, and then puts in a proviso to the effect that if he dies leaving no heirs, or issue him surviving, the estate shall go to his brothers and sisters. This estate given in the first in- stance to the son, is an estate upon conditional limitation. The estate that goes over on the happened of the event, is called an executory devise. It is executed upon the happening of the event which terminates the first estate, that is, the failure of issue. It is a devise because it is an estate given in a will. The third difference mentioned is the most important of the distinctions between an estate upon condition and an estate upon conditional limitation. It may be illustrated thus : Sup- pose A has the fee of land, and he grants this fee to B upon condition that he reside in a certain place. And there is a. provision that A or his heirs may re-enter if B fails to per- form the condition. A could then make another deed to B giving him the residue of the estate which he holds, then B LAW OF REAL PROPERTY 65 Sec. 1469. THE ESTATE OVER IN A CON- DITIONAL LIMITATION IS TO BE DISTIN- GUISHED FROM A REMAINDER.— The estate over in a conditional limitation is not a remainder. A remainder is necessarily a part of the whole. At com- mon law a fee could not be limited upon a fee, be- cause a fee comprises the whole estate, and if the 'whole estate is granted there would be nothing left as a remainder. A grant of an estate in fee upon a con- ditional limitation that the estate shall cease and go to a third person on the happening of an event, does not give the third person to whom the estate may go a remainder, but only a contingency of receiving the entire fee upon the happening of the event.* would have a perfect title. Suppose both parties die, B's heirs get his estate and A's heirs get the right to re-enter for breach of condition, and if all these heirs Would unite in a deed to a third person he would get a perfect title. So that there are always persons in being who can unite and give a perfect title in the case of an estate upon condition. While in the case of a conditional limitation, the estate goes to A provided that if he die without issue the estate shall go to B and his heirs. A has the entire estate upon this conditional limitation. As it is not known whether A will die without issue; it is also uncertain whether B will be alive or dead when A dies. On the death of A without issue the estate goes over to the person then entitled to it ; this person may not be in existence, since he may be born hereafter, consequently there are no persons in existence who can, by uniting in a deed, give a complete title in fee simple. *3 Gray, 143 ; 63 Am. Dec. 725 ; Tiedeman, Leading Cases, 693. A devise to A for thirty years, remainder to B in fee, is an illustration both of the particular estate and a remainder. In this case the particular estate at the end of thirty years ceases by limitation. It is a definite and specified part of the 66 LAW OF REAL PROPERTY Sec. 1470. AN ESTATE UPON CONDITIONAL LIMITATION DISTINGUISHED FROM AN ES- TATE TAIL. — An estate upon conditional limitation differs from an estate tail in this : that in an estate tail the ancestor has not parted with his entire estate, and upon failure of the designated heirs, the estate re- verts, while in a conditional limitation, as we have seen, the ancestor or grantor has parted with his en- tire estate. Sec. 1471. MEANING OF AN EXECUTORY DEVISE. — An executory devise is an estate given by will upon a conditional limitation, and which interest goes over to a third person upon the happening of the event which terminates the first estate created by the will. fee; the remainder, which is the part of the fee left after carving out the estate for years, begins when the particular estate drops out. The particular estate may also be for an indefinite period, as a grant to A until B returns from Rome, and then to B in fee, here A has a life estate liable to be cut short by B's returning from Rome, and B has a remainder in fee. But a grant to A and his heirs until B returns from Rorhe, and then to C in fee, does not give any remainder to C. A has a fee simple estate upon conditional limitation. The difference is, that in the one case you have given to A nothing more than a life estate, which is likely to be terminated upon B's re- turning from Rome ; in the other case you have given A a fee simple liable to be terminated upon the happening of the event. In the first case there was a remainder over because A could not live forever, and the estate could only last so long as he lived ; in the last case there is no remainder over, since unless B returns from Rome, A and his heirs have the fee, and what goes to the third person, if anything, is not a re- mainder, but the fee. LAW OF REAL PROPERTY 67 Since the tenant taking the estate upon the condi- tional limitation could not defeat the executory devise, or because the power to alienate is repugnant to a base ,or qualified fee, it is held that, if a testator gives and devises a qualified or base fee, and then gives the de- visee power to alienate the land, he thereby defeats the executory devise over. That is, if by giving the right to sell, the testator has given the fee absolute, the courts hold that he cannot, also, provide for its ter- mination, as this would be repugnant to the grant.* It was a rule of the early common law, at first strict- ly adhered to, that if a fee absolute was granted, it could not be limited by any condition in the grant in derogation of the fee. But in 1620, in a case reported in 2 Croke, 590, the court held that an estate could be granted upon a conditional limitation. The facts in the case were: land was devised to A and to the heirs of his body, provided, that if he died leaving no issue him surviving, the estate should go to B. So far as the first part of this devise is concerned, it would apparently create an estate in fee tail general, but the proviso was that if he die leaving no issue him surviving, then the estate should go over to B. The court held that in such a case, the expression, "dying without issue him surviving" meant an indefinite failure of issue. That is, it is an extinction of the line, when there is no longer heirs of the body in exist- ence, then the estate goes over. While if it means a *S Mass. soo ; 10 Johns. 19 ; 100 N. Y. 287. 68 LAW OF REAL PROPERTY definite failure of issue, then it is not an estate tail. In this case, after the death of the testator A went into possession and suffered a common recovery. He had converted what he assumed to be an estate tail "into a fee simple. After A's death the executory de- visee, that is the one entitled to the estate under the terms of the grant upon A's dying without issue him surviving, brought an action to recover the property. The first question was, did this grant create an estate tail? If it did, it had been barred by a common re- covery and converted into a fee. As we have seen the tenants in tail are barred by a common recovery, because their ancestor has received a judgment for the value of the land from or against his grantor, which afterwards bars and estops him and his heirs claiming any interest in this land. The judgment is also a bar against his descendants claiming any in- terest in the lands since the judgment is regarded as binding upon the party and his privies. But the court held that an executory devisee was not a party to the proceedings at all, either directly or inferentially, and consequently the proceedings in common recovery did not bar his right to the estate, if the first taker died without issue. While at the early common law, and yet you cannot make a grant in fee, and at the same time annex con- ditions which are repugnant to the grant, as to grant a fee absolute and at the same time provide that the grantee shall not alienate the estate granted, yet it is held to be permissible to grant a fee and provide that LAW OF REAL PROPERTY 69 if the first taker does without issue, the estate granted shall terminate and the fee go over to a third person. If such an estate is created by will, we have seen that it is termed an executory devise, while if it is created under a deed, it is called a shifting or springing use. That is, the creation of such an estate could not be made by a direct conveyance at common law, and was made by way of a trust or use, by which land was conveyed to A for certain specified uses, and provided that if a certain event happened the particular use or trust should cease, and the lands be held to another use or trust. Thus if lands are granted to A an,d his heirs, for the use of B and his heirs, but in case A should die under age, then to the use of C and his heirs, the death of A under age, terminates the first use, and it shifts to C. If land is conveyed in a deed to B and his heirs, and then upon the happening of a certain event it is to go over to a third person, such a condition would be void, because of the rule that you cannot limit a remainder upon an estate in fee simple.* Sec. 1472. EFFECT OF A CONDITIONAL LIMITATION WHEREIN THE ENTIRE ES- TATE IS NOT TO GO OVER TO A THIRD PER- SON. — We have seen that if an estate is granted to A and his heirs in fee, upon the conditional limitation that if he dies without leaving any heirs him surviving (that is, a definite failure of issue, since if it was con- strued as an indefinite failure of issue it would be void *li8 Ind. 150; Tiedeman, Leading Cases, 311. 70 LAW OF REAL PROPERTY as contravening the rule against perpetuities), the estate shall go over to B, this limitation is good under the case decided in 1620. But suppose instead of giv- ing the entire estate to B, the grant is, that so much of the estate as remains undisposed of shall go over to B. The question then is, what estate goes to B ? The grantor has given to A the fee simple and also given him the power to convey the fee simple absolutely, whether he leaves any issue or not, but provides that if A does not sell it all what remains shall go to B. The English cases held that this was nevertheless a good limitation, ana this seems to be the law of . the English courts now. But in America the weight of authority is, that the executory devise over, in such a case is void."'' *The first case decided upon this point was in the S Mass. SCO; and that was followed in the 10 Johns. 19, decided in 1813. These two cases have been followed by a great number of American courts. The case in 5 Mass. 500, was based upon the case of Attorney General v. Hall, Fitzgiven, Rep. 314. In which case the testator left both real and personal property to his son. The real property was given to him under words which created an estate tail, without question. Now, under the rule of property that where both real and personal property are conveyed or devised by the same words, and such words create an estate tail as to the realty, the de- visee takes the personal property absolutely. The court held that th,e language used created an estate tail in the land. The devisee suffered a common recovery and converted his title into a fee simple, and then died leaving a large part of his personal property unsold. The will provided that if he should die without issue the property should go to the Goldsmith Company, of London. The son had made a will, making his widow his executrix. The Attorney General for the use of the LAW OF REAL PROPERTY 71 Sec. 1473. HOW A WILL MAY BE DRAWN SO AS TO GIVE THE DEVISEE THE RIGHT TO SELL AND YET HAVE THE REMAINDER GO TO A THIRD PERSON.— The question arises as to how to draw a will allowing the devisee the power of disposition and yet have the remainder of the estate go over to a third person upon the happen- Goldsmith Company filed a bill for an accounting of the per- sonal property, and the question was what estate did the first devisee take under the will ; and what interest, if any, went to the Goldsmith Company in the personal property that had been devised to the son, the son having died leaving no issue. The court held, first, that the devisee took an estate tail in the real property, and having suffered a common recovery had thereby converted it into a fee simple ; second, that taking an estate tail in the realty gave him the personal property absolutely, and any restriction on such a gift was a violation of the rule of property as repugnant to the grant, and therefore void. The Massachusetts court commentmg upon this case said, since the power to dispose of the personal property was given, the executory devise over was void. But that was not the decision ; which was that when the devisee was given the prop- erty absolutely, the executory devise was void. It was not void because the first devisee was given the power to sell, but because the power to sell was incident to the estate granted, and he could not be deprived of it by any limitation. When the case in 10 Johns. 19, was decided, the court did not have before them the case of Atty. General v. Hall, but had before them a case in the 2d Vesey, in which this case was commented upon. As a result of this misunderstanding of the language of the court in tht Fitzgiven case, the American courts have decided, and the decision is followed by the weight of authority, that where an estate is devised in fee, and then the devisee is given the power to dispose of it in fee simple absolute, and a provision is made that what is left shall go over to a third person, this proviso is void, and nothing will go over, the first devisee taking the absolute fee. 72 LAW OF REAL PROPERTY ing of an event. We have seen in the last section that this cannot be done under the ordinary limitation by the weight of American authorities. This may be done by giving the devisee a life estate, with remainder to his children, with power to alienate in fee, provided that if he dies without issue, the remainder over to his brother's children. It being held, by the weight of authority, that an executory devise after a life estate, coupled with power to alienate in fee, is good.* To carry out the intention of the testator and save the executory devise over, the court will, when the language will permit, cut down a devise in fee to a life estate with power to alienate. This will be done to effect the purpose of the testator, where possible, since if compelled to treat the first gift as a fee simple, the executory devise limited upon it is void.** The condition upon which the property is to go over to a third person, must be a good one, and not void for any reason.*** The rule of property, that where an estate in fee simple is granted it carries with it the right to alienate it by deed or will, which cannot be limited by a condi- tion curtailing these incidents is not enforced by the Scottish law.**** And the rule is sometimes ignored *IS3 Mass. 542; 25 Am. Dec. 614; 153 Mass. 132; 25 Am. St. Rep. 616; 102 Mich. 148; 83 Ky. 233; 116 Pa. St. 490. **I32 N. Y. 2; 41 Hun. 125. ***6 Chan. Div. i, ****! Scottish App. Cas. 592. LAW OF REAL PROPERTY 73 where more important rights intervene, as where the courts have been compelled to sacrifice the rule of law or infringe upon human liberty, they have sacrificed the rule of law to protect liberty. Sec. 1474. EXECUTORY DEVISES AND THE RULE AGAINST PERPETUITIES.— Executory devises or interests, as they are called, in their very nature, by putting off the vesting of an estate, tend to perpetuities, since they render the fee simple in- alienable during the period for the happening of the event or contingency. It being impossible to deter- mine who shall receive the estate over, at any par- ticular time, it is impossible to convey a perfect title, and this ties up the estate so as to prevent free'aliena- tion, that is, it tends to perpetuities. It therefore be- came necessary at common law to fix some permanent rule prescribing the period or length of time that might be stated for the happening of the event or con- tingency, so that limitations within this rule would be good, and those without it, void. This limit by the common law came to be fixed as a period of a life or lives in being and twenty-one years thereafter. This rule has been established by judicial decisions, but is as authoritive as any statute; though it is now substantially adopted as the statutory rule in the various American States. The common law courts had decided that a grantor could not limit a fee upon a fee, but that he might grant a fee and then provide that the fee should terminate upon the hap- pening of a certain event and go over to a third per- 74 LAW OF REAL PROPERTY son. Then they established the rule that the event which would terminate the fee, must be an event which would happen within a certain time, and this time came to be judicially fixed at an early date, as a life or lives in being and twenty-one years, thereafter. So that an estate can be given to A for life, remainder to B for life, then to C for life, and so on indefinitely, and then to X and his heirs in fee, provided that if X dies leaving no issue, then the estate should go to Z. At the common law you could grant the estate for as many lives as you saw fit and twenty-one years there- after.* To which may be added the period of gesta- tion, should gestation actually exist. *"Executory interests other than those in remainder after or engrafted on an estate tail, must be so limited that, from the first moment of their limitation, it may be said that they will necessarily vest in right, if at all, within the period oc- cupied by the life of a person in being, that is, already born or in ventre matris, or the lives of any number of persons de- scribed and in being, 'not exceeding that to which testimony can be applied to determine when the survivor of them drops,' and by the infancy of any child born previously to the de- cease of such person or persons; or the gestation and infancy of any child in ventre matrisai that time, or within the period occupied by the life or lives of such person or persons in be- ing and an absolute term of twenty-one years afterwards, and no more, without reference to the infancy of any person; or within the period of an absolute term of twenty-one years without reference to any life." — Smith on Executory Interests, Sec. 706. See, also. Beard v. Westcott, s Taunt. 394; Cadell V. Palmer, I CI. & Fl. 372. "The law has fixed the folowing limit to the creation of executory interests : It will allow any executory estate to com- mence within the period of any fixed number of now existing lives, and an additional term of twenty-one years; allowing LAW OF REAL PROPERTY 75 Sec. 1475. AN EXECUTORY INTEREST TO BE GOOD MUST NOT CONTRAVENE THE RULE AGAINST PERPETUITIES.— In order- that the condition may be good, which creates an execu- tory interest, it must necessarily happen within the prescribed period fixed by the rule against perpetui- ties. So that if there is any possibility that the hap- pening of the event will lap over this limit for any length of time, it is void.* further for the period of gestation, should gestation actually exist. This additional term of twenty-one years may be in- dependent or not of the minority of any person to be en- titled ; and if no lives are fixed on, then the term of twenty- one years only is allowed." — Williams, Real -Property, 318. "With regard to future estates of a destructible kind, namely, contingent remainders, we have seen that a limit to their crea- tion was contained in the maxim, that no remainder can be given to the unborn child of a living person for his life, fol- lowed by a remainder to any of the issue of such unborn person : the latter of such remainders being absolutely void. This maxim, it is evident, in effect, forbade the tying up of lands for a longer period than can elapse until the unborn child of some living person should come of age ; that is, for the life of a party now in being, and for twenty-one years there- after — with a further period of a few months during gesta- tion, supposing the child should be of posthumous birth." Id. See, also, 15 Pick. 104; 41 Mich. 562; 50 Mich. 428; 8 Mass. Z^ ; 16 Johns. 399 ; 43 N. Y. 303 ; 14 Allen, 572. The rule governing perpetuities was first definitely settled in the case of the Duke of Norfolk, 3 Ch. Cas. i ; 2 Chan. Rep. 229, decided in 1685. It is governed by statute in most of the United States. *68 Mich. 355 ; 3 Gray, 143; Tiedeman, Leading Cases, 393. "When a gift is infected with the vice of its possibly ex- ceeding the prescribed limit, it is at once and altogether void both at law and in equity. And even if, in its actual event, it 76 LAW OF REAL PROPERTY Sec. 1476. AN ESTATE UPON CONDITION DOES NOT VIOLATE THE RULE AGAINST PERPETUITIES.— An estate upon condition does not violate the rule against perpetuities since there is always some one in being, who by uniting in a deed, can convey the fee simple to the land affected by the condition.* should fall greatly within such limit, yet it is still an absolutely void as if the event had occurred which would have taken it beyond the boundary. If, however, the executory limitation should be in defeasance of, or immediately preceded by, an estate tail, then, as the estate tail and all subsequent estates may be barred by the tenant in tail, the remoteness of the event on which the executory limitation is to arise will not affect its validity." — Williams, Real Prop. 319; Newman v. Newman, 10 Simons, 51 ; Jarman on Wills, 233. In addition to the limit already mentioned, another act of parliament was passed in the reign of Geo. Ill (39 and 40 Geo. Ill, c gS), forbidding the accumulation of income for any longer term than the life of the grantor or settlor, or twenty- one years from the death of any such grantor or settlor, or during the minority of any person living or in venira sa mere at the death of the grantor, or during the minority only of any person who under the settlement or will, would for the time being, if of full age, be entitled to the income so directed to be accumulated. This statute was passed to prevent an ac- cumulation of income as made by Mr. Thelluson, providing that the property should be allowed to accumulate during the lives of all his children, grandchildren and great-grandchildren, who were then living at the time of his death, for the benefit of some descendant living at the death of the survivor. See, Thelluson v. Woodford, 4 Ves. 221. Statutory provisions limiting the accumulation of income from property of a like character have been enacted in a number of the American States. Vail v. Vail, 4 Paige, 317; Vxxri. Dig. 1460. *Suppose A grants the estate to B upon certain conditions; the next day, or any, time, B can go to A and say, I want to LAW OF REAL PROPERTY 77 Sec. 1477. WHEN EXECUTORY DEVISES WILL BE HELD VOID.— The more common cases of executory devises which are held void as contra- vening the rule against perpetuities are those where property is given to A, remainder over upon the in- definite failure of issue. We have seen that if the estate over is given upon definite failure of issue, it does not violate the rule.* Suppose an estate is given to A, and his heirs in fee provided that if A dies without issue him surviv- ing, it shall go over to B. What does such a limita- tion mean? Does it mean that if A dies without chil- dren or issue, the estate shall go to B, or does it mean that the estate goes over only when the line of issue from A shall have become extinct, which might not be released of that condition, and A has the power to re- lease him from the operation of the condition, giving him an absolute fee simple. It is not required that the condition must be performed within hves in being and twenty-one years afterwards, since there is always some one in being who by uniting in the deed can convey a perfect title. But where the estate is granted upon a conditional limitation, there is no one in being who can join and pass a perfect title, therefore the event must be one which will happen within the period fixed by the rule governing perpetuities. *26 Wend. 229; 29 Pa. St. 118; 76 Va. 140. "A definite failure of issue is when a precise time is fixed by the will for the failure of issue, as in the case where there is a devise to one, but if he dies without issue, or lawful issue living at the time of his death, etc. An indefinite failure of issue is the period when the issue of descendants of the first taker shall become extinct, and when there is no longer any issue of the line of the grantee, without reference to any particular time or any particular event. Huxford v. Mulligan, 50 Ind. 542. 78 LAW OF REAL PROPERTY be for an indefinite number of generations? Now if it means the former, it is a definite failure of issue that is meant, if it means the extinction of the line of direct issue, then it is an indefinite failure of issue, because the time when the line of issue shall become exhausted is exceedingly indefinite, and may continue for centuries. The death of A, on the other hand, is definite, and is bound to occur within a fixed time. The common law courts have held that such a devise means an indefinite failure of issue, and that the grant is void ; unless there is something else to indicate that a definite failure of issue was intended. So, if the condition upon which the estate is lim- ited, is against public policy, or contravenes good morals, it is void. The condition must be one which the law will sanction and enforce. Sec. 1478. HOW A CONDITIONAL LIMITA- TION IS CREATED.— The usual words creating a conditional limitation are, "as long as," "while," "dur- ing," or "until," and the like, yet the use of these words is not conclusive. The court will gather the intent of the grantor from the whole instrument.* Sec. 1479. EFFECT OF A BREACH OF THE CONDITION.— In the case of a breach of the con- dition, where the grantor has reserved the right to re- enter, upon re-entering he takes the estate as of the time he granted it. That is, the testator takes the same estate back which he granted, and it is relieved *29 Pa. St. 118; 76 Va. 140. LAW OF REAL PROPERTY 79 of the dower interest or any estate by curtesy or other estate which could otherwise attach to it. But if an estate upon conditional limitation is given to A, and he marries and has no children who can inherit, that is, dies without issue. Does his widow have dower ? The estate which he had in the land ter- minates upon his dying without issue, yet the courts hold in such a case, that the dower interest will attach to the estate, because it was an estate in fee, and having attached to such an estate, it was not de- stroyed when the estate terminated, as in the case of a condition. Sec. 1480. THE RULE AGAINST PERPETUI- TIES STATED. — The rule against perpetuities may be stated as follows: No interest subject to a con- dition precedent is good, unless the condition must be fulfilled, if at all, within twenty-one years after some life in being at the creation of the interest. The common law rule governing perpetuities is, that the condition must happen within a life or lives in being and twenty-one years and the period of ges- tation thereafter. In Wisconsin, New York, Minnesota, and perhaps some other states, the rule against perpetuities has been 'modified by statute so that the condition must happen within the period of the lives of two persons in being at the time of the creation of the estate.* Where the common law rule has not been modified by ♦Manice v. Manice, 43 N. Y. 303; 125 III. 399; Tiedeman, Leading Cases, 423. 8o LAW OF REAL PROPERTY statute, the rule is the same on both sides of the Atlantic* Sec. 1481. GRANTS THAT ARE NOT REPUG- NANT TO THE RULE.— A vested interest is never repugnant to the rule against perpetuities, since it is not subject to a condition precedent, and the person who has the vested interest has also the right to alien- ate it. So if a contingent remainder must become a vested remainder within twenty-one years after lives in be- ing, such a contingent remainder will be good.** If the remainder is vested it is good although the contingency may not happen which terminates the particular estate within lives in being, and twenty- one years thereafter.*** The conditions upon which the future estate may be terminated are as numerous and varied as the in- genuity of man may devise. A common condition is the failure of issue, and this may be a definite or in- definite failure of issue. A limitation over upon the condition that the gran- tee dies without issue, or issue him surviving, was held to mean an indefinite failure of issue, making the limitation over void, except where it was saved by the peculiar incidents of an estate tail ;**** and where *St. Amour v. Rivard, 2 Mich. 294; Jackson v. Phillips, 14 Allen, 572; Hawley v. Northampton, 8 Mass. 37; Anderson v. Jackson, 16 Johns. 399; 102 Mich. 510. **Irish Term Rep. 249 ; 19 Ch. Div. 520. ***I9 Ch. Div. 520; 2 P. Wms. 28; 41 Mich. 572. ****"In the case of a devise to A and his heirs, and if he die LAW OF REAL PROPERTY 8i there is something else in the devise or grant to in- dicate that the ancestor had in mind that the failure of issue, should mean a failure of issue at the death without issue, remainder to B, if the terms of the will were strictly followed, A would take an estate in fee simple, which would render the limitation to B, void as a remainder (be- cause a remainder cannot be created after an estate in fee simple), and void also as an executory devise, because it would transgress the rule against perpetuities, as restricting aliena- tion until after an indefinite failure of issue. But as the testa- tor has shown an intention to benefit the heirs of A, as also the remainderman, courts restrict the estate limited to A, to an estate tail, upon which the limitation to B in remainder is good, as the failure of issue is the regular limit to an estate tail, and it takes effect as a remainder under the operation of the rule that wherever a limitation can take effect as a re- mainder, it shall never operate as an executory devise, while the rule against perpetuities is, at the same time, observed, because the right to suffer a common recovery is the insepar- able incident to an estate tail, and the restriction upon aliena- tion is, therefore, determinable at the option of the tenant in tail. Thus the rule against perpetuities is, in this instance, avoided by decreasing the estate of the devisee from a fee simple to an estate tail. . . . On the other hand, an estate to A for life, and if he die without issue, remainder to B, is, for the same reason, increased to an estate tail, for, as an executory devise, the limitation to B would be equally void as in the last case, and for the same reason." — Williams, Real Prop. 6th Am. Ed. 2isn, citing Doe v. Ellis, 9 East, 382; Romilly v. James, 6 Taunton, 263; Eichelberger v. Barnitz, 9 Watts, 450 ; Sonday's Case, 9 Coke, 127b ; Langley v. Bald- win, I P. Wms. 759; Atty. Gen. v. Bayley, 2 Brown Ch. 540. "It is well settled that a devise in fee will be restricted, and a devise for life enlarged to an estate tail, by a gift over in case the devisee die without issue, unless there is something to justify a different construction." — Id. Citing, Clarke v. Baker, 9 S. & R. 434 ; Deboe v. Lowen, 8 B. Monr. 616 ; Moor- house V. Cotheal, l Zabriskie, 480. 82 LAW OF REAL PROPERTY of the first taker, that is, a definite failure of issue.* This construction upon the phrase "dying without issue," or "without issue him surviving," was modi- fied in England- by act of Parliament (Stat. 7 Will. IV. & I Vict. c. 26, s. 29), to mean, when used in a will, a want or failure of issue in the lifetime or at the death of the party, and not an indefinite failure of issue. And the like modification of the common law holding has been made by statute in many of the American states.** *"When, however, there is anything in the words of the gift or Hraitation, or in the context, to rebut this construction, and show that the testator meant a failure of issue in the life- time of the first taker, instead of an indefinite failure, it will be rejected, and the limitation over construed as an executory- devise in defeasance of a fee simple, and not as a remainder sustained by an estate tail." — Williams, Real Prop. 6th Am. Ed. 2lSn, citing Pells v. Brown, Croke Car. 590; Porter v. Bradley, 3 Term. 143 ; Heerd v. Horton, I Denio, 165 ; Hall v. Chaffee, 14 N. H. 21S. **Where the wiU contains a proviso that if the devisee dies without issue, or issue him surviving, or the like expres- sion, there is some conflict as to the construction to be placed upon the language used. Thus in Edwards v. Edwards, 15 Beavan, 357, the Master of the Rolls held that the expres- sion "dying without issue," in such a case meant the dying of the grantee within the lifetime of the testator without issue ; that is, the expression meant the same as if the testator had said I give lands to A and if he dies to B, the intention being that if A died before the will took effect — before the testa- tor's death — then the estate should go to B. Some American authorities follow this case. But in England, the rule is now settled that a gift to A, and provided A dies without issue, to B, means that if A dies at any time without issue, the estate goes to B, that is an indefinite failure of issue, and not a definite failure of issue by dying in the lifetime of the testa- LAW OF REAL PROPERTY 83 The limitation over on the condition of the grantee dying without issue, when the grant to the first taker is a fee, is held to create an estate tail, as is also the case when the first taker is given a life estate, in the one case the grant being restricted, and in the other enlarged, so that the estate over thereby becomes a remainder, and the rule agfainst perpetuities is not violated since the tenant in tail has the right to bar the entail at any time, and thereby convert the estate into a fee simple*. The contingency may be postponed for any num- ber of lives in being, at the common law, and the per- ' sons designated need have no interest in the estate.** tor. And this is the weight of the American authorities. 153 III. 368; 7 H. L. Rep. 408; II U. S. 526; 9 Allen, 516; 32 Mich. 47. To avoid this construction put upon the words "dying without issue," by the courts New York State adopt- ed a statute which has been followed in Virginia, Indiana, Michigan, Missouri and perhaps other States, providing that when a remainder shall be limited to take effect upon the death of any person without heirs, or heirs of his body, or without issue, the words heirs or issue shall be construed to mean heirs or issue living at the death of the person named as an- cestor. 3 Barb. 38s; 3 Wend. 503; 2 Paige, 30. The court held that this statute meant that if a grantee died at any time before or after the testator without issue, the estate went over, no Mich. 237; 32 Mich. 47; 3 Barb. 385. Bjt notwithstand- ing this statute the N. Y. courts have turned back and hold that this expression means that if the donee or grantee dies before the testator dies, without issue, then the estate goes over, otherwise not. 105 N. Y. 89; 131 N. Y. 55; Tiedeman, Leading Cases, 408. See Gray v. Perpetuities, 251 ; Champlain, suspension of power of alienation ; 113 N. S. 340. *Eichelberger v. Barnitz, 9 Watts, 447; Tetor v. Tetor, 4 Barbour, (S. C.) 419. * **4 Ves. 227; II Ves. 112. 84 LAW OF REAL PROPERTY The only limitation suggested by the courts, inde- pendent of statutory limitations, is that the number of lives must not be so great, that it will be impossible to determine by evidence when the last survivor shall die. A child in its mother's womb, in ventre sa mere, is considered as born, if it will be for its benefit to be so considered, hence the limitation fixed by the rule may include the period of gestation.* The term twenty-one years may be taken in gross, without any reference, to the infancy of the person to take the estate. In other words you can within the rule against perpetuities, suspend the power of aliena- tion during any number of lives in being and for a period of twenty-one years thereafter, by having the estate go to trustees to be then distributed among the beneficiaries.** This term of years begins to run not from the execution of the will, but from the time the will takes effect, that is, at the testator's death.*** If the interest begins within the limit it is not ob- noxious because it may extend beyond that period. If the executory or future estate is too remote it is simply void, and the first estate becomes free from such limitation. Thus if an estate is given to A for life, remainder to his children who arrive at the age of twenty-five. And at the time the testator dies, A to whom this estate is given, is unmarried, the re- *2 H. Bl. 399. **i CI. & Fl. 372 ; 10 Bing. 140 ; 7 Cranch, 456 ; 3 P. Wms. 362. • ***2 Hare, i ; 98 Mass. 65 ; 10 Hare, 106. LAW OF REAL PROPERTY 8S mainder over is void as being too remote. _ Since the condition is void the son takes the life estate, and the remainder over goes to his heirs.* If the prior estate is for years or for life, the re- mainder over in case of the condition being void, goes to the heir or residuary legatee, depending in part upon the statute, and in part upon the construction of the deed or will.** If the contingency upon which the future estate is to vest is stated in the alternative, it may be good in part and bad in part. Thus if a gift is to A for life, remainder to his unborn children if they reach the age of twenty-five, remainder to the children of B, it is void, because none of the children may reach the age of twenty-five within twenty-one years after A's death. But a gift to A, and if he dies without issue, or none of his children reach the age of twenty-five, remainder to the children of B, is good if he dies without issue, but is bad if he dies with issue under twenty-five. The reason being that the event of his dying without issue necessarily happens at the end of a life in being, while the other alternative, that the children shall reach the age of twenty-five, may not occur within twenty-one years after his death, and therefore if he dies leaving chil- dren under twenty-five it is void, if he dies without issue it is good.*** *3 Gray, 142; 102 Mich. 510; Tiedeman, Leading Cases, 418. **36 Md. 163; 4 Ves. 732; 20 Wend. 457; 6 Paige Ch. 600. ***2 H. BI. 358; II Hare, 372; 12 CI. & Fin. 559. LAW OF REAL PROPERTY 87 CHAPTER VII. LIMITATIONS TO CLASSES OF PERSONS. Sec. 1482. GIFTS TO CLASSES OF PERSONS EXPLAINED. — A gift or devise may not be made to a particular person, but to a class of persons. A gift is said to be to a class of persons when it is to all those who shall fall within a certain category or de- scription denoted by a general or collective formula, and who, if they take at all, are to take one divisible sum in certain proportionate shares^ Thus a devise to the children of A, or to the children of A who shall arrive at the age of twenty-one, is a devise to a class.* Sec. 1483. IN DETERMINING THE VALID- ITY OF A DEVISE TO A CLASS IT IS THE SITUATION AT THE DEATH OF THE TES- TATOR WHICH WILL GOVERN.— To determine *L. R. s App. Cas. 714. In this case the devise was to all the children who should reach the age of twenty-one, and in the event that any of such children should die before attaining the age of twenty-one, to those children of such deceased child who should attain the age of twenty-one. The question was whether this devise was too remote to be valid. There was first a devise to a class, to all the children who arrive at the age of twenty-one, so far the devise was good, as all the children must attain the age of twenty-one within the rule, after the death of the testator. But the second provision, as to the grand-children would be too remote, as it might be more than twenty-one years after the death of the testator, and thi.s would violate the rule against perpetuities. 88 LAW OF REAL PROPERTY whether a devise to a class is good or not, as regards the rule against perpetuities, the situation at the time of the death of the testator, that is, the time the will takes effect, is to govern. So that if all the members of the class are to be ascertained, and the share of each to be determined within the time limited by the rule, from the death of the testator, the devise is good ; if not, it is bad.* Limitation to grandchildren, or children of a living person as a class, when they shall attain an age greater than twenty-one years, is bad for remoteness, unless someone in the class is of the required age at the tes- tator's death.** When the limitation is made in a marriage settle- ment to children beyond the term of twenty-one years, the limitation is too remote. Thus if the settlement provides that the property shall be used for the benefit of the father or mother during their lives, and then to the children who arrive at the age of twenty-two, this is bad for remoteness, unless at the death of the first taker there is a child of the required age. When the devise is confined to the grandchildren who are in being at the testator's death, it is good at whatever age they take. The reason for this is, that the devise is given to a class that is in being and *7 Ch. Div, 693. Thus a devise to A, and his issue, and if A dies without issue, to the issue of B who shall attain the age of twenty-one. The devise is good because B's youngest son must attain the age of twenty-one within twenty-one years from B's death. **I02 Mass. s; 123 Mass. 120; L. R. 6 Eq. 319, LAW OF REAL PROPERTY 8cj known and determined, and as they are in being, the limitation is simply for lives in being and within the rule.* When the gift is to such grandchildren, or other class as shall reach a particular age, and one or more of that class has reached the required age at the time of the testator's death, the class is closed, and the devise is not too remote. But no person can be in- cluded in the class who is not in being at the time of the testator's death.** When a legacy is to children or grandchildren as a class after the prior estate, the gift is to the members of the class in existence at the time of the death of the first taker, and not at the death of the testator. Thus where A makes a will giving to his son John certain land for life, remainder to his children; and when the testator dies John has two children. Here the children that take are not the children in existence when the testator dies, but the children in existence when the estate should be distributed, and that is when John dies, so that all of John's children will take at his death. While if the grant had been to John's children who arrive at the age of twenty-five, and one of his children had been alive and of the re- quired age at the death of the testator, the class would have been closed, and those two children would have taken.*** *3 M. & K. 550. ♦*io Ch. Div. 204. ***i Brown's Ch. Cas. 542; i Cox, 68; L. R. 10 Chi. Div. 262. go LAW OF REAL PROPERTY When the gift is to the children of A who shall reach the age of twenty-one, and if any child of A shall die under the age of twenty-one, leaving issue, to such issue on attaining the age of twenty-one, the latter taking the parent's share, there is a gift to a class composed of the children and grandchildren of A at twenty-one years of age. The maximum num- ber of shares into which the gift may be divided is the whole number of A's children, but if A's children are under the age of twenty-one, the mini- mum number cannot be known, for such children may die before reaching the age of twenty-one, leav- ing issue who will not reach the age of twenty-one within the limitation, so that the devise is bad as contravening the rule against perpetuities. Therefore, when a devise is made to a class, the members of that class must be determined within the time fixed.* • Sec. 1484. RULES FOR DETERMINING WHETHER A DEVISE TO A CLASS IS IN- VALID. — To ascertain whether or not a devise to a class is bad, the following rules have been formu- lated : This distinction is important, and if you want to provide for unborn children of a child of the testator, at the testator's death, you cannot do so by a provision that the property shall go to "my son's children," since this is a gift to those chil- dren of the son who are in existence at the time of the testa- tor's death and does not include those who may be born there- after. *2 Merrivale, 362; 22 Beav. sgi ; 26 Beav. 128; 11 Ch. Div SSS- LAW OF REAL PROPERTY gi 1. An executory devise is bad unless it be clear at the -time of the death of the testator that it must, of necessity, vest in some one, if at all, within lives in being and twenty-one years thereafter.* 2. The will of the testator must be construed in the first instance without any reference to the rule against perpetuities, and having thus ascertained the true construction of the instrument, you are to apply the rule against perpetuities and ascertain if any of the provisions in the will are obnoxious to the rule.** In America, the rule above stated may.be consid- ered as modified, so that the prevailing doctrine is, that you are to ascertain the intent of the testator, and if the will is capable of two interpretations, one of which would make the will void as being illegal, and the other not, the courts are to giv it that con- struction which will make it legal. That is, the courts will favor that construction which will make the pro- visions of the will legal, as that is supposed to have been the real intention of the testator. 3. If the devise is to a single member constitut- ing the class, who may by possibility be a person ex- cluded by the rule against perpetuities, then no per- son whatever could take under it, because the testa- tor has expressed his intention of including all, and not to give to one excluding the others.*** *i2 CI. & Fin. 546. **i Cox, 324; 8 Hare, 120; L. R. s App. Cas. 714; 11 Hare, 372. ***2 Hare, 120; 2 H. Bl. 358. 92 LAW OF REAL PROPERTY 4. When the devise is to a class of persons, and any of that class- may have to be ascertained at a pe- riod too remote, the devise fails, for the reason that the testator intended that the amount of each mem- ber's share should be ascertained by dividing the whole sum given, by the number of members in the class.* 5. When the gift is given to a class, but a definite and fixed sum is given to each member of that class, and cannot be increased or diminished by the increase or diminution of the members of the class, the gifts to each are separable, and those falling within the limit of the rule are good, the others bad. Thus if $20,000 is given to each of five persons in a class, when they arrive at a certain age; here each gift is separate so that each member of the class stands on his own footing, so that the devise may be good as to some and bad as to others.** 6. If, when the devise takes effect, there is a mem- ber of the class who can take, the class is closed and the devise is not bad for remoteness, although the *This is an important rule. As where a gross sum is given to A's children who shall arrive at the age of 25, you cannot ascertain how many will arrive at the age of 25 within the time limited. The whole will fails because you do not know what each of them will get. 12 CI. & Fin. 546; 2 Merrivale, 363; 11 Hare, 372. **i H. L. Cas. 406; 30 Beav. iii. In the last case there was a bequest of $2,000 to each of the testator's daughters, to each of them who should arrive at the age of twenty-four. It was held good as to the daughters who had arrived at the designated age within the rule. LAW OF REAL PROPERTY 93 gift may not be divided within the time fixed by the rule. Sec. 1485. RULES FOR DETERMINING WHETHER OR NOT THE CLASS IS CLOSED. — Whether or not the class is closed when the devise takes effect, depends upon certain rules of construc- tion, as follows: 1. When there is a general devise to children or other persons as a class, the class includes only such persons that are in being when the testator dies, that is, when the will takes effect.* 2. When the devise is to take effect after the ter- mination of a prior estate, only persons in being an- swering the description at the expiration of the prior estate, are included.** *i Ves. Jr. 40s; I Ves. 391; 2 Atk. 121; 125 Mass. 536; 4 Paige, 47. In the case in 2 Atk. 121, the testator made a will giving lands to his widow for life, remainder to W. M., charged with $400 to be paid within six months after the death of his wife for all the children of his sister Catharine, share and share alike. After the death of the testator another daughter was born to Catharine. The court held that such child did not take, only the children in being at the time of the testator's death were entitled to take. This rule does not exclude children born after the will is made and executed and before the testator's death, but does exclude the children born after his death. **Where an estate is devised to A for life, remainder to his children, there is no trouble at all. But where the estate is given to A for life, remainder to B's children. A and B are both alive. At the time of the testator's death, B has two children; at the time of A's death, B has four children, and afterwards has two more children born to him. In such a case the class is closed when A dies, and the four children that are 94 LAW OF REAL PROPERTY 3. When the gift is to a class generally, payable at a certain period, as to children when they arrive at a certain age, all children in being when the first child arrives at the designated age are let in; after born children are excluded.* 4. When the devise is given to each of several persons who shall succeed each other in some certain position, in office, for instance, none except those in being at the death of the testator can take.** These rules of construction have been adopted by the courts to determine the intention of the parties who use certain words and phrases, bv declaring in advance what meaning shall be griven them. then in esse take the devise, and those born afterwards do not take. 1 Cox. 327 ; 125 Mass. 536 ; 138 Ind. 506. In the case in 125 Mass. 536, the testator left his estate to two sons, provid- ing that if the sons died without issue, the estate should go to the children of their two brothers and one sister, share and share alike, remainder to their issue. Both sons died without issue and at their death there were 23 nephews and nieces. The court held that each of these took a vested interest upon the death of the uncles, and that children born after that did not take. *3 Brown, Ch. 401 ; 3 Ves. 730; 64 Mo. 469; 4 Mass. 97. In the case in 3 Ves. 730, the bequest was to the children of A when they severally arrive at the age of sixteen. At the testator's death there were six children, and the oldest was past fifteen, but not sixteen. Three children were born to A after the oldest arrived at the age of sixteen. The court held that the six children that were in existence at the time the oldest one attained the age of sixteen would take, and that those born afterwards were excluded. **8 CI. & Fin. 611; S Mod. Rep. 232; 10 Simons, 495. LAW OF REAL PROPERTY 95 CHAPTER VIII. OF THE MUTUAL RIGHTS OF HUSBAND AND WIFE. Sec. i486. THE FREEHOLD ESTATES OF DOWER AND CURTESY.— There are two freehold estates created for the benefit of the family. The rules of law applicable to these estates are only in- telligible by remembering that the family was orig- inally the unit of government, and the rules of law aimed to assist the head of this family in performing the duties which the system of government imposed upon him. These two freehold estates, known to the early common law, and still created by operation of law, are: i. The estate of dower, and 2. The es- tate of curtesy. Sec. 1487. DOWER DEFINED AND EX- PLAINED. — Dower is the estate which the widow is entitled to and which is assigned to her out of any freehold of inheritance of which her husband was seized during coverture and which her issue might possibly inherit. It is essential that the estate should be a freehold of inheritance, and that the issue born of the wife might possibly inherit the same. This estate of dower assigned to the widow, at the common law, is a life interest, in severalty, of one- third of the husband's lands, tenements and heredita- ments, and did not include personal property, but did 96 LAW OF REAL PROPERTY include such fixtures that were immovably attached to the freehold.* In some states the statutes have modified, and in others abolished dower. In some states the widow in- herits one-third of her husband's estate. In some of the states it depends upon whether or not there are children, if there are no children, the wife inherits the husband's estate. By the Ordinance of 1781, the common law right of dower was established in the North West Terri- tory.** Sec. 1488. THERE ARE THREE ESSENTIALS TO THE ESTATE OF DOWER.— There are three essentials to the estate of dower, these are: i. Mar- riage. 2. Seizin of the husband. 3. Death of the husband. 1. The marriage must be a legal marriage as dis- tinguished from a void marriage. Thus where one of the parties is insane at the time of the marriage, it is void, and the widow in such a case would have no right of dower. If the marriage is merely voidable, as for want of sufficient age, if the parties continue to live together until they have reached the legal age, the marriage becomes valid, and the widow would be entitled to dower. 2. If at any time during coverture the husband be- came seized solely in his own right, of any estate of inheritance, that is, a fee simple or fee tail, in lands *2 Bl. Com. 131 ; Lit. ss. 36, 53 ; 4 Kent. Com. 68. **i Mich, i; II Ohio, 219. LAW OF REAL PROPERTY 97 to which any issue, which the wife might have had, might by possibility have been heir, she from that time became entitled, on his decease, to have one equal third part of the same lands allotted to her, to be enjoyed in severalty during the remainder of her life.* Seizin in law is sufficient, and seizin in deed is not necessary. Otherwise in the case of an estate by curtesy. 3. The husband's death may be a natural death, or a so-called legal or civil death, as by becoming an outlaw, or entering a monastery at common law. At common law the wife of an alien was not en- titled to dower because an alien could not hold prop- erty. But in most if not all of the American states, an alien can hold property, and hence the widow of such a person would be entitled to dower.** The wife has no interest in the lands during the lifetime of her husband, and in this matter dower dififers from curtesy. At common law, the husband had actual control of his wife's property during cover- ture. So far ^s dower is concerned it is an interest, and becomes an estate upon the death of the hus- band. During the life of the husband it is an inchoate estate, and does not become a vested interest until his death. It being a mere possibility, her deed passes no title ; and she could not release her right to a stran- ger, only to the owner of the fee.*** *iWilliams, Real Prop. 233. **l Cowen, 89; S Cowen, 713; 11 Ohio, 219. ***55 N. Y. 4; 9 Paige, 201. 98 LAW OF REAL PROPERTY Sec. 1489. NATURE AND INCIDENTS OF A DOWER INTEREST BEFORE IT HAS BE- COME VESTED.— Until dower becomes vested, it is subject to the control of the legislature, and may be changed, modified or abolished without violating any constitutional provision. But the interest which the wife has is so far a valuable interest as to be a good consideration for a deed, though it may be destroyed by the legislature without any remuneration whatever, since it is not re- garded as property within the meaning of the con- stitutional provision. It is not regarded as a property right but a mere inchoate interest which may ripen into an estate if the wife outlives the husband. It is an interest which the law gives her to support her family after the death of the husband. It being a provision for her maintenance after her husband's death, the law would not permit him to sell his land and deprive her of her interest. But if she united in a deed conveying her husband's land she was estopped from claiming dower therein.* Sec. 1490. HOW CAN A WIFE RELEASE HER DOWER WHILE HUSBAND STILL SEIZED?— In some states as Michigan, the wife may make an arrangement by which she deeds to him all her inter- est as to dower, so that the husband can pass a clear title by his individual deed. But this is unusual. A divorce usually bars the right of dower, but in Michi- ♦46 Me. 9; 17 Ind. 517; 81 N. C. 267; ^^ Mich. 563. LAW OF REAL PROPERTY 99 gan, a wife divorced through the fault of her husband, is still entitled to dower. Sec. 1491. TO WHAT DOES THE DOWER ATTACH. — The widow is dowable in mines if they are open and being worked, but she is not entitled to open new mines. The theory being, that she is dow- able in the lands in the condition that they were at her husband's death.* At common law the widow had dower in all of her husband's land, no distinction being made between cultivated and woodland. In America the question has been raised in most of the states whether she was dowable in woodland, and the decisions of the ques- tion have not been uniform. In Maine, New Hamp- shire and Massachusetts, dower in woodland is not allowed.** In most of the other states dower in woodland is allowed the widow.*** In the case where wild lands have been sold by the husband, and have been subsequently improved by the grantee, the widow is entitled, under the Ohio rule, to dower in them as of their value at the time of the assignment of dower, less the value of the im- provements.**** Under the New York rule, also the common law rule, the widow is entitled to dower in the lands of her husband which he had sold and which had been subsequently improved, *l Taunt. 402; I Cowen 460; 10 Pick. 460. **2 N. H. 56; ***3 Douglas, 141 ; 17 N. J. 32 ; 10 Wend. 4Sa **** Allen V. McCoy, 8 Ohio, 418. 100 LAW OF REAL PROPERTY as of their estimated value at the time of the sale, without any reference to the im- provements or enhancement in the value of the lands.* In Pennsylvania, the wife is not entitled to any advantage by reason of improvements added to the land by the purchaser, but she is entitled to the improvements in the general surroundings^ of the land and country, by which the general value of all land is increased, and this rule is followed in other states.** Sec. 1492. NATURE AND QUALITY OF THE ESTATE SUBJECT TO DOWER.— The estate of the husband to entitle the wife to dower must be a freehold estate that the issue of the wife might by possibility inherit.*** The estate of the husband must confer a right to an immediate freehold, that is, there must not be any intervening freehold. Thus if an estate is given to A for life, with remainder to B, here if B dies, his widow is not entitled to dower if A's life estate is still outstanding. If A dies his widow is not entitled to dower because the life estate which he had is not a freehold of inheritance. But if A dies first, B's widow *Humphrey v. Pinney, 2 Johns. 484; Shaw v. White, 13 Johns. 179; Walker v. Schuyler, 10 Wend. 485; Tod v. Bay- lor, 4 Leigh (Va.), 509. **Thompson v. Morrow, 5 Serg. & Rawle, 289; Shirly v. Shirly, s Watts, 328; Dunseth v. Bank of U. S., 6 Ohio, 76; Manning v. Laboree, 33 Me. 343; Summers v. Babb, 13 111. 48s. ***Co. Litt. 40; S N. Y. 304; I Wash. 153. LAW OF REAL PROPERTY loi would be entitled to dower, because the life estate had dropped out before B's death. So if the husband has the life estate and afterwards acquires the remainder, and then dies, dower attaches ; as the two estates merge and he becomes possessed of a freehold of inheritance.* Not only an intervening freehold will prevent dower from attaching, but if there is a possibility of a freehold estate intervening, it will not be subject to dower. Thus in the cause of joint-tenants,, the estate of each joint tenant goes, upon the death of one of them, to the survivor or survivors ; so if there are two joint tenants and one of them dies, the widow of the deceased tenant has no dower, but the surviving joint tenant taking the whole property by right of survivorship, on his death, his widow would have dower in the whole estate.** The husband must be seized either in deed or in law during coverture. This was the rule of the com- mon law, and was enforced both by courts of law and equity. This doctrine was carried so far that if a man was seized in fact and disseized, and then married and died before he had acquired seizin again by the eviction of the disseizor, his widow was not entitled to dower. This rule of the common law haa been modified by statute so that if a person is evicted by a wrong-doer, and while he is out of possession *i Washburn, Real Prop. 155 ; 50 N. Y. 161. **i Wash. Real Prop. 156; Parke on Dower, 72. 102 LAW OF REAL PROPERTY he marries and dies before again obtaining possession, the widow is still entitled to dower in the premises. A wrongful seizin of the husband entitles his widow to dower as against all persons claiming under such tortious seizin. When lands are purchased and a purchase price mortgage is given back to the grantor, the mortgage and the deed is considered as one transaction, and the husband is regarded as taking the land as en- cumbered by the purchase price mortgage, and the mortgagee's lien is not subject to the widow's dower. That is, the widow is only entitled to dower in the land after the mortgage is satisfied. If the husband purchases land on borrowed money and gives a mortgage to the person furnishing the purchase price, this is regarded as two distinct trans- actions, and the title vests in the purchaser absolutely. So that the mortgagee's lien for the money advanced would be subject to the wife's right of dower in the whole estate.* These rules are not of much signifi- cance now as in such cases the wife is required to join in the mortgage deed to secure the purchase price, and release her dower as regards such mortgage. In regard to dower in estates acquired by exchange, it was the rule at the common law, that the widow of either party had the right to elect as to which of the lands exchanged her dower should attach, but she could not have dower in both parcels. Each widow might elect to have dower in the same parcel, but they *45 Me. 193; 119 Mass. 519; 13 W. Va. 666. LAW OF REAL PROPERTY 103 could not have dower in both.* This rule of the common law has not been adopted in all of the States. The rule being in some states that both parties may be regarded as purchasers, and the widow of each would have dower in both parcels of land.** To bring a case of exchange within the meaning of these statutes, and the rule of the common law, the mutual transfer must be equal. It must be a trade and not a purchase. That is, A must transfer ono parcel of land to B in exchange for a pracel belonging to B. If a price is fixed on each parcel, and then the exchange is made, it is a purchase and not cin exchange.*** While it is a maxim of the law, that a derivative estate can last no longer than the original estate out of which it was carved, and from which it arose, yet, in the case of dower, this rule seems to be contra- vened. Thus if an estate is given to A and the heirs of his body, and A dies without issue, terminating the estate tail. Here the widow's dower attaches the moment the estate is transferred to A. Though this right to dower is part of the estate given to A, it may outlast his death and the termination of his *i Greenleaf, Real Prop. 163, Sec. 12. **i N. H. 65. In Michigan the statutes provide that the widow shall not be entitled to dower in both parcels, but shall make her election, the same as at common law, and then pro- vides that if she does not make her election within one year from her husband's death, she shall be presumed to have elected to take dower in the parcel which her husband received in exchange for the land he deeded. ***l Barb. 633. 104 LAW OF REAL PROPERTY estate, and last until the widow's death, because it is considered as an incident to such an estate. This is true of estates of such a character granted upon con- ditional limitation, but not of estates upon condition. An estate upon condition is an estate* granted to be held until the condition happens when the grantor has the right to re-enter. Upon such re-entry the grantor takes the estate as of the day he granted it, and free from all dower incidents.* Sec. 1493. HOW LANDS MAY BE DIS- CHARGED OF THE RIGHT OF DOWER.— At the common law the method of barring dower in lands sold by the husband was by levying a fine, in which the wife was separately examined.** The plan also grew up of conveying the land to uses, as to convey land to the purchaser and his heirs to the use of the purchaser and a trustee and the heirs of the pur- chaser.*** It was also permitted by the Statute of Uses (27 Hen. VIII, c. 10), to bar dower by a jointure, or settlement, agreed to and accepted by the intended wife, previous to marriage, which settlement was in lieu of dower. If such a jointure be made after mar- riage, the wife may elect between her dower and her jointure.**** In England, by the Act of 3 and 4 Will. IV., c. 105, becoming operative on the first of Jan., *3 Halstead, 241. **Williams, Real Prop. 233. ***Williains, Real Prop. 234; i Mete. (Ky.) 670; i Ala. 362; 5 Paige, 318; 19 Mo. 487. ****Williams, Real Prop. 235. LAW OF REAL PROPERTY 105 1834, the statutes and rules relating to dower were changed, and the husband given control over it, to the extent that dower is barred in any lands which he shall absolutely dispose of in his lifetime by deed or by will, and the widow can claim no dower as against the debts and contract obligations of her husband, so that the widow has no claim to dower except as against the heir at law.* In America, the statute of Henry VIII, above re- ferred to, has been substantially re-enacted in most of the states.** In Rhode Island, Virginia, Ohio, Ken- tucky, and Missouri, if the jointure or other estate conveyed in lieu of dower was made while the woman was an infant or after marriage, she may, after her husband's death, waive it and claim 'her dower. In Maine, Massachusetts, Indiana and Arkansas, that no jointure will bar the dower, unless made before the marriage and with the consent of the wife ex- pressed in the deed, and such are substantially the provisions in Connecticut and Delaware, and, it is be- lieved, in most of the states.*** Where the w;ill of the husband contains a provision for the wife's benefit, the doctrine of election arises ; that is, the wife in some cases is required to elect whether she will claim her dower in opposition to the will, or accept its provis- ions in place of it. Thus in Delaware any devise, ♦Williams, Real Prop. 236, 237. **Kennedy v. Nedrow, i Dallas 417; Hastings v. Dickinson, 7 Mass. 155. ***! Greenleaf's Cruise, 195, 200; Rev. Stat. Ohio, Sec. 4189. io6 LAW OF REAL PROPERTY and in Pennsylvania any bequest or devise, will be taken to be in lieu of dower, unless the testator de- clare otherwise, the widow still having^ her election. In New York, New Jersey and Tennessee, any testa- mentary provision defeats the dower unless within a certain time the widow dissents, as also in Massa- chusetts, Ohio and Alabama, un'.ess it plainly appear by the will that the testator intended she should have both.* So divorce, may bar the offending party of dower in the other's land.** The usual method of barring: dower in lands which the husband desires to sell, is for the wife to join in the deed, and therein release and relinquish her right to dower. In some states it is necessary to examine the wife apart from her husband in taking the ac- knowledgement of such a deed, but in other states this is not necessary. Sec. 1494. THE LAW WILL NOT GRANT DOWER OUT OF A DOWER ESTATE.— It is a rule of law that a person cannot have dower out of dower. Thus, if a father is possessed of three acres of land, and he has a son, and each are married. If the father dies leavins; a widow, she becomes entitled to a life interest in one acre of the three, the other two acres descend to the son. If the son dies before the previous dower estate terminates, his widow will be dowable only in the two acres which have descend- ed to him. The son being seized only of two acres, ♦Williams, Real Prop. 6th Am. Ed. 236 n. **Rev. Stat, of Ohio, 5699, 5700. LAW OF REAL PROPERTY 107 the other acre being his in remainder on the termina- tion of the previous life estate.* Sec. 1495. OF THE ESTATE BY CURTESY. — The estate by curtesy, or, at common law, the estate by the curtesy of England, is the life estate which the husband has in the real estate of the wife where the wife was seized of an estate of inheritance, and bore him issue, born alive, capable of inheriting such estate. By the rules of the common law, the husband be- ing the head of the family, had the right of posses- sion and the emoluments arising from his wife's prop- erty during her life, this being an incident to the mar- riage relation at the common law. In addition to this common law right, if there was issue born alive, capable of inheriting the wife's estate, the husband became entitled to a life estate in the property of the wife after her death. This right commenced at the birth of issue capable of inheriting and became complete or consummate upon the death of the wife. In case no issue were born alive capable of inheriting, upon the death of the wife her real prop- erty went to her heirs at law, the husband having no further claims upon it.** But if children were bom alive, though they did not continue to live, the hus- band had the right to retain the possession of the en- *Co. Litt. 31a. **2 Bl. Com. 126; Litt. ss. 35, 52; Williams, Real Prop. 227, 228. io8 LAW OF REAL PROPERTY tire property and the profits arising therefrom during his Hfe, and is called a tenant by curtesy. Sec. 1496. CURTESY IN THE UNITED STATES. — Unless abolished by statutes for the ex- press purpose, or by implication from statutes known as "Married Women Acts," giving to married women the same control over their property as they. had be- fore marriage, curtesy exists in the states as at com- mon law. Some of the states hold that the acts en- larging the rights of married women over their prop- erty are inconsistent with the estate of curtesy, and therefore abolish such estate bv inference.* In other ' states curtesy has been abolished by express statutes. In Ohio, the right of curtesy is abolished and the hus- band is given the right of dower in his wife's real property to the same extent as she has dower in his.** Sec. 1497. THE ESTATE BY CURTESY MAY BE SAID TO EXIST IN TWO STAGES, INITIA- TIVE AND CONSUMMATED.— The estate of cur- tesy exists in two stages: i. In the initiative, upon the birth of issue capable of inheriting. 2. Consum- mated, upon the death of the wife. Some of the courts have intimated that the estate by curtesy begins at marriage; this is a mistake, there is no estate at all until the birth of issue, and after issue born there exists an estate separate and distinct from the right of possession of the wife's estate *S Cowen, 74. **Rev. Stat. Ohio, 4194-1. LAW OF REAL PROPERTY 109 given by virtue of the marriage relation. The estate of curtesy ends only with the husband's death, and may be seized on execution to satisfy claims against him. If sold upon execution before the death of the wife, then, it continues until the death of the husband, but if the husband dies before the wife, the estate ceases upon his death. The purchaser of such an estate acquires no greater interest than the hus- band had.* Sec. 1498. TO CREATE AN ESTATE BY CUR- TESY THE FOLLOWING THINGS MUST EX- IST: — I. There must be a legal marriage. But if the marriage is a voidable one, and never avoided, it will sustain the estate by curtesy. While if the mar- riage is void no estate by curtesy arises.** 2. Issue capable of inheriting the estate must be born alive. Not only must there be an estate of in- heritance, but an estate capable of being inherited by the wife's children must exist. So that if an estate is given to a woman, and to the issue of the husband she now has, and he has issue, the husband is then entitled to curtesy. But if the husband indicated dies, and the woman marries again and has children to her second husband, and then dies, the second husband is not entitled to curtesy in the lands since the issue born are not capable of inheriting the estate. There must *ioo 111. 347 ; 5 Cowen, 74. **Co. Litt. 38. no LAW OF REAL PROPERTY be a freehold in the wife which her issue are capable of inheriting.* If the child is born alive it does not matter how long or how short a time it lives. It is simply nec- essary to the vesting of the estate in the husband that the child be born a'.ive. It has been held that if a child is born out of wed- lock and the parties afterwards intermarry, and if un- der the laws of the place of marriage the offspring are made lawful, then the right of curtesy exists, and vests in the husband.** Sec. 1499. TO WHAT ESTATES CURTESY WILL ATTACH.— The estate by curtesy embraces all estates of inheritance held by the wife which her issue are capable of inheriting. That is, the estate attaches not only to absolute estates, but to qualified and determinable estates. The law being the same *2 Bl. Com. 127. It was formerly the rule that the issue must be born during the life of the mother, and if the mother died before the child was born, or delivered, then there was no estate by the curtesy. The reason for the rule was that there was no issue during the marriage relation, since the relation was dissolved by the death of the wife. But this rule has given away to the one which holds a child in existence, though unborn, to have the same rights as though born, and to so consider it where it was for the benefit of the child. So that though the child be born after the death of the mother, if it is born alive, curtesy arises. Co. Litt. 29b ; Tudor, Lead- ing Cases, 65 ; 2 Paige, 35. In Pennsylvania, since 1833, ^V Statute, the husband is given curtesy though there be no issue of the marriage. **9 Ala. 965. LAW OF REAL PROPERTY in as to estates by curtesy as to dower estates.* The same distinction is made between estates upon condi- tion and estates upon conditional limitation that is made in the case of dower. The estate by curtesy attaches to the estate upon conditional limitation, but does not attach to an estate upon condition. The esate of curtesy attaches to equitable estates of inheritances, though the husband is not entitled to curtesy in a mere equitable right.** Seizin is one of the essential requirements of an estate by curtesy. At common law the seizin of the estate must have been by deed, seizin in law not be- ing considered sufficient to support the estate. The reason for the rule was that it was the duty of the husband to take actual possession of the property of the wife, as she was unable to do it herself, and this duty being obligatory on the husband, if he failed to perform it, he could not have curtesy. This rule is modified by state statutes.*** But the seizin of the wife, whether seizin in law or by deed, must be the seizin of a present estate. There can be no curtesy in a remainder or a reversion.**** Sec. 1500. THE ESTATE OF CURTESY CAN- NOT BE BARRED BY WILL OF THE PERSON GIVING THE LANDS TO THE WIFE.— The right of the husband to curtesy in his wife's lands *I3 Ala. 723. **Williams, Real Prop. 228. ***I3 Ala. 793 ; 8 Humphrey, 298. ****40 Miss. 161 ; 8 Allen, 42.S. 112 LAW OF REAL PROPERTY cannot be barred by the will of the grantor or tes- tator by which the wife become possessed of the es- tate, since curtesy is an inseparable incident of the freehold estate which attaches by a rule of law and cannot be contravened by the wish of a private per- son.* Sec. 1501. AN ESTATE BY CURTESY MAY BE BARRED BY AN INTENTION SO EX- PRESSED WHEN LANDS ARE CONVEYED IN TRUST TO USES. — A trust may be so created as to exclude the husband's right of curtesy. It is im- portant to observe what provisions in a trust instru- ment will be held to show an intent to bar curtesy. If the estate is given directly to the wife without the intervention of a trust, it is not a question of intent, but one of power, as the courts hold that when a fee is created the grantor has not the power to make such a limitation. But if the estate instead of being given directly is conveyed in trust to a third person for certain uses, the grantor has the power to_ bar the dower or curtesy if he uses language which shows an intent to do so. So that in such cases the ques- tion for the court is to determine the intent of the grantor from the language used, and if it was the in- tent to bar dower or curtesy it will be barred.** In some of the states it is held that the estate of curtesy is not barred, unless the language used in the settlement itself bars the estate by curtesy. That is, *27 Pa. St. 391 ; roo 111. 347. **3o N. J. 686 ; 7 Johns. Ch. 229 ; 30 Ga. 303. LAW OF REAL PROPERTY 113 that no general language will be construed to deprive the husband of the estate which the law gives him.* Sec. 1502. INCIDENTS OF AN ESTATE BY CURTESY. — The estate by curtesy is a life estate, and it may be leased or assigned by the tenant in cur- tesy for the full term and without his wife joining in the conveyance. The purchaser of such an estate ac- quires all the rights which the husband would have, in case he had not sold it.** The estate of curtesy is also liable for the husband's debts. But the estate on coming to the husband is subject to debts of the wife.*** A divorce obtained by the wife against the hus- band bars the estate of curtesy, so that a purchaser of the estate from the husband would have no claims in it though he purchased before the divorce was granted. The most usual method of barring the estate by curtesy is for the husband to join his wife in a deed, in the same manner that a wife mav bar her right 'of dower by joining in a deed with her husband.**** *6 Mo. App. 549. **3i III. 219; 22 N. H. 491. ***S4 Miss. 50; 9 Vt. 26; 8 O. Pa. St. 391. ****76 Pa. St. 280. In a number of States including New York and Michigan, it is held that the Married Woman's Acts abolished by implication the^state by curtesy, so that in such States there is no estate by curtesy. LAW OF REAL PROPERTY 115 CHAPTER IX. OF JOINT TENANTS AND TENANTS IN COMMON. Sec. 1503. MEANING OF AN ESTATE IN JOINT TENANCY.— By joint tenancy is meant that two or more persons hold the title and profits of land, as respects all other persons, as though they constituted one single person. As between themselves they have distinct rights, but such rights are equal in every re- spect, each having the same rights as regards the estate as another. A joint tenancy is therefore said to be dis- tinguished by unity of possession, unity of interest, unity of title, and unity of time of commencement of such title.* Any estate may be held in joint tenancy, and wher- ever lands are given simply to A and B, without fur- ther words, they become at once joint tenants for life. They are regarded as one individual, as respects other persons, and the life estate would continue so long as either of them was alive. As between themselves, each would be entitled to share equally in the rents and profits while both lived, but on the death of either one the interest of the deceased joint tenant, instead of go- ing to his .heirs or representatives, passes to the sur- vivor, who becomes entitled to the whole estate by right of survivorship during the residue of his life.* *2 Bl. Com. 180; Williams, Real Prop. 132. Joint tenancy was so favored at the common law, as the feudal system ii6 LAW OF REAL PROPERTY An estate in fee simple may also be given to two or more persons to hold as joint tenants. In such cases the land is granted them and their heirs, but because of the rules of survivorship, the estate will descend to the heirs of the survivor instead of to the heirs of all of them, if the joint tenancy continues so long. Thus, if an estate is given to A,' B, and C, and their heirs, the three persons are seized of the entire estate. This es- tate as a whole will pass to the survivor or survivors on the death of either of the joint tenants, and on the death of the survivor of the three, will pass to the heirs of such survivor, to the entire exclusion of the heirs of those who previously died.* A joint tenancy in fee simple is more common than joint tenancies for life or in tail. The estate is chiefly created where it is desired to have the estate vest in trustees, who are ordinarily made joint tenants, the whole estate vesting in the survivor for the uses and purposes of the trust. The joint tenants are not regarded as having any separate interests, except as betvveen themselves, and consequently have no estate which they can devise by will, while two or more of them are living. On the death of the survivor, the estate will descend to the heir at law, or to the devisees of such survivor. aimed to keep the title in one person, that if it was desired to create an estate by tenancy in common, it was necessary to in- dicate in the deed, that the estate was to be held as tenants in common and not as joint tenants. *Co. Litt. 184a ; Litt. s. 280 ; Williams, Real Prop. 134. LAW OF REAL PROPERTY n; Sec. 1504. INCIDENTS OF AN ESTATE IN JOINT TENANCY.— The joint tenants being regard- ed as but one owner, their estate or interest must be created at the same time ; that is, A and B as joint ten- ants, must receive the estate by the same grant, and not come into their interest at different times.* E^ch ten- ant is regarded in law as having the whole of the es- tate, so that if it was desired to transfer the interest of one joint tenant to another it could not be done by liv- ery of seizin, as he already had delivery, the proper form was to make a release by deed, whidh operated as an extinguishment of the rights of the grantor.** Sec. 1505. SEVERANCE OF AN ESTATE BY JOINT TENANCY.— The incidents of survivorship as to estates by joint tenancy might be put an end to or severed during the lifetime of the joint tenants, as each joint tenant miglit dispose, in his lifetime, of his share of the lands held in fee simple, by any of the usual modes of conveyance except by will. But if the tenant died without making such a sale the land went to the survivor or survivors free from his share or moiety. By a sale in the lifetime of a tenant, the share held by him was regarded as severed or cut off from the estate, and discharged from the incidents of joint tenancy. *2 Bl. Com. 181. An exception to this rule existed in favor of a conveyance by virtue of the statute of uses, and perhaps in the case of estates created by will. Williams, Real Prop. I3S- **Co, Litt. 169a. ii8 LAW OF REAL PROPERTY and passes to the grantee to be held as a tenancy in common.* As early as the time of Henry VIII, by statute it was permissible for one tenant to compel his compan- ions in joint tenancy and tenancy in common to submit to a partition of the estate between themselves accord- ing to the value of their shares, so that each might hold his portion in severalty. This method has been simpli- fied and is enforced in the equity courts, the tenants may also make mutual deeds or releases, and thus ap- portion the joint estate between themselves in sever- alty. Sec. 1506. EFFECT OF MODERN STATUTES ON AN ESTATE BY JOINT TENANCY.— Stat- utes in the various States and in Canada, have been passed abolishing the main feature of joint tenancies, the right of survivorship, or the jus accrescendi, ex- cept in some cases, as regards estates so granted to trustees, husband and wife, partners, and the like.** In Virginia and Pennsylvania the statute abolishing survivorship in joint tenancy make an express reserva- tion as to trust estates, since in these estates it is de- sired that the interest of the deceased trustee shall pass to the survivor or survivors to answer the purposes of the trust. In many of the States provision is also made ♦Thus, if three persons held an estate as joint tenants, and one of them sold his interest, the purchaser would become seized of a one-third part (undivided) of the estate as a tenant in common, and the remaining tenants would remain as joint tenants. Co. Litt. 189a; Williams, Real Prop. 136. **Greenleaf' s Cruise on Real Prop. 364. LAW OF REAL PROPERTY 119 by statute, that where a power is given to several trus- tees, and one or more die, or are discharged, the title and authority of such trustees shall pass to and vest in the survivor or survivors. Sec. 1507. WHAT IS MEANT BY TENANTS IN COMMON. — "Tenants in common are such as have a unity of possession but a distinct and several ti- tle to their shares. The shares in which tenants in common hold are by no means necessarily equal. Thus one tenant in common may be entitled to one-third or one-fifth, or any other proportion of the profits of the land, and the other tenant or tenants in common to the residue. So, one tenant in common may have but a life or other limited interest in his share, another may be seized in fee of his and the owners of another undi- vided share may be joint tenants as between them- selves, whilst as to the others they are tenants in com- mon. Between a joint tenancy and a tenancy in com- mon, the only similarity that exists is therefore the unity of possession. A tenant in common is, as to his own undivided share, precisely in the position of the owner of an entire and separate estate."* And, as we have seen in the last section, may compel partition of the undivided land, and thus come into full control of his interest in severalty. ♦Williams, Real Prop. 137. LAW OF REAL PROPERTY CHAPTER X. WHAT PASSES WITH A GRANT OF LAND. Sec. 1508. THE TERM "LAND" INCLUDES EVERYTHING PERMANENTLY ATTACHED TO IT. — Land, in its legal signification, includes not only the soil or ground, but also everything that is per- manently attached to it, such as buildings, trees, fences, and the like.* So the owner of a given parcel of land is regarded as owning from the center of the earth to the zenith, unless his ownership has been restricted by the express or implied conditions in the grant. For there may be several distinct interests, each owned by a separate person. There may be as many estates as there are separate and distinct interests, which can be separated and specifically described, and each owner may have a fee simple in the particular interest which he has in the property. Thus, one person may be the owner of the surface, and another the owner of the minerals be- low the surface. That is, the ground may be divided into estates parallel to each other, one above the other.** *9 Conn. 374 ; s. c. 23 Am. Dec. 361 ; Coke, Inst. 408. **I43 Pa. St. 293; 152 Pa. St. 286. In the last case the question was as to the right of the surface owner to sink a shaft through a strata of coal which he had sold in order to reach gas and oil which were situated below the coal. The 122 LAW OF REAL PROPERTY Where the deed makes no reservations, but simply conveys the land, everything passes, from the center of the earth to the zenith. All minerals are included in such a grant, so that if it is desired to reserve minerals below the ground, a special exception must be made in the deed. But while the owner of the surface has rights over the space or air above the surface, and is entitled to use it by erecting buildings thereon, and if another person desires to use it, as by stretching wires across it, he must first obtain the permission of the owner of the surface, or be answerable in damages, yet the own- ership is not the same as that of the surface of the ground. If any one uses the air or space above the surface for twenty-one years, or the statutory period for obtaining prescriptive rights, adversely to the own- court held that when a person purchases the coal upon lands, he simply purchases for the time being the space which the coal occupies ; that he is not the owner in fee of that space except so long as is necessary to use it for the removing of the coal which he has purchased. What he has bought is the coal and not any part of the surface. When the coal is all out the purchaser has no longer a right to use the space for the transportation of coal from other land, since it belongs to the owner of the surface. There may be separate and distinct freehold interests in the different apartments or floors of a building. When a room or floor in a building is conveyed, no interest in the soil is conveyed, except to have the room supported by the soil. And if there is no agreement or covenant to rebuild by the grantor, and the room or building is destroyed by the ele- ments, the owner of the room loses his freehold estate. — IIO Ind. 325 ; s. c. 59 Am. Rep. 209 ; L. R. 9 Eq. Cas. 671. LAW OF REAL PROPERTY 123 er, he obtains an indefeasible title to such use the same as he would ever the surface.* Sec. 1509. INCIDENTS THAT PASS WITH A GRANT OF MINERALS.— When the owner of lands conveys to another some particular mineral or minerals, there passes as appurtenant to the grant, the right for the purchaser or his representatives to go upon the surface and sink a shaft for -the purpose of finding the minerals and removing same ; and the own- er of the surface and rest of the estate has the reserved right to sink a shaft through the strata or mineral granted for the purpose of reaching other minerals, as oil and gas not granted, and which lie below the one granted.** Petroleum oil in place is a mineral, and may be conveyed separately from the soil the same as any other mineral. It is real property while in the earth. All minerals are real property while in the earth, and be- come personal property as soon as they are detached.*** Natural gas, so long as it remains in the soil, is considered as a mineral, but owing to its peculiar prop- erties, it is liable to escape and pass to the land of an- other, in which case the original owner loses his estate therein.**** So it has been held that where one person has the right to bore for petroleum and in doing so natural gas *7 Cush. 351 ; 55 N. Y. 538; 51 Cal. 258. **i8 L. R. A. 702; 152 Pa. St. 286. ***86 Pa. St. 194; 39 W. Va. 231; 130 Pa. St. 35. ****I3l Ind. 277; 131 Ind. 408. 124 LAW OF REAL PROPERTY escapes through the opening thus made, he has the right to use without being hable to account for it.* But it is possible that this holding would be revised to the extent to allow the owner of the surface to re- cover the reasonable value of the mineral thus inad- vertently secured and used. Sec. 1510. STANDING FOREST TREES ARE A PART OF .THE REALTY.— Forest trees while standing are a part of the realty, and are regarded as realty to the extent that a grant of them must be made in writing to satisfy the requirements of the Statute of Frauds. But while it is generally held that a parol or oral sale of standing trees passes no title, yet it is good as a license for the removal of the trees that are cut previous to a revocation of the grant or lease.** And where lands, are sold by deed and there is a parol reservation of standing trees, this reservation is within the Statute of Frauds, and invalid.*** But if the reservation was made in the deed, the title to the trees does not pass. Sec. isii. NURSERY TREES AND SHRUB- BERY ARE A PART OF THE REALTY.— Nur- sery trees and shrubbery, althoug'h planted with the in- tention of removal, are regarded as part of the realty, and unless reserved, will be covered by a mortgage on the realty, and will pass to the vendee, iipoti the sale of the realty.**** *28 W. Va. 210; 28 Am. Rep. 659. **I4S Mass. 410; 87 Mich. 107. ***7l Ind. 493; 21 O. S. 596. ****47 la. 479; s.c. 39, Am. Rep. 487; 31 Conn. 594; 4 Kan. 300. LAW OF REAL PROPERTY 125 Fallen trees and timber that has been cut down pass to the vendee of land by deed if there is no excep- tion or reservation made in the deed.* But if in addi- tion to being cut down the trees had been cut into logs, timbers, or fire wood ready for market, they then become personal property, and a sale of the land does not convey to the purchaser any title to such property, and the former owner of the land may go upon the land and remove such wood or timber. The proper form in such case, and where it is desired to retain some por- tion of the estate, is to use the word "excepted", as, "except the standing trees", "except the minerals", and the like, which exception keeps the property thus excepted out of the grant, or simply conveys the rest of the property.** In the grantor desires to take something out of the granted premises, to create a new estate, the proper term to use is, "reserved". Thus, where A sells a par- cel of land and desires to have a right of way over it which did not exist before, the proper term for him to use is, "reserved". The use of this word in describing the estate desired to be created anew from the grant, creates an interest appurtenant to the dominant estate ; it may be an easement proper, or a profit a prendre, or an easement in gross, or a profit a prendre in gross. The reservation creates a new estate, and since it does so you should use the same terms in creating it that *S4 Me. 309; 16 111. 480. **i Pick. 23. 126 LAW OF REAL PROPERTY you would in creating a fee; that is, it should be re- served to the grantor, his heirs and assigns.* When standing trees are excepted from a grant, and it is further provided that such timber shall be cut and removed within a specified time, this stipulation must be observed or the right will be lost.** If no time is specified in which the trees are to be cut and re- moved, they are to be cut and removed within a rea- sonable time, and if they are not so cut and taken away within a reasonable time after the owner of the land notifies the exceptor to do so, the trees will be forfeit- ed to the owner of the land. The rule as to reasonable time is implied where the parties have set no time, and is usually a reasonable time after notice given by the owner of the land.*** Sec. 1512. RULE WHEN TREE EXTENDS OVER THE PROPERTY LINE.— When the trunk of a tree stands wholly upon the land of one person, and the branches project over the land of another and the roots of the tree extend into the soil of the other, it has been held that the fruit upon these branches *3Wash. Real Prop. 440. As a matter of fact these terms are used indiscriminately in grants, and the courts therefore examine the language of a deed to ascertain the real meaning intended by the language used. Profits a prendre differ from easements, in that the former are rights of profit, and the latter are mere rights of conveni- ence in land without profit. Thus rights of pasture, digging sand, and the like are easements, while right to light would be a profit a prendre. **90 Pa. St. 422. ♦**6o Mich. 620. LAW OF REAL PROPERTY 127 which project over the land of the second party belong to the owner of the land that the trunk of the tree stands on, but the other property owner may cut the branches and remove them if they constitute a nui- sance.* Where the tree stands so that the property line passes through its trunk it belongs to the adjoining owners in common. Some courts hold that the parties are absolute owners of that part of the tree which stands upon their respective lands.** The fact that a boundary line tree, or one near a boundary line, is allowed to extend its branches over the adjoining land, is not such an adverse user of such land as will give the other owner an easement by pre- scription. The adjacent owner is regarded as simply tolerating a nuisance, and the mere existence of a nui- *38 Va. lis; 22 Eng. C. L. 485. In the first case an apple tree had been planted six feet from the boundary line and the roots and limbs of the tree extended beyond the boundary line, and the branches overhung the adjoining land. The owner of the land adjoining undertook to gather the fruit, on the ground that he owned the space where the branches stood and also that the roots gathered nourishment from his soil, but the court held that the fruit belonged to the owner on whose land the trunk of the tree stood. But the adjoining owner could trim off the overhanging branches while stand- ing upon his own land, and not be a trespasser. **83 Iowa, 301; 25 N. Y. 123; 38 Vt. 118. In the first case a suit for damages was brought for cutting trees growing upon the boundary line. The court held that the trees were owned in common, and since they were so owned, if either party destroyed them, he was liable to the other party in damages for any injury he might sustain by the destruction of the trees. In the New York case an injunction was granted 12& LAW OF REAL PROPERTY sance for any length of time will not be allowed to create a prescriptive right.* Since the entire tree belongs to the owner on whose land the trunk of the tree stands, the fruit of the tree belongs to him also. The owner of the trunk may gather the fruit of the whole tree from the branches if he can do so while standing upon his own premises; he is a trespasser if he goes upon his neighbor's land to gather the fruit. The fruit after it has dropped from the tree onto the ground still belongs to the own- er of the tree, and he may go upon his neighbor's land and pick up such fruit, or take other steps to recover it.** Sec. 1513. MANURE IS HELD TO BE REAL PROPERTY AT COMMON LAW.— A number of rules fixing the nature of property grew up at the common law, and which have come down to modern restraining one party from cutting a tree so situated. The general rule being that such trees are owned in common by the adjoining owners. *l App. Cases i ; L. R. 3 Ch. i; 11 Conn. 177. The ad- joining owner cannot lopp of the projecting limbs unless they are a nuisance, but they are considered as a nuisance if they do the least damage to the adjoining premises. **g Barb. 652; 2 Shower, 28; 48 N. Y. 201. If the project- ing branches are cut oflf they belong to the owner of the trunk, and he may recover them. These rules are somewhat arbitrary, and are seldom neces- sary to be applied, as the common sense and courtesy existing between adjoining property owners is usually sufficient to make a neighborly division of the fruits of such trees possible and satisfactory to both. LAW OF REAL PROPERTY 129 times, one of these is, that manure is real property and belongs to the land. Therefore a tenant on land has no right to sell the manure as personal property, and if he does so it is regarded as committing waste. This rule was the result of an attempt to further good hus- bandry, and is prolific of many disputes in modern times. In some States the same rule exists as to straw ; all straw stacks passing with the realty, as it is re- garded as of no value except to convert into manure to enrich the soil; where it has a commercial value the rule might be different. The rule does not extend to hay, as it has a commercial value.* Sec. 1514. ALLUVION DEPOSITS BELONG TO THE OWNER OF THE LAND ADJOINING. — Another of the rules of the common law is that all accretions or alluvion deposited along the shore of a running stream by gradual and imperceptible increase, belong to the owner of the adjoining land, where it is deposited, called the riparian owner.** SEC. 15 15. AEROLITES BELONG TO THE *S6 Me. 127; 41 111. 466; 21 Pick. 367; 48 N. H. 87. **" Alluvion, within the rule that .<;oil formed by alluvion belongs to the adjoining land owner, is an addition to re- parian land, gradually and imperceptibly made by the water to which the land is contiguous. The test as to what is gradual and imperceptible within the rule, is, though the witnesses may see from time to time that progress has been made, they could not perceive it while the process was going on. Whether it is the effect of natural or artificial causes makes no differ- ence as to the ownership." 23 Wall. 46; 18 La. 122. 130 LAW OF REAL PROPERTY OWNER OF THE LAND.— It has been held that aerolites or meteoric stones falling from the sky are added to the land on which they fall, and the title to them is in the owner of the land.* *86 la. 71- LAW OF REAL PROPERTY 131 CHAPTER XI. OF THE ANNUAL PRODUCTS OF THE LAND. Sec. 1516. TWO CLASSES OF PRODUCTS OF THE SOIL — FRUCTUS NATURALES AND FRUCTUS INDUSTRIALES.— The products of the soil are divided into two classes, and the rules govern- ing each are somewhat different. This division was made at a time when the cultivation of the soil had not attained the system and perfection which it has to-day, or the courts would not have made such a radical dis- tinction. The first class consists of those products produced naturally each year without the intervention of man, although labor or care may be necessary to bring such products to perfection ; they consist of nuts, fruits, ber- ries and grasses, and the like, and are called fructus naturales. The second class consists of those crops or products which require an annual planting, as grains and vege- tables, and the like, which are called fructus indus- friales, or emblements.* The first class, fructus naturales, are regarded as *49 Minn. 412. In this case it was held that hops, though seemingly belonging to the first class as they grow up natural- ly each year, still are classed with the second since they re- quire poles to be set for the vines and some little attention to bring to perfection. This was also the holding at the early common law, and the courts follow it. 132 LAW OF REAL PROPERTY real property so long as they- are attached to the soil, since they are products of nature arising from the soil without assistance from man ; the second class, fructus industriales, are considered personal property. The first class of products become personal property when they are detached from the soil. This distinction is important upon a levy of an exe- cution, or in making a sale of such products. A con- stable cannot levy upon apples that are growing on the trees since they are a part of the realty, since such offi- cers are limited to levying upon the personal property only, while he may levy upon the crops of wheat, oats, vegetables and the. like. So when the products of land are sold, the first class must be purchased with the for- malities required to purchase realty, while the second class are purchasable as personalty.* Sec. 1517. RULE AS TO NATURAL FRUITS OF THE SOIL. — It is the general rule that natural fruits of the soil are an interest in land, and the sale or mortgage of such products must be in writing to satisfy the Statute of Frauds. So that if it is desired to sell a crop of apples growing upon the trees it is necessary to go through the same formalities as to sell the trees themselves.** But in England, and in some of the States, whether such products are to be deemed an in- terest in land or not depends upon whether or not the parties intend that they shall be immediately severed from the land. If they are not to be severed imme- *4 Am. St. Rep. 807; 59 N. H. 201. **i Houston, 9; 140 N. Y. 390; 55 Vt. 285. LAW OF REAL PROPERTY 133 diately, then they are considered to constitute an in- terest land; if there is to be an immediate severance, they are considered as already severed, and as personal property.* Sec. 1518. ANNUAL CROPS, OR EMBLE- MENTS ARE GENERALLY REGARDED AS PERSONALTY. — In this country the general rule is that emblements or annual crops are personal prop- erty, and are not an interest in land. So that they can be levied upon as personal property ; but upon the death of the owner of the land they go to the heir though they are personal property, and would be covered by a real estate mortgage.** Growing crops produced from annual planting are also a part of the land as between the vendor and vendee of the land, unless there has been an exception in the deed. So, when a person sells his farm outright, and there are growing crops upon it, and no exception of the crops is made in the deed, the purchaser takes the land and everything growing upon it.*** Growing crops go to the devisee of land in a will and not to the executor. The crops in such a case are regarded as connected with and a part of the soil. But the will may provide that the crops shall be regarded as personal property, in which case they would go to the executor and not to the devisee of the land. But if the real estate becomes necessary to pay debts the *L. R. 1 C. P. Div. 35 ; 46 Md. 212. "'*49 Minn. 412. '"19 111. 621; 23 Ind. 56; 75 Am. Dec. 592, *** 134 LAW OF REAL PROPERTY administrator may sell it for that purpose, though at the early common law, the land could not be taken to pay debts, but went to the heir free from debts.* Annual crops, fructus industriales, are regarded as personal property to the extent that they may be levied upon as such, and sold by parol.** When annual crops are ready for harvest they are regarded in some of the authorities as severed from the soil ;*** while others regard them as still a part of the soil as between vendor and vendee of the land.**** When such crops are sold on execution against the owner, or have been sold by the owner to another per- son, such sale is regarded as a severance of the crops, so that they would no longer pass with the land.***** But a real property mortgage covers not only the land but all crops growing upon the land. Under the Massachusetts rule, the mortgagor may remove the crops before default ; and under the New York rule he may remove them prior to foreclosure of the mortgage. When the mortgage is actually foreclosed, the crops growing at the time of the sale and foreclosure pro- ceedings, belong to the purchaser, without reference to whether they were planted before or after default.****** Crops planted by a lessee of the land belong to the *8 East, 339; 27 Mo. 424; 63 Me. 350. **io Ind. 444; 96 Ala. 536; 42 N. Y. 146; 5 B. & C. 829; «i 111. 356; 27 W. Va. S76. ***22 Mich. 254; 29 Ind. 509; 13 Me. 377. ****S8 la. 133; 41 111. 466; 52 Kan. 709. *****38 Kan. 534 ; 22 Fed. Rep. 436 ; 90 Pa. St. 217. ******43 Mich. 192; 79 N. Y. 568; 46 Wis. 301; 70 Cal. 296. LAW OF REAL PROPERTY 13s purchaser under a foreclosure sale. The lessee is re- garded as taking subject to the mortgage, and if he plants crops he must remove them before title passes under the mortgage to the mortgagee.* It does not matter whether the foreclosure is at law or in equity, the same rule prevails in each case. The crops, as well as all fixtures upon the land go to the purchaser under a foreclosure sale. Then where the mortgage is in possession with a right to redeem within a period fixed by statute, he can remove the growing crops until his right to redeem expires.** While the mortgage is a mere lien, all crops severed by the mortgagor before actual foreclosure belong to him, and he may make such severance by sale of the crops.*** But this rule may change if the crops are not ready to harvest.**** *8 Wend. 584; 83 la. 705. **2 N. Dak. 22s; 5 Minn. 315. ***iiS N. C. 70; 52 Kan. 709; 115 Cal. 7. ****3S Kan. 122 ; 122 Mich. 666. 136 LAW OF REAL PROPERTY CHAPTER XII. OF RIGHTS AND INTERESTS APPURTENANT TO LAND. Sec. 1519. APPENDANT AND APPURTE- NANT DISTINGUISHED.— At the early common law the distinction between rights that were append- ant to land and rights that were appurtenant to it were clearly distinguished. The word appendant sig- nified something that went with the land as necessary for its enjoyment. Thus, under the feudal system, when lands were given to the villeins by the lord of the manor, there were' certain intei^ests and rights which went with the land as necessary to its beneficial enjoyment, as rights of pasture, of estover, of fishery, of common, and the like, they were always appendant to the estate unless they were acquired afterwards by the tenant. The tenant might also acquire other spe- cial privileges afterwards, so that the parcel of ground would not only have the appendant privileges neces- sary to its enjoyment, but might have other privileges acquired after the original grant, and called appurte- nant since they were acquired afterwards, and were not essential to the enjoyment of the estate.* But this distinction is of little significance in this country at the present time. Sec. 1520. THE NATURE OF THINGS THAT *Co. Litt. I2ib; 122a. LAW OF REAL PROPERTY 137 MAY BE APPENDANT OR APPURTENANT TO LAND. — It is said that nothing can be properly ap- pendant or appurtenant to anything unless the prin- cipal or superior thing is of perpetual existence or continuance. Again, the appurtenance and thing to which it is appurtenant must be of the same nature. So that if a person has a right or privilege which he is to exercise separate from the land, it is not ap- pendant or appurtenant to the land.* And no right can pass with land as appurtenant to it unless it is a legal right. So the appurtenance must be something which adds value to thing to which it is appurtenant, as well as be of the same nature.** Sec. 1521. OF THE MEANING THAT WILL BE GIVEN THE WORD "APPURTENANT."— Strictly speaking the word appurtenant is not an apt word to describe a right not previously existing, as it has come to mean and describe rigfhts which have always existed, or have belonged to the land, and not a newly created interest. It has been construed by the courts to mean, where necessarv to carry out the true intention of the parties, "as usually occupied," or "as then occupied or used." So that if a person owns two parcels of ground, and is using one parcel *3 Southwell, 40; 3 N. H. 190; Cro. Jac. 121. **I40 U. S. 304; 118 Mo. 61. Thus a lime-kiln on adjoin- ing premises will not pass as appurtenant to a mill for grind- ing grain, though used in connection with such mill. And stock in an elevator or grain storehouse will not pass as ap- purtenant to a mortgage deed of railroad property. 138 LAW OF REAL PROPERTY in connection with the other, as if draining across it, or other use; and he sells one parcel and the pur- chaser desires to use it just as the seller has used it, the grant should specify that it is to be used and occu- pied as it has been used and occupied previously, which would give the purchaser the right to so use it. But the same effect will be given to the sale, if the deed conveys one parcel and its appurtenances, provided the surrounding circumstances show that the use of the word "appurtenant" was with the intention that the purchaser should acquire the privileges of the former owner in the other parcel of land.* The use of the word appurtenances in a grant of land will not be construed to convey anything but legal rights, so that if the grantor had been using ad- joining land unlawfully, his deed would not give the grantee a right to continue such use; and a warranty of title would not extend to such unlawful use.** So land cannot pass as appurtenant to land, but must be included in the description in the deed.*** But sometimes in the construction of a will it will be necessary to allow a parcel of land to pass under the will not perhaps as appurtenant to land, but be- cause the construction of the will demands it.**** *20 Q. B. Div. 22S; 94 Mo. 56; 94 Neb. 56; 6 Neb. i; 76 Me. 68; 96 N. Y. 604. **4 Vt. 451; 29 O. S. 642. ***8 Allen, 285; 32 Vt. 384; 55 Vt. 475. ♦♦**i P. Wms. 600. LAW OF REAL PROPERTY 139 An easement must belong to the estate, unless spe- cially described in the conveyance, in order to pass under the grant as appurtenant.* *97 Mass. 123; II Allen, 388. LAW OF REAL PROPERTY 141 CHAPTER XIII. SOURCES OF TITLE TO LAND IN THE UNITED STATES. Sec. 1522. LAND OWNED BY GREAT BRIT- AIN PASSED TO THE UNITED STATES ON THE ACKNOWLEDGEMENT OF INDE- PENDENCE. — At the time the independence of the United States was acknowledged by Great Britain, she possessed all thkt portion of the present territory lying north of the Gulf of Mexico, and east of the Mississippi river, except a portion of Louisiana and Florida. By the express terms of the treaty acknowl- edging the independence of the United States, it suc- ceeded to all the right of the British crown within these boundaries. Sec. 1523. SUBSEQUENT PURCHASES AND ACQUISITIONS BY THE UNITED STATES.— In 1803, the United States purchased from France her holdings in North America, called Louisiana, in- cluding the present territory of Louisiana, Arkansas, Missouri, Kansas, Minnesota, Nebraska, North and South Dakota, Iowa, Montana, Idaho, Colorado, and Oklahoma and Indian Territories, this purchase con- sisting of about half as many square miles as the original territory of the United States. In 1819, the government acquired from Spain the territory of Florida. In 1845 the Republic of Texas was annexed. This 142 LAW OF REAL PROPERTY included all the territory comprised within the bounda- ries of New Mexico and Texas. In 1848, the government acquired from Mexico all that territory west of the Rocky Mountains and south of the north boundary line of California, extending from the Pacific Ocean. to the Rocky Mountains. In 1867, the government purchased from Russia the territory of Alaska. The territory included within the states of Wash- ington and Oregon was acquired by the United States by right of discovery and settlement. In 1896, the United States acquired by annexation the Hawaiian Islands; and as a result of the Spanish War, and purchase, it has acquired Porto Rico and the Philippine Islands.* Sec. 1524. RIGHTS OF THE INDIANS, OR ABORIGINAL INHABITANTS TO THE LAND. — At the time of the discovery of America by Colum- bus in 1492, the territory of the various states was sparsely inhabited by various tribes of Indians, who were differently organized in the various portions of the country. The organization of the Six Nations in New York probably being the most complete of any, comprising six separate and distinct tribes of Indians. These Indians had communal lands adjoin- ing their villages, very similar to the communal hold- ings of the early Germans in their semi-barbarous state. Aside from the communal lands the vast for- *See maps showing the purchases in McMaster's Hist. U. S. Vol. 2. LAW OF REAL PROPERTY 143 ests were held in common as hunting grounds by the tribes, the Indians not having the idea of separate ownership of land except where their wigwams were situated. By reason of this prior possession the In- dians claimed to have the sovereign title to the land by the laws of nature. But when the European nations began to discover and make settlements in the new world they paid lit- tle attention to the claims of the Indians, and assumed that the soil belonged to the sovereign of the coun- try in whose name it was discovered, and that the tribes occupying it had no sovereign title, but a mere right to use it, which was similar, if not identical to the feudal doctrine that title belonged to the sov- ereign, and the inhabitants entitled to the use only of the land. The question of the Indian's claim to sovereign title to land came before our supreme court and was de- cided by Chief Justice Marshall in accordance with the prevailing rule among European nations, as fol- lows: 1. That the title to land depends upon the laws of the country in which the land is situated. 2. The several European nations claiming posses- sion upon this continent agreed that the nation whose subjects first discovered any portion of this continent should have title to that portion of the land. 3. The relations to exist between the discoverers and the aboriginal inhabitants were to be regulated by themselves. 144 LAW OF REAL PROPERTY 4. The aboriginal inhabitants were admitted to have the right of possession of the soil, coupled with the right to use it ; but the right to alienate- it was in- compatible with the title of the discoverer. 5. The possession and right to use in the original inhabitants did not prevent the nations who held the ultimate title by right of discovery from granting the lands, and the grantee took a good title subject to the Indians' right to use it. 6. The United States upon gaining independence succeeded to all the rights of Great Britain, France and Spain within the limits of the territory acquired. 7. The United States has the exclusive right to ac- quire the title of the Indians. In other words, no grants made by the Indians to a private individual were good. The Indians could not sell their right to occupy and use the land to a private individual.* Sec. 1525. RELATIONS OF THE UNITED STATES GOVERNMENT WITH THE INDIAN TRIBES. — The relations of the general government with the various Indian tribes has been somewhat anomalous. While the Indian is regarded as having no paramount title to the land, yet the tribes are con- sidered so far independent as to enable them to make treaties ceding their lands to the greneral government. *Johnson v. Mcintosh, 8 Wheat. 545, in which case a Choctaw Indian claimed land under the grants of certain In- dian Chiefs who were the original occupants of the territory, and the court held as above stated that the Indians could not convey a good title to a private individual as the Sovereignty was in the United States Government. LAW OF REAL PROPERTY 14S and that is about all the independence our government has recognized as belonging to the Indian tribes. These treaties are made by persons appointed by the President with the consent and advice of the Sen- ate, and are called Indian Agents. The government has thus made treaties with the Indians for all of the North West Territory. In many instances the In- dians have reserved a reservation and ceded the bal- ance of the soil. These reservations in many cases were in favor of the entire tribe, but in some cases were in favor of an individual. These reservations are described by their natural boundaries, as water courses, trees, rocks and the like. In surveying the govern- ment land the surveyors regard these reservations as impassible territory, and run the line up to them and then around. It is these territories that the govern- ment buys from the Indians from time to time and opens up to settlement. In tracing title to land in an Indian Reservation, the completed title starts with the treaty made with the general government by the Indians, as the sanction of the two as to the land in the reservation makes a perfect title. Sec. 1526. OF TITLE BY RIGHT OF DISCOV- ERY AND POSSESSION.— In 1496, the King of England granted a commission under the royal seal to John Cabot, a Venitian sailor, then residing in England, to discover countries then unknown to Chris- tian people and take possession of them in the name of the crown of England. 146 LAW OF REAL PROPERTY Possession was then deemed necessary to a perfect title. So that these early explorers would land on the coast, throw out to the breeze the flag of their sov- ereign and formally announce that they took pos- session of the territory for their sovereign. Two years after receiving his commission, Cabot landed at the 56th degree of north latitude and sailed south along the coast to the 38th degree, formally taking possession of the country lying north of the Gulf of Mexico and running from the Atlantic to the Pacific in the name of the king of England. But it turned out that the French and Spanish monarchs had prior claims to part of the territory, and some of the lands claimed by England by right of Cabot's dis- covery and taking possession had to be relinquished to prior discoverers. It was a recognized rule that the discovery of the mouth of a river, entit'ed the dis- coverer to all the territory drained by that river, so that the entire Mississippi river basin was given up by England by reason of previous discovery. Sec. 1527. TITLE TO LAND UNDER COLO- NIAL CHARTERS.— The charters of the colonies differed materially from each other, and land tenures differed correspondingly. Some possessed charter gov- ernments, others provincial and others proprietary, as Pennsylvania and Maryland. Yet the colonists claimed, as a rule: i. That they enjoyed the rights and privileges of British born subjects, and that the common law of England was in force in each colony. 2. In all the colonies the land within their limits was LAW OF REAL PROPERTY 147 held under the original grants and charters in free and common socage, and not under copyhold or knight service tenures.* They all agreed that the feudal sys- tem did not exist in this country, and that the land was held free from all manner of feudal service. No oath of fealty seems to have been required in this country, but the oath of allegiance has been re- quired in many states because the laws prohibited a foreigner from holding lands. This oath of allegiance takes the place of the feudal oath of fealty. No other services have ever been required, and free socage is an independent holding, if not an absolute holding.** In this country no ceremony has ever been required or used in the conveyance of land except the livery of seizin. Sec. 1528. CESSION OF LANDS BY THE COLONIES TO THE GENERAL GOVERN- MENT. — At the close of the war for independence, the colonies were burdened with a heavy debt, and it was suggested by the several states that the land belonging to them outside the limits of their several jurisdictions should be turned over to the general *TitIe in common socage differed from the other feudal tenures in that it was free from many of the feudal burdens and services, the principal burden attaching to it being the oath of fealty to the lord paramount. **Story, Const. Law, Ch. 17. For all practical purposes our lands are held absolutely, but in theory they are held in free socage. This is shown by the escheat to the State on the failure of heirs; and in the right of the government to take lands for public purposes upon giving compensation by the right of eminent domain, 6 How. 332. 148 LAW OF REAL PROPERTY government for the purpose of paying- their share of the public debt, and for the further purpose of having the territory divided up into states to be later admit- ted into the Union. At this time all the land east of the Mississippi was claimed by one or the other of the original states. Virg-inia claimed all the North West Territory, but her title was disputed by Connecticut and Massachusetts. These conflicting claims were all settled and the land ceded to the United States Gov- ernment, except a portion of what, is now the northern part of Ohio, given to Connecticut in satisfaction of her claim. This reservation was settled by people from Connecticut under grants from that state, and is still known as the Connecticut Western Reserve. When the general government acquired this land from the states, it at first sold and transferred large tracts to private individuals and corporations, but soon afterwards it adopted the public land system, which has since been in force. Sec. 1529. SURVEY OF THE PUBLIC LANDS. — When the public land system was adopted by Con- gress it was directed that two lines be run through the particular territory to be surveyed, one called the base line and the other the meridian line. The base line running from east to west, and the meridian line from north to south and intersecting the base line at right angles. After the base and meridian lines are run, the town- ships are surveyed _ beginning at the intersection of the base and meridian lines. The townships are LAW OF REAL PROPERTY 149 six miles square, and each township is subdivided into thirty-six sections of six hundred and forty acres each. The townships are numbered with reference to the base Hne and meridian Hne. The first township that touches the base line on the north and the merid- ian on the west would be township one north, range one west. Townships are numbered from the base line north and south, and from the meridian line east and west. So that if the number of the township is given and you know the location of the base line, the location of the township may easily be found. After the territory has been surveyed into town- ships six miles square, each township is subdivided into sections containing six hundred and forty acres ; these sections are numbered consecutively from one to thirty-six, commencing in the north east corner of the township and numbering back and forth so that number seven falls under number six, and number twelve under number one, and so on, number thirty- six falling in the south east corner of the township. The sections are again divided into equal parts by running lines through the center north and south and east and west. A stone or other monument being placed in the center of the section and at each of the corners and at each end of the quarter lines. The outside lines are called section lines, and the cross lines are designated quarter-section lines. These are the only lines actually run by the surveyors, though the quarter sections may be aeain divided. When a plat of the survey is made in the Surveyor ISO LAW OF REAL PROPERTY General's office, each quarter section is again divided into four equal parts by drawing lines through the center north and south and east and west. The quar- ter sections, containing one hundred and sixty acres each, are designated the northeast quarter, the south- east quarter, the northwest quarter and the southwest quarter of each particular section, and the division of the quarter sections are likewise designated as such parts of the quarter section. So that the full descrip- tion of a forty-acre strip might be, for example, "The Northeast Quarter of the Northeast Quarter of Sec- tion I, Township 5 North, Range i East of the Third Principal Meridian."* *When the survey of the public lands was made, if the land was open prairie the sections would, of course, be full ones. If the lines run into a lake, the township lines would be run up to the lake and then meandered along the shore. As a result of this there would be fractional portions of sections on both sides of the lake. These fractional sections are sur- veyed and sold as so many acres of hard land, and no part of the water is included. A rule of the General Land Office requires that in case any quarter section contains less than 160 acres it shall be sold as an entire parcel. If it contains more than 160 acres it shall be subdivided into parcels, and so offered for sale. When a quarter is less than 160 acres a portion of another quarter may be inchided in the survey. Thus if a meandered lake divides a section so that a portion of the S. W. quarter is less than 160 acres, the survey may include a portion of the S. E. quarter. If a stream is not meandered the bed is treated as so much hard land and does not affect the survey. 70 Mich. 552; S7 Mich. 241 ; 3 How. 650; 20 How. 372. When land is sold by the government the land being desig- nated as the "west half" or the "north half" of a section or quarter section, then the parcel west or north of the center LAW OF REAL PROPERTY 151 Sec. 1530. SAME SUBJECT— RIGHTS OF RIPARIAN OWNERS.— When the government sells land bordering on a river, or fresh wrater stream, the several riparian owners have a right to use the water in common for all ordinary purposes. If it is a lake or stream of considerable size and irreg- ular shape the right to use any particular portion of line is conveyed without reference to whether it contains one- half the land in the section or not. It may contain two-thirds of the land in the section or less than one- third, the grantee takes all the land on the designated side of the center line as run by the surveyors, be the same more or less. But if the deed is between private persons and describes the land as the north or south half without reference to the Gov- ernment survey, the line dividing the parcel into equal parts would be the boundary line. 70 Mich. 552 ; 57 Mich. 241 ; 3 How. 650; 20 How. 372; 127 Mich. 41. In running lines north and south the lines approach each other towards the north on account of the earth being round. Hence in measuring a township six miles on the south bound- ary and running directly north the northern boundary will be shorter. The result is that the sections in a township can- not be exactly a mile square, and do not all contain 640 acres. The question then arises as to where these fractional sections fall. In correcting the errors thus caused number 36 is made a full section, and all others are until the west boundary line of the township is reached ; and the sections on the west boundary are larger or smaller in their dimensions to make up the difference. In like manner all the difference in the north and south dimensions is corrected in the northern line of the sections. So that almost every section on the west and north of the townships in a government survey is fractional section, and the fraction is made to fall on the north or west side of the subdivision. That is, the surveyor commences on the southeast corner and makes the shortage or surplus to fall on the north or west tier of sections, so that all sections ?Lre full except on the north and west sides of the township, 1S2 LAW OF REAL PROPERTY the watei for a special purpose, as cutting ice, will have to be fixed and determined by a partition suit in equity. In ordinary cases where the lake or stream is small, each riparian owner has the right to cut ice on that portion of the water bounded by the center line of the water and a line drawn from the point where the boundary line of his land touches the water at right angles with the center line, or within the sec- tion lines projected into the lake.* Sec. 1531. SALE OF PUBLIC LANDS.— The public lands are divided into land districts and in each of these a public land office is established. The offi- cers of the land office are a Register and Receiver. The lands must first be offered at public sale, and sold to the highest bidder, provided the bid is equal to the *62 Mich. 614; 102 Mich. 227; 140 U. S. 191 ; 118 Mich. 125 ; 134 N. Y. 30s ; 18 L. R. A. 695. This general survey of the government lands was not adopt- ed by a number of States, the lands simply being sold as so many acres in the unsurveyed portion of the government ter- ritory, and then a surveyor was allowed to go and locate that number of acres ; as a result the various lines frequently over- lapped one another and created many disputes as to boundaries. IS S. W. Rep. 727. The land department of the government was first established in 1812. At first it was under the supervision of the Treas- ury Department, but was later transferred to the Department of the Interior, where, it has since remained. The head 01 the department is called the Commissioner of the General Land Office, who acts under the direction of the Secretary of the Interior. The government lands are divided into convenient land districts, in each of which a government land office is established, which are consolidated as the public lands are disposed of. LAW OF REAL PROPERTY 153 minimum price fixed by the government. The original price was $1.25 per acre, except where land border- ing on railroads was offered for sale. On the pur- chase of one of these parcels of land the price is paid to the Receiver of the local land office who issues a certificate of purchase. This certificate entitles the purchaser to a deed or patent to the land from the government, but it is first sent on to the general office at Washington, where the records are examined to ascertain if any mistake has been made. If no errors are detected a deed or patent is issued signed by the President and the Register of the Land Office, and is recorded at Washington and is then sent to the local land office to be there placed on file. This deed from the Government is called a patent, this being the term used by the English government for grants of land made by the crown to private individuals. The title to the land purchased does not vest in the purchaser until the patent has been recorded. In this a patent differs from a deed, as delivery is essential to passing title by deed, but recording of the patent is sufficient to pass title by patent.* Sec. 1532. SAME SUBJECT— GOVERN- MENTAL GRANTS FOR EDUCATIONAL PUR- POSES. — The United States Government has made various grants to the various states of public lands for educational and other purposes. Thus, in the North West Territory the sixteenth section in every *i02 U. S. 378. 154 LAW OF REAL PROPERTY township was given for educational purposes. Grants have likewise been made for the benefit of Universities and Colleges. And sometimes the states have been given large tracts of swamp land in order to have them drained and made usable. So, in the various purchases made by the United States, as Florida from Spain, Louisiana from France, and the recent acquisition of Porto Rico and the Phil- ippine Islands, the treaties made, provided that the rights of the private owners of the property in the territory acquired should be respected and confirmed by the United States. LAW OF REAL PROPERTY 155 CHAPTER XIV. COVENANTS OF TITLE. Sec. 1533. MEANING OF COVENANTS.— Covenants, or covenants of title have nothing to do with title so far as the conveying; or withholding of title is concerned. Though it is a matter of common belief that a warranty deed with full covenants of title conveys a better title than a quit claim deed. As a matter of fact, in either case the g^rantor simply con- veys the title which he has, and if he has no title it makes no difference whether he warrants it or not, none passes by the conveyance. So that covenants in a deed have nothing to do with the effect of the deed upon the title immediately. They may indirectly, be- cause if a warranty deed is given and the grantor afterwards acquires a good title, the warranty deed estops him from claiming any title under the new title he has acquired. But the real value of covenants of title, as contained in a warranty deed is that the grantee may have a right of action agfainst the gran- tor if the title fails. The usual covenants in a deed are: x. Covenant of seizin. 2. Covenant of the rig;ht to convey. 3. Covenant against incumbrance. 4. Covenant of quiet enjoyment. 5. Covenant of further assurance. 6. Covenant of warranty. This covenant of warranty is simply one of the covenants, and a warranty deed IS6 LAW OF REAL PROPERTY may be confined to this one covenant, or it may con- tain all the other covenants. Sec. 1534. TITLE DEFINED AND EX- PLAINED. — Title is defined to be the means whereby the owner of lands comes into the just possession of his property. A perfect title requires the union of possession and the right to the thing possessed. At the common law the lands could not be conveyed un- less the grantor was in possession and could give livery of seizin. It was against public policy to cove- nant to convey or sell lands when you could not put the purchaser in possession, since it was supposed to stir lip litigation and cause a multiplicity of suits. The primary meaning of seizin is possession and the right of possession; its secondary meaning is that of possession alone. Sec. 1535. THE COVENANT OF SEIZIN.— In a number of the states it is held that the covenant of seizin means possession only, and it is therefore not broken if the grantor is in possession and delivers such possession to the grantee.* So that, under this rule, if the grantor is in possession wrongfully at the time of the making of the deed, there would be no breach of the covenant. But in these states if there is anything in the covenant indicating that the vendor is in possession of a particular title, as an .indefeasible "4 Mass. 408; 69 Me. 510; 3 Ohio, 510; 27 111. 229; 4 Neb. I3S- LAW OF REAL PROPERTY 157 fee simple, then there is a breach of the covenant if he does not hold under that particular title.* But in most of the states the courts repudiate the Massachusetts rule, and hold that possession alone is not sufficient to satisfy this covenant of seizin, and that it means a covenant of title as well as possession. That is, most of the states hold that a covenant of seizin imports that the grantor is not only in posses- sion, but has the right of possession.** In such states the covenant of seizin is defined to be an assurance to the purchaser that the grantor has the very estate in quality and quantity which he purports to convey, following the English rule.*** So that under this rule the covenant is broken if the grantor has merely an estate tail, or there is an outstanding estate for life or for years.**** But the covenant of seizin is not broken by the ex- istence of an easement which does not affect the seizin of the grantor, such as a public highway or ex- ecution lien.***** The covenant is broken, if at all, as soon as the deed is given, and the statute of limitation *ii Cush. 134. **6 Conn. 373 ; 3 Vt. 403. ***ii East, 633. ****38 Vt. 469; 23 Conn. -349; Rawie, Gov. of Title, Sec. 59, *****i6 Ind. 338. When the covenant is as to wild lands they are construed to.be in the possession of the person holding the government title. So that if the holder of such title cov- enants that he is well seized of the lands, it is sufficient if the lands are not in the possession of another, and he has con- structive possession. 38 Mich. 373; S Hill, 599; 57 Mich. 319. 158 LAW OF REAL PROPERTY governing the right of action for the breach of the covenant begins to run immediately. And the suit for the breach must be brought with the time fixed by the statute of limitation or the grantee cannot recover. When a breach of this covenant occurs and an ac- tion is brought, the plaintiff is not required by the course of the common law to aver eviction in his declaration, or to allege any special damages, nor is he required to set up any particulars of the para- mount title. All that the plaintiff need do is to nega- tive the title of the defendant. The defendant must plead affirmatively that he had a good title and sup- port such plea by proof. If no proof is introduced the plaintiff is entitled to recover. The reason being, that at common law there was no registration of title deeds, and the evidence of title were the deeds that were given from the grantor to grantee, and the grantor was supposed to have in his possession at the time of granting the land all the evidence of title. The gran- tee, therefore, if in doubt as to his title can bring suit and compel the grantor to show that the title granted is the very title granted in the deed. The burden be- ing upon the grantor, or defendant, to prove affirma- tively that the deed he gave was a good and sufficient deed covering the very title which it purported to con- vey.* But this rule of the common law has been changed by statute, so that generally it is necessary in draw- *I4 Johns. 248; 36 la. 158; 34 Me. 375- LAW OF REAL PROPERTY IS9 ing a pleading for breach of the covenant of seizin to set forth affirmatively in what manner the covenant has been broken. Sec. "1536. THE COVENANT OF THE RIGHT TO CONVEY. — The covenant of seizin in those states that follow the rule that it is a covenant of title and not merely of possession, is equivalent to or synonymous with the covenant of right to convey. But where seizin means possession merely, and the party covenants that he has a right to convey, it is interpreted that in addition to being in possession he has the title.''' The covenant of right to convey is broken, if at all, as soon as made, and is governed by the same rules in regard to pleadings and damages as the cov- enant of seizin.** Sec. 1537. THE COVENANT AGAINST IN- CUMBRANCES. — A covenant against incumbrances is regarded in this country as an independent cove- nant, and is usually worded as follows : "And that the premises are free and clear of all incumbrances whatsoever." When this covenant stands alone it is broken *as soon as made, if there exists any incum- brance on the land. It is sometimes coupled with the covenant for quiet enjoyment, and as the covenant for quiet enjoy- ment is a covenant in futuro, when the two are thus *5 Best & Smith, 325 ; 6 Best & Smith, 766. **S Foster, 234. i6o LAW OF REAL PROPERTY coupled, it makes of the covenant against incum- brances a contract in futuro.* The time of the break- ing of the covenant is important on account of the statute of Hmitation beginning to run from that" time. So that if the covenant against incumbrances stands alone, it is broken when the deed is made and the stat- ute begins to run immediately, which is not the case if it is coupled with the covenant of quiet enjoyment, in which case the covenant is not broken until the quiet enjoyment is disturbed, that is, until an action is brought by someone to oust the party. Sec. 1538. SAME SUBJECT— MEANING OR AN INCUMBRANCE.— An incumbrance within the meaning of the covenant against incumbrances, has been defined to be any right to, or interest in the land, that may subsist in any third person to the diminu- tion of the value of the land, but consistent with the passing of the fee. This covers not only mortgages, execution levies and liens upon the land, but also everything in the way of easements, and the like. The covenant in efifect means that the title is not affected by any interest which any third person possesses which may interfere with the possession and enjoyment of the premises.** As a general rule any lien or right held by a third person which affects the title or use and enjoyment of the premises is an incumbrance within the meaning of *Rawle, Cov. of Title, Sec. 7174. **42 Mich. 90; 2 Greenleaf, Ev. 242. LAW OF REAL PROPERTY i6l the covenant. Thus a tax Hen, or a restraint upon building is held to be an incumbrance.* Certain incumbrances, as a public highway, and the like, are excluded from being a breach of the cove- nant on the ground that they were not intended to be included within the covenant by either party at the time of executing the deed.** Sec. 1539. SAME SUBJECT— EFFECT OF BREACH OF COVENANT AGAINST INCUM- BRANCES. — A covenant against incumbrances stand- ing alone is broken as soon as the deed is given, if at ail, but since it is treated as a covenant of indem- nity by the courts, the grantee could only recover actual damages. That is, the covenant obligates the covenantor that he will make the title good, and he must reimburse the grantee for what he has been compelled to pay out to satisfy the incumbrance. If the grantee brought suit before satisfying the incum- brance he could only recover nominal damages, since he had suffered no actual damages as yet.*** And as only one action could be brought for the breach of the covenant, the recovery of nominal damages would be a bar to another suit after having discharged the incumbrance.**** Where the incumbrance is an easement the cove- *I33 Mass. 12; 48 N. H. 475; 4 Biss. 409. **IS Johns. 483; 118 Mass. 456; 32 Vt. 728; 34 Md. l; 50 Wis. 620. ***30 Wis. 341. ****36 Me. 4SS ; 87 Mo. 660. i62 LAW OF REAL PROPERTY nantee will be entitled to recover such damages as are the proximate consequences of such easement, but he will not be entitled to recover special damages aris- ing because oi some particular use which he might make of the land. The rule of recover is not actual damages, but rather the difference between what the property would be worth on the market without the easement, and what it is worth with the easement as it exists.* If the incumbrance be an unexpired term of years, the extent of that term or the interest upon the pur- chase money for the term is the measure of damages. So if the rent which the tenant on the land is to pay amounts to the interest on the purchase price, the covenantee is entitled to the rentals and could recover no damage.** Where property is sold subject to incumbrances, such incumbrances should always be excepted from the operation of the covenant.*** Sec. 1540. THE COVENANT FOR QUIET EN- JOYMENT. — This is a covenant or assurance against disturbances consequent from a defective title. And is *39 la. 236; 2 Allen, 438. **7 H. L. 538; II Ohio, 120; 68 Pa. St. 400; 39 Calif. 360; 43 Conn. 129; 22 Wis. 503; 19 Mo. 430. In Michigan a cov- enant against incumbrances is broken immediately if there is an incumbrance against the land which can be then dis- charged, but if the incumbrance cannot be immediately dis- charged, the statute of limitations does not begin to run until the incumbrance can be discharged. $2 Mich. 587 ; 40 Mich. 42. ***io Conn. 423 ; 21 Mich. 382. LAW OF REAL PROPERTY 163 a covenant usually found in short leases.* When this covenant is broken by the eviction of the grantee at the instance of the holder of the paramount title, the grantee is entitled to recover, in a number of states, the value of the premises at the time of the eviction.** But the overwhelming weight of authority in other states is that the rule of damages for the breach of this covenant is the same as that for the breach of the covenant of seizin, and that is, the purchase price of the land, and not their value at the time of being de- prived of them.*** In case of a breach of the covenant for quiet en- joyment in a lease, it was first held that the measure of damages was the amount of the rent paid.**** But this rule has been so far modified bv the weight of authority- that the tenant is permitted to show the value of the premises at, the time of the breach, and can recover actual damages.***** Sec. 1541. THE COVENANT FOR FURTHER ASSURANCE. — The word assurance is the old term for deed, and means the same as the deed or instrument by which the title or ad- ditional claim of title is transferred. The grantee is assured by this covenant that the grantor will exe- cute any additional deed which may be necessary to *ii East. 634; 74 Pa. St. 429. **I4 Conn. 214; 12 Vt. 387; 27 Me. 529. ***4i N. H. 373; 27 Pa. St. 288; 43 Ark. 229; 23 Mo. 166; 18 Nev. 36s; I Mont. 388; 6 Wheat. 188. ****I4 Wend. 38; 11 O. St. 120. *****42 N. Y. 167 ; 29 How. Pr. 20. i64 LAW OF REAL PROPERTY make the title perfect. So that if in the future the grantor obtains a better title than he had at the time of conveying, the grantee may go to him and secure a further quit claim deed, and make him pay the costs of any proceeding necessary to secure such further deed.* An action at law cannot be maintained for a breach of this covenant until the covenantor has been re- quested to make such further assurance. But only such acts may be required of the covenantor under this covenant as are necessary, practicable, and law- ful.** The great advantage of this covenant is that it gives the grantee the power to enforce specific per- formance of the transfer of title, where the grantor has subsequently come into possession of a further and better title.*** Sec. 1542. THE COVENANT OF WARRANTY. — The covenant of warranty is the most important in a deed in this country. This sweeping covenant of general warranty includes nearly all the other cove- nants. It dates back to feudal times, and was the covenant which enabled the tenant in tail to bar the entail by a common recovery. This covenant as usually worded is, that the gran- tor warrants and defends the granted premises against all claims of all persons whatsoever. It is more than a covenant for quiet enjoyment, being a covenant to *S4 Md. 227. **L. R. 10 Ch. App. 31. ♦♦*3 Va. 342. LAW OF REAL PROPERTY 165 defend both the possession and the estate granted in the land, giving the grantee a right to call upon the grantor to make such defense as should be made in case an adverse title is set up.* This being the only covenant of title in which the grantee can call upon the grantor to defend the title.** Upon due notice given to the grantor, when a general covenant of warranty exists, he is obliged to come in and defend the title, or judgment may be taken against him. This notice must be definite and unequivocal, and expressly require the covenantor to appear and de- fend.*** And by statute in some of the states the notice is required to be given in writing.**** The judgment given where the covenantor has been properly notified to appear and defend is con- *40 Vt. 310. **24 Wis. 23; 124 Mass. 373; 108 Ind. 271; 48 111. 271. Thus if there is a general covenant of warranty and a covenant against incumbrances, and a third person who holds a mort- gage upon the land brings a foreclosure suit against the vendee of the land. If the covenant only consisted of the one against incumbrances, the grantee could not compel the grantor to come in and defend the foreclosure suit. And if the suit went against the grantee he would have to pay the mortgage and then bring an action on the covenant against incumbrance to recover the amount paid out. But where the general covenant of warranty exists, the grantee upon giving notice to the grantor may compel him to come in and defend the suit, and if the adverse claimant prevails and gets judg- ment, that judgment is conclusive against the vendor so that, the grantee may have judgment against him for the value of the premises. ***3 Sarg. & Rawle, 410 ; 6 Mo. App. 588 ; 24 Wis. 17. ****38 Mich. 132; 16 Wend, 427. i66 LAW OF REAL PROPERTY elusive upon him since he thereby becomes either act- ually or constructively a party to the suit. The gen- eral rule is that the judgment of a court does not bind parties who are not parties to the action ; notice to the covenantor must be given to bring him out of this rule. So that if he is not properly notified the judg- ment is not binding upon him.* But where the covenantor is not notified, and judg- ment is taken against the grantee in favor of an ad- verse claimant, the grantee may then bring suit upon the covenant of warranty, and by showing that the title was defective recover judgment against the gran- tor for breach of warranty. The only difference be- ing that two suits must be gone through with in this case.** Sec. 1543. SAME SUBJECT—GENERAL AND SPECIAL WARRANTIES.— The covenant of war- ranty may be general, as against the whole world ; or special, against particular persons. The covenant of jvarranty may be limited to the acts of the grantor himself, or otherwise limited. Where the warranty is general the adverse claim must be valid and not a fictitious claim. The covenant is not that no adverse claim shall arise, but that the title is good, though he is obliged to defend against fictitious claims.*** As a rule the covenantor is not obliged to defend *li Allen, 370; 3 S. & R. 410, **S Ohio, 158; SI III. 373; 3 Term Rep. 374. ***I02 Ind. 44.3 ; 61 Wis. loi ; 133 Mass. 59. LAW OF REAL PROPERTY 167 against a fictitious title unless: i. The tortious act is done by the covenantor himself or at his instigation. 2. Or where the covenant is against the acts of some third person specifically. 3. Or the covenant is against all persons claiming or pretending to claim title.* The covenant of warranty does not extend to the right of eminent domain. The sovereign power has always this right, and it is iiot a breach of any war- ranty for lands to be taken by this right.** Nor does warranty extend to cover any other lawful act of the general public.*** Sec. 1544. SAME SUBJECT— WHAT CONSTI- TUTES A BREACH OF COVENANT OF WAR- RANTY. — At common law eviction was necessary to a breach of covenant for quiet enjoyment. An evic- tion at the present time means somethingf of a grave and permanent nature, something more than a trespass. So that it is not necessary at the present time that the vendee should be dispossessed by the holder of the paramount title. If such an adverse claim is set up he may surrender possession or purchase the adverse interest and bring suit against the grantor for breach of covenant. But there must be at least a claim of *3 Cush. 325. **S7 111. 509; 12 Wall. 457; 102 Mass. 19. ***38 Mo. 30s ; 4 Douglass, 354. The Missouri case growing out of the emancipation proclamation which freed the slaves, the claim being that it was a breach of warranty, where a slave had been sold as a slave for life. It was held that a warranty did not extend to cover any lawful exercise of sovereignty. i68 LAW OF REAL PROPERTY right of possession by the adverse holder, who must demand possession and threaten eviction. Then, if he has a good title the vendee mav surrender posses- sion and look to his warranty. But unless the gran- tee notify the warrantor he may have the burden of showing that such adverse claim is gfenuine.* In every case the holder of the adverse title must assert it in a hostile manner, so that the possession is actually put in jeopardy by the hostile movement of the adverse claimant. There may be a constructive eviction, as where the land granted is held by a third person, claiming ad- versely. In such a case the covenantee may maintain his action on the warranty immediately, since he is out of possession and cannot regain it without suit.** But if the lands are wild lands, which are presumed to be in the possession of the person who holds a valid title to them, yet if some third person claims such title to the lands it is not sufficient to constitute a breach of the warranty before eviction is attempted.*** The adverse claim of a third person by reason of which the grantee cannot obtain Dossession must be under a claim of title, and not merely adversely, as simply because he is in possession.**** *4 Mass. 3So; 83 Ind. 546; 32 la. 76; 3 Dana (Ky.), 164; 17 111. 190. **3I Minn. 368; 48 Mo. 250; 45 N. Y. 499. ***38 Mich. 373; S4 Miss. 450; 11 N. H. 74; 5 Hill, 599. ****3 111. 183. LAW OF REAL PROPERTY 169 Sec. 1545. SAME SUBJECT— WHOM THE COVENANT BENEFITS.— The question arises as to who may take advantage of the covenants of title. The first grantee may, of course, take advantage of them. When he sells the land, what is the effect of the previous covenant? If the covenant is purely per- sonal it does not run with the land, or follow the land to successive purchasers, and therefore cannot be en- forced by subsequent purchasers. Covenants are said to run with the land when the purpose is to give future protection to the title con- veyed ; and not to run with the land, when their whole force is spent in giving assurance against something which immediately affects the title and causes the per- son damage ; that is, present damage.* Where the covenant runs with the land, the owner for the time being: is entitled to the benefits of such warranty. The covenant passing along with the land for the benefit of any subsequent purchaser. Covenants for quiet enjoyment, warranty, and for further assurance run with the land. While cove- nants of seizin, right to convey, and against incum- brances do not run with the land. Aside from the rigfht of action for breach of cove- nant, the grantee has vested in him any after acquired interest of the grantor by reason of the doctrine of estoppel. The grantor is estopped from setting up a superior title if he has not done so when it was his *42 Mich. 90. 170 LAW OF REAL PROPERTY duty to do so, and his subsequent claim would be a breach of duty, so he is held bound by the title which he has previously affirmed.^ *68 N. C. 35 ; 15 Minn. 58 ; 20 Me. 262. If the grantor can buy up an outstanding claim, the doctrine of estoppel passes the title to the grantee so as to defeat an action for breach of covenant. LAW OF REAL PROPERTY 171 CHAPTER XV. RECORDING OF DEEDS AND MORTGAGES. Sec. 1546. RECORDING LAWS PURELY STATUTORY.— In all of the states there are statu- tory provisions for the recording of deeds and mort- gages and all other proceedings and instruments af- fecting the title to real estate. These statutes are purely local, but are substantially uniform in the*va- rious states. The object of these laws is to give the public notice of the condition of the title to lands, and the statutes which provide for recording: declare that the record- ing shall be notice to everyone of all facts therein con- tained, and also that any deed or mortgage or other instrument affecting title to land, which has not been recorded as required by these statutes, shall be void as to a subsequent purchaser or incumbrancer in good faith and for a 'valuable consideration. In most of the states actual notice of the existence of a deed or mortgage is just as good as the constructive notice which arise from the proper recording of the instru- ment.* Sec. 1547. RECORDS WHERE KEPT AND HOW ENTERED.— These records affecting title to lands are usually required to be kept at the county *Rev. Stat. Ohio, Sec. 4143; 33 O. S. 414. 172 LAW OF REAL PROPERTY seat of the various counties in the state, and separate books are kept for deeds, mortgagres and other instru- ments, as leases, execution levies, land contracts, and the like. The statutes also provide that separate books be kept for the entry of deeds and mortgages for record before they are actually recorded, and they are efifective from the moment of such entry for record. The entry book being: a mere memorandum of the names of the parties, grantee and grantor, and that the instrument has been left for record, it is later copied at length in the regular record book of deeds or mortgages. The entry books show the day, hour and minute at which the instrument was left for record, the names of the grantor and grantee, the town, city or village, where the lands conveyed are situated, as well as a sufficient description of the lands as to enable any one to locate them. The deed or mortgage is then regarded as recorded, giving pub- lic notice to all of its contents, from the moment of this entry for record, or of its being left for record with the Register or Recorder for entry.* It is held that the entry in the preliminary regis- ter book of the names of the grantor and grantee and other facts necessary to be therein stated, will cure an omission of these facts when the deed or mortgage is recorded at length, as the abstractor is presumed to look at the entry book when the names are omitted in the record.** *Rev. Stat. Ohio, 4133. ♦*44 Mich. I2S; 14 Mich. 361. The register is obliged to LAW OF REAL PROPERTY 173 Sec. 1548. EFFECT OF MISTAKE IN REC- ORD. — A subsequent purchaser of land has the right to rely upon the records as showing the exact facts, unless he has received actual notice that the record is incorrect. In some states the person or persons procuring an instrument to be recorded are held responsible for all errors in the record, on the principle that the recording officer acts as an agent of such person or persons.* But this rule does not pre- vail in other states, where it is held that the Regis- ter or Recorder is a public officer and not the agent of any individual having an instrument recorded.** The purchaser is not charged with the contents of the deed or mortgage further than such contents are contained in the record. Thus it has been held that when a mortgage was recorded for less than its actual value, it was only notice to the amount stated in the record.*** And where the record omitted the name of one of the subscribing witnesses, the record was held to be no notice at all, because without the witnesses required by the statute the instrument was not en- simply record what is on the face of the instrument, nothing else, so that where there is no seal to the instrument and the statute requires one, the instrument is not entitled to record, and a memorandum that there was no seal on the recording of the instrument would not aid the instrument. The record implies a seal as the instrument is not entitled to record where it is absent. It should be indicated in the record with a scroll. 128 Mich. 162. *2g Mich. 162. **I9 111. 486; 3S Ala. 23; I A. K. Marshall (Ky.), 306. ***i Johns. 288. 174 LAW OF REAL PROPERTY titled to record, and if not entitled to record the de- fective record was not a sufficient notice.* In some states a different rule prevails and it is held that when a valid instrument is left for recoid, and the person leaving the instrument has complied with all the requirements of the statute, and by reason of an error of the recording officer the instrument as recorded is defective, the error thus made will not be chargeable to the person having the instrument re- corded, and he is entitled to have the instrument give notice as it actually is and not according to the de- fective record.** Where the statute prescribed what formalities are necessary to^ the execution of a deed, as two witnesses, under seal and the like, a failure to observe these re- quirements make the instrument incapable of being recorded, and though recorded in fact it gives no no- tice to the public. The reason is that the provision for this constructive notice is ourelv statutory, and unless the requirements are observed the instrument not being entitled to record can gfive no notice. The object of recording laws is to give the public notice of the title to land within the jurisdiction cov^ ered by the recording office. But it is not made ex- clusive notice so that actual notice mav not be shown. A purchaser having no other notice than that of the record is entitled to rely upon it, if the instrument was entitled to record, as the statutes declare that every *5 Minn. 323; 13 Mich. 367; 6 McLean, 15; 14 Mich. 361. **I9 111. 486; 35 Ala. 23; I Marshal (Ky.), 126. LAW OF REAL PROPERTY 175 conveyance of real estate hereafter made which shall not be recorded shall be considered void or fraudu- lent against any subsequent purchaser in good faith and for a valuable consideration whose conveyance shall be first recorded.* Sec. 1549. PROOF OF TITLE FROM REC- ORDS. — Title to land may be proven from the records in two ways : i . The records themselves may be brought into court and introduced in evidence, which is the usual way where the records are of easy access. 2. By a certified copy of the records, which may be introduced with the same effect as the orig- inals. But if any of the records are of instruments which are not so executed as to be entitled to record, they cannot be admitted and have no effect, so that the chain of title would fail, as where the instrument has no seal, and one is required by the statutes. Sec. 1550. SUBSEQUENT PURCHASERS' RIGHTS. — The recording laws being for the protec- tion of subsequent purchasers, by providing a method by which any one may ascertain the true state of the title to any parcel of land, it is always held, that the holder of a prior unrecorded deed is defeated by the holder of a later deed procured in good faith and caused to be recorded before that of the other. But such subsequent purchaser in order to be protected must not only have no notice by virtue of the records, but must also be a bona fide purchaser for a valuable *42 Mich. 175; 47 Mich. 105. 176 LAW OF REAL PROPERTY consideration, and without actual notice of the prior deed. The party relying on the older deed must show that the subsequent purchaser had actual notice of his claim.* Sec. 1551. A MORTGAGEE IS REGARDED AS A PURCHASER UNDER THE RECORDING LAWS. — Within the meaning of all recording laws a mortgagee, or conditional owner, is regarded as a purchaser. At the common law a mortgagee was the owner of a conditiona! estate, that is, one liable to be defeated upon the happening of the event, or pay- ment of the sum designated prior to the day fixed. At the present time the title to the mortgaged prem- ises does not pass to the mortgagee by virtue of the mortgage deed, the mortgagee having simply a lien upon the land to satisfy or secure his loan. But, never- theless, within the meaning of the recording laws the mortgagee is regarded as a purchaser, and has the same rights as against subsequent purchaser as a grantee in a deed would have. In this regard some distinction is made between a mortgage given to se- cure a pre-existing debt, and one in which the con- sideration has been given at the time of the execution of the mortgage; the former not being regarded as a mortgage for value within the recording acts, while the latter is.** *22 Mich. 410; 47 Mich. 102; 36 Mich. 363; 59 Mich. 590; I Walker Ch. 263. Notice to the agent is held to be notice to the principal in such cases. 22 Mich. 268. **26 N. J. Eq. 44s; 65 N. Y. 167; 23 111. 579; 48 Miss. 268; 26 Mich. 410. LAW OF REAL PROPERTY 177 Where a mortgage is given and part of the money which it secures has been advanced to the mortgagor on the presumption that the title is all right, and be- fore the rest is paid, the mortgagee receives notice of a prior title — he is not justified in making any further payments to the mortgagor ; and if he does so his mort- gage as to such further payments will be regarded as subsidiary to the title of which he has received no- tice.* *24 Mich. 360; 14 Mich. 154; 52 N. Y. 136. LAW OF REAL PROPERTY 179 CHAPTER XVI. OF ABSTRACTS OF TITLE. Sec. 1552. IMPORTANCE OF SUBJECT.— One of the most important duties an attorney-at-law is called upon to perform is that of giving an opinion upon the title to real property. To be in a position to pass upon titles the lawyer should be familiar with both the common law and statute law as regards real estate, and especially that branch of the law which refers to the execution and recording of deeds and' mortgages and other instruments affecting title or con- stituting Hens thereon. While the statutes regarding the execution and recording of conveyances are very similar in the various states, they are not uniform. Sec. 1553. ABSTRACT OFFICES.— In all the older settled portions of our countrv. and in the coun- ties having a large population, the records have be- come so voluminous, that individuals or corporations have established what are known as. Abstract offices, which undertake, for remuneration, to furnish abstracts of title to real estate in the jurisdiction. In some cases these abstracts of title are guaranteed by the person or company making them, and in the large cities this class of work is done almost solely by the large corporations, who guarantee the abstracts they furnish. The value of such abstracts depend wholly upon the care with which they are made. And, as a iSo LAW OF REAL PROPERTY general rule they are unreliable, because they are not full and complete enoug^h. Thev are of assistance in examining the title by one who desires to go to the original records. When such an abstract is given an attorney to base his opinion of the title to the land thereon, he should state that the opinion is based only upon the conveyances shown in the abstract. If the client desires a correct opinion, the lawyer should use the abstract simply as an index to the records to be examined, and frame his opinion from a careful ex- amination of the original records and upon the legal sufficiency of each convevance therein. Sec. 1554. METHOD OF EXAMINING TI- TLE. — When called upon to investigate the validity of a title it is always advisable to procure an abstract of the title as a foundation for the work. Then write out carefully a description of the property, the title to which is in question. This description should be com- pared with each description in the line of conveyances to ascertain if the land is included therein. If it is a description by metes and bounds a diagram of the property showing the direction and distance of each line will be helpful. The descriptions will often be found imperfect and impossible ones, and incomplete in giving all the boundaries, and these defects should appear in the abstract, and be rectified if possible. In tracing the title from the original grant, the ab- stractor may trace the title from the original grantor without any reference to any incumbrances placed upon the land by the various owners while in their posses- LAW OF REAL PROPERTY i8i ion, and then afterwards make an independent ex- amination of these liens. Or, he may trace both the title and the liens thereon at the same time from the original grantor, step by step. When an undischarged lien is discovered, the ques- tion arises as to whether or not it may be outlawed. If not, it is a cloud upon the title. When there is an uninterrupted chain of title from the original grantor to each successive grantee, and the title has been transferred inter vivos by deed, the trac- ing of the title is very simple. But this is not usually the case, and it will be found that the property has been sold through the probate court or on execution to sat- isfy debts. In such a case it may be necessary to ex- amine into the jurisdiction of the court, and the pro- ceedings had, to ascertain whether they are regular and in accordance with law, and whether the sale of the property was regular and according to the order issued. While the middle names of the various grantors do not matter, yet it is important to see that the first name is the same as that of the party to whom the property was deeded. The abstractor should examine each deed to ascer- tain if it has been properly executed and acknowl- edged in accordance with the law in force at the time of its execution, which may involve the question of satisfying the law as regards revenue stamps. The covenants of the deed should be examined also to as- certain if any easements are outstanding. As to the dower interest of the husband or wife. i82 LAW OF REAL PROPERTY the deed, unless executed by both husband and wife, may be subject to an outstanding dower interest. And this is so though the acknowledgement recites that the grantor is single, since such a recital is no part of the deed. The abstractor must ascertain whether or not the grantor was single at the time or not, and if he does not know, the fact should be so stated in the ab- stract. When there is a break in the title caused by the death of the owner and the sale of the property, or its distribution under the laws of descent to the heirs, it may be necessary to examine the records of the pro- bate court with reference to the number, names and ages of the heirs, where the owner died intestate. Be- cause if the owner died intestate his lands are divided among his heirs according to the provisions of the stat- ute, each in his proportionate share. And where some of the children are dead and left issue, the issue will inherit under the statute. Where the owner leaves a will, and it is not contested, the land passes according to the provisions of the will. Where the property of an intestate owner has not been sold the abstractor will often find that it has been partitioned, in a legal proceeding, among the heirs. When this is the case it is necessary to see that the proper steps have been taken, and that the property was by this proceeding given to the person through whom the title comes. But as the lands of a deceased owner pass to the heirs without administration or other proceeding, it may be sufficient if they have simply united in a transfer to the next grantee. LAW OF REAL PROPERTY 183 Where there has been no probate proceedings, then the abstractor must ascertain whether or not there has been any other judicial determination as to the num- ber of heirs. By statute persons interested in the land may institute proceedings in order to determine who are the heirs of a deceased person where there is any doubt about it. In all such cases the abstractor should note the number of heirs that were named, and state that the record does not disclose whether there are any more heirs or not. The break m the chain of title may be occasioned by a foreclosure of a mortgage, in which case the ab- stractor should see that the proceedings complied with the statutes governing foreclosures, as to advertising the sale and the like, for if these have not been com- pHed with, the sale is void, and no title passes to the purchaser, unless he has gone into possession and re- tained such possession the statutory period to obtain title by possession. In case there has been a foreclosure in equity, the abstractor should ascertain whether the court has ac- quired jurisdiction of the person made defendant, for if it has not the proceedings are void. So in all cases where the title has been transferred by an attorney in fact, it should be seen that the power of attorney has been properly executed, and that the attorney in fact exercised the power given, and no other. Both the power of attorney and the deed should be recorded. In tracing the incumbrances and liens placed upon i84 LAW OF REAL PROPERTY the title by the various owners, the abstractor may have more difficuhy than tracing the title proper. If there is a mortgage upon the land, and it has been paid, it should be discharged of record, or it still shows as an outstanding obligation, and constitutes a cloud on the title. It will be found that a great num- ber of mortgages have been paid and satisfied in fact, yet have never been discharged or entered on the rec- ord as satisfied. Thus a party owing a mortgage will pay same and neglect to have the proper entry of the cancellation of the mortgage put upon record. Such mortgages may be subsequently discharged by the mortgagee entering upon the record that the mortgage is discharged ; or the mortgagee may execute a release of the mortgage under seal and have it recorded. But where the mortgagee is deceased and the mortgage with the satisfaction is lost, suit to remove the cloud from the title may be necessary. Where the land has been sold under an execution, it should be ascertained from the records whether there has been a valid judgmerit rendered, for without this there can be no valid execution and sale. If there is an execution levy it must be enforced in most states within a certain number of years, and in all states within the life of the judgment. The abstractor is also required to examine what taxes have been assessed against the land, and whether there are any outstanding tax titles. Also ascertain if any special assessments or taxes have been levied for municipal purposes if the land is situated in a city or town. LAW OF REAL PROPERTY 185 Sec. 1555. LIABILITY OF EXAMINER OF TITLE. — One who makes an examination of title to land, and gives a certificate as to it, is not an insurer of the title; but becomes responsible for mistakes made through ignorance or want of care and legal knowl- edge. The general rule being, that one who holds him- self out as capable of doing certain work, must possess the ability and exercise the care required, and is re- sponsible for injury sufifered by reason of his inability to do so.* *7o 111. 268; 4 Mo. App. 108. COMMON LAW PLEADING 187 BOOK 11. THE PRINCIPLES OF PLEADING IN CIVIL ACTIONS AT COMMON LAW. CHAPTER I. THE SUBJFXT INTRODUCED. Sec. 1556. ■ IMPORTANCE OF THE STUDY OF THE EARLY ENGLISH COMMON LAW PLEADING.^ While the early common law system is no longer in use in an unmodified form, yet it is vitally connected with the development of American and En- glish law to-day, and its study must ever be the foun- dation of a legal education. The remedial law of En- gland was developed and enlarged through the me- dium of special pleading, so that the advances in the conception of rights are frequently associated with, if not the direct result of the like advances in the forms of pleading. Again, the study of the common law system of spe- cial pleading is not only essential to the correct under- standing of the historical development of the common law, but it is likewise an admirable and beneficial aid in intellectual training. It is said that no one can be a strong lawyer who has not, in addition to natural or acquired logic, a clear knowledge of the logic of the i88 COMMON LAW PLEADING law, and special pleading is regarded as the logic of the law.* So issues cannot be properly presented for decis- ion, either by court or jury, unless, in the first place, the litigants through their counsel, are capable of clearly conceiving the proposition of fact or of law upon which their claims rest. There must be a lucid and concise expression of those propositions. Such expressions must be relevant, and, so far as possible, single. After the propositions have once been stated, there must be no departure from them. A litigant must be compelled to pursue a definite and consistent course from the time he comes into court until he obtains his judgment. All of this, and much more, the litigant or his counsel acquires from the rules and principles of special pleading, developed by centuries of experience in the trial of causes at the common law. Under modern code pleading the tendency is away from special pleading, but the rules there de- vised for the development of a single and plain issue of law or fact must ever be regarded. And while the mistake of the pleader may now be easily remedied by amendment, and the consequences of the mistake are not so serious as at common law, yet it behooves the pleader to be familiar with the rules of pleading for his reputation's sake. Sec. 1557. OF REMEDIES AND THEIR AP- PLICATION. — The vital principle of all systems of *Perry's Common Law Pleading, 2-4. COMMON LAW PLEADING i8y laws is that a remedy must be given for every violation of right. But it is only for the violation of a legal right that a remedy or remedies are given. One may suffer great loss, or moral injury, and yet have no legal right violated for which he could have relief or vindication. In such cases it is said to be damnum absque injuria, and before any remedy will exist resort must be had to legislation to cover the particular case, and when they sanction the right, they do so by pro- viding a remedy for its infringement. In a state of nature, where neither rights or reme- dies are recognized, that is, rights and remedies as en- forced by law, each individual would undertake to re- dress his own wrongs and protect his rights. This method of redress by the individual's own act is still permitted to some extent, and is called self-help. This sort of help or remedy may be classified as, i : By the sole act of the party injured. 2, By the joint act of all parties concerned. By reason of the violence with which the redress of wrongs by individuals has always been accompanied, the progress of civilization has been marked by the restrictions placed upon this sort of remedy and the enlargement of the class of remedies applied through the instrumentality of persons not interested in the injury, as tribunals and judges, estab- lished for the purpose. Self-help by the act of the party injured is still permitted to some extent, thus a party is allowed to do certain things in self-defense. This includes not only the defense of one's person, but also the mutual and igo COMMON LAW PLEADING reciprocal defense of such as stand in the relation of husband and wife, parent and child, and master and servant. But the resistance must not exceed the bounds of mere defense and prevention, as otherwise the defender would himself become the aggressor. Recaption of persons or goods is another right which a person may employ, when he has been de- prived unlawfully of his goods, or is wrongfully sep- arated from his wife, child or servant. The recaption must not be in a riotous manner nor attended with a breach of the peace. So a person may enter upon lands, the possession of which has been unlawfully taken away from him, but such entry must likewise be peaceable. A person may also abate nuisances, provided it can be done without a riot or breach of the peace. An individual has also a remedy by distress, which is the summary taking of personal chattels out of the possession of the wrongdoer into the custody of the party injured, to procure a satisfaction of the wrong committed. Thus, at the common law, a distress might be taken for, non-payment of rent in arrears ; neglect to do suit to the lord's court, or to perform certain other personal service ; for amercements in a court- leet; for injury by beasts wandering about damage feasant; and for certain penalties prescribed by act of Parliament. The distrainor could only take the chattel into custody, and was not permitted to make any use of it, and was obliged to take reasonable care of it. He was in a sense an officer of the law, and as such COMMON LAW PLEADING 191 held the chattel to answer the damage done. If the distress was illegal, the distrainor made himself liable to the owner in an action at law. Self-help by the joint act of all parties concerned, includes : 1. Accord, or commonly called accord and satis- faction, by which is meant an agreement between the parties that the wrongdoer shall do or give to the party mjured something in satisfaction of the injury, which agreement is followed by due performance. This performance duly accepted effaces the injury. 2. Arbitration, by which is meant the submission, under mutual agreement of the parties, of the contro- versy to two or more persons mutually agreed upon, called arbitrators, who are to decide it. The decision of the arbitrators, called the award, effectually deter- mines the rights of the parties, except that it cannot transfer title to realty. But in such cases, as well as in many others, the parties give bond to perform the award, and a failure to do so is a breach of the bond. There are two remedies which come about by the sole operation of law. These are : I. Retainer, by which a creditor who has been made executor or administrator of his debtor's estate, is entitled to retain so much of the estate as will satis- fy the debt owing to hirnself before he pays any debts of equal or inferior grade. The reason for this was that the administrator could not sue himself, and there was no one else to whom he might look for the satis- faction of his claim. T92 COMMON LAW PLEADING 2. Remitter, by which is meant that where one is \vrongfully in possession of land or other realty, under a defective title; or is out of possession though hav- ing a good title, and subsequently gets a good title, or gets possession under a defective title, by operation of law the title is remitted or sent back to his more perfect title, and the imperfect one disappears. Sec. 1558. OTHER REMEDIES ARE AP- PLIED THROUGH THE INSTRUMENTALITY OF COURTS. — Where for the redress of an injury there is required the concurrence of the act of the' party or parties, and the operation of law, courts are required. A court is an institution of the state the pur- pose of which is to ascertain facts material to the con- troverted rights of parties, and to pronounce the legal effect of those rights. The interposition of the court or courts is secured by means of an action or suit, which is "nothing else but the demand of right", or a proceeding by which is sought the decision of the court of justice upon a right litigated between the parties.* The act of at least one of the parties litigant is re- quired to set the law in motion, and the process of the law is usually the only instrument whereby the parties are able to secure certain and adequate redress of in- *This definition is from the Mirror, a very ancient legal treatise. An action is also defined as, "that formal course 01 proceeding, which a person seeking to enforce a right, is by law bound to adopt." "Action at Law," J. W. Smith, 41. COMMON LAW PLEADING 193 juries. Even where the law allows an extra judicial remedy, the ordinary remedy awarded by the court is not excluded. Sec. 1559. CLASSIFICATION OF COURTS AS REGARDS THE KEEPING OF RECORDS.— Courts may be regarded as of two classes as regards the keeping of their records. These are: i. Courts not of Record. 2, Courts of Record. 1. A Court not of record is one of whose proceed- ings no solemn contemporaneous minute is made by a sworn officer. Its proceedings are not enrolled or re- corded, and they are regarded as matters of fact to be tried and determined by a jury, if a dispute arises ccn- cerning them. 2. A court of record is an organized judicial tri- bunal, having attributes and exercising functions in- dependently of the person of the magistrate designated generally to hold it, and proceeding according to the course of the common and statute law. The acts and judicial proceedings of such courts are recorded for a perpetual memorial. The records are called tlie rec- ords of the courts, and import absolute verity. Noth- ing can be averred against Ihem, nor shall any plea, or even proof be admitted to the contrary. If the exist- ence of a record be denied it shall be tried by itself, that is, by an inspction thereof by the court to ascer- tain whether or not it is a properly authenticated rec- ord. Sec. 1560. CONSTITUENT ELEMENTS OF A COURT. — Every court is composed of at least three 194 COMMON LAW PLEADING constituent elements, as follows: i, The actor or plain- tiff, who complains of an injury done. 2, The reus, or defendant, who is called upon to make satisfaction for it. 3, The judex, or judicial power, who is to ex- amine the accusation, to determine the law applicable to the premises, to find whether or not an injury has been done, and if so to ascertain, and by proper offi- cers and machinery apply, the remedy. Anciently rights and remedies were mere incidental results of form and procedure, but as systems of law developed, substantive rights and duties grew in im- portance, and mere form became of less significance, until now in the most highly developed systems of law, form is regarded only sufficiently to secure con- venience and certainty in the administration of law and justice. Sec. 1561. JUDICIAL MACHINERY UNDER THE ANGLO-SAXONS.— The Anglo-Saxon pro- cedure in administering justice was very completely decentralized. The several counties of the kingdom each did separately and finally its own judicial work. Appeals were discouraged, and the administration of justice was crude and simple. At the head of each county, or shire, was a judicial officer called the "Shire-reeve," of whom our Sheriff may be regarded as the lineal descendant. Sec. 1562. THE ADVENT OF THE NOR- MANS IN ENGLAND INTRODUCED A CEN- TRALIZED JUDICIAL SYSTEM.— With the ad- vent of the Normans in England led by William the COMMON LAW PLEADING 195 Conqueror, was introduced a highly centraHzed sys- tem of tribunals for the administration of justice, in which the Grand Justiciar controlled absolutely. The Conqueror proceeded cautiously with the introduction of his system, not depriving the Anglo-Saxon tribunals of their jurisdiction, except as to criminal ofifenses of the clergy, and made it profitable for litigants to come into his court through the introduction of appeals from the lower court. The Wittcna gemote, or coun- cil of wise men, of the Anglo-Saxons, was superseded by his highest court, called the Curia Regis, or King's court. This was attached to the king's person, was held in his palace, and followed him wherever he went, being the embodiment of royal justice administered by the king in person. This court had unlimited juris- diction, and entertained appeals from all inferior courts. Sec. 1563. ORIGIN OF THE COURT OF EX- CHEQUER.— From about 1 100 A. D., the Court of Exchequer appears as a distinct court. This court was composed of some of the king's principal officers of finance, and sat to receive the sheriffs and all other accountants and collectors of the crown, and to give acquittance to those who paid, and to issue writs and orders to enforce payment from those in default. By the development and use of various fictions the juris- diction of the court became extended until it tried al- most all classes of controversies between even private suitors. 196 COMMON LAW PLEADING Sec. 1564. INSTITUTION OF JUSTICES IN EYRE AND ASSIZES.— As the superior efficiency of the Curia Regis became recognized, it came to be overrun with suitors, so much so that in 1 170 King Henry II. appointed justices to go about the kingdom and hear complaints in the various counties or dis- tricts. These justices were called Justices in Eyre, and this was the origin of the judicial circuits which continued from this time on. Henry II. also insti- tuted the Assizes, whereby litigants were enabled to escape the jurisdiction of the local court, with its or- deal of battle, and refer themselves to the judgment of the king's justices for the trial of their causes. Sec. 1565. ORIGIN OF THE COURT OF COMMON BENCH OR COMMON PLEAS.— The increase of suitors in the Curia Regis increased the in- convenience caused by the court's following the king from place to place, and became a subject of great complaint, so that in 12 15 King John was compelled to promise among other things in Magna Charta, that common pleas shall no longer follow the Court, but shall be held in some place certain. Thus arose the Common Bench, or Court of Common Pleas, which was established and held at Westminster, and there re- mained until the consolidation of the English courts under the Judicature Act of 1873. Sec. 1566. THE COURT OF KING'S BENCH. — ^The great, and to some extent, arbitrary powers of the king's chief justices caused much dissatisfaction. COMMON LAW PLEADING 197 In a contest between rival chief justices, as a result of which both lost their offices, one by death, the other by resignation, the Curia Regis lost its administrative functions. No successors to the chief justices were appointed, but instead a chief justice for holding pleas before the king, from which arose the court of King's Bench, about the year 1268. Itinerant justices, or Justices in Eyre, were first appointed in 1170, and in 1179 all England was di- vided into four circuits, and five justices were ap- pointed for each. These included the six justices of the Curia Regis. About this time trial by inquest, the origin of the present jury trial, and the great Assize were introduced. By means of the itinerant justices and the Assizes all issues of fact involved in the royal courts at Westminster could be determined in the re- spective counties where the causes arose, thus avoid- ing the expenses of taking the witnesses and jurors up to Westminster. The verdicts rendered in the several counties at tTie assizes were certified back to the ap- propriate Westminster courts for judgment, thus keep- ing the administration of judicial matters as complete- ly centralized as when first introduced by William. After 1335 no more Justices in Eyre were appointed, circuits were thereafter perambulated by the judges of Assize and Nisi Prius (unless sooner), the latter so called, because the writ to the sheriff of the county wherein the cause arose commanded him to have at Westminster on a day certain, a jury of the body of his county for the trial of the cause "unless sooner" igS COMMON LAW PLEADING the court or some of its judges went down to the county there to try the question of fact. Sec. 1567. JURISDICTION OF THE COURT OF KING'S BENCH.— The Court of King's Bench was the remnant of the Curia Regis. Like that great court, it purported to be presided over by the king in person, although for centuries the king took no part in its deHberations. It possesses the residuum of the ancient jurisdiction of the Curia Regis which was not allotted to the other courts. Its jud;';es are by their ofHces the sovereign conservators of the peace, and it has thus jurisdiction of all criminal matters, and all civil actions where the wrong alleged is criminal in its nature, as trespass, or other injury vi et armis, con- spiracy, deceit, and the like. By fictions it extended its jurisdiction to almost all cases except those involving title to land. It is a court of record, and also a court of appeal into which may be removed, by writ of error, all judgments of the Common Bench, and of all infer- ior courts of record in England. It also superintends all civil corporations, and commands by mandamus magistrates and others to do what their duty requires in every case where there is no other specific remedy. Sec. 1568. JURISDICTION OF THE OTHER COURTS. — The Common Bench or Court of Common Pleas, is a court of record. It was originally the great common law tribunal which acquired exclusive juris- diction of pleas or causes between subject and subject or private persons. It also retained its exclusive COMMON LAW PLEADING 199 jurisdiction of real actions, and was styled the lock and key of the common law. The Court of Exchequer was a court of record, and was originally concerned with the accounts of the king's collectors, but enlarged on this jurisdiction in matters of accounts and the like. The Court of Exchequer Chamber was an exclu- sively appellate court, composed of the judges of any two of the great Westminster Courts, sitting to revise judgment of the third. The House of Lords is the supreme judicial tribu- nal of England. It is the court of last resort in all civil actions. When sitting as a court, only those peers sit who are versed in the law, known as the "Law Lords," many of whom have filled high judicial sta- tions, and in many cases have been advanced to the peerage by reason of their high eminence in their pro- fession. Among the courts not of record, below the Com- mon Bench, may be mentioned, the County Court, which was a court incident to the jurisdiction of the sheriff. It could hold pleas of debt or damages when the amount involved was under forty shillings. Be- low this was the Hundred Court, the Court Baron, and the Piepoudre court, all of which are fully explained by Blackstone.* Sec. 1569. CONSOLIDATION OF THE EN- GLISH COURTS BY THE JUDICATURE ACT. — In 1873 the English courts of common law, and all *3 BI. Com. 32-58. 200 COMMON LAW PLEADING the superior courts were merged into a Supreme Court of Judicature, which consisted of two permanent di- visions, as follows : The High Court of Justice, and the Court of Appeals. An appeal will lie from the High Court of Justice to the Court of Appeals, and from the Court of Appeals to the House of Lords. In the House of Lords, appeals are heard before the Lord Chancellor, Lords of Appeal in Ordinary, and those peers who have held high judicial offices, and not by the entire body of peers. Three Lords of Appeal must be present to hear every case. The High Court of Justice has original jurisdiction with appellate jurisdiction from the inferior courts. It consists of five divisions, as follows: i. The Chan- cery Division. 2, The Queen's (or King's) Bench Di- vision. 3, The Common Pleas Division. 4, The Ex- chequer Division. 5, The Probate, Divorce and Ad- miralty Division. In 1881, the Queen's Bench, Common Pleas and Exchequer Divisions were united into one court, called the Queen's Bench Division, so that at the present time there are in England this court, and the two oth- ers above mentioned, with the Court of Appeals and the House of Lords. Sec. is69a. ORGANIZATION OF COURTS IN THE UNITED STATES.— In the United States the courts may be divided into two classes: Federal Courts, and State Courts. The first organized under acts of Congress by the National Government, and the others by act of the various legislatures under the COMMON LAW PLEADING aoi State constitutions. These courts have been already considered in Volume II of The Home Law School Series, under the subject of Constitutional Law. Sec. 1570. OF THE VARIOUS KINDS OF JURISDICTION. — ^Jurisdiction means the power to adjudicate, or the power to hear, investigate and de- termine a cause of action. So that when it is said that a court has jurisdiction it means that it has power to entertain the suit and decide it. The jurisdiction of our courts is determined by the Constitution and the Legislature. The jurisdiction of courts may be classi- fied as follows: i, Original. 2, Appellate. 3, Exclu- sive. 4, Concurrent. 5, General. 6, Special, 7, Lim- ited. 8, Territorial. 1. Original jurisdiction is that which is invoked at the commencement of a suit, and is distinguished from — 2. Appellate jurisdiction, which reviews, corrects, and revises the proceedings in a cause already begun in some other court. 3. Exclusive jurisdiction is where the considera- tion of the subject matter belongs solely to the court exercising it, or which gives to one tribunal the sole power to try the cause. 4. Concurrent jurisdiction is that which is pos- sessed over the same parties or subject matter at the same time by two or more separate tribunals. In such cases the court first exercising the jurisdiction tries the cause. 5. General jurisdiction is where the courts enter- 202 COMMON LAW PLEADING tain jurisdiction of all matters of a civil nature, even if they be limited as to parties. 6. Special jurisdiction means that the courts hav- ing it can only take jurisdiction upon the special mat- ters which the statute has specially conferred upon them, and the statute itself defines these special mat- ters. 7. Limited jurisdiction, where the courts are gen- erally limited and confined by the subject matter, or the character of the subject matter, or by the parties. 8. Territorial jurisdiction means the limitation of the court's jurisdiction as regards the extent of ter- ritory within which it is to be exercised. In England the courts having appellate jurisdic- tion were : the King's Bench, Exchequer Chamber, and House of Lords. In the United States appeals lie from the common pleas court to the higher courts in their respective or- der. Sec. 1571. SCOPE OF THE SUBJECT OF PLEADING. — The word plea, or pleading, is used in various significations ; thus it may mean to litigate or carry on a suit or action. In a stricter sense it means that part of an action consisting in the allegations of the respective parties. And in a more strict sense to make an allegation of fact in a cause. And in its most limited sense, a plea is the allegation of fact made by the defendant as an answer to the declaration of the plaintiff in an action. But the expression, pleading, as a branch of the law, or when coupled with the word COMMON LAW PLEADING 203 practice, as pleading and practice, means more than the draughting the usual forms of written statements of the respective parties in a suit ; more than the state- ments themselves, and the oral advocacy of a cause in court, and may be said to include the whole science of conducting a cause from its commencement to its fin- ish ; thus the selection of the proper tribunal, with the requisite jurisdiction; the choosing of the appropriate form of action ; making of the essential allegations to .constitute the wrong complained of or a good cause of action ; the application of the rules of correct plead- ing in the formulation of the issue to be submitted to the tribunal,' as well as the observance of the various rules of court providing the method of commencing, conducting and terminating a suit at law. Sec. 1572. AUTHORITIES ON THE SUB- JECT OF COMMON LAW PLEADING.— The rules of the common law applicable to pleading are recognized in every state where the common law sys- tem still prevails, and are the basis of all pleading, even under the Civil Codes, which abolish special forms of action and otherwise simplify the method of procedure in the trial of a cause. Hence we find the English authorities on common law pleading, with American notes, among the leading authorities here. Among these may be mentioned the works of Chitty and Stephen ; the former work having reached its i6th American edition, and the latter being re-edited by a number of authors, as Heard (1867), Tyler (1871), Andrews (1901). Books of practice with rules of 204 COMMON LAW PLEADING pleading and forms are to be found in almost every state, and these, on account of being particularly adapt- ed to the special practice prevailing in the state, are usually purchased by the profession. It is unneces- sary to name these authors here, as their works may be found by reference to any law publisher's catalogue. An Encyclopedia of Pleading and Practice, in twenty- three volumes, is published by the Edward Thompson Company. In the Code States, that is, those states having adopted the code of civil procedure, the subject of pleading is simplified by doing away with all special actions, and having but one form of action for all causes, styled a civil action ; providing that litigants be called plaintiff and defendant, and abolishing feigned issues. A number of authoritative books on Code Pleading have appeared, among which we mention those of Bates, Bliss, Abbott, Maxwell, Phillips and Pomeroy. COMMON LAW PLEADING 205 CHAPTER II. OF FORMS OF ACTION AT COMMON LAW, Sec. 1573. GENERAL CLASSIFICATION OF ACTIONS. — The most ancient classification of ac- tions is into real, personal and mixed. From the ear- liest times the actor or plaintiff had to make a state- ment of the~wrong complained of with a claim for redress in a civil action. These formal assertions came, at an early period, to group themselves into actions for a debt; actions for movables, and actions for real property. In addition there were those ac- tions which involved criminal matters, which were called pleas of the crown at common law, as distin- guished from civil actions, called common pleas. With the introduction of the Curia Regis of the Normans, jurisdiction was given by king's writ, which issued out of the Chancery, by reason of which the formal actions were added to, and yet the rigor of the previous actions were not lost sight of, and after a time the same system of precedents prevented the Chancellor or his clerks from issuing any but the formed writs, and this continued until the Statute of Westminster II. (13 Edw. I., Ch. 24) was passed au- thorizing the issuing of new writs. We shall first consider briefly the formed actions which had developed previous to this statute, and 2o6 COMMON LAW PLEADING which were divided into real, personal and mixed ac- tions. Sec. 1574. THE FORMED ACTIONS DE- FINED. — Real actions are those brought for the spe- cific recovery of lands, tenements and hereditaments. Personal actions are those bought for the specific recovery of chattels, or for damages or other redress for breach of contract, or for other injuries of any de- scription except those redressed in real actions. Mixed actions are those brought for both the re- covery of realty and damages for injuries sustained in respect of such property. Owing to the backward condition of commerce and manufactures in the early history of the law, land and its immediate products for a long time constituted al- most the entire body of wealth, so that real actions were of relatively greater importance than the others. Sec. 1575. KINDS OF REAL ACTIONS.— All real actions were at first included under the following divisions: I. Writs of Right, so-called. 2. Writs in the nature of Writs of Right. I. Writs of Right dealt not merely with seisin or possession of land, but with the jus, or right to its pos- session. They applied only to fee simple titles. The judgment in a trial of the writ of right was absolutely conclusive, so that the courts proceeded with great deliberation in such cases. Collateral proceedings were allowed, such as vouchers to warranty, by reason of which the actions sometimes extended over a great COMMON LAW PLEADING 207 length of time, and even beyond the hfetime of the plaintifif or demandant. 2. Writs in the Nature of Writs of Right were so called because some of them might be brought by a life tenant or a tenant in tail. But in many of such actions relief was sought for other things than injuries to the mere right to realty. As the Anglo-Saxon law h'ad no merely possessory action, the defect was remedied in the reign of Henry II, by providing the assise of novel disseisin in 1 166, which enabled the party disseized, regardless of the nature of his title, to recover the possession. Which writs were extended and made to lie in favor of the heir of the disseisee and against the heir of the disseisor. All of these writs were long since ren- dered obsolete by other remedies. Sec. 1576. KINDS OF MIXED ACTIONS.— The principal mixed actions are: i. Quare Impedit (wherefore he obstructed), by which, when the right of a party to a benefice was obstructed, he could re- cover the presentation. 2. Waste, by which the owner of land, could recover the land and treble damages for the injury committed thereto by the ten- ant. This action was largely supplanted by the equitable remedy by injunction, which was more effi- cient. Sec. 1577. KINDS OF PERSONAL ACTIONS. — There was little demand in early times for personal actions, as this was a sort of property that was not as common as at present. In addition the idea of a con- 2o8 COMMON LAW PLEADING tract as an agreement between the parties was not de- veloped. The fact that the minds of the parties had met in agreement was not of importance to them unless some overt and visible act or ceremony had taken place. The ancient contracts were real, in the sense that they depended upon a fact other than the agreement of the parties. Thus the recipient of a pledge was bound to hand it back, if within due time its owner came to redeem it. This was the pledgee's duty rather than his contract obligation. If the pledge was not restored, the owner would reclaim it on the ground that the other unjustly detained what was his, and not because he had promised to give it back upon the performance of the obligation, which had been fulfilled. Personal actions were regarded, there- fore, as largely ex delicto in character, although this division of actions into ex contractu and ex delicto, was not made until recent times. Of the ancient personal actions, five. Debt, Detinue, . Covenant, Account and Scire Facias, are said to come under our modern idea of actions ex contractu. While personal actions in tort or ex delicto, were Trespass and Replevin. Sec. 1578. SAME SUBJECT— DEBT.— In the action of Debt, the idea is that the creditor is being deforced of his money, just as the demandant who brings a writ- of right is being deforced of his land. The modern action of debt is lineally descended from the writ of right for money debt, and is therefore, in its origin, what that always was, a real action. Even COMMON LAW PLEADING 209 so late as 1300 the action of debt was rarely em- ployed save to obtain money lent, the price of goods sold, arrears of rent due upon a lease for years, money due from a surety, and a fixed sum due upon a sealed instrument. As the action is independent of what we designate as a contract, it can be used whenever a fixed sum is due from one man to another. As later developed the action of debt was employed to recover money in four classes of cases: i. On records, as upon the judgment of a court of record, a recognizance, a statute merchant, a sheriff's re- turn of fieri feci, upon which he had not turned over money collected. 2. On a statute prescribing a pen- alty. 3. On a sealed instrument. 4. On simple con- tracts and legal liabilities for a sum certain. But in none of these cases was the action of debt sustainable unless the demand was for a sum certain, or readily to be made certain by computation. The sum being certain, and for a debt, the damages recoverable were nominal, being usually confined to interest on the amount claimed. The declaration in debt, on a simple contract, must show the fact from which the duty to pay arises, and should state either a legal liability or an express agree- ment, though not a promise to pay the debt. On sealed instruments, records, the action is supported by the specialty or record, profert of which should always be made, or the omission explained. The con- trolling feature of the action of debt, is, an omission of duty on the part of the defendant in not paying a 210 COMMON LAW PLEADING certain sum of money, rather than for a breach of a contract to pay. Sec. 1579. SAME SUBJECT— DETINUE.— The action of detinue, originally identical with debt, slowly differentiated from it. In the writ or action of debt, the language used was, debet et detinct (owes and detains). It appeared to the legal experts that in some cases the word debet ought not to be used, as where a specific chattel had been loaned ; and where the original debtor or creditor had died, it was thought that simply detained covered the case better than owes and detains. In order that the proof might not differ from the facts stated in the declara- tion or pleadings, the action of detinue began to ap- pear, so that it soon became a rule that if a particular object was claimed, the pleaded never said debet, but only injuste detinet. It appearing that the idea of an obligation arising in contract began to be distin- guished from a duty to return a specific chattel. So that debt, in the sense of owing, as on a contract, was distinguished by a different action from detaining, which latter action became detinue. Detinue is the only remedy by suit at law for the recovery of a specific chattel in specie, except in those cases where replevin lies. It could not be main- tained to recover realty, and the goods and chattels for which it lies must be distinguished from others by some certain identification. One having the right of property in goods, and also the right of immediate COMMON LAW PLEADING 211 possession, may support this action although he has never had the possession. But if his interest be only in reversion, and he has not the right to immediate possession, he cannot sustain it. Detinue lies wherever a specific chattel is withheld by the wrongdoer, whether it was originally t^en lawfully or unlawfully. If the defendant claim that the goods were pledged to him as security for a loan still unpaid, or if he assert a lien of any kind on the goods, he must plead the same specially. The declara- tion should contain a statement of the plaintiff's right to the goods in question, describing them with such certainty as to identify them, and should aver that they are in the defendant's possession, that the de- fendant acquired such possession by finding the said goods, or by their bailment to him ; that he holds such possession subject to the plaintiff's right to have the same on demand, and that such demand has been made and refused. Then the value of the goods should be stated. Sec. 1580. SAME SUBJECT— COVENANT. — Covenant is the action brought for the breach of an agreement expressed in a deed, that is, a writing sealed and delivered. The agreement must be made in this formal way in order to be binding. The limi- tations upon the action of covenant were soon appa- rent, it could not be employed for the recovery of a debt, although the debt be attested by a sealed instru- ment, since a debt could not have its origin in a cove- nant, but must arise from some transaction as a sale or 212 COMMON LAW PLEADING a loan. Covenant is the only remedy at common law for the recovery of unliquidated damages for the breach of a contract under seal. And at the common law no person could support an action of covenant, or take advantage of any covenant or condition unless he were a party or privy thereto. The declaration in covenant must state that the contract was under seal, and should usually make profert of such contract or excuse the omission. If performance of a condition precedent is required, to establish, the plaintiff's right of action, such perform- ance must be averred. Only so much of the covenant as is essential to the cause , of action should be set forth, and that not in full but according to its legal effect. The breach may be alleged in the negative of the words of the covenant, or according to the legal effect. Several breaches may be assigned. Damages being the main object of the suit, they should be laid in a sum sufficiently large to cover the real amount claimed. Sec. 1 581. SAME SUBJECT— ACCOUNT.— In the action of account the defendant was called upon to render to the plaintiff justly, and without delay, a certain thing, to-wit: an account of his receipts and disbursements during the time he was the planitiff's bailifif, and, as such officer, receiver of his money. This obligation does not rest upon contract but upon a situation or relation. The court first found whether or not the relation existed and if so it rendered an interlocutory judgment, quod computet (let him ac- COiMMON LAW PLEADING 213 count). Then auditors were appointed who stated the particulars of the account. This action would lie only where the amount sought to be recovered was uncertain and unliquidated. It has been superseded, save in a very few of the States, by the equitable remedy for an accounting. Sec. 1582. SAME SUBJECT— THE WRIT OF SCIRE FACIES. — The writ of scire facias derives its name from two necessary words in the writ in the Latin form : "Quod scire facias praefat John Doe, quod sit coram," — "That you (the sheriff) shall cause the aforesaid John Doe to know that he must be before us, etc." Scire facias is an action which is always founded on a record, and the proper writ or action for enforc- ing compliance with all obligations of record upon which an execution cannot issue, whether by reason of lapse of time, change of parties, or their inherent nature. If the obligation imposed by the record be that of paying a liquidated sum of money, either debt or scire facias may be used. But if the obligation be of a different nature, scire facias is the only action which can be grounded upon the record. In aB cases where a new person, who was not a party to a judg- ment or recognizance, derives a benefit by, or becomes chargeable to the execution, there must be a scire fa- cias to make him a party to the judgment. Sec. 1583. SAME SUBJECT— THE FORMED ACTIONS IN TORT— TRESPASS.— Of the form- 214 COMMON LAW PLEADING ed actions in tort, or ex delicto, there were only two : Trespass and Replevin. According to the old common law a felony could be prosecuted by an appeal, that is, by an accusation in which the accuser must, as a general rule, offer bat- tle. The appeals de pace et plagis (of peace broken and blows given) became, or rather were in substance, the action of trespass, which is still familiar to the profession. The action of trespass is an attenuated appeal. The charge of felony is omitted ; no battle is offered, but the basis of the action is a wrong done to the plaintiff in his body, his goods, or his lands by force and arms and againsc ■^.he king's peace. It was because of the quasi-criminal character of this action that jurisdiction over it was asserted by the King's Bench, which court alone held Pleas of the Crown, or criminal causes. In course of time the cases of tres- pass grouped themselves into three great divisions. These were : I. Trespass de bonis asportatis, (for goods carried away), where violence was clone to the plaintiff's goods. 2. Trespass de clauso facto, (for a broken close) or quare clausum f re git (wherefore he broke the close) where violence was done to the plaintiff's land or things thereto attached. 3. Trespass vi et armis, or trespass by force and arms, where violence was done to the plaintiff's per- son. In the action of trespass, the intention of the wrong COMMON LAW PLEADING 21S doer is immaterial. The action cannot be maintained wliere the wrong complained of was a mere non feas- ance; or where the matter affected was intangible, as reputation or health, and so not capable of immediate injury by force ; or where the right invaded is incorporeal, as an incor- poreal hereditament of any sort; or where the plain- tiff's interest is in reversion and not in possession ; or where the injury was not immediate but only conse- quential; or where the act complained of was not the direct act of the defendant, but of his servant in the course of his employment ; or generally, when such act was not unlawful in its inception. In such cases force does not actually exist, and cannot be implied, and the idea of force is an essential element in trespass. Trespass de bonis lies for a forcible injury to the possession of goods affected, and is sustainable by one who had at the time of the injury the right to im- mediate possession as against the trespasser. Posses- sion being implied in one who has the power to assume immediate control over property. Trespass is also the proper remedy to recover dam- ages for an illegal entry upon, or an immediate injury to, corporeal real property in the possession of the plaintiff. The gist of the action being the injury to the possession of the realty, unless at the time of the injury being committed the plaintiff was actually in possession, he cannot maintain the action. Trespass for an injury to realty can only be supported when the injury is immediate, and was committed with force 2i6 COMMON LAW PLEADING actual or implied. And though the original entry of a party be lawful, yet a subsequent abuse by him of the authority conferred will make the party a trespasser from the beginning. Trespass may be supported for injuries inflicted by the defendant's animals, if they were known by him to have proclivities for such acts. The declaration in trespass should contain a con- cise statement of the injury complained of, and should always allege that such injury was committed by force and arms, and against the peace (^vi et armis and contra pacem). Sec. 1584. SAME SUBJECT— REPLEVIN.— Replevin is an action by which where goods have been illegally distrained, or were charged to have been il- legally detained, their owner could at once regain pos- session of them. This was its peculiar characteristic. But before the plaintiff could get this writ of replevin, he was required to give security that he would prose- cute the action against the alleged tortious taker to determine the right to the chattel, and if the right should be determined against him, the plaintiff, to re- turn them to the taker, the defendant in the action. If the sheriff made return to this writ that the defendant had eloigned (removed afar off) the chattels, or that they were dead, or the like, then the plaintiff could have a capias in withernam (you shall take as a fur- ther distress), authorizing the sheriff to seize so many of the defendant's cattle as were equivalent in value as those distrained. In his declaration the plaintiff COMMON LAW PLEADING 217 alleged if he had recovered his chattels, that the de- fendant had detained (detinuit) them, and could re- cover damages only for the detention; but if he had not recovered his chattels, then he alleged that the defendant detains (detinet) them, and he could re- cover damages not only for the detention, but also for the value of the goods. These forms were called respectively, replevin in the detinuit, and in the de- tinet; and if only a part of the goods were recovered the action was in the detinuit as to them and in the detinet as to the others. Replevin can be supported only for taking a per- sonal chattel, and not for an injury to things affixed to the freehold. The plaintiff must at the time of the tortious taking have had either the general property in the goods taken or a special property in them as bailee, pawnee, mortgagee, or the like. Replevin can- not be supported if the plaintiff have not the right of immediate possession, and at the common law it lay only for an unlawful taking. In this action both par- ties are considered as actors or plaintiffs. The de- fendant, having distrained, is called upon to justify his action. This he does in his plea, which, as it con- tains the defendant's justification and presents the real question to be tried, that is, the legality of the distress, is essentially a declaration, and the plaintiff's replica- tion a plea; so that, in this action the pleadings are all postponed one step. Instead of justifying the de- fendant may deny the taking of the chattels as alleged, or may claim property in them. The action is local 2i8 COMMON LAW PLEADING and the declaration must have certainty of place and description, as well as the number and value of the goods taken. The judgment, when for the plaintifif, is that he recovers his damages and his costs ; when for the defendant, at common law, it was pro retorno habendo (to have a return) to him of the goods taken in replevin. Sec. 1585. INADEQUACY OF THE FORMED ACTIONS. — These formed actions were in many- ways inadequate. Thus they afforded no remedy for injuries to incorporeal hereditaments ; nor for the en- forcement of an agreement not under seal ; nor for in- juries to reputation; nor to health; nor for acts of omission, of negligence, or of deceit; nor for viola- tion of personal rights not in possession. So the reme- dies for debt not evidenced by judgment or sealed in- struments, or based on a statute, and for the specific recovery of chattels, were miserably inadequate. Sec. 1586. ENLARGEMENT OF REMEDIES BY STATUTE OF WESTMINSTER II.— To remedy some of the defects of the formed actions, the famous statute of Westminster II (13 Edw. I, Ch. 24), was passed in 1285 ; authorizing the chancery to frame new writs {de consimili casu) in cases similar in principle to the old. Thus writs of trespass on the case began to appear. They stated a ground of com- plaint analogous to, but not quite amounting to a tres- pass as sued for in the old writs. Such a wrong was called a trespass on the case because the writ was very COMMON LAW PLEADING 219 like a writ of trespass, and tlie facts constituting the cause of action were set out quite fully, so that the plaintiff's case appeared in considerable detail in the writ. Sec. 1587. ACTIONS FOR TRESPASS ON THE CASE. — Actions on the case lie generally to re- cover damages for torts not committed with force actual or implied, as was required in the original tres- pass writs; or for acts committed by force when the thing is intangible; or when the injury is indirect and only consequental ; or where the interest in the prop- erty affected is only in reversion ; or where the wrong- ful act is done not directly by the defendant but by his servant in the course of the master's business' even without his authority. So the action on the case is the proper form of action for the wrongful and mali- cious use of legal process, for injuries to health and reputation, for misfeasance, for seduction, criminal conversation, and the like. It is also the proper action for fraud, misrepresentation and deceit, independently of written contract. The declaration in an action on the case ought not to allege the injury to have been committed vi et armis, nor should it conclude contra pacem. In other points the form of the declaration depends upon the particu- lar circumstances on which the action is based, and consequently there is a greater variety in this than in any other form of action. Sec. 1588. ASSUMPSIT.— In 1520 it was first decided that under the Statute of Westminster II, al- 220 COMMON LAW PLEADING lowing new writs in like cases, that one who sold goods to a third person on the faith of the defendant's promise that the price should be paid, might have an action on the case on such promise, thus introducing the whole law of parol guaranty. It was speedily recognized that cases in which the plaintiff gave his time or his labor were as much within the principle of the new action as those on which he parted with his property. The line of thought on which these re- sults were reached seems to have been developed through the following steps ; the action on the case lay originally for a inal feasance, and without much diffi- culty it was extended to mis feasances, and finally, after a long struggle, it was extended to purely non feasances. In this form it was applied to executory contracts not under seal-, and thus became established the action of special assumpsit. Every such contract required a consideration to support it and render it enforceable. The next step was taken in 1609 when the courts introduced or admitted the idea of an implied promise, as when the defendant received and accepted goods from the plaintiff under circumstances negativing the idea that a gift was intended, he was held to have im- pliedly promised to pay what they were reasonably worth. This action on an implied promise is general assumpsit, and this form of action is also applied to quasi-contracts, which in truth are not contracts at all, but merely certain obligations, largely equitable in their nature, that the law courts enforce under the COMMON LAW PLEADING 221 form of a contract action as the action for the recovery of money paid under a mistake of facts. The action of assumpsit upon parol contracts came in time to be regarded as contract actions, but they had the marics of their ex delicto origin strongly im- pressed upon them. The plaintiff declared, that "the said defendant, not regarding his said promise, but contriving and fraudulently in- tending, craftily and subtly, to deceive and defraud the plaintiff, etc." In this action, after verdict, the judgment could not be arrested merely because the defendant had pleaded "not guilty," as there was a deceit alleged. As developed, the action of assumpsit (he under- took) became the characteristic remedy for the re- covery of unliquidated damages for the violation of an express contract not under seal, or of a promise im- plied by law from an executed consideration or f rorri , a legal duty. If the action were based upon an ex- press promise, it was special assumpsit, otherwise it was general assumpsit. Assumpsit cannot be based upon an obligation created by a sealed instrument or based upon a record, although the fact that the obligation is collaterally secured by such deed or record does not prevent bring- ing assumpsit upon the main obligation. Nor can assumpsit be brought upon facts excluding the idea of contract, except in those cases coming under quasi- contract. General assumpsit, or the Common Counts, as they 222 COMMON LAW PLEADING are commonly called, cannot be supported by proof of a special executory contract, for the law will not imply a promise where an express promise exists. But if the contract has been fully executed by the plaintiff, he may introduce under the common counts, evidence of the work and labor he has performed, the materials he has furnished, the money he has loaned to the defandant, and the like. So, also, if the special contract is void, or has been abandoned, or if abandon- ment by the plaintiff is justifiable, general assumpsit may be brought. The common counts, so called, were for money paid to the defendant's use ; for money had and re- ceived by the defendant under circumstances impos- ing upon him the obligation of paying it over to the plaintiff; for money loaned to the defendant; for in- terest on such a loan, or on forbearance of money ; for balance due from the defendant upon an account stated, or agreed upon; for use and occupation of land; for board and lodging; for goods sold and de- livered ; for goods bargained and sold ; for work, labor and materials. In these common counts, circumstances were also alleged which created the duty or obligation to pay, and the promise to pay was implied from this consideration. Nothing but money could be recovered under the common counts. The declaration in as- sumpsit must invariably disclose the consideration upon which the contract was founded; the contract itself, whether express or implied ; and its breach by the defendant. The claim of damages should be laid COMMON LAW PLEADING 223 large enough to cover the real amount of money claimed. Sec. 1589. TROVER. — As the wager of law was a legal method of defense to detinue as well as to debt, it became as desirable to substitute a new action for detinue as it was to have assumpsit in place of debt. Accordingly, with the progress of pleading, there was developed the action of trover, (from the French verb trouver, meaning to find), which was based upon a supposed finding by the defendant of the thing de- manded, and converting it to his use. Gradually the allegation of finding became a pure fiction, and the de- fendant was not permitted to traverse (deny) it. Trover thus became sustainable against any person who had in his possession, no matter how that pos- session was acquired, the personal property of another, and who sold or used that property without the con- sent of the owner, or refused to deliver it upon the owner's demand. The injury lies in the conversion, and the action is brought for the recovery of damages to the value of the thing converted, and not to recover possession of the chattels themselves. Satisfaction of the judgment for the plaintiff transfers the title to the chattel to the defendant, the same as if he had paid the purchase price. Trover lies only for the conversion of some per- sonal chattel, and not for injuries to real property. It is sustainable only for specific articles, but as only damages are demanded phe description need not be so specific as in detinue. 224 COMMON LAW PLEADING In order to support the action of trover the plaintiff must have had at the time of the conversion a general or special property in the chattel converted, and either the actual possession, or the right to immediate pos- session. Generally, if the property be only special, the possession must have been actually in the plaintiff, but there is an exception to this rule, in the case of one who has also an interest in the goods converted. Conversion may consist in a wrongful taking, or an illegal assumpsit of ownership, or an illegal use or mis- use of the chattel, or its wrongful detention. But a mere omission or non-feasance is not sufficient to sup- port trover. Where the plaintiff is not prepared to prove a wrongful taking, or a wrongful use, or the like, he must make an actual demand upon the de- fendant before bringing suit, and must prove such actual demand and the defendant's refusal thereof, or such neglect to comply as amounts to a refusal. Such demand and non-compliance are prima facie evidence of a conversion, which the defendant may rebut by showing that the chattel was lawfully in his posses- sion, and that he lost it through negligence; or that he was uncertain as to plaintiff's title and offered to deliver the chattel to the true owner ; and the like. Ihere is no conversion unless the act complained of amounts to a denial of the plaintiff's right to posses- sion. If the chattel has been once converted, its re- storation to the plaintiff, or a tender of it will not cure the injury, such tender will only mitigate damages. Where it is doubtful whether the evidence will estab- COMMON LAW PLEADING 225 lish a conversion, a count in case, for negligence, should be joined. One joint-tenant or tenant in common or co-par- cener cannot support trover against his co-tenant, un- less the latter has destroyed or sold the chattel in ques- tion, as each has a right to its possession. For a wrongful taking, trover may be brought con- currently with trespass ; but trespass will not lie where the taking was lawful or excusable. The declaration in trover should state that the plaintiff was possessed of the goods in question as of his own property; that taey came into the defendant's possession by finding, and that the defendant converted them to his own use, to the damage of the plaintiff in the sum of $. . . . dollars. The damages should be alleged large enough to cover the value of the goods, and the loss through their detention, judgment being for damages and costs. The allegation of finding is not traversable, and its omission is cured by verdict. Sec. 1590. EJECTMENT.— The development of the action of ejectment furnishes probably the best il- lustration of the use of fictions that is to be found in the history of the common law. Orignally the termor, or tenant might have an action in covenant against the lessor or his heirs, if he was ejected from the term, and if the lessor was the ejector the lessee might also recover possession, but he could not re- cover possession from the lessor's feoffee ; and against a stranger the termor had no remedy whatever. Such ejectment by a stranger was a disseisin of the lessor, 226 COMMON LAW PLEADING and if the lessor recovered his seizin, such recovery did not inure to the benefit of the lessee or termor. About 1235, a new action — quare ejecit infra fer- minum (wherefore he ejected him during his term) — was given the termor, by which he could recover possession from his lessor's feoffee. And in lyj^i the new writ of ejectione Urmce (ejectment from the farm) appeared. This new writ was in the nature of a writ of trespass, and lay against all ejectors who were strangers to the title, but it gave only damages to the plaintiff. As possession was the main thing the tenant desired to recover, the disappointed suitors be- gan to apply to the court of equity, which was about this time broadening its jurisdiction with great suc- cess. And thus under stress of competition, the com- mon law courts awoke to the fact that they could also restore possession in ejectment proceedings. This occurred somewhere between 1455 and 1499. From this time on the action of ejectment begins to take on its modern form, and it is regarded as an action by which the court can restore a termor to the possession of his term if ejected by a stranger or even by his lessor, and also give him damages ; and inci- dentally, it will try the title of the lessor, for if he had no title the term was void. The question of title could therefore always be raised by the defendant's plea of not guilty. Hence this action permitted the trial of the title, but only when a real ejectment occurred, and in its trial of the title it simplified the long, intricate and costly process of a real action. COMMON LAW PLEADING 227 By reason of being a simplified way of trying title to real property, it offered inducements to the form- enslaved lawyers and courts of that time to adapt it to the trial of title in all cases. But to do so they had to bring themselves nominally within the purview of this action of ejectment. They created a lease for the express purpose of trying titles. The claimant out of possession entered on the land with some friend to whom he sealed and delivered a lease for a term of years. This artificial lessee lemained upon the land until the adverse party, the actual occupant, came upon the freehold, that is, saw him and went towards him, when he was deemed to have been ejected. The arti- ficial, or specially created lessee, now brings suit against the occupant and serves upqn him a writ of ejectione firmcB. This was the factitious or artificial stage in the development of the action of ejectment. It worked no injustice so long as the actual occupant was made de- fendant, or actually knew of the collusive action. But knaves, seeing the possibilities in the case, began to procure a second friendly party to come on and eject the artificial lessee. He was called the casual ejector, and when sued by the artificial lessee made de- fault, and thus the title was adjudged to the plaintiff, although the actual occupant was entirely ignorant of the proceedings. The courts, however, soon remedied this by a rule requiring the actual occupant to have full notice of the proceedings, and giving him oppor- tunity to come in and defend if he so desired. 228 COMMON LAW PLEADING The action remained in this factitious stage until the time of the Commonwealth (1649- 1660), when, on account of the violence sometimes growing out of these artificial entries, Rolle, C. J., advanced the action into what may be called the fictitious stage. In this no lease is sealed, no entry or ouster is in fact made, the plaintiff lessee and the casual ejector, are both men of straw. Thus, A, the adverse claimant, de- livers to B, the occupant, a declaration in ejectment, in which John Doe and Richard Roe, fictitious per- sons, are respectively plaintiff and defendant. In this declaration Doe states a fictitious demise of the lands in question to himself by the adverse claimant for a term of years, and complains of an ouster from them by Roe during its continuance. To this is annexed a notice by Roe, to the occupant, informing him of the proceedings, and advising him to apply to the court for permission to defend the action, as he, Roe, has no title and will make no defense. If the occupant does not so comply within a reasonable time, the court will, on proper proof of the service on him of the declaration and notice, give judgment against the casual ejector. Roe, and execution for the possession of the lands to the plaintiff lessee. But if the occupant apply, as he may be relied on to do, for leave to de- fend, then he is required to enter into what is called' the consent-rule, by which he was compelled to admit a series of fictions, vizable, the entry, the lease and the ouster. Then, and not till then, was he permitted to come in and defend by having his name substituted COMMON LAW PLEADING 229 for that of the casual ejector. Then the cause regular- ly proceeded to trial. Ejectment lies for the recovery of the possession of corporeal real property, in which the plaintiff's lessor has the legal interest, and a possessory right not barred by the statute of limitations. The plaintiff must recover upon the strength of his lessor's title; posses- sion gives the defendant a title against every person who cannot show a better or sufficient title. So the plaintiff's lessor must have had the right of possession both at the time of leasing and at the time of bring- ing the action. If the lease expire during the trial, the successful plaintiff gets judgment with a perpetual stay of execution as to possession, so that he can recover mesne profits and costs. The defendant's pos- session at the time of leasing must be adverse or il- legal. There must be an ouster, but a wrongful de- tention after lawful entry made will amount to an ouster in law. Where there has been no actual ouster, demand for possession must have been made and re- fused before brmging the action. In the fictitious stage of ejectment, no substantial damages could be given for a merely imaginary ouster, so that after the plaintiff ■ had established his title he was permitted to bring a certain action of trespass, an action for mesne profits. In this action the plaintiff complains of his ejection and loss of possession, states the time during which the defendant held the lands and took the profits, and prays judgment for the dam,- ages he has thereby sustained, The judgment in the 230 COMMON LAW PLEADING action of ejectment is conclusive evidence of the title at and since the alleged leasing, but not prior thereto, nor is it evidence of the defendant's occupancy ex- cept from the time of service upon him of the declara- tion of ejectment. Mesne profits are now usually recoverable in a count joined with the count in eject- ment. Sec. 1591. AT COMMON LAW THE PLEAD- ER MUST NOT MAKE A MISTAKE IN CHOOS- ING FORM OF ACTION.— At the common law a mistake in the form of the action was fatal to the action. The courts considered form as an essentid part of a legal proceeding, and would not allow the pattiei, even by agreement, to try a question, or to proceed with a cause in the wrong form of action. \^'hen the objection to the form is substantial and appears on the face of the pleadings, it may be taken by demurrer, by motion in arrest of judgment, or by zcrit of error. When it does not so appear, it can only be taken as a ground of non-suit. If for such a mistake the plaintiff fail in his action and judgment be given against him for that reason, and not upon the merits, this judgment is no bar to a new action for the same cause. Under the modern practice, such a mis- take may be cured by amendment, and has no more serious consequences than delay, expense and mortifi- cation to the pleader. Sec. 1592. EXTRAORDINARY ACTIONS.— There are a number of extraordinary actions, which were developed from time to time, to meet emer- COMMON LAW PLEADING 231 gencies, the use of which is permitted only when th^ ordinary forms of action are insufficient. These are: I. Mandamus. 2. Procedendo. 3. Prohibition. 4. Qiio Warranto. 5. Information. 6. Habeas Corpus. 7. Certiorari. Sec. 1593. SAME SUBJECT— MANDAMUS. — The writ of mandamus (we command), is a man- date issuing, in England, in the king's name from the court of King's Bench, and addressed to any person, corporation, or inferior court of judicature within the king's dominions, requiring to be done some particular ministerial act therein specified, which appertains to the duty of the party to whom the writ is addressed, and which the court of King's Bench has previously determined to be consonant to right and justice. This writ may be employed wherever the applicant has the right to have anything done of a ministerial character, and ha~s no other adequate specific means of compell- ing its performance. Sec. 1594. SAME SUBJECT— PROCEDENDO. — The writ of procedendo ad judicium (for proceed- ing to judgment), issues in England, out of the court of Chancery, commanding an inferior court, which improperly delays judgment, to give it, but, of course, without specifying what judgment is to be given ; since judgment, if erroneous, must be corrected by means of a writ of error or an appeal. Disobedience to a writ 'of procedendo may be punished as a contempt. Sec. 1595. SAME SUBJECT— PROHIBITION. 232 COMMON LAW PLEADING — A writ of prohibition is a high prerogative writ, issuing properly out of the court of King's Bench, directed to the judge and parties to a suit in an in- ferior court, commanding them to cease from the prosecution thereof. It issues upon a suggestion of usurgation of jurisdiction by the lower court. If either the inferior judge or the parties proceeded after such writ of prohibition has issued it was a contempt of the court issuing the writ. When the question of jurisdiction in the lower court is doubtful, it is tried by a feigned contempt, and if it be decided in favor of the lower court, the higher court grants a writ of consultation, thereby returning the cause to the lower Court to be there proceeded with according, to law. Sec. 1596. SAME SUBJECT— QUO WAR- RANTO. — The writ of quo warranto (by what authority), is in the nature of a writ of right for the king or state against him who claims or usurps any office, franchise, or liberty, to inquire by what author- ity he supports his claim, in order to determine the right. It lies also against him who holds after cause for forfeiture, or who holds unlawfully after expira- tion of term. By virtue of statutes, an information in the nature of quo warranto, without a resort to the prerogative writ, may be brought, by leave of court, at the rela- tion of any person desiring to prosecute the same (who is called the relator), against any person usurp- ing, intruding into or unlawfully holding a franchise or office in any city, borough or town corporate. The COMMON LAW PLEADING 233 relator must have been in some way injured by the act complained of, though not necessarily specially injured. If the defendant be convicted, judgment of ouster may be given against him, and he may also be fined. Sec. 1597. SAME SUBJECT— INFORMA- TION. — In England, an information^ on behalf of the Crown, filed in the Exchequer by the king's attorney general, is a method of suit for recovering money or chattels due to the king, or for obtaining satisfaction in damages for any personal wrong committed to the land or other possessions of the Crown. It is ground- ed merely upon the intimation of the attorney general, who "gives the court to understand and be informed of" the matter in question, whereupon the party in- formed against is put to his answer, and trial is had as between private subjects. Sec. 1598. SAME SUBJECT— HABEAS COR- PUS. — The writ of habeas corpus ad subjiciendum (you shall have the body for submission), is the great common law writ for inquiring into the lawfulness of the detention of any person. The person having in his custody the party restrained of his liberty must forth- with produce him before the court or judge issuing the writ. If, upon inquiry, such judge or court finds such imprisonment or restraint to be lawful, and under sufficient authority, no further inquiry can be made into the guilt or innocence of the accused, and he is remanded into custody, to be tried according to th« ordinary forms of law ; but if it be found that he has 234 COMMON LAW PLEADING been held without lawful authority, he must be re- leased. This writ applies as well where the person de- tained is a private person, as where he is an officer. Sec. 1599. SAME SUBJECT— CERTIORARI AND ERROR. — A writ of certiorari issues from a superior court to one of inferior jurisdiction, and commands such inferior cour-t to certify to the former the record or proceedings in a particular case. Upon reception of the matter so certified, the superior court may proceed with the cause as though it had originat- ed there; or it may simply inspect the record, where the proceeding is a summary one and not according to the comon law, and determine whether or not there has been any material irregularity therein, which find- ing is certified back to the inferior court. A Writ of Error is a method of procuring a re- view of a case as to the points of law involved therein, in a superior court, and will be discussed in a later chapter. COMMON LAW PLEADING 23S CHAPTER III. OF THE JOINDER AND ELECTION OF ACTIONS. Sec. 1600. COUNTS IN THE SAME FORM OF ACTION MAY BE JOINED.— For the purpose of lessening the burdens of Utigation, certain actions or grounds of complaint are required to be joined, or disposed of in a single suit between the parties. The rule originally was, that counts in the same form of action might be joined, but that those in different forms of actions could not be joined. This rule was grounded in the fact that at that time every proceeding was begun by a separate original writ, and different actions required the corre- sponding writ, but if two or more grounds of complaint between the same parties fell under the same form of action so as to be set up in separate counts under the same action they not only might be joined, but were required to be joined. To this rule there was a limitation that counts which sounded in contract could not be joined with those sounding in tort. The limitation arose after the action on the case developed to include assumpsit, which sounded in con- tract, and trover, or case generally, which founded upon a tort. Where the same form of action may be adopted for several distinct injuries, the plaintiff may generally proceed for all in one action, though the several rights 236 COMMON LAW PLEADING affected were derived from different titles. But a person cannot, in the same action, join a demand in his own right, and a demand in autre droit (in another right) ; nor can be join in the same action, an obliga- tion which is personal, and one which involves the defendant in a representative capacity. How- ever perfect in form each count may be, a misjoinder will be vulnerable to a general de- murrer, to a motion in arrest of judgment, and to a writ of error. A demurrer for misjoinder of causes of action must be to the whole declaration. Under the later statutes of jeofails and amendments, a mis- joinder may, before verdict, be cured by entering a nolle prosequi (unwilling to pursue), upon one or more counts which are objectionable; but after a gen- eral verdict for damages, and judgment entered there- on, the judgment would even now have to be arrested, as the court could not say what count or counts the jury assessed the damages. Sec. 1601. ELECTION OF ACTIONS.— Some- times the plaintiff has a choice of remedies for the same injury. Thus: 1. Where the title of the plaintiff is doubtful, he should, if possible, choose a remedy requiring proof of possession only; as trespass, for example, rather than ejectment; and trespass and trover rather than assumpsit. 2. In actions on contracts, the non- joinder of a proper co-plaintiff is ground for non-suit, while in a tort action it is open only to plea in abatement. Again, COMMON LAW PLEADING 2Zl in contract, the mis-joinder of defendants is a ground for non-suit, and the non-joinder of defendants may be pleaded in abatement ; while in most torts, as in all which are considered joint and several, mis- joinder and non- joinder of defendants is immaterial. So when there is doubt as to who are proper parties, case, or other tort action, should, if possible, be used instead of assumpsit. 3. The plaintiff may have some demand which can be brought only in tort, or only in contract, and others which may be brought indifferently. These latter should, if possible, be so declared on as to be joinable with the first. 4. Sometimes to one form of action the defendant may plead a defense which he could not to another. Thus a discharge in bankruptcy, at common law, could be pleaded in bar of assumpsit for a contract obliga- tion existing at the time of the discharge, but not in bar of a tort action. So set-off may be pleaded in as- sumpsit, but not in case. In cases of fraud, the statute of limitations may not begin to run until the fraud is discovered, while against the action in assumpsit it may begin to run at the time of the transaction. In all of these cases, and many others, the pleader will elect which action is the most advantageous for him to bring. 5. In some cases the plaintiff may choose between a local action and a transitory action. Differences in the ability of the courts, or the prejudices of the jurors, may lead him to prefer one of these to the other. 238 COMMON LAW PLEADING 6. At common law when a tort-feasor died, the cause of action springing from the wrong, died with him. But if the tort is one that can be waived and action be brought in assumpsit, assumpsit may be brought against the representative of the deceased wrongdoer and satisfaction obtained. 7. Infants, lunatics, and the like, are unable to create contractual obligations against themselves, but they are liable for their torts. Hence, where possible, the action of tort would be preferable to assumpsit. 8. The nature and amount of damages recoverable in different forms of actions, may frequently make one form preferable to another. So in some jurisdictions stringent process exists against defendants in tort ac- tions, which might be an advantage. 9. In debt, judgment by nil dicet (he says noth- ing) , or generally, on default, is final ; while in as- sumpsit and covenant it is only interlocutory, and compels delay and additional expense, before execu- tion may be taken out. Sec. 1602. EFFECT OF ELECTION— RIGHT TO CHANGE FORM OF ACTION.— Where a pleader has elected one form of action, he may never- theless abandon it, and after duly discontinuing the action, he may resort to another. But where there are two inconsistent remedies, he is bound by his election, and cannot afterwards change his form of action. COMMON LAW PLEADING 239 CHAPTER IV. OF THE FULL PROCEEDINGS IN AN ACTION AT LAW. Sec. 1603. IN GENERAL. The full proceedings in an action at law from its commencement to its ter- mination involved the following steps in succession: I. The process. 2. The appearance of the defendant. 3. The pleadings. 4. The trial. 5. The judgment. 6. The execution. 7. Proceedings in error, where such were prosecuted. These will be considered in their order. Sec. 1604. I. MEANING OF PROCESS AND KINDS OF PROCESS.— Process is the means used by the judicial authorities to express their orders, and, if need be, to enforce a compHance of the same. The order is seldom made, but is generally implied. Process is divided into three kinds, which are designated: i. Original process. 2. The mesne pro- cess. 3. The final process. Original process was the means of instituting the suit and compelling the defendant to come into court. The mesne process, issued in interlocutory mat- ters, that is, somewhere between the commencement and closing of the suit. The final process is used in enforcing the court's judgment, as in the issuing of an execution. Original process, at the early common law, was known as the "original writ." 240 COMMON LAW PLEADING Sec. 1605. OF THE ORIGINAL WRIT.— The original writ was the king's warrant for the judges to proceed to the trial of the cause. Because the court could not so proceed without the command of the king, the judges had no authority to consider a declaration varying from the original writ, or to allow amend- ments, or pardon mistakes, or permit a party to change his form of action, or recover more than the amount claimed in his writ. And so purely personal to the king were these original writs, that anciently, upon the demise of the king, all suits pending under writs granted by him were immediately discontinued, and the plaintiff was obliged to sue out a new writ, and begin anew. But as the application for the king's writs became more frequent, and their issue more a matter of course, the issuing of them was more and more entrusted to clerks and other subordinate officials in the chancery, who like most ministerial officers, found it easier to copy precedents than to adapt each writ to its proper purpose. As a result original writs began to fall into hard and fast classes, and were clung to with such persistency by the issuing officers, that the matter had to be remedied by the great statute of Westminster II, providing for the issuing of new writs in like cases. The form of the original writ was a mandatory let- ter issuing out of the Chancery, under the great seal of the realm and in the king's name, directed to the sheriff of the county where the injury was alleged to have been committed, containing a summary state- COMMON LAW PLEADING 241 ment of the cause of complaint, and was in form either optional or peremptory; it was termed, according to the introductory words of the writ, either a precipe (command) or z, si te fecerit securum (if he shall make you secure). Whenever the plaintiff demanded something certain, which the defendant might himself perform, the writ was properly a precipe; where noth- ing specific was demanded, but only unliquidated dam- ages, to obtain which, the intervention of a court was required, as in writs of trespass or case, there a si te fecerit securum was issued. The optional form — the precipe — commands the defendant either himself to pay the debt to the plaintiff, or to show at a given time in the King's Court why he does not. The peremptory form, however, calls upon the defendant to appear immediately in court, provided the plaintiff give good security to prosecute his claim. This giving of security is now usually a matter of mere form, and frequently it is not even required as a matter of form. Where the plaintiff is a non-resident of the jurisdiction, how- ever, he is frequently compelled to give security for costs. Both species of writs are tested (witnessed) in the king's own name, and issued under the Great Seal of the Realm. The day upon which the defendant is ordered to appear in court, and on which the sheriff is ordered to bring in the writ and report what he has done in pursuance thereof, is called the return day of the writ. The year was divided into four terms in which the courts at Westminster sat for the despatch of business, 242 COMMON LAW PLEADING called Hilary Term, which began January nth, and ended January 31st, of each year; Easter Term, be- ginning April iSth, and ending May 8th, of each year ; Trinity Term, beginning May 22d, and ending June 1 2th of each year, and Michelmas Term, beginning November 2d, and ending November 25th of each year. On the first day in each term the court sat to take essoins (excuses) for such as did not appear in obedience to the writ, wherefore this is usually called the Essoin day of the term.* A defendant cannot be damaged by the mere suing out against him of the original writ, and no action lies therefore. But if the original were process upon which the defendant could be compelled to come into court, an action would lie whenever the original was sued out without proper and sufficient cause. The first step to compel the defendant's appearance was judicial, as contrasted with original process. Only the original writ issued from the Chancery, and under the Great Seal of the Realm, all subsequent process, whether original, mesne, or final, was judicial process, and issued out of the common law courts into which the original writ was made returnable, under the private seal of that court, and bore teste in the name of the Chief Justice of that court. *Iti the United States jurisdiction is conferred upon the courts by the Constitution and statute laws creating them, and there is no occasion for an original or general writ. We have neither the original writ nor a substitute for it, as our sum- mons is not to be confounded with the original writ, though doubtless it was designed to take the place of it. COMMON LAW PLEADING 243 Sec. 1606. OF THE VARIOUS KINDS OF ORIGINAL PROCESS.— Process at common law varied in stringency from the polite summons, to the decree of outlawry. First was the summons, a warning to appear in court on the return day of the original writ ; this be- ing disobeyed, next came a writ of attachment, or pone, so called from the words of the writ, "pone per vadium et salves plagios" (put by gage and safe pledges), which compelled him to give gage (pledge of goods) or safe pledge (sureties) that he would ap- pear. If he failed he thereby forfeited his gage, and his safe pledges were fined. Next there would be sued against the defendant the writ of distringas (you shall distrain), or distress infinito, under which he was gradually stripped of all his goods. Here process end- ed in the case of injuries without force; but for in- juries with force the obdurate defendant's person was next attached, under a writ of capias ad respondendum (you shall take for answering). If the sheriff returns that the defendant non est inventus (is not found) in his bailiwick, then a testatum capias, issues to the sheriff of the county in which the defendant is sup- posed to be. The testatum capias recites the first writ of capias, and adds testatum est (it is testified) that the defendant latitat et discurrit (lurks and wanders about) in the bailiwick of this second sheriff, where- fore he is commanded to seize the body of the de- fendant and have him before the court. Where a de- fendant absconds and the plaintiff wishes to proceed 244 COMMON LAW PLEADING to outlawry against him, if the sheriff cannot find him upon the first writ of capias, there issues an alias writ of capias, and after that a pluries writ. If this is in- effectual, there issues a writ of exigent or exigi facias (you shall cause to be exacted) which requires the sheriff to cause the defendant to be proclaimed or exacted, in five county courts, successively, to sur- render himself ; if he does so the sheriff takes him as in a capias ; if he does not appear, and is returned quinto exactus (the fifth time exacted) he shall then be out- lawed by the coroners of the county. The judgment of outlawry put a man out of the protection of the law, made him incapable of bringing a legal action, and forfeited all his goods and chattels to the king. If the outlaw appeared publicly, he could be arrested on a capias utlagatam (you shall take the outlaw) and committed to prison until the outlawry was reversed. It will be noticed that in all this tedious procedure there was no judgment by default, and the whole power of the court was directed to correcting the contumacy of the defendant, rather than to re- dressing the injury suffered by the plaintiff. The court of King's Bench, because in contempla- tion of law the king sat in it, needed no original writ to give it cognizance of causes arising within the county in which it sat. Its authority entitled it to try causes when the injury alleged was forcible, and therefore akin to crimes. As no original writ was required, it developed process of its own whereby to bring to the notice of the defendant the pendency of a COMMON LAW PLEADING 243 cause against him. This was called a bill of Middle- sex, or of Kent, etc., according to the county in which the court was sitting. This was in form a capias, and if the return was non est inventus, there issued a writ of latitat, directed to the sheriff of the county wherein the defendant was supposed to be. It was a privilege of court, that an officer or prisoner therein, might be sued without original writ, that is, the defendant already being in the custody of the court, no original writ was necessary to give the court jurisdiction over him. Out of this fact grew the practice of King's Bench in taking jurisdiction of all civil causes involving personal actions. Thus, a complaint of trespass, quare clausum fregit, would be entered in the records of the court, then a bill of Mid- dlesex or other writ would be issued, whereby the de- fendant was brought into the custody of the court ; whereupon the real complaint was made against him, and the complaint of trespass thereafter ignored. The court of Exchequer extended its jurisdiction in a similar way. The great writ in this court was the quo minus. The plaintiff suggests that he is the king's debtor, and that the defendant has done him the wrong complained of, quo minus suMciens existit (by which he is the less able) to pay the king his rent or debt. Upon this writ the defendant may be arrested as upon a capias, and once within the custody of the court, he may be proceeded against for any personal cause of action. Sec. 1607. IN THE UNITED STATES THE 246 COMMON LAW PLEADING PROCESS USED TO INSTITUTE A SUIT IS A SUMMONS. — In the United States, generally, a sum- mons is the form of process used to institute a suit. It is generally attested by the chief justice, or presid- ing judge of the court from which it issues, and is returnable to the court from which it issues. It is ad- dressed to the sheriff of the county, is to be returned on a day certain therein named, and in general takes the place of the original writ of the common law. A capias ad respondendum, authorizing the arrest of the defendant's person, is of very limited use in this country as original process. It is allowed in some jurisdictions by express statutory authority in cases of fraud, breach of trust, or other gross wrongdoing. An attachment is similarly authorized against the property of absconding debtors, non-residents and other classes of persons specifically designated in the statutes providing for this summary process. Sec. 1608. THE APPEARANCE OF THE DE- FENDANT. — The appearance of the defendant is his submission to the jurisdiction of the court. In pleas to the jurisdiction, it must be made by the defendant in person. In all others it may be so made or it may be made by attorney, or if he has been arrested, his giving bail is an appearance. The appearance is usual- ly shown upon the record by the words "and the said A. B. (the defendant) by E. F., his attorney, venit (comes), etc." This word, venit, is the technical word expressing appearance. The appearance is either general or special. If spe- COMMON LAW PLEADING 247 cial, the entry must so state, and must show the pur- pose, as to object to the jurisdiction of the court, to want of service of process, to misnomer, or other for- mal defects. A general appearance waives all of these defects, which must be taken advantage of by enter- ing a special appearance only, as for the purpose of objecting to the jurisdiction. Sec. 1609. THE PLEADINGS— THEIR PUR- POSE. — The pleadings are the formal allegations of fact whereon the parties rely to support the claim oi injury and the defense thereto. They were made orally in early times, but have for many centuries now been required to be in writing. The facts alleged in the pleadings must be material, that is, they must consti- tute the minor premise of a syllogism, of which the major premise is purely a proposition of law, the lat- ter not stated because it is presumed to be at all times in the mind of the court. The conclusion of the syllo- gism is the proposition which the party desires the court to lay down as its judgment. When the pleadings were oral, as they proceeded they were minuted down by the chief clerk or prothon- otary, and, together with the entries from time to time made concerning the cause, constituted the record of the cause. This record, when complete, was preserved as a perpetual, intrinsic and exclusively admissable testimony of all the judicial transactions which it com- prised. As it was made by a clerk, one not a party, it was entered as a narrative in the third person. Later the parties, when they began for convenience to write 248 COMMON LAW PLEADING their pleadings, came in and wrote them on the clerk's roll, and they thus to this day are in the third person. Sec. 1610. THE COURT DIRECTED THE PLEADINGS SO AS TO ARRIVE AT AN ISSUE OF FACT OR LAW AFFIRMED ON THE ONE SIDE AND DENIED ON THE OTHER.— The court's duty in this connection was to direct the plead- ings in such a manner that the parties might as speedily as possible arrive at a proposition, either of fact or law, m.aterial to the cause, which was specifical- ly affirmed on one side and denied on the other. When this stage was reached the parties were said to be at issue {ad exitum, that is, at the end of their plead- ing), and the proposition evolved was called "the is- sue." It was according to the nature of the proposi- tion, either an issue of fact, or an issue of law. If the latter, the judges themselves decided the matter; if the former, it was referred to which ever one of the various methods of trial then practiced, as the court thought applicable, or it was, when proper, by mutual agreement of the parties, referred to a trial by jury. An adjournment of the proceedings from day to day by an order of the court, or from term to term, was called a "continuance," and was minuted on the record. If any interval took place without such an adjournment, duly obtained and entered of record, the break thus occasioned was called a "discontinuance," and the cause was considered as out of court by the interruption, and was npt allowed to be proceeded with afterwards. COMMON LAW PLEADING 249 Sec. 161 1. THE FIRST PLEADING IS CALLED THE DECLARATION.— The "declara- tion" is the first pleading in a cause. It is a formal statement on the part of the plaintiff of the facts con- stituting his cause of action, or grounds of complaint. The declaration must state the facts constituting the action more fully than does the original writ, but still in strict conformity with the tenor of that instrument.. The declaration must state the facts constituting the cause with such precision, clearness and certainty, in- cluding certainty of time and place, that the defendant knowing what he is called upon to answer, may be able to plead a direct and unequivocal plea; the jury may be able to give a complete verdict upon the issue, and the court, consistently with the rules of law, may give a certain and distinct judgpment upon the premises. The first pleading in an action begun by bill of Middlesex, etc., or by quo minus was called a "bill." It was, nevertheless, exactly equivalent to a declara- tion, differing from it only in some formal words at the commencement and conclusion. Sec. 1612. CONCLUSION OF THE DECLAR- ATION. — The declaration formerly concluded with the words: "And therefore he brings suit and good proof." The suit was the plaintiff's band of followers ready to verify his assertions. Bringing them was called the "production of suit." Later the mere as- sertion became called by that name. In those days a party's unsupported word was worthless. If no suit 250 COMMON LAW PLEADING is produced, the defendant, upon raising that objec- tion, is excused from further answering. So the de- fendant might demand examination of the suit, in which case he abandoned every other form of defense and staked the case upon the testimony of the suit. If compelled to answer the defendant "comes and defends (that is, denied) the wrong and injury when, etc." Having denied the plaintiff's allegations, the de- fendant must offer to make good his denial "when and where he ought as the court shall consider," where- upon the court awarded the mode of trial. Sec. 1613. IF THE DECLARATION BE INSUFFICIENT IN LAW THE DEFENDANT MAY DEMUR.— If the matter of the plain- tiff's declaration be insufficient in law, tnen the defendant may demur; that is, rest or pause, and takes the court's judgment whether or not suffi- cient has been alleged to make it needful for him to answer. A demurrer is therefore not a plea, but is rather an excuse for not pleading. The defect ap- parent upon the face of the declaration may be one of substance, in that no legal cause of action has been stated, or it may be one of form merely, in that the declaration is not framed according to the rules of pleading. A demurrer for the former defect is called a general demurrer, and for the latter, a special de- murrer. Sec. 1614. THE PLEA OF THE DEFEND- ANT. — If the defendant does not demur, he must answer the declaration by counter averments of fact. COMMON LAW PLEADING 251 In so doing he is said to plead, and his answer so made is called his plea. These pleas are either Dilatory or Peremptory; and dilatory pleas are subdivided into: (1) Pleas to the jurisdiction of the court, (ii) Pleas in suspension of the action, (iii) Pleas in Abatement of the writ. The peremptory pleas are always in bar of the action. Sec. 1615. DILATORY PLEAS.— In a plea to the jurisdiction of the court, the defendant excepts to the right of the court to assume jurisdiction of the subject matter of the action against him. When the plea is to the suspension of the action, it alleges some fact constituting an objection to the pro- ceeding in the suit at that time by the court, and prays that the pleading may be suspended until that objec- tion is removed. Thus non-age of the defendant, when sued upon an obligation of his ancestor, is such an ob- jection. A plea in abatement of the writ is one which shows some ground for abating or quashing the original writ, and it concludes with a prayer that this may be done. Pleas in abatement are addressed: i. To the person of the plalntiflf; as that he is an alien enemy, or an outlaw, and the like. 2. To the person of the defendant ; as that he is a bankrupt, or that she is a married woman, and the like. 3. To the count or declaration; as that it varies from the original writ, or omits to make a joint-contractor party defendant, and the like. 4. To the original writ ; as that its parts are repugnant, or that it varies from the record or 252 COMMON LAW PLEADING specialty sued on, or that it misnames the parties, or one of them, or that two parties sued as husband and wife are not in fact such, and the Hke. The effect of all pleas in abatement, if successful, is to defeat the particular action only, but not to de- stroy or defeat the right of action. Upon removal of the objection, the plaintiff may again sue. Statutes usually require that all dilatory pleas be verified by affidavit, or, at least, that some probable matter be shown to the court to convince it of the truth of the dilatory plea. Sec. 1616. PEREMPTORY PLEAS.— A per- emptory plea, or plea in bar of the action, shows some ground for barring or defeating the alleged cause of action. Its prayer is that the plaintiff may be barred from further pursuing his said action. The plea may either traverse (deny) the matter of the declaration, or it may confess (admit its allegations of fact) and. avoid it, by showing other facts which excuse the de- fendant, and deprive his alleged acts of wrongfulness. Pleas in bar are thus divided into: i. Pleas by way of confession and avoidance. 2. Pleas by way of traverse. Sec. 1617. PLEAS BY WAY OF TRAVERSE. — A traverse at once brings the cause to an issue, and so concludes with the offer of a mode of proving the denial. This is called "tendering issue," and the issue so tendered is called an "issue in fact." A demurrer, as we have already seen, always brings an issue, but COMMON LAW PLEADING 253 it is one of law and not of fact, and the law issues are referred to the court for its decision, there being no choice of modes of determining it, so that the tender of issue in a demurrer is perfectly formal, being made as a matter of course and accepted as a matter of course. The formula of the defendant's acceptance is called a "joinder in demurrer." But to the tender of an issue of fact, the plaintiff may demur, either to the sufficiency of the facts alleged, or to the manner of alleging them, or to the mode of trial proposed. If he does accept the issue of fact, an acceptance is ex- pressed by a formula called a "joinder in issue," or a similiter (likewise), because the tender of issue ran, "and of this the said C. D. puts himself upon the coun- try, etc.," and the joinder by the other party was, "'and the said A. B. does likewise." Sec. 1618. OTHER PLEADINGS TO ARRIVE AT AN ISSUE.— With either form of joinder above mentioned the parties are "at issue," and the plead- ings are at an end. But instead of traversing the declaration, the defendant may plead a dilatory plea, or a plea by way of confession and avoidance. In either case, the plaintiff may then demur as before or he may plead by way of traverse, or by confession and avoidance. Such pleading on the plaintiff's part is called the "replication." After the replication, issue may be joined as before, or the defendant may demur or plead further in any of the ways above described. If he so pleads his plea is called his "rejoinder." And so on the pleadings 254 COMMON LAW PLEADING may continue, the alternate pleadings being, declara- tion, plea; replication, rejoinder; sur-re joinder, rebut- ter; sur-rebutter, etc. If at any stage a demurrer is interposed, it im- ports no new facts, and in effect admits all allegations of fact well pleaded. New pleadings may bring in new facts and extraneous matters, or deny prior alle- gations, but each pleading is taken to admit all prior allegations of fact well pleaded, unless expressly de- nied in the new pleading. Sec. 1619. OTHER PLEADINGS OF OCCA- SIONAL OCCURRENCE.— There are certain pleas and incidents of only occasional occurrence, that diversify the ordinary course of pleadings. Sometimes a matter of defense arises after a con- tinuance and before the time to which the cause was continued. This the defendant pleads in a plea puis darreign continuance (after the last continuance). Such plea is always pleaded by way of substitution for the former plea, on which no proceeding is afterwards had. It may be either in bar, or in abatement, and is followed with a traverse or plea as other pleas. In most real actions the tenant is allowed to de- mand a view of the land which the demandant claims in order to see if it is the land which the tenant claims and occupies. This being done the demandant (plain- tiff) sues out a writ instructing the sheriff to cause the tenant to have a view of the land. The demandant goes along and points out the land with its metes and boujnds. On the sheriff's return of the writ, the de- COMMON LAW PLEADING 255 mandant is required to plead de novo (anew), and the pleadings proceed to issue. When lands have been warranted to a4enant, and another person brings a real action against him in re- spect thereof, he, by a voucher to warranty, calls the warrantor into court to defend the title for him. When the warrantor does not voluntarily appear, there issues a summons ad warrantisandum. When he appears, voluntarily or otherwise, and offers to warrant the land to the tenant, it is called "entering into a warranty", after which the warrantor is considered as the tenant in the action, and the demandant then pleads de novo, declaring or counting against the warrantor, or vouch- er, as he is now called. Where either party alleges any deed, he is generally obliged to make profert (proffer) of it, after which the other party may crave oyer (ask to hear it). Upon this demand being made the profferer usually read the deed aloud. Later, his attorney merely furnished a copy. Oyer is demandable in all classes of action, but only where profert is made, and only in that term of court at which profert is made. Whatever appears in the deed when so read is considered as having been originally pleaded by the profferer, and is repugnant to anything else in his pleading, the other party's proper course is to demur, and to object by plea. Anciently when a party found himself unprepared to respond immediately to his adversary's pleading, he prayed the court to grant him further time. Such de- lay, when granted,, was called an "imparlance", be- 2S6 COMMON LAW PLEADING cause it was supposed that in this time the parties might imparl (talk together) and come to some ami- cable settlement of their controversy. Usually the opposite party had the right to oppose the prayer for any of the above described incidents. And this he might do by demurrer if the objection ap- peared on the face of the pleading objected to; other- wise, it was done by counter-plea. Sec. 1620. OF THE PAPER-BOOK, OR DE- MURRER-BOOK.— The cause being at issue, the next step is to make a transcript of the whole plead- ings that have been filed or delivered between the par- ties. This transcript, when the issue joined is an issue in law, is called the "demurrer-book"; when an issue of fact, the transcript in some cases is called "the is- sue", in others the "paper-book." Besides the plead- ings, it contains entries of appearances, continuances, etc. When made up it is delivered to the defendant's attorney, who, if it contains what he admits to be a correct transcript, returns it unaltered ; but if it varies from the pleadings that were filed or delivered, he ap- plies to the court to have it set right. The party finding that he has made any mistake, or unwise move, should apply before judgment for leave to amend. This, until judgment is signed, is granted of course, but upon proper and reasonable terms, including the payment of the costs of application, and sometimes the whole costs of suit up to that time. Statutes in modern times are liberal in their directions concerning amendments and are liberally administered by the COMMON LAW PLEADING 257 courts, but always with due regard to the rights of the opposite party. The pleadings and issue being adjusted and tran- scribed upon the demurrer-book, issue, or paper-book, the record is next drawn up on parchment roll. This proceeding is called entering the issue. And the roll on which the entry has been made is called the "issue roll." It contains an entry of the term in which the transcript book is entitled, the warrant of attorney, the pleadings, continuances, etc., as in the paper-book, and when completed is filed in the proper office of the court. When, upon a demurrer, the issue has been arrived at and the proper entries made of record, the next step is to "move for a concilium, that is, move to have a day appointed on which the court will have the coun- sel argue the demurrer. Such day being set, the cause is "entered for argument", which is had viva voce. Sec. 1621. OF THE VARIOUS KINDS OF TRIAL. — The proceedings by which the issue of fact arrived at in the pleadings is examined, and the decis- ion arrived at, is called "the trial." Various methods of trial were anciently in use ; these were designated as follows : I. Trial by witnesses. 2. The trial by oath of the party, with or without fellow-swearers (compurga- tors). 3. The trial by battle or ordeal, either of fire or water, or combat.* 4. Trial by the record, as where *Trial by Ordeal, was the most ancient species of trial, it was also called judicium Dei (the judgment of God) and was based generally on the notion that God would interfere 258 COMMON LAW PLEADING the issue was nul tiel record, the court could award a trial by 'inspection and examination of the record" in question, which is the only proper mode of trial of such a question. The party alleging the existence of a record is bound to produce it in court at the day set.** 5. Trial by jury. The trial by jury was introduced into England by the Normans, and came to supersede all other methods of trial in course of time. Sec. 1622. THE TRIAL BY JURY.— In the early history of trial by jury, the jurors were witnesses ac- quainted with some or all of the facts in controversy between the parties litigant; they came together and compared their respective impressions of the facts and arrived at a collective judgment as to the facts in issue. Sometimes not being sufficiently advised as to what constituted the facts, it became necessary to exeunine witnesses, and thus the jury system gradually came to what it is to-day, — a body of men appointed to hear the evidence and determine the true facts and, under the instruction of the court, the legal effect thereof. miraculously to vindicate the gviiltless. The fire ordeal was performed either by taking up in the hand, unhurt, a piece of red-hot iron; or else by walking barefoot and blindfold over nine red-hot plow shares, laid lengthwise at unequal dis- tances. If the party escaped being hurt, he was adjudged in- nocent ; otherwise he was condemned as guilty. Trial by or- deal, whether of fire, hot water, cold water or wager of battle, was abolished as the people became sufficiently civilized to recognize the ridiculousness of such a procedure as a test of gilt or innocence. **There were also a "few miscellaneous methods of prov- ing particular facts, as by the certificate of a bishop, inspec- tion of a party to determine infamy, etc. COMMON LAW PLEADING 259 When the parties have actually "put themselves^up- on-the country", that is, in legal terminology, have asked for a trial by jury, a jury trial is av^^arded and the writ of venire facias (you shall cause to come) is- sues, addressed to the sheriff of the county of the venue,- — that is, the county where the facts are alleged to have occurred, and commanding him to summon a jury from the body of his county. The venire facias directs the sheriff to have the jury before the superior court at Westminster at the time stated in the writ, nisi prius (unless before) the justices of the superior court came into his county to try the cause there upon their semi-annual circuit (which was always done), in which case he should have the jury in the assise town of his own county, where the justices in Eyre came. When the trial is to be so had, with the venire facias was sued out another writ, called in the King's Bench, the distringas, and in the Common Bench, the habeas corpus. The next step was to make up at the proper offices the record of nisi prius, which is a transcription from the issue roll, and contains a copy of the pleadings and the issue. The nisi prius record is then delivered to the judges of assize and nisi prius and serves for their guidance as to the issue to be tried on the circuit. As a rule the trial by jury was usually held at nisi prius, yet in causes of great significance and difficulty the inquest by jury was allowed to be taken before the four judges in the superior court, before whom the pleadings took place, as in the ancient practice. The 26o COMMON LAW PLEADING proceeding is then technically said to be a "trial at bar", as distinguished from a trial at nisi prius. Sec. 1623. SUBMITTING THE FACTS TO THE JURY.— At the trial by jury, the proceedings are directed by the judge or judges; it being the func- tion of the judge to pass on the admissibility of any evidence that may be offered by one party and object- ed to by the other as irrelevant, or incompetent, the judge is also to instruct the jury with regard to the duties it is to perform. After hearing the evdence, the addresses of counsel, and the charge of the judge, and his instructions in regard to the construction of any in- strument of writing that may have been introduced in evidence, the jury retires and having deliberated on the case announce its verdict, which the law requires to be unanimously given. The verdict is usually in general terms as "for the defendant", "for the plaintiflE", and in the later case finding at the same time, where damages are claimed, the amount to which the plaintiff is enti- tled. The rules governing the jury in the arriving at its verdict are, briefly, these: i. To take no matter into consideration but the question at issue. 2. To give its verdict for the party who, upon the proof, appears to have succeeded in establishing his side of the issue. 3. Consider the burden of proof to be upon him who has the affirmative of the issue ; and if he does sustain his contention, in civil cases by a preponderance of the evidence, and in criminal cases, by proof beyond a rea- COMMON LAW PLEADING 261 sonable doubt, the verdict should be given to him who has the negative. Sec. 1624. OF A VARIANCE.— A disagreement upon a material point between the allegations and the proof at trial, is called a "variance", and is fatal to the party on whom rested the burden of sustaining that particular allegation. It is sufficient, however, that the issue in the pleadings be substantially proved. Sec. 1625. ENTERING THE VERDICT OF THE JURY. — The verdict, when given, is formally drawn up and entered on the back of the record of nisi prius. Such entry is called the postea, from the lan- guage, "afterwards came the jury, etc." Sec. 1626. OF EXCEPTIONS, AND THE BILL OF EXCEPTIONS.— If either party is dissatisfied with the ruling of the judge on points of law, as the competency of witnesses, or the admissibility of testi- mony, and wishing to have such ruling reviewed by a superior court, he may, in the superior court from which the judge came, move for a "new trial", but as the trial judge is a member of that court, he may desire to have it reviewed in another court, in which case he must get his objection into the record. This he does by objecting, or, as the phrase is, excepting to the rul- ing of the judge at the time it is made. Within a con- venient time thereafter, which time is fixed by the rules of the court, he tenders to the judge a "bill of exceptions", that is, a statement in writing, of the rul- ings made by the judge, and his objections thereto; to which statement, if truly made, the judge is bound to 262 COMMON LAW PLEADING set his seal in confirmation of its accuracy. The cause, after exception taken, proceeds as though there had been no objection made, but later, when the whole rec- ord is taken to the appellate court by "writ of error", the bill of exceptions is treated as part of the record, and the points of law raised in it are decided in the ap- pellate court, which may be the same as that of the lower court or it may be according to the contention of the party prosecuting the writ of error. ' Sec. 1627. A PARTY MAY DEMUR TO THE EVIDENCE. — A party disputing the legal effect of any evidence offered, may "demur to the evidence". By so doing he says in effect that admitting all the properly received evidence offered by the other side to be true, it is, nevertheless, insufficient to sustain the opposing side of the issue, and because it is thus insuf- ficient, he does not desire to introduce any evidence. Upon joinder in this demurrer, the jury is generally discharged from giving any verdict; and the demur- rer, being entered of record, is afterwards argued and decided in court in banc, and the judgment there given upon it may be ultimately reviewed before a court of error, the same as if it had been tried on the facts and bill of exception taken. A more convenient course for determining the legal effect of the evidence, is to obtain from the jury a "special verdict"; that is, the jury may be asked, in- stead of finding simply the affirmative or negative of the issue, to find a special verdict as to all the facts of the case as disclosed upon the evidence before them. COMMON LAW PLEADING 263 The entry of the verdict, postea, in practice is drawn up by professional hands, and the jury merely declares its opinion as to any facts remaining in contention, and the special verdict is drawn up and settled under the correction of the judge, by the counsel of both sides, according to the findings of the jury so far as deliv- ered, and as to other facts according to what it is agreed they ought to find from the evidence submitted. This special verdict along with the whole proceedings of the trial is entered of record, and argued before the court in banc, and there decided as in case of a de- murrer to the evidence. The dissatisfied party may afterwards resort to a court of error. They cannot be compelled to give a special verdict. A special verdict, when given differs from a demurrer to the evidence, in that the former ascertains the facts proved, the latter recites all evi- dence adduced ; in favor of the special verdict no infer- ences as to matters of fact are allowable, whilst in the case of the demurrer, the court must draw from the evidence demurred to, all inferences that a jury might reasonably draw. When it Is not desired to make out a writ of error, but merely to obtain the decision of the court in banc, the shorter and cheaper course is to take a general ver- dict, subject, as the phrase goes, to "a special case", that is, to a written statement of all the facts of the case, drawn up for the opinion of the court in banc, by the counsel and attorneys on either side, under the 264 COMMON LAW PLEADING correction of the judge at insi prins, according to the principal of a special verdict. Such special case is not entered on the record. A general verdict subject to a special case, is sometimes called "a case agreed". The "case agreed" may occur at any time after suit is instituted ; the "special verdict" only after issue joined. Like the special verdict, the case agreed admits of no inferences of fact, but is strictly construed. Sec. 1628. OF THE JUDGMENT.— In case of trial at Nisi Priiis, the return day of the last jury al- ways falls upon a day in term subsequent to the trial at nisi prius, and forms the next continuance of the cause. On this day, or in case of trial at bar, imme- diately after such trial, judgment is ready to be ren- dered, but in practice a period of four days elapses be- fore judgment can be actually obtained. During these four days the unsuccessful party, in order to avoid the effect of the verdict, may : i . Move the court to grant a "new trial". 2. Move the court to "arrest the judg- ment." 3. Move the court to give judgment "non ob- stante veredicto" (despite the verdict), if he was the plaintiff. 4. Move the court to "award a repleader." 5. Move the court to "award a venire facias de novo." Sec. 1629. HOW A MOTION FOR A NEW TRIAL IS SUPPORTED.— A motion for a new trial may be supported on one or more or these grounds : i. The judge's misdirection to the jury. 2. The erroneous admission or rejection of evidence. 3. The verdict of COMMON LAW PLEADING 265 the jury being contrary to the evidence. 4. The verdict based on evidence insufficient in law. 5. The verdict clearly contrary to the vt^eight of evidence. 6. The discovery of new and material evidence, subsequent to the trial, which the party could not have obtained be- fore the trial by the exercise of due diligence. 7. Ex- cessive, or insufficient damages. 8. Misconduct of the jury, in any respect.. In case any of the above grounds are properly shown to have existed, on motion duly made, it is the duty of the court, in the exercise of its discretion, and with a regard to all the circumstances in the case, to grant a new trial. If this is done, a new jury process subsequently issues, and the cause comes on to be tried de novo. Sec. 1630. GROUNDS UPON WHICH A MO- TION IN ARREST OF JUDGMENT MAY BE MADE. — A motion in arrest of judgment may be made upon the ground of any error, apparent on the face of the record. But such error must be substan- tial. Merely formal errors may be corrected by amend- ment of the record, such corrections being authorized by the statutes of jeofails and amendments. Sec. 1631. WHEN THE MOTION FOR VER- DICT non obstante SHOULD BE MADE.— A mo- tion for judgment tion obstante veredicto is made where, after a pleading by the defendant in confession and avoidance, and issue joined thereof, and verdict found for defendant, the plaintiff on examining the whole record conceives that such plea in avoidance was 266 COMMON LAW PLEADING "bad in substance" and should have been demurred to. The verdict merely finds the plea true, and if it were bad in substance, of course it cannot support a judg- ment, while the defendant by his confession of the ma- terial allegations of the plaintiff, has, the plaintiff con- ceives, really acknowledged his right to recover. It is expedient for the plaintiff to so move even though the verdict be in his own favor, if it seems, in such a case as above described that the judgment taken upon the ver- dict would be erroneous, for then the only safe course would be to take it as by confession. Sec. 1632. WHEN A MOTION FOR A RE- PLEADER SHOULD BE MADE.— A motion for a repleader is made where the unsuccessful party, on ex- amination of the pleadings, conceives that the issue joined was immaterial, and that the defect in the plead- ings cannot be cured by a judgment non obstante vere- dicto as above described. A motion for a judgment non obstante could be made only by the plaintiff, but the motion for a repleader could be made by either party. A motion for judgment non obstante veredicto is always upon the merits of the action, while a motion for repleader is upon a formal defect in the pleadings. Sec. 1633. WHEN A venire facias de novo WILL BE AWARDED. — A venire facias de nozv will be awarded when, by reason of some irregularity or defect in the proceedings on the first venire, or on the trial, the proper effect of that writ has been frustrated, or the verdict has become void in law, as where the jury COMMON LAW PLEADING 267 has been improperly chosen, or has given an uncertain or ambignous or defective verdict. Hence the objection raised by a motion for a ventre facias cfe novo is to the practical course of the proceedings rather than on the merits. Sec. 1634. OF THE FORM OF THE JUDG- MENT. — When the issues have been decided in favor of one or the other of the litigants, and all motions after trial have been disposed of, nothing further re- mains than to award the judicial consequences which the law attaches to such decision, which award is called the judgment. When the judgment is for the plaintiff upon an is- sue in law arising upon a dilatory plea, the judgment is that the defendant respondeat ouster (answer over). Upon all other issues in law, and upon all issues of fact the judgment is that the plaintiff quod recuperet (do recover) . A judgment quod recuperet is of two kinds : interlocutory, and final. The final judgment is rendered where the trial, in its course, has shown the amount of damages which the plaintiff ought to recover, or has shown his title to the property, where that is the issue. The interlocutory judgment is given where he sues for damages, and the trial, as in the case of an issue in law, does not disclose the amount of damages to which he is entitled, such amount is then to be ascertained by a subsequent inquest. When judgment is for the defendant upon an issue arising upon a dilatory plea in abatement, it is that the writ be quashed {quod breve cassetur) ; if in sus- 268 COMMON LAW PLEADING pension only, it is that "the pleading remain without day until, etc." If the issue arise upon a declaration or peremptory plea, the judgment generally is that the plaintiff take nothing by his writ(m7 capiat per breve). In judgments by default, confession, etc., when the defendant appears, but does not plead or follow up his plea until issue joined, judgment of nil dicit (he says nothing) is given against him ; if instead of a plea his attorney says he is not informed of any answer to be given, judgment of non sum informatus (I am not in- formed) is given against him. If before pleading he confess the action, or after pleading he confesses the action and withdraws his plea, the judgment against him is called "judgment by confession, etc.". If the plaintiff fail to make the next move in pleading when he ought, judgment of non pros, {non prosequitur — he does not pursue) is given against him. If he says he will not further pursue, or that he withdraws his suit, or prays that his writ or bill may be quashed that he may sue out a better one, the judgment against him is nolle prosequi, retraxit, or cassetur breve, respect- ively. Judgment of nonsuit goes against the plaintiff upon a trial by jury, if, upon being demanded at the instance of the defendant to be present when the jury gives its verdict, he fails to do so. So judgment, as in the case of non-suit, is given where the plaintiff neglects to bring the cause on to be tried in due time. The proceedings, including the judgment, subse- quent to the award of venire are entered with the con- COMMON LAW PLEADING 269 tinuances, etc., on the issue roll, and in continuation thereof. This is thenceforth called the "judgment roll", and is deposited and filed of record in the treas- ury of the court. Sec. 1635. OF THE WRIT OF EXECUTION. — For the purpose of putting in force the judgment, the successful party sues out such writ of "execution" as he conceives himself entitled to (taking upon him- self all risk of error therein), the writ so issued is ad- dressed to the sheriff and commands him to give the plaintiff possession of the lands, if that is the case, or to enforce the delivery of the chattels in question, or to levy the debt and damages and costs recovered by plaintiff, or to levy for the defendant his costs. Sec. 1636. OF THE WRIT OF ERROR.— A writ of error is an original writ directed to the judges of the court in which judgment was given, and commanding them in some cases, themselves to examine the record, and, in others, to send it to a court of appellate juris- diction, there to be examined in order that some error alleged to be therein may be corrected. The first form is a writ of error coram nobis or vobis. Errors of fact are the only ones corrected by this form, and these er- rors of fact are technical errors in the proceedings, such as allowing an infant to appear by attorney instead of by guardian ; allowing a feme covert to be sued without having her husband joined, etc. The second form of writs of error does not direct the judges to re-examine the record, but to send it to the appellate court. Judges are, in contemplation of 270 COMMON LAW PLEADING law, bound, before giving judgment, to examine the whole record, and then to adjudge either for the plaintiff or defendant according as the legal right may on the whole appear, without regard to the issue in law or fact that may have been raised and decided between the parties. Error in so doing, is thus apparent upon the face of the record, and it is such error that is cor- rected in the appellate court. COMMON LAW PLEADING 271 CHAPTER V. OF THE RULES OF PLEADING. Sec. 1637. THE OBJECTS OF PLEADING.— In order that the business before the courts may be performed with convenience and dispatch it is neces- sary that the point or points material to the rights in controversy between the parties be arrived at as pre- cisely as possible by the litigants before the matter is presented to the court for decision. The court main- tained at public expense cannot with propriety be called upon by the parties to do this work except in so far as from the nature of things it is impossible that they should do it for themselves. The early judges thought that it was sufficient for the attainment of substantial justice if the parties were permitted to stake their claims upon a single issue; it being left to them to determine what this issue should be. Singleness of issue is also to a considerable extent necessary in jury trials, to avoid confusing the fre- quently untrained minds of the jurors. The same con- siderations also requires that the issue be clear and un- ambiguous, arid also that it be certain. It being said by Mr. Stephen, that the chief objects of pleading are "that the parties be brought to issue, and that the issue so produced be material, single, and certain in its qual- ity. Also the avoidance of obscurity, and confusion — 272 COMMON LAW PLEADING of prolixity and delay."* The rules of pleading are those developed by the experience of the pleaders for the sake of achieving these objects. These rules have been thus classified by Mr. Stephen: I. Of rules which tend simply to the production of an issue. II. Of rules which tend to secure the materiality of an issue. III. Of rules which tend to produce singleness or unity in the issue. IV. Of rules which tend to produce certainty or particularity in the issue. V. Of rules which tend to prevent obscurity and confusion in pleading. VI. Of rules which tend to prevent prolixity and delay in pleading. VII. Of certains miscellaneous rules.** Sec. 1638. RULE I— THE PRODUCTION OF AN ISSUE. — After the declaration, the parties must at each stage demur, or plead by way of traverse, or by way of confession and avoidance. The exceptions to this rule are: where a dilatory plea is interposed ; pleadings in estoppel; and where a new assignment is necessary. The fact that the party must demur or plead, gives the rule two branches for consideration : the demurrer, and the pleadings. *Stephen on Pleading, 135. ♦*Stephen on Pleading, 136. COMMON LAW PLEADING 273 Sec. 1639. OF DEMURRERS, THEIR NA- TURE AND PROPERTIES.— It is never proper to demur except for defects apparent upon the face of the pleading demurred to, and it is never improper, though sometimes unwise, to demur for such a defect. Demurrers in nature and form are of two classes: general and special. A general demurrer excepts in general terms to the sufficiency of the pleading de- murred to, but is proper only when the insufficiency is on a matter of substance. A special demurrer is neces- sary where the objection turns on a matter of form only, and it must show the particular ground of objec- tion. It is to be noted, however, that under a special demurrer, the party may on argument not only take advantage of the farticular faults which his demurrer specifies, but also all such objections in substance as do not require, under the statutes to be particularly set down. The safer course is therefore to demur spe- cially, but a special demurrer is open to the objection that it compels the party demurring to particularize the defects, and thus inform the other party of them, earlier than he otherwise would have to do. Sec. 1640. EFFECT OF A DEMURRER.— The first effect of a demurrer is that it admits all such mat- ters of fact as are sufficiently pleaded in the pleading demurred to, that is, it is an admission, for the pur- poses of the demurrer, that the facts alleged are true. In considering the demurrer the court will consider the whole record and give judgment to the party who, on the whole, appears to be lawfully entitled to it. The 274 COMMON LAW PLEADING exceptions to this, are: i. That if the plaintiff demur to the plea in abatement, and the court decide against the plea, the judgment is respondeat ouster, without regard to any defect in the declaration. 2. Though up- on the whole record the right may appear to be with the plaintiff, yet the court will not adjudge in favor of such right unless the plaintiff have himself put his action and right upon that ground. The court in examining the whole record to deter- mine the right, will only consider matters of substance, and will overlook defects of mere form, unless raised upon special demurrer. Sec. 1641. OF THE EFFECT OF PLEADING OVER WITHOUT DEMURRER.— The effects of pleading over without demurrer, where demurrer might be made, are that: i. Faults in the pleading are in some cases aided, that is cured, by pleading over, and with respect to all objections of form the rule is, "if a man pleads over he shall never take advantage of any slip committed in the pleading of the other side which he could not take advantage of upon a general demurrer."** Faults in the pleading are, in some cases, aided by verdict. "Where there is any defect, imper- fection, or omission in any pleading, whether in sub- stance or form, which would have been a fatal objec- tion upon demurrer, yet if the issue joined be such as necessarily required, on the trial, proof of the facts as defectively or imperfectly stated or omitted and with- **2 Salk. 519. COMMON LAW PLEADING 27s out which it is not to be presumed either that the judge would direct the jury to give, or the jury would have given, the verdict, such defect, imperfection, or omis- sion, is cured by the verdict."* But if a necessary al- legation be altogether omitted in the pleading, or if the pleading contain matter adverse to the right of the party by whom it is alleged, and such matter is so clearly expressed that no reasonable construction can alter its meaning, a verdict will not aid or cure it. 3. At certain stages of the cause, all objections of form are cured by the different statutes of jeofails and amendments. Neither after verdict, nor after judg- ment by confession, nil dicit, or non sum informatus, can the judgment be arrested or reversed for any ob- jection of the mere form. Sec. 1642. OF THE PLEADER'S ELECTION TO DEMUR OR PLEAD.— Even though ground for demurrer exists, it is not always advisable to demur. The statutes of jeofails and amendments are so lib- eral that when the defect is one of form merely it will be remedied thereby, and the only effect of demurrer would be to delay the proceedings and give the oppo- site party an opportunity to improve his pleadings ; or if the defect was one not curable by the statutes, it may be better to wait and take advantage of it by motion in arrest of judgment, or for dismissal of the cause, etc. Sometimes, also, by passing an objection and pleading over instead of demurring, one obtains the advantage of contesting with his adversary first upon *i Saund. 288, N. (i). 276 COMMON LAW PLEADING an issue of fact, and afterwards, if the verdict goes against him, of moving in arrest of judgment, or tak- ing out a writ of error, which course is only open when the defect is one which is not cured by verdict. So costs are not allowed when the judgment is arrested, nor when it is reversed upon writ of error, but on de- murrer the successful party obtains his costs. Sec. 1643. PLEADINGS IN GENERAL.— Un- der this head, Mr. Stephen examines: i. The nature and properties of traverses. 2. The nature and prop- erties of pleading in confession and avoidance. 3. The nature and properties of pleadings in general, without reference to their quality, as being by way of traverse, or confession and avoidance.* Sec. 1644. OF THE NATURE AND PROPER- TIES OF TRAVERSES.— Of the various kinds of traverses, the most ordinary kind is called the common traverse. It consists of a tender of issue, that is, of a denial accompanied by a formal offer of the point denied for decision, and the denial that it makes is by way of express contradiction in terms of the alle- gation traversed. These are generally expressed in the negative, but if opposed to a precedent negative allega- tion, then, of course, it is in the affirmative. There is another class of traverses of frequent oc- currence, known as general issues, so called because the issue that one of them tenders involves the whole declaration or the principal part of it, and usually the ^Stephen on Pleading, 153. COMMON LAW PLEADING 277 contradiction is not in terms of the allegation traversed, but in a more general form of expression. Thus, in debt upon specialty, the general issue is called the plea of non est factum; upon simple contract, the plea is nil debet. In covenant \i is non est factum. In detinue it is non detinet. In trespass, and trespass on the case in general, it is not guilty. In trespass on the case on promises {assumpsit) it is non assumpsit. In replevin it in non cepit. The great practical advantage of the general issue is that it brings to issue at the earliest possible stage in the cause, and in many cases it puts the plaintiff to the proof of every substantial part of his cause of action, that is, the general issue usually admits nothing, and denies all. Sec. 1645. SAME SUBJECT— OF THE EF- FECT OF GENERAL ISSUES.— The general issue of non est factum denies that the deed mentioned in the declaration is the deed of the defendant. Under this traverse, the defendant, at the trial, may contend either that he never executed such deed as alleged, or that the alleged deed is absolutely void in law. But mat- ters which make it voidable only, as infancy and duress, must be specially pleaded. Nil debet, as a traverse, is much broader than non est factum. It is adapted to any kind of defense that denies an existing debt. This includes not only a de- nial of the sale and delivery of goods, etc., but also release, satisfaction, arbitrament, etc., and in fact al- most all matters of defense to an action of debt. Non detinet says that the defendant "does not de- 278 COMMON LAW PLEADING tain the said g-oods", etc., tlie said goods being speci- fied as the goods "of the plaintiff." Under it, there- fore, the defendant denies either the detention charged, or else the plaintiff's property in the goods in question. In the action of trespass upon the person not guilty amounts only to a denial of the trespass alleged, and does not permit any excuse of the trespass. Such mat- ter in excuse must be specially pleaded. In trespass quare clausum fregit, it may deny the breaking and entering, or the plaintiff's possession. In trespass de bonis, it denies the taking and also the ownership or possession of the goods. So far the effects of the general issue is consistent with the form and principle of these pleas, but in the general issues in trespass on the case in promises (as- sumpsit), and trespass on the case in general, the effect of the general issue is much broader. It will be re- membered that the action of assumpsit first grew up in its general form, where the promise is implied ; here where the promise might be shown by implication, it was considered only fair that the defense be treated with equal liberality, hence the defendant, under his plea of non-assumpsit, was at liberty to show any cir- cumstance tending to disprove the debt or liability al- leged. By gradual relaxation, this liberality was ex- tended to special assumpsit also, so that under non-as- sumpsit the defendant is permitted to show any matter of defense except tender, bankruptcy, statute of limi- tations, discharge under the insolvency acts, set off, and defenses under the court of conscience acts. But COMMON LAW PLEADING 2n set off may be shown if notice of it be given with the plea. A similar relaxation exists with regard to the plea of not guilty, in the case of trespass on the case in general. But the statute of limitations, the truth of the statement alleged to be libelous, and the retaking upon fresh pursuit in an action for escape, must all be spe- cially pleaded. But even in the case of matters in confession and avoidance that may be shown under the general issue, the defendant may, if he so desires, plead them spe- cially. The chief advantage of pleading specially is that it compels the plaintiff to reply, in doing which he is confined to a single answer. This often puts him to a great disadvantage, for he may have several answers to the defendant's case, and where the general issue is pleaded, may avail himself of them all. The general issue of non cepit applies where the defendant has not in fact taken the goods in question, or where he did not take them or have them in the place alleged; but singularly enough, it does not deny the plaintiff's property in the goods. Sec. 1646. OF SPECIAL TRAVERSES.— A spe- cial travers is a pleading which sets out with a detail of circumstances inconsistent with those stated in the preceding pleading to which it purports to be an an- swer, and then directly denies some fact stated in the preceding pleading and concludes with a verification. The detail of inconsistent circumstances with which it commences, is called the inducement to the traverse ; 28o COMMON LAW PLEADING the denial is called, from its introductory words, the absque hoc (without this). This indirect form of denial might be advisable in any of four classes of circumstances, as follows : 1. The case might be one in which some princi- ple or rule of law was opposed to a direct denial. 2. Some fact, ordinarily immaterial, but in the present case material, might be falsely pleaded by the adversary, and the purpose of the defense would re- quire the materiality of that fact to be made apparent on the face of the pleading. 3. It might be desirable in the particular case to separate questions of law from those of fact. 4. The party pleading the special traverse may desire to get by so doing the right to open and con- clude the cause. An example under the first class of circumstances may be as follows : Lessor's heir sues the lessee for non-payment of rent, alleging in lessor a title in fee simple. A rule of law prohibits the lessee frorri deny- ing the lessor's title, but does not compel hirr. to admit the precise title alleged, so that a special plsi^ding may raise the issue that lessor did not have a title in fee but only a life estate. Under the second class it may be observed, that while the time and place of facts constituting transitory causes of action are immaterial, yet if the question in- volved is one of authority, as of a sheriff, time and place become material incidents. Under the third class, in an action of waste, the COMMON LAW PLEADING 281 acts of devastation may have been committed by rebels in arms. And the defendant wishes to raise the ques- tion of his legal liability for such acts, and therefore pleads the fact of devastation wrought by rebels in arms, and under the absque hoc denies his guilt. This compels plaintiff to demur, or else to join issue upon the fact that rebels committed the waste charged. The special traverse concludes with a verification, it puts, therefore, the affirmative of the issue upon the party pleading it, and thus gives him the right to be- gin and conclude at the trial. Sec. 1647. A SPECIAL TRAVERSE MUST ALWAYS CONSIST OF THREE PARTS.— A spe- cial traverse always consists of three parts, as follows : I. The affirmative part or inducement, which generally introduces new matter, and constitutes the indirect or argumentative denial. 2. The negative part, which contains the direct denial, and is called, from the Latin word introducing this part, the absque hoc, although similar words, et nan (and not) might also be used. 3. The verification and prayer for judgment, with which the form of traverse originally concluded. The regular method of pleading in answer to a spe- cial traverse is to tender issue upon it, with a repeti- tion of the allegation traversed. The absque hoc was necessitated by the rule of pleading that prohibits argumentative denials. The verification was required by the rule that wherever new matter is introduced in a pleading, it is improper to tender issue. 282 COMMON LAW PLEADING Owing to the prolixity of the special traverse and the fact that it delayed the issue by one step, the courts set themselves against it, and finally laid down the rule that, "where the whole substance of the last plead- ing is denied, the conclusion must be to the country, but where one of several facts only is the subject of de- nial, the conclusion may be either to the country, or with a verification, at the option of the pleader." The inducement in a special traverse should be such" as in itself amounts to a sufficient anszvcr in substance to the last preceding pleading, and it must not consist of a direct denial. It must not be in the nature of a confession and avoidance, since this does not deny but rather admits. The opposite party has no right to traverse the in- ducement, except where the denial under the absque hoc is bad. If the absque hoc is sufficient in law, the inducement cannot be confessed and avoided, but if it is insufficient in law the opposite party then has the right to plead in confession and avoidance of the in- ducement, or to traverse it; or he may demur to the whole traverse for the insufficiency of the denial. Sec. 1648. PRINCIPLES APPLICABLE TO TRAVERSES IN GENERAL.— The following prin- ciples are applicable to traverses in general : I. A traverse must deny modo et for mo (in man- ner and form) as alleged. This is required that the traverser may take advantage of any variance between his opponent's allegations and his proof. But- these words, though usually employed, are not so essential COMMON LAW PLEADING 283 that their omission is cause for demurrer, and they are not used in the general issue of non est factum, nor in the repHcation de injuria. 2. A traverse must not be taken upon a matter of law. A demurrer is the approriate form for test- ing the correctness of an allegation of law. But where an allegation is a confusion of law and fact, it may be traversed. 3. A traverse must not be taken upon matter not alleged, but it may be taken upon matter not expressly alleged, if it is necessarily implied. 4. A party to a deed who traverses it must plead non est factum, and should not plead that he did not grant, did not demise, etc. This is to avoid the doctrine of estoppel. For a man is sometimes in law preclud- ed from alleging or denying a fact because by some previous act, allegation, or denial, he has taken a posi- tion inconsistent with the one he now desires to take, and such a preclusion is called an estoppel. Estoppel may arise: (a) From matter of record; (b) from the deed of the party; (c) from matter in pais, that is, matter of fact. Thus, any confession or admission in a pleading in a court of record, whether it be express or be implied from pleading over without a traverse, will, — unless coupled at the time with a saving prot- estation, — forever preclude the party from afterwards contesting the same fact in any subsequent suit with the same adversary. So a recital of a certain fact by the party in any deed which he executes, precludes his • denying that fact in any action brought by or against 284 COMMON LAW PLEADING him upon that deed. And where one party accepts rent from another he is thereby estopped from denying in any action with such party, that the party paying the rent was not in fact at the time his tenant. But a stranger to a deed is not estopped to deny allegations of the deed ; hence, when he is sued, he pleads non est factum, but not concessit, etc. Sec. 1649. OF PLEAS IN CONFESSION AND AVOIDANCE. — Pleas in confession and avoidance are divided, with respect to their subject matter, into: I. Pleas in justification or excuse. 2. Pleas in dis- charge. The effect of pleas in justification or excuse is to show that the ^plaintiff never had any right of action, because the act charged was lawful ; while the effect of pleas in discharge is to show some discharge or release of the matter complained of in the declaration ; that is, though there was once a right of action, it has been discharged or released by some subsequent matter. This division of the subject applies to picas only. Replica- tions and subsequent pleadings in confession and avoidance are not subject to any such classification. Pleadings in confession and avoidance, in comrnon with all other pleadings that do not tender issue, con- clude always with a verification and a prayer of judg- ment. Every pleading by way of confession and avoid- ance must give color, that is, it must admit an apparent right in the opposite party, and rely on some new mat- ter by which that apparent right is defeated. Such COMMON LAW PLEADING 285 color as being inherent in the pleadings is called im- plied color; but some circumstances of fact contain no inherent or implied color, and here the pleader wishing to plead by way of confession and avoidance must give color, by which is meant a "feigned matter,'' pleaded by the defendant in an action of trespass from which the plaintiff seems to have a good case of action, whereas he has in truth only an appearance or color of cause. By pleading by way of confession and avoidance the defendant gains several advantages : Thus, he spreads his title on record and obliges the plaintifif, if he regards it as not a lawful title as thus exhibited, to demur and present the question to the court, instead of its going along with the other matters to the jury, as would have been the case upon a plea by way of tra- verse. The plea in confession and avoidance also obliges the plaintiff to traverse or attack but a single link in the defendant's chain of title, and thus to admit all the others as good. Such a plea also gains for the party the affirmative of the issue, and therefore the right to open and close. The plaintiff was not allowed in his replication to traverse the fictitious matter suggested by way of color; for its only object being to circumvent a diffi- culty of form, such a traverse would be wholly foreign to the merits of the case. The practice of giving express color is now con- fined to actions of trespass, and in those actions to the plea only. It is unusual to resort to any except cer- 286 COMMON LAW PLEADING tain known fictions which long usage has applied to the particular case. The fictitious averment must consist of such matters as, if it were effectual, would "sustain the nature of the action, and the right suggested must be colorable only, for if more than colorable the plain- tiff would, by the defendant's own showing, be entitled to recover. Sec. 1650. OF THE NATURE AND PROPER- TIES OF PLEADING IN GENERAL.— The follow- ing propositions are to be observed with regard to the nature and properties of pleadings in general: i. Every pleading must be an answer to the whole of what is adversely alleged. If it answer part only, the oppo- site party is entitled to take judgment for the part left unanswered, and his omission to do so will be a discon- tinuance or abandonment of the whole action. If it attempts to answer the whole, but is insufficient, then the opposite party's course is to demur to the whole plea. Where the part not answered is immaterial or such as requires no separate or specific answer, the rule does not apply. 2. Every pleading is taken to confess such travers- able matters alleged on the other side as it does not tra- verse ; and this effect continues through all subsequent actions between the same parties. The effect in re- gard to subsequent actions may be avoided by the prac- tice of protestation. And even this does not save the party protesting unless the issue is decided in his fa- vor, unless the matter be such as the party protesting was precluded by some rule of law from taking issue COMMON LAW PLEADING 287 upon. A protestation ought not to be repugnant to the pleading which it accompanies, nor ought it to be taken upon such matters as the pleading itself traverses. As protestations are made only to save advantages in sub- sequent suits, any faults in their forms are not subject to demurrer. The rule requiring a party, at each stage after the declaration, to demur, or plead, does not apply to: i. Dilatory Pleas. 2. Pleadings in estoppel. 3. Where a new assigitment is necessary. These exceptions may be explained as follows : 1. Dilatory pleas merely oppose a matter of form to the declaration, and do not tend either to deny or to confess its allegations. Replication and subsequent pleadings following on dilatory pleadings are not within this exception. 2. Pleadings in estoppel neither admit nor deny the matter of fact adversely alleged, but merely state the previous act, allegation or denial on which the estoppel is declared by the pleader to arise, and pray judgment if the adverse party shall be received or ad- mitted to aver contrary to what he before did or said. 3. Declarations are conceived usually in very gen- eral terms. In some cases the defendant is not suffi- ciently guided and confined by the declaration to the real cause of complaint, and thus applies his plea to a different matter from that which the plaintiff has in view. This compels the plaintiff to make, in his repli- cation, a new assignment, or statement of his cause of action, in which he guards against a repetition of the 288 COMMON LAW PLEADING defendant's mistakes. Where the plea correctly applies to a part of the injuries complained of, but owing to the generality of the statement in the declaration, fails to cover the whole, the plaintiff's course is both to tra- verse the plea and to new assign. Thus, in a charge of trespass, if the defendant pleads that he has a right of way over a certain part of the close, and that the alleged acts of trespass were committed by virtue of this right of way, the plaintiff replies by alleging that he brought this action not only for those trespasses mentioned by the defendant, but for others committed on other occasions and at other places, beyond the supposed way, which is usually called a new assign- ment extra viam (beyond the way), or, if the plaintiff means to admit the right o"f way, he may assign sim- ply, without the traverse. The new assignment should be sufficiently specific, if possible, to prevent a repeti- tion of the defendant's mistake. Sec. 1651. RULE II.— UPON A TRAVERSE ISSUE MUST BE TENDERED.— The second gen- eral rule of pleading is that upon a traverse, issue must be tendered. The traverse involves a contradiction or denial of the preceding pleading, hence an issue in fact has been reached, and the rule expresses the sensible requirement that the method of deciding the issue be now adjusted. The formulae of tendering the issue in fact, vary according to the mode of trial proposed. Thus, the tender of an issue to be tried by jury is by a formula called the conclusion to the country. In this the de- COMMON LAW PLEADING 289 fendant "puts himself upon the country" ; the plaintiff prays that the issue "may be inquired of by the coun- try." There is, however, no substantial difference be- tween these two modes of expression, and no substan- tial objection can be taken if they are interchanged. Where new matter is introduced, the pleading should always conclude with a verification. Sec. 1652. RULE III.— ISSUE WHEN WELL TENDERED MUST BE ACCEPTED.— The third rule of pleading is that if issue be well tendered both in substance and form it must be accepted, and the other party may not demur, traverse, or plead in con- fession and avoidance. The exception to this rule is, that a party may plead in estoppel even after issue is well tendered. The acceptance of the issue, in case of trial by jury, is called the similiter, because the usual form of word- ing it is, "And the said A. B. doth the like." This is added in making up the issue or paper-book. It may be filed or delivered, however, before that transcript is made up, in which case its form is slightly different, and it is called a special similiter. As the party has no option in accepting an issue when well tendered, the entry of the similiter is a mere matter of form, and may be made by the party who tenders the issue. But the other, party for whom this similiter is thus entered, may, if he conceives that the issue is not well tendered, strike out the similiter and demur to the defective tender. The rule that an issue must be accepted, extends 290 COMMON LAW PLEADING to an issue in law also, so that the party whose pleading is opposed by a demurrer is required to accept the is- sue in law, and the formula by which he does this is called a joinder in demurrer. Here he is bound to ac- cept, however, for he cannot demur to a demurrer. So far we have discussed rules which tend simply to the production of an issue. Sec. 1653. OF RULES WHICH TEND TO SE- CURE THE MATERIALITY OF THE ISSUE— THE GENERAL RULE. — All pleadings must contain matter pertinent and material. This is essential to keep the issue from going astray. As where the dec- laration on assumpsit laying promises by the intestate, should be traversed by the defendant administratrix as to her own promises instead of those of the intestate, such plea would be immaterial and bad. As to traverses this rule includes the following : 1. A traverse must not be taken on an immaterial point ; or upon matter the allegation of which was pre- mature; or upon matter of aggravation; or upon mat- ter of inducement. But this last rule does not apply where the introductory matter is in itself essential, and of the substance of the case, for in such a case it may be traversed. Also, where there are several material allegations, the pleader may traverse whichever he pleases, since if he breaks a single link he breaks the chain. 2. A traverse must not be too large, nor too nar- row; that is, it must take in no more, and no less of the allegation traversed than is material. COMMON LAW PLEADING 291 A traverse may be too large by involving in the is- sue quantity, time, place, or other circumstances, which, though forming part of the allegation traversed, are immaterial to the merits of the cause. A traverse may also be too large by being taken in the conjunc- tion instead of the disjunctive, where it is not material that the allegation traversed should be proved con- junctively. On the other hand, a party may, general- ly, traverse a material allegation of title or estate to the extent to which it is alleged, though it need not have been alleged to that extent, and such traverses will not be considered too large. A traverse is too narrow when it fails to answer fully the whole of the adversary's allegation which it purports or undertakes to answer. So, a traverse may be too narrow by being applied to a part only of an allegation which the law considers as in its nature indivisible and entire, such as that of a prescription or grant. The principle which forbids too narrow a traverse is the same as that which requires that every pleading shall really answer so much of the adver- sary's pleading as it professes and undertakes to an- swer. Sec. 1654. OF RULES WHICH TEND TO PRODUCE SINGLENESS OR UNITY IN THE ISSUE— RULE I.— PLEADINGS MUST NOT BE DOUBLE. — The first rule tending to produce single- ness or unity of the issue is, that pleadings must not be double. With respect to the declaration, this rule means 292 COMMON LAW PLEADING that the declaration must not, in support of a single de- mand, allege several distinct matters, by any one of which that demand is sufficiently supported. With re- spect to the subsequent pleadings, none of them is to contain several distinct answers to that which preceded it. The reason in both cases is that such pleading tends to several issues concerning a single claim. The rule in terms prohibits only doubleness or duplicity, but it will include multiplicity also. The purpose of the rule is to secure a single issue upon a single subject of claim or defense. The declaration may, therefore, in support of several demands, allege as many distinct matters as are respectively applicable to each. And the plea may make distinct answers to such parts of the declaration as relate to different matters of claims or complaints. Likewise in the replication and subse- quent pleadings. But the power of alleging in a plea distinct matters in answer to such parts of the declara- tion as relate to different claims, seems to be subject to this restriction, — that none of the matters alleged be such as would alone be a sufficient answer to the whole. If there be two or more defendants the rule against duplicity is not carried to the extent to compel each of them to make the same answer to the declaration. The defendants may either join in the same plea, or sever, at their discretion. But if they have united in the plea, they cannot sever at the rejoinder or other later stage of the pleading. A pleading that contains several answers is double, even though the answers be COMMON LAW PLEADING 293 of different classes. Matter may suffice to make a pleading double, even though it be ill-pleaded. But matter purely immaterial cannot make a pleading dou- ble. The purely immaterial matter is surplusage and may be stricken out, no issue can be taken upon it, and it therefore does not tend to prevent singleness of is- sue. Nor will matter pleaded only as necessary in- ducement to another allegation operate to make a pleading double. No matters, however multifarious, will operate to make a pleading double, if, taken together, they constitute but one connected proposition or entire point. This applies not only to pleas in confession and avoidance, but to traverse also, so that a man may deny as well as affirm, any number of circumstances that to- gether form but a single point or proposition. A tra- verse of several matters thus connected is called a cic- mulative tr&verse. But if the matters so connected re- quire when separate, some to be traversed by one spe- cies of traverse, and some by another, then a cumula- tive traverse seems to be improper. A protestation does not make a pleading double, fince it does not tend to an issue, but merely saves to the party the right of denying, in a future suit, be- tween the same parties, the matter admitted in the pres- ent suit. Where a plaintiff has several distinct causes of ac- tion, he is allowed to pursue them cumulatively in the same original writ, provided they conform to certain rules which the law prescribes as to joining only such demands as are of a similar quality or character. Such 294 COMMON LAW PLEADING different claims or complaints constitute different parts or sections of the declaration, and are known in pleading by the designation of counts. Sec. 1655. SAME SUBJECT— OF THE USE OF SEVERAL COUNTS.— Distinct causes of actions of the same quality or character may be joined in one action by the use of separate or several counts for each claim. When several counts are thus used, the de- fendant may, according to the nature of his defense, demur to the whole ; or he may plead a single plea ap- plying to the whole ; or he may demur to one or more counts, and plead to the others ; or he may plead a sev- eral plea to each count; and in the two latter cases, the result may be a corresponding severance in the pleadings, and the production of several issues. But whether one or more issues be produced, if the decision, whether in law or in fact, be in the plaintiff's favor, as to any one or more counts, he is entitled to judgment pro tanto (for so much) though he fail as to the remainder. All this is quite consistent with the rule against duplicity. But through this practice of using counts the pleader for the plaintiff, at an early date became able to evade the rule against duplicity by stating what was really but a single cause of action as though it were several, — slightly varying his descriptions in each count. His principal purpose in so doing was, of course, to make himself more secure against the in- sufficiency of any one statement of his cause; also to lessen the possibility of a variance between his allega- COMMON LAW PLEADING 29s tions and the proof that might develop in the course of the trial. As the court visited no censure upon the pleader, even though the event of the suit showed quite conclusively that he never really supposed himself to be enforcing more than one cause, this practice speed- ily became universal. The same statement of facts may be varied by omitting in one count some matter stated in another. In such a case the more special count is used, lest the omission of this matter render the other insufficient in point of law. The more gen- eral count is used, because if good in point of law, it will relieve the palintiff from the necessity of proving such omitted matter in point of fact. If the defendant demur to the more general count as insufficient, and take issue in fact upon the other, the plaintiff has the chance of proving the matter alleged, and also the chance of succeeding in the demurrer. If, on the other hand, the defendant do not demur, but take issue in fact upon both, it will be sufficient for the plaintiff to prove the more general count. The several counts must always purport to be founded on distinct causes of actions, and not to refer to the same matter. This is accomplished by the pleader by inserting such words as "other", "the further sum", etc. The pleader may evade the rule against duplicity but the court would be shocked if he were to violate it. To several counts, or distinct parts of the same count, the defendant may plead several pleas, that is, one to each count. But in the light of the practice of pleading the same 296 COMMON LAW PLEADING cause of action in different forms, as though there were really several causes, it seemed unjust that the defendant should not be given equal freedom in plead- ing his defense, so in 1705 it was enacted that "it shall be lavvfful for any defendant or tenant, in any action or suit, or for any plaintiff in replevin, in any court of record, with leave of the court, to plead as many several matters thereto as he shall think necessary for his defense." This requires that the defendant, before pleading his several defenses, get leave from the court so to do. Where the defendant pleads several defenses, the plaintiff has the same privilege of demurring to all, or to some, and pleading to the others ; or pleading to all, as has the defendant with regard to the plain- tiff's several counts. Though the statute presumable intended to allow one plea for one ground of defense, yet the same re- laxation has grown up here as with regard to the plaintiff's several counts. But the court will some- times refuse leave to the defendant to plead inconsist- ent pleas. It will be noticed that the statute extends only to pleas, and does not apply to replications and subse- quent pleadings ; nor does it apply, it is held, to dila- tory pleas. The several matters of defense must be pleaded formally, with the words, "by leave of the court for this purpose first had and obtained". Each one must also be pleaded as a new and further plea, with a formal commencement and conclusion as such. But in all these cases, if the opposite party does not COMMON LAW PLEADING 297 demur, for the duplicity, but instead pleads over, he must answer each matter alleged. Sec. 1656. RULE II.— IT IS NOT ALLOWA- BLE BOTH TO PLEAD AND TO DEMUR TO THE SAME MATTER.— The second rule to procure the singleness or unity of issue, is that the pleader cannot both plead and demur to the same matter. This rule does not extend to prohibit one from pleading to one distinct matter and demurring to another. So the statute authorizing several pleas discussed in the last section, does not allow pleading and demurring to the same matter. Sec. 1657. OF RULES WHICH TEND TO PRODUCE CERTAINTY OR PARTICULARITY IN THE ISSUE— RULE I.— The rules of pleading tending to produce certainty in the issue are numer- out, the first of which is : The pleadings must have cer- tainty of place. This rule grew out of the former re- quirement that the jurors should be from the locality wherein the cause was alleged to have arisen, thus making it necessary to allege the place with particu- larity. Such place is called the venue of the action, and to allege it in the declaration is to lay the venue. The original writ must be directed to the sheriff of some county, and in that county the action is said to be brought or laid. Each aClrmative traversable allega- tion in the writ is to be laid with a venue or place, com- prising not only the county in which the fact occurred, but also the parish, town or hamlet within that coun- ty; but no such particularity is required in mere mat- 298 COMMON LAW PLEADING ters of inducement. Of the different facts alleged in the writ, it is necessary that some principal one, at least, should be laid in some parish, town or hamlet, within the county in which the action is brought, in or- der to justify the bringing of the action in that county, and such county and the particular place so laid with- in it are called the venue in the action, or the venue where the action is laid. The declaration must have the same venue as the original writ. The county where the action is laid is placed at the commencement in the margin of the declaration. And all the different affirmative tra- versable allegations are to be laid with a venue in par- ish, town or hamlet, as well as county, in the same manner as in the original writ, and in accordance with it. In proceedings by bill, the law of venue is the same, except, of course, that there is no original writ, and that the bill first states the venue. The plea, repli- cation, and subsequent pleadings lay a venue to each affirmative traversable allegation, according to the principles already stated, until issue joined. Under the early law, because jurors were required to be men acquainted with the facts, they were re- quired to be summoned from the venue of the action. Later, as they became transformed into judges of the facts, determining them from the evidence, this re- quirement became a matter of mere form, and it was considered sufficient if no more than two jurors were from the venue. Finally, in 1865, one of the statutes COMMON LAW PLEADING 29$ of jeofails (16 and 17 CAR. II, c. 8), provided that "after verdict, judgment shall not be stayed or re- versed, for that there is no right venue, so as the cause were tried by a jury of the proper county or place where the action is laid." Before that time it had been ground for arresting or reversing judgment in case the jury had been summoned from the venue in the action when that differed from the venue laid to the fact in issue. Another statute (4 Anne, c. 16), provided that "every venire facias for the trial of any issue shall be awarded of the body of the proper county where the issue is triable", instead of being as formerly, award- ed from the particular venue of parish, town or ham- let. The joint effect of these two statutes is that the venire now directs that the jury in all cases shall be summoned from the body of the county in which the action is laid, whether or not that be the venue of the fact in issue. Actions are either local or transitory. An action is local if all the principal facts on which it is founded be local. It is transitory if any principal fact be of the transitory kind. And a fact is transitory when it might equally well have occurred elsewhere than where it did ; as, for example, an assault. An action is local if it could not have occurred elsewhere, as a trespass to a particular parcel of land. The venue of local facts must be truly laid. In transitory facts is need not be ; and as the locality of a transitory fact is immaterial, there can be no variance in regard to it. 300 COMMON LAW PLEADING So in transitory actions the venue may be laid at pleasure, but in local actions must be laid truly. But the plaintiff's freedom to lay the venue of a transitory action where he pleases is checked by a practice of the court to allow the defendant to move the court to have the venue changed so as to be in conformity to the fact. This motion, when supported by affidavit that the cause of action arose wholly in the county to which it is proposed to change the venue will, in most cases, be granted, and the plaintiff obliged to amend his dec- laration in this regard, unless he, on the other hand, will undertake to give at the trial, some material evi- dence arising in the county where the venue was laid. The rule is, that while the venue of transitory facts need not be laid truly, it cannot be anything at pleas- ure, but must be the venue laid in the action. No venue need be laid with respect to transitory matters in the pleadings subsequent to the declaration, because, with respect to every matter of this description, the original venue will be taken to be implied, but it is usual to lay a venue in these, and is the better course. When transitory matters are laid out of their true place, they should be laid under a videlicet, that is, with the prior intervention of the words, "to-wit" or "that is to say". The effect and object of the videlicet is to mark that the party does not undertake to prove the precise place alleged. The proper method of alleging a local matter occurring outside the realm was ar- ranged in this fashion, "In parts beyond the 5eas, at Fort St. George, in the East Indies, to wit, at West- COMMON LAW PLEADING 301 minster, in the county of Middlesex." The true place being followed by a videlicet and then a county in En-, gland. This method is also usually applied to local matters arising within the realm if they happen at a different venue from that laid in the action. Where place is alleged as a matter of description and not as a venue, it must in all cases be stated truly, under peril of variance.- If no venue be laid in the declaration the defendant may demur, or may plead the defect in abatement. Even in local and penal actions, the only modes of ob- jecting to the venue are by demurrer, or at the time as ground of non-suit. Sec. 1658. RULE II.— PLEADINGS MUST FIAVE CERTAINTY OF TIME.— The second rule tending to produce certainty in the issue, is that the pleadings must have certainty of time. In personal actions the pleadings must allege the time, that is, the day, month and year when each traversable fact oc- curred; and when there is occasion to mention a con- tinuous act, the period of its duration ought to be shown. But no time need be alleged to matter of mere inducement or aggravation. Wherever it is necessary to lay a venue, it is also necessary to mention time. But in transitory matters time occupies a place of im- portance corresponding to that of place; hence the truth of the allegation of time is usually unimportant. But where the time is not stated truly, it must be laid under a videlicet, and it should never be so stated as to show an intrinsic impossibility, nor is it ever permis- 302 COMMON LAW PLEADING sible to have it inconsistent with the fact to which it relates. Such misstatement, if in regard to a travers- able fact, would make the pleading demurrable, Whenever time is material, that is, is of the substance of the issue, a misstatement of it is not helped by be- ing under a videlicet. So where time is immaterial it should, in subsequent pleadings, follow the day alleged in the declaration and writ. If, in this case, no time is stated in such pleadings, the defect is cured by the ver- dict or by the judgment; but verdict and judgment do not cure the omission if time is material. Sec. 1659. RULE III.— THE PLEADINGS MUST SPECIFY QUALITY, QUANTITY, AND VALUE. — The third rule under this division is that the pleadings must specify quality, quantity and value. Value must be specified in the legal denominations of the money of the country. Quantity should be speci- fied by the ordinary measures of extent, weight or ca- pacity. Where the nature of the subject matter will not conveniently admit of exact specification of quality or quantity, loose and general specification is sometimes admitted. In some kinds of actions, as debt, and in- debitatis assumpsit, modern practice does not require quality, quantity or value of the goods sold in the pleading, but the amount due must be pleaded. It is usually not material that quantity and value be proved as laid when they are laid under a videlicet, but a verdict cannot generally be obtained for a larger COMMON LAW PLEADING 303 quantity or value than is alleged. But quality must be strictly proved as laid. Sec. 1660. RULE IV.— THE PLEADINGS MUST SPECIFY THE NAMES OF PERSONS.— Another rule to produce certainty in the issue is, that the pleadings must specify the names of persons. This rule applies to the parties to the suit. Each must be described by the true Christian and surname, and if either be mistaken or omitted, it is ground for plea in abatement. So names of dignity are equally import- ant. So the rule applies to all other persons mentioned in the pleadings with the -exception that if the names of any such be not known to the pleader, he should so state, in which case the omission is excused. Mistake in the name of a party is ground for plea in abatement only; but a mistake in the name of any other is fatal. Sec. 1661. RULE V.— THE PLEADINGS MUST SHOW TITLE.— Another rule to attain cer- tainty is that the pleadings must show title. Under this rule, where a party alleges title in himself or an- other whose aiithority he pleads, it is often sufficient to allege a title of possession ; that is, that the property is "the goods and chattels of the plaintiff", or "that plain- tiff was lawfully possessed of them as of his own prop- erty", or "the close of the plaintiff", etc. A title of possession will be applicable, that is, will be sufficiently sustained by the proof of an interest in remainder or 304 COMMON LAW PLEADING reversion. Where a title of possession is applicable, the allegation of it is, in many cases, sufficient in plead- ing, without alleging title of a superior: kind, the rule being that it is sufficient to allege possession as against a wrongdoer. This does not hold good, however, in replevin, or in real or mixed actions. Where the rule as to alleging possession against a wrongdoer does not apply, there, though the interest be present, or possessory, it is generally not sufficient to state a title of possession, but some superior title must be shown, and it must be alleged in its full and precise extent. Where a party alleges title in his adversary, it is not necessary to allege it mo're precisely than is suffi- cient to show a liability in the party charged, or to de- feat his present claim. Usually it is sufficient to allege a merely possessory title, though this is not always so, as, for example, in suing the defendant for rent. Even where the allegation of possession is not sufficient, the derivation of title, if required to be shown at all, is never expected to be shown as fully and precisely as when the party is pleading his own title. Title is or- dinarily, of the substance of the issue, and when so it must be proved strictly as laid. Certain exceptions to the foregoing should be stated. Thus no title need be shown where the oppo- site party is estopped to deny the title; this is only where the estoppel goes to the full extent of the title which the pleader desires to establish ; if it stops short of this point, the title should be alleged. COMMON LAW PLEADING 305 Sec. 1662. RULE VI.— THE PLEADINGS MUST SHOW AUTHORITY.— This rule of cer- tainty, that the pleadings must shotv authority, applies when a party has occasion to justify under a writ, war- rant, precept, or any other authority, whatever, he must particularly set it forth in his pleading, and he must also show that he has substantially pursued such authority. It is not necessary that any person justifying under judicial process should set forth the cause of action in the original suit in which that process issued. And it is sufficient for the officer executing such writ, to plead the writ only, but any other person must plead the un- derlying judgment as well as the writ. If an officer justifies, and the writ .was returnable, he must plead that it was returned; otherwise with the one who has not the power to procure a return to be made. Where it is necessary to plead the judgment of a superior court it is not necessary to plead any of the previous proceedings ; otherwise with a court of in- ferior jurisdiction, where the jurisdiction is never pre- sumed. Likewise the jurisdiction of foreign courts is not presumed. But where an authority may be created orally and generally, it is allowable to plead it in general terms. Averments of authority must be strictly proved. Sec. 1663. RULE VII.— IN GENERAL, WHAT- EVER IS ALLEGED IN PLEADING MUST BE ALLEGED WITH CERTAINTY.— In accordance 3o6 COMMON LAW PLEADING with this rule, that whatever is alleged in pleading must be alleged with certainty, where the performance of a condition or covenant is pleaded, it must usually be pleaded fully and specifically. But this rule is re- laxed where there is such multipHcity of matter as would lead to great prolixity. And where the condition is for the performance of matters set forth in another instrument, and the mat- ters are in an affirmative and absolute form, and nei- ther in the negative or disjunctive, a general plea of performance is sufficient. Where a bond is condi- tioned for indemnifying the plaintiff, a general plea of non damniUcatus is sufficient. But even in these ex- cepted cases, the plaintiff in his replication must show particularly in what way the condition or covenant has been broken. With respect to all points on wfiich certainty of al- legation is required, the allegation, when brought into issue, must usually be proved substantially as laid, with the exception of place, time, quantity and value, and even in these cases in certain issues. Sec. 1664. LIMITATIONS UPON THE PRE- CEDING SEVEN RULES.— There are certain limi- tations and restrictions placed upon the foregoing rules tending to produce certainty by other and subordinate rules of pleading, as follows : 1. It is not necessary in pleading to state that which is merely matter of evidence. 2. It is not necessary to state matter of which the COMMON LAW PLEADING 307 court takes notice ex oMcio. The court takes such no- tice of all public law, whether common or statute, but not of private law, unless the statute' expressly so di- rects. It is necessary also, in some cases, to make men- tion of the law for the convenience or intelligibility of the statement of fact. As it is unnecessary to state matter of law in a pleading, it is equally improper to make it, when alleged, the subject of traverse. 3. It is not necessary to state matter which would come more properly from the other side. Thus, it is unnecessary to anticipate the answer of one's adver- sary. It is sufficient that each pleading should contain, in itself, a good prima facie case. But whatever is es- sential to a prima facie case must be stated. But there are certain pleas which are regarded unfavorably by the courts, as tending to shut out the truth, and these, such as estoppel, that the other party is an alien ene- my, and the like, must be certain in every particular. They must meet and remove, by anticipation, every possible answer of the adversary. 4. It is not necessary to allege what the law will presume. 5. It is not necessary to allege circumstances nec- essarily implied. 6. A general mode of pleading is allowed where great prolixity is thereby avoided. The proper extent and appliijation of this rule is largely a matter of prac- tical judgment, only to be obtained by a study of the precedents. 7. A general mode of pleading is often sufficient 3o8 COMMON LAW PLEADING where the allegation on the opposite side must reduce the matter to certainty. Thus pleading performance in actions of debt on bond, and pleading non damnifica- tus in an action of debt on an indemnity bond may be general. Likewise where the condition is for the per- formance of covenants or other matters contained in an indenture or other instrument, collateral to the bond sued on, and not set forth in it. But this does not ap- ply where the covenants or other matters mentioned in the collateral instrument are either in the negative or the disjunctive form, for here the allegation of per- formance should be more specially made, so as to apply exactly to the tenor of the collateral instrument. In pleading performance of matters contained in a collateral instrument, it is necessary not only to crave oyer of the condition and set it forth, but also to make profert of the collateral instrument and set forth its whole substance. 8. No greater particularity is required than the nature of the thing pleaded will conveniently admit. 9. Less particularity is required when the facts lie more in the knowledge of the opposite party than of the party pleading. 10. Less particularity is required in the statement of matter of inducement or aggravation than in the main allegations. 11. With respect to acts valid at comm^ law, but regulated as to the mode of performance, by statute, it is sufficient to use, in the declaration, such certainty of allegation as was sufficient before the statute. But the COMMON LAW PLEADING 309 plea should show the agreement or other instrument to be in writing, if the statute makes writing necessary. Sec. 1665. OF RULES WHICH TEND TO PREVENT OBSCURITY AND CONFUSION IX PLEADING. — RULE L — PLEADINGS MUST NOT BE INSENSIBLE NOR REPUGNANT.— The first of the rules tending to prevent obscurity and confusion in pleading, is, pleadings must not be insen- sible nor repugnant. A pleading is insensible when, through the omission of material words, and the like, it has become unintel- ligible. It is repugnant when its parts are inconsist- ent with each other. Repugnancy is ground for de- murrer. If the second allegation, which creates the repugnancy, is merely superfluous and redundant, so that it may be rejected from the pleading without ma- terially altering the general sense and effect, it shall, in that case, be rejected, at least if it laid under a videli- cet, and shall not vitiate the pleadings, for the maxim is, utile per inutile non vitiatur (the useful is not vi- tiated by the useless). Sec. 1666. RULE II.— PLEADINGS . MUST NOT BE AMBIGUOUS, OR DOUBTFUL IN MEANING, AND WHEN TWO DIFFERENT MEANINGS PRESENT THEMSELVES, THAT CONSTRUCTION SHALL BE ADOPTED WHICH IS MOST UNFAVORABLE TO THE PARTY PLEADING.— Under this rule it is sufficient if the pleadings be certain to a common intent, that is, 310 COMMON LAW PLEADING if it be clear according to reasonable intendment and ordinary usage, without being absolutely precise. A negative pregnant is such a form of negative ex- pression as may imply or carry within it an affirma- tive. Such an expression in pleading is faulty under this rule as being ambiguous. Sec. 1667. RULE III.— PLEADINGS MUST NOT BE ARGUMENTATIVE.— Another rule seek- ing to prevent obscurity and confusion in pleading is, that the pleadings must not be argumentative. Thus two affirmatives do not make a good issue, for the tra- verse by the second is argumentative in its nature. It is this rule against argumentativeness that necessitates the absque hoc in the special traverse. The vitiating affirmativeness must be in the effect of the words used and not merely in their form. So a traverse consist- ing of two negatives is equally bad, and for the same reason. Sec. 1668. RULE IV.— TENDING TO PREVENT OBSCURITY AND CONFUSION.— Another rule under this division is, pleadings must not be hypotheti- cal, nor is it permissible to have them in the alterna- tive. Sec. 1669. RULE V.— TO PREVENT OBSCUR- ITY AND CONFUSION.— P/