670 m HERBERT D. LAUBE (SnrttfU Ham ^rljnol Hfeanj Herbert ®. ffiauhe GJollecttmt 1948 Hemnrial (£tft nf tl?e g>tubenta of tlje (flarneU Sam g>cl;anl Cornell University Library KF 670.B84 C.2 The conveyance of estates in fee by deed 3 1924 018 782 510 The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018782510 THE CONVEYANCE OF ESTATES IN FEE BY DEED BEING A STATEMENT OF THE PRINCIPLES OF LAW INVOLVED IN THE DRAFTING AND INTERPRETATION OF DEEDS OF CONVEYANCE AND IN THE EXAMINATION OF TITLE TO' REAL PROPERTY BY JAMES H. BREWSTER INDIANAPOLIS THE BOBBS-MERRILL COMPANY PUBLISHERS B ///63K Copyright 1904 The bobbs-merrill Company PREFACE. The purpose of the writer has been to state the princi- ples of law applicable to the transfer of the title to real property by deed, in such manner as to assist one in draft- ing and interpreting the instrument of transfer. No one whose attention has been directed to the ques- tions that have arisen, and that are likely to arise, in the construction of deeds of conveyance is apt to fail in prop- erly drawing a deed ; he encounters serious practical dif- ficulties, however, when, in the examination of title, it becomes necessary for him to construe instruments that have been prepared by others unaware of these questions. In the following pages a general view of the deed is first given ; its several parts are then considered in the order in which they follow one another in the form that may be used in any state. After the delivery of the formally completed instrument is discussed, certain re- strictions on the general freedom of alienation are con- sidered. While the recording of conveyances has not been made especially a subject of discussion, it has been necessarily referred to at many points, and a chapter is given up to suggestions as to the examination of title and one to the registration of title under the so called "Tor- rens System." Statutes — practically so important — have been referred to on most points, and often states in which legislation is of similar import have been grouped; but the statutes are (iii) IV PEEFACE. so numerous and so varied that it has been found imprac- ticable to cite all of them, although the several types have been compared and the effects of legislation on common law rules have been pointed out. From the great number of decisions an attempt has been made to select those — chiefly from among the more recent — that best illustrate particular topics and indicate modern tendencies. Some preference has been given to those reported in the valuable series of annotated reports known as the American Decisions, American Reports, American State Reports and Lawyers' Reports Annotated; and the most useful notes found in these volumes have been cited. The writer here acknowledges his obligations to the annotators. Those most familiar with this important part of the law of real property will most readily conceive the diffi- culties involved in treating it within the compass of a single volume. J. H. B. University of Michigan, Ann Arbor, March, 1904- TABLE OF CONTENTS. CHAPTER I. INTRODUCTORY. Section 1. Alienation in general — Inter vivos and by -will. 2. Conveyancing — What the term implies. 3. Controlling effect of lex situs — Power of states as to real property. 4. Power of the United States —Effect of treaties on state laws. 5. Application of the doctrine that lex situs controls — Its reason. 6. Illustrations — Formal matters. 7. Illustrations — Capacity. 8. Illustrations — Construction and effect of instruments. 9. Statutes adopting foreign law — Not exceptions to rule. 10. Limitations to the application of the rule. CHAPTER II. THE CHIEF METHODS OF VOLUNTARY ALIENATION OF LAND INTER VIVOS. Section 11. Formerly no writing necessary — The feoffment. 12. The bargain and sale— When deed necessary for. 13. The lease and release. 14. The feoffment— When a deed became necessary for. 15. Deeds used though not necessary. 16. Livery of seisin in the United States— Conveyance generally by deed. 17. How title may still pass inter vivos without writing. 18. Fines and recoveries. (V) VI TABLE OF CONTENTS. CHAPTER III. THE DEED. Section 19. Definition and characteristics of the deed. 20. Kinds of deeds— At common law — Under the statutes of uses. 21. Kinds — Indenture — Deed poll. 22. Indenture— Deed poll— Forms. 23. Indenture — Deed poll — Other differences in forms. 24. Indenture — Deed poll — Difference in effect. 25. Modern tendency to shorten deeds. 26. Eeasons for considering settled forms. 27. The deed conveys a present interest— To be distinguished from other instruments. 28. Deeds distinguished from contracts to convey. 29. Deeds distinguished from instruments testamentary in character. 30. Statutory forms of deeds. 31. The parts of a deed. CHAPTER IV. THE DATE. Section 32. The date not essential though desirable. 33. Presumption of delivery at date. 34. Date in deed and certificate of acknowledgment. 35. True date may be shown. CHAPTER V. THE PARTIES — THE METHOD OP DESIGNATING THEM. Section 36. Manner of introducing and referring to parties. 37. Designation of parties — The grantor. 38. Designation of parties — The grantee. 39. Executing deed with grantee's name blank— Question as to au- thority to insert his name. 40. Parol evidence to identify grantee— When deed void for uncer- tainty as to grantee. 41. Use of names — Presumptions. 42. Names— Effect of discrepancies— Idem sonans. 43. Fictitious persons— Grantee must be in esse— Fictitious names. 44. Additions to name by way of recital— Effect of. TABLE OF CONTENTS. VU Section 45. Partnerships as parties. 46. Corporations as parties. CHAPTER VI. KECITALS. Section 47. Eecitals in general. 48. Recital often used to show purpose of conveyance. 49. Notice from recitals. 50. Recitals in conveyances by sheriffs, administrators, etc. 51. If not required, recitals may yet be useful. CHAPTER VII. THE CONSIDERATION. Section 52. Apparent conflict as to necessity of a consideration. 53. No consideration necessary to a feoffment at common law — Effect of American statutes. 54. Seal importing consideration. 55. The equitable doctrine — Effect of the statute of uses. 56. What makes a deed of bargain and sale. 57. How the foregoing principles operate. 58. Parol evidence as to consideration. 59. Parol evidence of additional consideration. 60. Such evidence not restricted by most courts. 61. Parol evidence rule more strictly applied by some courts. 62. Parol evidence when statement as to consideration is contractual. 63. The true consideration may generally be shown by parol. 64. Showing assumption of mortgage. 65. True consideration may not be shown as between the parties to . defeat deed. 66. Statement of consideration not binding on others. CHAPTER VIII. THE OPERATIVE WORDS. Section 68. Special operative words for special conveyances. 69. Superfluous use of operative words— Rule of construction. 70. Effect of assignments indorsed on deeds. 71. Operative words of some kind essential. 72. Words generally considered sufficient. Vlll TABLE OF CONTENTS. CHAPTER IX. THE DESCRIPTION OF THE PROPERTY. Section 73. General considerations — Importance of the description. 74. Descriptions in recorded conveyances — How far notice to subse- quent purchasers. 75. Certainty necessary — Parol evidence to apply description. 76. Parol evidence cannot supply description — Fatal uncertainty. 77. How uncertainty arises — Undefined part of larger tract. 78. Uncertainty avoided when part of larger tract is designated, though not fully described. 79. Fatal uncertainty avoided where grantee of part of larger tract takes an undivided interest. 80. Uncertainty caused by lack of starting point of boundary. 81. A general description allowable and not necessarily uncertain. 82. Descriptions usually more specific — What particulars are to be re- garded. 83. Conflicting parts of descriptions. 84. Eules for construing descriptions with conflicting parts. 85. The maxim, "Falsa demonstratio," etc. 86. Illustrations of the rules — Particular descriptions control general. 87. Illustrations — Monuments control courses and distances. 88. The part of a monument taken as a boundary. 89. Streets and highways as boundaries — When the grantee takes to the center. 90. Streets and highways as boundaries — Decisions not in accord as to what expressions exclude the way. 91. Streets and highways as boundaries — When grantee takes the en- tire street. 92. Description by courses and distances will control quantity named — "More or less" — When statement of quantity important. 93. Reference in descriptions to maps. 94. Grantee's rights in streets shown on map. 95. Statutory plats— Maps may aid description though not expressly referred to. 96. Incorrect maps controlled by monuments. 97. Eeference may be made to other deeds, etc., for description. 98. Lands bounded by waters — General rule. 99. The basis of the rule— Application to cases where water is not named as boundary. 100. Application of general rule, how limited by grantor. 101. How far rule applies to public grants. 102. Public grants — The "meander line." 103. When the meander line will be taken as the boundary. 104. How far does title extend under water? — Tidal waters. 105. How far does title extend— Bivers— At common law. TABLE OF CONTENTS. IX Section 106. Eivers in United States — Private title to bed in some states. 107. Owner's rights incident to this title — Island — Ice — Shooting and fishing. 108. Rivers — No private title to bed in some states. 109. Navigable rivers — Practically three rules in United States. 110. Non-tidal, non-navigable rivers. 111. Boundaries on lakes — Public and private ownership. 112. The "Great Lakes." 113. Smaller lakes and ponds. 114. Conflicting views as to smaller lakes in the United States. 115. The sectional line rule. 116. Beds of inland natural lakes though of large size may be subject to private ownership. 117. States holding to the rule that private title extends to water's edge only. 118. Appurtenances. CHAPTER X. EXCEPTIONS RESERVATIONS. Section 119. Exceptions and reservations in general. 120. Difference in effect. 121. Expressions causing doubt. 122. Place for such clauses. 123. Effect of certain words. 124. Particular cases — Timber — Minerals. 125. Reservation of easements appurtenant to grantor's other land. 126. Exceptions and reservations repugnant to grant — Effect of. 127. Reservation to a stranger. CHAPTER XI. THE LIMITATION OF THE ESTATE THE HABENDUM. Section 128. The habendum, its function. 129. Effect of contradictions between premises and habendum. 130. Where habendum is not repugnant, it may explain and qualify the premises. 131. Effect of habendum in enlarging the premises. 132. The conveyance to be read and construed as a whole. 133. Naming the grantee in habendum — Effect of naming other or dif- ferent persons. 134. Trusts may be declared in the habendum. 135. Use of the word "heirs'.' at common law in limiting an estate in fee. X TABLE OF CONTENTS. Section 136. Effect of statutes on the rule requiring the word "heirs." 137. When the word "heirs" is not essential to create a fee, irrespec- tive of statute. 138. Use of the word "assigns" in limiting estates. 139. The fee simple and the fee simple conditional. 140. The statute De donis conditionalibus— Estates tail. 141. Kinds of estates tail— What terms are necessary to create. 142. Estates tail in the United States. 143. Estates tail in the United States— The states classified. 144. Reversions — Remainders. 145. The rule in Shelley's Case. 146. Not a rule of construction, but one of law— When does not apply. 147. The rule in the United States. CHAPTER XII. CONCURRENT OWNERSHIP. Section 148. Concurrent ownership in general. 149. Joint tenancy — Its characteristics. 150. Alienation by a joint tenant. 151. Joint tenancy not now favored — American statutes concerning it. 152. Statutes reversing the common law presumption — The estate still created by apt words. 153. Exceptions to the modern rule favoring estates in common — Trustees — Mortgagees. 154. Statutes abolishing survivorship — They do not destroy joint ten- ancy. 155. Joint tenancy expressly abolished. 156. Tenancy in common — Its characteristics — How created. 157. Alienation by tenant in common — Effect of conveyance of specific part. 158. Conveyance of the entire property by tenant in common — Ouster. 159. Coparcenary. 160. Partition— By deed. 161. Parol partition. 162. Tenancy by entireties. 163. Has been generally recognized as common law in the United States — Exceptions. 164. In what states now recognized— Effect of statutes as to joint ten- ancy and married women. 165. In what states not recognized because of statutes. 166. Conveyance of estates by entireties. 167. The community system. TABLE OF CONTENTS. XI CHAPTER XIII. CONDITIONS. Section 168. Conditions and limitations in general. 169. Implied conditions. 170. Express conditions — Conditions precedent. 171. Express conditions — Conditions subsequent. 172. Conditions precedent and subsequent compared. 173. Determinable or special limitations. 174. Determinable fees. 175. Conditional limitations. 176. Causes of difficulties in construing. 177. Words used in creating conditions. 178. The place for the condition. 179. The re-entry clause. 180. Particular classes of cases — Conveyances for specified purposes. 181. Effect in such cases of consideration and nature of purpose. 182. Particular classes — Building restrictions — Restrictions as to use. 183. Particular classes — Conditions and stipulations for support. 184. Conditions not created in such cases by inference — Remedy in equity. 185. Void conditions — Requiring illegal acts — Restraining marriage. 186. Void conditions — Repugnant to estate granted or capricious. 187. General suggestions for drawing and construing conditions. CHAPTER XIV. COVENANTS. I. Covenants for Title. Section 188. Covenants — Effect, in general, of the presence or absence of cov- enants for title. 189. Covenants for title in mortgages. 190. The usual covenants for title. 191. The form of covenants for title. 192. The designation of parties to be bound — The covenantor himself. 193. The covenantor's heirs, executors, etc. 194. Grantor's wife joining in her husband's deed — Husband in wife's deed. 195. Married woman's covenants in conveyance of her separate prop- erty. 196. Designation of parties — The covenantee, his heirs, etc. 197. The covenantee's "heirs and assigns." xii TABLE OF CONTENTS. Section 198. The covenants for seisin, and good right to convey. 199. The covenant against incumbrances— Form. 200. What are incumbrances? 201. Mortgages, building restrictions, dower— Incumbrances. 202. Leasehold interests as incumbrances. 203. Distinction between incumbrances visibly affecting the physical condition and others. 204. If an incumbrance is to be excepted from the covenant, it should be so expressed. 205. The covenant for further assurance. 206. The covenants for quiet enjoyment and of warranty. 207. The covenant of warranty attaches only to the estate conveyed. 208. Effect of describing land as subject to an incumbrance. 209. Eviction necessary to a breach of covenant of warranty. 210. What is eviction — Constructive eviction. 211. Covenants implied— Common law — Statutory deeds. 212. Effect of such statutes. 213. Whether lex situs or lex loci contractus controls. 214. The running of covenants for title with the land. 215. Conflicting views as to the running of some covenants. 216. The "English rule" as to the covenant of seisin running. 217. The "American rule. " 218. The rule as to the covenant against incumbrances. 219. Covenants for quiet enjoyment and warranty run with the land. 220. Subsequent grantees by quit claim deeds have the benefit of such covenants as run with the land. 221. "Personal" and "real" as used with reference to covenants for title. II. Covenants Other than Covenants for Title. 222. General features of these covenants. 223. Form — No technical words essential. 224. Form — Effect of "heirs and assigns" or similar words in covenant. 225. The form of the deed in which covenants are — Effect of acceptance by grantee of deed poll containing covenants. 226. Distinction sometimes made between benefits and burdens. 227. Restrictive covenants and conditions, as to use of land, buildings, etc. 228. Building restrictions in pursuance of a "general plan." 229. The duration of such restrictions — Effect of laches, waiver, changes in neighborhood. 230. Provisions in effect restraining competition in trade. 231. Covenants in conveyances relating to party walls. 232. Agreements as to party walls without a conveyance. TABLE OF CONTENTS. XJ11 CHAPTER XV. SIGNING. Section 233. Signing not essential at common law. 234. Now generally necessary in the United States. 235. Place of signature. 236. Form of signature— Signing by mark. 237. Form of signature — Part of name — Initials. 238. Signing by another for grantor. 239. Signing under power of attorney. 240. Execution of conveyance by corporation. 241. Conveyances by municipal, religious or literary corporations. CHAPTER XVI. SEALING. Section 242. The seal — When necessary at common law. 243. Tendency to dispense with the seal — Effect of statutes. 244. Importance of the seal at common law. 245. Some effects of the seal — Legal and equitable doctrines. 246. What is a sufficient seal. 247. Recital in instrument as to seal — Necessity for, and effect of, recital. 248. Adoption of one seal by several persons — Time and method of affixing the seal. 249. The corporate seal. CHAPTER XVII. ATTESTATION. Section 250. Witnesses to conveyances at common law. 251. Witnesses under statutes in the United States. 252. The method of attesting. 253. Disqualification of witness by interest. XIV TABLE OF CONTENTS. CHAPTER XVIII. ACKNOWLEDGMENT. Section 254. Terms used. 255. What writings may be acknowledged. 256. The subject regulated by statute — Form of acknowledging deeds generally the test. 257. General purposes of acknowledgment. 258. First, to entitle the instrument to be recorded. 259. Purpose of acknowledgment — Statute relating to evidence. 260. Some points to notice as to such statutes. 261. When necessary to validity of conveyance. 262. Necessary to convey legal title in some states. 263. In many states acknowledgment necessary to validity of convey- ance of homestead. 264. When necessary in conveyance by married woman. 265. The form of the certificate of acknowledgment. 266. Certificate should show facts necessary. 267. Substantial compliance with statutes enough— Clerical errors. 268. What is substantial compliance. 269. Substantial compliance — Fact of acknowledgment. 270. When the word "acknowledged" should appear. 271. Substantial compliance — Identity of party. 272. Identity of party — "Personally known." 273. Who may take the acknowledgment. 274. Authority to take wholly statutory. 275. Who may take — When acknowledgment is taken in the state where the land is. 276. Who may take — When acknowledgment is taken in another state — The commissioner of deeds. 277. When taken in another state — Questions as to what officers may take, etc. 278. Taken in another state— Showing as to official character, etc. 279. Taken in another state — Certificate of conformity to foreign law. 280. Acknowledgments taken out of the United States. 281. Competency of officer affected by interest— Party cannot take ac- knowledgment. 282. Practical effect of rule that party cannot take acknowledgment. 283. Rule disqualifying party generally applies to acknowledgments of all instruments. 284. Effect of relationship on officer's competency. 285. Undisclosed interest as affecting competency of officer to take. 286. Undisclosed interest as affecting competency. 287. Officer of corporation not generally disqualified unless also a shareholder. TABLE OF CONTENTS. XV Section 288. Agent or attorney of party to a conveyance may generally take ac- knowledgment. 289. The parts of the certificate — Venue. 290. Date. 291. Signing by officer— His official, not his personal signature. 292. Sealing. 293. Impeachment of the certificate — When it is conclusive. 294. Form of certificate to conveyance of corporation or by attorney. 295. Proof instead of acknowledgment. CHAPTER XIX. DELIVERY. Section 296. Delivery essential to a deed and to the transfer of title. 297. Exception to rule that delivery is essential. 298. Elements of delivery — Surrender of control by the grantor. 299. Elements— The intent of the grantor. 300. Acceptance presumed until dissent is shown. 301. Acceptance by the grantee. 302. If acceptance is prevented there is generally no delivery. 303. Presumption of delivery from certain facts. 304. Presumption of delivery — Recording. 305. Postponing complete delivery till death of grantor. 306. Effect of grantor's retention of possession and control of the deed. 307. Effect of grantor's depositing deed with a third person : reserving no control. 308. Effect of reserving control by grantor in such cases. 309. Delivery in escrow. 310. Effect of grantee's obtaining possession of escrow wrongfully. 311. Effect of surrender or destruction of a deed. CHAPTER XX. THE CONVEYANCE OF THE REAL ESTATE OF INFANTS. Section 312. Restrictions on alienation — Disabilities — "Void" and "voidable" conveyances. 313. Conveyances by minors — Voidable. 314. Former distinctions between different kinds of conveyances — In- fants' powers of attorney still sometimes held void. 315. When conveyance by an infant may be disaffirmed. 316. How soon after majority must infant disaffirm — Doctrine that he has statutory period of limitation. XVI TABLE OF CONTENTS. Section 317. How soon after majority must disaffirm— "Within a reasonable time." 318. Former infant may disaffirm though his grantee has conveyed to another. 319. Infant's heirs may disaffirm— Others may not generally. 320. Effect of infant's misrepresentation as to age. 321. The restoration of the consideration on disaffirmance. 322. What constitutes disaffirmance. 323. Effect of conveyance to an infant. 324. How infants' real property may be conveyed. 325. The general principle controlling in such cases. 326. The application by proper party— Notice. 327. Such conveyances allowed for certain purposes. 328. Hearing on the application— Guardian's bond— Approval by court. 329. Statutes curing effect of irregularities. 330. Power of chancery court to order conveyance of minor's lands. CHAPTER XXI. THE CONVEYANCE OF THE REAL ESTATE OF PERSONS OF UNSOUND MIND. Section 331. Insane persons' conveyances similar to infants' — Yet the two classes differ. 332. Conveyance of insane person, under guardianship, void. 333. While guardianship continues ward presumed incompetent — But not if merely adjudged insane or guardianship ended. 334. Effect of guardianship of spendthrifts and drunkards. 335. Conveyance of insane persons not under guardianship generally voidable. 336. Such conveyances sometimes considered void — Powers of attor- ney. 337. Whether such a voidable deed conveys title without being affirmed. 338. The kinds and degrees of insanity. 339. The question as to insanity must relate to the time of the act. 340. Presumption of sanity — Not overcome by mere weakness of mind — Partial insanity. 341. Weakness of mind combined with inadequate consideration — Fi- duciary relations. 342. The conveyance where regarded as voidable may be affirmed. 343. Deed of insane grantor may be disaffirmed by him when sane. 344. May be disaffirmed by his guardian. 345. Insane grantor's heirs may disaffirm — Creditors generally may not. TABLE OF CONTENTS. XV17 Section 346. As to the return of consideration on disaffirmance. 347. Whether conveyance may be disaffirmed as against subsequent bona fide grantee. 348. Statutes providing for the disposal of insane persons' interests in lands. CHAPTER XXII. CONVEYANCES IN WHICH MARRIED WOMEN ARE INTERESTED. Section 349. The married woman's different interests in real property. 350. The husband's rights in, and control over, his wife's property at common law. 351. The common law not wholly obsolete in this country. 352. The equitable separate estate — How created. 353. The intention to create the separate estate must generally be clearly expressed. 354. The "restraint on anticipation." 355. The wife's power over her separate estate in the absence of such restraint. 356. Manner of conveying separate estate. 357. Effect of statutes on the equitable separate estate. 358. Constitutional and statutory provisions creating a separate estate. 359. Statutes creating separate estate do not always remove the married woman's disability to convey. 360. Common law methods of alienation by married women — Deeds unusual — Fines. 361. The joinder of the husband at common law — The separate exami- nation. 362. Early usages in the United States — The joint deed — Statutes re- quiring joinder. 363. When the husband's joinder or assent is now necessary. 364. Whether husband and wife should join as grantors or merely ex- ecute the deed. 365. The married woman's acknowledgment — The separate examina- tion. 366. How far the separate examination must now be regarded. 367. How far compliance with statutory provisions as to particulars is necessary. 368. Conveyances between husband and wife. 369. Conveyances between husband and wife through a third person. 370. Equitable view of conveyances between husband and wife. 371. Rule as to conveyances between husband and wife affected by statute. .372. Dower and its statutory substitute. ii — Brews. Con. XV111 TABLE OF CONTENTS. Section 373. Generally no act of the husband alone can defeat dower — Excep- tions to this rule. 374. Inchoate right of dowernot strictly property — Released not con- veyed. 375. Wife cannot generally release dower to her husband. 376. Release of dower generally by deed of husband and wife. 377. Married women's powers of attorney to convey lands or release dower. CHAPTER XXIII. THE HOMESTEAD IN CONVEYANCING. Section 378. The homestead in general. 379. Who may have a homestead — Not necessarily a married person only. 380. But restraints on its alienation apply usually to married persons only. 381. Restraints on alienation apply usually to residents only. 382. Occupancy generally essential — "Constructive occupancy." 383. Occupancy — Abandonment — "Temporary absence." 384. Occupancy as a home — Use for business purposes. 385. The selection of the homestead — By record — By occupancy. 386. The limits of the homestead. 387. May be a homestead in an estate less than fee simple — Joint es- tates. 388. Owner of a homestead may alienate it unless restrained — Partial restraints. 389. Some restriction on voluntary alienation usual. 390. Usually husband and wife must concur in the transfer. 391. Effect of non-compliance with statute. 392. Effect of non-compliance with statute — The alienation void in many states. 393. Effect of wife's insanity. 394. Subsequent abandonment will not make the conveyance valid — Nor death or divorce — Transfer by wife alone. 395. To what extent husband may lease — Sell timber — Grant rights of way. 396. The defective conveyance valid as to the excess over homestead. 397. Non-compliance with statutes does not make alienation void in some states. 398. The mode of manifesting consent to the alienation of the home- stead. 399. The acknowledgment to the conveyance of the homestead. 400. Conveyance of the homestead between husband and wife. TABLE OF CONTENTS. XIX CHAPTER XXIV. CAPACITY OF CORPORATIONS TO PURCHASE AND CONVEY REAL PROPERTY. Section 401. Capacity of corporation to take title at common law — Statutes of mortmain. 402. Capacity to take title — May take in fee though its duration is limited. 403. Effect of corporation's dissolution on title. 404. May purchase and hold only lands appropriate to corporate pur- poses—Presumption that land is so held. 405. When its power is exceeded the state only may complain — Con- veyance to corporation in such case voidable, not void. 406. Capacity of private corporation to alienate real property. 407. Capacity of public and quasi-public corporations to alienate real property. CHAPTER XXV. CAPACITY OF ALIENS TO PURCHASE AND CONVEY REAL PROPERTY. Section 408. At common law aliens could acquire title by purchase, not by de- scent. 409. Nature of title thus acquired — Office found. 410. Alien may convey before office found. 411. Common law as modified by statute. 412. Power of the states to remove disabilities. CHAPTER XXVI. CAPACITY OF CONVICTS TO TAKE AND CONVEY REAL PROPERTY. Section 413. Attainder at common law — Statutory changes in England. 414. Effect of sentence for crime in this country — Statutes. XX TABLE OF CONTENTS. CHAPTER XXVII. THE DISABILITY OF A GRANTOR ARISING FROM ADVERSE POSSESSION. Section 415. Disability of disseisee at common law — Statute 32 Henry VIII. 416. Statutes in this country adopting the principles of this statute. 417. Disseisee's conveyance not void for all purposes. 418. The principle recognized in some states without legislation. 419. To what transfers the rule does not apply. 420. Character of possession rendering the transfer void. 421. The old rule generally abrogated in the United States. CHAPTER XXVIII. THE EXAMINATION OF THE TITLE TO REAL PROPERTY. Section 422. General characteristics of the recording system. 423. Imperfections in title. 424. Defects shown by original instruments in the chain of title, and by records of them. .425. Defects shown by other records — The abstract of title. 426. Defects not shown by records — Forged instruments. 427. Defects not shown by records — Identity of person — Delivery — In- fancy — Homestead. 428. Defects not shown by records — Questions on death of landowner. 429. Purchaser's risk in relying on the records alone. 430. Possession, not shown by records, always easily investigated. 431. Possession by grantor, after conveyance, as notice. CHAPTER XXIX. registration of title to real property. Section 432. Defects in present system suggest desirability of reform in regis- tration laws. 433. The "Torrens System"— Briefly historical. 434. General principles of the title registration acts. 435. Proceedings to determine and register title are judicial— The ap- plication — The court. TABLE OF CONTENTS. XXI Section 436. Notice to adverse claimants — Process — Constitutional objections. 437. The investigation of title — Functions of the examiner. 438. Appearance of interested parties — The conclusive effect of decree. 439. Subsequent dealings with the land appear on the registry. 440. No title can be acquired to registered land by adverse possession. 441. Transmission of title on death of owner of registered land. 442. The assurance or indemnity fund. 443. Voluntary, or compulsory, registration. TABLE OF CASES. [References are to Sections, ,] Abbott V. Allen, 14 Johnson (New York) 248 198 v. Cremer (Wisconsin), 95 Northwestern 387 117 Abney v. DeLoach, 84 Alabama 393 290 Adams v. Akerlund, 168 Illinois 632 4 v. Bishop, 19 Illinois 395 279 v. Buford, 6 Dana (Kentucky) 406 419 v. Gilbert (Kansas), 72 Pacific 769 394, 397 v. Medsker, 25 West Virginia 127 37, 234 v. Noble, 120 Michigan 545 232 v. Ross, 30 New Jersey Law 505 141, 207 v. Teague, 123 Alabama 591 37,363, 364 Adams Paper Co. v. Cassard (Pennsylvania), 55 Atlantic 949 363 Adkins v. Tomlinson, 121 Missouri 487 198 Agan v. Shannon, 103 Missouri 661 291 Akerly v. Vilas, 23 Wisconsin 207 210 Albany Bridge Co. v. People, 197 Illinois 199 102 Albany County Savings Bank v. McCarty, 149 New York 71 259 Albright v. Albright, 70 Wisconsin 528 311 v. Cortright, 64 New Jersey Law 330 107 Alexander v. Vennan, 61 Iowa 160 393 Algonquin Coal Co. v. Northern &c. Co., 162 Pennsylvania State 114 124 Allbright v. Hannah, 103 Iowa 98= 397 Allebach v. Hunsicker, 132 Pennsylvania State 349 66 Allen v. Allen, 48 Minnesota 462 38, 198 v. Baskerville, 123 North Carolina 126 136 v. Berryhill, 27 Iowa 534 336 v. Drake, 109 Missouri 626 369 v. Withrow, 110 United States 119 38 Allore v. Jewell, 94 United States 506 341 Alt v. Banholzer, 39 Minnesota 511 392, 394 v. Graff, 65 Minnesota 191 320 v. Stoker, 127 Missouri 466 247 Alvarado v. Nordholt, 95 California 116. 297 Ambs v. Bailroad, 44 Minnesota 266 42 (xxiii) XXIV TABLE OF CASES. [References are to Sections.] American Freehold Co. v. Dykes, 111 Alabama 178 316 American Freehold Land & Mortgage Co. v. Thornton, 108 Alabama 258 293 American Home Missionary Society v. Wadhams, 10 Barbour (New York) 597 356 American Savings and Loan Association v. Burghardt, 19 Montana 323 394, 399 Amerman v. Deane, 132 New York 355 229 Ames v. Ames, 160 Illinois 599 148 v. San Diego, 101 California 390 407 Amick v. Woodworth, 58 Ohio State 86 253, 281 Ammant v. New Alexandria Turnpike Co., 13 Sergeant & Rawle (Pennsylvania) 210 407 Anderson v. Cosman, 103 Iowa 266 387 v. Gaines, 156 Missouri 664 184 v. Logan, 99 North Carolina 474 262 v. Smith, 159 Illinois 93 396, 400 v. Stadlemann, 17 Washington 433 393 Andrews v. Appel, 22 Hun (New York) 429 218 v. Dyer, 81 Maine 104 40 v. Pearson, 68 Maine 19 86 Andrus v. Smelting Co., 130 United States 643 210 Angell v. Rosenbury, 12 Michigan 241 137 Anglade v. St. Avit, 67 Missouri 434 69 Answer of Court, 4 New Hampshire 565 330 Appeal of. See name of party. Arambula v. Sullivan, 80 Texas 615 95 Arents v. Long Island R. Co., 156 New York 1 420 Argo v. Coffin, 142 Illinois 368 340 Armstrong v. Combs, 15 New York Appellate Division 246 283 v. Darby, 26 Missouri 517 205 Arrington v. Arrington, 122 Alabama 510 253, 301 Arthur v. Caverly, 98 Michigan 82 194 Ashcraft v. DeArmond, 44 Iowa 229 347 Ashelford v. Willis, 194 Illinois 492 430 Ashland v. Greiner, 58 Ohio State 67 180, 181 Ashmead v. Reynolds, 134 Indiana 139 341 Askey v. Williams, 74 Texas 294 314 Atherstone v. Bostock, 2 Manning & Granger 511 21 Atherton v. Roche, 192 Illinois 252 141 143 Atkins v. Atkins, 18 Nebraska 474 373 Atkison v. Henry, 80 Missouri 151 166 Atlanta Consolidated Street R. Co. v. Jackson, 108 Georgia 634 175 Attorney General v. Woods, 108 Massachusetts 436 no Aultman v. Obermeyer, 6 Nebraska 260 371 Aurora Agricultural &c. Society v. Paddock, 80 Illinois 263 406 TABLE OP CASES. XXV [References are to Sections.'] Austerberry v. Oldham, 29 Chancery Division 750 226 Austin v. Dean, 40 Michigan 386 426 v. Dolbee, 101 Michigan 292 81 v. Rutland R. Co., 45 Vermont 215 112 Aveline v. Whisson, 4 Manning & Granger 801 233 Avery v. Everett, 110 New York 317 414 Axtell's Case, 95 Michigan 244 325 Ayer v. Brick Co., 157 Massachusetts 57 208 Bachelor v. Korb, 58 Nebraska 122 325 Backus v. McCoy, 3 Ohio 211 216 Bacon v. Sandberg, 179 Massachusetts 396 229 v. Thornton, 16 Utah 138 193 Bader v. Dyer, 106 Iowa 715 165 Bagby v. Emberson, 79 Missouri 139 365 Bailey v. Platte &c. Canal Co., 12 Colorado 230 402 Baird v. Baird, 145 New York 659 66 Baker v. Atchison &c. R. Co. 122 Missouri 396 373 v. Bradt, 168 Massachusetts 58 219 v. Haskell, 47 New Hampshire 479 308 v. Kennett, 54 Missouri 82 323 v. Mather, 25 Michigan 51 49 v. Stone, 136 Massachusetts 405 320 v. Westcott, 73 Texas 129 53 v. Whiting, 3 Sumner (United States) 475 415 Baldwin v. Emery, 89 Maine 496 24 v. Erie Shooting Club, 127 Michigan 659 112 Ball v. Foreman, 37 Ohio State 132 307 v. Houston, 11 Oklahoma 233 382 Ballance v. Peoria, 180 Illinois 29 98 Baltimore v. Chester, 53 Vermont 315 414 Bangor v. Warren, 34 Maine 324 171 Bank v. Delano, 48 New York 326 49 v. Fleming, 63 Kansas 139 39 v. O'Brien, 94 Tennessee 38 253 Bank of Benson v. Hove, 45 Minnesota 40 286 Bank of Bpone v. Eadtke, 87 Iowa 363 285 Bank of Greenbrier v. Effingham, 51 West Virginia 267 154 Bank of Louisville v. Gray, 84 Kentucky 565 377 Bank of Woodland v. Oberhaus, 125 California 320 287, 385 Banks v. Ogden, 2 Wallace (United States) 57 91 v. Poitiaux, 3 Band (United States) 136 405 Banzer v. Banzer, 156 New York 429 157 Bardsley v. Bank, 113 Iowa 216 287 Barker v. Southern R. Co., 125 North Carolina 596 80 Barnard v. Gantz, 140 New York 249 246 Barnes v. Barnes, 161 Massachusetts 381 304 XXVI TABLE OF CASES. [References are to Sections.] Barnett v. Barnett, 104 California 300 132 v. Bull, 81 Kentucky 127 328 Barney v. Pforr, 117 California 56 249 v. Keokuk, 94 United States 324 108, 109 Barnsdall v. Boley (United States), 119 Federal 191 37 Barnum v. LeMaster (Tennessee), 75 Southwestern 1045 352, 353, 355, 356, 370 Barrett v. Cox, 112 Michigan 220 395, 398, 399 v. Davis, 104 Missouri 549 293 Barron v. Mercure (Michigan) 93 Northwestern 1071 303 Barry v. Guild, 126 Illinois 439 210 Bartels v. People, 152 Illinois 557 272 Bartlett v. Bartlett, 34 West Virginia 33 50 v. Cowles, 15 Gray (Massachusetts) 445 321 v Drake, 100 Massachusetts 174 238 v. Williams, 27 Indiana Appellate 637 363 Barton v. Drake, 21 Minnesota 299 385 Bason v. Mining Co., 90 North Carolina 417 240 Bassett v. Hawk, 114 Pennsylvania State 502 239 Batchelor v. Brereton, 112 United States 396 37, 364 Batley v. Poerderer, 162 Pennsylvania State 460 200 Baum v. Lynn, 72 Mississippi 932 63 Bay v. Posner, 78 Maryland 42 38 Beach v. Miller, 51 Illinois 206 203 Beal v. Beal, 79 Indiana 280 195 v. Blair, 33 Iowa 318 51 v. Harmon, 38 Missouri 435 327 Bean v. Stoneman, 104 California 49 226 Beard v. Johnson, 87 Alabama 729 380 Beardsley v. Hotchkiss, 96 New York 201 319 v. Knight, 10 Vermont 185 245 Beasley v. Beasley, 180 Illinois 163 342 v. Phillips, 20 Indiana Appellate 185 212 Beattie v. Crewdson, 124 California 57 430 Beckel v. Pettigrew, 6 Ohio State 247 289 Beckman v. Kreamer, 43 Illinois 447 107 Beckwith v. Howard, 6 Rhode Island 8 24 Bedford v. British Museum, 2 Mylne and Keen 552 229 Bedford Lodge v. Lentz, 194 Pennsylvania State 399 132 Beeson v. Green, 103 Iowa 406 301 v. Patterson, 36 Pennsylvania State 24 24 Beezley v. Phillips (United States), 117 Federal 105 327 Beinlein v. Johns, 102 Kentucky 570 127 Bell v. Bell, 84 Alabama 64 378 v. McDuffie, 71 Georgia 264 71 Bellefontaine Imp. Co. v. Neidringhaus, 181 Illinois 426 106, 107 TABLE OP CASES. XXvii [References are to Sections.] Benedict v. Jones, 129 North Carolina 470 293 v. Torrent, 83 Michigan 181 157 Benevolent Society v. Murray, 145 Missouri 622 46 Bennet v. Davis, 2 Peere Williams 316 352 Bennett v. Harms, 51 Wisconsin 251 373 v. Pierce, 45 West Virginia 654 194, 363 v. Pierce, 50 West Virginia 604 158 v. Eobinson, 27 Michigan 26 431 v. Waller, 23 Illinois 97 205 Bensieck v. Cook, 110 Missouri 173 65 Bentley v. DeForest, 2 Ohio 221 70 v. Greer, 100 Georgia 35 317 Benton v. Elizabeth, 61 New Jersey Law 411 406 Bernard Township v. Stebbins, 109 United States 341 245 Bernstein v. Humes, 60 Alabama 528 415 Beronio v. Ventura &c. Co., 129 California 232 384 Berrigan v. Fleming, 70 Tennessee 271 166 Berry v. Meir, 70 Arkansas 129 384 v. Seawall (United States), 65 Federal 742 161 v. Tennessee &c. K. Co., 134 Alabama 618 418 Berryman v. Schumaker, 67 Texas 312 183 Bertschy v. Bank, 89 Wisconsin 473 377 Bethell v. Bethell, 54 Indiana 428 ; 92 Indiana 318 190, 213 Betz v. Bryan, 39 Ohio State 320 216 Bexar Building Association v. Heady,- 21 Texas Civil Appeals 154 285 Bidwell v. Sullivan, 17 New York Appellate Division 629 272 Biles v. T. O. & G. H. E. Co., 5 Washington 509 123 Bingham v. Weiderwax, 1 New York 509 403 Bingler v. Bowman, 194 Pennsylvania State 210 365 Birchall v. Ashton, 40 Chancery Division 437 300 Bissell v. Hively, 123 Michigan 106 189 Blagborne v. Hunger, 101 Michigan 375 245 Black v. Singley, 91 Michigan 50 390 Blackburn v. Nelson, 100 California 336 87 Blackman v. Henderson, 116 Iowa 578 43 Blair v. Bruns, 8 Colorado 397 81 v. Osborne, 84 North Carolina 417 133 Blaisdell v. Leach, 101 California 405 238 Blakeley v. Adams (Kentucky), 68 Southwestern 393 127 Blanchard v. Railroad, 31 Michigan 43 177 v. Tyler, 12 Michigan 339 34 Blass v. Terry, 156 New York 122 301 Blight v. Schenck, 10 Pennsylvania State 285 310 Blondeau v. Sheridan, 81 Missouri 545 198 Blood v. Goodrich, 9 Wendall (New York) 68 245 v. Land Co., 113 California 221 249 XXV111 TABLE OF CASES. [References are to Sections.'] Bloomer v. Henderson, 8 Michigan 395 431 Bloomingdale v. Chittenden, 74 Michigan 698 315 Blough v. Parry, 144 Indiana 463 340 Blumer v. Albright, 64 Nebraska 249 383 Blythe v. Hinckley, 127 California 431 7, 412 v. Hinckley, 180 United States 333 412 Boardman v. Scott, 102 Georgia 404 117 Boddie v. Bush, 136 Alabama 560 336, 337 Bohannon v. Travis, 94 Kentucky 59 371 Bolio v. Marvin, 130 Michigan 82 121 Bolles v. Beach, 22 New Jersey Law 680 65 Bond v. Bond, 7 Allen (Massachusetts) 1 342 Bone v. Tyrrell, 113 Missouri 175 328 Book v. West, 29 Washiugton 70 118 Booker v. Tarwater, 138 Indiana 385 40 Bool v. Mix, 17 Wendall (New York) 119 315, 322 Boon v. McHenry, 55 Iowa 202 216 Boothroyd v. Engles, 23 Michigan 19 234, 237, 271 Boreel v. Lawton, 90 New York 293 211 Boreham v. Byrne, 83 California 23 382 Borer v. Lange, 44 Minnesota 281 93 Borland's Lessee v. Marshall, 2 Ohio State 308 421 Boston v. Richardson, 13 Allen (Massachusetts) 146 88 v. Richardson, 105 Massachusetts 351 101 Bostick v. Williams, 36 Illinois 65 201 Bourne v. Bourne, 92 Kentucky 211 61 Bowdoin College v. Merritt (United States), 75 Federal 480 338 Bowen v. Beck, 94 New York 86 24 v. Chase, 94 United States 812 357 Bowler v. Bowler, 176 Illinois 541 29 Bowling v. Hax, 55 Missouri 446 250 Bowne v. Walcott, 1 North Dakota 497 192 Boyd v. De La Montague, 73 New York 498 369 v. Haseltine, 110 Missouri 203 212 Boyer v. Berryman, 123 Indiana 451 335, 346 v. Sims, 61 Kansas, 593 153 Bozeman v. Browning, 31 Arkansas 364. 319 Bradley v. Railroad, 91 Missouri 493 37, 364 v. Walker, 138 New York 291 366 Bradshaw v. Van Winkle, 133 Indiana 134 320 Brady v. Huber, 197 Illinois 291 304 v. Spurck, 27 Illinois 478 220 Bragdon v. Blaisdell, 91 Maine 326 179 Bramberry's Estate, 156 Pennsylvania State 628 164 Branch v. Jesup, 106 United States 468 407 v. Polk, 61 Arkansas 388 166 Brasfleld v. Brasfleld, 96 Tennessee 580 351 TABLE OF CASES. XXIX [References are to Sections.'] Brasington v. Hanson, 149 Pennsylvania State 289 138 Brastow v. Rockport Ice Co., 77 Maine 100 117 Brattle Square Church v. Grant, 3 Gray (Massachusetts) 142 175 Bray v. Adams, 114 Missouri 486 50 v. Clapp, 80 Maine 277 37 Breitenwischer v. Clough, 111 Michigan 6 61 Breitling v. Marx, 123 Alabama 222 247 Bressler v. Kent, 61 Illinois 426 356 Brew v. Van Deman, 6 Heiskell (Tennessee) 433 223 Brewery Co. v. Primas, 163 Illinois 652 179, 182, 229, 230 Bricker v. Bricker, 11 Ohio State 240 208 Brigham v. Fayerweather, 144 Massachusetts 48 337, 346 ' v. Palmer, 3 Allen (Massachusetts) 450 250 Brine v. Insurance Co., 96 United States 627 4 Bristow v. Cormican, 3 Appeal Cases 641 113 Broad well v. Phillips, 30 Ohio State 255 188 Brockway v. Harrington, 82 Iowa 23 54 Brokken v. Baumann, 10 North Dakota 453 382 Bromberg v. Smee, 130 Alabama 601 78 Brooklyn Park Commissioners v. Armstrong, 45 New York 234 407 Brophy v. Eicheson, 137 Indiana 114 115 Brothers v. Bank, 84 Wisconsin 381 374 Brown v. Bank, 148 Massachusetts 300 208 v. Baraboo, 98 Wisconsin 273 ■> 89 v. Brown, 39 Michigan 792 340 v. Brown, 61 Texas 56 298 v. Farmers' Supply Co., 23 Oregon 541 240 v. Hartman, 57 Nebraska 341 311 v. Jordhal, 32 Minnesota 135 247 v. Mattocks, 103 Pennsylvania State 16 135 v. Parker, 127 Michigan 390 112 v. Southern Pacific R. Co., 36 Oregon 128 224 v. Sims, 22 Indiana Appellate 317 425 v. Westerfield, 47 Nebraska 399 307 Browne v. Dolan, 68 Iowa 646 272 Broyles v. Cox, 153 Missouri 242 380 Bruce v. Osgood, 113 Indiana 360 161 Bruckner's Lessee v. Lawrence, 1 Douglass (Michigan) 19 415 Bruguier v. Pepin, 106 Iowa 432 341 Bruner v. Bateman, 66 Iowa 488 394 Brunswick Gas Light Co. v. United Gas Co., 85 Maine 532 407 Bryan v. Ramirez, 8 California 462 269 Bryant v. Richardson, 126 Indiana 145 270 Buchanan v. Hazzard, 95 Pennsylvania State 240 364 Buchanan v. Hubbard, 96 Indiana 1 318, 320 Buck v. Squiers, 22 Vermont 494 89 Buckey v. Buckey, 38 West Virginia 168 340 XXX TABLE OF CASES. [References are to Sections.] Buckler's Case, 2 Coke 55 128 Buell v. Irwin, 24 Michigan 145 276 Building Association v. Scanlan, 144 Indiana 11 370 Bullock v. Sprowls, 93 Texas 188. 321 Bumstead v. Cook, 169 Massachusetts 410 118 Bunnell v. Bunnell (Kentucky), 64 Southwestern 420 298 Burdeno v. Amperse, 14 Michigan 91 371 Burdett v. Spilsbury, 6 Manning & Granger 456 250 Burdis v. Burdis, 96 Virginia 81 172 Burk v. Hill, 48 Indiana 52 203 v. Sproat, 96 Michigan 404 308 Burke v. McCowen, 115 California 481 96 Burkett v. Burkett, 78 California 310 400 Burling v. King, 66 Barbour (New York) 633 245 Burnap v. Sharpsteen, 149 Illinois 225 310 Burnett v. Burnett, 17 South Carolina 545 143 Burnham v. Kidwell, 113 Illinois 425 333 Burr v. Lamaster, 30 Nebraska 688 232 Burrows v. Pickens, 129 Alabama 648 366, 398 Burton v. Perry, 146 Illinois 71 421 Bush v. Genther, 174 Pennsylvania State 154 304 Butler v. Barnes, 60 Connecticut 170 217 v. Grand Rapids & Indiana R. Co., 85 Michigan 246 101, 107 v. Huestis, 68 Illinois 594 147 v. Seward, 10 Allen (Massachusetts) 466 189 Butler & Baker's Case, 3 Coke 26 300 Butrick v. Tilton, 141 Massachusetts 93 303 Butterfield v. Beal, 3 Indiana 203 294 Butterworth & Lowe v. Kritzer Milling Co., 115 Michigan 1 405 Byers v. Byers, 183 Pennsylvania State 509 161 v. Wheatley, 62 Tennessee 160 50 Cable v. Cable, 146 Pennsylvania State 451 261 Cadematori v. Gauger, 160 Missouri 352 355 Cagle v. Parker, 97 North Carolina 271 242 Caldwell v. Manufacturing Co., 121 North Carolina 339 249 California Canneries Co. v. Scatena, 117 California 447 235 Fruit Transportation Co. v. Anderson (United States) , 79 Federal 404. 390 Callis v. Day, ,38 Wisconsin 643 321 Cameron v. Calkins, 44 Michigan 533 255 v. Gray, 202 Pennsylvania 566 303 Camp v. Carpenter, 52 Michigan 375 293 Campbell v. Equitable Loan &c. Co. (South Dakota), 94 Northwest- ern 401 416 v. Everts, 47 Texas 102 421 Canal Co. v. Russell, 68 Illinois 426 268 271 Candee v. Hayward, 37 New York 653 419 TABLE OF CASES. XXxi {.References are to Sections.] Caperton v. Hall, 83 Alabama 171 262 Caple v. Switzer, 122 Michigan 636 189 Cardinal v. Hadley ; 158 Massachusetts 352 64 Carder v. Culbertson, 100 Missouri 269 325, 328 Carnagie v. Diven, 31 Oregon 366 339 Carnall v. Wilson, 21 Arkansas 62 376 Carney v. Hopple, 17 Ohio State 39 279 Carpenter v. Bell, 96 Tennessee 294 7 v. Carpenter, 126 Michigan 217 251 v. Dexter, 8 Wallace (United States) 513 278, 289 v. Van Olinder, 127 Illinois 42 147 Carr v. Maltby, 165 New York 557 426 v. Moore (Iowa), 93 Northwestern 52 103, 117 v. Winlock, 109 Kentucky 488 388 Carroll County Academy v. Gallatin Academy Co., 104 Kentucky 621 180 Carter v. Day, 59 Ohio State 96 160 v. Denman, 23 New Jersey Law 260 218 v. Goodin, 3 Ohio State 75 376 Carty v. Connolly, 91 California 15 61, 341 Cary v. Cary , 189 Pennsylvania State 65 259 Casev. Kelly, 133 United States 21 404, 405 Case v. Owen, 139 Indiana 22..., 152 Case Threshing Machine Co. v. Joyce, 89 Tennessee 337 387 Cass County Bank v. Weber 83 Iowa 63 384 Cassedy v. Jackson, 45 Mississippi 397 , . 419 Cassidy's Succession, 40 Louisiana Annual 827 213 Castro v. Geil, 110 California 292 335, 337 Cassilly v. Cassilly, 57 Ohio State 582 63 Catlin Co. v. Lloyd, 180 Illinois 398 52, 56 Cazassa v. Cazassa, 92 Tennessee 573 301 Center v. Banking Co., 185 Illinois 534 194, 363 v. Davis, 113 California 307 160 Central Land Co. v. Laidley, 32 West Virginia 134 365 Central Transportation Co. v. Pullman's Palace Car Co., 139 United States 24 407 Chaffee v. Browne, 109 California 211 66 Chamberlin v. Gleason, 163 New York 214 156 Chamblee v. Broughton, 120 North Carolina 170 147 Chandler v. Simmons, 97 Massachusetts 508 321 Chandos v. Mack, 77 Wisconsin 573 101, 306 Chapin v. Shafer, 49 New York 407 315 Chapman v. Chapman, 91 Virginia 397 430 v. Charter, 46 West Virginia 769 69 v. Jones, 149 Indiana 434 418 Chappel v. Railroad, 62 Connecticut 195 125 Charles v. Hastedt, 51 New Jersey Equity 171 320, 321 XXX11 TABLE OF CASES. [References are to Sections.] Chase v. S wayne, 88 Texas 218 386 Chesebro v. Palmer, 68 Connecticut 207 143 Chevalier v. Carter, 124 Alabama 520 418 Chicago v. Middlebrooke, 143 Illinois 265 407 Chicago Co. v. Powell, 120 Michigan 51 258 Chicago &c. R. Co. v. Ward, 128 Illinois 349 125 v. Titterington, 84 Texas 218 395 Chick v. Sisson, 95 Michigan 412 299 Child v. Baker, 24 Nebraska 188 253 v. Singleton, 15 Nevada 461 385 v. Starr, 5 Hill (New York) 369 100 Childs v. Rue, 84 Minnesota 323 184 Chiles v. Conley's Heirs, 2 Dana (Kentucky) 21 25 Chippewa Lumber Co. v. Tremper, 75 Michigan 36 187 Christopher v. Christopher, 64 Maryland 583 60 Church v. Case, 110 Michigan 621 66 v. Meeker, 34 Connecticut 421 104 Cincinnati &c. E. Co. v. Iliff, 13 Ohio State 235 309 Citizens' Loan Co. v. Witte, 116 Wisconsin 60 165 City of. See name of city. Clapp v. Wilder, 176 Massachusetts 332 176, 179, 182 Clark v. Butts, 73 Minnesota 361 38 v. Clark, 16 Oregon 224 18, 37, 361, 364 v. Fisher, 54 Kansas 403 202 v. Graham, 6 Wheaton (United States) 577 6 v. Lineberger, 44 Indiana 223 209 v. Wilson, 127 Illinois 449 291 Clarke v. Clarke, 178 United States 186 8 v. Courtney, 5 Peters (United States) 319 239 v. Priest, 21 New York Appellate Division 174 205 Clay v. Hammond, 199 Illinois 370 343 Clement v. Bank, 61 Vermont 298 219 Clements v. Lacy, 51 Texas 150 387 Cleveland v. Burnham, 64 Wisconsin 347 40 Cline v. Jones, 111 Illinois 563 306 Clink v. Russell, 58 Michigan 242 274 Clute v. Fisher, 65 Michigan 48 ' 116 Cobb v. Davenport, 32 New Jersey Law 369 108 v. Taylor, 133 Indiana 605 78 Cochran v. Benton, 126 Indiana 58 7 v. Pascault, 54 Maryland 1 205 Cocke v. Bailey, 42 Mississippi 81 373 Coe v. Columbus &c. Railroad Co., 10 Ohio State 372 407 Colby v. McOmber, 71 Iowa 469 291 v. Osgood, 29 Barbour (New York) 349 : 205 TABLE OF CASES. XXX111 [References are to Sections.} Cole v. Cole, 126 Michigan 569 387 v. Hadley, 162 Massachusetts 579 94 v. The Lake Co., 54 New Hampshire 242 135 v. Mette, 65 Arkansas 503 45 Colee v. Colee, 122 Indiana 109 298, 301 Coleman v. Improvement Co., 94 New York 229 81 v. Manhattan Beach Co., 94 New York 229 419 v. State, 79 Alabama 49 253 Colgan v. McKeon, 24 New Jersey Law 566 410 Collamore v. Collamore, 158 Massachusetts 74 143 Collins v. Asheville Land Co., 128 North Carolina 563 93, 94 v. Cornwell, 131 Indiana 20 364 Colorado Central R. Co. v. Allen, 13 Colorado 229 363 Commonwealth v. Clemmer, 190 Pennsylvania State 202 414 v. New York &c. R. Co., 132 Pennsylvania State 591 405 Compton v. White, 86 Michigan 33 301 Concord Manufacturing Co. v. Robertson, 66 New Hampshire 1. . . 117 Conduitt v. Ross, 102 Indiana 166 232 Congregational Society v. Stark, 34 Vermont 243 137, 174 Conlan v. Grace, 36 Minnesota 276 251 Conley v. Finn, 171 Massachusetts 70 34 v. Nailor, 118 United States 127 338 Connecticut Mutual Life Insurance Co. v. Smith, 117 Missouri 261 . 404 Conrad v. Long, 33 Michigan 78 185 Converse v. Converse, 21 Vermont 168 338 Cook v. Higley, 10 Utah 228 388 v. Walling, 117 Indiana 9 363 Cooley v. Kinney, 109 Michigan 34 153 Cooper v. Hamilton, 97 Tennessee 285 286 v. Smith, 75 Michigan 247 266 Copeland v. McAdory, 100 Alabama 553 203, 209 Coppage v. Alexander's Heirs, 2 B. Monroe (Kentucky) 313 185 Corbett v. Norcross, 35 New Hampshire 99 253 Cordova v. Hood, 17 Wallace (United States) 1 49 Corey v. Smalley, 106 Michigan 257 430 Cornell v. Maltby, 165 New York 557 426 Cosgrove v. Cummings, 195 Pennsylvania State 497 54, 245 Cosner v. McCrum, 40 West Virginia 339 247 Costigan v. Pennsylvania R. Co., 54 New Jersey Law 233 226 Council Bluffs Savings Bank v. Smith, 59 Nebraska 90 293 Coursolle v. Weyerhauser, 69 Minnesota 328 314 Cover v. Manaway, 115 Pennsylvania State 338 34 Covington v. Neftzger, 140 Illinois 608 344 Cowan v. Southern R. Co., 118 Alabama 544 392, 395 Cowell v. Springs Co., 100 United States 55 171, 186, 405 Cowen v. Truefit, 1899, 2 Chancery Division 309 85 iii— Bfisws. Con. XXXIV TABLE OF CASES. [References are to Sections.] Cox v. Holcomb, 87 Alabama 589 367 v. Hart, 145 United States 376 75 v. James, 45 New York 557 94 Crane v. Beeder, 21 Michigan 24. 408, 410 Cravens v. Bossiter, 116 Missouri 338 302, 304 Crawford v. Crawford, 24 Nevada 410 371 v. Nimmons, 180 Illinois 143 208 v. Scovell, 94 Pennsylvania State 48. 337, 346 Cray v. Willis, 2 Peere Williams 529 151 Creath v. Creath, 86 Tennessee 659 390 Cresinger v. Welch, 15 Ohio 156 316 Cribben v. Deal, 21 Oregon 211 39 Crocker v. Cotting, 166 Massachusetts 183 89 v. Smith, 94 Alabama 295 29 Crooks v. Crooks, 34 Ohio State 610 370 v. Whitford, 47 Michigan 283 73 Cross v. Noble, 67 Pennsylvania State 74 202 Crossen v. Oliver, 37 Oregon 514 33 Crouse v. Murphy, 140 Pennsylvania State 335 42 Crowley v. Lumber Co., 66 Minnesota 400 201 v. Vaughan, 11 Bush (Kentucky) 517 417 Croxall v. Shererd, 5 Wallace (United States) 268 142 Culbertson v. Witbeck Co., 1'27 United States 326 252 Cullen v. Sprigg, 83 California 56 79 Cunningham v. Neeld, 198 Pennsylvania State 41 42 Currey, In re, L. E, 32 Chancery Division 361 354 Currier v. Woodward, 62 New Hampshire 63 382 Curry v Colburn, 99 Wisconsin 319 299 v. Mortgage Co., 107 Alabama 429 194 Curtis v. Bunnell &c. Co., 6 Idaho 298 367 v. Simpson, 72 Vermont 232 353 Outright v. Stanford, 81 Illinois 240 193 Cutts v. Young, 147 Missouri 587 340 Dagley v. Black, 197 Illinois 53 301 Dahlam's Estate, 175 Pennsylvania State 455 290 Dakin v. Dakin, 97 Michigan 284 375 Daniel v. Whartenby, 17 Wallace (United States) 639 146 Danville v. Mott, 136 Illinois 289 249, 403 Darling v. Butler (United States), 45 Federal 332 309 Darlington's Appeal, 86 Pennsylvania State 512 369 Davenport v. Gwilliams, 133 Indiana 142 374 Daugherty v. Daugherty, 69 Iowa 677 370 David v. Insurance Co., 83 New York 265 43 Davidson v. Iron Co., 109 Alabama 383 37 Davis v. Burton, 3 Scammon (Illinois) 41 248 v. Converse (Texas), 46 Southwestern 910 388 TABLE OP CASES. XXXV [References are to Sections."] Davis v. Davis, 92 Iowa 147 304 v. Davis, 61 Maine 395 376 v. Dudley, 70 Maine 236 316 v. Hollingsworth, 113 Georgia 210 43 v. Jenkins, 93 Kentucky 353 398 v. Kelly, 62 Nebraska 642 382 v. Laning, 85 Texas 39 414 v. McCullouch, 192 Illinois 277 379 v. McDonald, 42 Georgia 205 376 v. McGrew, 82 California 135 71 v. Semmes, 51 Arkansas 48 236 v. Shields, 26 "Wendall (New York) 341 235 v. Steeps, 87 Wisconsin 472 , 42 v. Sturgeon, 198 Illinois 520 146 v. Ward, 109 California 186 74 Dawley v. Brown, 79 New York 390 421 Dawson v. Shirley, 6 Blackford (Indiana) 531 377 Dean v. Long, 122 Illinois 447 49, 357 v. Metropolitan R. Co., 119 New York 540 371 v. Shelly, 57 Pennsylvania State 426 194 Deason v. Taylor, 53 Mississippi 697 49 De Blanc v. Lynch, 23 Texas 25 167 Decatur v. Niedermeyer, 168 Illinois 68 96 Deering v. Reilly, 167 New York 184 90 Deery v. Cray, 10 Wallace (United States) 263 93 De Gray v. Monmouth Beach Co., 50 New Jersey Equity 329 228 Dehority v. Wright, 101 Indiana 382 218 Delhi School District v. Everett, 52 Michigan 314 137, 174 Delong v. Delong, 56 Wisconsin 514 183 Demars v. Koehler, 62 New Jersey Law 203 200, 202 Dengenhart v. Cracraft, 36 Ohio State 549 324 Dennett v. Dennett, 44 New Hampshire 531 338, 340 Denton v. Arnold, 151 Indiana 188 373 Dentzel v. Waldie, 30 California 138 37 De Segond v. Culver, 10 Ohio 188 280 De Silver's Case, 5 Eawle (Pennsylvania) 111 336 Despain v. Wagner, 163 Illinois 598 371, 400 Dettmer v. Behrens, 106 Iowa 585 302, 307 De Vaughn v. Hutchinson, 165 United States 566 146 Dever v. Hagerty, 169 New York 481 418 Devereux v. McMahon, 108 North Carolina 134 236 Devinney v. Reynolds, 1 Watts and Sergeant (Pennsylvania) 328. . 239 Devoe v. Sunderland, 17 Ohio State 52 198 Devries v. Conklin, 22 Michigan 255 357 Dewey v. Allgire, 37 Nebraska 6 333, 347 Dewey v. Campau, 4 Michigan 565 270 v. Goodman, 107 Tennessee 244 356 XXXVI TABLE OF CASES. [References are to Sections.} Dewey v. Kimball (Minnesota), 95 Northwestern 317 ; 96 Northwest- ern 704 437 Dexter v. Hall, 15 Wallace (United States) 9 336 Dezendorf v. Humphreys, 95 Virginia 473 352 Dickie v. Abstract Co., 89 Tennessee 431 425 Dickson v. Desire's Administrator, 23 Missouri 151 215 v. United States, 125 Massachusetts 311 7 Diefendorf v. Diefendorf, 132 New York 100 307 Dietrich v. Hutchinson, 73 Vermont 134 37, 351, 363, 364 Disch v. Timm, 101 Wisconsin 179 341 Dixon v. Bristol Savings Bank, 102 Georgia 461 310 Doane v. Feather's Estate, 119 Michigan 691 164 Dodder v. Snyder, 110 Michigan 69 61 Dodge v. Hollinshead, 6 Minnesota 25 293 Doe d. Griffith v. Pritchard, 5 Barnewall & Alderson, 765 413 Doehrel v. Hillmer, 102 Iowa 169 4, 7, 408 Doescher v. Spratt, 61 Minnesota 326 184 Dohm v. Haskin, 88 Michigan 144 10, 278 Dohms v. Mann, 76 Iowa 723 328 Dolph v. Hand, 156 Pennsylvania State 91 313 Donahue v. Cricket Club, 177 Illinois 351 396, 398 Donegan v. Donegan, 103 Alabama 488 165 Donnelly v. Eastes, 94 Wisconsin 390 172 Donnelly's Estate, 125 California 417 414 Donovan v. St. Anthony Co., 8 North Dakota 585 253 v. Ward, 100 Michigan 601 316 Doran v. Butler, 74 Michigan 643 272 Doren v. Gillum, 136 Indiana 134 130 Douglass v. Lewis, 131 United States 75 211, 212 v. Thomas, 103 Indiana 187 198 Downham v. Holloway, 158 Indiana 626 337, 345 Downing v. Birney, 112 Michigan 474 133 v. Marshall, 23 New York 366 401 Drew v. Carroll, 154 Massachusetts 181 81 Drury v. Foster, 2 Wallace (United States) 24 377 v. Holden, 121 Illinois 130 208 Duke v. Markham, 105 North Carolina 131 249 Duncan v. Terre Haute, 85 Indiana 104 373 Duncombe v. Richards, 46 Michigan 166 341 Dundas v. Bowler, 3 McLean (United States) 397 10 Dundy v. Chambers, 23 Illinois 369 250 Dunlap v. Henry, 76 Missouri 106 274 Dupont v. Wertheman, 10 California 354 70 Durant v. Ritchie, 4 Mason (United States) 45 362 Durfee v. Grinnell, 69 Illinois 371 290 D'Wolf v. Hayden, 24 Illinois 525 426 TABLE OF CASES. XXXV11 [References are to Sections.'] Dyer v. Eldridge, 136 Indiana 654 166 v. Skadan, 128 Michigan 348 309 Eagan v. Scully, 29 New York Appellate Division 617 319 Eames v. Preston, 20 Illinois 389 247 Eare v. Snow, 2 Plowden 504 360 Eaton v. Trowbridge, 38 Michigan 454 34 v. Whitaker, 18 Connecticut 222 350 Eckler v. Alden, 125 Michigan 215 66 Eckman v. Eckman, 68 Pennsylvania State 460 58 Ecroyd v. Coggeshall, 21 Ehode Island 1 181 Edens v. Miller, 147 Indiana 208 80 Edgerton v. Aycock, 123 North Carolina 134 147 Edwards v. Clark, 83 Michigan 246 200, 202, 204 Edwards Hall Co. v. Dresser, 168 Massachusetts 136 127 Egan v. Horrigan, 96 Maine 46 304 Elcessor v. Elcessor, 146 Pennsylvania State 359 340 Elder v. Schumacher, 18 Colorado 433 336 Eldredge v. Palmer, 185 Illinois 618 346 Electric City Land &c. Co. v. "West Eidge Coat Co., 187 Pennsylva- nia State 500 223 Eleventh Avenue, In re, 81 New York 436 94 Eliason v. Bronnenberg, 147 Indiana 248 328 Elliott v. Plattor, 43 Ohio State 198 373 Ellis v. Alford, 64 Mississippi 8 323 v. Dasher, 101 Georgia 5 17 Ellison v. Branstrator, 153 Indiana 146 240 Ellwood v. Northrup, 106 New York 172 325 Elmondorff v. Carmichael, 3 Littell (Kentucky) 472 409 Elsey v. McDaniel, 95 Pennsylvania State 472 363 Elston v. Jasper, 45 Texas 409 333 Elwell v. Shaw, 16 Massachusetts 42 239 Elwood v. O'Brien, 105 Iowa 239 340 Ely's Administrator v. United States, 171 United States 220 92 Elyton Land Co. v. Eailroad, 100 Alabama 396 179 Emeric v. Alvarado, 90 California 444 289 Engel v. Ayer, 85 Maine 448 123 Engle v. "White, 104 Michigan 15 396 Englebert v. Troxell, 40 Nebraska 195 313, 317, 321 Ennor v. Hodson, 134 Illinois 32 355 Ensign v. Colt (Connecticut), 52 Atlantic 829 209 Enyeart v. Kepler, 118 Indiana 34 166 Equitable Life Assurance Society v. Brennan, 148 New York 661. . 228 Eslava v. Lepretre, 21 Alabama 504 348 Essex v. Atkins, 14 Vesey 542 356 Estate of. See name of party. Eureka Co. v. Edwards, 71 Alabama 248 321 XXXVlli TABLE OP CASES. [References are to Sections.] Evans v. Beaver, 50 Ohio State 190 7 v. Dickenson (United States), 114 Federal 284 365 v. Etheridge, 99 North Carolina 43 276 v. Grand Rapids &c. E. Co., 68 Michigan 602 385, 395 Evenson v. "Webster, 3 South Dakota 382 25, 29 Everts v. Agnes, 4 Wisconsin 343 310 E wertsen v. Gerstenberg, 186 Illinois 344 228 E wing v. Shannahan, 113 Missouri 188 137 v. Smith, 3 Desaussure's Equity (South Carolina) 417 355 Ex parte. See name of party. Fain v. Smith, 14 Oregon 82 306 Fairfax v. Hunter, 7 Cranch (United States) 603 408 Faith v. Bowles, 86 Maryland 13 181 Fallon v. Chidester, 46 Iowa 588 428 Farmer v. Farmer, 129 Missouri 530 340 Farmers' Bank v. Pryse (Kentucky), 76 Southwestern 358 417 v. Wallace, 45 Ohio State 152 163 Farnham v. Thompson, 34 Minnesota 330 181 Farns worth v. Noff singer, 46 West Virginia 410 340 Farnum v. Peterson, 111 Massachusetts 148 417 Farr v. Sumner, 12 Vermont 28 321 Farrar v. Farrar, 4 New Hampshire 191 311 Farrell County v. Dart, 26 Connecticut 376 279 Farrington v. Putnam, 90 Maine 405 405 Farwell v. Des Moines Manufacturing Co., 97 Iowa 286 33 Faulkner v. Adams, 126 Indiana 459 33 v. Davis, 18 Grattan (Virginia) 651 330 Fayette Land Co. v. Louisville &o. B. Co., 93 Virginia 274 401, 405 Fears v. Brooks, 12 Georgia 195 352, 354 Feas's Estate, 30 Washington 51 385 Feeney v. Howard, 79 California 525 66 Felix v. Patrick, 145 United States 317 299 Feurt v. Caster, 174 Missouri 289 382 Ferguson v. Houston E. Co., 73 Texas 344 314 Ferguson's Appeal, 117 Pennsylvania State 427 93 Final v. Backus, 18 Michigan 218 291 Finch v. Garrett, 102 Iowa 381 66 Fincher v. Hanegan, 59 Arkansas 151 '. 42 Findley v. Hill, 133 Alabama 229 40 Finlay v. King's Lessee, 3 Peters (United States) 346 172 Finley v. Prescott, 104 Wisconsin 614 236 v. Simpson, 22 New Jersey Law 311 24 Firmstone v. Spaeter, 150 Pennsylvania State 616 80 First English Evangelical Church v. Arkle, 49 West Virginia 92. . . 405 TABLE OF CASES. XXxix [References are to Sections.] First National Bank v. Hollingsworth, 78 Iowa 575 382 v. Paul, 75 Virginia 594 365 First Parish in Sutton v. Cole, 3 Pickering (Massachusetts) 232 401 First Universalist Society v. Boland, 155 Massachusetts 171 174 Fisher v. Clark, 8 Kansas Appellate 483 194 v. Meister, 24 Michigan 447 399 v. Parry, 68 Indiana 465 213 Fisk v. Brayman, 21 Rhode Island 195 126 v. Hopping, 169 Illinois 105 276, 291, 292 v. Osgood, 58 Nebraska 486 261 Fitch v. Johnson, 104 Illinois 111 226 v. Reiser, 79 Iowa 34 341 Fitzgerald v. Fitzgerald, 100 Illinois 385 293 v. Fitzgerald, 168 Massachusetts 488 369 v. Gofi, 99 Indiana 28 299 Fitzhugh v. Croghan, 2 J. J. Marshall (Kentucky) 429 198 Flege v. Garvey, 47 California 371 393 Fleming v. Katahdin Pulp Co., 93 Maine 110 157 Fleschner v. Sumpter, 12 Oregon 161 278 Fletcher v. Shepherd, 174 Illinois 262 311, 374 Flowers v. Flowers, 89 Georgia 632 373 Flynn v. Bourneuf, 143 Massachusetts 277 204 v. Flynn, 68 Michigan 20 65 v. Flynn, 171 Massachusetts 312 374 v. Jackson, 93 Virginia 341 67 Folsom v. Asper, 25 Utah 299 382 Fond du Lac v. Otto's Estate, 113 Wisconsin 39 240 Fontaine v. Savings Institution, 57 Missouri 552 34 Foote v. Clark, 102 Missouri 394 212 Fort Wayne v. Lake Shore &c. R. Co., 132 Indiana 558 407 Forrester v. Boston & Montana Copper Co., 21 Montana 544 406 Fort Jefferson Improvement Co. v. Dupoyster, 108 Kentucky 792 . . 417 Poster v. Foster, 62 New Hampshire 46 201 v. Hall, 12 Pickering (Massachusetts) 89 67 v. Joice (United States), 3 Washington Circuit Court 498 135 v. Mansfield, 3 Metcalf (Massachusetts) 412 309 v. Runk, 109 Pennsylvania 291 126 Foundry Co. v. Hovey, 21 Pickering (Massachusetts) 417 247 Fowler v. Lewis, 36 West Virginia 112 327 v. Shearer, 7 Massachusetts 14 362 v. Poling, 2 Barbour (New York) 300 206 Fox, In re, 52 New York 530 7 v. Reil, 3 Johnson (New York) 477 250 France v. Bell, 52 Nebraska 57 394 Francis v. Wilkinson, 147 Illinois 370 339 Franklin Institute v. Savings Bank, 14 Rhode Island 632 153 Frazer v. Supervisors, 74 Illinois 282 198 xl TABLE OF CASES. [References are to Sections.] Frazier v. Jeakins, 64 Kansas 615 328 Frederick v. Emig, 186 Illinois 319 373, 374 v. Wilcox, 119 Alabama 355 267 Freeman v. Foster, 55 Maine 508 208 Freiermuth v. Steigleman, 130 California 392 400 French v. Lord, 69 Maine 537 374 French Lumber Co. v. Theriault, 107 Wisconsin 627 335, 337 Frenche v. Chancellor, 51 lSIew Jersey Equity 624 92 Frickee v. Donner, 35 Michigan 151 363 Frey v. Clifford, 44 California 335 81 Friedman v. Steiner, 107 Illinois 125 174 Frink v. Hughes (Michigan), 94 Northwestern 601 228 Fritts v. Palmer, 132 United States 282 405 Fritz v. Pusey, 31 Minnesota 368 202 Frost v. Courtis, 172 Massachusetts 401 158 v. Wolf, 77 Texas 455 245 Fudickar v. East Riverside, 109 California 29 249 Fuhr v. Dean, 26 Missouri 116 242 Fuikerson v. Holmes, 117 United States 389 44 Fuller v. Shedd, 161 Illinois 462 4, 114 Fulmer v. Williams, 122 Pennsylvania State 191 '. 109, 110 Fulton v. Priddy, 123 Michigan 298 251, 307 Funk v. Bentchler, 134 Indiana 68 342 Furrow v. Athey, 21 Nebraska 671 400 G. V. B. Mining Co. v. Bank (United States), 95 Federal 23 249 Gadsby v. Monroe, 115 Michigan 282 392, 397 Gage v. Consumers' Electric Light Co., 194 Illinois 30 437 v. Railroad, 11 Iowa 310 276 v. Wheeler, 129 Illinois 197 263, 387 Galbraith v. Paine (North Dakota), 96 Northwestern 258 417 Gallagher v. Delargy, 57 Missouri 29 363 Galloway v. Henderson, 131 Alabama 280 336 Gamble v. McClure, 69 Pennsylvania State 282 68 Games v. Stiles, 14 Peters (United States) 322 42 Gann v. Free Fishers, 11 House of Lords Cases 192 104 Gannett v. Leonard, 47 Missouri 205 330 Gardner v. Batts, 114 North Carolina 496 380 v. Gardner, 5 Cushing (Massachusetts) 483 238 v. Gardner, 123 Michigan 673 -383 Garner v. Black, 95 Texas 125 392, 399 Garrett v. Belmont Co., 94 Tennessee 459 249 v. Hanshue, 53 Ohio State 482 250 v. Lister, 1 Levinz 25 (England) 250 Garstang v. Davenport, 90 Iowa 359 94 Garth v. Arnold (United States), 115 Federal 468 330- TABLE OF CASES. xli [References are to Sections.'] Gaston v. Dashiell, 55 Texas 517 49 v. Portland, 16 Oregon 255 309 v. Weir, 84 Alabama 193 77 Gate City Abstract Co. v. Post, 55 Nebraska 742 425 Gates v. Salmon, 35 California 676 157 v. Winslow, 1 Massachusetts 65 188 Gault v. Van Zile, 37 Michigan 22 190 Geil v. Geil, 9 Virginia Law Register 530 367 Geiszler v. De Graaf, 166 New York 339 218 Geofroy v. Riggs, 133 United States 258 4 George v. Bates, 90 Virginia 839 81 Georgia &c. Railroad Co. v. Scott, 38 South Carolina 34 357 German- American Bank v. Carondelet, 150 Missouri 570 283 German Savings & Loan Society v. De Lashmutt (United States), 67 Federal 399 ; . . 336, 347 Gibbs v. Swift, 12 Cushing (Massachusetts) 393 79 Gibson v. Holden, 115 Illinois 199 232 v. Kelly, 15 Montana, 417 108 v. Richart, 83 Indiana 313 188 Gilbert v. Berlin, 70 New Hampshire 396 405 v. Emerson, 55 Minnesota 254 100 v. Sprague, 196 Illinois 444 256 Giles v. Miller, 36 Nebraska 346 387 Gill v. Gill, 69 Arkansas 596 382 Gillenwaters v. Campbell, 142 Indiana 529 319 Gilmer v. Mobile &c. R. Co., 79 Alabama 569 226 Gilmore v. Sapp, 100 Illinois 297 297 Gladney v. Sydnor, 172 Missouri 318 388 Glascott v. Bragg, 111 Wisconsin 605 428 Glaze v. Insurance Co. , 87 Michigan 349 298 Gleason v. Spray, 81 California 217 394 Glenn v. Canby, 24 Maryland 127 224 Globe Insurance Co. v. Reid, 19 Indiana Appellate 203 240 Glocke v. Glocke, 113 Wisconsin 303 183, 184 Glos v. Furman, 164 Illinois 585 75 v. Kingman & Co. (Illinois), 69 Northeastern 632 438 v. Gerrity, 190 Illinois 545 278 Glynn v. Glynn, 62 Nebraska 872 408 Goad v. Lawrence (Kentucky), 68 Southwestern 411 29 Goddard's Case, 2 Coke 4b, 5 32, 247 Godfrey v. Thornton, 46 Wisconsin 677 390, 398, 399 Goff v Cougle, 118 Michigan 307 98 Goldsmith v. Goldsmith, 46 West Virginia 426 183 Goodman v. Randall, 44 Connecticut 321 234 Goodnow v. Lumber Co., 31 Minnesota 468 317 Goodrich v. Russell, 42 New York 177 410 Xlii TABLE OF CASES. [References are to Sections.'] Goodwin v. Goodwin, 113 Iowa 319 392 v. Keney, 49 Connecticut 563 > 157 v. Thompson, 83 Tennessee 209 108, 109 Gordon v. Heywood, 2 New Hampshire 402 362 v. San Diego, 101 California 522 157 Gore v. Knight, 2 Vernon, 535 352 Goree v. Wadsworth, 91 Alabama 416 278 Gorman v. Mullins, 172 Illinois 349 330 Gormley v. Clark, 134 United States 338 4 Gould v. Railroad, 142 Massachusetts 85 89 Goulet v. Debreuille, 84 Minnesota 72 293 Gouverneur v. National Ice Co., 134 New York 355 116 Gouverneur's Heirs v. Robertson, 11 Wheaton (United States) 332. 409 Grady v. McCorkle, 57 Missouri 172 373 Graham v. Stern, 168 New York 517 89 Grand Rapids v. Hastings, 36 Michigan 122 292 v. Powers, 89 Michigan 94 110 Grand Rapids Ice Co. v. Ice Co., 102 Michigan 227 116 Grand Rapids and Indiana R. Co. v. Butler, 159 United States 87 101 Granger v. Avery, 64 Maine 292 101 v. Granger, 147 Indiana 95 146 Grant v. Carpenter, 8 Rhode Island 36 138 v. Oliver, 91 California 158 261 Graves v. Deterling, 120 New York 447 178, 226 Gray v. Blanchard, 8 Pickering (Massachusetts) 284 186 v. Chicago, Milwaukee and St. Paul R. Co., 189 Illinois 400 .. . 181 v. Jones (United States), 14 Federal 83 426 v. Schofield, 175 Illinois 36 396 v. Waldron, 101 Michigan 612 249 Green v. Bennett, 120 North Carolina 394 363, 364 v. Cumberland &c. Co. (Tennessee), 72 Southwestern, 459. .417, 421 v. Green, 69 New York 553 321 v. Irving, 54 Mississippi 454 190 v. Jordan, 83 Alabama 220 78 v. Thomas, 11 Maine 318 53 v. Wilding, 59 Iowa 679 313 Greenby v. Wilcocks, 2 Johnson (New York) 1 217 Greene v. O'Connor, 18 Rhode Island 56 179, 180 Greenslade v. Dare, 20 Beaver 284 347 Greenwood v. Jenswald, 69 Iowa 53 291 Greer v. Major, 114 Missouri 145 388 v. "Wintersmith, 85 Kentucky 516 419 Grier's Appeal, 101 Pennsylvania State 412 326 Griffin v. Catlin, 25 Washington 474 . . '. 291 TABLE OF CASES. xliii {.References are to Sections.] Griffith v. Godey, 113 United States 89 341 v. Holman, 23 Washington 347 108, 110 v. Pritchard, 5 Bamewall and Adolphus 765 413 Griswold v. Hicks, 132 Illinois 494 147 Grofi v. Bank, 50 Minnesota 234 431 Groneweg v. Beck, 93 Iowa 717 384 Grove v. Todd, 41 Maryland 633 376 Groves v. Groves, 65 Ohio 442 60 Grubbs v. Leyendecker, 153 Indiana 348 374 Guerin v. Smith, 62 Michigan 369 218 •Guertin v Mombleau, 144 Illinois 32 42 Guggenheimer v. Lockridge, 39 West Virginia 457 300 Guilfoyle, In re, 96 California 598 236 Gulf & Ship Island R. Co. v. Singleterry, 78 Mississippi 772 395 Gulf R. Co. v. Jones, 82 Texas 156 61 Gullett v. Arnett (Kentucky), 44 Southwestern 957 388 Gully v. Grubbs, 1 J. J. Marshall (Kentucky) 387 59 Gunnison v. Twitchel, 38 New Hampshire 62 397 Guyer v. Smith, 22 Maryland 239 408 G wynne v. Cincinnati, 3 Ohio 24 373 Haberman v. Baker, 128 New York 253 91 Hacker's Appeal, 121 Pennsylvania State 192 246 Hackett v. Moxley, 68 Vermont 210 350, 353 Hackney v. Butts, 41 Arkansas 393 239 Haddock v. Railroad, 146 Massachusetts 155 428 Hafner v. St. Louis, 161 Missouri 34 405 Hagerstown Manufacturing &c. Co. v. Keedy, 91 Maryland 430 405 Haggerty v. Wagner, 148 Indiana 625 374 Haight v. Vallet, 89 California 245 426 Haldane v. Sweet, 55 Michigan 196 203 Hale v. Cottle, 21 Oregon 580 87 v. Hale, 146 Illinois 227 330 v. Kobbert, 109 Iowa 128 341 Hall v. Alford, 114 Michigan 165 106, 107 v. Cardell, 111 Iowa 206 301 v. Dean, 13 Johnson (New York) 105 199 v. Fields, 81 Texas 553 378 v. Hall, 107 Missouri 101 301 v. Powell, 8 Oklahoma 276 400 v. Redson, 10 Michigan 21 252 v. Solomon, 61 Connecticut 476 61 v. Turner, 110 North Carolina 292 174 v. Walker, 118 North Carolina 377 363 Hall's Lessee v. Ashby, 9 Ohio 96 421 Halstead v. Board Commissioners, 56 Indiana 363 410 Hamaker v. Hamaker, 88 Alabama 431 352 xllV TABLE OF CASES. [References are to Sections.'] Hamiel v. Donnelly, 75 Iowa 93 328 Hamilton v. Detroit, 85 Minnesota 83 390 v. Harvey, 121 Illinois 469 77 v. Hubbard, 134 California 603 167, 353 v. Nutt, 34 Connecticut 501 49 Hamlen v. Werner, 144 Massachusetts 396 228 Hammers v. Dole, 61 Illinois 307 281, 283 Hammond v. Shepard, 186 Illinois 235 112, 114 Hampton v. Cook, 64 Arkansas 353 363 Hand v. Weidner, 151 Pennsylvania State 362 376 Hanlon v. Hobson, 24 Colorado 284 98 Hanna v. Palmer, 194 Illinois 41 77 v. Reeves, 22 Washington 6 167 Hannah v. Davis, 112 Missouri 599 261 Hanson v. Rice, 88 Minnesota 273 116 Hardin v. Jordan, 140 United States 371 4, 102, 113, 114, 115 v. Kirk, 49 Illinois 153 289 v. Osborne, 60 Illinois 93 289 v. Shedd, 177 Illinois 123 114 v. Shedd, 190 United States 508 101, 114 Harding v. American Glucose Co., 182 Illinois 551 406 Hare v. Murphy, 60 Nebraska 135 301 Hargis v. Ditmore, 86 Kentucky 653 37 Harkins v. Forsyth, 11 Leigh (Virginia) 294 365 Harkness v. Burton, 39 Iowa 101 395 Harley v. State, 40 Alabama 689 410 Harlowe v. Hudgins, 84 Texas 107 70 Harmon v. Stearns, 95 Virginia 58 44 Harms v. Coryell, 177 Illinois 496 74 Harral v. Leverty, 50 Connecticut 46 419 Harrass v. Edwards, 94 Wisconsin 459 251, 253 Harraway v. Harraway, 136 Alabama 499 371 Harriman v. Queen Insurance Co., 49 Wisconsin 71 384 Harrington v. Bean, 89 Maine 470 209 Harriot v. Harriot, 25 New York Appellate Division 245 143 Harris v. McCann, 75 Mississippi 805 147 Harrison v. Des Moines R. Co., 91 Iowa 114 208 v. Harrison, 105 Georgia 517 156 v. Stipes, 34 Nebraska 431 102 v. Vreeland, 38 New Jersey Law 366 24 Harsh v. Griffin, 72 Iowa 608 400 Harshbarger v. Carroll, 163 Illinois 636 29 Hart v. Burch, 130 Illinois 426 374 v. Church, 126 California 471 398 v. Lyon, 90 New York 663 224 v. Randolph, 142 Illinois 521 272 Hartung v. Witte, 59 Wisconsin 285 179 TABLE OF CASES. xlv [References are to Sections.] Hatch's Estate, 62 Vermont 300 378 Hatfield v. Sneden, 54 New York 280 363 Hathaway v. Cass, 84 Minnesota 192 303 v. Payne, 34 New York 92 309 Hatton v. Holmes, 97 California 208 272 Hauenstein v. Lynham, 100 United States 483 4 Havemeyer v. Dahn, 48 Nebraska 536 • 288 Havens v. Seashore Co., 47 New Jersey Equity 365 57, 69 Hawes v. Hawes, 177 Illinois 409 : ... 306 v. Hawes, 1 Wilson 165 ; 3 Atkyns 524 151 v. Eailroad Co., 64 Iowa 315 321 Hawhe v. Chicago &e. R. Co., 165 Illinois 561 428 Hawke v. Euyart, 30 Nebraska 149 185 Hawkes v. Pike, 105 Massachusetts 560 302 Hawley v. Northampton, 8 Massachusetts 3 142 Haworth v. Taylor, 108 Illinois 275 430 Hayden v. Peirce, 165 Massachusetts 359 261 Hayes v. Association, 124 Alabama 663 285 Haynes v. Bennett, 53 Michigan 15 322 Hays v. Peck, 107 Indiana 389 204 v. St. Paul's Church, 196 Illinois 633 228 Head v. Chesbrough, 13 .Ohio Circuit Court 354 99 v. Chesbrough, 60 Ohio State 594 99 Healey v. Babbitt, 14 Rhode Island 533 91 Heath v. Hewitt, 127 New York 166 40 Hedbloom v. Pierson (Nebraska), 90 Northwestern 218 282 Heintz v. Thayer, 92 Texas 658 260, 269 Heisen v. Heisen, 145 Illinois 658 363 v. Lamb, 117 Illinois 549 425 Heller v. Cowen, 154 New York 299 85 Helvie v. Hoover (Oklahoma), 69 Pacific 958 163 Hemphill v. Holford, 88 Michigan 293 345 Henderson v. Hatterman, 146 Illinois 555 89 Henry v. Root, 33 New York 526 312, 323 Henschel, In re (United States), 109 Federal 861 289 Herd v. Catron, 97 Tennessee 662 185 Hershman v. Hershman, 63 Indiana 451 183 Heyn v. Ohman, 42 Nebraska 693 210 Heywood v. Lumber Co., 70 New Hampshire 24 84 Hibblewhite v. M'Morine, 6 Meeson & Welsby 200 245 . Hickey v. Lake Shore & Michigan Southern R. Co., 51 Ohio State 40 24, 225 Hicks v. Blakeman, 74 Mississippi 459 328 Higgins v. Higgins, 121 California 487 81 v. Ormsby, 156 Indiana 82 375 Higinbotham v. Stoddard, 72 New York 94 87 slvi TABLE OF CASES. [.References are to Sections.] Hileman v. Bouslaugh, 13 Pennsylvania State 344 147 Hiles v. Fisher, 144 New York 306 164, 166 Hill v. Banks, 61 Connecticut 25 237 v. Chambers, 30 Michigan 422 363 v. Reynolds, 93 Maine 25 50 v. West, 8 Ohio State 222 195 Hills v. Metzenroth, 173 Massachusetts 423 228 Hilmert v. Christian, 29 Wisconsin 104 192 Hilpire v. Claude, 109 Iowa 159 428 Hinchliffe v. Shea, 103 New York 153 ; 374 Hitner's Appeal, 54 Pennsylvania State 110 375 Hitz v. Jenks, 123 United States, 297 18, 293, 365 Hoard v. Stone, 58 Michigan 578 34 Hoback v. Miller, 44 West Virginia 635 330 Hoban v. Cable, 102 Michigan 206 87 Hobson v. Hale, 95 New York 588 8 • Hodge v. Sloan, 107 New York 244 230 Hoffman v. Port Huron, 102 Michigan 417 92 Hofsass v. Mann, 74 Maryland 400 135, 136 Hogan v. Barry, 143 Massachusetts 538 223 v. Manners, 23 Kansas 551 387 Hogg v. Beerman, 41 Ohio State 81 112 Hollenbeck v. Hollenbeck, 185 Illinois 101 299 Holliday v. Hively, 198 Pennsylvania State 335 353, 355, 357 Holloway v. Southmayd, 139 New York 390 90 Holmes v. McDonald, 119 Michigan 563 304 Holmes &c. Manufacturing Co. v. Holmes &c. Metal Co., 127 New York 252 406 Holston v. Needles, 115 Illinois 461 85 Hopkins v. Smith, 162 Massachusetts 444 228 Hopper v. Calhoun, 52 Kansas 703 65 Horbach v. Tyrrell, 48 Nebraska 514 287 Horn brook v. Hetzel, 27 Indiana Appellate 79 35 Home v. Smith, 159 United States 40 103 Horner v. Chicago, Milwaukee & St. Paul R. Co., 38 Wisconsin 165 181 Horton v. Upham, 72 Connecticut 29 143 Hostetter v. Railroad, 108 California 38 92 Hottell v. Farmers' Association, 25 Colorado 67 226 House v. Jackson, 50 New York 161 . 373 Houston v. Blackman, 66 Alabama 559 60 Hout v. Hout, 20 Ohio State 119 262, 291 Houx v. Batteen, 68 Missouri 84 237 Hovey v. Hobson, 53 Maine 451 347 v. Newton, 11 Pickering (Massachusetts) 421 193 Howard v. Lincoln, 13 Maine 122 124 v. Russell, 104 Georgia 230 251 TABLE OP CASES. xlvii [References are to Sections.'] Howard v. Turner, 125 North Carolina 107 52 Howell v. Folaom, 38 Oregon 184 166 v. Jones, 91 Tennessee 402 382 Howes v. Burt, 130 Massachusetts 368 387 Hoy v. Varner, 100 Virginia 600 374 Hoyt v. Hoyt, 69 Iowa 174 387 v. Sprague, 103 United States 613 324, 330 v. Thompson, 19 New York 207 10 Hrouska v. Janke, 66 Wisconsin 252 37 Hubbard v. Greeley, 84 Maine 340 309, 310 v. Hubbard, 140 Missouri 300 17 v. Norton, 10 Connecticut 423 203 v. Sage Land &c. Co., 81 Mississippi 616 392, 398 Hudgins v. Chupp, 103 Georgia 484 351 Huff v. Hastings Express Co., 195 Illinois 257 89 v. McCauley, 53 Pennsylvania State 206 242 Hughes v. Jones, 116 New York 67 332 Hull v. Glover, 126 Illinois 123 377 v. Hull, 35 West Virgina 155 207 v. Louth, 109 Indiana 315 347 Hume v. Dickson, 37 Ohio State 68 262 v. Hopkins, 140 Missouri 65 164 Hummelman v. Mount, 87 Indiana 178 71 Humphreys v. McKissock, 140 United States 304 99, 118 Humphries v. Nix, 77 Georgia 98 247 Hunnicutt v. Summey , 63 Georgia 586 387 Hunt v. Middlesworth, 44 Michigan 448 220 v. Tolles (Vermont), 52 Atlantic 1042 40 Hunter v. Eastham (Texas), 67 Southwestern 1080 239 Hunton v. Wood (Virginia), 43 Southeastern 186 281 Huron Land Co. v. Davison (Michigan), 90 Northwestern 1034. . . . 124 v. Eobarge, 128 Michigan 686 81 Hurst v. Dulaney, 87 Virginia 444 373 v. Wilson, 89 Tennessee 270 147 Hurt v. Long, 90 Tennessee 445 330 Hutchins v. Barre Water Co., 74 Vermont 36 240 Huyck v. Andrews, 113 New York 81 200, 203 Hyne v. Osborn, 62 Michigan 235 245, 311 Hyser v. Mansfield, 72 Vermont 71 380 Illinois Central R. Co. v. Chicago, 173 Illinois 471 ; 176 United States 646 112 v. Illinois, 146 United States 387 105, 112 Illinois Land Co. v. Speyer, 138 Illinois 137 421 Illinois Steel Co. v. Bilot, 109 Wisconsin 418 101, 112 Imhoff v. Witmer's Administrator, 31 Pennsylvania State 243 332 In re. See name of party. xlviii TABLE OF CASES. {References are to Sections.'] Indianapolis &c. R. Co. v. Hood, 66 Indiana 580 181 Inman v. Swearingen, 198 Illinois 437 303 Insurance Co. v. Nelson, 103 United States 544. 259 v. White, 106 Illinois 67 249 Ireland v. Geraghty (United States), 15 Federal 35 306 Iron Belt Building Association v. Groves, 96 Virginia 138 283 Irons v. Webb, 41 New Jersey Law 203 124 Irvine v. Irvine, 9 Wallace (United States) 617 316, 322 v. McCreary, 108 Kentucky 495 118 Irving v. Campbell, 121 New York 353 295 Irwin v. Dixion, 9 Howard (United States) 10 94 v. Longworth, 20 Ohio State 581 133 v. Powell, 188 Illinois 107 245 ' Isham v. Bennington Iron Co., 19 Vermont 230 240 Ison v. Cornett (Kentucky), 75 Southwestern 204 321 Ivarson v. Mulvey, 179 Massachusetts 141 228 Ivey v. Granberry, 66 North Carolina 223 53 Jackson v. Adams, 7 Wendall (New York) 367 409 v. Alexander, 3 Johnson (New York) 484 55 v. Green, 112 Indiana 342 213 v. Lynn, 94 Iowa 151 310 v. McChesney, 7 Cowen (New York) 360 67 v. Myers, 3 Johnson (New York) 388 132 v. Phillips, 9 Cowen (New York) 94 252 v. Phipps, 12 Jonnson (New York) 418 302 v. Eailroad, 54 Missouri Appellate 636 63 v. Schoonmaker, 2 Johnson (New York) 230 32 v. Stevenson, 156 Massachusetts 496 229 v. Wood, 12 Johnson (New York) 73 244 Jaeger v. Hardy, 48 Ohio State 335 430 James v. Patten, 6 New York 9 23i Jarvis v. Seele Milling Co., 173 Illinois 192 118 Jenkins v. Dewey, 49 Kansas 49 363 Jenks v. Pawlowski, 98 Michigan 110 187, 229 v. Quinn, 137 New York 223 220 Jenness v. Smith, 58 Michigan 280 328 Jennings, Ex parte, 6 Cowen (New York) 518 101 v. Bloomfield, 199 Pennsylvania State 638 49 Jensen v. Crosby, 80 Minnesota 158 60 Jerdee v. Purbush, 115 Wisconsin 277 397 Jerome v. Ortman, 66 Michigan 668 243 Jewell v. Walker, 109 Georgia 241 56 v. Warner, 35 New Hampshire 176 143 Jinright v. Nelson, 105 Alabama 399 349 Johns v. Tiers, 114 Pennsylvania State 611 324 TABLE OF CASES. xlix [References are to Sections.'] Johnson v. Elmen, 94 Texas 168 204 v. Hilton, 96 Georgia 577 421 v. Hollensworth, 48 Michigan 140 191 v. Johnson, 170 Missouri 34 220 v. Johnson (Rhode Island), 54 Atlantic 378 308 v. Jouchert, 124 Indiana 105 371 i v. Moore, 28 Michigan 3 34 v. Nichols, 105 Iowa 122 208 v. Warren, 74 Michigan 491 170, 172 v. "Williams, 37 Kansas 179 188 Johnston v. Markle Paper Co., 153 Pennsylvania State 189 204 v. Virginia Coal Co., 96 Virginia 158 158 Jones, Ex Parte, 18 Chancery Division 108 (England) 320 v. Chesapeake and Ohio R. Co., 14 West Virginia 514 170 v. Clifton, 101 United States 225 352 v. Des Moines, 43 Iowa 209 376 v. Gurlie, 61 Mississippi 423 234 v. Jones, 137 New York 610 340 v. Jones, 96 Virginia 749 352, 357 v. Minogue, 29 Arkansas 637 408 v. Morris, 61 Alabama 518 243 v. Port Huron Co., 171 Illinois 502 186 v. Porter, 59 Mississippi 628 284 v. Smith, 73 New York 205 86 v. Soulard, 24 Howard (United States) 41 101 v. Swayze, 42 New Jersey Law 279 300 v. Warner, 81 Illinois 343 217 Joseph v. Bigelow, 4 Cushing (Massachusetts) 82 35 Jossman v. Rice, 121 Michigan 270 382 Jourdan v. Patterson, 102 Michigan 602 304 Toyner v. Sugg, 131 North Carolina 324 397 Judd v. Randall, 36 Minnesota 12 192 Justice v. Lawson, 46 West Virginia 163 161 Justice Mining Co. v. Lee, 21 Colorado 260 409 Kaeding v. Joachimsthal, 98 Michigan 78 383 Kansas v. Railroad Co., 77 Missouri 180 249 Kansas City Street R. Co. v. Railway Co., 129 Missouri 62 291 Karcher v. Gans, 13 South Dakota 383 399 Karchner v. Hoy, 151 Pennsylvania State 383 131 Karmuller v. Krotz, 18 Iowa 352 119 Kash v. Coleman, 145 Missouri 645 161 Kaufman v. Burgert, 195 Pennsylvania State 274 186 Kean v. Calumet Canal &c. Co., 190 United States 452 115 v. Roby, 145 Indiana 221 115 Keil v. Healey, 84 Illinois 104 313, 317 Kelley v. Shimer, 152 Indiana 290 29 iv — Brews. Con. 1 TABLE OF CASKS. [References are to Sections.] Kellogg v. Cook, 18 Washington 516 301 v. Malin, 50 Missouri 496 203 v. Peddicord, 181 Illinois 22 341 Kellum v. Insurance Co. , 101 Indiana 455 202 Kelly v. Bourne, 15 Oregon 476 45 v. Duffy, 31 Ohio State, 437 383 v. Nypano R. Co., 200 Pennsylvania State 229 225 v. Eosenstock, 45 Maryland 389 290 Kendall v. Lawrence, 22 Pickering (Massachusetts) 540 319 v. Powers, 96 Missouri 142 387 Kennedy v. Gaines, 51 Mississippi 625 326 v. Haskell (Kansas), 73 Pacific 913 373 v. Owen, 136 Massachusetts 199 225 Kenney v. Parks, 125 California 146 ; 137 California 527 308, 299 Kentucky Lumber Co. v. Green, 87 Kentucky 257 106 Kenyon v. Charlevoix Improvement Co. (Michigan), 97 Northwest- ern 407 425 v. Saunders, 18 Rhode Island 590 414 Keppel v. Bailey, 2 Mylne and Keen 517 (England) 226 Kerner v. McDonald, 60 Nebraska 663 163 Kettle River Co. v. Eastern &c. Co., 41 Minnesota 461 224, 230 Kettleschlager v. Ferrick, 12 South Dakota 455 400 Key v. Snow, 90 Tennessee 663 417 Kickland v. Menasha Woodenware Co., 68 "Wisconsin 34 60 Kiesel v. Clemens, 6 Idaho 444 384 Kilgore v. Jordan, 17 Texas 341 32 1 Kilpatrick v. Baltimore, 81 Maryland 179 180 Kimball v. Fenner, 12 New Hampshire 248 67 Kimm v. Griffin, 67 Minnesota 25 232 King v. Brown, 54 Indiana 368 92 v. Gilson, 32 Illinois 348 217 v. Kilbride, 58 Connecticut 109 208 v. Mead, 60 Kansas 539 67 v. Merritt, 67 Michigan 194 267 v. Norfolk & Western R. Co., 99 Virginia 625 179 v. Rhew, 108 North Carolina 696 37 v. Welborn, 83 Michigan 195 384 v. Wight, 155 Massachusetts 444 232 Kingdon v. Nottle, 1 Maule and Selwyn 355 ; 4 Maule and Selwyn (England) 53 216, 217, 221 Kingman v. Loyer, 40 Ohio State 109 262 Kingsley v. Holbrook, 45 New Hampshire 313 251 Kinney v. Vinson, 32 Texas 126 440 Kirby v. Boyette, 118 North Carolina 244 '...355, 356 Kirkendall v. Mitchell, 3 McLean (United States) 144 206 Kister v. Reeser, 98 Pennsylvania State 1 119 Kitchell v. Mudgett, 37 Michigan 81 194 Kitterlin v. Insurance Co.. 134 Illinois 64 263 TABLE OF CASKS. 11 [References are to Sections.'] Kleimann v. Geiselmann, 114 Missouri 437 378 Klenke v. Koeltze, 75 Missouri 239 353 Knapp v. Woolverton, 47 Michigan 292 122 Knight v. Leary, 54 Wisconsin 459 278 v. Mahoney, 152 Massachusetts 523 185 Knight v. Thayer, 125 Massachusetts 25 195 Knowlton v. Railroad, 72 Connecticut 188 125 Knox's Estate, 131 Pennsylvania State 220 237 Knudsen v. Omanson, 10 Utah 124 102 Knutson v. Bostrak, 99 Wisconsin 469 184 Koch v. Hustis, 113 Wisconsin 604 208 Koppelmann v. Koppelmann, 94 Texas 40 304 Kothe v. Krag-Reynolds Co., 20 Indiana Appellate 293 285 Kramer v. Carter, 136 Massachusetts 504 210 Krieger v. Crocker, 118 Missouri 531 365, 366 Kreuger v. Schultz, 6 North Dakota 310 420 v. Walker, 80 Iowa 733 259 Kruger v. Walker, 94 Iowa 506 261, 279 Kutz v. McCune, 22 Wisconsin 628 203 La Chapelle v. Burpee, 69 Hun (New York) 436 414 Lacy v. Pixler, 120 Missouri 383 316, 318 Ladd v. Noyes, 137 Massachusetts 151 218, 219 Lafferty v. Laflerty, 42 West Virginia 783 39 La Franc v. Richmond, 5 Sawyer (United States) 601 80 Lagger v. Loan Association, 146 Illinois 283 212 Lake Erie R. Co. v. Priest, 131 Indiana 413 225 v. Whitham, 155 Illinois 514 34, 86 Lake Shore R. Co. v. Piatt, 53 Ohio State 254 98, 99, 106, 116 Lamb v. Pierce, 113 Massachusetts 72 430 Lambert v. Smith, 9 Oregon 185 69 Lamont v. LeFevre, 96 Michigan 175 384 Lamprey v. Danz, 86 Minnesota 317 116 v. State, 52 Minnesota 181 110, 116 Lancaster v. Roberts, 144 Illinois 213 376 Lancy v. Snow, 180 Massachusetts 411 438 Land v. Shipp, 98 "Virginia 284 375 Land Company v. Saunders, 103 United States 316 87 Landell v. Hamilton, 175 Pennsylvania State 327 229 Lane v. Utz, 130 Indiana 235 143 Lang v. Dietz, 191 Illinois 161 65 Langdon v. Clayson, 75 Michigan 204 323 Lange v. Geiser, 138 California 682 394 Langley v. Chapin, 134 Massachusetts 82 171, 179, 182 Langmede v. Weaver, 65 Ohio State 17 251 Lanman v. Crooker, 97 Indiana 163 85 Lansing Iron & Engine Works v. Walker, 91 Michigan 409 118 lii TABLE OF CASES. {References are to Sections.] Lariverre v. Rains, 112 Michigan 276 258 Lathrop v. Commercial Bank, 8 Dana (Kentucky) 114 401 v. Eisner, 93 Michigan 599 125 v. Foster, 51 Maine 367 376 Latimer v. Latimer, 53 South Carolina 483 60 Lautenschlager's Estate, 80 Michigan 285 29 Lawe v. Hyde, 39 Wisconsin 345 133 Lawrence v. Heister, 3 Harris and Johnson (Maryland) 371 362 v. Hennessy, 165 Missouri 659 118 v. McArter, 10 Ohio State 37 314 Lawyer v. Slingerland, 11 Minnesota 447 398, 399 Leach v. Eains, 149 Indiana 152 369 Leacox v. Griffith, 76 Iowa 89 321 Learned v. Cutler, 18 Pickering (Massachusetts) 9 376 Leathers v. Gray, 101 North Carolina 162 147 Leavitt v. Lamprey, 13 Pickering (Massachusetts) 382 376 v. Leavitt, 179 Illinois 87 299 Leazure v. Hillegas, 7 Sergeant & Eawle (Pennsylvania) 313 401 Leddy v. Enos, 6 Washington 247 212 Lee v. Kellogg, 108 Michigan 535 426 v. Murphy, 119 California 364 281 Leftwich v. Eichmond, 100 Virginia 164 281 Leggate v. Clark, 111 Massachusetts 308 333 Lego v. Medley, 79 Wisconsin 211 7g Lehigh Coal Co. v. Early, 162 Pennsylvania State 338 179, 187 Lehndorf v. Cope, 122 Illinois 317 143, 207, 212 Lemay v. Furtado, 182 Massachusetts 280 , 89 Lembeck v. Nye, 47 Ohio State 336 1X6 LeMesnager v. Hamilton, 101 California 532 292 Lemon v. Graham, 131 Pennsylvania State, 447 70 Leonard v. Leonard, 14 Pickering (Massachusetts) 280 333 Leroy v. Jamison, 3 Sawyer (United States) 369 297 Leuders v. Thomas, 35 Florida 518 325 Lewis v. Baldwin, 11 Ohio 352 .' igg v. Watson, 98 Alabama 479 238 Lewis's Appeal, 85 Michigan 340. . . , 162 Ligare v. Semple, 32 Michigan 438 373 Lincoln v. Burrage, 177 Massachusetts 378 231 v. Davis, 53 Michigan 375 U3 v. Lincoln, 107 Massachusetts 590 137 Lindley v. Lindley, 92 Texas 446 272 Link v. Connell, 48 Nebraska 574 252 Linton v. National Life Insurance Co. (United States), 104 Federal 584 293 Lippincott v. Mitchell, 94 United States 767 353 Liter v. Fishback (Kentucky), 75 Southwestern 232 327 330 TABLE OF CASES. liii [.References are to Sections.] Little Sawmill Co. v. Federal R. Co., 194 Pennsylvania State 144. . 249 Littlefleld v. Mott, 14 Rhode Island 288 127 Live Stock Co. v. Springer, 35 Oregon 312 ; 185 United States 47 . . 103 Lloyd v. Quimby, 5 Ohio State 262 189 v. Taylor, 1 Dallas (United States) 17 302 Locke v. Hale, 165 Massachusetts 20 201 v. Homer, 131 Massachusetts 93 24 v. Redmond, 6 Kansas Appellate 76 398 Lockhart v. Vandyke, 97 Virginia 356 154 Lombard v. Chicago Sinai Congregation, 64 Illinois 477 241 Long v. Cockern, 128 Illinois 29 256, 274 v. Georgia Pacific R. Co., 91 Alabama 519 405 v. Moler, 5 Ohio State 271 204 Longworth v. Bank, 6 Ohio 536 50 Loomis v. Pingree, 43 Maine 299 34 Loree v. Abner, 6 United States Appeals 649 273 Lorimer v. Judge, 116 Michigan 682 428 Los Angeles Land Co. v. Southern Pacific R. Co., 136 California 36 224 Losey v. Stanley, 147 New York 560 330 Louisville &c. R. Co. v. Neafus, 93 Kentucky 53 61 Love v. Blauw, 61 Kansas 496 29 v. Breedlove, 75 Texas 649 431 Lovejoy v. Lovett, 124 Massachusetts 270 97 Low v. Anderson, 41 Iowa 476 394 Lowe v. Lowe, 83 Minnesota 206 363 v. Morris, 13 Georgia 147 244 Lowman v. Crawford, 99 Virginia688 184 Lowenthal v. Coonan, 135 California 381 385 Lowndes v. Huntington, 153 United States 1 112 Lozo v. Sutherland, 38 Michigan 168 387 Ludeke v. Sutherland, 87 Illinois 481 64 Luhrs v. Hancock, 181 United States 567 336 Lumb v. Jenkins, 100 Massachusetts 527 7 Lumpkins v. Johnson, 61 Arkansas 80 328 Lunsford v. LaMotte Co., 54 Missouri 426 248 Luttrell v. Boggs, 168 Illinois 361 375 Lyddal v. Weston, 2 Atkyns (England) 20 423 Lyle v. Richards, 9 Sergeant and Rawle (Pennsylvania) 322 142 ■ Lyman v. Conkey, 1 Metcalf (Massachusetts) 317 327 Lynch v. Doran, 95 Michigan 395 400 v. Moser, 72 Connecticut 714 364 Maatta v. Kippola, 102 Michiganll6 387 McAllister v. Purcell, 124 North Carolina 262 284 McAnaw v. Tiffin, 143 Missouri 667 179, 335, 337 liv TABLE OF CASES. [References are to Sections.'] McBreen v. McBreen, 154 Missouri 323 375 McBride v. Whitaker (Nebraska), 90 Northwestern 966 102 McOandless v. Engle, 51 Pennsylvania State 309 293 McCann v. McCann, 197 Pennsylvania State 452. . '. 146 McCardia v. Billings, 10 North Dakota 373 269 McCartney v. McCartney, 93 Texas 359 299 McCarty v. Eochel, 85 Iowa 427 44 McCleary v. Ellis, 54 Iowa 311 354 McCleery v. Wakefield, 76 Iowa 529 39 McClelland v. McClelland, 176 Illinois 83 184 McClun v. McClun, 176 Illinois 376 336, 339 McClure v. Gamble, 27 Pennsylvania State 288 193 v. Herring, 70 Missouri 18 239 McCord v. Massie, 155 Illinois 123 201 McCorry v. King's Heirs, 3 Humphreys (Tennessee) 267 169 McCoy v. Fahney, 182 Illinois 60 48 McCrae v. McCrae, 103 Tennessee 719 378 v. Purmort, 16 Wendall (New York) 460 61 McCreary v. McCorkle (Tennessee), 54 Southwestern 53 239, 377 McCullock v. Holmes, 111 Missouri 445 133 McDonald v. McElroy, 60 California 484 193 McDougal v. Musgrave, 46 West Virginia 509 126 McDowell v. Creditors, 103 California 264 384 McElroy v. Hiner, 133 Illinois 156 302 McElwain, Ex parte, 29 Illinois 442 348 McGahan v. Bank, 156 United States 218 45 McGee v. Allison, 94 Iowa 527. 303 McGinn v. Tobey, 62 Michigan 252 426 McGoon v. Scales, 9 Wallace (United States) 23 8 McGraw's Estate, In re, 111 New York 66 401, 405 McGrael v. Taylor, 167 United States 688 321 McGregor v. Comstock, 17 New York 162 16 McGrew v. Harmon, 164 Pennsylvania State 115 210 McGuire v. Caskey, 62 Ohio State 419 229 Mcllhinny v. Mcllhinny, 137 Indiana 411 143 7 147 Mackay v. Easton, 19 Wallace (United States) 619 236 McKenzie v. Donnell, 151 Missouri 431 346 v. Sifford, 52 South Carolina 104 366 v. Shows, 70 Mississippi 388 395 McKinley Creek Mining Co. v. Alaska Mining Co., 183 United States 563 409 McLaughlin v. Ham, 84 Georgia 786. 357 v. Randall, 66 Maine 226 246 McLean v. Webster, 45 Kansas 644 209 McLeod v. Tarrant, 39 South Carolina 271 133, 164 McMahan v. Bowe, 114 Massachusetts 140 416 McMannis v. Rice, 48 Iowa 361 325, 328 TABLE OF CASES. ly [References are to Sections.] McManus v. Carmichael, 3 Iowa 1 '. 108, 109 v. Oommow, 10 North Dakota 340 250 McMichael v. McMichael, 51 South Carolina 555 135 McMinn v. O'Connor, 27 California 238 280 McNeeley v. South Pennsylvania Oil Co., 52 West Virginia 616 165 MoPike v. Heaton, 131 California 109 218 MeQuade v. Whaley, 31 California 526 397 McRoberts v. MoArthur, 62 Minnesota 310 77 Mahoning Co. v. Young, 16 United States Appeals 253 179, 180 Main v. Main (Arizona), 60 Pacific 888 167 Mallett v. Simpson, 94 North Carolina 37 401, 405 Manchester v. Hough, 5 Mason (United States) 67 362 Mandlebaum v. McDonnell, 29 Michigan 78 186 Mann v. Keene Co. (United States), 86 Federal 51 338 Manning v. Perkins, 86 Maine 419 246 Mansfield v. Gordon, 144 Massachusetts 168 319 Mansur v. Blake, 62 Maine 38 117 Manuel v. Wulfi, 152 United States 505 408 Manufacturing Co. v. Railroad, 121 North Carolina 514 63 Maratta v. Anderson, 172 Illinois 377 299 Marden v. Dorthy, 160 New York 39 293, 426 Markoe v. "Wakeman, 107 Illinois 251 157 Marler v. Handy, 88 'Texas 421 392, 394 Marston v. Brashaw, 18 Michigan 81 291 v. Brittenham, 76 Illinois 611 259 v. Hobbs, 2 Massachusetts 433 198 Martin v. Almond, 25 Missouri 313 239 v. Baker, 5 Blackford (Indiana) 232 216, 221 v. Cook, 102 Michigan 267 127 v. Dwelly, 6 Wendall (New York) 9 18, 361 v. Flaharty, 13 Montana 96 307 v. Gilson, 37 Wisconsin 360 124 v. Harrington, 73 Vermont 193 392, 394, 397 v. Jones, 62 Ohio State 519 132 v. Lloyd, 94 California 195 86 v. Martin, 170 Illinois 639 17 v. Martin, 1 Maine 394 368 v. Nixon, 92 Missouri 26 234 v. Smith, 5 Binney (Pennsylvania) 16 151 Marvel v. Phillips, 162 Massachusetts 401 193 Marvin v. Anderson, 111 Wisconsin 387 249 Marx v. Threet, 131 Alabama 340 384, 399 Mason v. Brock, 12 Illinois 273 292 v. Mason, 140 Massachusetts 63 374 Massie v. Hiatt, 82 Kentucky 314 193 Masterson v. Munro, 105 California 431 93, 95 Masury v. Southworth, 9 Ohio State 340 224 lvi TABLE OP CASES. [References are to Sections.] Matney v. Linn, 59 Kansas 613 398 Matteson v. Vaughn, 38 Michigan 373 217 Mattson v. Mattson, 29 Washington 417 167 Maverick v. Burney, 88 Texas 560 157 Maxwell v. East River Bank, 3 Bosworth (New York) 124 227 v. Roach, 106 Louisiana 123 388 May v. Sturdivant, 75 Iowa 116 431 Maynard v. Davis, 127 Michigan 571 37f > Mayor v. Mabie, 13 New York 151 211 Mays v. Pryce, 95 Missouri 603 293 Mead v. Fitzpatrick, 74 Connecticut 521 417 v. Parker, 115 Massachusetts 413 75 Meazles v. Martin, 93 Kentucky 50 236 Mecklem v. Blake, 22 Wisconsin 495 , 216 Medara v. Dubois, 187 Pennsylvania State 431 87 Mee v. Benedict, 98 Michigan 260 157 Meech v. Wilder (Michigan), 89 Northwestern 556 307 Meeks v. Stillwell, 64 Ohio State 541 299 Meier v. Portland Cable Co., 16 Oregon 500 94 Meigs v. Dexter, 172 Massachusetts 217 301, 340 Melley v. Casey, 99 Massachusetts 241 364 Memmert v. McKeen, 112 Pennsylvania State 315 203 Memphis &c. R. Co. v. Grayson, 88 Alabama 572 407 Mendenhall v. Elwert, 36 Oregon 375 67 v. Parish, 53 North Carolina 105 59 Mercantile Trust Co. v. South Park Co., 94 Kentucky 271 198 Merrick v. Merrick, 37 Ohio State 126 85 Merritt v. Yates, 71 Illinois 636 271 Merwin v. Morris, 71 Connecticut 555 420 Meservey v. Snell, 94 Iowa 223 212 Messer v. Oestreich, 52 Wisconsin 693 20t> Methodist Church v. Hoboken, 33 New Jersey Law 13 407 v. Remington, 1 Watts (Pennsylvania) 218 401 Mettler v. Miller, 129 Illinois 630 365, 367 Meyer v. Kinzer, 12 California 247 167 Michener v. Cavender, 38 Pennsylvania State 334 293 Michigan Trust Co. v. Chapin, 106 Michigan 384 387 Mickey v. Barton, 194 Illinois 446 39 Middlebrook v. Barefoot, 121 Alabama 642 238 Middlecoff v. Hemstreet, 135 California 173 289 Middlesex R. Co. v. Boston &c. R. Co., 115 Massachusetts 347 407 Middleton v. Findla, 25 California 76 237 v. Pritchard, 4 Illinois 510 101 Midgett v. Brooks, 12 Iredell Law (North Carolina) 145 206 Midgley v. Walker, 101 Michigan 583 150 Miles v. Fisher, 10 Ohio 1 151 Mill River Manufacturing Co. v. Smith, 34 Connecticut 462 117 TABLE OP CASES. lvii [References are to Sections.'] Miller, Ex parte, 49 Arkansas 18 236 v. Miller, 140 Indiana 174 194, 195 v. Miller, 89 North Carolina 402 50 v. Parsons, 9 Johnson (New York) 336 205 v. Ruble, 107 Pennsylvania State 395 234 v. Smith, 26 Minnesota 248 315 Millett v. Mullen, 95 Maine 400 77 Mills v. Seattle & Montana E., 10 Washington 520 177 Milner v. Nelson, 86 Iowa 452 267 Miner v. Wilson, 107 Michigan 57 430 Mineral Co. v. James, 97 Virginia 403 28 Minneapolis Stockyards Co. v. Halonen, 56 Minnesota 469 67 Minnesota Stoneware Co. v. McCrossen, 110 Wisconsin 316 383 Miskey's Appeal, 107 Pennsylvania State 611 333 Mitchell v. Kepler, 75 Iowa 207 216 v. Leavitt, 30 Connecticut 587 186 v. Smale, 140 United States 406 102, 114 Mitchell's Lessee v. Ryan, 3 Ohio State 377 300 Mittel v. Karl, 133 Illinois 65 65 Moffltt v. Lytle, 165 Pennsylvania State 173 121 v. Maness, 102 North Carolina 457 62 Monroe v. Arthur, 126 Alabama 362 285 v. Bowles, 187 Illinois 346 308 Montello, The, 20 Wallace (United States) 430 110 Montgomery v. Sturdivant, 41 California 290 130 Moore v. Baker, 92 Kentucky 518 419 v. Cornell, 68 Pennsylvania State 320 359 v. Farmer, 156 Missouri 33 108 v. Graves, 97 Iowa 4 194 v. Harmon, 142 Indiana 555 92 v. Page, 111 United States 117 370 Moranv. Clark, 30 West Virginia 358 388 v. Lezotte, 54 Michigan 83 84 v. Moran, 106 Michigan 8 335, 337, 346 Moreau v. Detchemendy, 18 Missouri 522 167 Morehead v. Hall, 126 North Carolina 213 79 Moreland v. Strong, 115 Michigan 211 157 Morgan v. Snodgrass, 49 West Virginia 387 363, 364 Morley Bros. v. Loan Co., 120 Michigan 171 394 Mormon Church v. United States, 136 United States 1 403 Morris v. Caudle, 178 Illinois 9 43 v. Hastings, 70 Texas 26 167 v. Jansen, 99 Michigan 436 188 v. Linton, 61 Nebraska 537 377 v. McCarty, 158 Massachusetts 11 152 Morrow v. Cole, 58 New Jersey Equity 203 286 lviii TABLE OF CASES. [References are to Sections.'] Mott v. Danville Seminary, 129 Illinois 403 403 v. Oppenheimer, 135 New York 312 232 v. Smith, 16 California 533 377 Mueller v. Conrad, 178 Illinois 276 - 263 Muldoon v. Deline, 135 New York 150 85 Mullen v. Penobscot Co., 90 Maine 55 112 Muller v. Landa, 31 Texas 265 98 Mullins v. Butte Hardware Co., 25 Montana 525 430 Munn v. Worrall, 53 New York 44 121 Murphy v. Copeland, 51 Iowa 515 100 v. Gabbert, 166 Missouri 596 29 v. Lockwood, 21 Illinois 611 190 v. Eyan, 2 Irish Common Law 143 (Ireland) 105, 107 Murray v. Hoyle, 92 Alabama 559 420 v. Klinzing, 64 Connecticut 78 56, 95 v. Quigley (Iowa) , 92 Northwestern 869 158 v. Tulare Co., 120 Calilorna 311 281 Muskingum Co. v. Ward, 13 Ohio 120 43 Musson v. Trigg, 51 Mississippi 172 357 Mutual Life Insurance Co. v. Corey, 135 New York 326 293 v. Shipman, 119 New York 324 374 Muzzarelli v. Hulsbizer, 163 Pennsylvania State 643 228 Myers v. Ford, 22 Wisconsin 139 380 v. Knabe, 51 Kansas 720 346 v. McGavock, 39 Nebraska 843 324, 326 Mygatt v. Coe, 152 New York 457 363, 194 v. Coe, 124 New York 212 217 v. Coe, 147 New York 456 214, 224 National Bank v. Matthews, 98 United States 621 405 v. Segar, 39 New Jersey Law 173 226 v. Wheelock, 52 Ohio State 534 312 National Building and Loan Association v. Cunningham, 130 Ala- bama 539 285 Naylor v. Minock, 96 Michigan 182 166 Neal v. Nelson, 117 North Carolina 393 43 v. Neales, 9 Wallace (United States) 1 17 Neely v. Hoskins, 84 Maine 386 181 Nevels v. Kentucky Lumber Co., 108 Kentucky 550 157 New England Co. v. Spitler, 54 Kansas 560 332, 342 Newberry v. Newberry, 114 Iowa 704 371 ? 375 Newman v. Tymeson, 13 Wisconsin 172 97 New Orleans Pacific B. Co. v. Parker, 143 United States 42 118 Newpoint Lodge v. Newpoint, 138 Indiana 141 181 Newton v. Emerson, 66 Texas 142 235 v. McKay, 29 Michigan 1 38 Nicholl's Appeal, 190 Pennsylvania State 308 302 TABLE OF CASES. H x [References are to Sections.] Nichols v. Boston, 98 Massachusetts 39 104 v. Furniture Co., 100 Michigan 230 93 i00 Nicoll v. New York and Erie E. Co., 12 New York 121 172, 402 Nicrosi v. Phillipi, 91 Alabama 299 412 Nightingale v. Hidden, 7 Rhode Island 115 134 Niles v. Cedar Point Club, 175 United States 300, 85 Federal 45 103 Noble v. Googins, 99 Massachusetts 231 92 Ncbleboro v. Clark, 68 Maine 87 239 Noblitt v. Beebe, 23 Oregon 4 164 Norcross v. Griffiths, 65 Wisconsin 599 98, 99 v. James, 140 Massachusetts 188 214, 230 Norfolk v. Cooke, 27 Grattan (Virginia) 430 108 Norris v. Dains, 52 Ohio State 215 46, 240 v. Hall, 124 Michigan 170 44, 153 Northern Lake Ice Co. v. Orr, 102 Kentucky 586 43 Northumberland v. Cobleigh, 59 New Hampshire 250 248 Norwalk Heating &c. Co. v. Vernam, 75 Connecticut 662 420 Noyes v. Board, 104 Iowa 174 1] 7 v. Collins, 92 Iowa 566 117 v. Kramer, 54 Iowa 22 373 Nyce v. Obertz, 17 Ohio 71 218 Nye v. Hoyle, 120 New York 195 224 v. Lowry, 82 Indiana 316 238 v. Taunton E. Co., 113 Massachusetts 277 373 Oakes v. DeLancey, 133 New York 227 92, 102 Oakland v. Hewitt, 105 Iowa 663 259 v. Oakland Co., 118 California 160 112 O'Brien v. "Wagner, 94 Missouri 93 182 O'Conner v. O'Conner, 100 Iowa 476 302, 304 Odom v. Riddick, 104 North Carolina 515 347 O'Donnell v. Kelliher, 62 Illinois Appellate 641 238 Oelbermann v. Ide, 93 Wisconsin 669 276 Ogburn's Estate, 105 California 95 384 Ogden v. Ogden, 60 Arkansas 70 370 Ogden Building Association v. Mensch, 196 Illinois 554 285 Olcott v. Gabert, 86 Texas 121 181 Olin v. Denver and Eio Grande E. Co., 25 Colorado 177 89 Oliver v. Dickinson, 100 Massachusetts 114 118 v. Olmstead, 112 Michigan 483 '. ... 107 v. Piatt, 3 Howard (United States) 333 188 Olson v. Huntamer, 6 South Dakota 364 116 v. Seattle (Washington), 71 Pacific 201 96 v. Thorndike, 76 Minnesota 399 102 Omaha Eeal Estate Co. v. Kragscow, 47 Nebraska 592 276 O'Neill v. Wilcox, 115 Iowa 15 430 Ordway v. Downey, 18 Washington 412 65 lx TABLE OF CASES. [References are to Sections.] Ormsby v. Budd, 72 Iowa 80 293 Oregon Mortgage Co. v. Carstens, 16 Washington 165 410 Oregon R. Co. v. Oregonian E. Co., 130 United States 1 407 Osborne v. Cooper, 113 Alabama 405 371 v. Eslinger, 155 Indiana 351 30s v. Kissler, 35 Ohio State 99 247 Ottumwa Woolen Mill Co. v. Hawley, 44 Iowa 57 118 Outland v. Bowen, 115 Indiana 150 175 Overacre v. Blake, 82 California 77 272 Overfield v. Christie, 7 Sergeant and Bawle (Pennsylvania) 173.. 421 Overland Machinery Co. v. Alpenfels (Colorado), 69 Pacific 574 89 Ozark Land Co. v. Franks, 156 Missouri 673 74 Pacific R. Co. v. Seely, 45 Missouri 212 405 Packer v. Bird, 71 California 134; 137 United States 661 101, 108 Paddock v. Pulsifer, 43 Kansas 718 341 Page v. Heineberg, 40 Vermont 81 401 Paine v. Woods, 108 Massachusetts 160 98 Paine's Executor v. Consumers' Storage Co. (United States), 71 Federal 627 89 Painter v. Water Co., 91 California 74 126 Palmer v. Farrell, 129 Pennsylvania State, 162 100, 108 v. Palmer, 150 New York 139 157 v. Ryan, 63 Vermont 227 179 Paolillo v. Taber, 56 New York Appellate Division 241 272 Papst v. Hamilton, 133 California 631 179, 181 Parent v. Callerand, 64 Illinois 97 359 Parish v. Whitney, 3 Gray (Massachusetts) 516 225 Park v. Wilkinson, 21 Utah 279 87 Parker v. Marco (United States), 76 Federal 510 336 Parks v. Hazlerigg, 7 Blackford (Indiana) 536 233 Parmelee v. Simpson, 5 Wallace (United States), 81 302 Parrish v. Hawes, 95 Texas 185 388 Parrott v. Avery, 159 Massachusetts 594 306 Parsons v. Boyd, 20 Alabama 112 153 Patterson v. Galliher, 122 North Carolina 511 247 v. Nixon, 79 Indiana 251 418 v. Patterson, 81 Iowa 626 184 Patton v. Nixon, 33 Oregon 159 184 Pawling v. United States, 4 Cranch 219 309 Payette v. Ferrier, 20 Washington 479 184 Pearce v. Schotcher, 9 Queen's Bench Division 162 105, 107 Pearl v. Lockwood, 123 Michigan 142 170 Pearsoll v. Chapin, 44 Pennsylvania State 9 312 Pearson v. Adams, 129 Alabama 157 418 v. Allen, 151 Massachusetts 79 94 v. Cox, 71 Texas 246 346 TABLE OF CASES. lxi [References are to Sections.] Pearson v. Davis, 41 Nebraska 608 : 251 Pease v. Bridge, 49 Connecticut 58 37 v. Inhabitants of "Whitman, 182 Massachusetts 363 165 v. Lawson, 33 Missouri 35 246 Peck v. Denniston, 121 Massachusetts 17 90 v. Houghtaling, 35 Michigan 127 206 v. Sims, 120 Indiana 345 418 Pemberton Building Association v. Adams, 53 New Jersey Equity 258 320 Penfold v. Warner, 96 Michigan 179 374, 377 Penn v. Garvin, 56 Arkansas 511 288 Penny v. British &c. Mortgage Co., 132 Alabama 357 399 People v. Ballard, 134 New York 269 406 v. Chase, 165 Illinois 527 433, 437 v. Miller, 79 Michigan 93 188 v. O'Brien, 111 New York 1 403 v. Pullman's Palace Car Co., 175 Illinois 125 404 v. Silberwood, 110 Michigan 103 112 v. Simon, 176 Illinois 165 436, 442 v. Stockton Savings and Loan Society, 133 California 611 405 Perkins v. McAulifie, 105 Wisconsin 582 65 Perrin v. Carey, 24 Howard (United States) 465 401 Peter v. Byrne (Missouri), 75 Southwestern 433 364 Peters v. Bowman, 98 United States 56 188 v. Cartier, 80 Michigan 124 188 Pettigrew v. Dobbelaar, 63 California 396 81 Peuker v. Canter, 62 Kansas 363 102 Pewaukee v. Savoy, 103 Wisconsin 271 117 Phillips v. Ferguson, 85 Virginia 509 185 v. Moore, 100 United States 208 , 409 v. Providence Steam Engine Co., 21 Rhode Island 302 406 v. Phillips, 30 Colorado 516 373 v. Swank, 120 Pennsylvania State 76 28, 137 Philpot v. Bingham, 55 Alabama 435 314 Pickens v. Eymer, 90 North Carolina 283 248 Pierce v. Indseth, 106 United States 546 246 Pierson v. Lane, 60 Iowa 60 143 Pike v. Clark, 40 New Hampshire 9 363 v. Pike, 121 Michigan 170 17 Pilcher v. Atchison &c. B. Co. , 38 Kansas 516 395 Pillow v. Wade, 31 Arkansas 678 375 Pimental v. San Francisco, 21 California 351 241 Pinkham v. Pinkham, 55 Nebraska 729 29 v. Pinkham, 95 Maine 71 375 Pipkin v. Williams, 57 Arkansas 242 398 Pitts v. Seavey, 88 Iowa 336 292 Pittsburgh Iron Co. v. Lake Superior Iron Co., 118 Michigan 109. . 116 lxii TABLE OF CASES. [References are to Sections.] Plaster v. Eigney (United States), 97 Federal 12 336 Plympton v. Hall, 55 Minnesota 22 344 Plummer v. Gould, 92 Michigan 1 86 Poe v. Dixon, 60 Ohio State 124 24 Point Street Iron Works v. Simmons, 11 Ehode Island 496 188 Poley v. Laeert, 35 Oregon 166 210 Polk v. Faris, 9 Yerger (Tennessee) 209 147 Pollock v. Speidel, 27 Ohio State 86 143 Poison v. Stewart, 167 Massachusetts 211 10 Porcher v. Daniel, 12 Richardson Equity 349 355, 356 Porter v. Bradley, 7 Ehode Island 538 202 v. Cook, 114 Wisconsin 60 188 v. Read, 19 Maine 363 70 v. Woodhouse, 59 Connecticut 568 308 Post v. Bank, 138 Illinois 559 7 v. Campau, 42 Michigan 90 199, 215, 218 v. Eailroad Co., 50 Hun (New York) 301 ' 225 v. Weil, 115 New York 361 179, 228 Potter v. Adams, 125 Missouri 118 311 v. Couch, 141 United States 296 354 v. Potter (Oregon), 72 Pacific 702 371, 375 Pounds v. Clarke, 70 Mississippi 263 390 Powell v. Lantzy, 173 Pennsylvania State 543 148 v. Monson, 3 Mason (United States) 355 201 v. Patison, 100 California 236 397 Powers v. Bank of Oro ville, 136 California 486 87 Pratt v. Morrow, 45 Missouri 404 245 v. Pratt, 161 Massachusetts 276 378 Pray v. Stebbins, 141 Massachusetts 219 166 Prentice v. Eailroad Co., 154 United States 163 86 v. Steams, 113 United States 435 85 Prescott v. Edwards, 117 California 298 94 v. Trueman, 4 Massachusetts 627 200 Preston v. Bosworth, 153 Indiana 458 178 Prewit v. Wilson, 103 United States 22 r 55 Price v. Hall, 140 Indiana 314 158 v. Osborn, 34 Wisconsin 34 394 v. Planters' Bank, 92 Virginia 468 355 Pritchett v. Davis, 101 Georgia 236 392, 395 Priewe v. Wisconsin Co., 93 Wisconsin 534 117 Prouty v. Tilden, 164 Illinois 163 95 Provident Co. v. Fiss, 147 Pennsylvania State 232 219 Prutsman v. Baker, 30 Wisconsin 644 309 Pry v. Pry, 109 Illinois 466 80, 426 Pryne v. Pryne, 116 Iowa 82 396 Purczell v. Smidt, 21 Iowa 540 410 TABLE OF CASES. lxiii [References are to Sections.} Purdy v. Coar, 109 New York 448 33 v. Hayt, 92 New York 446 152 Purinton v. Railroad Co., 46 Illinois 297 63 Pynchon v. Stearns, 11 Metcalf (Massachusetts) 312 129 Quatman v. McCray, 128 California 285 182 Quehl v. Peterson, 47 Minnesota 13 382 Quick v. Milligan, 108 Indiana 419 310 Quicksall v. Philadelphia, 177 Pennsylvania State 301 94 Quimby v. Dill, 40 Maine 528 169 Radford v. Carwile, 13 West Virginia572 355 Railroad v Bank, 178 Illinois 506 63 v. Piatt, 53 Ohio State 254 98, 99, 106, 116 v. Schurmeir, 7 Wallace (United States)272 102 Rand Lumber Co. v. Atkins, 116 Iowa 242 383 Randall v. Ghent, 19 Indiana 271 52 v. Marble, 69 Maine 310 185 Ranken v. Donovan, 46 New York Appellate Division 225 307 Rankin v. Miller, 43 Iowa 11 326 Rankin's Heirs v. Rankin's Executors, 6 T. B. Monroe (Ken- tucky) 531 414 Rannells v. Gerner, 80 Missouri 474 332, 333 Ransom v. Ransom, 30 Michigan 328 358, 359, 368, 371 Rawles v. Reichenbach (Nebraska), 90 Northwestern 943 387 Rawson v. School District, 7 Allen (Massachusetts) 129 180, 181 Ray v. Long (North Carolina), 44 Southeastern 652 164 Raymond v. Raymond, 10 Cushing (Massachusetts) 140 198 Read v. Toledo Loan Co., 68 Ohio State 280 286 Ready v. Pinkham, 181 Massachusetts 351 321 Rebhan v. Mueller, 114 Illinois 343 428 Reck v. Clapp, 98 Pennsylvania State 581 426 Redemptorist Fathers v. Lawler, 205 Pennsylvania State 24 154 Rector v. Hartford Deposit Co., 190 Illinois 380 405 v. Rotton, 3 Nebraska 171 388 Redmond v. Chandley, 119 North Carolina 575 67 Reed v. Carlson (Minnesota), 95 Northwestern 303 438 v. Douthit, 62 Illinois 348 298 v. Lane, 122 Missouri 311 141 v. Smith, 125 California 491 298 Reg v. Morton, 28 Law Times Reports (New Series) 452. 19 Regents of University v. Detroit Young Men's Society, 12 Michigan 138 404 Reid's Administrator v. Benge (Kentucky), 66 Southwestern 997. . 428 Reiff v. Horst, 55 Maryland 42 374 Reilly v. Otto, 108 Michigan 330 229 Remington Co. v. O'Dougherty, 81 New York 474 284 lxiv TABLE OF CASES. [References are to Sections.] Rendleman's Case, 156 Illinois 568 54 Revell v. People, 177 Illinois 468 I 12 Reyes v. Middleton, 36 Florida 99 418 Reynolds v. Shaver, 59 Arkansas 299 207 Reysen v. Roate, 92 Wisconsin 543 107 Rhea v. Bagley, 63 Arkansas 374 301 v. Rhenner, 1 Peters (United States) 105 363 Rhoades v. Davis, 51 Michigan 306 375 v. Fuller, 139 Missouri 179 335 Richard v. Bent, 59 Illinois 38 218 v. East Tennessee &c. R. Co., 106 Georgia 614 330 Richards v. McClelland, 29 Pennsylvania State 385 363 Richardson v. Bates, 8 Ohio State 257 251 v. Clements, 89 Pennsylvania State 503 321 v. De Giverville, 107 Missouri 422 353 v. International Pottery Co., 63 New Jersey Law 248 118 v. Pate, 93 Indiana 423 316 v. Richardson, 80 Maine 585 143 v. Stodder, 100 Massachusetts 528 357 v. Tobey, 121 Massachusetts 457 231 v. Woodstock Iron Co., 90 Alabama 266 399 Richey v. Sinclair, 167 Illinois 184 78 Rico v. Brandenstein, 98 California 465 371 Ridden v. Baker, 86 Indiana 191 333 Ridgeway v. Herbert, 150 Missouri 606 321 Riggin v. Love, 72 Illinois 553 130 Riggles v. Erney, 154 United States 244 17 Riley v. Burroughs, 41 Nebraska 296 213 v. Carter, 76 Maryland 581 335, 336, 345 v. Wilson, 86 Texas 240 371 Rinard v. West, 92 Indiana 359 193 Rines v. Mansfield, 96 Missouri 394 131 Ring v. Lawless, 190 Illinois 520 338 Ritchie v. Railroad, 55 Kansas 36 177 Robeno v. Marlatt, 136 Pennsylvania State 35 428 Roberts v. Decker (Wisconsin), 97 Northwestern 519 430 v. Morgan, 30 Vermont 319 158 Robertson v. Pickrell, 109 United States 608 6 Robbins, In re, 34 Minnesota 99 91 v. Rascoe, 120 North Carolina 79 301, 304 v. Webb, 68 Alabama 393 230 Robinson v. Bierce, 102 Tennessee 428 210 v. Coulter, 90 Tennessee 705 313 v. Thrailkill, 110 Indiana 117 430 Robinson's Appeal, 88 Maine 17 165 Rockford R. Co. v. Beckemeier, 72 Illinois 267 24 Rocks v. Cornell, 21 Rhode Island 532 314 TABLE OF CASES. lxv [References are to Sections.] Rockwell v. Swift, 59 Connecticut 289 154 Rogers v. Day, 115 Michigan 664 392 v. McFarland, 89 Iowa 286 390 v. Pell, 154 New York 518 254 Rohrbaugh v. Hamblin, 57 Kansas 393 193 Rollet v. Heiman, 120 Indiana 511 345 Ronan v. Bluhm, 173 Illinois 277 431 Rondot v. Rogers Township (United States), 99 Federal 202 243 Rood v. "Wallace, 109 Iowa 5 117 Root v. Brotherson, 4 McLean (United States) 230 9 Rose v. Taunton, 119 Massachusetts 99 67 Ross v. Faust, 54 Indiana 471 110 Rossmiller v. State, 114 Wisconsin 169 112, 117 Rothschild v. Dougher, 85 Texas 332 282 Roulston v. Hall, 66 Arkansas 305 164 Roussain v. Norton, 53 Minnesota 560 289 Row v. Row, 53 Ohio State 249 344 Rowe v. Hamilton, 3 Maine 63 375 Rowland v. Miller, 139 New York 93 229 v. Rowland, 93 North Carolina 214 154 • v. Warren, 10 Oregon 129 143 Rowley v. Berrian, 12 Illinois 198 291 Rozier v. Graham, 146 Missouri 352 143 Ruch v. Rock Island, 97 United States 693 171 Ruckman v. Ruckman, 32 New Jersey Equity 259 298 Ruiz v. Dow, 113 California 490 307 Runnells v. Webber, 59 Maine 488 201 Rupert v. Penner, 35 Nebraska 587 97, 130 Rushton v. Davis, 127 Alabama 279 364 Russell v. Doyle, 84 Kentucky 386 416 v. Russell, 122 Missouri 235 162 Rutherford v. Tracy, 48 Missouri 325 86 Ryan v. Growney, 125 Missouri 474 320 Ryder v. Flanders, 30 Michigan 336 328 Ryland v. Banks, 151 Missouri 1 352, 356 Sacramento v. Clunie, 120 California 29 94 Sage v. Mayor of New York, 154 New York 61 104 St. Louis &c. R. Co. v. Ramsey, 53 Arkansas 314 108, 109 St. Paul &c. R. Co. v. St. Paul &c. Pacific R. Co., 26 Minnesota 31. 108 Sala, Succession of, 50 Louisiana Annual 1009 4 Salem National Bank v. "White, 159 Illinois 136 239, 428 Salisbury v. Clarke, 61 Vermont 453 66 Sallee v. Chandler, 26 Missouri 124 356 Salmon Manufacturing Co. v. Goddard, 14 Howard (United States) 446 237 v — Beews. Con. Ixvi TABLE OF CASES. [References are to Sections.] Samme's Case, 13 Coke 54 I 33 Sammon v. Wood, 107 Michigan 506 396 Sanborn v. Flagler, 9 Allen (Massachusetts) 474 237 Sanders v. Godding, 45 Iowa 463 92 Sands v. Lynham, 27 Grattan (Virginia) 291 410 Sandwich Manufacturing Co. v. Zellmer, 48 Minnesota 408 208 Sanford v. Kane, 133 Illinois 199 194 San Francisco v. Grote, 120 California 59 395 v. Itsell, 80 California 57 407 Sanger v. Merritt, 13 New York 614 161 v. Warren, 91 Texas 472 243 Sarazin v. Railroad, 153 Missouri 479 269 Sartor v. Bolinger, 59 Texas 411 280 Sassenberg v. Huseman, 182 Illinois 341 259 Saunders v. Blythe, 112 Missouri 1 54 v. Hackney, 78 Tennessee 194 235 v. Saunders, 115 Iowa 275 29 Savage v. Savage, 80 Maine 472 371 Savings Bank v. Kennedy, 58 Iowa 454 381 Savings Society v. Deering, 66 California 281 51 Sayers v. Collyer, 28 Chancery Division 103 229 Sayles v. Christie, 187 Illinois 420 317, 319 Scanlan v. Grimmer, 71 Minnesota 351 . . . ' 43 v. Wright, 13 Pickering (Massachusetts) 523 323, 410 Schafer v. Hauser, 111 Michigan 622 17 Schaps v. Lehner, 54 Minnesota 208 346 Scharpf v. Schmidt, 172 Illinois 255 4 Scheifert v. Briegel (Minnesota), 96 Northwestern 44 lift Schermerhorn v. Mahaffie, 34 Kansas 108 394 Schley v. Pullman Car Co., 120 United States 575 272, 364 Schlosser v. Hemphill, 118 Iowa 452 103 Schmisseur v. Pennsylvania, 47 Illinois Appellate 278 203 Schofield v. Homestead Co., 32 Iowa 317 216 v. Jennings, 68 Indiana 233 42 Scrimper v. Railroad, 115 Iowa 35 62 Schumacher v. Truman, 134 California 930 430 Schurtz v. Colvin, 55 Ohio State 274 310 Schweiss v. Woodruff, 73 Michigan 473 74 Schwindt v. Schwindt, 61 Kansas 377 17 Scofield v. Hopkins, 61 Wisconsin 370 382 Scott v. Bassett, 174 Illinois 390 259 v. Kirkendall, 88 Illinois 465 206 v. Trustees, 50 Michigan 528 241 Scott's Estate, 147 Pennsylvania State 102 : 375 Scovill v. McMahon, 62 Connecticut 378 179, 187 Scranton v. Wheeler, 113 Michigan 565 106 v. Wheeler, 179 United States 141, 57 Federal 803 106 Scriver v. Smith, 100 New York 471 209 TABLE OF CASES. lxvii [References are to Sections.] Scrughain v. Wood, 15 Wendell (New York) 545 298 Searcy v. Hunter, 81 Texas 644 318, 319 Sears v. Ackerman, 138 California 583 124 v. Broady (Nebraska), 92 Northwestern 214 218 Sebald v. Mulholland, 155 New York 455 232 Security Bank v. Holmes, 65 Minnesota 531 189, 218 v. Holmes, 68 Minnesota 538 194 Security Co. v. Payne, 107 Alabama 578 289 Security Land &c. Co. v. Burns, 87 Minnesota 97 103 Security Loan Co. v. Kauffman, 108 California 214 390 Security Savings Bank v. Smith, 38 Oregon 72 377 Sedgwick v. Hollenback, 7 Johnson (New York) 376 210 See v. Deer, 57 Michigan 369 43 Seeley v. Price, 14 Michigan 541 341 Seiffert &c. Lumber Co. v. Hartwell, 94 Iowa 576 398 Sell v. Miller, 11 Ohio State 331 7 Sellers v. Sellers, 98 North Carolina 13 236 Sengfelder v. Hill, 21 Washington 371 74 Sergeant v. Steinberger, 2 Ohio 305 151 Series v. Series, 35 Oregon 289 259 Sewell v. Sewell, 92 Kentucky 500 320, 321 Sever v. Lyons, 170 Illinois 395 384 Seymour v. Bowles, 172 Illinois 521 40 Shaft v. Carey, 107 Wisconsin 273 211 Shanks v. Seamonds, 24 Iowa 131 324 Shannon v. Timm, 22 Colorado 167 223 Shapley v. Diehl, 203 Pennsylvania State 566 146 Sharp v. Bailey, 14 Iowa 387 398 Shattuck v. Lamb, 65 New York 499 210 Shaughnessy v. Lewis, 130 Massachusetts 355 35 Shaw v. Kirby, 93 Wisconsin 379 382 Shea v. Murphy, 164 Illinois 614 307, 340 Sheehan v. Davis, 17 Ohio State 571 249 Sheeley v. Neidhammer, 182 Pennsylvania State 163 147 Shelby v. Chicago &c. E. Co., 143 Illinois 385 405 Shelden v. Freeman, 116 Michigan 646 259 Sheldon v. Carter, 90 Alabama 380 37 Shell v. Matteson, 81 Minnesota 38 116 Shelley's Case, 1 Coke 93 145 Shelton v. Aultman &c. Co., 82 Alabama 315 398 Sherwood v. Commissioner of Land Office, 113 Michigan 227 112 v. Landon, 57 Michigan 219 217 Sherrid v. Southwick, 43 Michigan 515 390 Shields v. Bush, 189 Illinois 534 400 Shipp v. McKee, 80 Mississippi 741 316 Shipley v. Bunn, 125 Missouri 445 315 Shively v. Bowlby , 152 United States 1 101, 102, 104, 112 lxviii TABLE OF CASES. [References are to Sections.] Shoemaker v. Collins, 49 Michigan 595 394 Short v. Conlee, 28 Illinois 219 269 Shrock v. Crowl, 83 Indiana 243 313 Shropshire v. Behrens, 77 Texas 275 249 Shroyer v. Pittenger (Indiana), 67 Northeastern 475 321, 322 Sicard v. Davis, 6 Peters (United States) 124 234 Silcock v. Baker, 25 Texas Civil Appeals 508 284 Silliman v. Cummins, 13 Ohio 116 365 Sillyman v. King, 36 Iowa 207 67 Silverman v. Kristufek, 162 Illinois 222 45 Simmons v. Kiehardson, 107 Alabama 697 : 357 Simons v. Bollinger, 154 Indiana 83 152, 164 Simonton v. White, 93 Texas 50 146 Simpson v. Commonwealth, 89 Kentucky 412 238 Simpson v. Mikkelsen, 196 Illinois 575 227 Simpson v. Railroad, 176 Massachusetts 359 119, 125 Sims v. Everhardt, 102 United States 300 315, 316, 320 v. Rickets, 35 Indiana 181 370 Simson v. Bank, 43 Hun (New York) 156 310 Singer Manufacturing Co. v. Lamb, 81 Missouri 221 313, 322 Sioux City & St. Paul R. Co. v. Singer, 49 Minnesota 301 186 Sizor v. Logansport, 151 Indiana 626 102 Slater v. Granger, 165 Illinois 329 152 v. Gunn, 170 Massachusetts 509 Ill v. Nason, 15 Pickering (Massachusetts) 345 410 Sleeper v. Laconia, 60 New Hampshire 201 100 Slegel v. Lauer, 148 Pennsylvania State 236 174 Slingerland v. International Contracting Co., 169 New York 60 106 Sloan v. Biemiller, 34 Ohio State 492 1] 2 Slone v. Grider (Kentucky), 44 Southwestern 384 161 Smith v. Barrie, 56 Michigan 314 186 v. Becker, 62 Kansas 541 414 v. Clark, 100 Iowa 605 285 v. Cuddy, 96 Michigan 562 341 v. Furbish, 68 New Hampshire 123 125 v. Howell, 11 New Jersey Equity 349 235 v. Ingram, 132 North Carolina 959 365 v. Jones, 97 Kentucky 670 206 v. Kneer, 203 Illinois 264 383 v. Lloyd, 29 Michigan 382 192 v. Lowry, 113 Indiana 37 49 v. Nelson, 110 Missouri 552 78 v. Olmstead, 88 California582 428 v. Porter, 10 Gray (Massachusetts) 66 32 v. Richards, 155 Massachusetts 79 217 v. Scarbrough, 61 Arkansas 104 34 v. Sherman, 113 Iowa 601 256 TABLE OF CASES. lxix [References are to Sections.'] Smith v. Smith, 22 Colorado 480 373 v. Smith, 71 Michigan 633 129 v. Smith (Wisconsin) , 93 Northwestern 452 304 v. Sweat, 90 Maine 528 75 v. Wheeler, 1 Ventris 128 300 v. Youmans, 96 Wisconsin 103 117 Smith's Lessee v. Hunt, 13 Ohio 260 262 Snell v. Chicago, 152 United States 191 407 Snoddy v. Bolen, 122 Missouri 479 124 Snow v. Orleans, 126 Massachusetts 453 298 Society v. Haines, 47 Ohio State 423 65 Solon v. Bank, 114 New York 122 246 Soukup v. Union Investment Co., 84 Iowa 448 78 South & North Alabama B. Co. v. Highland Avenue & Belt R. Co., 119 Alabama 105 404 Southport v. Stanley, 125 North Carolina 464 407 Spader v. Powers, 56 Hun (New York) 153 147 Spafford v. Warren, 47 Iowa 47 312 Spangler v. Dukes, 39 Ohio State 642 311 Spencer v. Austin, 38 Vermont 258 157 v. Eeese, 165 Pennsylvania State 158 365, 367 v. Spruell, 196 Illinois 119 302 Spencer's Case, 5 Coke 16 197 Spicer v. Bonker, 45 Michigan 630 243 Spivey v. Eose, 120 North Carolina 163 293 Spokane v. Amsterdam School Trustees, 22 Washington 172 406 Spreckels v. Spreckels, 116 California 339 167 Springfield Engine Co. v. Donovan, 147 Missouri 622 259 Springs v. Hanks, 5 Iredell (North Carolina) 30 58 Squires v. Amherst, 145 Massachusetts 192 63 Stacey v. Elph, 1 Mylne and Keen 195 300 Stackpole v. Bobbins, 47 Barbour (New York), 212 59 Stamm v. Bostwick, 122 New York 48 408 Stanton v. Button, 2 Connecticut 527 269 v. Hitchcock, 64 Michigan 316 390 Star Brewery Co. v. Primas, 163 Illinois 652 179, 182, 229, 230 Starnes v. Allen, 151 Indiana 108 260 Starr v. Child, 20 Wendell (New York) 149 100 State v. Commissioners, 39 Ohio State 58 324 v. Eason, 114 North Carolina 787 108 v. Fishing and Shooting Club, 127 Michigan 580 112 v. Guilbert, 56 Ohio State 575 433, 436, 437, 442 v. Hudson Land Co., 19 Washington 85 411 v. Lee, 21 Ohio State 662 274 v. McLaughlin, 77 Indiana 335 , 326 v. Eyland, 163 Missouri 280 272 v. Shannon, 36 Ohio State 423 107 1XX TABLE OF CASES. [References are to Sections.] State v. Smith, 70 California 153 412 v. Stevenson, 6 Idaho 367 410 v. Thompson, 81 Missouri Appellate 549 272 v. Westfall, 85 Minnesota 437 436, 438, 443 State Bank v. The State, 1 Blackford (Indiana) 267 403 State Savings Bank v. Stewart, 93 Virginia 447 85, 93 Stebbins v. Duncan, 108 United States 32 41 Steeple v. Downing, 60 Indiana 478 ". 418 Stelz v. Shreck, 128 New York 263 162 Stephenson v. Osborne, 41 Mississippi 119 375 Sterling v. Jackson, 69 Michigan 488 107 Stetson v. Adams, 91 Maine 178 96 Stevens v. Hulin, 53 Michigan 93 431 Stevenson v. Brasher, 90 Kentucky 23 281 v. Cofferin, 20 New Hampshire 150 159 Stewart v. Bailey, 28 Michigan 251 328 v. Thomas, 64 Kansas 511 165 v. Welch, 41 Ohio State 483 421 Stickel v. Crane, 189 Illinois 211 392, 400 Stidham v. Matthews, 29 Arkansas 650 376 Stockbridge Iron Co. v. Hudson Iron Co., 107 Massachusetts 290 . . 124 Stockton v. Weber, 98 California 433 170 Stockton Savings Bank v. Staples, 98 California 189 404 Stoever v. Whitman, 6 Binney (Pennsylvania) 416 421 Stokes v. Maxson, 113 Iowa 122 '. . 395 Stone v. French, 37 Kansas 145 306 v. Marvel, 45 New Hampshire 481 235 v. Sledge, 87 Texas 49 37 Stoner v. Rice, 121 Indiana 51 115 Stout v. Bayl, 146 Indiana 37» 307 Strickley v. Hill, 22 Utah 257 410 Strough v. Wilder, 119 New York 530 251 Studwell v. Shapter, 54 New York 249 320 Stull v. Harris, 51 Arkansas 294 316, 321 Succession of. See name of party. Sullivan v. Cummins, 13 Ohio 116 264 v. Eddy, 154 Illinois 199 304 v. Sherry, 111 Wisconsin 476 157 v. Wichita, 64 Kansas 539 398 Sulzberger v. Sulzberger, 50 California 385 378 Summers v. Beeler, 90 Maryland 474 228 Sumner v. Conant, 10 Vermont 9 377 v. Williams, 6 Massachusetts 162 208 Sutton v. Head, 86 Kentucky 156 230 Sutton's Hospital, Case of, 10 Coke 30a 406 Suydam v. Jones, 10 Wendall (New York) 180 219 Svetinich v. Sheean, 124 California 216 167 TABLE OF CASES. lxxi [References are to Sections.'] Swank v. Swank, 37 Oregon 439 303 Swedish American Bank v. Germania Bank, 76 Minnesota 409 35 Sweet v. Brown, 12 Metcalf (Massachusetts) 175 207 Sweetland v. Buell, 164 New York 541 158, 304 Swift v. Luce, 27 Maine 285 359 Taf t v . Taf t, 59 Michigan 185 306, 309 Tallmadge v. East Biver Bank, 26 New York 105 227 v. Wallis, 25 Wendall (New York)107 . . , 206 Tardy v. Creasy, 81 Virginia 553 226 Tarlton v. Griggs, 131 North Carolina 216 308 Tartt v. Clayton, 109 Illinois 579 51 Tate v. Lawrence, 11 Heiskell (Tennessee) 503 252 Tatham v. Vernon, 29 Beavan 604 245 Taunton v. Pepler, 6 Maddock 166 233 Tavenner v. Barrett, 21 West Virginia 656 282 Taylor v. Armstrong, 24 Arkansas 102 91 v. Glaser, 2 Sergeant and Rawle (Pennsylvania) 502 247 v; Jones, 1 Salkeld 389 257 v. Meads, 4 De Gex, Jones and Smith 597 355, 356 v. Peabody Co., 65 Maryland 388 330 v. Youngs, 48 Michigan 268 261 Tefft v. Munson, 57 New York 97 189 Ten Eyck v. Witbeck, 135 New York 40 67 Thalls v. Smith, 139 Indiana 496 189 Thaw v. Bitchie, 136 United States 519 '. 326 Thayer v. Nehalem Mill Co., 31 Oregon 437 249 v. Thayer, 14 Vermont 107 373 v. Torrey, 37 New Jersey Law 339 78 Thomas v. Bland, 91 Kentucky 1 220 v. Caldwell, 50 Illinois 138 234 v. Hunt, 134 Missouri 392 89 v. Marshfield 10 Pickering (Massachusetts) 364 40 v. Whitney, 186 Illinois 225 341 Thompson v. Becker, 194 Illinois 119 188 v. Carl, 51 Vermont 408 , 143 v. Catlett, 24 West Virginia 524 92 v. King, 54 Arkansas 9 387 v. Leach, 2 Ventris 198, 3 Modern Reports 301 300, 314 v. Lovrein, 82 Pennsylvania State 432 37 v. McConnell (United States), 107 Federal 33 400 v. Mills, 39 Indiana 528 370 v. Mortgage Co., 110 Alabama 400 393 v. Scheid, 39 Minnesota 102 292 v. Waters, 25 Michigan 214 402, 412 Thomson v. Kyle, 39 Florida 582 7 Thorington v. Thorington, 82 Alabama 489 330 Ixxii TABLE OF CASES. [References are to Sections."} Thorkildsen v. Carpenter, 120 Michigan 419 188 Thormaehlen v. Kaeppel, 86 Wisconsin 378 317, 320 Thorpe v. Hanscom, 64 Minnesota 201 333 v. Thorpe, 70 Vermont 46 396 Thrash v. Starbuck, 145 Indiana 673 335, 346 Thrush v. Graybill, 110 Iowa 585 96 Thummel v. Holden, 149 Missouri 677 39 Tierney v. Brown, 65 Mississippi 563 78 Tiffany v. Worthington, 96 Iowa 560 344 Tiffin v. Shawhan, 43 Ohio State 178 241 Tilley v. King, 109 North Carolina 461 1"2 Tillotson v. Prichard, 60 Vermont 94 219 v. Webber, 96 Michigan 144 41 Tindell v. Tindell (Tennessee), 37 Southwestern 1105 157 Titman v. Riker, 43 New Jersey Equity 122 328 Todd v. Eighmie, 4 New York Appellate Division 9 245 Toledo Shooting Club v. Erie Shooting Club (United States), 90 Federal 680 112 Topeka Water Supply Co. v. Eoot, 56 Kansas 187 333 Towle v. Dresser, 73 Maine 252 315 Town of. See name of town. Town v. Gensch, 101 Wisconsin 445 49 Townsend v. Blanchard, 117 Iowa 36 396 v. Hubbard, 4 Hill (New York) 351 239 v. Outten, 95 Virginia 536 160 Townsend's Appeal, 68 Connecticut 358 228 Townson v. Tickell, 3 Barnewald and Alderson 31 300 Traynor v. Palmer, 86 Illinois 477 192 Treadwell v. Salisbury Manufacturing Co., 7 Gray (Massachusetts) 393 406 Trich's Executor v. Trich, 165 Pennsylvania State 586 310 Trout v. Lucas, 54 New Jersey Equity 361 229 Trowbridge v. Addoms, 23 Colorado 518 9, 273 v. Cross, 117 Illinois 109 387 Troxell v. Stevens, 57 Nebraska 329 220 Trueblood v. Trueblood, 8 Indiana 195 314 Truman v. Lore, 14 Ohio State 144 236 Trumbull v. Trumbull, 149 Massachusetts 200 146 Trustees of Union College v. New York, 173 New York 38 180 Trustees v. Haven, 11 Illinois 554 99 Trustees of Methodist Episcopal Church v. Hoboken, 33 New Jer- sey Law 13 94 Tucker v. Moreland, 10 Peters (United States) 58 S14, 322 v. Tucker, 78 Kentucky 503 40 Tulett v. Armstrong, 1 Beavan 1 354 Tunison v. Chamblin, 88 Illinois 379 303 Turman v. Bell, 54 Arkansas 273 , 431 TABLE OF CASES. lxxiii [References are to Sections.'] Turner v. Bernheimer, 95 Alabama 241 400 v. Rusk, 53 Maryland 65 343 v. Shaw, 96 Missouri 22 355, 370 v. Turner, 107 Alabama 465 382 v. Warren, 160 Pennsylvania State 336 311 Tyler v. Anderson, 106 Indiana 185 _. 92 v. Jewett, 82 Alabama 93 * 387 v. Judges, 179 United States 405 436 v. Judges of Court of Eegistration, 175 Massachusetts 7 18, 436, 438, 442 v. Moore, 42 Pennsylvania State 374 130 Uecker v. Koehn, 21 Nebraska 559 323 United States v. Crosby, 7 Cranch (United States) 115 6 v. Fox, 94 United States 315 7 v. Mission Eock Co., 189 United States 391 112 v. Pacheco, 2 Wallace (United States) 587 104 v. Schurz, 102 United States 378 297 United States Investment Co. v. Ulrickson, 84 Minnesota 14 321 United States v. Sliney (United States), 21 Federal 894 430 Upington v. Corrigan, 151 New York 143 171 Upton v. Archer, 41 California 85 39 v. Coxen, 60 Kansas 1 382 Valter v. Blavka, 195 Illinois 610 298 Van Baalen v. Cotney, 113 Michigan 202 430 Vance v. Funk, 3 Illinois 263 247 v. Hill, 26 South Carolina 227 382 v. Vance, 103 United States 514 438 Van Dyke v. Grigsby, 11 South Dakota 30 306 Van Etten v. Newton, 134 New York 143 63 Van Keuren v. Railroad, 38 New Jersey Law 165 431 Van Ormer v. Harley, 102 Iowa 150 158 Van Wagner v. Van Nostrand, 19 Iowa 422 204, 206, 212 Velten v. Carmack, 23 Oregon 282 363 Venable v. Wabash R. Co., 112 Missouri 103 372 Vestal v. Garrett, 197 Illinois 398 85 Village of. See name of village. Virginia-Tennessee Coal Co. v. McClelland, 98 Virginia 424 389, 392, 395 Virginia Coal Co. v. Kelly, 93 Virginia 332 148 Visalia Gas &c. Co. v. Sims, 104 California 326 407 Vogel v. Lehritter, 139 New York 223 6 Wachendorf v. Lancaster, 66 Iowa 458 204 Wadsworth v. Murray, 161 New York 274 SI Wager v. Wagoner, 53 Nebraska 511 344, 346 lxxiv TABLE OF CASES. [References are to Sections.'] Wait v. Baldwin, 60 Michigan 622 124 v. Maxwell, 5 Pickering (Massachusetts) 217 332 Wakefield v. Van Tassell, 202 Illinois 41 182 Wales v. CofBn, 13 Allen (Massachusetts) 213 166 Wall v. Mines, 130 California 27 46 v. Wall, 126 North Carolina 405 127 Wallace v. Berdell, 97 New York 13 298 v. Insurance Co., 54 Kansas 442 377 v. McCullough, 1 Bichardson Equity (South Carolina) 426 .... 238 Walling v. Christian Ac. Co., 41 Florida 479 363 Walsh v. Barton, 24 Ohio State 28 407 v. Binger, 2 Ohio 327 78 Walton v. Follansbee, 131 Illinois 147 188 v. Gaines, 94 Tennessee 420 313, 319 Walz v. Walz, 101 Michigan 167 125 Wambole v. Foote, 2 Dakota 1 365 Warbritton v. Demorett, 129 Indiana 346 89 Ward v. Anderson, 111 North Carolina 115 322 v. Dougherty, 75 California 240 303 v. Edge, 100 Kentucky 757 419 Ward v. Ward, 40 West Virginia 611 159 v. Ward, 104 Kentucky 857 ' 29 Warfieldv. Lindell, 38 Missouri 581 158 v. Warfield, 76 Iowa 633 346 Warner v. Peck, 11 Rhode Island 431 364 Warthen v. Siefert, 139 Indiana 233 157 Washburn v. Burns, 34 New Jersey Law 18 165 Washington Ice Co. v. Shortall, 101 Illinois 46 107 Washougal &c. Transportation Co. v. Dalles &c. Navigation Co., 27 Washington 490 102 Watkins v. Youll (Nebraska), 96 Northwestern 1042 399 Watson v. Billings, 38 Arkansas 278 320 v. Muirhead, 57 Pennsylvania State 167 2 v. Peters, 26 Michigan 508 99 Watts v. Parker, 27 Illinois 228 198 Watuppa Reservoir Co. v. Fall River, 147 Massachusetts 548 Ill Waverly &c. Improvement Co. v. White, 97 Virginia 176 98 Wea Gas, Coal Ac. Co. v. Franklin Land Co., 54 Kansas 533 395 Webb v. Demopolis, 95 Alabama 116 108 . v. Holt, 113 Michigan 338 194 v. Mullins, 78 Alabama 111 71 Webber v. Pere Marquette Boom Co., 62 Michigan 626 116 Weber v. Christen, 121 Illinois 91 304 v. Tanner (Kentucky), 64 Southwestern 741 363, 364 Webster v. Harris (Tennessee), 69 Southwestern 782 116 v. Warner, 119 Michigan 461 392 Weeks v. Bridgman, 159 United States 541 312 TABLE OF CASES. lxXV [References are to Sections.] Weihl v. Robertson, 97 Tennessee 458 43 Weiss v. Binnian, 178 Illinois 241 200 v. Heitkamp, 127 Missouri 23 66 Weitzner v. Thingstad, 55 Minnesota 244 396 Welbon v. Welbon, 109 Michigan 356 208 Welch v. Bunce, 83 Indiana 382 315 v. Sackett, 12 Wisconsin 270 300 v. Welch, 183 Illinois 237 '. 130 Weld v. Johnson Manufacturing Co., 84 Wisconsin 537 328 Welles v. Bailey, 55 Connecticut 292 110 Wellman v. Churchill, 92 Maine 193 121 Wells v. Caywood, 3 Colorado 487 371 v. Estes, 154 Missouri 291 374 v. Tolman, 156 New York 636 125 Wescott v. Binford, 104 Iowa 645 146 West v. Bretelle, 115 Missouri 653 97 v. Fitz, 109 Illinois 425 9, 137 v. Wright, 115 Georgia 277 29 West Side Auction Co. v. Connecticut Mutual Life Insurance Co., 186 Illinois 156 240 West Virginia Transportation Co. v. Pipe Line Co., 22 West Vir- ginia 600 230 Wetmore v. Bruce, 118 New York 319 201, 223 Wetzell v. Bichcreek, 53 Ohio State 62 198 Wheeler v. Laird; 147 Massachusetts 421 17 v. Wayne Co., 132 Illinois 599 206, 211, 212 Wheelock v. Cavitt, 91 Texas 679 293 Whitaker v. Brown, 46 Pennsylvania State 197 123 v. Miller, 83 Illinois 381 38 White v. Brocaw, 14 Ohio State 339 207 v. Foster, 102 Massachusetts 375 49 v. Howard, 38 Connecticut 342 7 v. Howard, 46 New York 144 7 v. Luning, 93 United States 514 87 v. New York &c. R. Co., 156 Massachusetts 181 121 v. Wager, 25 New York 328 371 White Sewing Machine Co. v. Wooster, 66 Arkansas 382 400 White's Charities, In re, 1 Chancery Division 659 99 Whitehead v. Ragan, 106 Missouri 231 96 Whiteman v. Field, 53 Vermont 554 397 . Whitlock, In re, 19 Howard's Practice (New York) 380 326 v. Gosson, 35 Nebraska 829 392, 393 Whitney v. Closson, 138 Massachusetts 49 375 v. Detroit Lumber Co., 78 Wisconsin 240 103 v. Fitchburg R. Co., 178 Massachusetts 559 119 v. Union R. Co., 11 Gray (Massachusetts) 359 49, 228 Whitsett v. Wamack, 159 Missouri 14 160 Ixxvi TABLE OF CASES. {References are to Sections.] Whittemore v. Farrington, 76 New York 452 188 Whittlesey v. Fuller, 11 Connecticut 337 151, 163 Wicks v. Dean, 103 Kentucky 69 369 Wieland v. Kobick, 110 Illinois 16 44, 320 Wilber v. Wilber, 52 Wisconsin 298 375 Wiley v. Lovely, 46 Michigan 83 85, 93 Wilhelm v. Wilken, 149 New York 447 188 Wilkesbarre v. Society, 134 Pennsylvania State 616 137 Wilkins v. Bevier, 43 Minnesota 213 430 v. Young, 144 Indiana 1 150 Wilkinson v. Elliott, 43 Kansas 590 . 377 v. Kneeland, 125 Michigan 261 166 v. Scott, 17 Massachusetts 249 59 Will of. See name of party. Willard v. Cramer, 36 Iowa 22 291 Williams v. Burrell, 1 Common Bench 402 211 v. Daubner, 103 Wisconsin 521 308 v. Glover, 66 Alabama 189 109 v. Paine, 169 United States 55 28, 239, 377 v. Sapieha, 94 Texas 430 336 v. Schatz, 42 Ohio State 47 308 v. Shackleford, 97 Missouri 322 414 v. Spitzer, 203 Illinois 505 430 v. Wetherbee, 1 Aiken ("Vermont) 233 206 .Williamsburg Boom Co. v. Smith, 84 Kentucky 372 98, 101 Williamson v. Branning, 86 Hun (New York) 203 276 v. Carskadden, 36 Ohio State 664 293 Willow River Club v. Wade, 100 Wisconsin 86 106, 107, 108, 110 Willingham v. King, 23 Florida 478 414 Willwerth v. Leonard, 156 Massachusetts 277 333 Wilmans v. Robinson, 67 Arkansas 517 , 143, 146 Wilmurt v. McGrane, 16 New York Appellate Division 412 224 Wilson v. Alston, 122 Alabama 630 147 v. Campbell, 119 Indiana 286 17 v. Griess, 64 Nebraska 792 285 v. Hildreth, 118 Massachusetts 578 92 v. Leary, 120 North Carolina 90 402 v. Peelle, 78 Indiana 384 19$ v. Randall, 67 New York 338 92 v. Terry, 130 Michigan 73 132 v. Traer, 20 Iowa 231 28 1 v. White, 84 California 239 43 v. Widenham, 51 Maine 567 19g v. Wilson, 158 Illinois 567 308 v. Wilson, 43 Minnesota 398 165 v. Wilson, 6 Idaho 597 167,365, 367 Windsor v. Collinson, 32 Oregon 297 68 TABLE OF CASES. lxXVli [References are to Sections.'] Winscomb & Dunches Case, Godbolt 270 257 Windstandley v. Stipp, 132 Indiana 548 418 Winsted Bank v. Spencer, 26 Connecticut 195 251 Winston v. Hodges, 102 Alabama 304 235 Winter v. Stock, 29 California 407 45 Winterbottom v. Patterson, 152 Illinois 334 301 Wolf v. Brass, 72 Texas 133 94 v. Holton, 104 Michigan 107 : 44, 324 Wolfe v. Sullivan, 133 Indiana 331 94 Wood v. Bach, 54 Barbour (New York) 134 272 v. Fleet, 36 New York 499 161 v. Fowler, 26 Kansas 682 108 v. Goodridge, 6 Cushing (Massachusetts) 117 239 v. Leadbitter, 13 Meeson and Welsby 838 242 v. Wood, 83 New York 575 257, 352 Woodbury v. Fisher, 20 Indiana 387 302 Woodhull v. Longstreet, 18 New Jersey Law 405 161 Woodruff v. Woodruff, 44 New Jersey Law 349 24 Woods v. James, 87 Kentucky 511 266 Woolley v. Gaines, 114 Georgia 122 337 , Workman's Mutual Aid Association v. Monroe (Texas), 53 South- western 1029 285 Worley v. Hineman, 6 Indiana Appellate 240 218 Worrell v. Drake (Tennessee) , 75 Southwestern 1015 371 Worthington v. Middleton, 6 Dana (Kentucky) 300 376 v. Staunton, 16 West Virginia 209 157 Wright v. DeGroff, 14 Michigan 164 376 v. Nipple, 92 Indiana 310 216 v. Whittock, 18 Colorado 54 388 Wronkow v. Oakley, 133 New York 505 377 Wunderle v. Wunderle, 144 Illinois 40 7, 408 Wynn v. Wynn, 112 Georgia 214 29 Wysong v. Nealis, 13 Indiana Appellate 165 216 Yates v. Van De Bogert, 56 New York 526 407 Young v. Cosgrove, 83 Iowa 682 93 v. Edwards, 33 South Carolina 404 157 v. Lohr, 118 Iowa 624 425 v. McKee, 13 Michigan 552 321 v. Overbaugh, 145 New York 158 17 v. Shulenberg, 165 New York 385 44 Zann v. Haller, 71 Indiana 136 237 Zent v. Picken, 54 Iowa 535 198, 216 Zimpelman v. Robb, 53 Texas 274 167 Zouch v. Parsons, 3 Burrow 1794 314 THE CONVEYANCE OF ESTATES IN FEE BY DEED CHAPTEE I. INTRODUCTORY. § 1. Alienation in general — Inter § 5. Application of the doctrine vivos and by will. that lex situs controls — Its 2. Conveyancing — What the reason. term implies. 6. Illustrations — Formal mat- 3. Controlling effect of lex situs ters. — Power of states as to real 7. Illustrations — Capacity, property. 8. Illustrations — Construction 4. Power of the United States — and effect of instruments. Effect of treaties on state 9. Statutes adopting foreign law laws. — Not exceptions to rule. 10. Limitations to the application of the rule. § 1. Alienation in general — Inter vivos and by will. — One entitled to rights in land may, by his voluntary act, alienate them, or transfer them to another, in one of two modes : his alienation may be inter vivos or it may be by will. Of these modes the former is more often used in the practical affairs of life than the latter, and it is that mode to which the following pages are devoted. Alienation inter vivos is now generally accomplished by a deed of conveyance, and it is proposed to consider the essential features of the deed. A will of lands is regarded as a conveyance operating upon the death of the testator, but a will and a deed are made under different circumstances, and, moreover, the rules as to the interpretation of the two classes of instru- ments differ in many respects. It is intended, therefore, to refer but incidentally to the law of wills. (1) 2 THE LAW OF CONVEYANCING. § 2 Owners of interests in lands have not always had the power of transferring their interests, either inter vivos or by will, 1 but at the present time, speaking generally, the owner of the fee has the absolute right of alienation. In order, however, that the alienation may be effectual the persons from whom and to whom the particular inter- est is intended to be transferred must be capable in law of transferring it on the one hand and, on the other, of taking and keeping it ; the object or purpose of the transfer must be valid in law; and the manner of aliena- tion prescribed by law must be observed. Restraints upon the right of alienation — arising either from the personal incapacity of the parties to the transfer or from the nature of the particular interest intended to be transferred, or from the purpose or object of the trans- fer — are exceptions to the general doctrine that permits alienation, and will therefore be considered after the deed has been discussed. § 2 . Conveyancing — What the term implies. — Th e term conveyancing, used in a broad sense, includes, it is true, much more than an examination of the subject of deeds. Deeds of conveyance and devises are not the only written instruments affecting interest in lands, as an estate for years, for example, is generally created by a "lease," and a "mortgage" in some states conveys the legal title to the mortgagee. Moreover, rights in land may be acquired without any written instrument to show what they are; for not only does an estate in fee simple, if undisposed of by its owner, descend at his death to his heirs, but valuable interests may be gained by prescription, and an estate in fee sim- ple may be acquired by adverse possession. One properly performing the functions of a convey- 1 See Digby Hist. L. Real Prop., 5th ed., pp. 100, 133, 157, 376; Pol- lock and Maitland Hist. Eng. Law, 2d ed., I, pp. 329 et seq., II, p. 315. § 3 INTRODUCTORY. 3 ancer should, therefore, have "an acquaintance with the general principles of the law of real property and a large amount of practical knowledge, which can only be de- . rived from experience", 2 for in his work is included not merely the drafting of many different documents intended to affect interests in real property, but an inquiry into the legal effect of acts and events which in the past have con- cerned the property. However, almost innumerable decisions relating to title indicate ignorance and carelessness on the part of those actually acting as conveyancers, and irrespective of deci- sions, it is well known that the task of examining titles and the drafting and interpretation of instruments affecting them are too often left to those wholly unfitted by study and training for such work. While the full duty of the conveyancer is not attempted to be set forth in this volume, it will probably be found to be true that a study of the principles involved in the preparation and interpretation of deeds will include a consideration of most of his important functions. § 3. Controlling effect of lex situs — Power of states as to real property. — One principle of practical importarice may not inappropriately be referred to at this point. It is a well settled general rule of law that all questions re- lating to the transfer of title to real property are governed by the law of the place where the property is situated — lex loci rei sitae or lex situs. It is especially important for the American lawyer to keep this principle in mind because he must in practice frequently consider questions as to the title to real prop- erty in states other than his own, and each state is as to every other state sovereign in its power to regulate the acquisition and transfer of real property within its limits. While the law of one state upon these subjects may re- semble in some particulars the laws of other states much 2 Justice Sharswood in Watson v. Muirhead, 57 Pa. 167. 4 THE LAW OF CONVEYANCING. § 4 diversity in other respects exists, the general result being that the real property laws of no two states are identical. § 4. Power of the United States — Effect of treaties on State laws. — Moreover, as to most matters relating to such property the federal government has no power of regulation. The courts of the United States will generally respect and follow the law of the state where the property is as that law exists in the statutes and decisions of the state. 3 The federal and state courts sometimes disagree as to what the law of the state is, 4 but such instances do not affect the general principle that the federal courts will apply the state law, when it is clear what that law is. There should, however, be noted in this connection the provision of the constitution of the United States that "all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land." 5 The protection which should be afforded to the citizens of foreign countries who may acquire property in this country is a proper subject for regulation by treaty, 6 and the statutes of any state as to the property rights of aliens, therefore, must be construed with reference to a treaty, should there be one touching the matter, between the United States and the government of the alien. The law of the place where the land is, still governs in such a case, because the treaty is the law and may abrogate or amend, as the case may be, the 8 Gormley v. Clark, 134 U. S. 338, 348; Brine v. Insurance Co., 96 U. S. 627. •As illustrating such disagreement compare the case of Hardin v. Jordan, 140 U. S. 371, 380, 384, with that of Fuller v. Shedd, 1896, 161 111. 462, 490; 44 N. E. 286; 52 Am. St. R. 380, which are discussed in § 114, post. 5 Art. VI, § 2. 8 Geofroy v. Eiggs, 133 U. S. 258, 266. § 5 INTRODUCTORY. 5 statute of the state; allowing it, however, to remain in force as to other cases not affected by treaty. 7 § 5. Application of the doctrine that lex situs controls — Its reason. — This principle, that the law of the place of the real property controls, applies, generally speaking, to the different kinds of instruments conveying or affecting title, that is, deeds, mortgages, wills, etc.; it applies to matters of form; to matters relating to the capacity of the person from whom the title proceeds and to the capacity of the person taking title, as well as, generally, to ques- tions relating to the construction or interpretation of the instrument. The reason for the doctrine is to be found in the fact that from the very nature of the subject-matter, which is immovable and fixed permanently at a particular place, no other rules of law than those of that place can ulti- mately control the disposition of the property. For no court of one country or state could enforce its judgments, rendered in accordance with its own laws, relating to the title to real property in another independent country or state. 8 §6. Illustrations — Formal matters. — (a) Formal mat- ters. — If by the law of the place where the land lies "no estate of freehold can be conveyed, unless by a deed or conveyance under the hand and seal" of the party 7 Hauenstein v. Lynham, 100 IT. S. 483. The doctrine of the su- premacy of treaties over state laws is stated broadly as it appears to be laid down by the supreme court of the United States. The govern- ment through the treaty-making power seems able to do indirectly what it could not do directly by an act of congress. The consideration of treaties as affecting title to land arises most frequently in cases of descent, and state courts admit the supremacy of the treaty over state laws : Scharpf v. Schmidt, 1898, 172 111. 255 ; 50 N. E. 182 ; Adams v. Akerlund, 1897, 168 111. 632; 48 N. E. 454; Doehrel v. Hillmer, 1897, 102 Iowa, 169; 71 N. W. 204; Succession of Sala, 1898, 50 La. Ann. 1009 ; 24 So. 674. 8 See Minor, Conflict of Laws, pp. 28, 29. 6 THE LAW OF CONVEYANCING. § 7 conveying, and an instrument is executed in another jurisdiction, the residence of both grantor and grantee, without a seal, sufficient, where executed, to pass real estate there, it is not a good conveyance of the land in question; 9 or if the law of the place where the land is requires a deed for the conveyance of land to be executed in the presence of two witnesses, a deed executed in the presence of one only is void. 10 So, a will executed in one state and valid there, may be invalid as a will devising real estate in another, and its probate in the former state does not establish its validity in the latter state unless the laws of the latter permit it; and the same is, of course, true of a will executed in a foreign country. 11 § 7. Illustrations — Capacity. — (b) Capacity of those from whom and to whom title passes. — A will executed by a married woman in Kentucky, where a married woman was (at that time) incompetent to make a valid will devis- ing real property, is, nevertheless, held valid in Tennes- see as to such property there, the formalities required by the Tennessee statutes having been observed. 12 And though in most states a mortgage is not, strictly speaking, a conveyance, the capacity of a mortgagor of real property to make the mortgage in question will be determined, generally, by the law of the place where the mortgaged premises are situated, rather than by the law of the domicil of the mortgagor, should that differ from the former. Hence, though by the law of her domicil a married woman is incompetent to make a valid mortgage of land situated there, her mortgage of land in another 9 United States v. Crosby, 7 Cranch 115. 10 Clark v. Graham, 6 Wheat. 577. "Eobertson v. Pickrell, 109 U. S. 608; Vogel v. Lehritter, 1893, 139 N. Y. 223 ; 34 N. E. 914. » Carpenter v. Bell, 96 Term. 294; 34 S. W. 209. § 7 INTRODUCTORY. 7 state where married women are competent, will be held valid, though executed at her domicil. 13 And, in general, the capacity of one to take title as grantee, devisee or heir, is determined by the same prin- ciple. For example, one Fox died possessed of real and personal property situated in New York, having by his will devised and bequeathed all his property to the gov- ernment of the United States. His heirs contested the will and the state courts held 14 that the United States could take the personal property, but could not take the real property, because the New York statute of wills pro- vided that a devise of lands may be made "to any person capable by law of holding real estate ; but no devise to a corporation shall be valid unless such corporation be ex- pressly authorized by its charter or by statute to take by devise". The supreme court of the United States, in affirming the decrees of the New York courts, stated the principle that each state has power to regulate the tenure of real property within its limits, the modes of its acquisition and transfer, the rules of descent and the extent to which testamentary disposition of it may be made, and held that "person" in the New York statute signified a natural per- son, or an artificial person deriving its existence from leg- islation ; that the United States is not such a "person", 13 Thomson v. Kyle, 1897, 39 Fla. 582; 23 So. 12; 63 Am. St. E. 193; Cochran v. Benton, 1890, 126 Ind. 58; 25 N. E. 870; Sell v. Miller, 11 Ohio St. 331 ; Post v. First Nat. Bank, 138 111. 559; 28 N. E. 978. In none of these cases does it appear that the mortgage was given to secure an obligation void where entered into and where it was to be performed. They seem, therefore, distinguishable from such a case as Evans v. Beaver, 1893, 50 Ohio St. 190; 33 N. E. 643; 40 Am. St. R. 666, in which the question was as to the validity of a mortgage of Ohio land, executed in Indiana by a married woman living there, to secure an obligation as surety to be performed in Indiana where such a con- tract is void : and it was held that the mortgage, being merely the security for the performance of a void obligation, could not be enforced. " In the matter of will of Fox, 52 N. Y. 530. 8 THE LAW OF CONVEYANCING. § 8 and that "corporation" applied only to such corporations as are created by the laws of the state. 15 The government of the United States has capacity, however, to take real estate as devisee, when it lies in a state where no such restrictions as these exist ; 16 and a New York corporation, having power to hold land and whose charter contains no prohibition against taking by will, may take Connecticut lands as devisee, 17 though it cannot take New York lands under the same will. 18 So the law of the state where the land lies will deter- mine who are the heirs of a deceased owner of the land, capable of inheriting it. The laws of one state may provide, for example, that aliens, whether resident or non-resident, may take title by descent, 19 while those of another may prevent non-resi- dent aliens from inheriting (such laws being subject to existing treaties). 20 §8. Illustrations — Construction and effect of instru- ments. — (c) Validity and effect determined by lex situs. — Whether, for example, the effect of a conveyance to a trustee is to vest the legal title in him or in the benefi- ciary, will depend on the construction of its provisions under the lex situs. 21 So the question whether under a will there has been an "equitable conversion" into person- alty of the testator's real estate situated in a state other than that of his domicil will be settled by the law of the state where the land is. This law may be very different from that of the testator's domicil, and the result of the "United States v. Fox, 94 U. S. 315. 16 Dickson v. United States, 125 Mass. 311. "White v. Howard, 38 Conn. 342. 18 White v. Howard, 46 JST. Y. 144, 167. 19 Blythe v. Hinckley, 1900, 127 Cal. 431 ; 59 Pac. 787; Lumb v. Jen- kins, 100 Mass. 527. 20 Wimderle v. Wunderle, 144 111. 40; 33 N. E. 195; 19 L. E. A. 84 j Doehrel v. Hillmer, 102 Iowa 169 ; 71 N. W. 204. a McGoon v. Scales, 9 Wall. 23. § 9 INTRODUCTORY. 9 application of the principle in such cases may be that the testator's real estate in one state will pass to persons other than those to whom his real estate in another will pass although all his property in different states is re- ferred to in the same terms in his will. 22 And the decision of a court of the testator's domicil that his will worked an equitable conversion into personalty of all realty wherever situated, is not conclusive on the courts of another state where part of the realty is. 23 § 9. Statutes adopting foreign law — Not exceptions to rule. — There are statutes in many of the states that pro- vide that instruments transferring or affecting real prop- erty within their limits, but executed beyond these lim- its, shall be valid for many purposes if they conform to, and are valid under, the law of the place where executed. Cases arising under such statutes are sometimes inaccu- rately considered as exceptions to the general rule that the law of the place where the land lies controls in such matters. They are not, however, really exceptions to this rule, for the law of the place where the property is, by adopt- ing the foreign law for the particular cases specified, makes that foreign law for the time being and under the particular circumstances its own law, and thus the prin- ciple still applies. The foreign law derives its efficacy in such cases not from the law-making power of the place of its creation, but from that of the place which adopts it for these special purposes. 24 And if there be no such adopting law in the place where the real property is, the foreign law cannot have the ef- fect there that it would have in the place of its origin. 25 22 Hobson v. Hale, 95 N. Y. 588. 23 Clarke v. Clarke, 1899, 178 U. S. 186. The principle as applied to the construction of devises is well discussed in 41 Am. L. R. (N. S.), pp. 623, 718. 24 Root v. Brotherson, 4 McLean 230; West v. Fitz, 109 111. 425, 443. "Trowbridge v. Addoms, 1897, 23 Colo. 518, 522; 48 Pac. 535. 10 THE LAW OF CONVEYANCING. § 10 § 10. Limitations to the application of the rule. — But while the principle is of very extensive application, it does not necessarily follow that the law of the place of the realty will determine the validity for all purposes of every instrument which, though relating to real property, may create simply a personal liability, 26 nor of every in- strument through which title to real property may be ultimately obtained. Hence, the Massachusetts courts will enforce a covenant made in North Carolina by a husband with his wife to release and extinguish his rights in her land in Massachusetts, the contract being valid under the law of North Carolina where the parties lived, and being a personal covenant, though concern- ing Massachusetts land, and though it seems that the same contract if made in Massachusetts would have been invalid. 27 So, while a mortgage of real estate is generally governed by the law of the state where the realty is, an assignment of the mortgage is often regarded as a new contract passing a chattel interest, and its validity will not necessarily depend upon the law of the place where the property is, 28 though that law may control as to the remedy and procedure when the assignee seeks to fore- close the assigned mortgage. 29 56 See post, § 213. 87 Poison v. Stewart, 1897, 167 Mass. 211; 45 N. E. 737; 36 L. E. A. 771 ; 57 Am. St. E. 452. 28 Dundas v. Bowler, 3 McLean 397, 401 ; Hoyt v. Thompson, 19 N. Y. 207, 224. 29 Dohm v. Haskin, 88 Mich. 144; 50 N.W. 108. CHAPTER II. THE CHIEF METHODS OF VOLUNTARY ALIENATION OF LAND INTER VIVOS. § 11. Formerly no writing neces- § 15. Deeds used though not nec- sary — The feoffment. essary. 12. The bargain and sale — When 16. Livery of seisin in the United deed necessary for. States — Conveyance gen- 13. The lease and release. erally by deed. 14. The feoffment — When a deed 17. How title may still pass in- became necessary for. ter vivos without writing. 18. Fines and recoveries. § 11 . Formerly no writing necessary — The feoffment. — Owing to repeated allusions in modern statutes and opin- ions to earlier law a brief view of former methods of trans- ferring interests in real property will be found to be not only interesting, but of practical importance. From the Norman Conquest, 1066, onward for a period of over four hundred and sixty years no writing of any kind was necessary for the legal transfer of a freehold es- tate in possession in corporeal hereditaments. Such transfer was accomplished generally by "the most valuable of assurances" — the feoffment. This consists simply and solely in livery of seisin, that is the deliv- ery by the feoffor to the feoffee of possession of the land : "Some phrases in common use, which seem to imply a distinction between the feoffment and the livery are so far incorrect." 1 1 Challis, Real Prop., ch. 28. As to the conveyance of those interests in land that could not be transferred at common law by feoffment, i. e., incorporeal interests, see post § 242. (ID 12 THE LAW OF CONVEYANCING. § 12 § 12. The bargain and sale — When deed necessary for. — In 1535, just after the Statute of Uses 2 was enacted, the Statute of Enrolments required that "bargains and sales" intended to pass any estate of inheritance or freehold in any hereditaments should be "by writing, indented, sealed and enrolled" among certain records. 3 Before this enactment "bargains and sales" were not required to be by deed, i. e., a writing under seal, and the statute was intended to prevent secret conveyances. 4 § 13. The lease and release. — The statute of enrolments did not apply to interests less than a freehold, and there- fore a bargain and sale for a year, or a term of years, took effect in spite of the statute and without enrolment ; the statute of uses did, however, apply to it, and imme- diately after the execution of the bargain and sale the lessee became in possession by virtue of this statute, and being thus in possession, he could take a release of the reversion. 5 This conveyance by lease and release was for more than two centuries, 1620-1841, the common mode of convey- ing freehold lands in England, and is referred to occa- sionally in American decisions and statutes. 6 It was not necessary that the bargain and sale for a year should be by deed, though after the Statute of Frauds 7 it was necessary that it should be in writing. § 14. The feoffment — When a deed became necessary for. — But the common law conveyance by feoffment was still legal (and, indeed, was necessary in some cases, and 2 27 Hen. VIII, ch. 10. 3 See the Act, Digby, Hist. L. Real Prop., 5th ed., p. 368. 4 2 Bl. Comm. 338. 6 2 Bl. Comm. 339. See post, §§ 20, 25. 6 E. g. Ky. Stat., 1899, §492: "Every deed of release shall be as ef- fectual for the purposes therein expressed, without the execution of a lease, as if the same had been executed." 7 (1677) 29 Car. II, ch. 3. § 15 THE CHIEF METHODS. 13 still is in England); 8 and for this method of conveyance still no written instrument of any kind was required until nearly one hundred and fifty years after "bargains and sales" were required by the Statute of Enrolments to be by deed. That is, until the Statute of Frauds, 1677, no writing was essential to a feoffment, and a deed was not required for a feoffment until 1845. 9 So far as form of expression was concerned a feoffment was (before these statutes) an oral grant, and the words, "I enfeoff thee and thy heirs forever of black acre" were as effectual as the longest form of deed; but any form of statement, long or short, was wholly ineffectual without livery of seisin. § 15. Deeds used though not necessary. — Nevertheless, during the time when deeds were not necessary they ap- pear to have been often used for the purpose of preserv- ing some record of the transaction. The charter, or deed of feoffment, when used for this purpose was properly enough expressed as testifying to a past act: " I have given and granted." 10 Many deeds now in ordinary use contain language which is a relic of this custom, but they also contain words in the present tense — the combination expressing something that in most cases is not true. For example: "I, A B, etc., have given, granted, bargained, sold, re- mised, released, conveyed, aliened and confirmed, and by these presents do give, grant, bargain, sell, remise, etc." Aside from the needless multiplication of operative words ( which arose from overanxious care that the deed "Digby, Hist. L. Real Prop., 5th ed., p. 412. 9 8 and 9 Vict., ch. 106; Williams' Eeal Prop., 17th ed., p. 185; Shep- pard's Touchstone, Preston's ed., 203. Except in the case of a feoff- ment to a corporation aggregate and not being a gift in frank-almoigne ; Challis Eeal Prop., p. 326. 10 SeeDigby, Hist. L. B. Prop., 5th ed., 60, 61, 145; 2 Bl. Comm., Appendix, form 1. 14 THE LAW OF CONVEYANCING. § 16 might operate as one kind of conveyance, if not as an- other), the employment of both tenses is a worse than useless perpetuation of an old custom. §16. Livery of seisin in the United States— Conveyance generally by deed. — It is sometimes stated that livery of seisin has not been used in the United States, 11 but as late as 1827 a conveyance by feoffment with livery of seisin was made in New York, 12 and it was not until 1830 that it was abolished in that state. However, it appears that it is now either expressly abolished or impliedly declared to be unnecessary in every state. The statute of Michigan on the subject is substantially like those of many of the states : "Conveyances of lands * * * may be made by deed * * * without any other act or ceremony what- ever." 13 In Illinois it is provided: "Livery of seisin shall in no ■ case be necessary," etc., 14 while in New York the statute declares that, "Conveyance by feoffment with livery of seisin has been abolished." 15 In some states it is excluded by the terms of the stat- ute ; for example, "Conveyances of land * * * shall be by deed in writing," 16 or, "An estate in real prop- erty * * * can be transferred only by operation of law or by an instrument in writing," 17 while some stat- utes simply specify how deeds shall be executed without reference or allusion to livery of seisin. 18 , u E. g., 4 Kent Comm. 489. » McGregor v. Comstock, 17 N. Y. 162, 171. 13 0. L. Mich. 1897, §8956. So, also, e. g., Kan. G. S. 1901, §1205; Minn. G. S. 1894, §4160; Mo. R. S. 1899, § 900; Wis. St. 1898, §2203. »R. S. ch. 30, §1. 15 L. 1896, ch. 547, § 206; 3 Birdseye, p. 3050, § 206. 16 Ind. Burns' R. S. 1901, § 3335. "Cal. Civ. Co., §1091. 18 E. g., OhioR. S., §4106. § 17 THE CHIEF METHODS. 15 § 17. How title may still pass inter vivos without writing. From a consideration of such statutes as those just referred to and the Statute of Frauds it might natu- rally be inferred, at first thought, that there could be now no voluntary transfer of lands inter vivos, so as to convey absolute title in fee simple, without at least some writing; but such is not the case, for there may be a complete and voluntary transfer in fee simple without any writing what- ever ; as where one enters upon real estate by virtue of a parol gift, his legal title will become absolute if he con- tinues in possession, claiming as owner, for the period prescribed by the statute of limitations. 19 It will be no- ticed that in such cases as those just cited the transfer of title to the donee is not dependent on any consideration paid by him, nor on any improvements made by him on the property. By simply taking possession under the gift his title may ultimately become perfect, although the voluntary transfer by the donor does not comply with the formalities required by the statutes, but may be repu- diated by him at any time before his legal rights are barred by the statute of limitations. Such cases differ, therefore, from those in which parol gifts have been made of real estate, and the respective do- nees have taken possession and made valuable improve- ments on the property, relying on the gift. In these latter cases, while the legal title may not have yet passed to the donee, nevertheless a court of equity will, as it has often been held, protect his equitable title. 20 And where, instead of a gift merely, there has been an oral contract for the sale of real estate which has been partly performed by one party, a court of equity will gen- "Schafer v. Hauser, 1897, 111 Mich. 622; 70 N. W. 136; 3 D. L. N. 801; 35 L. R. A. 835; Wilson v. Campbell, 119 Ind. 286; 21 N. E. 893; Wheeler v. Laird, 147 Mass. 421; 18 N. E. 212. M Neale v. Neales, 9 Wall. 1, 9; Schwindt v. Schwindt, 1900, 61 Kan. 377 ; 59 Pac. 647 ; Hubbard v. Hubbard, 1897, 140 Mo. 300 ; 41 S. W. 749; Young v. Overbaugh, 1895, 145 N. Y. 158; 39 N. E. 712. See Ellis v. Dasher, 1897, 101 Ga. 5, 7 ; 29 S. E. 268. 16 THE LAW OF CONVEYANCING. § 18 erally decree a specific performance of the contract in favor of that party in spite of the statute of frauds. In such'cases the courts proceed on the general principle that one who has made an oral promise, by reason of which he has obtained some benefit from another, will not be permitted to justify his refusal to perform that promise on the ground that certain statutory requirements have not been complied with. 21 The cases cited in this section have one feature in com- mon, that is : the title to the real property involved in each case has passed without the execution of any written instrument by the former owner of the property. § 18. Fines and recoveries. — The feoffment was an- ciently the only direct way of conveying a freehold inter- est in lands in possession from one person to another. But as early as the reign of Henry II, 1154—1189, forms of litigation were used for the purpose of effecting a conveyance of land. The law of fines was formerly most intricate, but as this method of dealing with land is wholly abolished a knowledge of its details seems unnecessary, though every lawyer should understand the general nature of a fine. Briefly, it was an amicable compromise — a final con- cord — of an action, by leave of court, whereby the lands in question in the action, were acknowledged to be the right of one of the parties. Sometimes the concord put an end to genuine litigation, but generally the action was begun merely in order that the pretended compromise might be made. The plaintiff, the intending purchaser, was at first called the demandant, and the defendant (the vendor) the deforceant, but afterward they became known, the latter as conusor, and the former as conusee — these terms referring to the recognition of the right of the one party by the other. 21 Riggles v. Erney, 1894, 154 TJ. S. 244; Pike v. Pike, 1899, 121 Mich. 170; 80 N. W. 5; 6 D. L. N. 405; 80 Am. St. P. 488; Martin v. Martin, 1897, 170 111. 639; 48 N. E. 924. See Pomeroy Eq. Jur., § 1409. § 18 THE CHIEF METHODS. 17 The fine was so called because it put an end, not only to the matter in dispute, but also to all claims to the land by other persons than the parties who did not within a given time assert their claims, unless they could excuse themselves by showing infancy or some other disability. Thus the advantages of a fine were : ( 1 ) tbat there was indisputable evidence of the transaction (the concord being enrolled among the court records); (2) the title conferred by the fine was a bar to the claims of all persons ( not un- der disability), whether or not they were parties to the action, who did not within due time put in their claims. 22 In considering a recent statute adopting the so-called "Torrens System," Holmes, C. J., in meeting an objec- tion to the constitutionality of the statute, refers to the effect of a fine in barring claims to land: 23 and in modern decisions, where conveyances by married women are con- sidered, references are necessarily made to the law of fines. 24 Such instances afford illustrations of the truth that "the study of what is obsolete in practice is not nec- essarily a waste of time." 25 A "common recovery" was a collusive action of recov- ery, not compromised, but prosecuted to judgment by the demandant or recoveror against the tenant or recoveree. It was the mode of barring estates tail, and the result of the proceeding was that the lands passed from the tenant in tail to the claimant in fee simple, free from the claims of reversioner, remainderman or issue in tail, 26 and it was used in this country at one time for the same pur- pose. 27 22 2 Bl. Comm. 348; Pollock & Maitland, Hist. Eng. Law, II, 94-105; Shep. Touch., ch. 2. 23 Tyler v. Court of Kegistration, 1900, 175 Mass. 71, 74 ; 55 N. E. 812 ; 51 L. E. A. 433. 24 Hitz v. Jenks, 1887, 123 TJ. S. 297/301 ; Martin v. D welly, 6 Wend. 9; 21 Am. Dec. 245; Clark v. Clark, 16 Ore. 224, 226; 18 Pac. 1. 25 Williams Eeal Prop., 17th ed., 174. 26 2B1. Comm. 357. " See post, § 142. 2 — Brews. Con. CHAPTER III. THE DEED. § 19. Definition and characteris- § 26. Eeasons for considering set- tics of the deed. tied forms. 20. Kinds of deeds — At common 27. The deed conveys a present law — Under the statutes of interest — To be distin- uses. guished from other instru- 21. Kinds — Indenture — Deed ments. poll. 28. Deeds distinguished from 22. Indenture — Deed poll — contracts to convey. Forms. 29. Deeds distinguished from 23. Indenture — Deed poll — instruments testamentary Other differences in forms. in character. 24. Indenture — Deed poll — 30. Statutory forms of deeds. Difference in effect. 31. The parts of a deed. 25. Modern tendency to shorten deeds. § 19. Definition and characteristics of the deed. — It will be noticed that while such statutes as those referred to 1 provide for the conveyance of interests in real prop- erty by deed, they neither define "deed" nor state all its essentials. There are, it is true, in about one half the states short statutory forms of conveyances that may be used, and the statute prescribes their effect, but they are not adapted by form to be used in all cases, and no statute provides that such forms must be used. la Statutes provide also certain things that are essential in the execution of conveyances to make them valid or to entitle them to record, but such statutes, while of great practical importance, relate to a part only of the convey- ance. 1 Ante, § 16. »» See post, § 30. (18) § 19 THE DEED. 19 What a deed is, therefore, is generally to be deter- mined by the rules of the common law. While it is desirable when possible to define legal terms, it is by no means easy to define a deed — to state concisely its essential characteristics so that the statement shall be both properly inclusive and exclusive. Washburn says : "A deed' is defined to be a writing containing a contract sealed and delivered by the party thereto." 2 This and most modern definitions appear to be based on Coke's definition: "A deed signifieth in the common law an instrument consisting of three things, viz.: writing, sealing and delivery comprehending a bargain between party and party." 20 Coke also enumerates the ten requisites of a deed as follows: (1) a writing; (2) in parchment or paper; (3) a person able to contract ; (4) by a sufficient name; (5) a person able to be contracted with ; (6 ) by a sufficient name; (7) a thing to be contracted for; (8) apt words required by law ; (9) sealing ; (10) delivery. One of the noticeable points in the foregoing and simi- lar definitions is the prominence given to "contract" and "bargain." But as pointed out in an interesting English decision, 3 where the question was as to whether there had been a "felonious forging of a deed," the alleged deed being "letters of orders" by a bishop, under his seal, the term is clearly not confined to contracts. There may be a valid conveyance by deed of lands to an infant who cannot con- tract. Such definitions and descriptions as the following, which are often seen, are, strictly speaking, incomplete and inaccurate : "A writing under seal by which lands, tenements, or 2 Real Prop., Ill, 6th ed., § 2086. 2 "Co. Lit., 171b. * Reg. v. Morton, 28 L. T. R. (N. S.) 452; 12 Cox C. C. 456. 20 THE LAW OF CONVEYANCING.. § 19 hereditaments are conveyed for an estate not less than a freehold" — (lands are not conveyed by the writing — the writing is not a deed till delivered) ; " deed includes all Varieties of sealed instruments" — (a magistrate's warrant or a will may be sealed instruments, but they are not deeds). It seems difficult to improve on the following defini- tion: "A deed is a writing sealed and delivered ; or, to speak more particularly, it is a writing done on paper or parch- ment, testifying to the performance, by some person named therein, of some act in the law (such as the con- veyance of property or the making of a contract), authen- ticated by the seal of the person to be bound thereby, and delivered to the person intended to benefit thereun- der." 4 The prominent features of the deed are : — (a) Writing testifying to the performance of some act in the law : i. e., the instrument must be wholly written before delivery — must not be incomplete, with blanks left to be afterward filled in; 5 the writing — set forth with certainty — testifies to some act intended to affect the party's position in the law. (b ) Seal : Of vital importance at common law — and it will appear later that the doctrines associated with the seal are not easily disposed of by modern statutes "abol- ishing" seals. (c) Delivery : Always important and without which the most complete and formal writing is not a deed — fac- tum, a thing done ; no title passes without it, and whether there has been delivery is a constantly recurring ques- tion. 6 In its broad signification, "deed" applies, of course, to many instruments in the law besides "conveyances." 4 Ency. Laws Eng. IV, p. 171. 6 Shep. Touch., p. 54. 6 See post, ch. XIX. § 20 THE DEED. 21 We shall deal, however, with deeds of conveyance, and in using the term deed, it will be generally used in its popular sense as the formal instrument prepared, but not necessarily delivered. § 20. Kinds of deeds — At common law — Under the Statute of Uses. — According to English law as it existed when this country was settled there were several different kinds of deeds, each having its appropriate use and effect. The general rules relating to them were introduced here with other parts of the law, and while many of the old rules are obsolete, it is still necessary at times to recur to them to appreciate the effect of modern conveyances or to understand modern statutes and decisions. At present it may suffice to simply classify and enu- merate them. The so-called common law deeds were : The original or primary deeds (i. e., deeds creating estates); feoffment, creating a fee simple; gift, creating a fee tail; grant, creating an estate in incorporeal real property; lease, creating an estate less than that of grantor; exchange, creating mutual estates in consider- ation of each other; partition, creating estates in sev- eralty out of estates in joint tenancy or in common; and the derivative or secondary deeds (i. e., deeds modi- fying estates already created) : release, conveying to present particular tenant the estate in remainder or re- version; surrender, conveying to remainderman or rever- sioner the present particular estate; confirmation, render- ing a voidable estate sure and unavoidable; assignment, transferring the whole of an existing estate; defeasance, declaring conditions upon which an accompanying deed is to be defeated. 7 Besides these common law deeds there were certain deeds which derived their force and effect as legal convey- 'The foregoing discussed 2 Bl. Comm., pp. 310-327. 22 THE LAW OF CONVEYANCING. § 21 ances from the Statute of Uses. These were: bargain and sale, covenant to stand seised to uses, and lease and re- lease; the last, being really composed of two instruments, is sometimes not classed as a deed by itself ; but, as the lease was made in order that a release might immediately afterward be made, and as the purpose of the whole transaction was to convey, it is called by most authorities "conveyance by lease and release." 8 § 21. Kinds — Indenture — Deed poll. — A further classi- fication arises from a difference in the number of the par- ties executing the deed. An indenture is or purports to be a deed between two or more parties ; a deed poll is or purports to be the deed of one party. Indentures were formerly in at least two parts written on the same parchment and afterward separated by cut- ting in an indented line; often before the parchment was cut a word was written along the line of division : the parts were called counterpanes or counterparts, and when put together made the deed ; they were at one time inter- changeably executed, the one part by one party and the other by the other party and exchanged ; then the prac- tice grew up of having each part executed by all the par- ties, making them "duplicate originals"; where each part was not executed by all parties, that part executed by the party from whom the estate moved was sometimes called the original and that executed by the party accept- ing the estate was called the counterpart. 9 American in- dentures were formerly actually indented as sold by the stationer, but the practice became obsolete. In 1845 it was enacted in England that a deed purporting to be an indenture need not be actually indented. 10 8 2 Bl. Comm. 338— and Appendix for form of lease and release. See ante, § 13. 9 Atherstone v. Bostock, 2 Man. & Gr. 511, 518, note; 40 Eng. C, L. Eep. 722, note. 10 8 & 9 Vict., ch. 106. § 22 THE DEED. 23 Deeds poll were so called because they were formerly polled or cut even and hot indented. § 22. Indenture — Deed poll — Forms. — Because these deeds were executed, the one kind by the several parties to it, and the other kind by but one, there was naturally a difference in form, and this difference is still main- tained, though the method of execution of the two kinds may not always differ. The indenture commences as follows : This Indenture, made the — day of , in the year one thousand, etc., , between A B, of (town, county and state), party of the first part, and X Y, of , party of the second part, witnesseth, that, etc. The "testimonium clause" and the end of the instru- ment will vary with the circumstances, thus : In witness whereof, to one part of these presents, re- maining with the said party of the first part, the said party of the second part has, on the day first above written, affixed his hand and seal ; and to the other part thereof, remaining with the said party of the second part, the said party of the first part has on the said day affixed his hand and seal. < ° r ' In witness whereof, the parties hereto have hereunto interchangeably set their hands and seals, the day and year first above written. Or, In witness whereof, the said party of the first part has hereunto set his hand and seal the day and year first above written. As the form of indenture is very commonly used for a variety of written instruments besides deeds — e. g., mortgages of real and personal property, leases, agree- ments, etc. — and as it is the appropriate form where there are several parties who reciprocally bind themselves (and there are often more than two), it may be noted that it is convenient in practice to state immediately after the first 24 THE LAW OF CONVEYANCING. § 22 introduction of the name of the party, the character or ca- pacity in which he acts, or some other brief description of him, and thereafter refer to him by that description throughout the instrument, rather than to refer to him as "party of first part," etc., or to repeat his name each time (in instruments to which corporations or partnerships are parties the names are long). For example : This Indenture made, etc., between A, B and C, co- partners doing business under the firm name of , etc., hereinafter called "the mortgagors" (or vendors, lessors, etc., as the case may be), parties of the first part; the M N Mfg. Co., hereinafter called "the Company," party of the second part, and X Y, hereinafter called "the trustee," party of the third part, etc. 11 The formal commencement of the deed poll is: Know all men by these presents, that I, A B, of, etc.; Or (more rarely), To all to whom these presents shall come: I, A B, of, etc., send greeting: Know ye that I, etc. The English practice is to vary the formal commence- ment of a deed poll according as the deed does or does not contain "recitals" at its beginning, using the second form above given when the deed contains recitals; and this is also the approved practice in this country; e. g., a deed by an executor, selling by order of court, should recite his authority and also that he gave notice, etc., as fol- lows: To all to whom these presents shall come: • I, A B, of -, executor of the last will and testament of X Y, late of , send greeting: Whereas, by an order (reciting briefly the date of the court's order and the fact that A B was licensed to sell the land) and, Whereas, I, the said A B, have given due notice by (reciting how the notice was given and the giving of a bond and the taking of an oath, etc.). 11 See Jones Forms, 5th ed., pp. 346, 560; Birdseye's Abbott, p. 676. § 23 THE DEED. 25 Now, therefore, know ye that I, said A B, by virtue of the power and authority in me vested ( then stating that he conveys, etc.). The testimonium clause of the deed poll is: In witness whereof I, the said , have hereunto set my hand and seal this — day of . Or, frequently: Signed (and sealed, if so) , this — day of , A. D., 19 — (the date being in either case first mentioned at the conclusion of the instrument). § 23. Indenture — Deed poll — Other differences in form. — In indentures the parties are generally referred to in the third person — in deeds poll the party is referred to in the first person; this is, of course, not an essential differ- ence in form ; but the reference in the same instrument in one place to a party in the first person and in another place to him in the third person should be avoided as an awkward and somewhat misleading combination ; e. g., see the form of deed given in Appendix to Missouri Stat- utes : 12 "Know all men by these presents, that I, John Smith, of, etc., ... do grant, etc., unto John Jones the fol- lowing (describing the land) . . .1, the said John Smith, hereby covenanting to and with the said John Jones, his heirs and assigns, for himself, his heirs, etc., to warrant and defend the title, etc." (John Smith means to say: "I, the said John Smith, hereby covenant- ing .... for myself, my heirs," etc.) So the combination, sometimes seen in printed forms, in one instrument of parts of an indenture with parts of a deed poll is, to say the least, clumsy. Instruments in the form of the indenture are more common in the United States than are those in the form of the deed poll. In some of the older states the deed poll is more usual "Vol. I, App.,No. 99. 26 THE LAW OF CONVEYANCING. § 24 than the indenture, but both forms seem to be used in almost every state. Where the instrument is not merely a grant or convey- ance, but contains stipulations binding both parties, the indenture is the more appropriate form — as in the case of leases, trust mortgages where the trustee agrees to certain things, etc., 13 while where the instrument is simply a grant or conveyance — as in the case of the usual "power of attorney" — the deed poll is better. § 24. Indenture — Deed poll — Difference in effect. — It is often broadly stated that there is now no difference what- ever in effect between an indenture and a deed poll, but it is believed that this statement is not strictly accurate. (a) Effect on construction: It is a general rule of construction in the case of private grants that if the mean- ing of the words be doubtful they shall be construed most strongly against the grantor. This rule is sometimes held to apply with most force to deeds poll, where the words of the deed are considered as solely the words of the grant- or, 14 while in an indenture actually executed by both par- ties the words may be taken either as the words of both, or, if there .are stipulations proceeding from either party, doubtful terms are to be construed most strongly against the party who may be properly held to make use of the terms. 15 (b) Remedy against grantee : Though a deed in form an indenture is seldom executed by the grantee, he is nevertheless, when he accepts it, bound by its terms; and, though it has been executed by the grantor alone, it has been held in some cases that it is the grantee's deed also; as if executed by him, and more strongly binding on him than a deed poll would have been; for example, in a case 16 "And see post, § 225. "Beeson v. Patterson, 36 Pa. St. 24. "Beckwith v. Howard, 6 E. I. 8. 16 Finley v. Simpson, 22 N. J. L. 311. See briefs in this case. § 24 THE DEED. 27 where the question was whether the grantee could be held in an action of covenant brought by the grantor upon the agreement contained in a deed, called an indenture, that he should pay a mortgage on the premises conveyed, though he had not executed the deed; and it was held that such & deed accepted by the grantee is the deed of both parties, and the grantee is bound by the covenants contained in it on his part, and may be held in an action of covenant. 1 ' And the difference between the two forms of deeds is noticed in a case 18 where the defendant was sought to be held in an action of covenant on a similar clause in a deed in which he was grantee ; his defense was that the action should have been assumpsit, which was barred by the statute of limitations, while covenant was not barred; the court refers to the fact that the deed purports to be an indenture — a mutual deed of both, and for the purpose of the remedy should be so regarded. In Poe v. Dixon, 19 where an action was brought by the grantor against the grantee on a similar clause in a deed poll, the bar of the statute of limitations was successfully interposed, as it was considered that the defendant had made no agreement or promise in writing nor by spe- cialty. 20 " In Harrison v. Vreeland, 38 N. J. L. 366, the doctrine of Finley v. Simpson was restricted to the case of an indenture, and held not to ap- ply to a deed poll. And see Woodruff v. Woodruff, 44 N. J. Eq. 349 ; 16 Atl. 4. 18 Bowen v. Beck, 94 N. Y. 86. 19 1899, 60 Ohio St. 124 ; 54 N. E. 86 ; 71 Am. St. E. 713. 80 See further as to the remedy in such cases : Locke v. Homer, 131 Mass. 93, 102; Eockford E. Co. v. Beckemeier, 72 111. 267; Baldwin v. Emery, 1897, 89 Maine 496; 36 Atl. 991; and note to Hickey v. L. S. &c. E. Co., 1894, 51 Ohio St. 40; 36 N. E. 672; 23 L. E. A. 396. The form in which the, assumption by a grantee of payment of a mortgage on the conveyed lands is expressed will be discussed later. Post, § 65. Many courts have held that by accepting any deed the grantee is bound by stipulations in the deed intended to bind him, and in many reported cases nothing is said as to the form of the deed — whether it is an in- denture or deed poll. 28 THE LAW OF CONVEYANCING. § 25 § 25. Modern tendency to shorten deeds. — It is clear that in early times deeds of conveyance, when used either because they were required or because they were conve- nient, were simple and brief. And the modern tendency is to return to such simplicity and brevity. However, from the first part of the seventeenth century till well into the nineteenth the common mode of conveying land in England was by the " lease and release," which in- volved the making of two long deeds. 21 Moreover, these increased very much in length, partly because of the greater complication of interests to be dealt with and new precau- tions invented to meet new difficulties, and partly because, until recently in England, the pernicious practice pre- vailed of rewarding professional skill in proportion to the number of words written. From 1833 until almost the present time many acts of parliament have tended to simplify the forms of deeds in England, and now in ordi- nary cases the use there of a comparatively few words pre- scribed by statute will incorporate in a deed the old clauses which were before inserted at full length. In this country statutes have been enacted in many states 21 * expressly providing short forms of conveyances. While these forms appear to be growing in favor and are much used in some states, they are ignored in others, even where there are statutes authorizing them. Irrespective of statute, very informal and brief docu- ments have often been sustained by the courts as deeds. What is often called "Kent's Deed" is as follows : "I, A B, in consideration of one dollar to me paid by C D, do bargain and sell (or in New York, grant) to C D and his heirs (in New York, Virginia, etc., the words and his heirs may be omitted) the lot of land (describe it). Witness my hand and seal," etc. 22 And an instrument quite as short as, and even more " Ante, §§ 13, 20. "» Post, § 30. 22 See 4 Kent Oomm. 460. § 26 THE DEED. 29 informal than, this has been considered as having all the requisites of a conveyance in fee simple, namely : " For value received, I bargain and sell unto A 0, my whole right of improvement made by J B, and all the land as far as T M's claim interferes with my claim. Given under my hand and seal, this 7th day, etc." Test (two witnesses). Signed and sealed. 23 Many modern decisions may be found sustaining as deeds almost equally simple instruments. See, for ex- ample, Evenson v. Webster, 24 where an informal instru- ment, called by the draftsman "a will," was held to be a deed — upon principles to be stated presently. 24 " And the well-settled general rule is that courts will give effect if possible to an instrument as a deed of conveyance when it is clearly the intention to convey, regardless of the form of the instrument. Nevertheless, it is not always possible to give such effect to an instrument even much more formal in general appearance than those set out in the cases just cited. The reasons why many instruments, evidently intended as deeds of conveyance, have been ineffectual will become clear as the parts of the deed are considered in detail. § 26. Reasons for considering settled forms. — Coke, after stating that deeds may be good though informal, proceeds: "And yet no well-advised man will trust to such deeds which the law by construction maketh good, ut res magis valeat; but when forme and substance con- curre, then is the deede faire and absolutely good." 25 The fact that peculiarly informal writings have been held to be deeds only after prolonged and expensive liti- gation, and the fact that the statutes just mentioned — pro- viding short forms — not only permit the use of the old forms, but in declaring the effect of the forms provided "Chiles v. Conley's Heirs, 2 Dana (Ky.) 21. "1892, 3 S. Dak. 382; 44 Am. St. E. 802. ""Post, §29. s5 Co. Litt. 7a. 30 THE LAW OF CONVEYANCING. § 27 by them, refer to the principles which gave rise to the former, induce many lawyers to agree with Coke that it is not well to depart from well settled forms. Morever, the circumstances attending the conveyance of interests in real estate often require that the deed shall be something more than a mere conveyance of a definite piece of land from the present owner in fee to another per- son in fee. The estate or interest conveyed may be in- tended to be qualified or restricted in various ways; the land may be subject to various kinds of incumbrances, regarding which stipulations of one kind or another may be desired; there may be exceptions to be made from the land granted; rights may be intended to be reserved in it; conditions may be attached to its use; covenants, gen- eral or special, as to its condition or character may be desired, etc. So that a simple or short form will often be found not so well adapted for use as one more prolix. § 27. The deed conveys a present interest — To be dis- tinguished from other instruments. — Whatever be its form the characteristic effect of a proper deed of convey- ance (i. e., a written instrument executed with the formal- ities required by lex situs and delivered) is that it con- veys a present legal interest. When customary forms are disregarded in drawing a deed, or peculiar provisions are inserted in it, it is apt to be confounded with other instruments from which it is essentially distinct. There are two general classes of instruments especially to be noted, with one or the other of which the deed may be so confounded in particular cases, namely: (a) Contracts to convey. (b) Instruments testamentary in character. § 28. Deeds distinguished from contracts to convey. — It is not easy to determine in all cases whether an instru- § 29 THE DEED. 31 ment purporting to transfer an interest in realty is a deed of conveyance or simply an agreement for a deed. In such cases its operation and effect as to whether it is the one or the other depends, not necessarily on particu- lar words and phrases, but on the intention of the parties to be gathered from the whole instrument, read, if need be, in the light of the circumstances of the transaction. Though the instrument may contain words of convey- ance, yet if it be clear that the parties contemplate the execution of a fur-ther conveyance, such an instrument is not a deed of conveyance. 26 In Williams v. Paine 27 there is a clause in an instru- ment, in general form a conveyance, made by an attorney under a letter of attorney, as follows: "And I (attorney) hereby further agree in behalf of (principals) that they will as soon as convenient make and execute a proper deed of conveyance of said premises to said (grantee) in fee simple,'' as to the effect of which clause there was a difference of opinion among the justices, some regarding the instrument as only an agreement to convey, and not a deed of conveyance, the majority, how- ever, being of opinion that it was a conveyance of the legal title, though defectively executed as the attorney's deed rather than that of his principals. § 29. Deeds distinguished from instruments testamen- tary in character. — Sometimes instruments in the general form of deeds will be construed to be wills, and those in appearance wills will be construed to be deeds. Writings in the form of absolute deeds often contain a provision that they are not to take effect until at or after the death of the "grantor"; for example, such provisions are : — 86 Phillips v. Swank, 120 Pa. St. 76; 13 Atl. 712; 6 Am. St. R. 691; Mineral Co. v. James, 1899, 97 Va. 403 ; 34 S. E. 37. " 1898, 169 U. S. 55, 76. 32 THE LAW OF CONVEYANCING. § 29 "This indenture made, etc., between, etc. (only to take effect at the death of the grantor) , witnesseth, etc.;" 28 Or, "This deed is to take effect and be in full force on and after the death of this grantor;" 29 Or, "To have and to hold the above described premises to the said B W, of the second part, his heirs and as- signs, to be his at my death and the death of my wife." 30 The question in such cases is whether the writing is a deed of conveyance, or is, in effect, a will. And the distinc- tion is important. If a deed, the interest of the grantee can- not be defeated by the grantor after the execution and de- livery of the instrument — if a will, it is revocable by the maker at any time before his death. Moreover, in many states (e. g., California, Colorado, Illinois, Indiana, Iowa, Kansas and Missouri), no wit- nesses are necessary to a deed, but, generally speaking, two witnesses at least are necessary to a will. Hence, if an instrument in general form a deed, and without wit- nesses be held to be really testamentary in character, the result is, in such states, that the instrument is wholly in- operative — it cannot operate as a deed because testamen- tary in character, nor as a will because it lacks the wit- nesses necessary to a will. In states where this result would follow, if unwitnessed instruments containing such clauses as those just quoted were held to be testamentary in character, and hence not deeds, the courts are apt to sustain the instrument as a deed, if possible, rather than have it entirely fail. 31 28 Harshbarger v. Carroll, 1896, 163 111.636; 45 N. E. 565; Bowler v. Bowler, 1898, 176 111. 541; 52 N. E. 437; Murphy v. Gabbert, 1902, 166 Mo. 596; 66 S. W. 536; 89 Am. St. E. 733. 29 Kelley v. Shimer, 1899, 152 Ind. 290; 53 N. E. 238; Pinkham v. Pinkham, 1898, 55 Neb. 729; 76 N. W. 411. 30 Wynn v. Wynn, 1900, 112 Ga. 214 ; 37 S. E. 378. 31 Love v. Blauw, 1900, 61 Kan. 496; 59Pac. 1059; 78 Am. St. K. 334; 48 L. E. A. 257; Saunders v. Saunders, 1901, 115 Iowa 275; 88 N. W. 329. See. West v. Wright, 1902, 115 Ga. 277; 41 S. E. 602. § 29 THE DEED. 33 The decisions involving these points are numerous, and in some respects conflicting. 32 The general rule appears to be that if a present vested right to property then owned by the maker of the writing passes to the person named as grantee, the instrument is a deed, if properly executed and delivered, and the mere fact that the enjoyment, in possession is postponed does not make it a will. On the other hand, if the instrument passes no present interest or right, but requires the death of the maker before either interest or enjoyment arises, it is a will, if executed as such. Therefore, if the writing passes a present interest it may be held to be a deed (if properly executed, etc.), even though called by the maker a will, 33 while if it passes no present interest (because, e. g., the maker has none to pass) , it cannot .operate as a deed, though having the general form of one, but may operate as a will (if properly executed as a will) . si And a document in general form a warranty deed may be admitted to probate as a will and take effect as a will, if properly executed, especially when not delivered as a deed, 35 while, on the other hand, an instrument in which are used some of the terms appropriate to a will — as "give, devise and bequeath," instead of the usual opera- tive words of a deed — cannot be probated as a will, if, in reality, a present estate is granted. 36 In many cases of this general character the question of delivery is the vital question, and the principles on which they are decided will be discussed when the subject of de- livery is reached. 36 * *"' See note, 89 Am. St. E. 495. S3 Evenson v. Webster, 1892, 3 S. Dak. 382; 53 N. W. 747; 44 Am. St. B. 803. 84 Crocker v. Smith, 1891, 94 Ala. 295; 10 So. 258; 16 L. E. A. 576. 35 Lautenschlager's Estate, 1890, 80 Mich. 285; 45 N. W. 147. 36 Ward v. Ward, 1898, 104 Ky. 857 ; 48 S. W. 411 ; Goad v. Lawrence that equity will not enforce it as a covenant, for two reasons: first, be- 14— Brews. Con. 210 THE LAW OF CONVEYANCING. § 178 While technical words are not essential to create a con- dition, and while they will not, when used, always be held to create one, it is well recognized that certain terms are more apt to create a condition than are others. The most appropriate words used for this purpose are such phrases as "on condition," "provided always," or similar expressions which indicate that in a certain event pre- scribed the estate becomes defeasible by entry of the grantor or his heirs (or an equivalent act), but that until entry the estate is to continue. § 178. The place for the condition. — The appropriate place for the use of these words is just after the habendum, or as a part of it. In this place they qualify the grant, controlling, but not contradicting, the more general words used in the premises. If the words of condition are found in any other part of the deed, as, for example, among the covenants, or, as is often the case, in the premises, as a part of the statement of consideration, their unusual and inappropriate position may have an influence on the in- terpretation of the deed. For example, where the words claimed to be a condition subsequent were placed after the usual covenants, and were to the effect that the grantees should not use the premises for any noxious or offensive business, nor use the said premises for any other purpose than as an orna- mental park, the court decided that the clause was a promissory covenant, not for the benefit of the grantor and his heirs, but for the benefit of those to whom ease- ments had previously been granted ; and mentions the fact that the provision in question is not placed where conditions are usually found in deeds, but follows the covenants for title, saying : " While this is by no means cause it is a condition subsequent, and, second, because equity cannot supervise the construction and maintenance of the depot and the oper- ation of the railroad. See Ritchie v. Railroad, 1895, 55 Kan. 36; 39 Pac. 718; Mills v. Railroad, 1895, 10 Wash. 520; 39 Pac. 246. § 179 CONDITIONS. 211 controlling, it has a significance not to be overlooked, as the instrument was evidently drawn by a skilful convey- ancer, who was well acquainted with both forms and technical terms in common use by experienced draughts- men of deeds. The absence of technical language appro- priate, although not essential to create a condition, is also significant." 26 Where the short form statutory deed is used, in which there is no habendum clause, about the only place in the usual printed form for the insertion of a condition is just after the description, and this appears to be the place where the condition is inserted when this form of deed is used. 27 § 179. The re-entry clause. — To make the condition clearer and more unmistakable, a clause providing for a re-entry by the grantor or his heirs, or for forfeiture of the estate on breach of the condition, should be added. The presence or absence of a clause of this kind has an important bearing upon the question whether the recital constitutes a condition or a covenant. For example, in Post v. Weil, 28 one having agreed to purchase land refused to complete the purchase and ac- cept a deed, on the ground that by the provision of a for- mer deed, through which the present vendor derived title, the property was subject to the operation of a condition subsequent. This action was brought to compel the spe- cific performance of his contract to purchase the land. The clause in question was in the habendum clause, as follows: "Provided always, and these presents are upon this express condition, that the said premises shall not, nor shall any part thereof, or any building or buildings thereon erected or to be erected, be hereafter used or occu- pied as a tavern or public house of any kind." The court, 26 Graves v. Deterling, 1890, 120 N. Y. 447; 24 N. E. 655. "Preston v. Bosworth, 1899, 153 Ind. 458; 55 N. E. 224. 28 1889, 115 N. Y. 361 ; 22 N. E. 145 ; 12 Am. St. R. 809 ; 5 L. R. A. 422. 212 THE LAW OF CONVEYANCING. § 179 in deciding that this was not a condition subsequent, no- tices that there is no clause in the deed giving the right to re-enter for condition broken, and says (p. 371): "While the presence of such a clause is not essential to the creation of a condition subsequent, by which an estate may be defeated at the exercise of an election by the grantor, or his heirs, to re-enter, yet its absence to that extent frees still more the case from the difficulty of giv- ing a more benignant construction to the proviso clause. The presence of a re-entry clause might make certain that which, in its absence, is left open to construction." 29 And there are many other recent decisions in which the presence or absence of a provision for re-entry or for for- feiture has been considered important in determining whether the clause is or is not a true condition. 30 But while such an express provision will generally be held to clearly make that a condition which might otherwise be regarded as a covenant, a condition may be created with- out such a provision; thus the following clause in the habendum is held a condition subsequent: "Subject, nevertheless, to the condition that no spirituous or other intoxicating drinks shall be sold on the premises." 31 29 In the opinion of the majority of the supreme court of Massachu- setts this case shows "considerable astuteness in the direction of modi- fying the severity of the language of conditions," but the minority opinion cites it with approval. Clapp v. Wilder, 1900, 176 Mass. 332, 335, 345; 57 N. E. 692; 50 L. R. A. 120. s0 Elyton Land Co. v. Railroad, 1893, 100 Ala. 396, 406; 14 So. 207; Scovill v. McMahon, 1892, 62 Conn. 378; 26 Atl. 479; 36 Am. St. R. 350 ; Brewery Co. v. Primas, 1896, 163 111. 652, 658 ; 45 N. E. 145 ; McAnaw v. Tiffin, 1897,143 Mo. 667, 677; 45 S. W. 656; Bragdon v. Blaisdell, 1898, 91 Me. 326, 328; 39 Atl. 1036; Greene v. O'Connor, 1892, 18 R. I. 56, 59; 25 Atl. 692; 19 L. R. A. 262; Palmer v. Ryan, 1891, 63 Vt. 227; 22 Atl. 574; Mahoning Co. v. Young, 1893, 16 U. S. App. 253, 269; Hartung v. Witte, 59 Wis. 285, 293 ; 18 N. W. 275 ; King v. N. & W. Ry. Co., 1901, 99 Va. 625; 39 S. E. 701. 81 Lehigh Coal Co. v. Early, 1894, 162 Pa. St. 338; 29 Atl. 736, and see Papst v. Hamilton, 1901, 133 Cal. 631; 66 Pac. 10; Langley v. Chapin, 134 Mass. 82; Clapp v. Wilder, 1900, 176 Mass. 332; 57 N. E. 692; 50 L. R. A. 120. § 180 CONDITIONS. 213 § 180. Particular classes of cases — Conveyances for specified purposes. — In conveyances there is frequently a clause reciting the use that is to be made by the grantee of the land conveyed, and the question has been often raised whether such conveyances create estates upon con- dition, conferring upon the grantor or his heirs a right of entry upon the grantee's ceasing to use the property for the purpose specified. The grant may be without technical words importing a condition, as, for example, to a city of land — "To have and to hold to the city and its successors as and for a street and to be kept as a public highway," 32 or the terms of the grant may more clearly import a condition, as where land was conveyed to a city, " On condition that it shall be forever kept open and used as a public highway, and for no other purpose," 33 and yet be held — as it was held in each of these cases — not to create a condition sub- sequent working a forfeiture in case the use named is not maintained. Technical words, therefore, do not absolutely control in such cases, and yet, as the aim of the courts is to give ef- fect to the intention of the parties, and as one of the means of discovering this intention is the language used, there may be instances in this class of cases — as in cithers — where the intention is so clearly expressed that there is no doubt as to the creation of a condition subsequent and no need for applying rules of construction. For example, the following language after the descrip- tion in a conveyance to a city creates a condition subse- quent : "Said land is to be used by said city for the pur- pose of building a city hall thereon, and this conveyance is made upon the express condition that in case the said plot of ground above described shall ever cease to be used 32 Kilpatrick v. Baltimore, 1895, 81 Md. 179; 31 Atl. 805; 48 Am. St. R. 509. 33 Greene v. O'Connor, 1892, 18 R. I. 56; 25 Atl. 692; 19 L. R. A. 262. 214 THE LAW OP CONVEYANCING. § 181 by said city for a city hall, or other similar city build- ings, then and in that case the said plot of land shall re- vert back to the parties hereto of the first part as if this conveyance had not been made." u In this class of cases, while the intention of the grantor may generally be clearly seen to be that the property should be used for the designated purpose only, neverthe- less, unless he also clearly indicates his intention that the whole estate shall be forfeited and revert to him when such use ceases, the seeming condition will be likely to be construed rather as showing his intention to impose a trust in the grantee than as indicating his intention to create a condition. 35 § 181. Effect in such cases of consideration and nature of purpose. — Yet the language alone in such cases will not always control, for this language must be read in connec- tion with the circumstances of each case. Among the circumstances very generally considered as of importance in the decision of cases of this character are the nature of the purpose or use named, and the fact whether the conveyance was made for a full and substan- tial consideration paid to the grantor, or was made for a nominal consideration, or none. If one should purchase land, paying for it its full value, and the conveyance to him should recite that he was to use it for residence purposes, this alone would not indicate an intention that he should forfeit his estate by ceasing to use the land for the purposes recited. If, however, one owning much land in a new town should convey part of "Trustees of Union College v. New York, 1903, 173 N. Y. 38; 65 N. E. 853. 85 Rawson v. School Dist., 7 Allen 129; 83 Am. D. 670; Village o! Ashland v. Greiner, 1898, 58 Ohio St. 67; 50 N. E. 99; Carroll Co. Academy v. Gallatin Academy Co., 1898, 104 Ky. 621 ; 47 S. W. 617 ; Mahoning County v. Young, 1893, 16 II. S. App. 253, 268, 269. § 181 CONDITIONS. 215 it without consideration to a railroad company for depot purposes, in the belief that the erection and maintenance of a depot would increase the value of his remaining land, it would be contrary to the intention of the grantor, as well as inequitable, if the grantee should dispose of the land or neglect to put it to the use specified; and, even if the language used in the conveyance did not technically express a condition subsequent, these circumstances might properly be considered in giving effect to it as such. 36 Therefore, the presence or absence of a consideration is often regarded in determining the effect of such clauses, and if the grantor has received a substantial consideration for his land this fact will be taken into account in con- struing the alleged conditional clause, when he seeks to recover the land, and the clause will be more strictly con- strued against him than if the conveyance had been merely voluntary or on a nominal consideration. 37 But the presence or absence of the consideration is, at the most, simply one of the facts to be regarded in arriv- ing at the intention of the parties, and other facts may make this fact of little importance in particular cases. Among these other facts is that of the nature or charac- ter of the purpose specified in the conveyance. If this purpose is in its nature general and public, and not such as will enure specially to the benefit of the- grantor, the absence of a consideration seems of little importance in itself as indicating an intention to create si condition subsequent. 38 86 Homer v. C. M. & St. P. Ry. Co., 38 Wis. 165 ; Indianapolis P. &c. Ey. Co. v. Hood, 66 Ind. 580. But see Gray v. C. M. & St. P. Ry. Co., 1901, 189 111. 400; 59 N. E. 950, holding that the consideration for such a conveyance may not be inquired into in an ejectment suit brought by the grantor. "Ecroyd v. Coggeshall, 1898, 21 R. I. 1; 41 Atl. 260; 79 Am. St. R. 741; Faith v. Bowles, 1897, 86 Md. 13, 16; 37 Atl. 711; 63 Am. St. R. 489; Village of Ashland v. Greiner, 1898, 58 Ohio St. 67; 50 N. E. 99; Neely v. Hoskins, 1892, 84 Maine 386, 394; 24 Atl. 882. !8 Rawsonv. School District, 7 Allen 129; 83 Am. D. 670; Farnham 216 THE LAW OF CONVEYANCING. § 182 § 182. Particular classes— Building restrictions— Re- strictions as to use. — Stipulations regarding buildings to be erected may be expressed in tbe form of conditions and will have the effect of conditions; thus this clause: "Said party of second part hereby covenants with said party of the first part under penalty of forfeiture of the estate here- by conveyed, that previous to [ date ] he shall erect on said lot a substantial dwelling house," was held a condition subsequent. 39 But such stipulations and "building re- strictions" in general, are more often regarded as cove- nants, especially when they are drawn, as most of them seem to be, without provision for forfeiture and re-entry. So stipulations restricting to some extent the use of the land, or prohibiting its use for certain purposes, may, as many of the foregoing cases show, be drawn and con- strued as conditions ;*° but these also are, it seems, more frequently covenants, 41 and, with building restrictions, will be referred to later. 42 § 183. Particular classes — Conditions and stipulations for support. — There is an important class of cases in- v. Thompson, 34 Minn. 330; 26 N. W. 9; 57 Am. R. 59; Olcott v. Gabert, 1893, 86 Texas 121 ; 23 S. W. 985 ; Newpoint Lodge v. Newpoint, 1894, 138 Ind. 141; 37 N. E. 650. But in Papst v. Hamilton, 1901, 133 Cal. 631 ; 66 Pac. 10, where the purpose — " erecting and maintaining a collegiate school," etc. — seems not to have been for the grantor's special advantage, but rather public and general, importance appears to have been attached, in holding that there was a condition, to .the fact that the purpose specified was the whole consideration for the con- veyance. 89 O'Brien v. Wagner, 94 Mo. 93; 7 S. W. 19; 4 Am. St. B. 362. And see Langley v. Chapin, 134 Mass. 82; Clapp v. Wilder, 1900, 176 MaBS. 332; 57 N. E. 692; 50 L. E. A. 120; Quatman v. McCray, 1900, 128 Cal. 285 ; 60 Pac. 855. 40 See the recent case of Wakefield v. Van Tassell, 1903, 202 111. 41 ; 66 N. E. 830, in which a condition against using the granted premises for handling grain in elevators is sustained. 41 Brewery Co. v. Primas, 1896, 163 111. 652; 45 N. E. 145. 42 See post, ch. 14. § 183 CONDITIONS. 217 volving the consideration of conveyances made with the expectation on the grantor's part that the grantee will support and maintain him for life or for a definite time. Where land is conveyed subject to a provision for sup- port, the provision may be a condition subsequent, or it may be a covenant on the grantee's part, or it may create a lien on the land enforceable by the grantor; and whether it be one or the other will depend on the inten- tion to be gathered from the language and the circum- stances in which the conveyance is made. In clear cases such a provision must be held a condi- tion, as where a deed is made on the express condition that the grantee shall maintain and support the grantor, with a proper clause that the premises shall revert in case of failure. 43 While in doubtful cases of this character the courts will usually follow the general rule and construe the clause as something else rather than a condition, still it is to be re- membered that the circumstances surrounding convey- ances of this kind are often such as to warrant a construc- tion which will give the grantor a right of re-entry in case of the grantee's non-compliance with the terms of the conveyance. The grantor in such cases is usually aged, the grantee is usually a relative, and often the anticipated support is the only consideration for the transfer; the kind of care and support necessary renders pecuniary damages inade- quate, and the continuing nature of the contract would lead to continuous litigation if the grantee persisted in his neglect. The most practical and equitable redress in such cases is one that will place the parties in their orig- inal positions. Therefore, the general rule of construction — adverse to conditions — will not always be applied as strictly in these cases as in others. 44 "Delongv. Delong, 56 Wis: 514; 14 N. W. 591; Berryman v. Schu- maker, 67 Texas 312; 3 S. W. 46. "Glocke v. Glocke, 1902, 113 Wis. 303; 89 N. W. 118; Goldsmith v. 218 THE LAW OF CONVEYANCING. § 184 § 184. Conditions not created in such cases by infer- ence — Remedy in equity. — However, an intent to create a condition subsequent will not always be inferred merely from the circumstances under which such conveyances are made, in the absence of language susceptible of con- struction as a condition. So if a deed is made merely in consideration of support, or of the payment of certain sums by the grantee periodically, while the grantor may have other remedies, it will generally be held that there is not a condition subsequent. 45 Such cases are recognized as forming a class by them- selves and, though there may be strictly no condition subsequent, if there has been failure of consideration slight evidence of fraud and imposition should, it would seem, induce a court of equity to cancel the conveyance, 46 and the death of the grantee has been held to afford ground for setting it aside; 47 or where the deed will not be canceled, the court may decree a lien on the land for the value of such support. 48 Goldsmith, 1899, 46 W. Va. 426; 33 S. E. 266; Hershman v. Hershman, 63 Ind. 451. 45 Anderson v. Gaines, 1900, 156 Mo. 664, 670; 57 S. W. 726; Lowman v. Crawford, 1901, 99 Va. 688; 40 S. E. 17; Doescher v. Spratt, 1895, 61 Minn. 326; 63 N. W. 736. 46 McClelland v. McClelland, 1898, 176111. 83; 51 N. E. 559; Patter- son v. Patterson, 1891, 81 Iowa 626; 47 N. W. 768. 47 Payette v. Ferrier, 1899, 20 "Wash. 479 ; 55 Pac. 629. 49 Doescher v. Spratt, 1895, 61 Minn. 326; 63 N. W. 736; Childs v. Eue, 1901, 84 Minn. 323; 87 N. W. 918; Patton v. Nixon, 1898, 33 Ore. 159; 52 Pac. 1048. In Knutson v. Bostrak, 1898, 99 Wis. 469; 75 N. W. 156, such a deed is said to be one on condition subsequent which equity will enforce by declaring a forfeiture (p. 483) — though in the later case of Glocke v. Glocke, 1902, 113 Wis. 303 ; 89 N. W. 118, it is ex- plained that this is not strictly accurate, and that a court of equity in such cases "does not lend its jurisdiction to effect a forfeiture," but that the forfeiture having been effected by re-entry of the grantor, or its equivalent, a court of equity will aid him in quieting his title. For equity will not generally enforce forfeitures: Pomeroy, Eq. Jur. I., §§ 459, 460. § 185 CONDITIONS. 219 § 185. Void conditions — Requiring illegal acts — Re- straining marriage. — A condition which requires the per- formance of an act contrary to law or good morals is void. Hence a condition calling for the separation of husband and wife is invalid, 49 as is one calling for the commission of a crime. Upon the question as to how far conditions in restraint of marriage are invalid, there is much conflict. A condition subsequent in absolute restraint of mar- riage will, by what seems to be the general rule, be held void; as will one that unreasonably restrains the marriage of the grantee, as, for instance, by prohibiting marriage before an extreme age, or with a person of the same state as that of the grantee; but a reasonable restraint — as where marriage with a particular person is prohibited, or where the consent of a parent is required, or the marriage is forbidden before the attainment of a suitable age — is valid. 50 Conditions in restraint of second marriages are not con- sidered as within the same reason, and are therefore gen- erally held valid. 61 § 186. Void conditions — Repugnant to estate granted or capricious. — Conditions imposing restraints on the use of the land conveyed have been sometimes claimed in ar- gument to be void as repugnant to the estate granted, 52 but decisions are numerous, as the foregoing citations "Conrad v. Long, 33 Mich. 78; Hawke v. Euyart, 1890, 30 Neb. 149; 46 N. W. 422. 50 See Coppage v. Alexander's Heirs, 2 B. Mon. 313; 38 Am. Dec. 153, note ; Eandall v. Marble, 69 Me. 310 ; 31 Am. E. 281. But a con- dition precedent restraining marriage may prevent the vesting of the estate. Phillips v. Ferguson, 85 Va. 509; 8 S. E. 241; 17 Am. St. E. 78. 51 Herd v. Catron, 1896, 97 Tenn. 662 ; 37 S. W. 551 ; Knight v. Ma- honey, 1890, 152 Mass. 523; 25 N. E. 971. 62 See e. g. Cowell v. Colorado Springs Co., 100 U. S. 55. 220 THE LAW OF CONVEYANCING. § 187 show, sustaining conditions reasonably restricting the use of property. Where, however, after a grant or a devise in fee there is an attempt by condition to impose a general restraint on alienation, such a condition is void as repugnant to the estate limited. 63 So also are conditions which unreasonably restrict the use and enjoyment of the property, as, for instance, in the conveyance "of a house that there shall be no windows in it, or no passage in and out." 54 Conditions imposing restrictions which are of advantage to no one would seem to be void as contrary to public policy and wholly unreasonable; 55 and this principle has been made statu- tory in a few states 56 by enactments providing that when any conditions annexed to a grant are merely nominal and evince no intention of actual and substantial benefit to the party in whose favor they are to be performed, they may be disregarded, and a failure to perform the same shall not operate as a forfeiture of the lands conveyed sub- ject thereto. Where such statutes exist proof will often be necessary to establish the fact whether the expressed condition was or was not beneficial. 57 § 187. General suggestions for drawing and constru- ing conditions. — It appears, therefore, from the authori- ties that it is not difficult to draw a deed so that it will be a conveyance upon condition subsequent, so far, at least, 65 Jones v. Port Huron Engine Co., 1898, 171 111. 502; 49 N. E. 700; Kaufman v. Burgert, 1900, 195 Pa. St. 274; 45 Atl. 725; . 78 Am. St. E. 813 ; Mandlebaum v. McDonnell, 29 Mich. 78. 64 Gray v. Blanchard, 8 Pick. 284, 290. 65 Mitchell v. Leavitt, 30 Conn. 587. 56 Michigan, C. L., 1897, § 8828; Minnesota, Gen. Stat., 1894, §4407; Wisconsin, Stat., 1898, § 2070. 67 Sioux City &c. Ry. v. Singer, 1892, 49 Minn. 301; 51 N. W. 905; Smith v. Barrie, 56 Mich. 314; 22 N. W. 816. § 187 CONDITIONS. 221 as form is concerned. The chief points to be observed are : First. The recital should be in the general form of a condition. Second. It should be in its appropriate place in the deed. Third. There should be a clause of re-entry, or a decla- ration of forfeiture. Fourth. The condition should not require the perform- ance of an act contrary to law or good morals, should not be impossible, and should not be repugnant to the estate granted. The first thing to do in construing such clauses, either for the purpose of ascertaining the remedy for an alleged breach, or in looking into the title to land, is to have be- fore one either the original paper or an exact copy of it. An abstract of a conveyance containing conditional or re- strictive clauses should quote these clauses fully, and should not merely state them according to what seems to the abstracter to be their legal effect. And as the construction to be placed on the clause may depend on other parts of the instrument, a copy of the entire document should in such cases be examined. Further, as we have seen, the use of certain words will not alone control the interpretation, but the attendant cir- cumstances must be regarded, as, for instance, the state of the property, the situation of the parties, and the other provisions of the same instrument. And, moreover, in estimating the force and effect of such conditional clauses, acts and events occurring since the making of the deed containing the clause may be considered, though not directly connected with the orig- inal transaction. For it may appear from these facts that the condition, though in proper legal form, is of no effect on the title, having been inserted in the deed for a dishon- 222 THE LAW OF CONVEYANCING. § 187 est purpose and to obtain a monopoly, 58 or it may so ap- pear that the condition, though valid once, has been waived. 59 58 Chippewa Lumber Co. v. Tremper, 75 Mich. 36; 42 N. W. 532; Jenks v. Pawlowski, 1893, 98 Mich. 110; 56 N. W. 1105. 59 Lehigh Coal Co. v. Early, 1894, 162 Pa. St. 338; 29 Atl. 736; Sco- vill v. McMahon, 1892, 62 Conn. 378; 26 Atl. 479; 36 Am. St. E. 350. CHAPTER XIV. COVENANTS. I. Covenants for Title. § 188. Covenants — Effect, in gen- eral, of the presence or absence of covenants for title. 189. Covenants for title in mort- gages. 190. The usual covenants for title. 191. The form of covenants for title. 192. The designation of parties to be bound — The cove- nantor himself. 193. The covenantor's heirs, ex- ecutors, etc. 194. Grantor's wife joining in her husband's deed — Husband in wife's deed. 195. Mar.ried woman's cove- nants in conveyance of her separate property. 196. Designation of parties — The covenantee, his heirs, etc. 197. The covenantee's "heirs and assigns." 198. The covenants for seisin, and good right to convey. 199. The covenant against in- cumbrances — Form. 200. What are incumbrances? 201. Mortgages, building restric- tions, dower — Incum- brances. 202. Leasehold interests as in- cumbrances. §203. 204. 205. 206. 207. 208. 209. 210. 211. 212. 213. 214. 215. 216. Distinction between incum- brances visibly affecting the physical condition and others. If an incumbrance is to be excepted from the cove- nant, it should be so ex- pressed. The covenant for further assurance. The covenants for quiet en- joyment and of warranty. The covenant of warranty attaches only to the estate conveyed. Effect of describing land as subject to an incum- brance. Eviction necessary to a breach of covenant of warranty. What is eviction — Con- structive eviction. Covenants implied — Com- mon law — Statutory deeds. Effect of such statutes. Whether lex situs or lex loci contractus controls. The running of covenants for title with the land. Conflicting views as to the running of some cove- nants. The "English rule" as to the covenant of seisin running. (223) 224 THE LAW OF CONVEYANCING. §188 §217. 218. 219. 220. 221. The "American rule." The rule as to the covenant against incumbrances. Covenants for quiet enjoy- ment and warranty run with the land. Subsequent grantees by quit claim deeds have the benefit of such covenants as run with the land. "Personal" and "real" as used with reference to covenants for title. II. Covenants Other than Covenants for Title. 222. General features of these covenants. 223. Form — No technical words essential. 224. Form— Effect of " heirs and assigns" or similar words In covenant. §225. 226. 227. 228. 229. 230. 231. 232. The form of the deed in which covenants are — Ef- fect of acceptance by grantee of deed poll con- taining covenants. Distinction sometimes made between benefits and burdens. Restrictive covenants and conditions, as to use of land, buildings, etc. Building restrictions in pursuance of a "general plan." The duration of such re- strictions — Effect of lach- es, waiver, changes in neighborhood. Provisions in effect restrain- ing competition in trade. Covenants in conveyances relating to party walls. Agreements as to party walls without a convey- I. Covenants for Title. § 188. Covenants — Effect, in general, of the presence or absence of covenants for title. — A deed of conveyance is, of course, perfectly valid, and may convey title, with- out covenants of any kind, if otherwise conforming to law. The word "covenant" means, strictly, an agree- ment under seal for the performance or non-performance of certain acts, or that a given state of things does or shall exist, or does not or shall not exist. In its origin a cove- nant has no necessary connection with a conveyance. While a deed of conveyance, therefore, need contain no covenants, it may, on the other hand, contain covenants of various kinds, some intended to bind the grantor and some the grantee. The covenants most often used in conveyances are some or all of the " covenants for title." The general rule is well settled that a purchaser's right § 188 COVENANTS. 225 to relief against his vendor, in case he should suffer loss through a defective title when land has been conveyed to him, depends upon the covenants contained in the con- veyance. If he has not taken the precaution to have covenants for title inserted in the conveyance, he cannot (generally speaking) either recover back the purchase- money paid or keep back that which remains .unpaid, should the title fail ; neither in law nor equity can he have relief, unless the vendor was guilty of fraud, or the ' contract was founded in mistake as to some fact upon which the title depends. 1 The grantee in such cases assumes the risk of the soundness of the title ; he cannot show a parol agreement which will convert a deed with- out covenants into one with them ; and his condition as to the recovery of the purchase-money on failure of title is similar to that of one who has voluntarily given away money. 2 If, however, a purchaser who is entitled to a deed with covenants has accepted one without covenants, supposing that it contains them, the vendor may be com- pelled to execute a deed containing covenants. 3 Whether a conveyance shall or shall not contain cove- nants for title is, therefore, a question of importance to the parties contracting for the sale and purchase of real estate, and the possibility that the title may be defective or incumbered generally has an effect on the purchase price : a purchaser assuming the risk may generally prop- erly expect a reduction in price as an equivalent. A grantor who gives a deed with covenants for title may later prove pecuniarily irresponsible, so that some of the advantages of the covenants may be lost to the grantee, but the possibility of a recovery of damages for their 1 Peters v. Bowman, 98 IT. S. 56; Whittemore v. Farrington, 76 N. Y. 452; Thorkildsen v. Carpenter, 1899, 120 Mich. 419; 79 1ST. W. 636; 6 Detroit Leg. News 196; Gibson v. Eichart, 83 Ind. 313; Porter v. Cook, 1902, 114 Wis. 60; 89 N. W. 823. 8 Gates v. Winslow, 1 Mass. 65. 3 Point Street Iron Works v. Simmons, 11 E. I. 496. 15 — Brews. Con. 226 THE LAW OF CONVEYANCING. § 18& breach is not the only thing that makes covenants for title valuable to the purchaser. A conveyance containing a covenant of warranty will have the effect of transferring a title subsequently acquired by the grantor; though he may not have had the title when he made the conveyance — and sometimes the same effect is given to other cove- nants.* Whereas, when the conveyance merely purports to convey such an estate, title or interest as the grantor has, it cannot have this effect, 5 and in some jurisdictions where, in a cbain of title, there is a series of deeds with general covenants for title, the title is regarded as more sure than where the conveyances are "quit claim" deeds, or deeds with limited or special covenants only, the presence of which has been said to afford some ground for suspicion that there is some defect in the title. 6 § 189. Covenants for title in mortgages. — It is not only in deeds intended to convey the legal title in fee that covenants for title may be important to the grantee, for they may be used in mortgages with practically the same effects ; for example, a warranty of title contained in a mortgage will estop the mortgagor from questioning that, at the date of the mortgage he had title, and if he sub- sequently acquires the paramount title, it will enure to the benefit of the mortgagee and his legal representatives, 7 * Morris v. Jansen, 1894, 99 Mich. 436; 58 N. W. 365; Walton v. Fol- lansbee, 1890, 131 111. 147; 23 N. E. 332; Broadwell v. Phillips, 30 Ohio St. 255. 6 Thompson v. Becker, 1902, 194 111. 119, 123; 62 N. E. 558; People v. Miller, 79 Mich. 93; 44 N. W. 172. 6 Oliver v. Piatt, 3 How. 333, 410; Peters v. Cartier, 1890, 80 Mich. 124, 129; 45 N. W. 73; 20 Am. St. R. 508; Johnson v. Williams, 37 Kan. 179; 14 Pac. 537; 1 Am. St. R. 243. Though, that there is nothing especially significant or suspicious in the use of quit claim deeds, see, Wilhelm v. Wilken, 1896, 149 N. Y. 447, 452; 44 N. E. 82. 'Tefft v. Munson, 57 N. Y. 97; Thalls v. Smith, 1894, 139 Ind. 496; 39 N. E. 154; Caple v. Switzer, 1900, 122 Mich. 636; 81 N. W. 560; 6 Det. Leg. News 892. § 190 COVENANTS. 227 and the "covenant against incumbrances" in a mortgage binds the mortgagor. 8 § 190. The usual covenants for title. — The usual cove- nants for title are six, namely: 1, for seisin; 2, of good right to convey ; 3, against incumbrances ; 4, for quiet enjoyment; 5, for further assurance; 6, of warranty; though some of these are more usual and important than others. The covenants of seisin, against incumbrances and of warranty, are considered the most important, while the covenant for further assurance is, in the United States, the most unusual of the six. A contract for the sale of land stipulating for a deed with "full covenants," would generally not be considered as complied with unless the deed contained all the six covenants, either expressed or implied. 9 Where, however, the contract provides for a deed with the "usual cove- nants," it will not be construed with the same effect in all the states, for in some it is not usual to insert any other covenant than that of general warranty, 10 while in others at least the three named above as the most import- ant are customary. So a contract stipulating for a "warranty deed" will bind the vendor in some states to execute a deed with a general warranty only, while in others such a contract requires a deed with full covenants. 11 If the contract be silent as to the kinds of covenants for title which the grantor should give, the parties will gen- erally be presumed to have contracted with reference to the known custom of the place where the land is situated, 'Security Bank v. Holmes, 1896, 65 Minn. 531; 68 N. W. 113; 60 Am. St. R. 495; Bissell v. Hively, 1900, 123 Mich. 106; 81 N. W.925; 6 Det. Leg. News 920; Butler v. Seward, 10 Allen 466; Lloyd v. Quimby, 5 Ohio St. 262. 9 Murphy v. Lockwood, 21 111. 611, 618. 10 Green v. Irving, 54 Miss. 454. 11 Bethell v. Bethell, 92 Ind. 318. 228 THE LAW OP CONVEYANCING. § 191 for, as the sufficiency of a deed is determined by the lex ret sitae, the contract for a deed seems to be governed by the same principle, and the purchaser is entitled to such a deed as is usual by the custom of the place where the land is. 12 In making land contracts it is best to specify the cove- nants intended to be inserted in the conveyance, to save all question. The covenants for title may be unlimited or general, that is, covenants against the acts of all persons claiming title; or they may be limited or special, that is, covenants against the acts of the covenanter or some other specially designated person or persons. Where they are thus lim- ited they are not broken by the acts of any others than those designated. § 191. The form of covenants for title. — No precise terms or particular forms of words are essential to create a covenant of any kind: all that is necessary is that it shall appear that the intent of the parties was to bind them- selves. Therefore the words "covenant," "promise," etc., are not necessary ; and a clause which at first sight appears to be a "condition subsequent" may be construed to be a covenant. 13 What is true in this respect of covenants generally is true of covenants for title. In Johnson v. Hollensworth, 14 Cooley, J., says : "There is no fixed and essential form for any covenant . . . Each covenant may consti- tute a separate sentence, but they may all be blended in a single sentence as well, and a single promise may embody the substance of several covenants, and thus constitute an undertaking to protect against existing claims or defects, and also to give assurance for the future." The forms in use vary somewhat in the different states; 12 Gault v. Van Zile, 37 Mich. 22. 18 See supra, §§ 176, 177. "48 Mich. 140; 11 N. W. 8 43. § 191 COVENANTS. 229 and even in the same state there are generally several dif- ferent printed blank forms used, expressing the covenants for title in varied terms. In the following form 15 the words in parentheses, if used, will make the covenants special, and their omission will make the covenants general — A B being grantor, and X Y grantee : The said A B doth hereby covenant for himself his heirs, executors, and administrators that (notwithstanding any act matter or thing by him done) he the said A B is now lawfully seised of the said premises and hath good right to convey the same that the same are free from all incumbrances (done, suffered, or committed by him) . And that the said X Y his heirs and assigns shall and may at all times hereafter freely peaceably and quietly enjoy the same without molestation or eviction of him the said A B or any person or persons whomsoever (lawfully claiming or to claim the same by, from, or under him, them or any of them) . And that he the said A B shall at all times here- after at the request and expense of the said X Y his heirs and assigns make and execute such other assurances for the more effectual conveyance of the said premises as shall be by him reasonably required. And that he the said A B and his heirs all and singular the messuages and tene- ments &c. hereby granted and mentioned or intended so to be with the appurtenances unto the said X Y his heirs and assigns against him the said A B and his heirs and against all and every other person or persons lawfully claiming or to claim the same or any part thereof (by, from, or under him, them or any of them) shall and will by these presents warrant and forever defend. The appropriate place for the covenants for title is at,- the end of the deed, just before the testimonium clause,' though where they are expressed in a mortgage they often follow the habendum and immediately precede the con- dition. 15 Substantially that given by Eawle Cov. Tit., p. 29. 230 THE LAW OF CONVEYANCING. § 192 § 192. The designation of the parties to be bound— The covenantor • himself .—The covenantor in this form covenants for "himself." At this point in the ordinary printed blank form there is always a space left for the insertion of the words, "himself, his," "themselves, their," or "herself, her," as the circumstances of the case may require. If, in the filling up of the blank form, the grantor is made to covenant "for his heirs," etc. (not for himself), the effect is, according to some decisions, that — unless the deed is reformed — no one is bound by the covenants dur- ing his lifetime, for the contract is plainly intended to make a charge on the covenantor's estate in the hands of his legal representative after his death. 16 But in Hilmert v. Christian, 17 the court, in a case where the covenant of seisin was expressed as "for his heirs, executors and ad- ministrators," say that they see no "force in the objec- tion that the grantor did not covenant for himself but only for his heirs, etc. It is plain enough upon the face of the instrument that the defendant bound himself by the covenants." And in Smith v. Lloyd, 18 it was consid- ered in such a case, so far at least as the covenant of seisin and that against incumbrances are concerned, which "are broken, if ever broken at all, at the moment when made," that the grantor must be bound unless he could be held to be acting as the agent of his heirs, etc., which could not be pretended. 19 16 Traynor v. Palmer, 86 111. 477 ; Bowne v. Wolcott, 1891, 1 N. D. 497 ; 48 N. W. 426. » 29 Wis. 104. 18 29 Mich. 382, 385. 19 See also, Judd v. Eandall, 36 Minn. 12 ; 29 N. W. 589. While it is true that all contracts should receive a fair, and perhaps even a liberal construction, it is also true that where contracts are clearly expressed in writing, in unambiguous terms, there is no room for "construction," and it is the duty of courts not to make contracts, but to enforce them according to the intent of the parties as shown by the language used. It therefore seems that, especially as to those covenants which relate to the future, the Illinois and North Dakota decisions are to be preferred. § 193 COVENANTS. 231 § 193. The covenantor's heirs, executors, etc. — The grantor usually covenants "for himself, his heirs, execu- tors and administrators." It was necessary at common law, in order to make an heir liable on the covenants of his ancestor : (1) that he he named in the covenant, and (2) that he should have assets by descent sufficient to meet the obligation. At the present time the liability of the heir on his ancestor's covenants depends largely upon the statutes of the different states. These generally provide that the real estate of a deceased person shall be liable for the pay- ment of his debts. Heirs, therefore, generally in the United States, take the land descended to them subject to all debts of their ancestors, but beyond assets received they are not personally liable, 20 and naming them in the covenant will not make them liable to any greater extent. 21 In most states it is probably not necessary for the cove- nantor to name his heirs, for they will be bound, to the extent to which they have received assets, whether or not they are named. 22 Executors and administrators are bound as such, in general, without being named in the covenant. "The executor doth more actually represent the person of the testator than the heir doth the person of the ances- tor, for if a man bindeth himself his executors are bound though they be not named; but so it is not of the heir." 23 The covenantor, by binding himself, binds his estate so far as it is represented by his executors and administra- 20 Outright v. Stanford, 81 111. 240, 244; Massie v. Hiatt, 82 Ky. 314, 320; Bacon v. Thornton, 1897, 16 Utah 138; 51 Pac. 153. 21 See, Einard v. West, 92 Ind. 359. 28 Rohrbaugh v. Hamblin, 1896, 57 Kan. 393, 396; 46 Pac. 705. But in McDonald v. McElroy, 60 Cal. 484, 496, it was held that they were not liable for a breach of the covenant of warranty unless the deceased covenantor covenanted that they should be bound. 23 Co Litt. 209a. 232 THE LAW OP CONVEYANCING. § 194 tors, even though they be not named. 24 If, however, the covenant is one which is to be personally performed by the covenantor, his executors and administrators are not bound. For example, if an author covenants to compose a work and dies before its completion his executors are not liable, for the covenant is personal in its nature, and by his death has become impossible of performance. 25 Unless in such cases there has been a breach of the cove- nant before his death, his estate, represented by his ex- ecutors, etc., is not bound. Covenants for title are not of this particularly personal character, and # there is no distinction as to them between the liability of the execu- tor upon such covenants broken after the testator's death and those broken before his death. 26 § 194. Grantor's wife joining in her husband's deed — Husband in wife's deed. — Where a wife joins in a convey- ance of her husband's lands she is not ordinarily bound by the covenants in the deed even though she is named in them, as she generally is in practice. 27 This is the gen- eral rule in the absence of a statute affecting her liability. Such statutes, however, exist in several states, most of them being comparatively recent, and by virtue of them a wife, if named in the covenants in her husband's deed will be bound, though she need not have been named ( in the covenants ) to make the conveyance valid. 28 And in some states she will be bound, when named in 2 * McCIure v. Gamble, 27 Pa. St. 288. 25 Marvel v. Phillips, 1894, 162 Mass. 401; 38 N. E. 1117. 26 Hovey v. Newton, 11 Pick. 421. "Kitchell v. Mudgett, 37 Mich. 81; Webb v. Holt, 1897, 113 Mich. 338, 341; 71 N. W. 637; 4 Detroit Leg. News 309; Sanford v. Kane, 1890, 133 111. 199; 24 N. E. 414; 23 Am. St. B. 602; Miller v. Miller, 1894, 140 Ind. 174, 178; 39 N. E. 547; Curry v. Mortgage Co., 1894, 107 Ala. 429; 18 So. 328; 54 Am. St. B. 105; Bennett v. Pierce, 1898, 45 W. Va. 654, 657; 31 S. E. 972. 28 Security Bank v. Holmes, 1897, 68 Minn. 538; 71 N. W. 699; Fisher v. Clark, 1898, 8 Kan. App. 483 ; 54 Pac. 511. § 195 COVENANTS. 233 the covenants, if it is also expressly stated that she is to be bound. 29 Where a husband joins in his wife's conveyance of her lands, simply to release his "dower," it has been held that he is not liable upon the covenants contained in the conveyance, 30 but, as he is fully capable of contracting, he should, when he joins (in general terms and not merely to release his curtesy or "dower") in the cove- nants in his wife's deed, be liable to her immediate gran- tee, although he may not be so liable to a remote grantee, unless he has some title or interest to convey. 31 § 195. Married woman's covenants in conveyance of her separate property. — Whether a married woman is bound by her covenants in a deed of her separate prop- erty is a matter so much controlled by statutes, which are constantly subject to change, that it is impracticable to attempt to state what the general rule of law is. In the absence of a statute she is not liable in an action for damages at law for a breach of covenants for title. And statutes simply authorizing her to convey do not necessarily make her covenants binding on her. But though she may not be liable in damages, she has been held in some cases estopped by her covenants from setting up a claim to an after-acquired title. 32 Under the so called "married women's acts," of a general nature, which exist in many states, she is undoubtedly bound by her covenants or other contracts relating to her separate 29 Moore v. Graves, 1896, 97 Iowa 4, 8; 65 N. W. 1008. In Arthur v. Caverly, 1893, 98 Mich. 82; 56 N. W. 1102, a wife joining in the cove- nants was held liable jointly with her husband, because she bad re- ceived the whole consideration, and must therefore be considered as having contracted with respect to her own separate estate. On a simi- lar state of facts in Dean v. Shelly, 57 Pa. St. 426; 98 Am. D. 235, she was, however, held not liable. 30 Center v. Elgin Banking Co., 1900, 185 111. 534; 57 N. E. 439. 31 See Mygatt v. Coe, 1897, 152 N. Y. 457, 460, 466; 46 N. E. 949. 32 Hill v. West, 8 Ohio 222, 226; Beal v. Beal, 79 Ind. 280. See, Knight v. Thayer, 125 Mass. 25. 234 THE LAW OF CONVEYANCING. § 196 property, and in some states statutes less general, and not relating to all contracts, provide that she shall be liable on her covenants for title. 33 § 196. Designation of parties — The covenantee, his heirs, etc. — It is customary for the covenants for title to be expressed as made by the covenantor ( the grantor) , to and with the covenantee (the grantee), "his heirs and assigns," and in some forms as with "his heirs, execu- tors, administrators and assigns," that is, the covenantor is made to bind himself (his heirs, etc.) not only to the grantee, but to the successors of the grantee. The ques- tion naturally occurs as to how far it is necessary to name these successors and what effect, if any, is had on their rights under the covenants if they are not named. There is a difference in the nature and purposes of the different covenants for title, and whether others than the original grantee, with whom the covenant was first made, may have the benefit of the covenant, will de- pend rather more upon its nature 34 and certain other cir- cumstances than upon its precise form, yet as certain words are almost invariably used as parts of the form, we should consider the reasons for their use, and to what extent they are necessary. It appears to be unnecessary to name the covenantee's "executors and administrators" in the covenants for title. If the covenant is broken and the loss occurs dur- ing the covenantee's lifetime he should have his remedy against the covenantor, and if he has not had his remedy when the breach occurs, and dies without obtaining it, his executor or administrator may recover for the breach of covenant as for any debt due the deceased, 35 and for this purpose the executor or administrator need not have been named in the covenant. 83 See, e. g., Miller v. Miller, 1894, 140 Ind. 174, 178; 39 N. E. 547. 34 See post, § 214. " Wilson v. Peelle, 78 Ind. 384. § 197 COVENANTS. 235 If the covenant is not broken during the life of the covenantee, and is such as passes with the land to his heir on his death, his executor or administrator has no concern with it and so can take no action on it, even if named. § 197. The covenantee's "heirs and assigns." — The naming of the grantee's "heirs and assigns" in the covenants for title seems not necessary in order that they may take advantage of such of the covenants as are deemed capable of transmission or assignment — or, in other words, such of them as " run with the land." But, as " heirs and assigns " are generally named, and as the naming of them (especially in some covenants other than those for title) has been considered important for some purposes, it is worth while to note why they have been and still are named. The practice of naming the grantee's "heirs and as- signs" arose from the necessity which existed under the early law (when deeds first came into use) of naming them, if they were to have the benefit of the ancient warranty. This "warranty" was not a covenant in the sense in which the term is now used; it was an incident of feudal tenure. The lord, having enfeoffed his tenant, must protect the title, or give the tenant other lands of equal value (not, generally, damages). And this war- ranty, thus arising from the ancient feudal relation of feoffor and feoffee, existed before deeds were used. When deeds came to be used the warranty was either inserted expressly as a special clause (still distinct, how- ever, from covenant) , or was implied from the chief op- erative word of the charter of feoffment, "dedi," "I have given." When thus implied, the warranty was implied for the benefit of the feoffee and his heirs only; that is, the im- plication did not include the feoffee's assigns. 236 THE LAW OP CONVEYANCING. § 198 Express clauses of warranty became common in deeds as early as the thirteenth century, and when the transfer of land was so evidenced by a deed containing an express warranty, the feoffee's "heirs and assigns" could not avail themselves of the warranty (and call on the lord to defend the title or give other land), unless they were named in the deed of feoffment. The warranty afterward disappeared and gave way to covenants for title. The old actions for land were re- placed by actions for damages, but the principles on which the grantee's successors could have the benefit of these covenants for title were derived from those which had governed warranty. And in the covenants for title there continued to be used, often, the words "heirs" and "assigns," as the covenants were modeled after the war- ranty; and it seems to have been at first necessary to mention, at least, "assigns" in the covenants, as it had been in the clause of warranty. Without, however, giving any clear reason for it, the "covenant is in many cases extended further than the warranty," 36 and it was held that the benefit of the cove- nants for title passed with the land to the grantee's heirs and assigns, though they were not named. 37 § 198. The covenants for seisin, and good right to convey. — Seisin signifies possession, and was at one time applied to the possession of chattels, as well as the posses- sion of land. 38 Later it referred only to the possession of land, and signified the possession of land by one claiming 36 Co. Litt., 384b. "See, Poll. & Mait. Hist. Eng. L., I, p. 287; II, pp. 94, 224; Digby Hist. L. Beal P., 5th ed., pp. 165, 171; Holmes The Common Law, pp. 374, 378, 401; Spencer's Case, 5 Coke 16; Rawle Cov. Tit., 5th ed., §§ 2, 203, 316. The force and effect of the phrase "heirs and assigns" as an aid in determining when covenants "run with the land," will be considered after some of the characteristics of the different covenants for title have been taken up. 88 Poll. & Mait. Hist. Eng. L., II, pp. 29, 32. $ 198 COVENANTS. 237 or having a freehold estate therein, either by himself or another on his behalf. Still later the word acquired a more extended meaning in England, and seems to have been regarded as synonymous with title. 39 In this country a covenant that one is "lawfully seised" is given somewhat different effects in different states. In several states a covenant that the grantor is "law- fully seised" is satisfied by an actual seisin, and he need not have an indefeasible estate in order that the covenant- may be fulfilled. A seisin in fact under a claim of title, though tortious (that is, gained by disseisin), is sufficient to prevent the covenant from being broken. The grantor is regarded as covenanting that he is in possession of the land claiming such title as his deed purports to convey, and the covenant is not considered as broken if , as a fact, he has not the title he claims, though it is broken if an- other is in adversepossession of the land. 40 But in other states the "covenant of seisin" is construed as a covenant for title; that is, a covenant by the grantor that he has the estate that he undertakes to convey, and in these states a covenant of "lawful seisin" in a conveyance of an estate in fee is satisfied only by the grantor's having an indefeasible estate in fee. 41 Therefore, a grantor making this covenant is liable in an action on it if, by reason of a defect in an attempted conveyance to his grantor, the legal title is not conveyed, but is outstanding in some former owner, 42 and such a grantor is liable on this covenant if, before he attempts to convey, part of the land has been sold for taxes. 43 These latter were cases where the grantor covenanted 39 RawleCov. Tit., §40. 40 See Marston v. Hobbs, 2 Mass. 433, 439; 3 Am. Dec. 61 ; "Wilson v. Widenham, 51 Maine 567; Watts v. Parker, 27 111. 228; Wetzell v. Rich- creek, 53 Ohio St. 62, 70; 40 N. E. 1004. 41 Mercantile Trust Co. v. South Park Co., 1893, 94 Ky. 271; 22 S. W. 314. "Allen v. Allen, 1892, 48 Minn. 462; 51 N. W. 473. 43 Zent v. Picken, 54 Iowa 535; 6 N. W. 750. 238 THE LAW OF CONVEYANCING. § 198 in what appears to be the usual form; that is, "that he is lawfully seised of the said premises," but in the states where the doctrine of the former class of cases is followed this form of expression would not fully protect the grantee, and hence the covenant is often expressed more fully, as, "that he (grantor) is seised of an absolute perfect and indefeasible estate in fee simple." And in some states it is certainly prudent, if not necessary, for the grantee to require the latter form if he wishes to have the protection of the covenant. The general object of inserting the covenant of seisin is to give the grantee relief where there has been a failure of title, even where there has been no assertion of title by any one else and no eviction of the grantee. When the fuller form of the covenant is used ("is seised of an indefeasible estate, etc.") there can be no doubt as to what is intended, as this form is universally construed as meaning simply what is stated in it. 44 The covenant for seisin is not generally considered as broken by the existence of liens or incumbrances on the land, nor by the fact that a third person may have a right of profit in it — for, while these may cause a breach of the covenant "against incumbrances," they do not affect the covenant for seisin. 45 The covenant of good right to convey is sometimes said to amount to the same thing as the covenant for seisin, 46 but while it is generally true that if one be seised in fee he has a good right to convey, it does not necessarily fol- low that because he may have the right to convey he is also seised in fee. 47 " Frazer v. Supervisors, 74 111. 282 ; Adkins v. Tomlinson, 1894, 121 Mo. 487 ; 26 S. W. 573 ; Abbott v. Allen, 14 Johns. 248, 252. 46 Douglass v. Thomas, 103 Ind. 187; 2 N. E. 562; Blondeau v. Sheri- dan, 81 Mo. 545; Fitzhugh v. Croghan, 2 J. J. Mar. 429; 19 Am. D 139. "Raymond v. Raymond, 10 Cush. 140. 47 Devoe v. Sunderland, 17 Ohio 52. § 199 COVENANTS. 239 One conveying under a power may have a right to con- vey without being seised in fee, and executors or adminis- trators often covenant that they are executors or adminis- trators and have a right to convey, under the order of a court or otherwise, without covenanting that they are seised. § 199. The covenant against incumbrances — Form. — The form of the covenant against incumbrances is usually "that the same are free from all incumbrances." But it was formerly expressed in connection with the covenant for quiet enjoyment, and as supplementary to that cove- nant ; that is, that the vendee "shall peaceably and quietly enjoy the same, and that free from all incum- brances, etc. " ^ The latter form is occasionally seen still, and when used may properly have a different effect from the former, for the covenant for quiet enjoyment is clearly prospective in character, a covenant in futuro, and if the covenant against incumbrances is connected with it (as in the latter form given) , it may properly be regarded as also prospective in character, or a covenant in futuro; that is, that the quiet enjoyment shall be free from in- cumbrances, whereas in the first form, that the premises are free from incumbrances, there is more reason for say- ing that it is a covenant in prassenti, merely. ' The ordinary form of covenant against incumbrances may also be varied so as to make it a covenant looking to the future, without being thus supplemental to the cove- nant for quiet enjoyment. For example, in Post v. Cam- pau, 49 the covenant was substantially that the party of the first part covenants that "he has not heretofore done, com- mitted, etc., any act, matter or thing whereby the prem- ises granted are, or shall or may be charged, incumbered in title or estate or otherwise," and it was held that this covenant looked to the future, and promised indemnity 48 Hall v. Dean, 13 Johnson 105. 49 42 Mich. 90, 99; 3 N. W. 272. 240 THE LAW OF CONVEYANCING. § 200 for damages that might at any time in the future result from its breach, and that it was immaterial whether the ordinary covenant against incumbrances was or was not broken once for all at the delivery of the deed. As there is some conflict upon the question as to whether the covenant against incumbrances is one of those cove- nants that run with the land, 50 affording a remedy for a breach to subsequent holders, or whether it is simply a covenant in the present, broken, if at all, as soon as made, it will been seen that the form of the covenant may have some bearing upon this question in particular instances. § 200. What are incumbrances? — As this covenant is practically one of the most important, and as there is no technical definition of incumbrances that will fit all cases, it is well to note some of those things that may be incumbrances. An incumbrance, within this covenant, is generally defined as : every right to, or interest in, the land which may subsist in third persons to the diminution of the value of the land, but consistent with the passing of the fee in it by deed. 51 The diminution of value which is one of the essentials of the above definition should not be understood as con- fined to cases where the thing granted is, by reason of some interest in a third person, of less pecuniary value, but must be considered as extending to cases where the grantee, by reason of such interest in some other person, does not acquire by the grant the complete dominion over the land granted, but is, or may be, deprived by the in- cumbrance of the use or possession of the thing granted, either wholly or partially. It is of importance for those buying and selling land to 50 Post, §§ 215, 218. 51 Preseott v. Trueman, 4 Mass. 627 ; 3 Am. Dec. 246 ; Batley v. Foer- derer, 1894, 162 Pa. St. 460, 466; 29 Atl. 868; Huyck v. Andrews, 113 N. Y. 81; 20 N. E. 581; 10 Am. St. R. 452; 3 L. R. A. 789. § 201 COVENANTS. 241 consider what incumbrances exist on the property, and if it is understood that the purchaser is to take the land sub- ject to incumbrances it should be so stated in the deed, or the incumbrance should be expressly excepted. The fact that the grantee knew of the incumbrance, it is gen- erally held, will not relieve the grantor from liability for a breach of this covenant. 52 § 201. Mortgages, building restrictions, etc. — Incum- brances. — Many interests which third persons have in the land are so clearly of such a nature as to diminish its value, and are so plainly incumbrances, that there is little occasion for difference of opinion about them. Of this sort are mortgages, money charges, or liens, private rights of way, a right to cut trees, or to mine ; and it is generally considered that a right of dower, inchoate or consummate, is an incumbrance. 53 And the same rule has been applied to the statutory substitute for dower. 54 Building restrictions, which impair the free enjoyment of the land by the owner, are incumbrances, whether they are in the form of covenants or conditions. For ex- ample, where one bought land from another who owned on both sides of the street, and the grantor provided in the deed that only buildings of a certain class should be built on the lot sold (which was opposite the grantor's residence) with a "reversion to the grantor, his heirs," etc., in case of a breach of the condition, and this grantee then conveyed by a deed with covenants against incum- 52 Demars v. Koehler, 1898, 62 N. J. L. 203; 41 Atl. 720; 72 Am. St. R. 642; Weiss v. Binnian, 178 111. 241; 52 N. E. 969; Edwards v. Clark, 1890, 83 Mich. 246 ; 47 N. W. 112. 63 McCord v. Massie, 1895, 155 111. 123; 39 N. E. 592; Runnells v. Webber, 59 Maine 488. Though it was said by Judge Story that a possibility of dower is not an incumbrance, within the sense of this covenant, for that means a settled, fixed incumbrance. Powell v. Mon- son, 3 Mason 355; Bostwick v. Williams, 36 111. 65. 54 Crowley v. Lumber Co., 1896, 66 Minn. 400, 408; 69 N. W. 321. 16 — Bbews. Con. 242 THE LAW OF CONVEYANCING. § 202 brances and of general warranty, and without reference to these restrictions in the deed to him, and his grantee then conveyed to another by a similar deed ; the last grantee could hold his grantor liable in an action for breach of the covenant against incumbrances, because the provision in the first deed mentioned, whether regarded as a condition or a restriction, created an incumbrance on the last grantee's land. 55 In Wetmore v. Bruce 56 the defendant refused to com- plete a purchase of land, because the plaintiff had agreed to convey him a house and lot free of all incumbrances. Certain former owners of the land including the premises in question had, by mutual agreement, imposed restric- tions upon the lands belonging to each of the owners of the block, for the purpose of securing uniformity in the position of the buildings, and imposing restrictions in perpetuity ; it was held that these restrictions were in- cumbrances, and that the defendant was justified in de- clining to complete his purchase. In such cases, as has been said, 57 "the restriction may not interfere with the use of the land for many purposes, but it is an absolute prohibition of its use for others for which the owner might otherwise lawfully use it." § 202. Leasehold interests as incumbrances. — Some other interests in third persons are not, however, so clearly incumbrances. For example, a leasehold interest out- standing in a third person may be actually a benefit, rather than a detriment, to one buying the property leased. This would be the fact where the purchaser buys the land for the purpose of making an income producing investment, and the longer the term of the lease and the higher the rent, the greater the benefit would be to such a purchaser. 65 Locke v. Hale, 1895, 165 Mass. 20; 42 N. E. 331. 56 1890, 118 N. Y. 319; 23 N. E. 303. 67 Foster v. Foster, 62 N. H. 46, 56. § 203 COVENANTS. 243 Nevertheless, on the ground that the purchaser does not obtain the full dominion and use of the property thus subject to a lease, the lease is held in many decisions to be an incumbrance within the covenant against incum- brances. The grantor, therefore, who conveys leased land by a deed containing this covenant may be held liable for its breach, unless he excepts the lease from its operation, and the grantee's knowledge of the lease will not affect his right to recover for the breach. 58 Gener- ally, in practice, when a conveyance is made of leased land the lease is not excepted from the covenant, because the tenancy is taken into account between the parties and the rent passes to the grantee, being allowed for or appor- tioned at the time the deed takes effect. And when the grantee recognizes the tenancy and receives rent from the tenant, though there may be technically a breach of the covenant, the amount of rent received by the grantee from the tenant should be deducted from the damages awarded the grantee for the breach of the covenant ; but the mere fact that the conveyance of the leased premises gives the grantee a right to the rent will not relieve the grantor from his liability for a breach of the covenant against incumbrances. 59 It has, however, been held in a few cases that, if the grantee of leased land knows of the tenancy, and there is a statute which has the effect of transferring possession without attornment by the tenant (i. e., without the tenant's express recognition of the grantee as his landlord), the existence of the lease can- not be a breach of the covenant. 60 § 203. Distinction between incumbrances visibly af- fecting the physical condition and others. — A distinction 68 Demars v. Koehler, 1898, 62 N. J. L. 203; 41 Atl. 720; 72 Am. St. R. 642 ; Clark v. Fisher, 1894, 54 Kan. 403 ; 38 Pac. 493 ; Fritz v. Pusey, 31 Minn. 368; 18 N. W. 94; Porter v. Bradley, 7 R. I. 538; Cross v. Noble, 67 Pa. St. 74, 77. 69 Edwards v. Clark, 1890, 83 Mich. 246; 47 N. W. 112. 60 See Kellum v. Berkshire L. Ins. Co., 101 Ind. 455. 244 THE LAW OF CONVEYANCING. § 203 is sometimes made between the effect of such incum- brances as mortgages, or money charges, and such in- cumbrances as easements, especially where the latter are openly exercised and are visible to the grantee. And in this connection there is often quoted from Memmert v. McKeen 61 this statement: "Incumbrances are of two kinds : first, such as affect the title ; second, those which affect only the physical condition of the property. A mortgage or other lien is a fair illustration of the former; a public road, or a right of way, of the latter. Where incumbrances of the former class exist, it is of no im- portance that the grantee had notice of them. Where, however, there is a servitude imposed upon the land which is visible to the eye, and which affects not the title but the physical condition of the property, a differ- ent rule prevails." The argument is, that in cases where there is a physical burden of this sort, which is visible, there is a fair and reasonable presumption, in the absence of expreys agree- ment, that both parties act with reference to this plain, existing burden, and that the vendor on the one hand de- mands, and the vendee on the other hand pays, only the fair value of the land as visibly incumbered. Therefore, it is said, such burdens, by way of open and notorious easements, are not really incumbrances, within the mean- ing of this covenant, because the real subject-matter of the dealings between the grantor and grantee is the land, subject to the visible easements. 62 This view appears to be approved by Rawle, in- his work on covenants for title. 63 61 112 Pa. St. 315, 320; 4 Atl. 542. 68 Kutz v. McCune, 22 Wis. 628; 99 Am. D. 85; Judge Cooley's re- mark in Haldane v. Sweet, 55 Mich. 196, 200; 20 N. W. 902: "The al- leys were open to observation at the time, and he must have known all about them, and bought with them in mind," is also quoted in this con- nection. 63 See § 85. § 203 COVENANTS. 245 Bat it is criticised in Huyck v. Andrews, 64 where the court (in speaking of the authorities that hold that where there is a visible burden imposed upon the land which affects the physical condition of the property, it is presumed that the grantee took the property in contem- plation of such condition), says : "We do not yield as- sent to those authorities. They have no sanction in the cases decided in this state, and have no adequate founda- tion in principle or reason. They open to litigation upon parol evidence in every action for the breach of the cove- nant against incumbrances, caused by the existence of an easement, the question whether the grantee knew of its existence, and in every case the protection of written cov- enants can be absolutely taken away by disputed oral evi- dence. ... If open, visible and notorious ease- ments are to be excepted from the operation of the cove- nants, it should be the duty of the grantor to except them. . . . The distinction which is attempted to be made between incumbrances which affect the title and those which affect merely the physical condition of the land conveyed, is quite illusory and unsatisfactory. Easements not only affect the physical condition of the land, but they affect and impair the title." In many of the states, therefore, any right of way, pub- lic or private, is considered an incumbrance, without ref- erence to the knowledge of the grantee as to its existence. This appears to be the law in the New England states, and in some others. 65 Hence a right of way for a railroad is an incumbrance, though well known to both parties when the deed containing the covenant was delivered. 67 While this is so, a public highway existing on the land "1889, 113 N. Y. 81, 90; 20 N. E. 581; 10 Am. St. E. 432; 3 L. E. A. 789. 65 Hubbard v. Norton, 10 Conn. 423 ; Copeland v. McAdory, 1892, 100 Ala. 553 ; 13 So. 545. 67 Burk v. Hill, 48 Ind. 52; 17 Am. E. 731 ; Kellogg v. Malin, 50 Mo. 496; 11 Am. E. 426; Beach v. Miller, 51 111. 206; 2 Am. E. 290. 246 THE LAW OF CONVEYANCING. § 204 has been regarded by some courts as not an incumbrance within this covenant, and this view has been taken in states which do not admit the same rule as applicable to open and visible private ways. The reason often given for this distinction in such states is that a public highway is not depreciative of the grantee's interest — is no burden — but rather is advantageous to him and enhances the value and utility of the land, and therefore cannot be an incumbrance. 68 § 204. If an incumbrance is to be excepted from the covenant, it should be so expressed. — The grantee's knowledge of an outstanding right or interest in a third person may, therefore, according to some authorities, be of importance in determining whether this right or inter- est is an incumbrance. But when a third person's right or interest is really an incumbrance, the grantee's knowledge of it furnishes no defense to the grantor in an action against him on the covenant. Therefore, for his own protection, the grantor should, when it is understood that the grantee is to take the land subject to the incumbrance, expressly except it from the covenant or otherwise make the conveyance subject to it. For, generally speaking, parol evidence will not be re- ceived in a court of law (when an action is brought on the covenant), to show that an incumbrance not excepted from the covenant was intended to be excepted. 69 The 68 Harrison v. Des Moines &c. Ey. Co., 1894, 91 Iowa 114; 58 N. W. 1081; Huyok v. Andrews, 113 N. Y. 81; 20 N. E. 581; 10 Am. St. E. 452; 3 L. E. A. 789. CSee 111. E. S., ch. 30, § 10, which provides that no covenants of warranty shall be considered as broken by the exist- ence of a highway upon the land conveyed, unless otherwise particu- larly specified in the deed. Under this statute a private right of way is not a highway, and the covenant is broken by its existence. Schmis- seur v. Penn, 1892, 47 111. App. 278.) 69 Edwards v. Clark, 1890, 83 Mich. 246; 47 N. W. 112; Flynn v. Bourneuf, 143 Mass. 277; 9 N. E. 650; 58 Am. E. 135; Long v. Moler, 5 Ohio St. 271 ; Van Wagner v. Van Nostrand, 19 Iowa 422. § 204 COVENANTS. 247 admission of such evidence would violate the rule that parol evidence is not admissible to vary the terms of a written contract; and so far as the grantee's mere knowl- edge of the incumbrance bears on the question, it may- have been his chief reason for desiring the covenant that he knew of the incumbrance and wished to protect him- self from it. When, however, the grantee not only knows of the incumbrance but, where it is a money charge, agrees to discharge it himself, although this agreement does not appear in the conveyance, and although there is no excep- tion made in expressing the covenant against incum- brances, parol evidence has been held admissible by some decisions to show this agreement, especially where in fix- ing the amount of the consideration allowance has been made for the incumbrance. In such cases the incum- brance, as between the parties to the deed containing the covenants, is regarded as paid, and the grantee cannot hold the grantor liable on the covenant. 70 While such decisions are justified by the courts rendering them on the ground, chiefly, that the true consideration may be shown, the practical effect of the admission of parol evi- dence in such cases is to contradict and vary the writing of the grantor ; and there would seem to be no hardship in requiring him, if it has been agreed that an incum- brance is to be excepted from the covenant, to insert the exception in his conveyance, or, if he does not do so, to suffer the consequences of his lack of caution. 71 70 Wachendorf v. Lancaster, 66 Iowa 458 ; 23 K W. 922 ; Johnston v. Markle Paper Co., 1893, 153 Pa. 189, 195; 25 Atl. 560; Johnson v. Elmen, 1900, 94 Texas 168; 59 S. W. 253; 86 Am. St. E. 845 ; Hays v. Peck, 107 Ind. 389; 8N.E. 274. 71 In a few states statutes require that a grantor shall inform the gran- tee of incumbrances existing on the land conveyed : see, for example, E. L. Mass. 1902, ch. 134, § 19; Minn. Stat. 1894, §§ 4194, 4195. And his neglect to inform the grantee of the incumbrance is a penal offense in Massachusetts. E. L. Mass. 1902, ch. 208, § 66. 248 THE LAW OF CONVEYANCING. § 205 § 205. The covenant for further assurance. — The cov- enant for further assurance, though less extensively used in this country than the other covenants, is one of impor- tance to the purchaser. His remedy on the covenant is not restricted to an action for damages, but the perform- ance of the covenant may be sought in equity to compel the vendor to execute the further assurance. The execu- tion of the further assurance will operate to convey any interest which the grantor may have acquired since the execution of the original conveyance. "A vendor who has sold a bad title, will, under a covenant for further assurance, be compelled to convey any title which he may have acquired since the conveyance." 72 The case just cited indicates that this covenant may be advantageous to the vendor as well as to the vendee, for he may cure a bad title by a voluntary tender, under the covenant, of a further assurance, and thus bar the relief the vendee might otherwise have for a defective title. The effect of this covenant will depend on the nature of the estate conveyed, and the other covenants in the deed; if these covenants are general and without limitation or restriction the vendee has a right, under the covenant for further assurance, to require the conveyance of a para mount title or the removal of an outstanding incum- brance, but if the covenants are limited he cannot require the conveyance to himself of a greater estate than he is entitled to by the deed, or the removal of incumbrances not created by the vendor. 73 This covenant is not broken until the vendor refuses to execute such further convey- ance as may be devised and tendered by the vendee, and such as he may reasonably require, or to do some act necessary to perfect the title which may be reasonably in- sisted on by the vendee. 74 The covenant for further as- " Cochran v. Pascault, 54 Md. 1, 16. 73 Armstrong v. Darby, 26 Mo. 517. "Miller v. Parsons, 9 Johns. 336; Colby v. Osgood, 29 Barb. 349. § 206 COVENANTS. 249 surance i3 prospective, and passes with the land to subse- quent grantees, that is, it "runs with the land." 75 § 206. The covenants for quiet enjoyment and of war- ranty. — In a lease, the covenant for quiet enjoyment, whether express or implied, is practically the one impor- tant covenant. It is a covenant that the lessee shall not be rightfully disturbed in his possession and enjoyment during the term. In deeds purporting to convey an estate in fee, the covenant for quiet enjoyment is generally considered as practically identical with the covenant of warranty. 76 In some forms used these two covenants are combined, viz., "will forever warrant and defend the premises in the quiet and peaceable possession," etc. In general the same circumstances are necessary to con- stitute a breach of either ; they both run with the land, and the rules as to the measure of damages are the same in regard to both, and, though both are often used, they are for the most part so nearly the same that they are generally discussed in the cases together, or, rather, the covenant of warranty is discussed as including them both. The modern covenant of warranty has taken the place of the ancient warranty. But the two are not the same. The ancient warranty was part of the system of feudal tenure. The remedy upon it was by a particular writ, by which the feoffor was called on to make good his war- ranty by giving his evicted feoffee other lands, and, only in rare cases, damages. The remedy on the covenant of 75 Clarke v. Priest, 1897, 21 App. Div. (N. Y.) 174; Bennett v. Wal- ler, 23 111. 97. 76 Scott v. Kirkendall, 88 111. 465; 30 Am. Rep. 562; Fowler v. Pol- ing, 2 Barb. 300. (Distinctions have sometimes been made between these covenants, as, for example, that a covenant of warranty is more "than one for quiet enjoyment. It is a-covenant to defend not the pos- session merely, but the land and the estate in it." Williams v. Weth- erbee, 1 Aik. (Vt.) 233. And in technical pleading there may be a dif- ference. Peck v. Houghtaling, 35 Mich. 127, 131.) 250 THE LAW OF CONVEYANCING. § 206 warranty, on the other hand, is by a personal action sounding in damages. 77 The word "warrant" (or rather its Latin equivalent) was indispensable to the ancient warranty when expressed in a deed of feoffment. 78 But the same strictness does not now prevail. A covenant to "defend" the title against the claims of all, etc., has been held enough to make a covenant of warranty. 79 It is not advisable, however, to depart from the usual form, for while in one case 80 the following words in the habendum clause of a deed, "free and clear from me, my heirs, etc., and from all other per- sons," were considered to make a covenant for quiet en- joyment, in another 81 the words "to have and to hold the said premises unto said grantee, his heirs and assigns, for- ever, as a good and indefeasible estate in fee simple," were held not to constitute a covenant of warranty. In some states the covenant of warranty is by statute, or as a result of decisions, made to include the other cov- enants for title. 82 But generally it is considered only as a covenant against eviction by one claiming under a bet- ter title. It is not a warranty that the title is good. In Tallmadge v. Wallis, 83 the court says: "It is a well known fact that land is frequently conveyed with general war- ranty, which is warranty against eviction only, when both parties to the sale perfectly understand that the title is doubtful or that there is some outstanding interest which may, perhaps, at a future period be the means of evicting the purchaser ; and to protect the purchaser and 71 Other differences between the ancient warranty and the modern covenant are noted by Kawle, Cov. Tit., §§ 112-114. 78 See the form in Appendix, Bl. Comm., Book II. 79 Kirkendall v. Mitchell, 3 McLean (IT. S.) 144. 80 Midgett v. Brooks, 12 Ired. Law 145 ; 55 Am. Dec. 405. 81 Wheeler v. Wayne County, 1890, 132 111. 599 ; 24 N. E. 625. 82 Van Wagner v. Van Nostrand, 19 Iowa 422; Smith v. Jones, 97 Ky. 670; 31 S. W. 475 ; Messer v. Oestreich, 52 Wis. 693; 10 N. W. 6. 83 25 Wend. 107, 115. § 207 COVENANTS. 251' enable him to recover against the vendor in case of evic- tion, the covenant of warranty is inserted in the deed." Hence, as the covenant of warranty is intended as much for the protection of the vendee against known de- fects as against those which are unknown, the grantor cannot successfully defend an action on the covenant by showing that the vendee knew there was an adverse claim to the land. § 207. The covenant of warranty attaches only to the estate conveyed. — An important principle affecting in some cases the form of the conveyance is that the cove- nant of warranty attaches only to the estate purported to be granted, and does not enlarge that estate, even though the covenant be expressed in the most general terms. For example, if the conveyance is of a life estate, the covenant warrants nothing more. The object of the covenant is to defend the estate passed, not to enlarge or narrow it. 84 And this is so when the covenants are implied from the statutory words with the same effect as if they had been expressed. 85 Very often a conveyance purports to grant "the right, title and interest" of the grantor in certain premises, and such a granting clause is often followed by a covenant of warranty in general terms. On the principle just stated, the covenant applies to the estate granted, and not to the land described in the conveyance. 86 Though the cove- nant of warranty be in such a case expressed in general and unrestricted terms, the deed practically amounts to no more than a quit-claim deed. 87 84 Adams v. Ross, 30 N. J. L. 505 ; 82 Am. Dec. 237. 85 Lehndorf v. Cope, 122 111. 319; 13 N. E. 505. 86 Sweet v. Brown, 12 Met. 175; 45 Am. Dec. 243; Hull v. Hull, 1891, 35 W. Va. .155; 13 S. E. 49; 29 Am. St. Hep. 800; White v. Brocaw, 14 Ohio St. 339, 343. 87 Reynolds v. Shaver, 1894, 59 Ark. 299; 27 S. W. 78; 43 Am. St. 36. 252 THE LAW OF CONVEYANCING. § 208 § 208. Effect of describing land as subject to an in- cumbrance. — The same principle is applied in cases where immediately following the description are words indicat- ing that the land granted is subject to a mortgage de- scribed, or certain other incumbrances. The effect of such a statement is to qualify the covenants which follow, and they relate to the estate thus qualified ; that is, the land conveyed, but subject to the incumbrance mentioned. For example, a deed, after the description of the property, contained the clause "subject to the following incum- brances," describing them, after which followed the cov- enant of freedom from incumbrances, containing no ex- ceptions, and full covenants of warranty. It was held that the covenants applied only to the estate conveyed, which was not the land described, absolutely, but subject to incumbrances ; and that the real covenant was that, otherwise than subject to the incumbrances named, the land was free from incumbrances, and that the grantor would warrant and defend the title. 88 Generally, however, qualifying expressions apply to all the covenants only when they are part of the description of the property granted (as in these last instances), and therefore, a special exception or restriction annexed to one covenant alone will not have the effect of qualifying the other covenants. As, for example, where there is a covenant against in- cumbrances, from which is excepted a certain mortgage, followed by a general warranty, without qualification or exception — the effect is not to except the mortgage from the covenant of warranty. 89 There is, it is considered, no 8 Drury v. Holden, 121 111. 130, 137; 13 N. E. 547. And see Craw- ford v. Nimmons, 1899, 180 111. 143, 149; 54 N. E. 209; Johnson v. Nichols, 1898, 105 Iowa 122; 74 N. W. 750; Brown v. Bank, 148 Mass. 300; 19 N. E. 382; Freeman v. Foster, 55 Maine 508; Koch v. Hustis, 1902, 113 Wis. 604; 89 N. W. 838. ^Welbon v. Welbon, 1896, 109 Mich. 356; 67 N. W. 338; 3 Detroit Leg. News 112; Ayer v. Brick Co., 1892, 157 Mass. 57; 31 N. E. 717; § 209 COVENANTS. 253 inconsistency in the -grantor's mentioning the incum- brance as an exception to the covenant against incum- brances, and at the same time warranting that there shall be no eviction by reason of the incumbrance. 90 So it is often stated as a general rule that a restricted covenant does not affect the operation of a covenant following it, when the latter covenant is not connected with the former nor of the same import. 91 § 209. Eviction necessary to a breach of covenant of warranty. — The covenant of warranty is a covenant against eviction: it is not a covenant that the estate is in- defeasible. In some states, as before stated, this covenant includes, or is in effect given the force of, a covenant of seisin as well as a covenant of warranty, but except in such states, a general warranty does not imply a covenant of seisin, and the covenant is therefore not broken by the existence of a better title in a third person. Nor does it include the covenant against incumbrances. Hence, the existence of a mortgage on the land when the grantee purchases is not a breach of the covenant of warranty, 92 but an eviction of the grantee under a foreclosure and sale on the mortgage is a breach. 93 While the existence of an incumbrance on the land conveyed will not always amount to a breach of the covenant of warranty, there may be outstanding rights in third persons which, though incumbrances, will also cause the covenant of warranty to be broken. Such are rights in third persons to an Sumner v. Williams, 8 Mass. 162, 202, 214; 5 Am. Dec. 83; King v. Kilbride, 58 Conn, 109; 19 Atl. 519. 90 Sandwich Mfg. Co. v. Zellmer, 48 Minn. 408 ; 51 N. W. 379. 91 But the rule as applied in the foregoing recent cases is not accepted universally, and as opposed to them is the case of Bricker v. Bricker, 11 Ohio St. 240, which holds that the exclusion of an incumbrance from the covenant against incumbrances, must be held to except it as well from the covenant of warranty, and all other covenants in the deed. 92 Clark v. Lineberger, 44 Ind. 223. 9S McLean v. Webster, 1891, 45 Kan. 644; 26 Pac. 10. 254 THE LAW OF CONVEYANCING. § 210 easement in the land conveyed, interfering with the free use and possession of part of it and materially impairing its value : it is considered in such cases that there is an eviction. 94 § 210. What is eviction — Constructive eviction. — Pre- cisely what amounts to an eviction it is not always easy to say. But it appears that the rule stated in Kramer v. Carter 95 is, in general, accepted : " That any adverse as- sertion of a paramount right by which the covenantee is deprived of the enjoyment of the granted premises, or any part of them, or to which he yields, as by giving an equivalent for the paramount estate, will be such an evic- tion as will constitute a breach of the covenant of war- ranty." The eviction which will constitute a breach of the cov- enant of warranty may be either an actual expulsion of the grantee by one who has a superior title — the expul- sion being either a result of the peaceable entry by him who has the better title, or a result of judicial proceed- ings ; or it may be a constructive eviction, as where the premises when granted are in the adverse possession of one holding under a better title, or where the grantee buys in a better title to avoid expulsion. 96 Where the grantee surrenders possession to one claiming to have a better title, in order to avoid an expulsion, or where he buys in such a title, the burden is on him, if he after- wards sues his grantor on the covenant, of showing that the title to which he yielded was superior, and that he would have been evicted had he not yielded. 97 Neither 94 Harrington v. Bean, 1897, 89 Maine 470; 36 Atl. 986; Scriver v. Smith, 100 N. Y. 471, 477; 3 N. E. 675; 53 Am. R. 224; Copeland v. McAdory, 1892, 100 Ala. 553, 559; 13 So. 545; Ensign v. Colt, 1902, 52 Atl. 829. 95 136 Mass. 504, 509. 96 Shattuck v. Lamb, 65 N. Y. 499; 22 Am. R. 656; Heyn v. Ohman, 1894, 42 Neb. 693 ; 60 N. W. 952. 97 McGrew v. Harmon, 1894, 164 Pa. 115 ; 30 Atl. 265, 268 ; Robinson v. Bierce, 1899, 102 Tenn. 428; 52 S. W. 992; 47 L. R. A. 275. § 211 COVENANTS. 255 the covenant of warranty nor that for quiet enjoyment is broken by a wrongful disturbance or eviction, by a third person other than the covenantor. 98 But a tortious evic- tion or disturbance by the covenantor under a claim of title is a breach of the covenants." § 211. Covenants implied — Common law — Statutory deeds. — The short form statutory deeds have been referred to 100 and the fact mentioned that certain covenants are in many of the states implied by the use of certain words. An ancient form of implied warranty is that arising from the use of the word "dedi." * There were important cov- enants implied at common law (as in exchange, partition, etc.), but few of these seem to be of practical importance at the present time. The covenants thus implied were called covenants in law. 2 Among those thus implied which are of importance now are those implied in the case of a lease. These are, that the lessor has power to make the lease, and that the lessee shall have the quiet enjoyment of the premises. Statutes exist in several of the states 3 providing sub- stantially "that no covenants shall be implied in a con- veyance of real estate, whether the same contains express covenants or not," but these statutes have been consid- "Andrus v. St. Louis Smelting Co., 130 TJ. S. 643, 647; Barry v. Guild, 126 111. 439, 446; 18 N. E. 759; Poley v. Lacert, 1899, 35 Ore. 166; 58Pac. 37. 99 Akerly v. Vilas, 23 Wis. 207; 99 Am. Dec. 165; Sedgwick v. Hol- lenback, 7 Johns. 376. 100 See Ante, § 30. 1 See Ante, § 197. 2 "A covenant in law, properly speaking, is an agreement -which the law infers or implies from the use of certain words having a known legal operation in the creation of an estate ; so that after they have had their primary operation in creating the estate, the law gives them a secondary force, by implying an agreement on the part of the grantor to protect and preserve the estate so by those words already created." Tindal, 0. J., in Williams v. Burrell, 1 C. B. 402, 429. 3 E. g., New York, Michigan, Minnesota, Wisconsin and Oregon. 256 THE LAW OF CONVEYANCING. § 211 ered as not applying to leases, because they are not con- veyances of real estate within the meaning of the statute. 4 Such statutes as those last mentioned must also be read in connection with other statutes which expressly allow covenants to be imported into conveyances by the use of certain words. The form given above, 5 in which the chief words are " convey and warrant," is substantially like those in several other states, as there indicated. There is another set of words, namely: "grant, bargain and sell," from the use of which in certain states cove- nants will be implied. These words, which are those used, for instance, in Alabama, Illinois, Pennsylvania and Missouri, were imported into this country by Penn- sylvania from the English act. 6 In some states both sets of words are to be found, as, for example, in Illinois, where the words "convey and warrant" may be used and will imply certain covenants, and the words "grant, bargain and sell" certain others. 7 And in some states, as in California and states influ- enced by its statutes, from the word "grant" alone cer- tain covenants will be implied ; such statutes appear to have been derived from the same Statute of Anne. The point noticed before, 8 that some of these words im- ply special covenants and some general, should not be overlooked, because, of course, the difference in effect is material. By the Statute of Anne (6 Anne, c. 35) the words "grant, bargain and sell" were to be considered as covenants that the bargainor, notwithstanding any act done by him, was at the time of the execution of such deed seized, etc., of an estate in fee simple, free from all incumbrances, and for quiet enjoyment thereof against *See Boreel v. Lawton, 90 N. Y. 293; Mayor &c. v. Mabie, 13 N. Y. 151 ; Shaft v. Carey, 1900, 107 Wis. 273, 277 ; 83 N. W. 288. 5 See ante, § 30. 6 6 Anne, c. 35. See Douglass v. Lewis, 131 U.S. 75,82; Wheeler v. Wayne Co., 1890, 132 111. 599, 605; 24 N. E. 625. 'Illinois R S., ch. 30, §§ 8, 9. 8 See ante, § 30. § 212 COVENANTS. 257 the bargainor and all claiming under him ; thus restrict- ing the covenants to the acts of the grantor and those claiming under him, and the general features of this stat- ute are preserved in the American statutes modeled upon it. 9 And the word "grant" in several of the states, where used, has the effect of importing limited or special, rather than general, covenants into the deed. 10 § 212. Effect of such statutes. — When the statutory- words are used, the effect is to import the covenants as effectively into the deed as if they were expressed at length. 11 But in order that this may be the effect, the statutory words must be used ; as, for example, where the statute gives this effect to the words " grant, bargain and sell," the same effect will not be given to one of the words merely, "grant." 12 The same general principles apply where statutory words may be used to imply covenants in mortgages. Such covenants work the same effect as if written at length in the mortgage. 13 It appears that if the grantor, instead of using the stat- utory words alone, should insert an express covenant, this might have the effect of restricting the full force which would otherwise be given to the statutory words. For 9 For example, see the statutes of Missouri, Illinois, Pennsylvania and Alabama; but note the changes in some cases in copying the act, as indicated in Douglass v. Lewis, 131 U. S. 75, 83-86. 10 See, for example, Oal. Civ. Co., § 1113; Mon. Civ. Co., §§ 1501, 1519; N. Dak. Eev. Co. 1899, § 3539; S. Dak. Ann. Stat. 1901, §§ 4435, 4437. 11 Van Wagner v. Van Nostrand, 19 Iowa 422; Meservey v. Snell, 1895, 94 Iowa 223, 224; 62 N. W. 767; Foote v. Clark, 1890, 102 Mo. 394 ; 14 S. W. 981 ; Lehndorf v. Cope, 122 111. 317 ; 13 N. E. 505 ; Beas- ley v. Phillips, 1899, 20 Ind. App. 185; 5QN. E. 488. 12 Wheeler v. Wayne Co., 1890, 132 111. 599 ; 24 N. E. 625. "Laggerv. Loan Ass'n, 1893, 146 111. 283, 300; 33 N. E. 946; Boyd v. Haseltine, 1892, 110 Mo. 203; 19 S. W. 822. 17 — Brews. Con. 258 THE LAW OF CONVEYANCING. § 213 example, "convey and warrant" in Washington imply a covenant against incumbrances : but where the grantor inserted an express covenant of warranty, it was held that the conveyance could not be considered as including the covenant against incumbrances. 14 Where certain covenants only are implied and others are desired it seems better to express fully all the covenants desired than to attempt to combine the implied and expressed. § 213. Whether lex situs or lex loci contractus con- trols. — As the words from which covenants are implied vary, therefore, in the different states, and as conveyances are not infrequently drawn in another state than that where the land lies, and are sometimes drawn according to the form of one state and sometimes according to the form of the other, it will be found not always easy to de- termine just what force shall be given to the lex situs. These statutory conveyances have the dual capacity of transferring the title to the land, and importing cove- nants into the deed, some of which are clearly of a per- sonal nature and not such as to run with the land — at least in all states. Hence, if an action is brought on the covenants imported into the deed by the operative words in them, and the action is brought in another state than that where the land conveyed is situated, the words may not be given the effect that they would have been given in the courts of the state where the land conveyed lies. For example, in Bethell v. Bethell, 15 both parties to the action lived in Indiana. The defendant by deed conveyed to the plaintiff land in Missouri. The words of the deed were, " grant, bargain, sell and convey," but there were no express covenants. The defendant had never been in possession of the land and had no title to it, and it was held that if there was a covenant for seisin it was broken "Leddy v. Enos, 1893, 6 Wash. 247; 33 Pac. 508; 34 Pac. 665; Douglass v. Lewis, 131 XJ. S. 75. 16 54 Ind. 428 ; s. c. 92 Ind. 319. § 214 COVENANTS. 259 as soon as made, and being therefore personal the action was governed by the lex loci contractus; but, moreover, as under that law (Indiana) no such covenant would be im- plied from the words used, the plaintiff had no cause of action. "While it is recognized by the court that the law of Mis- souri alone can be looked to in order to determine whether the deed in question was sufficient to pass title, " it does not, therefore, necessarily follow that the lex rei sitse so far governs conveyances made elsewhere as to change their character as mere conveyances and invest them with the character of personal covenants not necessary to the transmission of the property." In Jackson v. Green, 16 the deed was one also executed in Indiana and conveyed land in Missouri, but was of the short form prescribed by the Indiana statute, the op- erative words being "convey and warrant." The breach alleged was that the grantors never had title to any part of the land, and could convey none, and that neither plaintiff nor defendant had ever been in possession. The court held that the laws of Indiana determined the ques- tion whether the deed contained the covenant of seisin, and that by force of the statute of Indiana "convey and warrant" did comprehend all the covenants , as fully as if written at length : therefore the complaint in this case was good. Where, however, the action is brought on covenants which run with the land, it seems that the law of the place where the land is situated should govern and not that of the place where the deed is executed. 17 § 214. The running of covenants for title with the land. — Although in the covenants for title the covenantor I6 112Ind. 342; 14 N. E. 89. 17 Succession of Cassidy, 1888, 40 La. Ann. 827; 5 So. 292; Fisher v. Parry, 68 Ind. 465; Eiley v. Burroughs, 1894, 41 Neb. 296; 59 N. W. 929. 260 THE LAW OF CONVEYANCING. § 215 in form covenants generally with the grantee, his "heirs and assigns," the right of the successors of the original covenantee to recover against the original covenantor is not wholly fixed by the use of these words designating the grantee's successors. The -use of the words "heirs and assigns " cannot cause the benefit of a covenant to pass with a transfer of the land to successive owners of it, if the covenant is of itself not of the nature to do so. 18 So far as any of these covenants may be taken advan- tage of, not merely by the actual covenantee, but by sub- sequent holders of the interest comprised in the convey- ance in which they are found, they form an exception to a leading principle of the law of contract, namely: that contracts can only be enforced by and against the original parties to them and their personal representatives. When the right of an heir or assign of a covenantee to recover against a remote grantor on a particular one of the usual covenants for title is being considered, it is gener- ally said that the question is : does the particular cove- nant run with the land? 19 § 215. Conflicting views as to the running of some covenants. — Whether a grantee, heir or devisee of the original covenantee may have the benefit of any of the covenants for title — which covenants were not made with "Mygatt v. Coe, 1895, 147 N. Y. 456, 467; 42 N. E. 17. 19 It seems likely that the application of this phrase, " running with the land," indiscriminately to both covenants for title and other cove- nants — those, for example, relating to the use of land — has helped to cause some confusion and to increase the difficulties connected with the subject of the " running of covenants" other than those for title "with the land." For the principles controlling, in this respect, other cove- nants than those for title are not identical with those controlling cove- nants for title. Covenants for title are more especially matters of con- tract, and when they pass to successors of the covenantee they do so because they " run with the estate," whereas rights arising from cove- nants concerning the use of the land become attached to the land — they "run with the land." See Norcross v. James, 140 Mass. 188; 2 N. E. 946; Holmes, The Common Law, Oh. XI. § 215 COVENANTS. 261 him — will depend, then, on the nature of the covenant, or, rather, on the view taken by the particular court having the question before it as to its nature. And the fact that in this country different views have been taken as to the capacity of some of the covenants for title to run with the land has caused one of the conflicts in the American law of real property. Covenants for title may be said to run with the land when, being either implied in a conveyance or expressed at length in it, they are of such a nature that they become incidents to the estate granted and pass with it through other transfers so that the owner for the time being is en- titled to claim the benefit of them from the original cov- enantor; that is, generally s to recover damages for their breach. Or, "A covenant may be said to run with the land when its purpose is to give future protection to the title which the deed containing the covenant undertook to convey, and it does not run with the land when its whole force is spent in giving assurance against something which immediately affects the title and causes present damage." 20 Succeeding as they did the ancient warranty 21 it was probably never expected that the covenants for title would not each and all run with the land for the benefit of a subsequent owner of it. The terms in which they were originally expressed, and are still generally expressed, indicate that, taken as a whole, they make an engagement on the part of the covenanter to indemnify any one who suffers by the breach of them. That is, they together; make a promise to save harmless against loss or damage which may happen in the future to the grantee, his heirs or assigns. The feoffee's heirs and assigns could take advantage of the old warranty under certain circum- a0 Post v. Campau, 42 Mich. 90, 97; 3 N. W. 272. 21 Supra, § 197. 262 THE LAW OF CONVEYANCING. § 216 stances, and the substitution of covenants for title in the place of warranty seems to have been originally made, not for the purpose of lessening the security of titles, but rather for the purpose of getting rid of certain cumber- some features of the actions connected with warranty, and of affording surer and simpler remedies. In theory all the covenants for title run with the land until they are broken. 22 In England and in some of our states they all do, in fact, run with the land. But in many (it seems most) of the United States only the covenants for quiet enjoy- ment and warranty, and further assurance, practically do so, the others (for seisin and good right to convey, and often the covenant against incumbrances), being regarded as covenants in jprsesenti, that is, covenants for the present existence of certain facts, are considered broken as soon as made if these facts do not exist, and being thus broken instantaneously, they lose all capacity for running with the land. They have become at once choses in action, not assignable at common law, although the real substan- tial loss may not then occur, but may occur later when the land is owned by another than the original cove- nantee. 23 § 216. The "English rule" as to the covenant of seisin running. — What is known as the English rule is sub- stantially followed in many states. This rule was estab- lished in two cases, 24 which are almost always cited in later discussions, and which may be briefly stated as fol- lows : 28 Rawle Cov. Tit., p. 292. 23 It has been suggested that the real question in such cases is, "At what time the right of substantial recovery accrues, whether at the mo- ment of the delivery of the deed, or is it postponed under any circum- stances until the actual damage is sustained?" Dickson v. Desire's Admr., 23 Mo. 151, 163; 66 Am. D. 661. " Kingdon v. Nottle, 1 Maule & Selwyn 355; Kingdon v. Nottle, 4 Maule & Selwyn 53. § 216 COVENANTS. 263 In the first case, the plaintiff declared as executrix on a breach of covenant for seisin, entered into with her testator. But as it was shown that the only breach accru- ing in the lifetime of the testator was the mere non-exist- ence of seisin in the covenantor, from which the estate had sustained no real injury before the testator's death, judgment was rendered for the defendant. In the second case the plaintiff declared as devisee of the covenantee, and proved a substantial injury to the estate, caused by defect of title since the death of the covenantee. It was objected to this that there had been an instantaneous breach, and so a personal right of action in the covenantee, in his lifetime, which could not be assigned. But it was held that though according to the letter there was a breach in the testator's lifetime, yet according to the spirit the substantial breach "is in the time of the devisee. So long as the defendant has not good title there is a continuing breach as of a covenant to do a thing toties quoties [as often as] the exigencies of the case may require." The view of the American courts holding substantially this doctrine is stated' in Mecklem v. Blake, 25 as follows : "These courts hold that where the covenantor is in possession, claiming title, and delivers the possession to the covenantee, the covenant of seisin is not a mere pres- ent engagement, made for the sole benefit of a covenantee, but that it is a covenant of indemnity entered into in re- spect of the land conveyed, intended for the security of all subsequent grantees until the covenant is finally and completely broken; and they consequently hold that no such right of action accrues to the covenantee on the mere nominal breach, which always happens the moment the covenant is executed, as is sufficient to merge or arrest the covenant in the hands of the covenantee, or to de- prive it of the capacity of running with the land for the 85 22 Wis. 495, 99 Amer. Dec. 68. 264 THE LAW OF CONVEYANCING. § 217 benefit of the person holding under the deed when an eviction takes place, or other real injury is actually sus- tained." 26 § 217. The "American Rule." — On the other hand, a different view was early taken by some of the courts of this country, and this view has been so generally fol- lowed in the United States as to warrant its being called, as it often is, the American rule on the subject. The rule is, that these covenants (for seisin and good right to convey, and, according to some courts, that against in- cumbrances) are strictly in prsesenti; if they are broken, they are broken at once when the deed is executed and delivered, and cannot pass to the assigns of the cove- nantee. The chief reason for the establishment of this rule appears to have been the non-assignability of choses in action. But additional grounds are stated in some of the decisions which affirm the rule, among them, that if the covenantor is not seised, or has no right to convey, nothing passes as an estate in which the covenants may rest and be transmitted to later owners ; that by the terms of the covenants they are in prsesenti, and do not purport to be security against future injury ; that the non- existence of the facts covenanted for is a breach for which there can be but a single right of action, and that the first or immediate covenantee has that right, and hence an assign cannot have it. This rule was established in New York in what is con- 86 Other leading cases taking this view are Backus v. McCoy, 3 Ohio 211 ; 17 Am. Dec. 585. See Betz v. Bryan, 39 Ohio St. 320 ; Schofield v. Homestead Co., 32 Iowa 317, 7 Am. Rep. 197. See also Boon v. Mc- Henry, 55 Iowa 202 ; 7 N. W. 503. But if covenantor have no title, and transfers to the grantee no possession, the covenant is broken when the deed is delivered. Zent v. Picken, 54 Iowa 535 ; 6N.W. 750. And as in such a case the right of action accrues then, the statute of limita- tions begins then to run. Mitchell v. Kepler, 75 Iowa 207; 39 N. W. 241; Martin v. Baker, 5 Blackf . (Ind.)232; Wright v. Nipple, 92 Ind. 310, 313; Wysong v. Nealis, 1895, 13 Ind. App. 165, 174; 41 N. E. 388. § 218 COVENANTS. 265 sidered the leading case of Greenby v. Wilcocks, 27 and having been adopted also in early decisions in many other states, has since been followed, often without much dis- cussion. 28 § 218. The rule as to the covenant against incum- brances. — The so-called American doctrine has not been applied as universally to the covenant against incum- brances as it has been to the covenants for seisin and good right to convey. This is perhaps partly due to the fact that at first it was intimately connected with the covenant for quiet enjoyment, 29 or otherwise made a covenant in futuro. This difference in form has been noticed in sev- eral cases other than those cited above. 30 And in addition to such cases, where the covenant has been expressly associated with the covenant for quiet en- joyment, have been others where the covenant against in- cumbrances, implied by statute from the use of the words " convey and warrant," is regarded as embracing a guar- anty for future as well as present enjoyment. 31 But aside from the question of form, the propriety of having the benefit of this covenant belong to the owner of the land for the time being has worked against the rule " 2 Johns. 1, 3 Am. Dec. 379, before the decisions in the English cases of Kingdon v. Nottle, cited supra, §216. 28 Butler v. Barnes, 1891, 60 Conn. 170, 192; 21 Atl. 419; King v. Gilson, 32 111. 348; 83 Am. Dec. 269; Jones v. Warner, 81 111. 343; Smith v. Richards, 1891, 155 Mass. 79; 28 N. E. 1132; Matteson v. Vaughn, 38 Mich. 373; Sherwood v. Landon, 57 Mich. 219; 23 N. W. 778; Mygatt v. Coe, 1891, 124 N. Y. 212; 26 N. E. 611. (The doctrine that the covenant for seisin does not run with the land was based on reasons of a technical character, and the rule established does not appear to bring about as just results as would the rule which gives to the actual sufferer the benefit of the covenant. See 4 Kent's Comm. 472; KawleCov. T., §211). 29 See ante, §199. 80 Andrews v. Appel, 22 Hun 429; Nycev. Obertz, 17 Ohio 71, 75; Carter v. Denman, 23 N". J. L. 260, 273. 81 Worley v. Hineman, 1892, 6 Ind. App. 240, 245; 33 N. E. 260; De- hority v. Wright, 101 Ind. 382. 266 THE LAW OF CONVEYANCING. § 219 which restricted the usefulness of the covenant for seisin; and especially in later cases, which have recognized the injustice of now allowing the old reason as to non- assignability of choses in action to control, this covenant is allowed to be taken advantage of by remote grantees ; for example, in the recent case of Geiszler v. De Graaf j 32 the court held that the reason for holding that this covenant does not run, no longer exists, and that the covenant "at- taches to and runs with the land and passes to a remote grantee through the line of conveyances, whether there is a nominal breach or not when the deed is delivered." And tbis has been the tendency even in some states where the covenant for seisin is regarded as not running with the land. 33 Nevertheless, it appears that in the greater number of states this covenant is classed as one of those that do not run with the land. 34 § 219. Covenants for quiet enjoyment and warranty run with the land. — The covenants for "quiet enjoyment" and "warranty" are, with substantial unanimity, held to be covenants in futuro, running with the land, for the protection of the owner in whose time the breach happens. They are not broken until there is an eviction, and hence they may be enforced by a later owner of the land claim- 32 1901, 166 N. Y. 339; 59 N. E. 993; 82 Am. St. 659. 33 Eichard v. Bent, 59 111. 38 ; 14 Am. B. 1 ; Security Bank v. Holmes, 1896, 65 Minn. 531; 68 N. W. 113; 60 Am. St. E. 495. In Post v. Campau, 42 Mich. 90, 95 ; 3N. W. 272, Judge Cooley suggested that the covenant could have reasonable effect only when the fact that in- cumbrances are of different kinds is recognized : some are permanent in their nature, and it is reasonable to hold that the covenant against them is broken at once and finally, but as to those that are money charges, which cause no loss at once to the covenantee, but may later, a different rule should apply. 3 «Guerin v. Smith, 62 Mich. 369; 28 N. W. 906; Ladd v. Noyes, 137 Mass. 151; McPike v. Heaton, 1900, 131 Cal. 109; 63 Pac. 179; 82 Am. St. 335; Sears v. Broady, 1902 (Neb.); 92 N. W. 214. See Notes, 47 Am. Dec. 569; 82 Am. St. 664. § 220 COVENANTS. 267 ing under the covenantee, whether this owner is grantee, devisee or heir. 35 But when once broken these covenants cease to run with the land. There is then a right of action that should be enforced by the person entitled to take advantage of the covenant at the time of its breach, or, if he be dead, by his personal representative. The subsequent grantee is not entitled to damages for the breach of the covenant occurring before his time. 36 § 220. Subsequent grantees by quit claim deeds have the benefit of such covenants as run with the land. — The benefits of such covenants for title as run with the land will pass to a subsequent grantee by any conveyance that will transfer the title to the land to him; the immediate deed through which he claims need not be a deed with covenants; a quit-claim deed will have the same effect. 37 § 221. "Personal" and "real" as used with reference to covenants for title. — In decisions and discussions re- garding covenants for title, the words "real" and "per- sonal" are used in such a way as to cause some confusion unless certain distinctions are borne in mind. All the cov- enants for title are sometimes called personal, 38 and, again, some or all of them are referred to as "real." 39 The explanation is that where they are spoken of in dis- tinction from the ancient warranty which was "real," in 35 Suydam v. Jones, 10 Wend. 180; 25 Am. D. 552; Baker v. Bradt, 1897, 168 Mass. 58; 46 N. E. 409; Tillotson v. Prichard, 60 Vt. 94; 14 Atl. 302; 6 Am. St. R. 95. 36 Ladd v. Noyes, 137 Mass. 151 ; Provident L. & T. Co. v. Fiss, 1892, 147 Pa. St. 232; 23 Atl. 560; Clement v. Bank, 61 Vt. 298. "Jenks v. Quinn, 1893, 137 N. Y. 223; 33 N. E. 376; Thomas v. Bland, 1890, 91 Ky. 1; 14 S. W. 955; Johnson v. Johnson, 1902, 170 Mo. 34; 70 S. W. 241 ; Troxell v. Stevens, 1899, 57 Neb. 329, 337 ; 77 N. W. 781; Brady v. Spurck, 27 111. 478; Hunt v. Middlesworth, 44 Mich. 448; 7 N. W. 57. 38 For example, in 4 Kent Comm. 470, 471. 39 Martin v. Baker, 5 Blackf. (Ind.) 232; Kingdon v. Nottle, 1 Maule & feelwyn o5o. 268 THE LAW OF CONVEYANCING. § 222 the sense that it bound the warrantor to yield (generally) lands rather than damages as compensation, they may be called personal, because of the remedy they afford; that is, an action for damages. 40 On the other hand, a covenant which has for its object something annexed to, or connected with, or inherent in, real property is often defined as a "real covenant"; it generally runs with the land, and is the only kind that can do so. Hence when those covenants for title that are considered to run with the land are spoken of in contrast with any covenants that do not so run, they are often called "real," as distinguished from the others which are (as not running with the land) called "personal." 41 II. Covenants, Other than Covenants for Title. § 222. General features of these covenants. — In con- veyances there are often covenants other than covenants for title, and, as they may have for their subject-matter almost anything relating to land, they are of almost in- finite variety. Among the more usual kinds of covenants not covenants for title are those providing for the erec- tion and maintenance of fences, dams, etc.; those con- cerning the kind and cost of buildings, or the position of buildings; those relating to the uses of land, for example, that it shall not be used for business purposes, or for some particular business; those regarding the construction and use of party walls; those relating to ways or other ease- ments. 40 "There is a diversity between a warranty which is a covenant real, which bindeth the party to yield lands in recompense, and a covenant annexed to the land which is to yield damages." Co. Litt., 384b. " In the foregoing sketch of the covenants for title only the chief matters concerning them which relate directly to the form and effect of conveyances have been touched upon : many important topics con- nected with them, e. g., matters of pleading and proof, the measure of damages, etc., must necessarily be omitted. $ 223 COVENANTS. 269 One of the features of these covenants, in which they differ from covenants for title, is that while the grantee of land has no occasion for making a covenant for title, either the grantor or the grantee may make one of these other covenants, and may in many cases bind himself and those who own his land after him to do something for the benefit of the land of the other party, or to refrain from doing something regarded as depreciative of that land. Thus the grantee may become the covenantor, and the grantor the covenantee. Covenants relating to land may be made by landown- ers irrespective of a conveyance from one to the other, and some kinds of covenants (or agreements not under seal, and so not strictly covenants), are often so made, for example, agreements concerning party walls, but, for the most part, questions concerning covenants arise in con- nection with conveyances of some interest in land — either leases, conveyances of the fee or mortgages. Some only of the more important features connected with covenants in conveyances of estates in fee can be here considered. Questions in controversies between the original parties to such covenants usually present no special difficulties ; but when the land of one or both of the parties has been transferred it is not in all cases easy to determine against whom and in favor of whom, as subsequent owners of the land, these covenants may be enforced, and, if en- forceable, in what manner they may be enforced. §223. Form — No technical words essential. — Cases often arise where there will be a difference of opinion as to whether a clause is or is not a covenant, and what is claimed by one interested party to be a "condition" may be held to be a covenant, for as no express technical words are essential to create a covenant, words appropri- ate to a condition may make a covenant when such is the 270 THE LAW OP CONVEYANCING. § 224 intent. 1 And as technical words of covenant or agree- ment are not essential to make a covenant, so words ex- pressive of a covenant have sometimes been held to be a grant of an easement rather than a covenant. For example, the plaintiff sues in tort for an interfer- ence by the defendant with an easement claimed by plain- tiff by virtue of the following clause in a conveyance to plaintiff, inserted just after the description : "And said grantors agree that no building shall be erected on said lot next east of said granted premises nearer to the west line of said lot than four feet, being the east line of the premises hereby conveyed." The plaintiff's grantors in this deed owned the adjoining lot referred to in this clause, and after making the conveyance to the plaintiff containing the clause, conveyed this adjoining lot to the present defendant ; it was held that the word "agree" in the clause must be read as meaning "grant," and that therefore there was attached an easement in fee to the plaintiff's land — it was not merely a personal undertak- ing of the grantors — and that the burden of the easement granted by the grantors in their own land remained on the land when it passed to the defendant. 2 § 224. Form — Effect of " heirs and assigns " or simi- lar words in covenant. — As the words "heirs and assigns" were necessary at one time to indicate that certain benefits were to extend beyond the first beneficiary to his successors in title, 3 so now, in cases where a cove- nant is of such a character that it may or may not "run with the land," the presence or absence of the words "heirs ^nd assigns" may have an important influence, among 'other circumstances, on the determination of the question 1 Electric City Land &c. Co. v. West Kidge Coal Co., 1898, 187 Pa. 500, 511 ; 41 Atl. 458. And see ante, §§ 176, 177, 182, 183. 2 Hogan v. Barry, 143 Mass. 538; 10 N. E. 253. See also Wetmore v. Bruce, 1890, 118 N. Y. 319; 23 N. E. 303; Shannon v. Timm, 22 Colo. 167; 43 Pac. 1021; Brew v. Van Deman, 6 Heisk. (53 Tenn.) 433, 439. 8 See ante, § 197. § 224 COVENANTS. 271 as to whether or not it does "run." For example, where the covenant related to the maintenance of a dam the court says: "We think that these covenants run with the land because they were in terms between the parties and their respective heirs and assigns, were connected with the subject of the grant, etc." 4 And again, where the covenant concerned the building of a fence, it is said: " The failure to include the word 'assigns' in the deed is not controlling, if it can reasonably be inferred from the language of the instrument that the parties intended that the covenant should run with the land; but the absence of such a word, or other words of like import, may be considered in connection with the context of the deed in arriving at the intent of the parties in this respect." 5 But this effect is given to such words only when the covenant is such that it may run with the land, and it is doubtful whether in the particular case it does so run. This principle is stated in Mygatt v. Coe, 6 as follows : "We do not think the fact that the covenant in question ran to the grantee, her 'heirs and assigns' is material. Whatever confusion may exist in the cases with reference to the use of these words * * * it has never been held that a covenant which, in its nature or otherwise, is per- sonal is made to run with the land by the mere employ- ment of these words." And as to the effect to be given to "words of like im- port" 7 substantially the same thing may be said ; that is, 4 Nye v. Hoyle, 1890, 120 N. Y. 195, 203; 24 N. E. 1; see Hart v. Lyon, 90 N. Y. 663. 5 Brown v. So. Pac. E. E. Co., 1899, 36 Ore. 128, 135; 47 L. E. A. 409; 58 Pac. 1104. And so in the recent case of Los Angeles &c. Land Co. v. So. Pac. E. Co., 1902, 136 Cal. 36, 42-44; 68 Pac. 308, in de- ciding that a covenant restricting the use of land was not a covenant running with the land, the court attaches importance to the absence of "assigns" or similar words. 6 1895, 147 N. Y. 456, 467; 42 N. E. 17. 7 36 Ore. 135. 272 THE LAW OF CONVEYANCING* § 225 if a covenant is of such a character that it cannot run with the land it cannot be made to so run by any state- ment or agreement of the parties that it shall do so — as, for example, that it "shall run with the land." 8 So, where a quarry company granted a railway company a right of way over its lands and covenanted that all products of the quarry should be transported over this railway, and by an express clause in the indenture, executed and ac- knowledged by both parties, it was agreed that "All and singular the grants and provisions herein set forth shall be binding and obligatory upon the respective parties hereto, their respective successors, lessees and assigns" — it was nevertheless held that the successors in title to the quarry were not bound by this "traffic agreement," which was a personal covenant between the original parties. 9 § 225. The form of the deed in which covenants are — Effect of acceptance by grantee of deed poll containing covenants. — Technically, to bind the grantee the deed should be in the form of an indenture, signed and sealed by him as well as by the grantor. But as between the original parties the grantee himself may be bound by ac- cepting a deed poll containing an agreement, for instance, to fence. And he will be considered so bound even though in the same jurisdiction it may be held that his successors in title to the land would not be bound. 10 In many de- cisions nothing is said as to whether the deed is an in- denture or a deed poll, it being held, in general terms, that not only the original grantee but his successor in title is bound by covenants — for example, in Kelly v. Nypano R. R. Co., 11 the defendant railroad company was 8 Glenn v. Canby, 24 Md. 127; Wilmurt v. McGrane, 1897, 16 App. Div. (N. Y.) 412, 417 ; Masury v. Southworth, 9 Ohio St. 340, 347, 348. 9 Kettle River Ry. Co. v. Eastern Ry. Co., 41 Minn. 461; 43 N. W. 469; 6L. R. A. 111. "Parish v. Whitney, 3 Gray 516; Kennedy v. Owen, 136 Mass. 199. 11 1901, 200 Pa. St. 229; 49 Atl. 779; 86 Am. St. R. 715. § 225 COVENANTS. 273 held liable on a covenant to "fence and keep such road fenced," which was contained in a conveyance of a right of way by the plaintiff to another railroad company whose property the present defendant had acquired by foreclos- ure proceedings; the original conveyance may have been an indenture (which form is largely used in Pennsyl- vania) or a deed poll, but this point is not mentioned or discussed as it is in the Massachusetts cases. But in many cases it has been expressly held that the assigns of the grantee in a deed poll not signed by him, may be bound by the stipulations in the deed, for by the grantee's acceptance of the, deed the obligation becomes binding upon him as owner of the land, and may pass to his successors in title. For example, in a deed to a rail- road company of a right of way, a provision like that in the last case, though merely in a deed poll accepted by the grantee company, but not signed by it, has been held binding upon the successor of a railroad company, which obtains title through foreclosure of a mortgage of the rail- road property. "The acceptance of the deed imposed a burden upon the land which was not only binding upon the original grantee, but runs with the title and is equally binding upon all who claim through the original grantee." 12 And in Hickey v. L. S. &c. R. Co. 13 the deed contained what was called a condition and agreement "that the grantee, his heirs and assigns, shall make and maintain fences * * * which condition and obligation shall be per- petually binding on the owners of the land." The grantee afterward sold portions of the land. The fences not being maintained, the grantor constructed them, and in this ac- tion sought to recover from the original grantee the expense "Lake Erie, etc., R. Co., v. Priest, 131 Ind. 413; 31 N. E. 77; Post v. Railroad Co., 50 Hun 301. 13 1894, 51 Ohio St. 40; 36 N. E. 672; 23 L. R. A. 396; 46 Am. St. R. 545. 18 — Bkews. Con. 274 THE LAW OF CONVEYANCING. § 226 of such construction. The court held that the action was improperly brought against the first grantee, because the covenant was so connected with the estate as to run with the land and make the original grantee's assigns liable. "Nor," the court says : "is this principle to be restricted in its application to leases or deeds inter partes executed by both lessor and lessee, or grantor and grantee. Where a grantee accepts a deed and goes into possession of the premises under it he is bound as effectually as if he had signed and sealed the instrument. Although not executing the instrument, he should be deemed to have entered into an express undertaking to do what the deed says he is to do, and such undertaking or obligation im- posed upon the grantee, if not technically a covenant running with the land, is nevertheless an agreement of the grantee, evidenced by his acceptance of the deed, which might bind him and his personal representatives, and, by express words, his heirs and- assigns." And as in this case the obligation was to be binding on the "owners of the land," this provision is held to bind the original grantee to maintain the fences only during the time he is the owner of the land. 14 § 226. Distinction sometimes made between benefits and burdens. — The general rule is that the benefits of such covenants as concern or relate to the land will pass to subsequent owners who derive title from the cove- nantee. 15 But the burdens imposed by a covenant will not as generally be held to pass with the land to the transferee of the covenantor, for some courts, following what seems to be the English doctrine, making a distinc- tion between benefits and burdens, 16 appear to be of opin- 14 The remark as to the liability in this case of the original grantee's assigns is "dictum." 15 National Bank v. Segar, 39 N. J. L. 173, 184 et seq. ; Graves v. Deterling, 1890, 120 N. Y. 447; 24 N. E. 655. 16 Keppel v. Bailey, 2 Myl. & K. 517; Austerberry v. Oldham, 29 Ch. D. 750. § 227 COVENANTS. 275 ion that the latter will not be enforceable against the sub- sequent owner of the covenantor's land. 17 There are, however, many decisions in this country holding that the burdens imposed by covenants (as well as benefits given) will pass with the land. 18 § 227. Restrictive covenants and conditions, as to use of land, buildings, etc. — In order to secure and maintain uniformity and harmony in the character of buildings erected in a particular locality, and to maintain the suit- ableness of the neighborhood for buildings and uses of a special character, or in order sometimes to secure to a landowner some special advantage in trade, agreements or conditions of one form or another are often inserted in conveyances. These provisions are generally restrictive in character. They appear sometimes in the form of con- ditions providing for a forfeiture on their breach, 19 and sometimes they appear as reservations of easements. They may be created without an express mention in the deed of conveyance where a reference is made in it to a plat on which is designated, for example, a "building line" be- yond which it is intended no building shall extend. 20 And even an understanding not evidenced by any writ- ing, but arising from the exhibition of a plan showing restrictions upon building, has been held to create ease- ments as to the building line. 21 Such restrictions appear, however, to be more usually drawn in the form of cove- nants, and are generally declared to be intended to run with the land. The effect of such provisions in creating » See Tardy v. Creasy, 81 Va. 553 ; 59 Am. B. 676 ; Costigan v. Penn. E. E. Co., 1892, 54 N. J. L. 233, 242; 23 Atl. 810. 18 See cases cited above in last section; Gilmer v. Mobile &c. Ey. Co., 79 Ala. 569; Hottell v. Farmers' Association, 1898,25 Colo. 67; 53 Pac. 327; 71 Am. St. E. 109; Bean v. Stoneman, 1894, 104 Cal. 49, 37 Pac. 777; 38 Pac. 39 ; Fitch v. Johnson, 104 111. 111. 19 See instances above, § 182. 20 Simpson v. Mikkelsen, 1902, 196 111. 575; 63 N. E. 1036. "Maxwell v. East Eiver Bank, & Bosw. (N. Y.) 124; Tallmadge v. East Eiver Bank, 26 N. Y. 105. 276 THE LAW OF CONVEYANCING. § 228 incumbrances within the meaning of the covenant against incumbrances has been noticed. 22 The remedy usually applied for the practical enforce- ment of these restrictive provisions is an injunction re- straining their violation. And if not unreasonable or contrary to public policy (as, for instance, in unduly re- straining trade), 23 they will be enforced not only between the original parties, but often between their successors. § 228. Building restrictions in pursuance of a "gen- eral plan." — One of the most frequent uses of restrictive clauses in conveyances is where the owner of a tract of land divides it into lots, and conveys the lots to separate purchasers, subject to conditions or stipulations of a char- acter to operate as inducements to the purchaser. In such cases where there is a general plan regarding building or use, etc., adopted by the owner, in consideration of which general scheme each purchaser has bought — the restrict- ive covenants being inserted in each deed, being intended for all the lands — each purchaser has the benefit of the restrictions, and — as owner of one of the lots — is subject to them. He has attached to his own lot a right held to be, in many cases, in the nature of an easement in the lots of the other purchasers ; and each purchaser may enforce this right against any other purchaser in a court of equity. Therefore, a purchaser of lots may be held at the suit of the grantee of another lot, to conform to a restriction as to a building line. 24 And it is not necessary in order to hold a purchaser to this line that the restriction should be mentioned in the immediate conveyance to him, if by plat and recorded deeds in his chain of title the line is designated. 25 So restrictive provisions as to the use of 21 See supra, § 201. 83 See post, § 230. 24 Hamlen v. Werner, 144 Mass. 396; 11 N. E. 684. 25 Ewertsen v. Gerstenberg, 1900, 186 111. 344 ; 57 N. E. 1051 ; 51 L. K. A. 310; Townsend's Appeal, 1896, 68 Conn. 358; 36 Atl. 815. § 228 COVENANTS. 277 the premises for residence purposes only, etc., may simi- larly be enforced by one grantee against another. 26 Great weight is attached in many courts to the fact that there is a general plan; and the right of purchasers to enforce such restrictions against other purchasers is sometimes said to be dependent on the fact of a general scheme of improvement adopted by the owner of a larger tract. 27 The fact that there is a general plan with regard to which each purchaser has bought, is considered as indi- cating that the restrictions were not merely personal to the grantor and for his benefit alone, but for the benefit of all the lands and each purchaser; and as each buys with knowledge of the general plan, he is regarded as as- senting to the plan, and may be made to comply with it by an owner of any other lot without regard to which of the lots was first sold. 28 And as such restrictions are not for the benefit of the original grantor alone, while he may waive his own right to enforce them, he cannot release or waive the rights of his grantees to do so. 29 But restrict- ive clauses are often thus enforced without being part of a general plan, if it appears in some other way that they are not merely personal to the grantor. They are en- forced because it would be inequitable as against the owners of adjoining estates not to enforce them, and be- cause it would be unjust to permit one taking an estate, with notice of a valid agreement respecting its use, to have his estate freed from its obligations. 30 * Hills v. Metzenroth, 1899, 173 Mass. 423; 53 N. E. 890; Hopkins v. Smith, 1894, 162 Mass. 444; 38 N. E. 1122. See Frink v. Hughes, 1903 (Mich.) ; 94 N. W. 601; 10 Detroit Leg. News 106. "Summers v. Beeler, 1899, 90 Md. 474; 45 Atl. 19; 78 Am. St. R. 446. 88 De Gray v. Monmouth Beach Co., 50 N. J. Eq. 329; 24 Atl. 388; Eq. Life Assur. Soc. v. Brennan, 1896, 148 N. Y. 661; 33 N. E. 173. " 9 Ivarson v. Mulvey, 1901, 179 Mass. 141 ; 60 N. E. 477. ,0 Whitney v. Union Ry., 11 Gray 359; 71 Am. Dec. 715; Frink v. Hughes, 1903 (Mich.) ; 94 N. W. 601 ; 10 Detroit Leg. News 106; Muz- zarelli v. Hulshizer, 1894, 163 Pa. St. 643; 30 Atl. 291; Post v. Weil, 115 N. Y. 361; 22 N. E. 145; 12 Am. St. 809; 5 L. R. A. 422-at end of opinion. 278 THE LAW OF CONVEYANCING. § 229 Though they will not be enforced in equity in favor of an adjoining owner unless it appears from the deed, read in the light of the circumstances under which it was made, that the restrictions were inserted for the benefit of this adjoining owner. 31 It will be noticed that in many cases where restrictive clauses are enforced between successors of the original parties they are referred to as covenants "running with the land," but it appears that they will be enforced in equity, generally, against those having actual or construct- ive notice of them, without regard to this particular qual- ity, and even where there is no legal remedy concern- ing them as covenants running with the land at law, or where there is no legal privity of estate or contract be- tween the person who seeks to enforce the restriction in equity and the person against whom he seeks to enforce it. Indeed, the remedy by injunction, if sought in time, is so complete and satisfactory, that actions at law for dam- ages for the breach of such restrictive covenants seem sel- dom to arise. §229. The duration of such restrictions — Effect of laches, waiver, changes in neighborhood, — A question in regard to such restrictions is : How long may they encum- ber the land and restrain its free use ? Though in form unlimited as to time, will the courts perpetually compel their observance? It appears that such restrictive covenants may lawfully endure perpetually, that is, they are not void because they are expressed to be unlimited as to time. But circumstances may arise which would render their enforcement inequitable, so, practically, while in form perpetual, they actually are not so in perhaps the major- ity of cases. The right to the benefit of them may be lost by laohes "Hays v. St. Paul Church, 1902, 196 111. 633; 63 N. E. 1040. § 229 COVENANTS. 279 or may be waived, and if the party entitled to enforce them neglects to do so with reasonable promptness, when a violation occurs, his acquiescence in the violation and his delay in seeking a remedy, will prevent relief in a court of equity, not only for him but for his grantees. 32 So if the character of a neighborhood has changed since the covenant was entered into, a court of equity will often decline to enforce it, because it would be inequi- table to do so and would impose unjust burdens on the owner of the land, as the reason for the original making of the restrictive covenant has ceased to exist. Especially will a court of equity decline to enforce such a restriction when the party seeking its enforcement and his predecessors in title have contributed to, or been responsible for, the change in the character of the neigh- borhood, 33 for in such a case the person entitled to the benefit of the restrictive covenant may by his conduct have put himself in such an altered relation to the person bound by it as to make it manifestly unjust for him to ask a court to enforce the restriction by injunc- tion. 34 While a lot owner who has thus violated a gen- eral scheme of improvement cannot restrain another from. doing what he himself has done, relief will never- theless be- given him if his own violation of the restric- tions was not substantial and material. 35 Where there has been a complete change in the neigh- borhood, as, for example, from residential to a business character, so as to defeat the purposes of the covenant as originally made, equity will not in all cases enforce the covenant, although the person seeking its enforcement is not responsible for the changed conditions. 82 Trout v. Lucas, 1896, 54 N. J. Eq. 361 ; 35 Atl. 153. 33 Bedford v. British Museum, 2 Myl. & K. 552. 34 Jenks v. Pawlowski, 1893, 98 Mich. 110; 56 N. W. 1105; 39 Am. St. E. 522; Sayers v. Collyer, 28 Ch. D. 103, 108. 35 Bacon v. Sandberg, 1901, 179 Mass. 396, 400; 60 N. E. 936; McGuire v. Caskey, 1900, 62 Ohio St. 419; 57 N. E. 53. 280 THE LAW OF CONVEYANCING. § 230 In such cases, though the defendant is violating the re- striction, yet equity will not enforce it against him if the burden placed on him by so doing would be clearly dis- proportionate to the benefit conferred on the plaintiff, especially where damages will compensate the plaintiff, and the injunction, if granted against the defendant, could not, in any event, change the character of the neighborhood . 36 The granting or refusing of relief in such cases rests in the discretion of the court and must depend on the cir- cumstances of each case. Even if, for example, there has been a change in the character of the neighborhood, or in the uses of adjacent land, this will not of itself deprive a lot owner of the right to restrain in equity the violation of a restrictive covenant made under former conditions, when it is still of substantial value and real benefit to him, especially if he is not responsible for the changed conditions. 37 § 230. Provisions in effect restraining competition in trade. — The grantor's design may be to obtain an advan- tage by restricting competition, and stipulations having this effect have been sometimes upheld as not being un- lawful restraints on trade, but as reasonable provisions for the benefit of the grantor as owner of the land retained by him. For example, in Star Brewery Co. v. Primas, 37a the restrictive clause was: "The premises hereby con- veyed are not to be used for saloon or dramshop purposes so long as the grantor owns" a certain house in the 35 Jackaon v. Stevenson, 1892, 156 Mass. 496 ; 31 N. E. 691 ; 32 Am. St. R. 476; Amerman v. Deane, 1892, 132 N. Y. 355; 30 N.E. 741; 28 Am. St. R. 584. "Rowland v. Miller, 1893, 139 N. Y. 93; 34 N. E. 765; 22 L. R. A. 182; Star Brewery Co. v. Primas, 1896, 163 111. 652; 45 N. E. 145; Lan- dell v. Hamilton, 1896, 175 Pa. St. 327; 34 Atl. 663; 177 Pa. St. 23; 35 Atl. 242; 34 L. R. A. 227; Reilly v. Otto, 1896, 108 Mich. 330; 66 N. W. 228 ; 2 Detroit Leg. News 873. 8711 1896, 163 111. 652; 45 N. E. 145. § 231 COVENANTS. 281 neighborhood which was intended to be used for saloon purposes by the grantor ; and the restriction was intro- duced into the deed for the purpose of preventing compe- tition in the same business in the neighborhood. The court called this clause a "negative covenant," and at the suit of the grantor enjoined a subsequent grantee who had taken the premises with notice of the restriction from using them for the prohibited purpose. And a similar provision inserted in a deed for apparently a similar pur- pose, that is, to prevent competition, was enforced against a subsequent grantee in Sutton v. Head, 38 and in Hodge v. Sloan, 39 where the grantee agreed not to sell sand from the purchased lot in competition with the grantor's busi- ness, conducted on an adjoining lot, the agreement was enforced in equity on behalf of the grantor and against the grantee's vendee, though two judges dissented on the ground that the covenant was of a personal nature between the original grantor and grantee. 40 On the other hand, what seems to be the correct doc- trine is held by some courts, that it is not enough to warrant a court of equity in enforcing such an agreement, against a subsequent owner of the land, that it indirectly benefits the land of the original covenantee by preventing competition in trade. To be so enforced the covenant must more directly relate to or concern the land. 41 § 231. Covenants in conveyances relating to party walls. — For the purpose of reducing the expense of erect- ing buildings, agreements are frequently inserted in deeds conveying lands, or are entered into between adjoining landowners, concerning the construction and use of party ' B 86 Ky. 156; 5 S. W. 410; 9 Am. St. R. 274; on the ground, it seems, in this case that the covenant ran with the land. 39 107 N. Y. 244; 17 N. E. 335; 1 Am. St. R. 816. 40 And see Robbins v. Webb, 68 Ala. 393. 41 Kettle River Co. v. Eastern &c. Co., 41 Minn. 461; 43 N. W. 469; 6 L. R. A. Ill; Norcross v. James, 140 Mass. 188; 2 N. E. 946; West Va. Trans. Co. v. Pipe Line Co., 22 W. Va. 600, 635. 282 THE LAW OF CONVEYANCING. § 231 walls. Such agreements occur, generally, when the land is in a city or town where it is desirable to make the most of each lot. The party wall is generally a wall standing partly on the land of each adjoining owner, being a di- vision wall between their buildings and used by both for the purposes of an exterior wall. Where there is no stat- ute regulating the matter, the right to use the wall and the obligation to pay for its use arise usually from con- tract. The right and obligation may originate in a covenant contained in a deed from an owner of several adjoining lots who conveys them to different grantees. For ex- ample, in Richardson v. Tobey, 42 the owner of several adjoining lots conveyed one of them by a deed, which was recorded, containing this provision : " It is under- stood and agreed that the partition wall of any building hereafter erected on the granted premises, or the adjacent lot on either side, may be placed one-half on the granted premises and one-half on the adjacent lot, and the owner of the lot adjacent to such building so erected shall, whenever he uses such wall, pay one-half the cost of the same, or so much thereof as he may use." The grantee erected a wall one-half on the land conveyed to him and one-half on one of the adjoining lots ; this ad- joining lot was then conveyed by the grantor of the first lot to another by a warranty deed, who conveyed it to still another, who built on the lot, using the wall erected by the first grantee ; and it was held that this last grantee was liable for the use of the wall to the first grantee, who had built it. The court considered that this covenant could be regarded either as a covenant running with the land, creating mutual rights and obligations on the own- ers for the time being, or as giving the first grantee a right of property in the wall which had been built under the grant in the first deed ; and the last grantee of the " 121 Mass. 457 ; 23 Am. R. 283. $ 232 COVENANTS. 283 adjacent lot having used the wall, should pay for its use under either view. But the fact that a stipulation regarding the use of and payment for a party wall is contained in a conveyance of land will not make the stipulation binding on subsequent grantees where it is a personal stipulation between gran- tor and grantee. As if one has already built a party wall between his two adjoining lots and, having conveyed one lot, afterward conveys the other (on which part of the wall stands) by a deed containing a clause providing that the grantee, by accepting this deed, agrees "for himself and his heirs and assigns" to pay the grantor the value, at the time of use, "of so much of said party wall stand- ing on the premises as he or they may use;" the promise is personal to the grantor, and will not be binding on a grantee of the grantee. 43 § 232. Agreements as to party walls without a convey- ance. — Agreements concerning party walls appear to be more often made where there is no grant or conveyance of land. Two adjoining owners generally agree, by an instrument executed with the formalities of a deed, pur- porting to bind themselves, their heirs and assigns, that a wall about to be built on the division line may be built by one of them, half on each lot, and that the other shall pay half the cost of the wall when he makes use of it. 44 Under the recording laws of many states these instru- ments may be recorded (if properly acknowledged, etc.), and in such cases their record will afford constructive notice of their provisions to subsequent purchasers of either lot; and where they are not merely personal cov- enants between the immediate parties they may affect sub- sequent owners of the adjoining lots. The questions "Lincoln v. Burrage, 177 Masa. 378; 59 N. E. 67. "See forms of such agreements: Burr v. Lamaster, 1890, 30 Neb. 688; 46 N. W. 1015; 27 Am. St. E. 428; King v. Wight, 1892, 155 Mass. 444; 29 N. E. 644. 284 THE LAW OF CONVEYANCING. § 232 between the immediate parties relate generally simply to the construction to be put on the contract, the amount to be paid, etc. Generally the most difficult questions connected with such agreements are those that arise as to the rights and liabilities of the assigns of the parties ; that is, for exam- ple, whether the assignee of the builder of the wall can recover on such a covenant for contribution, and whether the assign of the party who covenanted with the builder is liable on the covenant. The decisions on these questions are not in harmony ; and in the same court different conclusions are reached in cases where the facts vary but little — in one case the covenant being held to be personal, and in the other real. If it appears that the intention of the parties in making the agreement was to charge upon the land rather than upon the person the burden and expe'nse of the party wall, and also to confer on the owner of each of the lots the right to construct the wall, on condition that any owner of the ad- joining lands using the wall should pay for what he uses, and that the agreement relates not merely to the present, but to the future — the agreement may be regarded as a covenant real, running with the land ; but if the agree- ment is a present one, and the person who is to build on the one hand and the person who is to pay on the other, are clearly designated, and the land is not charged with the obligation, the covenant is personal and does not affect the assigns of the parties. 45 In Adams v. Noble 46 the agreement is set out at length, and the court, recognizing the conflict among the author- ities, divides them into two classes, "one class holding that the covenant for payment is personal and does not ib Compare Mott v. Oppenheimer, 1892, 135 N. Y. 312; 31 N. E. 1097; ' 17 L. E. A. 409; with. Sebald v. Mulholland, 1898, 155 N. Y. 455; 50 N.E. 260, where the material parts of the agreements are given, and the former case "distinguished" in the latter. 46 1899, 120 Mich. 545 ; 79 N. W. 810 ; 6 Detroit Leg. News 279. § 232 COVENANTS. 285 run with the land, when it is apparent from the contract that the payment should be made to the party building the wall, and there are no words indicating that the right to receive payment shall pass to his assigns ; the second class holding that the covenant runs with the land, and passes to the purchaser or assignee when the contract evinces such intention, and where the language used is between the parties and their assigns, and the contract declares the covenant shall be perpetual." In many cases these agreements have been generally considered as not of the nature of covenants running with the land, and that therefore the grantees of the original parties cannot, because of their ownership of the adjacent lots, take advantage of the benefits of such covenants or be subjected to the burdens of paying for the wall, but that the right of recovery is personal to the builder, and the obligation of paying is on the original covenantor only. 47 There seems, however, to be no good reason why party wall agreements should not run with the land if in partic- ular cases they are evidently intended to do so. 48 "Gibson v. Holden, 115 111. 199; 3 N. E. 282; 56 Am. R. 146, and note. "See Kimm v. Griffin, 1896, 67 Minn. 25; 69 N. W. 634; Burr v. Lamaster, 1890, 30 Neb. 688; 46 N. W. 1015; 27 Am. St. 428; Conduitt v. Eoss, 102 Ind. 166; 26 N. E. 198; King v. Wight, 1892, 155 Mass. 444; 29 N. E. 644. CHAPTER XV. SIGNING. §233. Signing not essential at §238. Signing by another for common law. grantor. 234. Now generally necessary in 239. Signing under power of at- the United States. torney. 235. Place of signature. 240. Execution of conveyance 236. Form of signature — Signing by corporation. by mark. 241. Conveyances by municipal, 237. Form of signature — Part of religious or literary cor- name — Initials. porations. § 233. Signing not essential at common law. — The "execution" of a conveyance may include in its broad sense all the formalities of signing, sealing, attestation, acknowledgment and delivery; and in a few states all these are necessary to constitute the execution. Sealing and delivery were the important elements in the execution of a deed at common law after the Norman Conquest, and signing was not required for its validity. 1 It is often stated, as if it were a matter as to which no doubt has existed, that the statute of frauds 2 required deeds to be signed, 3 but the true view seems to be that the statute did not apply to instruments under seal, and that it is not because of that statute that deeds are signed in addition to the other formalities of execution. 4 x Shep. Touch., p. 56. 2 See 29 Car. II, c. 3 (1677). 3 See, for example, 2 Bl. Comm. 306. * Aveline v. Whisson, 4 M. & G. 801; 43 Eng. C. L. 414; Taunton v. Pepler, 6 Madd. 166; Challis R. Prop. 327; Shep. Touch. 56, note 24; Parks v. Hazlerigg, 7 Blackf. (Ind.) 536, 585; 43 Am. Dec. 106. (286) § 234 signing. 287 § 234. Now generally necessary in the United States. — However this may be, the laws of most of the states require expressly that all deeds conveying real estate shall be signed by the party making them, or by his agent duly constituted. While there may still be some states in which sealing and delivery will be considered a sufficient execution without signing, 5 it could not be generally so held; and under most of our statutes it would undoubtedly be held that an unsigned instrument, though delivered, is a nullity. For example: A mortgage attested, acknowl- edged, delivered and recorded, but not signed, is not merely defective but void, where the statute requires all conveyances to be "in writing, sealed by the grantor, and subscribed with his own hand * * * or by his attor- ney," and a subsequent grantee of the premises, though he has assumed and agreed to pay the mortgage, is not estopped from claiming that the incumbrance has no existence in fact. 6 And the naming of one as grantor in a deed will not make it his deed unless it is signed by him (and sealed where necessary) . 7 § 235. Place of signature. — While it is customary, and is the better practice, to sign the deed at its end, it seems that it is not essential (under statutes which provide simply for "signing") that the signature should be placed there if it appears in the body of the instrument, especially if the deed was written by the grantor himself who has inserted his name in it, 8 or even if the deed was written by another, with the name so inserted at the 6 Sicard v. Davis, 6 Pet. 124. 6 Goodman v. Randall, 44 Conn. 321. And see, Jones v. Gurlie, 61 Miss. 423; Boothroyd v. Engles, 23 Mich. 19; Miller v. Ruble, 107 Pa. St. 395. But see, contra, Martin v. Nixon, 92 Mo. 26; 4 S. W. 503. 7 Adams v. Medsker, 25 W. Va. 127; Thomas v. Caldwell, 50 111. 138. 8 Saunders v. Hackney, 10 Lea (78 Tenn.) 194; Smith v. Howell, 11 N. J. Eq. 349, 354. 288 THE LAW OF CONVEYANCING. § 236 grantor's direction, and acknowledged by him and delivered as his deed. 9 The statutes of many states, however, require the in- strument to be "subscribed," 10 and under such a provi- sion the deed should be signed at its end or bottom, for, though the question has not often arisen as to deeds, it has been often held in cases where the question has been raised as to other instruments that there is a difference between "signing" and "subscribing." 11 §236. Form of signature — Signing by mark. — By "signing" is generally understood the writing of one's name by himself, but there may be a valid signing with- out the grantor's name being written either by himself or another. The primary meaning of the word sign is mark (sig- num), and the statutory requirement as to signing is made for the purpose of securing some visible manifesta- tion of the intention of the grantor to be bound. The best way to signify this intention is that usually adopted by the grantor in himself writing his name in full, but he may adopt any " mark " as his signature, 12 and (in the absence of a statute providing otherwise) whether he can write his name or not. 13 It is customary where a mark is used, to write near the device adopted, or made by the grantor, the words " his mark," but this is not necessary, 14 nor is it necessary that a signing by mark should be specially attested by "Newton v. Emerson, 66 Texas 142; 18 S. W. 348. 10 And a few that it shall be signed at its foot: Winston v. Hodges, 1893, 102 Ala. 304; 15 So. 528. 11 Stone v. Marvel, 45 N. H. 481 ; Davis v. Shields, 26 Wend. 341 ; James v. Patten, 6 N. Y. 9. But see Cal. Canneries Co. v. Scatena, 1897, 117 Cal. 447; 49 Pac. 462. "Devereux v. McMahon, 1891, 108 N. C. 134; 12 S. E. 902; 12 L. R. A. 205 ; Truman v. Lore, 14 Ohio St. 144. ls Mackay v. Easton, 19 Wall. 619, 631. 14 Sellers v. Sellers, 98 N. C. 13 ; 3 S. E. 917. § 237 signing. 289 witnesses — unless witnesses to deeds otherwise signed are required. 16 Witnesses are required by the statutes of some states where the signing is by mark. Under such a statute it has been held that the signature by mark is not invalid, because not witnessed, but that it is not prima facie a signature unless witnessed, though it may be shown to be such. 16 When not required by statute witnesses may be desira:- ble where the signing is by an ordinary cross, which is not as easily identified as is the usual signature by name • — the signature by mark may then be proved by the wit- ness, and in practice it is usual to have witnesses for this reason, especially if the instrument is not acknowledged. Where, however, an instrument is properly acknowledged, the grantor must be regarded as having adopted the sig- nature — whether mark or name — and as the acknowledg- ment is prima facie evidence of execution, 17 witnesses are of little advantage in most cases. 18 It is to be noted that the matter of signing by mark is regulated by statute in many states, and in some a sig- nature by mark is allowable only when the signer is un- able to write. 19 § 237. Form of signature — Part of name — Initials. — The signing of an instrument by the Christian name alone, where there is no doubt as to the identity of the person and of his intention to be bound, has been con- "Meazles v. Martin, 1892, 93 Ky. 50; 18 S. W. 1028; Finley v. Pres- cott, 1899, 104 Wis. 614; 80 N. W. 930; 47 L. E. A. 695. 16 Miller ex parte, 49 Ark. 18 ; 3 S. W. 883 ; Davis v. Semines, 51 Ark. 48; 9 S. W. 434. 17 See post, § 259. 16 Mackay v. Easton, 19 Wall. 619, 632; Meazles v. Martin, 1892, 93 Ky. 50; 18 S. W. 1028. " See Re Guilfoyle, 1892, 96 Cal. 598; 31 Pac. 553; 22 L. E. A. 370. 19 — Brews. Con. 290 THE LAW OF CONVEYANCING. § 238 sidered a sufficient signing, 20 as has been the signing by- initials alone. 21 And where the grantor's name appears in one and the same form in both the body of the deed and in the certificate of acknowledgment, but is signed in a different form, it has been held in many cases that such a variance does not invalidate the conveyance, 22 but, on the other hand, there is authority for the view that a deed so executed appears to be signed and acknowledged by different persons, and that the record of such an in- strument is not admissible without further proof of the identity of the person signing and acknowledging. 23 In the preparation of conveyances such variations should be avoided ; and where, in the examination of titles, they are found, as well as where the signatures are irregular or unusual(as by part of the name, etc.), they should, to avoid all question, be corrected by a new con- veyance, if possible, or by obtaining proof that the sub- stituted or irregular signing was intended by the signer to bind him. § 238. Signing by another for grantor. — It is not gen- erally necessary that the grantor should personally sign his deed, for if it be signed by another person for him, under his direction and in his presence, it is generally re- garded as effective as if actually signed by him. 24 In these cases the distinction between deeds so executed and those executed by an attorney — who must be author- ized by an instrument equal in dignity to the instrument 20 Zann v. Haller, 71 Ind. 136 ; 36 Am. R. 193 ; Knox's Estate, 131 Pa. St. 220 ; 18 Atl. 1021 ; 6 L. R. A. 353 ; an interesting case discussing signatures. 21 Sanborn v. Flagler, 9 Allen 474; Salmon &c. Mfg. Co. v. Goddard, 14 How. 446. 22 Hill v. Banks, 1891, 61 Conn. 25; 23 Atl. 712; Middleton v. Findla, 25 Cal. 76; Houx v. Batteen, 68 Mo. 84; Zann v. Haller, 71 Ind. 136. 23 Boothroyd v. Engles, 23 Mich. 19. "Gardner v. Gardner, 5 Cush. 483; 52 Am. Dec. 740; Middlebrookv. Barefoot, 121 Ala. 642; 25 So. 102; Lewis v. Watson, 1892, 98 Ala. 479; 13 So. 570; 39 Am. St. R. 82; 22 L. R. A. 297. § 239 signing. 291 to be executed — is recognized. If the disposing capacity is present, the mere fact that the grantor, for any reason, uses the hand of another instead of his own to perform the physical act of signing, makes the signing none the less his act. "To hold otherwise would be to decide that a person having a clear mind and full capacity, but through physical inability incapable of making a mark, could never make a conveyance or execute a deed, for the same incapacity to sign and seal the principal deed would prevent him from executing the letter of attorney under seal." 25 And even if the grantor is not present when his signa- ture is affixed by another he may afterward adopt the signing by acknowledging the deed as his own, although no previous authority had been given the signer. 26 §239. Signing under power of attorney. — A deed signed by another person than the grantor is, however, usually signed by him by virtue of a" power of attor- ney." In such a case the deed, to follow the most generally approved form, should contain only the name of the prin- cipal till the testimonium clause is reached, being in fact of the same form as an ordinary deed to be signed by the principal. The testimonium clause may then be : " In witness whereof the said A B has, by his attorney in fact, C D, hereunto set his hand (and seal, if needed) this day , etc. (Witnesses A B. [Seal] if needed. ) By C D, his attorney in fact." 25 Gardner v. Gardner, 5 Cush. 483 ; 52 Am. Dec. 740. While this is the generally accepted view, the construction placed on particular stat- utes in some cases will probably prevent it from being universally ac- cepted: Wallace v. McOullough, 1 Rich. Eq. (S. C.) 426; Simpson v. Commonwealth, 89 Ky. 412; 12 S. W. 630. 26 Blaisdell v. Leach, 1894, 101 Cal. 405; 35Pac. 1019; 40 Am. St. E. 65; Bartlett v. Drake, 100 Mass. 174; 97 Am. Dec. 92; 1 Am. E. 101; O'Donnell v. Kelliher, 1895, 62 111. App. 641 ; Nye v. Lowry, 82 Ind. 316. 292 THE LAW OF CONVEYANCING. § 239 It is the usage in many localities to insert in the deed a brief recital as to the power of attorney, its place of record, etc., which is convenient for purposes of refer- ence. 27 The deed should be in the name of the principal and be executed as his deed by the attorney, 28 and not as the deed of the attorney. 29 And where the deed is executed as the deed of the attorney parol evidence of an intention to bind the principal has been held inadmissible. 30 To avoid all question as to the form of signing, the attorney should sign both the principal's name and his own, and not merely the principal's, 31 though where the fact of the deeds being executed by the attorney is stated in the body of the deed, a signing by him of the princi- pal's name alone has been held enough. 32 And it should be noted also that the strictness of the older general rules, as to the form of the deed and the signature by an attor- ney, is modified by statute in several states — the general purport of such statutes being that it is enough if it ap- pears from the deed as a whole, or from the signature, that the conveyance is that of the principal and not that of the attorney. 33 While there is thus a generally approved form of deed for one acting under a power of attorney, still, even in the absence of such statutes as those just referred to, it has been held that no precise order of words or form of expression is indispensable if it appears from the face of 27 The testimonium clause will, of course, be varied to suit the form of deed used. See above, pp. 23 and 25. 28 Elwell v. Shaw, 16 Mass. 42. M Williams v. Paine, 1897, 169 U. S. 55, 77; Clarke v. Courtney, 5 Pet. 319; Bassett v. Hawk, 114 Pa. St. 502; 8 Atl. 18. 30 Hackney v. Butts, 41 Ark. 393. See Salem Bank v. White, 1895, 159 111. 136, 143; 42 N. E. 312; Townsend v. Hubbard, 4 Hill 351. 31 Wood v. Goodridge, 6 Cush. 117. 32 Devinney v. Reynolds, 1 Watts & S: 328. 33 See Ohio R. S., §§ 4109, 4110 ; Penn. B. P. Dig., 12th ed., p. 152, § 8 ; Tenn. Shan. Code, § 3679— McCreary v. McCorkle, 1899, 54 S. W. 53 ; Va., § 2416; W. Va., ch. 71, § 3. § 240 signing. 293 the instrument who is intended to be bound, and if the mode of execution be such as to bind him, 31 and a deed, for example, purporting at its beginning to be the deed of "A and B, of tbe first part," with covenants by the parties of the first part, concluding : "In witness whereof said parties of the first part have hereunto set their hands and seals. (Signed.) M N (Seal) and X Y (Seal), Attorneys in part for A and B," has been held to be the deed of A and B. 35 § 240. Execution of conveyance by corporation. — As a corporation acts through agents, the general principles applicable to conveyances by an attorney apply to convey- ances made on behalf of a corporation. The corporation is mentioned as grantor, mortgagor or party of the first part, and the testimonium clause may be: "In witness whereof, the said The M N Company has hereunto caused its corporate name to be signed and its corporate seal to be affixed, and the same to be attested by the signatures of P, its president, and X Y, its secre- tary, thereunto duly authorized, on this — day of , 18—, etc. (Witnesses if needed.) (Corp. Seal.) The M N Company, by P, its President, and X Y, its Secretary. Or, the conveyance is often signed as follows : " The M N Company, (Corp. Seal.) by P, its President. Attest, X Y, Secretary. 36 "McClure v. Herring, 70 Mo. 18. 85 Martin v. Almond, 25 Mo. 313, and see Nobleboro v. Clark, 68 Maine 87, where a deed signed by the attorney in his own name alone was held to be the deed of the principal, as it appeared from the body of the deed to be the intention of the parties to bind the principal. See also Hunter v. Eastham, 1902 (Texas), 67 S. W. 1080. 86 The testimonium clause, as in conveyances by individuals, being adapted to the form of deed used, whether indenture or deed poll. 294 THE LAW OF CONVEYANCING. § 241 The conveyance should purport to be that of the corpo- ration, and not merely that of its officers. 37 The testimo- nium clause should recite the mode of execution and should give the name and title of the officer who is author- ized to execute the conveyance on behalf of the corpora- tion. The particular officers who should execute the con- veyance of a corporation are in many states specified by statute, but in the absence of such a provision any officer may be authorized to do so. 38 As at common law the affixing of the corporate seal was the important element in the execution of a corporate deed it will still (it seems) be a sufficient execution — the proper officers signing their names — without the signing of the corporate name, unless the signing of its name is required by statute. 39 Affixing the seal without signing the corporate name is not, however, enough when signing is required by statute as an element in the execution of conveyances in general ; and signing the name may be of more importance than affixing the seal. 40 § 241. Conveyances by municipal, religious, or liter- ary corporations. — Particular modes are often prescribed by special or general laws for disposing of the property of certain classes of corporations, as, for example, munic- ipal corporations, or private incorporated societies not organized for profit, but for religious, literary, and kin- dred purposes. S7 Norris v. Dains, 1894, 52 Ohio St. 215; 39 N. E. 660; Brown v. Farmers' Supply Co., 1893, 23 Ore. 541; 32 Pac.548; if the instrument is clearly that of the corporation an execution by the proper officers in their own names may he enough, though not in the best form : "Fond du Lac v. Otto's Est., 1902, 113 Wis. 39; 88 N. W. 917. 38 Ellison v. Branstrator, 1899, 153 Ind. 146 ; 54 N. E. 433. 39 Bason v. Mining Co., 90 N.C. 417; West Side Auction Co. v. Conn. M. L. Ins. Co., 1900, 186111. 156; 57 N. E. 839. 10 Isham v. Iron Co., 19 Vt. 230; Hutchins v. Barre Water Co., 1901, 74 Vt. 36 ; 52 Atl. 70 ; Globe Ins. Co. v. Reid, 1897, 19 Ind. App. 203 ; I Wilgus Corp. Cases 1142 ; 47 N. E. 947 ; 49 N. E. 291. (As to the neces- sity or desirability of using the corporate seal, in view of statutes dis- pensing with seals in general, see post, § 249.) § 241 , signing. 295 The special mode prescribed for conveying property of a municipal corporation should be followed, 41 and if no special mode is prescribed, the conveyance should be un- der the corporate seal and in the corporate name. 42 The legal title to the property held by religious or lit- erary societies is often vested in trustees ; conveyances by such corporations are generally made by the trustees. When the method of conveyance is prescribed by statute — and there are often requirements not found in other cases — that method is essential. 43 Religious societies often have occasion to borrow money by mortgaging their property ; the members may build a meetinghouse with borrowed money and use it as a place of worship, and yet raise technical objections to the validity of a mortgage securing the loan. 44 So the lawyer's caution should not be laid aside in dealing with them. 41 Pimental v. San Francisco, 21 Oal. 351. 42 Tiffin v. Shawhan, 43 Ohio St. 178; 1 N. E. 581. 43 Lombard v. Chicago Sinai Cong., 64 111. 477, 487. "Scott v. Trustees First Meth. Ch., 50 Mich. 528; 15 N. W. 891. CHAPTER XVI. SEALING. §242. The seal— When necessary §246. What is a sufficient seal. at common law. 247. Recital in instrument as to 243. Tendency to dispense with seal— Necessity for, and the seal — Effect of stat- effect of, recital. utes. 248. Adoption of one seal by 244. Importance of the seal at several persons — Time common law. and method of affixing 245. Some effects of the seal— the seal. Legal and equitable doc- 249. The corporate seal, trines. § 242. The seal — When necessary at common law. — Since about the thirteenth century a seal has been essen- tial to a deed at common law. From that time to this, when a deed has been mentioned a sealed instrument has been intended, unless some controlling statute has changed the word's meaning. But a deed has not always been necessary for a convey- ance of land. 1 The conveyance, however, of those interests in land that could not be transferred by feoffment, that is, incor- poreal interests, required at common law a "grant," and a grant was always a deed, that is, an instrument under seal. So the conveyance of an easement must be by deed un- less some statute provides otherwise. 2 Such interests 1 See ante, §§ 11-15. 2 Wood v. Leadbitter, 13 Mees. & W. 838 ; Huff v. McCauley, 53 Pa. St. 206; 91 Am. Dec. 203 ; Fuhr v. Dean, 26 Mo. 116; 69 Am. Dec. 484; Cagle v. Parker, 97 N. C. 271 ; 2 S. E. 76. (296) § 243 SEALING. 297 were said at common law to " lie in grant" and "not in livery." § 243. Tendency to dispense with the seal — Efiect of statutes. — In the United States at the present time the state of the law as to whether conveyances must be under seal, and as to sealed instruments in general, is somewhat peculiar. On the one hand, the code of California 3 pro- vides that all distinctions between sealed and unsealed instruments are abolished, while by statutes in New Hampshire and Vermont 4 a "deed" of conveyance is ex- pressly required to be signed and sealed; and in some of the older states there must be an actual seal, a "scroll," such as is permissible and usual in many states, not be- ing sufficient. 5 The matter is a little complicated on our statute books, from the fact that various acts have been passed at differ- ent times in many states relating to the subject, the later act very often not referring to the earlier, and frequently being found under a different division or part of the gen- eral laws from that containing the previous statute ; thus, under the title " Conveyances " there may be one provision as to seals, under the title " Actions" another, under the title "Evidence" another, and it is not always easy to reconcile them. There will often be found a provision that conveyances of land may be by "deed, " or " by deed, signed and sealed," and, in the same com- pilation, a provision dispensing with private seals. Statutes doing away with seals do not always abolish the distinctions between sealed and unsealed instruments, as at first sight they seem to. For example, the statute of Texas, 6 which is similar to those of many states, pro- vides that " no private seal or scroll shall be neces- * California Civ. Code, ; 1629. *N. H. Pub. Stat. 1901, ch. 437, § 3; Vt. Stat. 1894, § 2213. 5 See § 246. 6 Sayles, Ann. Civ. Stat., Art. 4862. 298 THE LAW OF CONVEYANCING. § 243 sary to the validity of any contract, bond or conveyance * * * except such as are made by corporations, nor shall the addition or omission of a seal or scroll in any way affect the force and effect of the same." In the case of Sanger v. Warren, 7 the effect of this statute upon the older rules of law is considered. In this case an attempt was made to hold an undisclosed principal to an obligation assumed by his alleged agent, who had taken a conveyance in his own name, in which convey- ance certain obligations were expressly assumed by the grantee. The rule that an undisclosed principal, when discovered, may be held in many cases is recognized, as are also several important exceptions to that rule, among other exceptions that regarding sealed instruments (in which case the undisclosed principal could not be held for the obligations of his agent assumed in the sealed in- strument), and the court considers that this principle of law is not changed by the above statute, the effect of which is simply to dispense with seals for the validity of a conveyance, leaving the instrument still possessing the incidents it possessed as a sealed instrument at common law. Under the statute of Michigan, 8 providing that "no bond, deed of conveyance * * * shall be deemed in- valid for want of a seal or scroll," while a deed of con- veyance may perhaps not require a seal, still the distinc- tion between specialties and simple contracts is not done away with, and a "deed" or "bond," though unsealed, possesses qualities such as a sealed instrument possessed at common law — for example, an action of covenant may be brought on such an instrument if it is actually a "bond" or "deed," though assumpsit be barred by the statute of limitations. 9 And it is considered that the '1898, 91 Texas 472, 483; 44 S. W. 477; 66 Am. St. 913. 8 0. L. 1897, § 10417. "Rondot v. EogersTp.,1900, 99 Fed. 202; Jerome v. Ortman, 66 Mich. 668; 33 N. W. 759. $ 244 SEALING. 299 question of a seal or no seal may become of importance in determining whether or not a particular instrument is a conveyance — as the absence of a seal, in spite of this statute, may be significant when the purpose of the in- strument is not clear. 10 In Jones v. Morris, 11 the court says: "Though a seal may not now be necessary to a conveyance of a legal es- tate in lands, yet the instrument, the deed of conveyance, which it must still be termed, retains all the operation and effect of a deed sealed at common law. * * * The estoppel which at common law grew out of the cove- nants or the recitals of a sealed instrument, attaches now to an unsealed conveyance of the legal estate in lands." While the tendency of modern law is to do away with the old distinctions, statutes dispensing with the necessity of sealing conveyances do not necessarily abrogate com- mon law rules as to the effect of deeds as distinguished from unsealed instruments. § 244. Importance of the seal at common law. — Much that is peculiar in the law as to the seal seems explained by its origin and early history. It is regarded as settled that the "charters" of the Anglo-Saxons before the Nor- man Conquest were generally signed, but not sealed. The illiterate signed by making a mark, usually the mark of the cross. Some of the Anglo-Saxons had seals, and used them before the Conquest, but they were not then regarded as indispensable, and it was not till about a century after the Conquest that seals came to be regarded as necessary to a deed. 12 For the same reason that the Saxons signed with a cross, the Normans used a seal — that is, because they were generally too ignorant to write — and as the judges and lawyers after the Conquest were Normans, the seal was introduced into England by 10 Spicer v. Bonker, 45 Mich. 630, 635; 8 N. W. 518. "61 Ala. 518, 522. "Palgrave Eng. Comm., p. CCXVI. 300 THE LAW OF CONVEYANCING. § 244 them. 13 Before the thirteenth century the necessity of sealing for a deed became fully established. 14 The importance attached to sealing soon after the Con- quest is illustrated by a case decided by Henry II, in the twelfth century, the dispute being between a bishop and an abbot over land ; Henry decided the dispute with what was then said to be the wisdom of Solomon, and held that the unsealed "land books" of the Anglo-Saxon kings were as good as sealed, since they were confirmed by a sealed charter of the Norman Henry I. 15 So far as English law is concerned, therefore, the seal seems to have had its origin chiefly, though probably not wholly, in ignorance ; and in view of this origin it is in- teresting to note such judicial observations as occur in many cases — for example, in Jackson v. Wood, 16 the mat- ter is referred to thus : "This venerable custom of sealing is a relic of ancient wisdom." However, most naturally the seal itself, being the chief distinguishing feature about a writing (especially to the unlearned, who were many) , became an object of impor- tance, and the act of sealing came to be regarded as a solemn and important act. The general consequence has been that the presence or absence of a seal has had for centuries most serious effects upon rights of property and of contract, the application of some of the rules of law producing most unjust results. 17 ls Digby Hist. Law of Real Prop., p. 57, note. 14 Pollock The Land Laws, p. 73. 15 See Poll. & Mait. Hist, of Eng. Law, Vol. I, 136. 16 12 Johns. 73, 76. "The seal is undoubtedly of great antiquity.. It is mentioned in an- cient writings, among others frequently in the oldest books of the Bible. Its age, however, has not exempted it from abuse and ridicule. See, for example, an epitaphic annotation to the Mississippi Annotated Code, ch. 120, p. 899: "Beneath this lies all that remains of Locus Sigilli, a character of ancient date, etc." And note the contemptuous attack of Judge Lumpkin on this venerable character in Lowe v. Morris, 13 Ga. 147, 150, and the interesting defense of it in the same case, p. 159, by Judge Nisbet. The discussion between these judges, though relating § 245 SEALING. 301 § 245. Some effects of the seal — Legal and equitable doctrines. — In view of the fact that seals, or substitutes for them, are still required for some purposes in many states, and were until recently required in many others, certain peculiar doctrines associated with the seal should be noted. The view taken often by courts of equity as to this formal matter of sealing, as distinguished from that taken by courts of law, should also be noted. Some instances of these doctrines are: 1. An instrument imperfectly executed for want of a seal, or its statutory substitute, may be inoperative at law as a conveyance of real estate, 18 and yet may be regarded in equity as an agreement to convey, and as creating an equitable lien upon or interest in real estate. 19 And where the seal is omitted by mistake from any instrument a court of chancery will correct the instru- ment by affixing a seal, or accomplish the same end by restraining the setting up of the want of it to defeat a recovery at law. 20 2. In contracts under seal a consideration was not essential at law to give validity to the promise. 21 One object of the rule requiring a consideration in the case of a simple contract being to insure an intention on the part of the promisor that his promise should be binding, the same security was not required for contracts under seal, because a deliberate intention to make a binding promise is presumed to be sufficiently insured by the formalities required to be gone through with in the exe- cution of a deed. chiefly to the seal of a court, haa furnished valuable ammunition to the friends and foes of the seal who have since been in conflict. 18 Irwin v. Powell, 1900, 188 111. 107, 109; 58 N. E. 941. "Frost v. Wolf, 1890, 77 Texas 455; 14 S. W. 440; 19 Am. St. R. 761 ; Hyne v. Osborn, 62 Mich. 235, 244; 28 N. W. 821; Todd v. Eighmie, 1896, 4 App. Div. (N. Y.) 9, 13; Beardsley v. Knight, 10 Vt. 185; 33 Am. Dec. 193. 80 Bernard Township v. Stebbiris, 109 TJ. S. 341, 349. " See supra, § 54. 302 THE LAW OF CONVEYANCING. § 245 That is, the common law required a consideration in order to render an agreement binding, but declared that a seal was evidence of consideration, and would not allow the seal's effect to be altered by evidence of no considera- tion. 22 Equity also required a consideration, but allowed the absence of it to be shown notwithstanding the seal. So equity will not grant specific performance of a sealed instrument unless there be an actual consideration. 23 3. The act of sealing being such a solemn act, it was not competent for one to give authority to another to exe- cute a sealed instrument unless by an instrument of equal solemnity. Hence the authority to execute a sealed instrument must be under seal. 24 4. So a sealed instrument could not at common law be set aside except by an instrument under seal. It was considered impossible to cancel such a solemn act by anything less solemn. Hence, a release of a sealed in- strument must be under seal. 25 Therefore, if a debtor on a sealed instrument had paid the debt, but had not obtained a release or a surrender of the sealed instrument, he was still liable at law for the debt. But equity here, as in other cases, not recognizing the force of the seal, would enjoin a second action. 26 5. So a special form of action was set apart for sealed instruments, that of covenant. An action on a sealed contract when the damages were unliquidated had to be declared on in covenant ; if it were merely a promise to 22 Cosgrove v. Cumminga, 1900, 195 Pa. St. 497; 46 Atl. 69. 13 Burling v. King, 66 Barb. 633; Tatham v. Vernon, 29 Beav. 604, 615. 24 Hibblewhite v. M'Morine, 6M.&W. 200, 215; Blood v. Goodrich, 9 Wend. 68; 24 Am. D. 121. 25 Co. Litt. 222 B. See Pratt v. Morrow, 45 Mo. 404, 407. 26 This equitable doctrine has become generally the rule at law. See Blagborne v. Hunger, 1894, 101 Mich. 375 ; 59 N. W. 657. § 246 SEALING. 303 pay a definite sum of money, there might be an election between covenant and debt. 27 6. Contracts under seal had a superiority over simple contracts in respect to the period of limitation for actions. A statute of James I, 28 limiting the time within which actions could be brought, imposed no limitations on actions of covenant or debt on sealed instruments. Generally the American statutes have allowed a longer period within which to bring an action on a contract under seal than on one not under seal. § 246. What is a sufficient seal. — The seal having had these and other important effects, the question has often arisen as to what a seal is at common law. It was formerly generally an impression on wax, but as the impression and not the substance on which it was made was its characteristic, it was later considered that it might be on a wafer or other tenacious material not neces- sarily of wax. And it appears now that annexing a piece of paper by any adhesive substance is enough to make it a private common law seal, though no impression is made, 29 and an impression on the paper itself would now generally be regarded as a sufficient seal. 30 But there should generally, where the common law seal is needed, be some wafer annexed, or impression made, for it has been held lately that the letters "L. S." do not make a common law seal, though equity will recognize them as a seal if the intention is clear to make them 87 1 Chitty Pldg. 115. 28 1623,. 21 Jac. I, c. 16. 29 McLaughlin v. Eandall, 66 Me. 226. 80 Pierce v. Indseth, 106 IT. S. 546 ; Town of Solon v. Bank, 114 N. Y. 122; 21 N. E. 168. In Pease v. Lawson, 33 Mo. 35, 39, it was held that a good common law seal need make no impression that was visible, but that a Bmall round piece of paper at the end of the signature was a com- mon law Beal, because when it was caused to adhere to the paper, it must from physical necessity have made an impression sufficient to comply with the law, though no impression was visible. 304 THE LAW OP CONVEYANCING. § 246 such. 31 And in Manning v. Perkins, 32 which was an ac- tion for covenant broken, based upon an instrument in writing, it was held that the word "Seal" with a brace at each end, printed when the blank was printed, and fol- lowing defendant's signature, was not a seal. •On the other hand, as showing remarkable liberality on the question as to what is a seal, see Hacker's Appeal. 33 It appears that by usage, and without statute, in Penn- sylvania a scroll is authorized. The question involved in this case was whether the donee of a power had ex- ecuted the power properly, that is, under seal. The do- nee had made a testamentary instrument, and at the end of her signature placed a dash, between one-sixteenth and one-eighth of an inch long, and the dash was exactly like punctuation marks all through the instrument. There were no periods, commas or other marks of punctuation, except this small dash, like that following her name at the end. It was contended that there was no proper ex- ercise of the power because the instrument was not under seal, but the court held that this dash was a seal, and in reply to the argument that the dash was simply like every other punctuation mark in the instrument, the court said: " If the donee used this sign indiscriminately for a com- ma, colon, or a period, why could she not have used it for a seal?" In many states a seal of some kind is essential to the execution of a conveyance; and while in many of these a common law seal is often used, it is provided by stat- ute or adjudged by the courts that a scroll or, as it is sometimes called, a " scrawl," or other device, may be used. 3 * 31 Barnard v. Gantz, 1893, 140 N. Y. 249, 258 ; 35 N. E. 430 M 1894, 86 Maine 419 ; 29 Atl. 1114. 83 121 Pa. St. 192; 15 Atl. 500. "Among such states are: Florida, Georgia, Illinois, Maryland, Minnesota, North Carolina, Oregon, Pennsylvania, Virginia, Wiscon- sin. § 247 SEALING. 305 In other states no seal or other device (where the grantor is a private individual) seems necessary, though one is often used, 35 while in others a common law seal seems still necessary. 36 § 247. Eecital in instrument as to seal — Necessity for, and effect of, recital. — It was generally the practice at common law to recite at the conclusion of a deed that it was under seal: " In witness whereof the said party has hereunto set his seal.'' This practice is still pre- served where under modern law, either statutory or by judicial decision, a symbolic seal, a "scroll," or "scrawl," is used, and the question arises as to whether such a reci- tal is necessary to make a sealed instrument. Some text writers lay down the proposition generally that an instrument is not sealed unless so recited to be, 37 and this appears to be the law in some states, unless at least an actual seal is used. For example, in Breitling v. Marx, 38 the action was on a writing, in the form of a promissory note, but with L. S. in brackets after the maker's name. It was objected that it could not be declared on as a promissory note because it was under seal. The court, agreeing with the proposition that a written promise under seal to pay money is not a promissory note, and cannot be declared on as such, holds that a writing is not under seal unless the purpose to seal it is expressed or indicated in its body, and the mere suffixing a scroll containing the word "seal" or letters "1. s." to the name of the subscriber does not make it a sealed writing. Hence in this case the instru- 35 Among such states are: Arkansas, California, Colorado, Indiana, Iowa, Kansas, Kentucky, Michigan, Missouri, Montana, Nebraska, North Dakota, Ohio, South Dakota, Tennessee, Texas, Utah, Washing- ton. 36 Maine, Massachusetts, New Hampshire, Vermont. 37 Daniels Neg. Inst., § 32; Tiedeman Com. Paper, § 32. 88 1899, 123 Ala., 222 ; 26 So 203. 20— Brews. Con. 306 THE LAW OP CONVEYANCING. § 247 ment was properly declared on as a note. And this ap- pears to be the law in Virginia and Georgia. 39 Such a recital was not necessary at common law. " And note the order of making a deed is first, to write it, then to seal it, and after to deliver it, and therefore it is not necessary that the sealing or delivery be mentioned in the writing, for as much as they are to be done after." 40 And so now the recital appears, by the weight of authority, to be unnecessary, to make an instrument which is sealed, a sealed instrument. As where the re- cital was "in witness whereof we set our hands," but seals, consisting of wafers, were attached, it was held that these were the seals both of the individual and corpora- tion, and that the corporation could adopt any seal ;" and so, where without a recital, the word " seal " in brack- ets was on a note, the court held it was not a note, negotiable, etc., and observed that it is difficult to see how one could express that the device was a seal more clearly than by the word "seal" placed within the scroll or made part of it. 42 On the other hand, the recital in an instrument that it 39 Humphries v. Nix, 77 Ga. 98. In Alt v. Stoker, 1895, 127 Mo. 466 ; 30 S. W. 132, the cases are collected. The former statute in Missouri, having made a scrawl sufficient for a seal, required also a recital on the face of the instrument that it was sealed. But the court says that where there is a real seal the requirement as to recital does not obtain. In such case the fact and not the assertion fixes the nature of the instru- ment. i0 Goddard's Case, 2 Coke 5. "Foundry Co. v. Hovey, 21 Pick. 417. 42 Brown v. Jordhal, 32 Minn. 135 ; 19 N. W. 650. See also Osborne v. Kissler, 35 Ohio St. 99 ; Eames v. Preston, 20 111. 389. A distinction is recognized by some authorities between instruments, like convey- ances, that are acknowledged and recorded — which, if having a seal, should be regarded as sealed, though there is no recital of sealing in the instrument — and other instruments, like promises to pay money, which should not be regarded as sealed unless the seal is recognized by a recital in the instrument. Cosner v. McCrum, 40 W. Va. 339, 345 ; 21 S. E. 739. § 248 SEALING. 307 is sealed will not generally be enough to make it a sealed instrument, when it is actually not sealed, or provided with a substitute for the seal, where such a substitute is allowable. 43 § 248. Adoption of one seal by several persons — Time and method of affixing the seal. — Often one seal is adopted by several different persons executing the instru- ment, and this is a sufficient seal as to each, though the seal may be opposite the signature of but one of them. When the instrument purports by a recital to be sealed, the law presumes, prima facie, that each adopts the seal as his, though he may show that he did not do so. 44 The seal is not usually affixed at the time of signing, nor need it be, for the person executing the instrument may adopt the seal already placed on it. 45 § 249. The corporate seal. — Statutes dispensing with private seals quite generally except the seals of corpora- tions, and, though the corporate seal is not universally required to a conveyance by a corporation, it is used even where legislation on the general subject has been most radical, 46 and it is, according to many authorities, essen- tial to a corporate conveyance. 47 In conveyances by cor- porations there is often a recital of the authority given by the stockholders for the conveyance, but the seal itself "Patterson v. Galliher, 1898, 122 N. C. 511; 29 S. E. 773; Vance v. Funk, 3 111. 263; Taylor v. Glaser, 2 S. & R. 502. "Davis v. Burton, 3 Scam. (111.) 41; 36 Am. Dec. 511; Lunsford v. LaMotte Co., 54 Mo. 426; Northumberland v. Cobleigh, 59 N. H. 250; Pickens v. Eymer, 90 N. C. 283; 47 Am. R. 521. 45 Shep. Touch. 54, 57. "Fudickar v. East Riverside &c, 1895, 109 Cal. 29; 41 Pac. 1024; Blood v. Land Co., 1896, 113 Cal. 221; 41 Pac. 1017; 45 Pac. 252. "Garrett v. Belmont Co., 1895, 94 Tenn. 459, 475; 29 S. W. 726; 1 Wilgus' C. C. 1138; Danville v. Mott, 1891, 136 111. 289; 28 N. E. 54; Shropshire v. Behrens, 1890, 77 Texas 275 ; 13 S. W. 1043. See, how- ever, as to the importance of signing, ante, § 240. 308 THE LAW OF CONVEYANCING. § 249 has been held as prima facie evidence that it was affixed by the authority of the corporation. 48 A purchaser from a corporation is not bound to know its by-laws, and when the proper officers affix the seal and sign the conveyance, the corporation is estopped as to pur- chasers without actual notice to deny the power of its of- ficers. 49 On the other hand, if there is no corporate seal affixed it will be necessary in some jurisdictions for the party relying on the deed to show that it was executed by authority of the corporation. 50 A corporation may adopt and use any seal which an individual might use. 51 As a corporation cannot have a characteristic hand- writing, and as a public officer (as such) also has no dis- tinctive and characteristic "hand," there is more reason for the continued use of corporate and official seals than for the use of the private seal. "Gray v. Waldron, 1894, 101 Mich. 612; 60 N. W. 288; Sheehan v. Davis, 17 Ohio St. 571 ; Jinright v. Nelson, 1894, 105 Ala. 399; 17 So. 91; Little Sawmill Co. v. Federal B. Co., 1899, 194 Pa. St. 144; 45 At!. 66; 75 Am. St. R. 690; 1 Wilgus' C. C. 1147; Marvin v. Anderson, 1901, 111 Wis. 387; 87 N. W. 226. 49 Ins. Co. v. White, 106 111. 67; Kansas v. E. E. Co., 77 Mo. 180. 60 Barney v. Pforr, 1897, 117 Cal. 56; 48 Pac. 987 ; Duke v. Markham, 1890, 105 N. C. 131 ; 10 S. E. 1017 ; 18 Am. St. E. 889. 61 G. V. B. Min. Co. v. Bank, 1899, 95 Fed. E. 23, 33; Thayer v. Ne- halem Mill Co., 1897, 31 Ore. 437 ; 51 Pac. 202. But see Caldwell v. Mfg. Co., 1897, 121 N. C. 339; 28 S. E. 475. CHAPTER XVII. ATTESTATION . § 250. Witnesses to conveyances § 252. The method of attesting. at common law. 253. Disqualification of witness 251. Witnesses under statutes by interest. in the United States. § 250. Witnesses to conveyances at common law. — No attestation of a deed was necessary at common law. 1 There early arose a practice, however, of appending to the deed the names of many persons as witnesses, not always in early times the names of those only who were present, 2 though undoubtedly later the names of witnesses were mainly the names of those present who heard the deed read. They appear to have been often numerous, and were written, not by the witnesses themselves, but by the person who prepared the deed. About the time of Henry VIII it became the practice for the witnesses to sign their own names either at the bottom of the deed or indorsed on it. 3 Yet this later form of attestation was not a part of the 'Co. Litt. 7a; Garrett v. Lister, 1 Lev. 25. 8 " * * * people wrote down the names of absent friends and got their consent afterwards. * * * A witness to a deed, according to the popular conception, was not necessarily one who had seen it executed, but one who was willing to give it credit by his name. This may account for its turning out so often, when witnesses were ques- tioned, that they knew nothing about the matter." Thayer Treatise on Evidence, pp. 97, 98 ; and the witnesses formed part of the jury to try the validity of the deed : lb. ; Fox v. Eeil, 3 Johns. 477. 3 Burdett v. Spilsbury, 6 M. & G. (46 Eng. 0. L. E.) ; C. J. Tindal, at pp. 456, 457. (309) 310 THE LAW OF CONVEYANCING. § 250 deed, necessary to its validity, but was merely a means of preserving the evidence of its due execution. Where there were witnesses it was necessary, in order to prove the execution of the deed, to first call some of them, if possible, and other evidence could not be given of its execution until they were produced, or until it appeared that they could not be produced, or, if produced, that they denied its execution or were incompetent to testify. 4 It is still the general rule (in the absence of a statute to the contrary ) that at least one of the attesting witnesses to a written instrument must be called when the execu- tion of the instrument is in dispute. This common law rule has been changed, however, in some states, as in England, and statutes make it applica- ble to those written instruments only that are required by law to be attested, and unless the instrument is one of this character, it may be proved as if unattested, though it is actually attested. 5 Moreover, it has been held, though it seems not in accord with the weight of authority, that, as one of the reasons for the rule requiring the attesting witness to be called was that at the time it arose the parties to an action were incompetent to testify (which is no longer so), the necessity for the rule no longer exists, and therefore, the execution of a deed may be proved by the grantor or the officer before whom it was acknowledged, as well as by the attesting witness. 6 * Dundy v. Chambers, 23 111. 369; Brigham v. Palmer, 3 Allen 450. 5 For example : Mich. 0. L. 1897, § 10199 provides : "That whenever, upon the trial of any action * * * a written instrument is offered in evidence, to which there is a subscribing witness, it shall not be neces- sary to call such subscribing witness, but such instrument may be proved in the same manner as it might be proved if there were no sub- scribing witness thereto, except in the case of written instruments to the validity of which one or more subscribing witnesses are required bylaw." AndseeN. Y. Rev. Stat. 1901, p. 1283, §107; R.I. Gen. L. 1896, ch. 244, §43; No. Dak. Rev. Co. 1899, § 3888a; McManus v. Commow, 1901, 10 N. D. 340; 87 N. W. 8. 6 Garrett v. Hanshue, 1895, 53 Ohio St. 482; 42 N. E. 256; 35 L. R. A. § 251 ATTESTATION. 311 Attesting witnesses can result in little inconvenience, even when not necessary, especially where the common law rule as to the necessity for calling them is not in force, and they may under some circumstances be of value where proof of execution becomes necessary ; deeds are, therefore, often witnessed in those states where they need not be. § 251. Witnesses under statutes in the United States. — Not being necessary at common law, attesting or sub- scribing witnesses are required to a conveyance in the United States only when some statute so provides. In about one-half the states they are not required for any purpose to deeds, but in most of such states they may make proof before some officer, who certifies to this proof in a certificate on the deed similar to the certificate of ac- knowledgment and for the same purposes. 7 In about an equal number of states statutes require them for some purposes and under some circumstances, and in these states in which they are required they are not always required for the same purposes. For example, in some states it is necessary to the validity of the deed as a legal conveyance that there be subscribing witnesses, two witnesses being essential in Ohio 8 and in Connecticut. 9 But, generally speaking, in those states where statutes provide that conveyances shall be attested by witnesses the requirement is not essential to the validity of the deed as between the parties, but, like the requirement as to acknowledgment, 10 is a formality necessary under the statute to entitle the deed to be recorded, the title to the 321, with note as to necessity of calling subscribing witnesses. See Bowling v. Hax, 55 Mo. 446. 7 See post, § 295. 8 Langmede v. Weaver, 1901, 65 Ohio St. 17 ; 60 N. E. 992 ; Kichard- son v. Bates, 8 Ohio St. 257, 261. 9 Winsted Bank v. Spencer, 26 Conn. 195. " See post, § 261, n. 19. 312 THE LAW OF CONVEYANCING. § 252 land passing from the grantor to the grantee on the sign- ing of the deed (and sealing it when necessary) and its delivery. For example, although the statute of Michigan 11 pro- vides that " deeds executed within this state * * * shall be executed in the presence of two witnesses, who shall subscribe their names to the same as such * * *," a deed with but one witness, or with no witness, is valid as a conveyance of the legal title, though it may not be re- corded, 12 and a statute in the same terms is construed in the same way in Wisconsin, 13 and similar statutes in the same way in several other states. 14 § 252. The method of attesting. — It will be noticed that statutes providing for witnesses to deeds generally require that they shall sign their names " as such " or " as witnesses," etc. In order that it may appear on the instrument that they sign in this capacity, their signatures usually follow a brief attestation clause placed at the end of the instru- ment and to the left of the grantor's signature. This clause varies in form, the more usual forms being : "Signed, sealed and delivered in the presence of," "Sealed and delivered in the presence of," "In the presence of," or, in some states, simply one word, as " Attest, " or " Witness " is used. 15 While it is the better practice to have the witness sign directly under a clause in the form usual in the state 11 C. L. 1897, § 8962. 18 Carpenter v. Carpenter, 1901, 126 Mich. 217; 85 N. W. 576; 17 Detroit Leg. News 778; Fulton v. Priddy, 1900, 123 Mich. 298; 82 N. W. 65; 6 Detroit Leg. News 1053. 13 Harrass v. Edwards, 1896, 94 "Wis. 459; 69 N. W. 69. "Howard v. Russell, 1898, 104 Ga. 230; 30 S. E. 802; Kingsley v. Holbrook, 45 N. H. 313; 86 Am. Dec. 173; Conlan v. Grace, 36 Minn. 276; 30 N. W. 880; Pearson v. Davis, 1894, 41 Neb. 608; 59 N. W. 885 (and see Strough v. Wilder, 1890, 119 N. Y. 530, 535; 23 N. E. 1057). "Though the word "delivered" often is used as above, in most cases the deed is not actually delivered in the presence of the witness. § 253 ATTESTATION. 313 where the land lies, no particular place or form seems in- dispensable, provided it appears that the person signing signed as a witness. 16 Where there are several grantors in the same deed their several executions may, of course, be attested by the same witnesses, but where the deed is executed by different grantors at different times and places, and before differ- ent witnesses (as is often the case in practice), there should be a statement near the name of the witness indi- cating which particular grantor's execution he attests. 17 And in such cases the attestation as to each grantor should be complete, for a defective attestation as to one of sev- eral grantors is not made good by a proper attestation as to the other grantors in the same deed. 18 It is not necessary that the witness should see the grantor sign, and it is quite customary for him to be called in to subscribe his name after the grantor has signed his; in such cases the grantor should acknowl- edge his signature to the witness, who should sign in the grantor's presence and at his request, 19 and the witness should either see the grantor sign or hear him make such an admission of his signature. § 253. Disqualification of witness by interest. — One having a direct interest in the conveyance as grantee or mortgagee should not be an attesting witness to it, 20 nor "Culbertson v. Witbeck Co., 127 U. S. 326; Link v. Connell, 1896, 48 Neb. 574; 67 N. W. 475; Arrington v. Arlington, 1898, 122 Ala. 510; 26 So. 152. (Though as to " subscribing," which is the term some- times used in the statute concerning witnesses, see supra, § 235.) " See Culbertson v. Witbeck Co., 127 U. S. 326. 18 Harrass v. Edwards, 1896, 94 Wis. 459; 69 N. W. 69; Hall v. Red- son, 10 Mich. 21. "Jackson v. Phillips, 9 Cow. 94, 113; Tate v. Lawrence, 11 Heisk. 503. 10 Amick v. Woodworth, 1898, 58 Ohio St. 86; 50 N. E. 437; Donovan v. St. Anthony &c. Co., 1899, 8 N. Dak. 585; 80 N. W. 772; 73 Am. St. 314 THE LAW OF CONVEYANCING. § 253 should one of several grantors witness the execution of the conveyance by another grantor ; and it has been held that the wife of the grantor is not competent to witness her husband's deed. 21 E. 779 ; Coleman v. State, 79 Ala. 49. See Child v. Baker, 24 Neb. 188, 201 ; 38 N. W. 725. a Corbett v. Norcross, 35 N. H. 99; Bank v. O'Brien, 1894, 94 Tenn. 38; 28 S. W. 293. CHAPTER XVIII. ACKNOWLEDGMENT. §254. Terms used. §270. 255. What writings maybe acknowledged. 271. 256. The subject regulated by s t a t u t e — F ormof ac- 272. knowledging deeds gen- erally the test. 273. 257. General purposes of ac- knowledgment . 274. 258. First, to entitle the instru- ment to be recorded. 275. 259. Purpose of acknowledg- ment — Statutes relating to evidence. 260. Some points to notice as to such statutes. 276. 261. "When necessary to validity of conveyance. 262. Necessary to convey legal title in some states. 277. 263. In many states acknowl- edgment necessary to va- lidity of conveyance of 278. homestead. 264. When necessary in convey- ance by married woman. 279. 265. The form of the certificate of acknowledgment. 266. Certificate should show facts necessary. 280. 267. Substantial compliance with statutes enough — Clerical errors. 281. 268. What is substantial com- pliance. 282. 269. Substantial compliance — Fact of acknowledg- ment. When the word "acknowl- edged" should appear. Substantial compliance — Identity of party. Identity of party — "Per- sonally known." Who may take the acknowl- edgment. Authority to take wholly statutory. Who may take — When ac- knowledgment is taken in the state where the land is. Who may take — When ac- knowledgment is taken in another state — The commissioner of deeds. When taken in another state — Questions as to what officers may take, etc. Taken in another state- Showing as to official character, etc. Taken in another state — Certificate of conformity to foreign law. Acknowledgments taken out of the United States. Competency of officer af- fected by interest — Party cannot take acknowledg- ment. Practical effect of rule that party cannot take ac- knowledgment. (315) 316 THE LAW OF CONVEYANCING. § 254 § 283. Rule disqualifying party § 289. The parts of the certificate generally applies to ac- — Venue. knowledgments of all in- 290. Date. struments. 291. Signing by officer — His of- Effect of relationship on ficial, not his personal officer's competency. signature. Undisclosed interest as af- 292. Sealing. fecting competency of of- 293. Impeachment of the certifi- ficer to take. cate — When it is conclu- Undisclosed interest as af- sive. fecting competency. 294. Form of certificate to con- Officer of corporation not veyance of corporation generally disqualified un- or by attorney. less also a shareholder. 295. Proof instead of acknowl- Agent or attorney of party edgment. to a convej'ance may generally take acknowl- edgment. 284. 285. 286. 287. 288. § 254. Terras used. — Acknowledgment is the declara- tion, before a competent officer or court, by one who has executed an instrument that it is his act or deed. The act of acknowledging the execution of an instru- ment is properly called "the acknowledgment." The statement by the officer in the form of a certificate that the instrument was acknowledged before him is prop- erly called "the certificate of acknowledgment." 1 The person acknowledging is said to make the acknowl- edgment. The officer before whom this acknowledgment is made takes the acknowledgment. 2 § 255. What writings may be acknowledged. — The in- struments most commonly acknowledged, and regarding the acknowledgment of which there are statutory pro- 'But, "aathe law knows no acknowledgment without a certificate," the term "acknowledgment" is often used as designating the certificate of the officer, as well as the act of the person acknowledging. Rogers v. Pell, 1898, 154 N. Y. 518, 529 ; 49 N. E. 75. 2 Statutes on the subject often mention "prove" as practically equiv- alent to "acknowledge; e. g., the statement is quite common in stat- utes that, for certain purposes, a conveyance "must be acknowledged or proved." What is intended by "proved," as used in this connec- tion, will be considered later. See post, § 295. § 255 ACKNOWLEDGMENT. 317 •visions in nearly all the states, are deeds, or other writings disposing of interests in real estate. But provisions are quite general, either, First, requiring certain other writings to be acknowl- edged before they are to be regarded as completely effect- ive, or, Second, authorizing or permitting certain other writings to be acknowledged. Examples of statutes requiring the acknowledgment of writings other than deeds and instruments conveying interests in real estate are those requiring the acknowl- edgment of "articles of association," or similar instru- ments, by which persons associate themselves together to form a corporation; chattel mortgages in many of the states; deeds of adoption in several (Missouri, Iowa, Pennsylvania, Colorado); assignments for the benefit of creditors, etc. Examples of statutes permitting or authorizing the acknowledgment of writings other than deeds or instru- ments affecting real estate, and providing the effect of such acknowledgment are those of Iowa and Michigan, viz.: Iowa: 3 "Every private writing, except a last will and testament, after being acknowledged or proved and certi- fied in the manner prescribed for the proof or acknowledg- ment of conveyances of real estate, may be read in evi- dence without further proof." Michigan: 4 "Every written instrument, except promis- sory notes and bills of exchange, and except the last wills of deceased persons, may be proved or acknowledged in the manner provided by law for taking the proof or ac- knowledgment of conveyances of real estate, and the cer- tificate of the proper officer indorsed thereon shall entitle such instrument to be received in evidence on the trial of 3 Iowa Code 1897, § 4621. , * Michigan compiled laws, § 10168. 318 THE LAW OF CONVEYANCING. § 256 any action with the same effect and in the same manner as if such instrument were a conveyance of real estate." That is, the proper certificate is presumptive evidence of genuineness, 5 "but the effect of such evidence may be rebutted by other competent testimony." Statutes similar to these of Michigan and Iowa exist in other states, 6 while in many there appear to be no such general statutes. 7 Knowledge of such a statute in a particular state will often be of advantage, for under it various instruments, as, for example, chattel mortgages, bills of sale, etc., which may not require an acknowledgment, may never- theless be acknowledged, the effect being to dispense gen- erally with further or other proof on a trial than the certificate of acknowledgment. § 256. The subject regulated by statute — Form of ac- knowledging deeds generally the test. — Many of these statutes relating to the acknowledgment of instruments of different kinds (and whether requiring or merely permit- ting it) refer to the manner and form of acknowledging conveyances of real estate as the test. Others simply speak of the instrument as being "acknowledged," with- out adding "as conveyances of real estate are." The usage in such cases is to follow, as far as the circum- stances of the case allow, the law as to the acknowledg- ment of instruments conveying real estate. By following this usage one will generally get an acknowledgment that will withstand any criticism. At the same time it does not necessarily follow that all instruments for which an acknowledgment is desirable or necessary can be acknowl- edged only as real estate conveyances are: it has been 5 Cameron v. Calkins, 44 Mich. 533 ; 7 N. "W. 157 ; C. L. 1897, § 8990. 8 For example : Cal. Co. Civ. Proa, § 1948 (83 Cal. 270 ; Minn. G. Stat. 1894, § 5727; Neb. Stat. 1897, § 5921; N. Y. Co. Civ. Pro., § 937; Utah E. S. 1898, § 3407 ; Wis. Stat. 1898, § 4185. ' For example : Alabama (see Ala. E. Co., § 3025), Colorado, Illinois, Indiana, Kansas, Massachusetts, Missouri (see Mo. E. S., §5073), Ohio, West Virginia. § 257 ACKNOWLEDGMENT. 319 recently held, for example, that a certificate of acknowl- edgment which might be defective if to a deed conveying real estate may be valid if to articles of incorporation ; 8 and there are in some states special statutes regulating the acknowledgment of special instruments ; for example, chattel mortgages in Illinois by a resident mortgagor can- not be acknowledged before a notary public as a deed may be. 9 If one is fairly familiar with the questions that arise as to the acknowledgment of a conveyance of realty, he will find no difficulty in dealing with such special cases. § 257. General purposes of acknowledgment. — While the subject is regulated by statute in each state, there are nevertheless certain general principles which may be con- sidered before taking up any important details. The purpose of the acknowledgment of an instrument is : First, to entitle the instrument to be recorded, or, Second, to entitle it to be read in evidence, or, Third, in some cases, to give it validity. In some states (and in other states as to some instruments) all these purposes are within the purview of the statutes regulating the subject. While the statutes vary in their details, there is a gen- eral tendency nowadays toward uniformity. 10 8 Smith v. Sherman, 1901, 113 Iowa 601; 85 N. W. 747. 9 Long v. Cockern, 128 111. 29 ; 21 N. E. 201. See Gilbert v. Sprague, 1902, 196 111. 444, 451; 63 N. E. 993. 10 It is sometimes said that the "acknowledgment" is entirely of American statutory origin, and was not known to the common law. It appears not to have been known to the early common law, but from references which occur in cases arising after the Statute of Enrollments, it appears that there was in England a custom of acknowledging deeds before they were enrolled. See, for instance, Taylor v. Jones, 1 Salk. 389, where the practice is spoken of as follows: "If a man lives in New England and would pass lands here in England, they join a mere nominal party with him in the deed, who acknowledges it, and it binds." And in Winscomb and Dunches Case, Qodbolt 270, the bar- gainor is spoken of as having died before the enrollment of the deed, 320 THE LAW OF CONVEYANCING. § 258 § 258. First, to entitle the instrument to be recorded. — We have in this country a system under which instru- ments in writing affecting the title to real estate may be recorded in some public office. The record becomes no- tice, and persons dealing afterward with the property de- scribed in the recorded writing are charged with notice of the contents of the writing. Whether they actually knew of it or not, they are in general deemed in law to have notice of it. Furthermore, under this system properly recorded instruments are generally given preference over other instruments relating to the same property, actually made before the recorded instrument, but not recorded. These instruments are recorded by a public officer, known generally as the register of deeds or recorder. The records, having these important effects upon titles, should not, it is considered, be encumbered with unau- thenticated writings. So the statutes generally provide that only instruments duly authenticated are authorized to be recorded. This authentication usually consists of the certificate of some public officer, stating that the per- son named in the writing as transferring his interests in the property, acknowledged the execution of the writing. Upon this authentication the recording officer acts, and records the instrument. A writing actually acknowledged, but to which there is no certificate of that fact is not as a rule entitled to record; and if the recording officer should record it, its record is a nullity. It is not constructive notice, and has not the other effects which a proper record has. So, also, a certificate of acknowledgment which is de- fective in substance does not authorize the instrument to be recorded. It is generally considered as no certificate. Therefore, if such an instrument is recorded it is not no- tice, and the grantee or mortgagee named in it acquires and, "it not being acknowledged," the master of the rolls allowed it to be proved by witnesses. § 258 ACKNOWLEDGMENT. 321 no interest in the property described in it, as against a 'subsequent purchaser in good faith and without actual notice of the previous conveyance. In actual practice, the recording officer often records documents not properly authenticated, either because he does not scrutinize them, or because he does not know what the law requires, and if he sees any kind of a certif- icate of acknowledgment he does not stop generally to consider whether it is valid or not. But the fact that an instrument is actually written into the records, and ap- pears at first sight to be regularly recorded, is not gener- ally enough to warrant the subsequent introduction of the record in evidence, or to make it constructive notice, unless the instrument was entitled to record. This may be stated as the general rule, as will be seen from the decisions cited later. 11 11 But in this connection it should be noted that in some states statutes provide that deeds and other writings relating to real estate may be filed for record though not acknowledged or proved, and shall be deemed, from the time of filing, notice to subsequent purchasers and creditors, but they may not be read in evidence unless their execution be proved as required by the rules of evidence so as to supply the defects of such acknowledgment. See, for example, Illinois, ch. 30, par. 32, §31; Colorado, §448; Alabama Code, §§991, 992. A statute of Michigan — C. L. 1897, § 9051 — provides substantially that no con- veyance of land made in good faith and upon a valuable consideration shall be wholly void by reason of defects in statutory requirements as to execution or acknowledgment, but may be enforced as a contract, and when it has been recorded in the office of the register of deeds of the proper county such record shall operate as legal notice of all the rights secured by the instrument. Chicago Co. v. Powell, 1899, 120 Mich. 51; 78 N. W. 1022; Lariverre v. Rains, 1897, 112 Mich. 276; 70 N. W. 583. "Curative" or "validating" acts have been passed in per- haps most of the states making valid, for one purpose or another, defect- ive records — and they cure many defects in the acknowledgment and execution of deeds. Such statutes are practically important, but they vary so much in their terms that it is impracticable to refer to them in detail. 21 — Bbbws. Con. 322 THE LAW OF CONVEYANCING. § 259 § 259. Purpose of acknowledgment — Statutes relating to evidence. — The second general purpose, as stated above, is to entitle the instrument to be read in evidence. The statutes of most of the states provide that a convey- ance properly acknowledged and certified by the official taking the acknowledgment may be read in evidence with- out further proof. The effect of statutory provisions of this character is that the certificate of acknowledgment in proper form is prima facie evidence of the due execution of the instru- ment to which it is attached. If it be claimed, for instance, that the instrument is a forgery, there is a presumption from the presence of the certificate that the alleged forgery is genuine, and this presumption can be overcome only by clear and convinc- ing proof to the contrary. 12 Or if the conveyance is attacked on other grounds, as, for example, that it was obtained by duress, the proper certificate is prima facie evidence of its due execution, and the burden of proof is on the person attacking it. 13 The statutes generally provide also that the record of such instruments, which purport to be properly acknowledged and certified, 1 * and which are thus authorized to be re- corded, may be received in evidence : that is, these cop- ies are practically equal to the originals, as they may be offered and received in evidence as prima facie showing title. Moreover, certified copies of the records (i. e., copies of copies) may be admitted in evidence in many states. 15 12 Shelden v. Freeman, 1898, 116 Mich. 646; 74 N. W. 1004; Albany Co. Bank v. McCarty, 1896, 149 N. Y. 71 ; 43 N. E. 427; Sassenburg v. Huseman, 1899, 182 111. 341 ; 55 N. E. 346. 13 Insurance Co. v. Nelson, 103 U. S. 544; Marston v. Brittenham, 76 111. 611; Springfield Engine Co. v. Donovan, 1898, 147 Mo. 622; 49 S. "W. 500. See § 293, as to when the certificate may be impeached. " And, in many states, which are also properly attested ; see supra, § 251. 15 Cal. Co. Civ. Proc. (ed. 1901), § 1951 ; Ind., Burns' E. S., §§466, 3372, § 260 ACKNOWLEDGMENT. 323 In other states the record may be introduced in evi- dence on a proper showing that the original deed is lost or beyond the reach of those claiming under it — or a cer- tified transcript of the record may often be used under the same circumstances. 16 § 260. Some points to notice as to such statutes. — The practical importance of a consideration of statutes of the character mentioned in the last section is obvious : it is important to know what is, and what is not, evidence of title. Some matters worthy of attention in regard to such statutes are : (1) That the acknowledgment of an instrument in writing does not dispense with proof of the execution of the instrument unless it is an instrument authorized to be acknowledged: for example, a certificate of acknowl- edgment attached to a promissory note or a will would not generally establish, even prima facie, the execution. (2) That the acknowledgment being made primarily to entitle the instrument to record (in the case of convey- ances at least) , it does not necessarily follow that because the instrument is recordable it is also admissible in evi- dence. (3) That in the absence of statutes so providing, neither the record of a conveyance nor copies of it are competent evidence. (4) That neither records of conveyances nor copies of such records are admissible in evidence, unless the con- 3374; Mich. C. L. 1897, § 8990; Ore., Hill's Ann. L., § 3028— Series v. Series, 1899, 35 Ore. 289; 57 Pac. 634; Pa. Act 1715, May 28, § 5; P. & L. Dig., p. 1570, § 88; P. & L. Dig., p. 1891, \ 10; Cary v. Cary, 1899, 189 Pa. 65; 42 Atl. 19. ls Ala. Code, §§986, 992; 111. E. S., ch. 30, §36; Scott v. Bassett, 1898, 174 111. 390; 51 N. E. 577; Iowa Code, §4630; Kreuger v. Walker, 1890, 80 Iowa 733 ; 45 N. W. 871 ; Oakland v. Hewitt, 1898, 105 Iowa 663; 75 N. W. 497; Kan. Gen. Stat. 1901, § 1229; Mo. K. S. 1899, § 933; Neb. Com. Stat. 1901, p. 939, § 13; Utah R. S., § 3409. 324 THE LAW OF CONVEYANCING. § 261 veyance recorded was entitled to record. For example, where an acknowledgment and certificate of acknowledg- ment are necessary for the recording, and an unacknowl- edged conveyance is recorded, 17 or one is recorded with a substantially defective certificate, 18 such records or copies of them cannot be used. § 261. When necessary to validity of conveyance. — In the third place, acknowledgment and a certificate of that fact are necessary in some cases to give validity to the conveyance. It is well established, as a general rule, that a deed of conveyance is valid as between the parties to it without an acknowledgment. Therefore, if a deed is not acknowl- edged, or if it is so defectively acknowledged as not to be entitled to record, it nevertheless is a good conveyance of the legal title from the grantor to the grantee, generally speaking. 19 But to this general rule there are exceptions, and among the most important of these exceptions are the following : (1) Acknowledgment (or proof) and a proper certifi- cate are essential to the validity of all deeds in some states ; (2) They are essential to the validity, in many states, of conveyances of certain kinds of real property, especi- ally the "homestead"; (3) They are essential to the validity, in many states, of conveyances by certain persons, e. g., sheriffs, and, especially, married women. "Starnes v. Allen, 1898, 151 Ind. 108; 45 N. E. 330; 51 N. E. 78. 18 Heintz v. Thayer, 1899, 92 Texas 658 ; 50 S. W. 929 ; 51 S. W. 640. "Taylor v. Youngs, 48 Mich. 268; 12 N. W. 208; Hayden v. Peirce, 1896, 165 Mass. 359; 43 N. E. 119; Fisk v. Osgood, 1899, 58 Neb. 486; 78 N. W. 924; Kruger v. Walker, 1895, 94 Iowa 506, 511 ; 63 N. W. 320; Grant v. Oliver, 1891, 91 Cal. 158; 27 Pac. 596, 861 ; Hannah v. Davis, 1892, 112 Mo. 599; 20 S. W. 686; Cable v. Cable, 1892, 146 Pa. St. 451 '; 23 Atl. 223. § 262 ACKNOWLEDGMENT. 325 § 262. Necessary to convey legal title in some states. — The acknowledgment and a certificate of that fact are essential to the conveyance of the legal title in Ohio. 20 And if the certificate is substantially defective, the effect is the same as if there were no certificate at all; for example, if the name of the grantor is omitted from the certificate. 21 The general effect of a conveyance not acknowledged, or defectively acknowledged, in states where this is the rule, is to make it a contract enforceable in equity, unless there is some "curative statute" making it valid. § 263. In many states acknowledgment necessary to validity of conveyance of homestead. — Where the prop- erty involved in the transaction is a "homestead," an acknowledgment is absolutely essential in many states, at least where the owner is married, as is generally the case in practice. In states where such statutes prevail, a conveyance of the "homestead" without the proper acknowledgment is not even an equitable conveyance ; it is generally simply void — a nullity so far as the homestead is concerned. 22 For example, in Illinois the statute provides that both husband and wife must subscribe and acknowledge the conveyance of a homestead ( if the owner is married ) ; therefore the conveyance of such property by the husband to the wife without her signing and acknowledging, is M Hout v. Hout, 20 Ohio St. 119; Hume v. Dickson, 37 Ohio St. 68; Kingman v. Loyer, 40 Ohio St. 109. 21 Smith's Lessee v. Hunt, 13 Ohio 260; Anderson v. Logan, 99 N. C. 474; 6 S. E. 704; legal estate does not pass in North Carolina until the deed is proved and registered ; Caperton v. Hull, 83 Ala. 171 ; 3 So. 234 — legal title not conveyed in Alabama unless deed attested or acknowl- edged. 22 It is not intended at this point to consider what a "homestead" is, etc., or how it should generally be conveyed, but simply to call atten- tion to this particular matter of acknowledgment. 326 THE LAW OF CONVEYANCING. § 264 not good. 22 * And a chattel mortgage of a house used as a homestead on leased land has been held fatally defect- ive, because the certificate of acknowledgment did not show that the mortgagor was "personally known," as is required by the Illinois statute. 23 § 264. When necessary in conveyance by married women. — The general rule has been and is now, except where changed by recent statutes, that acknowledgment and a proper certificate of that fact are essential to the validity of a married woman's conveyance. At common law the married woman could not make a valid deed of conveyance of her real property (except by special custom in some places ; see post, section 360). Although for some time she has been quite generally free to hold and transfer real property, it must be remembered that her power to convey depends upon statute. She may convey in the mode, or by the method, prescribed by the statute alone; and, generally, any substantial de- parture from the course laid down by the statute renders her deed not merely defective, but void. Quite generally her power to convey depends on its mode of execution. The power may be said to result from the mode, and when the mode prescribed is not followed there is a want of power, and her deed therefore is not merely incomplete but is void. 24 Among the requirements as to the mode of making a married woman's deed, a very common one has been that her deed shall be ^knowledged, and in nearly all the states there has been required for her something more than the ordinary acknowledgment. For it has been necessary 22 »Kitterlin v. Ins. Co., 1890, 134 111. 64; 25 N. E. 772; Mueller v. Conrad, 1899, 178 111. 276, 283; 52 N. E. 1031. 23 Gage v. Wheeler, 129 111. 197 ; 21 N. E. 1075. See also the statutes of Alabama, Arkansas, California, Nebraska, Texas, Tennessee, Wash- ington, Wyoming, North Dakota and Montana; title "Homestead." " Sullivan v. Cummins, 13 Ohio 116, 119. § 265 ACKNOWLEDGMENT. 327 in most of the states, until recently, that she should ac- knowledge the deed after a private examination apart from her husband. Though the law as to this may have been altered many years ago, it still often becomes necessary, in the trials of actions relating to titles and in the examination of ab- stracts, to consider the former state of the law. 25 § 265. The form of the certificate of acknowledgment. — Having noticed, in this general way, the effects, on the one hand, of a proper acknowledgment and certificate of acknowledgment, and on the other hand, some of the effects of deficiencies, it will be necessary to consider what varia- tions from the standard form, or from the essentials stated in the statute, will be regarded by the courts as fatal. Forms are prescribed by the laws of some states for the certificate of acknowledgment; in others there is simply a general statement as to what is required to be done and what the certificate shall show. The following general form is given to indicate the par- ticulars that may be essential, though all these particulars are not necessary in all the states — while in some states, perhaps, some additional particulars are required, al- though they ought not to be : State of , County of , ss : I, (insert name and title of officer) hereby certify that on the — day of , in the year , before me per- sonally appeared and , his wife, whose names are subscribed to the foregoing instrument as grantors (or mortgagors, lessors, etc.), to me personally known to be the same persons described in and who executed the said instrument, and acknowledged that they signed, sealed and delivered the same as their voluntary act and deed for the consideration, uses and purposes therein mentioned, (including the release and waiver of the right of home- stead) . And I further certify that the said , wife of the said , being of lawful age and being examined by 25 See post, § 366. 328 THE LAW OF CONVEYANCING. § 266 me separate and apart from her said husband, and the contents of said instrument being by me made known and fully explained to her, did declare and acknowledge that she did voluntarily and understandingly sign, seal and deliver the same, without any coercion or compulsion of her said husband, and that she is still satisfied therewith as her voluntary act and deed for the consideration, uses and purposes therein mentioned, and does not retract the same. In testimony whereof I have hereunto subscribed my name and affixed my official seal this — day of in the year . (Seal.) (Signature and title of officer.) The form recommended by the American Bar Associa- tion, and substantially adopted in Iowa, Massachusetts, Minnesota, Michigan, and Missouri, is (for natural per- sons acting in their own right) as follows: State of , County of , ss : On this day of , 19 — , before me personally appeared (or and ), to me known to be the person (or persons) described in and who executed the foregoing instrument and acknowledged that he (or they) executed the same as his (or their) free act and deed. (Seal.) (Signature and title of officer.) § 266. Certificate should show facts necessary. — It may be stated in general that the certificate should show on its face that the statutory provisions have been sub- stantially complied with. That is, it will not generally suffice for the officer to certify that the foregoing instru- ment was " duly acknowledged " or was "lawfully ac- knowledged." Such statements in the certificate simply certify the officer's conclusion. They are inferences which the officer is not, as a general rule, warranted in drawing. For example : " Signed, sealed and acknowl- edged in my presence the day and year aforesaid. J. J. K., Notary Public", is not enough. The court says: § 267 ACKNOWLEDGMENT. 329 "This falls short of such acknowledgment as has been sufficient to make legal evidence."' 26 § 267. Substantial compliance with statute enough — Clerical errors. — In considering the matter of defective certificates, there is generally applied a rule which will often relieve from the consequences of what seem to be serious defects. This rule is, that a substantial compli- ance with the statutory requirements is sufficient ; exact and literal compliance is not necessary. It is the policy of the law to uphold certificates of acknowledgment, and to disregard technical defects and plain clerical errors. This principle is stated in most of the cases herein cited, and is applied, as will be seen from them, wherever it may be. 27 So the instrument to which the certificate of acknowl- edgment is attached may be examined to supply defects in the certificate, or one part of the certificate may, in many cases, supply defects in another part. For example, if the mortgagor's name is entirely omitted from the certificate the omission will not make the certificate fatally defective, if the defect may be supplied by a reference to the body of the mortgage. 28 In Fredrick v. Wilcox, 29 the husband's name was 26 Cooper v. Smith, 1889, 75 Mich. 247, 252; 42 N. W. 815. Statutes may make this general rule inapplicable. But such statutes seem un- usual. For example, Kentucky : "Where the acknowledgment of a married woman shall be taken by an officer of this state, he shall sim- ply certify that it was acknowledged before him, and when it was done, which shall be evidence that there was a separate examination : expla- nation of the contents, voluntary acknowledgment, and consent to re- cord, are all presumed." Hence, a certificate in briefest form may be there sufficient, as, "Acknowledged by Willia C. Woods, this May 5, 1873," signed by the officer. Woods v. James, 87 Ky. 511 ; 9 S. W. 513. "For example, King v. Merritt, 67 Mich. 194, 206; 34 N. W. 689; where the certificate read that the married woman acted "with fear," the court read it as "without." 88 Milner v. Nelson, 1892, 86 Iowa 452 ; 53 N. W. 405 ; 41 Am. St. E. 506; 19 L. B. A. 279. 29 1898, 119 AJa. 355; 24 So. 582; 72 Am. St. B. 925. 330 THE IAW OF CONVEYANCING. § 268 omitted from the wife's acknowledgment, but there being two certificates, it was held that they could be read to- gether, and in connection with the mortgage to which they were attached, to supply the defects in the certifi- cate. In Canal Co. v. Russell, 30 J. F. and C, his wife, were stated as having personally appeared, being personally known, etc. And the certificate stated that said C. was examined separate and apart from her said husband, and the contents and meaning of the said husband were fully explained and made known to her, and she acknowledged that she executed the same and relinquished her dower in the premises described. It was claimed that the cer- tificate was defective, because it stated that the contents and meaning of the husband were explained, instead of the contents and meaning of the deed. But the court says the certificate must be regarded in a common sense view, and filling the blank with the word "hus- band" renders the subsequent part of the certificate meaningless, but putting in the proper word, or leaving a blank, the vacancy is supplied by the subsequent tenor of the certificate. § 268. What is substantial compliance. — What is a substantial compliance will of course vary somewhat in the different states, owing to differences in statutory detail. But there are some facts which, being obviously more important than others, are generally considered essential. The prominently essential features are : 1. The fact of the acknowledgment of the instrument by the grantor. 2. The identity of the party making the acknowledg- ment with the party executing the instrument. 3. The showing in the certificate that the acknowledg- es 111. 426, 430,432. § 269 ACKNOWLEDGMENT. 331 ment was made before, and taken by, a competent, authorized officer, who certifies to these facts in the proper mode. To state the matter more particularly, it may be said that the parts of the certificate requiring attention are (though all the parts are not of equal importance and value): 1. Venue, or statement of locality. 2. Body of certificate, stating : Date when acknowledged, before whom, grantor's presence, grantor's name, officer's acquaintance with grantor, grantor's acknowledgment; when grantor is married woman some states require further : separate examination, explanation of instrument, separate ac- knowledgment of its execution, continued satisfaction with it ; and when the property is a " homestead ' ' a spe- cial clause releasing it is required in some states. 3. Officer's testimonium. 4. Officer's official signature and seal. § 269. Substantial compliance — Fact of acknowledg- ment. — It is evident that many mistakes arise from the improper filling in of printed blank forms or from neg- lecting to fill the blank in any way. 1. The fact of the acknowledgment of the instrument should appear. A certificate showing that the grantor appeared before the certifying officer, was known to him, etc., is not enough unless it also shows that he acknowledged : this omission will not be supplied by intendment or presump- tion. 31 One would hardly suppose that so important a part of the certificate as the statement of this fact would be omitted; nevertheless, because of haste, carelessness, or "Short v. Conlee, 28 111. 219; Bryan v. Ramirez, 8 Cal. 462; Stanton v. Button, 2 Conn. 527; Heintz v. Thayer, 1899, 92 Texas 658; 50 S. W. 929; 51 S. W. 640. 332 THE LAW OF CONVEYANCING. § 270 ignorance, this mistake occurs in practice not infre- quently. For example, in Sarazin v. Railroad, 32 an ac- tion was brought against the defendant railroad company to recover damages for the alleged negligent killing of a child ; the child was granddaughter of plaintiffs and had been adopted by them; this action was begun by the adopting father and mother, but the father having died, it was continued by the mother. A necessary part of plaintiff's case was proof of adoption by deed which must be (in Missouri) acknowledged. A material part of cer- tificate of acknowledgment was, "before me personally appeared S., and S., his wife, tome known to be the person described in and who executed the foregoing instrument, and acknowledged that he executed the same as his free act, etc." — i. e., the certificate shows that they person- ally appeared, but that he alone acknowledged; hence the deed, so far as the plaintiff is concerned, is void, as not acknowledged by her, and she cannot recover. But in another recent case a mistake similar to that in the last case cited was held a clerical error; the court say- ing that to invalidate the certificate, for this "would be a strained and technical construction of the language used." 33 This slip (which may be, or may not be, a serious mat- ter, according to the temper of the court) is very apt to occur in the use of printed blanks, where " — he — " is printed, to be made into "she," or "they," or left "he," as the circumstances require. § 270. When the word "acknowledged" should appear. — In certifying to the fact of acknowledgment, where the statute requires the instrument to be "acknowledged," the word "acknowledge" is clearly the best to use; but this word is not absolutely necessary if an equivalent word is used. There can be little gained in using what 82 1900, 153 Mo. 479 ; 55 S. W. 92: 38 McCardia v. Billings, 1901, 10 N. Dak. 373; 87 N. W. 1008. § 271 ACKNOWLEDGMENT. 333 seems to one an equivalent, however, for it may not seem so to another. "Where it was required that the certificate should show that a married woman "acknowledged," it was held 34 that a certificate that she "stated," etc., was void: "stated" being held not equivalent to "acknowledged." On the other hand, "stated" may be proper where the statute provides that an acknowledgment shall be made by the grantor "stating that he executed the deed". 35 The case of Bryant v. Richardson, 86 where "acknowl- edged" was omitted, appears likely to mislead some into believing that, in the opinion of this court, this word or an equivalent is not essential. But in this case the original instrument itself appears to have been offered in evidence, and the court holds that the instrument is not invalid by reason of the omission. § 271. Substantial compliance — Identity of party. — To show the identity of the party he should be named in the certificate. The name should correspond with the name in the deed and with that signed to it. And the purchaser should avoid all question by seeing that there is this correspondence. The difficulties caused by not doing so are illustrated by a case 37 where the record of a deed signed Harmon S., and certified to have been acknowledged by Hiram S. (that being also the name inserted in the deed), was held inadmissible in evidence as the deed of Hiram S. because it appeared to have been "signed and acknowledged by different persons. " 38 So, although it seems that the Illinois "Dewey v. Campau, 4 Mich. 565. 35 E. g., Ark. Stat. 1894, p. 355. 36 1890, 126 Ind. 145; 25 N. E. 807. 37 Boothroyd v. Engles, 23 Mich. 19. 38 The omission of grantor's name in the certificate, or an error in it, will sometimes be cured by reference to other parts of the instrument acknowledged, on the principles stated above, §267; but the prudent course for a proposing purchaser is not to leave such questions open. 334 THE LAW OF CONVEYANCING. § 272 court will change the word "husband" to "deed" 39 it can- not fill a substantial blank that should have been filled before acknowledgment; as where the certificate stated that the grantors, naming them, personally appeared and acknowledged the deed, "and the said (blank), wife of said (blank), having been by me examined, etc., acknowl- edged that she freely executed, etc.," it was held that the deed could not be received in evidence. The certificate did not state who or whose wife was examined, etc. 40 §272. Identity of party — "Personally known." — To further assist in establishing the identity of the party ac- knowledging with the party executing, there is a very general statutory requirement that the officer shall not make a certificate of acknowledgment unless he personally knows of this identity. If he does not know this fact he may generally require evidence of it, and if he certifies that he knows of this identity, when he does not, he and his sureties are liable for damages. 41 And if the officer wilfully certifies falsely he is in some states guilty of a felony. 42 He is not expected to know, however, that the person acknowledging is the owner of the land described in the conveyance, and he is not obliged to certify to this fact. 43 The law does not generally prescribe the extent of the officer's acquaintance : an ordinary introduction which satisfies his own conscience appears to be enough, though an introduction to a notary of one stranger by another is not enough to warrant his official certificate that he knows 39 Canal Co. v. Kussell, 68 111. 426; supra, § 267. "Merritt v. Yates, 71 111. 636. 41 Bartels v. People, 1894, 152 111. 557; 38 N. E. 898; s. c. former ap- peal, 138 111. 322; Hatton v. Holmes, 1893, 97 Cal. 208; 31 Pac. 1131; Doran v. Butler, 74 Mich. 643; 42 N. W. 273; State v. Ryland, 1901, 163 Mo. 280; 63 S. W. 819. "N.Y.Pen. Co., §510. "State v. Thompson, 1899, 81 Mo. App. 549; Overacre v. Blake, 82 Cal. 77 ; 22 Pac. 979 ; Browne v. Dolan, 68 Iowa 646 ; 27 N. W. 795. § 273 ACKNOWLEDGMENT. 335 the former. 41 While the statutes very generally provide that the officer shall not take the acknowledgment unless he knows the person acknowledging to be the person ex- ecuting, etc., it is not required in all states that this per- sonal knowledge shall be certified to ; but where it is re- quired, its omission from the certificate is a fatal defect. For example, by New York statute the officer must know or have satisfactory evidence that the person ac- knowledging is the individual described in and who executed the conveyance, and it is held that the certificate should show this though the statute does not in terms require it to be shown. Therefore, a certificate: "Before me came J, to me personally known, and acknowledged the above to be his act and deed," is defective in not stating that the person who appeared was known to be the person described in and who executed, etc. 43 And such a showing in the certificate would be more certainly necessary where the statute expressly requires it. 46 § 273. Who may take the acknowledgment. — The ac- knowledgment must be made before, and taken by, a duly authorized and competent officer ; who must certify to the necessary facts in the proper mode. This statement involves, practically, much more than at first sight appears on its face. If the writing acknowledged is a conveyance of interests in real estate, the certificate should show that the certify- ing officer is one of those who, by the law of the place where the land is, is authorized to take the acknowledg- ment. As the instrument may be, and often is, acknowledged either at the place where the land is or elsewhere, some 44 Lindley v. Lindley, 1899, 92 Texas 446 ; 49 S. W. 593 ; Wood v. Bach, 54 Barb. 134; Bid well v. Sullivan, 1897, 17 N. Y. App. Div. 629. 45 Paolillo v. Taber, 56 App. Div. 241. 46 Hart v. Randolph, 142 111. 521, 527; 32 N. E. 517. "Known" is equivalent to "personally known": Schley v. Car Co., 120 U. S. 575 336 THE LAW OF CONVEYANCING. § 273 rules must be adopted to suit the different circumstances. There will be found, generally, statutory provisions in each state for three different sets of circumstances, viz.: 1. When the acknowledgment is made and taken where the land is, 2. When it is made and taken in one of the United States other than that where the land is, 3. When it is made and taken in a foreign country. The officials who may act under these different circum- stances are named in the statutes, and the modes in which they must respectively certify to the acknowledg- ment are prescribed. If the certificate does not show on its face conformity to the law of the place where the land is it is no certifi- cate, and the instrument is practically unacknowledged. Many different officers are authorized to act in this matter; some of the statutory provisions are peculiar. 47 The statutes are subject to amendment and are, as a fact, being constantly amended. It is necessary, in each case, to look to the law at the time an acknowledgment is made. For example, in Loree v. Abner, 48 which was ejectment for thirty thousand acres, the deed in question was ac- knowledged in 1788 — over one hundred years before the trial — before two justices of a court in Philadelphia : the land, though now in Kentucky, was then under the juris- diction of Virginia, and it was held that two justices (of 47 As illustrating the peculiarities of some of the statutes regarding the domestic officials who may, or may not, take acknowledgments, the following provisions maybe cited: In Michigan, every senator and representative in the state legislature may, by Public Acts 1901, page 175, take acknowledgments, — and a similar law exists in Minnesota, — while in Rhode Island a state senator may do so : notaries public and justices of the peace may generally take acknowledgments, but a New Jersey notary may not, nor may a justice of the peace in Utah, while in Delaware two justices of the peace of the same county may. In about ten states mayors of cities may so act, while in Pennsylvania the mayors and aldermen of seven cities, only, may. 48 1893, 6 U. S. App. 649. § 274 ACKNOWLEDGMENT. 337 this Philadelphia court) did not constitute " a court " within the meaning of Virginia's law : so the deed was not properly acknowledged, nor legally recorded, and a copy of it was not admissible in evidence. 49 § 274. Authority to take wholly statutory. — In all cases the general principle is applied that only those offi- cers authorized by statute to take acknowledgments may do so ; an acknowledgment taken by any other is inef- fectual. And where a statute providing for the acknowledgment of a particular kind of instrument specifies the officer or officers before whom it may be taken, an acknowledgment taken before any other officer (though he may be author- ized to take acknowledgments of most instruments) is void. For example : a chattel mortgage may not generally be acknowledged before a notary public in Illinois, 80 nor a tax deed before a notary public in Missouri, 51 nor a recogni- zance of special bail before a notary public in Michigan, 52 nor (formerly) articles of incorporation before a notary public in Ohio. 53 § 275. Who may take — When acknowledgment is taken in the state where the land is. — Among the domestic offi- cers (i. e., officers of the state where the land lies) most commonly named in the statutes as qualified to take ac- knowledgments are notaries public and justices of the peace. Other officials are also designated in most of the statutes; e. g., judges of courts of record, in some states other judges, clerks of courts, registers or recorders of deeds, mayors, etc.; but in practice most acknowledg- 49 SeeTrowbridge v. Addoms, 1897, 23 Colo. 518; 48 Pac. 535. 60 Long v. Cockern, 128 111. 29; 21 N. E. 201. 61 Dunlap v. Henry, 76 Mo. 106. 62 Clink v. Russell, 58 Mich. 242; 25 N. W. 175. 63 State v. Lee, 21 Ohio St. 662. 22 — Brews. Con. 338 THE LAW OF CONVEYANCING. § 276 merits are taken by notaries public and justices of the peace. In several jurisdictions if a justice of the peace takes an acknowledgment to a conveyance of lands which are in his state, but outside his county, there must be added to his certificate of acknowledgment a further certificate by the clerk of his county that he was at the time of taking the acknowledgment a justice of the peace in that county. 54 §276. Who may take — When acknowledgment is taken in another state — The commissioner of deeds. — Where the acknowledgment to a conveyance is taken in the United States, but in a state other than that in which the land conveyed is situated, it must be taken before some officer designated by the statutes of the state where the land lies. Otherwise, on the principles stated in Chapter I, the conveyance cannot be recorded in the state where the land lies, nor received in evidence in the courts of that state without further proof. One of the most useful officers for this purpose is the "commissioner of deeds." The statutes of probably each state authorize the governor to appoint commissioners of deeds for his (the governor's) state resident in every other state; and there may be found in almost every city one or more commissioners of deeds for every state : usually the same person is commissioner for many of the states. This official is recognized as an officer of the state from which he derives his appointment, 55 and is authorized, generally, not only to take acknowledgments of convey- ances of lands in that state, but to perform other acts; for example, to take depositions for use in that state. Gener- ally speaking, his certificate of his official acts, under his hand and seal, is all that is needed for the authentication of such acts in the state from which he derives his ap- 61 This is so in Colorado, Illinois, North Carolina and Oklahoma. 65 Fisk v. Hopping, 1897, 169 111. 105, 107; 48 N. E. 323. § 277 ACKNOWLEDGMENT. 339 pointment : because he is an officer of that state and his official acts will be recognized there. BS The statutes generally require the commissioner to affix his official seal to his certificate, and where this is required its omission is fatal to the validity of the certificate. 57 The seal should be one capable of making an impression on the paper, or on a wafer attached to the paper, for if it be wholly or partly written with pen and ink it may be held to be no seal, and the certificate, for this reason, ineffectual. 58 § 277. When taken in another state — Questions as to what officers may take, etc. — Provision is made for the acknowledgment of conveyances in other states before officers other than the commissioner of deeds ; and, as a commissioner is not always accessible, such provisions must often be resorted to in practice. These other officers are not officials of the state where the land lies (as is the commissioner of deeds). More- over, the forms or essentials of the acknowledgment may differ in the two states. Hence the questions of practical importance to settle in each case of this kind are : What are the statutory requirements of the state where the land lies : (a) Regarding the officers in the other state who may take the acknowledgment? (b) Regarding the showing, if any, necessary to estab- 56 In at least two states, however (New York and Nebraska) , a further certificate from the secretary of state of the appointing state is needed before the commissioner's certificate is effective there : this requirement seems to be unusual. Nebraska Com. Stat. 1901, § 4129; Omaha Real Est. &c. Co. v. Kragscow, 1896, 47 Neb. 592; 66 N. W. 658; New York Ch., 46 Gen. L., §260 (Real Prop. Law); Williamson v. Branning, 1895, 86 Hun 20.3. See Evans v. Etheridge, 99 N. C. 43 ; 5 S. E. 386. 57 Buell v. Irwin, 24 Mich. 145. 58 0elbermann v. Ide, 1896, 93 Wis. 669; 57 Am. St. 947: 68 N. W. -393; Gage v. Railroad, 11 Iowa 310; 77 Am. Dec. 145. 340 THE LAW OF CONVEYANCING. § 278 lish the official character of the officer taking the ac- knowledgment? (c) Regarding the form of the certificate of acknowl- edgment? There is much variance among the statutes of the sev- eral states on these points. (a) The officers of the other state who may take the ac- knowledgment are generally specifically enumerated, and are of the same general character as the domestic officers who may act. But there is often added after their enu- meration a general clause that any other officer may take the acknowledgment if he be authorized to take acknowl- edgments by the law of the state where the act is done, the result being in such cases that a foreign officer may, in some instances, take and certify to a valid acknowledg- ment when a domestic officer of the same quality could not do so. § 278. Taken in another state — Showing as to official character, etc. — (b) Where the acknowledgment is taken in the foreign state it is quite usual to require, before it will be recognized in the state where the land is, another certificate (besides the certificate of acknowledgment) from the clerk of a court of record, or from some other official, duly authenticated by his official seal, stating that the of- ficer taking the acknowledgment is the officer he purports to be, is authorized to act, and that his signature to the certificate of acknowledgment is genuine. Where such requirements exist they must be strictly complied with or the conveyance is no more entitled to record than if not acknowledged. 59 But it is held that "unless the statute requires evidence of official character to accompany the official act which it authorizes, none is necessary." 60 E9 Dohm v. Haskin, 1891, 88 Mich. 144; 50 K. W. 108; Fleschner v. Sumpter, 12 Ore. 161, 167; 6 Pac. 506. 60 Carpenter v. Dexter, 8 Wall. 513, 531 ; Knight v. Leary, 54 Wis. 459, 470; UN. W. 600. § 279 ACKNOWLEDGMENT. 341 This further certificate is generally required where the acknowledgment is taken in the foreign state by a justice of the peace, but it may be necessary in other cases. The tendency now is to dispense with such a certificate of the official character of the person taking the acknowl- edgment where the foreign officer uses his regular official seal in certifying to the acknowledgment. By many statutes, if the official acting is a notary public, who attests his acts with his seal, no other authen- tication is required. 61 In such cases the proper practice is to use the form of certificate of acknowledgment used in the state where the land lies. 62 § 279. Taken in another state — Certificate of conform- ity to foreign law. — (c) Where the acknowledgment is taken in a state other than that in which the land lies, it is permissible by some statutes to take it in accordance with the law of the place where it is taken. The law of the state, where the land is, adopts for this purpose the foreign law. 62a In such cases, however, a certificate of conformity to the foreign law is often required from some other official (county clerk, secretary of state, etc.), in addition to the certificate of official character mentioned above. The certificates as to these two matters are usually ( and it seems should be) combined in one certificate ; though a certificate as to one of these facts alone may be required. In each case it must be ascertained whether the certificate should be as to official character alone, or as to conform- ity to the foreign law alone, or as to both. Where, however, the statute of the place where the 61 This is so now in Alabama, Colorado, Iowa, Illinois, Indiana, Michigan, Ohio, Pennsylvania, Tennessee, West Virginia, and prob- ably other states. 62 Glos v. Gerrity, 1901, 190 111. 545, 546; 60 N. E. 833; Goree v. Wadsworth, 1890, 91 Ala. 416; 8 So. 712. 6,11 See ante, §9. 342 THE LAW OF CONVEYANCING. § 280 land lies permits the acknowledgment to be made in con- formity with either the foreign law or its own law, the acknowledgment must conform wholly with one or the other, for if it conforms partly with one law and partly with the other it is ineffective. 63 In all cases where a lawyer sends an instrument out- side his state for acknowledgment it is proper and desira- ble for him to send explicit directions as to how the acknowledgment should be made and taken, and whether or not a further certificate is required, and, if so, its na- ture. § 280. Acknowledgments taken out of the United States. — The same principles apply to acknowledgments taken out of the United States as to those taken in other states. The statutes designate the officers : consuls, com- mercial and diplomatic agents of the United States, no- taries public, judges and mayors being usually named. The officer must be one authorized by the statutes of the state where the land lies to take the acknowledgment in the foreign country. 64 Importance is attached in such cases to the official seal, and most of the statutes require it. 65 § 281. Competency of officer affected by interest — Par- ty cannot take acknowledgment. — Besides being compe- tent in the sense that he is one of the officials who may, under the statute, take an acknowledgment, the particu- 65 Adams v. Bishop, 19 111. 395; Farrell Co. v. Dart, 26 Conn. 376; Carney v. Hopple, 17 Ohio St. 39. See Kruger v. Walker, 1895, 94 Iowa 506; 63 N. W. 320. "DeSegondv. Culver, 10 Ohio 188; McMinn v. O'Connor, 27 Cal. 238; Sartor v. Bolinger, 59 Texas 411. 65 It is sometimes provided that the certificate maybe in a foreign language, accompanied by a sworn translation; e. g., Mo. B. S. 1899, § 909, or that, if in a foreign language, the certificate must be accompa- nied by a further certificate of the United States consul, or other desig- nated officer, stating the meaning of the certificate of acknowledgment; e. g., Ind., Burns' B. S. 1901, § 3357. § 281 ACKNOWLEDGMENT. 343 lar officer must not be rendered incompetent to take the acknowledgment by bis interest in the transaction. It is well settled as a general rule that an officer cannot take the acknowledgment of the conveyance to which he is j& party or in which he is directly interested. In a case which is generally cited on this subject in later discussions, 66 it is said that this rule is based on the fundamental principle that no one can properly be a judge in his own case or an executive officer in his own behalf; and, as it is always within the power of the parties to get a disinterested officer to take the acknowledgment, there is no reason why this fundamental principle should not apply, whether the act of the officer in taking the ac- knowledgment is regarded as ministerial in its nature, or as judicial, or "semi-judicial." 67 In other decisions the reason given for the rule is that it is contrary to public policy for one interested in the transaction to take an acknowledgment to an instrument to which he is a party. Hence an officer named as grantor cannot take his own acknowledgment so as to entitle the conveyance to record. 68 And the same principle applies to acknowledgments taken by grantees or mortgagees named in the conveyance. In Amick v. Woodworth 69 it was contended that, there being nothing on the face of the mortgage other than identity of name to indicate that the mortgagee and notary taking the acknowledgment were the same persons, 66 Wilson v. Traer, 20 Iowa 231. 67 It may be noted that the court is not correct in saying it is always within the power of parties to get a disinterested officer: the only qualified officer may be a party to the instrument. Where this has happened it has been held that an acknowledgment was good though taken before a party, partly because he was the only officer who could take it. Stevenson v. Brasher, 1890, 90 Ky. 23; 13 S. W. 242. On the other hand, it has been held that the acknowledgment cannot be taken by a party, even though no one else can take it. Hammers v. Dole, 61 111. 307. 68 Leftwich v. Richmond, 1902, 100 Va. 164; 40 S. E. 651. 69 1898, 58 Ohio St. 86; 50 N. E. 437. 344 THE LAW OF CONVEYANCING. § 282 the mortgage ought to be entitled to record and / have the effect of notice, etc., but it was held that the general rule is that identity of name shows identity of person, and that it is contrary to public policy that a party to a con- veyance should take an acknowledgment, even though it appear, as in this case, that he is merely a nominal mort- gagee, having practically no substantial interest in the mortgage. 70 Where, however, the grantor acknowledges a deed be- fore one of several grantees, each one of whom takes under the deed a separate and defined interest, the deed may reasonably be regarded as if made separately to each grantee, and the acknowledgment being good as to all the grantees except the grantee taking it will enable the deed to be read in evidence. 71 § 282. Practical effect of rule that party cannot take acknowledgment. — The effect of the application of this rule will be that the instrument, so acknowledged before a party to it, will remain valid between the parties in all cases where it would be valid without any acknowledg- ment ; but, as it cannot properly be recorded, its record is not noticed, nor should it be received in evidence with- out other proof than the certificate of acknowledgment. When, however, the acknowledgment is essential to the validity of the conveyance, the effect of an acknowl- edgment before a party would be to render the convey- ance invalid ; this seems to follow as a logical conclusion, because there is in such cases really no acknowledgment. Hence where the acknowledgment is necessary to the validity of a conveyance by a married woman, both acknowledgment and conveyance are void if the officer taking the acknowledgment is a party to the conveyance. 72 70 See also Lee v. Murphy, 1897, 119 Cal. 364; 51 Pac. 549, 955; Hun- ton v. Wood (1903, Va.), 43 S. E. 186. 71 Murray v. Tulare Ir. Co., 1898, 120 Cal. 311; 49 Pac. 563; 52 Pac. 586. 72 Rothschild v. Dougher, 1892, 85 Texas 332; 20 S. W. 142; 34 Am. St. E. 811; 16 L. E. A. 719; Tavenner v. Barrett, 21 W. Va. 656, 686 § 283 ACKNOWLEDGMENT. 345 And in a state where an acknowledgment is essential to the validity of a conveyance of a homestead, a mortgage of the homestead has lately been held absolutely void be- cause the acknowledgment of the mortgagor was taken by the real party interested as mortgagee, though the nomi-. nal, ostensible mortgagee was this party's wife. 73 § 283. Rule disqualifying party generally applies to acknowledgments of all instruments. — This rule that a party .cannot take an acknowledgment applies not merely to deeds of real property and ordinary mortgages, but, in general, to all instruments requiring acknowledgment. Illustrations : The acknowledgment of an assignment of a bond and mortgage by the holder thereof before one of the assignees is a nullity: the instrument though recorded is not legally entitled to record, and the record does not constitute notice of its existence, and one claim- ing under such assignee is not a bona fide purchaser as against a person to whom the holder had assigned the same bond and mortgage for value by a. prior assignment. 74 A chattel mortgage cannot be lawfully acknowledged before a mortgagee — even though he be the only officer who could take the acknowledgment. 75 A trustee under a deed of trust cannot properly take the acknowledgment : the re- cording of the deed so acknowledged is improper and the record does not impart notice to subsequent purchasers. 76 And the same result has been held to follow though the trustee taking the acknowledgment did not know at the time that he was named in the trust deed as a party, and refused to accept the trust as soon as he learned that he was trustee. 77 "Hedbloom v. Pierson (Neb. 1902), 90 N. W. 218. " Armstrong v. Combs (1897, N. Y.), 15 App. Div. 246. n Hammers v. Dole, 61 111. 307. "German Am. Bank v. Carondelet, 1899, 150 Mo. 570; 51 S. W. 691. "Iron Belt Bldg. &c. Ass'n v. Groves, 1898, 96 Va. 138; 31 S. E. 23. 346 THE LAW OF CONVEYANCING. § 284 § 284. Effect of relationship on officer's competency. — It is his interest in the matter which disqualifies the of- ficer from taking the acknowledgment, therefore, mere relationship, by blood or marriage, to one or both of the parties, is held, generally, not to render him incompetent to act officially. This is especially so wherever the act of taking the acknowledgment is regarded as a ministerial act rather than judicial. Hence where the grantor was the officer's father, and the grantee the officer's wife, he was held not disquali- fied. 78 And an acknowledgment of a mortgage before a brother of the mortgagor, including the privy examina- tion of the mortgagor's wife by the same officer, is held valid. 79 But conveyances of married women acknowl- edged before the husband of the grantee have been held invalid: the reason for this view being, that the act of taking the acknowledgment in such cases, especially where the officer must ascertain whether the woman acts freely, without coercion, etc., is more judicial in its nature than ministerial, and such relationship as would disqualify a judge should disqualify the officer to per- form this judicial or quasi- judicial act. 80 § 285. Undisclosed interest as affecting competency of officer to take. — The rule that interest disqualifies the officer when it is direct and appears on the face of the in- strument, is settled by the great weight of authority, but when the interest is not direct, and when it does not ap- pear on the face of the papers, the questions arising are different, and there is disagreement on some points among the courts. But inVa. Acts 1901-2, ch. 127, after reciting the fact that numerous deeds of trust have been acknowledged before notaries and justices who were trustees in said deeds, validates all such acknowledgments. 78 Remington Co. v. O'Dougherty, 81 N. Y. 474. ''McAllister v. Purcell, 1899, 124 N. C. 262; 32 S. E. 715. 80 Silcockv. Baker, 1901, 25 Texas Civ. App. 508; 61 S. W.939; Jones v. Porter, 59 Miss. 628. § 285 ACKNOWLEDGMENT. 847 The question whether the certifying officer is disquali- fied frequently arises when he is agent or attorney for one of the parties, when he is a shareholder or officer of a corporation which is a party, or when a partnership, of which he is a member, is a party. While his interest will vary according as he sustains one or the other of these relations to the parties, the question of general importance in most of such cases is, should an interest, often slight and remote, not disclosed in any way by the instrument or its record, avoid the ac- knowledgment and make the record no notice, and, in some cases, make void the conveyance? Some courts hold that an actual interest disqualifies the officer, whether the interest is apparent or not. Hence, under such a rule, the acknowledgment of a mortgage where a partnership is a party, before one of the partners, although his name does not appear in the firm name, is void ; the mortgage is not entitled to rec- ord, and its actual record does not afford constructive notice to a subsequent mortgagee ; the latter's mortgage, therefore, taken without actual notice, takes priority over the mortgage so acknowledged and recorded. 81 A shareholder has an interest in the business and assets of the corporation whose stock he holds, and therefore it has been held that the acknowledgment of an instrument before a shareholder of a corporation which is grantee, mortgagee, or beneficiary under the instrument, is void, and the record of such an instrument affords no notice, 82 and if the instrument so acknowledged before a share- holder 'is one of those for whose validity an acknowledg- ment is essential, as, for example (in many states), the conveyance or incumbrance of a homestead, then the in- 81 Bank v. Eadtke, 1893, 87 Iowa 363; 54 N. W. 435. Name of the firm in this case was: "City Bank of Boone''— that is, it did not con- tain the name of the officer taking the acknowledgment. 82 Smith v. Clark, 1897, 100 Iowa 605 ; 69 N. W. 1011 ; Kothe v. Krag- Eeynolds Co., 1898, 20 Ind. App. 293; 50 N. E. 594. 348 THE LAW OF CONVEYANCING. § 285 strument acknowledged is invalid, though the interest which disqualifies the officer taking the acknowledgment nowhere appears on its face. 83 In Ogden Bldg. Ass'n v. Mensch, 84 a mortgage of a homestead acknowledged before a shareholder in the cor- poration mortgagee is held inoperative as to the homestead interest or estate, but valid and binding as to all over the homestead estate, when its execution is proved by evi- dence other than that afforded by the acknowledgment ; the opinion further states (at its end) that, as the disqual- ifying interest of the acknowledging officer was not ap- parent, the registration and recording of the mortgage was effectual to charge subsequent mortgagees or pur- chasers with constructive notice. 85 89 Hayes v. Southern Home &c. Ass'n, 1899, 124 Ala. 663; 26 So. 527; 82 Am. St. E. 216; Bexar Bldg. &c. Ass'n v. Heady, 1899, 21 Texas C. App. 154; 50 S. W. 1079; 57 S. W. 583; Workman's Mut. Aid Ass'n v. Monroe, 1899 (Texas Ciy. App.) ; 53 S. W. 1029 ; Wilson v. Griess, 1902, 64 Neb. 792 ; 90 N. W. 866. In the last case the conveyance was a mort- gage oi the homestead, not given, however, directly to the corporation ' (a bank) whose stockholder was the officer before whom the mortgage was acknowledged, but to another bank. The debt secured was one in which both banks were interested, and that one whose stockholder took the mortgagor's acknowledgment was also owner of stock in the mortgagee. The court considered the stockholder's interest sufficient to disqualify him from taking the acknowledgment and held the mortgage void, since an acknowledgment is essential to the validity of a mortgage of the homestead in Nebraska. But as such a conveyance is not void on its face — the interest of the certifying officer not being apparent — it has been held valid for all purposes until it has been canceled in some di- rect proceeding brought for the express purpose of having the convey- ance adjudged void; Monroe v. Arthur, 1899, 126 Ala. 362; 28 So. 476; 85 Am. St. R. 36, and its invalidity cannot be shown in an. action of ejectment by the mortgagor against the corporation mortgagee after purchase by the latter at foreclosure sale under the mortgage. National Bldg. & Loan Ass'n v. Cunningham, 1900, 130 Ala. 539; 30 So. 335. "1902, 196 111. 554; 63 N. E. 1019; 89 Am. St. R. 330. See post, § 287, n. 92. 85 Thus the acknowledgment in this case is both valid and invalid : which is not as unreasonable as it may perhaps seem, because an acknowledgment may exist for more than one purpose in the same ' state. $ 286 ACKNOWLEDGMENT. 349 § 286. Undisclosed interest as affecting competency. — On the other hand, an acknowledging officer's interest in the transaction not disclosed on the face of the instrument acknowledged has been considered by other courts as not disqualifying him to take the acknowledgment. Hence a mortgage to one of two executors, acknowledged before the other executor and recorded on the strength of this acknowledgment, is held properly recorded so as to afford constructive notice to one afterward acquiring a lien on the property mortgaged, 86 and a chattel mortgage to a cor- poration acknowledged before a notary public who was a shareholder in the corporation, has been held enti- tled to record so as to afford notice to a subsequent mort- gagee. 87 In neither of these cases was the acknowledg- ment necessary to the validity of the conveyance: the mortgage in each case was valid as between the parties without an acknowledgment; the question was as to the effect of the record as notice. But in Cooper v. Hamilton &c. Ass'n, 88 a mortgage of a homestead acknowledged before a shareholder in the corporation mortgagee was held valid, though the ac- knowledgment seems to be, in Tennessee, essential to the validity of such a conveyance. The court regards it as not good practice to have an acknowledgment so taken, but holds that unless the officer's bad faith or improper conduct is shown the acknowledgment should not be held void. 88a § 287. Officer of corporation not generally disqualified unless also a shareholder. — While a shareholder's inter- est has thus often been considered sufficient to render him incompetent to take the acknowledgment of a con- 66 Morrow v. Cole, 1899, 58 N. J. Eq. 203: 42 Atl. 673. 87 Bank of Benson v. Hove, 1890, 45 Minn. 40; 47 N. W. 449. 88 1896, 97 Tenn. 285; 37 S. W. 12; 33 L. E. A. 338; 56 Am. St. E. 795. 88a See Read v. Toledo Loan Co., 1903, 68 Ohio St. 280; 67 N. E. 729. 350 THE LAW OP CONVEYANCING. § 287 veyance to which the corporation is a party, it is gener- ally held that an officer of the corporation (who is not shown to be a shareholder) is not thus incompetent by reason of such connection with the corporation. This would seem especially to be so where the nature of the officer's act is held to be ministerial rather than judicial, and where the rate of his compensation does not depend on the losses or gains of the corporation. 89 And even some interest in the particular transaction has been considered insufficient to disqualify him ; as, for example, where the cashier of a bank took the acknowledgment to a mortgage made by his debtor to the bank, the fact that part of the proceeds of the loan was used to pay off the cashier's debt did not give him such an interest in the matter as to invalidate his certificate of acknowledgment. 90 In Horbach v. Tyrrell, 91 which involved the question of the validity of a mortgage of a homestead, acknowledged before the secretary and treasurer of the corporation mortgagee, the majority of the court, in holding the mortgage valid, considered it important to determine that the act of the officer in taking the acknowledgment was ministerial merely ; in the dissenting opinion, however, no importance is attached to the determination of the character of the officer's act — whether ministerial or judicial — but it is considered of great importance that in performing an act which is essential to the validity of the conveyance of a homestead, the officer shall be en- tirely free from temptation to misstate the truth. 92 89 Bank of Woodland v. Oberhaus, 1899, 125 Cal. 320; 57 Pac. 1070. S0 Bardsley v. Bank, 1901, 113 Iowa 216; 84 N. W. 1041. 91 1896, 48 Neb. 514 ; 67 N. W. 485, 489 ; 37 L. R. A. 434. 98 Legislation has been considered necessary on this matter in some States, and must be looked for in others, for example: Illinois. Laws 1903, p. 120, acknowledgments taken by officers and stockholders legalized. Indiana. Burns' R. S. 1901, §8041. No one being an officer in any corporation, bank, or association possessing banking powers, can act as notary public in any business of such corporation, etc. Pennsylvania. See P. & L. Dig. 3239, § 5. Ohio. R. S., §111, am'd90O. L. 119. Certain officers and agents § 288 ACKNOWLEDGMENT. 351 § 288. Agent or attorney of party to a conveyance may generally take acknowledgment. — When the certifying officer is simply agent or attorney for a party interested in the instrument acknowledged, the general rule is that he is not disqualified unless it is shown that he has some beneficial interest in the conveyance, or that the amount of his compensation depends on the making of the con- veyance. 93 § 289. The parts of the certificate — Venue. — The com- petent, authorized officer must certify to the acknowledg- ment in the proper mode. The purpose of the venue is to show where the official act is done, and that it is done within the territorial juris- diction of the officer. 94 For the sake of regularity, and to save all question, this should always appear. 95 The juris- diction of the officer taking the acknowledgment is often limited to the county (or other territorial district) for which he is appointed, and in such cases especially should the certificate show the county (or district). A certificate, however, without a venue will not be fatally defective if the place where the acknowledgment was taken appears either from the body of the certificate or (as some cases hold) from the deed read in connection with the certificate. 96 If the place of acknowledgment cannot be determined from the venue, the body of the certificate, or the instru- of banks cannot act as notaries in any matter in which the bank is in- terested. Minnesota. General Laws 1899, pp. 17, 60, 202. Acknowledgments by officers and stockholders validated and permitted in the future. North Dakota. E. Co. 1899, §475a — validates acknowledgments taken by officers and stockholders — and see § 3593 a. 93 Haveraeyer v. Dahn, 1896, 48 Neb. 536 ; 58 Am. St. 706 ; 33 L. E. A. 332; 67 N. W. 489; Penn v. Garvin, 1892, 56 Ark. 511; 20 S. W. 410. "Middlecofi v. Hemstreet, 1901, 135 Cal. 173; 67 Pac. 768. 95 In re Henschel, 1901, 109 Fed. 861. 96 Carpenter v. Dexter, 8 Wall. 513, 528 ; Beekel v. Pettigrew, 6 Ohio St. 247. 352 THE LAW OF CONVEYANCING. § 290 ment acknowledged, it will generally be considered as fatally defective. 97 And under some decisions an absence of locality from the certificate will not be remedied by the name of a state and county at the beginning of the deed. 98 The acknowledgment should be actually taken within the officer's jurisdiction, and the venue should show this correctly, 99 but if he may act in any part of the state, and no county is named in the venue, the certificate will not be fatally defective. 100 § 290. Date. — The date should be stated, but while it is desirable that the certificate of acknowledgment should be dated, the omission of a date or the erroneous state- ment of it will not make the acknowledgment invalid (in the absence of a statute) if it is otherwise good. The true date may be shown as in the case of a deed. 1 The true date of acknowledgment cannot, of course, be earlier than the true date of execution, but it may be later, and the time is generally immaterial if it be after the execution and before suit brought ; and the acknowl- edgment may be made at different times (and places) by different grantors, in which case there should properly be different certificates. The statutes of some states require the true date of ac- knowledgment to be stated, 2 and in such cases the safe rule to adopt, in order to save all question, is to follow the statute. A statement in the certificate that the acknowledgment was made on the date of the instrument acknowledged is 97 See Hardin v. Kirk, 49 111. 153 ; Hardin v. Osborne, 60 111. 93. 98 Emeric v. Alvarado, 1891, 90 Cal. 444, 462; 27 Pac. 356. "Security Co. v. Payne, 1894, 107 Ala. 578; 18 So. 164. 100 Boussain v. Norton, 1893, 53 Minn. 560; 55 N. W. 747. 1 Durfee v. Grinnell, 69 111. 371. 2 For example, Mich. Com. L., § 8962; N. Y. E. S., ch. 547, L. 1896, §256; Pa. B. P. Dig., p. 632. § 291 ACKNOWLEDGMENT. 353 enough, 3 or the date may otherwise appear from the con- veyance. 4 § 291. Signing by officer — His official, not his personal signature. — It is generally essential that the certificate be signed by the officer taking the acknowledgment. Ir- respective of statutes requiring it, this should be done ; and where the statute requires the certificate to be sub- scribed one not subscribed is ineffective, even if the officer's name appear in the body of the certificate, 5 or even if it be attested by his official seal. 6 But as to this particular a substantial compliance with the statute is sufficient. 7 The officer's signature should not be merely his personal signature, but his official one, for he is acting, not in a personal capacity, but officially: therefore, he should sign: "A B, Notary Public," and further, if his locality has not already been stated, his signature should be : "A B, Notary Public, X County, Michigan." It has, indeed, been held that the name of his county is a part of a notary's official signature, and that his certi- ficate without it is not entitled to record, 8 and the omis- sion of the county is not cured by his seal which contains it, 9 unless, at least, the body of the certificate sets out that he is a "Notary Public in and for X county," in which case it appears sufficient for him to sign : "A B, Notary Public" or "Notary Public, as aforesaid." 10 3 Abney v. DeLoach, 84 Ala. 393 ; 4 So. 757. 1 Kelly v. Rosenstock, 46 Md. 389; Dahlam's Eat., 1896, 175 Pa. St. 455; 34 Atl. 807. The relation of the date of the certificate to the date of delivery is referred to above, § 34. 5 Marston v. Brashaw, 18 Mich. 81 ; Hout v. Hout, 20 Ohio St. 119. ••Clark v. Wilson. 127 111. 449; 19 N. E. 860. 7 Fisk v. Hopping, 1897, 169 111. 105, 107 ; 48 N. E. 323 ; Agan v. Shan- non, 1890, 103 Mo. 661; 15 S. W. 757. 8 Greenwood v. Jenswald, 69 Iowa 53 ; 28 N. W. 433. 9 Willard v. Cramer, 36 Iowa 22, 24. "Colby v. McOmber, 71 Iowa 469; 32 N. W. 459. 23 — Brews. Con. 354 THE LAW OF CONVEYANCING. § 292 Abbreviations of official titles, as J. P. and N. P., the meaning of which is well understood, may be used, 11 but are not in the best form to designate the title. Where the acting officer is a notary public the laws of several states 12 provide that he shall add to his certificate a statement of the date upon which his commission as notary expires ("My commission as notary public expires , 190 — "). For a neglect to make this statement he is, in some states (e. g., Indiana, Kansas), deemed guilty of a misdemeanor and may be fined : where no such penalty is provided, it would seem that his neglect might result in the loss of his commission. But the omis- sion of this statement should not invalidate the certifi- cate. 13 Nor should the notary's neglect to state "his place of residence" (which is required in some states) in- validate the certificate : such omissions are not material defects. 14 § 292. Sealing. — Many statutes require the officer to affi. his official seal to his certificate, and where such statutes exist his certificate without such seal is fatally defective. 15 By such statutes his official seal is meant, not his private seal or "scrawl." 16 But where a seal is not required by statute, the absence of one is not serious. 17 Generally the officers who take acknowledgments are 11 Final v. Backus, 18 Mich. 218 ; Eowley v. Berrian, 12 111. 198. 12 For example: Colo. Ann. Stat., §3281, no penalty; Ind., Acts 1899, p. 79, Burns' R. S. 1901, § 8039a-b, penalty $25; Kan., Gen. Stat. 1901, §§ 4271-2, penalty $100; Mich., Pub. Acts 1903, No. 18, no penal- ty; Mo., R. S. 1899, § 8835; Pa. Laws 1901, p. 70, no penalty.] "Kansas City R. Co. v. Railway Co., 1895, 129 Mo. 62, 68; 31 S. W. 451. "Griffin v. Catlin, 1901, 25 Wash. 474; 65 Pac. 755; 87 Am. St. R. 782. 15 Grand Rapids v. Hastings, 36 Mich. 122; Pitts v. Seavey, 1893, 88 Iowa 336; 55 N. W. 480; Thompson v. Scheid, 39 Minn. 102; 38 N. W. 801. 16 Mason v. Brock, 12 111. 273. "Fisk v. Hopping, 1897, 169 111. 105; 48 N. E. 323. § 293 ACKNOWLEDGMENT. 355 those required to have seals (except justices of the peace, who are not generally required to have them), and they should, as a rule, use them. The seal of the notary pub- lic is especially important, and judicial notice is generally taken of his seal. § 293. Impeachment of the certificate — When it is con- clusive. — As between the parties to a conveyance a certifi- cate of acknowledgment may be impeached for duress or fraud in procuring it, when the grantee participated in the wrong or knew of it, 18 and a subsequent grantee hav- ing knowledge of the fraud should be in no better position than his grantor. 19 Moreover, irrespective of fraud on the part of the grantee, or of his knowledge of the fraud or mistake of the officer taking the acknowledgment, it may be shown, in contradiction to the statement contained in the certificate, that the grantor did not, in fact, appear before the officer for the purpose of making the acknowl- edgment. 20 The evidence, however, to show that the grantor did not appear before the officer and acknowledge the' deed as certified must be clear and convincing. 21 It is permissible, also, to show that a certificate of ac- knowledgment is a forgery or fabrication. 22 When, however, a grantor has actually appeared before a competent officer to acknowledge the instrument, and the officer attempts to take the acknowledgment, and cer- 18 Fitzgerald v. Fitzgerald, 100 111. 385 ; McCandless v. Engle, 51 Pa. St. 309. 19 Ormsby v. Budd, 72 Iowa 80 ; 33 N. W. 457. "•Michener v. Cavender, 38 Pa. St. 334; 80 Am. Dec. 486; William- son v. Carskadden, 36 Ohio St. 664 ; Le Mesnager v. Hamilton, 1894, 101 Cal. 532; 35 Pac. 1054; 40 Am. St. E. 81; "Wheelock v. Cavitt, 1898, 91 Texas 679; 45 S. W. 796; 66 Am. St. B. 920; Camp v. Carpenter, 52 Mich. 375; 18 N. W. 113. 21 Goulet v. Dubreuille, 1901, 84 Minn. 72; 86 N. W. 779; Spivey v. Eose, 1897, 120 N. C. 163; 26 S. E. 701. "Marden v. Dorthy, 1899, 160 N. Y. 39; 54 N. E. 726; 46 L. E. A. 694. 356 THE LAW OF CONVEYANCING. § 294 tifies to it in regular form, the certificate is generally held conclusive as to those matters to which the officer is re- quired to certify ; and parol evidence cannot, therefore, be introduced to impeach the certificate in the absence of fraud known to those claiming under the conveyance. This rule applies, generally, not only to ordinary acknowl- edgments, but to those made by married women ; 23 al- though, as in some states the certificate is prima facie evidence only, parol evidence has been held, in them, to be admissible to show, for example, that the deed of a married woman was not explained to her. 24 § 294. Form of certificate to conveyance of corporation or by attorney. — The general forms given heretofore a4a are appropriate to individuals acting in their own right, but where an instrument is acknowledged on behalf of a cor- poration, or by an attorney under a letter of attorney, the form of the certificate should be varied. Forms to be used in both these cases are expressly pro- vided in many states, either those known as the "Ameri- can Bar Association Forms," or others. Where not provided, the usual form for an individual may be varied to suit the case by remembering that the instrument should be acknowledged as the deed of the principal rather than as that of the agent who acts for him, or as the deed of the corporation rather than that of its officer, or it may better, perhaps, be acknowledged as the deed of both. For example, in Illinois, no form for the acknowledg- ment by an attorney in fact being given, the statutory "Hitz v. Jenks, 123 U. S. 297; Linton v. Nat'l L. Ins. Co., 1900, 104 Fed. R. 584; Mut. L. Ins. Co. v. Corey, 1892, 135 N. Y. 326; 31 N. E. 1095 ; Am. Freehold &c. Mort. Co. v. Thornton, 1895, 108 Ala. 258; 19 So. 529; 54 Am. St. R. 148; Council Bluffs Sav'gs Bank v. Smith, 1899, 69 Neb. 90; 80 N. W. 270; 80 Am. St. R. 669. 24 Mays v. Pryce, 1888, 95 Mo. 603; 8 S. W. 731; Barrett v. Davis, 1891, 104 Mo. 549; 16 S. W. 377; Dodge v. Hollinshead, 6 Minn. 25; 80 Am. Deo. 433; see Benedict v. Jones, 1901, 129 N. C. 470; 40 S. E. 221. " a See supra, § 265. § 294 ACKNOWLEDGMENT. 357 form for the individual may be changed so as to read as follows (and this plan may be adopted in other states where no form is prescribed): State op County, ' "" ■'}■ I ( name and title of officer ) do hereby certify that , who is personally known to me to be the same person whose name is subscribed to the foregoing instrument, as attorney in fact of the said , appeared before me this day in person, and acknowledged that he, as such attor- ney in fact, for and on behalf of his said principal, signed, sealed and delivered the said instrument, as the free and voluntary act of himself and of the said , his said principal, for the uses and purposes therein set forth (in- cluding the release and waiver of the right of homestead). Given under my hand and seal, this day of , A. D. 19 — . (Signature and title of officer.) [Seal.] Or for a corporation, the form for an individual may be changed to read: -.}" State of • , , County op , J I (name and title of officer) do hereby certify that- president, and , secretary of the company, who are personally known to me to be such officers and to be the same persons whose names are subscribed to the fore- going instrument, appeared before me this day in person, and severally acknowledged that as such president and secretary they signed and delivered the said instrument, and caused the corporate seal of said company to be af- fixed thereto pursuant to authority given by the board of of said company, as their free and voluntary act and as the free and voluntary act of said company for the uses and purposes therein set forth. Given under my hand and seal this day of , 19 — . (Signature and title of officer.) [Seal.] Or in Indiana, for example, where the acknowledg- ment for the individual is simpler than in some states 358 THE LAW OF CONVEYANCING. § 295 the acknowledgment in these cases may be simpler. 25 For a corporation there it may be much shorter than in many states; for example: (Caption.) Personally appeared before me (name and title of offi- cer) this — day of , 19 — , A B, president of the (name of corporation), and S P, secretary of (name of corporation), and A B, as such president, and S P, as such secretary, and on behalf of said (corporation) ac- knowledged the execution of the annexed deed. Witness my hand and seal of office this day, etc. [Seal.] (Signature and title of officer.) In many states, however, the certificate in the case of acknowledgment by a corporation sets forth that the offi- cers of the corporation are sworn, etc. 26 § 295. Proof instead of acknowledgment. — It is permit- ted in most of the states to prove deeds as well as to ac- knowledge them. The general objects of the proof are the same as those of the acknowledgment. Where proof is made one (or more) of the witnesses to the conveyance makes oath, before a duly authorized offi- cer, that the grantor executed the instrument in the pres- ence of affiant (and of the other witnesses generally), and the officer makes a certificate of this oath on the convey- ance as a certificate of acknowledgment is made, and the conveyance, with the certificate, is recorded. The same general principles apply to proof as to ac- knowledgment; no substantial departure from the statu- tory requirements is permissible. 27 25 For acknowledgment by attorney, see Butterfield v. Beal, 3 Ind. 203. 86 For example, N. Y. R. S., ch. 547, L. 1896, § 258 ; also Am. Bar Ass'n forms used in Iowa, Massachusetts, Minnesota, Michigan, Missouri, to be found in the statutes ; formerly so by usage in Pennsylvania, but see a simple form in Pennsylvania Laws 1901, p. 171. "Irving v. Campbell, 1890, 121 N. Y. 353; 24 N. E. 821. § 295 ACKNOWLEDGMENT. 359 It is better, generally, to have the conveyance acknowl- edged than proved ; and in some states "proof" can be made only when the grantor has died, or cannot be found, or refuses to acknowledge, a statutory preference being thus shown for the acknowledgment. CHAPTER XIX. DELIVERY. 296. Delivery essential to a deed and to the transfer of title. Exception to rule that de- livery is essential. Elements of delivery — Sur- render of control by the grantor. Elements — The intent of the grantor. Acceptance presumed until dissent is shown. Acceptance by the grantee. If acceptance is prevented there is generally no de- livery. Presumption of delivery from certain facts. 297. 298. 299. 300. 301. 302. 303. §304. 305. 306. 307. 308. 309. 310. 311. Presumption of delivery — Eecording. Postponing complete deliv- ery till death of grantor. Effect of grantor's retention of possession and control of the deed. Effect of grantor's deposit- ing deed with a third per- son : reserving no control. Effect of reserving control by grantor in such cases. Delivery in escrow. Effect of grantee's obtain- ing possession of escrow wrongfully. Effect of surrender or de- struction of a deed. § 296. Delivery essential to a deed and to the transfer of title. — Always prominent in every definition or descrip- tion — ancient or modern — of a deed is the idea of deliv- ery. Assuming that the instrument is complete in sub- stance, and that all formalities which may be regarded as representing sealing at common law are complied with, the instrument is not in a legal sense a deed, does not fulfill the meaning of its old name factum, a thing done, until it is delivered. The purpose of making the instru- ment has been to transfer title, and while popularly we may properly apply the term deed to the written instru- ment, and while in legal discussions we must often refer to this paper as a "deed," yet, strictly speaking, there is (360) § 297 DELIVERY. 361 no deed until the sealed writing is delivered. As on de- livery of the conveyance the grantor is divested of title and the grantee is invested with it ; as the former has, after delivery, no title in the property described in the deed which he may dispose of, or which may be taken by his creditors, or which will descend to his heirs ; while the latter has title which cannot — generally speaking — be lost by a destruction or surrender of the deed, it is im- portant in each case to determine whether there has been a delivery, and, further, at what time the delivery was complete. That the subject is worthy of attention and is not free from difficulties, is demonstrated by the frequency of suits in which the chief, and often the only, question is as to delivery. The cause of difficulties in determining whether there has been a delivery is that it is not always accom- plished by the simple manual transfer of the instrument from the grantor directly to the grantee, but may be ac- complished in a great variety of ways — sometimes without a direct manual transfer between the parties, and sometimes without an actual transfer of the instrument at all. It is largely a matter of intention, which is to be ascertained from all the various circumstances of each case. § 297. Exception to rule that delivery is essential. — To the general rule that delivery of the conveyance is neces- sary to a transfer of title there is an exception, which may be noted at the outset, namely : that conveyances by the government may transfer title without delivery of the patent or deed. When a patent of government lands has been executed and recorded in the land office, it has become a solemn act of the government. Title to the land passes to the grantee by the record. The reason for the difference in this respect between public and private grants is indi- cated by the supreme court of the United States, in a 362 THE LAW OF CONVEYANCING. § 298 case * where one contention was that a patent purporting to convey land of the United States was not effectual for that purpose for want of delivery, but the court distin- guishes the public grant from the private grant, say- ing : "The importance attached to the delivery of the deed in modern conveyances arises largely from the fact that the deed has taken the place of the- ancient livery of seisin in feudal times, when, in order to give effect to the enfeoffment of the new tenant the act of de- livering possession in a public and notorious manner was the essential evidence of the investiture of the title to the land;" and then mentions the symbolical acts which took the place of the livery of seisin, followed later by the delivery of the deed, and shows that in transfers of title by matter of record, whether the record was a judgment or decree of a court, as a fine or a recovery, or the record made of the king's grant, neither livery of seisin was necessary, nor a delivery of the document sealed with the king's seal. 2 § 298. Elements of delivery — Surrender of control by the grantor. — Delivery is, however, as essential to the deed of a private person as livery of seisin ever was under the older law to transfer title. Delivery practically signifies, according to many mod- ern authorities, not merely the act evidencing the inten- tion of the grantor alone in liberating the instrument from his control. According to them there must be, to effect a complete delivery, an acceptance by the grantee of the instrument into his control ; therefore, the conception of the term "delivery" embraces two distinct ideas: surren- der by one, and acceptance by the other. While it will appear 3 that the authorities are not en- 1 United States v. Schurz, 102 U. S. 378, 398. 2 See also Gilmore v. Sapp, 100 111. 297; Leroy v. Jamison, 3 Sawyer 369, 390; Alvarado v. Nordholdt, 1892, 95 Cal. 116, 128; 30 Pac 211 8 See §§ 300, 301, post. '§ 298 DELIVERY. 363 tirely in accord as to the necessity of acceptance as an element of delivery, all agree that the first essential of a valid delivery is that the grantor surrender control of the deed with intent that the grantee shall take title under it. Surrender does not necessarily and always mean the actual, physical giving up of possession of the instrument ; hence it is not always the case that a deed retained in the grantor's hands is invalid for want of delivery. There may be such attendant circumstances as, for example, relationship of grantor to grantee, or other acts of the grantor besides the mere signing and sealing of the deed, as to show that the title is beyond his control, though the deed is retained in his possession. For example, in one case 4 the question was as to the ownership of real property which had been insured and had burned, and the settlement of this question depended upon whether there had been delivery of a deed from husband to wife. The husband, the grantor, did not give the deed to his wife, but after recording it kept it in his possession. It was decided that there was enough evidence to warrant the jury's finding of delivery; the court observing that " manual delivery is not always necessary." This would especially be so in case of a conveyance from husband to wife, where the husband is the custodian of the wife's papers and manager of her property, either by arrangement between them in the particular case, or by the general policy of the law of the place. 5 So, in the very common case of a parent's making a conveyance of land to his children and retaining possession of the deed, it is usually held that there has been a sufficient surren- der of the deed by the parent, though there may have been no permanent transfer of possession of the deed. 6 4 Glaze v. Insurance Co., 1891, 87 Mich. 349; 49 N. W. 595. 6 Brown v. Brown, 61 Texas 56; Ruckman v. Buckman, 32 N. J. Eq. 259, 261. 6 Reed v. Douthit, 62 111. 348; Valter v. Blavka, 1902, 195 111. 610; 63 364 THE LAW OP CONVEYANCING. § 299 Nor is relationship between the parties necessary in all cases for the application of this principle. In a Massa- chusetts case 7 the deed purported to convey to a town a lot on condition that a library building be erected on it. The deed had been recorded, but appears to have been kept by the grantor, and after his death was found among his ef- fects, and there was no evidence of its surrender to the town authorities : but the town had erected the building. It was held there was evidence of delivery which was not overcome by the facts that the deed was kept by the gran- tor and that the town authorities had no knowledge of its actual delivery. 8 § 299. Elements — The intent of the grantor. — This surrender of control must be with the intent that the grantee is to take title. Hence the mere placing of the instrument in the hands of the person named as grantee is not necessarily such surrender as will constitute the first essential of delivery. In Wisconsin 9 it was argued that as the deed was handed by the grantor to the grantee there was a full and complete delivery, and that evidence was not admis- sible to show the actual condition then existing. The court says : "No doubt a great deal of discussion and un- necessary refinement may be found in the books bearing on this question ; but the main principle must predomi- nate, that, to constitute a valid delivery of the deed, the grantor must part with his dominion over it with intent to pass the title." And as here the deed was handed to the grantee for the purpose of examination and inspec- N. E. 499; Colee v. Oolee, 122 Ind. 109; 23 N. E. 687; 17 Am. St. R. 345 ; Reed v. Smith, 1899, 125 Oal. 491 ; 58 Pac. 139 ; Bunnell v. Bun- nell, 1901, 23 Ky. Law R. 800; 64 S. W. 420. ' Snow v. Orleans, 126 Mass. 453. 8 See also Wallace v. Berdell, 97 N. Y. 13; Scrugham v. Wood, 15 Wend. 545. 9 Curry v. Colburn, 1898, 99 Wis. 319; 74 N. W. 778; 67 Am. St. Rep. 860. § 299 DELIVERY. 365 tion, and that he might take it to his counsel for such examination, there was no delivery. 10 And the execution and recording of a deed by a hus- band to his wife may be shown by him to have been done without intent on his part to convey title, but simply to relieve his wife's insane anxiety and fear of destitution. 11 As the intent of the grantor is of such importance, a transferring of the deed from the grantor's possession to that of the grantee, without the former's consent, conveys no title ; such a deed has been said to be of no more ef- fect than if it were a forgery. 12 And if a stolen deed has been recorded, or is otherwise a cloud on the title of a grantor, it may be canceled upon his bringing suit for that purpose. 13 This intent being of such vital importance, it is fre- quently said that the intention of the grantor is "the controlling element." 11 But a mere intent on the part of the grantor not evidenced by some act which the law deems sufficient to show that he parted with control is not enough, because the first actual step in making deliv- ery is lacking, that is, surrender or the - relinquishment of control. This principle is applied chiefly in those nu- merous cases where a grantor evidently intends his con- veyance to take effect as a deed after his death, yet does 10 See S. P.— Chick v. Sisson, 1893, 95 Mich. 412; 54 N. W. 895; Hol- lenbeck v. Hollenbeck, 1900, 185 111. 101, 103; 57 N. E. 36; Kenney v. Parks, 1902, 137 Cal. 527; 70 Pac. 556. 11 McCartney v. McCartney, 1900, 93 Texas 359; 55 S. W. 310. "Felix v. Patrick, 1892, 145 U. S. 317, 329; Fitzgerald v. Gofi, 99 Ind. 28, 40. 13 Maratta v. Anderson, 1898, 172 111. 377; 50 K. E. 103. In Meeks v. Stillwell, 1896, 54 Ohio St. 541 ; 44 N. E. 267, husband and wife were in possession of a homestead the title to which was in the wife; they joined in a deed of gift, but with the intention of not delivering it un- til after the death of both. The wife, however, during the lifetime of her husband attempted to deliver the deed without his knowledge and consent, and it was held that his right in the homestead could not be affected by the deed. "E. g., Leavitt v. Leavitt, 1899, 179 111. 87, 90; 53 N. E. 551. 366 THE LAW OF CONVEYANCING. § 300 not in all cases completely surrender control of it : a mat- ter to be discussed presently. 15 § 300. Acceptance presumed until dissent is shown. — The question as to whether or not there must be an accept- ance by the grantee in order that there may be a trans- mission of title involves difficulties. It seems true that "the law certainly is not so absurd as to force a man to take an estate against his will"; 16 he cannot, therefore, be compelled to accept a conveyance. On the other hand, experience has shown that, as a rule, men do not decline to accept an ordinary conveyance which gives title to property. If, then, a grantor executes a conveyance without the knowledge of the nominal grantee, and puts the convey- ance out of his control, has the title to the property de- scribed passed from the grantor? May the grantee then decline to accept the conveyance, and if so, does the title pass back to the grantor? Who has the title in the mean- ■ time — that is, after the grantor has surrendered all con- trol of the conveyance and before the nominal grantee has declined to accept it? If during this interval third persons acquire apparent interests in the property — for example, creditors of either party to the deed — what be- comes of these apparent interests? It seems to have been established by English decisions that: (a) a conveyance of real property will be presumed to have been accepted by the person named as grantee, even though he was ignorant of the fact of the convey- ance; but that (b) the nominal grantee may, on learning of the conveyance, decline to accept it. The grantee's dissent was called a " disclaimer;" and at one time a deed seems to have been necessary to make the, disclaimer effectual, but by modern decisions there may be a valid 15 See post, §§ 306, 307. 16 Abbott, O. J., in Townson v. Tickell, 3 Barn. & Aid. 31, 36. § 301 DELIVERY. 367 disclaimer by conduct alone. 17 The matter was discussed in Butler and Baker's Case, 18 where it is said: "If A make an obligation to B and deliver it to C, to the use of B, this is the deed of A presently. But if C offer it to B, then B may refuse it in pais, and thereby the obligation will lose its force." And see the later cases of Smith v. Wheeler 19 and Thompson v. Leach. 20 The argument of Justice Ventris in the latter case, which argument he says was adopted by the house of lords in finally deciding the case on appeal, 21 appears to have been the chief authority for later decisions. It has accordingly been held in many cases that when the grantor has parted with control of the deed the deliv- ery is complete and no acceptance by the grantee need be shown, nor even his knowledge of the deed, for its ac- ceptance by him will be conclusively presumed until his express dissent is shown. 22 § 301. Acceptance by the grantee. — On the other hand, it is held that there must be 1 acceptance by the grantee to complete "delivery." In a Massachusetts case 23 a charge that "If, after sign- ing the deed, the grantor placed it upon the table, or placed it in M's hands with the intention that it should become effective and operative, then there was a good delivery of "See Stacey v. Elph, 1 My. & K. 195; Birchall v. Ashton, 40 Ch. D. 437, 439. 18 Btitler and Baker's Case, 3 Co. Rep. 26 (1591). "Smith v. Wheeler, 1 Ventris, 128 (1671). 20 Thompson v. Leach, 2 Ventris, 198 (1690). "Thompson v. Leach, 2 Ventris 208. " Robbins v. Rascoe, 1897, 120 N. C. 79 ; 26 S. E, 807 ; 58 Am. St. R. 774; Mitchell's Lessee v. Evan, 3 Ohio St. 377 ; Jones v. Swayze, 42 N. J. L. 279; Guggenheimer v. Lockridge, 1894, 39 W. Va. 457, 461 ; 19 S. E. 874. The theory that title can pass from the nominal grantor with- out the knowledge or consent of the nominal grantee is assailed in an interesting and forcible opinion by Dixon, O. J., in Welch v. Sackett, 12 Wis. 270. M Meigs v. Dexter, 1898, 172 Mass. 217; 52 N. E. 75. 368 THE LAW OF CONVEYANCING. § 301 the deed," was held to be erroneous, as M was merely the scrivener, not representing the grantee in any way, and he simply left the deed on the table. The court con- siders it settled that an acceptance is necessary, and that it must be either by the grantee or by some one represent- ing him, or by some one assuming to represent him, whose act of acceptance is afterward ratified. 24 Stronger evidence is required to show acceptance in some cases than in others, and it is essential in many cases to show an express acceptance. Such would generally be the rule where, by the terms of the deed, some obligation or burden is imposed on the grantee, as, for example, the assumption of personal liability for a mortgage. 25 In such cases an express acceptance may be by word, or by exercising acts of ownership in accordance with the deed, as by the grantee's selling the land conveyed. But it is evident that what might be acceptance in some other cases can- not amount to acceptance in such cases. A deed, for ex- ample, containing an assumption of a mortgage recorded by the agent of the grantor could not estop the grantee from disputing his acceptance of the deed as against a purchaser who had relied on the record. 26 But if the grantee in such a deed has disposed of the land conveyed to him by the deed, or otherwise exercised acts of ownership over it, he cannot deny his acceptance when an obligation imposed upon him by the deed is sought to be enforced. 27 On the other hand, the law often supplies the evidence of acceptance by a presumption, where the conveyance is clearly beneficial, or at least not prejudicial to the grantee, 24 Dagley v. Black, 1902, 197 111. 53; 64 N. E. 275. "Blass v. Terry, 1898, 156 N. Y. 122; 50 N. E. 953; Kellogg v. Cook, 1898, 18 Wash. 516 ; 52 Pao. 233. 26 Hare v. Murphy, 60 Neb. 135; 82 N. "W. 312. Same case, on a former appeal, 45 Neb. 809 ; 29 L. B. A. 851 ; 64 N. W. 211. "Beeson v. Green, 1897, 103 Iowa 406; 72 N. W. 555. § 302 DELIVERY. 369 and the grantee is not sui juris. In such cases a delivery to the parent or guardian of the grantee is generally con- sidered a delivery. For example, a woman, in order to put her land beyond the reach of her former husband, signed and acknowledged a deed conveying it to her children, all of whom, with one exception, were infants, and retained the deed in her possession after recording it. 28 The court says, substantially, that making a volun- tary conveyance, absolute in form and beneficial in effect, by a parent to one who is not sui juris and placing it upon record, although possibly not effectual, without more, be- tween adults, is deemed to evince an unmistakable inten- tion to give to the deed effect, and pass title, and the assent of the grantee, if nothing further appears, is pre- sumed from the beneficial character of the transaction. 29 § 302. If acceptance is prevented there is generally no delivery. — While slight evidence only is needed to show acceptance in many cases, and while there will be a pre- sumption of it in certain others, it cannot be found as a fact, even where the conveyance is clearly beneficial, when there has been a direct declination of the deed. For ex- ample, in Nicholl's Appeal, 30 the proceeding was to restore M Colee v. Colee, 122 Ind. 109; 23 N. E. 687; 17 Am. St. E.345. There had been a divorce, though the report of this case does not show it. 29 See Hall v. Cardell, 1900, 111 Iowa 206 ; 82 N. W. 503. In this case the grantee was an infant but a few weeks old. Although, as the court says, the deed may not have been actually beneficial to such a young child, yet, as it was not prejudicial, acceptance may be properly pre- sumed. Ehea v. Bagley, 1897, 63 Ark. 374; 38 S. W. 1039; 36 L. E. A. 86; Arlington v. Arrington, 1898, 122 Ala. 510; 26 So. 152; Winterbot- tom v. Patterson, 1894, 152 111. 334; 38 N. E. 1050; Hall v. Hall, 1891, 107 Mo. 101, 108; 17 S. W. 811; Compton v. Church, 1891, 86 Mich. 33; 48 N. W. 635. But the mere making of a conveyance by a father for the benefit of his children, without recording it or mentioning it, has been considered as not evidence of delivery when taken in connection with his continued dominion over the property and possession of the deed. Cazassa v. Cazassa, 1893, 92 Tenn. 573 ; 22 S. W. 560 ; 36 Am. St. E. 112 ; 20 L. E. A. 178. 30 1899, 190 Pa. St. 308; 42 Atl. 692. 24— Brews. Con. 370 THE LAW OF CONVEYANCING. § 302 what was called a "lost deed." A father had made and sealed a conveyance and handed it to his son, who de- clined it, simply saying to his father to keep it and all he had as long as he lived. The court remarks that as a re- sult of this "filial suggestion" the case has to deal, not with a lost deed, but with an undelivered deed, which is no deed at all: it was undelivered and inoperative, be- cause it was tendered and refused. 31 Hence also, in those states where acceptance is considered necessary to com- plete "delivery," if before acceptance something happens, other than express declination, to prevent it, there is no delivery. For example, if the grantee die before accept- ance his heir cannot accept the deed so as to make the de- livery complete. 32 Or, if before acceptance of the convey- ance by the grantee, the grantor recalls the deed, there is no delivery. 33 Nor is there if before acceptance the grantor conveys the land to some one else. 34 So a lien placed upon the land before assent is given by the grantee will take precedence of the deed. The lien may be by an act of the grantor; for example, a mortgage given by him, 35 or by an act of a third party, as a creditor acquiring a lien by judgment. 36 However, surrender and acceptance need not be concur- rent acts, and, generally, where nothing happens to pre- vent acceptance, it may be made, it appears, at any time after the grantor's surrender. The grantee's acceptance will relate back to the grantor's surrender. The time be- tween the two may be longer or shorter, and its length ap- 31 See Spencer v. Spraell, 1902, 196 111. 119; 63 N. E. 621. 88 Jackson v. Phipps, 12 Johns. 418, 422; McElroy v. Hiner, 1890, 133 111. 156 ; 24 N. E. 435. 88 O'Connor v. O'Connor, 1896, 100 Iowa 476; 69 N. W. 676. 84 Hawkes v. Pike, 105 Mass. 560. 85 Parmelee v. Simpson, 5 Wall. 81 . 36 Woodbury v. Fisher, 20 Ind. 387; 83 Am. D. 325; Cravens v. Eos- siter, 1893, 116 Mo. 338; 22 S. W. 736; 38 Am. St. E. 606. § 303 DELIVERY. 371 pears to be immaterial, so long as the rights of third parties have not intervened. 37 § 303. Presumption of delivery from certain facts — Possession of deed. — If the essential elements of " de- livery" exist, it is evident that they may be shown in almost innumerable ways. The discussion at length, therefore, of the question whether a particular fact con- stitutes delivery, would seem to be unprofitable, because the correct answer to such a question must depend upon what the other facts are that accompany the fact in ques- tion. There are, however, certain facts and circum- stances which, if found in a particular case, give rise to presumptions of importance in settling the question of delivery. For example, the possession of a regularly executed deed by the grantee named in it, or by one holding under him, is prima facie evidence of its delivery. 38 And it has been said of such a circumstance "that only clear and convincing evidence can overcome the presumption, oth- erwise titles could be easily defeated, and no one could be regarded as being secure in the ownership of land." 39 Plainly, however, it is not prudent to rely entirely on the nominal grantee's possession of the deed as evidence of his ownership : he may have possession when there has been no valid delivery, 40 and a person dealing with him as owner in perfect good faith may be the loser — a princi- ple well illustrated by a recent case. 41 "See Dettmer v. Behrens, 1898, 106 Iowa 585; 76 N. W. 853. 38 Butrick v. Tilton, 141 Mass. 93 ; 6 N. E. 563 ; Ward v. Dougherty, 75 Cal. 240; 17 Pac. 673; 7 Am. St. E. 151 ; Inman v. Swearingen, 1902, 198 111. 437; 64 N. E. 1112; McGee v. Allison, 1895, 94 Iowa 527; 63 N. W. 322; Hathaway v. Cass, 1901, 84 Minn. 192; 87 N. W. 610; Swank v. Swank, 1900, 37 Ore. 439; 61 Pac. 846. S9 Tunison v. Ohamblin, 88 111. 379. 40 Barron v. Mercure (Mich. 1903), 93 N. "W. 1071; 9 Detroit Leg. News 671. 41 Cameron v. Gray, 202 Pa. St. 566. See also cases cited in §§ 306 and 310. 372 THE LAW OF CONVEYANCING. § 304 §304. Presumption of delivery — Recording. — As to what effect is to be given to the recording of a deed, and to what extent it is evidence of delivery, there is some conflict of opinion. The general rule, however, appears to be that the re- cording of a deed is prima facie evidence of delivery, but is not conclusive, and the presumption arising from re- cording may be rebutted, either by direct evidence or by the circumstances under which the recording was done. 42 In states where acceptance by the grantee or knowledge by him of the deed need not be shown, the recording of the deed by direction of the grantor would place the title beyond his control so that he could not thereafter change - his mind and defeat the title of the grantee by resuming possession of the deed, even though the grantee knew nothing of it till after the attempted recall by the grantor. 43 On the other hand, where a deed has been re- corded by the grantor, without the grantee's knowledge or assent, the recording has been considered simply as some evidence of delivery to be regarded with other evi- dence of accompanying facts or later circumstances, such as possession and control of the deed or the property. 44 Though if the grantor, with the knowledge and consent of the grantee, records the deeds with intent to divest himself of title he will be concluded by the delivery thus shown. 45 42 Jourdan v. Patterson, 1894, 102 Mich. 602; 61 N. W. 64; Holmes v. McDonald, 1899, 119 Mich. 563 ; 78 N.W. 647 ; 5 Detroit Leg. News 914 ; Sullivan v. Eddy, 1894, 154 111. 199, 208 ; 40 N. E. 482 ; Bush v. Genther, 1896, 174 Pa. St. 154 ; 34 Atl. 520 ; S weetland v. Buell, 1900, 164 N. Y. 541 , 652; 58 N. E. 663; Koppelmann v. Koppelmann, 1900,94 Texas 40; 57 S. W. 570; Smith v. Smith 1903, 116 Wis. 570; 93 N. W. 452. "Robbins v. Rascoe, 1897, 120 N. O. 79; 26 S. E. 807; 58 Am. St. R. 774. " Cravens v. Rossiter, 1893, 116 Mo. 338 ; 22 S. W. 736 ; 38 Am. St. R. 606; O'Connor v. O'Connor, 1896,100 Iowa 476; 69 N. W. 676; Davis v. Davis, 1894, 92 Iowa 147; 60 N. W. 507; Weber v. Christen, 121 111. 91; 11 JST. E. 893; 2 Am. St. R. 68. 45 Brady v. Huber, 1900, 197 111. 291 ; 64 N. E. 264. § 305 DELIVERY. 373 The doctrine of some courts is that the mere recording of a deed by direction of the grantor without some other act or declaration manifesting his intent to deliver the deed, is not evidence of delivery, 46 though the grantor actually intended, when he had the deed recorded, to pass the title to the land described in the deed to the grantee. 47 The general rule being that the record of a deed is but some evidence of delivery, often overcome by circum- stances which are not matters of record, it is evident that the popular conception of the value of a "record title" is not well founded in law, and that the record really is of but slight assistance in establishing a fact relating to the title which is of vital importance: that is, delivery. This is one feature of our present system which is recognized as furnishing ground for some such reform as the so- called "Torrens System," under which it is claimed that the disadvantages resulting from the failure of our records to really show the title, in this and in other ways, will be lessened if not wholly removed. § 305. Postponing complete delivery till death of grant- or. — Among the most difficult cases in which the ques- tion of delivery is involved are those where a grantor wishes to postpone till his death the complete effect of a deed. In such cases disappointed heirs often claim that 46 Egan v. Horrigan, 1901, 96 Maine 46; 51 Atl. 246. "Barnes v. Barnes, 1894, 161 Mass. 381; 37 N. E. 379. The court says in this case : "If the question were a new one there would perhaps be nothing difficult or impracticable in the conception that the act of leaving a deed with the register for record by the grantor, with the in- tent on his part thereby to vest the title in the grantee, should consti- tute the register the agent for delivery of the grantee, and that upon the assent of the grantee the transaction should take effect as a valid delivery. But we think the law is otherwise in this state." It is, how- ever, now provided by statute in Massachusetts that the record of a deed duly acknowledged, etc., "shall be conclusive evidence of the delivery of such instrument, in favor of purchasers for value without notice, claiming thereunder." Mass. B. L. 1902, C. 127, § 5. 374 THE LAW OF CONVEYANCING. § 306 the deed is ineffectual for want of delivery, and while the purpose of the grantor may have been the avoidance of a contest over his will, had he made one, or the saving of the expense of administration, the result often is very different from what he intended, for the litigation and expense are increased, rather than diminished, by his conduct. Grantors in such cases might generally accom- plish what they appear to desire by making conveyances reserving to themselves life estates in the property con- veyed, and delivering the conveyance to the grantee, but, for one reason or another, this course is often not pur- sued. Cases in which the grantor wishes and attempts to post- pone the taking effect of his conveyance until his death maybe grouped into two general classes: 1. Those in which the grantor himself retains posses- sion of the deed, still with the intention that after his death it shall come into the grantee's possession. 2. Those in which the conveyance is deposited by the grantor with a person other than the grantee, to be finally delivered to the grantee after the grantor's death. § 306. Effect of grantor's retention of possession and control of the deed. — As to the first general class of cases, namely, those where the grantor signs, seals and ac- knowledges a deed, but retains possession and control of it, nevertheless plainly intending that it shall come into the grantee's control after the grantor's death, the gen- eral rule is that there has been no valid delivery, even though the grantor has left directions — written or other- wise — clearly showing his intention that the grantee is to have the deed. The grantor in such a case has not taken the first step essential to delivery — that of surrendering control of the deed. When it is said that the grantor's intention is con- trolling, it must be meant not his intention merely that the grantee shall some time possess the land, but his in- § 306 DELIVERY. 375 tention that the deed shall be delivered in his lifetime, and that the grantee shall thereby finally possess the land. For, so far as the grantor is concerned, the delivery must be complete in his lifetime. He must therefore lose con- trol of the deed. Hence, the grantor's giving the grantee a key to his safety deposit box, with directions to get the grantor's will in case of his death, will not amount to the delivery of a deed found in the box with the will after the grant- or's death ; though the deed is in an envelope addressed to the grantee, which also contains written directions for the recording of the deed by the grantee on opening the envelope. 48 Nor will a deposit by the grantor of a deed among the grantee's papers, of which the grantor has charge, the grantor intending the deed to come into the grantee's possession on his death, constitute a delivery. 49 The practical application of these principles will often result in loss to a person who has purchased land relying on the record title. For example, a deed was kept in the possession of the grantor, but with written directions for recording it and handing it to the grantee after the grant- or's death : the grantee, having received the deed after the grantor's death and having had it recorded, afterward sold the land described in it to a bona fide purchaser : in this action by the heirs of the deceased grantor it was held that there had been no delivery of the deed and that therefore the deed was wholly void, and that the subsequent bona fide purchaser acquired no title as against the heirs of the grantor. 50 In such cases the fact that the deed is found in the maker's possession is not enough of itself to settle the question of delivery; the mere fact that the grantor re- 48 Hawes v. Hawes, 1899, 177 III. 409; 53 N. E. 78. See also Taft v. Taft, 59 Mich. 185; 26 N. W. 426; 60 Am. R. 291; Parrott v. Avery, 1893, 159 Mass. 594; 35 N. E. 94; 38 Am. St. B. 465. "Van Dyke v. Grigsby, 1898. 11 S. Dak. 30; 75 N. W. 274. 50 Stone v. French, 37 Kan. 145; 14 Pac. 530; 1 Am. St. B. 237. 376 THE LAW OF CONVEYANCING. § 307 tains the deed in his own possession and under his con- trol does not prevent its being enforced as a deed, if he has once effectually delivered it. Even, however, in those cases where strong presump- tions in favor of delivery are made (as where parents make deeds to children, but retain possession of the deeds), there must generally be something more — in order to constitute delivery — than the signing, sealing and acknowledging of the instrument, which is then re- tained by the grantor; and where delivery is found in such cases it will generally be because some other fact ex- ists besides the mere making of the instrument — as, for example, recording with an expression of intention to make a present delivery. 51 § 307. Effect of grantor's depositing deed with a third person : reserving no control. — The second class of cases mentioned 51 a may include cases in which the grantor, though handing the deed to a third person, yet reserves control over it, as well as cases in which he reserves no control over the deed after parting with its possession. Where the grantor deposits with a third person the deed as his present deed, directing the depositary to deliver it to the grantee at the grantor's death, and re- serves no control over it, nor right to recall it, there is a valid delivery. There is a delivery, that is, so far as the grantor is concerned — he has surrendered control of the deed with intent that title shall pass to the grantee. The deed becomes operative when it finally is accepted by the grantee, on its being given to him by the depositary in accordance with the grantor's directions. In such cases generally the deed is regarded as delivered as of the time when the grantor surrenders control of it to the deposi- 51 See Fain v. Smith, 14 Ore. 82 ; 12 Pac. 365 ; 58 Am. R. 281 ; Ireland v. Geraghty, 15 Fed. 35, and note; Cline v. Jones, 111 111. 563. 5U See supra, § 305. § 308 DELIVERY. 377 tary : the delivery relates back to that time. 52 So, for example, where a deed is delivered in this way to a custo- dian to give to the grantee on the grantor's death, title vests at the time of delivery to the custodian, and the deed will take precedence over a subsequent devise of the same property by the grantor. 53 Often in such cases there is a recital in the deed that it is not to become operative or be "delivered" until the death of the grantor. Such a recital, however, does not make the instrument testamentary in character, nor pre- vent its taking effect as a deed if the grantor has actually surrendered control of it to the depositary. 54 § 308. Effect of reserving control by grantor in such cases. — Such cases as those last cited are to be distin- guished from those in which the grantor deposits the deed with a third person to be delivered to the grantee on the grantor's death, but retains dominion over it, or re- serves to himself the power to recall it before his death. In these latter cases there is no delivery and no title passes to the grantee, and this is so, according to the weight of authority, even though the grantor does not re- call the deed. 62 Cases in which the foregoing rule is applied are often before the courts. From the many decisions on the subject the following will suffice to show the general application of the rule : Euiz v. Dow, 1896, 113 Cal. 490; 45 Pac. 867; Shea v. Murphy, 1897, 164 111. 614; 45 N. B. 1021 ; 56 Am. St. E. 215 ; Stout v. Eayl, 1896, 146 Ind. 379 ; 45 JST. E. 515 ; Dettmer v. Behrens, 1898, 106 Iowa 585 ; 76 N. W. 853 ; 68 Am. St. B. 326; Meech v. Wilder (1902, Mich.), 8 Detroit Leg. News 1141; 89 N. W. 556; Fulton v. Priddy, 1900, 123 Mich. 298; 81 Am. St. E. 201; 82 N. W. 65 ; 6 Detroit Leg. News 103 ; Martin v. Flaharty, 1893, 13 Mon. 96; 32 Pac. 287; 40 Am. St. E. 415; 19 L. E. A. 242; Brown v. Westerfield, 1896, 47 Neb. 399; 53 Am. St. E. 532; 66 N. W. 439; Die- fendorf v. Diefendorf, 1892, 132 N. Y. 100; 30 N. E. 375; Ball v. Fore- man, 37 Ohio St. 132. 53 Eanken v. Donovan, 1899, 46 App. Div. 225; affirmed, 166 N. Y. 626; 60 N. E. 1119. 54 See ante § 29 ; in addition to the authorities last cited. 378 THE LAW OF CONVEYANCING. § 308 Where the depositary is the servant or employe of the grantor, and is given charge of the deed in order to pre- serve it for the grantor and not absolutely for delivery to the grantee, the case is not difficult, for the possession of the servant in such a case is the possession of the grantor and his intent that the grantee shall ultimately have the deed is ineffectual, as it is not accompanied by an act by which the grantor parts with the possession of the deed for the benefit of the grantee, 55 and even if the depositary is not the general servant of the grantor but holds the deed sub- ject to his order as his bailee or agent, and in such a manner that the grantor may revoke the deed, there is no delivery. 56 Nor will the title of the grantee be good even though the depositary, holding the deed under such cir- cumstances, delivers the deed to the grantee after the death of the grantor. 57 The difficulty in many of these cases is in deciding whether or not the circumstances warrant the conclusion that there has been a reservation of control of the deed by the grantor. For example, in one case the deed was given to the grantor's housekeeper to keep and to give to the grantee (a son of grantor) at the death of the grantor: the housekeeper placed the deed in the grant- or's trunk in his room and gave him the key of the trunk, and he carried the key in his pocket till his death. The deed seems therefore not to have left his possession and control, but the majority of the court held that there 55 Porter v. Woodhouse, 1890, 59 Conn. 568; 22 Atl. 299; 21 Am. St. E. 131; 13 L. E. A. 64. 66 Burk v. Sproat, 1893, 96 Mich. 404 ; 55 N. W. 985 ; Kenney v. Park, 1899, 125 Cal. 146; 57 Pac. 772; Tarlton v. Griggs, 1902, 131 N. 0. 216; 42 S. E. 591. 67 Osborne v. Eslinger, 1900, 155 Ind. 351 ; 58 N. E. 439; 80 Am. St. E. 240; "Williams v. Schatz, 42 Ohio St. 47; Wilson v. Wilson, 1895, 158 111. 567; 41 N. E. 1007; 49 Am. St. E. 176; Baker v. Haskell, 47 N. H. 479; 93 Am. D. 455; Johnson v. Johnson (1903 E. I.), 54 Atl. 378. § 309 DELIVERY. 379 was sufficient evidence to warrant the finding by the jury of delivery. 58 So in many cases the grantor, in giving the deed to the depositary, directs him to give the deed to the grantee if the grantor dies, but if the grantor recovers to return it to him. In such cases where the grantor reserves no power to recall or revoke the deed, the question is whether it is beyond his control, and as he cannot control his death or recovery and has reserved no power to recall the deed be- fore his recovery, there appears to have been a valid de- livery, so far as he is concerned; yet it has been held in such cases that there has been no delivery, because the deed is under the control of the grantor up to the time of his death. 59 § 309. Delivery in escrow. — In many of the decisions concerning the depositing of a deed with a third person to hold till the grantor's death, the transaction is spoken of as a delivery in escrow. Such cases, however, are not, strictly speaking, generally cases of delivery in escrow. Whether when a deed is signed, etc., and not immedi- ately delivered to the grantee, but is handed to a stranger to be delivered at a future time, it is to be considered as the deed of the grantor presently or as an escrow, is often a matter of some doubt; the answer to the question will generally depend rather on the words used and the pur- poses expressed, than upon the name which the parties give the instrument. Where the future delivery is to depend on the payment of money or the performance of some other condition it will be deemed an escrow. Where it is merely to await the lapse of time or the happening of some contingency, and not the performance of any condition, it will be 68 Monroe v. Bowles, 1900, 187 111. 346; 58 N. E. 331. 59 Williams v. Daubner, 1899, 103 Wis. 521; 79 N. W. 748; 74 Am. St. R. 902 ; Williams v. Schatz, 42 Ohio St. 47. 380 THE LAW OF CONVEYANCING. § 309 deemed the grantor's deed presently — taking effect as a deed at the " second delivery," but by " relation from the first delivery." 60 The distinction is sometimes stated to be not important or material, but it may be so, because if there be a delivery in escrow no title passes till the "second" delivery or the fulfillment of the condition. While if the deed is one in praesenti the title passes upon the happening of the certain event designated or the lapse of time: it passes by relation, from the time the instru- ment was placed in the hands of the depositary. An escrow is, therefore, a writing, having the form of a deed, but the effect of which depends upon the fulfillment of conditions upon which it is to be delivered to the grantee. 61 The conditions upon which the escrow is to be delivered may be expressed in writing, or may be spoken, or may be partly in one form and partly in another. 62 Thus the title is made to depend partly in parol, and it is said that some of the earlier authorities evidently contemplate that all escrows should be evidenced by writing, though such . does not appear to be the modern rule. 63 Escrows have therefore been called "deceptive instruments," not what they purport to be, and capable of being used to deceive innocent purchasers. 61 Conditions, however, cannot, according to the weight of authority, be thus attached to a deed when it is delivered to the grantee, therefore there can be no delivery in escrow to the grantee; such a delivery must be to a " stranger " or a " third person," one not a party to the instrument nor identified with the parties in such a way as to prevent his being a depositary. 65 60 Foster v. Mansfield, 3 Met. 412. See Hathaway v. Payne, 34 N. Y. 92, 107. "Pratsman v. Baker, 30 Wis. 644; 11 Am. E. 592. 62 Gaston v. Portland, 16 Ore. 255; 16 Pac. 127. 63 Taft v. Taft, 59 Mich. 185, 198 ; 26 N. W. 426. "Hubbard v. Greeley, 1892, 84 Me. 340; 17 L. E. A. 511; 24 Atl. 799. And see Pawling v. U. S., 4 Cranch 219. 65 Darling v. Butler, 1891, 45 Fed. E. 332; 10 L. E. A. 469; Cincin- § 310 DELIVERY. 381 § 310. Effect of grantee's obtaining possession of es- crow wrongfully. — The obtaining by the grantee of a deed held in escrow, before the fulfillment of the condi- tion, or otherwise wrongfully or fraudulently, can con- vey no title to him. Whether an innocent purchaser from him acquires title, is a question upon which there is some conflict of opinion. The evident hardship in such cases on the subsequent purchaser, who is warned by nothing on the face of the deed, has led many courts to protect a bona fide purchaser from a grantee who has obtained possession of an escrow, without performing the condition upon which the deed was delivered; 66 and especially where the original grantor — who makes the escrow — has done some act by which he should be estopped from claiming title as against an in- nocent purchaser, as, for example, putting the person named as grantee (in the " escrow ") in possession of the property. 67 But the rule that appears to be supported by the weight of authority is, that in the absence of some act on the part of the grantor creating an estoppel, or amounting to a ratification of the conveyance by the grantee who has wrongfully obtained possession of the deed, no title passes to the subsequent purchaser. The reason for this view is that the original grantee, in s'uch a case, acquires no title by the deed obtained from the de- positary without performing the condition, and so can convey no title to his own grantee. 68 nati &c. Railroad Co. v. Iliff, 13 Ohio St. 235, 254; Dyer v. Skadan, 1901, 128 Mich. 348; 87 N. W. 277; 8 Detroit Leg. News 701. 66 See Blight v. Schenck, 10 Pa. St. 285; 51 Am. Dec. 478; Hubbard v. Greeley, 1892, 84 Maine 340 ; 24 Atl. 799 ; 17 L. B. A. 511. "Schurtz v. Colvin, 1896, 55 Ohio St. 274; 45 N. E. 527; Quick v. Milligan, 108 Ind. 419; 9 N. E. 392; 58 Am. E. 49. See Simson v. Bank, 43 Hun 156; affirmed, 120 N. Y. 623; 23 N. E. 1152. 68 Dixon v. Bristol Savings Bank, 1897, 102 Ga. 461; 31 S. E. 96; 66 Am. St. E. 193; Jackson v. Lynn, 1895, 94 Iowa 151; 62 N. W. 704; 58 Am. St. 386 ; Burnap v. Sharpsteen, 1894, 149 111. 225 ; 36 N. E. 1008 ; 382 THE LAW OF CONVEYANCING. § 311 § 311. Effect of surrender or destruction of a deed. — The effect of a properly delivered deed being to transfer the legal title to the grantee, this legal title cannot be re- invested in the grantor by a redelivery or surrender of the deed, or by its accidental or intentional destruction. For example, the cancellation of the grantor's name is not enough to revest the title in him; 69 nor is the total de- struction of the deed, whether done with or without the intention of reinvesting the grantor with the title. 70 If, however, the grantee surrenders or redelivers an unre- corded deed with the intention that it be destroyed for the purpose of revesting the title in the grantor, though the legal title may not be reacquired by the grantor in this way, he may acquire an equitable title. 71 And the inten- tional destruction by the grantee of an unrecorded deed for the purpose of revesting the title in the grantor may practically, according to many decisions, have the effect intended, for the grantee, having deliberately destroyed the best evidence of his title, may not produce secondary evidence to sustain it, and therefore he cannot establish it if he would. 72 Everts v. Agnes, 4 Wis. 343 ; 65 Am. Dec. 314. In this case such a deed is likened to a forged or stolen deed, and distinguished from a deed which the grantor is fraudulently induced to execute: "In the latter case the legal title passes, and a subsequent purchaser is protected. In the former no title passes whatever, and a subsequent purchaser is not pro- tected. In the one class of cases there is the voluntary assent of the grantor, in the other there is no assent at all." 69 Turner v. Warren, 160 Pa. St. 336 ; 28 Atl. 781. '"Spangler v. Dukes, 39 Ohio St. 642; Albright v. Albright, 70 Wis. 528, 537; 36 N. W. 254; Hyne v. Osborn, 62 Mich. 235; 28 N. W. 821; Brown v. Hartman, 1899, 57 Neb. 341, see note, p. 344, 77 N. W. 776. " Fletcher v. Shepherd, 1898, 174 111. 262; 51 N. E. 212. "See Potter v. Adams, 1894, 125 Mo. 118; 28 S. W. 490; 46 Am. St. E. 478; Farrar v. Farrar, 4 N. H. 191; 17 Am. Dec. 410. CHAPTER XX. THE CONVEYANCE OP THE EEAL ESTATE OF INFANTS. §312. Restrictions on alienation §320. —Disabilities — " Void " and "voidable" convey- 321. ances. 313. Conveyances by minors — Voidable. 322. 314. Former distinctions be- tween different kinds of 323. conveyances — I n f a n t s' powers of attorney still 324. sometimes held void. 315. When conveyance by an 325. infant may be disaffirm- ed. 326. 316. How soon after majority must infant disaffirm — 327. Doctrine that he has stat- utory period of limita- 328. tion. 317. How soon after majority must disaffirm — "Within 329. a reasonable time." 318. Former infant may disaf- 330. firm though his grantee has conveyed to another. 319. Infant's heirs may disaf- firm — Others may not generally. Effect of infant's misrepre- sentation as to age. The restoration of the con- sideration on disaffirm- ance. What constitutes disaffirm- ance. Effect of conveyance to an infant. How infants' real property may be conveyed. The general principle con- trolling in such cases. The application by proper party — Notice. Such conveyances allowed for certain purposes. Hearing on the application — Guardian's bond — Ap- proval by court. Statutes curing effect of ir- regularities. Power of chancery court to order conveyance of mi- nor's lands. § 312. Restrictions on alienation — Disabilities — "Void" and " voidable " conveyances. — There are circumstances attending the ownership of real property under which the freedom of alienation is restrained, either wholly or par- tially. (383) 384 THE LAW OF CONVEYANCING. § 312 It is generally true that freedom of transfer of the title to the thing owned is one of the chief characteristics of ownership, and in considering conveyances so far this freedom has been generally assumed to exist, but restric- tions on the owner's freedom and the effects of attempted alienation in violation of such restrictions must be con- sidered. One owning real property may be disqualified from con- veying title to it by reason of personal disability arising either from lack of will power sufficient to direct the in- telligent performance of the act attempted — as when he is of unsound mind; or the personal disability may be cre- ated by law — as is the case in many states when the owner is a married woman of sound mind. This per- sonal disability may therefore be natural or, as having been imposed by law, may in some cases be designated legal; and it may be, as when the owner is a minor, either natural or legal or both, according to the circum- stances of the case. The owner may also be restrained from freely alien- ating real property to which he has the legal title because of the character or condition of the property — as when it is a "homestead," or is held by another adversely to him ; and he may not be free to do as he wishes in a particular instance because the conveyance he attempts to make is in fraud of creditors or subsequent purchasers, or because it imposes conditions that are invalid, or be- cause it violates the rule against perpetuities. Attempts, however, to transfer title are often made by an owner who is thus under some restraint. His at- tempted conveyance will be in some cases void, in others voidable. While these terms, "void" and "voidable," are some- times used as synonyms, there is properly a distinction between them : the effect of a conveyance that is void is quite different from the effect of one that is voidable. When a conveyance is void, it is a mere nullity ; it con- § 313 CONVEYANCE OF INFANTS' LANDS. 385 veys no title; it binds neither the grantor nor the grantee ; it cannot be ratified by subsequent acts, and it may be disregarded by the parties to i% and attacked by third persons. But when it is voidable, it is valid, not only as between the parties to it, but as to third persons, until it is avoided by the person who is entitled to avoid it ; and it may be made completely valid by ratification. Contracts and conveyances are more rarely void than voidable, and often, if somewhat defective, they may be spoken of, when regarded from one point of view and as to one person, as voidable; while if regarded from another point of view or as to another person they may be, not im- properly, called void; 1 and sometimes a conveyance is said to be void and yet to be capable of ratification, 2 by which is intended that it is without validity until con- firmed. 3 The different senses in which these words are actually often used should therefore be borne in mind in consider- ing the consequences of a conveyance by one who is in some manner disqualified from making the particular conveyance. There may be disabilities attending grantees as well as grantors, for certain persons are disqualified, either par- tially or wholly, from taking and holding title ; as, for example, aliens under certain circumstances, and corpo- rations to some extent. The general rule of law, however, as distinguishing disqualified or disabled grantors from disqualified grantees, is that the power to take and to hold real property is more widely extended than the power to convey. § 313. Conveyances by minors — Voidable. — It is now generally recognized as a settled rule of law that the con- •See National Bank v. Wheelock, 1895, 52 Ohio St. 534, 549, 550; Pearsoll v. Chapin, 44 Pa. St. 9 ; Henry v. Root, 33 N. Y. 526, 537. 2 Spafford v. Warren, 47 Iowa 47. 3 Weeks v. Bridgman, 1895, 159 U. S. 541, 547. 25 — Brews. Con. 386 THE LAW OF CONVEYANCING. § 314 veyances by an infant of his real property are voidable, and not void. 4 Therefore, the general rule is, not that the conveyance of a minor is inoperative until ratified or affirmed, but that it is good until avoided. It transmits the title to the grantee, who may transfer it to others, and the title will thus continue and remain in the first grantee or sub- sequent grantees unless divested by the grantor, or, in proper cases, by his heirs. Being simply voidable, it is capable of ratification, but at the same time it does not need ratification, as it will stand good until impeached. The title obtained by the infant's grantee is, however, practically of little actual value, since the infant grantor ma), generally (in the absence of certain circumstances sometimes held to estop him in equity), entirely defeat it after attaining his majority. 5 § 314. Former distinctions between different kinds of conveyances — Infants' powers of attorney still sometimes held void. — A distinction seems formerly to have been made between a feoffment with livery of seisin and cases where title was attempted to be conveyed by deed. The older authorities held that where title usually passed at common law by delivery of the deed — as in the cases of grants, surrenders and releases — an infant was unable to convey, and his deed was void. But if the in- fant, himself, personally made livery of seisin, the title passed; and his feoffment was voidable merely, because it 4 Dolph v. Hand, 1893, 156 Pa. St. 91; 27 Atl. 114; 36 Am. St. E. 25; Englebert v. Troxell, 1894, 40 Neb. 195; 58 N. W. 852; 26 L. E. A. 177; 42 Am. St. E. 665; Keil v. Healey, 84 111. 104; 25 Am. E. 434; Green v. Wilding, 59 Iowa 679; 44 Am. E. 696. This principle applies to mortgages. Singer Mfg. Co. v. Lamb, 81 Mo. 221 ; Shrock v. Crowl, 83 Ind. 243; Walton v. Gaines, 1894, 94 Tenn. 420; 29 S.W. 458. There are decisions to the effect that a conveyance made by an infant with- out consideration is void, and not merely voidable, because it is clearly prejudicial to the infant. Eobinson v. Coulter, 1891, 90 Tenn. 705; 18 S. W. 250; 25 Am. St. E. 708. 5 See post, § 315, et seq. § 314 CONVEYANCE OF INFANTS' LANDS. 387 should have a greater effect on account of its greater so- lemnity. After the Statute of Uses, when livery of seisin fell into disuse, it was considered that an infant could not make even a voidable conveyance in the customary manner by a deed of bargain and sale, which was still regarded as void. And it was also held that even a feoffment where the infant did not personally make livery of seisin was void and not merely voidable. That is, if the infant made a deed of feoffment and gave a letter of attorney to another to make livery of seisin, the livery so made was void. 6 While the distinction between the different sorts of conveyances has been lost sight of, the old rule as to the power of an infant to .appoint an attorney has survived and has been applied in some modern decisions: — the in- fant's appointment of an attorney to convey being re- garded as void — though in some cases where this rule is stated it appears not to have been necessary to the deci- sion. 7 So, a power of sale in a mortgage made by an in- fant has been held invalid, and a sale under it absolutely void ; and though the infant has ratified the mortgage, he nevertheless may redeem from the sale. 8 But this rule, that the appointment by a minor of an attorney to sell and convey land is void, is not recognized in all the later decisions, and the more reasonable modern doctrine appears to be that which applies the same rule to a power of attorney as to infants' contracts and acts generally, that is, that they are voidable rather than void. 9 6 See Shep. Touch. 232; Thompson v. Leach, 3 Mod. 301, 310; Zouch v. Parsons, 3 Burr. 1794; Tucker v. Moreland, 10 Pet. 58, 68. 7 Philpot v. Bingham, 55 Ala. 435 ; Trueblood v. Trueblood, 8 Ind. 195; 65 Am. D. 756; Lawrence v. McArter, 10 Ohio 37. 8 Rocks v. Cornell, 1900, 21 P. I. 532; 45 Atl. 552. 'Coursolle v. Weyerhauser, 1897, 69 Minn. 328; 72 N. W. 697. See Ferguson v. Houston &c. R. Co., 73 Texas 344; 11 S. W. 347 ; Askey v. Williams, 74 Texas 294; 11 S. W. 1101 ; 5 L. R. A. 176. 388 THE LAW OF CONVEYANCING. § 315 § 315. When conveyance by an infant may be disaf- firmed — Not until majority. — While an infant's convey- ance of land may thus be avoided or disaffirmed, the infant may not disaffirm it until his majority. 10 This is an exception to the general rule regarding repudiation by infants of their ordinary contracts. Con- veyances of personal property may be repudiated by an infant before his majority. So, for example, a chattel mortgage made by an infant may be avoided before he arrives at full age, or within a reasonable time thereafter. 11 Various reasons are given for the difference in this regard between conveyances of real property and those of per- sonal property. It is sometimes said to be- due to the transitory nature of personal property, and therefore, " to withhold the right of disaffirmance from an infant (in such a case) until he became of age, would, in many cases, be to make it valueless, ' ' — it being for his protection that such a disaffirmance is allowed. 12 Or, as is stated in some decisions, the same rule is held not to apply to con- veyances of real property, because the infant is protected, while infancy lasts, by his right to enter the land con- veyed and take the profits without conclusively avoiding the conveyance. 13 And the reason for the rule is also said to be " that a disaffirmance works a reinvestiture of the estate in the infant, and he is presumed not to have sufficient discretion for that." 14 This general rule that an infant may not disaffirm his 10 Sims v. Everhardt, 102 U. S. 300, 309; Welch v. Bunce, 83 Ind. 382 ; Shipley v. Bunn, 1894, 125 Mo. 445; 28 S. W. 754; Bool v. Mix, 17 Wend. 119, 132; 31 Am. D. 285. "Chapin v. Shafer, 49 N. Y. 407; 'Miller v. Smith, 26 Minn. 248. See Bloomingdale v. Chittenden, 74 Mich. 698; 42 N. W. 166. "Towle v. Dresser, 73 Maine 252, 256. 13 Bool v. Mix, 1'7 Wend. 119, 132; 31 Am. D. 285. This right to enter, etc., is denied in some cases, however. Shipley v. Bunn, 1894, 125 Mo. 445; 28 S. W. 754. "Sims v. Everhardt, 102 TJ. S. 300, 309. § 316 CONVEYANCE OF INFANTS* LANDS. 389 conveyance of real property during his minority has been changed by statute in some states. 15 § 316. How soon after majority must infant disaffirm — Doctrine that he has statutory period of limitation. — While he may not generally disaffirm his conveyance during his minority, he is not obliged to disaffirm it at once on attaining his majority. Upon the questions as to how much time he may have, after attaining his majority, in which to consider the matter, and as to how far mere silence on his part after majority amounts to affirmance or ratification of his former conveyance, there is some conflict among the decisions. The doctrine of probably the greater number of courts is that mere silence continued after attaining majority for any period less than that fixed by the statute of limita- tions for the recovery of land will not prevent his dis- affirmance. The reason generally given for this doctrine is that mere silence or acquiescence does not amount to either an affirmance or an estoppel, and that unless there has been an estoppel or affirmance the infant ought to have the whole period allowed by the statute of limitation in which to recover his land. The effect of this doctrine is illustrated by a case 16 in which two minors were, respectively, nineteen and twenty years of age when they conveyed land, for a nominal con- sideration, in order that their grantee might secure (by a mortgage on the land conveyed) the sureties on a bail bond of the minors' brother: The mortgage was given to the sureties, and was afterward foreclosed, and the land passed to others, against whom, eight years after the younger of the minors came of age, the former infants 15 California Civ. Co., § 35; Idaho Civ. Co., § 1983 ; Montana Civ. Co., § 18 ; North Dakota Civ. Co. 1899, § 2703 ; South Dakota Civ. Co. 1901, § 3415. "Donovan v. Ward, 1894, 100 Mich. 601 ; 59 N. W. 254. 390 THE LAW OF CONVEYANCING. § 316 brought an action of ejectment. The court held that the action was seasonably brought, if within the period pre- scribed by the statute of limitations, remarking that there were no improvements made by the subsequent pur- chasers, nor had either plaintiff done anything indicating an affirmance or ratification of the deed. A somewhat remarkable case, where there was no disaf- firmance for nearly twenty-one years after the infant attained her majority, 17 is frequently cited. The court considered that there were special reasons for the delay in this case, and that it was excusable, but the general rule is also stated as follows: "We think the preponderance of authority is, that in deeds executed by infants, mere inertness or silence continued for a period less than that prescribed by the statute of limitations, unless accompa- nied by affirmative acts manifesting an intention to assent to the conveyance, will not bar the infant's right to avoid the deed." 18 As the reason for this doctrine is that mere silence does not amount to affirmance or estoppel, it is held, where the doctrine is recognized, that the lapse of a shorter time, taken in connection with other circumstances, may amount to a ratification, or estop the infant grantor from avoiding the deed ; as, for example, standing by and see- ing improvements made upon the land by those who rely on the validity of the conveyance. In such cases the for- mer infant should not be allowed the full time which might be permitted in others, and he must, within such a time as is reasonable under all the circumstances, give notice of his election to disaffirm. 19 And the retention " Sims v. Everhardt, 102 TJ. S. 300. See also Stull v. Harris, 51 Ark. 294; 11 S. W. 104; Cresinger v. Welch, 15 Ohio 156; Ship v. McKee, 1902, 80 Miss. 741; 32 'So. 281; 92 Am. St. E. 616; Lacy v. Pixler, 1894, 120 Mo. 383; 25 S. W. 206; Eichardson v. Pate, 93 Ind. 423. 18 Sims v. Everhardt, supra, but especially p. 312. "Irvine v. Irvine, 9 Wall. 617, 627; Davis v. Dudley, 70 Maine 236; 35- Am. E, 318. § 317 CONVEYANCE OF INFANTS* LANDS. 391 and use of the consideration after reaching his majority for a period much shorter than that prescribed by the statute of limitations would amount to a ratification. 20 § 317. How soon after majority must disaffirm — "Within a reasonable time." — Other courts, however, hold that the former infant must disaffirm his conveyance within a reasonable time after attaining his majority or he will be bound by acquiescence, and by reasonable time is intended, under this view, not necessarily nor gener- ally the full statutory period prescribed for the recovery of real property. In a Minnesota case, 21 the authorities are discussed, and the court says: "A reasonable time after majority within which to act is all that is essential to the infant's protection. That ten, fifteen or twenty years, or such other time as the law may give for bringing an action, is necessary as a matter of protection to him, is absurd. * * * Reason, justice to others, public policy (which is not subserved by cherishing defective titles), and con- venience, require the right of disaffirmance to be acted upon within a reasonable time. What is a reasonable time will depend upon the circumstances of each case, and may be either for the court or jury to determine. Where there is mere delay, with nothing to explain or excuse it, it will be for the court." In this case a delay of three and a half years was regarded as more than a reasonable time, and prima facie the conveyance was ratified. 22 In a few states it is provided by statute that the infant must disaffirm within a reasonable time after attaining 20 American Freehold Land Mort. Co. v. Dykes, 1895, 111 Ala. 178; 18 So. 292; 56 Am. St. E. 38. 21 Goodnow v.Empire Lumber Co., 31 Minn. 468; 47 Am. B. 798. 22 See also Bentley v. Greer, 1896, 100 Ga. 35; 27 S. E. 974; Englebert v. Troxell, 1894, 40 Neb. 195; 58 N. W. 852; 26 L.E. A. 177; 42 Am. St. E. 665; Thormaehlen v. Kaeppel, 1893, 86 Wis. 378; 56 N. W. 1089. 392 THE LAW OP CONVEYANCING. § 318 his majority, 23 and in at least two a definite short period is fixed by statute, 24 while occasionally, though it seems rarely, the courts have established a definite period of time within which the former minor must disaffirm his conveyance, though there is no statute to this effect. For example, in Illinois three years after majority has been settled upon as the time, because when tbe first decision was made the time prescribed by the statute of limitations was that period, 25 though of course the infant may, by acts amounting to a ratification, be estopped within this time. 26 § 318. Former infant may disaffirm, though his gran- tee has conveyed to another. — The former minor may not only avoid his conveyance when the property which he attempted to convey is in the hands of his immediate grantee, but may do so even though the land conveyed by him has been again conveyed by his grantee to a bona fide purchaser for value; for the infant's right to avoid his conveyance is an absolute right, superior to the equi-. ties of other persons. 27 In the last case cited it was con- tended on behalf of a subsequent grantee, that when the grantee of a minor sells the land for value to such a pur- chaser, the right to disaffirm is lost, but the court says: "There is no authority to support such a proposition. 23 California Civ. Co., §35; Iowa Co. 1897, §3189; Idaho Civ. Co. 1901, § 1983; Kansas Gen. Stat. 1901, § 4183; Utah R. S. 1898, § 1542; Washington Ann. Co. & Stat. 1897, § 4581. 21 In North and in South Dakota he should disaffirm within one year's time after his majority. No. Dak. Civ. Co. 1899, § 2703 ; So. Dak. Civ. Co. 1901, § 3415. 25 Keil v. Healey, 84 111. 104; 25 Am. R. 434; Sayles v. Christie, 1900, 187 111. 420, 437; 58 N. E. 480. 26 In a valuable note on infants' contracts, 18 Am. St. R., at pages 675 and 677, many authorities on this subject are collected, showing the various circumstances which may affect the question of reasonable time. 27 Lacy v. Pixler, 1894, 120 Mo. 383; 25 S. W. 206; Buchanan v. Hub- bard, 96 Ind. 1; Searcy v. Hunter, 1891, 81 Texas 644; 17 S. W. 372; 26 Am. St. R. 837. § 319 CONVEYANCE OF INFANTS' LAND'S. 393 Such a doctrine would enable the minor's grantee to make the deed valid by a mere sale to an innocent purchaser, and would practically destroy a rule established to pro- tect minors against the consequences of their improvident conveyances." § 319. Infant's heirs may disaffirm — Others may not generally. — As the main ground for allowing the disaf- firmance of the conveyance by the former infant on reach- ing his majority is that he may protect himself from the improvidence incident to youth, it is sometimes said that this right to disaffirm is a personal privilege and may not be taken advantage of by other persons. 28 But what- is intended by such expressions is that during his life this right to disaffirm is exercisable by the former infant alone and not by third persons for him, as it is not assignable. For example, the assignee of an insolvent debtor who gave a mortgage while an infant, cannot avail himself of the infant's privilege and relieve the estate from the mort- gage ; 29 nor may a creditor attach property conveyed by his debtor while a minor, and thus disaffirm the convey- ance for the minor. 30 If, however, the infant grantor has died without having himself either affirmed or disaffirmed his conveyance, or without being estopped to disaffirm it, his heirs may avail themselves of his infancy and repudiate it, 31 and they have the same time in which to do so that the infant would have had if living. 32 2e Beardsley v. Hotchkiss, 96 N. Y.-201, 211. " Mansfield v. Gordon, 144 Mass. 168; 10 N. E. 773. 30 Kendall v. Lawrence, 22 Pick. 540. 31 Gillenwaters v. Campbell, 1895, 142 Ind. 529 ; 41 N. E. 1041 ; Wal- ton v. Gaines, 1895, 94 Tenn. 420; 29 S. W. 458; Searcy v. Hunter, 1891, 81 Texas 644; 17 S. W. 372; 26 Am. St. R. 837. 38 Sayles v. Christie, 1900, 187 111. 420, 438; 58 N. E. 480; Eagan v. Scully, 1898, 29 App. Div. (N. Y.) 617; 51 N. Y. S. 680; aflirmed 173 N. Y. 581; 65 N. E. 1116; Bozeman v. Browning, 31 Ark. 364. 394 THE LAW OF CONVEYANCING. § 320 § 320. Effect of infant's misrepresentation as to age. — It sometimes happens that an infant makes misrepresen- tations in regard to his age at the time of making his conveyance. The question as to what effect such conduct shall have upon his right to disaffirm presents itself in a variety of ways ; it may arise in a legal proceeding or in an equitable proceeding, and the representation may have been accompanied by other facts, so that it is difficult to state a general rule applicable, without qualification, to all cases. By the weight of authority the rule appears to be that misrepresentations as to age made by an infant at the time of making his conveyance do not estop him at law from taking advantage of infancy after attaining his majority. For example, in an action of ejectment for the recovery of lands, the deed, executed by the plaintiff while a minor, 33 recited that she was "unmarried and of age," and the court holds that by such a false recital in the deed she is not estopped from disaffirming it, on the general principle that the doctrine of estoppel is inappli- cable to infants. 34 But if the proceedings in which the former infant seeks to disaffirm his conveyance be in equity he has sometimes been held estopped by his fraudulent mis- representations as to his age which have induced the grantee to accept his conveyance. 35 While actual misrepresentation as to age, or any arti- fice which misleads, may thus be held in equity to estop the former infant, his mere failure to disclose his dis- ability will not so estop him ; that is, if a minor of nearly full age, and appearing to be quite so, should (without 53 Wieland v. Kobick, 110 111. 16; 51 Am. R. 676. 81 And see Alt v. Graff, 1896, 65 Minn. 191, 195 ; 68 N. W. 9 ; Buchanan v. Hubbard, 96 Ind. 1; 119 Ind. 187; 21 N. E. 538; Studwell v. Shapter, 54 N. Y. 249. 85 Ryan v. Growney, 1894, 125 Mo. 474; 28 S. W. 189; Pemberton Bldg. &c. Ass'n v. Adams, 1895, 53 N. J. Eq. 258; 31 Atl. 280. •§ 320 CONVEYANCE OF INFANTS' LANDS. 395 misrepresenting his age) convey to one who believed him to be of full age, he could, nevertheless, disaffirm the conveyance. 36 And in spite of false representations, the infant will not be estopped, even in equity, unless the other party was actually deceived by such representations and re- lied upon them. Thus, if the representations as to age were made to some person other than the grantee and not communicated to him, or were made to the grantee by a boy ten years old — in such cases it would be impossible that the grantee could have relied on them, and the grantor would not be estopped to repudiate the convey- ance. 37 In Sims v. Everhardt, 38 the case was in equity. The grantor had made a written statement that she was of age. But the court says, on the question as to whether she was estopped, that estoppel in pais is not applicable to infants, and a fraudulent representation of capacity cannot be an equivalent of actual capacity. A convey- ance by an infant is an assertion of his right to convey. A contemporaneous declaration of his right or of his age adds nothing to what is implied in his deed. An asser- tion of an estoppel against him is but a claim that he has assented or contracted But he can no more do that effec- tively than he can make the contract alleged to be con- firmed. 39 To remove some of the uncertainty prevailing as to the effect of misrepresentations, and to apply to all cases the rule applied often in equity, statutes have been adopted 36 Sewell v. Sewell, 1892, 92 Ky. 500; 18 S. W. 162; Baker v. Stone, 136 Mass. 405; Thormaehlen v.Kaeppel, 86 Wis. 378; 56 N. W. 1089. 87 Watson v. Billings, 38 Ark. 278; 42 Am. E. 1; Ex parte Jones, L. E. 18 Ch. Div. 109, 120; Charles v. Hastedt, 1893, 51 N. J. Eq. 171 ; 26 Atl. 564; Bradshaw v. Van Winkle, 1892, 133 Ind. 134; 32 N. E. 877. 38 Sims v. Everhardt, 102 U. S. 300. "This case was an exceptional one in many respects, and coercion on the part of the husband against his wife, the infant grantor, ap- pears to have existed. 396 THE LAW OF CONVEYANCING. § 321 in some states, 40 providing that "No contract [of a minor] can be disaffirmed in cases where on account of the minor's own misrepresentations as to his majority, or from his having engaged in business as an adult, the other party has good reason to believe him capable of contracting." And in Indiana the statute provides that if the infant falsely represented himself to the purchaser to be over twenty-one, and the purchaser acted in good faith and relied upon the representation, the conveyance cannot be disaffirmed without restoring the consideration." § 321. The restoration of the consideration on dis- affirmance. — In the absence of a statute on the subject, shall the consideration received by the minor be restored upon his disaffirmance of his conveyance? Some of the earlier authorities state the rule to be that on disaffirmance the former infant must restore the con- sideration. 42 But the present doctrine cannot be stated so broadly, and the general rule now is, that so much of the consideration for the conveyance as remains in the in- fant's possession at his majority must be returned upon his disaffirmance; yet his disaffirmance will not be pre- vented by his inability to return what he has parted with during his minority. In one form of expression or another, as applied to the particular circumstances of each case, the law says to the former infant who would disaffirm his conveyance that he cannot regain his land, and also retain after his majority what he received for it. 43 40 E. G., Iowa Co. 1897, § 3190; Kansas Gen. Stat. 1901, § 4184; Utah R. S. 1898, § 1543 ; Washington Ann. Co. & Stat. 1897, § 4582. «Ind. Burns' R. S. 1901, § 3365. 42 See Kent Comm. II, p. 240; Kilgore v. Jordan, 17 Texas 341 ; Fan v. Sumner, 12 Vt. 28; 36 Am. D. 327; Bartlett v. Cowles, 15 Gray 445. 48 MacGrael v. Taylor, 1897, 167 U. S. 688, 700; Ridgeway v. Herbert, 1899, 150 Mo. 606; 51 S. W. 1040; 73 Am. St. R. 464; Bullock v. Sprowls, 1899, 93 Texas 188 ; 54 S. W. 661 ; 47 L. R. A. 326 ; 77 Am. St. R. 849; Green v. Green, 69 N. Y. 553, 556; 25 Am. R. 233; Englebert § 321 CONVEYANCE OF INFANTS' LANDS. 397 This principle has been made statutory in Iowa, Kan- sas, Utah and Washington, where the minor, on disaf- firming, must restore "all money or property received by him by virtue of the contract, and remaining within his control at any time after his attaining his majority." 44 The force of such a statute is somewhat lessened by de- cisions that the former minor may disaffirm without restoring the consideration, unless he has the identical property, even the identical money, received by him, 45 but statutes of similar character in a few states make it unnecessary to consider this question of identity, by re- quiring that if the minor was over eighteen years of age when the contract was made he may disaffirm upon restor- ing the consideration, or its equivalent. 46 Where there are no such statutes the question of the identity of the consideration has sometimes been raised, and it has been held in some cases that, on disaffirmance, the former infant must return simply what he has, after majority, of the specific consideration received. For ex- ample, where an infant had conveyed, 47 and the money paid to the infant had been used by his father to pur- chase a piano for the infant, it was held that he might disaffirm the conveyance without surrendering or tender- v. Troxell, 1894, 40 Neb. 195; 58 N. W. 852; 26 L. R. A. 177; 42 Am. St. E. 665; Ison v. Oornett, 1903 (Ky.) ; 75 S. W. 204. "Iowa Co. 1897, § 3189; Kansas Gen. Stat. 1901, § 4183; Utah R. S. 1898, § 1542; Washington Ann. Co. & Stat. 1897, § 4581. See Montana Civ. Co., § 18. See Indiana statute cited supra, note 41, as to restora- tion of consideration when misrepresentations are made; also the stat- ute in the same state, Burns' R. S. 1901, § 3364, requiring its return when an infant feme covert conveys by a conveyance in which her husband, of full age, has joined, unless she avers that she has received none. Shroyer v. Pittenger, 1903, 31 Ind. App. 158; 67 N. E. 475. 46 Hawes v. R. E. Co., 64 Iowa 315, 319 ; 20 N. W. 717 ; Leacox v. Grif- fith, 76 Iowa 89, 90; 40 N. W. 109. 46 California Civ. Co., §35; Idaho Civ. Co., §1983; North Dakota Civ. Co., § 2703; South Dakota Civ. Co., § 3415. "Englebert v. Troxell, 1894, 40 Neb. 195, 210; 58 N. W.852; 26 L.R. A. 177; 42 Am. St. R. 665. 398 THE LAW OF CONVEYANCING. § 321 ing the piano. But in another case, 48 where it was con- tended on behalf of a former infant that a trust deed given by her could be set aside without accounting for the money which had been raised by the deed and which had gone to improve the very property conveyed, the ground of the con- tention being that, as the money could not be specifically returned, it should not be accounted for, the court held that, as the improvements were in the hands of the former minor, she must account for them if the property could be sold for enough. The aim of the court was stated to be to put the former infant in the position occupied by her at the time the trust deed was given, so far as it could be done. There would seem to be no hardship in requiring that, if the disaffirming party has not the specific consideration in his control, then whatever he has that can be identified as the direct proceeds of the consideration should be sub- ject to the claims of the other party. 49 Upon this matter of the return of consideration, a dis- ■ tinction has often been made between cases at law and in equity ; the rule in proceedings at law being, that neither a return of the consideration, nor an offer to return, is a necessary condition precedent to the remedy sought by the action ; while where the proceeding is in equity a return of the consideration which remains in the former infant's hands, or an offer to return, must be made as a condition to granting relief ; for in equitable proceedings the courts will apply to this class of cases the maxim that "he who seeks equity must do equity," while in 48 MacGrael v. Taylor, 1897, 167 U. S. 688, 700. 49 The former infant may not avoid a mortgage and at the same time retain the land benefited by the proceeds of the mortgage. Charles v. Hastedt, 1893, 51 N. J. Eq. 171 ; 26 Atl. 564; U. S. Investment Co. v. Ulrickson, 1901, 84 Minn. 14; 86 N. W. 613; 87 Am. St. R. 326. Nor may he avoid a purchase-money mortgage and retain the land conveyed to him, in part payment for which he gave the mortgage. Young v. McKee, 13 Mich. 552; Callis v. Day, 38 "Wis. 643; Ready v. Pinkham, 1902, 181 Mass. 351; 63 N. E. 887. § 322 CONVEYANCE OF INFANTS' LANDS. 399' legal proceedings conditions cannot be attached to the right to disaffirm. 60 § 322. What constitutes disaffirmance. — The disaffirm- ance may be accomplished in a variety of ways, as is seen from the foregoing cases. The older authorities sometimes state the rule to be that an act of disaffirmance must be of solemnity and notoriety equal to that of the conveyance to be avoided, 51 because at common law an infant's conveyance by livery of seisin could be avoided only by an act of equal noto- riety — as an entry on the land. But nowadays, generally speaking, any act which clearly shows an intention to disaffirm, and with which the continued validity of the former conveyance is incon- sistent, is sufficient as a disaffirmance. As, for example, an absolute conveyance to another person after majority ; the bringing of an action in ejectment; the riling of a bill to cancel a former conveyance ; in some cases, the filing with the recording officer of a notice of disaffirmance. 52 ' The act after majority, however, must be inconsistent with the former conveyance to amount to a disaffirmance of it. And so a mortgage or quit claim deed made after majority will not necessarily amount to a disaffirmance of a mortgage given during minority. The two instruments are consistent with each other and may stand together. 53 And a conveyance made after majority may, by being made expressly subject to one made during minority, rather ratify the former, than disaffirm it ; as, where a 50 Chandler v. Simmons, 97 Mass. 508, 514; Eureka Co. v. Edwards, 71 Ala. 248, 256; 46 Am. R. 314; Stull v. Harris, 51 Ark. 294; 11 S. W. 104; Sewell v. Sewell, 1892, 92 Ky. 500; 18 S. "W. 162. 51 Bool v. Mix, 17 Wend. 119; 31 Am. D. 285. As to this, and the distinction between acts of avoidance and acts of affirmance, see Irvine v. Irvine, 9 "Wall. 617, 627, 628. M Tucker v. Moreland, 10 Pet. 58; Haynes v. Bennett, 53 Mich. 15; 18 N. W. 539; Shroyer v. Pittenger, 1903, 31 Ind. App. 158; 67 N. E. 475. 58 Singer Mfg. Co. v. Lamb, 81 Mo. 221. 400 THE LAW OF CONVEYANCING. § 323 mortgage made after majority recited a former mortgage, made during minority, it was held to give priority to the former. 54 § 323. Effect of conveyance to an infant. — When an estate is conveyed to a minor the title vests in him, but subject to his right to repudiate the purchase on arriving at his majority, or within a reasonable time thereafter. If, therefore, he retains possession of real estate conveyed to him for an unreasonable time after majority he will be considered to have affirmed the conveyance to him, and it will then be impossible for him to repudiate the pur- chase and recover what he may have paid or given in ex- change for the property. 55 And affirmative acts of owner- ship after majority, as, for instance, selling the land con- veyed to him, will the more clearly amount to a ratifica- tion and prevent a repudiation by him. 56 § 324. How infants' real property may be conveyed. — While a minor's own conveyance is voidable, it is often desirable or necessary to convey or mortgage his real estate, and to do so in such a way that the purchaser or mortgagee may be secure in his title, and not hold it sub- ject to the infant's right to repudiate it on majority. The parent or other natural guardian has, as a rule, no authority to make a conveyance of the infant's land, and a court may not authorize a natural guardian, as such, to convey. 57 Nor may the guardian of the estate of an in- fant generally convey the lands of his ward without special legal authority. 58 64 Ward v. Anderson, 1892, 111 N. C. 115; 15 S. E. 933. 65 Henry v. Root, 33 N. Y. 526; Scanlan v. Wright, 13 Pick. 523; 25 Am. D. 344; Baker v. Kennett, 54 Mo. 82; Ellis y. Alford, 64 Miss. 8. 56 Langdon v. Clayson, 75 Mich. 204 ; Uecker v. Koehn, 21 Neb. 559 ; 59 Am. E. 849; and see note 49, supra, § 321. 57 Dengenhart v. Cracraft, 36 Ohio St. 549, 572; Shanks v. Seamonds, 24 Iowa 131; 92 Am. D. 465; Myers v. McGavock, 1894, 39 Neb. 843,. 856; 58 N. W. 522; 42 Am. St. R. 627. 58 Wolf v. Holton, 1895, 104 Mich. 107; 62 N. W. 174; State v. Com- § 325 CONVEYANCE OF INFANTS' LANDS. 401 There is some difference of opinion on the question whether courts of equity have inherently power to author- ize the conveyance of infants' real property, 59 and partly because of the doubts as to the existence of this power statutes have been enacted in nearly every state, empow- ering certain courts to order a conveyance of infants' real property, under certain circumstances. Each state has power over the property of infants within its bounds, to the extent that it may provide for the disposition of their estates, the mode of appointing guardians, their qualifications and duties, 60 and under this general power these statutes have been passed. In most of the states the statutes give jurisdiction in such cases to the probate courts or orphans' courts; in some of the states the chancery courts, or courts of gen- eral jurisdiction, like circuit and district courts, are given authority in these matters, and in some states concurrent jurisdiction is given to probate and other courts. § 325. The general principle controlling in such cases. — The statutes vary in their details as to when and how a conveyance of an infant's lands may be made, but no matter what their particular requirements may be, it is a general rule that all the provisions of the statute must be complied with in order to transfer title from the minor and vest it in the purchaser. "Statutory provisions in derogation of the common law by which the title of one is to be divested and transferred to another, must be strictly pursued, and every requisite thereof having the semblance of benefit to its owner must be complied with in order to divest his title." 61 The missioners, 39 Ohio St. 58; Johns v. Tiers, 1886, 114 Pa. St. 611 ; 7 AtL 923. 69 See post, § 330. M Hoyt v. Sprague, 103 U. S. 613, 631. 61 Ellwood v. Northrop, 106 N. Y. 172, 185; 12 N. E. 590; Carder v. Culbertson, 100 Mo. 269; 13 S. W. 88 ; McMannis v. Eice, 48 Iowa 361. 26 — Brews, Con. 402 THE LAW OF CONVEYANCING. § 326 burden is on the party claiming title by such proceedings to show by affirmative evidence that he acquired title, and in the absence of proof there are no presumptions that the material requirements of the statute have been complied with, 62 and the purchaser at such a sale is pre- sumed to have knowledge of all the proceedings. 63 § 326. The application by proper party — Notice. — The first step in such cases is to apply to the court named in the statute for permission to convey; and the application must, of course, be made by the proper party. 64 This party is generally the legally appointed guardian or cura- tor of the minor, and the court has no jurisdiction to authorize a sale on the application of any one else when the legal guardian is designated by statute. Hence con- veyances made on the application of a parent as natural guardian merely, or on the application of the infant by his next friend, have been held void. And where the application must be by the guardian, if the appointment of the guardian is void, a conveyance made on his appli- cation is void. 65 In a few states, however, the application maybe made, and in some should be made, by the next friend of the infant. In such cases the petition is presented to the court by a natural guardian, or near relative, as next friend, who thus brings the matter before the court, which then appoints a responsible guardian, who gives security for the faithful performance of his duty, and is authorized to act on behalf of the infant. 66 A very general provision of such statutes is that notice of the application shall be given either to the infant him- 62 Ellwood v. Northrup, 106 N. Y. 172, 186; 12 N. E. 590. 63 Axtell's Case, 1893, 95 Mich. 244 ; 54 N. W. 889 ; Lenders v. Thomas, 1895, 35 Fla. 518; 17 So. 633; 48 Am. St. E. 255; Bachelor v. Korb, 1899, 58 Neb. 122, 130; 78 N. W. 485 ; 76 Am. St. E. 70. 64 Grier's Appeal, 101 Pa. St. 412. 65 State v. McLaughlin, 77 Ind. 335. 66 Ee Whitlock, 19 How. Proc. 380. § 327 CONVEYANCE OP INFANTS' LANDS. 403 self or to some one interested in his behalf. A sale made without notice of the application is, by some courts, held invalid, the proceedings being regarded as adversary to the ward; 67 on the other hand, they are by others re- garded not as adversary to the infant or ward, but as pro- ceedings in rem, and in such cases it is held that the juris- diction of the court does not depend on the giving of notice, but that it is enough that the court has jurisdic- tion of the subject matter. 68 § 327. Such conveyances allowed for certain purposes. — The statutes generally provide that such a conveyance may be ordered for certain purposes only. Therefore the application to the court must show that a sale is intended to be made for an authorized purpose, for a sale of an in- fant's lands for an unauthorized purpose is void. 69 The most usual ground upon which such applications are au- thorized and are made, is that the sale is necessary for the infant's maintenance and education, but other purposes are authorized by some statutes — as, for example, sales for the purpose of investing the proceeds in income producing securities, or to discharge a debt on the land, or to pre- vent waste ; and some statutes provide in general terms that a conveyance may be made if for any reason it may be deemed for the minor's interest. § 328. Hearing on the application — Guardian's bond — Approval by court. — The land is, of course, accurately described in the petition, and the petition is usually veri- fied or accompanied by an affidavit of the truth of the facts set forth in it. "Rankin v. Miller, 43 Iowa 11; Kennedy v. Gaines, 51 Miss. 625. 68 Myers v. McGavock, 1894, 39 Neb. 843, 862; 58 N. W. 522; 42 Am. St. R.627; Thaw v. Ritchie, 1890, 136 U. S. 519. 69 Beal v. Harmon, 38 Mo. 435 ; Fowler v. Lewis, 36 W. Va. 112, 127 ; 14 S. E. 447; Lyman v. Oonkey, 1 Met. 317, 324; Beezley v. Phillips, 1902, 117 Fed. R. 105; 54 0. O. A. 491; Liter v. Fishback, 1903 (Ky.) ; 75 S. W. 232. 404 THE LAW OF CONVEYANCING. § 329 The court, after a hearing on the necessity or desira- bility of the sale, orders a contract of sale, and requires a bond from the guardian. If the guardian fails to give a proper bond the sale is invalid. 70 Generally, the sale must be reported to and approved by the court ; and where this is required the validity of the sale depends on its approval by the court. 71 Such conveyances by guard- ians under the court's orders are judicial sales, and the guardian acts as the instrument of the court in carrying out its orders : hence, it has sometimes been held that an irregular sale when duly ratified and confirmed by the court is made valid, unless, at least, attacked in a direct proceeding; 72 but for the court's confirmation to have this effect, the sale must have been simply irregular or voida- ble and not void. 73 §329. Statutes curing effects of irregularities. — To insure a fair degree of security to the purchaser in good faith at guardians' sales, the statutes of some states pro- vide that such sales shall not be deemed invalid for irregu- larities if it appears that certain enumerated essentials have been complied with ; among which essentials usually are : that a license to sell has been granted by the court having jurisdiction, that the guardian took the oath re- quired, that he gave a bond, that he gave notice, that the 70 Stewart v. Bailey, 28 Mich. 251 ; Eyder v. Flanders, 30 Mich. 336 ; Weld v. Johnson Mfg. Co., 1893, 84 Wis. 537; 54 N. W. 335; Barnett v. Bull, 81 Ky. 127. « Bone v. Tyrrell, 1892, 113 Mo. 175 ; 20 S. W. 796. In this case for- mer minors recover land over thirty years after a guardian's sale or- dered by the court, but not approved. Dohms v. Mann, 76 Iowa 723; 39 N. W. 823; Titman v. Biker, 43 N. J. Eq. 122; 10 Atl. 397; Lump- kins v. Johnson, 1895, 61 Ark. 80; 32 S. W. 65; Hicks v. Blakeman, 1896, 74 Miss. 459, 477; 21 So. 7. 72 Eliason v. Bronnenberg, 1896, 147 Ind. 248; 46 N. E. 582; Hamiel v. Donnelly, 75 Iowa 93 ; 39 N. W. 210. 78 Jenness v. Smith, 58 Mich. 280; 25 N. W. 191 ; Carder v. Culbert- eon, 1890, 100 Mo. 269; 13 S. W. 88; McMannis v. Rice, 48 Iowa 361; Frazier v. Jeakins, 1902, 64 Kan. 615; 68 Pac. 24; 57 L. R. A. 575. § 330 CONVEYANCE OF INFANTS' LANDS. ' 405 premises were conveyed in accordance with the license, that the sale was confirmed by the court, and that the property is held by one who purchased in good faith. Statutes of this general character are to be found in Indi- ana, Michigan, Minnesota, Nebraska, Oregon, Wisconsin, and perhaps other states, though some require more to be shown on behalf of a purchaser than do others. 74 § 330. Power of chancery court to order conveyance of minor's land. — In some states it is held that a court of chancery, acting under its general powers and without any statute authorizing it, may order the sale of an infant's real estate, where it is shown to be for his benefit. 75 It has, however, been held by the English courts that the court of chancery has not jurisdiction, by virtue of its inherent powers, to order the sale of an infant's real property, even for his advantage, and acts of parliament were considered necessary to enable guardians to convey for the infant. 76 Some American courts have assigned as a reason for denying this jurisdiction in England that by changing the character of the minor's estate from real to personal the rights of those who would be entitled to the property, in case of the minor's death, would be affected, as real and personal property descends and is dis- tributed, respectively, in different lines ; and these courts have consequently considered that, as this reason does not obtain in this country, therefore the English rule should not be followed. 77 Other American courts (and it seems "Ind. Burns' E. S. 1901, § 2698; Mich. C. L. 1897, § 9129; Minn. G. L. 1894, §§ 4612, 4613; Neb. Com. Stat. 1901, § 2579; Ore. Hill's Ann. L. 1892, p. 1855, § 3; Wis. Stat. 1898, § 3919. 75 Hale v. Hale, 1893, 146 111. 227, 249; 33 N. E. 858; 20 L. B. A. 247; Gorman v. Mullins, 1898, 172 111. 349; 50 N. E. 222; Thorington v. Thorington, 82 Ala. 489; 1 So. 716; Taylor v. Peabody &c. Co., 65 Md. 388 ; 4 Atl. 886 ; Hurt v. Long, 1891, 90 Tenn. 445, 459 ; 16 S. W. 968. 76 Macpherson on Infants, p. 318. 77 See for discussion and review of authorities: Eichards v. East Tenn. &c. E. Co., 1899, 106 Ga. 614; 33 S. E. 193; 45 L. E. A. 712; Hale v. Hale, 1893, 146 111. 227; 33 N. E. 858; 20 L. E. A. 247. 406 THE LAW OF CONVEYANCING. § 330 the greater number) have, however, followed the view of the English courts, and have held that the power of the court of chancery extends only to the personal estate of infants and the income of real estate, and that the real estate cannot be conveyed except under statutes of the character mentioned. 78 ,8 Losey v. Stanley, 1895, 147 N. Y. 560, 569; 42 N. E. 8; Hoback v. Miller, 1898, 44 W. Va. 635, 638; 29 S. E. 1014; Faulkner v. Davis, 18 Grat. 651; 98 Am. D. 698, n. p. 735; Liter v. Fishback, 1903 (Ky.); 75 S. W. 232. It was generally considered necessary formerly, before the enactment of these general statutes, to apply to the legisla- ture for a special act, authorizing the guardian to act in the particular case. But special legislation is now expressly prohibited by the con- stitutions of many states; and, besides, many courts have held that such laws, passed for the special purpose of allowing particular lands of a minor to be sold, are unconstitutional, because there is involved in the determination of such questions the exercise of judicial power by the legislature. Answer of court, etc., 4 N. H. 565, 572; Gannett v. Leonard, 47 Mo. 205, 208; Garth v. Arnold, 1902, 115 Fed. E. 468; Hoyt v. Sprague, 103 U. S. 613, 634. See supra, § 324. CHAPTER XXI. THE CONVEYANCE OF THE REAL ESTATE OF PERSONS OF UNSOUND MIND. §331. Insane persons' convey- ances similar to infants' — Yet the two classes differ. 332. Conveyance of insane per- son, under guardianship, void. 333. While guardianship con- tinues ward presumed in- competent — But not if merely adjudged insane or guardianship ended. 334. Effect of guardianship of spendthrifts and drunk- ards. 335. Conveyance of insane per- son not under guardian- ship generally voidable. 336. Suchconveyancesometimes considered void — Powers of attorney. 337. Whether such a voidable deed conveys title with- out being affirmed. 338. The kinds and degrees of insanity. 339. The question as to insanity must relate to the time of the act. § 340. Presumption of sanity — Not overcome by mere weak- ness of mind — Partial in- sanity. 341. Weakness of mind com- bined with inadequate consideration — Fiduciary relations. 342. The conveyance where re- garded as voidable may be affirmed. 343. Deed of insane grantor may be disaffirmed by him when sane. 344. May be disaffirmed by his guardian. 345. Insane grantor's heirs may disaffirm — Creditors gen- erally may not. 346. As to the return of consid- eration on disaffirmance. 347. Whether conveyance may be disaffirmed as against subsequent bona fide grantee. 348. Statutes providing for the disposal of insane per- sons' interests in lands. § 331. Insane persons' conveyances similar to infants' — Yet the two classes differ. — It is sometimes said that the same rules are applied in law to conveyances by per- sons of unsound mind as to conveyances by infants. But (407) 408 THE LAW OF CONVEYANCING. § 332 the statement is not quite accurate. While the two classes of cases strongly resemble each other at some points, the differences are so many that it is practically unwise to rely on the analogy between them. On many points re- garding conveyances by those of unsound mind there is more conflict of opinion than there is on similar points regarding conveyances by infants; some of the conflict has undoubtedly been caused by an attempt in many in- stances to press the analogy between the two classes too far, and some by a failure to discriminate between acts that are voidable and those that are void. 1 § 332. Conveyance of insane person, under guardian- ship, void. — There is one general rule upon which there is almost universal agreement, namely, the conveyance of a person who has been adjudicated to be of unsound mind, and who has been placed under guardianship is absolutely void. Guardianship of this class of persons is provided for by statute in probably every state, though such guardians are known by different names in different states, as "Com- mittee," "Conservator" or simply "Guardian." The general purpose of the guardianship is to protect the property of the incompetent; the guardianship takes from him the management of his estate, hence follows the gen- eral rule just stated. 2 The conveyance in such a case being void, the guardi- an's assent to it will not make it valid, unless the assent is authorized by a court under statutory proceedings simi- lar to those by which an infant's guardian conveys ; 3 and so, for example, where a wife may relinquish her dower 1 See ante, § 312. 2 See Hughes v. Jones, 1889, 116 N. Y. 67, 73; 22 N. E. 446; 15 Am. St. E. 386; 5 L. E. A. 632; Wait v. Maxwell, 5 Pick. 217; 16 Am. D. 391; New Eng. Loan and Trust Co. v. Spitler, 1895, 54 Kan. 560; 38 Pac. 799 ; Imhoff v. Witmer's Admr., 31 Pa. St. 243. 3 See Ante, §324. § 333 CONVEYANCE OF INSANE PERSONS' LANDS. 409 in the real estate of her husband only by a "joint deed" of herself and her husband, if an insane man, his wife and his guardian all join in a deed of the ward's land it is of no effect, and the ward's wife may claim her dower, because she has not barred it by executing a joint deed with her husband. 4 § 333. While guardianship continues ward presumed in- competent— But not if merely adjudged insane or guard- ianship ended. — While the guardianship continues there is a conclusive presumption that the ward lacks capacity to make a conveyance, and evidence will not be received to rebut this presumption. 5 But to have this effect and to raise this presumption the guardianship must actually be in force at the time the conveyance is made. Hence, if the guardianship has ceased, either by removal of the guardian or by his abandonment of the guardianship, there is no such conclusive presumption. 6 A mere adjudication of insanity without the appoint- ment of a guardian does not establish this conclusive presumption. A distinction is to be noted between a proceeding to commit an insane, person to an asylum for treatment and custody, and a proceeding having for its object the appointment of a guardian for- him on the ground that he is not competent to manage his estate. A person may be so insane that he ought to be committed to an asylum and yet be sane enough to make a will or a deed. In many states a commitment to some retreat is not even prima facie evidence of the committed person's 'Rannells v. Gerner, 80 Mo. 474. 6 Rannells v. Gerner, 80 Mo. 474; Leonard v. Leonard, 14 Pick. 280. 6 Willwerth v. Leonard, 1892, 156 Mass. 277; 31 N. E. 299; Thorpe v. Hanscom, 1896, 64 Minn. 201 ; 66 N. W. 1 ; Elston v. Jasper, 45 Tex. 409. This is the general rule where the matter has not been affected by statute ; in some states the presumption exists by virtue of the statute, when idiocy or lunacy has once been found, even though the guardian- ship may have been abandoned. Ridden v. Baker, 86 Ind. 191 ; Burn- ham v. Kidwell, 113 111. 425. 410 THE LAW OF CONVEYANCING. § 334 incapacity to contract; and, even if prima facie evidence of such fact, evidence may, notwithstanding, be received to show that he was competent. 7 § 334. Effect of guardianship of spendthrifts and drunkards. — There are other persons for whom guardians may be appointed under the statutes of some states, who are to some extent incompetent, and who yet are not insane, in the ordinary sense of the term: these are spendthrifts, drunkards and other persons who, by reason of certain qualities named in the statutes, are deemed unfit to have the management of their property. 8 The statutes of several states provide that if a copy of the application for a commission or inquisition in regard to the competency of such a person be filed in the office of the register of deeds, or other public office designated in the statute, all contracts (except for necessaries), and gifts, sales and transfers of property shall thereafter be void, if, as a result of the application, a guardian is ap- pointed for the alleged incompetent. 9 § 335. Conveyance of insane person not under guard- ianship generally voidable. — There are, however, many persons who are of unsound mind, because of disease, old age, accident or intoxication, who have never been placed under guardianship, nor have been in any manner ad- judged insane or otherwise incompetent. As to whether 'Dewey v. Allgire, 1893, 37 Neb. 6; 55 N. W. 276; 40 Am. St. E. 468 Leggate v. Clark, 111 Mass. 308; Topeka Water Supply Co. v. Root 1895. 56 Kan. 187, 194; 42 Pac. 715; Miskey's Appeal, 107 Pa. St. 611 627. 8 Indiana, Burns' E. S. 1901, §§5743, 5744; Iowa, Co. 1897, §3219 Missouri, E. S. 1899, § 3701. 3 Michigan, C. L. 1897, §§ 8712, 8714 ; Minnesota Gen. Stat. 1894, § 4549 Nebraska, Com. Stat. 1901, §§ 3228, 3230 ; Oregon, Hill's Ann. L. 1892, § 2893; Wisconsin, Stat. 1898, § 3979. See lor somewhat different type of statute, Connecticut, Gen. Stat. 1902, § 1833; Massachusetts E. L. 1902, ch. 145, § 8. § 336 CONVEYANCE OF INSANE PERSONS' LANDS. 411 conveyances by such persons are void or merely voidable, there is some difference of opinion. The general rule, as laid down by most of the Ameri- can courts, is that the conveyance of a person of unsound mind, but not under guardianship, is voidable, merely, and not void. 10 In states where this doctrine is announced in general terms, it appears that there might arise cases in which the conveyance would be held void — as, for example, where the grantor is so entirely devoid of mental power as to be wholly incapable of comprehending the nature of his act in making the conveyance, 11 and especially where the grantee knew that this degree of mental unsoundness existed. 12 On the other hand, it seems that there might arise cases in which the conveyance would be held not even voidable — as where the person dealing with the grantor was ignorant of his incapacity, and dealt with him in entire good faith and paid an adequate considera- tion. 13 § 336. Such a conveyance sometimes considered void — Powers of attorney. — While the greater number of auth- orities hold that the conveyance by one of unsound mind, not under guardianship, is voidable, merely, good reasons have been given for holding it to be void, 14 and there are recent decisions so holding. 15 "Moran v. Moran, 1895, 106 Mich. 8; 63 N. W. 989; 58 Am. St. R. 462; Castro v. Geil, 1895, 110 Cal. 292; 42 Pac. 804; 52 Am. St. R. I Eiley v. Carter, 1893, 76 Md. 581; 25 Atl. 667; 19 L. R. A. 489; French Lumbering Co. v. Theriault, 1900, 107 Wis. 627; 83 N. W. 927; 81 Am St. R. 856; 51 L. R. A. 910; McAnaw v. Tiffin, 1898, 143 Mo. 667, 678 45 S. W. 656; Boyer v. Berryman, 1890, 123 Ind. 451 ; 24 N. E. 249. 11 French Lumbering Co. v. Theriault, 1900, 107 Wis. 627 ; 83 N. W 927; 81 Am. St. R. 856; 51 L. R. A. 910; Castro v. Geil, 1895, 110 Cal 292; 42 Pac. 804; 52 Am. St. R. 84. "Thrash v. Starbuck, 1896, 145 Ind. 673, 680; 44 N. E. 543. "Rhoades v. Fuller, 1897, 139 Mo. 179; 40 S. W. 760. "Compare the court's opinions with the dissenting opinions in, Allen v. Berryhill, 27 Iowa 534, and Elder v. Schumacher, 1893, 18 Colo. 433. 15 Boddie v. Bush, 1903, 136 Ala. 560; 33 So. 826; Galloway v. Hen- 412 THE LAW OF CONVEYANCING. § 336 That such, a conveyance is void, is sometimes said 16 to be the rule in the Federal Courts, "however conflicting the decisions of the state courts may be upon the question whether the deed of an insane person is void or voidable," and the case of Dexter v. Hall, 17 is cited as fixing the law for these courts. In this case, however, it was merely decided that the power of attorney of an insane person is void, although much is said of deeds in general and reasons are given for holding them also void. But in spite of these reasons it appears that now the Supreme Court of the United States agrees with the majority of state courts in holding such a deed not void, but merely voidable. 18 This conflict of opinion as to whether the conveyance of one of unsound mind is void or voidable has arisen, probably, from the fact that it was formerly held in Eng- land that a feoffment with livery of seisin made by one insane was not void, but voidable merely, though his deed of bargain and sale was void — being similar to those of infants. 19 The reasons for attaching greater impor- tance to the feoffment than to the deed no longer exist, and the distinction between the different sorts of convey- ances has gradually been lost sight of by many, and yet has been maintained by others. In this country a deed executed in proper form and duly recorded or registered is very generally regarded as equivalent to a feoffment, 20 and therefore conveyances of all kinds by incompetents have often been held voidable merely, on the authority of the old English rule. 21 don, 1901, 131 Ala. 280; 31 So. 603; German Savings & L. Soc. v. De- Lashmutt, 1895, 67 Fed. 399. "Parker v. Marco, 1896, 76 Fed. 510, 512. " 15 Wall. 9. 18 Luhrs v. Hancock, 1901, 181 U. S. 567. 19 See ante, § 314. !0 See ante, §§ 53, 58. »> See Riley v. Carter, 1893, 76 Md. 581 ; 25 Atl. 667; 19 L. R. A. 489; Dexter v. Hall, 15 Wall. 9; Case of Sarah DeSilver, 5 Rawle 111. $ 337 CONVEYANCE OF INSANE PERSONS' LANDS. 413 For the same reasons that powers of attorney given by infants have been held void, 22 those given 'by persons of unsound mind are often so considered, 23 but the older rule which so holds is not always followed, for they have been held voidable merely. 24 § 337. Whether such a voidable deed conveys title without being affirmed. — Whether an insane person's -conveyance, in those states where it is held merely voida- ble, transmits the title as an infant's does, 25 subject to its being divested, or whether the title is good only after confirmation or ratification, is a question,' not, it seems, quite settled. It has been said 26 that in such a case the legal title passes to the grantee, and therefore, that his title may not be attacked in an action of ejectment, but only by a bill in equity, when equitable defenses may be made by him. And that such a conveyance vests the title in the grantee which he holds until the conveyance is disaffirmed, appears to be the general doctrine. 27 It is, however, sometimes said that the conveyance of a person of unsound mind is ineffectual to convey title to land unless it is confirmed by the grantor himself when of sound mind, or by his legally constituted guardian, or his heirs or devisees. 28 2i See ante, § 314. "Plaster v. Rigney, 1899, 97 Fed. 12; McOlun v. McClun, 1898, 176 111. 376, 380; 52 N. E. 928. "Williams v. Sapieha, 1901, 94 Texas 430; 61 S. W. 115. 25 See ante, § 313. 86 Moran v. Moran, 1895, 106 Mich. 8, 13 ; 63 N. W. 909. 27 French Lumbering-Co. v. Theriault, 1900, 107 Wis. 627; 83 N. W. 927; 81 Am. St. R. 856; 51 L. R. A. 910; McAnaw v. Tiffin,1898, 143 Mo., 667, 678; 45 S. W. 656; Castro v. Geil, 1895, 110 Cal. 292; 42 Pac. S04; 52 Am. St. R. 84; Woolley v. Gaines, 1901, 114 Ga. 122; 39 S. E. S92; 88 Am. St. R. 22; Downham v. Holloway, 1902, 158 Ind. 626; 64 N. E. 82; 92 Am. St. R. 330. 88 Brigham v. Fayerweather, 144 Mass. 48 ; Crawford v. Scovell, 94 Pa. St. 48, 51; 39 Am. R. 766. The distinction may be of some impor- tance as bearing on the remedy ; if legal title has passed to the grantee, the remedy for the grantor, or those who represent him would be 414 THE LAW OF CONVEYANCING. § 338 § 338. The kinds and degrees of insanity. — The mental unsoundness which will render a deed thus (generally) voidable may arise from one or more of several causes, and the different kinds of insanity will appear in a great variety of forms. Insanity may present itself as idiocy (or " congenital insanity "), lunacy or mania, caused by grief, accident, disease, or continued intoxication, or it may appear as dementia arising from old age ; it may be continuous and permanent, or intermittent, leaving the person "lucid intervals." The proper inquiry in each case appears to be : whether the powers of the grantor's mind have been so far affected as to render him incapable of transacting this particular business ; or, as expressed by some, was there an intelli- gent assent to this particular conveyance? Only a small degree of mental capacity is required to make a valid conveyance, according to many authorities : "The question is not whether the grantor had ordinary capacity to do business, it is whether he had any, the smallest, capacity to understand what he was doing and to decide intelligently whether or not he would do it." 29 A higher test, however, appears to be demanded by some courts, and if the grantor is lacking in that degree of corn- in equity and not by ejectment, for, the legal title having passed, there would be simply an equitable title in the grantor which would not sup- port an action of ejectment ; and generally actions by a formerly insane person, or his representatives, to regain his land, are equitable pro- ceedings to cancel the conveyance. The equitable proceeding is neces- sary in most cases for the further reason that the grantee has, by the decisions of most courts, the right to a return of the consideration under certain circumstances, and this cannot be considered in an action of ejectment, being in the nature of an equitable defense. This dis- tinction has been affected by the blending of legal and equitable forms of procedure in some jurisdictions, but still may affect the matter of pleading. Where the conveyance of one non compos mentis is held ab- solutely void, proceedings in equity have been held inappropriate as the remedy at law is complete and adequate. Boddie v. Bush, 1903, 136 Ala. 560; 33 So. 826. 29 Mann v. Keene Co., 1898, 86 Fed. 51, 53. § 339 CONVEYANCE OF INSANE PERSONS* LANDS. 415 prehension which would make him capable of transacting ordinary business affairs in which his interest is involved " it may well be regarded he is incapable of understand- ing the nature and effect of the act of disposing of his land to another." 30 Generally a higher degree of mentality is needed to make a valid deed than to make a will, because in the bargaining which leads to the ordinary deed, mind is op- posed to mind, and there is necessary a greater exercise of mental power than is required to make a valid will. 31 The uncertain point at which the disposing mind dis- appears and insanity begins can be ascertained only by examining and weighing all the circumstances of each § 339. The question as to insanity must relate to the time of the act. — The inquiry as to the capacity of the grantor must relate to the very time of the act in ques- tion, 33 and, as delivery must be the surrender of the deed with intent that the grantee shall take title under it, 34 a deed signed and sealed by one while sane, but retained by him, and only delivered at his direction while he is insane, passes no title because there is no delivery. 35 § 340. Presumption of sanity, not overcome by mere weakness of mind — Partial insanity. — In considering a case of this character one must start out with the legal presumption of sanity and ability, and, when lack of ability in the grantor is claimed, it must be shown by a 30 Ring v. Lawless, 1901, 190 111. 520, 533 ; 60 N. E. 881. 31 Converse v. Converse, 21 Vt. 168. 32 Dennett y. Dennett, 44 N. H. 531; 84 Am. D. 97; Conley v Nailor, 118 TJ. S. 127, 133; Bowdoin College v. Merritt, 1896, 75 Fed. 480, 487. 33 Carnagie v. Dlven, 1897, 31 Ore. 366, 49 Pac. 891 ; Francis v. Wil- kinson, 1893, 147 111. 370, 380; 35 N. E. 150. 84 Ante, § 299. 85 McClun v. McClun, 1898, 176 111. 376; 52 N. E. 928. 416 THE LAW OF CONVEYANCING. § 340 preponderance of evidence. 36 And showing some impair- ment of the mind, by extreme age or disease, is not enough to overcome this presumption. 37 In practice a difficulty arises in this class of cases be- cause of" the opinion which prevails among juroTS, and to some extent among medical men, who are often called as witnesses, that partial insanity or monomania, or even eccentricity on the part of the grantor, is enough to inval- idate a conveyance. But the true view is stated as fol- lows : " Though long doubted, it is now well settled both in England and the United States that the same person may be at the same moment both sane and insane, or, more accurately speaking, insane upon one or more sub- jects and sane upon all others, and in what he does with reference to the former will be treated both by the courts administering the criminal laws and by those administer- ing the civil as insane, while in respect to the latter he will be held responsible in the criminal courts for crimes committed by him, and in civil courts his contracts and dispositions of property will be adjudged binding and valid." 38 Unless, therefore, the partial insanity or monomania relate to the particular subject out of which the convey- ance grew, or be of such a character as to induce the conveyance, it should not render it even voidable. 39 36 Argo v. Coffin, 1892, 142 111.368; 32 N. E. 679; Jones v. Jones, 1893, 137 N. Y. 610; 33 N. E. 479; Brown v. Brown, 39 Mich. 792; El- cessor v. Elcessor, 1892, 146 Pa. St. 359 ; 23 Atl. 230 ; Famsworth v. Noffsinger, 1899, 46 W. Va. 410; 33 S. E. 246. "Shea v. Murphy, 1897, 164 111.614,619; 45 N. E. 1021; Cutts v. Young, 1899, 147 Mo. 587, 599; 49 S. W. 548; Buckey v. Buekey, 1893, 38 "W. Va. 168; 18 S. E. 383. 38 Note on "Insane Delusions," 63 Am. St. R. 80. 39 Meigs v. Dexter, 1898, 172 Mass. 217; 52 N. E. 75; El wood v. O'Brien, 1898, 105 Iowa 239; 74 N. W. 740; Dennett v. Dennett, 44 W. H. 531 ; 84 Am. D. 97. This same principle is applied to wills in the following cases: Trich's Ex'r. v. Trich, 1895, 165 Pa. St. R. 586; 30 Atl. 1053; Farmer v. Farmer, 1895, 129 Mo. 530; 31 S. W. 926; Blough v. Parry, 1893, 144 Ind. 463, 475; 40 N. E. 70; 43 N. E. 560. § 341 CONVEYANCE OF INSANE PERSONS' LANDS. 417 § 341. Weakness of mind combined with inadequate consideration — Fiduciary relations. — While mere weak- ness of mind will not of itself warrant a court in setting aside a conveyance — unless it be of such a degree as to take from the grantor the power to intelligently assent to the conveyance — the weak mental condition of the grantor furnishes ground for suspicion, and if unfair advantage can be either shown or inferred from the circumstances, equity will set aside the conveyance. For example, a deed will generally be set aside, if, in connection with weakness of mind, it is shown that the consideration is nominal or grossly inadequate — from such circumstances imposition will be inferred; 40 or where there is weakness of mind in the grantor and the grantee sustains a fiduciary relation to him, or such a relation as enables him to influence the grantor, a presumption of undue influence is raised. 41 The principle to be applied to such cases appears to be : Such other circumstances combined with weakness of mind do not constitute an absolute or necessary ground for equitable relief, but they throw the burden of proof on the grantee to show that the grantor acted freely, de- liberately and intelligently. 42 § 342. The conveyance where regarded as voidable may be affirmed. — The conveyance of an insane person (not under guardianship) being generally considered 40 Allore v. Jewell, 94 U. S. 506; Griffith v. Godey, 113 U. S. 89, 95; Ashmead v. Eeynolds, 1893, 134 Ind. 139; 33 N. E. 763; Hale v. Kob- bert, 1899, 109 Iowa 128; 80 N. W. 308. « Disch v. Timm, 1898, 101 Wis. 179; 77 N. W. 196; Seeley v. Price, 14 Mich. 541; Duncombe v. Richards, 46 Mich. 166; 9 N. W. 149. 42 Smith v. Cuddy, 1893, 96 Mich. 562, 569; 56 N. W. 89; Thomas v. Whitney, 1900, 186 111. 225; 57 N. E. 808; Kellogg v. Peddicord, 1899, 181111. 22; 54 N. E. 623; Cartyv. Connolly, 1891, 91 Cal. 15; 27 Pac. 599; Fitch v. Reiser, 1890, 79 Iowa 34; 44 N. W. 214; Bruguier v. Peppin, 1898, 106 Iowa 432 ; 76 N. W. 808 ; Paddock v. Pulsifer, 1890, 43 Kan. 718; 23 Pac. 1049. 27— Brews. Con. 418 THE LAW OF CONVEYANCING. § 343 voidable merely, and not void, may generally be affirmed or ratified by tbose in interest. Hence the grantor himself may affirm it, either after complete restoration to sanity or during a lucid interval; but in either case the affirmation must be his intelligent act, with an understanding on his part of the nature of the instrument. 43 He may confirm it in various ways; as, by receiving, while sane, the consideration; by a new conveyance or contract; or by failure, under some cir- cumstances, to move in setting it aside. Any act which shows clearly a recognition of the conveyance as valid is competent evidence of ratification. 44 But his guardian or committee cannot, generally, con- firm an insane ward's conveyance, without the direction of a competent court; because, having no power to convey a ward's estate without the court's order, the guardian has no power to do such acts in ratification as are equiv- alent to a conveyance. 45 § 343. Deed of insane grantor may be disaffirmed by him when sane. — Where a deed has been made by one who is mentally incompetent or insane, it may be disaf- firmed by him on his restoration to sanity. The old English rule was that he himself could not take steps to have such a conveyance set aside, because no one should be thus allowed to stultify himself and be- cause he could not know, when he became sane, what he had done while he was insane. But this doctrine has been completely done away with: "it has been repudiated by every American court, and denounced as having no 43 Bond v. Bond, 7 Allen 1; Beasley v. Beasley, 1899, 180 111. 163; 54 N. E. 187. 44 This rale would not apply in those jurisdictions where the first con- veyance is held void. In them the grantor could cure the infirmity in his former attempted conveyance only by executing another after his restoration to sanity — not strictly speaking a ratification. 46 Funk v. Rentchler, 1892, 134 Ind. 68; 33 N. E. 364, 898; New Eng. Co. v. Spitler, 1895, 54 Kan. 560; 38 Pac. 799. § 344 CONVEYANCE OP INSANE PERSONS' LANDS. 419 foundation in reason or justice, and as dishonoring the jurisprudence of a civilized people." 46 If, after his restoration to sanity, one conveys lands . which he had attempted to convey while insane, the grantee in the second deed acquires by it the right which his grantor had, to avoid the deed made during his insan- ity.* 7 § 344. May be disaffirmed by his guardian. — If the in- competent be not restored to reason his guardian may dis- affirm his conveyance by proceedings to have the convey- ance canceled. There has been some question as to whether in such cases the insane person may bring suit by his "next friend," or whether it must be by his general guardian. The matter is somewhat governed by statute. The proper practice is said in some cases to be to bring the action on behalf of the incompetent by his guardian or conservator, and not by a next friend or guardian ad litem specially appointed for this purpose : the guardian has control of the incompetent's property and is responsible for proper conduct of the proceedings. The more general practice conforms to this view. 48 § 345. Insane grantor's heirs may disaffirm — Creditors generally may not. — If the incompetent be dead his heirs may bring suit to cancel the deed, and this is common practice. It was urged in one case that heirs, children of a de- ceased grantor, seeking to set aside his deed, were guilty of laches in not having had his competency tested while 46 Turner v. Rusk, 53 Md. 65, 68. See briefs for valuable collection of authorities. "Clay v. Hammond, 1902, 199 111. 370; 65 N. E. 352. 48 Covington v. Neftzger, 1892, 140 111. 608; 30 N. E. 764; Row v. Row, 1895, 53 Ohio St. 249; 41 N.E. 239; Tiffany v. Worthington, 1896, 96 Iowa 560; 65 N. W. 817. But see, Plymton v. Hall, 1893, 55 Minn. 22 ; 56 N. W. 351 ; Wager v. Wagoner, 1898, 53 Neb. 511 ; 73 N. W. 937. 420 THE LAW OF CONVEYANCING. § 346 he was living, but the court held this not such laches as should bar their remedy, and it was observed that chil- dren might well hesitate to drag an aged parent into court under such circumstances. 49 While the grantor remains insane he has no power to disaffirm his conveyance, and during that time the stat- ute of limitations will not run so as to bar an action by his heirs should he remain incompetent during his entire lifetime. 50 While the heirs of a grantor non compos mentis may thus have his conveyance set aside because of his incom- petency, his creditors have not generally the same privi- lege, and a conveyance will not be set aside in their be- half, unless, besides the grantor's incompetency, other reasons exist for its cancelation. 51 § 346. As to the return of consideration on disaffirm- ance. — On the question as to whether there shall be a re- turn of the consideration when the conveyance of an in- competent person is attempted to be set aside, there is less harmony among the decisions than there is on the similar question which arises concerning the infant's deed. 52 It appears that most courts in deciding this question will take into account the fairness of the transaction — whether it is free from fraud and undue influence — and also the knowledge of the grantee as to the grantor's in- competency. The general rule is : The conveyance of an insane person will not be set aside when the other party has acted in good faith and in ignorance of the grantor's unsoundness of mind, unless the consideration 49 Hemphill v. Holford, 1891, 88 Mich. 293; 50 N. W. 300. ^Downham v. Holloway, 1902, 158 Ind. 626; 64 N. E. 82; 92 Am. St. R. 330. 51 See Rollet v. Heiman, 1889, 120 Ind. 511 ; 22 N. E. 666 ; 16 Am. St. R. 340 ; Riley v. Carter, 1893, 76 Md. 581 ; 25 Atl. 667 ; 19 L. R. A. 489. See for similar rule as to infants, § 319. 62 Ante, § 321. § 347 CONVEYANCE OF INSANE PERSONS 1 LANDS. 421 can be restored — that is, the parties placed substantially in statit quo. 53 Or, where the grantee acted in good faith, and it is impossible to return the consideration paid by him to the incompetent grantor, the amount may be made a charge or lien on the land if the conveyance is set aside. 54 Where, however, the grantee knew of the gran- tor's unsoundness of mind, a return of the consideration received by the insane grantor does not seem to be a nec- essary prerequisite to an avoidance of the conveyance. 55 The doctrine that there must be a return of the consid- eration, where the grantee did not know of the grantor's insanity and acted in good faith, is not, however, univer- sally approved, for it has been considered that the con- veyance may be set aside without returning the consider- ation or placing the other party in statu quo; nor is it always considered material that in taking the deed the other acted in good faith and without knowledge of the grantor's insanity — because, it is said, he who deals with an insane person does so at his peril. 56 § 347. Whether conveyance may be disaffirmed as against subsequent bona fide grantee. — As to the title of subsequent purchasers in good faith, the same rule is fre- quently applied in these cases as controls in cases where the original grantor is an infant. 57 This doctrine has been expressed as follows: "The in- sane man has not the power to convey an indefeasible 53 Eldredge v. Palmer, 1900, 185 111. 618; 57 N. E. 770; 76 Am. St. R. 59; "Warfleld v. Warfield, 1889, 76 Iowa 633; 41 N. W. 383; Boyer v. Berryman, 1890, 123 Ind. 451; 24 N. E. 249; Myers v. Knabe, 1893, 51 Kan. 720, 723; 33 Pac. 602; Schaps v. Lehner, 1893, 54 Minn. 208; 55 N. W. 911 ; Pearson v. Cox, 71 Texas 246 ; 9 S. W. 124 ; 10 Am. St. R. 740; McKenzie v. Donnell, 1899, 151 Mo. 431, 458; 52 S. W. 214. 54 Moran v. Moran, 1898, 106 Mich. 8, 11 ; 63 N. W. 989. 55 Thrash v. Starbuck, 1896, 145 Ind. 673 ; 44 N. E. 543 ; Crawford v. Scovell, 94 Pa. St. 48. 56 Brigham v. Eayerweather, 144 Mass. 48; 10 N. E. 735; Wager v. "Wagoner, 1898, 53 Neb. 511 ; 73 N. W. 937. 67 Ante, § 318. 422 THE LAW OF CONVEYANCING. § 348 title. This incapacity inheres in all titles derived from him. The grantee whose title is thus derived must rely on the covenants of his deed. He risks the capacity to convey of all through whom his title has passed. The rights of infants and of insane alike to avoid their contracts is an absolute and paramount right, superior to all equi- ties of other persons, and may be exercised against bona fide purchasers from the grantee." 58 But this rule has not been followed in cases of insane grantors with nearly so much uniformity as in cases of infant grantors. The presumption of law is in favor of sanity: "When, therefore, a purchaser sees a regular chain of title, formal in all particulars, upon the registra- tion books, executed by grantors of full age and not feme coverts, he has a right to rely upon the presumption of sanity, and if without any notice, or matter to put him upon inquiry and for fair value, he takes a deed he should be protected. Any other doctrine would place all titles upon the hazard." B9 § 348. Statutes providing for the disposal of insane persons' interests in lands. — There are statutes relating to the conveyance or release of an insane person's inter- ests in real property that should be noticed. There are two chief classes of such statutes. First. Those which authorize the conveying or the mortgaging of the real property of such a person by his "committee," "conservator" or "guardian" under spe- cial direction of a court. Such statutes appear to exist in 68 Hovey v. Hobson, 53 Me. 451, 458 ; 89 Am. D. 705. And see, Hull V. Louth, 109 Ind. 315; 10 N. E. 270; 58 Am. R. 405; Dewey v. All-' gire, 1893, 37 Neb. 6; 55 N. W. 276; 40 Am. St. R. 468; Germ. Savings*' & L. Soc'y v. DeLashmutt, 1895, 67 Fed. 399. The uncertainty as to titles on this account is one reason advanced for the adoption of the "Torrens System" of registration. 69 Odom v. Riddick, 1890, 104 N. C. 515, 520; 10 S. E. 609; 17 Am. St. R. 686; 7L. R. A. 118; Ashcraft v. DeArmond, 44 Iowa 229, 235; Greenslade v. Dare, 20 Beav. 284. § 348 CONVEYANCE OP INSANE PERSONS' LANDS. 423 every state. In many states the statutes providing for the disposal of infants' lands 60 also provide that the lands of those of unsound mind may be disposed of under the same circumstances; and where separate laws exist relat- ing to the lands of the latter class, they are substantially similar to those concerning the lands of infants, and are governed by the same general principles. Second. Statutes authorizing proceedings by virtue of which an insane wife's or husband's interests in real property belonging to the other spouse may be conveyed or released. An insane wife cannot release her dower in her husband's lands, as such a release must be her voluntary act, nor may her guardian do so for her without statutory authority. 61 Therefore statutes have been passed in many states authorizing a judicial examination, after which a release of her dower (or its statutory substitute), and in some cases a release of her interest in the "homestead," may be directed by the court, on condition that the insane wife's share in the purchase money is paid to her guard- ian or secured to her use. 62 In several states (e. g. Illinois, Indiana, Iowa and Mas- sachusetts), the same or similar statutes provide for such proceedings when it becomes necessary to release an in- sane husband's interest in his wife's lands. 60 Ante § 324 et seq. 61 Eslava v. Lepretre, 21 Ala. 504, 529 ; Ex parte McElwain, 29 111. 442. 65 Illinois B. S. , ch. 68, § 17 ; Indiana, Burns' B. S. 1901, § 3388a ; Iowa Co. 1897, §§3167-3169; Kentucky, Stat. 1899, §2145; Massachusetts, E. L. 1902, ch. 153. § 19; Michigan, C. L. 1897, §§8947-8952; Missouri, E. S. 1899, § 2985; Ohio, E. S., §§ 5725, 6307; Virginia, Co., § 2625, am'd 1895, p. 260; Wisconsin, San. & B. Stat. 1898, § 2225. CHAPTER XXII. CONVEYANCES IN WHICH MAEKIED WOMEN ARE INTERESTED. § 349. The married woman's dif- 361. ferent interests in real property. 350. The husband's rights in, 362. and control over, his wife's property at com- mon law. 351. The common law not whol- 363. ly obsolete in this coun- try. 352. The equitable separate es- 364. tate — How created. 353. The intention to create the separate estate must gen- 365. erally be clearly ex- pressed. 354. The "restraint on anticipa- 366. tion." 355. The wife's power over her separate estate in the ab- 367. sence of such restraint. 356. Manner of conveying sepa- rate estate. 368. 357. Effect of statutes on the equitable separate estate. 369. 358. Constitutional and statu- tory provisions creating a separate estate. 370. 359. Statutes creating separate estate do not always re- move the married wo- 371. man's disability to con- vey. 360. Common law methods of 372. alienation by married women — Deeds unusual —Fines. (424) The joinder of the husband at common law — The sep- arate examination. Early usages in the United States — The joint deed — Statutes requiring join- der. When the husband's join- der or assent is now nec- essary. Whether husband and wife should join as grantors or merely execute the deed. The married woman's ac- knowledgment — The sep- arate examination. How far the separate ex- amination must now be regarded. How far compliance with statutory provisions as to particulars is necessary. Conveyances between hus- band and wife. Conveyances between hus- band and wife through a third person. Equitable view of convey- ances between husband and wife. Rule as to conveyances be- tween husband and wife affected by statute. Dower and its statutory substitute. § 349 CONVEYANCES OF MARRIED WOMEN'S INTERESTS. 425 373. Generally no act of the hus- 375. Wife cannot generally re- band alone can defeat lease dower to her hus- dower — Exceptions to band. this rule. 376. Eelease of dower generally 374. Inchoate right of dower not by deed of husband and strictly property — Re- wife. leased not conveyed. 377. Married women's powers of attorney to convey lands or release dower. § 349. The married woman's different interests in real property. — The married woman appears as sustaining various relations to real property; and it will depend upon what relation she bears to the property in any particular case whether she can sever that relation — and if so, how — so that title may be conveyed freed from her interest, whatever it may be. She may appear: 1. As having an interest in the " community prop- erty." 2. As having an interest in an "estate by entire- ties." 3. As holding realty as at common law — often called her "general estate" to distinguish it from those next mentioned. 4. As having a "separate estate" — either an "equi- table" or a "statutory" separate estate. 5. As having a dower interest, or a statutory interest similar to dower, in her husband's property. 6. As having an interest in the "homestead." Reference has already been made to " community prop- erty," 1 and to " tenancy by entireties." 2 In this chapter the general principles concerning her other interests in realty, especially her separate estate and dower, will be considered, while the homestead will be discussed in the next chapter. 3 'Ante, §167. 1 Ante, §§ 162-166. "Others than married persons may quite generally have a " home- 426 THE LAW OF CONVEYANCING. § 350 § 350. The husband's rights in, and control over, his wife's property at common law. — At common law a hus- band acquired, by virtue of the marriage, valuable rights in the property of his wife with which the exercise by her of powers of control and disposition were inconsistent. He had, for example, an estate in the lands in which his wife had a freehold estate which he could alienate with- out her concurrence, and he might take the entire rents and profits of her lands, while she could not, during the marriage, alienate them without his concurrence, and not then generally by deed. 4 While the death of either husband or wife put an end to this estate of the husband, yet if he survived her and there had been born to them a child capable of inherit- ing, the husband became vested with an estate for his life in all his deceased wife's lands — his curtesy estate. These estates or interests of the husband in his wife's real property were subject to his debts; but no disposition could be made by him or his creditors of her freehold estate which would endure beyond his own interest. § 351. The common law not wholly obsolete in this country. — In this country, by virtue of early statutes in some jurisdictions, a husband's rights in and over his wife's real estate (which was not her "separate estate") were even greater than they were at common law, and were equal to his rights at common law in her movable or personal property in possession, 5 but such statutes seem unusual. On the other hand, modern legislation has much modi- fied the common law and has lessened, and in many stead," but it is mentioned in this connection, since husband and wife are usually especially concerned in matters relating to its transfer or release. 4 Co. Litt. 351a; Poll. & Mait. Hist. Eng. Law, 2d ed., II, p. 404; Eaton v. Whitaker, 18 Conn. 222; 44 Am. D. 586; Hackett v. Moxley, 1895, 68 Vt. 210; 34 Atl. 949. 5 Hudgins v. Chupp, 1898, 103 Ga. 484; 30 S. E. 301. $352 CONVEYANCES OF MARRIED WOMEN'S INTERESTS. 427 states substantially abolished, the husband's common law rights in his wife's property. Prior to such legislation courts of equity had permitted settlements of "separate estates" on married women. In spite, however, of the influence of both equity and legislation common law doctrines, as to husband and wife, are not yet entirely obsolete in the United States, and in some states a husband's common law marital rights are still recognized in respect to such of his wife's real property as is not her " separate estate." 6 § 352. The equitable separate estate — How created. — Courts of equity about the end of the seventeenth century allowed property to be settled on a married woman so that she should have the benefit of it to the exclusion of her husband's marital rights in it. Such a "separate estate" may be constituted by a woman's reservation in her marriage settlement of a power to dispose of her estate, 7 or by a transfer by her be- fore marriage to a trustee. It may also be created by the conveyance by her husband of property to a trustee for her use, 8 and in many states by a conveyance from a husband directly to his wife, 9 as well as by conveyance or devise of a third person to her sole and separate use, either before marriage or after it. 10 A trustee may be provided for by the instrument creat- ing the separate estate to hold and protect the estate for the wife, 11 and such a provision was at one time consid- ered necessary, but there now need be no trustee, and the conveyance or devise may be made directly to the mar- 6 Dietrich v. Hutchinson, 1901, 73 Vt. 134; 50 Atl. 810; 87 Am. St. E. 698; Brasfield v. Brasfleld, 1896, 96 Tenn. 580; 36 S. W. 384. 'Gore v. Knight, 1705, 2 Vern. 535. "Ryland v. Banks, 1899, 151 Mo. 1 ; 51 S. "W. 720. 9 Barnum v. LeMaster, 1903 (Tenn.) ; 75 S. W. 1045. 10 Fears v. Brooks, 12 Ga. 195 ; Hamaker v. Haroaker, 88 Ala. 431 ; 6 So. 754. 11 Jones v. Jones, 1899, 96 Va. 749; 32 S. E. 463. 428 THE LAW OF CONVEYANCING. § 353 ried woman. The "separate estate" being, however, de- pendent upon the equitable doctrine of trusts — with the legal and equitable titles separated — when a transfer is thus made directly to a married woman for her sole use, her husband, in the absence of an express trustee, is re- garded in equity as taking the legal estate in trust for his wife for her separate use. 12 § 353. The intention to create the separate estate must generally be clearly expressed, — In order to so cre- ate this equitable separate estate, the intention of the do- nor to give the married woman the complete use of the property free from her husband's control must clearly ap- pear from the words used in the instrument creating the estate. 13 And while the expression "sole and separate use" has been most often employed for this purpose, no special or technical form of words has been considered essential, if the intention to exclude the husband's marital rights is indicated. Words which might be necessary, however, to show such an intention when the donor is a stranger are not always regarded as necessary in a conveyance by the hus- band to a trustee for the wife or in his conveyance directly to her, and in such cases conveyances in ordinary form without words evincing an intention to create a sep- arate estate have been construed as operating to the wife's separate use, since otherwise they would be to a great ex- tent inoperative; 14 and it has also been held that real 12 Bennet v. Davis, 1725, 2 P. Wins. 316 ; Jones v. Clifton, 101 U. S. 225; Wood v. Wood, 83 N. Y. 575 ; Dezendorf v. Humphreys. 1898, 95 Va. 473; 28 S. E. 880. "Haekett v. Moxley, 1895,68 Vt. 210; 34 Atl.949; Lippincotfc v. Mitchell, 94 TJ. S. 767, 771; Holliday v. Hively, 1901, 198 Pa. St. 335; 47 Atl. 988; Richardson v. De Giverville, 1891, 107 Mo. 422; 17 S. W. 974; 28 Am. St. R. 426. "Barnum v. LeMaster, 1903 (Tenn.) ; 75 S. W. 1045; Hamilton v. Hubbard, 1901, 134 Cal. 603, 606; 65 Pac. 321. § 354 CONVEYANCES OF MARRIED WOMEN'S INTERESTS. 429 property belonging to a married woman may be invested with the character of separate estate by the husband's long acquiescence in his wife's uninterrupted control of her property and his failure to contribute to her support — such facts being deemed equivalent to an express agree- ment on his part that her property should be held to her sole use. 15 § 354. The "restraint on anticipation." — In convey- ances generally provisions in restraint of alienation are void, 16 as are provisions that the property shall not be liable for the debts of its owner. 17 An exception, however, to this general rule has long been recognized in the case of the separate estate of mar- ried women, and if in the instrument by which property is conveyed to a woman for her separate estate there is a r clear expression of the donor's intention that she shall , not be able to deprive herself of the enjoyment of the property she cannot alienate it. This restriction, known as the "restraint on anticipa- tion " (expressed in brief: "to the said [wife] so that the same shall be for her separate use without power of antic- ipation ") — is allowed as a protection to the wife, 18 and is in effect a restraint on alienation. 19 § 355. The wife's power over her separate estate in the absence of such restraint. — In the absence of such a restriction the effect of the creation of a separate estate was finally considered by the English courts of equity, after doubts and denials in earlier cases, to be that the married woman had the same power over the property so settled that a feme sole had over her property — she might 15 Curtis v. Simpson, 1900, 72 Vt. 232; 47 Atl. 829; but see Klenke v. Koeltze, 75 Mo. 239, 243. 16 Ante, §186, note 53; Potter v. Couch, 1890, 141 U. S. 296, 315. " McCleary v. Ellis, 54 Iowa 311 ; 6 N. W. 571 ; 37 Am. E. 205. "Pears v. Brooks, 12 Ga. 195 ; Tulett v. Armstrong, 1838, 1 Beav. 1 ; 1839, 4 Myl. & Cr. 377, 390. 19 In re Currey, 1886, 32 Ch. D. 361. 430 THE LAW OF CONVEYANCING. § 355 dispose of it without her husband's concurrence and without the formality of acknowledgment which later English law generally required when she conveyed her realty. 20 In the United States there has been a difference of opinion as to the wife's power of disposal over her sepa- rate estate. If there is in the instrument creating the es- tate no clause restraining alienation, she can, in most of the states, dispose of her separate property — the English doctrine being followed in a general way, but not fol- lowed exactly, it seems, in any state. Some states adopt almost completely the English doc- trine in recognizing her power to dispose of the property absolutely as any other owner may, 21 at least, if statu- tory requirements as to acknowledgment are fulfilled. 22 In some of the states where the English principle — that she has power of disposal of her separate estate unless restrained by the instrument creating it — has but partially prevailed, she may convey and charge simply her per- sonal property and the income of her real property, but not, speaking generally, its corpus. 23 In a few states a married woman is held to be re- strained from alienating her separate estate, except so far as alienation is expressly permitted by the instrument cre- ating the estate ; if there is no provision in that as to the mode of disposition she cannot dispose of the property ; if one method is provided for by that instrument she can convey the property in no other way — the mode of alien- ation prescribed is exclusive. This view has prevailed especially in Pennsylvania and South Carolina. 24 J0 Taylor v. Meads, 4 De G. J. & S. 597 (69 Eng. Ch. Rep.). 21 Turner v. Shaw, 96 Mo. 22; 8 S. W. 897 ; 9 Am. St. R. 319; Cade- matori v. Gauger, 1901, 160 Mo. 352; 61 S. W. 195. ■" Barnum v. LeMaster, 1903 (Tenn.) ; 75 S. W. 1045. 23 Radford v. Carwile, 13 W. Va. 572; Price v. Planters' Bank, 1896, 92 Va. 468; 23 S. E. 887. "Holliday v. Hively, 1901, 198 Pa. St. 335; 47 Atl. 988; Ewing v. Smith, 3 Des. 417; 5 Am. D. 557; Porcher v. Daniel, 12 Rich. Eq. § 356 CONVEYANCES OP MARRIED WOMEN'S INTERESTS. 431 It appears, therefore, that there are in the United States three rules as to the capacity of a married woman to con- vey her equitable separate property, namely : 1. That, unless the instrument creating the separate estate deprives her of this capacity, she has it ; 2. That, unless she is thus expressly deprived of ca- pacity she may convey and charge merely her income from separate real property ; 3. That she has no capacity to deal with her separate estate except what is expressly given by the instrument creating it. The lack of harmony on this subject is probably partly due to the fact that some American courts have been in- fluenced by English decisions of one period and some by those of another, for the final English rule was gradually developed and was not recognized at all times. 25 § 356. Manner of conveying separate estate. — When a married woman has the capacity in a particular instance to convey her separate estate she may convey without specially referring to the instrument giving her the es- tate, 26 nor need the trustee join to render the conveyance valid generally in equity, 27 and, unless the instrument of settlement or some statute provides otherwise, she may execute the conveyance as if unmarried, for she is re- garded as to such property as a feme sofo. 28 Statutes, however, making general provisions regarding conveyances by married women may apply to such equi- table separate estates, and in such cases the formalities 349; and see Kirby v. Boyette, 1896, 118 N. C. 244; 24 S. E. 18; Erinor v. Hodson, 1890, 134 111. 32; 25 N. E. 582. " See note 30 Am. D. 330. 86 Porcher v. Daniel, 12 Rich. Eq. 349. "Essex v. Atkins, 14 Ves. 542; Eyland v. Banks, 1899, 151 Mo. 1; 51 S. W. 720. See contra Kirby v. Boyette, 1896, 118 N. C. 244 ; 24 S. E. 18. ,8 Taylor v. Meads, 4 De G. J. & S. 597 (69 Eng. Ch. Bep.) ; American Home Missionary Society v. Wadhams, 10 Barb. 597, 602. See Bress- ler v. Kent, 61 111. 426. 432 THE LAW OF CONVEYANCING. § 357 prescribed by statute as to a wife's privy examination or joinder of her husband should be complied with. 29 To make a conveyance valid and effective both of the equitable and legal estates, the methods and forms of both law and equity should be combined; and if more be done than necessary, as if a husband should execute a convey- ance with his wife when she has the power in the partic- ular instance to make the conveyance alone, its validity would not be affected by thus joining a needless party. 30 § 357. Effect of statutes on the equitable separate estate. — The practical importance of the separate equi- table estate has been much diminished by the married women's property statutes, which establish the "statutory separate estate." 31 For while these statutes do not necessarily take away the equitable separate estate or the jurisdiction of courts of equity over the property of married women, 32 they do, by excluding to a greater or less extent the common law marital rights of the husband in his wife's property, re- move the necessity, to the same extent, for the creation and existence of the equitable separate estate. Moreover, the general statutes concerning trusts in several states 33 prevent passive trusts for the separate use of married women; and a statute relating, not to trusts in general, but to those for married women alone may occa- sionally be found to the same effect; 3 * and under these ra Barnum v. LeMaster, 1903 (Tenn.) ; 75 S. W. 1045. Though the instrument settling the estate may make such compliance unneces- sary. Dewey v. Goodman, 1901, 107 Tenn. 244; 64 S. W. 45. 80 Sallee v. Chandler, 26 Mo. 124. 31 See next section. 32 HolIiday v. Hively, 1901, 198 Pa. St. 335; 47 Atl. 988; Jones v. Jones, 1899, 96 Va. 749 ; 32 S. E. 463 ; Richardson v. Stodder, 100 Mass. 528; Devries v. Conklin, 22 Mich. 255, 260; Musson v. Trigg, 51 Miss. 172, 182. Though see Wood v. Wood, 83 N. Y. 575, 579. S3 For example, New York, Michigan, Minnesota and Wisconsin. 84 Simmons v. Richardson, 1894, 107 Ala. 697 ; 18 So. 245. Where § 358 CONVEYANCES OF MARRIED WOMEN'S INTERESTS. 433 statutes where lands are given to a trustee upon an ex- press trust for the benefit of a married woman she takes no estate and cannot convey or charge her interest. 35 § 358. Constitutional and statutory provisions cre- ating a separate estate. — The statutes of the different states providing for the holding by married women of property to their own use and enjoyment, and destroying wholly or partially the husband's common law rights in his wife's property, differ greatly. What is a married woman's separate real property is denned by the statute; and property held by her under such a statute is called her "statutory separate estate" to distinguish it from her "equitable separate estate," which is not necessarily abol- ished by the statute. 36 As the extent of her power over her "separate estate" and the extent to which it was freed from her husband's interests, before these statutes de- pended much upon the terms of the instrument settling the estate upon her, so now whether she has under these acts a legal separate estate, depends much upon how she acquires her title; for these modern statutes, making radi- cal changes in the common law, in effect give a legal title to married women much like the former equitable title. The general rule in all the states is that whatever land property is conveyed or devised to a trustee for the separate use of a married woman his duty to protect it from the husband and his credit- ors is generally deemed so far active as to prevent the legal estate from vesting in the married woman by virtue of the statute of uses ; if the statute operated in such cases the purpose of the donor would be de- feated. Richardson v. Stodder, 100 Mass. 528; Dean v. Long, 122 111. 447; 14 N. E. 34; Bowen v. Chase, 94 U. S. 812. The Alabama statute expressly makes necessary an active trustee, otherwise the legal estate vests in the woman, and even without such a statute a like effect has been given in some cases to the married women's property laws. Mc- Laughlin v. Ham, 1890, 84 Ga. 786 ; 11 S. E. 889; Georgia &c. E. Co. v. Scott, 1892, 38 S. C. 34; 16 S. E. 185, 839. 85 See Pomeroy Eq. Jur., §§ 1003-1005, 1105. 86 See last section, note 32. 28 — Brews. Con. 434 THE LAW OP CONVEYANCING. § 359 the wife owned before her marriage remains her separate property after marriage. Whether what she acquires after marriage is her sepa- rate property will depend upon whether she acquires it in some way designated in the controlling statute. In many states 37 there are constitutional provisions as to the married woman's separate property, either defining what it is in some detail and what her power over it shall be, or merely directing the legislature to establish her rights in such property. In most of these states statutes have been enacted to carry out in greater detail the general constitutional pro- visions, and in some cases the statutes enlarge the wife's power over her separate estate beyond that given by the constitution. 38 § 359. Statutes creating separate estate do not al- ways remove the married woman's disability to convey. — But these constitutional and statutory provisions freeing real property of the wife from the control of her husband and from liability for his debts, and giving her on the other hand extensive powers in controlling it, have not conferred upon her by implication power to convey the property as if she were unmarried. While the courts have not always construed the acts by a uniform princi- ple — some construing them more liberally than others — the general rule has been that the married woman's com- mon law disabilities still exist unless removed expressly by the statute or by necessary implication from its terms, nor do the acts abrogate the common law incidents of the "For example, Alabama, Arkansas, California, Georgia, Kansas, Maryland, Michigan, North Carolina, Oregon, South Carolina, Texas, Utah and West Virginia. 38 For example, in Michigan the constitution of 1850 gave her power of testamentary disposition, but the act of 1855, now C. L. 1897, §§ 8690- 8694, gave her power to convey by instruments operating inter vivos. Ransom v. Ransom, 30 Mich. 328. § 360 CONVEYANCES OP MARRIED WOMEN'S INTERESTS. 435 marriage relation which are not within their evident purpose. For example, a provision making the wife's real prop- erty hers and not liable for the debts of her husband and giving her power to devise it "as if she were unmarried," does not enable her to convey it by her sole deed, 39 nor may she so convey it under statutory power to "own, pos- sess and enjoy it as if unmarried," 40 though she may thus lease it under such a statute for a term of years/ 1 and even if the statute gives her power to convey, but pre- scribes particular formalities in the mode of exercising the power, her deed must be executed with these formali- ties to be valid. In spite of legislation, therefore, the position of a mar- ried woman with regard to contracts concerning, and conveyances of, real property is not in all the states free from difficulty, and, as in many of them legislation re- specting the matter has been comparatively recent, it is necessary in investigating titles which depend upon alienations by married women to recur to common law rules as to their disabilities and to ascertain to what ex- tent these rules have been changed. § 360. Common law methods of alienation by married women — Deeds unusual — Fines. — While it appears that by the earlier common law a married woman could, with the consent of her husband, convey her land by feoffment and execute a deed as evidence of her alienation, and that in London and other cities her deed concurred in by ber husband ("she having been 'separately examined' by the mayor or some other officer") was authorized by custom, it gradually became law — settled during the thirteenth century — that the only proper conveyance for a married 89 Ransom v. Ransom, 30 Mich. 328. "Swift v. Luce, 27 Maine 285, 288; Moore v. Cornell, 68 Pa. St. 320, 322. 11 Parent v. Oallerand, 64 111. 97. 436 THE LAW OF CONVEYANCING. § 361 woman, except where some such special custom as that of London was recognized, was a fine. 42 Later the wife was made a party to a common recovery for the same purpose, though this proceeding was more usually re- sorted to in order to bar her dower. 43 § 361. The joinder of the husband at common law — The separate examination. — In order that the fine might be effectual as a conveyance of a wife's lands, her hus- band was required (except in certain unusual cases) to join with his wife in levying the fine. 44 And since by common law she could perform no effectual act of aliena- tion without the concurrence of her husband, the general rule has been in the United States that he must join in her conveyance, or assent to it, to make it valid, unless some statute, either in express terms or by necessary im- plication, renders such joinder or assent unnecessary. 45 But besides the husband's concurrence, it was, under the older law, generally essential tbat there should be proof of the wife's free action in alienating her land, and early instances are recorded of her acknowledging her gift of land in court. 46 When, therefore, the fine was resorted to as a means of conveyance by the married woman, the court was supposed to ascertain by a private examination of the wife whether she acted voluntarily in the proceedings and not under her husband's compul- sion. 47 Therefore, another general result of these earlier customs has been that a married woman's acknowledg- 42 See Pol. & Mait. Hist. Eng. Law, 2d ed. II, pp. 410-413. " Shep. Touchstone 41 ; Eare v. Snow, Plowd. 504, 515. The Fines and Kecoveries Act abolished these proceedings in England in 1833, and authorized husband and wife to convey her lands by deed acknowl- edged as prescribed by the act. "Pol. & Mait. Hist. Eng. Law II, p. 410; Clark v. Clark, 16 Ore. 224, 226; 18 Pac. 1. "Post, §363. 46 Pol. & Mait. Hist. Eng. Law II, p. 410. "Martin v. Dwelly, 6 Wend. 9; 21 Am. D. 245. § 362 CONVEYANCES OF MARRIED WOMEN'S INTERESTS. 437 ment to a conveyance is a very different thing from that of others — both in form and effect. 48 § 362. Early usages in the United States — The joint deed — Statutes requiring joinder. — In this country fines and recoveries, though recognized as legal and proper means of conveying the real property of married women, 49 were seldom used for this purpose. Before the matter was regulated by statute the conveyance of the lands of a wife by a deed in which her husband joined was sustained by the courts as being in accordance with long established usage — local common law — which arose partly from the necessities of the colonists, courts not being always acces- sible, and partly, probably, under the influence of similar local customs prevailing in England. 50 These early usages were recognized and confirmed by statutes, and in most of the states it has been expressly required at some period that a husband should join in his wife's conveyance of her real property. 51 In many states where such joinder was formerly essen- tial it is not now, but statutes dispensing with the hus- band's concurrence or joinder in his wife's deed cannot affect conveyances executed before their enactment at a time when his concurrence or joinder was necessary. § 363. When the husband's joinder or assent is now necessary. — Whether a married woman's conveyance should be joined in or assented to by her husband de- pends upon statutes — often more than one in the same state — and these are of such a character that the states may be grouped in three general classes: 52 48 See post, § 365. ** Manchester v. Hough, 5 Mason 67 ; Lawrence v. Heister, 3 Har. & J. 371. 50 Durant v. Ritchie, 4 Mason 45 ; Lloyd v. Taylor, 1 Dall. 17 ; Fowler v. Shearer, 7 Mass. 14; Gordon v. Heywood, 2 N. H. 402. 51 In requiring the husband's concurrence to his wife's alienation such statutes are declaratory of the common law. 52 In illustrating this point decisions are generally cited rather than statutes, as they refer to, discuss and construe the statutes. 43S THE LAW OF CONVEYANCING. § 363 1. In many states the married woman cannot convey the legal title to real estate unless her husband concurs in her conveyance : either, as is necessary in some of the states of this class, by "joining in" the conveyance, or, as in others, by "assenting" thereto. To this general class belong, for example, Alabama, Florida, Idaho, Indiana, Kentucky, Minnesota, Nevada, North Carolina, Pennsylvania, Vermont and West Vir- ginia. 53 The necessity for this joinder or assent of the husband may, of course, exist irrespective of the requirement of a "separate examination" of the wife. 54 In several of these states where a husband's concurrence is ordinarily essen- tial a married woman may convey alone under certain circumstances, as, if her husband is insane, has aban- doned her or is imprisoned, 55 but authority for her sole conveyance under such exceptional circumstances must be given by statute; 56 unless, at least, there has been such complete abandonment of the wife by the husband as to be equivalent to his abjuration of the realm- at common -law, when perhaps she may convey alone. 57 63 Adams v. Teague, 1898, 123 Ala. 591; 26 So. 221; 82 Am. St. E. 144; Walling v. Christian &c. Co., 1899, 41 Fla. 479; 27 So. 46; 47 L. E. A. 608; Idaho, Code 1901, §2403; Bartlett v. Williams, 1901, 27 Ind. App. 637; 60 N. E. 715; Weber v. Tanner, 1901 (Ky.); 64 S. W. 741; Lowe v. Lowe, 1901, 83 Minn. 206; 86 N. W. 11; Nevada C. L. 1900, §2658; Green v. Bennett, 1897, 120 N. C. 394; 27 S. E. 142; Adams Paper Co. v. Cassard, 1903 (Pa.) ; 55 Atl. 949; Dietrich v. Hutchinson, 1901, 73 Vt. 134; 50 Atl. 810; 87 Am. St. E. 698: See the statute re- ferred to in this case, under which she may obtain a decree authorizing her to convey alone. Morgan v. Snodgrass, 1901, 49 W. Va. 387 ; 38 S. E. 695. The real husband should join in such cases, and not merely some one who is supposed by all parties to the conveyance to be the real husband. See Cook v. Walling, 117 Ind. 9; 10 Am. St. E. 17. " Post, § 365. 65 Alabama Co. 1896, § 2528; Idaho Code 1901, § 2404; Indiana, Burns' E. S. 1901, §§ 3387a, 3388a, 6983 ; Pennsylvania, P. & L. Dig. 2904 ; Elsey v. McDaniel, 95 Pa. St. 472 ; Hall v. Walker, 1896, 118 N. C. 377; 24 S. E. 6; Bennett v. Pierce, 1898, 45 W. Va. 654; 31 S. E. 972. 66 Pike v. Clark, 40 N. H. 9; 77 Am. D. 698; Eichards v. McClel- land, 29 Pa. St. 385. "Compare Ehea v. Ehenner, 1 Pet. 105, with Gallagher v. Delargy, 57 Mo. 29, 37. § 364 CONVEYANCES OP MARRIED WOMEN'S INTERESTS. 439 2. In other states a wife may convey the legal title to her land without her husband's joining in, or assenting to, her conveyance ; but as he has an inchoate interest in her land, her deed without his joining will not release or convey his interest. Such states are, for example, Illinois, Iowa, Kansas, Ohio and Oregon. 58 3. In still other states a married woman may convey her land without the joinder or assent of her husband, and her grantee will take title free from any right or in- terest on the husband's part. The statutes of such states have given her power to convey alone and have excluded his rights to such an extent that he has an interest if he survives her in that part only of her real property which is left at her death undisposed of. Among the states of this class are Arkansas, Colorado, Michigan and New York, besides other states (e. g. North and South Dakota and Utah) whose statutes have either limited curtesy to such realty as the wife has at her death or have expressly abolished it and have, at the same time, conferred upon a wife the power to convey her lands as if sole. 59 § 364. Whether husband and wife should join as grantors or merely execute the deed. — Where the statute either expressly or by implication requires the husband to join in the deed of his wife's lands, they generally both appear as grantors in a single deed, the husband not 68 111. R. S., ch. 41, § 1; ch. 68, § 9; Heisen v. Heisen, 1893, 145 111. 658; 34 N. E. 597; Center v. Elgin Banking Co., 1900, 185 111. 534; 57 N. E. 439; Iowa Code 1897, §§ 2919, 3366; Kansas Stat. 1901, §§ 4020, 2529; Jenkins v. Dewey, 1892, 49 Kan. 49; 30 Pac. 114; Velten v. Car- mack, 1892, 23 Ore. 282; 31 Pac. 658; 20 L. E. A. 101; Ohio E. S., §§ 3114, 4188. 59 Hampton v. Cook, 1897, 64 Ark. 353; 42 S. W. 535; Colorado Cen- tral E. Co. v. Allen, 13 Colo. 229; 22 Pac. 605; Michigan C. L. 1897, § 8690; Hill v. Chambers, 30 Mich. 422; Frickee v. Donner, 35 Mich. 151; Hatfield v. Sneden, 54 N. Y. 280; Mygatt v. Coe, 1897, 152 N. Y. 457, 460 ; 46 N. E. 949. 440 THE LAW OP CONVEYANCING. § 364 merely signing his wife's conveyance in token of his assent. Under the statutes and decisions of some states this is the only proper method. 60 There are, however, decisions holding that it is enough if he expresses his as- sent to her conveyance under his hand and seal, without joining in the granting clause, 61 especially if the deed is acknowledged by both husband and wife. 62 Whether the husband should actually join as grantor in the conveyance or should simply sign and seal it, will depend not only upon the extent of his interest in his wife's lands, 63 but upon the terms of the statute requiring his concurrence, for a statute requiring his "assent" simply may well be construed differently from one re- quiring a "joint deed." Even where the latter is required to convey the legal title, a conveyance by a married woman to which her husband has assented by executing it (though not by joining as grantor) maybe valid as a contract to convey ; 6i and it may be that under some statutes the husband's assent may be shown without his even executing the con- veyance, 65 though generally parol evidence of his assent would not be admissible, as it must be shown by at least his signature to the deed. 66 So, on the other hand, the wife should be named in the deed of conveyance as grantor, for merely signing, 60 Warner v. Peck, 11 R. I. 431; Weber v. Tanner, 1901 (Ky.); 64 S. W. 741; Adams v. Teague, 1898, 123 Ala. 591; 26 So. 221; 82 Am. St. R. 144; Dietrich v. Hutchinson, 1901, 73 Vt. 134; 50 Atl. 810; 87 Am. St. R. 698. See Collins v. Cornwell, 1891, 131 Ind. 20; 30 N. E. 796. 61 Schley v. Pullman Co., 120 U. S. 575; Clark v. Clark, 16 Ore. 224; 18 Pac. 1 ; Morgan v. Snodgrass, 1901, 49 W. Va. 387; 38 S. E. 695. 63 Peter v. Byrne, 1903 (Mo.) ; 75 S. W. 433. 63 Dietrich v. Hutchinson, 1901, 73 Vt. 134; 50 Atl. 810; 87 Am. St. R. 698. "Rushton v. Davis, 1900, 127 Ala. 279; 28 So. 476. 65 See Lynch v. Moser, 1900, 72 Conn. 714; 46 Atl. 153. 66 Buchanan v. Hazzard, 95 Pa. St. 240; Melley v. Casey, 99 Mass. 241; Green v. Bennett,. 1897, 120 N. C. 394; 27 S. E. 142. § 365 CONVEYANCES OF MARRIED WOMEN'S INTERESTS. 441 sealing and acknowledging the deed on her part, in which her husband is the only grantor named, will not convey her estate. 67 § 365. The married woman's acknowledgment — The separate examination. — The requirement as to the mar- ried woman's separate examination before she can make a proper acknowledgment to a deed, which has existed at some time in most of the states, 68 and which still exists in several, was intended to answer the purposes of a fine under the older law. The object of requiring a deed ac- knowledged in this manner -was to make more simple the conveyance of real property by the married woman, and at the same time to protect her from her husband's com- pulsion. 69 As the acknowledgment of a married woman became, under statutes permitting her to convey by deed acknowl- edged, a necessary part of the execution of her convey- ance, the effect of a failure to comply with the statute is very different from the effect of non-compliance with stat- utory forms and requirements concerning acknowledg- ments in other cases. The general rule as to the ac- knowledgment of others than married women is that it is not essential to the validity of the conveyance as between the parties, 70 but the conveyance of a married woman without an actual acknowledgment, and without a proper certificate of that fact has repeatedly been held void wherever legislation has not enabled her to convey as others convey. 71 And being thus void it has been held 6, Batchelor v. Brereton, 112 U. S. 396; Bradley v. Missouri Pac. R. Co., 91 Mo. 493 ; 4 S. W. 427. See ante, § 37. 68 No separate examination seems to have been required in Maine, Massachusetts, New Hampshire and Vermont. 69 Hitz v. Jenks, 123 TJ. S. 297, 301 ; Harkins v. Forsyth, 11 Leigh (Va.) 294, 300. '"Ante, §261. " Mettler v. Miller, 129 111. 630 ; 22 N. E. 529 ; Evans v. Dickenson, 1902, 114 Fed. 284; Wilson v. Wilson, 1899,6 Idaho 597; 57 Pac. 708; Krieger v. Crocker, 1893, 118 Mo. 531; 24 S. W. 170; Spencer v. Reese, 1895, 442 THE LAW OF CONVEYANCING. § 365 that a married woman's deed not properly acknowledged and certified will not be enforced in equity as a contract to convey, 72 nor reformed in equity by amending defects in the method of execution, because the power to convey, depending on the mode of its execution, "to amend the mode is to create the power." 73 And so where a bill was filed against husband and wife for the specific performance of a contract to exchange lands, the lands involved being the wife's, who had signed, but not acknowledged, the contract and refused to perform it, the court in dismissing the bill said: "The rights and powers of a married woman have been sub- stantially revolutionized in recent years. But the mode of exercising them in the alienation of her land has re- mained without change for more than a century." 74 In another case 75 a married woman had made a con- veyance, and afterwards again conveyed the property. There were defects in the certificate of acknowledgment to the first deed, and the court held that this deed, with the defective certificate of acknowledgment, was not merely voidable, but void ab initio, and that the paper, though in form a deed, was no deed, and as to her passed no title whatever, legal or equitable; hence, the title remained in her, and she could, and did, convey by her subsequent deed. And even though her subsequent grantee had notice of the former seeming deed it did not alter the case, because his notice of that was in legal effect notice of nothing, as that deed was nothing in law. Nor did the second grantee hold as trustee for the former, nor could the married woman ratify, by admissions, pleadings, etc., 165 Pa. St. 158; 30 Atl. 722; First National Bank v. Paul, 75 Va. 594; 40 Am. R. 740. See cases cited in the five notes following. 72 Wambole v. Foote, 2 Dak. 1 ; Bagby v. Emberson, 79 Mo. 139. ' s Silliman v. Cummins, 13 Ohio 116. "Bingler v. Bowman, 1899, 194 Pa. St. 210; 45 Atl. 80. See, how- ever, Pa. L. 1901, p. 67, abolishing the "separate examination.'' 75 Central Land Co. v. Laidley, 32 W. Va. 134; 9 S. E. 61; 3 L. R. A. 826; 25 Am. St. R. 797. § 366 CONVEYANCES OF MARRIED WOMEN'S INTERESTS. 443 a deed so defective as the former deed was; and the only- way the defect could be cured was by executing another deed properly acknowledged, or by reacknowledging the old deed. The conclusion was that the second purchaser's title was perfect, and the money paid by the first as a con- sideration was not a lien on the land. In a very recent case 7G the court, with evident reluc- tance because of the hardship inflicted on the defendants, held that a married woman who had permitted her grantee and subsequent grantees to take possession of land and make valuable improvements on it, could recover the land and improvements, because her deed, though executed according to the laws of the state where she lived, was void in the state where the land lay, as there had been no acknowledgment and privy examination of the grantor. § 366. How far the separate examination must now be regarded. — The tendency of legislation is to do away with the privy examination of the married woman and to place her acknowledgment, so far at least as its form is con- cerned, on the same footing as that of any other person. 77 It is to be noted, however, that while a separate exam- ination of the wife may not now be necessary in a particu- lar state for her acknowledgment to conveyances in gen- eral, it may still be required in certain cases, as, for ex- ample, where she releases dower 78 or homestead. 79 And though the separate examination is not now nec- essary in most states, nevertheless in the investigation of ' 6 Smith v. Ingram, 1903, 132 N. C. 959; 44 S. E. 643; 130 N. C. 100; 40 S. E. 984. 77 A separate or privy examination appears to be necessary now in the following states only, and is not necessary in all of these for ordinary conveyances (see the two notes following) : Alabama, Arkansas, Dela- ware, Florida, Idaho, Kentucky, New Jersey, Nevada, North Carolina, South Carolina, Tennessee, Texas, Wyoming. 78 Arkansas S. & H. Dig. 1894, §§ 705, 716; McKenzie v.Sifiord, 1897, 52 S. C. 104; 29 S. E. 388. 79 Alabama Code, § 2034; Burrows v. Pickens, 1901, 129 Ala. 648; 29 So. 694; Wyoming, E. S. 1899, §§ 2732, 2747, 2770, 2973. 444 THE LAW OF CONVEYANCING. § 366 titles and in the trial of actions relating to titles one must remember that -the former law was generally different from what it is now; and even though it was changed some years ago, it may be important for him at the pres- ent time to ascertain its details. It is obviously too much to expect that anyone can remember just what changes have been made and when, but he should remember that there have been in most states changes in this regard, and should look them up before passing upon a title or trying a case in which title is involved. For example, in an action of ejectment decided in 1893, 80 the plaintiff claimed title through mesne convey- ances from a deed executed in 1870 by M. E. and her husband. Title was in M. E. when she conveyed. The plaintiff offers the deed in evidence. The certificate is given in full in the report, and recites that the husband and wife appeared before the officer, were personally known to him, and that they acknowledged it, etc., and then proceeds: "And she, the said M. E., having been by me first made acquainted with the contents of said in- strument of writing, acknowledged that she executed the same freely and without compulsion or undue influence of her said husband." The certificate failed to show that she was examined separate and apart from her husband, as the law then required. Defendant objected to the ad- mission of the deed on this ground, and, while the plain- tiff contended that this objection was purely technical, the court held the deed null and void, and that it transferred no title. So, although the separate examination of a married woman was abolished in New York in 1879, it became necessary in 1893 to consider an acknowledgment made in 1846. 81 The action in this case was to restrain defend- ant from building in front of his premises on a portion of ^Krieger v. Crocker, 1893, 118 Mo. 531 ; 24 S. W. 170. 81 Bradley v. Walker, 1893, 138 N. Y. 291 ; 33 N. E. 1079. 4 367 CONVEYANCES OF MARRIED WOMEN'S INTERESTS. 445 his lot, which it was claimed by the plaintiff was agreed in 1846 to be kept open, the agreement to that effect be- ing recorded. But the then owner was a married woman, and by the agreement of 1846 a servitude was attempted to be imposed upon .her separate property. The certifi- cate to the agreement does not show a private examina- tion, etc. Hence it was not, as against her, entitled to record. Nor was the record notice, nor could the tran- script of the record be received in evidence, nor, it seems, could the original, if produced. The main question in this case was one of evidence, but the court substantially holds her agreement, so defectively acknowledged, void as to her. §367. How far compliance with statutory provisions as to particulars is necessary. — It is the general rule that the omission of any of the essential features of a married woman's acknowledgment which distinguish it from an ordinary acknowledgment — as, her examination apart from her husband, explanation of the instrument to her, her acknowledgment of its execution without fear, etc., etc. — renders the acknowledgment, and therefore the con- veyance, fatally defective. Not only in taking the acknowledgment, but in certify- ing to it, there has often been required a more nearly literal compliance with the statute than has been con- sidered necessary in other cases. Therefore in drawing certificates of acknowledgment in the states where the separate or privy examination is still necessary the prudent course is to follow the statute literally. There are, however, recent decisions holding certificates of acknowledgment valid which would formerly probably have been held invalid. 82 But there always must be at least a substantial compliance with statutory require- ments. 83 . 88 Geil v. Geil, 1903 (Va.); 9 Va. L. Reg. 530; 45 S. E. 325; Curtis v. Bunnell &c. Co., 1898, 6 Idaho 298; 55 Pac. 659. 63 Wilson v. Wilson, 1899, 6 Idaho 597; 57 Pac. 708; Cox v. Holcomb, 446 THE LAW OP CONVEYANCING. § 368 § 368. Conveyances between husband and wife. — The doctrine of the common law that husband and wife can- not convey to each other has long been well settled. The authorities are not agreed, however, upon the reasons for this doctrine. Many hold that its reason is that the legal existence of the wife is suspended during marriage, or merged in that of the husband. This not entirely satis- factory explanation is given in perhaps most of the cases where the question is discussed. Others maintain that the explanation of the doctrine is that the wife, though legally existent, is under the dominion of the husband, and so presumably acts under his coercion. This, how- ever, does not quite explain why a conveyance by a hus- band to his wife is not valid. Judge Cooley, speaking of the common law rule that the husband could not directly convey to his wife, says : " Perhaps there was no sufficient reason why such a con- veyance should not have been allowed at common law, but as it was not it is necessary to find when and how the common law was changed in this regard;" 84 and the matter is sometimes disposed of as follows: "It is not necessary for us to answer the inquiry which has been made, 'why a deed from a husband to his wife should not be a valid conveyance,' in any other manner than by ob- serving that the law of the land declares such a deed to be a mere nullity." 85 The reason might, perhaps, be of little importance were it not that the construction of the recent statutes affecting property rights of husband and wife will be found to de-' pend somewhat upon what the court construing the par- ticular statute regards as the basis of the common law rule. 85a 87 Ala. 589; 6 So. 309; 13 Am. St. R. 79; Mettler v. Miller, 129 111. 630; 22 N. E. 529; Spencer v. Reese, 1895, 165 Pa. St. 158; 30 Atl. 722. "Ransom v. Ransom, 30 Mich. 328. 85 Martin v. Martin, 1 Maine 394. »• See post, §§ 371, 375. § 368 CONVEYANCES OP MARRIED WOMEN 's INTERESTS. 447 In this connection it may be noted that Pollock & Mait- land 86 express the view that the fundamental principle underlying the subject of the property relations of hus- band and wife is that the husband is the wife's guardian, and they observe that this explains a great deal "when we remember that guardianship is a profitable right." Fur- ther: " In particular we must be on our guard against the common belief that the ruling principle is that which sees a 'unity of person' between husband and wife. This is a principle which suggests itself from time to time; it has the warrant of holy writ; it will serve to round a par- agraph, and may now and again lead us out of or into a difficulty, but a consistently operative principle it cannot be." 87 The common law rule has been affected practically by three different causes : 1. By the practice of having the conveyance between husband and wife made through some third person. 2. By the influence of courts of equity. 3. By statutes, which either expressly change the com- mon law rule, or which have been construed by the courts to have had the effect of changing it. It has resulted from these combined causes that the old rule of the common law appears at the present time to be almost wholly done away with. The subject is, however, affected by certain matters that should be considered in each particular case ; as, for example, which is grantor, the husband or the wife? or, what is the nature of the estate or interest sought to be disposed of? Is it separate property or is it some in- terest or estate growing out of the marriage relation, like curtesy or dower? or is it a "homestead" right? or is a joint conveyance of husband and wife ordinarily, in the particular jurisdiction, required? 88 Poll. and Mait. His. Eng. Law, II, p. 403. B 'See Poll, and Mait. His. Eng. Law, I, p. 468. 448 THE LAW OF CONVEYANCING. § 369 § 369. Conveyances between husband and wife through a third person. — It is now recognized that there is no legal impediment to this method, and it is very commonly resorted to. Where a husband must join in a deed of the wife's real property, the conveyance by both of them to a third person with the intention that the third person shall convey to the husband is valid. When the third person conveys to the husband in accordance with the understanding, the husband has good title. 88 So, if the husband, for the purpose of preventing his real property from being taken by bis creditors, voluntarily conveys it to his wife through a third person without fraud on her part, he himself cannot obtain a cancellation of the con- veyance. 89 Where it is the wife's property that is conveyed to the husband in this way, a court of equity will generally set aside the conveyance upon less evidence of coercion or undue influence than is required in other cases. It has been held that the conveyance of the wife's estate for the husband's use will be held void, unless it affirmatively appears from the attending circumstances or otherwise that the deed was her voluntary act and not induced by undue influence on the part of her husband; and that the court is disposed to impute a deed to a husband through a third person to influence rather than to love and affec- tion, though this presumption may be overcome by show- ing that the transaction was fair. 90 § 370. Equitable view of conveyances between hus- band and wife. — The rule of the common law that hus- band and wife could not directly convey to one another has been affected by the doctrine of courts of equity. This 88 Leach v. Rains, 1897, 149 Ind. 152 ; 48 N. E. 858 ; Wicks v. Dean, 1898, 103 Ky. 69 ; 44 S. W. 397. 89 Fitzgerald v. Fitzgerald, 1897; 168 Mass. 488; 47 N. E. 431. 80 Darlington's Appeal, 86 Pa. St. 512 ; 27 Am. E. 726 ; Allen v. Drake, 1891, 109 Mo. 626, 641 ; 19 S. W. 41 ; Boyd v. De La Montague, 73 N. Y. 498, 502. § 371 CONVEYANCES OF MAKRIED WOMEN'S INTERESTS. 449 equitable doctrine is, that whenever such a conveyance would have been good at law if made through the inter- vention of a trustee, it will be sustained in equity though made directly between the parties. This doctrine is espe- cially applicable in cases of conveyances directly by the husband to the wife, and such conveyances, in spite of the common law rule, will be sustained in equity when the rights of creditors are not interfered with. 91 In such cases, though the legal title may remain in the husband, he is in equity a trustee for his wife; equity exercises a jurisdiction not possessed by common law courts. Many of the decisions speak of conveyances from husband to wife as invalid in law, but valid in equity, though in some states this distinction may practically be more imag- inary than real; "the distinction between actions at law and suits in equity is abolished. There is but one form of action. Why then shall we longer speak of the same instrument as void in law but valid in equity?" 92 Later decisions upholding conveyances made directly from hus- band to wife in such states do not discuss the distinction between law and equity. 93 § 371. Rule as to conveyances between husband and wife affected by statute. — The so called married women's acts have modified the common law rule as to convey- ances between husband and wife, but have not always been construed by the courts as might have been expected. That conflicting constructions have been placed upon similar statutes in different states has been due to the greater or less conservatism of particular judges, or to 91 Moore v. Page, 111 U. S. 117; Crooks v. Crooks, 34 Ohio St. 610; Sims v. Rickets, 35 Ind. 181; 9 Am. E. 679; Turner v. Shaw, 96 Mo. 22; 8 S. W. 897; 9 Am. St. E. 319; Ogden v. Ogden, 1894, 60 Ark. 70; 28 S. W. 796 ; 46 Am. St. E. 151 ; Barnum v. Le Master, 1903 (Term.) ; 75 S. W. 1045. 92 Thompson v. Mills, 39 Ind. 528, 532. "Building Ass'n v. Scanlan, 1895, 144 Ind. 11; 42 N. E. 1008. 29 — Bbews. Con. 450 THE LAW OF CONVEYANCING. § 371 prejudices and local influences and differences in the course and history of legislation on the subject. Upon one point there appears to be little conflict : where statutes allow married women to hold and convey real estate but also require that the husband shall join in the wife's conveyance, she cannot convey directly to him. The reason generally given for this rule is that the hus- band cannot be both grantor and grantee in the same deed, as he must be if the statutory requirement is ful- filled, while if it is not fulfilled his wife's deed is invalid in law. The only way, therefore, in such states for her to convey to him is through a third person, even though in the same states he may convey directly to her. 94 Where, however, one statute provides that a married woman cannot alienate her lands without the assent and concurrence of her husband, to be manifested by his join- ing in the conveyance, but another provides "the hus- band and wife may contract with each other, but all con- tracts into which they enter are subject to the rules of law as to contracts by and between persons standing in confi- dential relations," it has been held that a sale and con- veyance of land is a contract, that the two statutes must be construed together, and that the provisions of the for- mer apply only to conveyances by a wife, to a person other than her husband, therefore she may convey to him. 95 The statutes of other states may be, first, those expressly permitting contracts and conveyances between husband and wife, or second, those simply referring to the wife's disabilities. Statutes of the former class declare in general terms that a conveyance executed by either husband or 94 Johnson v. Jouchert, 1890, 124 Ind. 105; 24 N. E. 580; 8 L. R. A. 795; Rico v. Brandenstein, 1893, 98 Cal. 465; 33 Pac. 480; 20 L. R. A. 702; 35 Am. St. R. 192; Bohannon v. Travis, 1893, 94 Ky. 59; 21 S. W. 354; Riley v. Wilson, 1893, 86 Texas 240; 24 S. W. 394; Worrell v. Drake, 1903 (Tenn.); 75 S. W. 1015. 95 Osborne v. Cooper, 1896, 113 Ala. 405 ; 21 So. 320 ; 59 Am . St. R. 117. § 371 CONVEYANCES OP MAERIED WOMEN'S INTERESTS. 451 wife to the other shall be valid to the same extent as be- tween other persons, or they provide that husband or wife may enter into any transaction with the other which either might if unmarried; 96 though some of the statutes of this character have added to them the qualification that trans- actions between husband and wife are subject to the rules of law applicable to contracts between persons standing in confidential relations, 97 or are qualified by other stat- utes excluding interests growing out of the marriage rela- tion — dower, curtesy and analogous interests — from the classes of property as to which husband and wife may con- tract with each other. 98 Statutes of the second class just referred to are those enabling the married woman to hold and convey land "as if unmarried" or "in like manner as her husband or any other person." Such statutes have been construed by many courts as doing away with the common law rule, although they do not specially refer to conveyances by a wife to her hus- band. By these courts the disability of the married woman is regarded as the basis of the rule, and as this disability is removed by such statutes, it is considered that either one may convey directly to the other without the intervention of a third party. 99 On the other hand it has been considered that statutes 96 For example, see N. H. Pub. Stat. 1901, ch. 176, § 3; N. Y. R. S. & G. L. Birdseye's Ed. 1901, I, p. 1048, §26; N. Dak. Co. 1899, §2767; R. I. R. L. 1896, ch. 194, §§ 3, 5; Utah R. S. 1898, § 1200; Wis. R. S. 1898, § 2342. 97 For example, Ala. Co., § 2529; Nev. C. L. 1900, § 528; Crawford v. Crawford, 1899, 24 Nev. 410; 56 Pac. 94; Ohio R. S., §3112; S. Dak. Civ. Co. 1901, §3501. As to the rules applicable when such relations exist, see Pomeroy Eq. Jur., §§ 956, 1053; Harraway v. Harraway, 1903, 136 Ala. 499; 34 So. 836. 98 Newberry v. Newberry, 1901, 114 Iowa 704 ; 87 N. W. 658 ; Potter v. Potter, 1903 (Ore.) ; 72 Pac. 702. "Despain v. Wagner, 1896, 163 111. 598; 45 N. E. 129; Wells v. Cay- wood, 3 Colo. 487; Burdeno v. Amperse, 14 Mich. 91; Ransom v. Ran- som, 30 Mich. 328; Savage v. Savage, 80 Maine 472; 15 Atl. 43. 452 1HE LAW OF CONVEYANCING. § 372 conferring upon the wife the capacity of a feme sole do not abrogate the common law rule, for no such question can arise as to a feme sole and that it is not the disability of the wife alone that renders such conveyances void, but that the husband was at common law as much disabled to take from her as she was from him, and that this com- mon law disability should be expressly removed by statute before conveyances can be made from one to the other. 100 Hence, where this view is taken later statutes have been sometimes enacted, 1 especially permitting con- veyances between husband and wife. § 372. Dower and its statutory substitute. — In the United States the matter of the rights of a surviving wife in the lands of her husband is so far regulated by statute that it is perhaps correct to say, speaking strictly, that the common law estate of dower hardly exists. In about half the states it exists in name, and in most of these the more important of its old characteristics are preserved. In many states dower has been expressly abolished, but in its place an interest or estate has, in some of these states, been created more valuable to the wife than dower, and which it is therefore even more important to the purchaser of the husband's title to have released or barred than it ever has been to have dower released or barred. Where it has been thus abolished and a statutory substitute sup- plied, the courts and the legal profession continue to use the term "dower" as applied to this substitute. 2 And many of the principles applicable to the release of dower will be found to apply in those states where it has been abolished. § 373. Generally no act of the husband alone can de- feat dower — Exceptions to this rule. — It is a general rule 100 Dean v. Metropolitan E. Co., 1890, 119 N. Y. 540; 23 N. E. 1054; White v. Wager, 25 N. Y. 328; Aultman v. Obermeyer, 6 Neb. 260. 1 For example, in New York, see supra, note 96. "For example, see Daugherty v. Daugherty, 69 Iowa 677; 29 N.W. 778. § 373 CONVEYANCES OF MARRIED WOMEN'S INTERESTS. 453 that no act or conveyance of a husband without the concurrence of his wife can defeat her right of dower. 3 This is generally true also of the statutory substitute for dower in those states where dower has been abolished or substantially modified. 4 But a purchase money mortgage made by the husband alone, that is, a mortgage given by him to his vendor to secure the payment of the purchase price of land bought by him, is superior to his wife's interest, though given without her consent, 5 as is also a vendor's lien for the price where this is recognized. 6 Moreover, where a dedication of land has been made by the husband alone to public uses, as for markets, streets or parks, the wife is not dowable in the land, 7 and this rule has been held to apply where the conveyance has been made for purposes not in the fullest sense- public, for example for railroad purposes. 8 It is therefore generally important for a purchaser in most states that a wife should join in her husband's con- veyance of lands. In a few states, however, though provision is made for a wife if she survive her husband, he may transfer his 8 House v. Jackson, 50 N. Y. 161 ; Grady v. McCorkle, 57 Mo. 172; 17 Am. E. 676. 4 Indiana, Burns' E. S. 1901, §2652; Iowa Code, §3366; Kansas Gen. Stat. 1901, § 2510; Minnesota Gen. Stat. 1894, § 4471 ; Utah E. S. 1898, § 2826. 6 Denton v. Arnold, 1898, 151 Ind. 188; 51 N. E. 240; Hurst v. Dula- ney, 1891, 87 Va. 444; 12 S. E. 800; Frederick v. Emig, 1900, 186 111. 319 ; 57 N. E. 883. By statute in Illinois and Indiana as in other states. For example, Michigan C. L. 1897, §8921; Nebraska Com. Stat. 1901, § 2517; New York Eeal Prop. L.,Art. V, § 173; Wisconsin Stat. 1898, § 2163. 6 Elliott v. Plattor, 43 Ohio St. 198; 1 N. E. 222; Noyes v. Kramer, 54 Iowa 22; Cocke v. Bailey, 42 Miss. 81. 'Duncan v. Terre Haute, 85 Ind. 104; Gwynne v. Cincinnati, 3 Ohio 24; 17 Am. D. 576. 8 Venable v. Wabash Ey. Co., 1892, 112 Mo. 103; 20 S. W. 493; 18 L. E. A. 68; Baker v. Atchison &c. E. Co., 1894, 122 Mo. 396; 30 S. W. 301. But see contra, Nye v. Taunton Ey. Co., 113 Mass. 277. 454 THE LAW OF CONVEYANCING. § 374 land during his life without her concurrence and is re- lieved from all claims by her, provided the transaction is not merely colorable and a fraud on her. 9 And as in a few other states, for example Michigan, Nebraska and Wiscon- sin, a non-resident wife is entitled to dower only in the lands of which her husband dies seised, she need not join in his conveyance. 10 In a few states 11 while a resident married man whose wife is not, and never has been, a resident of the state may convey his lands without her concurrence, it is im- portant for her to join in his conveyance if she has been at any time a resident of the state. 12 § 374. Inchoate right of dower not strictly property — Eeleased not conveyed. — While this inchoate interest of the wife is necessarily considered in conveyancing, we do not properly speak of a conveyance of "dower." This interest of the wife while for some purposes considered an interest in lands, is not generally regarded as property in the ordinary sense, but as a right incident to another thing: namely, the estate of her husband in the land. 13 During the life of the husband and up to the time of its 9 Phillips v. Phillips, 1903, 30 Colo. 516; 71 Pac. 363; Smith v. Smith, 1896, 22 Colo. 480; 46 Pae. 128; 34 L. E. A. 49; 55 Am. St. E. 142; Flowers v. Flowers, 1892, 89 Ga. 632; 15 S. E. 834; 18 L. E. A. 75; Thayer v. Thayer, 14 Vt. 107 ; 39 Am. D. 211. See Connecticut Gen. Stat. 1902, §§ 386, 391 ; Tennessee Co. 1896, §§ 4139, 4140, 4149. "Michigan C. I,. 1897, § 8938; Ligare v. Semple, 32 Mich. 438; Ne- braska Com. Stat. 1901, § 2533 ; Atkins v. Atkins, 18 Neb. 474 ; 25 N. W. 724 ; Wisconsin Stat. 1898, § 2160. See Bennett v. Harms, 51 Wis. 251, holding that the non-residence intended is at the time of death ; it would seem, therefore, better that a non-resident wife should join, as she might be resident at the time of her husband's death, though she was not at the time of his conveyance. 11 Kansas Gen. Stat. 1901, §2510; Montana Civ. Co. 1895, § 233- Utah E. S. 1898, § 2826. 12 Kennedy v. Haskell, 1903 (Kan.) ; 73 Pac. 913. "See Hoy v. Varner, 1902, 100 Va. 600; 42 S. E. 690; 8 Va. L. Eeg. 666; Haggerty v. Wagner, 1897, 148 Ind. 625; 48 N. E. 366; Flynn v. Flynn, 1898, 171 Mass. 312; 50 N. E. 650; Penfold v. Warner 1893 96 Mich. 179; 55 N. W. 680. § 375 CONVEYANCES OF MARRIED WOMEN'S INTERESTS. 455 "assignment" to the widow, dower is an interest which cannot be bargained, sold and conveyed in the ordinary sense, but may be released, relinquished or barred. Hence where the conveyance by the husband of his lands, in which his wife joins, is set aside as fraudulent against creditors, 14 or because of his incapacity, 15 her interest is revived or re-established. On the same principle, there must be a conveyance of the husband's lands; for if husband and wife join in a deed for the purpose of conveying her inchoate interest alone, while the fee remains in him, the deed is a nullity. 16 She cannot, therefore, release her dower to one who does not in some way hold under her husband ; her release cannot be to a mere stranger. 17 So, generally, after the death of her husband, unas- signed dower is not the subject of sale and transfer in law, but of release to one who has the fee. 18 § 375. Wife cannot generally release dower to her husband. — In the absence of a statute permitting her to do so, a wife cannot bar her dower by a release to her hus- band during coverture, 19 and the married women's acts removing the wife's disabilities and giving her power to contract with reference to her property have more gen- erally been considered not to have affected this common "Hinchliffe v. Shea, 103 N. Y. 153; Frederick v. Emig, 1900, 186 111. 319, 322; 57 N. E. 883 ; Wells v. Estes, 1900, 154 Mo. 291, 297 ; 55 S.W. 255. "Brothers v. Bank, 1893, 84 Wis. 381, 396; 54 N. W. 786. "Davenport v. Gwilliams, 1892, 133 Ind. 142; 31 N. E. 790. "Reiff v. Horst, 55 Md. 42; Hart v. Burch, 130 111. 426; 22 N.E.831; 6 L. E. A. 371; French v. Lord, 69 Maine 537; Mason v. Mason, 140 Mass. 63; 3N. E. 19. 18 Fletcher v. Shepherd, 1898, 174 111. 262; 51 N. E. 212; Grubbs v. Leyendecker, 1899, 153 Ind. 348; 53 N. E. 940. Though by virtue of statute unassigned dower may be transferred by the widow in some states. For example, Missouri R. S. 1899, § 2934 ; and it may be trans- ferred in equity. Mut. Life Ins. Co. v. Shipman, 1890, 119 N. Y. 324, 330. 19 Wilber v. Wilber, 52 Wis. 298; 9 N. W. 163; Pillow v. Wade, 31 Ark. 678; Eowe v. Hamilton, 3 Maine 63. 456 THE LAW OF CONVEYANCING. § 376 law rule; 20 though in Michigan it is settled that, because of the statutes enlarging in general a wife's powers, she may release her dower directly to her husband, provided there is a fair consideration for her release. 21 A wife may, however, in some states contract with her husband to release or extinguish her inchoate interest in his lands in consideration of receiving its equivalent in value; 22 while, on the other hand, the policy of the com- mon law inhibiting such contracts is in some states pre- served by express statutes, though the married woman's general disabilities are to a great extent removed in the same states. 23 Agreements between husband and wife under which they are to live separate and by the terms of which each one gives up all interest in the estate of the other, have been held, in some cases, not to bar the wife's dower, 24 while in others their validity has been sustained and her dower held to have been barred. 25 § 376. Eelease of dower generally by deed of husband and wife. — While, therefore, dower is not property, strictly speaking, it has nevertheless generally been con- sidered such an interest in lands as to require under the statute of frauds some instrument in writing for its re- *°Pinkham v. Pinkham, 1901, 95 Maine 71; 49 Atl. 48; 85 Am. St. R. 392; Land v. Shipp, 1900, 98 Va. 284; 36 S. E. 391; 50 L. R. A. 560. "Rhoades v. Davis, 51 Mich. 306; 16 N. W. 659; Dakin v. Dakin, 97 Mich. 284; 56 N. W. 562; in the Virginia case, Land v. Shipp, supra, decided under statutes similar to those of Michigan, this doctrine is criticised. "Higgins v. Ormsby, 1901, 156 Ind. 82, 85; 59 N. E. 321; McBreen v. McBreen, 1900, 154 Mo. 323; 55 S. W. 463; 77 Am. St. R. 758. See Luttrell v. Boggs, 1897, 168 111. 361 ; 48 N. E. 171. 2 ' Newberry v. Newberry, 1901, 114 Iowa 704; 87 N. W. 658; Potter v. Potter, 1903 (Ore.) ; 72 Pac. 702. "Land v. Shipp, 1900, 98 Va. 284; 36 S. E. 391; 50 L. R. A. 560; Stephenson v. Osborne, 41 Miss. 119; 90 Am. D. 358; Whitney v. Closson, 138 Mass. 49. 85 Hitner's Appeal, 54 Pa. St. 110 ; Scott's Estate, 1892, 147 Pa. St. 102. See cases cited in note 22, supra. § 376 CONVEYANCES OP MARRIED WOMEN'S INTERESTS. 457 lease ; a wife cannot bar her dower by parol. 26 And, gen- erally speaking, if the writing is anything short of a deed properly executed it will not amount to a release. Statutes usually make provision for the release by the wife during coverture of her interest, and the statutory provisions must be strictly complied with. Where a statute requires an acknowledgment, a convey- ance of the husband joined in by the wife but not prop- erly acknowledged will not bar her dower, 27 nor will one where there is no separate examination of the wife in states where the separate examination is required, 28 and in general the same rules are applied concerning the ac- knowledgment of the wife's release of dower as are applied to her acknowledgment of other deeds. The general rule is that the wife must join in her hus- band's conveyance of his lands in order to release her interest in them ; 29 and there have been decisions that she should expressly state in the conveyance that she executes it for the purpose of releasing dower. 30 But it has also been held that a joint deed of husband and wife will bar her dower though it contains no express relinquishment. 31 It seems that the common and proper practice in the greater number of states is for the wife to join with her husband in the granting clause of the conveyance. There are exceptional cases where the wife's merely signing her husband's deed has been considered enough, though she is not mentioned in the deed, either as a grantor or as re- 26 Davis v. Davis, 61 Maine 395 ; Worthington v. Middleton, 6 Dana 300; Wright v. DeGroff, 14 Mich. 164; Carnall v. Wilson, 21 Ark. 62; Davis v. McDonald, 42 Ga. 205. "Maynard v. Davis, 1901, 127 Mich. 571; 86 N. W. 1051; Grove v. Todd, 41 Md. 633; 20 Am. E. 76. 28 Stidhamv. Matthews, 29 Ark. 650; Hand v. Weidner, 1892, 151 Pa. St. 362; 25 Atl. 38. 89 As to the release of an insane wife's dower, see ante, p. 423. "> Lathrop v. Foster, 51 Maine 367.; Carter v. Goodin, 3 Ohio St. 75, 78; Leavitt v. Lamprey, 13 Pick. 382; 23 Am. Dec. 685. 31 Jones v. Des Moines, 43 Iowa 209; Learned v. Cutler, 18 Pick. 9. 458 THE LAW OF CONVEYANCING. § 377 leasing her interest, 32 but this is clearly not the best prac- tice. A wife's sole or separate deed (made after a deed by her husband) will not generally release her rights in his lands, unless such a deed is expressly authorized by stat- ute. It is therefore so authorized in a few states, among them Alabama, Maine, Massachusetts and Michigan. 33 § 377. Married women's powers of attorney to convey lands or release dower. — A married woman not having capacity at common law to convey real property by at- torney, the same rule prevails in those states where it has not been changed by statute. 34 Statutes, however, empowering her to convey her land without expressly authorizing her to convey by attorney have been construed as authorizing her to do so, on the general ground that the power to convey directly includes the power to appoint an attorney to do the same thing. 33 On the other hand there have been decisions holding that where she may convey by deed acknowledged after a "separate examination," she may not convey by attorney, since she cannot delegate to another the power given to her by statute to convey in this particular way. 36 To remove all doubt statutes have been enacted in many states expressly authorizing a married woman to convey » Lancaster v. Roberts, 144 111. 213, 222. "Ala. Co., §§ 1509, 1510; Maine R. S., ch. 103, § 6; Mass. R. L. 1902, ch. 132, § 5; Mich. C. L. 1897, § 8930; but the Michigan statute pro- vides that the intent to bar dower must be expressed in the deed, and the deed must be to one who then holds the husband's title, and she may do this though under twenty-one years of age, if over eighteen. Michigan Pub. Acts 1899, p. 284. 34 Drury v. Foster, 2 Wall. 24; McCreary v. McCorkle, 1899 (Tenn.) ; 54 S. W. 53 ; Bank of Louisville v. Gray, 84 Ky. 565 ; 2 S. W. 168. 85 Williams v. Paine,' 1897, 169 U. S. 55; Morris v. Linton, 1901, 61 Neb. 537; 85 N. W. 565. Such would seem to be the effect of general statutes removing a wife's disabilities. For example, Ohio R. S., §§3112, 3114, 4108. 36 Mott v. Smith, 16 Cal. 533; Sumner v. Co-nan t, 10 Vt. 9; Dawson v. Shirley, 6 Blackf. 531. § 377 CONVEYANCES OP MARRIED WOMEN'S INTERESTS. 459 by attorney. Many of these statutes require that her hus- band shall join in her "power of attorney," while some expressly authorize her to constitute her husband her attorney. 37 Under the statutes of some states she may release her dower by attorney, 38 and may appoint her husband her attorney for this purpose ; 39 though, as powers of attorney are generally strictly construed, a general power of attor- ney by a wife to her husband to convey her lands has been held not to authorize him to release her dower, 40 nor does her power of attorney to him to "sign deeds and mort- gages" in general terms, but not referring to the home- stead nor describing any real estate, authorize him to mortgage the homestead where the "joint consent" of husband and wife is necessary to create a valid encum- brance on it. 41 "Arkansas Pub. Acts 1895, p. 58; California Civ. Co., §1094; In- diana, Burns' R. S. 1901, § 3369 ; Iowa Co. 1897, §§ 2919, 3150, 3161 ; Mis- souri R. S. 1899, § 902; Ehode Island Gen. L. 1896, ch. 194, §§ 3, 6, 12; Utah R. S. 1898, § 1205; Virginia Co. 1900, § 2502; West Virginia Co. 1899, ch. 66, § 3 ; Wisconsin Stat. 1898, § 2223. 38 Bertschy v. Bank, 1895, 89 Wis. 473; 61 N. W. 1115; Hull v. Glover, 126 111. 123; 18 N. E. 198; Penfold v. Warner, 96 Mich. 179; 55 N. W. 680 ; Alabama Co. 1896, § 1509. S9 Wronkow v. Oakley, 1892, 133 N. Y. 505; 31 N. E. 521; 16 L. R. A. 209; 28 Am. St. R. 661; Wilkinson v. Elliott, 1890,43 Kan. 590; 23 Pac. 614; 19 Am. St. R. 158. *> Security Savings Bank v. Smith; 1900, 38 Ore. 72 ; 62 Pac. 794 ; 84 Am. St. R. 756, see note to this case. 41 Wallace v. Ins. Co., 1894, 54 Kan. 442; 38 Pac. 489; 45 Am. St. R. 288. CHAPTER XXIII. THE HOMESTEAD IN CONVEYANCING. § 378. The homestead in general. 379. Who may have a home- stead—Not necessarily a married person only. 380. But restraints on its alien- ation apply usually to married persons only. 381. Restraints on alienation apply usually to residents only. 382. Occupancy generally essen- tial — "Constructive occu- pancy." 383. Occupancy — Abandonment — "Temporary absence." 384. Occupancy as a home — Use for business purposes. 385. The selection of the home- stead — By record — By occupancy. 386. The limits of the home- stead. 387. May be a homestead in an estate less than fee sim- ple — Joint estates. 388. Owner of a homestead may alienate it unless re- strained — Partial re- straints. 389. Some restriction on volun- tary alienation usual. § 390. Usually husband and wife must concur in the trans- fer. Effect of non-compliance with statute. Effect of non-compliance with statute — The alien- ation void in many states. Effect of wife's insanity. Subsequent abandonment will not make the con- veyance valid— Nor death or -divorce— Transfer by wife alone. To what extent husband may lease— Sell timber — Grant rights of way. The defective conveyance valid as to the excess over homestead. Non-compliance with stat- ute does not make alien- ation void in some states. The mode of manifesting consent to the alienation of the homestead. 399. The acknowledgment to the conveyance of the home- stead. Conveyance of the home- stead between husband and wife. 391. 392. 393. 394. 395. 396. 397. 398. 400. § 378. The homestead in general. — Certain real prop- erty may become, under the laws of most states, a "home- 460 § 378 THE HOMESTEAD. 461 stead," and, as such, may have legal characteristics dis- tinguishing it from other real property. Provisions concerning the homestead exist in the con- stitutions of about one-third of the states, and in most of these statutes also have been enacted for carrying the con- stitutional provisions into effect ; in the other states the subject is regulated by statute alone. 1 The general object of these laws is to protect the family in the possession and enjoyment of a home, secure, not only from the claims of creditors, but from the improvi- dence of the head of the family. For the attainment of this object the laws generally provide : 1. That the homestead shall be exempt from sale on execution to pay the debts (with certain exceptions) of its owner.; 2. That the owner may not convey or incumber it as freely as he may convey or incumber his other real prop- erty; Less generally it is held: 3. That the owner may not dispose of it by will, this inhibition being usually implied from the statute rather than expressly provided for. 2 1 The states which seem to have no homestead in the technical sense of the term are Delaware, Indiana, Maryland, Pennsylvania and Rhode Island. In these states certain real property, as well as personal, may be ex- empt by law from sale for the payment of debts, but the laws allowing this exemption are not, properly speaking, "homestead laws." The homestead provided for by state laws is to be distinguished from that provided for by the federal laws, under which land is donated by the United States to settlers on certain conditions. 8 The homestead being considered as a provision for the family, it has been held often that surviving wife and children cannot be deprived of it by the will of the husband and father. Bell v. Bell, 84 Ala. 64; 4 So. 189; Kleimann v. Geiselmann, 114 Mo. 437; 21 S. W. 796; 35 Am. St. E. 761; McCrae v. McCrae, 103 Tenn. 719; 54 S. W. 979; Hall v. Fields, 81 Tex. 553; 17 S. W. 82; Hatch's Estate, 62 Vt. 300; 18 Atl. 814 ; Sulzberger v. Sulzberger, 50 Cal. 385 ; Pratt v. Pratt, 161 Mass. 276; 37 N. E. 431. 462 THE LAW OF CONVEYANCING. § 378 While the general design of the homestead laws is the same there is great variance in the constitutional and stat- utory provisions, the variance existing not only as to matters of detail but often as to matters of fundamental importance affecting the nature of the homestead. The courts, moreover, have often placed different con- structions upon these laws, even where they are similar in terms. For these reasons, and because the statutes have been frequently amended, only the leading principles can be here stated, with a reference to such exceptional stat- utes or decisions as are important in themselves or serve to make more distinct the general rules. In practice it is necessary to refer to the details of the controlling law and to the latest decisions in the jurisdiction where the land lies. In conveyancing it becomes necessary, because of these laws, to consider something more than the mere title and possession of real property attempted to be conveyed, for if the property is a homestead a special release or waiver will sometimes be required, or, at least, there will be found special restraints on alienation not applying to other real property. Homestead laws have generally been liberally construed in order that their purpose may be made effectual ; that is, they have been construed liberally as to the owner and his family, but strictly as to the owner's creditors and purchasers from him. They are not considered as in der- ogation of the common law, because at common law real property was not liable to be taken on execution for the payment of debts. 3 In determining whether real property is a technical homestead and to what extent the general rules of con- veyancing are affected by this fact, the chief points in the controlling law to notice are: (a) who may have a home- 's Bl. Comm. 418, 419; Poll. & Mait. Hist. Eng. L., II, p. 596. § 379 THE HOMESTEAD. 463 stead, (b) in what property and to what extent may it ex- exist, (c) how may it be selected, (d) what restraints, if any, are placed on the alienation of the homestead. In considering some of these matters those points re- lating to alienation only will be generally discussed, and many points which relate to the homestead in its charac- ter as exempt property alone will not be referred to. § 379. Who may have a homestead — Not necessarily a married person only. — The chief object of the homestead laws being to protect the family home, the person entitled to the homestead must be, in the majority of the states, the head of a family or a householder having a family. Such a person is generally a husband or father; but one may be married without being the head of a family, or one may be the head of a family without being married. So far as restraints on alienation are concerned, they af- fect, generally, those only who are married. But the home- stead is not necessarily dependent on marriage, and some statutes provide for certain formalities in conveying land impressed with the character of a homestead without re- gard to whether the owner is at the time married or single. For example, in Illinois every householder having a family is entitled to an "estate" of homestead to the ex- tent in value of one thousand dollars in land owned and occupied as a residence, 4 which can be aliened only in the mode prescribed by statute. Among the statutory formal- ities required are a releasing clause in the body of the conveyance and a similar clause in the certificate of ac- knowledgment. 5 If the property, therefore, does not exceed in value the amount named in the statute, the estate embraces the en- tire title and interest of the householder therein, leaving 4 Illinois R. S., ch. 52, §1. 5 Illinois R. S., ch. 30, §§ 12, 28. A like statute requiring this special release exists in Wyoming, R. S. 1899, § 2770. 464 THE LAW OF CONVEYANCING. § 380 no interest in him which he can alien by a deed not con- forming to these requirements; 6 and while there is a stat- ute of the state requiring additional formalities where the owner is married, the requirements mentioned above are applicable to those having a homestead who are not at the time married, and conveyances by such persons not conforming to these statutory requirements are nullities so far as the homestead is concerned. 7 § 380. But restraints on its alienation apply usually to married persons only. — In many other states an un- married person may be entitled to a homestead, which is exempt from a forced sale for the payment of most of its owner's debts: for example, in Alabama, Michigan, Min- nesota, North Carolina, "Wisconsin and probably other states, the exemption is expressly allowed to "any resi- dent of this state," 8 and under such laws the benefits of the exemption are not restricted to married persons or to heads of families. 9 The exemption may be allowed, as in Missouri and Vermont, to a " housekeeper or head of a family," 10 or, as in Arkansas, to " a resident of this state who is mar- ried or the head of a family," u and under such laws one may be entitled to the exemption whether married or single, and it would seem whether man or woman. 12 In all these cases, while an unmarried person may have a homestead, as in Illinois, he is not required as he is 6 Unless the property is abandoned to the grantee in pursuance of such conveyance. 'Davis v. McOullouch, 1901, 192 111. 277; 61 N. E. 377. 8 Ala. Const., art. 10, §2; Civ. Co., §2033; Mich. Const., art. 16, §2; Com. L. 1897, § 10362; Minn. Stat. 1894, § 5521; N. C. Const., art. x, §2; Wis. Stat. 1898, §2983. 9 Myers v. Ford, 22 Wis. 139; Gardner v. Batts, 114 N. C. 496; 19 S. E. 794; Beard v. Johnson, 87 Ala. 729; 6 So. 383. 10 Mo. R. S. 1899, §3616; Vt. R. L. 1894, §2179. 11 Ark. Const, art. 9, §3; S. & H. Dig. Stat. 1894, §3710. ,8 Hyser v. Mansfield, 1899, 72 Vt. 71; 47 Atl. 105; Broyles v. Cox, 1899, 153 Mo. 242; 54 S. W. 488; 77 Am. St. R. 714. $ 381 THE HOMESTEAD. 465 there to execute a conveyance with any special formalities unless he is married; and this is generally so, the Illinois requirements being, it seems, exceptional. § 381. Restraints on alienation apply usually to resi- dents only. — Generally to entitle one to a homestead in a particular state he must be a resident of that state, so that when one owns real property in a state other than that of his residence it is not generally necessary when he con- veys it to consider the homestead laws of the state where his property lies. While this is true, generally, he may, nevertheless, according to some decisions, acquire a resi- dence (not a "homestead") in one state and yet his former home in another state may still retain its home- stead character, if it is occupied as a home by his family; his conveyance, therefore, of this property would seem to be governed by the homestead law of the state where it lies- — the state of his former, though not his present, resi- dence. 13 « §382. Occupancy generally essential — "Constructive occupancy." — To constitute a homestead it is, either by express provision of the constitution or statute or by judi- cial decision where such provision is wanting, generally necessary that the premises in question be occupied and used as a home by the owner. 14 Some courts have been more strict than others in this regard and have held that actual occupancy is essential to the creation and continued existence of the homestead. 15 But, owing to the liberal construction placed upon the "Savings Bank v. Kennedy, 58 Iowa 454; 12 N. W. 479. "Exempt realty though not occupied by its owner is in some states called "homestead," especially if used in connection with the home. Folsom v. Asper, 1902, 25 Utah 299 ; 71 Pac. 315 ; Howell v. Jones, 1892, 91 Tenn. 402 ; 19 S. W. 751 ; Vance v. Hill, 26 S. C. 227 ; 1 S. E. 897. "Turner v. Turner, 1894, 107 Ala. 465; 18 So. 210; 54 Am. St. R. 110; First National Bank v.Hollingsworth, 78 Iowa 575; 43 N.W. 536; 6 L. R. A. 92; Currier v. Woodward, 62 N. H. 63; Quehl v. Peterson, 47 Minn. 13 ; 49 N. W. 390 ; Boreham v. Byrne, 83 Oal. 23 ; 23 Pac. 212. 30— Brews. Con. 466 THE LAW OF CONVEYANCING. § 382 homestead laws by many other courts, in order to effect the law's " humane purpose " of preserving a home for the family, it is by no means universally necessary that there shall be actual occupancy and use of premises as a home, to constitute them a homestead. A legal home- stead may in many states be created provided land is held with the intention of making a home thereon within a reasonable time, such intention being manifested by some acts of home preparation on the land — though such acts are often only slightly indicative of this intention. For example, though in Michigan and Wisconsin the laws give the homestead character to certain lands " owned and occupied by a resident of the state " it has been held in Michigan that a vacant lot situated on the main business street of a village, purchased by husband and wife who erect on it a store building, part of which they intend to occupy as a dwelling, becomes a home- stead, so that it cannot be made subject to a mechanic's lien fpr the building so erected under a contract executed by the husband alone, though made with the wife's knowledge and consent ; 16 and in Wisconsin, that vacant, uncleared land may become a homestead from the date of its purchase, if obtained with the intention on the pur- chaser's part of making it such, and partially prepared for occupancy, though not occupied by the owner or his family for three years, during a year of which period, it is occupied by a tenant. 17 Many other decisions to the same general effect have been rendered under homestead laws similar in terms as to the requirement of occupancy to those of Michigan and Wisconsin; " constructive occupancy," as it is sometimes called, being regarded as sufficient, actual occupancy as a home not being deemed essential. 18 16 Jossman v. Eice, 1899, 121 Mich. 270; 80 N. W. 25. 17 Shaw v. Kirby, 1896, 93 "Wis. 379 ; 67 N. W. 700 ; 57 Am. St. R. 927. "Gill v. Gill, 1901, 69 Ark. 596; 65 S. W. 112; 86 Am. St. R. 213; 55 L. R. A. 191; Upton v. Coxen, 1898, 60 Kan. 1; 55 Pac. 284; 72 Am. St. R. 341. § 383 THE HOMESTEAD. 467 The reason given for such decisions is that "the acqui- sition of a completed homestead is seldom instantaneous. Generally it requires years of industry and economic liv- ing. The purpose necessarily precedes the inception of the work, and that is followed by successive steps until completion is attained. * * * These successive steps in the acquisition of a completed homestead, made in good faith, come within the spirit of the statute and are -each entitled to the protection afforded by it." 19 §383. Occupancy — Abandonment — "Temporary ab- sence." — As actual occupancy is not in all cases required for the creation of a homestead, so when the homestead character has once been fixed it is not always dependent upon an actual, continued and continuous personal resi- dence or occupation as a home by its owner. The homestead may be abandoned, and the property then ceases to be exempt as a homestead, and any re- straints as to its alienation under homestead laws no longer apply to it. 20 But a temporary absence of the owner from it with an intention on his part of returning to it as a homestead is not such an abandonment, 21 and under this rule it has been held that an owner's absence from his homestead for two years, 22 three years, 23 or even six years, 24 will not "Scofield v. Hopkins, 61 Wis. 370; 21 N. W. 259. But mere inten- tion to make the premises, at some future time, a homestead with no preparatory acts, will not be sufficient "occupancy." Feurt v. Caster, 1903, 174 Mo. 289; 73 S. W. 576; Davis v. Kelly, 1901, 62 Neb. 642; 87 N. W. 347; Ball v. Houston, 1901, 11 Okla. 233; 66 Pac. 358; Brokken v. Baumann, 1901, 10 N. D. 453; 88 K. W. 84. 20 Smith v. Kneer, 1903, 203 111. 264; 67 N. E. 780. "Rand Lumber Co. v. Atkins, 1902, 116 Iowa 242; 89 N. W. 1104; Blumer v. Albright, 1902, 64 Neb. 249; 89 N. W. 809; Kelly v. Duffy, 31 Ohio St. 437. 22 Gardner v. Gardner, 1900, 123 Mich. 673; 82 N. W.522. "Minnesota Stoneware Co. v. McCrossen, 1901, 110 Wis. 316; 85 N. W. 1019 ; 84 Am. St. E. 927. "Kaeding v. Joachimsthal, 1893, 98 Mich. 78; 56 N. W. 1101. 468 THE LAW OF CONVEYANCING. § 384 amount to an abandonment if during such absence he had a continuing intent to return and occupy it as a home- stead. The practical importance of such liberal doctrines as to occupancy will be realized when it is remembered that in many of the states where they prevail no other notice of the homestead character of real property is given to per- sons who may deal with it as creditors of, or purchasers from, its owner than that furnished by occupancy; that is, no record is required or made of the fact that the owner claims the property as a homestead. 25 § 384. Occupancy as a home — Use for business pur- poses. — The occupancy (actual or "constructive") must be as a home, and, generally speaking, occupation of prem- ises for business purposes will not give them the character of a homestead. 26 But where part of the premises occupied as the owner's home is used for business purposes, the general rule is that they may still be his homestead in spite of such par- tial use for business. For example, the use of about one- half a house by a tinner as a tinshop and the use of the other half both for ordinary living purposes and for the millinery business of the tinner's wife, do not destroy the homestead character of the premises in whole or in part. 27 In Michigan, even if the premises are primarily used by the owner in his business as hotel proprietor, they may still be his homestead if also used as the sole home of himself and his family, 28 and in other states nearly the 25 See post, § 385, n. 35. 86 Unless the constitution or statute authorizes a business homestead, as in Texas. 87 Ogburn's Estate, 1894, 105 Cal. 95 ; 38 Pac. 498. See, also, Berry v. Meir, 1902, 70 Ark. 129; 66 S. W. 439; Marx v. Threet, 1901, 131 Ala. 340; 30 So. 831; Groneweg v. Beck, 1895, 9S Iowa 717; 62 N. W. 31; Sever v. Lyons, 1897, 170 111. 395; 48 N. E. 926. 28 Lamont v. Le Fevre, 1893, 96 Mich. 175; 55 N. W. 687; King v. Welborn, 1890, 83 Mich. 195; 47 N. W. 106; 9 L. R. A. 803. § 385 THE HOMESTEAD. 469 same rule has been adopted. 29 Sometimes a distinction has been made, however, between the use of a residence for hotel purposes and the use of a hotel for residence purposes ; and in determining whether or not the prem- ises are a homestead, consideration has been given to the primary and principal use, and if the premises are thus used primarily in the owner's business of keeping an ho- tel they have been held not to be his homestead, though he and his family may dwell on them. 30 § 385. The selection of the homestead — By record — By occupancy. — Mere occupation and use of certain property as a home do not in all the states having homestead laws constitute the property so occupied and used a technical homestead. To render it such there must be, in about one-third of the states, some sort of recorded claim or notice or declara- tion by the owner (or in some cases by his wife), that the property described in the notice or declaration is a home- stead within the meaning of the statutes making it exempt from certain debts of its owner. 31 Occupancy and use as a home are very generally necessary to impress the prop- erty with the homestead character, 32 but where this method of making some record of the selection is made necessary by statute, mere residence and use as a home are not of them- selves enough without the statutory declaration, 33 and where this record or declaration is essential to establish the 29 Cass Co. Bank v. "Weber, 1891, 83 Iowa 63 ; 48 N. W. 1067 ; 32 Am. St. E. 288; 12 L. E. A. 477; Harriman v. Queen Ins. Co., 49 Wis. 71, 84; 5N. W. 12; Kiesel v. Clemens, 1899, 6 Idaho 444; 56 Pac. 84. »° McDowell v. Creditors, 1894, 103 Cal. 264; 35 Pac. 1031 ; 42 Am. St. E. 114; Beronio v. Ventura &c. Co., 1900, 129 Cal. 232; 61 Pac. 958. But see King v. Welborn, 1890, 83 Mich. 195; 47 N. W. 106; 9 L. E. A. 803. 91 Among such states are : California, Colorado, Connecticut, Georgia, Idaho, Louisiana, Maine, Massachusetts, Montana, Nevada, New York, Utah, Virginia, Washington, West Virginia. 32 Ante, §§ 382, 384. 33 Bank of Woodland v. Oberhaus, 1899, 125 Cal. 320; 57 Pac. 1070. 470 THE LAW OF CONVEYANCING. § 386 homestead and has not been made, restraints which apply to the alienation of the legal homestead do not apply to the alienation of property merely because it is a home. 3 * But in the majority of states having homestead statutes no special record or written declaration of any kind need be made in order to select and establish a homestead, for, unless the constitution or statute requires some special form of dedication or selection, occupancy alone of a piece of land as a home constitutes it a homestead and is notice to every one of its selection as such. 35 § 386. The limits of the homestead. — The extent of the homestead is generally limited by statute. The methods, however, of fixing its limits are so varied that it is im- practicable to attempt to set them out in any detail. Its extent may be fixed in one state by its value, or in another by its area, or in another by its value and area. Where its limits are measured by its pecuniary value this may be as high as $5,000 (as in California, Idaho, Nevada and the Dakotas), or as low as $500 (as in Maine, New Hampshire and Vermont). Where its extent is limited by its territorial area, or the number of acres, a greater area is generally allowed where the property is rural or farm property than where it is urban property : 40, 80 or 160 acres being common limits in the former case, while in the latter the quantity is often restricted to one lot of certain dimensions. In a few states no monetary limitation is fixed, provided the property is of the quality or area designated by stat- ute — as in Kansas, Minnesota and Texas (under certain circumstances) . 36 "Lowenthal v. Coonan, 1902, 135 Cal. 381; 67 Pac. 324; Child v. Singleton, 15 Nev. 461. 85 Evans v. The Grand Rapids &c. E. Co., 68 Mich. 602; 36 N. W. 687; Barton v. Drake, 21 Minn. 299; Feas's Estate, 1902 30 Wash. 51 ; 70 Pac. 270. 86 Improvements may be of any value, e. g. $60,000. Chase v. Swayne, 88 Texas 218 ; 30 S. TV. 1049. Until 1901 there was no limit in Wiscon- sin (Wis. L. 1901, ch. 269). § 387 THE HOMESTEAD. 471 § 387. May be a homestead in an estate less than fee simple — Joint estates. — While the statutes usually require that the real property claimed as a homestead shall be "owned" by the claimant, it is not generally necessary that he have title in fee, for the character of his estate is not designated in the statutes. There may be a homestead in a life estate, 37 and, as a lessee may have a homestead in lands leased and occu- pied by him, an assignment of the lease without his wife's concurrence (which is usually necessary for any aliena- tion of the homestead) is invalid; 38 as is also an assign- ment of a contract under which land is held and occupied as a homestead. 39 Where land is held by husband and wife in common or jointly, 40 or as tenants by the entirety, 41 it may be a home- stead, and according to some decisions an occupying ten- ant in common may in any case have a homestead, 42 though this doctrine is denied by others. 43 A partner, it is generally considered, has no such indi- vidual and separate interest in partnership property as to enable him to acquire a homestead in it. 44 "Kendall v. Powers, 96 Mo. 142; 8 S. W. 793; 9 Am. St. R. 326; Tyler v. Jewett, 82 Ala. 93 ; 2 So. 905. "Maatta v. Kippola, 1894, 102 Mich. 116; 60 N. W. 300. "Rawles v. Keiehenbach, 1902 (Neb.); 90 N. W. 943; Anderson v. Cosman, 1897, 103 Iowa 266; 72 N. W. 523; 64 Am. St. R. 177. A chattel mortgage may not be made on a house owned and occupied aB a homestead standing on leased land, without compliance with statutory requirements as to the alienation of a homestead. Gage v. Wheeler, 129 111. 197; 21 N. E. 1075; Hogan v. Manners, 23 Kan. 551. 40 Lozo v. Sutherland, 38 Mich. 168. 41 Cole v. Cole, 1901, 126 Mich. 569; 85 N. W. 1098. "Thompson v. King, 54 Ark. 9; 14 S. W. 925; Giles v. Miller, 1893, 36 Neb. 346; 54 N. W. 551 ; 38 Am. St. R. 730. 43 Howes v. Burt, 130 Mass. 368; Case Threshing Machine Co. v. Joyce, 89 Tenn. 337; 16 S. W. 147. "Michigan Trust Co. v. Chapin, 1895, 106 Mich. 384; 64 N. W. 334: 58 Am. St. R. 490; Hoytv. Hoyt, 69 Iowa 174; Trowbridge v.Cross, 117 111. 109 ; but see Hunnicutt v. Summey , 63 Ga. 588 ; Clements v. Lacy, 51 Texas 150. 472 THE LAW OF CONVEYANCING. § 388 § 388. Owner of a homestead may alienate it unless restrained — Partial restraints. — The mere exemption of a homestead from a forced sale does not of itself restrict the power of alienation by the owner, and in the absence of constitutional or statutory provisions restraining him from freely conveying the homestead, he has as full a right to convey it as to convey any other property. So, for example, under the former laws of Missouri, Nebraska and Utah, which provided for the exemption of the home- stead from forced sale, but placed no restraint on its alien- ation, 45 a husband could freely convey lands owned by him and occupied as a homestead without the consent of his wife, though subject "to her dower or analogous rights. 46 So also there may be merely restrictions against cer- tain kinds of conveyances but none as to others, as in 46a Kentucky a married man owning a homestead may sell and convey it absolutely without consulting his wife, but he may not mortgage it without her joinder, 47 and in rare instances mortgages of the homestead of a married man are prohibited entirely except for the pur- chase price of the premises. 48 Special restraints as to mortgaging lands impressed with the homestead character are probably due to the fact 45 Except, in Missouri, where the wife had filed a claim of homestead under R. S. 1889, § 5435. 46 Cook v. Higley, 1894, 10 Utah 228 ; 37 Pac. 336 ; Greer v. Major, 1893, 114 Mo. 145 ; 21 S. W. 481; Rector v. Rotton, 3 Neb. 171. See Moran v. Clark, 30 W. Va. 358; 4 S. E. 303; 8 Am. St. R. 66. The present statutes in Missouri, Nebraska and Utah require the wife's con- sent: Mo. R. S. 1899, § 3616; Gladney v. Sydnor, 1903, 172 Mo. 318; 72 S. W. 554; 60 L. R. A. 880; Neb. Com. Stat. 1901, § 3259; Utah R. S. 1898, § 1155. ,6 ° This was also true in Colorado but has been changed by a very rer cent statute. Colo. L. 1903, pp. 153, 247. Now a husband and hie wife must join in any conveyance. 47 Wright v. Whittock, 1892, 18 Colo. 54; 31 Pac. 490; Gullett v. Ar- nett, 1898, 19 Ky. Law 1892; 44 S. W, 957; Carr v. Winlock, 1900, 109 Ky. 488 ; 59 S. W. 747. Such restrictions as exist in New York and Ohio relate simply to mortgages: N. Y. Civ. Co., § 1404; Ohio R. S., § 5442. 48 See Parrish v. Hawes, 1902, 95 Texas 185; 66 S. W. 209; Maxwell v. Roach, 1901, 106 La. 123; 30 So. 251. An unmarried man may mort- gage his homestead in Texas: Davis v. Converse, 46 S. W. 910. § 389 THE HOMESTEAD. 473 that property is generally mortgaged for much less than its full value, and may thus be lost to its owner and his family without adequate return, whereas an absolute con- veyance is generally made for nearly the full value of the property conveyed. § 389. Some restriction on voluntary alienation usual. — But while restraint on alienation is not necessarily in- cident to the exemption of the homestead from sale on exe- cution, the purpose of the homestead laws is generally considered to be promoted by the imposition of some re- straint on the owner's right of transfer. In those states where some sort of recorded declaration by the owner is necessary to secure to him the exemption of certain property as a homestead, he voluntarily accepts such restraints as the statute imposes on his freedom of transfer by declaring and recording his homestead; 49 and in those states where he obtains the exemption by occu- pancy without such a record the restraint is accepted by him when he places himself, by becoming a householder, in the class entitled to the exemption on the one hand and subject to the restraint on the other. § 390. Usually husband and wife must concur in the transfer. — The most usual constitutional or statutory pro- vision which amounts to a restraint on the freedom of alienation of the homestead is the requirement that hus- band and wife (if the owner be married) shall unite in the conveyance. This requirement appears in some form in most of the states having homestead laws, though the terms in which the requirement is expressed vary greatly. The provision may be that husband and wife "must execute and ac- knowledge " the same instrument, or that they must "concur in and sign the same joint instrument," or that "Virginia and Tenn. Coal Co. v. McClelland, 1900, 98 Va. 424; 36 S. E. 479. 474 THE LAW OF CONVEYANCING. § 391 there must be "joint consent" of husband and wife, or that the husband's conveyance shall not be valid "with- out the signature of the wife." 50 The husband or wife who joins in the instrument con- veying or incumbering the homestead by the other spouse who has the legal title, usually conveys nothing by this joinder, for having, strictly speaking, no estate in the homestead, the joinder in the conveyance is not for the purpose of transferring an interest in land but is simply a means of manifesting that consent to the transfer which the statute requires. 51 The wife's joining in her husband's homestead convey- ance is not analogous to her release of dower, because he may convey a valid title to his own lands subject to her dower interest, while he may not convey any title (in many states) to the homestead without her consent. 52 § 391. Effect of non-compliance with statute. — The effect of the alienation of the homestead when the instrument of alienation is not executed in accordance with the statutory requirement as to the joinder of hus- band and wife is not the same in all the states, even where the statutory provisions are expressed in similar terms. The restriction on alienation by the husband alone is considered in many of the states having homestead stat- 60 By such provisions it is intended that the real wife shall concur; a purchaser or mortgagee takes the risk of the pretended wife's being the actual wife of the grantor: Security Loan Co. v. Kauffman, 1895, 108 Cal. 214; 41 Pac. 467; Sherrid v. Southwick, 43 Mich. 515. But see as to a non-resident deserted wife : Stanton v. Hitchcock, 64 Mich. 316 ; Black v. Singley, 91 Mich. 50. 51 Hamilton v. Detroit, 1901, 85 Minn. 83; 88 N. W. 419; Pounds v. Clarke, 1892, 70 Miss. 263; 14 So. 22; Creath v. Creath, 86 Tenn. 659; 8 S. W. 847; Godfrey v. Thornton, 46 Wis. 677. 52 Although it has been sometimes said that a wife has a right or in- terest in the homestead, title to which is in her husband, which she may protect and which she may refuse to "release." Kogers v. Mc- Farland, 1893, 89 Iowa 286; 56 N. W. 504; California Fruit Trans. Co. v. Anderson, 1897, 79 Fed. E. 404. § 392 THE HOMESTEAD. 475 utes as applying to the land constituting the homestead — a certain amount of realty exempt from execution for the payment of debts — which its owner is incapacitated from transferring as he may transfer other property, his disa- bility being established for the protection of the family, and, according to the views of some, for his own protec- tion as well. 53 In other states, however, the restraint on alienation is regarded as applying only to whatever right or interest in the homestead premises is necessary for family protection; and it is considered that it is not the alienation of the land itself that is prohibited or restrained, but the privilege of occupancy and the right of exemption. 54 § 392. Effect of non-compliance with statute — The alienation void in many states. — It follows from these constitutional and statutory restraints on alienation that the transfer or incumbrance (except it be a purchase money mortgage ) of land impressed with the character of a homestead made by the husband alone when the legal title is in him is, in many states, an absolute nullity, so far as that land is concerned. It is not merely void as to the wife, but as to the husband also, and the grantee or mortgagee acquires no title. 55 When the law makes his sole alienation thus void he is not estopped 56 by his deed or mortgage, to which his wife has not assented in statu- tory form, to dispute its validity, for the general doctrine of estoppel cannot apply to acts that are nullities, and his grantee or mortgagee is presumed to know that the hus- 63 See post, §392. M Post, § 397. 55 Goodwin v. Goodwin, 1901, 113 Iowa 319; 85 N. W.31; Pritchett v. Davis, 1897, 101 Ga. 236; 28 S. E. 666; 65 Am. St. P. 298; Webster v. Warner, 1899, 119 Mich. 461; 78 N. W. 552; Hubbard v. Sage Land &c. Co., 1902, 81 Miss. 616; 33 So. 413; Virginia-Tennessee Coal Co. v. McClelland, 1900, 98 Va. 424; 36 S. E. 479. 68 See post, § 394, note 68, as to estoppel when the conveyance is not made void, and see Marler v. Handy, 1895, 88 Texas 421 ; 31 S. W. 636. 476 THE LAW OF CONVEYANCING. § 393 band cannot thus convey or mortgage the homestead premises, 57 and the fact that his conveyance contains cov- enants for title is held immaterial where the doctrine that the instrument of transfer thus made is void prevails. 58 Whether the restraint be regarded as imposed for the benefit of his wife and children, 59 or as imposed, not merely for their benefit and protection, but for his own protection as well, 60 he is, as to this land, under a disabil- ity to convey as he may convey his other property. § 393. Efiect of wife's insanity.— The fact that his wife is insane and residing in another state will not enable a married man to mortgage his homestead without her joinder when the statute requires that the mortgage shall be signed and acknowledged by both husband and wife, 61 nor on the other hand will the insane wife's join- ing with him in his alienation render it valid when the statute provides that husband and wife must "concur" in and sign the same joint instrument, 62 or that it shall not be valid without her "voluntary signature and as- sent," 63 nor may an insane wife's guardian act for her in such cases in the absence of a statute authorizing him to do so. 64 57 Cowan v. Southern E. Co., 1898, 118 Ala. 544; 23 So. 754; Garner v. Black, 1901, 95 Texas 125; 65 S. W. 876; Whitlock v. Gosson, 1892, 35 Neb. 829; 53 N. W. 980. ^Stickel v. Crane, 1901, 189 111. 211; 59 N. E. 595; Rogers v. Day, 1898, 115 Mich. 664; 74 N. W. 190; Alt v. Banholzer, 39 Minn. 511; 40 N. W. 830; 12 Am. St. E. 681. 69 Gadsby v. Monroe, 1897, 115 Mich. 282; 73 N. W. 367. 60 Martin v. Harrington, 1901, 73 Vt. 193; 50 Atl. 1074; 87 Am. St. E. 704. 61 Whitlock v. Gosson, 1892, 35 Neb. 829; 53 N. W. 980; Anderson v. Stadlemann, 1898, 17 Wash. 433; 49 Pac. 1070. 62 Alexander v. Vennan, 61 Iowa 160 ; 16 N. W. 80. 63 Thompson v. New Eng. Mort. Co., 1895, 110 Ala. 400; 18 So. 315; 55 Am. St. E. 29. "Flege v. Garvey, 47 Cal. 371; as to such statutes see ante, p. 423. '§ 394 THE HOMESTEAD. 477 § 394. Subsequent abandonment will not make the conveyance valid — Nor death or divorce — Transfer by wife alone. — The result is that the subsequent abandon- ment of the premises as a homestead will not render valid a conveyance that was invalid when made; 65 nor will the wife's subsequent death 66 or divorce 67 make it valid. 68 And in those states where husband and wife must both execute the conveyance, irrespective of which of them has the legal title, the same consequences in general will result from a conveyance by the wife alone when the title is in her, 69 though in other states where there is no such re- quirement as to execution by both of them in all cases, but simply one as to the wife's execution or consent to her husband's alienation, it seems that she may convey the homestead without her husband's joining with her if in those states she has capacity to so convey other real property. 70 65 G]eason v. Spray, 81 Cal. 217; 22 Pac. 551; 15 Am. St. R. 47; Bru- nei- v. Bateman, 66 Iowa 488; 24 N. W. 9; American Savings & Loan Ass'n v. Burghardt, 1897, 19 Mon. 323; 48 Pac. 391 ; 61 Am. St. B. 507. Though, on acquiring a new homestead, the husband may be estopped by his sole deed previously made of his former homestead ; Marler v. Handy, 1895, 88 Texas 421; 31 S. W. 636. 66 Shoemaker v. Collins, 49 Mich. 595 ; 14 N. W. 559 ; Martin v. Har- rington, 1901, 73 Vt. 193; 50 Atl. 1074; 87 Am. St. E. 704. 67 Alt v. Banholzer, 39 Minn. 511 ; 40 N. W. 830; 12 Am. St. E. 681; Lange v. Geiser, 1903, 138 Cal. 682; 72 Pac. 343. 68 In the recent case of Adams v. Gilbert, 1903 (Kan.), 72 Pac. 769, it is held that, while the husband's deed without his wife's consent is in- effectual while the property remains a homestead, he may be estopped by it, or may confirm it by silence after his wife's death. It is to be noted that the Kansas constitution and statute provide simply that the home- stead " shall not be alienated without the joint consent of husband and wife when that relation exists," and though alienations not so con- sented to have been called void (Schermerhorn v. Mahaffie, 34 Kan. 108) they would seem to be voidable merely. 69 Lange v. Geiser, 1903, 138 Cal. 682; 72 Pac. 343; France v. Bell, 52 Neb. 57; 71 N. W. 984; Low v. Anderson, 41 Iowa 476. 7 °Morley Bros. v. National Loan &c. Co., 1899, 120 Mich. 171; 78 N. W. 1078; Price v. Osborn, 34 Wis. 34. 478 THE LAW OF CONVEYANCING. § 395 § 395. To what extent husband may lease — Sell tim- ber — Grant rights of way. — The statutes of most states are broad enough in their terms to restrain the husband from transferring any interest in the homestead premises without his wife's concurrence in the form prescribed by statute. He may not generally, for example, lease the premises without her properly expressed consent; at least this would seem to be the general rule when, by the terms of the lease, the lessee's occupation would interfere with the use of the premises as a homestead, or when the lease gives the lessee the right to remove substantial portions of the realty — as minerals and timber — and creates en- cumbrances on the premises by giving him extensive rights of ingress and egress. 71 Nor may the husband alone convey the minerals or timber in and upon the premises, at least when the conveyance is in general terms and is in reality an alienation of a substantial part of the property; 72 though it has been held that a license by the husband alone to remove ore from a part of home- stead lands is not invalid when their possession for the uses of the homestead is not interfered with, especially when the wife has knowledge of the expenses incurred by the licensee under the license and makes no objection. 78 It appears also that under most of the homestead stat- utes a husband may not grant by his sole deed a right of way across the homestead premises, 74 nor may he alone "Pritchett v. Davis, 1897, 101 Ga. 236; 28 S. E. 666; 65 Am. St. R. 298 ; Wea Gas, Coal, etc., Co. v. Franklin Land Co., 1895, 54 Kan. 533 ; 38 Pac. 790; 45 Am. St. R. 297; Barrett v. Cox, 1897, 112 Mich. 220; 70 N. W. 446. ' 2 Virginia-Tennessee Coal Co. v. McClelland, 1900, 98 Va. 424; 36 S. E. 479; McKenzie v. Shows, 1892, 70 Miss. 388; 12 So. 336; 35 Am. St. R. 654. "Harkness v. Burton, 39 Iowa 101. "Cowan v. Southern R. Co., 1897, 118 Ala. 354; 23 So. 754; Evana v. Grand Rapids &c. R. Co., 68 Mich. 602; 36 N. W. 687; Pilcher v. Atchison &c. R. Co., 38 Kan. 516; 16 Pac. 945; 5 Am. St. R. 770; Gulf & Ship Isd. R. Co. v. Singleterry, 1901, 78 Miss. 772; 29 So. 754. § 396 THE HOMESTEAD. 479 dedicate a portion of them to the public as a street ; 75 though it has been held that where the grant of an ease- ment, or of a right of way to a railroad, does not interfere with the actual use and occupancy of the homestead it may be made by the husband alone. 76 § 396. The defective conveyance valid as to the excess over homestead. — Nevertheless, while the conveyance is thus often said to be "void," it is not void for all pur- poses, but simply as an alienation of the homestead ; for, even in the states where the courts have been most em- phatic in declaring it void, when there are included in it other lands besides the homestead it may be a valid con- veyance as to these other lands, though invalid as to the homestead. 77 If, however, severance of the parcels is impracticable, the conveyance will be wholly invalid, at least where the measure of the homestead is territorial and does not depend upon its value entirely ; 78 while, where value (rather than territorial extent) regulates or measures the homestead, the excess over the statutory value may be conveyed by the husband's sole deed, 79 and the grantor and grantee become co-owners and may have partition. 80 § 397. Non-compliance with statute does not make alienation void in some states. — If the restraints as to the "San Francisco v. Grote, 1898, 120 Cal. 59; 52 Pac. 127; 41 L. R. A. 335; 65 Am. St. R. 155. "Stokes v.Maxson,1901, 113 Iowa 122; 84 N. W. 949; 86 Am. St. R. 367; Chicago &c. R. Co. v. Titterington, 1892, 84 Texas 218; 19 S.W. 472; 31 Am. St. R. 39. "Engle v. White, 1895, 104 Mich. 15; 62 N. W. 154; Weitzner v. Thingstad, 1893, 55 Minn. 244; 56 N. W. 817; Pryne v. Pryne, 1902, 116 Iowa 82 ; 89 N. W. 108 ; Townsend v. Blanchard, 1902, 117 Iowa 36; Thorp v. Thorp, 70 Vt. 46; 39 Atl. 245. "Sammon v. Wood, 1895, 107 Mich. 506; 65 N. W. 529. 79 Donahue v. Cricket Club, 1898, 177 111. 351 ; 52 N. E. 351. 80 Anderson v. Smith, 1895, 159 111. 93 ; 42 N. E. 206 ; Gray v. Scho- field, 1898, 175 111. 36; 51 N. E. 684. 480 THE LAW OF CONVEYANCING. § 397 alienation of the homestead are considered as applying to the right of exemption or privilege of occupancy rather than to the exempt land, an effect is given to the hus- band's sole conveyance different from that given to it when they are regarded as applying to the land itself. In Wisconsin the homestead is provided for by a stat- ute ffl in terms similar to those of many states: "A home- stead, * * * consisting, when not included within any city or village, of any quantity of land, not exceeding forty acres, used for agricultural purposes, and when in- cluded in any city or village, of any quantity of land not exceeding one-fourth of an acre, and the dwelling house thereon * * * owned and occupied by any resident of this state shall be exempt from sale on execution," etc., and another statute 82 provides that "no mortgage or other alienation by a married man of his homestead, ex- empt by law from execution, shall be valid or of any effect as to such homestead without the signature of his wife." Under statutes almost identical with these, it has been held by many courts, as the cases cited in the preceding sections show, that a conveyance by the husband 'alone is void. But in a recent decision in this state 83 it is held, following the settled rule there, that the prohibition against the husband's conveying, without his wife's sig- nature, applies only to the homestead as a right or interest in the land, and that a warranty deed by a married man, which his wife refused to sign, will convey an equitable interest to the grantee, which will entitle him to the legal title when the homestead right ceases by the death of both husband and wife or otherwise, and that the deed may be enforced against the grantor's child who takes the legal title to the homestead upon his death. 84 81 Wis. R. S. 1898, § 2983 (amended by laws 1901, ch. 269, limiting the exemption to the amount of §5,000). 82 Wisconsin R. S. 1898, § 2203. 83 Jerdee v. Furbush, 1902, 115 Wis. 277; 91 X. W. 661. 84 Some decisions in other states which influenced the Wisconsin court in earlier cases, e. g. McQuade v. Whaley, 31 Cal. 526, and White- § 397 THE HOMESTEAD 481 In North Carolina the constitution ffi provides that " every homestead and the dwellings and buildings used therewith, not exceeding in value $1,000, to be selected 86 by the owner thereof," or at his option a city lot, "owned and occupied by any resident * * * shall be exempt ' ' from sale on execution; and that 87 he may dispose of "the same" by deed, "but no deed made by the owner of a homestead shall be valid without the voluntary sig- nature and assent of his wife, signified on her private ex- amination according to law." These clauses were recently the subject of an interesting series of opinions by the justices of the supreme court of that state, 88 and while one member of the court on the first hearing 89 considered that the "homestead" of the constitution is the land and that any conveyance of it by a husband alone is void, and the other justices then com- posing the court did not agree as to its legal character, the doctrine finally established on rehearing is that the con- stitutional restraint on alienation applies only to a con- veyance of the owner's homestead right of exemption and that a deed of trust by the husband alone, reserving the homestead of the grantor, conveys the entire land subject only to the " determinable exemption " in one thousand dollars worth of it from the payment of the grantor's debts during his life, which exemption ceases on his death. Such a conveyance by the husband alone, reserving the man v. Field, 53 Vt. 554, would not now be followed in these states. See Powell v. Patison, 1893, 100 Cal. 236; 34 Pac. 677; Martin v. Har- rington, 1901, 73 Vt. 193; 50 Atl. 1074; 87 Am. St. E. 704. 85 Art. X, §2. 86 There is no provision as to the method of selection, and occupancy seems sufficient. 87 Const., Art. X, §8. 88 Joyner v. Sugg, 1902-1903, 131 N. C. 324; 42 S. E. 828; on rehearing 132 N. C. 580; 44 S. E. 122. 89 Furches, C. J., in 131 N. C. 332. 31 — Brews. Con. 482 THE LAW OF CONVEYANCING. § 398 use and occupancy during the lives of himself and his wife, or reserving the "homestead right," would proba- bly be held valid by other courts, 90 though under the view generally taken of the character of the homestead and the purpose of restraints on its alienation, such a reservation would not make his sole deed effective in most states. 91 § 398. The mode of manifesting consent to the aliena- tion of the homestead. — The proper forms and methods of expressing the consent of husband or wife to an aliena- tion of the homestead by the other vary somewhat in the different states. A constitutional provision as to the mode will, of course, control a statutory provision conflicting with it; so, for example, where the constitution provides for the "joint consent" of husband and wife, a statute purport- ing to authorize an alienation of the homestead by the joinder of a guardian of an insane husband or wife with the other spouse in the instrument of transfer is uncon- stitutional, as the guardian cannot give the consent re- quired by the constitution. 92 As a general rule the concurrence or consent of hus- band and wife to the alienation should be expressed by their joint act, and not separately. This is clear from the terms of many of the statutes, but even where not expressly so provided the laws have been construed so as to render ineffective separate releases and consents. 93 93 See Allbright v. Hannah, 1897, 103 Iowa 98; 72 N. W. 421— not de- ciding the matter; Adams v. Gilbert, 1903 (Kan.); 72 Pac. 769. See ante, § 394, note 68; Gunnison v. Twitchel, 38 N. H. 62, the N. H. statute (Pub. Stat. 1901, ch. 138, § 4) now provides that "no deed shall convey or incumber the homestead right" unless executed by both husband and wife, a very different provision from those of most states. 91 Gadsby v. Monroe, 1897, 115 Mich. 282; 73 N. W. 367. 92 Locke v. Eedmond, 1897, 6 Kan. App. 76; 49 Pac. 670; affirmed, 59 Kan. 773; 52 Pac. 97. 9S Donahoe v. Chicago Cricket Club, 1898, 177 111. 351 ; 52 N. E. 351; Hart v. Church, 1899, 126 Cal. 471; 58 Pac. 910; 77 Am. St. E. 195; Hubbard v. Sage Land &c. Co., 1902, 81 Miss. 616; 33 So. 413. § 398 THE HOMESTEAD. 483 It results necessarily from the terms of most of the laws that the consent required must be manifested by at least some writing, but where the constitution provides that the homestead cannot be alienated "without the joint consent of husband and wife," and nothing further is re- quired by any statute, it is held that the consent need not be written. 94 Usually the joinder of the husband and wife in a con- veyance in ordinary form is a sufficient release, convey- ance or consent, without special reference being made to the homestead, though in two states — Illinois and Wyo- ming — a special releasing clause is required. Even though the consenting husband or wife may, strictly speaking, have nothing to convey, 95 it seems gen- erally the more prudent practice for both of them to appear as grantors in the instrument of conveyance, and this has been considered essential under a statute providing that they shall "concur in and sign the same joint instru- ment;" 96 though under the statutes of some states which require simply the "signature" of the wife she need not be named as grantor in her husband's conveyance of the homestead. 97 In any case a wife joining in her husband's conveyance should not restrict its effect as to her, if it is intended to convey or release the homestead, by declaring that she joins to " release her dower." 98 94 Sullivan v. Wichita, 1902, 64 Kan. 539; 68Pac. 55; Matney v. Linn, 1898, 59 Kan. 613 ; 54 Pac. 668. 96 Ante, §390, n. 51. 9S Seiffert &c. Lumber Co. v. Hartwell, 1895, 94 Iowa 576; 63 N. W. 333 ; 58 Am. St. R. 413. 9, Shelton v. Aultman &c. Co., 82 Ala. 315; 8 So. 232; Barrett v. Cox, 1897, 112 Mich. 220; 70 N. W. 446; Lawyer v. Slingerland, 11 Minn. 447 ; Godfrey v. Thornton, 46 Wis. 677 ; 1 N. W. 362. See Davis v. Jenkins, 1892, 93 Ky. 353; 20 S. W. 283; 40 Am. St. R. 197. 98 Burrows v. Pickens, 1901, 129 Ala. 648; 29 So. 694; Pipkin v. Wil- liams, 1893, 57 Ark. 242 ; 21 S. W. 433 ; 38 Am. St. R. 241 ; Sharp v. Bailey, 14 Iowa 387; 81 Am. D. 489. 484 THE LAW OP CONVEYANCING. § 399 § 399. The acknowledgment to the conveyance of the homestead. — It is required in many states that the instru- ment by which the homestead is conveyed shall be acknowledged." Such a requirement must be fulfilled in order that the alienation may be effectual; therefore, if the instrument has not actually been acknowledged, or if it has been acknowledged before some one not authorized to take the acknowledgment, as an officer disqualified by reason of interest, 100 the conveyance is generally consid- ered invalid as to the homestead. So, if the certificate of acknowledgment is substantially defective the conveyance to which it is attached is of no more effect than if not acknowledged. 1 And if the wife's "separate examination" 2 is required to be certified to in such cases this is also essential to its validity ; 3 ; and so, for instance, a conveyance not conforming to this require- ment, being a nullity, cannot be made valid by the wife's acknowledgment after her husband's death. 4 Unless, however, the homestead laws of the state ex- pressly require an acknowledgment to a conveyance of the homestead, or unless some other law 5 makes an acknowl- edgment essential to conveyances generally, there is no reason why the absence of an acknowledgment should have any other effect upon the alienation of the home- stead than upon that of other property. 6 "See ante, §263. 100 Watkins v. Youll, 1903 (Neb.) ; 96 N. W. 1042. See ante, §§ 281, 282, 285-287 and oases cited. 1 Penny v. British &c. Mortgage Co., 1901, 132 Ala. 357; 31 So. 96; American Savings & Loan Ass'n v. Burghardt, 1897, 19 Mon. 323 ; 48 Pac. 391; 61 Am. St. R. 507. 2 Ante, § 365. 8 Marx v. Threet, 1901, 131 Ala. 340; 30 So. 831; Gamer v. Black, 1901, 95 Texas 125; 65 S. W. 876. 4 Richardson v. Woodstock Iron Co., 1890, 90 Ala. 266 ; 8 So. 7. 5 For example, the statute relating to married women. Fisher v. Meister, 24 Mich. 447, 452. 6 Barrett v. Cox, 1897, 112 Mich. 220; 70 N. W. 446; Lawyer v. Sling- erland, 11 Minn. 447 ; Karcher v. Gans, 1900, 13 S. D. 383 ; 83 N. W. 431; 79 Am. St. R. 893; Godfrey v. Thornton, 46 Wis. 677; 1 N. W.362. § 400 THE HOMESTEAD. 485 § 400. Conveyance of the homestead between husband and wife. — Owing to the requirement that husband and wife must execute and acknowledge the conveyance of the homestead, or that the wife must execute her husband's conveyance, some question has arisen as to conveyances of the homestead between husband and wife. Its transfer by the husband to the wife has often been held valid when the instrument of transfer has not been executed by her, although her signature, or joinder, or acknowledgment, after a separate examination, are essen- tial in the same jurisdictions in conveying it to other per- sons. 7 The reason usually given for sustaining conveyances in this form from husband to wife is that as the restraint on alienation is imposed for the benefit of the family there is no violation of the spirit of the law in the making of such a conveyance by the husband to the wife. And some- times it is also said that such a conveyance is not within the statute, because to require her signature or joinder under such circumstances would be to make her both grantor and grantee in the same conveyance — ' ' a vain and senseless thing." 8 But this latter reason is based on the view that she has in such cases some estate to convey, which is not univer- sally recognized as the correct view of the nature of her interest. 9 And in Illinois the fact that the wife appears in such cases (where she joins in her husband's transfer to her) to be both grantor and grantee is considered to be no obstacle to such a transfer, for a direct conveyance of the homestead from him to her without her joinder is in- valid as to the homestead property, 10 though it conveys 'Thompson v. McConnell, 1901, 107 Fed. 33; Burkett v. Burkett, 78 Cal. 310; 20 Pac. 715; 12 Am. St. R. 58; 3 L. R. A. 781; Turner v. Bernheimer, 1892, 95 Ala. 241 ; 10 So. 750. 8 Lynch v. Doran, 1893, 95 Mich. 395 ; 54 N. W. 882 ; Furrow v. Athey, 21 Neb. 671; 59 Am. R. 867; Harsh v. Griffin, 72 Iowa 608; 34 N. W. 441 ; Hall v. Powell, 1899, 8 Okla. 276; 57 Pac. 168. 'Ante, § 390, n. 51. 10 Shields v. Bush, 1901, 189 111. 534; 59 N. E. 962; 82 Am. St. R. 474. 486 THE LAW OF CONVEYANCING. § 400 title to the excess in value over $1,000, u but nothing if the homestead attempted to be so conveyed is worth less than that sum ; 12 and the same principles apply to a con- veyance from the wife to the husband of the homestead to which she has the legal title. 13 In the foregoing cases from various states where con- veyances of the homestead between husband and wife have been sustained, the homestead character of the prop- erty has been preserved, though the legal title to the realty has passed from one to the other, and it has been therefore considered that the spirit of the statutes has not been vio- lated. But where the transfer between husband and wife would tend to destroy the homestead a more strict con- struction has been placed upon the statute requiring joint execution and acknowledgment, and it has been held that a mortgage of homestead community property executed by the wife alone to the husband, to secure a debt from her to him, is void in the hands of his assignee. 14 11 Stickel v. Crane, 1901, 189 111. 211 ; 59 N. E. 595. 12 Anderson v. Smith, 1895, 159 111. 93; 42 N. E. 306. 13 Despain v. Wagner, 1896, 163 111.598; 45 N. E. 129. It does not seem to have been decided in Illinois that a conveyance executed and acknowledged by both would be valid in such cases, but that it would be may be inferred from the foregoing decisions. "Freiermuth v. Steigleman, 1900, 130 Cal. 392; 62 Pac. 615; 80 Am. St. R. 138. The question as to when conveyances of the homestead be- tween husband and wife may be considered fraudulent as to creditors is one not within the scope of this work. See Kettleschlager v. Fer- rick, 1900, 12 S. Dak. 455; 76 Am. St. R. 623; White Sewing Machine Co. v. Wooster, 1899, 66 Ark. 382; 74 Am. St. R. 100. CHAPTER XXIV. CAPACITY OF CORPORATIONS TO PURCHASE AND CONVEY REAL PROPERTY. §401. Capacity of corporation to §405. When its power is exceeded take title at common law the state only may com* — Statutes of mortmain. plain — Conveyance to 402. Capacity to take title — May corporation in such case take in fee though its du- voidable, not void, ration is limited. 406. Capacity of private corpo- 403. Effect of corporation's dis- ration to alienate real solution on title. property. 404. May purchase and hold 407. Capacity of public and only lands appropriate to quasi-public corporations corporate purposes— Pre- to alienate real property, sumption that land is so held. § 401. Capacity of corporation to take title at com- mon law — Statutes of mortmain. — At common law a corporation has capacity to purchase and hold such lands as are reasonably required for the purposes of its creation without any special authority. 1 By a series of "statutes of mortmain," 2 designed primarily to prevent the accumulation of lands by eccle- siastical foundations — bodies having some of the attri- butes of the later "corporation" 3 — this power was, in England, taken from corporations, both ecclesiastical and lay, 4 which were prohibited from purchasing lands with- 1 Lathrop v. Commercial Bank, 8 Dana 114 ; 33 Am. D. 481 ; First Parish in Sutton v. Cole 3 Pick. 232, 239; Page v. Heineberg, 40 Vt. 81; 94 Am. Dec. 378. 2 Beginning with Magna Carta (1225), 9 Hen. Ill, c. 36. 8 See Poll. & Mait. Hist. Bng. L., 2d ed. I, pp. 494 et seq. '(1391) 15Eich.II, c.5. 487 488 THE LAW OF CONVEYANCING. _ § 402 out a license from the crown (and originally also from the lord, if any, from whom the land was held); the vio- lation of the prohibition being a cause for forfeiture. Though these statutes of mortmain have not been rec- ognized as being in force in this country, 5 except in Penn- sylvania, 6 their policy has been adopted where restrictions have existed on the power of corporations to acquire real estate by devise, 7 or on their power to acquire more than a specified amount of land, a restriction frequently im- posed by statute on religious and charitable corporations especially. § 402. Capacity to take title — May take in fee though its duration is limited. — The capacity of corporations in this country being unaffected by the English statutes of mortmain, they may take, hold and convey such lands as are reasonably necessary for carrying out the business for which they were created unless some restriction is im- posed by their charters or by statute. 8 A corporation, moreover, though its duration is limited, 9 may take an es- tate in fee, so that it may convey title in fee; its grantee's title being unaffected by its own subsequent dissolution. 10 § 403. Effect of corporation's dissolution on title. — It has been said that at common law, on the dissolution of 5 See decisions note 1, supra, and Perrin v. Carey, 24 How. (TJ. S.) 465,498; Mallett v. Simpson, 94 N. C. 37; 55 Am. E. 594; Fayette Land Co. v. Louisville &c. E. Co., 1896, 93 Va. 274; 24 S. E. 1016. 6 Methodist Church v. Remington, 1 Watts 218; 26 Am. D. 61. A corporation is not prevented from acquiring lands, but from holding those which it has acquired without a license. Leazure v. Hillegas, 7 Serg. & R. 313 ; 1 Wilgus Corp. Cas. 1008. 'Downing v. Marshall, 23 N. Y. 366; 80 Am. D. 290; In re Mc- Graw's Estate, 111 N. Y. 66, 137; 19 N. E. 233; 2 L. E. A. 387; 1 Wil- gus 'Corp. Cas. 1034. 'Thompson v. Waters, 25 Mich. 214; 12 Am. R. 243. 9 Nicoll v. N. Y. & E. E. Co., 12 K. Y. 121; Bailey v. Platte &c. Ca- nal Co., 12 Colo. 230. 10 Wilson v. Leary, 1897, 120 N. C. 90; 26 S. E. 630; 58 Am. St. E. 778; 1 Wilgus Corp. Cas. 903. As to the use of the word successors in creating a fee, see ante, § 137. § 404 CORPORATIONS AS PARTIES. 489 a corporation its real estate reverted to the original grantor or his heirs, 11 but whether this is a correct statement of the common law or not, 12 the modern doctrine is that on the dissolution of a private business corporation, lands held by it are disposed of as part of its assets, and do not revert to the grantor. 13 On the dissolution, however, of a charitable corpora- tion, not organized for the purposes of private gain or profit, the rule that its real estate reverts to the donor is sometimes applied, 14 though in such a case the property is said to be still subject to the charitable use — at least where no private donor is entitled to it, — or if this use is contrary to public policy it is subject to a legitimate char- itable use conforming as nearly as practicable to that to which the property was originally dedicated. 15 § 404. May purchase and hold only lands appropriate to corporate purpose — Presumption that land is so held. — Statutory provisions are general in the United States declaring that private business corporations may acquire, ' hold and convey such real property as may be necessary for the transaction of their business, and limitations are at the same time often placed upon the power thus con- ferred. But without regard to such statutes it is a settled general principle that corporations have the right to pur- chase and hold such real property, and such only, as is necessary or reasonably convenient for carrying out their "State Bank v. The State, 1 Blackf. 267; 12 Am. D. 234; 1 Wilgus Corp. Cas. 891; Bingham v. Weiderwax, 1 N. Y. 509. " See Gray Perpetuities, §§ 44, 50, 51. "People v. O'Brien, 111 N. Y. 1; 18 N. E. 692; 7 Am. St. R. 684 ; 2 L. R. A. 255 ; 2 Wilgus Corp. Oas. 1426. 14 See Danville Seminary v. Mott, 1891, 136 111. 289 ; 28 N. E. 54, there having been generally in such cases a gift without consideration for a particular purpose, such a reverter resembles that which may occur on the breach of an express condition subsequent. Mott v. Danville Sem- inary, 129 111. 403, 415 ; 21 N. E. 927. 15 Mormon Church v. United States, 1890, 136 U. S. 1 ; 1 "Wilgus Corp. Cas. 906. 490 THE LAW OF CONVEYANCING. § 405 legitimate corporate purposes; 16 when, however, a purchase of lands has been made by a corporation there is, in gen- eral, a presumption, in the absence of evidence to the con- trary, that the purchase was made for a legitimate purpose, and the contrary must be shown by one alleging it. 17 § 405. Where its power is exceeded the state only may complain — Conveyance to corporation in such case void- able, not void. — Moreover, the question whether a corpo- ration which has acquired title to real estate has exceeded its powers in so doing is one that can be raised, generally speaking, only in a proceeding instituted in behalf of the state (or the national government in proper cases), 18 and even if the corporation has exceeded its powers, a forfei- ture of the lands so acquired does not follow as a conse- quence unless this is made by statute the penalty for the corporation's act. 19 Therefore, though the law of a state provided that no foreign or domestic corporation maintained for pecuniary profit should purchase or hold real estate in the state ex- cept as provided for in the act, and a foreign corporation, without attempting to comply with the provisions of the act relating to foreign corporations, purchased lands in the state and afterward conveyed them, it was held that the conveyance to the corporation was not void, but void- 16 Case v. Kelly, 1890, 133 TJ. S. 21; 1 Wilgus Corp. Cas. 1012; South and North Alabama E. Co. v. Highland Ave. B. Co., 1898, 119 Ala. 105; 24 So. 114; People v. Pullman's Palace Car Co., 175 111. 125; 51 N. E. 664 ; 1 Wilgus Corp. Cas. 926. 17 Stockton Savings Bank v. Staples, 1893, 98 Cal. 189 ; 32 Pac. 936 ; 1 Wilgus Corp. Cas. 1007 ; Begents of University v. Detroit Y. M. Soc'y, 12 Mich. 138; Conn. Mut. L. Ins. Co. v. Smith, 1893, 117 Mo. 261; 22 S. W. 623; 38 Am. St. E. 656. 18 National Bank v. Matthews, 98 U. S. 621. "People v. Stockton Savings & Loan Soc'y, 1901, 133 Cal. 611; 65 Pac. 1078; 85 Am. St. R. 225; Commonwealth v. N. Y. &c. E. Co., 1890, 132 Pa. St. 591; 19 Atl. 291; 1 Wilgus Corp. Cas. 1014; Fayette Land Co. v. Louisville &c. E. Co., 1896, 93 Va. 274; 24 S. E. 1016. See "Consequences of illegal or ultra vires acquisition of real estate by a corporation," A. M. Alger, 8 Harv. L. E. 15. $ 405 CORPORATIONS AS PARTIES. 491 able at the instance of the state, and that title passed to the corporation which then could convey good title not subject to be defeated by one holding from the grantor of the corporation. 20 Where the corporation has power to acquire title to land at all, its power in a particular instance to hold land already conveyed to it cannot be questioned by the grantor himself, 21 or by his heirs, 22 or by his subsequent grantee, 23 or by his creditors. 24 And, on the other hand, the corpo- ration is itself estopped, and cannot, for example, defeat the foreclosure of a mortgage executed by it on the ground that it was not authorized by law to acquire title to the land mortgaged. 25 As the corporation may in such cases convey good title, one who has contracted to purchase lands from it may be compelled by a court of equity to perform his contract, and cannot successfully defend a suit brought by the cor- poration for specific performance, on the ground that the corporation could not acquire title to the lands; 26 nor may the grantee of a corporation, when it is sought to enforce the conditions of the conveyance under which he has taken title, deny the validity of the title conveyed to him, alleging the incapacity of the corporation to hold the land. 27 2 °Fritts v. Palmer, 132 TJ. S. 282. "Long v. Georgia Pacific B. Co., 1890, 91 Ala. 519; 8 So. 706. 22 Shelby v. Chicago Ac. B. Co., 1892, 143 111. 385 ; 32 N. E. 438 ; Mal- lett v. Simpson, 94 N. C. 37 ; 55 Am. E. 594. That the heirs of devisor may not "complain in such a case, see Farrington v. Putnam, 1897, 90 Maine 405; 37 Atl. 652; 1 Wilgus Corp. Cas. 1029; 38 L. E. A. 339. Contra, that they may complain, see In re McGraw's Estate, 111 N. Y. 66; 19 N. E. 233; 2 L. R. A. 387; 1 Wilgus Corp. Cas. 1034. 23 Hafner v. St. Louis, 1901, 161 Mo. 34; 61 S. W. 632. "Gilbert v. Berlin, 1900, 70 N. H. 396; 48 Atl. 279. 25 Butterworth & Lowe v. Kritzer Milling Co., 1897, 115 Mich. 1; 72 N. W. 990. See Hagerstown Mfg. &c. Co. v. Keedy, 1900, 91 Md. 430; 46 Atl. 965. 2 " Banks v. Poitiaux, 3 Eand. 136 ; 15 Am. D. 706. 27 Cowell v. Springs Co., 100 TJ. S. 55 ; and that a lessee of corporation may not deny its title on such grounds when sued for rent or posses- 492 THE LAW OF CONVEYANCING. § 40G A distinction, however, is made in the application of this general rule, that the state only may complain when a corporation exceeds its power in taking real estate, be- tween contracts or conveyances that are incomplete or ex- ecutory and those that are completed. While the courts will not generally interfere, except at the instance of the state, to deprive a corporation of land already acquired by it, they will not aid it to acquire land which it has not authority to hold. 28 § 406. Capacity of private corporation to alienate real property. — A corporation having general capacity to take title to real property has as an incident to its ownership authority and capacity in general to alienate such prop- erty. 29 Moreover, although a corporation may not in a particular instance have the power to retain land which it has acquired, as against the state, yet, until the state complains, it may, as the decisions previously cited indi- cate, convey good title to its own grantee; and it may grant to another corporation rights to use land for a pur- pose within the powers of the grantee corporation, though it could not itself use the land for the same purpose. 30 But whether a corporation has the same power to alien- ate its real property that an individual has will depend upon the character of the corporation and the nature of its duties to the public, for some corporations are under greater disabilities in this regard than others are. 31 sion, see Rector v. Hartford Deposit Co., 1901, 190 111. 380; 60 N. E. 528; First Eng. Evangelical Church v. Arkle, 1901, 49 W. Va. 92; 38 S. E. 486. "Case v. Kelly, 133 IT. S. 21; 1 Wilgus Corp. Cas. 1012; Pacific R. Co. v. Seely, 45 Mo. 212; 100 Am.D. 369. 29 The case of Sutton's Hospital, 10 Coke 30a. Some matters of form have already been referred to : execution of conveyance by corpora- tion, ante, §§ 240, 241 ; the corporate seal, § 249 ; acknowledgment, §294. 30 Benton v. Elizabeth, 1898, 61 N. J. L. 411, 693; 39 Atl. 683, 906; 40 Atl. 1132. 31 See next section. § 407 COKPO RATIONS AS PARTIES. 493 A private corporation, having no peculiar public duties to perform, has full power to dispose of its property, un- less specially restrained, if such disposition is assented to by its stockholders and does not injuriously affect credit- ors ; 32 and it has been held that it may dispose of its en- tire property by direction of a majority of its stockholders who, in the exercise of a sound discretion, deem it expe- dient to do so and thus close its business to prevent a loss. 33 But a distinction as to the power of a majority of the stockholders to direct an alienation of its property has been made between such cases as these and those where such an alienation would have the effect of putting an end to a corporation which was doing a fairly prosperous business for which it was organized, and which it might have continued but for the alienation of its property. It has been held that under such circumstances the transfer will not be sustained as against dissenting stockholders, 34 and that not only minority stockholders but the state may properly complain of the action of the majority stock- holders. 35 § 407. Capacity of public and quasi-public corpora- tions to alienate real property. — Much of the real prop- erty of a municipal corporation is held by it in trust for the public, and the duties imposed by this trust can be properly discharged only when it continues in the man- 32 Aurora Agricultural &c. Society v. Paddock, 80 111. 263; 1 Wilgus Corp. Cas. 1065; Holmes &c. Mfg. Co. v. Holmes &c. Metal Co., 1891, 127 N. Y. 252; 27 N. B. 831; 24 Am. St. R. 448; Spokane v. Amsterdam Sch. Trustees, 1900, 22 Wash. 172; 60 Pac. 141. S3 Treadwell v. Salisbury Mfg. Co., 7 Gray 393; 66 Am. D. 490; 2 Wilgus Corp. Cas. 1787 ; Phillips v. Providence Steam Engine Co., 1899, 21 R. I. 302; 43 Atl. 598; 45 L. R. A. 560. "Harding v. American Glucose Co., 1899, 182 111. 551; 55 N. E. 577; 74 Am. St. R. 189 ; Forrester v. Boston & Montana Copper Co., 1898, 21 Mon. 544, 565 ; 55 Pac. 229, 353. "People v. Ballard, 1892, 134 N. Y. 269; 32 N. E. 54; 17 L. R. A. 737; 1 Wilgus Corp. Cas. 1066. 494 THE LAW OF CONVEYANCING. § 407 agement and control of such property. It cannot relin- quish its management and control by an alienation of such of its lands as the public has an interest in. There- fore, streets and parks which have been dedicated or set apart for public purposes, and property of similar char- acter, may not generally be conveyed by the municipal authorities. 36 But a municipal corporation may have title to real property which has not been dedicated to a public use, and which is held much as an individual holds his prop- erty. As an incident to its ownership of such property the corporation has power to alienate it unless restrained by its charter or a statute. 37 Quasi-public corporations that have obtained fran- chises in consideration of the discharge of duties in which the public is interested cannot deprive themselves, with- out special authority, of such property as is necessary to the proper discharge of these duties. Railroad companies are the most familiar bodies of this class, and the rule has been frequently applied to them when, under various forms of alienation, attempts have been made to transfer all or the chief part of their real property, 38 though they may convey such of their real property as is not needed for railway purposes. 39 Among other kinds of quasi- public corporations to which the rule has been applied are plank-road and turnpike companies, gas and electric 36 San Francisco v. Itsell, 80 Cal. 57; 22 Pac. 74; Methodist Church v. Hoboken, 33 N. J. L. 13; 97 Am. D. 696; Brooklyn Park Com'ra v. Armstrong, 45 N. Y. 234; Southport v. Stanley, 1899, 125 N. C. 464; 34 S. E. 641. "Ames v. San Diego, 1894, 101 Cal. 390; 35 Pac. 1005; Chicago v. Middlebrooke, 1892, 143 111. 265, 269 ; 32 N. E. 457 ; Fort Wayne v. Lake Shore &c. B. Co., 1892, 132 Ind. 558; 32 N. E. 215; 32 Am. St. R. 277. 38 Oregon Railway v. Oregonian Railway, 130 U. S. 1; Memphis &c. E. Co. v. Grayson, 88 Ala. 572; 7 So. 122; 16 Am. St. R. 69; Middlesex R. Co. v. Boston &c. R. Co., 115 Mass. 347 ; Coe v. Columbus &c. R. Co., 10 Ohio St. 372; 75 Am. D. 518. 89 Branch v. Jesup, 106 U. S. 468, 478 ; Yates v. Van De Bogert, 56 N. Y. 526 ; Walsh v. Barton, 24 Ohio St. 28. § 407 CORPORATIONS AS PARTIES. 495 lighting companies and canal companies and other corpo- rations charged with the performance of public duties. 40 40 Snell v. Chicago, 1893, 152 TJ. S. 191; Ammant v. New Alexandria Turnpike Co., 13 Serg. & B. 210; 15 Am. D. 593; Viealia Gas &c. Co. v. Sims, 1894, 104 Cal. 326; 37 Pac. 1042; 43 Am. St. E. 105; Brunswick Gas Light Co. v. United Gas Co., 1893, 85 Maine 532; 27 Atl. 525; 35 Am. St. E. 385. See Central Trans. Co. v. Pullman's Palace Car Co., 139 U. S. 24. CHAPTER XXV. CAPACITY OP ALIENS TO PURCHASE AND CONVEY REAL PROPERTY. § 408. At common law aliens could § 410. Alien may convey before acquire title by purchase, office found, not by descent. 411. Common law as modified 409. Nature of the title thus ac- by statute. quired — Office found. 412. Power of the states to re- move disabilities. § 408. At common law aliens could acquire title by purchase, not by descent. — At common law an alien could acquire a defeasible title to real property by purchase, 1 but could not inherit from either an alien ancestor or a citizen. 2 Real property acquired by devise is generally considered as acquired by purchase within this rule, as "purchase" includes devise not only at common law, 3 but under stat- utes which relate to the acquisition of real property by aliens. 4 § 409. Nature of the title thus acquired — Office found. — The title to real property thus acquired by an alien was defeasible by the sovereign. The alien could hold the property until "office found" — a proceeding by a public 1 Manuel v. Wulff, 1894, 152 U. S. 505. 2 Wunderle v. Wunderle, 1893, 144 HI. 40 ; 33 N. E. 195 ; 19 L. R. A. 84 ; Crane v. Reeder, 21 Mich. 24; 4 Am. R. 430; Glynn v. Glynn, 1901, 62 Neb. 872; 87 N. W. 1052. 8 Fairfax v. Hunter, 7 Cranch. 603; Jones v. Minogue, 29 Ark. 637; Guyer v. Smith, 22 Md. 239 ; 85 Am. Dec. 650. 4 Doehrel v. Hillmer, 1897, 102 Iowa 169; 71 N. W. 204; Stamm v. Bostwick, 1890, 122 N. Y. 48; 25 N. E. 233; 9 L. R. A. 597. 496 § 410 ALIENS AS PARTIES. 497 officer upon an inquest by which the fact of alienage was established and made a matter of record. 5 A conveyance, therefore, to an alien is not void, but voidable merely, and until the state or sovereign power procures an escheat or forfeiture upon proceedings in the nature of office found the alien has complete dominion over the property; 6 and to divest his estate during his life- time an office found, or some proceeding equivalent to it, on the part of the state is necessary. 7 Nor may the alien's title be assailed because of alienage by any person except the state. 8 § 410. Alien may convey before office found. — Having, therefore, a title subject to be divested by the state alone, the alien may, before office found, convey real property, acquired by him by purchase, to any one capable of tak- ing and holding title ; and the title of his grantee, accord- ing to the weight of authority, will not thereafter be sub- ject to be defeated on account of the grantor's alienage. 9 It has, however, been sometimes said that the grantee of the alien takes a title liable to be defeated by the state; 10 but as the real reason for the disability of aliens is that it is against public policy to allow those owing no allegiance to the government to own lands within its jurisdiction and protection, it would seem unreasonable and unjust that the state, after refraining from enforcing a forfeiture 6 Phillips v. Moore, 100 U. S. 208. "McKinley Creek Mining Co. v. Alaska Mining Co., 1902, 183 U. S. 563. 7 Jackson v. Adams, 7 Wend. 367; Elmondorfi v. Carmichael, 3 Litt. 472; 14 Am. D. 86. , 8 Governeur's Heirs v. Robertson, 11 Wheat. 332 ; Justice Mining Co. v. Lee, 1895, 21 Colo. 260; 40 Pac. 444; 52 Am. St. R. 216. 'Halstead v. Board Comm'rs, 56Ind.363; Goodrich v. Russell, 42 N. Y. 177; Oregon Mortgage Co. v.Carstens, 1896, 16 Wash. 165; 47 Pac. 421 ; 35 L. R. A. 841 ; Strickley v. Hill, 1900, 22 Utah 257; 62 Pac. 893; 83 Am. St. R. 786. ,0 Harley v. State, 40 Ala. 689; Scanlan v. Wright, 13 Pick. 523; 25 Am. D. 344; Purczell v. Smidt, 21 Iowa 540. 32 Brews Con. 498 THE LAW OF CONVEYANCING. § 411 while the land is held by an alien, should have the right to divest the title of one — especially if he be a citizen — simply because the land had been conveyed to him by an alien. When, however, an alien who holds title to land by purchase, dies without having conveyed the land and without having had his title divested in proceedings taken by the state, the state at once becomes entitled thereto, although he may have left those who might have inherited his land had he been a citizen. Nor is any proceeding in the nature of office found necessary to vest title in the state in such a case. 11 § 411. Common law as modified by statute. — The com- mon law principles as to the property rights of aliens are still generally recognized in the United States except in so far as they have been expressly modified by statute. Both in England and in most of the United States, however, there have been extensive modifications of the common law in this respect, and in some of the states al- most all distinctions between citizens and aliens regard- ing property rights have been removed, 12 while in about one-half the states special privileges are conferred only upon aliens resident in the state (or in some cases in the United States), non-resident aliens being prohibited in some cases from holding more than a certain amount of land, or from inheriting at all, or from inheriting unless 11 Slater v. Nason, 15 Pick. 345; Crane v. Reeder, 21 Mich. 24; 4 Am. R. 430; Colgan v. McKeon, 24 N. J. L. 566 ; Sands v. Lynham, 27 Gratt. 291 ; 21 Am. R. 348. See, for the application of this principle, where a statute has enabled alien heirs to inherit under certain circumstances, State v. Stevenson, 1898, 6 Idaho 367 ; 55 Pac. 886. 12 In the following states the disabilities of aliens are substantially re- moved, though in some (Maryland, Virginia, West Virginia) their re- moval is expressly restricted to " alien friends " : Alabama, Arkansas, Colorado, Florida, Maine, Maryland, Massachusetts, Michigan, Nevada (except Chinese), New Jersey, North Carolina, North Dakota, Ohio, Oregon, Rhode Island, South Dakota, Tennessee, Utah, Virginia, West Virginia. § 412 ALIENS AS PARTIES. 499 within a certain time they claim the land, and either be- come citizens or sell it. 13 In other states the policy has been to impose by consti- tution or statute somewhat greater restrictions on the right of aliens to take and hold real property than were imposed, by common law. 14 § 412. Power of the states to remove disabilities. — The removal of all an alien's common law disabilities or the addition of other disabilities is a matter within the control of each state, subject to the treaty-making power of the United States, under which the disabilities of aliens may be removed irrespective of the policy of any state ; 1B though, plainly, in the absence of any treaty the power of the state to legislate upon the subject is absolute. 16 As constitutional provisions regarding land-holding by aliens exist in many states, the legislatures of such states have not complete control of the subject. Yet constitu- tional provisions in a particular state enlarging the rights of aliens do not of themselves prevent the legislature of that state from still further removing their disabilities. So, for example, where a state constitution gives certain special privileges to "resident aliens," while the legisla- ture may not deprive this class of the privileges thus con- ferred, it may, nevertheless, extend to other aliens equal 13 No brief abstract of the laws would be of value, and they cannot here be set out at length. Some conditions as to residence appear in those of the following states : California, Connecticut, Delaware, Idaho, Illinois, Iowa, Indiana, Kansas, Kentucky, Minnesota, Mississippi, Montana, Nebraska, New Hampshire, New York, Pennsylvania, Texas, Wisconsin, Wyoming. 14 For example : By the constitution of Washington conveyances to an alien, except under certain circumstances, are void ; and a lease for forty-nine years to a corporation, the majority of whose stock is held by aliens, is void. State v. Hudson Land Co., 1898, 19 Wash. 85; 52 Pac. 574; 40 L. R. A. 430. 15 See ante, § 4. 16 Blythe v. Hinckley, 1901, 180 TJ. S. 333; Blythe v. Hinckley, 1900, 127 Cal. 431 ; 59 Pac. 787. 500 THE LAW OF CONVEYANCING. § 412 privileges, unless some other clause of the constitution prohibits such action. 17 "Nicrosi v. Phillipi, 1890, 91 Ala. 299; 8 So. 561; State v. Smith, 70 Cal. 153; 12 Pac. 121; Blythe v. Hinckley, 1900, 127 Cal. 431; 59 Pac. 787 ; Thompson v. Waters, 25 Mich. 214, 227. CHAPTER XXVI. CAPACITY OF CONVICTS TO TAKE AND CONVEY REAL PROPERTY. § 413. Attainder at common law — § 414. Effect of sentence for crime Statutory changes in Eng- in this country — Statutes, land. § 413. Attainder at common law — Statutory changes in England. — At common law among the consequences of at- tainder for treason or felony was the forfeiture of the lands of the attainted person to the crown as part of the pun- ishment for the crime, the forfeiture being enforced by office found. Moreover, the blood of the attainted person was corrupted so that it was no longer inheritable, and consequently his lands escheated to the lord, as if the tenant had died without heirs, though this escheat was subject to the paramount right of the crown to forfeiture. 1 There followed also as a consequence of attainder such a destruction or suspension of the rights of the attainted person, that he was accounted in law " civilly dead." 2 One attainted of treason or felony could, however, both take and alienate lands, subject to the crown's right to enforce a forfeiture. 3 In England statutory modifications were made in the >B1. Comm. II, 251, 252, 254; IV, 381-387; Digby Hist. L. Eeal Prop. 91, 132, 426. 'Civil death arose in other cases as where one entered a monastery, or abjured the realm as a consequence of claiming sanctuary. Bl. Comm. I, 132 ; IV, 332. 'Shep. Touchstone 232; Doe d. Griffith v. Pritchard, 5 Barn. & Ad. 765; 27 Eng. C. L. 179. 501 502 THE LAW OF CONVEYANCING. § 414 law of attainder, until in 1870 4 the crown's claim of for- feiture and escheat (except in the rare case of forfeiture following outlawry) was abolished, as well as corruption of blood. Under the act (somewhat similar to some American statutes) an administrator may be appointed by the crown to have the custody and management of the convict's property with power to alienate it, or a curator may be appointed whose duties are merely to preserve the property. The convict is not deprived of his lands, but if adjudged guilty of treason or felony and sentenced either to death or penal servitude, he is rendered legally incapable of alienating them during the continuance of- the sentence. Upon the completion of his sentence, or his pardon or death, such of his property as has not been disposed of reverts to him or his representatives. § 414. Effect of sentence for crime in this country — ■ Statutes. — In this country forfeiture of estates in fee and corruption of blood are generally impossible under our constitutions, nor is civil death generally recognized. Therefore as a rule, the disabilities consequent upon con- viction and sentence for crime are such only as are im- posed by statute. 5 Legislation, however, in several states has placed one sentenced to imprisonment under some disability in re- gard to taking and transferring property, though the ex- tent of the disabilities varies among the states having statutes on the subject. For example, in Rhode Island no person sentenced to * By the Forfeiture Act, 33 & 34 Vict., c. 23. 'Donnelly's Estate, 1899, 125 Cal. 417; 58 Pac. 61; 73 Am. St. R. 62; Willingham v. King, 23 Fla. 478; 2 So. 851; Smith v. Becker, 1901, 62 Kan. 541; 64 Pac. 70; 53 L. R. A. 141; Rankin's Heirs v. Rankin's Exrs., 6 T. B. Mon. (Ky.)531; 17 Am. Dec. 161; Avery v. Everett, 1881, 110 N. Y. 317; 18 N. E. 148; 6 Am. St. R. 368; 1 L. R. A. 264; Commonwealth v. Clemmer, 1899, 190 Pa. St. 202, 210; 42 Atl. 675; Davis v. Laning, 1892, 85 Texas 39; 19 S. W. 846; 34 Am. St. R. 784; 18 L. R. A. 82 ; Baltimore v. Chester, 53 Vt. 315 ; 38 Am. R. 677. § 414 CONVICTS AS PARTIES. 503 imprisonment in the state prison may, during his im- prisonment, make any will or conveyance of his prop- erty ; 6 and while this does not deprive him of his prop- erty nor of his capacity to enforce his rights in it, 7 he is unable to convey it, and there may be an administrator appointed to take charge of it. While there appear to be few American statutes di- rectly prohibiting, as does this statute, any alienation by the convict, those of Kansas, Missouri, Oregon and South Dakota may have that effect in providing that a sentence of imprisonment for any time less than for life suspends all the civil rights of the person so sentenced, 8 for it has been held that such a statute deprives the convict of the power of alienating or incumbering his property during the term of his imprisonment, and that a mortgage given by him during this period is void. 9 This would seem to be the effect of similar statutory provisions in California, Idaho, Montana, North Dakota and Utah 10 were it not for provisos in those states that the statutes shall not be construed to render the convict incompetent to convey his property. In most of the states already mentioned and in some others — as Maine, Minnesota and New York 11 — one sen- tenced to imprisonment for life is deemed civilly dead, and such a statute has been held to prevent the convict from inheriting. 12 Under some statutes his estate may be "administered and disposed of" as if he were naturally 6 R. I. Gen. L. 1896, ch. 285, § 53. 'Kenyonv. Saunders, 1894, 18 R.I. 590; 30 Atl. 470; 26 L. R. A. 232. 8 Kansas Gen. Stat. 1901, § 2301 ; Missouri R. S. 1899, § 2382 ; Oregon, Hill's Stat., §2021; S. Dak. Ann. Stat. 1901, §8237. 9 Williams v. Shackleford, 97 Mo. 322; 11 S. W. 222; but see La Chapelle v. Burpee, 69 Hun 436. 10 California Penal Co., §§ 673,674; Idaho Penal Co. 1901, §§5124, 5125; Montana Penal Co., §§ 1239, 1240; North Dakota R. Co. 1899, §§ 7706, 7707 ; Utah R. S. 1898, § 4501. 11 Maine R. S. 1883, ch. 64, § 18; Minnesota Stat. 1894, § 6836; New York Penal Co., § 708. 12 Donnelly's Estate, 1899, 125 Cal. 417 ; 58 Pac. 61 ; 73 Am. St. R. 62. 504 THE LAW OF CONVEYANCING. § 414 dead, and though it has been held that such a provision does not necessarily produce the effects of natural death in regard to the descent of his property, 13 there appear to have been no decisions as to the effect of slightly different statutes providing that upon imprisonment for life the convict's property shall be "divided among his heirs at law and distributed as though he were dead." u In a few states — for example, Kentucky, Missouri, New York and Virginia 15 — there may be appointed a commit- tee, curator or trustee of the convict's estate, and upon such appointment being made the convict's power to alienate any of his property would seem to be suspended during the continuance of the curatorship on principles analogous to those applied when a guardian has been appointed to care for the property of one of unsound mind. 16 "Smith v. Becker, 1901, 62 Kan. 541; 64 Pac. 70; 53 L. E. A. 141. See Avery v. Everett, 110 N. Y. 317; 18 N. E. 148; 6 Am. St. E. 368; 1 L. E. A. 264. 14 R. I. Gen. L. 1896, ch. 285, § 56. See Maine E. S. 1883, ch. 64, § 18. 15 Kentucky Stat. 1903, §§1383-1385; Missouri E. S. 1899, §8930; New York L. 1889, ch. 401, Birdseye's 3d ed. Gen. L., II, p. 1814; Vir- ginia Code, §§4115^121. 16 See ante, §§ 332, 333. CHAPTER XXVII. THE DISABILITY OF A GRANTOR ARISING FROM ADVERSE POSSESSION. § 415. Disability of disseisee at § 418. The principle recognized in common law — Statute 32 some states without leg- Henry VIII. islation. 416. Statutes in this country 419. To what transfers the rale adopting the principles of does not apply. this statute. 420. Character of possession ren- 417. Disseisee's conveyance not dering the transfer void. void for all purposes. 421. The old rule generally ab- rogated in the United States. § 415. Disability of disseisee at common law — Statute 32 Henry VIII. — At common law a right of entry was not assignable, though it might be released to the person in actual seisin or possession of the freehold; 1 and, as by the earlier common law such importance was attached to the possession of land and to the real, actual transfer of this possession when a freehold was conveyed, 2 there could be no conveyance of land held in adverse possession; there- fore in this sense it may be said that it was a rule of the common law that the conveyance of land in the adverse possession of another was void. 3 After the statute of uses 4 and when it was possible to transfer the legal title to land without this actual change a Co. Litt. 214a; Digby Hist. L. Real Prop. 149n; 2 Poll. & Mait. Hist. Eng. L. 91. 2 2 Poll. & Mait. Hist. Eng. L. 42, 81, 84. 'Bernstein v. Humes, 60 Ala. 528; 31 Am. R. 52; Bruckner's Lessee v. Lawrence, 1 Doug. (Mich.) 19, 38. « (1535) 27 Hen. VIII, c. 10. (505) 506 THE LAW OF CONVEYANCING. § 416 of possession there was enacted a statute 5 which prohib- ited the buying or selling of any pretended rights or titles to any lands, tenements or hereditaments, unless the sel- ler or his ancestor, or those by whom he claimed, had been in possession of the same, or of the reversion or re- mainder thereof, or had taken the rents or profits thereof, for a year next before the sale; this statute also confirmed all previous statutes against champerty and maintenance, but permitted the purchase of a pretended title by one in the lawful possession of the rents and profits of lands. The object of the statute was to prevent the transfer of titles for the purpose of maintaining or assisting a suit and to leave to the land-claimant the conduct of his own suit un- aided by the means of others who might expect to share in the property recovered. 6 § 416. Statutes in this country adopting the principles of this Statute. — The statute of Henry VIII has been fol- lowed more or less closely in statutes in some of the United States; the chief reason given for its adoption being that, in accordance with a wise policy, it prevents the purchase of doubtful claims by strangers to them for the purpose of litigation. 7 In several states, therefore, conveyances of lands which at the time of the conveyance are in the adverse possession of another are declared by statute to be void; 8 and in some states the buying or selling of such pi&tended titles is de- clared to be a misdemeanor. 9 5 The bill of braoery and buying of titles, usually called "The Pretended Title Act," 32 Hen. VIII, c. 9 (1540). 6 Baker v. Whiting, 3 Sumn. 475. 7 Russell v. Doyle, 84 Ky. 386, 389; 1 S. W. 604; McMahan v. Bowe, 114 Mass. 140; 19 Am. R. 321. "Connecticut Gen. Stat. 1902, §4042; Kentucky Stat. 1903, §210; New York Real Prop. L., §225; N. Y. R. S. Birdseye's 3d ed. Ill, p. 3057; Tennessee Code 1896, §§3171, 3172, 3175. 9 New York Penal Co., § 130; N. Y. R. S. Birdseye's 3d ed. I, p. 407; North Dakota Co. 1899. §7002; a similar provision in South Dakota Penal Code, §7648, though found in the statutes of 1901, appears to § 417 grantor's disability — adverse possession. 507 § 417. Disseisee's conveyance not void for all pur- poses. — Nevertheless a conveyance made under such cir- cumstances where these statutes exist (as also in those states where the same doctrine is recognized without legis- lation) are not generally regarded as absolutely void for all purposes. As against the party in possession, holding the land mentioned in the conveyance adversely to the grantor, the conveyance passes no title and is thus often said to be void, 10 or voidable" as to him, and it gives the grantee, generally, no right to maintain an action in his own name against the adverse claimant. Yet such a conveyance is usually regarded as valid be- tween the parties to it and as transferring to the grantee the right to maintain an action of ejectment against the adverse possessor in the name of his grantor. 12 The grantee in such cases uses his grantor's title, which still remains in the grantor in spite of his deed, for the purpose of getting possession of the land; and, therefore, if the grantor, before the grantee brings an action against the adverse possessor, releases his legal title to the ad- verse possessor, the latter has then the legal title and possession under it, and neither the grantor nor the grantee in the former deed can recover the land. 13 § 418. The principle recognized in some states without legislation. — In a few other states the principle of the statute of Henry VIII has been recently recognized irre- spective of express statutes adopting it. have been repealed in 1899, see Civ. Co., § 4492 ; Campbell v. Equitable Loan &c. Co., 1903 (S. Dak.), 94 N. W. 401. 10 Mead v. Fitzpatriok, 1902, 74 Conn. 521; 51 Atl. 515; Green v. Cum- berland &c. Co., 1903 (Tenn.), 72 S. W. 459; Farmers' Bank's As- signee v. Pryse, 1903 (Ky.), 76 S. W. 358. 11 Fort Jefferson Improvement Co. y. Dupoyster, 1899, 108 Ky. 792 ; 51 S. W. 810; 48 L. E. A. 537. "Farnum v. Peterson, 111 Mass. 148; Galbraith v. Paine, 1903 (N. Dak.), 96 N. W. 258 ; Key v. Snow, 90 Tenn. 663 ; 18 S. W. 251. But see contra Crowley v. "Vaughan, 11 Bush (Ky.), 517. "Dever v. Hagerty, 1902, 169 N. Y. 481 ; 62 N. E. 586. 508 THE LAW OF CONVEYANCING. § 419 In. Alabama, for example, a conveyance of lands which at the time of the execution of the conveyance are in the adverse possession of a third person, while good as be- tween the parties to it, is void for champerty as to the adverse possessor; 14 and in Florida the same doctrine pre- vails. 15 In Indiana, at an early period, the general rule that a conveyance of land in the adverse possession of another is void as against the adverse possessor, was adopted as part of the common law ; 16 but the grantee could main- tain an action in the name of his grantor; for, as the deed was valid between the parties to it, the grantor could not deny the use of his name for this purpose, and if the' land was recovered by the grantee in the name of the grantor, the recovery inured to the benefit of the grantee. 17 As the present statute, 18 while not directly authorizing the conveyance of lands held adversely to the grantor (as do statutes in half the states), provides that any person having the right to recover the possession- of real estate, or to quiet the title thereto in the name of any other per- son, shall have a right to recover possession or quiet title in his own name, the older doctrine seems to be prac- tically abolished. 19 § 419. To what transfers the rule does not apply. — The rule that conveyances of lands by one disseised are invalid as against the disseisor, does not apply to certain conveyances, even though the lands are adversely pos- " Berry v. Tennessee &c. R. Co., 1902, 134 Ala. 618; 33 So. 8; Pear- son v. Adams, 1901, 129 Ala. 157; 29 So. 977; Chevalier v. Carter, 1899, 124 Ala. 520; 26 So. 901. "Reyes v. Middleton, 1895, 36 Fla. 99; 17 So. 937; 29 L. R. A. 66. "Patterson v. Nixon, 79 Ind. 251, 255. 17 Steeple v. Downing, 60 Ind. 478, 484. 18 Burns' R. S. 1901, § 1086. 19 See Peck v. Sims, 120 Ind. 345; 22 N. E. 313; Chapman v. Jones, 1897, 149 Ind. 434; 47 N. E. 1065; Winstandley v. Stipp, 1892, 132 Ind. 548; 32 N. E. 302. § 420 grantor's disability — adverse possession. 509 sessed when the conveyances are executed. For instance, such a conveyance is not invalid if made in pursuance of a valid contract entered into while the land was not held adversely. 20 Nor is the doctrine that the conveyance of a disseisee is void, applicable to a patent or deed of land from the state, because the state cannot be disseised; 21 nor does the rule apply to judicial sales. 22 It has also been held that one in possession under a conveyance from a minor does not hold adversely within the meaning of these statutes so that his possession will render void a convey- ance by the former infant to another after his majority in disaffirmance of his former voidable conveyance. 23 A re- lease made to one in possession by the disseisee seems to have been always allowable. 24 § 420. Character of possession rendering the transfer void. — While the possession of a third person which will render void a conveyance of the land must be adverse to the grantor, and such as, if continued long enough, will give the possessor title, 25 it need not generally be under color of title or claim of some specific title, unless the statute provides that the possession shall be by one "claiming under a title adverse to that of the grantor," in which case it has been construed to require a claim un- der some specific title ; 26 not every invasion, however, of a grantor's rights as landowner, even though of a charac- ter which if continued would ultimately ripen into a per- 2 °Harral v. Leverty, 50 Conn. 46; 47 Am. E. 608; Greer v. Winter- smith, 85 Ky. 516; 4 S. W. 232; 7 Am. St. E. 613. 21 Candee v. Hayward, 37 N. Y. 653; Oassedy v. Jackson, 45 Miss. 397, 407. 22 Ward v. Edge, 1897, 100 Ky. 757; 39 S. W. 440; Coleman v. Man- hattan Beach Co., 94 N. Y. 229. 25 Moore v. Baker, 1892, 92 Ky. 518; 18 S. W. 363. 24 Adams v. Buford, 6 Dana 406, 413. 25 Merwin v. Morris, 1899, 71 Conn. 555; 42 Atl. 855; Murray v. Hoyle, 1890, 92 Ala. 559; 9 So. 368. 26 Arents v. Long Island E. Co., 1898, 156 N. Y. 1; 50 N. E. 422; Kreuger v. Schultz, 1896, 6 N. Dak. 310; 70 N. W. 269. 510 THE LAW OF CONVEYANCING. § 421 petual easement, will amount to such adverse possession, or ouster of possession, as will render the grantor's con- veyance invalid; so, for example, the possession and occupancy of a structure projecting over, but not touch- ing, the grantor's land is not such ouster. 27 While the possession of the adverse holder must gener- ally be actual as distinguished from constructive, 28 it is enough to make his possession adverse within the policy of these statutes that he is in actual possession of a part of the land claiming the whole tract under an assurance of title in which the boundaries of the whole are specified and defined. 29 § 421. The old rule generally abrogated in the United States. — In a few states the principle of the statute of Henry VIII has never been recognized by either the courts or legislatures. The reasons for the statute have been considered inapplicable to this country, and it has been deemed the better policy to render the transfer of land as free as possible and to disregard the question as to whether the grantor is in or out of possession. 30 And in accordance with the same policy statutes have been enacted in more than half the states, and in many where until recently the statute of Henry VIII had been recognized, abrogating entirely the old doctrine. These statutes either declare that no grant or conveyance of lands shall be void for the reason that the lands are in the adverse possession of another than the grantor when the conveyance is executed, or they provide that one may convey his interest in lands in the adverse possession of 27 Norwalk Heating &c. Co. v. Vernam, 1903, 75 Conn. 662 ; 55 Atl. 168. 88 Dawley v. Brown, 79 1ST. Y. 390. 89 Green v. Cumberland &c. Co., 1903 (Tenn.) ; 72 S. W. 459. 30 Hall's Lessee v. Ashby, 9 Ohio 96 ; 34 Am. D. 424 ; Borland's Les- see v. Marshall, 2 Ohio St. 308, 314; Stoever v. Whitman, 6 Binn. (Pa.) 416, 420 ; Overfleld v. Christie, 7 Serg. & Rawle (Pa.) 173 ; Campbell v. Everts, 47 Texas 102. § 421 grantor's disability ADVERSE possession. 511 another with the same effect as if they were not so held. 31 The abolition, however, of the rule making void con- veyances of land in adverse possession will not render valid contracts and conveyances which are essentially champertous in their nature and thus void. 32 "Ark. Dig. Stat. 1894, §701; Cal. Civ. Co., §1047; Colo. Mill's Co., § 431 ; Ga. Code 1895, § 3605 ; Idaho Civ. Co. 1901, § 2393 ; 111. E. S., ch. 30, § 4 ; Iowa Ann. Co. 1897, § 2916 ; Kan. Gen. Stat. 1901, § 1208 ; Maine E. S. 1883, ch. 73, §1; Mass. Rev. L. 1902, ch. 127, §6; Mich. C. L. 1897, §8961; Minn. Gen. Stat. 1894, §4165; Miss. Co. 1892, §2433; Mo. B. S. 1899, §905; Montana Co. 1895, §1443; Neb. Com. Stat* 1901, §4123; Nev. Com. L. 1900, §2673; Ore. Hill's L. 1892, §3009; E. I. Gen. L. 1896, ch. 201, §23; So. Dak. Civ. Co. 1901, §4492 (though, see Penal Co., § 7648); Utah E. S. 1898, §1980; Vermont Stat. 1894, §2240; Wis. Stat. 1898, §2205; Wyoming R. S. 1899, §2735. "Johnson v. Hilton, 1895, 96 Ga. 577; 23 S. E. 841; Illinois Land &c. Co. v. Speyer, 1891, 138 111. 137; 27 N. E. 931; Burton v. Perry, 1893, 146 111. 71; 34 N. E. 60; Stewart v. Welch, 41 Ohio St. 483. CHAPTER XXVIII. THE EXAMINATION OP THE TITLE TO REAL PROPERTY. § 422. General characteristics of § 427. Defects not shown by rec- the recording system. 423. Imperfections in title. 424. Defects shown by original instruments in the chain of title, and by records of them. Defects shown by other records — The abstract of title. Defects not shown by rec- ords — Forged instru- ments. 425. 426. ords — Identity of person — Delivery — I n f a n c y — Homestead. 428. Defects not shown by rec- ords — Questions on death of landowner. 429. Purchaser's risk in relying on the records alone. 430. Possession, not shown by records, always easily in- vestigated. 431. Possession by grantor, after conveyance, as notice. § 422. General characteristics of the recording sys- tem. — Certain prominent characteristics of our prevailing system of recording conveyances will be noticed with the purpose of considering the principal matters to be regarded in the investigation of title to real property, and with the further purpose of introducing in the following chapter a brief consideration of that means of reform popularly known as the " Torrens System." The chief characteristic of our system of conveyancing is that, generally speaking, title to land passes on the de- livery by the grantor to the grantee of a deed of convey- ance properly signed (and, in many states, sealed, etc.) by the grantor. Registration of instruments affecting the title to real property is provided for in each state and this registration (512) §422 EXAMINATION OF TITLE TO REAL PROPERTY. 513 is held to impart notice of the contents of instruments lawfully recorded. In order, however, to be recorded, each instrument must be properly executed by the grantor and then prop- erly authenticated by some public officer. It is then re- corded by another public officer in books provided at public expense. It is the duty of these public recording officers to record only those instruments that are executed and authenticated with all the formalities prescribed by law. As a means of securing prompt recording by the grantee, statutes provide in general that his unrecorded conveyance, while good as between him and his grantor, is invalid as against any subsequent deed which a. bona fide grantee may receive from the grantor; in some states (about one-third of them) this preference to the subse- quent conveyance over the prior unrecorded one is given only when the later is first recorded. This general system is distinctively American. At common law there was no obligation to record convey- ances, though it is probable that the statute of enrolments (1535) which related to deeds of bargain and sale, 1 sug- gested to the colonists the idea of recording deeds. Stat- utes of Queen Anne's time 2 provided for record in certain English counties ; but for half a century before this in several American colonies laws had provided for such records. The American design was to place a record of titles to real estate in a public office within the reach of anyone, on which record anyone might rely in buying the land or accepting an incumbrance, and the theory of this system is that the records will show the condition of the title: which is generally true in practice, but with important exceptions which the lawyer must have in mind. It is thus the policy of the law that, so far as title de- 1 Ante, § 12 ; 27 Hen. VIII, c. 16. 2 (1703) 2 & 3 Anne, c. 4; (1708) 7 Anne, c. 20. 33— Beews. Con. 514 THE LAW OF CONVEYANCING. § 423 pends on the fact of alienation from one person to another, it shall be evidenced by some solemn written instrument, and that there shall be some evidence preserved of most of these written instruments by record, and, further, that the record of an instrument entitled to be recorded shall be notice to all who may deal with the property. There may, however, be a good title to land in one who has never had written evidence of his title; and this either by descent or by a voluntary, though parol, trans- fer, with lapse of time, 3 or by adverse possession for a sufficient time. And, on the other hand, there may be what seems to be evidence, from writings and records, of good title in one who really has no title. § 423. Imperfections in title. — Lord Hardwicke once said: 4 "It is impossible in the nature of things there should be a mathematical certainty of a good title," and while this is true, it is yet possible to establish, with ' reasonable certainty, the true condition of every title, al- though in many instances it costs much pains to do so. Imperfections in the title may proceed from various causes. Thus particular defects may arise: 1. From matters apparent on the face of the instru- ments themselves through which title is claimed. 2. From matters appearing in the record of these in- struments, and in the record of other instruments affect- ing the title. 3. From matters appearing neither on the face of the instruments under which title is claimed, nor in the records. Many of the defects that will appear from an inspec- tion of the original instruments through which title is claimed will be shown also from the records of those in- struments, provided the records are true copies of the originals. But there are matters that may affect the title 3 See ante, §17. 4 In Lyddal v. Weston, 2 Atk. 20 (1739). § 424 EXAMINATION OF TITLE TO REAL PROPERTY. 515 which can be discovered only by an examination of the original instruments themselves, as, for example, a fraudulent alteration by interlineation or erasure. It is probably true that in most cases persons intending to pur- chase land rely rather on the records (or copies, or ab- stracts of them) than on the original instruments, but it is not entirely prudent to do so, and wherever it is possi- ble all original instruments in the chain of a vendor's title should be read by the proposing purchaser. § 424. Defects shown by original instruments in the chain of title, and by records of them. — Among defects shown by the records, if they are true copies, as well as by the originals, may be noted the following, most of which have been discussed in the preceding pages. There may be insufficient operative words, or words of conveyance; 5 or an insufficient description which may be so defective as to make tbe conveyance void, 6 or so de- fective as to make the record ineffectual as notice. 7 The title may be incomplete or incumbered by reason of cove- nants running with the land, or restrictions of various kinds by way of condition, or covenant, or reservation appearing in instruments directly in the chain of title; 8 there may be recitals affecting the title, or there may be insufficient recitals when full recitals are required by stat- ute, 9 and there may be insufficient signing, sealing, attes- tation or acknowledgment. These defects will appear in the records as well as in the originals, if the records are correct copies of the originals, but in order that they may be seen to be defects one must have some knowledge of forms and the substantive law of real property in conveyancing. The examination of rec- 5 Ante, § 71. 6 Ante, §§76, 77,80. 'Ante, §74. 8 Ante, §§ 227-232. 9 Ante, §§49, 50. 516 THE LAW OF CONVEYANCING. § 425 ords, whether in the original or abstracted, by those really unfamiliar with the law of the subject, is practi- cally of little value, though it is the method often re- sorted to. § 425. Defects shown by other records — The abstract of title. — A title may be defective because of what ap-v pears in the public records relating to the land con- cerned, but not necessarily involved in a consideration of the instruments through which the present owner claims. The "public records" which may contain matter affect- ing the title are not merely the registers in which deeds and mortgages are recorded, but books and documents of various sorts which are open to the inspection of the pub- lic, such as court records, original papers in suits, and records kept in other books than those which contain the copies of deeds and mortgages. When one intends to buy land or accept a mortgage as security, he practically seldom sees many of the original documents relating to the land, nor does he even examine the records, by himself or his attorney. He usually exam- ines, or has examined for him, an abstract of title. The American abstract of title is generally an examination of the title to a particular piece of land; the English abstract of title is an abstract of the title of a particular person to certain land. The American abstract of title is an abbre- viated history of a particular piece of land, and states usually at its beginning that it is an " abstract of title to lot No. — ." As its name indicates, it is an abstract, a summary or condensed history of the title, containing statements of the material parts of all conveyances of every kind which affect the land, as shown by the records . When it is considered that there is such great variety of matters of record that may affect land titles, it is clear that it requires a person of special skill and training to properly prepare an abstract. He must determine not only what instruments are to be summarized, but what § 426 EXAMINATION OF TITLE TO REAL PROPERTY. 517 parts of them are to be noted. An abstract should show not merely patents, deeds and mortgages, but wills; judi- cial proceedings relating to the land, — for example, partition suits, proceedings to quiet title, etc.; notice of liens, such as taxes, assessments, lis pendens, mechanics' liens, execution sales, etc. "An abstract in a legal sense is a summary or an epitome of the facts relied on as evi- dence of title * * * a nd must contain a note of all conveyances, transfers or other facts relied on as evi- dences of the title, together with all such facts, appearing of record, as may impair it." 10 Abstracts are not gener- ally prepared by practicing lawyers, but by men who make a specialty of that line of work, and who are in a greater or less degree fitted for it; they are required in some states to give bonds, and, generally, for a failure to use due care they are liable in damages to the person em- ploying them, directly or through an agent 11 , and by some decisions to any one else who relies in good faith on the correctness of the abstract. 12 § 426. Defects not shown by records — Forged instru- ments. — Assuming that the abstract is skillfully prepared, it is important to remember that, inasmuch as it is taken from the records, it cannot show more than the records show, and that there are many things which may affect the legal title that the records cannot show. A proposing purchaser is not bound to inquire as to whether any equi- ties may possibly exist in favor of third persons, unless there are facts known to him that should lead him to in- quire as to rights of third persons : if this were not so there would be practically no limit to his inquiries outside 10 Heinsen v. Lamb, 117 111. 549, 556; 7 N. E. 75. 11 Young v. Lohr, 1902, 118 Iowa 624 ; 92 N. W. 684 ; Kenyon v. Char- levoix Imp. Co. (Mich.), 1903, 97 N. W. 407; 10 Det. Leg. News 713. "See Brown v. Sims, 1899, 22 Ind. App. 317; 53 N. E. 779; 72 Am. St. R. 308, note; Gate City Abst. Co. v. Post, 1898, 55 Neb. 742; 76 N. W. 471 ; Dickie v. Abst. Co., 1890, 89 Tenn. 431 ; 14 S. W. 896 ; 24 Am. St. E. 616. 518 THE LAW OF CONVEYANCING. § 426 the records. But this rule applies only where the vendor has the legal title to the land, while others may hold equities therein. Where the vendor has no complete legal title to convey, the rule caveat emptor applies. For example, the record affords no means of verifying the genuineness of the signature of a grantor. If an instrument purporting to affect the title to land is forged it cannot affect the title. Therefore the registration of a forged instrument has no effect on the title, and even an innocent purchaser takes the risk of forgery. 13 This principle applies not merely, of course, to deeds, but to other instruments which may be recorded as affecting title, as, for example, a mortgage, 14 and so where a re- lease of a mortgage is a forgery, an innocent purchaser buys subject to the mortgage. 15 Nor can the genuineness of the signature of the official taking the grantor's ac- knowledgment be' verified from the records. It is to be remembered also that forgery may be accom- plished in other ways than by signing some other person's name as grantor. The grantee's name may be changed - by a slight erasure, so that some other person's name will appear as grantee, and the latter by then giving a deed or a mortgage, though he signs his own name, cannot con- vey a good title, for he is not the grantee; and the fact that such a deed is recorded will not help the innocent purchaser. 16 Or the alteration of a date, by giving an apparent prior- 13 Austin v. Dean, 40 Mich. 386 ; Haight v. Vallet, 1891, 89 Cal. 245; 26 Pac. 897; 23 Am. St. K. 465; Gray v. Jones, 14 Fed. 83. "Lee v. Kellogg, 1896, 108 Mich. 535; 66 N. W. 380. "D'Wolf v. Hayden, 24 111. 525. 16 Pry v. Pry, 109 111. 466. In this case the deed was made to John W. Pry and Hamilton Pry, and placed in the hands of John Pry, a rel- ative, for them, they being infants. The depositary changed the deed by erasing " Hamilton Pry " and the initial "W," and recorded the deed, which then appeared to convey title to him, and afterward con- veyed parts of this land to innocent purchasers. On a bill filed by John W. Pry, it was held that all these deeds should be set aside. § 426 EXAMINATION OF TITLE TO REAL PROPERTY. 519 ity to a deed over a judgment and making the record title seem clear, may cause loss to an innocent purchaser. 17 Even though the grantor's signature and that of the ac- knowledging officer both be genuine, they yet may be considered in law as forgeries, because obtained by a trick, and an innocent purchaser or mortgagee may in such a' case be the loser by relying on the records alone. This is forciby illustrated by a case 18 where one obtained the signature of his mother-in-law to a deed which she did not intend to execute or deliver, and also by a trick obtained the notary's signature to the certificate of ac- knowledgment, and then mortgaged the land for $5,000 to one person and for $1,300 to another. Both of these mortgagees relied on the record, but it was held that their mortgages should be canceled, as well, of course, as the original recorded deed — as in effect it was a forgery, though the signature was genuine. In a similar case 19 a lawyer obtained a deed from an old man who supposed he was signing the duplicate of a lease he had just executed. The deed thus obtained was put on record, and a mortgage given on the land to secure $6,000. The mortgagee examined the record, and found the title clear. On a bill filed by the owner to set aside the deed and the mortgage, it was held that the deed was a forgery, and the deed and mortgage must be canceled. 20 " Reck v. Clapp, 98 Pa. St. 581. 18 Marden v. Dorthy, 1899, 160 N. Y. 39 ;. 54 N. E. 726 ; 46 L. E. A. 694. 19 McGinn v. Tbbey, 62 Mich. 252; 28 N. W. 818; 4 Am. St. E. 848. 20 In Marden v. Dorthy, 160 N. Y., at p. 50, it is noticed that such cases as these are to be distinguished, as far as innocent purchasers are concerned, from those where a deed is obtained by fraud : a fraudu- lent grantee may create a valid incumbrance on the property in favor of innocent parties, since as to such parties he has the title and has been clothed with power to deal with the property : the deed obtained by fraud is voidable, but until set aside it transfers the title, but a forged deed is no deed and conveys no title. See Cornell v. Maltby, 1901, 165 N. Y. 557, reported as Carr v. Maltby, 59 N. E. 291 . 520 THE LAW OF CONVEYANCING. § 427 § 427. Defects not shown by records — Identity of per- son — Delivery — Infancy — Homestead. — The identity of th e grantor with the owner of the land is not shown by the records, and if the signature of the person taking the ac- knowledgment be genuine, there may be a question whether he was at the time the official he is represented to be, and the records cannot show this. For example, in some states no officer of a bank can be a notary public, and his acceptance of any such office vacates his appoint- ment as notary; and in some, no person holding any official relation to any bank, banker or broker can act as notary in any matter in which the bank, banker or broker is in- terested. 21 The records do not conclusively show delivery, though it should be said that where there has been a record stand- ing for some years it is practically sufficient evidence of delivery to warrant one ordinarily in relying upon it. 22 Infancy or unsoundness of mind are not disclosed by the records, and the effect of conveyances by persons so incapacitated has been discussed. 221 While in some states there will be some record showing whether the land conveyed is or is not a "homestead," this is by no means universally true, and, there is often nothing on the record to show the character of the land in this respect; and yet conveyances of a homestead in which the special formalities required are neglected, are often void. 23 § 428. Defects not shown by records — Questions on death of landowner. — When a landowner dies, his land passes either by the law of descent or by his will. Sub- sequent purchasers from his devisees or his heirs claim al See ante, § 287, n. 92. As to the effect of the officer's undisclosed interest see §§ 285-288. M See ante, § 304. ! »' Chapters XX and XXI. a Ante, §§ 392-395. § 428 EXAMINATION OF TITLE TO REAL PROPERTY. 521 title to the land through his will or through descent. Suppose, for example, that one of the links in a chain of title is a devise, and a purchaser has taken his title from the devisee. The will containing the devise is of record, in one office or another, and the devisee may be identified. It would seem at first sight that the devisee has a valid title, and may give one to his grantee, and that the chain of title is complete and may be relied on. But facts, shown by no records, may render the title imperfect. For example, 24 there was a will executed in 1849, by which the testator devised his real estate to his widow. Five years afterwards he died (1854) , and his will was duly probated. Sixteen years after his death (1870) his widow, as devisee under the duly probated will, conveyed the land to the present holder. Between the time of making the will and the testator's death (1849-1854) a child was born to the testator. It was held that the birth of a child to the testator before his death, but after the execution of his will, operated as a revocation of the will. The child now (twenty-three years after the testator's death) claims the title as heir, and regains the. land from the purchaser from the widow, who was the original dev- isee. 25 The question of implied revocation of a will by such a change in the domestic circumstances of a testator, as well as the effect of the omission of a child's name from a will, is generally regulated by statute, and these statutes vary greatly. By marriage and the birth of a child after the making of a will, the will is by many stat- utes either partially or wholly revoked, 26 so that a person u Fallon v. Chidester, 46 Iowa 588. 85 See also Salem Nat'l Bank v. White, 1895, 159 111. 136; 42 N. E. 312, explained in Hawhe v. Chicago &c. E. Co., 1897, 165 111. 561 ; 46 N. E. 240. 26 In some states adoption will produce this effect: Hilpire v. Claude, 1899, 109 Iowa 159 ; 80 N. W. 332 ; 46 L. E. A. 171 ; 77 Am. St. E. 524 ; Glascott v. Bragg, 1901, 111 Wis. 605 ; 87 N. W. 853. 522 THE LAW OF CONVEYANCING. § 428 taking as purchaser from a devisee named in the will, or from an executor with power of sale, cannot from that fact alone be sure of his title. 27 If, however, the devise is regular, but a later will is discovered, making a different disposition of the same property, the effect may be serious as to those who have derived title from the devisees named in the first will; for a will may be admitted to probate at any time after the testator's death, in the absence of statutory limitations to the contrary. 28 It may be that there seems to be no will, and one hav- ing possession as heir of the deceased landowner may convey or mortgage real property, and on the subsequent discovery of a will the devisees under it may deprive the heir's grantee of the land. 29 In case there is actually no will the land passes to the intestate's heirs; title to it depends subsequently upon the question of heirship. Administration may be or may not be taken out upon the deceased's personal estate, but even if it be, decrees, recitals and records as to who are his nest of kin for purposes of a distribution of personal property, are not necessarily conclusive concerning the heirs' title to real estate. A subsequent holder must, at his peril, ascertain whether those claiming as heirs are really such, and, if so, whether they are all the heirs. As time goes on this becomes more difficult to ascertain, and in fact in the case of persons of foreign birth, leaving no issue, it is often practically impossible to learn whether "Robeno v. Marlatt, 1890, 136 Pa. St. 35; 20 Atl. 512; Smith v. Olm- stead, 1891, 88 Cal. 582; 26 Pao. 521 ; 22 Am. St. R. 336; 12 L. R. A. 46. See "Subsequent, birth of children as a revocation of a will," by M. H. Altizer, Va. L. Peg., IX, pp. 473, 579. 118 In Haddock v. Railroad, 146 Mass. 155, 15 N.E.495, a will was ad- mitted to probate sixty-three years after death of testator, and in Reb- han v. Mueller, 114 111. 343; 2 N. E. 75, thirteen years. The matter is regulated by statute in many states, but the length of time varies from a "reasonable time" to several years. s'Reid's Admr. v. Benge, 1902 (Ky.), 66 S. W. 997. § 429 EXAMINATION OF TITLE TO REAL PROPERTY. 523 those who claim as heirs are such, or are all the heirs. The statutes of limitation may in time remove some diffi- culties arising from this cause, but owing to the many ex- ceptions made in them a defect arising from uncertainty as to heirs may not be settled for a long time. 30 § 429. Purchaser's risk in relying on the records alone. — There may be other interests than those yet named, the existence of which can be ascertained only by investiga- tion outside the records, as: rights of dower or curtesy, or analogous statutory rights ; questions of fact as to the happening or not happening of various conditions on which the title depends; the existence of incumbrances of a physical nature, such as a right of way, etc. The purchaser, therefore, who relies upon the records alone takes the risk that the actual state of the title shall correspond with the title that appears of record, and this is as a fact often done, not merely to save expense, but because of ignorance as to the desirability of doing any- thing else. Or he may pursue inquiries outside the rec- ord. In many cases this latter course is feasible, and involves but little trouble and expense. In some cases, however, it is expensive and troublesome, and very often purchasers, though advised of the necessity and impor- tance of investigating beyond the records, prefer to take the risk than to go to the expense and trouble of investi- gation. When, however, a lawyer is consulted as to the title, he should, in justice to his client and to himself, advise the client that there is much beyond the abstract of title and the records to be examined. While it is not strictly his duty to look up equities not apparent or fairly to be inferred from the abstract, nor to consider the matter of unrecorded evidence, nevertheless, as he is 80 Statutes in some states exist for determining who are the heirs of a deceased person. But by the terms of some such statutes the result is only prima facie evidence : see, for example, Michigan C. L. '97, § 9471 ; Lorimerv. Judge, 1898, 116 Mich. 682; 75 N. W. 133. 524 THE LAW OF CONVEYANCING. § 430 consulted about the title to the land, both his client's in- terests and his own require that he should at least direct attention to those matters not shown by the records which may affect the title. § 430. Possession, not shown by records, always easily investigated. — One matter which the records do not show is often overlooked, though easily investigated; this is the matter of possession, which, as it affects the title most seriously should not be ignored. The general rule is that the possession of land is notice of the possessor's rights. If, therefore, for example, one is asked to lend money on a mortgage security on land the record title to which is in the proposing mortgagor, but there is an unrecorded land contract given by the mortgagor by which he has agreed to sell the same land to another, and this other is in possession of the land when the mortgagee takes his mortgage, relying on the records, the mortgagee will take what title he gets subordinate to the prior equity of the vendee under the land contract, because the possession by the vendee under his unrecorded contract is notice of the contract and of his equity in the land; until actual notice of the mortgage the vendee in possession may continue to pay his purchase money to his vendor, and if he makes full payment to his vendor before actual notice, he may get a deed cutting out the mortgage. 31 So the possession of land by the grantee named in an unrecorded deed is in most states notice of his title to a subsequent purchaser from the same grantor ; an unre- corded deed is valid as between the parties and as against subsequent purchasers having notice of it, and possession is notice. 32 And the principle applies to the actual pos- 31 Jaeger v. Hardy, 1891, 48 Ohio St. 335; 27 N. E. 863; Williams v. Spitzer, 1903, 203 111. 505; 68 N. E. 49; Van Baalen v. Cotney, 1897, 113 Mich. 202 ; 71 N. W. 491 ; Corey v. Smalley, 1895, 106 Mich. 257 ; 64 N. W. 13; 58 Am. St. R. 474; Chapman v. Chapman, 1895, 91 Va. 397; 21 S. E. 813; 50 Am. St. R. 846. 3 *Beattie v. Crewdson, 1899, 124 Cal. 57; 57 Pac. 463; Roberts v. $ 430 EXAMINATION OF TITLE TO REAL PROPERTY. 525 session of an easement, though there is no record of any instrument creating it. 33 Where this doctrine is recognized it is generally held that a tenant's possession gives notice of his landlord's title as well as of his own; his possession imposes upon a purchaser the obligation of inquiring by what right the tenant holds the land. 34 As a title good on the records may amount to nothing after a lapse of time by reason of adverse possession, the importance of looking into the possession cannot be over- estimated where there is an interval of several years be- tween the conveyances as recorded; and as contracts and deeds are often drawn in one state for land in another, a matter to be noted in this connection is that the statutes of limitation vary much in the different states. It should, however, be noticed in this connection, that if one is in possession of land and the records show some conveyance under which he is entitled to possession, his possession will generally be referred to this record title, and a subsequent purchaser will not be charged with no- tice, by his possession alone, of any other title or equity which the occupant may have; for, as his possession is consistent with the record title, it will be presumed to be under that title. 35 Decker, 1903 (Wis.), 97 N. W. 519. See Miner v. Wilson, 1895, 107 Mich. 57 ; 64 N. W. 874, for the combined effect of misdescription and possession. Where a statute requires actual notice of the former deed by a subsequent purchaser in order to dispense with recording the oc- cupant's conveyance, possession has been held not to amount to notice of an unrecorded deed. Lamb v. Pierce, 113 Mass. 72. 33 Ashelford v. Willis, 1902, 194 111. 492; 62 N. E. 817; Eobinson v. Thrailkill, 110 Ind. 117; 10 N. E. 649. 31 Haworth v.Taylor, 108 111. 275; O'Neill v. Wilcox, 1901, 115 Iowa 15; 87 N. W. 742; Wilkins v. Bevier, 43 Minn. 213; 45 N. W. 157; 19 Am. St. E. 238; United States v. Sliney, 21 Fed. 894. 85 Schumacher v. Truman, 1901, 134 Cal. 930; 66 Pac. 591 ; Mullins v. Butte Hardware Co., 1901, 25 Montana 525; 65 Pac. 1004; 87 Am. St. E. 430. 526 THE LA.W OF CONVEYANCING. § 431 § 431. Possession by grantor, after conveyance, as no- tice. — It is sometimes stated as a general rule, that pos- session by a grantor after a conveyance from him is recorded, is no notice to subsequent purchasers of any rights reserved to the grantor. 36 On the other hand, there are many later decisions holding that the grantor's continued possession is notice; because, as the law allows possession to have the effect of notice, there is no good reason for making a distinction between possession by a stranger to the record title and possession by the grantor after delivery of his deed. 37 S6 Bloomer v. Henderson, 8 Mich. 395, 404; 77 Am. D. 453; Van Keuren v. Railroad, 38 N. J. L. 165; May v. Sturdivant, 75 Iowa 116; 39 N. W. 221 ; 9 Am. St. R. 463 ; Love v. Breedlove, 1890, 75 Texas 649 ; 13 S. W. 222. Bloomer v. Henderson, 8 Mich. 395— though often cited— has been somewhat modified by later decisions : it has been held that the continued possession of a grantor for a long time after the record- ing of his deed to another may raise a presumption that he has either retained, or since acquired, some right to the land; Bennett v. Robin- son, 27 Mich. 26; Stevens v. Hulin, 53 Mich. 9S. 3, Groff v. Bank, 50 Minn. 234; 52 N. W. 651 ; 36 Am. St. R. 640; Ro- nan v. Bluhm, 173 111. 277, 288; 50 N. E. 694; Turman v. Bell, 54 Ark. 273; 15 S. W. 886; 26 Am. St. R. 35. CHAPTER XXIX. REGISTRATION OF TITLE TO REAL PROPERTY. § 432. Defects in present system § 438. Appearance of interested suggest desirability of re- form in registration laws. . 433. The "Torrens System"— 439. Briefly historical. 434. General principles of the title registration acts. 440. 435. Proceedings to determine and register title are ju- dicial — The application — 441. The court. 436. Notice to adverse claimants — Process— Constitutional 442. objections. 437. The investigation of title— 443. Functions of the exam- parties — The conclusive effect of decree. Subsequent dealings with the land appear on the registry. No title can be acquired to registered land by ad- verse possession. Transmission of title on death of owner of regis- tered land. The assurance or indemnity fund. Voluntary, or compulsory, registration. § 432. Defects in present system suggest desirability of reform in registration laws. — Such defects in our pres- ent system as are indicated in the preceding chapter, and the uncertainties as to land titles now quite generally ex- isting, have induced the consideration of measures of re- form. It is because of defects in this system that title guaranty companies have been formed for the purpose of investigating titles and taking risks that an individual may not feel warranted in taking for himself. And it has been urged that our system now furnishes ample security to any owner or purchaser, especially as he may generally get his title insured. 1 The policies of these guaranty v 1 See "The Torrens System; Its Cost and Complexity," by Wm. C. Niblack, 1903. The author of this work admits that his judgment may be affected by the fact that he is a stockholder in, and attorney for, the Chicago Title and Trust Co. (527) 528 THE LAW OF CONVEYANCING. § 433 companies, however, usually contain important excep- tions, and, while they offer protection against pecuniary loss to the extent of the policy, they cannot, of course, make the title indefeasible, nor can they protect the in- sured in the possession of the land, which is what he de- sires, especially where expensive improvements have been made. At its best the present system is simply the putting on record at length of great numbers of documents that do not, after all, show what the title to the land concerned really is. The accumulation of these copies as time goes on is one of the objections made to the present method, for the records must be safely kept in buildings provided at public expense. Each time the land, or a part of it, is dealt with, these records must be examined, that is, the abstract must be "brought down to date," for, while rec- ords cannot absolutely show the title, they cannot be ig- nored. So that repeated examinations of title are required by each purchaser or mortgagee, with repeated expense and delay. And one of the incidents of such a method is the liability to error in transcribing and indexing so many documents. §433. The "Torrens System" — Briefly Historical. — Among the reforms considered within recent years the "Torrens System" of registering title to real property and of dealing with the title after registration, has been most discussed and is the most radical. 2 This system takes its name from Robert Torrens. He was born in Cork; emi- grated to South Australia in 1841; was collector of cus- toms and thus, though not a lawyer, became familiar with the shipping laws. It is said that the starting point of 2 The American statutes providing for registration of land titles differ materially in important particulars from the Australian, and are not appropriately designated "Torrens laws." As Torrens was, however, the first to direct the attention of English speaking people to registra- tion of title, any scheme of title registration at all like the Australian will probably be called by his name. §433 KEGISTEATION OF TITLE. 529 nis system was \he application ot the principles which regulate the transfer of vessels by means of registration, to the transfer of land. In parts of Europe the same general plan has been in use for centuries, and there is nothing new about the fundamental principles involved, 3 but it does not appear that Torrens had studied these continental methods or was, at first, even aware of them. He suggested the reform in 1850, but met with much opposition. The chief justice of South Australia told him the proposed system was "both unwise and impractica- ble," but in 1858 it was adopted in that colony and has since been adopted throughout Australia, where it has become so popular that about eighty per cent, of all the land of Australia has been brought under the law. New Zealand and several Canadian provinces then adopted the system, and after years of discussion England has fol- lowed the colonies. 4 By its adoption in Illinois (1895 and 1897), California (1897), Massachusetts (1898), Oregon (1901), Minnesota (1901), Colorado (1903), 5 and its discussion in many other states, it has become to such an extent American that the Australian, Canadian and English acts and de- cisions need not be consulted by one who wishes to get a s " Land Transfer by Registration of Title in Germany and Austria- Hungary." (Am. Law Rev., vol. 31, p. 827.) *38 and 39 Vict., c. 87 (1875) ; 60 and 61 Vict., c. 65 (1897). 6 The acts to which references are made in this chapter are : Califor- nia, Stat. 1897, ch. CX. ; Colorado, L. 1903, in effect July 12, 1903 ; Illi- nois, L. 1897, p. 139, Hurd's R. S. 1899, ch. 30, §§ 44-154, Starr & Curt. Supp., vol. 4, pp. 259-282 ; Massachusetts, Stat. 1898, ch. 562, to be found as amended (in 1899 aud 1900) in Mass. R. L. 1902, ch. 128— in the re- vision, § 1 of the original act is omitted, and the section numbers, there- fore, are not the same as in the original act ; Minnesota, Laws 1901 , ch. 237; amended, Laws 1903, ch. 234; Ohio, 92 O. L. 220 (1896), this act -was declared invalid in 1897 and repealed in 1898, 93 O. L. 8 ; Oregon, Gen. L. 1901, p. 438. 34 — Brews. Con., ^30 THE LAW OF CONVEYANCING. § 434 general view. Indeed, under our constitutions a too close following of the foreign models is detrimental. 6 § 434. General principles of the title registration acts. — The details of the American statutes vary, and at some points the differences extend beyond details; nevertheless, the underlying principles of the several acts are the same. The features of the system of registration of title to land as distinguishing it from the present system are that it provides for the registration of title, not merely for the registration or recording of deeds, or instruments affect- ing the title; under it title to land passes only by the en- try of- the transfer upon the official register, not by the execution and delivery of the deed; it is intended that this register shall show the condition of the title to real property upon a single page, and all dealings with the land must be entered on this page. In this system two main objects are sought to be at- tained: First, certainty and facility in proof of title. Second, simplicity in dealings with land after the title is thus proved. The chief means by which the first result is secured is the issuance of a document called a certificate of title, which authoritatively declares that the person named in it owns a specified estate in a specified piece of land. The first and important step, then, is to secure the reg' istration of title, the "initial registration," as it is called. § 435. Proceedings to determine and register title are judicial — The application — The court. — In order that general constitutional provisions may be complied with, the "initial registration" of title, upon which the certifi- 6 The Ohio law, 1896, was declared unconstitutional in 1897; State v. Guilbert, 56 0. St. 575; 47 N.E.551; 38 L. R. A. 519; 60 Am. St. R. 756; and the first Illinois law, 1895, was also: People v. Chase, 165 111. 527; 46 N. E. 454; 36 L. R. A. 105; in each case because the Australian wiodel was followed too closely. § 435 REGISTRATION OF TITLE. 531 cate of title is issued, must be the result of judicial pro- ceedings to establish title; there must be notice to all hav- ing interests adverse to those of the applicant for registra- tion; and only judicial officers may exercise judicial func- tions, whether as to the initial registration or as to subse- quent dealings with the registered title. The first proceeding under the registration acts is the application by the person claiming to own the land in fee simple, or, under the Massachusetts and the proposed Virginia acts, the person having the power of appointing or disposing of an estate in fee simple in the land, for the registration of his title. The application is in writing, signed and sworn to by the applicant, describing the land, and naming the occu- pants and adjoining owners. The owner begins, by this application, a proceeding in court to have ascertained and confirmed his title. In Illinois the application is addressed to the judges of the circuit court for the county in chancery. In Massachusetts it is addressed to the judge of the "court of land registration," a court specially constituted by the registration act, and having exclusive original jurisdiction of all applications made under the act, with power to hear and determine all questions aris- ing upon such application. In Colorado and Minnesota it is made to the district court of the county in which the land is situated. The Massachusetts provision, for the creation of a spe- cial court to administer the law, is thought by many to have advantages over the Illinois plan of having the pro- ceedings before the circuit court, or the Minnesota plan, which is similar. The courts named in the laws of these latter states, being chiefly occupied with other matters, will not be able to give the necessary attention to the im- portant and often intricate questions arising in registra- tion cases, while under the Massachusetts plan there is always at hand a judge, supposed to be well versed in real 532 THE LAW OF CONVEYANCING. § 436 property law, who may be consulted at all times by the recorder or his assistants, or by any applicant or owner, in regard to questions that may arise. Under the Massa- chusetts plan the recorder of the court of land registration is its clerk, and acts under its direction. The registers of deeds throughout the state are assistant recorders, and in executing the provisions of the act are subject to the general direction of the recorder, and act "in accordance with the rules and instructions of the court." If an as- sistant recorder is in doubt upon any question, or if any question is raised by a party interested in subsequent dealings with registered land, the question is referred to the court, which determines the matter after notice to all parties and a hearing. 7 § 436. Notice to adverse claimants — Process — Consti- tutional objections. — On the filing of this application provision is made for giving notice to all who may have interests in the land adverse to those of the applicant. At this point difficulties occur, and objections have been raised on constitutional grounds to every method sug- gested. Under our constitutional provisions that no man shall be deprived of his property without due process of law, it has been maintained by many that each American statute is unconstitutional in that there is no sufficient notice re- quired to be given to, and no sufficient process against, persons having claims adverse to the applicant. It ap- pears to be further claimed by some that no scheme can be devised which will fully meet this constitutional objec- tion. This was one of the chief objections to the Ohio law, and was one of the grounds of the court's decision 7 Before the Massachusetts plan can be adopted in some states their constitutions need amendment. The Virginia constitution of 1902 pro- vides: "The legislature shall have power to establish such court or courts of land registration as it may deem proper for the administration of any law it may adopt for the settlement, registration, transfer or as- surance of titles to lands in the commonwealth, or any part thereof." § 436 REGISTRATION OF TITLE." 533 against it. 8 But the provisions as to the issuance and service of summons, and giving of notice, were materi- ally different in the Ohio law from the provisions as to these matters in the Illinois and Minnesota laws and the later acts of Colorado and Oregon. The last Illinois act, which was held constitutional, 9 and the Minnesota act, which has been declared so, in spite of this objection, 10 are certainly less objectionable in this regard than the Ohio law. These acts practically re- quire all adverse claimants who reside within the juris- diction of the court to be made parties defendant, and to be served with process. All other persons are to be made parties defendant under the name and designation of "all whom it may concern," and notice is to be published, and mailed to defendants substantially as in other chan- cery cases. The original Massachusetts act provides at this point for mailing notices and for publication by the recorder, and for the posting of notice on the land. The supreme court of that state holds the act constitutional — two jus- tices dissenting. 11 The Massachusetts act thus disregards what appears to have been the general practice, under statutes in- volving the determination of land titles, of bringing resident defendents into court by summons served, in re- quiring simply mailing of notices, publication, and post- ing on the land. Justice Holmes says in this connection that, with the rest of the court, he thinks the act should be amended in the direction of still further precaution to secure actual notice before a decree is entered; and that if 8 State v. Guilbert, 56 Ohio St. 575, 617; 47 N. E. 551; 38 L. E. A. 519; 60 Am. St. B. 756. 9 People v. Simon, 1898, 176 111. 165; 52 N. E. 910; 44 L. E. A. 801; 68 Am. St. E. 175. 10 State v. Westfall, 1902, 85 Minn. 437 ; 89 N. W. 175; 89 Am. St. E. 571 ; 57 L. E. A. 297. "Tyler v. The Judges, &c, 1900, 175 Mass. 71 ; 55 N. E. 812; 51 L. E A. 433. 534 THE LAW OF CONVEYANCING. § 437 it is not amended the judges of the court ought to do all that is in their power to satisfy themselves that there has been no failure in this regard before they admit a title to registration. In accordance with this suggestion the act has been amended so that the land registration court is re- quired to, "so far as it considers it possible, require proof of actual notice to all adjoining owners and to all persons who appear to have any interest in or claim to the land included in the application. Notice to such person by mail shall be by registered letter." 12 § 437. The investigation of title — Functions of the ex- aminer. — After the application and notice, the question of the applicant's title is investigated by official " exam- iners of title," who report to the court. The court, if sat- isfied with the applicant's title, then makes a decree, order- ing the title to be registered, and that a duplicate certificate of title issue to the applicant. In this way it is hoped to attain the first general object of the system, — to make the decree conclusive as to showing title. These ques- . tions, it will be noticed, are determined by a court, not by the recorder or examiner of titles. Under the system adopted in the Australian colonies the application to have land placed on the register of titles was submitted, together with deeds, abstracts of title and plans of the land, to a barrister and a conveyancer, styled " examiners of titles," for their examination. These " examiners " then reported to the " recorder " or " registrar " their conclusions upon the applicant's title. 12 Mass. R. L. 1902, ch. 128, § 31. The Supreme Court of the United States has not yet passed directly on the constitutional questions in- volved in these laws. In Tyler v. Judges, &c, 1900, 179 TJ. S. 405, the court held — four justices dissenting — that it had no jurisdiction to pass on the questions involved, as it did not appear that the plaintiff was personally interested in the litigation, or had been, or was likely to be, deprived of his property without due process of law. The writ of error which had been sued out for the purpose of testing the constitutionality of the Massachusetts act was therefore dismissed. § 437 REGISTRATION OF TITLE. 535 They made such recommendations regarding the serving of notices as the nature of the case and the domicile of parties likely to be interested in the land seemed to re- quire. It was not essential, however, that there should be in all cases, as a basis for the registration of the appli- cant's title, any other proceeding than this. The adoption in the Illinois law of 1895 of this scheme of giving the registrar authority to determine the applicant's title on the advice of two competent attorneys acting as examiners, rendered that law unconstitutional, as confer- ring judicial power on the registrar in violation of the constitutional restriction against the legislative grant of such powers to non -judicial officers. 13 Under the later statutes in the several states which pro- vide for constitutional judicial proceedings it would be possible for the court, which must ultimately determine whether or not the applicant's title is good, to undertake the investigation of the title, upon evidence submitted by the parties interested and without independent investiga- tion. Each American act, however, provides for the ap- pointment of an examiner of titles to aid the court in this investigation. The application is referred to him immediately after its filing, and his duty is to investigate the facts stated therein and to see that all persons having claims to the land are before the court. When the exam- iner suggests that a person named by him be made a de- fendant, his recommendation cannot be ignored by the applicant without rendering the decree of registration of the applicant's title void as against this person and as against all persons in privity with him and who are not defendants. 14 The examiner has extensive powers and responsibilities. "People v. Chase, 1897, 165 111. 527; 46 N. E. 454; 36 L. R. A. 105. This was also one of the grounds of the decision in the Ohio case ad- verse to the constitutionality of the law. State v. Guilbert, 1897, 56 Ohio St. 575; 47 N. E. 551; 38 L. R. A. 519; 60 Am. St. R. 756. » Dewey v. Kimball (Minn.), 1903, 95 N. W. 317, 895; 96 N. W. 704. 536 THE LAW OF CONVEYANCING. § 437 Though he may hear the parties and their evidence, he also investigates the title independently of proofs offered. By some of the acts it is his especial duty to ascertain if the land is occupied, and if so, the nature of the occupa- tion, and even where there is no such express require- ment this would be a part of his duty, as the application must state the facts in regard to occupation, and the ex- aminer must report on all matters stated in the applica- tion. He looks into all matters affecting the title, whether they are of record or in pais. His report is similar to that of a master in chancery where that officer is recognized, 15 or to that of a referee. 16 As the effect of a decree of reg- istration is far reaching, it is evident that the examina- tion of title should be thoroughly conducted by one well qualified for such work. This is especially true where there is no separate land registration court established and where, therefore, the court to be aided by the exam- iner is one of general jurisdiction. In statutes strictly following the Illinois act additional importance attaches to the office of examiner of titles because of the power given him in regard to dealing with registered land when an equitable interest has been created in it by a declara- tion of trust. Most of the acts provide that no instru- ment dealing with land so held shall be registered with- out an order of court approving it as being in accordance with the trust. But under the Illinois act this may be done either "pursuant to the order of some court, or upon the written opinion of two examiners " that such instru- ment is in accordance with the true intent of the trust, and when the registrar is satisfied with this opinion the validity of this later transfer is conclusively established. 17 15 Gage v. Consumers' El. Lt. Co., 1901, 194 111. 30; 64 N. E. 653. 16 Minnesota Act, § 24. Minn. Laws 1901, ch. 237. "Illinois Act, §§ 68, 69, Ills. Hurd's E. S. 1899, ch. 30; the Oregon Act, §§ 67, 68, Oregon Gen. L. 1901, p. 438, makes the later deal- ing dependent upon the order of some court "or the filing of an affidavit of the person applying for registration" of the instrument, that it is in accordance with the meaning of the trust. To peculiar provi- § 438 KEGISTRATION OF TITLE. 537 § 438. Appearance of interested parties — The conclu- sive effect of the decree. — The decree mentioned in the last section is not made until every party interested has had an opportunity to appear and answer, stating objec- tions to the application; but if there is no appearance de- fault may be entered, 18 and the report of the examiner of titles is considered by the court, with such other proof as the court may require; for example, as to boundaries, etc. If interested parties appear and answer there is a hearing before the decree is made and entered. Evidence estab- lishing title good as against the world is essential to war- rant a decree awarding initial registration of title. 19 It is held in the case last cited that the proceeding to register title is not a bill in equity to remove a cloud, and that the applicant must establish that the true title is in him before he can have relief or require those whom he has brought in as defendants to bring their titles before the court for adjudication ; the defendant, therefore, may be heard to urge that the applicant has not shown a title proper to be registered, and if this be true the application should be dismissed, without regard to the question whether the title or claims of the defendant are but mere clouds; if, however, the applicant shows a title proper to be registered, he may not only have a decree to that ef- fect, but may also have the claims of defendants decreed to be invalid or but clouds on his title. 20 The Massachusetts law makes the decree conclusive from its entry against all persons if no appeal is taken sions in the California law regarding the investigation of the applicant's title is undoubtedly largely due the fact that the act is practically inop- erative. The examiner's compensation is made a part of the costs of the proceeding, to be paid by the applicant (§ 18), and an abstract of title is required to be filed by him, but the abstract can be furnished by those only who have given bonds in the sum of not less than ten thou- sand dollars, which sum "may be increased from time to time by or- der of the court." (§ 6.) California Act, Cal. Stat. 1897, ch. CX. "Reed v. Carlson, 1903 (Minn.), 95 N. W. 303. 19 Glos v. Kingman & Co., 1904 (111.), 69 N. E. 632. 80 See Lancy v. Snow, 1902, 180 Mass. 411 ; 62 N. E. 735. 538 THE LAW OF CONVEYANCING. § 438 within thirty days, except that one deprived of an inter- est in land by a decree of registration obtained by fraud may file a petition for review within a year, provided no innocent purchaser for value has acquired an interest. In Illinois persons residing within the state if not par- ties to the decree may assert such rights as they may have within two years — the act providing this short period of limitations; otherwise, and as to parties to the decree, the decree is conclusive, subject to the right of appeal as in other chancery cases. No exception as to the conclusiveness of the decree is made in the acts, as a rule, as to infants or persons oth- erwise under disability. 21 The provision of the Massachusetts law for the conclu- siveness of the decree practically at once, is regarded by many as preferable to that of the Illinois law. It has been adopted in Minnesota, though with a mod- ification — sixty days being there allowed, from the entry of the decree, in which persons not bound by it, because of irregularity, etc., may bring action, provided no inno- cent purchaser for value has acquired an interest. The supreme court of Minnesota holds this provision valid as a statute of limitations, saying: "The time limit seems to us to be a short one, but, in view of the complete and far-reaching provisions of the act for notice to all parties, and the fact that the right of appeal as in civil actions is given, we cannot hold that the legislature arbitrarily exercised its discretion in fixing the limit," and further holds that the provision forbidding the commence- ment, in opposition to the decree, of any action to recover the land after sixty days cannot apply to an adverse claim- ant in actual possession upon whom no summons is served. 23 "The constitution of the United States gives to minors no special rights beyond others, and it is within the legislative competency of a state to make or not to make exceptions in favor of infants, or per- sons under disability. Vance v. Vance, 103 IT. S. 514, 521. 22 State v. "Westfall, 85 Minn. 437; 89 N. W. 175; 89 Am. St- R. 571; § 439 REGISTRATION OF TITLE. 539' § 439. Subsequent dealings with the land appear on the registry. — The acts uniformly provide that the ob- taining of a decree of registration and the entry of a cer- tificate of title shall be regarded as an agreement run- ning with the land, and binding upon the applicant and all his successors in title, that the land shall be and always remain registered land, and subject to the provi- sions of the act and all amendments thereof. An owner of registered land may convey or mortgage or lease it as if it were not registered, and he may use for these pur- poses the same forms of instruments that he would use had his land not been registered ; but none of these in- struments (except a lease for a short term) shall take effect as conveyances, but shall operate only as a contract between the parties and as evidence of authority to the recorder to make registration, when accompanied by the owner's certificate of title. This certificate, on a convey- ance of an estate in fee, is surrendered and canceled, though not necessarily always so when a lesser estate is conveyed. The act of registration is the operative act to convey or affect the title, not the delivery of a deed as is now the case. These features are of importance and are essential to the proper working of the system. The subsequent deal- ing with the land in this way is one of the fundamental principles upon which registration of title is based. The reform was much delayed in England by the un- workable character of Lord Westbury's Act of 1862, 57 L. E. A. 297. The Massachusetts provision in regard to the conclu- siveness of the decree against all persons not named in the proceed- ings — except by the general designation "to all whom it may con- cern" — even though residing within the state, is regarded by the dis- senting justices of the court of that state as rendering the act unconsti- tutional; Tyler v. Judges, 175 Mass., at p. 91. But as the court holds it constitutional, the certificate of title based on the decree is conclusive, and purchasers may so regard it, and thus one of the chief objects of the law is at once attained. 540 THE LAW OF CONVEYANCING. § 440 which provided that " registered land may be conveyed, charged, etc., * * * by any deed * * * or in- strument by which such land, if not registered, might now according to law, be charged, etc.; " the use of deeds, thus sanctioned, involving a combination of two incom- patible principles, "registration of deeds " and "regis- tration of titles." 23 The principle is similar to that ap- plied in the transfer of stock in a corporation; the stock is generally transferable only on the books of the com- pany; the " certificate of stock" is the certificate of title to the stock — it is the evidence of title; and when a trans- fer is made the certificate is surrendered and canceled, and entries are made on the books by the proper officer of the company authorized by the owner. And the owner when he takes the stock practically agrees that the title to it shall be transferred in this way only. Provision is made in the acts for notification to the re' corder by the owner of loss or theft of his certificate, and for the issuance to him of a certificate, in place of one lost, on proper proof. § 440. No title can be acquired to registered land by adverse possession. — In adherence to this principle that title shall be acquired to registered land only through a transfer on the books, is the provision of each act relating to adverse possession: that no title to registered land in derogation of that of the registered owner shall be ac- quired by prescription or adverse possession. Mere possession, therefore, becomes no notice of rights, and all rights appear as entered on the original certificate of title. No adverse possession can ever ripen into title. This feature is considered by the advocates of the sys- tem as one of its most admirable features — for, they say, the more wrongful the "squatter's" acts are in gaining and keeping possession, the more sure he is to acquire "Torrena, "Essay on Transfer of Land by Kegistration "— Cobden Club, 1881. $ 441 REGISTRATION OF TITLE. 541 the title in fee simple under our present system. Its op- ponents, on the other hand, argue that title by limitation of time is a most reasonable and proper basis of owner- ship, and that a law which abolishes it is opposed to the best interests of society. It will be noticed that the provisions of these acts will work a radical change in law in this respect, and if all land should be registered the owners might remain out of possession and leave land unimproved for any length of time, without the possibility of any one's acquiring the title. Statutes of limitation have been said to rest on the pol- icy of compelling those who have a right of entry to take actual possession of the land and settle the country, at the peril of being ousted by those who will settle the land and improve the country. 24 This provision of these acts, therefore, not only makes a radical change in our present law, but opens up an important question of public policy. § 441. Transmission of title on death of owner of reg- istered land. — Under our present system certain diffi- culties arise 24 * when title to real property is transmit- ted on the death of the owner in fee. Uncertainty and doubt must exist in many cases because of the difficulties of ascertaining who are the successors to the title. Many difficulties would be removed by letting the property pass at the owner's death to his executor or administrator, to be dealt with in the manner in which personal estate is dealt with under such circumstances. The Illinois Torrens law, section 70, provides that in such case the estate in registered lands shall " go to the personal representatives of the deceased owner in like man- ner as personal estate, whether the owner dies testate or intestate, and shall be subject to the same rules of admin- istration, as if the same were personalty, except as other- " Kinney v. Vinson, 32 Texas 126, 128. "•See ante, §428. 542 THE LAW OF CONVEYANCING. § 441 wise provided in this act, and except that the rule of di- vision shall be the same as in the descent of real property, or as shall be provided by will ;" and the law also, in sec- tion 76, provides for filing in the registration office proof of heirship before the distribution of undevised registered land, which shall be conclusive evidence in favor of all persons subsequently dealing with the land that certain persons named as the only heirs at law of the deceased owner are such heirs. That is, the executor or adminis- trator will be registered on production of evidence of his authority (his "letters" testamentary or of administra- tion), and the rights of those beneficially interested will be ascertained and enforced, and it may be settled defi- nitely and without great delay what persons are the suc- cessors to the title. Questions concerning heirship, dower, homestead, creditors' rights, may be conclusively settled once and for all, and cannot arise some time after- wards, as possible defects of title, needing investigation at each later transfer. It seems that a reform of this nature could be made without adopting the whole plan of registering titles, and it further seems desirable, whether or not the general plan is adopted. If, however, the general scheme of registering titles is adopted this part of it appears almost essential to the proper working of the system. The Massachusetts law, section 91, and the Minnesota law, section 74, provide for more direct transmission to the heirs ordevisees, who themselves may make application for the entry of a new certificate; upon which application the court issues notice to the executor or administrator and others interested, and, after hearing, directs the entry of a new certificate, or certificates, to the persons entitled as heirs or devisees. These latter acts do not, it seems, expressly provide for conclusively establishing the matter of heirship, — but the provisions as to transmission on death are such that they will probably be construed to have that effect. § 442 REGISTRATION OF TITLE. 543 § 442. The assurance or indemnity fund. — The acts generally provide for the accumulation of a fund for mak- ing good any loss one may suffer through mistake, negli- gence or wrong in the practical operation of the law. This provision is made in recognition of the fact that no system of transferring title has yet been devised in which there is not liability to loss. But the provision is not an essen- tial feature of this system of land title registration and transfer. There is no "assurance fund" provided for by the California act, and the Illinois Supreme Court gives this part of the Illinois law no consideration, saying: "The law can, as we think, stand and accomplish its purpose without it." 23 Each of the acts, however, except that of California, makes provision for such a fund by requiring the payment, when lands are brought under the act, of a small sum — one-tenth of one per cent, of the value of the land, the value being, generally, ascertained by reference to its appraisement for taxation. The payment is to be made to the public treasurer. The methods by which re- covery may be had from it by those entitled to compensa- tion are prescribed in detail. Wherever the system has been in operation, however, the demands upon the fund have been extremely rare. The Supreme Court of Ohio especially criticises this part of the act, stating that the fund is to be raised to in- demnify those whose lands have been " wrongfully wrested " from them, and that the " penitential scheme " is both inadequate and forbidden by the constitution, as taking private property for public use without compensa- tion; 26 but in the Massachusetts case 27 the provision is not referred to — as it must have been had there been grounds for regarding it as so clearly unconstitutional. 25 People v. Simon, 176 111. 165, 177; 52 N. E. 910; 44 L. E. A. 801; 68 Am. St. R. 175. 26 State v. Guilbert, 56 Ohio St. 575, 623, 625; 47 N. E. 551; 38 L. R. A. 519; 60 Am. St. R. 756. "Tyler v. Judges, 175 Mass. 71; 55 N. E. 812; 51 L. R. A. 433. 544 THE LAW OF CONVEYANCING. § 443 There appears to be nothing in the state constitutions prohibiting the legislature from incorporating provisions practically guaranteeing titles or furnishing indemnity, in case it is considered best to do so. §443. Voluntary, or compulsory, registration. — The American laws so far enacted provide that registration of title shall be entirely optional : as they now stand, no land in any state where the system exists need be regis- tered. It is the opinion of those who have closely followed the practical working of the system that provision should be made for compulsory registration to some extent. It has been suggested that this could be brought about, without hardship or inconvenience, by requiring administrators or executors to register title, before heirs or devisees can legally acquire title to the lands of a deceased owner. Under this method all land would gradually come under the new system. The later English act 28 provides that by Order in Coun- cil registration of title to land may be made compulsory on sale of the land in any county named in the order, and orders have been made by which registration is compul- sory in certain parts of the county of London : a pur- chaser does not, therefore, where the order applies, ac- quire the legal estate until he is registered as proprietor of the land. The Illinois act has been amended — subject to adoption by the people of any county where the act is operative — so that upon the death of one owning real estate in any county where the "Torrens law " is in force his adminis- trator or executor must, within six months after his ap- pointment as such, apply to the circuit court for the 88 Land Transfer Act, 1897, 60 and 61 Vict. c. 65, s. 20. § 443 REGISTRATION OF TITLE. 545 registration of the title to the land — unless the probate court shall excuse him from so applying. 29 "Laws Ills. 1903, p. 121. Most of the literature on the subject of registration of title is in the form of addresses, papers in legal periodicals, etc. InTheo. Sheldon's "Land Eegistration in Illinois," 1901, a full list of treatises and papers relating to the subject will be found. Among the papers published since Mr. Sheldon's list was prepared are : Land Title Registration in the United States, by Leonard A. Jones, 36 Am. Law Rev. 321. Virginia and the Torrens System, by Eugene C. Massie, 35 Am. Law Rev. 727, 14 Reports Va. State Bar Association. The Torrens SyBtem of Land Registration, by Alex. H. Robbins, 54 Cent. L. J. 282. Practical Operation of the Torrens System in Massachusetts, by Clar- ence C. Smith, 54 Cent. L. J. 285. A report of the case of State v. Westfall, with note, 54 Cent. L. J. 290, 293. Address by Edward T. Taylor, Reports Colorado State Bar Associa- tion for 1902. Discussion on The Recording of Land Titles and Transfers by Judi- cial Process, by Chas. Wetherill and Paul H. Gaither, 9th Ann. Rep. Pa. Bar Association (1903). "The Torrens Acts," Some Comparisons, J.H. Brewster, Mich. Law Rev., Vol. 1, p. 444; The Court of Land Registration, by Chas. T. Davis, Yale Law Jour., February, 1904. The proposed Virginia act, most carefully drafted, may be found in 16 Va. Bar Ass'n Reports (1903). INDEX. {References are to Sections.] ABANDONMENT, of guardianship of insane, effect of, 333. of homestead, 383. will not generally make valid conveyance of homestead that was invalid when made, 394. of wife by husband, she may convey, 363. ABBREVIATION, of official title in acknowledgment, 291. "ABOUT," effect of in naming quantity, 92. ABSENCE, signing in grantor's, 238. ABSTRACT OF TITLE, 425. should show conditional clauses, 187. ACCEPTANCE, as an element of delivery, 298, 300-302. assuming control of property shows, 301. express, acceptance of deed, when necessary, 301. presumed until dissent shown, 300. when parent conveys to child, 301. prevented, title does not pass, 302. surrender and acceptance need not be concurrent acts, 302. ACCESS, to navigable water, private property, 106. to water cannot be cut off, 117. ACCRETIONS, on half street, 91. to riparian owner's land, 117 (547) 548 INDEX. [.References are to Sections."] ACKNOWLEDGMENT, "acknowledge," whether necessary, 270. by corporation, 294. by married women, 264, 361, 365, 367. certificate of, clerical errors do not vitiate, 267, 376. date, 34, 290. date differing from that in deed, effect of, 34. conclusive, when, 293. fact of acknowledgment must appear in, 269. forgery may be shown, 293. form of, 265, 294, impeachment, 293. in foreign language, 280, n. parts of, 289. "personally known," 272. prima facie evidence of, due execution of deed, 259. seal of officer, 292. signing by officer, 291. defined, 254. grantor or grantee cannot take, 281. identity of person acknowledging with grantor, 271, 272. jurisdiction of officer to take, 289. of grantor to witness, 252. of writing not authorized, effect, 260. one of several grantees may take, 281. partner of party cannot take, 285. party, cannot take, 281. purposes of, 257-264. record of deed with defective acknowledgment, 258, 260, 366. stockholder cannot take, when, 285. substantial compliance with statute necessary, 267-272, 367, 399. taken in state other than that where land is, 276-279. to conveyance of homestead, 399. trustee in deed cannot take, 283. venue, 289. what instruments may have, 255. when necessary to validity, 261, 262, 365, 399. when required for release of dower, 376. who may take, 274-277. ACQUIESCENCE, by former infant in deed made during minority, 316, 317. of husband in wife's control of property, effect of, 353. ACRES, statement of number, effect, 92. INDEX. 549 [References are to Sections.] ACTION, on covenants running with the land governed by lex situs, 213. ADDITIONS, to name by way of recital,44. ADJOINING LOT, as monument, 87. ADMINISTRATOR, covenantee's need not be named,196. deed of, recitals in, 50. naming of, in covenants for title, 193. when not bound by deceased's covenants, 193. ADOPTION, of child, effect on will, 428, n. of one seal by several grantors, 248. of signature by grantor, 238. ADVERSE POSSESSION, character of, to render deed void or voidable, 420. conveyance of land held in, 415-121. generally valid now, 421. valid between the parties, 417, 418. disability from, 415-421. title not acquired by, under "Torrens System," 440. AFFIRMANCE, of deed made during infancy, not needed, 313. what is, 316. of voidable conveyance of insane person, 342. AFFIRMATIVE CONDITIONS, 171. AFTER ACQUIRED TITLE, enures to grantee in warranty deed, 188. to mortgagee, when, 189. married woman estopped to claim, when, 195. AGE, extreme age does not show grantor's incapacity, 340. misrepresentation by infant as to, 320. AGENT. See Attorney. AGREEMENT, of grantee to pay mortgage, how shown, 65. to convey, distinguished from deed, 28. 550 INDEX. {References are to Sections.] ALIEN, capacity to purchase and convey real property, 408-412. may convey before office found, 410. may not acquire title by descent at common law, 408. property rights affected by treaty, 4, 412. states may add to or remove common law disabilities, 412. treaty may remove disabilities of, 412. ALIENATION, by joint tenant, 150. by owner in fee, 1, 139. by tenant in common, 157. by tenant in entirety, 166. by tenant in tail, 140. general restraint on, void, 186. restraint on, valid in creating "separate estate," 354. restrictions on, 312. ALLEYS. See Streets. ALTERATION, forgery by, 426. of date, 426. of grantee's name, 426. AMBIGUOUS, clause, of condition, 172. construed as a covenant, 177. of exception and reservation, 121. description of property, 76-80. AMERICAN ACTS FOR REGISTRATION OF TITLE, inappropriately called "Torrens Acts," 433, n. AMERICAN BAR ASSOCIATION FORMS, form of acknowledgment recommended by, 265, 294. AMERICAN RULE, as to covenants running with the land, 217. ANCIENT DEEDS, recitals in, evidence, 44. APPLICATION, to register title, 435. to sell infants' lands, 326. APPROVAL, by court, of sale of infant's land, 328. INDEX. [References are to Sections.'] APPURTENANCES, what are, 118. APPURTENANT, easement, reservation of, 125. land not appurtenant to land, 99, 118. ARTIFICIAL POND, boundary on, 111. ASSENT, of husband to wife's deed, 363. ASSIGNMENT, indorsed on deed, 70. "ASSIGNS," covenantee's, naming of, 197. covenants broken do not pass to, 217. effect of, in covenant, 224. not needed to create a fee, 138. of grantee in deed poll bound by covenants, 225. ASSUMED NAME, deed by one under, valid, 43. deed to one under, valid, 43. ASSURANCE, further, covenant for, 205. ASSURANCE FUND, under "Torrens System," 442. ASYLUM, commitment to, effect of, 33S. ATTAINDER, forfeiture on, 413. ATTESTATION, at common law not necessary, 250. by one interested in the conveyance invalid, 253. clause of, not essential, 252. generally, 250-253. in United States, 251. method of| 252. of signature by mark, 236. proof by witness attesting, 295. 551 552 INDEX. [.References are to Sections.] ATTORNEY, acknowledgment by, 294. married woman's power of, 377. of party may generally take acknowledgment, 288. power of, by infant, when void, 314. by insane person, 336. signing under power of, 239. ATTORNMENT, effect of statute dispensing with, 202. "BANK," effect of, in description, 100. BARGAIN AND SALE, after statute of uses, 20, 56. consideration in, 55. deed of, 12. deeds in United States usually based on, 56. operative words in deed of, 57, 69. BENEFITS AND BURDENS, distinction between in covenants, 226. BLANKS, authority to fill, 39. filling in, certificate of acknowledgment, 267, 269, 271. forms of covenants for title, 192. BOND, guardian's, on sale of infant's lands, 328. BOUNDARY. See Description. at water's edge, 117. lake as, 111. meander line as, 103. street as, 89. uncertain starting point, 80. water as, 98-117. BREACH OF COVENANT, against incumbrances, what constitutes, 200-203. for further assurance, 205. for good right to convey, 198. for quiet enjoyment, 206. for seisin, 198. of warranty, 206, 209, 210. BUILDING LINE, on plat referred to in deed, 227. purchaser may be held to, by another lot owner, 228. INDEX. 553 [References are to Sections.] BUILDING RESTRICTION, as a condition, 182. incumbrance, 201, 227, 228. in pursuance of a general plan, 228. BUILDINGS, as monuments, 88. BULK. . sale in, 92. BURDENS, of covenants, when pass with, the land, 226. BUSINESS, occupancy of homestead for, 384. CANCELLATION, of grantor's name does not revest title in him, 311. CAPACITY, mental, degree required in grantor, 338. of alien to convey, 410-412. of convict, 413, 414. of corporation, 406, 407. of disseisee, 415^421. of infant, 313, 314. of insane person, 332-337. of married woman, 340-372. of tenant in tail, 143. CAPACITY TO TAKE TITLE, of alien, 408, 409. of convict, 413, 414. of corporation, 401-405. of infant, 323. CAPRICIOUS CONDITIONS, 186. CENTER, of monument boundary, 88, 89. " CENTER RULE," what expressions prevent operation of, when way is boundary, 90. CERTAINTY, in description, 75. CERTIFICATE OF ACKNOWLEDGMENT. See Acknowledgment. date of, 34, 290. defective, to deed of married woman, 366 554 INDEX. [References are to Sections.] CERTIFICATE OF ACKNOWLEDGMENT— Continued. form of, 265,^294. form, when taken in another state, 278. how far evidence, 259. impeachment of, 293. parts of, 289. what should show, 266, 268. CERTIFICATE OF CONFORMITY, 279. CERTIFICATE OF OFFICIAL CHARACTER, of officer taking acknowledgment, 275, 277, 278. CHAMPERTOUS, conveyances invalid, 421. CHAMPERTY, statutes against, 415. CHANCERY, power of court of, to authorize conveyance of infants' lands, 330. CHANGE, in character of neighborhood, as affecting right to enforce restric- tions, 229. CHILD, unborn, cannot be grantee of immediate estate, 43. may be grantee in remainder, 43, n. "CHILDREN," "heirs" construed as, 40. CHRISTIAN NAME, signing by, 237. CHURCH SOCIETY, deed by, 241. CIRCUMSTANCES, considered in construing conveyances, 181, 183, 187. "CIVIL DEATH," 413, 414. CLERICAL ERRORS, in certificate of acknowledgment, 267. COKE'S, definition of deed, 19. COLLATERAL LIMITATION, 173. COMMISSIONER OF DEEDS, 276. INDEX. 555 [.References are to Sections.] COMMITTEE. See Guardian. COMMON EECOVEBY, 18. by married women, 360. COMMON, tenancy in, 156-158. exceptions to rule favoring, 153. tenant in, conveyance by, 157. homestead of, 387. COMMON LAW DEEDS, 20. "COMMUNITY SYSTEM," 167. COMPETENCY, of officer to take acknowledgment affected by interest, 281-288. COMPETENT, grantor may be shown to be, though in asylum, 333. COMPETITION, provisions restraining, 230. CONCLUSION, of deed, 31. CONCLUSIVE, certificate of acknowledgment, when, 293. CONCUEEENT OWNERSHIP, 148-167. CONDITIONAL FEE, 139. CONDITIONAL LIMITATION, 175. CONDITIONS, capricious, may be disregarded, 186. conveyances for specified purposes, not always on condition, 180. difficulties in construing, 176. drawing and construing, 187. express, 170. forfeiture provided for, 179. for commission of crime, void, 185. for separation of husband and wife, void, 185. implied, 169. imposing a general restraint on alienation, void, 186. in short statutory deeds, follow the description, 178. nominal, of no benefit, void, 186. place for, 31, 178. precedent and subsequent compared, 172. 556 INDEX. [References are to Sections.'] CONDITIONS— Continued. precedent defined, 170. impossible, grantee takes nothing, 170. through act of person imposing it, discharged, 170, n. unlawful, grantee takes nothing, 170. repugnant to estate granted, void, 186. restraining marriage, how far void, 185. subsequent, affirmative in character, 171. advantage can be taken of, only by grantor or his heirs, 171. characteristics of, 171. construed strictly against grantor, 177. distinguished from estates on conditional limitation, 175. upon determinable limitation, 173, 174. expressed ambiguously construed as covenants, 177. grantor conveying subject to, has no estate, 171. impossible cannot defeat estate, 171. negative in character, 171. place for, 178. preferred to precedent, 172. re-entry clause in, 179. technical words not necessary to create, 177. until entry, the estate continues, 171. unreasonably restricting use, void, 186. void, when, 185, 186. waiver of, 187. words appropriate to, may make covenants, 223. CONFIRMATION, by court of sale of infant's lands, 328. CONFLICTING PARTS OF DESCRIPTION, 83, 84. ' rules for construing, 84. CONFORMITY, certificate of, when acknowledgment in another state, 279. CONSENT, parol, to alienation of homestead sufficient, when, 398. CONSERVATOR. See Guardian. CONSIDERATION, additional, evidence as to, 59. agreement to support as, 184. assumption of mortgage as, 64. contractual statement of, 63. effect of, in construing conveyances for special purposes, 181. equitable doctrine as to, 55. INDEX. 557 [References are to Sections."] CONSIDERATION— Continued. evidence of, different than that named, 60-61. feoffment did not require, 53. "good" and "valuable," 55. inadequate, combined with weakness of mind, 341. necessity for, 52. not essential to sealed contract at common law, 245. parol evidence as to, 59. return of, on disaffirmance of infant's deed, 321. on disaffirmance of insane person's deed, 346. "seal importing," 54. third parties not bound by statement of, 67. true, may be shown, 61, 64. may not be shown to defeat conveyance, 66. CONSTITUTIONAL OBJECTIONS, to "Torrens System," 433, 436, 437, 438, 442. CONSTITUTIONAL PROVISIONS, as to separate estate of wife, 358. CONSTRUCTION, lex situs controls, 8. of deed as a whole, 132. rule in Shelley's case not a rule of construction, 146. CONSTRUCTIVE EVICTION, 210. "CONSTRUCTIVE OCCUPANCY," of homestead, 382. CONSTRUCTIVE POSSESSION, 420. CONSTRUING, conditions, 187. difficulties in, 176. CONSUL, United States, certificate of, to acknowledgment in foreign lan- guage, 280, n. CONTINGENT REMAINDER, 144. CONTRACT, courts do not make, 192. deed of wife's lands in which husband not properly joined con- strued as, 364. married woman's unacknowledged deed not, 365. reference to, for description, 97. 558 INDEX. [.References are to Sections.] CONTKADICTION, between premises and habendum, 129. CONTROL, by grantor of deed in third person's hands, 308. CON USEE, 18. CONUSOR, 18. CONVERSION, equitable, question of, settled by lex situs, 8. "CONVEY," as operative word, 69. "CONVEY AND WARRANT," effect of, 30, 211, 212, 213. later words restricting, 130. CONVEYANCE, between husband and wife, 368-371. by alien, 410-^12. by corporation, 240, 406, 407. by joint tenant, 150. by married woman, 355-372. by parcener, 159. by tenant in common, 157. for specified use, when conditional, 180. of community property, 167. of estate by entireties, 166. of infants' real property, 312-330. of land held in adverse possession, 415-421. party wall agreement in, 231. CONVEYANCING, includes what, 2. CONVICTS, capacity to take and convey real property, 413, 414. COPARCENARY, tenancy in, 159. COPIES OF RECORDS, as evidence, 259, 260. CORPORATION, acknowledgment, form, 294. as party, 46. capacity to alienate real property, 406, 407. purchase and convey real property, 401-407. INDEX. 559 {References are to Sections.] CORPOR ATION— Continued. eSect of dissolution, 403. execution of conveyance by, 240. may convey good title to land held in excess of power to hold, 405. may take a fee though its duration is limited, 402. officer of, may take acknowledgment when, 287. presumption that it holds only lands appropriate to corporate purposes, 404. seal of, 249. stockholder can not take acknowledgment of conveyance to, 285. what lands may hold, 404, 405. CO-TENANT, conveyance by, 157, 158. COUNTERPARTS, of indentures, 21. COUNTY, name of, part of notary's signature, 291. named in description, 82. COURSES AND DISTANCES, control description by monuments, when, 87. statements of quantity, 84, 92. controlled generally by monuments, 84, 87. COURT OF LAND REGISTRATION, 435. COURTS, what, have jurisdiction over guardian's conveyances, 324. COVENANT, action of, 245. an agreement under seal, 188. deed may be without, 188. grantee liable in action of, on assuming mortgage, 24. heir's liability on, 193. "negative," 230. not essential in a covenant, 191. restraining competition, 230. to stand seised, 55. when conditional clause construed as, 177. COVENANTEE, administrators of need not be named, 196. assigns, naming of in covenant, 197, 224, 232. designation of, 196. executors of need not be named, 196. heirs of, naming in covenant, 197, 224. 560 INDEX. [References are to Sections.'} COVENANTOR, designation of, 192. wife of, when not bound by covenant, 194. COVENANTS, 188-232. as to party walls, whether run with the land, 232. bind grantee in deed poll, 225. broken do not run with the land, 219. condition placed among, 178. in law, 211. in praesenti do not run with the land, 215, 217. other than for title, 222-232. form of such covenants, 223. relating to party walls, 231. pattern, 30. personal, 221. place for, 31. real, 221. restrictive, 227. running with the land, 214, 224, 232. special, 190. effect of, 188. implied from "grant," 211. COVENANTS FOR TITLE, 188-221. designation of parties, 196. executors and administrators named in, 193. form of, 191. husband joining in wife's conveyance, how far liable on, 194. implied, 30, 211. in mortgages, 189. ineffective in void conveyance of homestead, 392. place for, 191. running with the land, 214-221. pass by quitclaim deed, 220. special, 191. succeeded the ancient warranty, 197. usual covenants, 190. against incumbrances, 199. breach of, 200-203. form of, 191, 199. in a mortgage, 189. runs with the land, when, 218. when a covenant in futuro, 199. for further assurance, 205. breach of, 205. runs with the land, 205. INDEX. 561 [References are to Sections.] COVENANTS FOR TITLE— Continued usual covenants for quiet enjoyment, 206. breach of, 206. runs with the land, 219. for seisin, 198. breach of, 198. runs with the land in some states, 216. of good right to convey, 198. of warranty, 206. breach of, 206, 209, 210. attaches only to estate granted, 207. runs with the land, 219. for title, wife of grantor not generally bound by, 194. CREDITOR, of infant may not disaffirm deed, 319. of insane grantor may not disaffirm deed, 345. of grantor not bound by statement of consideration, 67. CRIME, conviction and sentence for, effect, 414. CROSS, as signature, 236. "CURATIVE" ACTS, 258, n. CURTESY, at common law, 350. none under community system, 167. CUSTOM, authorized deed by married woman, where, 360. effect of, on contract for conveyance, 190. DAMAGES, for negligently preparing abstract, 425. not generally recoverable under the ancient warranty, 197, 206. measure of,' in action on covenant against incumbrances affected by rent received by grantee, 202. on breach of covenant for further assurance not sole remedy, 205. possibility of recovery of, not the sole advantage of covenants for title, 188 seldom sought for breach of restrictive covenants, 228. DATE,. deed valid without, 32. delivery presumed at, 33. figures or words foT, 32. 36 — Brews. Con. 562 INDEX. [References are to Sections.'] BATE— Continued. in certificate of acknowledgment, 34, 290. in deed and certificate of acknowledgment, 34. generally controls date of acknowledgment, 34. place for, 32. recording within limited time after, 35. true, may be shown, 35. DEATH, delivery at grantor's, 305, 307. of grantee in conveyance conditioned for support, 184. of landowner, effect of under "Torrens System," 441, 443. questions on, 428. wife's, effect on invalid conveyance of homestead, 394. DECLINATION, of deed, effect of, 302. "DEDI," warranty implied from, 197, 211. DEDICATION, by husband alone, wife not dowable, 373. of streets and parks, 95. DE DONIS, statute, 140. in United States, 143. DEED, acceptance of, presumed when, 300, 301. assignment indorsed, 70. bargain and sale, 12, 56, 57. conditions in, 168-187. consideration in, 52-66. construed in its entirety, 132. conveys a present interest, 27, 29. covenants in, 188-232. date of, 32-35. definitions of, 19. delivery essential, 19, 296. does not transfer title under "Torrens System," 434, 439. description of property in, 73-118. destruction of, effect, 311. disaffirmance of, by infant, 315-318. distinguished from contract to convey, 28. from will, 29. effect given to if possible, 25, 58, 63, 79. INDEX. 563 [References are to Sections.'] DEED— Continued. execution of, what, 233. in consideration of support, 184. insane person's, when void, 332. instrument in form of, may be inoperative, 29. Kent's form, 25. kinds of, 20, 21. married woman's, unusual at common law, 360. may be delivered though in grantor's possession, 298. of corporation, 46, 240, 241, 406, 407. operative words in, 15, 68-72. appropriate to a will, 29. parties to, 36-46. parts of, 31. passing no present interest may operate as a will, 29. possession of as evidence of delivery, 303. preserved a record of early transfers, 15. recitals in, 47-51. reference in one to another for description, 97. seal essential, 19, 242. short statutory form, 30. stolen, effect of, 299. superfluous operative words, 15. tendency to shorten, 25. to take effect at death, 29, 305-308. under title registration acts, 434, 439. warranty deed probated as will, 29. without covenants for title, effect, 188. DEED POLL, 21. containing covenants by grantee, acceptance by grantee, 225. effect, 24. form, 22, 23. DEFECTIVE, certificate of acknowledgment, effect, 258, 260, 262. DELIVERY, 296-311. acceptance, as an element of, 298, 300, 301. if prevented, no delivery, 302. accomplished in many ways, 296. at death of grantor, 305, 307. blanks in deed filled after, 19, 39. by insane grantor, 339. cancelation of grantor's name after, 311. date, may be shown, 35. presumption of, at date of deed, 33. deed should be completely written before, 19. 564 INDEX. [References are to Sections.'] DELIVERY— Continued. destruction of deed after, does not revest title, 311. deposit among grantee's papers not, 306. elements of, 298. essential to deed, 19, 296. grantee's possession of deed does not show, 299, 303, 310. grantor's intention as an element of, 299. possession of deed after delivery, 306. retaining possession till death, generally no delivery, 306. in escrow, 309. may not be to grantee, 309. manual, not necessary, 298. name of grantee inserted after, 39. not necessary, when, 297. not conclusively shown by records, 304, 427. of conveyance from parent to child, 298. patent of public lands needs no delivery, 297. presumed from certain facts, 303, 304. recording, 304. surrender and acceptance need not be concurrent acta, 302. takes the place of livery of seisin, 297. title passes on, 296. title does not pass on, under Registration of Title Acts, 434, 439. to third person, for grantee, 307. grantor reserving control of the deed, not delivery, 308. DEMANDANT, 18. DEMENTIA, 338. DEMISE, operative word, 72. DEPOSIT, by grantor, of deed among grantee's papers not delivery, 306. with third person, 307. DERIVATIVE DEEDS, 20. DESCENT, alien could not acquire title by, at common law, 408. in parcenary, 159. DESCRIPTION, addition to sufficient description to be avoided, 83. certainty necessary, 75. conflicting parts of, 83. controversies regarding, arise in a variety of ways, 73. course and distance control quantity, 92. INDEX. IReferences are to Sections.'] DESCRIPTION— Continued. construed liberally, 73. essential, 73. exception must be described, 78, n. false, rejected, 85. general, allowable, 81. in contract, incorporated into deed by reference, 97. intention, when plain prevails, 86. maps referred to, 93, 96, 100. monuments control courses, distances and quantity, 84. incorrect maps, 96. "more or less" in, 92. notice to subsequent purchasers, 74. of land on water, 98-117. of the property, 73-118. parol evidence, can not supply, 76. to apply, 75. part of larger tract, 78. particular, controls general, 86. place for, 73. quantity in, 92. rules for construing, 84. specific usually, 82. streets and ways in, 89. uncertain, starting point, 80. void, 76, 77, 80, 81. uncertainty avoided, when, 78. DESTRUCTION, of deed after delivery, effect, 311. DETERMINABLE FEE, 174. DETERMINABLE LIMITATION, 173. DEVISEE, purchaser from, 428. DIAGRAM, of land described, 82 DISABILITY, grantor's, arising from adverse possession, 415-421. from alienage, 408-412. from conviction for crime, 413-414. from infancy, 313-323. from insanity, 331-348. legal and natural, 312 married woman's to convey, 359. 565 566 INDEX. [References are to Sections.'] DISABILITY— Continued. of corporations, 401-407. of disseisee, 415-421. of drunkard, 334, 338. of tenant in tail, 140, 143. DISAFFIRMANCE, of deed by an infant, 315-318. by infant, what constitutes, 322. by infant's heirs, 319. of insane person on restoration to sanity, 343. of insane person's deed against subsequent grantee, 347. restoration of consideration on, 321, 346. DISCLAIMER, by grantee, 300. DISQUALIFICATION, of witness, 253. to take acknowledgment arising from interest, 281-288. DISSEISEE, conveyance of land by, 415^421 . invalid at common law, 415. by statute, 416. now generally valid, 421. DISSOLUTION, of corporation, effect of, 403. DIVORCE, effect on invalid conveyance of homestead, 394. on estate by entireties, 162, n. DOWER, barred by common recovery, 360. husband's sole act cannot generally defeat, 373. incumbrance, 201. insane wife cannot release, 348. released under statutes, 348. none under community system, 167. not released generally to husband, 375. to a stranger, 374. not shown by records, 429. release of, by attorney, 377. requires separate examination, when, 366. released generally by deed of both husband and wife, 376. not conveyed, 374. wife joining in insane husband's deed does not release, when, 332. INDEX. 567 [References are to Sections.] DRUNKARD, conveyance by, when void, 334. guardianship of, effect of ,334. DURATION, of restrictions as to use, 229. EASEMENT, as appurtenance, 118. grant of, in form of covenant, 223. incumbrance, when, 203. in fee appurtenant to other land, 125. possession of, notice, 430. reservation of, 119, 121, 125. right of flowing passes as appurtenance, 118. transferred by deed, 242. EDUCATION, conveyance of infant's lands to provide for, 327. ELEMENTS, of delivery, 298. ENGLISH RULE, as to covenants running with the land, 215, 216. ENROLMENTS, statute of, 12. suggested recording to colonists, 422. ENTIRETIES, estate by, conveyance of, 166. homestead in, 387. husband may convey to wife, where, 166. not now general, 165. tenancy by, 162-166. effect of divorce, 162, n. married woman's property acts as affecting, 164, 165. in United States, 163, 164. statutes regarding joint tenancy, as affecting, 164, 165. wife may convey to husband, where, 166. ENTRY, none necessary to terminate conditional limitation, 175. to defeat estate on condition, 177. 568 INDEX. [References are to Sections.'] EQUITABLE, doctrines as to seal, 245. interest in homestead transferred by defective conveyance, 397. separate estate of married woman, 352, 355. not abolished by statutes creating separate estate, 358. title, corporation not organized has, as grantee, 46. passes by instrument without seal, 245. EQUITY, cancelation in, of conveyance in consideration of support, 184. covenant for further assurance enforced in, 205. doctrine of, as to consideration, 55. as to conveyances between husband and wife, 370. effect in, of infant's misrepresentation as to age, 320. forfeiture not enforced in, 184, n. instrument without seal enforced in, 245. no relief generally for grantee in deed without covenants for title, 188. power of courts of, to authorize conveyance of infant's property, 324, 330. wife's power in, over separate estate, 355. will enforce contract to purchase land of corporation acquired in exce=s of power, 405. will not aid corporation to acquire land in excess of power, 405. will not enforce restrictions, when, 229, 230. ERASURE, forgery by, 426. ERRONEOUS DESCRIPTION, rejected, 85. ESCHEAT, on attainder, 413. ESCROW, delivery in, 309. grantee's wrongful possession, effect, 309. ESTATE, husband or wife joining in alienation of homestead has none, 390. in which homestead may exist, 387. limited in habendum, 128. ESTATES TAIL, in United States, 142, 143. kinds of, 140, 141. INDEX. 569 [References are to Sections.'] ESTOPPEL, by misrepresentation as to age, 320. grantor not estopped to contradict recital of receipt of considera- tion, 59. married woman estopped by covenents, when, 195. not applicable to transfers of homestead not complying with statute, 392. of mortgagor by covenants in mortgage, 189. silence on former infant's part not, 316. EUROPEAN SYSTEMS, of registering title, 433. EVICTION, constructive, 210, covenant of warranty a covenant against, 206. necessary to breach of covenant of warranty, 209. of grantee by grantor, when a breach of covenant, 210. what is, 210. EVIDENCE, acknowledgment as, 259. of additional consideration, 60. of grantor's intention when street is boundary, 89. parol, as to consideration, 59. inadmissible to except incumbrance, 204. to apply description, 75. to identify grantee, 40. records as, 259, 260. to prove attested deed, 250. EXAMINATION OF TITLE, 422-431. EXCEPTION, and reservation, difference in effect of, 120. annexed to one covenant, inapplicable to others, 208. description of, 78, n. "excepting," "reserving," used synonymously, 123. of incumbrance from covenant, 204. of minerals, 124. of part of property granted, 119-127. of riparian rights, 100. of timber, 124. place for clause of, 122. relates to thing in esse, 119. repugnant to estate granted void, 126. to rule that delivery is essential, 297. 570 INDEX. [.References are to Sections.'] EXCHANGE, covenants implied in, 211. primary deed, 20. EXECUTE, authority to execute sealed instrument, 245. EXECUTION, by corporation, 240. by one not named as party, 37. certificate of acknowledgment evidence of, 259. includes what, 233. of deed by attorney, 239. proved by grantor, when, 250. real property not taken on, at common law, 378. EXECUTOR, covenantee's need not be named, 196. deed of, recital in, 51. naming of, in covenants for title, 193. when not bound by testator's covenant, 193. EXEMPTION, restraints on conveyance of homestead apply to right of, where, 97. EXPIRATION OF COMMISSION, date of, to be stated by notary, 291. EXPRESS, and implied covenants combined, effect of, 212. conditions, 170, 171. warranty distinct from covenant, 197. FALSA DEMONSTRATE, 85. FALSE DESCRIPTION REJECTED, 85. FEE, alienable generally, 1. arising by implication restricted in habendum 130. conditional, 139. corporation may take though its duration is limited, 402- determinable, 174. "heirs" essential to creation of, 135. when not necessary, 125, 136, 137. qualified, 174. reservation in, 119, 125. statutes as to creation of, without "heirs," 136. INDEX. 571 [References are to Sections.'] FEE SIMPLE, conditional, 139. subject to special limitation, 174. FEE TAIL, 140. a fee simple, where, 143. FENCE, covenant to, binds assigns, 225. FEOFFMENT, by insane person voidable, 336. by married woman at common law, 360. consideration not essential to, 53. consists simply and solely in livery of seisin, 11. conveyances equivalent to, when, 53, 58, 336. deed required for, when, 14. form, 14, 15. in United States, 16. recorded deed given effect as, 58. warranty implied, 197. FICTITIOUS, name, deed valid to one in fictitious name, 43. person, deed to, invalid, 43. FIDUCIARY RELATION, effect of, 341. FILING, for record without acknowledgment, effect, 258, n. FILLING BLANKS, authority for, 39. in certificate of acknowledgment, 267, 269, 271. in forms for covenants of title, 192. FINE, 18. advantage of, 18. conveyance of married women by, 360, 361. not usual in United States, 362. FIRM NAME, conveyance in, 45. FISHING, right of riparian owner, 107. FOREIGN LAW, certificate of conformity to, 279. FOREIGN LANGUAGE, certificate of acknowledgment in, 280, n. 572 INDEX. [References are to Sections.'} FORFEITURE, enforced against one attainted, 413. by state against alien, 409. none, of land held by corporation in excess of power, 405. not enforced in equity, 184, n. FORGERY, certificate of acknowledgment may be shown to be, 293. effect of, on title, 426. presumption against, from acknowledgment, 259. records do not show, 426. undelivered deed in grantee's possession as ineffective as if forged, 299. what is, 426. "FOR HIS HEIRS," covenant so expressed, effect, 192. FORM, of certificate of acknowledgment, 265. by corporation, 294. of covenants for title, 191., of deed poll, 22, 23. of feoffment, 14. of indenture, 22, 23. of signature by attorney, 239. Coke's advice as to, 26. FRAUD, effect of, in conveyance in consideration of support, 184. in absence of, grantee assumes risk as to quantity, 92. in public survey, 103. inferred, when, 341. FRAUDS, see also Statute of Frauds. statute of, required writing for feoffment, 14. for release of dower, 376. title by voluntary transfer without writing, passes, how, 17. whether required deed to be signed, 233. FRAUDULENT CONVEYANCE, of homestead, 400, n. FREEHOLD, transferred by feoffment, 11. "FULL COVENANTS," contract for deed with, 190. FURTHER ASSURANCE, covenant for, 205. index. 573 [.References are to Sections.] FUTURE DELIVERY, dependent on performance of condition is in escrow, 309. GAS COMPANY, capacity to alienate real property, 407. GENERAL DESCRIPTION, allowable, 81. controlled by particular, 86. GENERAL PLAN, restrictions in pursuance of, 228. GIFT, parol, 17. primary deed, 20. "GIVE, DEVISE AND BEQUEATH," as operative words, 29. "GIVE, GRANT, BARGAIN AND SELL," as operative words, 72. GOOD FAITH, of grantee from insane person, effect of, 335, 346. GOOD RIGHT TO CONVEY, covenant of, 198. GRANT, as operative word, 69, 72. "bargain and sell," effect of, 211. effect of, in statutory deeds, 211. instrument under seal, 242. GRANT OF LAND ON STREET, grantee takes to center, 89. GRANTEE, acceptance of deed by, presumed when, 300. accepting deed without covenants for title, position of, 188. assuming mortgage, 24. assumption of mortgage by, must be shown by express accept- ance of deed, 301. incumbrance by, 204. blank as to, 38,. 39. corporation as, 46. covenantor when, 222. death of, effect on conveyance conditioned for support, 184. deed uncertain as to, 40. void for lack of, 38. 574 INDEX. [References are to Sections.] GRANTEE— Continued. designation of, 38. erroneous designation of, 40. identified by parol, 40. in deed poll bound by covenants, 225. infant as, 19, 301, 323. in warranty deed, his knowledge of defects immaterial, 206. knowledge of incumbrance when material, 204. may recover excess over true consideration, 64. must be in esse, 43. name erroneous, deed valid, 40. named in habendum, 133. in premises usually, 38. no delivery in escrow to, 309. of land on street takes to center of street, 89. when takes entire way, 91. partnership as, 45. possession by, of undelivered deed, 299, 303, 310. rights of in street shown on map, 94. should not be witness, 253. subsequent, effect on, of insanity of prior grantor, 347. surrender of deed by, after delivery, effect, 311. surrendering to superior title, 210. taking acknowledgment, 281, 282. when must show that grantor acted freely, 341. GRANTOR, corporation as, 46, 406, 407. cannot take acknowledgment, 281. covenanting "for his heirs," 192. designation of, 37. estopped to deny existence of streets, 94. identity of, with person acknowledging, 271, 272. intent to deliver deed, 299. may use assumed name, 43. mental capacity required in, 338. name same as that of previous grantee shows identity of person, 41. named in deed not signing, 234. not estopped by statement of consideration, 59. one, should not attest deed of others, 253. possession of land by, after his conveyance, 431. of deed by, after delivery, 306. signing by another, 238. by mark, 236, surrender of control of deed by, necessary to delivery, 298. INDEX. 575 [References are to Sections.] GRANTORS, adoption of one seal by several, 248. whether husband and wife should both be, in conveyance of her land, 364. "GREAT LAKES," public grants on, 101. title to bed, 112. GUARDIAN, application by, to convey ward's lands, 326. assent of, to insane ward's conveyance ineffective, when, 332. bond of, on sale of infant's land, 326, 328. conveyance by, of infant's land, 324-330. insane person's may convey how, 348. wife's, may not release homestead, 393. may not release dower, 348. may disaffirm insane ward's deed, 344. not convey ward's lands without authority, 324. natural, may not convey ward's real property, 324. of insane person may not confirm deed, when, 342. GUARDIANSHIP, insane person under, conveyance void, 332. of drunkards, spendthrifts and others, 334. of insane, while continues, ward presumed incompetent, 333. HABENDUM, 31, 128-147. condition in or after, 178. contradiction between habendum and premises, 129. enlarges estate granted in premises, when, 130, 131. estate arising by implication from the premises may be abridged by, 130. limited in, 128. grantee named in, 133. not essential to a deed, 128. one named in, but not in premises may take in remainder, 133. reconciled with premises if possible, 132. repugnant as to estate in premises, void, 129. trusts declared in, 134. HEAD OF FAMILY, entitled to homestead, 380. HEARING, on application to convey infant's lands, 328. to register title, 438. "HEIR OF," as describing party, 44. 576 INDEX. {References are to Sections.] HEIRS, conveyance by, discovery of will, 428. covenantee's, naming of, 196, 197. deed to heirs of a living person when void, 40. grantor covenanting for, 192. infant grantor's, may disaffirm his deed, 319. insane grantor's, may disaffirm his deed, 345. lex situs determines who are, 7. liability of, on ancestor's covenants, 193. uncertainty as to, 428. "HEIRS," "construed as children," 40. necessary to create a fee, 135. estate tail, 141. statutes as to use of, 136. when a word of purchase, 146. when necessary in reservation, 119. when not needed to create a fee, 125, 136, 137. "HEIRS AND ASSIGNS," effect of, in covenants, 214, 224. "HEIRS OF BODY," effect of, 139, 140. HIGH WATER MARK, in rivers, 109. shore below not private, 104. HIGHWAY, as boundary, 89, 90, 91. grantee, generally takes to center, 89. takes entire when, 91. not always an incumbrance, 203. "HIS MARK," when used, 236. HOME, occupancy as, essential to homestead, 384. HOMESTEAD, 378-400. abandonment of, 383. after invalid conveyance, 394. acknowledgment to conveyance of, 263, 399. alienation of, void when, 392. constitutional provisions as to, 378. "constructive occupancy," 382. index. 577 [References are to Sections.} HOMESTEAD— Continued. conveyance of, between husband and wife, 400. defective, valid as to excess, 396. not void wherej 397. of reserving "homestead right," 397. or release of, separate examination needed when, 366. extent of, 386. federal, 378, n. grant of right of way over homestead premises, 395. hotel as, 384. insane wife's release of, 348. in estates less than fee, 387. laws providing for, liberally construed, 378. lease of, 395. mode of conveying, 398. not generally shown by records, 427. occupancy essential to, 382, 383, 384. as a home, 384. partial restraints on alienation of, 388. restraints on alienation of, 388, 389, 390. selection of, 385. by record, 385. by occupancy, 385. who may have, 379. HOTEL, as homestead, 384. HOUSEHOLDER, entitled to homestead, 379. HUSBAND, as custodian of wife's deed, 298. assent of, to wife's conveyance, how shown, 37. cannot generally defeat dower by his sole act, 373. conveyance to wife creates separate estate, 352. executing wife's conveyance, 37. insane, statutes for release of his interests in wife's land, 348. joinder of in wife's fine, 361. in wife's conveyance, 362, 363. joining in wife's deed when liable on covenants, 194. power over community property, 167. right to convey estate by entireties, 166. rights of, in wife's property at common law, 350. wife cannot generally release dower to, 375. 37— Bbews. Con. 578 INDEX. [.References are to Sections.] HUSBAND AND WIFE, conveyance between, 166, 368-371. of homestead between, 400. grant to, creates estate by entireties, 162. joint act necessary in alienation of homestead, 398. must generally concur in alienation of homestead, 390. separation agreements, 375. ICE, in navigable rivers, ownership of, 107. IDEM SONANS, 42. IDENTITY, of name shows identity of person, 41, 281. of party acknowledging with grantor, 271, 272. IDIOCY, 338. ILLEGAL ACTS, condition requiring void, 185. ILLEGAL CONSIDERATION, may not be shown by grantor to defeat deed, 66. IMPEACHMENT, of certificate of acknowledgment, 293. IMPLIED CONDITIONS, 169. IMPLIED COVENANTS, 30, 211. words necessary for, 212. IMPRISONMENT, effect on capacity to take and convey title, 414. IMPROVEMENTS, after gift, 17. INADEQUATE CONSIDERATION, effect of, 341. INCHOATE RIGHT OF DOWER, not property, 374. INCORPOREAL INTERESTS, tranferred by grant, 242 INCUMBRANCES, certain incumbrance not shown by records, 429. covenant against, 199. land "subject to," 208. not breach of covenant of warranty, 209. what are, 200-203. whether covenant against, runs with the land, 218. INDEX. 579 [References are to Sections.'] INDEFEASIBLE ESTATE IN FEE, when needed to satisfy covenant for seisin, 198. INDEMNITY, covenants for title intended to indemnify, 215, 216. INDENTURE, 21. effect, 24. form, 22, 23. more nsual than deeds poll, 23. technically appropriate when covenants are to bind grantee, 225. IN ESSE, grantee must be, 43, 46. INFANCY, not shown by records, 427. INFANT, as grantee, 323. conveyance by, in general, 312-330. voidable, 313. deed of infant and of insane person similar, 331. disaffirmance of conveyance by, 315-318. how soon after majority must be, 316, 317. not during minority, 315. of deed by, what constitutes, 322. though land held by subsequent purchaser, 318. guardian can not convey land of, without special authority, 324. heirs of, may disaffirm deed, 319. land of, conveyed for certain purposes, 327. may repudiate purchase at majority, 323. misrepresentation of age by, 320. one in possession under deed of, does not hold adversely, 419. parent can not convey land of, 324. power of attorney of, void, when, 314. real estate of, conveyed, how, 324. restoration 6f consideration on disaffirmance by, 321. right of former, to disaffirm deed is personal, 319. statute authorizing conveyance of lands of, must be strictly fol- lowed, 325. statutes affecting right to disaffirm, 320, 321. unborn, can not be grantee of immediate estate, 43. may be grantee of estate in remainder, 43, n. INFERENCE, condition not created by, 184. INFLUENCE, undue, presumed when, 341. 580 INDEX. [References are to Sections.] INHERITANCE, words of, not needed in exception, 120. INITIALS, signing by, 237. IN REM, proceeding to sell infant's lands, 326. INSANE HUSBAND, wife may by statute convey without joinder of, 363. INSANE PERSON, conveyance of lands of, 331-348. deed of, may be affirmed by him while sane, 342. disaffirmed by him while sane, 343. generally voidable, 335. whether transmits title, 337. disaffirmance, restoration of consideration, 346. lands of, statutes authorizing conveyance of, 348. under guardianship, conveyance void, 332, 333. INSANITY, adjudication of, without appointment of guardian, effect of, 333. kinds and degrees of, 338. not shown by records, 427. partial, effect of, 340. question as to, must relate to time of act, 338, 339 weakness of mind not, 340. wife's, does not make valid husband's sole deed of homestead, 393. INSTRUMENT, recital in, as to sealing, effect of, 247. INSURANCE, of title, 432. INTENT, essential element of delivery, 299. grantor's, to deliver must be evidenced by acts, 299, 306. of parties given effect if possible, 25, 58, 69, 132, 180. to create condition should be expressed, 180. exception or reservation should be made clear, 121. separate estate must be expressed, 353. INTEREST, disqualifies witness, 253. of officer taking acknowledgment, 281-288. undisclosed as affecting competency to take acknowledgment, 285, 286. INDEX. 581 [References are to Sections.] INTERPRETATION, rule that grantee takes to center of way, a principle of interpre- tation, 89. INTOXICATING LIQUORS, condition not to sell valid, 171, 179. parol agreement not to sell, may be shown as part of considera- tion, 61. restriction against selling, 230. INTOXICATION, insanity caused by, 338. IRREGULARITIES, in sale of infant's land, cured by statute, 329. ISLANDS, in navigable rivers, 107. JOINT ACT, of husband and wife, generally necessary in alienation of home- stead, 398. JOINT DEED, of husband and wife of wife's lands, 362, 363, 364. in alienation of homestead, 390, 398. wife joining with insane husband as grantor does not make, 332. JOINT ESTATE, homestead in, 387. JOINT TENANCY, 149-155. abolished, where, 155. alienation of estate, 150. created, how, 152. exceptions to rule that it is not favored, 153. not favored, 151. statutes as to, apply to estate by entireties, 165. JOINT TENANTS, partition among, 160. JUSTICE OF THE PEACE, certificate of clerk when necessary to acknowledgment before, 275. may abbreviate official title to J. P., 291. not generally required to have a seal, 292. KNOWLEDGE, grantee's as to incumbrance, effect of, 203, 204. as to grantor's insanity, effect of, 335, 346. 582 INDKX. {.References are to Sections.'] "KNOWN," in certificate of acknowledgment, 272. LACHES, effect of, on right to enforce restrictions, 229. LAKES, beds of, privately owned, 116. boundaries on, 111. common law as to ownership of bed, 113. conflicting views as to private ownership of bed, 114. effect of Massachusetts' colonial ordinances as to "great ponds," 111, n. meandered, public in some states, 112, n., 117. ownership of bed, 113. sectional line rule, 115. state owns beds of great lakes, 112 all in some states, 117. LAND, not appurtenant to land, 99, 118. LAND REGISTRATION, court of, 435. LANDMAEKS, control courses and distances, 84. "LAWFULLY SEISED," effect of, 198. LEASE, implied covenants in, 211. incumbrance when, 202. of homestead, 395. LEASE AND RELEASE, 13. LEGAL SEPARATE ESTATE, of married women, 358. LEX LOCI CONTRACTUS, effect of, when covenants implied, 213. LEX SITUS, 2-10. contract for deed controlled by, 190. controlling, reason for doctrine, 5. effect of, when covenants implied, 213. limitations on doctrine, 10. married woman's deed governed by, 365. INDEX. 583 [References are to Sections.] "LIE IN GRANT," incorporeal interests, 242. LIEN, declared in conveyance conditioned for support, 184. LIFE ESTATE, created in absence of "heirs," 135. homestead in, 387. LIMITATION, collateral, 173. conditional, 175. determinable, 173. infant has statutory period of limitation in which to disaffirm, 316. special, 173. LIMITS OF HOMESTEAD, 386. LITERARY CORPORATION, deed by, 241. LIVERY OF SEISIN, abolished, 16, 53. by infant, effect, 314. deed delivered equivalent to, 297. feoffment consists of, 11, 14. in United States, 16. "L. S.," not a seal, when, 246. LUCID INTERVAL, grantor may affirm voidable deed during, 342. LUNACY, 338. MAINTENANCE, statutes against, 415. MAJORITY, how soon after, infant must disaffirm deed, 316, 317. infant may not disaffirm deed before, 315. MANUAL DELIVERY OF DEED, not always essential, 298. MAP, incorrect controlled by monuments, 96. may aid description though not referred to, 95. referred to incorporated in description, 93, 100. streets shown on, grantee's rights in, 94. 584 INDEX. [References are to Sections.'] MAEK, signing by, 236. MARRIAGE, not essential to acquisition of homestead, 379, 380. property acquired by wife after, whether separate estate, 358. restraint of, by condition, 185. settlement, form, 36. valuable consideration, 55. MARRIED WOMAN. See, also, Husband and Wife. acknowledgment by, 261, 264, 365, 367. alienation by at common law, 360. covenants in deed of, 195. deed of husband's joinder in, 362, 363. disabilities, exist unless removed by statute, 359. generally, 349-377. equitable separate estate of, 352-357. intention to create separate estate of, must be expressed, 353. legal separate estate of, 358. not liable on covenants, when, 194, 195. power over separate estate, 355. of, to convey statutory separate estate, 359. of attorney by, 377. restraint on anticipation, 354. separate examination of in acknowledging, 360, 365-367. sole deed when authorized, 363. statutory separate estate of, 358. MARRIED WOMEN'S ACTS, effect of, on conveyances between husband and wife, 371. estate by entireties, 164, 165. MEANDER LINE, not generally a boundary, 102. when a boundary, 103. MEANDERED LAKES, public where, 117. MENTAL CAPACITY, degree required, 338. MILL, right of flowage appurtenant to, 118. MINERALS, exception of, 124. ownerships of, may be distinct from that of surface, 148. reservation of right to remove, 124. transfer of, in homestead premises, 395. INDEX. 585 [References are to Sections.} MINORS. See Infant. MISREPRESENTATION, by infant, of his age, effect, 320. MISTAKE, in public survey, 103. MONOMANIA, grantor's, does not make deed void, 340. MONUMENT, controls course and distance, 84, 87. incorrect map, 96. part of, taken as boundary, 88. usually named in description, 82. what may be, 87. "MORE OR LESS," effect of, 92. MORTGAGE, assumption of by grantee must be shown by acceptance, 301. in deed poll, 24. may be shown by parol, 65. covenants for title in, 189. excepted from covenant against incumbrances not from covenant of warranty, 208. implied covenants in, 212. incumbrance, 201. not allowed of homestead when, 388. not breach of covenant of warranty, 209. purchase-money, superior to dower, 373. short form, 30. MORTGAGOR, estopped by covenants, 189. MORTMAIN, statutes of, 401. MUNICIPAL CORPORATION, capacity to alienate real property, 407. deed by, 241. NAME, additions to, by recital, 44. correct name desirable, 41. deed need not be signed by, 236. execution of deed with grantee's, blank, 39. 586 INDEX. [References are to Sections.'} NAME — Continued. fictitious, 43. firm name, describing grantee by, 45. grantee may be designated otherwise than by name, 38. idem sonans, 42. identity of, shows identity of person, 41, 281. initials of, in signing, 237. mark as grantor's, 236. middle name, 42. one name at common law, 42. parol evidence to show grantee when name erroneous, 40. part of, in signing, 237. NATURAL MONUMENT, preferred to artificial, 84. NAVIGABILITY, how far the test of public ownership at common law, 105, 108. test of, unreliable, 108. NAVIGABLE, river, bed privately owned, where, 105, 106. public grant on, 101. when rivers are, 110. NAVIGATION, private ownership subject to public right of, 106. NEGATIVE CONDITIONS, 171. NEGATIVE COVENANT, 230. . NEGATIVE EASEMENT, shown by parol, 61. NEXT FRIEND, action by, to disaffirm insane person's deed, 344. application by, to convey infant's lands, 326. NOMINAL CONDITIONS, 186. NON COMPOS MENTIS. See Insanity, Insane Peesons. NON-NAVIGABLE RIVERS, 110. NON-RESIDENT, alien, may not always hold lands, 411. restraints as to alienation of homestead inapplicable to, 381. NON-TIDAL, NON-NAVIGABLE RIVERS, riparian owner's rights, 110. INDEX. 587 [.References are to Sections.] NON-TIDAL WATERS, public grants on, 101. NOTARY PUBLIC, date of expiration of commission to be stated, 291. interested should not take acknowledgment, 281-283, 285. may not always take acknowledgments, 273, n., 274. name of his county part of his official signature, 291. residence, statement of when required, 291. seal of, effect, 278. signature official, not personal, 291. NOTICE, from possession, 430. by grantor after conveyance, 431. from recitals, 49. from records, 74, 422. improperly recorded instrument not, 258, 366. of application for conveyance of infant's lands, 326. to register title, 436. of grantor's insanity, effect of, 335, 346. of incumbrance by grantee, effect of, 203, 204. purchaser with notice of restriction bound, 228. tenant's possession, notice of landlord's title, 430. to one co-tenant of adverse possession of another, 158. NUMBER, sale of lot by, 95. OCCUPANCY, of homestead, 382, 383. selection of homestead by, 385. OCCUPATION, party's, as means of identification, 44. OFFICE FOUND, alien may convey before, 410. hold until, 409. not necessary to vest title in state on alien's death, 410. OFFICER, of corporation, whether may take acknowledgment, 287. OFFICIAL CHARACTER, of officer of another state, taking acknowledgment, how shown, 278. OFFICIAL SEAL, what intended, 292. 5S8 INDEX. [References are to Sections.] OFFICIAL SIGNATURE, to certificate of acknowledgment, 291. OLD AGE, dementia from, 338. impairment of mind by, does not always overcome presumption of sanity, 340. OPERATIVE WORDS, 63-72. essential, 71. "assign" as, 70. "convey" as, 69. "exchange" as, 68. "give, devise and bequeath" as, 29. "give, grant, bargain and sell" as, 72. "grant" as, 69, 72,211. "grant, bargain and sell" as, 211. "remise, release and quitclaim," as, 57. "waive and renounce," not, 71. "warrant and defend," not, 71. superfluous, 69. ORDER OF PARTS, of deed, 31. ORIGINAL DEEDS, 20. OUSTER, of co-tenant, 158. of possession, invasion of rights are not always, 420. OWNERSHIP, concurrent, 148-167. PARCENARY, estate in, 159. PARENT, as custodian of child's deed, 298, 301. may not convey child's real property, 324, 326. PAROL, assent, of husband to wife's deed not enough, 364. authority to fill blank, 39. wife may not bar dower by, 376. PAROL EVIDENCE, admissible to show real grantee, erroneously named, 40. can not supply description, 75. inadmissible to except incumbrance from covenant, 204. of additional consideration, 60. of negative easement, 61. rule, 59-62. INDEX. 589 [References are to Sections.] PARTICULAR DESCRIPTION, controls general, 84, 86. PARTICULARS, to regard in description, 82. PARTIES, 36-46. conveying, should be grantors, 37. designation of, 36. in covenants for title, 192. essential to deed, 36. order of, 36. partnerships as, 45. PARTITION, deed of, 160. parol, 161. PARTNER, cannot take acknowledgment, 'when, 285. may not generally have homestead in partnership property, 387. PARTNERSHIP, as party, 45. PART, of larger tract designated, 78. PARTS, of certificate of acknowledgment, 268, 289. of deed, all reconciled if possible, 132. the several, of the deed, 31. PARTY, cannot take acknowledgment, 281. PARTY WALL, agreements as to, not always in a conveyance, 222, 232. may be personal, 232. run with the land, 232. covenants as to, 231. PATENT, by government, recorded, need not be delivered, 297. not invalid because of adverse possession, 419. "PERSONAL COVENANTS," 221. action on, effect of lex loci contractus, 213. law of place not controlling, 10. PERSONAL PROPERTY, not appurtenant to land granted, 118. 590 INDEX. [References are to Sections.'] "PERSONALLY KNOWN," in certificate of acknowledgment, 272. PERSONS OF UNSOUND MIND. See Insane Person, Insanity. conveyance of real property of, 331-348. PHYSICAL INCUMBRANCES, 203. PLACE, for clauses of exception and reservation, 122. for condition, 178. for covenants for title, 191. for signature of grantor, 235. witness, 252. of taking acknowledgment, how determined, 289. PLANK ROAD COMPANY, capacity to alienate real property, 407. PLAT, reference to in description, 93. showing building line, effect of, 227. statutory, 95. streets shown on, grantee's rights in, 94. POND, boundary on. 111. ownership of bed, 113. POSSESSION, adverse by one co-tenant, 158. conveyance of land held in, 415-421. notice of possessor's title, 430. of deed by grantee as evidence of delivery, 303. of delivered deed by grantor, 298. of land by grantor after conveyance, 431. referred to record title, 430. seisin signifies, 198. title not acquired by, under "Torrens System," 440. unity of, in tenancy in common, 156. POSTPONING DELIVERY, till grantor's death, 305. POWER OF ATTORNEY, acknowledgment of conveyance under, 294. by infant, when void, 314. form of deed poll, 23. of insane person, 336 of married woman, 377. signing under, 239. INDEX. 591 [References are to Sections.] PRECEDENT CONDITIONS, 170. PREMISES, habendum repugnant to, void, 129. limitation of estate in, 128. of deed, includes what, 31.. PRESUMPTION, from identity of name, 41, 281. of delivery from recording deed, 304. of sanity, 340. of undue influence, 341. that grantor of land on highway reserves no part of it, 89, 90. that land held by corporation is held for corporate purpose, 404. that possession is under record title, when, 430. when grantor conveys land on water, 99. PRETENDED TITLES, transfer of, 415. PRIMARY DEEDS, 20. PRINCIPAL, name of, signed by attorney, 239. PRIVATE CORPORATION, capacity to alienate real property, 406. PRIVATE OWNERSHIP, of beds of great lakes, 112. PRIVY EXAMINATION, of married woman, 360, 365-367. PROOF, acknowledgment dispenses with, 255. instead of acknowledgment, 295. PUBLIC CORPORATION, capacity to alienate real property, 407. PUBLIC GRANTS, meander -line, 102. on waters, 101. PUBLIC OWNERSHIP, of beds of great lakes, 112. PUBLIC SURVEYS, 102. 592" INDEX. [References are to Sections.'] PURCHASE, alien could acquire title by, at common law, 408. PURCHASE-MONEY MORTGAGE, superior to dower, 373. PURCHASER, how far takes the risk of sanity of prior grantors, 347. of infant's lands under statute presumed to have knowledge of all proceedings, 325. right to relief if title defective, depends on covenants, 188. PURPOSE, of acknowledgment, 257. of deed shown by recital, 48. PURPOSES, conveyances for special, 180, 181. QUALIFIED FEE, 174. QUANTITY, statement of, when important, 92. QUIA EMPTORES, statute, 31, 174. QUIET ENJOYMENT, covenant against incumbrances connected with covenant for, 199. covenant for, 206. not broken by wrongful eviction, 210. runs with the land, 219. QUITCLAIM DEED, effect of, on title, 188. grant of "right, title and interest" equivalent to, 207. grantee in, has benefit of covenants that run with the land, 220. RAILROAD COMPANY, capacity to alienate real property, 407. RAILROAD, right of way, incumbrance, 203. RATIFICATION, by infant of conveyance to him, 323. during lucid interval, 342. infant's conveyance passes title without, 313. "REAL" COVENANTS, 221. party wall agreement may be, 232. index. 593 [References are to Sections.] REASONABLE TIME, infant must disaffirm within, after majority, 317. RECALL, grantor reserving right to, no delivery, 308. RECALLING DEED, before acceptance, 302. RECEIPT, of consideration may be contradicted, 59, 63. RECITAL, as to seal, effect of, 247. containing history of title, 47. ignorance of, no excuse, 49. in ancient deeds, evidence, 44. in deed as to delivery on grantor's death, 307. in deed poll, 22. notice from, 49. of power of attorney, 239. prima facie evidence, 51. required when, 50. useful though not required, 51. RECORD, acknowledgment necessary to, 258. copies of, as evidence, 259, 260. defects in title not shown by, 426-431. liability to err in indexing, 432. notice from, when description adequate, 74. of defectively acknowledged instrument, not effective, 258, 260, 366. of homestead, 385. of properly acknowledged deed admitted in evidence, 259, 260. title by, not always reliable, 304, 306. witnesses sometimes necessary to record deed, 251. RECORDABLE INSTRUMENT, not always admissible in evidence without proof, 260. RECORDED, deed, equivalent to feoffment, 336. RECORDING, as evidence of delivery, 304. RECORDING SYSTEM, characteristics of, 422. 38— Brews. Con. 594 INDEX. {References are to Sections.'] RECOVERY, 18. REDDENDUM, 31. RE-ENTRY CLAUSE, 179. REFERENCE, in deed to description in other instrument, 97. to maps, 93, 100. REGISTRATION OF TITLE, 432-443, adverse possession after, cannot give title, 440. appearance of parties defendant, 438. application to register, 435. assurance or indemnity fund, 442. certificate of title, 437, 439. compulsory, or voluntary, 443. constitutional objections to, 433, 436, 437, 442. dealings with registered land, 439. decree, effect of, 438. effect of death of owner of registered land, 441, 443. examiner's functions, 437. general principles, 434. initial registration, 434, 435, 438. in what states acts provide for, 433. notice to adverse claimants, 436. parties to the proceedings, 435, 436, 437. proceedings are judicial, 435. process, 436. RELATIONSHIP, to parties as affecting competency to take acknowledgment, 284. RELEASE, by disseisee, to one in adverse possession, valid, 419. consideration clause in form of, 59. of sealed instrument must be sealed at common law, 246. RELIGIOUS CORPORATION, deed by, 241. REMAINDER, 144. one first named in habendum may take, 133. REMEDY, for breach of covenant for further assurance, 205. of warranty, 206. in equity, for violation of condition to support, 184. restrictive covenants, 227. index. 595 [References are to Sections.} KENT, reservation of, in reddendum, 31. vendee's right to, does not relieve grantor from liability on cove- nant, 202. REPUGNANT, condition, void, 186. exceptions and reservations void, 126. habendum, void, 129. RESERVATION, creates new interest, 119. exception, difference in effect of, 120. grantor's, of rights to water, 100. in general, 119-127. of an easement, 121, 122. appurtenant to other land of grantor, 125. of right to take minerals, timber &c, 124. repugnant to estate granted, void, 126. "road" reserved, an easement, 121. to third party, 127. words of inheritance necessary, when, 119. unnecessary, when, 119, 125. RESIDENT, entitled to homestead, 380. RESIDENT ALIENS, privileges accorded, 411 , 412. RESTORATION OF CONSIDERATION, on disaffirmance of infant's deed, 321. insane person's deed, 346. RESTRAINT, on alienation in general, void, 186. RESTRAINT OF MARRIAGE, by condition, 185. RESTRAINT ON ANTICIPATION, 354. RESTRAINTS ON ALIENATION OF HOMESTEAD, apply generally to married persons, 379, 380. RESTRICTED COVENANT, when does not affect other covenants, 208. RESTRICTION, building, 182, 227, 228. enforced how, 227, 228. notice of, from recital, 49. 596 INDEX. [References are to Sections.] RESTRICTION— Continued. on alienation, 312. on use not void, 186. right to enforce, how lost, 229. RESULTING USE, 55. REVERSION, 144. RIGHT OF WAY, grant of, over homstead premises, 395. incumbrance, 203. reservation of, 120, 121. "RIGHT, TITLE AND INTEREST," effect of these words, 207. RIPARIAN RIGHTS, controlled by state laws, 104, 112. on lakes, 117. reserved, 100. RIVERS, as monuments, 87 "bank," effect of in description, 100. bed of navigable, privately owned, when, 105, 106. islands in, owned by shore owner when, 107. meander line not a boundary, 102. navigable, when, 105, 110. non-tidal and non-navigable, private, 110. ownership of ice on navigable, 107. private title to bed in some states, 106. of navigable, not recognized where, 108. "shore," effect of, in description, 100. tidal, public, 105. three rules as to ownership of bed, 109. ROYAL CHARTERS, rights under passed to states, 104. RULE IN SHELLEY'S CASE, 145-147. RULES, for construing description, 84. flexible, 84, 86, 87. RUN WITH THE LAND, covenants for further assurance run, 205. covenants may when, 224. whether covenants against incumbrances do, 199. depends on their nature, 215, 224. INDEX. 597 [References are to Sections.] SANITY, deed made on restoration to, effect, 343. presumption of, 340. "SCRAWL," a seal in some states, 246. SCROLL, a seal in some states, 246. "SEAL," not a seal in some states, 246. SEAL, adoption of that on instrument, 248. corporate, 240, 249. effect of statute abolishing use of, 243. effects of, 245. essential at common law, 19, 242, 244. "importing consideration," 54, 245. in general, 242-249. notary's, effect of, 278. of commissioner of deeds, 276. of officer taking acknowledgment, 278, 280, 292. still required in some states, 246. what is sufficient, 246. SEALED INSTRUMENT, limitation of actions on, 245. SECURITY, by guardian on sale of infant's lands, 326. SEISIN, covenant for, 198. livery of, 11. abolished, 16. signifies possession, 198. whether covenant of, runs with the land, 216. SELECTION, of homestead, 385. SEPARATE ESTATE, intention to create must be expressed, 353. of married woman, 352. effect of statutes on, 357. her power over, 355. method of conveying, 356. 598 INDEX. [References are to Sections.] SEPAEATE EXAMINATION, of married woman, 360, 361, 365, 366. of wife in conveyance of homestead, 399. SEPARATION AGREEMENTS, between husband and wife, 375. SHAREHOLDER, cannot take acknowledgment, when, 285. SHELLEY'S CASE, rule in, 145-147. abolished, 147. SHERIFF, deed of, recitals in, 50. "SHORE," effect of, in description, 100. private title not beyond, when, 117. SHORE OWNER, on great lakes, extent of title, 112. SHORT FORM, deeds usually dated, 32. not always useful, 26. SHOOTING, rights of, on navigable rivers, 107. SIDE, of way as boundary, 90. SIGNATURE, form of, 236, 237. genuineness of, not shown by records, 426. name not necessary to, 236. notary's official, county part of, 291. to deed, place for, 235. SIGNING, by another, 2S8. by assumed name, 43. by corporation, 240, 241. by mark, 236. by officer taking acknowledgment, 291. deed by one not named as party, 37. in general, 233-241. name not necessary, 236. not essential to deed at common law, 233. now generally necessary, 234. under power of attorney, 239. INDEX. 599 [References are to Sections.'] SILENCE, after majority, not affirmance of infant's deed, 316. SOCIETY, literary or religious, deed by, 241. "SOLE AND SEPARATE USE," in creating separate estate, 353. SOLE DEED, of wife, when authorized, 363. wife's, will not bar dower unless authorized by statute, 376. SPECIAL COVENANTS, implied, 211. SPECIAL LEGISLATION, authorizing conveyance of infant's land, 330, n. SPECIAL LIMITATION, 173. SPENDTHRIFT, conveyance of, when void, 334. guardianship of, effect of, 334. STARTING POINT, uncertain in description, 80. STATE, cannot be disseised, 419. each has power to regulate conveyance of infants' lands, 324. grant from, on water, 101. named usually in description, 82. only, may complain of alien's holding real property, 409. of corporation's holding land in excess of power, 405. power of, to remove alien's disabilities, 412. to regulate transfers, 3. "STATED," for "acknowledge," 270. STATUTE, curing effect of irregularities in sale of infants' land, 329. STATUTE DE DONlS, 140. STATUTE OF ENROLMENTS, 12. STATUTE OF. FRAUDo, bargain and sale in writing after, 13. feoffment after, 14. parol gift valid, when, 17. requires writing for release of dower, 376. whether required signing of deeds, 233, 600 INDEX. {References are to Sections.] STATUTE OF USES, applied to the lease and release, 13. deed under, 20. sustained as a conveyance under, when, 58. effect of, in transferring legal estate, 56. on feoffment, 56. STATUTE QUIA EMPTOEES, 31, 174. STATUTES, affecting infant's right to disaffirm, 320, 321. against conveying lands held in adverse possession, 416. as to execution, adoption of in another state, 9. authorizing conveyance of infants' lands, 324-329. insane person's lands, 348. concerning aliens, 411. concerning estates tail, 143. estates tail, affect, rule in Shelley's case, 147. implied covenants, 30, 211. joint tenancy, 151-155. nominal conditions, 186. use of "heirs," 136. effect of, on rule preventing conveyances between husband and wife, 371. English recording acts, 422. wife liable on covenants, under, 194. STATUTES OF MORTMAIN, 401. STATUTORY DEEDS, 30, 211, conditions in, 178. dual capacity of, 213. no habendum in, 128. STATUTORY SEPARATE ESTATE, of married woman, 358. what is, 358. STATUTORY SUBSTITUTE FOR DOWER.. 372. STOCKHOLDER, cannot take acknowledgment, when, 285. STOLEN DEED, recording of, effect, 299. STRANGER, reservation to, 127. INDEX. 601 [References are to Sections.] STREAM. See Rivers. as boundary, 100. grantor owning both sides does not grant to center, 98. STREET, as boundary, 89, 90, 91. as monument, 87. grantee takes title to center, when, 89. rights in street Bhown on map, 94. laid out on edge of grantor's land, 91. named in description, 82. "SUBJECT TO INCUMBRANCE," effect of, 208. "SUBSCRIBE," signing at end, 235. SUBSEQUENT, conditions, 171. SUBSEQUENT GRANTEE, former infant may disaffirm conveyance against, 318. SUBSTANTIAL COMPLIANCE, what is as to acknowledgment, 268, 269. with statute concerning acknowledgment necessary, 266, 267, 367. SUPPORT, condition for, 183. SURNAME, baptismal name, once more important than, 42. firm name composed of, 45. SURRENDER, acceptance and, need not be concurrent act, 302. by grantor of control of deed necessary to delivery, 298, 306. derivative deed, 20. grantee's, of deed after delivery, effect, 311. SURVEY, named in description, 82. on ground controls conflicting map, 96. SURVIVORSHIP, in estate by entireties, 162. in joint tenancy, 149. not defeated by conveyance of tenant by entireties, 166. statutes abolishing, 154. 602 INDKX. {References are to Sections.'] TAIL, estate, barred by recovery, 18. in United States, 142, 143. tenant in, 140. TEMPORABY ABSENCE, from homestead, not abandonment, 383. TENANCY. See Entireties; Estate by, Etc. by entireties, 162-166. joint, 149-155. TENANCY IN COMMON, 156-158. alienation by one tenant, 157. exceptions to rule favoring, 153. TENANT, possession by, notice of landlord's title, 430. TENANTS IN COMMON, partition among, 160. TENENDUM, 31. TESTIMONIUM CLAUSE, 22-31. THIRD PERSON, conveyances between husband and wife through, 369. reservation to, 127. TIDAL, rivers, public, 105. test of public ownership, 105. waters, land bounded by, 104. TIMBER, exception of, 124. reservation of right to cut, 124. transfer of, on homestead, 395. TITLE. See, also, Registration of Title and "Torrens System." abstract of, 425. after acquired, inures to grantee in deed, when, 188. covenant of warranty not a covenant that title is good, 206. covenants for, 188-221. in mortgage, 189. running with the land, 214. defects in, not shown, by records, 426. shown by original instruments, 424. records, when, 424, 425. INDEX. 603 [.References are to Sections.] TITLE— Continued. delivery necessary to transfer, 296. effect of death of landowner on, 428. forgery on, 426. of insane person's deed, 337. form of covenants for, 191. grantee's wrongful possession of, escrow, does not convey, 310. how far does it extend to land under water, 104, 105. imperfections in, 423. insurance of, 432. one may have without any writing, 422. possession, notice of, 430. records do not show, 304, 306. registration of, 432-443. "TO HAVE," as operative words, 69. "TORRENS SYSTEM." See Registration of Title. constitutional objections to, 433, 436, 437, 438, 442. registration of title, 18, 304, 437-443. TRACT OF LAND, as monument, 87. TRADE, competition in, provisions restraining, 230. TRANSCRIPT, of records, evidence, 259, 260. TRANSLATION, of certificate of acknowledgment in foreign language, 280, n. TREATY, effect of, on state law, 4. may remove alien's disabilities, 412. TRUE DATE, of acknowledgment may be shown, 290. of deed may be shown, 35. TRUST, declared in habenbum, 134. imposed by grantor as to use, 180. notice of, from recital, 49. TRUSTEE, cannot take acknowledgment, 283. deed of, recital in, 51. for separate estate, 352. 604 INDEX. [References are to Sections.] TRUSTEE— Continued. husband is, of wife's equitable separate estate, 352. joint tenants, when, 153. title held by, for literary or religious society, 241. UNBORN CHILD, as grantee, 43. UNCERTAIN, description, void, 76. general description not always, 81. UNCERTAINTY, deed void for, 40, 76. in description, arises, how, 77, 80. UNDEFINED PART, of larger tract, 77. UNDISCLOSED INTEREST, as affecting competency to take acknowledgment, 285, 286. UNDIVIDED INTEREST, conveyance of, ereates tenancy in common, 79, 156. UNDUE INFLUENCE, presumed, when, 341. UNITED STATES, acknowledgment taken out of, 280. courts of, follow state laws, 4. devise to, 7. "UNMARRIED," addition of, to name, 44. UNRECORDED, deed, effect of grantee's destruction of, 311. possession under, effect of, 430. map or plat, referred to, 93. UNSOUND MIND. See Insane Person; Insanity. conveyance of real property of those of, 331-348. USE, restrictions as to, how enforced, 228. when condition, 18^. resulting to grantor, 55. USES, deeds under, 20. statute of, 56. INDEX. 605 [References are to Sections.'] USUAL COVENANTS, for title, 31, 190. VALIDITY, of deed, acknowledgment when necessary to, 261. witnesses not generally necessary to, 251. VALUE, of homestead, 386. VARIANCE, in name, in parts of conveyance, 237. of one signing and acknowledging, 271. VENDOR, possession by, after his conveyance, 431. when may be compelled to execute deed with covenants, 188. VENUE, in certificate of acknowledgment, 289. VESTED REMAINDER, 144. "VOID" AND "VOIDABLE," compared, 312. VOID, condition, 185, 186. repugnant, 186. conveyance by drunkard, when, 334. by spendthrift, 334. of homestead, when, 392. of land held in adverse possession, how far void, 416, 417. description of person or property inherently uncertain render deed void, 40, 76. exception or reservation when void, 126. insane person, conveyance so held often, 335-336. under guardianship, conveyance void, 332. married woman's deed not properly acknowledged, 365. restraint on alienation generally, 354. VOIDABLE, conveyance by infant, generally, 313. insane person not under guardianship, generally, 335. of homestead by husband alone, when, 394, n. of land held in adverse possession, 417. to alien, 409. to corporation, when, 405. 606 INDEX. [References are to Sections.'] "WAIVE AND RENOUNCE," as operative words, 71. WAIVER, of conditions, 187. of right to enforce restriction, 229. WALLS, party covenants as to, 231. WARD. See Guardian ; Infant; Insane Pbkson. "WARRANT AND DEFEND," as operative words, 71. "WARRANT," not essential to covenant of warranty, 206. WARRANTY, ancient not same as covenant of warranty, 206. covenant of, 206; runs with the land, 219. incident of feudal tenure, 197. "WARRANTY DEED," contract for, 190. grantee in, takes after acquired title, 188. short form, 30, 211. WATER. See Rivkes, Lakes. as a boundary, 98-117. land under, title to, 104, 105, 106, 110, 116. non-tidal, public grants on, 101. tidal, public grants on, 101. WAX, not essential to seal, 246. WAY, right of, as incumbrance, 203. passes with land, 118. WEAKNESS OF MIND, combined with inadequate consideration, 341. not insanity, 340. WIDOW, grant to, for life or during widowhood, 173. INDEX. 607 {References are to Sections.'] WIFE, as witness to husband's conveyance, 253. could not alienate at common law without husband's consent, 350. insane, guardian of may release dower &c, when, 348. joining in husband's deed, when not bound by covenants, 194. may convey homestead alone, when, 394. may not convey directly to husband, when, 371. non-resident, whether entitled to dower, 373. power over separate estate, 355. signing husband's deed not generally enough to bar dower, 376. statutory separate estate of, 358. WILL, deed distinguished from, 29. disposition of homestead by, 378. less capacity required in testator than in grantor, 338. probated, when, 428, n. 28. revocation of, by changed domestic circumstances, 428. WINDOWS, condition that there shall be no, unreasonable, 186. WITNESSES. See Attestation. disqualified by interest, 253. how they sign, 252. in general, 250-253. necessary for what purpose, 251. not needed at common law, 250. proof by, 295. to signature by mark, 236. WORDS, appropriate to create condition, 177. determinable fee, 174. of conveyance, 63-72. WRITING, deeds superior to other writings, 54. generally necessary in alienation of homestead, 398. other' than deeds, acknowledged how, 256. title may pass without, 17. what may be acknowledged, 255. when not necessary to transfer land, 11. WRONGFUL EVICTION, no breach of covenant of warranty, 210. HERBERT D. LAUBE KF 670 B8U c.2 Author Vol. Brewster, James Harry Title Copy The conveyance of estates in fops -hy rlPAd Date,