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 Elements of the law of real property, wit 
 
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 tine Cornell University Library. 
 
 There are no known copyright restrictions in 
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 http://www.archive.org/details/cu31924018814586 
 
ELEMENTS 
 
 OF THE LAW OF 
 
 EEAL PROPERTY 
 
 LEADING AND ILLUSTRATIVE CASES 
 
 BY 
 
 GEAl^T NEWELL 
 
 PBOFXSSOIt OP THB LAW OP BEAL PBOPBBTT 1H THE ChIOAGO-KeNT CSoLLEOB OF LAW. 
 
 (Law Depaktmbnt op LA£e Foebst Ukitebsitt.) 
 
 CHICAGO 
 T. H. FLOOD AND COMPANY 
 
 1902 
 
COPYEIGHT, 1903, 
 BY 
 
 T. H. FLOOD AND COMPANY. 
 
 STATE JOXXRNAL PEINTING COMPANY, 
 
 Printers and Stereotypers, 
 
 madison, "wis. 
 

 PREFACE. 
 
 This book is designed primarily for the use of students of 
 the law, and is largely an outgrowth of the experience of 
 the author in the class-room. A text-book of this scope on 
 so profound a subject can be little more than a guide to the , 
 student and an assistant to the instructor. The method of 
 teaching the subject in hand adopted by the author, and in 
 accordance with which this book was prepared, embraces 
 the lecture, quiz and case systems in the endeavor to utilize 
 the manifest advantage's of each. The superiority of a sys- 
 tematic course of lectures over occasional and unconnected 
 explanations must be apparent. Nothing else can properly 
 perform the functions of quizzes and tests, both oral and 
 written. The study of illustrative cases impresses the stu- 
 dent with the application of principles by the courts, thus 
 demonstrating to him their standing as matters necessary to 
 his knowledge of the law. 
 
 The aim of the author throughout the book has been to- 
 ward simplicity. The broad lines laid down by Blackstone, 
 Craise, Williams, Washburn and Kent have been closely fol- 
 lowed. As indicated by its title, this book aspires to noth- 
 ing more than a consideration of the foundation principles 
 of an intricate subject, and this in as simple a manner as 
 possible, with the end in view of stimulating the interest of 
 the student, thus lightening and at the same time rendering 
 more effective the labors of the instructor. 
 
 The author attempts no new or original view of the law 
 of real property, and touches but incidentally upon what, 
 for want of a fitting appellation, has come to be known as 
 the " Modern Law of Keal Property," believing that, as both 
 
IV PEEFACE. 
 
 cannot well be acquired at the same time, the beginner 
 
 should master the theory before undertaking the acquisition 
 
 of the art. It is the earnest hope of the author that his 
 
 work may be of assistance to students in their investigations 
 
 of a branch of the law so generally approached by them 
 
 with feelings of apprehension, and too frequently quitted 
 
 with convictions of doubt and uncertainty. 
 
 Geant Newell. 
 Chicago, November 1, 1901. 
 
TABLE OP CONTENTS. 
 
 PART I. 
 
 ESTATES AT LAW. 
 
 CHAPTER I. (§§ 1-29.) 
 
 Page. 
 The nature and distinguishing features of real property 1 
 
 CHAPTER II. (§§30-59.) 
 Tenures and estates in general 16 
 
 CHAPTER III. (§§ 60-70.) 
 Estates of freehold — Estates in fee simple 29 
 
 CHAPTER IV. (g§ 71-98.) 
 
 Estates of freehold — Estates in fee tail 35 
 
 CHAPTER V. (§§ 99-129.) 
 
 Estates of freehold — Estates for life 46 
 
 CHAPTER VI. (§§ 130-170.) 
 Estates of freehold — Estates for life other than conventional 59 
 
 CHAPTER VII. (§§ 171-206.) 
 
 Estates less than freehold — Estates for years 74 
 
 CHAPTER VIII. (§g 207-221.) 
 
 Estates less than freehold — Tenancy from year to year, at will, 
 and at sufferance. ^ 83 
 
 CHAPTER IX. (§§ 222-246.) 
 Joint estates 91 
 
 CHAPTER X, (§§ 247-262.) 
 Estates upon condition 100 
 
 CHAPTER XI. (§§ 263-278.) 
 Future estates and interests 106 
 
 CHAPTER XII. (§§ 279-305.) 
 Remainders, vested and contingent 113 
 
Yl TABLE OF CONTENTS. 
 
 PART II. 
 
 ESTATES m EQUITY. 
 
 CHAPTER XIII. (§§ 307-339.) 
 
 Page. 
 Estates and interests in equity 183 
 
 CHAPTER XIV. (g§ 340-362.) 
 Executory interests 138 
 
 CHAPTER XV. (§§ 363-385.) 
 Mortgages .• 148 
 
 PART III. 
 
 PARTICULAR ESTATES AND INTERESTS— INCOR- 
 POREAL HEREDITAMENTS. 
 
 CHAPTER XVI. (§§ 386-402.) 
 Involuntary alienation 157 
 
 CHAPTER XVII. (§§ 403-449.) 
 Incorporeal hereditaments 168 
 
 PART IV. 
 
 THE CREATION AND TRANSFER OF ESTATES AND 
 INTERESTS IN LANDED PROPERTY. 
 
 CHAPTER XVIII. (§§ 450-466.) 
 
 Of title to things real in general 179 
 
 CHAPTER XIX. (§g 167-498.) 
 
 Titles other than by grant 189 
 
 CHAPTER XX. (§§ 499-532.) 
 Title by grant — Of title by devise 204 
 
 CHAPTER XXI. (g§ 533-553.) 
 Title by private grant 221 
 
 CHAPTER XXII. (§§ 554-582.) 
 Conveyances inter vivos 282 
 
 CHAPTER XXIII. (§§ 583-604.) 
 Component parts of deeds 243 
 
 Leading and Illustkative Casks 355 
 
TABLE OF CASES CITED. 
 
 References are to pages. 
 
 Abbott V. Abbott, 246. 
 
 Adams v. Beadle, 11. 
 
 Adams v. Bucklin, 175. 
 
 Adams v. Field, 211. 
 
 Adams v. Hill, 70. 
 
 Adams v. Ross, 41, 249. 
 
 Adams v. Stevens, 245. 
 
 Alcorn v. Morgan, 81. 
 
 Alexander v. Alexander, 85. 
 
 Alexander v. Warranoe, 175. 
 
 Allen V. Craft, 44. 
 
 Allen V. Mayfield, 118. 
 
 Allwood V. Ruckman, 84. 
 
 Alpine, etc. School District v. Bat- 
 
 sche, 89. 
 Ambrose v. Raley, 198. 
 Anderson v. Coburn, 192. 
 Andrews v. Lyon, 192. 
 Andrews v. Spurr, 245. 
 Arnold v. Foote, 195. 
 Ashcraft v. E. R. Co., 169. 
 Atchison v. "Wheeler, 73. 
 Ayer v. Emery, a53. 
 Backus V. McCoy, 350. 
 Baer v. Heron Bros., 12, 
 Baker v. Bliss, 238. 
 Bank of Augusta v. Earle, 175. 
 Banks v. Ogden, 203. 
 Barber v. Rorabeck, 73. 
 Barger v. Hobbs, 198. 
 Barlow v. Wainwright, 88, 
 Barney v. Leeds, 73. 
 Bates V. Tymanson, 247. 
 Batty V. Snook, 154. 
 Baugan v. Bell, 193. 
 Beach v. Miller, 351. 
 Beahan v. Stapleton, 347. 
 Beard v. Murphy, 173. 
 Benham v. Potter, 171. 
 Bensell v. Chancellor, 235. 
 Benson v. Hodson, 43. 
 Bird V. Pope, 317. 
 Bishop V. McClenand's Ex'rs, 98. 
 Blake v. Fash, 840. 
 Blanchard v. Blanchard, 217. 
 Blancbard v. Brooks, 249. 
 Blankenship v. Stout, 235. 
 
 Blevins v. Smith, 69. 
 Blight's Lessee v. Rochester, 78. 
 Bloodgood V. M. & H. R. Co., 161. 
 Blum V. Carter, 73. 
 Bodine v. Arthur, 38. 
 Boggs V. Merced Co., 193. 
 Bond V. Fay, 346. 
 Borland v. Marshall, 62. 
 Bowen v. Swander, 97. 
 Bowker v. Collins, 73. 
 Bowman v. Bailey, 69. 
 Boyd V. Cook, 317. 
 Bracket v. Goddard, 11. 
 Bradley v. Bradley, 183. 
 Brakely v. Sharpe, 170. 
 Breeding v. Davis, 64. 
 Bristol V. Bristol, 216. 
 Brown v. Clark, 65. 
 Brown v. G-eller, 79. 
 Brown v. Hogle, 96. 
 Brown v. Lawrence, 118. 
 Brown v. Metz, 353. 
 Buck V. Pickwell, 11. 
 Buckingham v. Haun. 93. 
 Budd V. Brooke, 345. 
 Bullen T. Runnells, 173. 
 Burgess v. Wheats, 53. 
 Burt V. Rioker, 152. 
 Cady V. Shepherd, 338. 
 Caldecott v. Brown, 56. 
 Campau v. Dubois, 198. 
 Campbell v. Bemis, 336. 
 Canfield v. Ford, 10, 14. 
 Carpenter v. Craber, 173. 
 Carr v. Givins, 63. 
 .Gate v. French, 194. 
 Catlin V. Kidder, 96. 
 Ca vender v. Smith, 207. 
 Chandler v. Temple, 340. 
 Chase v. Weston, 353. 
 Chicago, etc. Ry. Co. v. Hicox, 173. 
 Chicago Legal News Co. v, Browne, 
 
 84. 
 Chowning v. Cox, 156. 
 Church V. Church, 95. 
 Clapp V. Stoughton, 183. 
 Claque v. Washburn, 341. 
 
via 
 
 TABLE OF OASES CITED. 
 
 Eeferencea are to pages. 
 
 Clark V. Clark, 99. 
 Clark V. White, 175. 
 Clarkson v. Olarkson, 40. 
 Cleaver v. Cleaver, 186 
 Cline V. Jones, 840. 
 Cook V. Whiting, 11. 
 Cole V. Hughes, 173. 
 Cole V. Raymond, 191. 
 Coman v. Thompson, 11. 
 Comlmissioners v. Young, 69. 
 Comstock V. Smith, 334. 
 Condiot V. Cohn, 83. 
 Condon v. Barr, 87. 
 Cook V. Brightly, 175. 
 Cook V. Stearnes, 176. 
 Coolidge V. Larned, 196. 
 Cooper V. Cooper. 99. 
 Copeland v. Copeland, 193. 
 Corbit V. Smith, 335. 
 Cornelius v. Ivins, 104. 
 Corning, Ex parte, 154. 
 Corning v. Gould, 300. 
 Cory V. Bishop, 13. 
 Cover V. Stem, 316. 
 Craig V. Summons, 81. 
 Crawford v. Bertholf, 340. 
 Creekmur v. Creekmur, 197. 
 Crippen v. Morrison, 149. 
 Criswell v. Grumbling, 54 
 Crouse v. Holnian, 335. 
 Crum V. Sawyer, 317. 
 Cune V. McMichael, 193. 
 Dale V. Shively, 250. 
 Dame V. Dame, 11. 
 Dart V. Dart, 191. 
 Deere v. Chapman, 73. 
 Defreese v. Lake, 48. 
 De Haro v. United States, 176. 
 De Hoghton, In re, 73. 
 Delaphine v. Railroad Co., 173. 
 Denham v. Holeraan, 198. 
 Dewall V. Waters. 51. 
 Dewitt V. Eldred, 43. 
 De Wolf V. Hayden, 253. 
 Dikes V. Miller, 303. 
 Dixon V. Nichols, 84. 
 Doane v. Badger, 173. 
 Dodge V. Walley, 346. 
 Doe V. Lavins, 183. 
 Doe V. Porter, 87. 
 Doe d. Bristow v. Cox, 88. 
 Doe d. Martin v. Walls, 86. 
 Doe d. Tomes v. Chamberlains, 
 Donaldson v. Lamprey, 73. 
 Donnell v. Clark, 167. 
 Doty V. Teller, 40. 
 Drew V. Towle, 351. 
 Dubois V. Beaver, 11. 
 
 Dugan V. Gittings, 63. 
 
 Duinneen v. Rich, 168. 
 
 Dumont v. Kellog, 171. 
 
 Dyer v. Wrightman, 88. 
 
 Eddy V. Chase, 173. 
 
 Edwards v. McClung, 167. 
 
 Ellis V. Page, 184. 
 
 Ellis V. Paige, 88. 
 
 Ellsworth V. Cook, 63. 
 
 Elsava v. Farmer, 185. 
 
 Emanuel College v. Evans, 151. 
 
 Emmert v. Hays, 185. 
 
 Estabrook v. Royan, 57. 
 
 Express Co. v. Bank, 153. 
 
 Evansville v. Page, 347. 
 
 Fabens v. Fabens, 819. 
 
 Fahoney v. Holsinger, 41. 
 
 Farr v. Summer, 335. 
 
 Fash V. Blake, 331. 
 
 Ferris v. Brown, 169. 
 
 Fields V. Bush, 54. 
 
 Fight V. Holt, 161. 
 
 First Univ. Soo. v. Boland, 38. 
 
 Fisher v. Beckwith. 340. 
 
 Fittswald v. Beebe, 85. 
 
 Flaherty v. McCormick, 197. 
 
 Fletcher v. Holmes, 198. 
 
 Fletcher v. Peck, 207. 
 
 Flowers v. Flowers, 70. 
 
 Foote V. Cincinnati, 83. 
 
 Forbes v. Balenseifer, 176. 
 
 Forbes v. Hall, 207. 
 
 Forder v. Walsworth, 353. 
 
 Foster v. Marshall, 64. 
 
 Freeman v. McLennan, 11. 
 
 Frink v. Darst, 193. 
 
 Fritz V. Turner, 311. 
 
 Frost V. Deering, 238. 
 
 Furlong v. Garrett, 199. 
 
 Gage V. Gage, 182, 183. 
 
 Gallagher v. Shipley, 13. 
 
 Gardner v. Page, 183. 
 
 Cause V. Perkins, 51. 
 
 Gay V. Gay, 217. 
 
 George v. Cox, 166. 
 
 George v. Creen, 815. 
 
 Gerber v. Grubell, 170. 
 
 Gibson v. Eller, 148. 
 
 Gilbert v. Peteler, 169. 
 
 Gilmore v. Harris, 41. 
 
 Goff v. Canal Co., 169. 
 
 Goodall's Case, 149. 
 
 Gordon v. Whitlook, 317. 
 
 Gouchenour v. Mowry, 194. 
 
 Gould V. Mansfield, 317. 
 
 Grady v. McCorkle, 09. 
 
 Graff V. Fitch, 11. 
 
 Grand Tower Ca v. Gill, 194, 236. 
 
TABLE OF CASES CITED. 
 
 IX 
 
 References are to pages. 
 
 Graves v. Burden, 173. 
 
 Graves v. Deterling, 170. 
 
 Great Falls Co. v. Worcester, 194. 
 
 Green v. Hart, 149. 
 
 Green v. Massie, 183. 
 
 Gridlev v. W3,tson, 238. 
 
 Griffen v. Bixby, 11. 
 
 Griffin v. Griffin, 154. 
 
 Guerin v. Smith, 351. 
 
 Gurley v. Park, 314. 
 
 Hall V. Mayhew, 347. 
 
 Hanrahan v. O'Reilly, 193. 
 
 Harlow v. Cowdry, 134. 
 
 Harnett v. Maitland, 88. 
 
 Harper v. Tapley, 841. 
 
 Harren v. Wallner, 99. 
 
 Harrison v. Pepper, 56. 
 
 Hartman v. Kendall, 236. 
 
 Hawkes v. Chicago, etc. R. Co., 311. 
 
 Hawley v. Clawes, 51. 
 
 Hawley v. James, 70. 
 
 Haxtun v. Corse, 183. 
 
 Haynes v. Boardman, 199. 
 
 Haywood v. Fulmer, 81. 
 
 Haywood v. Kinney, 53. 
 
 Heisen v. Heisen, 68. 
 
 Heisky v. Clark, 95. 
 
 Henisler v. Wiokem, 70. 
 
 Herbert v. La Valle. 167. 
 
 Hicks V. Cram, 192. 
 
 Higgins V. Carleton, 311. 
 
 Higgins V. Kusterier, 13. 
 
 Hileman v. Bouslaugh, 116. 
 
 Hill V. Hill, 43. 
 
 Hoeveler v. Fleming, 80. 
 
 Hogan, In re, 312. 
 
 Hoit V. Underbill, 336. 
 
 Holbrook v. Betton, 155. 
 
 Holden v. Shattuck, 171. 
 
 Holmes v. Holmes, 69. 
 
 Holmes v. Railroad Co., 390. 
 
 Hopkins v. Hopkins, 139. 
 
 Howard v. Harris, 154. 
 
 Howe V. Howe, 335. 
 
 Howells V. Richards, 351. 
 
 Hoyne v. Osborn, 199. 
 
 Hubbard v. Cummings, 335. 
 
 Hubbard v. Norton, 251. 
 
 Hughes V. Edwards, 104, 153. 
 
 Hutchings v. Higgins, 345. 
 
 Hutchings v. King, 11. 
 
 Hutohins v. Byrnes, 238. 
 
 loe Co. V. Shortall, 173. 
 
 111. Cent. Ry. Co. v. Illinois, 173, 
 
 Irvin V. Smith, 341. 
 
 Irvine v. Marshall, 306. 
 
 Irwin V. Longworth, 348. 
 
 Jackson v. Birney, 199. 
 
 Jackson v. Bradford, 193. 
 
 Jackson v. Delancey, 153. 
 
 Jackson v. Hardin, 313. 
 
 Jackson v. Johnson, 61. 
 
 Jackson v. Phillips, 339. 
 
 Jackson v. Shelleck, 63. 
 
 Jackson v. Van Zandt, 30. 
 
 Jackson v. Wood, 339. 
 
 Jackson d. Livingston v. Bryan, 89. 
 
 James v. Patterson, 79. 
 
 Jarvis v. Moe, 73. 
 
 Jennings v. Ward, 151. 
 
 Jewell V. Warner, 45. 
 
 Jewett V. Miller, 193. 
 
 John V. Dunn, 45. 
 
 Johnson v. Richardson, 73. 
 
 Jones V. Hockman, 199. 
 
 Jones V. Roe, 144. 
 
 Jordan v. Roach, 44. 
 
 Kane v. Sanger, 253. 
 
 Kennedy's Appeal, 94. 
 
 Kennedy v. Nedrow, 69. 
 
 Kent V. Kent, 176. 
 
 Kerr v. Bell, 335. 
 
 Ketchen v. Pridgen, 87. 
 
 King V. Gilson, 334, 353. 
 
 Kingley v. Holbrook, 11. 
 
 Kington v. Preston, 101. 
 
 Kirkendall v. Mitchell, 350. 
 
 Kitchen v. Lee, 835. 
 
 Knecken v. Voltz, 168. 
 
 Knight V. Ind. etc. Co., 87. 
 
 Knipp V. Curti.s, 168. 
 
 Kramer v. Weinert, 213. 
 
 Kruse v. Wilson, 199. 
 
 Lacy V. Davis, 57. 
 
 Lamar v. Peane, 56. 
 
 Lanier v. Booth, 169. 
 
 Lanning v. Haynes, 217. 
 
 Lee V. Evans, 151. 
 
 Lee V. Miller, 73. 
 
 Lehndorf v. Cope, 48, 56. 
 
 Lewis' Appeal, 99. 
 
 Lippett V. Kelly, 347. 
 
 Lockwood V. Sturdevant, 350. 
 
 Loddington v. Kyrne, 109. 
 
 Lord Mountjoy's Case, 13. 
 
 Loving V. Elliott. 121. 
 
 Lucas V. Lucas, 65. 
 
 Lund V. Parker, 199. 
 
 Lyerly v. Wheeler, 340. 
 
 Lyle V. Richards, 43. 
 
 Lynn's Appeal, 50. 
 
 Lyon V. Kain, 184. 
 
 Malone v. McLaurin, 61, 63. 
 
 Manwarring v. Jennison, 13. 
 
 Maple V. Kussart, 193. 
 
 Mars V. Ray, 83. 
 
TABLE OF CASES CITED. 
 
 References are to pages. 
 
 Marselles v. Thalhiraer, 63. 
 
 Marshall v. Hadley, 318. 
 
 Marshall v. Niles, 346. 
 
 Marston v. Hobbs, 350. 
 
 Martin v. Robinson, 65. 
 
 Martin v. Seavy, 84. 
 
 Martin v. Straohen, 43. 
 
 Martin v. Waddell, 306. 
 
 Massey v. Huntington, 316. 
 
 May V. Le Clair, 331. 
 
 Maynard v. Esher, 171. 
 
 MoAusland v. Pundt, 79. 
 
 McBride v. Wilkinson, 239. 
 
 McCann v. Oregon, 191. 
 
 McCarry v. King's Heirs, 56. 
 
 McConnell v. Bronze Co., 173. 
 
 McKee v. Perohment, 201. 
 
 McKee v. Wilcox, 73. 
 
 MoManus v. Carmichael, 173. 
 
 McTavish v. Carroll, 166. 
 
 McTeters v. Pearson, 12. 
 
 Meeker v. Meeker, 313. 
 
 Miles T. Fisher, 94. 
 
 Miles V. Miles, 52. 
 
 Miller v. McBorer, 79. 
 
 Miller v. Miller, 63, 171. 
 
 Miller v. Railway Co., 191. 
 
 Miller v. Topeka Land Co., 248. 
 
 Mills V. Roof, 96. 
 
 Mooney v. Olsen, 314 
 
 Moore v. Luce, 57. 
 
 Moore v. Smith, 39. 
 
 Morris Canal v. Lewis, 193. 
 
 Morrow v. Willard, 246. 
 
 Munch V. Smith, 57. 
 
 Muddy V. Mundy, 217. 
 
 Murray v. Hennessy, 211. 
 
 Muskett V. Hill, 177. 
 
 Myers v. Geramel, 171. 
 
 Nager, etc. v. Tiiylor, 86. 
 
 Neer v. MoNeer, 65. 
 
 Nelson, In re, 214. 
 
 Nicewander v. Nicewander, 318. 
 
 Nightingale v. Hidden, 137. 
 
 Noble V. 111. Cent. Ry. Co., 193. 
 
 Ocean Grove Ass'n v. Asbury Park, 
 
 173. 
 Oldham v. Pfleger, 154. 
 Oliver v, Houdlet, 335. 
 Oliver v. Hook, 169. 
 Orde v. Smith, 151. 
 Ormsby v. Webb, 314. 
 Ortwein v. Thomas, 56. 
 Ottumwa Lodge v. Lewis, 173. 
 Outland v. Bowen, 43, 45. 
 Overman v. Sasser, 13. 
 Owen V. Fields, 103. 
 Owen V. Morton, 97. 
 
 Oxford V. Benton, 61. 
 
 Packard v. Ames, 141. 
 
 Paine's Case, 37. 
 
 Parker v. Foote, 171. 
 
 Parson v. Boyd, 94. 
 
 Parsons v. Johnson, 166. 
 
 Parsons v. Livingston, 73. 
 
 Parsons v. Miller, 253. 
 
 Patterson v. Gelson, 203. 
 
 Pattison's Appeal, 11. 
 
 Pelan v. Bevard, 73. 
 
 People's Ice Co. v. " Excelsior," 12. 
 
 Perdue v. Aldrich. 339. 
 
 Phillips V. Allen, 52. 
 
 Phillips V. Moon. 216. 
 
 Phipps V. Tarplay, 250. 
 
 Pickett V. Dowdall, 300. 
 
 Pierson v. Lane, 38-45. 
 
 Pike V. Calvin, 194. 
 
 Pittsburg, etc. R Co. v. Reno, 170. 
 
 Plank Road Co. v. Stevens, 341. 
 
 Plimpton V. Converse, 166. 
 
 Pope V. Devereau, 301. 
 
 Pope V. Pickett 54. 
 
 Porter v. Noyes, 71. 
 
 Portington's Case, 43. 
 
 Post V. Pearsall, 176. 
 
 Potter V. Titcomb, 185. 
 
 Powell V. Rich, 11. 
 
 Preston v. Ryan, 11, 
 
 Price V. Taylor, 39, 44 
 
 Prince v. Case, 177. 
 
 Pringle v. Dunn, 341. 
 
 Proprietors, etc. v. Grant, 103. 
 
 Pynchon v. Stewart, 50. 
 
 Rausch, In re, 69. 
 
 Raymond v. Raymond, 350. 
 
 Reifif V. Reiff, 52. 
 
 Richard v. Ililler, 320. 
 
 Richards v. Bergavenny, 41. 
 
 Richards v. Brent, 250. 
 
 Richards v. Richards, 97. 
 
 JRichardson v. Clements, 169. 
 
 Riggin V. Love, 248. 
 
 Rigor V. Faye. 199. 
 
 Robertson v. Van Cleave, 30. 
 
 Robinson v. Brewster, 211. 
 
 Roe V. Quarterly, 41. 
 
 Rogers v. Eagle F. Ins. Co., 330. 
 
 Rogers v. Grazebrook, 153. 
 
 Rouse's Case, 90. 
 
 Rowland v. Hill, 44 
 
 Rowland v. Warren. 38. 
 
 Ruchman v. Cutwater, 13. 
 
 Russ V. Steele, 253. 
 
 Russell V. Davis, 199. 
 
 Ryan v. United States. 191. 
 
 Salisbury v. Shirley, 103. 
 
TABLE OF OASES OITED. 
 
 XI 
 
 References are to pages. 
 
 Salmonds v. Davis, 55. 
 Samuels v. Bavrowscale, 198. 
 San ford v. Travers, 252. 
 Scanlan v. Cobb, 835. 
 Schiefflin v. Carpenter, 337. 
 Scrlvner v. Smith, 351. 
 Seals V. Price, 330. 
 Selden v. Del. & Hud. Canal Co., 
 
 177. 
 Sexton V. Chicago Storage Co., 81. 
 Shackelford v. Hall, 104. 
 Shaw V. Poor, 343. 
 Shelly's Case, 113. 
 Sherlock v. Thayer, 84. 
 Sherwood v. Barlow, 331. 
 Short V. Terry, 44. 
 Sieloff V. Redmond's Adin'r, 116. 
 Simmons t. Norton, 52. 
 Sinnett v. Bowman, 313. 
 Six Carpenters Case, 177. 
 Skinner v. Fulton, 187. 
 Slocum V. Seymour, 11. 
 Smith V. Hunter, 139. 
 Smith V. Sharp, 50. 
 Smith V. Smith, 170, 311. 
 Smith V. Westall, 345. 
 Somes V. Skinner, 191. 
 Stafford v. Buckley, 37. 
 StafEords v. Woods, 73. 
 Standford v. Loan Co., 191. 
 State V. Tuty, 71. 
 Stedman v. Mcintosh, 87. 
 Stevens v. Mansfield, 301. 
 Stevens v. Smith, 69, 70. 
 Stevens v. Winship, 55. 
 Stevenson v. Crapnell, 341. 
 Stewart v. Matheny. 57. 
 Stewart v. Reddett, 340. 
 Storr V. Tifft, 70. 
 Strother v. Lucas, 306. 
 Stumpf V. Osterhage, 198. 
 Sullivan v. McLaughlin, 41. 
 Sutton V. Asken, 69. 
 Swearingen v. Morris, 330. 
 Sword V. Law, 13. 
 Talman v. Snow, 103. 
 Taylor v. Hargous, 73. 
 Taylor v, Millard, 169. 
 Thayer v. Clemence. 351. 
 Thayer v. Thayer, 69. 
 Thomas v. Connill, 81. 
 Thomas v. Mansfield, 166. 
 Thomas v. Stickle, 353. 
 Thomas v. Thomas, 56. 
 Thompson v. Miner, 169. 
 Thurston v. Hancock, 173. 
 
 Tiernan v. Hinnian, 151. 
 Todd V. Kerr, 194. 
 Tomlinson's Estate, 311. 
 Tostin V. Faught. 336. 
 Trafton v. Hawes, 328. 
 Traphagen v. Irwin, 243. 
 Truesdell v. Lehman, 31, 48. 
 Turner v. Bennett, 161. 
 Turney v. Chamberlain, 198. 
 United States v. Arredondo, 104. 
 Vail V. L. I. Ry. Co., 103. 
 Vallette v. Bennett, 154. 
 Valley Falls Co. v. Dolan, 169. 
 Veghte V. Raritan, 176. 
 Voss V. King, 97. 
 Vrooman v. McKaig, 87. 
 Wabash Ry. Co. v. McDougal, 345. 
 Wade's Case, 149. 
 Wait V. Grove, 198. 
 Waldo V. Cummings, 57. 
 Walker v. Sherman, 13. 
 Walker v. Wilson, 2ri0. 
 Wallace v. Harmsted, 173. 
 Ward v. Sheppard. 50. 
 Warren v. Chambers, 203. 
 Warren v. Wagner, 83. 
 Washington Ice Co. v. Shortall, 
 
 11. 
 Waters v. Breden, 346. 
 Waters v. Randall, 151. 
 Watts v. Public Adm'r, 311. 
 Weatherbee v. Ellison, 12. 
 Webster v. Webster, 50. 
 Weed v. Linsley, 88. 
 Welland Canal v. Hathaway, 301. 
 Wells V. Company, 347. 
 Westcott V. Shepard, 314. 
 West, etc. Tel. Co. v. Fain. 89. 
 Westmoreland Gas Co. v. Dcwitt, 
 
 83. 
 Wheeler v. Hatch, 350. 
 White V. Collins, 40. 
 White V. Cutler, 53. 
 White V. Wagner, 50. 
 Whitney v. Salter, 57. 
 Wilds v. Layton, 50. 
 Williams v. Laidlaw, 89. 
 Wilson V. Smith, 194. 
 Wing V. Cooper, 148, 156. 
 Witliam V. Brooner, 138. 
 Wood V. Fowler, 13. 
 Wood V. Leadbitter, 177. 
 Woolley V. Schrader, 97. 
 Worthington v. Hylyer, 346. 
 Wyman v. Brown, 140. 
 Wynkoop v. Cowing, 151. 
 
TABLE OF LEADING AND ILLUSTRATIVE 
 
 CASES. 
 
 References are to pages. 
 
 Adams v. Ross, 366. 
 
 Bozarth et al. v. Largent, 284. 
 
 Buckler v. Hardy, 343. 
 
 Canfield v. Ford, 259. 
 
 Cutts V. Commonwealth, 263. 
 
 Chapin et al. t. Crow, 348. 
 
 Cole et iix. V. Kimball, 434. 
 
 Dyer v. Clark et al., 332. 
 
 Gould V. Howe, 431. 
 
 Hale V. Hale, 371. 
 
 Hardage v. Stroope, 352. 
 
 Havens v. Sea Shore Land Co., 
 
 407. 
 Helm V. Boyd, 376. 
 Henderson v. Hunter, 341. 
 Jaokson ex dem. v. Gary, 360. 
 Jackson ex dem. v. Wood, 417. 
 Keeler v. Eastman, 283. 
 Kohl et al. v. United States, 398. 
 Lehndorf et al. v. Cope, 271. 
 
 Leonard v. White, 419. 
 Lobdell V. Hayes et al., 392. 
 Merritt v. Scott et ux., 280. 
 Mette et al. v. Feltgen, 818. 
 Moore v. Robbins, 399. 
 Morse v. Propper, 344. 
 Newman v. Rutter, 808. 
 Post V. Pearsall, 381 
 Russell's Appeal, 383. 
 Russell V. Fabyan, 314. 
 Sexton V. Storage Co. et al., 802. 
 Sherwood v. Dunning et al., 391. 
 Strong V. White et al., 255. 
 Thornburg v. Wiggins, 327. 
 Thurston v. Hancock, 387. 
 Warner v. Bennett, 338. 
 Warren v. Warren, 394. 
 Weed V. Lindsay, 311. 
 Witham v. Brooner. 358. 
 Wyman v. Brown, 363. 
 
ELEMEI^TS 
 
 OF THE 
 
 LAW OF REAL PROPERTY 
 
 PAET I. 
 ESTATES AT LAW. 
 
 CHAPTEE I. 
 
 THE NATURE AND DISTINGUISHING FEATURES OP REAL 
 
 PROPERTY. 
 
 § 1. Antiquity of this branch of the law. 
 
 2. Origin and foundation of our law. 
 
 3. English law under the Saxons. 
 
 4. Principles of the Feudal system. 
 
 5. General principles of ownership. 
 
 6. Legal signification of terms. 
 
 7. Nature of ownership. 
 
 8. Qualities of absolute ownership. 
 
 9. Corporeal and incorporeal property. 
 
 10. The two kinds of property. 
 
 11. Tenure — Allodial and feudal distinguished. 
 13. Terminology. 
 
 13. Importance of familiarity therewith. 
 
 14. Property, real and personal. 
 
 15. Distinctions between. 
 
 16. Origin and cause of distinction. 
 
 17. The same, continued. 
 
 18. The same, continued. 
 
 19. The same, concluded. 
 
 30. Importance of this distinction in our law. 
 21. Signification of the word "land." 
 33. Land further defined and distinguished. 
 1 
 
2 ESTATES AT LAW. [§§ 1, 2. 
 
 § 23. Fixtures. 
 
 24. Fixtures, continued. 
 
 35. Tenements. 
 
 26. Hereditaments. 
 
 27. Meaning of inheritance. 
 
 28. Modes of alienation of hereditaments. 
 
 29. Lands, tenements and hereditaments distinguished. 
 
 § 1. Antiquity of this branch of the law. — The existence 
 of individual rights and interests in real property seems 
 coeval with that of civilization, Holy Writ and the works 
 of Josephus and of Kollins regarding the idea of such own- 
 ership in separate and distinct portions of landed property 
 as having existed from the earliest period of which we may 
 obtain authentic account. We must, however, look upon 
 the law of real property as a growth, not a creation, and 
 hence, in order to gain a perfect understanding of the sub- 
 ject, we must endeavor to ascertain the sources from which 
 the system known as the law of real property of the present 
 day arose. 
 
 §2. Origin and foundation of our law .^ The law of 
 real property in the United States has its foundation in the 
 common law of England, the civil law of Rome, certain en- 
 actments of the parliament of Great Britain, and numerous 
 legislative enactments, both state and federal, of our own 
 country. 
 
 Strictly speaking, the common law of England is the un- 
 written law, and is based upon custom, general understand- 
 ing, and consent so long acquiesced in that the mind of man 
 runneth not to the contrary.' But when we speak now of 
 the common law, we include as a part of it many statutes 
 enacted by parliament, which are of course written laws. 
 We also make use of the expression to distinguish legal from 
 equitable (or chancery) jurisprudence, the other great divis- 
 ion of our judicial system. The civil law is the name given 
 to the body of the law of ancient Eome, and traces of its 
 influence, and indeed many of its enactments, are to be 
 
 1 Black. Comm. 
 
§§3, 4. J NATTJEE OF EEAL PEOPEETT. 3 
 
 found in our laws even at the present clay.^ The early com- 
 mon law was rich in provisions concerning real property 
 because early England was an agricultural nation. The 
 civil law dealt more especially with personal property, and 
 we find a reason for this in the fact that the Eomans were 
 essentially a trading and commercial people, and paid no 
 great attention to tilling the soil and kindred pursuits. 
 
 § 3. English law under the Saxons. — From what has 
 been said it naturally follows that the law of real propertj'- 
 as we know it to-day is founded chiefly upon the English 
 law. If we turn to our histories we will find that the rule 
 of the Saxon race came to an end in England about the 
 middle of the eleventh century.^ Then it was, too, that the 
 system of land holding, which was the immediate forerunner 
 of our own, was formally introduced into England by Will- 
 iam of Normandy, commonly known as William the Con- 
 queror. This system, so introduced by William, is known 
 as the Feudal System. Saxon England, while perhaps 
 recognizing the feudal system to a limited extent or adopt- 
 ing it in a modified form, had laws governing the proprie- 
 torship of landed property based on entirely different 
 principles from those underlying the feudal system. It 
 appears that under the Saxons both absolute ownership and 
 free alienation by will and by deed were constantly up- 
 held ; that lands were not generally grouped into great es- 
 tates, ruled over by a single lord as the representative of 
 the king, but very often into farms and commons which 
 were owned jointly or in severalty by the free men who in- 
 habited the country — a state of affairs quite inconsistent 
 with the principles of the feudal system.^ 
 
 § 4. Principles of the feudal system. — This feudal sys- 
 tem as introduced by William was of purely military and 
 despotic origin, having for its basic principle the theory that 
 
 1 For example, see Rev. Stat. Illi- 2 gee Green's History of the Eng- 
 
 nois, oh. 39, " Descent," wherein the lish People, 
 
 civil, and not the common, law is ^ See post, § 4 
 followed. 
 
4 ESTATES AT LAW. [§§ 5-8. 
 
 the primary title to all landed estates was vested in the 
 crown/ thus preventing both absolute ownership and free 
 alienation by individuals. Under this system lands were 
 granted by the crown not to be owned, but to be held; and 
 in return the one upon whom the grant was conferred was 
 required to render some service, usually of a military nature, 
 to the crown. Herein is the origin of the word " tenant " 
 (Latin teneo, to hold), which is still made use of to denote 
 one who is the owner of an interest in landed estates. 
 
 § 5. General principles of ownership. — As the subject 
 of the feudal system and the tenures arising thereunder 
 will be treated of at length in a subsequent chapter, we will 
 now leave it for the present, and enter upon the considera- 
 tion of those principles upon which all individual rights and 
 interests in landed estates are based ; and first among these 
 is the signification, in law, of the wov^ property. 
 
 § 6. Legal signification of terms. — Many words and ex- 
 pressions in common use, when embodied in the language 
 of the law, are there given a distinct, and ofttiraes quite a 
 different, signification, and so it is with this word property. 
 When used in its ordinary sense it signifies that which a 
 person possesses and with which he may do whatsoever he 
 pleases. But when used in the law it purports and involves 
 the idea of ownership,^ and this word implies that the per- 
 son possessing the object thereof has the exclusive right to 
 the enjoyment of the same; and our system of laws under- 
 takes to protect him in the exercise of such right of enjoy- 
 ment as against all persons who without legal justification 
 seek to hinder him therein or to deprive him thereof. 
 
 § 7. Nature of ownership. — ISTow ownership as a matter 
 of law may be absolute or otherwise. So one is said to be 
 the owner of property although his possession may not in- 
 clude all the attributes of absolute ownership. 
 
 § 8. Qualities of absolute ownership. — An absolute own- 
 ership imports the rights of free enjoyment and free disposi- 
 
 1 Co. Lit. 65a. 2 Will R. P. (17'th Int. ed.), pp. 1, 2. 
 
§§ 9-11.] NATDEE OF EEAL PEOPEKTT. 5 
 
 tion and the quantity of indefinite duration in point of time.^ 
 Any possession which is lacking in one or more of these 
 particulars is called in law a restricted, limited or qualified 
 ownership. But in either case it is only a question of de- 
 gree; and the owner, whether he be absolute or otherwise, 
 will be protected in the enjoyment of such rights as he may 
 have in the object of his ownership. 
 
 § 9. Corporeal and incorporeal property. — The com- 
 mon law, following in this respect the civil law of Rome, 
 divides all things in which individuals may acquire rights 
 of ownership into two classes — corporeal and incorporeal. 
 Corporeal things are such as are of a tangible nature, as 
 lands, cattle, goods, etc. ; while incorporeal are those of such 
 a nature that they are not discernible by the exercise of our 
 natural senses, as mere legal rights and obligations, annuities, 
 and the like.^ 
 
 § 10. The two kinds of property. — Property, then, may 
 consist of tangible things in the possession of the owner, or 
 of certain rights of an intangible nature which are of value. 
 So a man may be the owner — that is, have property rights — 
 in lands, cattle, goods, etc. ; or his property may consist in 
 mere rights, as, for instance, debts due to himself, which are 
 susceptible of being converted into monej'' or otherwise 
 made to bring profit to the owner. 
 
 § 11. Tenure — Allodial and feudal distinguished. — Asa 
 necessary consequence of the adoption of the feudal system, 
 we find that under the English law a man could be possessed 
 of no absolute ownership in lands, the primary title to all 
 lands being vested in the crown, and no method provided by 
 which it may divest itself thereof. It is determined by the 
 weight of authority, however, that the feudal system, as an 
 institution, was never in force in the United States, and that 
 our land tenures are allodial as opposed to feudal ; by which 
 is here meant that while title to all lands in this country is 
 primarily vested in the sovereign power, that power may by 
 
 1 Will. R P. (17th Int. eA), p. 3. 2 Hale, Analysis, 46-50. 
 
6 ESTATES AT LAW. [§ Im- 
 
 proper gifts or conveyances divest itself of such title and 
 transfer the same to individuals. Both Kent and Washburn 
 support the proposition that our tenures are allodial; but 
 Sharswood is of the other opinion, advancing as his reasons 
 therefor the well-established power of the government to 
 take the lands of individuals for public use, the non-payment 
 of taxes, etc. But it may be said that in no instance (save 
 onlv perhaps in case of war) can the government assume to 
 exercise such power except in some manner provided by law 
 and involving a judicial determination of the rights of the 
 individual; and the fact that such proceedings at law must 
 be resorted to is in itself, perhaps, the most conclusive proof 
 that the government has no title to lands paramount to or 
 essentially differing in its nature from that which individ- 
 uals are capable of acquiring. The powers of this sort which 
 may be exercised by the government are those only which 
 are necessarily incident to the proper fulfillment of its vari- 
 ous functions. These powers do not arise by reason of the 
 fact that the government is vested with paramount title to 
 all lands, but are established and exercised solely on grounds 
 of public policy. We may conclude, therefore, that in the 
 United States one may have as absolute ownership in lands 
 as he may in any other sort of property. 
 
 § 13. Terminology. — But while our law thus denies cer- 
 tain of the principles of the feudal S3'stem, it accepts its 
 terminology ; and this, if there were no others, would afford 
 a sufficient reason for the necessity of an imderstanding of 
 it on the part of the student, as he will constantly meet with 
 words of which the signification will not be apparent with- 
 out such understanding. Thus, the interest or property 
 which one has in lands is designated an estate, and when 
 used in connection with proper words of qualification or 
 limitation, such as in fee, for years, etc., this word "estate" 
 denotes both the nature and the extent of such interest or 
 property. We are thus enabled b}'' the use of a few words 
 to indicate both the quality and the quantity of the interest 
 or property one has in lands. 
 
§§ 13-15.] NATUEE OF EEAL PKOPEETT. T 
 
 § 13. Importance of familiarity with the terminology. 
 
 The importance of becoming fa.miliar with what may be 
 called the terminology of the law of real property should be 
 borne in mind by the student at the very outset of his'work, 
 for a thorough understanding of the legal purport of the 
 terms made use of in this branch of the law will assist him 
 to no small extent in mastering the principles of the subject. 
 
 § 14. Property, real and personal. — Having acquired 
 some understanding of what is meant in the law by the terms 
 ■property and oivnershvp, and having seen that the first great 
 division of all objects of ownership is into things corporeal 
 and incorporeal, let us now proceed to a consideration of the 
 second classification of property, which we hnd to be ex- 
 pressed by the words real and personal} The distinction be- 
 tween these two kinds of property is of prime importance 
 and ofttimes gives rise to questions of great difficulty. If it 
 were true, as the casual observer might well conclude, that 
 all movable property is personal in its nature, while under 
 the term "real property" are embraced and included all 
 things imTnovable, the solution of the questions arising on this 
 point would be quite a simple matter. But not being true, 
 the foregoing proposition cannot materially assist us in the 
 determination of such questions, and hence we shall, for the 
 present, disregard the distinction sometimes made in the 
 books between movable and immovable property, as afford- 
 ing us no reliable test by which we maj'' distinguish between 
 real and personal property. 
 
 § 15. Distinctions between real and personal property. 
 As a matter of fact, we shall find that property, movable in 
 its nature, and, as the older text-writers were wont to say, 
 "capable of accompanying the person of its owner," very 
 often, by reason of certain acts of its owner, becomes an in- 
 tegral part of the realty, and hence real, and not personal 
 property, as it was before the doing of such acts. 
 
 Whether property is real or personal is a mixed question 
 
 1 Maine, Ancient Law, 273-277. 
 
8 ESTATES AT LAW. [§§ 16, 17. 
 
 of law and fact, to be governed, of course, by certain well- 
 established rules applicable to the state of affairs disclosed 
 by the evidence in each particular case. There is not, nor 
 can there be, any universal rule of law for determining this 
 question.* 
 
 § 16. Origin and cause of this distinction. — During the 
 formative period of the common law the English were es- 
 sentially an agricultural people. Property in land was there- 
 fore considered of the first importance. The holdings which 
 men had in personal property were chiefly in such goods 
 and chattels as appertained to the tillage of the soil, and 
 ownership of such property was deemed of secondary im- 
 portance. All real property has its foundation in lands, and 
 all things which are not land can become apart of the realty 
 only by connection or association therewith in some manner 
 recognized by the law. 
 
 § 17. Origin, etc., continued. — ITow, proceedings at law 
 were at an early date divided into actions real, actions per- 
 sonal, and mixed actions; that is, actions concerning real 
 property, actions concerning personalty, and actions wherein 
 both real and personal property were involved. The dis- 
 tinction here made in these actions at law arose largely out 
 of the physical differences between land and all other species 
 of corporeal property. Land, by which is now meant the 
 soil of the earth, is immovable and incapable of destruction ; 
 so if an action were to be brought concerning land, the place 
 where such action should be brought was fixed by the loca- 
 tion of the land, and if one had been unlawfully dispossessed 
 of his land he could in such action recover possession of the 
 land itself. But goods and chattels, considered separately 
 and apart from land, were neither fixed in their location nor 
 incapable of destruction ; and so when one was unlawfully 
 deprived of his possession thereof, it of ttimes happened that 
 the only redress which the law could afford him was not the 
 restoration of the thing itself, but the assessment of damages 
 
 1 Digby, Hist. Real Prop., App., sec. 1. 
 
§§ 18-20.] NATUEE OF REAL PEOPEETY. 9 
 
 in money against the wrong-doer. It therefore very natu- 
 rally followed that the nature of any property in question, 
 that is, whether real or personal, was determined by the 
 character of the proceeding in which the owner might have 
 redress for interference with his possession thereof, and by 
 the form of the redress therein afforded him by the law. 
 
 §18. Origin, etc., continued. — These proceedings at 
 law were named, as heretofore stated, real actions and per- 
 sonal actions; not primarily for the reason that the former 
 was resorted to in cases where the controversy concerned 
 real, and the latter personal property, but because in the 
 former the owner, by the judgment of the court, was al- 
 ways capable of being again restored to the possession of 
 the propertj' itself, that is, of the real thing; while in the 
 latter, owing to the movable and destructible nature of the 
 property involved, he might be compelled to accept in lieu 
 of the property itself a judgment for damages, running 
 against no particular property, but against the wrong-doer 
 in person. 
 
 % 19, Origin, etc., concluded. — Bearing in mind that it 
 was Icmd, and land only, which could always be thus re- 
 stored to the owner, it being immovable and indestructible, 
 we have it as the real thing to be recovered, as above set 
 forth, and hence its appellation of real property or real es- 
 tate. Applying the same course of reasoning to those ob- 
 jects of ownership which do not possess the attributes of 
 land, and rights in or concerning which were adjudicated in 
 personal actions, as heretofore shown, we can readily under- 
 stand how such objects of ownership came to be known in 
 the law as personal property .^ 
 
 § aO. Importance of tliis distinction in our law. — The 
 foregoing may serve to give the student some idea of the 
 origin of the distinctiou made in the law between real and 
 personal property, and, it is hoped, thus aid him to a fuller 
 understanding of what is sought to be further explained 
 
 1 Will. Real Prop. (17th ed.), 33. 
 
10 ESTATES AT LAW. [§§ 21, 22. 
 
 herein when we come to discuss the rules of law applicable 
 to lands, tenements and hereditaments. In general, it may 
 be said that this distinction between realty and personalty, 
 modified by the lapse of time and changed conditions, is still 
 observed; and notwithstanding' the numerous forms of prop- 
 erty, both real and personal, which are of modern creation, 
 a man's estate, as a whole, is at the present day made up of 
 property which is known in the law as either real or per- 
 sonal.^ 
 
 § 21. Lands, tenements and hereditaments — Significa- 
 tion of the word 'Hand."- — Land, in the ordinary sense of 
 the word, means the soil or surface of the earth, but in a 
 legal sense the word has a much broader signification. As 
 made use of in the law, the terra " land," in general, com- 
 prehends not only any ground, soil or earth whatsoever, but 
 includes all things of a permanent and substantial nature, 
 not only on the face of the earth, but everything of that 
 nature under it or over it.^ And he who is the owner of 
 land owns both upward and downward from the surface, 
 indefinitely.' Thus, a pond is described in law as so much 
 land covered with water, and minerals under the surface of 
 the earth are a part of the land. The term " land " embraces 
 as well whatever is permanently attached thereto, and that 
 whether the attachment has come about through natural 
 means, as in the case of trees and herbage, or by the hand of 
 man, as in the case of buildings and structures of various 
 kinds.* 
 
 § 23. Land farther defined and distinguished. — To 
 leave the subject at this point would, however, be mislead- 
 ing, for it sometimes happens that things permanently at- 
 
 1 The olassifloation into " mixed " were formerly classed as mixed 
 
 property is now practically disre- property. 
 
 garded. The ancient rules of law ^Co. Litt 4a; 3 Blk. Coram. 18; 
 
 regarding heirlooms are no longer Canfiekl v. Ford, 38 Barb. 336 
 
 in force, and fixtures, chattels-real, (N. Y. Sup. Ct). 
 
 etc., are the terms now made use ^3 Blk. Coram. 18. 
 
 of to indicate those things which * Wash. R. P., vol. 1 (5th ed.), p. 4. 
 
§ 22.] NATUKE OF EEAL PEOPERTT. 11 
 
 tached to the soil are not land and so do not pass by a con- 
 veyance of land eo nomine. Thus, growing crops, when 
 they are the property of the owner of the1and~ are a part 
 thereof.^ But when such crops are the property of a lessee 
 of the land, they are personalty.^ The same may be said 
 of buildings erected with the consent of the owner of the 
 land by a person intending to remove them at some future 
 time; but crops sown or buildings erected without such con- 
 sent become a part of the realty.' Similar questions may 
 arise with reference to growing trees and the products 
 thereof — ice, manure, property annexed to or fitted for use 
 upon the realty (usually designated as trade fixtures), the 
 rolling-stock of railways, etc. But as the determination of 
 these questions is largely regulated by statute in tbe vari- 
 ous states, there is, or can be, no universal rule of law to 
 guide us. The student is advised, in connection with this 
 subject, to make careful examination and study of the sev- 
 eral leading cases cited in the note below. > 
 
 Note. — Trees and other natural fruits. — May be either realty or 
 personalty. Generally realty, and pass by conveyance thereof. Hutch- 
 ins V. King, 1 Wall. 53. They so pass even if cut or blown down. 
 Bracket v. Goddard, 54 Me. 309. But not if cut into logs or timber by 
 owner. Cook v. Whiting, 16 111. 480; Kingsley v. Holbrook, 45 N. H. 
 313. As to this question when arising between lessor and lessee, see 
 Adams v. Beadle, 47 Iowa, 439. The one on whose land the trunk of 
 the tree stands is its owner. Dubois v. Beaver, 25 N. Y. 123. Where 
 tree stands on dividing line, owners of adjacent properties are tenants 
 in common of the tree. Griffin v. Bixby, 12 N. H. 454. Sale of stand- 
 ing trees is sale of interest in land. Buck v. Pickwell, 27 Vt. 157. 
 Growing trees are presumptively a part of the realty, but their status 
 may be changed by contract. Slocum v. Seymour, 36 N. J. Law, 138. 
 
 Growing: or matured crops. — When sold separate from the land, 
 they are personalty (Graff v. Fitch, 58 111. 373), and they may be taken 
 on execution against personalty. Preston v. Ryan, 45 Mich. 174. At 
 death of owner they pass to personal representatives. Pattison's Ap- 
 peal, 61 Pa. St. 294 et seq. 
 
 Ice. — Upon private waters is part of realty of owner of land be- 
 neath. Washington Ice Co. v. Sliortall, 101 111. 46. But sale of ice sepa- 
 
 1 Coman v. Thompson, 47 Mich. 22. ' Freeman v. McLennan, 26 Kan. 
 
 2 Powell v. Rich, 44 111. 466. 151; Dame v. Dame, 38 N. H. 429. 
 
12 ESTATES AT LAW. [§ 23. 
 
 rate from land is sale of personalty. Higgins v. Kusterer, 41 Mich. 318. 
 When formed on navigable streams, belongs to first taker thereof. 
 Wood V. Fowler, 26 Kan. 683. But see contra, People's Ice Co. v. Steam- 
 boat " Excelsior," 44 Mich. 329. 
 
 Manure.— In general a part of realty and passes as such. Wetherbee 
 V. Ellison, 19 Vt 379. But may be personalty under some circum- 
 stances. See Corry v. Bishop, 48 N. H. 146; Gallagher v. Shipley. 34 
 Md. 418; Ruchman v. Cutwater, 28 N. J. Law, 581. 
 
 Rolling stock of railroad companies. — Largely regulated by stat- 
 utory and constitutional provisions in the various states. Sword v. 
 Law, 122 111. 21R, 1 Wis. Ann. Stat. (S. & B.),sec. 1838. Is personalty by 
 constitutional provision in Mississippi, Nebraska and Texas. 
 
 Mining claim. — When perfected is realty. McTeters v. Pearson, 15 
 Colo. 201. 
 
 High-water mark. — Is the limit of government grants. " Land " does 
 not include that covered at low, and uncovered at high, water mark. 
 Baer v. Heron Bros. Co., 2 Wash. 586. 
 
 The statutes of some states enlarge upon the common-law definition 
 of land. See those of Georgia, Massachusetts and New York. 
 
 The student is further advised that recourse should be had in every 
 case to the statutes and decisions of the state in which the cause of 
 action arises. The citations given herewith can hardly serve in any 
 other capacity than that of illustrating in a general way the trend of 
 the law on these questions. 
 
 § 23. Fixtures. — Before dismissing the subject we must, 
 however, consider somewhat more at length the principles 
 governing certain articles of corporeal property, which 
 under some circumstances are a part of the realty, while 
 under others they are personal property. Such articles are 
 known as fixtures. It is perhaps impossible to formulate an 
 exact definition of this term, and no doubt it will serve our 
 purpose as well to become familiar with the principles of 
 law regulating the questions arising in connection with this 
 sort of property. We may say, however, that a fixture is 
 an article of property, personal in its nature, but which 
 from its situation or connection with the realty, and under 
 the circumstances of the case, has for the time being lost its 
 character as personalty and become accessory to the land 
 and parcel of it. To become a fixture such property must 
 be either actually or constructively attached to the realty, 
 or fitted and suitable for use thereon or in connection there- 
 
§§ 24, 25. J NATUEE OF EEAL PEOPEETT. 13 
 
 with, and it must be so annexed to or placed upon the realty 
 with the intention on the part of its owner of making it a 
 permanent accession to the freehold.^ 
 
 § 24. Fixtures, continued. — The tests by which we may 
 determine whether in a given case a certain article is a fix- 
 ture are so admirably set forth by a well-known writer on 
 the subject that we cannot do better than to quote his lan- 
 guage: "The weight of modern authority and of reason, 
 keeping in mind the exceptions as to constructive annexa- 
 tion admitted by all authorities to exist, seems to establish 
 the doctrine that the true criterion of an irremovable fix- 
 ture consists in the united application of several tests: 
 1. Real or constructive annexation of the article in question 
 to the realty. 2. Appropriation of adaptation to use or pur- 
 pose of that part of the realty with which it is connected. 
 3. The intention of the party making the annexation to 
 make the article a permanent accession to the freehold. Of 
 these three tests the clear tendency of modern authority 
 seems to be to give pre-eminence to the question of inten- 
 tion. The others seem to derive their chief value as evi- 
 dence of such intention." ^ An examination of the cases 
 cited below may be of profit.' 
 
 § 25. Tenements. — A tenement comprises everything 
 which may be so held as to create a tenancy in the feudal 
 sense of the word.* The word tenement is therefore of wider 
 meaning and extent than land, since it includes not only 
 land, but rents, commons and other rights and interests of 
 similar nature issuing out of or concerning land.^ But noth- 
 ing is a tenement which is not of a permanent nature.* 
 A parcel of land with its appurtenant rights in the pos- 
 session of any person was known in the early law as a ten- 
 
 1 Will. E. P. (17th Int. ed,), p. 39. * Lord Mountjoy's Case, 4 Burr. 
 
 2 Ewell on Fixtures, pp. 21, 83. 365. 
 
 8 Walker v. Sherman, 20 Wend. 5 1 Steph. Comm. 158. 
 636; Manwarring V. Jennison, 27 N. <> 2 Blk. Comm. 17. 
 W. R. (Mich.) 899. See also note to 
 Overman v. Sasser, 10 L. R. A. 723. 
 
14 ESTATES AT LAW. [§§ 26-28, 
 
 emetit, the term being then generally used in the mere sense 
 of a holding of land without any reference to the nature of 
 the tenant's interest therein.* The same word afterwards 
 came to be employed in a special sense as referring to free- 
 hold lands only, and at the present time, when the word "ten- 
 ement " is used, a freehold estate in lands ^ is indicated, to- 
 gether with the certain rights and privileges, above referred 
 to, which may be appurtenant to the particular estate in 
 question. 
 
 §26. Hereditaments.— The term " hereditaments " is a 
 still more comprehensive one than either lands or tenements, 
 for it includes everything which is capable of inheritance, 
 whether corporeal or incorporeal.' This classification into 
 corporeal and incorporeal is of particular application when 
 used in connection with the term " hereditaments," acorporeal 
 hereditament indicating lands or tenements in the possession 
 of the owner, an incorporeal hereditament mere rights in or 
 over land in the possession of another, but which are never- 
 theless, from the circumstances of their association, of the 
 nature of real rather than of personal property. 
 
 § 27. Meaning of "inheritance." — By inheritance is 
 meant the taking of property, on the death of the owner, by 
 the person who is by the laws of descent designated as the 
 one so to take, and such person is called the heir. Upon the 
 death of the owner, property personal in character passes to 
 the personal representatives of the deceased and not directlj' 
 to the heir. Such property is therefore, in this sense of the 
 word, incapable of inheritance, and hence is not included in 
 the terra "hereditament" except in cases where, by virtue of 
 its association with the realty, it is considered as a part 
 thereof and so passes to the heirs. 
 
 §28. Modes of alienation of hereditaments. — The dis- 
 tinction made in the law between the rights of persons in 
 actual possession of the objects of ownership on their part, 
 
 1 Will. R. P. (17th Int. ed.), pp. 15, 2 For explanation of freehold es- 
 21. tates, see p. 89, post. 
 
 8 Canfield v. Ford, 38 Barb. 336. 
 
§ 29.] NATDEE OF REAL PEOPEETY. 15 
 
 and of persons who were not in such possession, led to a dif- 
 ference in the mode of alienation applicable to corporeal 
 and incorporeal hereditaments. Corporeal hereditaments 
 were alienable (at the early law) only hj feoffment, that is 
 by a gift of the feud together with what was known as 
 livery of seisin, by which is meant a formal delivery of pos- 
 session.' In regard to incorporeal property it is evident that 
 there could be no actual delivery of the possession of the 
 thing itself, so recourse was had to writing, and the transfer 
 of the title to incorporeal hereditaments was effected by the 
 making and delivery of an instrument under seal, or deed of 
 grant. Hence corporeal hereditaments were said to lie in 
 livery, and incorporeal in grant? Though the necessity for 
 the ceremony of livery of seisin has long since ceased, and 
 both corporeal and incorporeal hereditaments may now be 
 said to lie in grant, we can still trace the effects of this an- 
 cient mode of alienation in the law as it stands to-day. The 
 actual possession of land is yet regarded in many cases as 
 the best evidence of ownership in him who holds such pos- 
 session. 
 
 § 29. Landsy tenements and hereditaments distin- 
 guished. — Land is both a tenement and an hereditament, 
 and a tenement may or may not be an hereditament. A 
 tenement and land may be distinct things, and an heredita- 
 ment (as an annuity in fee) may be neither land nor tene- 
 ment. Thus it becomes necessary, when we desire to indi- 
 cate with exactness all those things which are the objects 
 of ownership in landed property, to make use of the three 
 words — lands, tenements, and hereditaments. 
 
 1 Co. Litt. 9a, 48a. 2 Will. R. P. (17th Int. ed.), p. 31. 
 
CHAPTER II. 
 TENURES AND ESTATES IN GENERAL. 
 
 § 30. Nature of tenure. 
 
 31. Principles of the feudal system. 
 
 32. Origin of the feudal system. 
 
 33. Introduction into England. 
 
 34. Method adopted by William. 
 
 35. Free tenures. 
 
 36. Divisions of lay tenures. 
 
 37. Socage tenure. 
 
 38. Payment of money in lieu of services. 
 
 39. Abolition of military tenures. ^ 
 
 40. Freehold estates. 
 
 41. Quality and quantity. 
 
 42. Estates classified also as to quantity. 
 
 43. How estates may be acquired. 
 
 44. Seisin. 
 
 45. Modes of alienation. 
 
 46. Development of power of alienation. 
 
 47. How alienation was impossible under feudal system. 
 
 48. The disabilities gradually removed. 
 
 49. Subinfeudation. 
 
 50. Alienation as against the heir. 
 
 51. Reasons for the changes in the law. 
 58. The statute Quia Emptores. 
 
 53. Purpose of this statute. 
 
 54. Eflfeot of the statute. 
 
 55. The power of disposition of lands by will. 
 
 56. Statute of wills. 
 
 57. Power of free alienation extended to lesser estates. 
 
 58. Concerning estates as to quantity. 
 
 59. The quantity of various estates. 
 
 § 30. Nature of tenure. — We are already aware that in 
 the English law no individual could have an absolute own- 
 ership in landed property. He could acquire only a Jiolding, 
 and was consequently termed a tenant} Now when one thus 
 
 1 1 Poll. & Mait. Hist. Eng. Law, 210-217, sec. 1; Co. Lit. 65a. 
 
§ 31.j TENUBES AND ESTATES IN GENERAL. 17 
 
 holds property under the feudal system, he of necessity so 
 holds it upon some arrangement or agreement with the para- 
 mount owner of whom he obtains the holding. The relation 
 thus existing between the tenant and the one whose tenant 
 he is has long been designated in the law as tenure} Since 
 the nature of this tenure was dependent upon an arrange- 
 ment or agreement,^ it is quite to be expected that tenures 
 of various sorts should have existed, the quality and nature of 
 each depending upon the agreement or arrangement entered 
 into between the grantor of the holding and the tenant 
 thereof. 
 
 §31. Principles of the feudal system. — In order that 
 we may obtain an understanding of this important subject 
 of tenures we must examine somewhat at length certain of 
 the principles of the feudal system of land holding. And 
 first, tenures in the law are either allodial or feudal. Under 
 the former an individual may acquire a complete and abso- 
 lute property; he owns, not merely holds it, free from all 
 control of any other person.' Under the feudal system, or 
 feudal tenure, land was held upon certain services to be per- 
 formed for the lord by the tenant, who was to a large ex- 
 tent subject to the control of such lord. A. feitd was the 
 name given to a tract of land acquired by the voluntary 
 and gratuitous donation of a superior, and held on condi- 
 tion of fidelity and services.* At first the duration of feuds 
 was entirely dependent on the pleasure of the lord, as he 
 might resume them at will, but gradually the holding came 
 to be for a year, afterwards for life, and finally inherit- 
 able.^ The vassal could not alien without the consent of his 
 lord, and, on the other hand, the lord, having taken upon 
 himself certain obligations toward the vassal, could not 
 alien without his consent. And if the vassal were evicted 
 
 1 Co. Lit, la; 2 BIk. Com. 59. s Greenl. Cruise, Dig., p. 6. 
 
 2 Usually for the holciing of the * Greenl. Cruise, Dig,, p. 6; 
 lands upon the performance of Digby, Hist. Law of R. P., ch. 1, 
 certain services of a personal nat- sec. II; 2 Blk. Com. 104, 105. 
 
 ure by the tenant. 5 Greenl. Cruise, Dig., p. 16. 
 
 2 
 
18 ESTATES AT LAW. [§§ 32, 33. 
 
 the lord was obliged to give to him other lands of equal 
 value or to pay to him the value of the feud so lost.^ But 
 in the course of time the rights of the tenant were enlarged 
 and the powers of the lord diminished, until these feuds 
 gradually acquired the chief characteristics of the modern 
 estates. 
 
 § 32. Origin of the feudal system.— The origin of the 
 feudal system is generally accredited to the German or 
 Teutonic tribes which inhabited the northern part of Eu- 
 rope. From this source the system spread throughout the 
 greater part of continental Europe. It will be observed 
 how very well it was adaptable to the case of conquered 
 peoples, giving as it did so great a dominion over landed 
 property to the conqueror, yet leaving the actual possession 
 of their ancient holdings to the vanquished. It was the 
 custom of the conquering nation to compel grants of all the 
 lands of the vanquished to be made to the sovereign of the 
 victors, and he then made gifts of such lands as he saw fit 
 to such of the conquered peoples as he desired, upon their 
 taking the oath of allegiance and promising the perform- 
 ance of services for him in. accordance with the principles 
 of the feudal system, reserving always to himself the rights 
 of forfeiture, escheat, etc. Such victorious sovereigns also 
 found in this system a very convenient means of rewarding 
 their favorites by gifts of lands which had accrued to them 
 by their conquests. 
 
 § 33. Introduction of feudal system into England. — 
 William, coming as he did from the vassal state of N"or- 
 mandy, was familiar with the workings of this feudal sys- 
 tem, which at the date of his conquest of England had been 
 in vogue for centuries among the German tribes and other 
 nations in the north of continental Europe. Nothing was 
 more to be expected than that he should entice followers to 
 his standard, when raised for the proposed invasion of Eng- 
 land, by promising to parcel out the lands of the Saxons 
 
 1 Perhaps this was the origin of our modern warranty of title. 
 
§§ 34, 35.] TENURES AND ESTATES IN GENERAL. 19 
 
 according to feudal tenure, among those who should be with 
 him when he had made his footing sure and his conquest 
 complete on the shores of that country. 
 
 § 34. Method adopted by William. — When William par- 
 celed out the lands over which he had gained dominion by 
 virtue of his conquest of the English, there were two classes 
 of his followers whom he desired especially to favor. These 
 were his chief spiritual advisers and his foremost military 
 adherents. To each of these classes he displayed his grati- 
 tude by making to their individual members, or for such 
 purposes as such members desired to indicate, gifts of por- 
 tions of the lands of the conquered people. Each of these 
 classes had its particular form of arrangement or agreement, 
 upon which the gifts to it were made and held, and so at 
 the very outset two sorts of tenure were created, known in 
 the law as ecclesiastical tenures and lay tenures. With the 
 former we shall concern ourselves but little; with the latter 
 in its various modifications and forms we shall have much 
 to do. 
 
 §■35. Free tenures. — Eoth ecclesiastical and lay tenures 
 were free tenures, that is to say, they were of such nat- 
 ure that, after the establishment of courts of law and the 
 appointment of permanent judges to preside thereover 
 (about A. D. 1154), one holding by either of these ten- 
 ures might have his action in such courts to recover back 
 his holding in case he was unlawfully dispossessed thereof. 
 But we must understand that there were other gifts made 
 by William at this time which were not free tenures, that is, 
 not made upon free tenure nor to be held thereby; so, for 
 instance, was tenure in villainage, which was of a lower 
 order, and in which the tenant was not endowed with the 
 rights and privileges of him who held on or by a free ten- 
 ure. This secondary form of tenure we shall practically 
 •disregard, as it would seem to have no place in our modern 
 law.i 
 
 1 So with the estate known in the English law as a copyhold, it having 
 no counterpart with us. 
 
20 ESTATES AT LAW. [§§ 36-38. 
 
 §36. Divisions of lay tenures.— Lay tenures were of 
 two principal sorts — knight's service and socage. One hold- 
 ing lands either by knight's service or in socage was called a 
 tenant in ca^ite — that is, a chief tenant. Knight's service 
 was considered the most honorable of all tenures, and con- 
 sisted chiefly in the rendering of some militar}'- service or 
 services, by the tenant, to or on behalf of him of whom he 
 held, and the one of whom he so held was called his lord. 
 This species of tenure was also known as military tenure.^ 
 
 § 37. Socage tenure. — Socage tenure seems to have had 
 its origin in the Saxon custom dating back to a period long 
 before the Conquest, and was the name given to the tenure 
 of a class of land holders, known as liberi Sochemanni, who 
 resided chiefly in the northeastern portion of England. They 
 were so called primarily from the Saxon word soke, which 
 indicates that they were holders of land who were subject 
 to the jurisdiction of their respective lords in all matters of 
 law. Afterwards it was considered by many that the word 
 "socage" was a derivative of the French word soc, the English 
 equivalent of which is " plough." It is urged that this latter 
 derivation of the word is the proper one because of the fact 
 that the majority of the lands held upon socage tenure were 
 so held on the understanding that the tenant was to till the 
 soil and render a portion of the proceeds of such tillage to 
 the lord. But however this may be it is of small matter. 
 We do know that sochemanni were free men who held their 
 lands upon fixed money rentals and upon certain services 
 not of a military nature, but of a character far higher than 
 those performed by tenants in villainage. 
 
 § 38. Payment of money In lieu of services. — The serv- 
 ices rendered upon a holding to the lord gradually came to 
 be commuted for by payment in money, the origin of our 
 modern system of renting, and so favorable was this method 
 to the tenant that such holdings rapidly increased in num- 
 bers, until finally the name socage came to be applied to all 
 
 iSBlk. Com. 69. 
 
§§ 39-41.J TENURES AND ESTATES IN GENEEAL. 21 
 
 tenures where the service was certain, honorable and not of 
 military nature. 
 
 § 39. Abolition of military tenures. — Gradually the in- 
 cidents of the services connected with the various tenures 
 came also to be disregarded to a largo extent, until at the 
 restoration of Charles II. in the year 1645, tenancies by 
 knight's service and in capite were done away with, and all 
 free tenures became socage tenures with only the old rights 
 of fealty and escheat remaining to the lords paramount. 
 
 §40. Freeliold estates. — Considerable space has been 
 devoted herein to this subject of tenure for the reason that 
 it forms the chief distinguishing feature of that most im- 
 portant of all estates — a freehold estate. !Now the word 
 '\freehold" is made use of to indicate the quality of an es- 
 tate, for every estate possesses both the attribute of quality 
 and of quantity. By the former we mean its nature, by the 
 latter its extent. So, as to quality, estates are either of 
 freehold or less than freehold, ahH'tenure is the incident by 
 which we can distinguish the one from the other. 
 
 We have seen that military tenures were abolished in the 
 year 1645, and that only tenure by free and common socage 
 (as it was called) remained. This was not merely a tenure, 
 but a free tenure or & free-holding, and hence estates held by 
 such tenure were, and still are, known as freehold estates, 
 by which is meant an estate held under or by a free tenure. 
 In this manner the quality of the estate is fixed, and we have 
 only to know the nature of the tenure upon which an estate 
 is held to determine its quality. 
 
 § 41. Quality and quantity. — But inasmuch as freehold 
 estates, though all of a like quality, may greatly vary in 
 point of quantity, we cannot definitely indicate the interest 
 which one has in lands by the use of the term "freehold" alone. 
 By its use we have indicated the quality only, and in order 
 to make a perfect description of the estate we must make 
 use of some further or other term or terms indicative of the 
 quantity as well. 
 
 It is apparent that one who has a freehold estate which 
 
22 ESTATES AT LAW. [§§ 42, 43. 
 
 upon his death may pass to his heirs generally has an estate 
 greater in quantity than he who has an estate of freehold 
 capable of being taken at his death by heirs of his body 
 only, for the latter is subject to a certain restriction with 
 regard to the heirs who can take. So one having an estate 
 of freehold for his own life, or for that of another, has an 
 estate lesser in quantity than either of the two mentioned 
 above. They are each freehold estates, because in each the 
 quality, that is the tenure, is the same; but they differ in 
 quantity, the first being an estate of inheritance generally, 
 the second, of inheritance specially, while the third is not of 
 inheritance under any circumstances. 
 
 § 42. Estates also classified as to quantity.— Thus we 
 see that the division of estates into freehold and less than 
 freehold has reference to the quality only. We are now to 
 learn, however, that estates are~classified with regard to 
 quantity as well as quality, and the necessity for such classi- 
 fication has been shown above. Before proceeding to a 
 further consideration of this subject, let us gain some in- 
 formation regarding certain matters which are not only 
 common to all freehold estates, but in their application serve 
 to assist us in distinguishing one from the other. 
 
 § 43. How estates maylbe acquired. — Taking up these 
 matters in logical order, we shall first consider the question 
 of how one may acquire estates at law at the present time. 
 And first, one may become possessed of an estate by gift or 
 conveyance from another during the life-time of the grantor, 
 or the estate may be vested in him by will upon the death 
 of the owner thereof. In the law, one taking an estate by 
 either of these methods is called a. purchaser. Again, one 
 may take as an heir when his ancestor dies possessed of an 
 estate of inheritance and makes no disposition thereof by 
 will. In this case the person is said to take by descent. No 
 matter whether one takes by a deed of gift or as a devisee 
 under a will, his rigbts with regard to the estate are the 
 same, and hence the word " purchaser " applies in either case. 
 But when one takes as an heir, the law casts the burden of 
 
§§ 44, 45.] TENURES AND ESTATES IN GENERAL. 23 
 
 the estate upon him, without his acquiescence, perhaps even 
 without his knowledge ; he cannot refuse it, and hence his- 
 rights are not the same as those of purchasers. So as a 
 matter of law it is said that one takes an estate either by 
 purchase or by descent. 
 
 § 44. Seisin. — When one takes an estate of freehold, either 
 by purchase or descent, he is said to have seisin thereof ; '■ 
 that is, the legal possession — such possession or right to pos- 
 session as the law will recognize and uphold.^ It is one of 
 the principles of the common law that an estate of freehold 
 cannot exist, even for a single day, unless this seisin be in 
 some person. It follows that, though one may be dispossessed 
 unlawfully of an estate, he does not lose seisin thereof, for 
 seisin and actual manual possession are not synonymous 
 terms. 
 
 Again, the manner in which one may enjoy his estate in 
 possession differs; that is, the extent or freedom with which 
 he may make use of his estate is not always the same, but 
 varies in accordance with the nature of the estate. But the 
 right, of enjoyment, either free or restricted, is an incident 
 of every estate in possession.' 
 
 § 45. Modes of alienation. — Having seen how one may 
 acquire an estate and what his possession thereof amounts 
 to as a matter of law, we shall now proceed to ascertain in 
 what manner one may dispose of anestate in possession. At 
 the present day, one seized of a freehold estate in possession 
 has both the right and the power to freely dispose of the 
 same, either by gift during his life-time or by will at his death. 
 But this power of alienation, as it is called, did not exist in 
 the earlier days of the English law, and came not at once, but 
 by successive steps through a long period of years. We must 
 once more have recourse to the history of the law, and, lest 
 the student may be doubtful of the utility of familiarizing 
 
 1 Co. Lit. 200&, and Id. 266& (But- session of which are postponed to 
 
 ler's note, 217). the future, will be treated of later 
 
 '' Poll. & M., Possession, 47-49. in our work. 
 3 Estates, the enjoyment and pos- 
 
24: ESTATES AT LAW. [§§ 46, 47 
 
 himself with so much of what no longer exists, his attention 
 is called to the following from the pen of the learned Mr. 
 Williams : ' 
 
 "It is a constant disadvantage to any one attempting to 
 / expound real-property law, that so many matters apparently 
 simple cannot be rightfully explained without referring to 
 the history of law and to times long gone by. But for this 
 very reason, real-property law affords a peculiarly instruct- 
 ive exercise for the student. From no other branch of the 
 law is he likely to gain such a thorough conviction of the 
 futility of attempting to reason about law upon instinct, 
 without knowing how the law became what it is." 
 
 § 46. Development of the power of alienation. — The 
 system of feudal tenure, to which we have already given 
 some attention, and which, as we have observed, became the 
 general condition of land-holding in England after the Con- 
 quest, was in its nature essentially restrictive of alienation 
 by either deed or will. 
 
 Taking up first the right of a freeholder to alien his lands 
 during his life-time, we find that under the feudal sj'stem a 
 grant to a man and his heirs was not construed to give to 
 him an absolute property in the land, as it would at the 
 jr present, but to give to him merely a right of free enjoyment 
 j during his life-time, and to secure to his heirs the same right 
 j after his death. The heirs took an interest in the land by 
 virtue of the gift to their ancestor, and, upon his death, they 
 took as purchasers under the grant to him, and not by de- 
 scent /toto him. 
 
 § il. How power of alienation was defeated under feudal 
 system. — This, in itself, was snfHcient to prevent free aliena- 
 tion by the tenant; for, because "a living man hath no 
 heirs," the persons whom he might have induced to join 
 with him in a conveyance, or to waive their interests in his 
 estate, and thus perfect the title in his grantee, were, as a 
 matter of law, not yet ascertained nor in existence. But 
 
 iWill. R. P. (17th ed.), p. 143. 
 
■§§ 48-50.] TENOEES AND ESTATES IN GENERAL. 25 
 
 there was still another cause that operated to defeat the 
 power of free alienation, and that was the interest which 
 the lord paramount always retained in the grants of landed 
 property, and without whose consent no valid convej^ance 
 could be effected. JSTor, as we may well imagine, was it 
 generally an easy task to gain the consent of the lord when 
 the tenant desired to alienate; for it was precisely what was 
 intended by the Normans, that the lands thus parceled out 
 among their followers and favorites should remain to them 
 and their descendants for all time. 
 
 § 48. The disabilities gradually removed. — But in com- 
 Tnon with the other harsh and unjust measures of the feudal 
 system, these restrictions upon the power of alienation ware 
 gradually done away with as the needs and demands of ad- 
 vancing civilization made them more and more undesirable. 
 
 § 49. Subinfeudation. — The first step in the direction 
 of free alienation was an attempted evasion of the law, but 
 was, nevertheless, in a great measure successful. It was 
 known as subinfeudation, and this consisted in the granting 
 of the feud by the tenant thereof to another, to be held of 
 such grantor, who was then styled the Tnesne, or interme- 
 diate, lord. The effect of this proceeding was to raise a new 
 tenure between the sub-tenant and his mesne lord. As a 
 matter of course it did not invest the sub-tenant with com- 
 plete title, but it did compel the lord paramount to accept 
 the services of the sub-tenant in lieu of those due from the 
 one to whom the gift had originally been made. Subinfeuda- 
 tion was also made use of by the tenant in many instances 
 to divide his feud among several different persons or sub- 
 tenants, and this diversity of ownership led to great diffi- 
 culties on the part of the lord paramount when he sought 
 to enforce the services due to him. The value of these serv- 
 ices was also greatly reduced, and in some cases, as, for 
 instance, with regard to escheat, Avas practically lost. 
 
 § 50. Alienation as against the lieir. — The rights of the 
 heir in the property also began to be affected, for it was 
 held about the middle of the twelfth century that a free- 
 
26 ESTATES AT LAW. [§§ 51-54. 
 
 holder might grant a portion of his holding for certain pur- 
 poses, and that the heir was bound to warrant the gift so 
 made.^ Again, it was held that where one took as a pur- 
 chaser his power of alienation was more -extensive than 
 where he took by descent, thus adding another to the sev- 
 eral disabilities of the heir. 
 
 § 51. Reasons for these changes in the law. — It is,, 
 perhaps, impossible to assign sufficient legal grounds upon 
 which these infringements on the strict rules of law may 
 be based or explained; suffice it to say that the ever-grow- 
 ing: sentiment in favor of free alienation afforded recogni- 
 tion to the various methods, although in their inception 
 they were little more than mere subterfuges for evading 
 the law. 
 
 § 52. The statute Quia Emptores. — "We should bear in 
 mind that at the time of which we are now writing the law- 
 making power of the English people was vested in the per- 
 sons who were the very lords paramount of whom we have 
 been speaking. So that when the various attempts to ex- 
 ercise the power of alienation commenced to result in loss 
 and detriment to the lords, they were not long in enacting 
 certain statutes for the remedying of these matters. The 
 most important legislation along this line was a statute 
 passed in the year 1290 (18 Edw. I.), and called from its 
 opening words Quia Emptores. 
 
 § 53. Purpose of this statute. — The intendment of this 
 statute was to prevent subinfeudation by providing that, on 
 the alienation of land to be held in fee, the alienee should 
 hold such land of the same lord and upon the same services 
 as the alienor held it before. With this restriction the stat- 
 ute recognized the right of every free tenant (except tenants 
 by knight's service) to alien his land or a part thereof at 
 will, but prevented the creation of any new tenures by sub- 
 infeudation. 
 
 § 51. Effect of the statute.— The ultimate effect of this 
 statute was to promote, rather than hinder or restrict, free 
 
 iWill. R. P. (ITthed.) 74. 
 
§§ 55-58.] TENURES AND ESTATES IN GENEEAL. 27 
 
 alienation ; and, taken together with the effect given to the 
 law as announced in the rule in Shelly's case (to be ex- 
 plained later on in our work), secured to every person hav- 
 ing a freehold estate of inheritance the right and the power 
 of free alienation by gift made during his life-time. 
 
 § 65. The power of disposition of lands by will. — The 
 power of alienating lands by will was not secured till a 
 much later period. As a general proposition, lands were not 
 devisable at the common law, for the reason that in such 
 case there could be no livery of seisin, which it will be re- 
 membered was a requisite ToThe passing of the legal title 
 to a freehold estate. In order to exercise control over his 
 lands after his death, it became the custom for a person, 
 during his life-time, to make legal conveyance, with livery, 
 to another to be held by such an one to such uses as the 
 grantor should set forth or direct in his will. 
 
 § 56. Statute of wills. — This indirect mode of devising 
 title to lands was restrained by the operation of the famous 
 Statute of Uses (of which we shall hear much later on), passed 
 in the year 1529. But the right of every person having a 
 freehold estate of inheritance to devise his lands freely was 
 fully secured by the passage in 1534 of a statute known as 
 the" Statute of Wills. 
 
 § 57. Power of free alienation extended to lesser es- 
 tates. — The power of free alienation having been once es- 
 tablished as to freehold estates, both inter vivos and by 
 devise, it was soon extended to estates of lesser quality, so 
 that for a, long period of time all estates at law have been 
 and are fully and freely so alienable. 
 
 § 58. Concerning estates as to quantity. — We have al- 
 ready seen that the first great division of estates at law, as 
 to quality, is into freehold and less than freehold. It now 
 remains for us to follow these estates into their classifications 
 as to quantity, or, in other words, to determine the significa- 
 tion and proper application of those terms which are made 
 use of to indicate the quantity of estates. 
 
28 ESTATES AT LAW. [§ 59. 
 
 § 59. The quantity of various estates. — Of freehold es- 
 tates there are three principal sorts as to quantity, — estates 
 in fee simple, in fee-tail, and for life. Of estates less than 
 freehold there is but one properly so called — the estate for 
 years. The various estates we shall take up in their order, 
 beginning with the greatest, and endeavor to explain the 
 incidents of each, to the end that the student may become 
 familiar therewith, and thus be enabled to distinguish the 
 one from the other when practical cases arise requiring that 
 to be done. 
 
ESTATES OP FREEHOLD. 
 
 CHAPTEE III. 
 
 ESTATES IN FEE SIMPLE. 
 
 § 60. Importance of distinguishing between estates. 
 61. Estates in fee simple. 
 03. Seisin and possession distinguished. 
 
 63. Signification of the word "heirs.'' 
 
 64. Estates in fee simple, how distinguished. 
 
 65. Its incidents explained. 
 
 66. Free enjoyment. 
 
 67. Power of alienation. 
 
 68. How acquired. 
 
 69. Special powers of tenant in fee. 
 
 70. Summary. 
 
 § 60. Importance of distinguishing between estates. — 
 
 It is of prime importance that the student of real-property 
 law should be able to determine what estate is created under 
 any given form of gift or convej'^ance, for it is after this 
 manner that questions arising on this branch of the law most 
 frequently present themselves for answer. Indeed it may 
 well be said that there are but three master problems, which 
 when solved give understanding to all others, and these, 
 arising out of every limitation, are (1) what estate is taken 
 under the given limitation, (2) what may be done by the 
 tenant in his enjoyment thereof, and (3) how or in what 
 manner may he alien or dispose of his holding. To solve 
 these problems we must be able to clearly distinguish be- 
 tween the various estates, and we can do this only by becom- 
 ing familiar with their several characteristics and incidents, 
 whereupon, by applying this knowledge, we can, by an in- 
 spection of the form of the grant, ascertain what estate is 
 
30 ESTATES OF FREEHOLD. [§§ 61, 6i 
 
 created, and also determine who is entitled to take the same 
 and the rights, powers and obligations of the taker thereof. 
 
 § 61. Estates in fee simple. — Considered from the stand- 
 point of both quality and quantity, the greatest interest 
 which one may acquire in landed property is an estate in 
 fee simple.^ It derives its name from the word feud, of 
 which /ee is a synonym, used to express the quantity of the 
 estate,^ the word simple being added to indicate that it is a 
 pure or proper feud, that is, one without legal restrictions 
 as to any of its incidents, thus distinguishing it from a base 
 or qualified fee.' Every fee simple is in quality a freehold 
 estate of inheritance generally, the form of the limitation 
 creating it being in every case to one and his heirs. 
 
 §63. Seisin and possession distinguished. — When an 
 estate is limited by deed to a man and his heirs, or to him 
 during his life and then to his heirs, an estate in fee simple 
 passes, and the grantee is said to be seised in his demesne as 
 of fee. It will be noticed that we do not speak of an estate 
 in property purely personal in its nature, for with regard to 
 that species of property one is said to be possessed, not seised ; 
 nor did a feud ever exist except with reference to real prop- 
 erty. The only interest in personal property capable of 
 being taken at the common law was an absolute ownership, 
 of which possession was the chief incident. So that when 
 an estate is spoken of, reference is always had to an interest 
 in real property. But here the student should be apprised 
 that the word interest is often made use of in the law to in- 
 dicate a right in landed property, which does not attain to 
 the importance of an estate at law; for instance, we speak 
 of the right of the wife in the lands of her husband as her 
 dower interest, not estate, although, should she become his 
 widow, tEs interest ripens into what is known as her dower 
 estate, and is so designated in the law. 
 
 1 Robertson v. Van Cleave, 129 23 Blk. Com, 105. 
 Ind. 217, 15 L. R. A. 68 ; 2 Blk. Com. s Jackson v. Van Zandt, 13 Johns. 
 104. 169; Lit, sec. 1. 
 
^§ 63-65.] ESTATES IN FEE SIMPLE. 31 
 
 §63. Signification of the word "heirs." — The use of the 
 word "heirs'" was formerly, and to some extent still is, a. 
 necessity in the creation of a fee-simple estate.^ In all con- 
 veyances inter vivos its use is still adhered to, though in 
 most jurisdictions it is now held that all limitations by deed 
 will be taken most strongly against the grantor; and hence, 
 if no words of qualification are made use of, all the estate 
 which the grantor has in the property will pass to the 
 grantee by such conveyance.^ But if not now everywhere 
 necessary, it is always a proper mode of expressing an in- 
 tention to limit an estate in fee simple in all instruments of 
 conveyance inter vivos. In the case of wills the intention 
 of the testator, to be gleaned from a consideration of the 
 entire instrument, will govern, thus rendering the use of the 
 word " heirs " quite unnecessary therein.' It is but fair to 
 say, however, that no good conveyancer would ever attempt 
 to limit a fee-simple estate in any other manner than by the 
 use of this word. 
 
 ' § 64. Estates in fee simple, how distinguished. — An 
 ■estate in fee simple is distinguished by the fact that it now 
 possesses all of the attributes of absolute ownership, viz., un- 
 limited duration in point of time, and unrestricted enjoyment 
 coupled with the full and free power of disposition ; and any 
 estate which is lacking in any one of these incidents falls 
 short of being an estate in fee simple. And this is the test 
 that we may apply in all cases where the quality or quantity 
 of an estate is in question. But. some explanation of these 
 three incidents may be necessary in order to enable us to 
 make use of the test. 
 
 § 65. Its incidents explained. — By unlimited duration in 
 point of time, in this connection, is meant that an estate in 
 fee simple being one of inheritance generally,* the time for 
 which it is to continue is not circumscribed by birth or fail- 
 
 14 Kent Com., 6, note; Truesdell 'See above citation, where the 
 
 ■V. Lehman, 47 N. J. Eq. 218. states so holding are enumerated. 
 
 2 1 Washb. Real Prop., 53, note 3. * Will. R. P. (17th Int. ed.), p. 43. 
 
32 ESTATES OF FJBEEHOLD. [§ ^Q- 
 
 ure of issue, by the termination of a life or lives or by the 
 lapse of any stated period of time, and consequently, as a 
 matter of law, it is in quantity of unlimited duration as to 
 time, and therein differs from an estate in fee tail, a life es- 
 tate and an estate for years, the first of which is dependent 
 on the existence of issue, the second on the duration of a 
 human life or lives, and the third upon the passing of the 
 time for which it was created to endure. 
 
 § 66. Free enjoyment. — A tenant in fee simple is said to 
 have the right of free enjoyment of his estate. This indi- 
 cates that he may do as he likes with the property thus held 
 by him so long as he does not violate the law of the land nor 
 infringe upon the rights of others in so doing. 
 
 The student will readily perceive that if one has an estate 
 which is so limited that it must finally pass to some other 
 already appointed person, as, for example, an estate for life, 
 the tenant can make only such uses of his estate as will not 
 impair the rights of him who is afterwards to receive the 
 land in which such estate is granted. So in this case the 
 enjoyment of the tenant is restricted; that is, the uses to- 
 which he may put the land in which he has such an estate 
 are limited. 
 
 But in the case of an estate in fee simple there is no such 
 other person to whom the estate must pass, and so the ten- 
 ant is not restricted in regard to his use of it. He may open 
 mines, clear woodlands, cultivate in the manner that suits 
 him best, or not at all if he so desires ; and these things being 
 in his own right, he is said to have free enjoyment, which, 
 it may be added in passing, is characteristic of no other es- 
 tate at law.^ 
 
 1 It must be understood that we to the uses to which the lands of 
 
 are here speaking of the typical tenants in fee simple maybe put.as, 
 
 estate in fee simple, when unbur- for instance, easements, party-wall 
 
 dened by covenants or agreements agreements, building restrictions, 
 
 madebetweengrantorandgrantee. etc., of which we shall treat at 
 
 Certain restrictions may be em- length in a succeeding chapter, 
 bodied in conveyances with regard 
 
§§ 67-69.] ESTATES IN FEE SIMPLE. 33 
 
 § 67. Power of alienation. — The third and most impor- 
 tant incident of an estate in fee simple is the power of free 
 disposition. This includes both the power of the tenant to 
 alien his property without hindrance during his life-time and 
 to leave it by will at his death to whomsoever he sees fit. 
 As we proceed with the examination of the other estates at 
 law, we shall find that this power of alienation exists to the 
 same extent in no other estate. Indeed it is the law that if, 
 in limiting an estate in fee simple, any condition which im- 
 poses a general restraint upon alienation is made, such con- 
 dition will be void.i 
 
 §68. How acquired. — One may take an estate in fee 
 simple either by descent or by purchase, and as a purchaser 
 either by deed or by will. But when one takes b}' deed, a 
 consideration is requisite to the validity thereof. And these 
 considerations are of two kinds — good and valuable. A good 
 consideration is sufficient to pass title as between the par- 
 ties to the deed, but not as against strangers thereto. A 
 valuable consideration is effectual for all purposes. 
 
 § 69. Special powers of tenants in fee. — An estate in 
 fee simple, as has been said above, is the entire and absolute 
 interest in the land,^ and consequently no one can have a 
 greater estate. ISTor when one has granted out a fee can he 
 thereafter make any further disposition, because nothing re- 
 mains in him for disposition. But estates in fee simple may 
 be granted upon certain restrictions or conditions, and may 
 also be rendered defeasible on the happening of some future 
 event. 
 
 Again, a tenant in fee simple, having the absolute and en- 
 tire interest and property in the land, may not only alien his 
 entire estate, but may also grant thereout any of the lesser 
 estates. He may limit an estate for years to one person, 
 followed bj' an estate for life to another, for example, and 
 still retain the fee to himself. 
 
 1 Will. R. p. (17th Int. ed.), p. 94. eluding certain persons as alienees. 
 
 But conditions in partial restraint will be upheld. Ibid., p. 94. 
 
 of alienation, as, for instance, ex- 2 Greenl. Cruise, p. 55. 
 3 
 
34 ESTATES OF FREEHOLD. [§ 70. 
 
 §70. Summary. — To sum up: If a gift be made to A and 
 his heirs, A takes a freehold estate of inheritance, the dura- 
 tion of which is unlimited, the enjoyment unrestricted and 
 the power of alienation absolute. And when these incidents 
 are all present, we have an example of a fee-simple estate. 
 Hence a gift to a man and his heirs generally, creates a fee- 
 simple estate. 
 
CHAPTER IV. 
 
 ESTATES IN FEE TAIL. 
 
 § 71. Nature of estates in fee tail. 
 
 72. Origin. 
 
 73. Development. 
 
 74. Early mode of alienation. 
 
 75. Efforts made to restrict alienation. 
 
 76. The statute de donis. 
 
 77. Derivation of name of this estate. 
 
 78. Definition. 
 
 79. These estates determinable in their nature. 
 
 80. Effect of statute de donis. 
 
 81. Classification and division. 
 83. Further division. 
 
 83. Effect of improbability of issua 
 
 84. Signification of terms of assurance. 
 
 85. Necessity for words of procreation. 
 
 86. Words necessary to create this estate. 
 
 87. Construction v?hen created by will. 
 
 88. Result of this rule as to wills. 
 
 89. Effect of failure of heirs. 
 
 90. Incidents of the creation of this estate. 
 
 91. Effect of fine and recovery. 
 
 92. Nature of a common recovery. 
 
 93. Effect of suffering a common recovery. 
 
 94. Tenant's own acts not affected thereby. 
 
 95. Fines and recoveries abolished in England. 
 
 96. Family settlements. 
 
 97. Estates tail in the United States. 
 
 98. The estate at common law and under statutes. 
 
 § 71. Nature of estates in fee tail. — "We are now to 
 
 consider another of the freehold estates of inheritance, one 
 which was formerly of great importance and in common 
 use. "We shall see that it differs from an estate in fee simple 
 chiefly in that it is one of inheritance specially, and that the 
 power of the tenant to alien, and his right of free enjoyment, 
 
36 ESTATES OF FEEEHOLD. [§§ 72, 73. 
 
 are both in a measure restricted. Some explanation of the 
 origin and development of estates in fee tail, or estates tail 
 as they are ofttimes called, will be necessary to enable us to 
 ascertain their characteristics and understand their peculiari- 
 ties. 
 
 § 72. Origin.— The policy of the law has long been in 
 England, as in this country, to allow free disposition of all 
 kinds of property. As a result of this, estates in fee tail 
 have now fallen much into disuse. The learning on the sub- 
 ject of such estates is, however, still of importance to the 
 student of American law, if for no other reason than because 
 we find frequent reference to it in the books, and though 
 not generally existing in its original form in this country, 
 yet, as modified by statutory enactments, it is still recog- 
 nized. We find, for example, that it is provided in some 
 states that language which formerly created an estate tail 
 shall be held to create a fee simple, while in others that b3r 
 such language a life estate only will be created. 
 
 § 73, Development. — Reference has heretofore been 
 made to the fact that all fees were not fees simple, and that 
 they may be created upon certain conditions touching their 
 inheritance, in which case they are known as conditional 
 fees. A conditional fee at the common law was a fee re- 
 stricted to some particular heirs to the exclusion of others. 
 The form of such an estate was to one " and the heirs of his 
 body." The condition attached \vas that of the birth of 
 issue as specified in the gift. If there were a failure of such 
 issue, the estate, on the death of the tenant in tail, reverted 
 to the person who created it ; and before issue born, the 
 tenant could not alien his estate. But upon issue being had, 
 alienation was allowable. Still, even after issue it was not 
 an absolute estate, for, if the tenant did not take advantage 
 of his power to alien, the estate descended according to the 
 form of the gift, i. e., to the particular heirs specified in the 
 . gift; and if the issue died during the life-time of the tenant, 
 the land, upon the death of the tenant, reverted to him who 
 had created the tenant's estate. 
 
§§ 74r-17.'] ESTATES IN FEE TAIL. 37 
 
 § 74. Early mode of alienation. — Therefore it often 
 happened that in order to free the land from the course of 
 descent prescribed in the gift, the tenant, as soon as he had 
 issue, would alien and afterwards repurchase the lands. 
 This proceeding gave to him an estate inheritable by the 
 heirs general, according to the common law.^ In other 
 words, it wiped out the condition and transformed the es- 
 tate into a fee simple. 
 
 § 75. Efforts made to restrict alienation. — Thus the 
 original intention of such gifts was in a great measure de- 
 feated, and in the reign of Edward I. the barons began to 
 perceive that the power of their own families was being 
 lessened by successive alienations, and that there was little 
 chance that lands granted by conditional gifts to their ten- 
 ants and the heirs of their bodies should ever again come 
 back to them, which was the end sought to be accomplished 
 by attaching this condition to fees. 
 
 § 76. The statute de donis. — To remedy this state of 
 things and to perpetuate the feudal system, the barons pro- 
 cured the passage of the statute of Westminster the second, 
 by which it was enacted that the will of the donor (grantor), 
 according to the form in the deed of gift manifestly ex- 
 pressed, should be from thenceforth observed, so that they 
 to whom the tenement was given should have no power to 
 alien it, whereby it should fail to remain unto their own issue 
 after their death, or to revert unto the donor or his heirs, if 
 issue should fail. This statute is commonly called the Stat- 
 ute De Donis Conditionalibus.- 
 
 § 77. Derivation of the name. — Since its passage, an es- 
 tate given to a man and the heirs of his body has been called 
 an estate tail, or more properly an estate in fee tail, because 
 thereby the inheritance was cut down and confined to the 
 heirs of the body strictly. 
 
 1 See 2 Blk. Com. 110, 111 ; Paine's 2 13 Edw. L, ch. 1. 
 Case, 8 Eep. 36; Stafford v. Buck- 
 ley, 2 Ves. Sr. 180. 
 
38 ESTATES OF FREEHOLD. [§§ 78-80. 
 
 § 78. Definition.— An estate in fee tail is an estate given 
 to a man and the heirs of his body, and is a freehold estate 
 of inheritance.' It is defined to be sach an estate as will, if 
 kept to itself, descend on the decease of the iirst taker to all 
 his lawful issue according to the customs of descent, so long 
 as his posterit)^ endures, in a regular order from one to an- 
 other, and which, if the first taker should die without issue, 
 if left alone, will then determine.^ 
 
 § 79. These estates are determinate in their nature. 
 It will be seen that an estate in fee tail is a determinable 
 estate. The distinction must be remembered between de- 
 terminable or qualified fees and fees simple. The word fee 
 expresses the genus of estates of inheritance, and the epithets 
 added to this term describe the several species of this estate. 
 A determinable estate, like a simple estate, may endure for- 
 ever. But while the term of the latter may not be abridged 
 by any event expressed in any clause of condition or collat- 
 eral determination, or by any implication of law, the former, 
 according to the express terms of the limitation thereof when 
 it is first taken, or the construction of law on the nature of 
 the estate after it is created, may determine by some event 
 before the period or term shall be completed through which 
 it is extended.' 
 
 § 80. Elf'ect of statute de donis. — The statute de donis 
 gave to an old estate new and different characteristics.^ It 
 was considered as a remedial law, and was interpreted with 
 great latitude, as embracing all cases which, from the mani- 
 fest intention of the parties, require the application of the 
 provisions of the statute. The intention of the parties was 
 to be collected from the words of the gift in the clause of 
 limitation, and construction was to be made on the whole 
 gift collectively. 
 
 1 Bodine v. Arthur, 34 Am. St R 'See First Univ. Soo. v. Boland, 
 163. 15 L. R. A. 231. 
 
 2 Will. R. P. « Rowland v. Warren, 10 Oreg. 
 
 129; Pierson v. Lane, 60 Iowa, 60. 
 
§§ 81-83.] ESTATES IN FEE TAIL. 39 
 
 § 81. Classification and division.— Estates in fee tail are 
 usually divided into fee-tail general and fee-tail special. The 
 former is where the estate descends to the heirs of the body 
 generally and without restriction, and the latter when it is 
 restrained to certain heirs of the body and does not go to 
 all of them in general. An example of estates tail special 
 is where an estate is given to a man and the heirs of his 
 body by a particular wife, in which case those only can in- 
 herit who are his issue by the wife specified. 
 
 § 82. Further division. — A further division is into tail 
 male and tail female. The former admits only the male sex 
 to the succession and excludes the female, while the latter 
 excludes the male and admits only the female. A gift 
 to the heirs male of the body does not confer any right 
 on the issue female, and, on the other hand, a gift to the 
 heirs female of the body will remove the heirs male out 
 of the line of succession. In the former case the succession 
 is conducted exactly as if there were not any females, and 
 in the latter case exactly as if there were no males.' The 
 person who claims, to entitle himself as an heir male under a 
 gift to the heirs male of the body, must through every de- 
 gree convey his descent by males without the intervention 
 of females; and, in like manner, the person who claims to 
 entitle herself as an heir female, under a gift to the heirs 
 female of the body, must through every degree convey her 
 descent by females without the intervention of males. 
 
 § 83. Eit'ect of improbability of issue. — As pertinent to 
 all gifts in tail, it may be observed that though, in all human 
 probability, the donee will not have any issue, or may not 
 have any issue of that particular description which the lim- 
 itation requires, yet if there be a mere possibility that there 
 may be such issue, the law, to give effect to the words of 
 limitation, and to preserve the estate in point of continuance 
 and quality, will presume that there may be issue of that de- 
 scription. Thus, a gift will be good though it may be made 
 
 1 Price V. Taylor, 38 Pa. St. 05, 70 Am. Dec. 105. 
 
40 ESTATES OF FEEEHOLD. [§§ 84-86. 
 
 to an unmarried man and the heirs of his body, or though 
 it be made to a man or a woman of the age of one hundred 
 years, and to the heirs of his or her body thereafter to be 
 born, or to such man and woman and such heirs of their 
 bodies. 
 
 § 84. Signification of "gift," "donor," "donee/' etc. 
 By whatever mode of assurance an entail is created, the lim- 
 itation which creates the estate is denominated a gift. The 
 creator of the entail is termed the donor, and the object of 
 the entail the donee. Any assurance which will convey a 
 fee simple will, with the requisite words of restraint or qual- 
 ification, convey an estate tail. As in the creation of a fee- 
 simple estate, so in order to the creation of an estate tail by 
 deed, it is required that the gift shall either by express 
 words, or by words of direct and immediate reference, be to 
 the " donee and the heirs of his body." ' 
 
 § 85. Necessity of words of procreation.— ^ In addition 
 to the circumstance that the gift must be extended to the 
 heirs specially, the words of the gift must, in direct terms 
 or by reference, contain words of procreation to describe the 
 bodj'- from which these heirs are to proceed, or the person 
 by whom they are to be begotten.^ 
 
 § 86. Form of words necessai-y to create this estate.^ 
 "Words of reference in limitations of estates tail operate in 
 the same manner as words of reference in limitations of es- 
 tates in fee. No set form of words is necessary to the gift; 
 it maybe expressed in different terms and be effectual. But 
 the rule is in all gifts that the heirs must either by express 
 words or suitable words of reference be limited to be pro- 
 created or begotten by or on some body or bodies in certain. 
 The precise words " of the body " are not necessary.' It is 
 sufficient that the words of the clause of limitation, or some 
 part of the deed which refers to this clause and explains it, 
 
 1 White V. Collins, Com. R 289. heirs " are equivalent to " heirs of 
 
 2 Doty y. Teller, 54 N. J. L. 163, the body." Clarkson v. Clarkson, 
 
 33 Am. St. R. 670. 135 Mo. 381. See also Doty v. Teller, 
 
 37 Rep. 41. "The words "bodily supra. 
 
§§ 87-90.] ESTATES IN FEE TAIL. 41 
 
 or a reference by this clause to some other part of the same 
 deed, or even to a separate instrument, should confine the 
 gift to the heirs of the body of the donee or donees, or of 
 some person or persons in particular.^ 
 
 § 87. Construction when the estate is created by will. 
 In wills that strictness of the law which, in regard to deeds, 
 requires that the limitation shall be to the heirs by that 
 word except in cases already noted, and that these heirs 
 shall be designated by words of procreation, descriptive of 
 the body from which the heirs are to issue, or the person hj 
 whom they are to be begotten, is relaxed.'^ 
 
 § 88. The result of this rule as to wills. — Though in 
 construing wills the words which in a deed would create an 
 estate tail will give a like estate, the reverse is not true ; for 
 words which in a deed pass an estate in fee, and again words 
 which in a deed give only a life estate, may in a will pass 
 an estate tail.' 
 
 § 89, Eifect of failure of heirs. — As soon as there is a 
 failure of those heirs which the gift describes, the estate will 
 determine unless it be extended by the operation of a com- 
 mon recovery or by discontinuance. A failure of heirs 
 universally happens as soon as there is a defect in the .line 
 of those heirs in whose favor the entail is created. The issue 
 in tail succeed under the character of issue under the entail, 
 and not under the description of heirs. They take by de- 
 scent and not by purchase.'' And they do not take successive 
 estates, but all the heirs under an entail take one and the 
 same estate. 
 
 § 90. Incidents of the creation of this estate. — Ordi- 
 narily an estate tail is created by a conveyance or devise in 
 fee to some particular person, with a limitation over in the 
 event of the death of the person named, without issue, or 
 
 iSee Lord Raym. 1153; Gilraore ■ 3 Roe v. Quarterly, 1 T. R. 630; 
 
 V. Harris, 3 Lev. 213. Richards v. Bergavenny, 3 Vt. 384. 
 
 2 Adams v. Ross, 30 N. J. L. 505, * Sullivan v. McLaughlin, 11 S. R. 
 
 83 Am. Dec. 337; Fahoney v. Hoi- 447. 
 singer, 65 Pa. St. 388. 
 
42 ESTATES OF FEBEHOLD. [§§ &1) 92. 
 
 upon an indefinite failure of issue. If it appears from the 
 deed that the limitation over was not postponed until an 
 indefinite failure of issue, but on failure of children only, or 
 on failure of issue Avithin a given time, the estate first created 
 is not an estate tail.^ 
 
 § 91. Effect of fines and recoveries. — The invention of 
 common recoveries and the statutes making fines with proc- 
 lamations a bar to the issue, put the issue completely in the 
 power of their ancestor. A. fine is the proper assurance by 
 tenant in tail when he himself has created the entail and has 
 also the remainder or reversion in fee immediately expectant 
 on the estate tail, and there are not any charges or incum- 
 brances imposed on the remainder or reversion in fee which 
 do not equally efl'ect the estate tail. A fine must be con- 
 sidered either as creating a discontinuance or operating 
 merely as a conveyance. In the first instance it carries out 
 a new title in fee simple, without conveying the title under 
 the old fee simple. In the other instance, a fee determi- 
 nable on the failure of the issue inheritable under the entail 
 is conveyed. 
 
 § 92. Nature of a common recovery. — A common recov- 
 ery was a judicial proceeding coUusively taken against the 
 tenant in tail for the recovery of the lands entailed, and was 
 first allowed in Taltarum^s Case} Upon the action being 
 brought, the tenant brought into court some third person, 
 usually the crier of the court, presumed to have been the 
 original grantor of the estate, whom he alleged had war- 
 ranted the title. This person admitted the alleged war- 
 ranty, and judgment was accordingly entered in favor of 
 the tenant empowering him to recover other lands of equal 
 value. The estate tail was thus said to be barred, and the 
 issue had a judgment against the fictitious warrantor, who 
 had no lands to give them in lieu of those the title to which 
 the fictitious warrantor had failed in defending.' 
 
 1 Outland v. Bowen, 115 Ind. 150, 2 Year Book 12 Edw. IV., 19. 
 7 Am. St. R. 420; Hill v. Hill, 74 'See 2 Blk. Com. 117, 358, and 
 Pa. St. 173, 15 Am. R. 545. Will. R. P. 45, 46. 
 
§§ 93-95.] ESTATES IN FEE TAIL. 43 
 
 The student will, as a matter of course, understand that 
 this proceeding amounted to and in effect was, only an- 
 other of the various methods resorted to in earlier times to 
 foster and promote the power of free alienation. 
 
 § 93. Effect of tenant suffering a common recovery.^ — 
 A common recovery by tenant in tail, if duly suffered, has ' 
 the effect of barring his estate tail, and all remainders over, 
 or reversions depending upon the estate, and all limitations, 
 conditions or restrictions annexed to the estate. The right 
 of aliening by common recovery is an inseparable incident 
 of an estate tail, and cannot be taken from the tenant by 
 any condition or limitation.' The estate, though determina- 
 ble by express limitation or by construction of law, will, by 
 common recovery, become an estate in fee simple, if the 
 person by whom the estate was created was tenant of an 
 estate of such quality and quantity.'^ If such person had 
 only a determinable or qualified fee, the estate taken under 
 the recovery will not be more ample than the estate of the 
 person who created the entail.' 
 
 § 94. Tenant's own acts not affected thereby. — But by 
 suffering a common recovery the tenant in tail cannot dero- 
 gate from his own acts, or discharge the fee acquired under 
 the recovery from the incumbrances which affected the es- 
 tate tail. After the recovery the time or ownership of the 
 estate tail continues, and the operation of the recovery is to 
 take from that estate the privileges and qualities annexed 
 to the same by the statute de donis in favor of the issue, and 
 also those of the reversioner and remainderman. 
 
 § 95. Fines and recoveries abolished in England. — But 
 since the year 1833, when fines and recoveries were abolished 
 in England by statute, a tenant in tail may, by an ordinary 
 deed of conveyance enrolled in the court of chancery, alien 
 in fee simple absolute or for any less estate, and a similar 
 
 1 De witt V. Eldred, 4 W. & S. 431 ; ^ For an instance of common re- 
 Portlngton's Case, 10 Rep. 36. covery in this country, see Lyle v. 
 
 2 Martin v. Stvachan, 5 T. R. 109; Richards, 7 S. & R. 333. 
 Benson v. Hodson, 1 Mod. 105. 
 
44 ESTATES OE EEEBHOLD. [§§ 9^, 97. 
 
 proceeding is sufficient in this country where common re- 
 coveries were allowable.^ 
 
 § 96. Family settlements.— Out of estates in tail grew 
 what are known as family settlements, by which, subject to 
 the wife's jointure, and, perhaps, some other charges, the 
 eldest son who may be born of a marriage, and, in case of his 
 decease without issue, the second son, and so on, is made ten- 
 ant in tail, and the estate is thus tied up until some tenant 
 in tail attains his majority, when he may, with the consent 
 of his father, who is made tenant for life under the settle- 
 ment, bar the entail.^ 
 
 § 97. Estates tail in the United States. — In the early 
 history of this country estates tail were not uncommon, but 
 they are not generally looked upon with favor at the pres- 
 ent day. In many of the states they have been abolished 
 and their creation forbidden by statute.^ Under these con- 
 ditions it is usually held that a grant in words that formerly 
 would have created an estate tail now create a fee simple.* 
 But in a part of these states,' a remainder, or what would 
 have been an estate tail, takes effect on the death of the 
 first taker, without issue, as a_contingent limitation upon a 
 fee. In other states * an estate tail is converted into a life 
 estate in the first donee, with remainder in fee simple to the 
 person to whom the estate would have passed at common 
 law on the death of such donee. In a few states ' the re- 
 
 iThe estate may be barred by * Price v. Taylor, 28 Pa. St. 95; 
 
 deed in Massachusetts, Maine, 70 Am. Dec. 105; Allen v. Craft, 
 
 Rhode Island, Delaware, Pennsyl- 109 Ind. 476; Jordan v. Roach, 33 
 
 vania, Maryland and Oregon. See Miss. 619; Short v. Terry (Ky.), 22 
 
 Rowland v. Hill, 10 Oreg. 139, S. W. R. 841. 
 
 2 Will. R. P., p. 50; 3 Cooley's Blk. 5 California, Dakota, Indiana, 
 Com. 118, note. Michigan and New York. 
 
 3 So in Alabama, California, Da- * Arkansas, Colorado, Illinois, 
 kota, Florida, Georgia, Kentucky, Missouri and Vermont. 
 Indiana, Michigan, Minnesota, Mis- ' Connecticut, New Jersey and 
 sissippi. New York, North Caro- Ohio. 
 
 lina, Pennsylvania, West Virginia, 
 Virginia, Wisconsin and Tennessee. 
 
§ 98.] ESTATES IN FEE TAIL. 45 
 
 mainder goes to the children of the first donee as tenants 
 in common, the children of a deceased child taking their 
 parent's interest.^ 
 
 § 98. The estate at common law and nnder statntes. — 
 In some states, where the statntes are silent on the subject, 
 estates tail may be allowable under the rule that the com- 
 mon law of England is in force in this country so far as it 
 is not abrogated by statutory provision. But the power to 
 create such estates under such circumstances and in such 
 jurisdictions has been ofttimes t|uestioned and frequently 
 denied.^ The law with regard to the creation of estates tail 
 being so widely variant in the different states, it is suggested 
 to the student that every such gift or grant as those under 
 discussion should be considered in connection with the rule 
 of law obtaining in the jurisdiction where the object or ob- 
 jects of such gift or grant are situated, and the force and 
 effect thereof ascertained according to the provisions of such 
 rule. 
 
 iStinson's Am. Stat. Law, sec. For a general discussion of the law 
 
 1313; John V. Dann, 66 Conn. 411. on this subject in America, see 
 
 ^Pierson v. Lane, 60 Iowa, 60; Outland v, Bowen, 7 Am. St. R. 420 
 
 Jewell V. Warner, 35 N. H. 176. and note. 
 
CHAPTER V. 
 
 ESTATES FOE LIFE. 
 
 § 99. Definition and explanation. 
 
 100. Originally estates for one's own life. 
 
 101. The two divisions of life estates. 
 
 102. Necessity of restrictive words in the limitation. 
 
 103. Conventional and legal life estates. 
 
 104. The right of enjoyment restricted. 
 
 105. Nature of enjoyment and possession. 
 
 106. The doctrine of waste. 
 
 107. Waste, voluntary and permissive. 
 
 108. What acts constitute waste. 
 
 109. A question of fact. 
 
 110. Trespass and waste distinguished. 
 
 111. Effect of commission of waste. 
 113. Right of tenant to emblements. 
 
 113. Right of tenant to estovers. 
 
 114. Tenant's power of alienation. 
 
 115. Not absolute at the early law. 
 
 116. Development of power of alienation. 
 
 117. Same subject continued. 
 
 118. Effect of attempted alienation at common law. 
 
 119. The modern rule in this regard. 
 
 120. Apportionment. 
 
 131. Tenant's possession never adverse. 
 
 122. Presumption of conveyance by remainderman. 
 
 133. Duty of tenant as to repairs. 
 
 124. Duty of tenant as to insurance. 
 
 135. Duty of tenant as to mortgage, insurance, interest, eta 
 
 136. Duty of tenant as to taxes. • 
 
 127. Termination of estate — Merger, eta 
 
 128. Termination of estate — Death, etc, 
 
 189. Termination of estates for life other than conventional. 
 
 § 99. Definition and explanation. — We now come to a 
 consideration of those freehold estates which are not of in- 
 heritance. The estate for life in its several forms is the 
 only freehold estate of this quantity. An estate for life is 
 
§ 100.] ESTATES FOE LIFE. 47 
 
 a freehold estate the duration of which is confined to the 
 life or lives of some particular person or persons, or to the 
 happening or not happening of some uncertain event.^ But 
 the uncertainty of this event has reference chiefly to the 
 fact that the time at which such event may happen is not 
 to be measured in periods of days, months or years. And 
 herein this estate is to be distinguished from the estate for 
 years, the duration of which is always so to be determined. 
 
 Like freehold estates of inheritance, estates for life are of 
 feudal origin. They are in fact the most ancient of estates. 
 It was also the smallest or least in quality of the freehold 
 estates, a less estate not being considered worthy the ac- 
 ceptance of a free man. 
 
 § 100. Estates for one's own life originally. — In the 
 earlier period of the law, the only life estate considered of 
 sufficient importance to be an estate of freehold was an 
 estate for a man's own life, an estate for the life of another 
 being not reckoned of equal rank.^ This distinction, how- 
 ever, was not long observed, and so it came about that, if a 
 man took an estate from one who held it for his own life, 
 or if an estate were originally limited to one person so long 
 as another should live, the new owner, or the grantee in the 
 second instance, took an estate for the life of another. This 
 was called an esta,te ^ur autre vie, and the person for whose 
 life the estate was held was called the cestui que vie. And 
 now he who has an estate for the life of another has an es- 
 tate of freehold. Generally speaking, such estates will endure 
 as long as the life for which they are granted. But there 
 are some estates which are considered life estates, and which 
 are estates of freehold, because they may hy possibility last 
 for a life, though the time for which they will endure is un- 
 certain. Such, for instance, is an estate granted to a woman 
 during her widowhood, which is in law a life estate, though 
 determinable on her marrying again.' 
 
 1 Greenl. Cruise. Dig., p. 102, » Will E. P. 23; 3 Blk. Com. 121. 
 
 2 Will R. P. 23, 
 
48 ESTATES OF FEEEHOLD. [§§ 101-103. 
 
 § 101. The two divisions of life estates.— Estates for 
 life are of two kinds : conmntional, or such as are expressly 
 created by the act of the parties, and legal, or such as are 
 created by construction and operation of law.' Estates of 
 either sort may be created by deed or by will. In the con- 
 ventional estates the words generally made use of in limit- 
 ing the estate are: for and during a natural life or lives. 
 The word " natural " was originally made use of to continue 
 the estate in the event that the person upon whose life the 
 estate was limited should suffer outlawry or ciml death, 
 which was the penalty prescribed for the commission of cer- 
 tain felonies in the English law. "While we have nothing 
 similar to this in the United States, yet the words " natural 
 life " are still made use of. 
 
 § 102. Necessity of restrictive words in the limitation. 
 Since the establishment of the rule that grants shall be 
 taken most strongly against the grantor, it has been neces- 
 sary, at least in deeds, to add apt words for that purpose 
 when only a life estate is intended to be given, for other- 
 wise the entire interest of the grantor would pass. As a 
 matter of course, when occurring in a will the usual rules of 
 construction as applied to such instruments will govern, and 
 the intention of the testator will be followed. At the early 
 law a grant to a man simply conferred no more than an 
 estate for his life,^ the use of the word " heirs" being deemed 
 essential to pass an estate of inheritance ; but as we have al- 
 ready seen, such is not now the law. In the matter of creat- 
 ing this estate by devise, it is not necessary to make use of 
 any particular form of words, it being sufficient in such 
 cases if it appear by necessary implication that such an estate 
 was intended to be given.' 
 
 § 103. Conventional and legal life estates — Enjoyment. 
 Thus far we have had reference only to the conventional es- 
 tates for life, for to such estates alone are the rules for crea- 
 
 12 Blk. Com. 119. SLehndorf v. Cope, 133 111. 317. 
 
 2 Truesdell v. Lehman, 47 N. J. See also Defreese v. Lake, 32 L. E. 
 Eq. 318. A. 744. 
 
§§ 104-106.] ESTATES FOE LIFE. 49 
 
 tion which we have just discussed to be applied. But in 
 considering the matter of the enjoyment by the tenant of his 
 estate for life, as we shall now proceed to do, we shall make 
 frequent reference to legal as well as conventional life estates ; 
 for when one has come into possession of an estate for life, 
 his right of enjoyment thereof, except it be restricted in the 
 grant, will be identical whether such estate be conventional 
 or legal. 
 
 § 104. The right of enjoyment restricted. — Not only 
 does the estate for life differ from the other estates of free- 
 hold in that it is not of inheritance, but the rights of tenant 
 of such estate fall far short of those in fee simple or fee tail 
 in the important matter of enjoyment. It is quite apparent 
 that some other person or persons always have an interest 
 in the lands of which tenant for life is in possession. Such 
 interest is always a future one, and in a certain sense con- 
 tingent, but yet of such a nature that the law protects those 
 having it therein. Tenant for life virtually has only the use 
 of the lands during the continuance of his estate. 
 
 § 105. Nature of this enjoyment and possession. — Such 
 tenant is therefore bound to make only such use of the lands 
 as will not in any way or manner prejudice the rights of 
 those having an ultimate interest therein. The books are 
 replete with cases where the tenant's rights and manner of 
 enjoyment have been called in question and passed upon by 
 the courts. From a great multitude of decisions on these 
 points there has been developed a series of rules and prin- 
 ciples which taken together form what is known in the law 
 as the doctrine of Avaste. 
 
 §106. The doctrine of wjiste. — This doctrine does not 
 attempt to set forth what the tenant may do, but rather to 
 place restrictions on his right of enjoyment and thus to out- 
 line his privileges in that regard. Waste is defined to be 
 spoil or destruction in houses or lands by the wrongful act 
 or by the permission or negligence of tenant for life. Such 
 acts or negligence must result in impairing the value of the 
 inheritance to constitute waste. Where the injury is by the 
 
■50 ESTATES OF FEEEHOLD. [§§ 107-109. 
 
 •direct act of the tenant it is called voluntary waste; where 
 by his mere negligence, permissive waste.' 
 
 § 107. Waste — Voluntary and permissive. — Yoluntary 
 waste consists in some positive wrongful act which injures 
 the inheritance. Permissive waste is the neglect of some 
 duty from which a like injury follows.' In many instances 
 merely to change the nature and use of land, as to convert 
 arable land into pasture, is to impair its value by changing 
 the course of husbandry, and such an act is waste.' But 
 where destruction of, or injury to, the premises of such a 
 character as to be waste, if done through or by the tenant, 
 is caused by the act of the grantor himself or of the public 
 enemy or by the act of God, the tenant is not liable.* 
 
 §108. What acts constitute waste. — It is quite impos- 
 sible to state what certain acts will or will not constitute 
 waste, for what would be waste in an old and well-settled 
 country would not necessarily be so in a new one. To fell 
 trees would be waste in a sparsely-wooded country, but to 
 do so in one where there was a surplusage of woodland 
 might be perfectly proper and in accord with the usual 
 course of husbandry. What constitutes waste in a particu- 
 lar case must depend on the situation and requirements of 
 the land, the customs in force in that portion of the country, 
 and the other circumstances of the case.^ 
 
 § 109. A question of fact. — Th'ferefore it may be fairly 
 said in conclusion, that whether or not a particular act con- 
 stitutes waste is generally a question of fact to be decided 
 by the jury under proper instructions from the court." It 
 should be remarked in passing that estates for life are some- 
 times created in such a manner that the tenant is absolved 
 
 1 Smith V. Sharp Busbee's Law, ''White v. Wagner, 4 H. & J. 373; 
 
 91; S. C, 57 Am. Deo. 574; Wilds v. s. G, 7 Am. Dec. 674. 
 
 Layton, 12 Am. Deo. 91. 5 Webster v. Webster, 33 N. H. 
 
 2Cooley's Elem. Torts, p. 133. 25; Lynn's Appeal, 31 Pa.' St. 44 
 spynchon V.Stewart, 45 Am. Deo. 6 Ward v. Sheppard, 3 Am. Decj. 
 
 307. 625. 
 
§§ 110-112.] ESTATES FOE LIFE. 51 
 
 from liability for waste, and in such cases he is said to take 
 the estate "free from impeachment of waste." 
 
 § 110. Trespass and waste distinguished. — It is fre- 
 quently a matter of some diflBculty to determine whether an 
 act be a mere trespass or of such a nature as to constitute 
 waste. In distinguishing the one from the other it should 
 be remembered that, while trespass is an injury to the pos- 
 session itself, waste is committed or suffered by the person 
 actually or constructively in possession of the land.^ 
 
 " In general, waste is the abuse or destructive use of prop- 
 erty by him who has not an absolute or unqualified interest 
 therein, and trespass is an injury or use, without authoritj', 
 of the property of another by one who has no right what- 
 ever." ^ 
 
 § 111. Effect on estate of commission of waste. — The 
 commission of acts amounting to waste by the tenant does 
 not result in the loss to him of his estate. The law has pro- 
 vided two remedies to which the person entitled to the in- 
 heritance may resort. The first of these is that of injunction 
 to restrain the tenant from committing waste,' and injunc- 
 tions are frequently granted to preserve the estate pending 
 litigation involving the title.* The second remedy is an ac- 
 tion on the case, wherein the tenant may be compelled to 
 respond in damages for an act of waste already committed.^ 
 
 § 113. Right of the tenant to emblements, — Before tak- 
 ing leave of the subject of the tenant's rights of enjoyment 
 in an estate for life, there are certain other incidents of such 
 an estate which should receive our consideration. Since 
 the termination of such an estate is, as to the time thereof, 
 contingent and uncertain, it would be manifestly unjust 
 that the tenant should be prejudiced by any sudden termi- 
 nation of his estate. It is therefore provided that upon a 
 
 iCooley's Elem. Torts, p. 123. * Gause v. Perkins, 56 N. C. 177; 
 
 2 Bland, Chancellor, in Dewall v. s. C, 69 Am. Dec. 728. 
 Waters, 1 Bland's Ch. 569. " Cooley on Torts (3d ed.), 395. 
 
 sCooley on Torts (3d ed.), 395; 
 Hawley v. Clawes, 3 Johns. Ch. 123. 
 
52 ESTATES OF FEEEHOLD. [§ 113. 
 
 sudden or unexpected termination of his tenancy, as, for in- 
 stance, by the death of the tenant, where he holds for his 
 own life, between the time of the sowing and the harvest- 
 ing of crops, his representatives shall have the profits of the 
 crop, known in the law as the emblements, in compensation 
 for the expense of tilling, manuring and sowing the lands. 
 If, however, the tenancy be determined bj'- the tenant's own 
 act, he is not entitled to take the emblements. To entitle 
 him to emblements his estate must be of uncertain duration, 
 and must be terminated in some other manner than by his 
 own act.' 
 
 § 113. Tenant's right to estovers. — Again, every tenant 
 for life, unless restrained by covenant or agreemen t, may take 
 from the land what are known as estovers, or botes, rea- 
 sonably necessary for his immediate use. This was given 
 him for the benefit and encouragement of husbandry. The 
 common law allowed house-bote — a sufiicient allowance of 
 wood to repair the huildings or to burn in his house ; plough- 
 hote and cart-iote — wood to be employed in making and 
 repairing all instruments of husbandry ; and hay-hote or hedge- 
 hote — wood for repairing hedges and fences upon the lands.^ 
 The estate and beneficial interest of the tenant for life ex- 
 tends to the use of the lands and no further. So his right 
 to the wood and timber cannot extend to any use thereof 
 except upon the premises; for instance, he cannot sell wood 
 to pay for cutting what he needs for fuel.' It is to the ad- 
 vantage of him who has the inheritance that the improve- 
 ments on the lands should not fall into decay, but the extent 
 to which tenants may go in this regard without being guilty 
 of waste is not a matter for absolute rule, but mast depend 
 on circumstances, and often largely upon the customs of 
 that part of the country in which the land is situated.* 
 
 1 See a Cooley's Blk., p. 123 and 'White v. Cutler, 17 Pick. 348; 
 note; Eeiff v. ReiflE, 64 Pa. St. 134. Phillips v. Allen, 7 Allen, 115. 
 
 2 2 Blk. Coram. 122; Miles v. * Simmons v. Norton, 7 Bing. 640. 
 Miles, 32 N. H. 147; s. 0„ 64 Am. 
 
 Dec. 867, and notes. 
 
§§ lli-117.] ESTATES FOE LIFE. 53 
 
 § 114. Tenant's power of alienation. — Having examined 
 somewhat into the rights of enjoyment possessed by a ten 
 ant of an estate for life, we now proceed to investigate his 
 power of alienation. And herein we shall note another 
 matter wherein this estate of freehold falls short of those 
 we have heretofore had under consideration. 
 
 § 115. No absolute power of alienation at the early law. 
 Originally the holder of a life estate could not alienate it 
 without the consent of his lord. A grant of lands to a man 
 was a grant to him only so long as he could hold them in 
 person, that is, during his life and no longer, for feudal do- 
 nations were to be taken strictly, and could not by any pre- 
 sumed intent be extended beyond the precise terms of the 
 gift. Unless the gift was to the tenant and his heirs, or lim- 
 ited in other words expressive of an intention that the de- 
 scendants of the tenant should succeed him in the tenancy, 
 the lands reverted to the grantor on the death of the ten- 
 ant. If the heirs were thus nominated in the original grant, 
 " the ancestor and the heirs took equally as a succession of 
 usufructuaries, each of whom during his life enjoyed the 
 beneficial, but none of whom possessed or could lawfully dis- 
 pose of the direct and absolute dominion of the property." ' 
 
 § 116. Development of power of alienation.^ So at the 
 common law it was implied in every estate for life that the 
 tenant would not alienate. Sometimes the instrument creat- 
 ing the estate contained a clause expressly prohibiting the 
 tenant from aliening. In more recent times it has been held, 
 with regard to such a restraint, that it operates as a condi- 
 tion subsequent onl}'^, and that in case of a violation of the 
 condition the estate will be defeated only at the election of 
 him who has the right to enforce it.^ 
 
 § 117. Continued. — But, as we have seen, restraints were 
 gradually removed from alienation, so that now, in the ab- 
 sence of an express condition prohibiting alienation, the ten- 
 
 iCo. Litt. 191a, n. (1), VI, 5; Bur- 2 Haywood v. Kinney, 84 Mich, 
 gess V. Wheate, 1 W. Blk. 133. 591. 
 
54 ESTATES OF FEEEHOLD. [§§ 118-120. 
 
 ant may part with his estate or any portion thereof.' But, 
 of course, he can make no leases to endure beyond his own 
 life, unless he be specially empowered so to do by the gift 
 under which he holds.^ 
 
 § 118. Effect of attempted alienation at common law. — 
 At common law, if tenant for life attempted to convey a fee 
 or any other estate greater than that which he had, he 
 thereby worked a forfeiture of his own estate. Bj^ granting 
 out a larger interest than his own, he put an end to his 
 original interest, and the next taker was entitled to enter 
 as in his reversion or remainder. The reason for this was 
 that this attempted alienation amounted to a renunciation 
 of the feudal connection and a refusal to render the services 
 due to the lord.' But the result of forfeiture did not follow 
 a conveyance made in any other mode than by feoffment; 
 and inasmuch as feoffment is unknown in this country, noth- 
 ing done or suffered by tenant for life can operate as a for- 
 feiture of the estate to tenant in remainder. 
 
 § 119. The modern rule in this regard. — A deed by the 
 life tenant purporting to convey a greater interest than he 
 has does not work a forfeiture, but passes to the grantee the 
 estate which the tenant could lawfully convey. This is so 
 provided by statute in some states, and is probably the law 
 in those states where the statutes are silent upon the subject.^ 
 
 § 120. Apportionment. — Formerly, if tenant for life had 
 leased the lands to an under-tenant, reserving rent to be 
 payable at certain periods, and died, the rent, if paid at all, 
 would fall to the reversioner, or the lessee might abandon 
 the premises and pay rent to no one.* The representatives 
 of the deceased life tenant could collect no portion of the 
 rent due since the last rent day. But now in many of the 
 states of the Union it is provided that on the death of tenant 
 for life, and in some states the statutes apply to any case 
 
 iCriswell v. Grumbling, 107 Pa. <3 Cooley's Blk. 274, note; Pope 
 
 St. 408. V. Pickett, 65 Ala. 487; Fields v. 
 
 2 Will. R. P. 35. Bush, 94 Ga, 664. 
 
 3 3 Blk. Comm. 274. 8 10 Rep. 137. 
 
§§ 121, 122.] ESTATES FOE LIFE. 55 
 
 where the estate is terminated, no matter by what contin- 
 gency, his personal representatives may recover from the 
 lessee the proportion due at the time of death.^ 
 
 § 121. The possession never adverse, etc. — The posses- 
 sion of the tenant for life can never by any possibility be- 
 come adverse to the remainderman or reversioner, since 
 such possession is no interference with the rights of the 
 latter. This is true, even though the tenant denies the ex- 
 istence of an estate in reversion or remainder, and openly 
 claims to be the absolute owner, " for the person in rever- 
 sion or remainder concedes the right of possession for life 
 and therefore cannot dispute it." ^ And though the life ten- 
 ant may lose his right by a possession adverse to him for 
 the statutory period, such possession cannot operate against 
 the remainderman or reversioner. The rights acquired by 
 it terminate with the termination of the life estate. Though 
 the tenant sell the property as if he had the fee, and his 
 grantee enters into possession under the supposition that he 
 has acquired a fee, his possession under such claim is not 
 adverse to the remainderman or reversioner until the latter 
 acquires the right of possession by the termination of the 
 life estate.' 
 
 § 132. Presnmption of conveyance by remainderman. 
 Attempts have been made to have applied to such cases the 
 rule that, from long possession, a presumption is to be in- 
 dulged that the reversioner or remainderman conveyed to 
 the tenant in possession. " The doctrine of presumption as 
 well as the statutes of limitation is founded upon the prin- 
 ciple of laches in him who, having the right, power and 
 capacity to seal and to disturb or recover possession, for a 
 long time omits and neglects to do so ; and to presume against 
 him who is unable to sue, whose right of action has not ac- 
 
 1 So in Arkansas, Delaware, In- ginia, West Virginia and Wisoon- 
 
 diana, Iowa, Kentucky, Massachu- sin. 
 
 setts, Mississippi, Missouri, New 2 Salmons v. Davis, 29 Mo. 176. 
 
 York, New Jersey, Pennsylvania, '■^ Stevens v. Winship, 1 Pick. 317, 
 
 South Carolina, Tennessee, Vir- 11 Am. Dec. 178. 
 
56 ESTATES OF FKEEHOLD. [§§ 123-125. 
 
 crued, who has been guilty of no laches, that his title has 
 passed from him or from those under whom he claims, would 
 be both novel and mischievous." ' 
 
 § l!i3. Duty of tenant as to repairs. — Before passing to 
 the consideration of legal life estates in particular, it may be 
 well to discuss in a brief manner one or two other matters 
 which are equally characteristic of both sorts of estates for 
 life. And first, it is the general rule that when it is neces- 
 sary to improve the estate, or to make alterations, or to be 
 at expense to make the property productive, the tenant for 
 life must make such improvements and alterations at his 
 own cost. Such charges, or any part thereof, cannot be put 
 upon the reversioner or remainderman.^ 
 
 § 124. Duty of tenant as to insurance. — In the absence 
 of anything in the instrument creating the estate that re- 
 quires it, or of any agreement to that effect on the part of 
 the life tenant, he is not bound to keep the premises insured 
 for the benefit of the remainderman. In the absence of any 
 agreement, neither has any claim upon the proceeds of the 
 policy of the other. Nor is the tenant bound to use the 
 proceeds of his policy in rebuilding.' 
 
 § 125. Duty of tenant with regard to mortgage, inter- 
 est, etc. — If, by a deed, a life estate is conveyed to one and 
 a fee to ano h r, and, as part of the same transaction, the 
 life estate is mortgaged by the grantee to the grantor, the 
 mortgage would attach to the life estate, and the fee would 
 pass unaffected by the mortgage.'' But tenant for life is 
 not required to pay off the principal of a mortgage for the 
 benefit of the estate of the reversioner. The life tenant is 
 bound to pay the interest on incumbrances during the con- 
 tinuance of his estate.^ 
 
 lOrtwein V.Thomas, 127 111. 554, 11 3 Harrison v. Pepper (Mass.), 44 
 
 Am. St. R. 159; Lamar v. Peane, 82 N. E. E. 233. 
 
 Ga. 354,14 Am. St. R. 168; McCarry *Lehndorf v. Cope, 133 111. 317; 
 
 V. King's Heirs, 3 Humph. 367, 39 Thomas v. Thomas, 17 N. J. Eq. 856. 
 
 Am. Dec. 173. 'See oases on this point in 25 
 
 2 See opinion in 46 Am. Dec. 56; Am. Dea 721, 43 Md. 251, 67 N. W. 
 
 Oaldecott v. Brown, 2 Hare. 144. R. 338. 
 
|§ 126-128.] ESTATES FOE LIFE. 57 
 
 § 126. Duty of tenant to pay taxes. — In the absence of 
 any provision to the contrary, it is the duty of tenant for life 
 to pay the taxes assessed on the land during his tenancy.* 
 Since he enjoys the property free from the payment of rent, 
 it is as much his duty to pay the current taxes as it is to 
 make the necessary improvements from time to time, since 
 both of these are burdens incident to the present use and 
 enjoyment of his estate. The liability of the tenant in this 
 regard, however, does not extend beyond the rental value ' 
 of the premises.^ But tenant for life cannot acquire a tax 
 title to the defeat of the reversioner or remainderman.' But 
 for any advances made by him for the benefit of the rever- 
 sioner or remainderman, where he is not bound, he becomes 
 a creditor of the estate of such reversioner or remainderman.* 
 
 § 127. Termination of estate, merger, etc. — It is a rule 
 of law that whenever a greater and a less estate coincide and 
 meet in one and the same person, without any intermediate 
 estate, the lesser estate is immediately annihilated, or, in the 
 law phrase, it is said to be merged, that is, sunk or drowned 
 in the greater.^ Thus, if the tenant for life acquire the re- 
 version, the life estate is merged in the greater estate, and 
 ^o if the life estate is conveyed to one having the reversion.' 
 This doctrine has its foundation in the convenience of the 
 parties in interest.'' 
 
 § 128. Death. — Estates for life will of course terminate 
 with the ending of the life for which they are granted. In 
 •case of an estate ^wr autre vie, the estate will terminate not 
 on the death of the tenant, but on the death of the cestui 
 qui vie. Formerly on the death of the tenant during the 
 life of the cestui qui vie the land did not revert to the 
 
 ' 1 Lacy V. Davis, 4 Mich. 140; S. C, * Whitney v. Salter, 36 Minn. 103; 
 
 i66 Am. Deo. 584; Waldo v. Cum- Estabrook v. Eoyan, 52 Ohio St. 
 
 mings, 45 111. 421. 318. 
 
 2 Munch v; Smith Mfg. Co., 47 N. 5 3 Blk. Com. 177. 
 J. Eq. 193. . 6 Will. R. P. 281. 
 
 3 Stewart v. Matheny, 66 Miss. 31 ; ' Moore v. Luce, 29 Pa. St. 260. 
 :S. 0., 14 Am. St. R. 588. 
 
58 ESTATES OF FEEEHOLD, [§ 129, 
 
 grantor, for he had conveyed away all his interest until the 
 death of the cesUd qui vie, but went to the one who should 
 first enter on the land, and he might retain the possession 
 by right of occupancy so long as the cestui qui vie lived.' 
 Statutory provisions have now generally taken the place of 
 this peculiar rule of the common law.^ 
 
 § 129. Termination of estates for life other than con- 
 ventional. — The matter of the termination of estates for 
 life other than conventional is dependent largely upon the 
 conditions upon which the particular estate depends for its 
 existence, and will be treated of more at length under the 
 heading of Estates for Life Other than Conventional, which 
 will form the subject of our succeeding chapter. 
 
 i 2 Blk. Com. 358. 2 Will R. P. 21, 22. 
 
CHAPTER VI. 
 ESTATES FOR LIFE OTHER THAN CONVENTIONAL. 
 
 130. Legal life estates. 
 
 131. Estates arising out of the marriage relation. 
 
 132. Estates by the courtesy. 
 
 133. Incidents of estates by courtesy. 
 134i Necessity of seisin in wife. 
 
 135. The modern rule. 
 
 136. Effect of modern legislation upon rights of wife. 
 
 137. Husband can now take in estates of wife not in possession. 
 
 138. Necessity of having issue born, etc. 
 
 139. Necessity of issue capable of inheriting from the mother. 
 
 140. Inchoate right of husband. 
 
 141. Some distinctions. 
 
 142. The estate in the present law. 
 148. Effect of modern statutes. 
 
 144. The husband as tenant by courtesy initiate. 
 
 145. Summary. » 
 
 146. Dower — Rights of wife in lands of husband. 
 
 147. Origin and history of dower. 
 
 148. Classifications of dower. 
 
 149. The classes defined and explained. 
 
 150. Continued. 
 
 151. Continued. 
 
 152. Concluded. 
 
 153. Summary. 
 
 154. Dower in the modern law. 
 
 155. Signification of the word "endowed," 
 
 156. The estate by statute. 
 
 157. Continued. 
 
 158. Concluded. 
 
 159. Dower favored in the law. 
 
 160. Incidents of dower. 
 
 161. To what lands it attaches, and in what estates. 
 163. Necessity of seisin in husband. 
 
 163. Birth of issue not necessary. 
 
 164. Inchoate dower interest. 
 
 165. How dower may be barred. 
 
 166. Effect of divorce. 
 
60 ESTATES OF FKEEHOLD. [g§ 13U-132. 
 
 g 167. Statutory provisions. 
 
 168. Marriage settlements, jointures, etc. 
 
 169. Homestead estates. 
 
 170. Tliis estate generally for benefit of head of family. 
 
 § 130. Legal life estates.— We now come to the consid- 
 eration of those estates for life which are created and exist 
 by operation of law rather than by act of the parties. These 
 are generally designated as Legal Life Estates. Among the 
 most important of such estates are those arising out of the 
 marriage relation, to wit: the interest of the husband in 
 the lands of the wife, and the interest of the wife in the 
 lands of the husband. 
 
 § 131. Estates arising out of the marriage relation.— 
 At the common law the husband and wife by the act of 
 marriage became one person. The wife's legal existence 
 was thereby suspended and so continued during coverture. 
 So that where a wife at the time of her marriage was seised 
 in fee of lands, her husband acquired a freehold therein. 
 This estate was known as one Jure uxoris (by the right of 
 the wife), and was_for theiile of the husband. And during 
 the life of the wife the husband received and might dispose 
 of the rents, issues and profits of the lands without the con- 
 sent of the wife.^ 
 
 § 132. Estates by the courtesy. — This estate of the hus- 
 band came to be known as an estate by the courtesy of 
 England, or an estate hy the courtesy, and was so called be- 
 cause it had existence in England only. It is important 
 to students of American law for the reason that the prin- 
 ciples upon which it is based are recognized generally 
 throughout the United States, and indeed the estate in form 
 now exists in many of the states, and in the others some 
 similar provision is made by statute whereby the husband 
 is given an interest in the lands of the wife. An examina- 
 tion into the attributes and characteristics of this estate will 
 therefore be of advantage to us in our present work. 
 
 ' See 1 Bllf. Com. 442; Will. R. P. 223. 
 
§§ 133-136.] LEGAL LIFE ESTATES. 61 
 
 § 133. Incidents of estates by courtesy. — There are 
 certaia conditions which must be complied with or the law 
 will not raise this estate in the husband. And first, the es- 
 tate of the wife must be an estate in possession, for there 
 can be no courtesy of an estate in reversion expectant on a 
 life interest or other estate of freehold, the particular estate 
 not being ended during coverture.* 
 
 § 134. Necessity of seisin in wife. — It was formerly in- 
 dispensable that there should be an actual seisin, that is, 
 seisin in fact of the land either by the wife, or by the hus- 
 band in her right; and it was considered that a seisin in law, 
 or constructive seisin, that is a seisin without actual entr}' 
 or possession, was insufficient to support an estate by the 
 courtesy. The reason for this holding is to bo found in the 
 disability of the wife during coverture, whereby it devolved 
 upon the husband to make entry and take possession in her 
 right; and that he might be the more diligent in so doing, 
 he was deprived of his rights in such lands as he failed to 
 enter upon and take possession.^ 
 
 § 135. The modern rule. — But infringements soon began 
 to be made upon this rule, and it is not now adhered to in 
 its literal strictness either in England or in our own country. 
 For when it came about that title might be conveyed with- 
 out livery of seisin, it was held that the rule applied only to 
 cases where the wife took as heir or devisee, and not where 
 she took by conveyance, which carried with it both the legal 
 title and the seisin.' 
 
 § 136. Effect of modern legislation upon rights of wife. 
 Again, legislation both in England and this country having 
 largely removed the disability of married women to act in 
 their own behalf, the reason for the rule has ceased to exist. 
 The cases decided from time to time evidence the gradual 
 relaxation of the rule, and the law now is " that actual entry 
 
 1 3 Blk. Com. 137; Will. E. P. 328; 2 Will. R. P. (App. ed.) 533. 
 
 Malone v. McLaurin, 40 Miss. 161, ^ Jackson v. Johnson, 5 Conn. 74, 
 
 90 Am. Dec. 330; Oxford v. Benton, 15 Am. Deo. 48a 
 36 N. H. 695. 
 
62 ESTATES OF FEEEHOLD. [§§ 137, 13 S 
 
 ov 2)edis possessio is noL absolutely requisite, and that if the 
 party is constructively seised, in fact, it will be sufficient." ^ 
 So that a man may now be entitled to courtesy even in the 
 equitable estate of his wife.^ Such is the law also where 
 the wife has the final estate in fee, subject to a pending es- 
 tate for years in another,'' the present right drawing to it 
 the possession where the holding is not adverse.* Again, the 
 possession of one tenant in common is considered the pos- 
 session of his co-tenants; so it is not necessary, when the wife 
 has an estate as tenant in common, that she should have been 
 actually seised to entitle her husband to courtesy.^ Such is 
 the case also when the wife is one of several parceners.^ 
 
 § 137. Husband can now take in wife's estates not in 
 possession. — The fact that livery of seisin or delivery of 
 actual possession is no longer necessary enables the husband 
 to take an estate by courtesy in the vacant and unoccupied 
 lands of his wife,' and also in lands the title to which de- 
 scends to her during coverture, but which are in the actual 
 possession of an adverse claimant from the time the title 
 accrues until her death.' 
 
 § 138. Necessity of having issue born, etc. — It is fur- 
 ther essential that there should be issue born alive and dur- 
 ing the life-time of the mother in order that the husband 
 may have an estate by the courtesy. If the mother die in 
 labor and the child be thereafter delivered alive, the hus- 
 band will not be entitled to courtesy, for the essentials of the 
 estate were not fulfilled during the life-time of the mother, 
 and the land descends to the child unfettered by any estate 
 whatever in the husband.' For while a child en ventre sa 
 
 iKent; Jackson v. Shelleok, 8 ^ c^rr v. Givens, 9 Bush, 679, 15 
 
 Johns. 262. Am. E. 747. 
 
 2Dugan V. Gittings, 3 Gill, 138, 'Miller v. Miller, 129 111. 630; 
 
 43 Am. Deo. 306. Davis v. Mason, 26 U. S. 1. 
 
 3 Ellsworth V. Cook, 8 Paige, 646. 8 Borland v. Marshall, 2 Ohio St. 
 
 *Malone v. McLaurin, 40 Miss. 308, 6 Gray's Cases, 710. 
 
 161, 90 Am. Dec. 330. sg Blk. Com. 137. 
 
 '^ 1 Bishop on Married Women, 
 504. 
 
■f§ 139-141.] LEGAL LIFE ESTATES. 63 
 
 mere is to be considered in esse for every purpose where it 
 is for the benefit of the child, it is not to be so considered 
 for the benefit of another person.^ 
 
 § 139. Necessity of issue capable of inheriting from the 
 mother. — Whether the child is born alive or not is gen- 
 erally a question of fact and consequently for the jury.^ It 
 is not, however, necessary to entitle the husband to the es- 
 tate that the child should be born during the period that 
 the mother is seised. It is only essential in this regard that 
 there should be issue, born alive and capable of inheriting 
 from the mother. As has been said, " If a man taketh a 
 woman seised of lands in fee, and is disseised, and then have 
 issue, and the wife die, he shall enter and hold by the cour- 
 tesy, and so if he have issue which die before the descent." ' 
 
 § 140. Inchoate right of husband. — Until issue is born 
 fulfilling the requirement of the rule the husband has merely 
 an inchoate right, which may or may not ripen into an es- 
 tate by the courtesy. By marriage the husband acquires a 
 freehold interest during the joint lives of himself and his 
 wife in all such freehold property of inheritance as she was 
 seised of at the time of marriage, and a like interest vests in 
 him in such as she may become seised of during the cover- 
 ture. Upon the death of the wife, issue having been born 
 capable of inheriting from her, the husband becomes enti- 
 tled to an estate by the courtesy under the rule. 
 
 § 141. Some distinctions But the distinction between 
 
 the estate by the marital right, or the estate of the husband 
 ■during coverture, and the estate by the courtesy initiate, 
 must always be borne in mind. For it is to be observed 
 that after birth of issue and during coverture the husband 
 is entitled to an estate for his own life and in his own right, 
 and the interest of the wife is a mere reversionary one, de- 
 pendent on the life estate of her husband ; and it is accord- 
 ingly held that the statute of limitations does not commence 
 to run against her right as such reversioner or against her 
 
 iMarselles v. Thalhimer, 3 Paige 2 See Will, on Circ. Ev. 449. 
 •Ch. 35, 31 Am. Deo. 66. ^ ' Coke, 1 Inst. 30a. 
 
Gl ESTATES OF FREEHOLD. [§§ 142, 143. 
 
 heirs until the estate by the courtesy initiate or consummate 
 ceases.^ 
 
 § 142. The estate in the present law. — The estate by 
 the courtesy has been abolished in some of the states of the 
 Union/ and in some states ' the surviving husband is " en- 
 dowed " with an estate similar to that which a widow takes- 
 as dower. In others of the states courtesy is expressly pre- 
 served as at common law.* In Michigan, Ohio, Nebraska^ 
 West Virginia and Oregon the husband has his estate for 
 life whether issue be born or not.^ In certain of the states^ 
 courtesy has not been the subject of legislative enactment, 
 and the common law on the subject there prevails. And 
 where statutes are in force giving married women the ex- 
 clusive ownership and control of their property, the husband 
 will not lose his right of courtesy in any property remain- 
 ing undisposed of at her death.'' 
 
 § 143. Effect of modern statutes. — It is sometimes said 
 that the operation of these statutes destroys the tenancy by 
 the courtesy initiate, but it is perhaps the better view that 
 though the estate is materially modified and changed by 
 such enactments, it is not destroyed thereby. During cov- 
 erture it is said that the property of the wife is clothed with 
 new characteristics, and the estate known as tenancy by the 
 marital right is substantially abolished. Under these statutes 
 the husband's right to the courtesy in the lands of his wife is 
 contingent and does not vest in him until her death ; and so 
 long as she lives, his interest in her lands lacks those elements 
 of property, as power of disposition, liability to sale on execu- 
 tion, etc., which had formerly given to it the character of a 
 vested estate. Therefore the interest which the husband 
 
 1 Foster V. Marshall, 23 N. H. 491, ^Delaware, Massachusetts, Rhode 
 6 Gray's Cases, 707. Island, New Hampshire, Vermont, 
 
 2 California, Colorado, Dakota, and North Carolina. 
 Georgia, Idaho, Illinois, Maryland, ^Stin. Am. St. Law, sec. 3301. 
 Iowa, Kansas, Maine, Minnesota, ^ For instance, in Arkansas. 
 Nevada, Washington, Mississippi, 'Breeding v. Davis, 77 Va. 639, 
 South Carolina and Wyoming. 46 Am. R. 740. 
 
 'Illinois, Kansas and Maine. 
 
§§ 144-147.] LEGAL LIFE ESTATES. 65 
 
 had in his wife's lands during her life, under these enact- 
 ments, was a mere inchoate right which the legislature might 
 destroy.' 
 § 144:. The hasbaud as tenant by courtesy initiate. — 
 
 At common law, however, upon the birth of a child who 
 could by possibility inherit the estate of the wife, the hus- 
 band bad a right as tenant by the courtesy initiate, which 
 was property subject to be taken for debts, and was a vested 
 right which could not be modified or abolished by statute.^ 
 
 § 145. Summary. — The student will no doubt glean from 
 the foregoing that whatever may be taken to be the effect 
 of these statutory enactments, there can be no question that 
 the estate by the courtesy has been to a large extent changed 
 or modified by their operation, and that hence he must look 
 to the enactments and decisions obtaining in the jurisdiction 
 where the particular case under his consideration arises. 
 
 § 146. Dower — Rights of tlie wife in lands of her hus- 
 band. — ISTot only does the law invest the husband with cer- 
 tain rights in the lands of the wife, but it also gives to the 
 wife an interest in the lands of which her husband is seised 
 at the date of the marriage and of those of which he may 
 become seised during coverture. This interest of the wife 
 in the lands of her husband is known as " dower." 
 
 § 147. Origin and history of dower. — It is not certainly 
 known when the estate of dower was first recognized by 
 the law of England, nor indeed whence it came. Some 
 writers are of the opinion that it was introduced by the 
 Saxons, others that it was adopted from the Goths and 
 Swedes, but probably that view is most nearly correct which 
 regards it as having come in with the other institutions en- 
 grafted on the law of England at the time of the Norman 
 conquest. The origin of the institution itself is involved in 
 
 1 Lucas V. Lucas, 103 111. 131; Neer v. McNeer, 19 L. R. A. 257.- 
 Brown v. Clark, 44 Mich. 309; Mar- But see contra, Alexander v. Alex- 
 tin V. Bobson, 65 111. 129, 16 Am. E. ander, 1 L. R. A. 135; also 46 Am. 
 578. E. 740. 
 
 2CooIey's Const. Lira. 440; Mc- 
 5 
 
^6 ESTATES OF FREEHOLD. [§§ 148-150. 
 
 ■obscurity. There is high authority for the position that it 
 arose out of the precepts of the Christian religion, and that it 
 was adopted by reason of the amity of the church to improve 
 the condition of women when surviving their husbands, and 
 to better provide for their sustenance in the widowed state, 
 as well as for the nurture and education of the children of 
 the marriage.^ 
 
 § 148. Classifications of dower. — According to Littleton 
 and Blackstone there were five different kinds of dower, or, 
 more strictly speaking, five ways or modes in which a woman 
 could be endowed. These were: (1) Dower by special cus- 
 tom. (2) Dower ad ostrium ecclesia. (3) Dower ex assensa < 
 patris. {4,) jyower de la plus belle. (5) Dower by the com-, 
 mon law. The last of these methods was abolished with ' 
 military tenures, of which it was a consequence.^ 
 
 § 149. The classes defined and explained — Dower by 
 special custom was where a widow was endowed with a 
 specified portion of her husband's lands in accordance with 
 some local custom. This sort of dower long since fell into 
 disuse, as we find no traces of it after the time of Henry I.' 
 
 § 150. Continued. — - Dower ad ostium ecclesia, or at the 
 church door, occurred where a man of full age, seised in fee 
 simple, at the time of marriage, at the church door, where 
 all marriages were formerly celebrated, after afliance and 
 troth plighted between them, endowed his wife with the 
 whole or such part of his lands as he pleased, then and there 
 specifying and ascertaining the same. At an early date he 
 was not allowed to endow her with more than a third part 
 of the lands of which he was seised, though he might give 
 her less. "When thus endowed, the wife after the death of 
 her husband might enter into the quantity of land specified 
 without further assignment. She might refuse at the church 
 door to accept the portion set out to her, in which case she 
 would have her common-law dower. But if she did not ob- 
 
 iSee Blk. Com. 130; Maine's Anc. 22 Blk. Com. 133; Co. Litt., sec. 86 
 l,aw (3d ed.), 218. et seq. 
 
 3 2 Blk. Com. 133. 
 
§§ 151-154:.] LEGAL LIFE ESTATES. 67 
 
 ject at the time of the marriage, and then after the death of 
 her husband entered on the lands, she was concluded from 
 claiming dower by the common law.^ ^ 
 
 § 151. Continued. — Dower ex assensa patris was a species 
 of ad ostium ecdesia, and differed from Tt only in being made 
 when the husband's father was alive, and the son, by his con- 
 sent expressly given, endowed his wife with parcel of his 
 father's lands.^ 
 
 § 152. Concluded. — Dower at common law occurred if at 
 any time during coverture the husband became solely seised 
 of any estate of inheritance, that is, in fee simple or fee tail, 
 in lands to which any issue, if issue was had, might by pos- 
 sibility have been heir. Then, and in such case, the wife 
 from that time became entitled on the decease of the hus- 
 band to have one equal third part of the same lands allotted 
 to her, to be by her enjoyed during the remainder of her 
 life.' And this right of dower was paramount to the aliena- 
 tion of the husband and quite independent of his debts.* 
 
 §153. Summary.-^ So much for the origin and ancient 
 law of dower. When we approach the study of the modern 
 estate of the wife in the lands of her husband, we find our 
 way much impeded hj the admixture of the old and the 
 new, as well as by conflicting statutory enactments and de- 
 cisions of various states and of many tribunals. An at- 
 tempt will be made, however, to formulate the leading 
 principles of the subject in such a manner as to be of some 
 assistance to the student. 
 
 § 154. Dower in the modern law. — And first it may be 
 said that in general, and with reference to its quantity, 
 dower is of two kinds — an interest and an estate; the for- 
 mer expressing the right of the wife during the life-time of 
 her husband, the latter that to which she shall be entitled 
 if she survive him. During the life-time of her husband 
 
 12 Bib. Com. 133; Co. Litt., sees. 2 2 Blk. Com. 133; Co. Litt., sees. 
 39, 41; 1 Reeves' Hist, of Eng. Law 40, 41; 6 Gray's Cases, 733. 
 (Am. ed.), p. 354. s Will. R. P. 232. 
 
 4 Will. R. P. 233. 
 
 '1 
 
68 ESTATES OF FSEEHOLD. [§§ 155-157. 
 
 the wife has merely an inchoate right, contingent upon her 
 life exceeding that of her husband. But he cannot by any 
 act of his own bar this right in her, or prevent it from 
 ripening into an estate in her at his death, should it occur 
 prior to that of his wife. 
 
 §155. Signification of the word "endowed." — Again, 
 the word " endowed " has in the law its own specific mean- 
 ing, and when used in its proper sense signifies, as it did at 
 the early common law, that the person endowed shall have 
 an estate for life in the lands of which such person is en- 
 dowed. This is a pure dower estate. But the term is often 
 improperly made use of to indicate any interest or estate 
 given by law to the wife in the lands of her husband by 
 virtue of the marital relation. 
 
 §156. The estate by statute. — In many of the states 
 dower is still preserved by statute as at common law.^ In 
 several it is provided that if the husband die without issue, 
 and solvent, the widow shall be entitled to a one-half part 
 of the real estate for life in dower.^ In a few states, by 
 silence of the statutes or by implication, dower remains as 
 at common law ; ' while in others the widow can have dower 
 in those lands only of which the husband died seised.* 
 
 § 157. Continued. — In Illinois and in Maine and Minne- 
 sota courtesy is abolished, and the surviving husband takes 
 an estate in the wife's lands similar to the dower of the 
 widoNA'' at common law.' The right intended to be conferred, 
 where such provision is made, is such as previously ex- 
 isted in favor of the widow .^ In several states where dower 
 for many years did not exist, recent statutes have restored 
 
 iThis is the case in Kentucky, ^jn Maryland, Pennsylvania, 
 Massachusetts, New York, New Rhode Island and South Carolina. 
 Jersey, Ohio, Michigan, Wisconsin, * In Connecticut, Delaware, 
 Nebraska, Virginia, West Virginia, Georgia, New Hampshire and Ten- 
 North Carolina, Missouri and Ore- nessee. 
 gon. 5 See Stim, Am. Stat. Law, sec. 
 
 ^ So in Alabama, Arkansas, Del- 3302. 
 
 aware and Maine. " Heisen v. Heisen, 145 111. 658, 
 
 21 L. R. A. 434. 
 
§§ 158-161.J LEGAL LIFE ESTATES. 69 
 
 to the wife her common-law right, and the tendency is 
 rather to enlarge than to cut ofl this provision for the widow.' 
 
 § 158. Concluded, — Dower, strictly so called, no longer 
 exists in a number of the states, but the provisions made by 
 the present statutes in many of them for the widow in the real 
 estate of her husband are rather in the nature of an enlarge- 
 ment than an abolishment of dower. Under such statutes 
 the inchoate right of the wife is of the same general nature 
 as the inchoate right of dower at common law.^ The es- 
 tate is treated as of the nature of dower and is governed 
 by the same rules of legal construction.' 
 
 § 159. Dower favored in the law. — Dower has always 
 been favored in the law, and indeed so highly favored " that 
 next to life and liberty it is held sacred." * It is considered 
 of inestimable value to the homes in the states, and the ef- 
 fect of the homestead laws has been to enlarge the provis- 
 ion thus made for the widow.' In the absence of statute 
 cutting down the dower, the husband cannot by any aliena- 
 tion or charge defeat the right of the wife after it has once 
 attached.* 
 
 § 160. Incidents of dower. — Three things were neces- 
 sary at common law to vest in a woman the right of 
 dower: 1. That her husband should have been seised at 
 some time during the existence of the coverture of the lands 
 in which dower is claimed, either in fee simple or in fee 
 tail. 2. Marriage, as recognized by law. 3. The death of 
 the husband leaving the wife surviving him.' 
 
 § 161. To what lands it attaches and what estates. — 
 At common law the right attached to all lands of which the 
 husband was seised at any time during coverture; but this 
 
 1 Combs V. Young, 4 Yerg. 218. « Grady v. McCorkle, 57 Mo. 173, 
 
 2 See In re Eausch, 35 Minn. 291. 17 Am. Dec. 676. See also opinion 
 3 Holmes V.Holmes, 54 Minn. 352. of Reade, J., in Sutton v. Asken, 
 * Thayer v. Thayer, 14 Vt. 107, 66 N. C. 172, 8 Am. R. 500. 
 
 39 Am. Dec. 211; Kennedy v. Ned- 'Stevens v. Smith, 4 J. J. Marsh, 
 row, 1 Dall. 415. 64, 20 Am. Dec. 205. 
 
 5 Blevins v. Smith, 13 L. R. A. 
 441. 
 
70 ESTATES OF FEEEHOLD. [§§ 162, 163. 
 
 rule has been changed by statute in many states, so that the 
 right exists only as to the lands of which the husband dies 
 seised, and those which come to the husband through the 
 wife.^ This right of dower in the wife subsists in virtue of 
 the seisin of the husband, and hence seisin of the husband 
 during coverture is essential. There can be no dower where 
 the husband was never seised.^ So, generally speaking, a 
 wife has no dower in lands to which the husband has merely 
 an equitable title. But by statute in many states this rule 
 has been changed, so that the right exists in the husband's 
 equitable estates.^ ISTor could a wife have dower in the hus- 
 band's lands held by him in joint tenancy, nor in trust es- 
 tates, except where so provided by statute.* 
 
 § 162. Necessity ofseisin in husband. — It is held in some 
 jurisdictions that if the seisin in the husband be merely 
 transitory, as where the very act by which he acquires the 
 fee takes it from him, so that he is merely the conduit for 
 passing it, such momentary seisin will not entitle his widow 
 to dower.^ Again, where at the time of receiving a convey- 
 ance of land a mortgage is given back to secure payment 
 of the purchase-money of the mortgaged land, the seisin is 
 held to be instantaneous and dower does not attach.* 
 
 § 163. Birth of issue not necessary. — The birth of issue 
 is not essential to the perfection of the right of dower. It 
 is only necessary that by possibility it may happen that the 
 wife may have issue by her husband which may by possi- 
 bility inherit the estate as heir of the husband.' The wid- 
 ow's rights regarding her dower will be determined by 
 the law as it exists at the death of her husband and not as 
 it did at the date of the marriage. Dower is not a right 
 
 1 Flowers v. Flowers, 18 L. R. A. » Adams v. Hill, 9 Fost. 202; Stan- 
 75. wood V. Deming, 14 Me. 290. 
 
 2 Bowman v. Bailey, 20 S. C. 550. egtorr v. Tiffl, 15 Johns. 458, 8 
 ^ 8 Hawley v. James, 5 Paige, 318; Am. Dec. 366; Henisler v, "Wickem, 
 
 Williams v. Westcott, 77 Iowa, 333. 38 Md. 277. 
 
 * Stevens v. Smith, 4 J. J. Marsh. ' Litt., sec. 53. 
 64, 30 Am. Dec. 205. 
 
§§ 164^168.] LEGAL LIFE ESTATES. 71 
 
 founded on contract, and so not within the inhibition of the 
 constitution regarding the violation of contracts.^ 
 
 § 164. Inchoate dower interest. — But though the wife's 
 dower during the life-time of the husband is inchoate and 
 uncertain, it yet possesses the elements of property. The 
 law treats it as a valuable interest. Its actual money value 
 at a given time is estimated by the use of what are known 
 as mortuary tables.^ 
 
 § 165. How dower may be barred. — While the husband 
 has no power to prejudice the wife in the exercise of her 
 right of dower, she may herself bar her dower in either of 
 several different modes. She may join with her husband in 
 a deed of conveyance, or after his death she may convey 
 away her dower either before or after it is set out to her. 
 By accepting a provision made for her in the husband's will 
 in lieu of dower, she will relinquish her right. To do this 
 is, of course, optional with her; she cannot take both, but 
 may choose between them. 
 
 § 166. Effect of divorce. — It is generally the law that if 
 the husband obtain a decree for divorce against the wife 
 based on her fault, she shall lose her dower in his lands. 
 And so it is also held that a divorce a vinculo for the fault 
 of either party will be a bar to dower in lands thereafter 
 acquired by the husband. 
 
 §167. Statutory provisions. — In nearly all the states 
 there exist statutory provisions providing the method of 
 setting out the dower to the widow. The effect of this pro- 
 ceeding is to reduce the property in which her dower exists 
 to her possession for such an estate as she has therein. 
 
 § 168. Marriage settlements, jointures, etc.— There is 
 one method recognized in the law by which a woman may 
 bar her dower, or rather by which she gives up her right 
 ever to have dower. This is done by an agreement entered 
 into prior to the marriage, but in consideration thereof, and 
 
 1 State V. Tuty, 41 Fed. R. 753, 7 2 Porter v. Noyes, 11 Am. Dec. 30. 
 L. R. A. 50. 
 
72 ESTATES OF FEEEHOLD. [§§ 169, 170. 
 
 called a jointure.' It generally provides for the giving of 
 lands or other property to the wife, which she accepts in 
 lieu of all claim of dower.^ 
 
 § 169. Homestead estates. — There still remains for our 
 consideration a species of estates for life known as the home- 
 stead estate. This estate is purely of statutory origin, and, 
 with somewhat variant provisions, exists in nearly all the 
 states. In a general way it may be said to be an interest in 
 land, usually for the life or lives of those entitled to it, ex- 
 empt from the demands of creditors. Such estates were 
 created primarily to secure to the householder and his 
 family a home beyond the reach of creditors and thus aid in 
 preventing them from becomiffg public burdens. The ex- 
 tent and value of the estate differs widely in the various 
 states, and hence in every case reference must be had to the 
 statutes of the particular state in which the property is sit- 
 uated. But it may be said that it is the universal rule that 
 homestead acts are to be liberally construed for the benefit of 
 those entitled to the benefits thereof.' The law does not 
 generally require that the claimant of the homestead rights 
 be the owner of a freehold, but allows such rights to be es- 
 tablished in the lesser estates,* and in some jurisdictions even 
 where the claimant has onl}'^ an equitable estate.' The home- 
 stead estate may be sold and conveyed in all the states where 
 it exists, and in most of them it may be mortgaged ; the sig- 
 natures of both husband and wife to instruments for such 
 purposes being a requirement that is universal. 
 
 § 170. This estate generally for benefit of head of 
 family. — Though the statutes of the several states make use 
 of different forms of expression indicative of the person or 
 persons who may claim this exemption, yet the general in- 
 
 ' » Re De Hoghton, 65 L. J. Ch. (N. *Pelan v. DeBevard, 13Iowa, 53; 
 
 S.) 667, 74 L. T. R. 613. Johnson v. Richardson, 33 Miss. 462. 
 
 2 Will. R. P. 235, 336. SMcKee v. Wilcox, 11 Mich. 358; 
 
 3 Barber v. Rorabeok, 36 Mich. Stafiford v. Woods (111.), 33 N. E. R 
 399; Deere v. Chapman, 25 111. 610; 539. 
 
 Jarvis v. Moe, 38 Wis. 440. 
 
§ 170.] LEGAL LIFE ESTATES. 73 
 
 tent of them all is to confer this right upon the actual head 
 of the family ,> and so it is primarily to the husband, and on 
 his death it inures to his widow. But when the head of 
 the family, a woman may have such rights in lands acquired 
 by her after the death of her husband. As a general rule 
 the claimant must reside in or upon the premises claimed as 
 a homestead estate.^ The courts have, however, somewhat 
 differed in the construction to be placed upon the word 
 '' reside." But it is universally the holding that one can- 
 not claim homestead exemptions in more than one piece of 
 property,' and hence that an actual abandonment, or the ac- 
 quiring of a new homestead, will extinguish the right in the 
 old.* For a full discussion of this subject, which it is deemed 
 would be out of place here, the student is referred to Wash- 
 burn on Eeal Property, chapter VI, and the cases cited in 
 connection therewith. 
 
 1 Parsons V. Livingston, 11 Iowa, 'Atchison v. Wheeler, 20 Kan. 
 104; Barney v. Leeds, 51 N. H. 353. 625; Donaldson v. Lamprey, 29 
 
 2 Lee V. Miller, 11 Allen, 37; Blum Minn. 18. 
 
 V. Carter, 68 Ala. 235; Bowker v. * Taylor v. Hargous, 60 Am. Deo. 
 Collins, 4 Neb. 494. 607. 
 
ESTATES LESS THAN FREEHOLD. 
 
 CHAPTER VII. 
 
 ESTATES FOE YEARS. 
 
 171. Estates less than freehold. 
 
 173. How distinguished. 
 
 173. Estates for years. 
 
 174. Chattels real. 
 
 175. Importance of estates for years. 
 
 176. Use of term " landlord and tenant." 
 
 177. The ancient estate for years. 
 
 178. Terms of years under the feudal system. 
 
 179. At the common law. 
 
 180. Development as an estate. 
 
 181. Certain general principles still in force. 
 183. Continued. 
 
 183. The estate as between lessor and lessee. 
 
 184 Effect of fraud, etc, 
 
 185. Exception to rule. 
 
 186. As to tenant's right of enjoyment. 
 
 187. Covenants. 
 
 188. Eviction. 
 
 189. Power to under-lease. 
 
 190. Assignment. 
 
 191. Definition of modei-n lease. 
 193. Creditors' rights, 
 
 193. Effect of destruction of premises. 
 
 194. Importance of distinction between surrender and forfeiture. 
 
 195. Effect of breach. 
 
 196. Eight to declare a forfeiture. 
 
 197. Changes made by statute. 
 
 198. Continued. 
 
 199. Continued. 
 
 300. Continued. 
 
 301. Continued. 
 203. Continued. 
 
 303. Rental upon shares. 
 
 304. Merger. 
 
 205. Use and occupation. 
 
 206. Distress. 
 
§§ 171-174.J ESTATES FOE YEAES. 75 
 
 § 171. Estates less than freehold. — We are now to un- 
 dertake the consideration of estates less than freehold ; that 
 is to say, of estates lacking in the quality of freeholds. Cer- 
 taia of such estates may, however, exceed in quantity some 
 of the estates of freehold. For example, an estate given to 
 one for his life is a freehold, while an estate for j'ears, though 
 limited to endure for a period of years far outlasting that of 
 any human life, is not an estate of freehold ; for, while suffi- 
 cient in point of quantity, it falls short iu quality. The chief 
 distinction, then, between estates of freehold and those less 
 than freehold is involved in the matter of quality. 
 
 § 172. How distinguished.— Again, these estates (free- 
 hold and less than freehold) may be distinguished one from 
 the other by the fact that in the freehold estate there is no 
 limitation as to the time for which the estate is to endure, 
 capable of computation in days, months or years ; that is, 
 such estates are not limited to end at any fixed date. On 
 the contrary, in estates less than freehold there is always a 
 limitation determining the estate at some definite and fixed 
 time, measurable in days, months or years,^ and by this 
 means we are always enabled to distinguish between an es- 
 tate of freehold — as, for instance, an estate for life — and an 
 estate less than freehold, as one for years. 
 
 § 173. Estates for years. — Estates for years are the 
 principal example of estates less than freehold, and b}' es- 
 tates for years is meant all estates or interests in land which 
 are less than freehold in quality and limited to endure for 
 some fixed period of time. This estate is also often called 
 " a term of years." 
 
 § 174. Chattels real. — Estates for years are known in 
 the law as chattels real, or personal interests in real prop- 
 erty, and so are regarded as personalty. This being the 
 case, strictly speaking, no tenure exists between the grantor 
 and the grantee, the possession of the latter being consid- 
 
 ' See exceptions to this rule as to tenancy at will and at sufferance, 
 hereinafter treated. 
 
76 ESTATES LESS THAN FREEHOLD. [§§ 175-178. 
 
 ered to be that of the former in so far as the question of 
 title is concerned. Being personal property, tenant for 
 years is not seise;^ but merely possessed, 'And without seisin 
 there can be no tenure. As a corollary to this proposition, 
 no tenant for years can dispute the title of him of whom 
 he holds, for he himself holds only by virtue of that same 
 title. 
 
 § 175. The importance of estates for years. — Estates 
 for years are the most common of all estates at the present 
 day; and inasmuch as the interests therein, both of grantor 
 and grantee, are regarded as personal property, such estates 
 may now be created by parol as well as by deed. But in 
 creating them by parol care must be taken that the pro- 
 visions of the statute of frauds are not infringed. 
 
 § 176. Use of term ^^ landlord and tenant." — The 
 terms "grantor and grantee" and "lessor and lessee" have 
 in modern times been largely superseded by those of " land- 
 lord and tenant," and the agreement upon which the rights 
 of the several parties are founded is in general termed a 
 " lease." Now this modern lease differs much from the an- 
 cient term of years, for it has grown into a very complicated 
 collection of agreements and covenants made necessary by 
 the changing circumstances of the times. So we shall see 
 that at the present day the lease is not only the conveyance 
 of an interest in the lands, but also of the nature of a con- 
 tract wherein is expressed the terms and conditions upon 
 which such interest is to be granted by the one party and 
 to be held by the other. 
 
 § 177. The ancient estate for years. — But as terms of 
 years are ofttimes met with at the present day which do not 
 partake of the nature of a contract,^ it may be well for us 
 examine somewhat into the nature of the ancient estate for 
 years. 
 
 § 178. Terms of years under the feudal system. — In 
 feudal times no estate less than a freehold could be granted. 
 
 iFor instance, bj^ devise in a will. 
 
§§ 179, 180.] ESTATES FOE YEARS. 'J ► 
 
 It was the custom, however, to allow one to go into posses 
 slon of lands on certain terms and conditions. But one ir. 
 such possession of lands had originally no means by which 
 he could protect his possession. For it was then the law 
 that " If a man make a deed of feoffment to another of cer- 
 tain lands and delivereth to him the deed, but not livery of 
 seisin, in this case he to whom the deed is made may enter 
 into the land and hold and occupy it at the will of him who 
 made the deed, but he who made the deed may put him out 
 when it pleaseth him." ' 
 
 § 179. At the common law. — Later, however, the action 
 of ejectment was given the grantee of such term, by means 
 of which he could recover the possession of his holding and 
 damages for the detention thereof.^ This action of eject- 
 ment was a species of the personal action of trespass, in which 
 damages were claimed by a tenant for a term of years com- 
 plaining of forcible ejection by another than the lessor from 
 the land demised. In favor of this mode of remedy the 
 courts determined that the plaintiff was entitled not only to 
 recover the damages claimed by the action, but should also, 
 by way of collateral and additional relief, recover possession 
 of the land itself for the term of years of which he had been 
 ousted.' And this action survives with various modifications 
 by statute to the present day.* 
 
 § 180. Development as an estate. — Thus the holding of 
 lands by mere possession and for a definite period of time 
 came gradually to assume the characteristics of an estate, 
 and for the purposes of the law are now to be considered as 
 such. The fact that these estates are now so numerous has 
 led to a prodigious amount of litigation and to innumerable 
 statutory provisions concerning their nature, creation and 
 the rights of parties thereunder. 
 
 1 Litt., sec. 70. * Stephen on Pleading (Andrews' 
 
 2Litt., sec. 740. ed.), 95 et seg. 
 
 3 Stephen on Pleading (Andrews' 
 ed.), 9i 
 
78 ESTATES LESS THAN FREEHOLD. [§§ 181-183. 
 
 § 181. Certain general principles still in force.— There 
 are, however, certain well established principles which in gen- 
 eral are still adhered to, and to these we shall now devote 
 some attention. And first, there must, in the creation of a 
 term of years, be specified not only a time when the term is 
 to end, but also a date must be fixed at which it shall begin. 
 And, differing from a freehold estate, this date for beginning 
 may be laid infuturo, since neither seisin nor livery thereof 
 are incidents of estates for years. But until the tenant enters 
 upon the lands designated in the instrument creating the terra 
 he has no estate, but only a right to have and hold the lands 
 for the term specified, and this right is called an interesse 
 termini} 
 
 § 182. Continued. — Again, though there appear no cer- 
 tainty of years in the lease, yet if by reference to a certainty 
 it may be made certain it will suffice.^ Thus, if A. lease land 
 to B. until the eldest son of B. shall arrive at the age of 
 twenty-one years, and such son is ten years old at the time 
 of the said letting, it will be a good lease, creating a term to 
 endure for fifteen years from its creation. 
 
 § 183. The estate as between lessor and lessee. — It is 
 the rule, founded on reasons of convenience and public policy 
 as well as upon the legal 'propositions hereinbefore set forth, 
 that a tenant cannot dispute the title of his landlord either 
 by setting up a title in himself or in another, during the 
 existence of the lease or tenancy. The principle of estoppel 
 applies in such case, and operates in full force to prevent the 
 violation of the contract under and by virtue of which the 
 tenant obtained and holds his possession.' And once a per- 
 son has become a tenant, so long as he remains in occupa- 
 tion of the land demised, he must be deemed to continue in 
 that character unless he has surrendered the possession to 
 the landlord. So if, after leasing the premises, the tenant 
 purchases another title or acquires rights adverse to those 
 
 1 Will. R. p. 86. 3 Blight's Lessee v. Rochester, 7 
 
 2 Co. Litt., sec. 45. Wheat. 535. 
 
■§§ 184-186.] ESTATES FOE TEAES. T9 
 
 of the landlord, he must surrender to the latter the posses- 
 sion of the property before he can assert them.^ 
 
 § 184-. Effect of fraud, etc. — But if the tenant is induced 
 by fraud or misrepresentation to accept the lease, or where 
 he accepts it because of mistake, or under duress, no estop- 
 pel arises.^ And where once the relation of landlord and 
 tenant is established by the act of the parties, it attaches to 
 All who may succeed to the possession through or under the 
 tenant, whether immediately or remotely, the succeeding 
 tenant being as much bound by the acts and admissions of 
 his predecessor as though they were his own. And hence 
 if a party succeeding a tenant purchase and enter upon the 
 premises under an absolute conveyance from the tenant, he 
 is deemed to have entered as the tenant of the landlord and 
 to hold the possession subject to all the duties and responsi- 
 bilities appertaining to that character. 
 
 § 185. Exception to rule. — The stuuent should be ap- 
 prised, however, that there are certain exceptions to this 
 rule, and that its doctrine applies only to the actual relation 
 of landlord and tenant as created by contract, and not to 
 tenancies arising by mere implication or construction of law,* 
 and must be confined to the title had at the time possession 
 is given.* 
 
 § 186. As to tenant's right of enjoyment, etc. — Tenant 
 for years has substantially the same rights and powers with 
 reference to enjoyment and alienation as those possessed by 
 tenant for life. But in the modern lease there are commonly 
 included many express covenants and agreements which 
 materially affect the rights of the parties thereto. The 
 nature of these covenants and agreements is circumscribed 
 only by the general law of contracts, and hence will not be 
 specially treated in this work. 
 
 1 Brown v. Geller, 33 111. 151, 83 ' James v. Patterson, 1 Swan, 
 
 Am. Dec. 258. 309, 55 Am. Deo. 737. 
 
 3 Miller v. McBorer, 14 S. & R. « McAusland v. Pundt, 1 Neb. 
 
 382; Shultz v. Ellioott, 11 Humph. 311, 93 Am. Deo. 858. 
 188. 
 
80 ESTATES LESS THAN FREEHOLD. [§§ 187-189. 
 
 § 187. Covenants.— Of the implied covenants, by which 
 are now indicated the several agreements that arise by im- 
 plication on the making of every contract of letting such as 
 we are considering, the covenant of quiet enjoyment run- 
 ning to the tenant deserves especial mention. Under it the 
 landlord is bound to do, or suffer to be done, no act the 
 consequences of which will be to materially affect the rights 
 of the tenant in the enjoyment of his holding. Out of this 
 rule has grown the doctrine of eviction. This word was 
 formerly used to denote an expulsion by the assertion of a 
 paramount title and by process of law. But that sort of 
 an eviction is not now necessary to justify the tenant in de- 
 claring the term at an end and refusing longer to be bound 
 by the terms thereof. Nor indeed is an actual physical ex- 
 pulsion longer requisite to protect the tenant in abandon- 
 ing the term, for it is now held that any material interfer- 
 ence on the part of the landlord with the tenant's beneficial 
 enjoyment of the demised premises will amount to an evic- 
 tion in law.^ 
 
 § 188. Eviction. — But it should be clearly understood 
 that, to constitute an eviction in law, the act of the landlord 
 must be so treated by the tenant, and the term declared 
 ended by the latter either expressly or by his abandonment 
 .thereof. For even though the landlord were guilty of acts 
 amounting to an eviction, yet if tenant fail to treat the 
 acts as such and remain in the premises, he will still be 
 bound by the covenants in the lease. 
 
 § 189. Power to under-lease. — In the absence of a cove- 
 nant to the contrary, a tenant for years may make an under- 
 lease for any part of his term; so any assignment for less 
 than the whole term is in effect an under-lease. Every sub- 
 lessee is tenant to the original lessee, and not to the original 
 lessor, until attornment has been had; for the derivative 
 term is not an estate in the interest originally granted, but 
 is a new and distinct term for a different period of time.^ 
 
 IHoeveler v. Fleming, 91 Pa. St. 332. 2 Will R. P. 407. 
 
§§ 190-192.] ESTATES FOK YEARS. 81 
 
 § 190. Assignment. — The rule is that any assurance pur- 
 porting to be an under-lease, but which comprises the whole 
 term, is in effect an assignment and not an under-letting. 
 This results by operation of law, without regard to the par- 
 ticular form of the instrument.^ An under-lease is there- 
 fore to be distinguished from an assignment of the term by 
 the fact that in the former there is always reserved a rever- 
 sion in the lessor.^ The importance of the distinction be- 
 tween an under-letting and an assignment of a term lies in 
 the fact that if it be the former no privity of contract ex- 
 ists between the original lessor and the sub-lessee, while in 
 the latter the assignee becomes tenant of the original les- 
 sor.' 
 
 §191. Definition of modern lease.— A lease is defined 
 to be a contract by which one person divests himself of, 
 and another takes the possession of, lands or tenements for 
 a certain term.* Its effect as a matter of law is to convey, 
 upon certain terms and conditions, an interest in real prop- 
 erty. No precise form of words is necessary to a transfer 
 of this nature. While, strictly speaking, a lease is an in- 
 denture, yet, if the writing be signed by one party and 
 acted upon by the other, its terms will be binding upon 
 both.' A lease is distinguished from a license by the fact 
 that it confers the sole right to possession upon the lessee.* 
 
 §192. Creditors' riglits. — Leasehold interests, in com- 
 mon with all other personal property, are subject to invol- 
 untary alienation for payment of debts, and the interest of 
 either lessor or lessee may be so taken. Tenant for years 
 takes and holds subject to the exercise of the power of emi- 
 nent domain, and a taking under such power does not 
 
 iWill. R.P. 406; Craig v. Sum- < Wood, Landlord & Tenant, sec. 
 
 mons, 15 L. R. A. 336. 203. 
 
 2 Sexton V. Chicago Storage Co., 5 Alcorn v. Morgan, 77 Ind. 184. 
 129 111. 337. ^ Haywood v. Fulmer, 18 L. R. A. 
 
 3 Salisbury v. Shirley, 66 Cal. 325 ; 490. 
 Thomas v. Connell, 5 Pa. St. 18. 
 
 6 
 
S2 ESTATES LESS THAN FKEEHOLD. [§§ 193-196. 
 
 amount to an eviction, nor in itself absolve tenant from 
 payment of rent.' 
 
 § 193. Effect of destruction of premises. — As a general 
 proposition, the destruction of the premises, either in whole 
 or in part, by any act other than that of the lessor, will not 
 relieve the lessee from paj'ment of rent'for the term.^ The 
 reason of this rule lies in the fact that the lessee is regarded 
 in the law as the owner of an interest or estate in the prem- 
 ises, and so if they be destroyed the loss must fall upon him.' 
 
 § 194. Importance of distinction betv/een surrender and 
 forfeiture. — The distinction between a surrender and a for- 
 feiture becomes important from the fact that, where a land- 
 lord elects to accept a surrender of the lease, he takes back 
 the premises subject to liens existing at the time against the 
 estate of the lessee. A written lease, even if under seal, may 
 be surrendered by parol or by an agreement, either express 
 or inferable from the conduct of the parties. Thus, an offer 
 by lessee to surrender, followed by the taking of possession 
 by the lessor, amounts to a surrender and acceptance thereof. 
 
 § 195. Effect of breach. — Upon a breach of conditions 
 on the part of the lessee, the lease continues valid until the 
 lessor evidences his intention to avoid it. But after breach 
 of such conditions it is of course void so far as the rights of 
 the lessee are concerned. And under such circumstances, if 
 the lessor by deed or act affirms the lease, the rights and 
 obligations of both parties will continue as if no such breach 
 had been suffered. 
 
 § 196. Right to declare a forfeiture. — Forfeitures, not 
 being favored either at law or in equity, are alwajj^s strictly 
 construed.* And the right to declare a forfeiture must be 
 expressly and distinctly reserved. But where the term is 
 created by an instrument in writing and the date for its end- 
 
 iFoote V. Cincinnati, 11 Ohio, 'Changed by statute in many 
 
 408, 38 Am. Dec. 737; Dyer v. states; also frequently by stipula- 
 
 Wrightman, 66 Pa. St. 435. tion in the lease. 
 
 2 Warren v. Wagner, 75 Ala. 188, * Westmoreland, etc. Gas Co. v. 
 
 .51 Am. E. 446. Dewitt, 5 L. R. A. 731. 
 
§§ 197-200.J ESTATES FOE YEAKS. 83 
 
 iag is specified therein, the lessee will be entitled to no fur- 
 ther or other notice in order to render him guilty of holding 
 over. 
 
 § 197. Changes made by statutes, etc. — The modern 
 laws, both by statute and precedent, having, as we have 
 seen, made so many changes of importance in regard to 
 estates for years, it would hardly be advisable to take leave 
 of this subject without giving some attention to the more 
 radical of such alterations. 
 
 § 198. Continued. — Thus, at the present day, where a 
 parol lease is made, but not in writing, fixing the amount of 
 rent and the time of its payment, and fixing the term at a 
 greater period than one year, and the tenant enters there- 
 under and makes monthly payments of rent, a tenancy from 
 month to month is created, though the agreement itself is 
 clearly within the statute of frauds ; the modern rule being 
 that the agreement will govern in every respect except as 
 to the length of time.^ 
 
 § 199. Continued. — A similar rule applies where a person 
 goes into possession under a lease void for a longer period 
 than one year, and remains in possession with consent of 
 the landlord for more than one year, under circumstances 
 permitting the inference of his tenancy from year to year; 
 and in such case the landlord may treat him as such a ten- 
 ant, and the latter could not relieve himself from liability 
 for rent up to the end of the current year.^ 
 
 § 200. Continued. — "What amounts to an eviction has 
 already been explained, and it has been shown that now it 
 is no longer necessary, as formerly, that there should be 
 actual physical expulsion, but that any acts of the landlord 
 of a grave and permanent character which amount to a clear 
 indication of intention on the landlord's part to deprive the 
 tenant of the enjoyment of the premises in any material 
 degree will constitute an eviction. But even after such 
 
 1 Browne, St. of Fr., sec. 39; Mars Barlow v. Wainwright, 23 Vt. 88, 
 V. Ray, 151 111. 340, 26 L. R, A. 799. 52 Am. Dec. 79. 
 2Condict V. Cohn, 118 N. Y. 309; 
 
84 ESTATES LESS THAN EEEEHOLD. [§§ 201-205. 
 
 acts have been committed, if the tenant still remain in pos- 
 session of the premises his obligation to pay rent remains. 
 Tenant, therefore, cannot remain in possession and defend 
 the landlord's claim for rent on the ground of an eviction, 
 either actual or constructive.' 
 
 §201. Continued. — At common law, though the leased 
 premises were destroyed by lire, or by the act of God or 
 the public enemy, the tenant was, nevertheless, obliged to 
 pay rent. But by statute and precedent this rule has been 
 very generally abrogated, and the custom also very gener- 
 ally obtains of inserting a clause in the lease protecting the 
 rights of both lessor and lessee in this regard.^ 
 
 § 203. Continued. — "When rent is made payable quarterly 
 or at other stated intervals in advance, the tenant has the 
 whole of the first day of each succeeding interval in which 
 to pay it, for the law recognizes no division of a day in this 
 regard.' In the absence of special custom in the locality in 
 which the premises are situated, and of any contract as to 
 the time when the rent is to be payable, it is not due until 
 the expiration of the term.^ 
 
 § 203. Rental upon shares. — Though the rent is to be 
 paid by a portion of the crop, lessor and lessee are not ten- 
 ants in common of the crop, the title thereto being in the 
 tenant. Whether, however, the relation of landlord and 
 tenant exist between the parties, or they are tenants in com- 
 mon as to the crop, is a question of intention.^ 
 
 § 204. Merger. — It is a general principle that where, be- 
 fore the expiration of the term, tenant obtains the fee of the 
 premises, the rent for the remainder of the term will be ex- 
 tinguished.* 
 
 § 205. Use and occupation. — No action for rent eo nom- 
 ine can be maintained unless the conventional relation of 
 
 1 Chicago L. News Co. v. Browne, < Dixon v. Nioolls, 39 111. 373, 89 
 103 111. 470, 74 Am. Deo. 108. Am. Dea 313. 
 
 2 See Stiinson, Am. Stat. Law ' AUwood v. Ruokman, 31 111. 200. 
 (Title " Estates for Years "), for " Martin v. Seavy, 8 Stin. 50, N. 
 such statutes. A. D. 64, 
 
 3 Sherlock v. Thayer, 4 Mich. 355, 
 66 Am. Dec. 539. 
 
§ 206.] ESTATES FOE TEAE8. 85 
 
 landlord and tenant exists. But it was long ago established 
 that where there was no agreement for rent, the landlord 
 might recover a reasonable satisfaction in an action for use 
 and occupation, and such action is in the nature of assumj)- 
 sit on an express or implied contract.' 
 
 § 206. Distress. — The old common-law remedy of dis- 
 tress has been abolished in many of the states, and where it 
 exists at all it has been greatly modified by statute. Mr. 
 Taylor says: "In modern times the whole policy of the law 
 respecting distress has been changed, and a distress for rent 
 is now no more than a mere summary method of seizing and 
 selling the tenant's property to satisfy the rent which he 
 owes." ^ The remedy being so largely regulated by statute 
 in all its essential particulars, a further discussion of it here 
 would be inopportune and no doubt without profit. The 
 student is therefore referred to the statutes of the different 
 states for the determination of the various questions arising 
 on this head between the parties to an estate for years. 
 
 1 Fittswald v. Beebe, 7 Ark. 305, 2 Taylor, Landlord and Tenant, 
 46 Am. Dec. 385. sec. 557. 
 
OHAPTEE Vin. 
 
 TENANCY FROM YEAR TO YEAR, AT WILL, AND AT SUFFER- 
 ANCE. 
 
 § 207. From year to year. 
 
 208. Continued. 
 
 209. Holding over. 
 
 210. Tenancy at will. 
 
 211. Continued. 
 
 218. How regarded In some states. 
 
 213. Entry under agreement for lease. 
 
 214. Tenancies at will not favored in the law, 
 
 215. Effect of Intention of parties. 
 
 216. Emblements in estates at will. 
 
 217. Notice to quit. 
 
 218. How tenancy terminated. 
 
 219. Tenancy at sufferance. 
 
 220. Continued. 
 
 221. Definition and incidents. 
 
 § 207. From year to year. — "When a lessee continues to 
 occupy the premises after the expiration of the time limited 
 in the contract of letting, the terms on which he continues 
 so to hold are matters of evidence rather than of law.^ It 
 was held at an early date that a general occupation was an 
 occupation from year to year, and it has been declared to be 
 the settled law that whenever the relation of landlord and 
 tenant exists without any limitation as to the duration of 
 the term, such tenancy shall be one from year to year.'' 
 
 § 208. Continued. — But though every occupation under 
 the above circumstances h prima facie regarded as a ten- 
 ancy from year to year, yet in such case it may be shown 
 that it is in fact one at will, or one to be determined on the 
 
 iNager, etc. v. Tyler, 81 Q. B. 95, 2 Doe d. Martin v. Walls, 7 T. R. 
 3 Gray's Cases, 429. 83. 
 
§§ 209-211. J TENANCY FEOM YEAK TO YEAE, ETC. 87 
 
 happening of some event agreed upon by the parties, either 
 expressly or by implication.^ 
 
 § 209. Holding over. — It is important to note in this, 
 connection that where a tenant holds over without any new 
 agreement he impliedly holds subject to all the covenants in 
 his lease, and the law imposes upon him those terms which 
 are found in the contract which has expired.^ Again, a 
 tenancy from year to year is not terminated by the death 
 of the tenant, but devolves upon his personal representa- 
 tives.' But where a tenant holds over, even for a long 
 space of time, without paying rent, and without the consent 
 of the landlord, he will be but tenant at sufferance, and a 
 demand for rent made upon him by the landlord at the end 
 of the period of his holding will not convert his tenancy 
 into one from year to year.* To sum up, then, we may prop- 
 erly conclude that a tenancy from year to year may be dis- 
 tinguished from the conventional term of years by the fact 
 that in a tenancy from year to year the duration of the 
 term is not limited by agreement of the parties.^ 
 
 § 210. At will. — A tenancy at will arises when a person 
 lets land Or premises to another to be holden at the will of 
 the lessor; that is, for so long as the lessor may permit the 
 holding to continue. But a leasehold estate which is upon 
 the will of one party is equally at the will of the other ; and 
 as the tenant at will may be turned out when the lessor 
 pleases, so also may the tenant quit the premises when he 
 likes, though neither party is permitted to exercise his pleas- 
 ure in a manner contrary to equity and good faith.^ 
 
 § 211. Continued.— A tenancy at will may be created 
 either by parol or by deed. Under the statute of frauds, as 
 enacted in most of the states, a lease by parol for a term 
 
 1 Stedman v. Mcintosh, 4 Ired. L. ^ Ketchen v. Pridgen, 3 Jones' L. 
 291, 48 Am. Deo. 132. 49, 64 Am. Dec. 593. 
 
 2 Vroman v. McKaig, 4 Md. 450, ^ Co. Litt. 55a; 4 Kent's Com. 
 59 Am. Deo. 85. Ill ; Knight v. Ind. etc. Co., 47 Ind. 
 
 8 Doe V. Porter, 3 T. R. 13. 105, 17 Am. R. 693. 
 
 * Condon v. Barr, 47 N. J. L. 113, 
 54 Am. R. 121. 
 
88 ESTATES LESS THAN FREEHOLD. [§§ 212-216. 
 
 longer than one year is ineffectual to vest any term what- 
 ever in the lessee, and when he goes into possession under 
 it, with the consent of the lessor and without any further 
 agreement, he is considered a tenant at will, merely subject 
 to pay the stipulated rent money as for use and occupation. 
 
 § 212. How regarded in various states. — In some states 
 every tenancy or occupation is considered a tenancy at will 
 until the contrary is shown. In others such an occupation 
 without the owner's knowledge or consent would be a tres- 
 pass. In still other jurisdictions it is regarded as a tenancy 
 at sufferance, and quite generally as a tenancy from year to 
 year. 
 
 § 313. Entry under an agreement for lease.^ Where 
 one enters under a written agreement for a lease which he 
 afterwards refuses to accept, or under a contract to purchase 
 which he fails to perform, he will become a tenant at will.' 
 
 § 214. Tenancies at will not favored in tlie law. — Leases 
 creating tenancies at will, being inconvenient to both parties, 
 are rarely met. And the courts have established the rule 
 that if a lease be made generally, providing for an annual 
 rental, whether the same be payable in instalments or not, 
 without an express statement that it is at will, a tenancy 
 from year to year will be created.^ 
 
 § 215. Effect of intention of the parties. — But notwith- 
 standing the rule just above announced, and even in a case 
 where the rent is reserved annually for an indeterminate 
 period, regard will be had to the intention of the parties, 
 and if it appear that a tenancy at will was intended it will 
 be so construed.' 
 
 § 216. Emblements. — If tenant at will be turned out 
 by the landlord he is allowed to reap what he has sown ; 
 that is to say, he is allowed emblements.* But tenant at will 
 is not answerable for mere permissive waste.* 
 
 1 Weed V. Linsley, 88 Ga. 686; Doe « Doe d. Bristow v. Cox, 11 Q. B. 
 d. Tomes v. Chamberlaine, 5 M. & 123, 3 Gray's Cases, 433. 
 
 W. 14, 8 Gray's Cases, 425. * Ellis v. Paige, 1 Pick. 43, 3 Gray's 
 
 2 Doe d. Bristow v. Cox, 11 Q. B. Cases, 441. 
 
 122; Co. Litt. 55a, note 3. 6 Harnett v. Maitland, 15 M. & W. 
 
 257. 
 
§§ 217-25i0.] TENANCY FROM YEAE TO YEAE, ETC. 89 
 
 § 217. Notice to quit. — In cases where the evidence 
 shows no intention of creating a tenancy at will, the courts, 
 as we have seen, construed such a tenancy to be one from 
 year to year; and so it came to be required that in such cases 
 the tenant should have for his protection a reasonable notice 
 to quit the holding in order " that no sudden determination 
 of the estate by the caprice of the lessor should immediately 
 dispossess him." ^ The length of time specified to be given 
 is generally regulated by statute in the various states. 
 
 § 218. How tenancy terminated.— A tenancy at will may 
 be terminated by demand, by entry, or by any act inconsist- 
 ent with the duration of the tenancy ; as, for instance, by the 
 death of the tenant, an assignment of the landlord's interest, 
 or by a sale of the land. As we have seen, at common law 
 no notice to quit was necessary. There may be either an 
 express ouster or an implied one, and in either case the act 
 of the landlord will effect a termination of this sort of ten- 
 ancy ; for in this as in other respects there is no distinction 
 between a tenancy at will expressly created and one created 
 by circumstances or by operation of law.^ 
 
 § 219. Tenancy at sufferance. — A tenancy at sufferance 
 is the least in importance of the estates less than freehold, 
 and always arises from implication and not by special or 
 express agreement.' A tenant at sufferance has merely a 
 naked possession and stands in no privity with the landlord. 
 Such tenancies arise out of a variety of transactions and cir- 
 cumstances. As, for instance, where a lease is for a definite 
 term, and after its expiration the tenant holds over while 
 negotiations are pending for a new lease, he is strictly at 
 sufferance.* So where, pending a contract of purchase, one 
 takes a lease for a month and then holds over.' 
 
 § 220. Continued. — At common law tenant at sufferance 
 was not liable for rent. But now it seems the general rule, 
 
 ijackson d. Livingstone v.Bryan, ' Alpine,etc.Sch. Dist. v. Batsche, 
 1 Johns. 323, 3 Gray's Cases, 413. 29 L. R A. 576. 
 
 2 West etc. TeL Co. v. Fain, 53 < Williams v. Laidlaw, 171 Pa. St. 
 Oa. 18. 369. 
 
 •Moore v. Smith, 56 N. J. L. 446. 
 
90 ESTATES LESS THAN EEEEHOLD. [§ 321- 
 
 that he is held for use and occupation for such time as the 
 landlord does not elect to treat him as a trespasser. As w& 
 have seen heretofore, this is not technically an action for 
 rent, which is always the subject of special agreement. Ten- 
 ant at sufferance, being entitled to no notice to quit,' is com- 
 pelled to give none, and so may abandon the premises at his 
 pleasure. In some states, however, the statutes have prac- 
 tically given to this estate the attributes of an estate or ten-^ 
 ancy at will, and in such states notice is required. 
 
 § 221. Definition and incidents. — A tenancy at suffer- 
 ance may be defined to be that estate or interest which arises 
 where a person who has originally come into possession of 
 lands by lawful title holds such possession without right 
 after his title has determined.'^ It has been said that this- 
 sort of tenancy seems to have arisen out of a desire on the- 
 part of the courts to prevent the condition of adverse pos- 
 session between the parties when a particular estate deter- 
 mined without the knowledge of the person entitled to the- 
 reversion.' Such interests, estates or tenancies have, very 
 generally, been greatly modified by statute, and have lost 
 their importance to a large extent. A further consideration 
 of them would therefore be of little profit to the student. 
 
 1 Ibid. 3 Eonse's Case, Tudor's Leading, 
 
 2 Will. R. P. 390. Cases, R P. 9. 
 
OHAPTEE IX. 
 
 JOINT ESTATEa 
 
 i 
 
 § 233. Their nature. 
 
 333. Joint tenancies. 
 
 334. At the early law. 
 235. In the modern law. 
 
 336. The four unities. 
 
 337. Can take only as purchasera 
 
 338. May exist in any estate. 
 
 339. No ouster by covenant. 
 230. Tenancies in common. 
 331. In the modern law. 
 333. How created. 
 
 333. No unity of interest necessary. 
 
 234. As to seisin. 
 
 235. The operative words. 
 
 236. No actual disseisin necessary. 
 337. Tenants' rights as to each other. 
 388. Subject to marital estates. 
 
 239. How destroyed or terminated. 
 
 340. Coparcenary. 
 
 341. Its incidents. 
 
 243. Standing in our law. 
 
 343. Tenancy by entireties. 
 
 344. Powers of tenants. 
 
 345. Standing in our law. 
 246. Termination. 
 
 §232. Their nature. — We have already learned that 
 two or more persons may have different estates in the same 
 lands at the same time. We are now to observe that dif- 
 ferent persons may have the same estate in lands at one 
 and the same time. In such case the persons having such 
 estates are said to hold either as joint jenants, tenants in 
 common, as coparceners, or by entireties; for it is the law 
 that with respect to the number and connection of the own- 
 ers of real estate, lands and tenements niay be held in five 
 
92 JOINT ESTATES. [§§ 223, 224. 
 
 different ways — the four above mentioned, together with 
 the earlier explained manner of holding alone, or, as it is 
 of ttimes termed, in severalty.^ 
 
 §223. Joint tenancies. — A joint tenancy arises where 
 two or more persons, at the same time, by the same title, 
 and taking each the same interest, enter into the posses- 
 sion of lands. This sort of tenancy is further distinguished 
 by what is known as the right of survivorship.^ 
 
 § 221. At the early law. — Joint tenancy was greatly 
 favored in the more ancient law of England, and formerly 
 in every instance where lands were conveyed to two or more 
 persons, without specific designation as to how they should 
 hold the same, they were held to take as joint tenants; that 
 is to say, they .so held unless the gift or conveyance espe- 
 cially set forth that some estate other than a joint tenancy 
 should be thereby created. "For," says Mr. Cruise, "the 
 law M'ill interpret a grant of this kind so as to make all its 
 parts take effect, which can only be done by creating an 
 equal interest in all who take under it."' The reason for 
 this ruling is to be found in those provisions of the feudal 
 system which tended to restrict free alienation. By the ex- 
 pression " the right of survivorship " is meant that upon the 
 death of one of the tenants his interest passes not to his 
 heirs, but to his surviving co-tenants, and so on until but one 
 of such tenants remains, whereupon the entire estate vests 
 in such survivor, and at his death in his heirs.* So long 
 as two or more tenants were in being, each and every such 
 tenant had but a sort of estate for life, and so could con- 
 vey no fee unless by joining the others with him, aiid 
 thus in joint tenancies the power of free alienation was re- 
 stricted.' 
 
 1 There is an apparent exception 23 git. Cora. 180; 4 Kent, Com. 
 to this rule where property is held 361. 
 
 jointly for trade purposes, i e., in 'Greenl. Cruise, Dig., oh. "Joint 
 a partnership, especially as to sur- Tenancies." 
 vivorship. * 1 Washb. Real Prop. 643. 
 
 6 Co. Litt.273b. 
 
§g 225-227.] JOINT ESTATES. 93 
 
 § a25. In the modern law. — But our modern law, in ac- 
 cord with its policy of free and unrestricted alienation, looks 
 with disfavor upon tenancies of this nature, and especially 
 disaffirms therein the incident of survivorship. Indeed, to 
 such an extent has this doctrine been carried, that at the 
 present day these tenancies with their attendant incidents 
 have been abolished either by legislation or precedent, or 
 both, in nearly all of the states of the Union.^ ISTotwith- 
 standing this fact, however, their study is still of importance 
 to the student, not only by reason of their historical value, 
 but for the reason that without an understanding of their 
 nature he could not determine what had or what had not a 
 place in our present law. 
 
 § 226. The four unities. — Joint tenancies are said in 
 every case to require the " four unities," viz. : time, title, 
 interest, and possession. By which is meant that in order to 
 the creation and duration of such a tenancy each tenant 
 (1) must have acquired his rights at the same time and by the 
 same gift or conveyance; (2) that each and every tenant must 
 derive his title from the same source, that is, from the same 
 person or persons; (3) that the estate or interest taken by 
 each tenant must be identical in point of duration or quan- 
 tity with that of the others; and (4) that all the tenants 
 must not only come into possession at one and the same 
 time, but that they must be seized not in severalty but per 
 my et per tout; that is, each of them has the entire possession 
 as well of every part as of the whole, constituting, so to 
 speak, a sort of joint seisin. Any joint estate lacking in 
 these essentials as a whole cannot be a joint tenancy. 
 
 § 227. Can take only as purchasers. — Joint tenants can 
 take only as purchasers — never by the mere act of law; for 
 the law casts the burden of the estate upon the heirs with 
 the implication that it is to be to them and to their heirs, 
 
 iSee 1 Washb. Eeal Prop. 644, tenancy in common. But in many- 
 note. In most of the states a gift states joint tenancy will be upheld 
 to several persons jointly, except if properly limited. This is the 
 to them as trustees, will create a rule, for instance, in Illinois. 
 
94: JOINT ESTATES. [§§ 228, 229. 
 
 thus excluding the idea of survivorship.^ Nor can artificial 
 persons (corporations) take such an estate or become joint 
 tenants with natural persons.^ Under the common law hus- 
 band and wife could not take in joint tenancy; the identity 
 of the wife being merged in that of the husband, they were 
 in contemplation of law but one person. But since the al- 
 most universal passage of acts whereby the wife is given a 
 separate and distinct status in the law from that of the hus- 
 band, it is evident that the reason for this rule, together with 
 the rule itself, have ceased to exist. 
 
 § 228, May exist in any estate. — So far as quality and 
 quantity are concerned, any legal estate may be granted to 
 be taken in joint tenancy. Thus, we may have joint ten- 
 ants in an estate in fee simple, for life, for years, etc. The 
 words generally made use of in limiting an estate of the 
 kind under consideration are, "to have and to hold unto 
 them, and each of them, as joint tenants, with the right of 
 survivorship." It is here to be borne in mind that at the 
 present day a gift or conveyance made to two or more per- 
 sons, without words designating how they are to hold, will, 
 even in those jurisdictions where joint tenancies are per- 
 mitted, confer upon such persons a tenancy in common.' 
 The most usual instance of joint tenancies at the present 
 day occurs where real property is conveyed to two or more 
 persons to be holden by them as joint trustees, in which 
 case, upon the death of one, the estate vests in those who 
 survive him.* 
 
 § 229. No ouster by co-tenant.^ One joint tenant cannot 
 be disseised or ousted by his co-tenants, because, as has been 
 seen, the possession of one is that of ail, and of all that of 
 one. But such a tenancy may be destroyed by the severance 
 or discontinuance of any one of the four unities except that 
 
 12 Washb. Real Prop. 643. words when the estate in question 
 
 2 Corporations having perpetual is desired to be created. 
 
 succession, there could be no sur- * Parson v. Boyd, 20 Ala. 112; 
 
 vivOrship. Kennedy's Appeal, 6 Pa. St. 511; 
 
 ^Henoethenecessity of technical Miles v. Fisher, 10 Ohio, 1. 
 
§§ 230-233.] JOINT ESTATES. 95 
 
 of time. So if alienation be made by one tenant to a stranger, 
 the joint tenancy will come to an end, for the unity of title 
 is no longer observed. So, also, the tenancy may be deter- 
 mined by the several tenants joining in a deed to a stranger, 
 or by all of them conveying by release to one of their own 
 number. Partition,^ which is a proceeding in court for the 
 equitable division of joint estates, may be had in the case of 
 joint tenancies, and the decree or judgment of the court 
 therein, allotting to each tenant his just share of the lands or 
 of the .proceeds of a sale thereof, will of course put an end 
 to the joint tenancy. 
 
 § 230. Tenancies in common. — "Where lands are holden 
 by two or more persons with unity of possession only, such 
 persons are said to be tenants in common thereof, and right 
 ■of survivorship is not an incident of tenancies of this sort.^ 
 
 § 231. In the modern law. — At the early law, in every 
 joint estate where the " four unities " were observed, a joint 
 tenancy resulted. But such is not now the case, and hence, 
 though the unities may all be present, the law construes the 
 holding to be a tenancy in common, unless there be some 
 specific words in the limitation sufficient to create a joint 
 tenancy. So if gift or conveyance be made to two or more 
 persons, and no direction made therein as to how they shall 
 hold the lands, they will take the same as tenants in com- 
 mon.' 
 
 §232. How created. — Tenancies in common may arise 
 either by descent or purchase, and are the most usual of the 
 joint estates. In point of fact they have very generall^'^ suc- 
 ceeded all other forms of joint holding. 
 
 § 233. No unity of interest necessary. — In a tenancy of 
 this nature, one tenant may hold a fee, another an estate 
 for life, for years, etc., for there need be no unity of interest. 
 So one tenant may have held his interest for a long period 
 
 1 The proceedings for partition 3 4 Kent's Com. 367; Churcli v. 
 are regulated by statute in the va- Church, 15 R. I. 138; Heisky v. 
 rious states. Clark, 35 Ark. 17, 37 Am. R. 1. 
 
 2 3 Blk. Com. 191. 
 
96 jomx ESTATES. [§§ 234-236. 
 
 of years, while another may have come in but yesterday, as 
 the unity of time is not essential. Again, one may hold as 
 a purchaser and another by descent, or all may hold as pur- 
 chasers of different persons, or by descent from several an- 
 cestors, since the unity of title is not a requisite.' 
 
 § 234. As to seisin. — Furthermore, the seisin of tenants 
 in common is in reality in severalty ; that is to say, each ten- 
 ant is of himself seised of an undivided interest in all the 
 lands so held. And he has not merely a sort of life estate, 
 as in joint tenancy, but an interest which he may convey, 
 and so invest a stranger with the entire interest which 
 he may have, and in so doing will not destroy the tenancy 
 in common, but simply put another in his place and stead. 
 For example, if A., tenant in common with B. and C, should 
 alienate to D., D. would come into the interest or estate 
 theretofore held by A., and the rights and interests of B. 
 and C. would in nowise be affected. 
 
 § 235. The operative words. — The words generally made 
 use of to create a tenancy in common are, "to have and to 
 hold an undivided interest (stating the nature of the interest 
 or estate to be taken) as tenant in common with (here in- 
 serting the names of the other tenants)." But, as has been 
 above remarked, a gift or conveyance simply to A. and B. 
 without specification as to their manner of holding, will give 
 rise to a tenancy in common. So if one seised of an estate 
 of freehold, or possessed of a lesser estate, dies intestate, his 
 heirs (if there be more than one) will take such estate as 
 tenants in common. 
 
 § 236. No actual disseisin necessary. — Though the seisin 
 of each tenant is several, yet his possession and seisin is for 
 many purposes that of all the tenants; for he can have no 
 possession or seisin adverse to his co-tenants, as it is all in 
 support of their common title.^ But yet one tenant in com- 
 mon may disseise another, as, for instance, by preventing him 
 from entering upon the land, and in such event the wronged 
 
 1 1 Preston on Estates, 139. lin v. Kidder, 7 Vt. 13; Mills v 
 
 2 Brown v. Hogle, 30 111. 119; Cat- Roof, 121 Ind. 360. 
 
§§ 237-239.] JOINT ESTATES. 97 
 
 person would be entitled to his action of ejectment. But it 
 is not to be understood that an actual ouster vi et armis is 
 contemplated in this regard, for it is held that actual posses- 
 sion by one tenant, with denial of right as to the others for a 
 long space of years, will be sufficient evidence from which 
 a jur}'- may say that there was an actual ouster.^ 
 
 § 237. Tenants' rights as to each other. — If in any case 
 one tenant shall appropriate to himself the rents and profits 
 of the entire holding, or shall commit waste, or shall destroy 
 the value of the interests of his companions, such tenant 
 shall be liable in an action by the injured ones to account 
 to them for such loss or damage as they may severally sus- 
 tain by reason of such wrongful acts. The form of such ac- 
 tions will generally vary with the jurisdiction ; at the common 
 law an action of account would lie in the first case, an ac- 
 tion of trespass on the case in the second, and an action of 
 trespass in the third.^ So one tenant in common may main- 
 tain trespass against a stranger for acts committed resulting 
 in injury to the estate as a whole.' 
 
 § 238. Subject to marital estates. — Tenants in common 
 who are seized of estates of inheritance, as is ofttiraes the 
 case, hold the same subject to the marital estates of dower 
 and courtesy ; and in the case of lands held in partnership, 
 unless the same are purchased with the funds and for the 
 benefit of the enterprise, the rule in general makes them 
 subject to the same estates. 
 
 § 239. How destroyed or terminated. — Tenancies in 
 common may be destroyed or terminated in several differ- 
 ent ways. It may be done by a partition, either voluntary 
 or by proceeding in court. When voluntary it is accom- 
 plished by the interchange of deeds among the co-tenants, 
 by means of which each becomes seised or possessed of his 
 individual share freed from the rights or claims of the oth- 
 
 1 Richards v. Richards, 75 Mich, subjects, Woolley v. Schrader, 116 
 408; Owen v. Morton, 24 Cal. 327. 111. 29. 
 
 2 Bowen v. Swander, 121 Ind. 164. 3 Voss v. King, 33 W. Va. 286. 
 See also for discussion of kindred 
 
 7 
 
yS JOINT ESTATES. [§§ 240-243. 
 
 ers. The proceeding in court leads to the same result in 
 general, and is regulated in its details by statute in the vari- 
 ous states. Another method of ending the tenancy in com- 
 mon is for each tenant to join in a conveyance to a stranger, 
 or for the others to make gift to one of their number. The 
 result is the same whatever mode of procedure is followed, 
 and in each case the tenancy in common is destroyed.' 
 
 § 240. Coparcenary. — An estate in coparcenary arises 
 where a person seised of lands and tenements in fee or in 
 tail dies, leaving only female heirs, in which case the estate 
 descends to such heirs jointly. They are then said to hold 
 ip coparcenary, and to make but one heir to their ancestor. 
 
 § 241. Its incidents. — The incidents of this estate are in 
 many respects identical with those of joint tenancy. There 
 ■ave present the unities of title, interest, and possession, that 
 •of time alone being unessential. But coparceners always 
 take by descent, whereas joint tenants always come in by 
 purchase. Nor does the right of survivorship attach to an 
 estate in coparcenar}?-, because each tenant is entitled to the 
 whole of a distinct moiety, and the interest of each descends 
 severally to his heirs, though the unity of possession con- 
 tinues. In all other material respects these estates do not 
 differ from the other joint estates which we have just been 
 considering. 
 
 §242. Standing in our law. — But brief space is here 
 allotted to the study of estates in coparcenary for the reason 
 that they have never gained great standing in our countr3^ 
 For, as lands here descend to all the children equally, there 
 ■can be no substantial difference between coparceners and 
 tenants in common ; and hence when there are circumstances 
 which in the English law would give rise to an estate in co- 
 parcenary, it is with us determined by the law to be a ten- 
 ancy in common.^ 
 
 § 243. Tenancy by entireties.— The final one of the joint 
 •estates which we shall consider is that of tenancy by en- 
 
 1 3 Blk. Com. 194, 2 Kent's Com. 367; Bishop v. Mo- 
 
 Clernand's Ex'rs, 16 Atl. R. 1. 
 
§§ 244-246.] JOINT ESTATES. 99 
 
 tireties, which is created by the grant of an estate in fee to 
 a man and his wife. Under such circumstances, they are 
 neither joint tenants nor tenants in common ; for, being con- 
 sidered (at the common law) as but one person, they cannot 
 take the estate by moieties, but both are seised of the en- 
 tirety, and consequently the name of this estate.^ 
 
 §244. Powers of tenants. — Neither the husband nor 
 wife can dispose of any part of the holding without the as- 
 sent of the other, since each is seised of the whole, and it 
 must, therefore, remain to the survivor. For the same rea- 
 son they are not compellable to make partition.^ 
 
 § 245. Standing in our law. — Tenancy by entirety has 
 been generally recognized in the United States as one of the 
 common-law incidents of marriage, and still exists wher- 
 ever it has not been expressly or impliedly abrogated by 
 statute. But in many of the states it has been held that 
 the married woman's acts, having destroyed the common- 
 law unity of husband and wife, have, therefore, practically 
 abolished the estate by entirety.' It is sufficient, however, 
 to give the subject importance, that we bear in mind that 
 the estate is still recognized in many of the states of our 
 Union. 
 
 § 246. Termination. — So long as both tenants live, ex- 
 cept, of course, by their joint conveyance, there is no method 
 of terminating this estate unless it be, as generally held, that 
 an absolute divorce will produce that result.* 
 
 1 1 Preston on Estates, 131. ^ Harrer v. Wallner, 80 111. 197. 
 
 2 2 Blk. Com. 182, n. Contra, Lewis' Appeal, 85 Mioh. 340. 
 
 3 Clark V. Clark, 56 N. H. 105; 
 Cooper V. Cooper, 76 111. 57. 
 
CHAPTEK X. 
 
 ESTATES UPON CONDITION. 
 
 § 247. Nature of such estates. 
 
 248. Their classification. 
 
 249, Conditions precedent and subsequent 
 350. The distinguishing feature. 
 
 251. Conditions in deeds and at law. 
 253. Continued. 
 
 253. Importance of this distinction. 
 
 254. Words to be used. 
 355. Effect of intent. 
 
 256. Further distinguishing features. 
 
 257. Rules for limitation. 
 
 258. What may be a condition. 
 
 259. Examples of void conditions. 
 
 260. Continued. 
 
 261. Rules applicable to construction. 
 362. Summary. 
 
 § 247. Nature of such estates. — It was shown in a for- 
 mer chapter that the addition of the word "simple" to the 
 word " fee " indicates a pure or unqualified estate in fee, as 
 distinguished from a base, qualified or restricted one. So it 
 s to be observed that, within certain well defined limits, not 
 only estates in fee, but other estates as well, may be created 
 with conditions appended, upon the performance or breach 
 of which the estate so created will depend for its existence.^ 
 
 §248. Their classificatiou. — According to Blackstone, 
 estates upon condition are of two kinds, viz. : upon condition 
 implied and upon condition expressed. With the former we 
 shall not especially concern ourselves, as they probably have 
 little or no place in our law. Estates upon condition ex- 
 pressed, however, are very generally in use with us, and arise 
 when an estate is granted with an express qualification an- 
 
 1 Co. Litt. 201a. 
 
§§ 2i9-251.J ESTATES UPON CONDITION. 
 
 nexed, whereby the estate granted shall either commence, 
 be enlarged or be defeated upon performance or breach of 
 such qualification.' 
 
 § 249. Conditions precedent and subsequent. — The con- 
 ditions or qualifications so annexed to estates regarded in 
 point of time when they become operative, are either p7'ece- 
 dent, when they must happen or be performed before the 
 estate can vest or be enlarged; or subsequent, when by the 
 failure or non-performance of which an estate already vested 
 may be defeated.^ Thus if an estate for life be limited to 
 A. upon his marriage with B., the marriage is a precedent 
 condition, and until that event happens no estate is vested 
 in A. But if A. grants an estate in fee, reserving to himself 
 and his heirs a certain rent, and conditioned that if such 
 rent be not paid at the time limited it shall be lawful for 
 him and his heirs to re-enter and avoid the estate, in this 
 case the grantee and his heirs have an estate upon condition 
 subsequent, which will come to an end if the condition be 
 not strictly performed. 
 
 § 250. The distinguishing feature. — Conditional estates, 
 or estates upon condition, can hardly be said to constitute a 
 separate or distinct classification, being rather modifications 
 of the other estates at law. But of this nature are all base, 
 qualified or conditional fees spoken of at the outset of this 
 chapter; and if there be a breach of any condition subse- 
 quent, the estate vested theretofore in the grantee will in 
 every instance become determinable, and this is the distin- 
 guishing feature of estates on condition subsequent. 
 
 § 251. Conditions in deeds and at law. — A further dis- 
 tinction must, however, be made between a condition in 
 deed^ and a condition in law, or, as it is now generally 
 called, a limitation. For where an estate is created, and an- 
 nexed thereto is a condition in deed, a failure or breach will 
 not of itself put an end to the estate; there must be in addi- 
 
 iBlk. Com. 153 et seg.; Greenl. ton v. Preston, 1 Doug. 689; 2 Wash. 
 Cruise, Dig., title XIII, sec. 3. on Real Prop. 23. 
 
 2 See the leading case of King- ^Litt, sec. 325; 1 Inst. 333&. 
 
102 ESTATES UPON COXDITION. [§§ 252-255. 
 
 tion thereto some affirmative act, as, for instance, demand 
 for possession or entry, by those entitled to the estate after 
 breach. In other words, the estate on failure of the condi- 
 tion becomes defeasible at the instance of him who has the 
 right to declare the forfeiture.^ 
 
 §252. Continued. — But when an estate is so expressly 
 confined and limited by the words of its creation that it can- 
 not endure for any longer time than till the contingency 
 happens upon which the estate is to fail, it is termed a lim- 
 itation, and in such case the estate determines as soon as the 
 contingency happens, and the next subsequent estate, which 
 depends upon such determination, becomes immediately 
 Tested, without any act to be done by him who is next in 
 expectancy.^ 
 
 § 253. Importance of this distinction. — As the student 
 may well conclude, it is ofttimes a matter of great difficulty, 
 as it always is of great importance, to determine whether a 
 given phrase creates an estate upon condition (that is, a con- 
 dition in deed), or a conditional limitation (a condition in 
 law). For it is to be said that no set form of words by which 
 we can readily determine the one from the other is neces- 
 sarily employed in the creation of either; and especial^ in 
 wills terms are frequently made use of which in themselves 
 convey no definite legal impression.' 
 
 § 251. Words to be used. — For our guidance in creating 
 estates of this nature, it may, however, be said that in a con- 
 ditional estate the words "provided," "so that," and "upon 
 condition," especially when followed by a provision for re- 
 entry in case of breach, are generally to be used. And that 
 if a conditional limitation is desired, the terms " so long as," 
 " while," " during " and " until " are words indicative of such 
 a limitation. 
 
 § 265. Effect of intent. — But it should be borne in mind 
 that the intent of these words and terms is not inflexible, 
 
 iTalman v. Snow, 35 Me. 343; Prop. 23-36; Proprietors, etc. v. 
 Vail V. L. I. Ry. Co., 106 N. Y. 383. Grant, 3 Gray, 143. 
 2 2 Blk, Com. 155; 3 Wash. Real 3 1 Preston on Estates, 129; Owen 
 
 V. Fields, 103 Mass. 105. 
 
§§ 256, 257.] ESTATES UPON CONDITION. 103 
 
 and hence it rfay be of further assistance to us to know 
 that conditional estates may depend upon either precedent 
 or subsequent conditions, while conditional limitations have 
 to do only with conditions subsequent. That the former, 
 i. e., a conditional estate, by its operation may create, en- 
 large or terminate an estate, while the effect of the latter, the 
 limitation, is always to destroy one.* 
 
 §256. Further distinguishing features. — Perhaps the 
 best general rule can be derived from considering the great 
 distinction between these two estates when created. The 
 estate on condition has attached to it something that must 
 be done to cause it to vest or to prevent it from being di- 
 vested, or that must be left undone on peril of its destruc- 
 tion, upon the breach of which condition the estate be- 
 comes voidable, and the grantor or his heirs may destroy 
 it by entry or some other positive act. The estate on a con- 
 ditional limitation, on the other hand, has a fixed period, 
 fixed by the happening of an event, beyond which it cannot 
 continue; the instant the event happens the estate is at an 
 end, and the right of the tenant is absolutely and finally 
 gone without any further act on the part of any one. From 
 this consideration may then be derived the general rule that 
 whenever the intent of a deed or a will in attaching a condi- 
 tion to a gift or devise of land is to compel or to prevent the 
 performance of a certain act, then the instrument chould be 
 construed as creating an estate on condition ; but when the 
 intent is to fix certain bounds to the length of existence of 
 an estate, then the instrument should be construed as mak- 
 ing a conditional limitation.^ 
 
 § 257. Rules for limitation. — In limiting estates of this 
 character care should be taken that the express conditions 
 incorporated therein be not impossible; for if they be at the 
 time of the creation, or afterwards become so by the act of 
 God, or of the grantor himself, or if they be contrary to 
 law or repugnant to the nature of the estate, the estate will 
 
 iSee Watkins on Conveyancing, 204. ^Shars. & B. Lead. Cases, 186. 
 
104 ESTATES UPON CONDITION. [§§ 258-261 
 
 be divested of the conditions; that is to say, if the condition 
 he precedent and of the nature of those just above outlined, 
 the grantee will take nothing, for the estate will never vest. 
 If it be subsequent and the estate be thus already vested, 
 the condition will fail and the estate become absolute in the 
 tenant.' 
 
 § 258. What may be a condition.— A condition may be 
 made of almost anything that is not illegal or unreasonable, 
 on the principle that the owner of the land, who is not 
 obliged to transfer it at all, may attach to its transfer snch 
 conditions and restrictions as he pleases and in view of 
 which the grantee takes the land, so long as they are not 
 in contravention of any policy of law. Notwithstanding 
 the great liberty thus allowed, there are, however, some con- 
 ditions and restrictions which the law prohibits as being 
 contrary to public policy or as being repugnant to the es- 
 tate granted.^ 
 
 § 359. Examples of void conditions. — So a condition in 
 general restraint of marriage is bad as against public policy, 
 and is incapable of enforcement. But a condition that a 
 person shall not marry before attaining a certain age, pro- 
 vided the age fixed be not an unreasonable one, is a good 
 condition.' 
 
 § 260. Continned. — -Conditions in general restraint of 
 alienation are void both as contrary to the policy of the law 
 in this country and as repugnant to the estate granted. 
 But conditions imposing partial restraints upon alienation 
 have been generally upheld so long as their provisions be 
 not unreasonable. Thus, conditions restraining alienation 
 to particular persons, or for a reasonable length of time, 
 have been sustained.* 
 
 § 261. Rules applicable to construction. — It is an old 
 principle that the law does not favor a forfeiture; and hence 
 in construing a grant or devise, which, if held to be a limita- 
 
 1 United States v. Arredondo, 6 2 Shars. & B. Lead. Cases, 138. 
 Pet. 691; Hughes v. Edwards, 9 3 Shackelford v. Hall, 19 111. 213. 
 Wheat 489. * Cornelius v. Ivins, 2 Dutcli. 376. 
 
:§ 262.] ESTATES UPON CONDITION. 105 
 
 tion or even a condition, would destroy the estate, the court 
 will if possible construe the same to be either a covenant 
 or a reservation and thus avoid the forfeiture. It is also to 
 be remarked in this connection that the general rules of 
 construction applicable to deeds and to wills obtains with 
 regard to estates upon condition. 
 
 § 262. Summary. — Finally, an estate granted on condi- 
 tion, until it is forfeited for a breach thereof, differs in no 
 respect from an estate absolute of the same extent, and may 
 be used and enjoyed in precisely the same manner, except 
 so far as the condition itself expressly curtails the free use 
 -and enjoyment of the land.' 
 
 1 As to who may take advantage be reserved to the feoffor, donor 
 of a breach, the rule is that the or lessor and their heirs. Greenl. 
 benefit of the condition can only Cruise, Dig., tit 13, sec. 46. 
 
CHAPTEE XI. 
 
 FUTURE ESTATES AND INTERESTS. 
 
 § 263. In general. 
 
 264. Possession and expectancy. 
 
 265. Reversions. 
 
 266. Definition and incidents. 
 
 267. How created. 
 
 268. How aliened. 
 
 269. Remainders in general. 
 
 270. Defined and explained. 
 
 271. Further incidents and peculiarities. 
 
 272. Rule against perpetuities. 
 
 273. Illustrations. 
 
 274. Continued. 
 
 275. Meaning of the rule. 
 
 276. Nature of all remainders. 
 
 277. Further of their nature. 
 
 278. May be created either by will or by deed. 
 
 § 263. In general. — Another peculiarity of estates which 
 must of necessity engage the attention of the student is that 
 they may be so created that the right to, or the enjoyment 
 thereof, or both, is postponed to some future time. In certain 
 of such estates the right to have the same in full at some future 
 day is a present one, or, as it is called, vested; in others, both 
 the right to the estate and the right of enjoyment thereof 
 are postponed to the future. Indeed, we shall subsequently 
 lind that certain estates and interests of this nature are so 
 indefinite from a legal (as opposed to an equitable) standpoint 
 that they are not recognized in courts of law ; but concern- 
 ing these we shall postpone our inquiry until we take up the 
 subject of Equitable Estates, and for the present shall con- 
 sider only the legal estates and interests of this nature.' 
 
 1 For a full examination of the gent Remainders, Blackstone's 
 
 subject of future estates at law, Commentaries, and Kent's Com- 
 
 the student is referred to Greenl. mentaries, vol. IV. 
 Cruise Digest, Fearne on Contin- 
 
§§ 264-266.] FUTURE estates and inteeests. 107 
 
 § 264. Possession and expectancy. — The principles an- 
 nounced in the opening of the preceding section give rise to 
 that important branch of real-property law known as future 
 estates and interests. "With reference to the time of their 
 enjoyment, estates may be either iu possession or in expect- 
 ancy; and of estates in expectancy there are two sorts: one 
 created by act of law, called a reversion, the other by the 
 act of the parties and called a remainder.^ As such estates 
 differ materially in their characteristics and incidents, no 
 attempt will be made to formulate any general definition 
 applicable to all of them, but we will take up the considera- 
 tion of each, and, by determining what are its component 
 parts, be thus enabled to distinguish it from others of its 
 class as well as from limitations of a different nature. 
 
 § 265. Reversions. — And first of reversions.^ If I have 
 an estate in fee in lands and grant to another an estate for 
 life thereout, making no other or further disposition of 
 my estate, it is apparent that I still have an interest in the 
 lands by virtue of which, upon the death of the life tenant, 
 if 1 survive him, the estate in fee will again become vested 
 in me, or, if I die during the running of the life estate, then 
 in my heirs. Now because I have thus parted with the seisin 
 to my grantee for his life, and at his death it comes back 
 or reverts to me, or to my heirs, as the case may be, the estate 
 or interest possessed by me during the life-time of my said 
 grantee is known in law as a reversion.' 
 
 § 266. Definition and incidents. — A reversion, then, is a 
 future estate or interest arising where one having an estate 
 conveys away a portion thereof and makes no disposition of 
 the residue. Strictly the estate so granted should be a 
 freehold, for it is the seisin which reverts; and if one having 
 a fee in lands demises them to another for a term of years, 
 the seisin never goes out of the owner of the principal estate, 
 and so cannot be said to come back to him, or revert, at the 
 
 13 Blk. Com. 163. 'Digby, Hist. Real Prop., ch. V, 
 
 2 3 Poll. & Mait. Hist. Eng. Law, sec. 3. 
 31. 
 
108 FUTURE ESTATES AND INTEEESTS. [§§ 267-2G9. 
 
 end of the term.' But it is general usage to speak of a re- 
 version as existing when the present estate is one for 3'^ears. 
 
 § 267. How created. — Again, a reversion requires no spe- 
 cial grant for its creation, but it exists by operation of law 
 as an incident to every gift or devise of the nature above 
 outlined; therefore, as Blackstone has it, a reversion is a 
 future estate created by operation of law.^ 
 
 §268. How aliened. — This reversionary interest is for 
 most purposes deemed in law to be an estate, and so may 
 be aliened by deed or devised under a will in the same man- 
 ner as may other estates.' And so also ma)'' the interest of 
 the reversioner be taken in execution and sold to satisfy the 
 claims of his creditors. Furthermore, the interest of the re- 
 versioner may be terminated by his executing a release 
 thereof to the person having the present estate. 
 
 § 269. Of remainders in general. — Where one having an 
 estate in fee grants thereout an estate of freehold less in 
 quantity than that which he has to a certain person or per- 
 sons to be presently held and enjoyed by them, and by the 
 same gift or conveyance limits the residue of his estate to 
 some other certain person or persons who are to take their 
 estate when the former comes to an end, the interest of such 
 last-mentioned person or persons is said in law to be an es- 
 tate in remainder.'' For example, if A., tenant in fee, makes 
 gift to B. for life, and by the same instrument limits the fee 
 to C. and his heirs, then B. takes a present estate for life, 
 and C. the estate in fee expectant upon, that is awaiting, the 
 death of B. The seisin passes at once from A. to B., in whom 
 it remains until the death of B., who, in the meantime, is 
 entitled to all the benefits and enjoj'ment of his estate for 
 life. But immediately upon the decease of B. the seisin 
 passes to C, who thereupon has the estate in fee simple, and 
 so at once comes into all the benefits of such an estate. 
 
 1 Leake. Land Law, 315. «4 Kent's Com. 197; 2 Washb. 
 
 2 2Blk. Com. 163. Real Prop. 539. 
 
 3 Washb. Real Prop. 738. 
 
§§ 270-272.] FUTCEE ESTATES AND INTERESTS. 109 
 
 § 270. Defined and explained. — The life estate of B., in 
 the example given, is a present estate both in point of right 
 and of enjoyment, while that of 0. is present in right only, 
 the right of enjoyment thereof being in expectancy, that is 
 in the future, and hence a future estate. The estate of B- 
 is called the particular estate, from the Latin partioida, 
 which signifies a part or portion ; while in the example given 
 the estate of 0. is one in fee simple. It is further evident 
 that A. has parted with his entire estate, and so has no pos- 
 sibility of reversion or any other interest therein ; and it is 
 accordingly held that in law a remainder cannot be limited 
 upon or after a fee,^ and that every legal remainder must 
 have an estate of freehold to support it; that is, the particu- 
 lar estate must be one of freehold.^ 
 
 § 271. Further incidents and peculiarities. — Again, 
 there may be several estates in remainder carved out of the 
 principal estate, and they may be limited to different per- 
 sons and created to extend over an indefinite duration of 
 time, so long as the fee is finally to vest in some one, without 
 violating what is known as the rule against perpetuities. 
 
 § 272. The rule against perpetuities. — The restrictions 
 placed upon free alienation by the feudal system were, as 
 we have seen, gradually abolished, until it has long been the 
 policy of the law not only to uphold and encourage the 
 principle of free alienation, but also to prohibit the limiting 
 of estates in such manner that it is impossible to freely 
 dispose of the same. If no such prohibition were in force, 
 it would be possible for one to create a series of particular 
 estates with remainders over, which would prevent the fee 
 from vesting in any person or persons for a period indefi- 
 
 1 Loddington v. Kyrne, 1 Ld. tenant in fee; nor can it be said 
 Raym. 208. that as a matter of law the enjoy- 
 
 2 Blaokstone treats limitations of ment of tenant in fee is in futuro 
 a fee made after an estate for years in that case, for he enjoys by ten- 
 as a vested remainder. Others ant for years, who is his tenant. 
 think this open to criticism be- Of course there is no question when 
 cause the seisin is already in the the remainder is a contingent one. 
 
110 FUTURE ESTATES AND INTEEESTS. [§§ 273-275. 
 
 nite in duration, and thus tie up the power of alienation for 
 an unlimited number of years.' 
 
 § 273. Illustration. — For, if an estate for life be given to 
 A., with remainder over to B. and his heirs, and B. is living 
 and of lawful age, a good conveyance of the whole estate 
 can be made by A. and B. joining in the deed, so that alien- 
 ation is not thereby prevented. But in the same case if B. 
 were not yet born, no alienation could be effected until B. 
 had been born and had arrived at lawful age — usually 
 twenty-one j^ears; or had died during his infancy leaving 
 competent heirs. 
 
 § 274. Continued. — So, if a series or succession of such 
 limitations were made, the power of alienation would be in. 
 definitely suspended, and what in legal phrase is termed a 
 ;perj)etuity would result. In order to prevent so undesirable 
 a consequence, the law has established what is known as the 
 rule against perpetuities, by which it is laid down that no 
 limitation shall be valid unless by the terms thereof the fee 
 is to vest absolutely in some person or persons within a life 
 or lives in being and twenty-one years thereafter.^ 
 
 § 275. Meaning of the rule. — Thus it will be seen that 
 an estate may be limited to any number of living persons 
 for their lives, with remainder over in fee, to vest absolutel}'' 
 in some person or persons within twenty-one years after the 
 death of the last surviving tenant for life. But that if such 
 life tenants were not in being at the time of the taking ef- 
 fect of such limitation, the fee would not necessarily vest 
 within the life or lives of a living person or persons and 
 twenty-one years thereafter, and the limitation would be 
 void. Hence, in limiting estates of this nature, care must 
 be taken that they do not violate this important rule and so 
 lose their force and effect.' 
 
 iLeake, Land Law, 439-443; Will, limitation void. See 1 Jarman on 
 
 R. P. (17th ed.) 476; Gray, Perpt- Wills, 229. 
 
 tuities, see. 200. swhile treated at this point, the 
 
 2Harg. Law Tracts, 518. This rule against pei-petuities has espe- 
 
 rule is generally in force through- cial application to limitations by 
 
 out the United States. The eilect way of executory devise. See 
 
 of its violation is to render the oh. XIV, infra. 
 
f § 276-278.] FUTUKE estates and interests. Ill 
 
 §276. Nature of all remainders. — It is further to be 
 understood that at law no estate of freehold can be created 
 to commence infuturo^ that is, at some time in the future, 
 but that every such estate must vest immediately either in 
 possession or in remainder, for no estate at law could for- 
 merly be conveyed without livery of seisin, which of neces- 
 sity operated at once or not at all. But in limiting a re- 
 mainder, the livery in contemplation of law is made to the 
 tenant of the particular estate, from whom it passes on the 
 termination thereof, by virtue of the original gift, to him 
 who was therein named to take the remainder; and so the 
 remainder is said to be supjported by the particular estate, 
 and that no remainder can be created without a particular 
 estate to support it.^ 
 
 §277, Further of tlieir nature. — Again, and as a con- 
 sequence of the rule announced in the foregoing section, the 
 remainder must commence or pass out of the grantor at the 
 time of the creation of the principal estate. Also, that the 
 remainder must vest in the grantee during the continuance 
 of the particular estate, or eo instanti upon its determina- 
 tion; for if it were not so limited there would be a space of 
 time during which the seisin would be without an owner, 
 and this the law will not tolerate, no matter how brief such 
 period may be.' 
 
 § 278. May be created either by will or hy deed — Einds. 
 Estates in remainder may be created either by will or 
 by deed, and are of two sorts: vested or executed, and 
 ■contingent or executory.* We shall consider them in their 
 order. If gift be made to A. for life, and then to B., a liv- 
 ing person, and his heirs, the interest taken by B. is called 
 a vested remainder, for the reason that whenever after its 
 creation A. dies, B. or the heirs cf B. are in being and ready 
 to take the estate limited to be taken in remainder.* 
 
 1 1 Preston on Estates, 217; Will. ^ Co. Lit. 153& (Butler's note, 217). 
 
 E. P. 850. ■* 2 BIk. Com. 168. 
 
 2 The writer is unable to perceive ^ Will. R. P. (17th ed.), title " Re- 
 
 the distinction sometimes made in maiuders." 
 this regard between a vested and 
 .a contingent remainder. 
 
CHAPTEE XII. 
 
 REMAINDERS, VESTED AND CONTINGENT. 
 
 § 279. Vested remainders. 
 
 280. Their alienation. 
 
 281. The rule in Shelly's case. 
 
 282. History of the rule. 
 
 283. Alienation restricted. 
 
 284. Its development. 
 
 285. Its complete establishment. 
 
 286. Reasoning upon which rule is founded. 
 
 287. Effect given to the rule. 
 
 288. The rule stated. 
 
 289. Results of its application. 
 
 290. Its standing in the modern law. 
 
 291. Contingent remainders. 
 
 292. Nature of contingency. 
 
 293. Uncertain person. 
 
 294. Definition. 
 
 295. Origin and incidents. 
 
 296. Necessity of freehold to support. 
 
 297. Must vest when. 
 
 298. Nature of contingency. 
 298. Illegal event. 
 
 300. Example. 
 
 801. Mode of alienation. 
 
 802. Illustrations. 
 
 803. Merger. 
 
 304. Further illustrations. 
 
 805, Interposition of estate to trustees. 
 
 § 279. Tested remainders. — We then have a vested 
 remainder in every case where from the time of its creation 
 there is always some definitely ascertained person or class 
 of persons ready to take the remainder whenever the par- 
 ticular estate for any reason comes to an end. By a vested 
 remainder a present interest passes to the party, though 
 such interest is to be enjoyed in the future. The estate is 
 
§§ 280-282.] EEMAINDKES, VESTED AND CONTINGENT. 113 
 
 invariably fixed to remain to a determinate person or class 
 of persons after the particular estate is spent, and for this 
 reason remainders of this sort are known also as executed, 
 and being executed nothing can defeat them or set them 
 aside.' 
 
 § 280. Their alienation. — Tested remainders do not 
 render the land inalienable. The tenant of the particular 
 estate may make conveyance thereof to a stranger, the re- 
 mainderman may make gift of his interest to another, and 
 by joining in a deed such tenant and remainderman have 
 power to pass the entire estate to their grantee. 
 
 § 281. The rule in Shelly 's case. — Before taking up the 
 subject of contingent remainders we shall spend a little time 
 in the consideration of that famous rule of law known as 
 The Eule in Shelly's Case. This rule takes its name from 
 a case decided in England in the year 1579,^ though it is ap- 
 parent from a reading of that case that the rule was by no 
 means a new one at that date, nor first announced in the 
 case from which it received its name. 
 
 § 283. History of the rule. — For an explanation of this 
 rule of law we must go back to feudal times and feudal 
 principles. When, under that system of land holding, lands 
 were given to a person and his heirs, such person did not 
 take an estate in fee simple as we now understand it, for the 
 words of the gift were literally construed, and to entitle the 
 donee to an estate for only so long as he himself could enjoy 
 it, that is, for his life ; at his death it passed in every instance 
 to his heirs, nor could he otherwise direct it, either by 
 deed during his life-time or by will at his death.^ The heirs 
 had a vested interest in the lands, which was theirs by virtue 
 of the gift to their ancestor, and so existed during his life- 
 time.* 
 
 1 Green. Cruise, Dig., tit. 16, sec. 8; 2 Shelly's Case, 1 Co. Rep. 104a. 
 Will. R. P., tit. "Remainders." The sgee ante, chapter on Tenures 
 definition here given, it is believed, and Estates, herein. 
 will a,fford a perfect test for dis- < Will. R. P. (17th ed.) 398. 
 tinguishing vested from contin- 
 gent remainders, in every instance. 
 8 
 
ll-i EEMAINDEES, TESTED AND CONTINGENT. [§§283-286. 
 
 § 283. Alienation restricted. — Now this was in accord 
 with the principles of the feudal sj^stera, which placed re- 
 strictions on the power of free alienation, for since the an- 
 cestor had not the entire estate he could not alien it as such ; 
 and since a living person has no heirs, there were no persons 
 who by joining in a deed could convey good title to the en- 
 tire interest as expressed by the terms of the gift, and this 
 was precisely the result desired by the promulgators of the 
 feudal system. 
 
 § 284. Its development. — But as we have seen, the feudal 
 system was hardly well established before efforts began to be 
 made to evade and avoid its effects. The desire for the power 
 of free alienation waxed stronger as time went on and land 
 became more valuable and of more varied uses. It is well 
 known that the opinions of the courts on great questions, as 
 well as the general trend and policy of the law, ever reflect 
 the desires of the people at large; and hence when the tide 
 set so strongly toward free alienation, we find courts and 
 law makers lending their assistance. 
 
 § 285. Its complete establishment. — It was not possible 
 for the courts to change the forms or wording of these old 
 gifts, or to direct that diiferent phraseology should be made 
 use of in creating the new ones, but there was vested in the 
 judges the power to construe, that is to declare the legal 
 purport of, the words made use of in such instruments of 
 conveyance, and this they proceeded to do. 
 
 § 286. The reasoning upon which it is founded. — The 
 student will bear in mind that anciently the heir took by 
 reason of the conveyance originally made to his ancestor, 
 not by descent from his ancestor; in other words, he was a 
 purchaser; and the words " the heirs," " his heirs," or " heirs," 
 were words of purchase.' It was upon these words that the 
 courts placed a new construction, for they declared that these 
 words should, as a matter of law, be regarded as words made 
 use of to indicate what sort of an estate the ancestor should 
 -take under the gift; that is, words of limitation making out 
 
 iWill. R. P. (17th ed.) 898 et seq. 
 
§§ 287-289.] EEMAINDERS, VESTED AND CONTINGENT. 115 
 
 the estate of the ancestor, rot as words of purchase con- 
 ferring an interest upon the heir;i and that when the heir 
 took the estate, if at all, he should take the same, not by 
 purchase, but b}' descent from his ancestor. Furthermore, 
 that inasmuch as the word "heirs" had always been con- 
 nected with and made use of to denote a fee (either simple 
 or in tail), such words should still have the same signification 
 when thus used in gifts or conveyances, and that the ancestor 
 should take a fee-simple estate. 
 
 § 287. Effect given to the rule. — "When the ancestor 
 took the fee under these circumstances he was able to alien 
 the same in full either by will or by deed, and thus did the 
 courts, by the establishment of the rule in Shelly's case, lend 
 their aid to the advancement of the cause of free alienation. 
 This rule of law, aided by certain enactments of parliament, 
 and other decisions of the courts announced at or about the 
 same time, did much to secure for the people the inestimable 
 benefits of free alienation. 
 
 § 288. The rule stated. — Stated concisely and with legal 
 accuracy the rule is as follows: When the ancestor by any 
 gift or conveyance takes an estate of freehold, and in the 
 same gift or conveyance an estate is limited either medi- 
 ately or immediately to his heirs in fee or in tail, the words 
 "his heirs" or "heirs of his body" are words of limitation 
 and not of purchase, and the ancestor takes a fee.^ Thus, if 
 gift be made to A. for life, and at his death then to his heirs, 
 the interest of A. is not a life estate with remainder over 
 to his heirs, but is an estate in fee. In the example given, 
 the succeeding estate is limited immediately to the heirs, 
 but the same consequences would follow had there been an 
 estate therein limited between that of A. and his heirs (medi- 
 ately to his heirs), as, for instance, gift to A. for life, then 
 to B. for life, then to the heirs of A. 
 
 §289. Results of its application. — The application of 
 this rule has, especially in the case of wills, very frequently 
 defeated the intention of the donor or testator, and has 
 
 11 Co. Rep. 104a (Shelly's Case). 2 Will. R. P. 253. 
 
116 EEMAINDEES, VESTED AND CONTINGENT. [§ 290. 
 
 therefore been sharply criticised. Indeed to such an extent 
 has the opposition thereto been carried, that in many juris- 
 dictions the rule has been abolished by statute and greatly 
 so restricted in others. But it is still in full force and effect 
 as a rule of property established by the common law, both 
 as to deeds and to wills, in some of the states of the Union.i 
 §290. Its standing in modern law.— It is argued by 
 some, that, the rule having accomplished its object in assist- 
 ing free alienation, now remains merely as a relic of the bar- 
 barity of feudal times and a stumbling block to the advanced 
 and enlightened policy of our modern laws, and hence should 
 yield in every instance to the plain intent of grantor or 
 testator.^ Others are of the opinion that the rule is one of 
 propriety if not necessity, and that froni the very fact of its 
 technicality it tends to preserve that order and observance 
 of precedent so essential to the maintenance of our law as 
 a complete and perfect system. That the desire of the 
 donor, if so strong as to override the plain rules of the law, 
 ought to be of sufficient moment to compel him to see to its 
 proper expression in the instrument of conveyance; for, as 
 has been well said, " A donor is no more competent to make 
 tenancy for life a source of inheritable succession than he 
 is competent to create a perpetuity or a new canon of de- 
 scent. The rule is too intimately connected with the doc- 
 trine of estates to be separated from it without breaking the 
 ligament of property." ' But be this as it may, enough has 
 been said to inform the student of the existence of the rule, 
 and to enable him to gain some understanding thereof, and 
 thus to guard against the difficulties so frequently arising 
 through ignorance of its existence and provisions.* 
 
 1 See Hutcliins' note, Will. R. P. in Shelly's Case to be found in the 
 (17th ed.), 407. books, the writer has thought best 
 
 2 SielofE V. Redmond's Adm'r, 26 to select the one herein given, for 
 Ind. 251. the reason that in his judgment it 
 
 SHileman v. Bonslaugh, 13 Pa. is the one most easy of corapre- 
 
 St. 344. hension on the part of the student, 
 
 *From among the several ex- and consequently of greatest as- 
 
 planationsof the origin of the Rule sistanoe to him. It is believed. 
 
§§ 291-293.] KEMAINDEES, TESTED AND CONTINGENT. 117 
 
 §291. Contingent remainders. — We are next to learn 
 that estates may be limited not only to commence in pos- 
 session in the future, as in the case of vested remainders, 
 but that they may be so limited as to commence in interest 
 also at some time in the future; and when so limited such 
 estates at law are called contingent remainders, for the rea- 
 son that, as the name indicates, the vesting of the interest, 
 being fixed for a time in the future, is therefore uncertain 
 or contingent, and hence is made to depend upon some event 
 of an uncertain nature. 
 
 § 292. Nature of tlie contingency. — The contingency 
 upon which the estate depends for its vesting may be either 
 with regard to the happening or not happening of some 
 given event which is not certain to happen or not to happen 
 within the time stated, or it may relate to some person or 
 class of persons who may or may not come into or remain 
 in existence, so that the limitation can become effective.^ 
 Thus, if gift be made to A. for life, with remainder to the 
 heirs of B., a living person, we have a contingent remain- 
 der; for, in the event that B. survive A., the heirs of B. 
 take nothing and the limitation over to them would be 
 void, because, since a living person can have no heirs, there 
 would be no one to take the estate upon the death of A. 
 In such case the fee would revert to A.'s donor. Here the 
 contingency is found in the uncertainty of the comparative 
 duration of the lives of A. and B.^ 
 
 § 293. Uncertain person. — Again, if gift be made to B. 
 for life with remainder to such of the children of A. and B. 
 (husband and wife) as shall be living at the death of B., we 
 have an instance of the form of contingent remainder sec- 
 ondly mentioned above, for in this example the contingency 
 or uncertainty has reference to the person or class of per- 
 
 however, that the explanation as ^ Fearne, Cont. Rem. 9. The or- 
 
 given iscorreot in all essential par- der of the classes of contingent 
 
 ticulars. remainders as stated by Mr. Fearne 
 
 13 Blk. Com. 168; Fearne, Cont. is not here observed. 
 Rem. 316; 4 Kent's Com. 303. 
 
118 EBMAINDEES, VESTED AND CONTINGENT. [§§ 294, 295. 
 
 sons who are to take; and inasmuch as it cannot be pres- 
 ently determined which or how many of such children will 
 survive B., the limitation is contingent because made to an 
 uncertain or unascertained person or class of persons.* 
 
 § 294. Definition. — A contingent remainder is therefore 
 defined to be a future estate or interest at law limited to 
 vest both in interest and in possession upon the happening 
 or not happening of some dubious or uncertain event, or to 
 some unascertained person or class of persons.^ Contingent 
 can be distinguished from vested remainders in everj' case 
 by the fact that the former are not ready from their com- 
 mencement to their end to come into possession at any 
 moment when the prior or supporting estates (the particular 
 estates) may happen to determine.' To illustrate from one 
 of the examples given above — gift to A. for life, then to the 
 heirs of B. (a living person). If B. survive A. there is no 
 one to take under the limitation, hence the remainder is not 
 ready at any time to come into possession upon the deter- 
 mination of the prior estate and is therefore contingent and 
 not vested. 
 
 § 295. Origin and incidents. — The early common law did 
 not recognize this class of future estates, and it was not until 
 the time of Henry VI. that contingent remainders became 
 known as legal estates.* As a matter of course they re- 
 stricted and generally prevented alienation ; and even at the 
 present day they confer no actual estate, but rather an inter- 
 est or possibility upon their possessors.' From the fact that 
 they are bound to vest, if at all, during the running of the 
 particular estate or instantly upon its termination, estates of 
 this sort are constantly subject to destruction by the failing 
 
 1 Fearne, Cont Rem. 8; 2 Washb. from one that is contingent." 
 
 Real Prop. 565. Fearne, 216. See also Allen v. May- 
 s' 2 Blk. Com. 168. field, 20 Ind. 293; Brown v. Law- 
 3 Mr. Fearne says: "The present rence, 3 Cush. 390; Will. R P. 252. 
 
 capacity of taking effect in posses- < 2 Washb. R. P. 560; Will. R. P. 
 
 sion, if the possession were now to 363. 
 
 become vacant, . . . universally ^ 2 Washb. R. P. 562; 1 Preston on 
 
 distinguishes a vested remainder Estates, 75. 
 
§§ 296-298.] BEMAINDEES, VESTED AND CONTINGENT. 11& 
 
 of the particular estate prior to the happening of the event 
 on which the remainder is limited.' 
 
 § 296. Necessity of freehold to support The reason for 
 
 this rule is found in the legal principle that the seisin in an 
 estate must never be without an owner. The ancient law 
 regarded the matter of the transfer of lands as necessarily 
 notorious, and if the grantor did not at once part with the 
 seisin it remained with him. Hence the conveyance of a 
 freehold made to-day to take effect to-morrow would be void 
 because there would be an interval of time during which the 
 seisin would be without an owner.^ So if on any convey- 
 ance possession were given, where the estate conveyed were 
 less than a fee simple, the instant such estate determined 
 seisin would again be in the grantor. For example, if gift 
 be made to A. for life, and after his decease and one day, 
 then to B. and his heirs, the instant A. dies the seisin reverts 
 to the grantor and the limitation to B. is void. 
 
 § 297. Must vest when. — We thus observe that every 
 contingent remainder must vest or become an actual estate 
 during the continuance of the particular estate which sup- 
 ports it, or the instant that such particular estate determines. 
 Thus a gift to A. for life, and at his decease to such son of 
 his as shall first attain the age of twenty-four years, is a good 
 contingent remainder, because the seisin is not necessarily 
 left without an owner after A.'s decease. If, therefore, at 
 his death A. should have a son twenty-four j'^ears of age or 
 older, such son will at once take the seisin by reason of the 
 estate in remainder, which vested in him the moment he at- 
 tained that age. In the case just given, the contingent 
 remainder became vested during the continuance of the par- 
 ticular estate. 
 
 § 298. Nature of contingency. — But if there should be- 
 no son, or if the son should not have attained the age of 
 
 1 2 Washb. R. P. 589. '^ This disability is avoided in that 
 
 The effect of this rule has in class of future estates known as 
 
 some states been abolished by stat- executory interests, to be treated of 
 
 ute. hereafter. 
 
120 EEMAINDEES, VESTED AND CONTrnGENT. [§,? 299-301. 
 
 twenty-four years, the remainder will fail altogether and 
 the seisin will revert to the original grantor. Somewhat 
 after the manner of the usual present estates upon condi- 
 tion, the contingency or condition upon which remainders 
 may be limited is either precedent or subsequent. If prece- 
 dent, the remainder cannot vest until that which is contin- 
 gent has happened. If subsequent, the estate vests imme- 
 diately, subject always to be defeated by the happening of 
 the contingency or condition, and is a vested remainder. 
 
 § 299. Illegal event. — A contingent remainder cannot 
 be made to vest on any event which is illegal or contrary 
 to good morals or public policy. As, for instance, no such 
 remainder can be given to a child who may be hereafter 
 born out of lawful wedlock. It was formerly considered, 
 and so laid down by Lord Coke, that the event on which a 
 remainder is to depend must be one of common possibility 
 and not a remote one, or a double, or a possibility upon a pos- 
 sibility. But this rule Mr. Williams disputes,' and declares 
 on the authority of Lord St. Leonards that it is abolished. 
 At any rate, the rule is one of logic rather than of law or 
 good sense and has never found favor in the United States. 
 
 §300. Example. — To further illustrate the great diver- 
 sity of form which may be assumed in the limiting of remain- 
 ders of the class under consideration, the following is given 
 as an example of such an estate wherein the expectant owner 
 of the remainder is a living person and was so at the date 
 of the creation of his interest: Gift to A. for his life, and if 
 C. be living at his death, then to B. and his heirs. The es- 
 tate of B. is not vested, but is a future estate not to begin 
 either in interest or possession until the decease of A. It is 
 not always ready to come into possession whenever the es- 
 tate to A. may end, for if A. should die subsequently to C, 
 B. takes nothing, though plainly he has a chance of obtain- 
 ing an estate should C. survive A. ' 
 
 § 301. Modes of alienation. — A contingent remainder 
 could not at common law be conveyed by deed.* It was re- 
 
 1 Will. R. p. (17th Int. ed.), p. 340; 2 Such estates are now generally 
 2 Washb. on Real Prop. 580. made alienable by deed, but are not 
 
§ 302.] EEMAINDEES, VESTED AND CONTINGENT. 121 
 
 garded as merely a possibility, and stood in the same posi- 
 tion in this regard as did a condition for re-entry. It might, 
 however, have been released ; ' that is to say, in the examples 
 above given, B. might by deed have given up his interest 
 to A. In other words, B. might surrender his interest in the 
 lands to one already possessed of an estate therein, but could 
 convey no interest or estate to a stranger. Contingent re- 
 mainders are devisable by will, and generally assignable in 
 equity but not at law, and so they are not commonly sub- 
 ject to be taken in satisfaction of legal process against their 
 owners. 
 
 § 302. Further illustration. — As we have seen above, a 
 contingent remainder was always liable to destruction by 
 the untimely termination of the particular estate ; and, as has 
 already been observed, the reason for this seems to be that, 
 if the particular estate was determined, the freehold would 
 remain undisposed of until the future estate vested at some 
 time thereafter, and that this the law does not sanction. 
 Thus, suppose a gift to A., a bachelor, for his life, after his 
 death to his eldest son and the heirs of his body, and in de- 
 fault of such issue, then to B. and his heirs. In this instance 
 A. has a vested estate for life in possession. There is further 
 a contingent remainder in tail to his eldest son at his birth, 
 with remainder over again to B. in fee. If now, before A. 
 had any son, the particular estate for any reason came to an 
 end,^ B.'s estate would have become a fee simple in posses- 
 sion, and the son of A., if he had one thereafter, would take 
 nothing, and the ending of the life estate of A. would have 
 destroyed the contingent remainder by letting into posses- 
 sion the subsequent estate of B., of which he could not then 
 have been divested. Much has been said along this line 
 that the student may understand the necessity that existed 
 for some method of effectually preventing the failing and 
 
 generally capable of being taken ' Tied. Real Prop., sec. 412. 
 on execution. 1 Preston on Estates, ^ As, for instance, by forfeiture. 
 76; Loving v. ElUott, 16 Gray, 574; 
 3 Cruise, Dig. 333. 
 
122 EEMAINDEES, VESTED AND CONTINGENT. [§§303-305. 
 
 destructioa of contingent remainders, and thus adding to 
 their utility in the law. 
 
 § 303. Merger.— Again, it is a principle of law that when- 
 ever a greater and a less estate coincide and meet in one 
 and the same person, without any intermediate estate, the 
 less estate is said to be merged in the greater and thus comes 
 to an end.i So in the example last above given, should A. 
 have purchased B.'s remainder in fee and gone into posses- 
 sion of the entire estate before he had any son born, the con- 
 tingent remainder to such son would have been destroyed, 
 for it could not have vested after the determination or sub- 
 sequent to the remainder in fee simple; but this it could not 
 do because a fee cannot have a remainder limited thereafter. 
 
 § 304. Illustrations — Continued. — In the same manner 
 a sale by A. to B. of his life estate before the birth of a son 
 would have destroyed the son's contingent remainder, because 
 it would have given to B. an uninterrupted estate in fee 
 simple in possession, and the same effect would have been 
 produced had A. and B. joined in a conveyance of their es- 
 tates to a third person, prior to the birth of a son to A.^ 
 
 § 305. Interposition of trustees. — The disastrous conse- 
 quences which would have resulted from the destruction of 
 contingent remainders, as above set forth, were largely ob- 
 viated in practice by interposing a vested estate between 
 those of A. and B. The plan usually adopted to preserve 
 these remainders and others of like nature was to create an 
 estate in trustees,' sometimes for life, sometimes in fee, who 
 would then take seisin upon the determination of the par- 
 ticular estate, and hold the same under their agreement of 
 trust until the contingency upon which the remainder was 
 to vest occurred. 
 
 1 3 Washb. Real Prop. 589. against by statute in many of the 
 
 2 The failure of the remainder by states, 
 reason of the termination of the 3 2 Washb. on Real Prop. ; 2 Blk. 
 particular estate by merger, dis- Com. 171; Fearne, Cont. Rem. 825.. 
 seisin, etc., has been provided This method may still be pursued 
 
 when necessary. 
 
PAET 11. 
 ESTATES IN EQUITY. 
 
 CHAPTEE XIII. 
 
 ESTATES AND INTERESTS IN EQUITY. 
 
 3 307. The common law and equity distinguished. 
 
 308. Importance of equitable principles. 
 
 309. Illustrations. 
 
 310. Origin of equity jurisprudence. 
 
 311. Defects of the common law. 
 
 312. Rise and development of equity. 
 813. Its application to landed property. 
 
 314. How equity enforced a use. 
 
 315. Conflict between church and state. 
 
 316. Employment of uses to evade statute of mortmain. 
 
 317. Necessity of further legislation. 
 
 318. Passage of the statute of uses. 
 
 319. Provisions of this statute. 
 
 830. The statute in operation — Its effect. 
 321. Result of the operation of the statute. 
 823. Methods adopted for evading the statute. 
 833. Limiting a use upon a use. 
 
 884. Of uses before the statute. 
 835. Uses under the statute. 
 
 826. Effect of the statute upon uses. 
 327. Illustrations. 
 
 338. Form of conveyance not afifected by the statute. 
 
 339. The statute of uses still in force. 
 
 330. Trust estates. 
 
 331. These estates defined. 
 833. Described and explained. 
 
 333. Effect of active trusts, etc. 
 
 334. Trusts in chattel interests. 
 
 885. Use upon a use. 
 
 336. Statute can operate but once. 
 
 337. What estates may be created in trusts. 
 838. Trusts by implication of law. 
 
 339. Who may be made trustees. 
 
124 ESTATES IN EQUITY. [§§ 307-309. 
 
 § 307. Common law and equity distinguished. — It was 
 
 said in our introductory chapter that the terra " common 
 law " is made use of to indicate one branch or division of our 
 system of jurisprudence. The other branch or division 
 thereof is known as equity or chancery jurisprudence. An 
 extended discussion of equity or chancery practice would be 
 out of place here, and for such a discussion the student should 
 consult the books upon that subject.^ We shall, however, in- 
 vestigate this branch of the law to the extent deemed neces- 
 sary to enable us to understand its application in the law of 
 real property. 
 
 § 308. Importance of equitable principles. — The study 
 of equitable principles and jurisdiction is of great moment 
 to the student of real-property law, for he will find that from 
 the standpoint of the tribunal in which the rights of persons 
 having estates or interests in land are determined, such es- 
 tates or interests are of two sorts, legal and equitable.^ The 
 former are such estates as are recognized in courts of law 
 alone, the latter such as are cognizable only in courts of 
 equity. That is to say, one may have a technical legal es- 
 tate, for instance, in fee, such as a court of law will protect 
 and sustain, or he may have a right or interest of such a 
 nature, enforcible only in a court of equity, that the same 
 benefit will accrue to him as in the case of a legal estate. 
 
 § 309. Illustration. — To illustrate, A. bargains with B. 
 for certain lands and pays to him the purchase price agreed 
 upon; B. executes to A. an instrument of conveyance pur- 
 porting to be a deed, but fails to attach or affix a seal to his 
 signature thereto. The result of the omission of the seal is 
 that the legal title does not pass to A., and hence he would 
 have no standing in a court of law. But equity would re- 
 gard him as the owner of the property and would enforce 
 his rights; for equity, so far as it has the power, will redress 
 a wrong, irrespective of whether some rule of the common 
 law has been transgressed or not. 
 
 1 Story's Equity Jurisprudence, 2 % Washb. Real Prop. 384. 
 or Bispham's Equity. 
 
§§ 310-313.] ESTATES AND IKTEEESTS IN EQUITY. 125 
 
 § 310. Origin of equity jurisprudence. — Equity or chan- 
 cery jurisprudence had its source in the ancient ecclesiastical 
 law by which the earlier church of England was governed, 
 and hence dates back to the days of the Eoraans, from whom 
 were obtained those precepts and principles which form its 
 f oundation.i The church of Rome brought with it into Eng- 
 land this system of ecclesiastical laws upon its establishment 
 there, and years before equity jurisprudence arose, had its 
 tribunals for the trial and punishment of those who were 
 accused and found guilty of having committed moral wrongs. 
 But the church had no authority thus to act except with re- 
 gard to its own members, nor had it power to enforce its 
 decrees against them, except by or through the penalty of 
 excommunication. 
 
 §311. Defects of the common law. — The advance of 
 civilization, the progress of the arts, of commerce and of the 
 English people generally, soon revealed serious defects in 
 the common law, the chief among which was that it failed 
 to provide a remedy in many instances where there was a 
 clear violation of a moral right. ISTow it was a principle of 
 the English law that the sovereign was the fountain-head of 
 all justice, and hence it came about that persons feeling 
 themselves aggrieved, and having in the particular case no 
 redress at the common law, applied in person to the king by 
 their bill or petition, who, upon an examination thereof, if 
 he deemed the cause stated a good one, issued a subpoena^ 
 for the person or persons named as defendant or defendants 
 in such bill or petition, commanding him or them to appear 
 and answer the same, and thereafter proceeded according to 
 the rules of ecclesiastical courts, that is without a jury or 
 oral testimony and upon principles of morality, to grant 
 to the suitor such relief or to afford him such remedy as 
 seemed to him meet and proper. 
 
 §312. Rise and development of equity. — Such applica- 
 tions becoming, as they soon did, very numerous, were re- 
 
 1 1 Spence, Eq. Jur. 436, ^ Greenl. Cruise, Dig., title Use, 
 
 p. 333, sec. 13. 
 
126 ESTATES IN EQUITY. [§§ 313, 314 
 
 ferred by the king to his privy counselors under the super- 
 vision of the chancellor,! ^^^^ hence we have the name 
 Chancery Practice, which is synonymous in its use here with 
 Equity Jurisprudence. The rules and precedents established 
 and followed by these courts rapidly grew into a separate 
 and distinct system, which was and still is looked upon as 
 an independent and complete method of administering jus- 
 tice wholly apart from that pursued by the common law. 
 
 § 313. The application to landed property. — Now it 
 was not long after the establishment of this equity jurispru- 
 dence that persons having estates in or claims upon landed 
 property began to realize that a new power had been placed 
 in their hands, and to use the same to accomplish many de- 
 sired objects which the common law afforded them no means 
 of attaining. As an instance of the exercise of this power we 
 may note the following: The student will remember that 
 in the earlier centuries of the feudal system, a will of lands, 
 if made, was void and of no effect, and that this continued 
 to be the law for many years after tfie power of alienation 
 inter vivos was recognized. But upon the full establishment 
 of equitable doctrines it became possible for the person 
 owning the lands to convej' them to another, to be by him 
 holden for the use and benefit of such person or persons as 
 the grantor should thereafter designate. Then by leaving 
 at his death proper instructions as to whom such use and 
 benefit should accrue, the owner of the lands became capa- 
 ble of exercising substantially all the powers and gaining 
 practically all the advantages to be obtained by actual com- 
 petency to dispose of his lands by a last will and testament. 
 
 § 314. How equity enforced a use. — For in such a case 
 the courts of equity would compel the person to whom the 
 " conveyance to use," as it was called, was made, to carry 
 out the intention of the grantor as expressed in the direc- 
 tions or instructions by him given.^ In this and in many 
 other ways did the effect of these decrees or orders in the 
 
 1 Bracton's Law Tracts, 818. * Cornish, Uses, 13. 
 
§§ 315-317.] ESTATES AND INTBEESTS IN EQUITY. 127 
 
 courts of equity interfere, with, hamper and defeat the strict 
 rules of the common law. 
 
 § 315. Conflict between church and state. — But more 
 than all this in its effect was the conilict so long maintained 
 for supremacy between the ecclesiastics and the barons — 
 the church and the state. At this period landed property 
 was practically all that was considered of value and conse- 
 quence in England. Hence it was the constant aim of each 
 party to acquire real property for itself and to prevent the 
 ownership thereof by its opponent.^ Owing to the peculiar 
 constitution of the Church of Eome, real property in a gen- 
 eral sense could be held only by those bodies or creatures of 
 the church embraced under the name of ecclesiastical cor- 
 porations. The growing power and wealth in landed prop- 
 erty of these church corporations alarmed the leaders of the 
 state party, who, it must be borne in mind, at that time 
 constituted the parliament, and thereupon they sought to 
 cripple the resources of the adherents of the church by en- 
 acting what is known as as the Statutes of Mortmain, which 
 provided, in effect, that no ecclesiastical corporation could 
 take title to lands either by deed or by will, or by any form 
 of gift or conveyance whatsoever. 
 
 § 316. Uses employed to evade the statute of mortmain. 
 But hardly had this measure been incorporated in the law 
 when the ecclesiastics found a means of evading it by a 
 *"■ conveyance to uses," as above explained. And so it was 
 accordingly' held that where a gift was made to A. for the 
 use and benefit of B., and B. was an ecclesiastical corpora- 
 tion and A. an individual, the latter should take and hold 
 the legal title, but that in equity B. was the owner of the 
 property, and hence entitled to all the benefits thereof. And 
 the courts of equity proceeded to enforce the rights of B. 
 as against A. 
 
 § 317. The necessity of further legislation. — The result 
 of these proceedings on the part of the ecclesiastics had of 
 necessity the practical effect of abrogating the operation of 
 
 iSBlk. Com. 328. 
 
128 ESTATES IN EQUITY. [§§ 318-320. 
 
 the statutes of mortmain, and thus to put the state party 
 again upon its mettle to devise further means for the ac- 
 complishment of its objects; It must have been apparent 
 to the legal representatives of this party at that time, that, 
 of necessity to the end sought, two results must be attained : 
 first, the annihilation of the effect of a conveyance to uses; 
 and second, the abolishment of the jurisdiction of courts of 
 equity over landed property. 
 
 § 318. Passage of the statute of uses. — "With these ends 
 in view, parliament, in the year 1535, passed the justly fa- 
 mous Statute of Uses,' than which, with the possible excep- 
 tion of the Habeas Corpus Act, no legislation has ever so 
 profoundly, or for so long a time, stamped its impress upon 
 the laws of the English people and their descendants.^ 
 
 §319. The provisions of this statute. — The statute of 
 uses contained several provisions, but we need notice only 
 those which affect the subjects under consideration. Of 
 those, the most important was that provision which declared 
 that, whenever conversance was made to one for the use 
 of another, the person who was thereby to have the hen- 
 eficial (that is the equitable) estate should, as a matter of 
 law, have also the legal estate; that is to say, the statute ex- 
 ecuted the use in the person beneficially entitled. Thus, if 
 gift were made to A. for use of B., A. took no estate what- 
 ever, while B. received both the equitable and legal title.' 
 
 § 320. The statute in operation — Its eifect.^ The op- 
 eration of the statute upon those conveyances to uses made 
 to evade the statutes of mortmain will be at once apparent; 
 for if gift were made to one for the use of an ecclesiastical 
 corporation, the statute would at once pass the legal estate 
 to such corporation ; but it being unable to take a legal estate 
 
 'Statute 27 Henry VIII., ch. 10. Prop. 133; 3 Preston on Convey- 
 
 2 Statement of Lord St. Leon- anoes, 474. 
 ards (Mr. Sugden). See further 'Greenl. Cruise, Dig., title "Use," 
 upon this sfatute generally, Gil- 326, sec. 34; Smith, Real and Pers. 
 bert on Uses, 74 et seq.; Will. Real Prop. 155; Witham v. Brooner, 63 
 
 111. 344, and oases therein cited. 
 
§§ 321-323.] ESTATES AND INTERESTS IN EQUITY. 129 
 
 by reason of mortmain, the entire gift failed, and neither 
 the one to whom the conveyance to use was made nor the 
 cestui que use took any interest or estate whatever. 
 
 § 321. Result of the operation of this statute. — Thus, 
 temporarily, at least, did the promulgators of the statute 
 thereby attain the objects by them sought. It would fur- 
 thermore appear that during the period immediately pre- 
 ceding the passage of this statute the jurisdiction of courts 
 of equity over landed property was exercised in those cases 
 only where conveyance had been made upon some use, trust 
 or confidence ; and that consequently, when such con vej'^ances 
 became inoperative by the operation of the statute, the courts 
 of equity were practically robbed of their jurisdiction over 
 landed property.^ 
 
 § 323. Methods adopted for evading the statute. — But 
 as the court of equity was distinctively the forum of the 
 ecclesiastics, and as it had now come to pass that the people 
 at large desired the continuance of that court in the full en- 
 joyment of its former prerogatives, ways and means were 
 soon fonnd to evade the operation of the statute.^ The point 
 was made (among others) that the statute could operate in 
 any given case but once, so that if a gift were made to A. for 
 use of B. for use of C, B. would take the legal and 0. the 
 equitable estate;' and further, that where conveyance was 
 made to uses, and there were in connection therewith cir- 
 cumstances which demanded that the grantee therein should 
 retain the legal estate in order that he might properly per- 
 form his duties toward the cestui que use, the statute would 
 not operate, and the conveyance would be undisturbed in 
 its effect thereby.* 
 
 § 323. Limiting a use upon a use.— The courts having 
 sustained these and several other instances wherein it was 
 
 1 Will. Real Prop. 133. But see 3 Greenl. Cruise, title Trust, ch. 1, 
 Gilbert, Uses, 74, and Sanders, sees. 4, 5, 6. 
 Uses, 86. ^Fearne, p. 432; Cruise, Dig. 387. 
 
 21 Rep. Eng. Com. Real Prop. 8; 
 Gilbert, Introd., Uses, 63. 
 9 
 
130 ESTATES IN EQUITY. [§ 324. 
 
 maintained that the statute could not operate under certain 
 conditions, a class of cases arose wherein the courts of equity 
 retained their jurisdiction, and from this source has sprung 
 the complex system of equitable jurisprudence of to-day, so 
 far as the same has reference specifically to landed estates. 
 We are thus informed that uses or conveyances to use had 
 their existence originally under three separate conditions: 
 uses before the statute: uses under the statute, and uses 
 after the statute; each being governed by its own specific 
 rules, and exercising its own functions in the law.^ 
 
 § 324. Of uses before the statute. — And first, then, of 
 uses before the statute. The common law originally ad- 
 mitted of no estate which had not the incidents of seisin 
 and possession. But the inroads made by the doctrines of 
 the courts of equity led to the creation and recognition of 
 a sort of interest or estate in landed property wherein the 
 legal estate was in one person, and the beneficial interest, 
 *. e., the right to the rents, issues and profits of the land, in 
 another.^ Such an interest was denominated a use, and 
 was created in the manner following: The owner of the 
 land conveyed it by feoffment with livery of seisin to some 
 trusted friend, with an agreement in secret that the feoffee 
 should hold the land to such uses as were then or should be 
 thereafter decided upon by the grantor. The idea of a use, 
 and the rules by which it was originally governed, were un- 
 doubtedly adapted from the civil law, where it had been 
 originated for the assistance of certain persons who, under 
 the Roman law, were incapable of taking as heirs.' 
 
 When uses were first incorporated into the English 
 law the cestui que use was dependent entirely upon the 
 good faith of him who was made feoffee to use, and as a 
 matter of course many breaches of trust were committed 
 in connection therewith. These evils growing constantly, 
 
 1 This classification is logical and Law Tracts, 150; 3 Washh. Real 
 generally adopted. Prop. 388. 
 
 2Tudor's Lead. Cas. 252; Bacon, sg Blk.Com. 338; 1 Brown, CiTil 
 
 Law, 304; Bacon, Law Tracts, 515. 
 
§§ 325, 326.] ESTATES AND INTERESTS IN EQUITY. 131 
 
 and taken together with the fact that these secret convey- 
 ances tended to abrogate that notoriety of the transfer and 
 ownership of landed property so jealously guarded by the 
 law, as well as to the loss by the crown of certain of its 
 feudal privileges, led to the passage of the statute 27 
 Henry VIII., the Statute of Uses hereinbefore referred to, 
 the immediate effec't of which was the abolition of uses in 
 the simple form which we have been considering.^ 
 
 § 325. Uses under the statute. — Secondlj'-, then, of the 
 Statute of Uses. This statute, it is to be understood, was the 
 outgrowth or culmination of the efforts of the party of the 
 state to prevent what to them appeared to be an abuse of 
 their rights as secured by the common law.^ The statute as 
 enacted was presumed to accomplish the end in view by 
 converting the equitable interest or estate of the cestui que 
 use into a legal estate — that is, to take such estate or in- 
 terest out of the jurisdiction of the courts of equity, where 
 it had recognition and protection, and so change the nature 
 thereof that it became cognizable in courts of law, and hence 
 to be governed solely by the principles of the common law.' 
 The statute has so far answered the purpose of its makers 
 that no use upon which it Operates can exist in its former 
 state for more than an instant; for by the terms thereof the 
 seisin and possession are instantly attached to the equitable 
 estate of cestui que use, thus investing it with all the attributes 
 of a legal estate.* 
 
 § 326. Effect of statute upon uses. — In dealing with the 
 statute of uses the courts of common law announced the 
 doctrine that no uses could be executed by the statute which 
 were not limited in conformity with the rules of the com- 
 mon law.' And the courts have so far adhered to this con- 
 
 iCo. Lit. 271, Butler's note 331, 'Sand. Uses, 86; Gilbert, Uses 
 
 sec. 3. (Sngden's ed.), 139, note. 
 
 *This view is supported by the *iGreenl. Cruise, title "Use," ch. 
 
 language of the preamble to the IV, sec. 3. See also thereunder, 
 
 statute, "to the utter subversion title 16. 
 
 of the ancient common law of this 'Greenl. Oniise,Big.,Tol.l,p. 363. 
 I'ealm." 
 
132 ESTATES IN EQUITY. [§§ 327, 328. 
 
 struction of the statute that the same technical words of 
 limitation are required in the creation of estates through 
 the medium of uses as in their creation at common law. 
 And hence we find that, no matter whether a certain estate 
 appears at law or in equity, it retains the name which was 
 given it as a legal estate to indicate its quality and quantity. 
 So that we speak of a legal or an equitable estate in fee, for 
 life, etc. ; and a modern use is defined as an estate which is 
 acquired through the operation of this statute; and which, 
 when it may take effect according to the rules of common 
 law, is called a legal estate, and when it may not, is denom- 
 inated a use, with a term descriptive of its modification.^ 
 
 §327. Illustrations. — To illustrate: If A., seized of a free- 
 hold, desires to alien the same to B., he may do so by feoffment 
 with livery of seisin (that is to say, by any method prescribed 
 by the common law), or he may accomplish the same result 
 by making conveyance to 0. for the use of B., which use the 
 statute will at once execute, thus vesting the legal estate in B.^ 
 But, as we have seen, there were certain conveyances to 
 uses upon which the statute did not operate, and when such 
 Avere limited, the effect was that no union of the legal and 
 equitable estates in one and the same person resulted, and 
 then both the legal and the equitable estates had still a 
 separate existence. 
 
 § 328. Form of conveyance not affected by the statute. — 
 The statute was intended only to destroy the estate of the 
 feoffee to uses by transferring it to the person who was 
 thereunder entitled to the use, and not to destroy the form 
 of the conveyance to uses.' The operation of the statute 
 gave rise, therefore, to several new forms of conveyances 
 which operate contrary to the rules of the common law. If 
 we examine, for instance, the ordinary deed of conve^'ance 
 generally in use at the present time, we find that it operates 
 to transmit the seisin by way of the statute of uses; for such 
 
 1 Cornish on Uses, p. 35. ' Bacon's Read. 39. 
 
 2Will. Real Prop. 150; i Kent's 
 Com. 294. 
 
§§ 329, 330.] ESTATES AND INTERESTS IN EQUITY. 133 
 
 a deed is simply proper evidence of the fact that A. has bar- 
 gained with B. for certain lands, and paid to him the pur- 
 chase price as agreed, whereupon B. holds to the use of A., 
 and the statute, instantly executing this use, vests the legal 
 title in A., without further act or proceeding by either party .^ 
 
 § 329. The statute of uses still in force. — The statute 
 of uses is still very generally in force, and, as has been shown, 
 holds an important place in the modern law of real prop- 
 erty. Though we have discussed its origin and effect under 
 the general title of "Equitable Estates," the student will 
 understand that every estate arising under the operation of 
 this statute is a legal and not an equitable estate, and that it 
 is solely by reason of the fact that the statute /a«^^s to oper- 
 ate in certain cases, that a class of equitable estates exists, 
 the consideration of which will be our next undertaliing. 
 
 § 330. Trust estates. — And now of those estates arising 
 by reason of the statute of uses failing to act in certain 
 cases, and denominated generally as trust estates. As we 
 have observed, the object of the statute of uses was to de- 
 stroy that double property in land which resulted from the 
 invention of conveyances to uses. Had the intention of its 
 prpmulgators been carried into full effect, no use could ever 
 have existed for more than an instant, for the moment a use 
 was created the statute would have executed it, thus vesting 
 both the legal and equitable estate in the cestui que use, and 
 so destroying the equitable estate. But the strict construc- 
 tion put upon the statute by the courts defeated, in a large 
 measure, the objects for which it was enacted. For it was 
 held that there were certain uses upon which the statute 
 had no effect. So that uses were not entirely abolished, but 
 still continued separate and distinct from legal estates, and 
 
 1 The effect of the statute of utory Interests." The example 
 
 uses upon testamentary disposi- here given states the operation and 
 
 tions, and upon future estates and legal effect of the warranty deed 
 
 interests generally, will be dis- now in such general use in this 
 
 cussed in the subsequent chapters country, 
 on "Title by Devise" and "Exec- 
 
134 ESTATES IN EQUITY. [§§ 331-333. 
 
 were recognized and supported by courts of chancery as 
 such, under the general nartie of trusts.^ 
 
 § 331. These estates defined.— A trust is therefore a 
 use not executed by the statute of 27 Henry VIII. Origi- 
 nally the words use and trust were perfectly synonymous, 
 and both are mentioned in the statute.^ But as the provis- 
 ions of the statute were not deemed co-extensive with the 
 various modes of creating uses, such uses as were not pro- 
 vided for by the statute were left to their former jurisdic- 
 tion. 
 
 § 332. The same described and explained. — A trust es- 
 tate may be described to be a right in equitj' to take the 
 rents and profits of lands whereof the legal estate is vested 
 in some other person ; to compel the person thus seized of 
 the estate, who is called the trustee, to execute such convey- 
 ances of the land as the person entitled to the profits, who 
 is called the cestui que trust, shall direct; and to defend the 
 title to the land.' There are three distinct modes of creat- 
 ing a trust ; that is to say, there are three principal oases 
 in which legal estates, created upon trusts for certain pur- 
 poses, will not be executed or transferred from the common- 
 law grantee to the beneficiary by force of the statute. 
 
 §333. Effect of active trusts, etc. — In the first place 
 an active duty might be imposed on the grantee of the land 
 to do certain acts in reference to it for the benefit of some- 
 body else. Land might be granted to A. upon trust to 
 collect and pay over the rents to B. Here it would be 
 evidently intended that A. should be the legal owner, but a 
 conscientious obligation would bind him to carry out the 
 trust upon which he had received the land. Where, there- 
 fore, an active duty was imposed upon the common-law 
 grantee, the use or trust was not executed by the statute 
 but was left to be enforced by the court of chancery.'' Such 
 a trust was known as an active, as opposed to & passive trust, 
 
 iareenl.Cruise,Dig.,.vol. l,p. 381. p. 381; 2 Washb. Real Prop. 458; 
 
 2 1 Preston, Estates, 184. 1 Spence, Eq. Jur. 494. 
 
 ^Greenl. Cruise, Dig., vol. 1, * Harlow v. Cowdi-y, 109 Mass. 183. 
 
§§ 334-336.] ESTATES AND INTEBESTS IN BQCITY. 135 
 
 wherein the trustee had no duties to perform further than 
 to transmit the legal estate to the cestui que trust. If lands 
 are conveyed to A. upon trust to allow B. to receive the 
 profits, no active duty being imposed on A., this use is 
 within the statute and is executed, the legal estate resting 
 inB.i 
 
 §334. Trusts in chattel interests. — The second case 
 was where a trust was declared upon a chattel interest. This 
 case is not provided for by the statute. If, therefore, a term 
 of years be given to A. in trust for B., the legal estate vests 
 in A., and the trust could only be enforced by the court of 
 chancery.^ 
 
 § 335. Use upon a use^ more at length. — But the most 
 important instance of the failure of the statute in this par- 
 ticular arises from a rule established in Tyrrell's Case,' where 
 it was laid down that a use cannot be limited on a use. The 
 reason given by Lord Bacon for this determination is, be- 
 cause the words of the statute are : where any person is 
 seised of any lands or tenements, to the use of any other 
 person ; which exclude uses, as they do not fall within either 
 of those descriptions.^ By others, the failure of the statute 
 to operate in such a case is put upon the ground that the 
 ability of the common-law seisin to furnish forth the use 
 was exhausted in supplying the vested legal interest in the 
 first henefioiary, and could do nothing more with regard to 
 the second; in other words, that the statute cau/ operate but 
 once in any given conveyance to execute a use.' 
 
 § 336. Statute can operate but once. — Eeasoning of a 
 similar character led the lawyers to hold that when once 
 the statute had been called into operation its powers were 
 exhausted, and hence on a feoffment to A. and his heirs, to 
 the use of B. and his heirs, to the use of C. and his heirs, it 
 
 1 Digby, Hist. Real Prop., oh. VII, Uses, 29, and Fletch., Trust, 37, f or 
 sec. 4. statement of rule. 
 
 2 The student is again cautioned 3 \ Dyer, 155a. 
 that, in certain jurisdictions, stat- * Bacon, Read. 43i 
 
 utory enactments have changed 5 Digby, Hist. Real Prop., ch. VII, 
 this general rule. See Cornish, sec. 4; Watkins, Conv., Introd. XX. 
 
136 ESTATES IN EQUITY. ^ [§§ 337, 338. 
 
 was impossible to give any effect to the limitation iu favor 
 of C. But as it was evident that B. was not intended to be 
 benefited by that conveyance, the court of chancery took 
 cognizance of the case, and decreed that B. should be the 
 trustee of C. Thus the doctrine arose that there could not 
 be a use upon a use, or, in other words, that if a use were 
 limited upon a use in a conveyance, the statute would oper- 
 ate to execute Xhe first use only. And thus was restored the 
 distinction between the equitable and the legal estates which 
 it was the design of the statute of uses to abolish.' 
 
 § 337, What estates may be created in trusts. — Such is 
 the origin of modern trusts ^ under which so large a portion 
 of the landed property of this country is now held. The 
 student must accustom himself to the meaning and use of 
 these technical terms. The legal estate is vested in the 
 trustee, in trust for the cestui que trust, who has the equi- 
 table estate. Whenever the rules of law are applicable, 
 trusts or equitable estates or interests follow those rules. 
 Thus an estate in trust may be created in fee, in tail, for 
 life or for years. Such an estate, when of inheritance, will 
 descend ab intestato according to the rules regulating legal 
 estates.' Future estates in remainder and executory inter- 
 ests can be created in the same way, and are subject to the 
 rule against perpetuities. The husband of cestui que trust is 
 entitled to an estate by the courtesy, and the widow of the 
 same to dower.* 
 
 § 338. Trusts by implication of law. — Besides the crea- 
 tion of trusts of lands expressljr by a declaration of the in- 
 
 11 Prest. Abst. 142. In Hopkins be, "a right on the part of the 
 
 V. Hopkins, 1 Atk. 591, Lord Hard- cesfMigwefrusfto receive tbeprofits 
 
 wicke said: " By this means a stat- and dispose of the lands in equity." 
 
 ute, made upon great considera- 1 Sand. Uses, 267. Tliis definition 
 
 tion, introduced in a solemn and is adopted by Kent. 4 Kent's Com. 
 
 pompous manner, by this strict 314. 
 
 construction has had no other e£- 'Will. Real Prop. 139; 3 Flint 
 
 feet than to add, at most, three Real Prop. 631. 
 
 words to a conveyance." * Digby, Hist. Real Prop., ch. VII, 
 
 2 Mr. Sanders defines a trust to sec. 4 
 
§ 339.] ESTATES AND INTERESTS IN EQUITY. 137 
 
 tent of the grantor, which, though complete in itself, is 
 insufficient to convey the legal estate, there is also a large 
 class of what are called im,j)lied trusts. Such trusts are also 
 known as resulting trusts, and are especially saved from the 
 requirement as to writing made in and by the statute of 
 frauds. Thus where an estate is purchased in the name of 
 one person and the consideration is paid by another, there 
 is a resulting trust in favor of the person paying the con- 
 sideratioa.^ 
 
 § 339. Who may be made trustees. — Any person, or even 
 a corporation, not under disability of law, may be made 
 trustee for another by direct grant, and in cases of implied 
 or resulting trusts any person may sustain such a relation 
 toward another. The estate of the cestui que trust is equiv- 
 alent to legal ownership ; it is alienable and devisable,^ and 
 also liable to be taken for the debts of its owner.' 
 
 For a further and rnore technical explanation of trusts in 
 general the student is referred to works on equity jurispru- 
 dence and practice where the subject is treated at length. 
 
 1 3 Washb. Real Prop. 470, citing ' This is the general but not uni- 
 Nightingale v. Hidden, 7 R. I. 121. versal rule in the United States. 
 2 1 Spence, Eq. Jur. 501. It is statutory in England. 
 
CHAPTER XIV. 
 
 EXECUTORY INTERESTS. 
 
 § 340. Future estates in equity. 
 
 341. Contingent estates at law. 
 
 343. Contingent estates in equity. 
 
 343. Executory interests — How created. 
 
 344. Executory uses. 
 
 345. Illustrations. 
 
 346. Springing and shifting uses in practice. 
 
 347. Remainders and future uses. 
 
 348. Executory interests defined. 
 
 349. Executory devise defined. 
 
 350. Further defined. 
 
 351. Origin of executory devises. 
 353. Efl:ect of statute of wills. 
 
 353. Executory devises in practice. 
 
 354. May be effective without employing uses. 
 
 355. Power of alienation. 
 
 356. Powers, generally. 
 
 357. Definition and explanation. 
 
 358. Are a species of executory Interests, 
 
 359. Powers of appointment. 
 
 360. Sometimes equivalent to an estate. 
 
 361. Rules for construction. 
 
 363. Further requisites — Statutory changes, etc. 
 
 § 340. Future estates in equity. — We have already de- 
 voted some time to future estates at law. "We are now to 
 enter upon the consideration of such estates when existing 
 under and by virtue of the doctrines of equity. It will be 
 remembered that contingent remainders are future estates 
 which were continually liable, at the common law, until 
 they actually vested, to be destroyed altogether.' But we 
 find in those future estates and interests known generally 
 
 iWill. R. P. (17th ed.), p. 433. See ante, "Future Estates." 
 
§§ 34:1-343.] EXECUTOET INTERESTS. 139 
 
 as executory interests, a class of future estates which in their 
 nature are indestructible.^ 
 
 § 341. Contingent estates at law. — A contingent re- 
 mainder requires in every instance an estate of freehold to 
 support it, and in every case where this supporting estate 
 fails for any reason, or comesHo an end before the happen- 
 ing of the contingency on which the remainder is limited 
 to vest, the remainder is at once rendered void and of no 
 effect, and the remainderman loses his estate. The reason 
 underlying this rule is that at law the seisin passes out of 
 the grantor to the tenant of the prior or supporting estate, 
 and it is from such tenant, if at all, fehat the remainderman 
 must take seisin ; and, therefore, whenever such tenant loses 
 his seisin by reason of the failure or determination of the 
 prior estate, before the remainder is ready to vest, the rights 
 of the remainderman determine also, because he thus be- 
 comes incapable of being seised of the estate in remainder. 
 
 § 342. Contingent estates in equity.- — It will be further 
 remembered that one of the effects of the operation of the 
 statute of uses was the doing away with the necessity of 
 livery of seisin.^ Applying this principle to the matter of 
 future estates, we find that it thus became possible, by a 
 conveyance to uses, to create future estates, dependent upon 
 some contingency, but requiring no estate to precede or sup- 
 port them, and hence incapable of destruction by the pre- 
 mature failure of a supporting estate, for the seisin passed 
 by mere operation of law in all cases upon which the statute 
 operated.' 
 
 § 343. Executory interests — How created. — Executory 
 interests may be created either by deed or in a will.* "Where 
 created by the former, the conveyance must always be lim- 
 ited and operate by way of the statute of uses; but when 
 
 i2Blk. Corn. 173; Smith v. Hun- subject, see the leading case of 
 
 ter, 23 Ind. 583; 3 Washb. Real Hopkins v. Hopkins, Gas. t. Talb. 44. 
 
 Prop. 699. * Will. Real Prop., chapter on 
 
 ^ See preceding chapter. Executory Interests. 
 
 3 For a general discussion of this 
 
140 ESTATES IN EQUITY. [§§ 344, 343. 
 
 arisiog under the latter they may be limited either with or 
 without invoking the assistance of the statute. When cre- 
 ated by way of the statute, either by deeds or in wills, ex- 
 ecutory interests are called springing uses, or shifting uses, 
 according to their nature, to be hereinafter explained.' 
 
 § 344. Executory uses. — It appears that the courts of 
 equity had for a long period of time prior to the passage of 
 the statute of uses given effect to a class of future or ex- 
 ecutory interests or estates, limited by way of uses, which 
 were of a nature not cognizable in the courts of law. Upon 
 the passage of the statute, however, uses, as such, ceased to 
 exist and became estates at law. But in so doing they re- 
 tained certain of the characteristics which had distinguished 
 them in the courts of equity. Among the dispositions of 
 property thus allowed were these executory interests in 
 which the seisin is shifted about from one person to another 
 as directed in and by these springing and shifting uses, to 
 which the seisin has been indissolubly united by the statute 
 of uses.^ 
 
 § 345. Illustrations. — For instance, if feoiJment be made 
 to A. and his heirs, to the use of B. and his heirs from to- 
 morrow, the limitation, at law, would be void, because there 
 would be a period of time during which the seisin would be 
 without an owner, thus violating an established rule of law. 
 But equity will enforce the use in favor of B. The student 
 will perceive that this was not such a limitation as the stat- 
 ute could at once act upon to execute, because there was no 
 cestui que use immediately entitled to take the legal estate. 
 It was therefore left to become operative as an executory 
 interest, in the shape of a springing use, so called because 
 when the time arrived the right of B. would spring up of its 
 own strength, depending on no prior supporting estate, and 
 hence incapable of destruction by any failure thereof. It 
 therefore now comes about that by means of uses the legal 
 
 1 Gilbert, Uses (Sugd. ed.), 153, n.; 2Wyman v. Brown, 50 Me. 139; 
 
 Cornisli, Uses, 19. Wilson, Uses. 9. 
 
§§ 346, 347.] EXEcaTOEY intekests. 141 
 
 seisin of lands may be shifted from one person to another in 
 an endless variety of ways.^ 
 
 §346. Springing and shifting uses in practice. — A 
 simple illustration will serve to make plain the operation 
 and utility of shifting uses. Suppose the case of ar gift to 
 A. and his heirs, to the use of B. and his heirs from to-mor- 
 row (already explained as a springing use), which we have 
 seen is of no effect as an estate at law. But by means of 
 shifting uses the desired result — that is, the giving of the 
 estate to B. in fee after to-morrow . — may be accomplished. 
 For the estate may be conveyed to A. and his heirs, to the' 
 use of the grantor of A. and his heirs until to-morrow, and 
 then to the use of B. and his heirs. Here the statute oper- 
 ates at once to execute the use, and vests the legal estate in 
 the grantor of A. until to-morrow, when B.'s rights arise, 
 and such legal estate thereupon instantly shifts from the 
 grantor of A. over to B. and his heirs, and hence is called a 
 shifting use.^ 
 
 § 347. Remainders and future uses. — Upon this branch 
 of the subject Mr. Williams says : " By means of a use a 
 future estate may be made to spring up with certainty at a 
 given time. It may be thought, therefore, that contingent 
 remainders, being destructible, would never have been made 
 use of in modern conveyancing, but that everything would 
 have been made to assume the shape of an executory inter- 
 est. This, however, is not the case. For, in many instances, 
 future estates are necessarily required to wait for the regu- 
 lar expiration of those which precede them; and when this 
 is the case, no art or device can prevent such estates from 
 being what they are, contingent remainders. For the law, 
 having been acquainted with remainders long before uses 
 were introduced into it, will never construe any limitation 
 to be a springing or shifting use which, by any fair interpreta- 
 tion, can be regarded as a remainder." ' 
 
 1 Will. R. P. (17th ed.), p. 435. « Will. R. P. (17th ed.), pp. 436-37; 
 
 2 Packard v. Ames, 16 Gray, 32S. Fearne, Cont. Rem. 386 et seg. 
 
142 ESTATES IN EQUITY. [§§ 348-351. 
 
 § 348. Executory interests defined. — Thus it will be 
 seen that an executory interest is a future estate so limited 
 that, while not good as a remainder, it is yet recognized as 
 conferring the estate thereby created upon the person ap- 
 pointed to receive it, and differs from a contingent remain- 
 der chiefly in that it is incapable of destruction. It is also 
 to be observed that by way of an executory interest a fut- 
 ure estate may be limited after a fee.' Executory interests 
 created by deed are now less frequently met with than 
 when limited in wills, and when found in the latter instru- 
 ments the}'^ are known generally as executory devises. 
 
 I 34:9. Executory devise defined. — Mr. Fearne, in his 
 work on Remainders, says that an executory devise is, 
 strictly, such a limitation of a future estate or interest in 
 lands as the law admits in the case of a will, though con- 
 trary to the rules of limitation in conveyances at common 
 law, and that it is only an indulgence allowed to a man's 
 last will and testament when otherwise the words of the 
 will would be void.^ 
 
 § 350. Further defined. — Again, an executory devise 
 being the limitation by will of a future estate or interest in 
 land which cannot take effect as a remainder, it follows 
 that every devise of a future interest which is not preceded 
 by an estate of freehold created by the same will, or which, 
 being f^o preceded, is limited to take effect iefore or after, 
 and not at the expiration of, such prior estate of freehold, is 
 an executory devise.' 
 
 § 351. Origin of executory devises. — The subject of 
 testamentary disposition of lands will be treated at length 
 in a subsequent chapter ; * but it may not be out of place 
 here to trace briefly the origin of that particular lim- 
 itation in wills known as an executory devise. It would 
 seem that from the earliest times the courts have ever 
 
 1 Cornish, Uses, 92,94; Co. Litt. sjarman on Wills, 778. 
 371&, note 231, sec. 3. « " Title by Devise," $osL 
 
 2 Fearne, Rem. 883. See also 1 
 Jarman on Wills, 79a 
 
§§ 352, 353.] EXECTJTOET INTEEESTS. 143 
 
 shown great indulgence to testators. Before the passage of 
 the statute of uses, wills were employed only in the devis- 
 ing of uses, which of course were rendered effectual by the 
 courts of chancery. These courts, in permitting the devise 
 of the use of such lands as were not themselves devisable, 
 also allowed the creation of future estates and interests 
 iy will as well as in transactions between living persons.' 
 But the passage of the statute of uses abolished for a time 
 all wills of uses; this hardship was, however, so generally 
 complained of, that parliament, a few years later, restored 
 the right of testamentary disposition by the enactment 
 known as the S.atute of Wills (32 Henry VIII., ch. l).^ 
 
 § 352. Effect of the statute of wills.— By this statute all 
 estates at law became devisable, and the courts of law in the 
 exercise of justice soon adopted the same lenient course of 
 treatment with regard to testators that had formerly obtained 
 in the courts of chancery in their dealings with them under 
 the ancient use.' While the executor or usee had formerly 
 been permitted to dispose of only the heneficial estate, he 
 was now empowered to dispose of the legal estate as well, 
 and future estates at law, invested with the important at- 
 tribute of indestructibility belonging to all executory inter- 
 ests, were allowed to be created by will.* These future 
 estates or interests when so created were termed Executory 
 Devises, and possess generally the characteristics of the 
 shifting uses heretofore explained.' 
 
 § 353. The executory devise in practice. — The practica- 
 bility and operation of limitp.tions of this nature may be 
 shown by an example. A testator may devise lands to his 
 son A., an infant, and his heirs, but, in case A. should die 
 under the age of twenty-one years, then to B. and his heirs. 
 Here A. has an estate in fee simple in possession subject to 
 an executory intea-est in favor of B. If A. should not die 
 
 1 Will K. P. 357. * Will. E. P. 457. 
 
 2 Passed in 1542. 8 Lewis, Perpst 78, 79; WilL E. P. 
 aSpenoe, Eq. Jur. 470; 2 Blk. 259. 
 
 Com. 383. 
 
lii ESTATES IN EQUITY. [§§ 354-356. 
 
 under the age of twenty-one years, his estate in fee simple 
 will continue with him unimpaired ; but in event of his dying 
 under that age, nothing could prevent the estate of B. from 
 immediately arising and coming into possession and displac- 
 ing forever the estate of A. and his heirs. 
 
 § 354. May be eifective without employing uses. — The 
 effect of this limitation so made in a will is identical with 
 that which might have been produced by the employment 
 of uses, for a gift to C. and his heirs to the use of A. and his 
 heirs, but, in case A. should die under age, then to the use of 
 B. and his heirs, would have effected the same result, and 
 by means of uses the limitation would be a good one whether 
 made in a will or a deed. JSTow a conveyance directly to A. 
 and his heirs would vest in him an estate in fee simple, after 
 which no limitation could follow. In such a case, therefore, 
 a direction that if A. should die under age, etc., would be of 
 no effect. Hence it becomes apparent that it is only by 
 virtue of the peculiar rules applicable to limitations of future 
 estates and interests when made in wills, that, in many in- 
 stances, the intention of the testator is effectuated. 
 
 § 355. Power of alienation. — In common with other con- 
 tingent estates, executor}- interests and devises were formerly 
 deemed inalienable.^ But the restrictions have been gradu- 
 ally removed and such interests are now freely alienable. 
 Thus, in the example above given, of a devise to A. and his 
 heirs, but, in case A. should die under age, then to B. and 
 his heirs, B. may by deed during A.'s minority dispose of his 
 expectancy to another person, who, should A. die under age, 
 will at once stand in the place of B. and obtain the estate 
 in fee. 
 
 § 356. Powers. — It ofttimes happens that grantors and 
 testators are desirous of so disposing of their property that 
 the title thereto will vest at once in some certain person, 
 and thereafter shall be given to such person or persons as 
 the original grantee or devisee, or some other person named 
 
 1 Washb. Real Prop. 680; Wilson, Uses, 159; Jones v. Roe, 3 T. R. 95. 
 
§§ 357-359.] EXECUTOEY IKTEKESTS. 145 
 
 in the limitation, shall appoint to take it.' Thus lands may- 
 be devised to A. and his heirs, to such uses as B. shall there- 
 after by deed or by will appoint, and in default of and until 
 B. exercises such power of appointment, to the use of C. and 
 his heirs. Under this limitation a vested estate is conferred 
 on C, subject to be divested at any time by B.'s exercising 
 his power of appointment. 
 
 § 357. Definition and explanation.— The student will 
 perceive that this procedure presents a new mode of con- 
 veyance, operating through the medium of springing and 
 shifting uses;^ and inasmuch as such uses may be created 
 either by deed or by will, lands may be transferred in this 
 manner either by will or deed; for powers, as these forms 
 of transfers are called, are methods of causing a use to spring 
 up at the will or discretion of any given person.* 
 
 § 358. Are a species of executory Interests. — Powers 
 are in form and general attributes executory interests, and 
 are so called from the fact that their distinguishing feature 
 is that some given person has the power to raise the use in 
 another.* Powers before the statute of uses were merely 
 directions to the trustee of the legal estate how to convey 
 the estate. They were future uses to be designated by the 
 person to whom the power was delegated. These, when they 
 arose, equity compelled the trustee to observe; and when 
 conveyances under the statute of uses became established, it 
 was still usual to reserve or limit such powers as the exi- 
 gencies of the case required; thus there arose powers to sell, 
 lease, exchange, etc.^ 
 
 §359. Powers of appointment. — These limitations are 
 sometimes oailed powers of appointment. They confer on a 
 person a power of disposition over some interest in lands 
 quite irrespective of the fact whether or not he has any in- 
 
 1 See Sugden on Powers, 4; Cor- * Reference is not made to acts 
 nish, Uses, 19. done by one as the agent or attor- 
 
 2 Washb. Real Prop. 634. ney of another. 
 
 3 Will. R. P. (17th ed.), p. 438. « Siigden on Powers, p. 11. 
 
 10 
 
146 ESTATES IN EQUITY. [§§ 360-362. 
 
 terestin such lands himself," though in certain cases the 
 extent and duration of the power may be affected by the 
 interest, if any, which the person who is to exercise the power 
 possesses in the lands. He who grants the power is called 
 the donor, while he who receives it is the donee. 
 
 § 360. Sometimes equivalent to an estate. — But while a 
 power does not necessarily import ownership in the donee, 
 it will be seen that in a general appointment, that is one 
 where the donee may appoint whomsoever he pleases as 
 'Cestui que use, it comes to almost the same thing as owner- 
 ship, for such donee may appoint himself and thus receive 
 the interest in the lands. So it has been held that a devise 
 to a person in terms importing that he may dispose of the 
 property at his absolute discretion confers an estate in fee 
 simple and not a power, though in a deed such form of lim- 
 itation would merely confer a power of appointment.^ 
 
 §361. Rules for construction. — In construing powers, 
 when created \>y will, the courts observe that same indul- 
 gence with regard to the wishes of the testator which is 
 exercised when dealing with executory devises in general, 
 and as a result powers may be limited in a will without em- 
 ploying the statute of uses, but otherwise in a deed.' 
 
 §362. Further requisites — Statutory changes, etc. — 
 Referring again to the example above given, suppose B. 
 should exercise the power and appoint the lands iy deed to 
 the use of D. and his heirs. In this case the execution by 
 B. of the instrument required by the power is the event on 
 which the use is to spring up and to destroj'^ the estate 
 already existing. The moment, therefore, that B. has duly 
 executed the power of appointment over the use in favor of 
 D. and his heirs, D. has an estate in fee simple vested in him 
 
 1 Digby, Hist. R P., ch. VII, sec. 2. 2 Leake, Land Law, 387. The 
 
 Mr. Washburn holds the opinion student will find statutory restrio- 
 
 that powers have their origin and tions regarding this point in some 
 
 ■character solely from the statute of the states. 
 
 ■of uses. 2 Washb. Real Prop. 635. ' 2 Washb. Real Prop. 882; Watt. 
 
 Mr. Chance seems to think other- Con v. 258; 4 Kent's Com. 819. 
 •wise. Chance, Powers, sees. 5-12. 
 
§ 362.] EXECUTORY INTEKESTS. 147 
 
 by virtue of the statute of uses in respect of the use so ap- 
 pointed in his favor, and the previously existing estate of B. 
 is thenceforth completely at an end.^ In the exercise of a 
 power it is absolutely necessary that the terms of the power 
 and all the formalities required by it should be strictly com- 
 plied with. So if the power requires a deed, a will is not 
 sufiBcient, etc., though it should be remarked that courts of 
 equity and statutory enactments have done much to relieve 
 the hardships arising from the defective execution of powers. 
 
 iWilL R. P. (17th ed.), p. 440. 
 
CHAPTEE Xy. 
 
 MORTGAGES. 
 § 363. Definition. 
 
 364. Signification of the term. 
 865. Effect of equitable doctrines. 
 
 366. Reasons for the rule. 
 
 367. The mortuum vadium. 
 
 368. The common-law mortgage. 
 
 369. Establishment of right to redeem. 
 
 370. The mortgagor's equity of redemption. 
 
 371. Once a mortgage, always a mortgage. 
 
 372. Mortgage is a chattel interest. 
 
 373. Mortgage deeds. 
 
 374. No uniform law of mortages. 
 
 375. Estate of mortgagee at common law. 
 
 376. The two theories of the mortgage relation, 
 
 377. The lien theory. 
 
 378. Relation not defined in all states. 
 
 379. Forms of mortgages. 
 
 380. Liens — Mechanic's, vendor's, etc 
 
 381. Forms of mortgage deeds. 
 
 382. What estates may be mortgaged. 
 
 383. Rights and remedies. 
 
 384. Power of sale and transfer. 
 
 385. Releases. 
 
 § 363. Definition. — A mortgage, as we have it in the law 
 at the present day, is a conditional conveyance of an inter- 
 est or estate in land, made for the purpose of securing the 
 due performance of some obligation — usually of a pecun- 
 iary nature — by the grantor (mortgagor) therein.' Tech- 
 nically speaking, mortgages are common-law conveyances; 
 but the doctrines of the courts of chancery have so attached 
 thereto, that the rights of all parties concerned therein are 
 now controlled rather by the principles of equity than by 
 the rules of common law. 
 
 1 Will. R. P. 349; Wing v. Cooper, 37 Vt. 179; Gibson v. Eller, 13 Ind. 125. 
 
g§ 364-366.] MOETGAGES. 149 
 
 § 364, Signification of the word " mortgage." — The term 
 mortgage has thus become, in fact, a misnomer, though in the 
 early law its signification as expressed by the word itself — 
 mortgage, dead-pledge — was quite in point; for prior to 
 the intervention of the courts of equity, the interest or estate 
 of the mortgagor, as pledged by him, became dead, or en- 
 tirely lost to him in case of default in performance on his 
 part.^ It was to alleviate this hardship that equity inter- 
 fered by establishing the doctrine that, in case of default, 
 the mortgagor should have a certain period of time within 
 which to redeem his lands by paying to the mortgagee the 
 amount of the debt as provided for in the obligation se- 
 cured by the mortgage. Thus was there injected into the 
 law a new interest or estate, which, from its origin and 
 purpose, came to be known as the " equity of redemption." ' 
 § 365. Ett'ect of equitable doctrines. — But, as we shall 
 see, the courts of equity in their efforts to avoid the injus- 
 tice usually arising out of the declaration of forfeitures — 
 which in reality is the effect of a strict following of the let- 
 ter of the conveyance — have so altered the rights and lim- 
 ited the powers of the mortgagee that, in most jurisdictions, 
 the mortgage, notwithstanding its form and provisions, has 
 ceased to be regarded as a conveyance, being looked upon as 
 simply a lien upon the mortgaged property.'' 
 
 § 366. Reasons for the rnle.^ Sound reason, at least from 
 a moral standpoint, for the principles thus established, is 
 found in the fact that in by far the greater number of cases 
 the consideration expressed in the mortgage is, in amount, 
 far less than the actual value of the estate conveyed; and 
 hence to allow the mortgagee to enter at once upon default 
 of the mortgagor, as of an absolute and indefeasible estate,' 
 
 iLitt., sec. 332; Goodall's Case, 'Green v. Hart, 1 Johns. (N. Y.) 
 
 5 Rep. 95; Wade's Case, id. 114. 580; Crippen v. Morrison, 13 Mich. 
 
 2 Mr. Cruise says it is not ascer- 36. So held also in Georgia, Ohio, ' 
 
 tained when this right was first Iowa,California, Kansas,andmany 
 
 allowed. Cruise, Dig., Mtgs., ch. 1, of the other states, 
 sec. 9. 
 
150 ESTATES IN EQUITY. [§§ 367-369. 
 
 ■would be conferring upon the mortgagee something to which 
 he is not in good conscience entitled, and depriving the 
 mortgagor of an interest to which he is by the same crite- 
 rion clearly entitled. It will be our purpose here to trace 
 the important matter of a mortgage of lands from its earliest 
 inception in our law to the present time, and thereby ac- 
 quire a knowledge of those underlying principles, without 
 which we can hope to have no proper understanding of the 
 matter. 
 
 § 367. Tivum vadium. — Mortgages are of very ancient 
 origin, and at first a conveyance was made to the creditor 
 under and by virtue of which he entered and held the lands 
 until the debt was discharged. Such discharge was most 
 usually effected either by means of the creditor applying the 
 rents and profits of the lands to the reduction of the debt,' 
 or by his taking such rents and profits absolutely as his 
 own in lieu of interest, leaving the debtor to pay the prin- 
 cipal sum out of other resources. 
 
 § 368. The common-law mortgage. — These ancient meth- 
 ods were succeeded by a more stringent contract, under 
 which the land was given in pledge until a certain day fixed 
 for the payment of the debt, with a stipulation that on fail- 
 ure to pay at the appointed time the lands should remain to 
 the creditor in fee. This amounted to an estate upon con- 
 dition in the mortgagee and constituted the mort-gage or 
 dead pledge hereinabove explained.^ 
 
 §369. Establishment of the right to redeem. — And 
 with regard to this transaction, if, at the common law, the 
 condition were broken by the non-payment of the money 
 on or before the date stipulated, the estate so conveyed be- 
 came at once discharged from the condition, and vested an 
 absolute estate in the mortgagee, for the parties were held 
 strictly to their bargain.' This strict legal construction 
 
 iVivum Vadium, Cruise's Dig., ^Q-oodall's Case, 5 Rep. 95; 
 tit. Mortgages, oh. I, sees. 3, 3. Wade's Case, id. 114. 
 
 ^Mortuuni Vadium, Ibid., and 
 
 sees. 4 and 5. 
 
§§ 370, 371.J MORTGAGES. 151 
 
 prevailed for a long period of years, but at length the courts 
 of equity came to the relief of the mortgagor, and in the 
 reign of Charles the First it was established as equity that 
 the mortgagor should be allowed to redeem his estate, even 
 though the stipulated date of payment had gone by, and 
 the court of chancery, on the application of the mortgagor, 
 would decree that, on payment of all which was due to him, 
 the mortgagee should reconvey the estate to the mortgagor.' 
 
 § 370. The mortgagor's equity of redemption. — Thus 
 one of the first principles so established by the court of 
 equity with regard to mortgages was what is known as the 
 mortgagor's equity of redemption, which is an outgrowth of 
 the equitable rule allowing the mortgagor to redeem his es- 
 tate after it has become forfeited at law for some failure on 
 the part of the mortgagor to perform the conditions im- 
 posed upon him. So firmly has the doctrine become en- 
 grafted upon the law of mortgages, that, by the weight of 
 authority at the present time, the "mortgagor, even though 
 desirous of so doing, cannot release this right of redemption 
 by any form of words or phraseology which he may see fit 
 to make use of in the mortgage deed.^ 
 
 § 371. Once a mortgage, always a mortgage. — A further 
 rule promulgated by the courts of equity and very generally 
 followed is that whenever the conveyance of an estate is 
 intended as a security for the payment of money, even 
 though this intention do not appear from the deed itself, the 
 transaction will be held to amount to a mortgage, to which 
 the equity of redemption will attach notwithstanding the 
 fact that the deed may be absolute on its face. This prin- 
 ciple is shortly summed up in the phrase, " Once a mort- 
 gage, always a mortgage." ' 
 
 1 1 Chan. Cas. 219; Emanuel Coll. Ward, 8 Vern. 530; Tiernan v. Hin- 
 V. Evans, 1 Ch. Rep. 10. man, 16 111. 400. 
 
 2 0rde V. Smith, Sel. Ch. Cas. 9, 3 Story's Eq. Jur., g§ 10-19; Wyn- 
 2 Eq. Cas. Ab. 600, etc.; Waters v. koop v. Cowing, 81 111. 570; Lee 
 Randall, 6 Met. 479; Jennings v. v. Evans, 8 Cal. 424; Coote, Mort- 
 gages, 14, 
 
152 ESTATES IN EQUITY. [§§ 372-374. 
 
 § 372. A mortgage is a chattel interest. — The court of 
 chancery very early leaned toward the holding that the 
 mortgagee does not take an estate in the land, but that he 
 acquires merely a lien or charge thereon for the amount due 
 to him, and hence that his interest is in the nature of per- 
 sonal property and so passed at his death to his personal 
 representatives and not to his heirs.' So in equity the 
 mortgagor came to be regarded as the owner of the mort- 
 gaged lands, and his equity of redemption treated as an 
 equitable estate ; and such indeed, generally speaking, is the 
 law of to-day, the interest of the mortgagee being regarded 
 as personal and not as real property. 
 
 § 373. Mortgage deeds. — Mortgages, or, more properly 
 speaking, mortgage deeds, are instruments of convej^ance 
 made use of where the owner of an interest or estate in prop- 
 erty desires to furnish security for the payment of money or 
 the due performance of some other obligation. In addition 
 to the deed there is usually given some personal obligation, 
 evidenced by a note or a bond. And in such case the mort- 
 gagee generally has the right to enforce payment or per- 
 formance out of any assets which the mortgagor maj' pos- 
 sess. But it is sometimes the case that mortgages are given 
 wherein it is stipulated that the mortgagee shall have no 
 other remedy than that afforded by the mortgage itself. 
 
 § 374. No uniform law of mortgages. — It is a principle 
 of quite general application that the mortgagor occupies one 
 position at law and another in equity; ^ but the student should 
 constantly bear in mind that we have no uniform law of 
 mortgages in the United States, and hence reference must 
 be had to the statutes and decisions of the state in which 
 the mortgaged property is situated, in every instance. What 
 is set down here upon the subject can go no further than 
 the enunciation and explanation of the general principles. 
 
 1 Jackson v. Delancey, 11 Johns. *2 Wash. Real Prop. 97; Express 
 365; Burt v. Ricker, 6 Allen, 78; 2 Co. v. Bank, Wright (Ohio), 249; 
 Washb. Real Prop. 141. Hughes v. Edwards, 9 Wheat 500. 
 
§§ 375-377.] MOETGAGES. 153 
 
 § 375. Estate of mortgagee at common law, — At com- 
 mon law the mortgagee acquired a fee-simple title, together 
 with seisin of the land, and an immediate right of entry 
 into actual possession, thus leaving the mortgagor in posses- 
 sion under practically the same rights as though he were 
 tenant by sufferance.^ But, as we have seen, these rules of 
 the common law have been abrogated in many of the states 
 and seriously questioned in others. 
 
 §376. The two theories of the mortgage relation. — 
 The doctrines of equity have made such serious inroads upon 
 the common-law theory of mortgages that in the majority 
 of the states the rules laid down by the earlier law are no 
 longer strictly observed or enforced. There appear to be, 
 at the present time, two theories of the mortgage relation. 
 In one of these the legal title is presumed to be in the mort- 
 gagee, leaving the interest of the mortgagor an equitable 
 one as between the mortgagor and mortgagee; but as to 
 all other persons regarding the former as the legal owner, 
 he (the mortgagor) retaining possession and seisin, until, by 
 his default, he has made it possible for the mortgagee to 
 have pursued the remedy or remedies thereupon afforded 
 him by statute.^ 
 
 §377. The lien theory.— Other states adhere to what 
 may be termed the lien theory of mortgages.' In these states 
 the mortgage is not in effect a conveyance, notwithstanding 
 it is such in form. The legal title does not pass to the mort- 
 gagee, even as against the mortgagor. The mortgagee gets 
 no estate at law in the land; he is not entitled to possession, 
 and can maintain no action at law therefor, either before or 
 after condition broken. His sole remedy consists in a sale 
 of the property, either under a power or by decree of court, 
 according to the particular statute. In these jurisdictions 
 the act^ial intent of the parties is observed to the exclusion 
 
 ' Eogers v. Grazebook, 8 Ad. & in Massachusetts, Maine, Ohio, Illi- 
 
 El. 895, note s; Coote on Mortgages, nois and Connecticut. 
 
 337 et seq. 3 gee citations to § 365, supra. 
 
 2 So held, at least theoretically, 
 
154 ESTATES IN EQUITY. [§§ 378-380. 
 
 of that apparently expressed by the language of the mort- 
 gage deed.^ 
 
 § 378. In some states relation not defined. — Again, in 
 some states, at the present time, it is a diiEcult matter to 
 determine which of the theories above outlined is in force,, 
 there being no general trend of statutory enactments and 
 decisions upon which to base conclusions.^ It is believed, 
 however, that the statement is warranted when it is said that, 
 taken altogether, the positive tendency of the law of this 
 country is toward a full recognition of those principles re- 
 garding the law of mortgages which have been herein re- 
 ferred to as " the lien theory." ' 
 
 § 379. Forms of mortgages. — With regard to their form,, 
 mortgages are of several different kinds. Since, as we have 
 seen, the intention of the parties controls, deeds absolute on 
 their face will be construed to be mortgages in those cases 
 where the intention was merely to afford security for the 
 proper discharge of an obligation.* Formerly, and perhaps 
 in England at the present day, the method of depositing the 
 title deeds to lands with the obligee was often pursued when 
 it was desired to create a lien for security upon landed prop- 
 erty.' This practice never obtained generally in this country^ 
 and now, owing to our system of laws providing for the re- 
 cording of all evidences of title,* it has become practically 
 obsolete and of no avail. It is no longer necessary with us 
 that the owner of lands be in position to produce the orig- 
 inal title deeds when he desires to alien his property.'' 
 
 § 380. Liens — Mechanic's, vendor's, etc. — In many of 
 the states statutory enactments have given to persons per- 
 
 • See 3 Pom. Eq. Jur., sec. 1186. have ohar^ged their former hold- 
 
 2 This would seem to be the act- ings and now favor the lien theory. 
 
 ual condition of the matter in lUi- ^ Howard v. Harris, 2 Ch. Cas. 
 
 nois. See Oldham v. Pfleger, 84 147; Batty v. Snook, 5 Mich. 231. 
 
 111. 103; and Vallette v. Bennett, 69 5 Corning, Ex parte, 9 Ves. Jr. 115. 
 
 III. 633. 6 See Griffin v. Griffin, 18 N. J. Eq. 
 
 ' Authority for this statement 104. 
 
 rests on the fact that many states 'See "Titles by Private Grant,"' 
 
 post. 
 
§§ 381-383.] MORTGAGES. 155 
 
 forming labor or furnishing materials for the improvement 
 of the premises of others a lien, which is in effect a statu- 
 tory mortgage.! Again, where one conveys land to another 
 for a valuable consideration, the vendor has, by law, a lien 
 upon the premises in question until the purchase price is 
 paid according to the terms of the contract, and, if not so 
 paid, the vendor may enforce such lien substantially as in 
 the case of mortgages.^ 
 
 § 381. Forms of mortgage deeds. — Of the technical 
 mortgage deed, there are now in general use two forms: 
 First, a mortgage; second, a deed of trust in the nature of 
 a mortgage. In the former the title is conveyed directly to 
 the mortgagee, as has been before explained. In the latter, 
 conveyance is made to a trustee, who takes the title for the 
 benefit of the legal holder of the obligation, to be secured, 
 whosoever he may be. Each of the above forms possesses 
 certain advantages, but it is probable that, taken as a whole, 
 the deed of trust, or trust deed, as it has come to be called, 
 is the more preferable. The matter, however, is largely one 
 of convenience.^ 
 
 § 382. What estates may he mortgaged. — Any interest 
 or estate in landed property which is alienable may be made 
 the subject of a mortgage conveyance.* Thus, an estate in 
 fee, for life, or for years, or indeed a mere interest, as, for 
 instance, one arising under an executory devise, may be 
 pledged for the due performance of an obligation.* 
 
 § 383. Bights and remedies.— The rights and remedies 
 of the parties to a mortgage deed vary with the statutory 
 provisions of the different states.^ In general, however, the 
 principles common to all conveyances are applied, and the 
 proceedings by which the mortgagee satisfies his claim 
 
 iSee "Involuntary Alienation," < 8 Washb. Real Prop. 40. 
 post. 5 Holbrook v. Betton, 5 Fla. 99. 
 
 2 2 Jones on Liens, sec. 1063, and * Actions at law for trespass, 
 
 notes. etc., are brought by the mortgagor 
 
 'See "Titles by Private Grant," so long as he is rightfully in pos- 
 
 post session. 
 
156 ESTATES IN EQUITY. [§§ 384, 385. 
 
 (called foreclosure), generally contemplate a hearing in court 
 and an accounting between the parties.^ The right of the 
 mortgagee to sell under a power given in the deed is still 
 upheld in many states, though the tendency of the more 
 modern law is against such method of procedure as being 
 inequitable.^ In general, the rights and remedies of all par- 
 ties to, or interested in, a mortgage deed are established 
 and enforced according to the laws of the state in which the 
 property in controversy is situated. 
 
 § 384. Power of sale and transfer. — When the mortga- 
 gee so desires, he may transfer his interest to a stranger by 
 making to him an assignment in writing in due form. In 
 the case of a trust deed, however, no such writing is neces- 
 sary, delivery of the note or other obligation, properly in- 
 dorsed, being all that is required. The mortgagor may, as 
 a matter of course, make conveyance of his interest by deed 
 in the usual manner, but his grantee will, of course, take 
 subject to the rights of the mortgagee. 
 
 § 385. Releases. — "When the obligation upon which the 
 mortgage relation is founded has been discharged, it be- 
 comes the duty of the mortgagee to provide the mortgagor 
 with a proper release. This should be done by deed dulj'' 
 executed and recorded. 
 
 iFor statutory provisions on Chowning v. Cox, 1 Rand. (Va.) 
 
 foreclosure, see Stimson's Am. Stat. 306. Power of sale in mortgages 
 
 Law, sees. 1920-1936. is abolished by statute in Illinois. 
 
 2 866 Wing V. Cooper, 37 Vt. 184; 
 
PAET III. 
 
 PARTICULAR ESTATES AND INTERESTS- 
 INCORPOREAL HEREDITAMENTS. 
 
 CHAPTEE XYI. 
 
 INVOLUNTARY ALIENATION. 
 
 § 386. Voluntary alienation. 
 
 387. Involuntary alienation. 
 
 388. Creditor's rights. 
 
 389. The writ of elegit. 
 
 390. Why so named. 
 
 391. The modern writ of execution. 
 
 392. Time for redemption. 
 
 393. The sheriff's deed. 
 
 394. Statutes of limitation. 
 
 395. The Illinois statute. 
 
 396. Exemptions. 
 
 397. Bankruptcy. 
 
 398. Eminent domain. 
 
 399. Continued. 
 
 400. Escheat and forfeiture. 
 
 401. In the American law. 
 
 402. Taxation — Equity. 
 
 § 386. Toluntary alienation. — The several modes of ac- 
 quiring interests and estates in real property through pur- 
 chase which we have thus far considered are all primarily 
 referable to and predicated upon the consent, either express 
 or implied, of the parties to the transaction. The law com- 
 pels no one to take as a purchaser except he desires to do so. 
 Where one parts with his title to landed property under a 
 contract or agreement either express or implied, it is called 
 in legal phrase voluntary alienation. 
 
158 PAETIOULAE ESTATES AND INTEKESTS. [§§ 387-390. 
 
 § 387. Involuntary alienation. — We come now to the 
 consideration of another class of cases, wherein the owner is 
 compelled by law to part with his interest or estate in real 
 property without any consideration whatever of his desires 
 in the matter. This is termed involuntary alienation, and is 
 exercised under the circumstances and in the several ways 
 hereinafter set forth.' 
 
 § 388. Creditor's rights.^ ITo sooner had landed prop- 
 erty become settled as an object of ownership, and so a 
 thing of value in the possession of its owner, than ways and 
 means were fixed upon whereby interests and estates in such 
 propert}'' became as a matter of law a security for the pay- 
 ment of such owner's debts and obligations. These rules of 
 law proceeded upon the theory that it is obviously unjust 
 for one to enjoy the benefits of such property rights while 
 he is justly indebted to others. But the common law recog- 
 nizes the claim of no person against another to the extent 
 of giving him a lien upon the property of his debtor until 
 he has reduced his claim to judgment by a regular proceed- 
 ing in a court of competent jurisdictioa.^ 
 
 § 389. The writ of elegit. — In the early days of the 
 common law, upon judgment being rendered in favor of the 
 claimant, a writ known as the writ of elegit issued out of 
 the court wherein the judgment stood, under and by virtue 
 of which the holder thereof was empowered to seize upon 
 the one-half part of the lands of his debtor and to remain 
 in possession and enjoyment of the same until the income 
 thus derived amounted to a sum sufficient to satisfy his 
 claim.' 
 
 § 390. Why so called. — This ancient writ of elegit re- 
 ceived its name from the fact that thereunder the creditor 
 
 1 Reference is not had herein to ' Stat. 13 Edw. I.,ch. 18. A some- 
 the law of mortgages. what similar right was also given 
 
 2 Statutes generally have changed by 13 Edw, L, ch. 3 (generally 
 this rule in particular cases, as, for known as the Statute of Mer- 
 instance, in lis pendens, attach- chants). See 2 Blk. Com. 160-162. 
 ment, etc. 
 
.§§ 391-393.] INVOLUNTABT ALIENATION. 159 
 
 was enabled to choose (make his election) between taking the 
 goods and chattels of the defendant under the process called 
 fieri facias^ or a going into possession of the lands as above 
 set forth.^ 
 
 §391. The modern writ of execution.— The writ of 
 elegit was the forerunner of our modern writ of execution, or 
 fsri facias, as it is now generally termed. As we have 
 seen, under the writ of elegit the creditor acquired no es- 
 tate in the lands of his debtor, nor had he any interest 
 therein which he might sell or convey to another. This 
 manifest defect, resulting as it did in a feeling of insecurity 
 in such cases, led to the passage of an act in 1732 (5 Geo. II., 
 ch. 7) by which lands, hereditaments and real estate became 
 chargeable with debts and subject to the like process of exe- 
 cution as personal estate ; that is, to be seized and sold to sat- 
 isfy the creditors' claims.' 
 
 § 392. Time for redemption. — In some of the states the 
 creditor is bound to exhaust the personal estate before pro- 
 ceeding against the realty, and in all the states certain re- 
 strictions* are placed upon the creditor in the pursuance of 
 his rights under the writ; and the debtor is almost univers- 
 ally given a certain length of time within which to redeem 
 his lands after the sale thereof has taken place. As a gen- 
 eral proposition, the judgments of courts of plenary jurisdic- 
 tion are a lien upon any landed property which the debtor 
 may have at the date of their rendition, or may acquire 
 thereafter while such judgments remain in force and effect 
 and unsatisfied. 
 
 §393. The sheriff's deed. — In those states where the 
 levy and sale are made by the sheriff, a deed is given by him 
 to the creditor at the expiration of the period for redemp- 
 tion, and thereupon the creditor becomes invested with such 
 
 1 Prior to elegit the creditor was ^Digby, Hist. Eeal Prop., ch. V, 
 
 Ijound to exhaust the personal sec. 5. 
 iproperty first, and could have re- '4 Kent's Com. 428 et seq. 
 course to realty only in case the * Such as homestead exemptions, 
 
 former proved insufficient. etc. 
 
160 PAETICULAE ESTATES AND INTEliBSTS. [§§ 394-396. 
 
 estate or interest in the lands as his debtor formerly pos- 
 sessed. 
 
 § 394. Statutes of limitation. — The law, in its effort to 
 discourage litigation upon stale claims and to definitely 
 settle the questions arising with regard to titles, has applied 
 certain principles, in the nature of limitations with regard 
 to time, to the rights of creditors in this regard. 
 
 § 395. The statute in Illinois. — For instance, the stat- 
 ute of Illinois provides: "That no person shall commence 
 an action for the recovery of lands, nor make an entry 
 thereon, unless within twenty years after the right to bring 
 such action or make such entry first accrued, or within 
 twenty years after he, or those from, by, or under whom he 
 claims, have been seised or possessed of the premises, except 
 as hereinafter provided." ' Section 4 of the said chapter pro- 
 vides : "Actions brought for the recovery of any lands, tene- 
 ments or hereditaments, of which any person may be possessed 
 by actual residence thereon for seven successive years, hav- 
 ing a connected title in law or equity, deducible of record, 
 from this state or the United States, or from any other per- 
 son," etc.; and by section 6 of the same chapter: "Every 
 person in the actual possession of lands or tenements under 
 claim and color of title; " and payment of taxes, even if to 
 vacant land (sec. 7), " shall be brought within seven years 
 next after possession being taken as aforesaid." ^ 
 
 § 396. Exemptions. — In this connection should be men- 
 tioned the matter of exemptions, by which is meant that a 
 certain portion of the lands of the debtor cannot be taken 
 in execution. The details of the statutes relating to the 
 matter of exemptions differ with the laws of the various 
 states. In Illinois we find the following: "Every house- 
 holder, having a family, shall be entitled to an estate of home- 
 stead, to the extent in value of $1,000, in the farm or lot of 
 land, and buildings thereon, owned or rightly possessed by 
 lease or otherwise, and occupied by him or her as a resi- 
 
 1 Rev. Stat. 111., ch. 83, sec. 1. tions are not available as against 
 
 2 But in every case these limitar persons under legal disability. 
 
§§ 397-4:00.] INTOLUNTAET ALIENATION. 161 
 
 dence; and such homestead and all right and title therein, 
 shall be exempt from attachment, judgment, levy or execu- 
 tion, sale for the payment of his debts, or other purposes, 
 and from the laws of conveyance, descent and devise, except 
 as hereinafter provided." ' 
 
 § 397. Bankruptcy. — The act of congress regarding bank- 
 ruptcy, passed in 1898, provides among other things that 
 the title to the property of the bankrupt remains in him 
 until a trustee is appointed and qualified. Hence if no 
 trustee be appointed the title of the bankrupt is not di- 
 vested.^ The trustee upon his appointment and qualifica- 
 tion is vested with title by operation of law without a deed 
 of conveyance, as of the date that the bankrupt was so ad- 
 judged.' 
 
 § 398. Eminent domain is the right or power of a sov- 
 ereign state to appropriate private property to particular 
 uses for the purpose of promoting the general welfare.^ In 
 pursuance of this right or power the state ma}' deprive a 
 person of his property or of some right or interest therein ; 
 thus, it may be taken or held by the state, or vested in cor- 
 porations for public use, as in the case of highways, parks, 
 public buildings and the like; or to be used by private cor- 
 porations, transacting business of a public nature, as railroad 
 or telegraph companies. 
 
 §399. Continued. — To be sure, such appropriation can 
 be made only upon the payment of just compensation, but 
 nevertheless it is a method of enforcing involuntary aliena- 
 tion.' The nature of the proceedings necessary to accom- 
 plish this result varies with the laws of the different states. 
 
 §400. Escheat and forfeiture. — Closely allied to this 
 doctrine of eminent domain is the law of escheat and for- 
 feiture. The word escheat signifies, in the original, chance 
 
 1 Rev. Stat. 111., oh. 53, sec. 1 ; 3 Act of 1898, sec. 70a. See also 
 Fight V. Holt, 80 111. 84; Turner v. Loveland on Bankruptcy, 283. 
 Bennett, 70 111. 363. ^ Lewis, Eminent Domain, sec. 1. 
 
 2 There is no difference in this ^ gee Bloodgood v. M. & H. R. Co., 
 regard between voluntary and in- 18 Wend. (N. Y.) 57. 
 
 voluntary bankruptcy. 
 11 
 
162 PAETICDLAK ESTATES AND INTERESTS. [§§ 401, 402. 
 
 or accident, and under the feudal system occurred when 
 there was a failure of heirs to take upon the decease of an 
 ancestor. In such event the right to the lands was again 
 fully vested in the original grantor or lord of the fee.^ For 
 when the blood of the last tenant of the fee is, by some 
 means or other, utterly extinct and gone, there is no one to 
 inherit. Lands might also have been escheated to the crown 
 by the commission of some act on the part of the tenant in 
 fee which led to his attainder, and consequently to the cor- 
 ruption and extinction of heritable blood in him. So in 
 that early day if one were convicted of felony, his lands 
 passed by escheat or forfeiture to his lord.'^ 
 
 § 401. In the American law. — Escheat and forfeiture as 
 above described are unknown in the American law. They 
 are abolished under the statutes of the United States. But 
 the rights of forfeiture and escheat still exist in a modified 
 form in many of the states. It is quite generally provided 
 that where no owner or claimant can be found, the title to 
 the lands thus left without a proprietor shall escheat to the 
 state.^ It is thought, however, that this provision of the 
 law goes rather upon grounds of public policy than upon 
 principles referable to the old common-law doctrine of es- 
 cheat and forfeiture. The policy of the law at the present 
 day is averse to forfeitures.* 
 
 §402. Taxation.— Equity. — As a means of enforcing 
 the revenue laws, provision is made by statute in the vari- 
 ous states for the taking of property for the non-payment 
 of the taxes levied thereon.^ Finally, it remains to be said 
 that, under certain circumstances and conditions, courts of 
 equity and courts exercising chancery powers will compel 
 debtors to part with the title to real property to satisfy the 
 claims of their creditors.' 
 
 1 8 Blk. Com. 844-246. « For a full discussion of this 
 
 2Glanville, VII, ch. 17. subject, see Blackwell on Tax Ti- 
 
 3 See, for example. Rev. Stat. 111., ties and Desty on Taxation. 
 
 title "Escheat." * Consult Story's Equity on this 
 
 <Even forfeiture for waste has subject. 
 
 tnet with but slight favor with us. 
 
CHAPTER XYII. 
 
 INCORPOREAL HEREDITAMENTS. 
 
 § 403. Distinction between corporeal and incorporeal. 
 
 404. Possession, as against mere rights. 
 
 405. Distinctions in modes of creation and transfer. 
 
 406. Hereditaments purely incorporeal. 
 
 407. Divisions of this class of hereditaments. 
 
 408. Conveyance, when in gross. 
 
 409. Incorporeal hereditaments appendant. 
 
 410. DifBoulty of distinguishing between them. 
 
 411. Specific classes of hereditaments purely incorporeaL 
 418. Definitions and explanations. 
 
 413. Kinds of rights of common. 
 
 414. Not now Of great importance. 
 
 415. An easement defined. 
 
 416. The dominant and servient estates. 
 
 417. How created or conveyed. 
 
 418. Easements by prescription. 
 
 419. Creation by separate instrument. 
 
 420. Requirements of easements by implication. 
 
 421. Kinds of easements in our law. 
 
 422. Doctrines of equity in this connection. 
 
 423. Distinguished from conditional estates. 
 
 424. Rights of way. 
 
 425. The double ownership in the soil. 
 
 426. Light and air. 
 
 427. Easements in waters. 
 
 428. Tidal waters and navigable streams. 
 
 429. Percolations. 
 
 430. Right to lateral support. 
 
 431. Party-walls. 
 
 432. Easements, how extinguished, 
 
 433. Rents. 
 
 434. Rent-service. 
 
 435. Rent-service, only in certain estates. 
 
 436. Distinguishing features. 
 
 437. Rent-charge and rent-seek. 
 
 438. Fee-farm rents. 
 
 439. In what estates rents may be created. 
 
16i PAETIOULAE ESTATES AND INTEEESTS. [§§ 403-405. 
 
 § 440. Fee-farm rents in our law. 
 441. Rules governing creation and alienation. 
 443. Franchises. 
 
 443. Examples. 
 
 444. Franchise and charter distinguished. 
 
 445. Licenses. 
 
 446. Distinguished from easement. 
 
 447. In what manner licensee may exercise his authority. 
 
 448. Revocation not retroactive, etc. 
 
 449. How granted. 
 
 § 403. Distinction between corporeal and incorporeal. 
 
 The student will doubtless call to mind that early in this 
 work we discussed somewhat the distinction between cor- 
 poreal and incorporeal property, and ascertained that, when 
 applied to real property, the latter is known in the law under 
 the name of incorporeal hereditaments. 
 
 § 404. Possession, as against mere riglits. — Looking at 
 the matter from a practical standpoint, we see that in all 
 cases of corporeal hereditaments the owner thereof has pos- 
 session of the land itself, that is to say, the owner's right is 
 accompanied with the possession of a tangible thing; while, 
 on the other hand, estates in or rights over lands which are 
 in the possession of another, being mere rights unaccom- 
 panied by the possession of anything tangible, are termed 
 incorporeal hereditaments.^ It is of hereditaments purely 
 incorporeal that we purpose to treat herein. 
 
 § 405. Distinction as to modes of creation and transfer. 
 With reference to the creation and transfer of corporeal and 
 incorporeal hereditaments, there formerly existed a marked 
 distinction. Corporeal hereditaments at the common law 
 were mainly transferable by that livery of seisin which was 
 essential to a feoffment, and for this reason they were said 
 to lie in livery, while incorporeal hereditaments, when trans- 
 ferred apart from the possession of the land, were always 
 required to be conveyed by the delivery of a deed. They 
 were therefore said to lie in grant, for this word "grant," 
 though it comprehends all kinds of conveyances, yet, strictly 
 
 1 Will. R. P. (17th ed.) 383. 
 
§§ 406-408.] INOOEPOEEAL HEEEDITAMEXTS. 165 
 
 speaking, indicates a conveyance by deed only.' In this 
 country, at the present time, both corporeal and incorporeal 
 hereditaments lie in grant; that is, the ownership thereof 
 may be transferred by deed alone. 
 
 § 406. Hereditaments purely incorporeal. — Again, at- 
 tention must be directed to the fact that certain estates or 
 interests in lands, such as reversions, remainders and execu- 
 tory interests, while partaking largely of the nature of in- 
 corporeal hereditaments, are not purely incorporeal, since 
 they are created and exist upon the hypothesis that sooner 
 or later their character will change to that of corporeal 
 hereditaments.^ But there is a class of valuable things, that 
 is of property rights intimately connected with or arising 
 out of landed estates, which never are or never can become 
 tangible in their nature,' and such property rights are termed 
 hereditaments purely incorporeal.* 
 
 § 407. Divisions of this class of incorporeal heredita- 
 ments. — Of this class of hereditaments the law makes thi'ee 
 divisions : first, such as are appendant to corporeal heredita- 
 ments; second, such as are appurtenant thereto; and third, 
 such as are in gross, or exist as separate and independent 
 subjects of property.' Of those property rights which fall 
 within the first and second of the above divisions it should 
 be said that the law regards them as so intimately and in- 
 separably connected with the tangible propertj^ of the estate 
 upon which they are created that they will pass in every 
 instance by a conveyance of such estate itself without the 
 necessity of their being specially mentioned. They are re- 
 garded as mere incidents of such estates.^ 
 
 § 408. Conveyance when in gross. — But property rights 
 coming under the third division are looked upon as standing 
 separate and apart from the principal estate and by no 
 means as a part thereof. They consequently require a sepa- 
 
 iShep. Touch. 828. *2 Blk. Com. 17; Preston, Es- 
 
 2 Will. E. P. 197. tates, 13, 14 
 
 3 Will. E. P. 265; 3 Washb. E. P. 6 Will. E. P. {17th ed.) 478. 
 373. 6 Co. Litt. 1215. 
 
166 PAETICULAE ESTATES AND INTERESTS. [§§ 409-411. 
 
 rate deed for their transfer. But almost all purely incor- 
 poreal hereditaments may exist both as appendant or ap- 
 purtenant and in gross, being at one time appendant or 
 appurtenant to corporeal property, and at another time 
 separate and distinct from it.' 
 
 § 409. Incorporeal hereditaments appendant consist of 
 such incorporeal hereditaments as are not naturally and 
 originally appendant to corporeal hereditaments, but which 
 have been annexed to them either by some express deed of 
 grant or by long enjoyment (called prescription).^ Eights 
 of common and of way of the property of another are illus- 
 trations of this sort of hereditaments. It is common prac- 
 tice among conveyancers to use the word "appurtenances" 
 in deeds, though if the hereditament be in fact appendant 
 or appurtenant it will pass without the use of such or sim- 
 ilar words." 
 
 § 410. Difficulty of distinguishing between them. — But 
 it is of ttimes a matter of some difficulty to determine whether 
 the hereditament be appurtenant or in gross, and hence the 
 general use of the word "appurtenances" in deeds even at 
 the present day. Thus, where the owner of two parcels of 
 land has created a way across one lot for the benefit of the 
 other, this right of way will not pass upon a severance of the 
 estate unless it is necessary to the enjoyment of the part con- 
 veyed, or words are used in the conveyance sufficient to 
 create a new way.* 
 
 § 411. Specific classes of incorporeal hereditaments. — 
 Blackstone mentions some nine or ten classes of incorporeal 
 hereditaments,^ among which rights of common, easements, 
 rents and franchises only are of interest and value to the 
 student of American law. To the discussion of the above 
 we shall also add that of licenses. 
 
 iWill. R P. (17th ed.) 478. Plimpton v. Converse, 43 Vt 718. 
 
 2 Will. R. P. (17th ed.) 483. Examine in this connection, Mc- 
 
 3 George v. Cox, 114 Mass. 382. Tavish v. Carroll, 7 Md. 353. 
 * Parsons v. Johnson, 68 N. Y. 63; 5 2 Blli. Com. HI. 
 
§§ 412-4:14.] INCOEPOEBAL HEEEDITAMENTS. 167 
 
 § 412. Definitions and explanations. — To take up these 
 classes in the order named, a right of common is that right 
 in the land of another which enables the owner of the right 
 to take from such land some substantial product or products 
 which constitute a part of the realty by reason of their con- 
 nection therewith. This right imposes no obligation upon 
 the owner of the land to maintain any supply of the thing 
 taken. The term right of common has largely lost its signifi- 
 cance in this country. 
 
 § 413. Kinds of rights of common. — There are (or were), 
 according to Blackstone, four important kinds of appendant 
 incorporeal hereditaments known as rightsof common, viz. : 
 (1) of pasture, (2) of piscary, (3) of turbary, (4) of estovers, 
 indicating (1) a right to pasture cattle on the lands of an- 
 other, (2) to take fish from waters upon the land of another, 
 (3) to take turf or peat for fuel from another's land, (4) a 
 right to take such wood from the land of another as may be 
 necessary for the proper conduct of the estate of him who 
 is to exercise the right. 
 
 § 414. Rights of common not now of great importance. 
 Kights of common were anciently of great importance, aris- 
 ing as they did of necessity out of the peculiar form of land- 
 holding then in vogue in England. But under our laws, 
 and the requirements of land-holding in America, rights of 
 common have lost their importance, and have come to be 
 created in the same manner and to receive almost the same 
 construction as easements. Furthermore, the distinction be- 
 tween commons appendant and appurtenant has been but 
 little observed in this country; indeed it seems doubtful if 
 commons appendant ever existed with us. The cases upon 
 matters connected with rights of common seem to have 
 recognized them as existing, appurtenant and in gross only.* 
 In our discussion of the more important matter of ease- 
 ments, which is now to follow, we shall have occasion to 
 
 1 Herbert v. La Valle, 37 111. 448; Edwards v. MoChing, 39 Ohio St. 
 Thomas v. Mansfield, 13 Pick. 240. 41; Donnell v. Clark, 19 Me. 174. 
 
1G8 PAETIonLAE ESTATES AND IMTEEESTS. [§§ 415-417. 
 
 become familiar with all necessary principles governing the 
 subject of rights of common. 
 
 § 415. An easement defined. — An easement may be de- 
 fined to be a right in or issuing out of the land of another, 
 which, in its operation, restricts the owner's right of enjoy- 
 ment. It may act affirmatively by giving the holder thereof 
 the right to use the land for certain purposes, or negatively 
 by preventing the owner from doing that which he might 
 otherwise have done with or upon his land. Thus, the 
 holder of an easement may have the right thereunder to pass 
 over the lands of another, or, on the other hand, to restrain 
 the owner of lands from erecting buildings of a certain kind 
 or in a certain place thereon.^ In common with other in- 
 corporeal hereditaments, easements may be either appurte- 
 nant or in gross.^ 
 
 § 416. The dominant and servient estates. — To under- 
 stand more fully the matter in hand, it should be noticed 
 that in every case where an easement exists there are two 
 estates or interests in the land, viz. : that of the holder of 
 the easement and that of the owner of the land. The for- 
 mer is termed the dominant and the latter the servient es- 
 tate.' 
 
 § 417. How created or conveyed. — An easement, being 
 an estate or interest in land, may be created in the manner 
 of other estates or interests; that is, either by gift or grant. 
 But, unlike other estates or interests, easements may be 
 created by implication as well as by express grant. For in- 
 stance, if A., being the owner of eighty acres of land, the 
 east side only of which lies along the highway, sells to 
 B. the west forty acres thereof, B. will by necessity have 
 the right to pass over the land of A. to reach the highway. 
 In other words, B. will have an easement by implication.* 
 
 1 See 3 Washb. Eeal Prop. 299- Easements, 5; Walker, Am. Law, 
 301. 265. 
 
 ^Knecken v. Voltz, 110 111. 264. ^Knipp v. Curtis, 71 Cal. 63, 11 
 33 Kent's Com. 435; Washb. Pac. R. 879; Duinueeu v. Rich, 82 
 
 A¥is. 554. 
 
§§ 418-421. j INCOEPOEEAL HEREDITAMENTS. 169 
 
 § 418. Easements by prescription. — So also may au 
 easement be gained by long and uninterrupted user, oft- 
 times Ga.lled presGripiion, though this term is open to objec- 
 tion; for prescription, as known at the common law, is no 
 longer in practical application with us, its place and object 
 being fulfilled by our statutes of limitation, of which we 
 shall have occasion to speak later on.^ An easement, how- 
 ■ever, being, as it is, an interest in real property, cannot be 
 created by parol.'^ 
 
 § 419. Creation Iby separate instrument. — While it is 
 customary to create an easement by a reservation of the 
 right in a deed of general conveyance, it may be done quite 
 as effectually by a separate instrument which operates to 
 ■create or convey the easement only.' 
 
 § 420. Requirements of easements by implication. — 
 With regard to easements by implication it may be further 
 said that the necessity need not be absolute; for instance, in 
 the example heretofore given (§ 417) of an easement thus 
 created, it would not be essential for the one- claiming the 
 right of way to show that in no other manner could he have 
 gained access to the highway. It is sufficient if it appears 
 that without the easement he could not enjoy his estate in 
 full, except at unusual cost or inconvenience.* 
 
 § 421. Einds of easements recognized in our law. — As 
 a practical matter our law commonly deals with but five 
 kinds of easements: rights of way, of light, of support, of 
 party-walls, and in or to waters.^ As a matter of course, 
 other servitudes may be imposed upon landed estates, but a 
 discussion of the above mentioned will fully serve our pur- 
 pose. 
 
 1 Ferris v. Brown, 3 Barb. 105; Mass. 196; Gilbert v. Peteler, 38 
 
 3 Washb, Real Prop. 105. Barb. 489. 
 
 ii Taylor v. Millard, 118 N. Y. 244, ^ Lanier v. Booth, 50 Miss. 410; 
 
 23 N. E. R. 376; Gobb v. Canal Co., Thompson v. Miner, 30 Iowa, 517; 
 
 18 Pick. (Mass.) 840. Valley Falls Co. v. Dolan, 9 R. I. 
 
 3 Richardson v. Clements, 89 Pa. 489: Oliver v. Hook, 47 Md. 301. 
 
 St. 503; Ashcroft v. E. R. Co., 126 ^2 Washb. Real Prop. 299. 
 
170 PAETICOLAE ESTATES AND INTERESTS. [§§ 422-424. 
 
 § 422. The doctrines of equity in this connection.— We 
 
 find in regard to easements, that, in common with all other 
 rights, interests and estates in land, the doctrines of the 
 courts of equity have greatly modified the strict rules of 
 the common law, and that easements are often recognized 
 in equity under circumstances of which the courts of law 
 would take no cognizance. For instance, at law the domi- 
 nant and servient estates cannot exist at one and the same 
 time in the same owner; ^ but in equity such a state of affairs 
 may exist, and upon the sale by such owner of one of such 
 estates, the servitude will become an easement at law, pro- 
 vided its continuance is essential to the enjoyment of the 
 estate so conveyed.^ 
 
 § 423. Easements distinguished from conditional es- 
 tates. — Another class of easements, which approaches very 
 closely in its nature to estates upon condition, arises where 
 land is conveyed in several parcels by an owner to several 
 purchasers, and the grantor imposes certain conditions with 
 reference to the manner of the enjoyment of the various 
 grantees, which are for the mutual benefit of all. Here 
 equity will decree such covenant or agreement to have the 
 force and effect of an easement, and it will run with the 
 land.' The easement may here be distinguished from the 
 estate upon condition, for there will be no forfeiture in case 
 of non-compliance. An injunction to prevent the improper 
 use of the land, or an action at law for damages when such 
 use has been made, are the only remedies given to those 
 who have the right to complain. 
 
 § 424. Rights of way. — Rights of way are of two 
 kinds — public and private. They are easements which 
 authorize the public generally, or certain persons, as the 
 
 iThis is true for the reason that Gerber v. Grubell, 16 III. 317; Smith 
 
 at law there would occur what is v. Smith, 63 N. H. 439. 
 
 known as a merger — the absorb- 'Building lines are examples of 
 
 ing of the lessor by the greater es- this sort of easements. Pittsburg, 
 
 tate. etc. E. Co. v. Reno, 123 111. 273; 
 
 2Brakely v. Sharp, 9 N. J. Eq. 9; Graves v. Deterling, 120 N. Y. 447. 
 
§§ 425-^428.] INCOKPOBEAL HEEEDITAMBNTS. 171 
 
 case may be, to pass over the land in the usual course and 
 for the purpose of traffic and travel. Such easements may 
 be created by grant, express or implied, or by prescription 
 in the case of private ways, or by dedication, or through 
 eminent domain, where the way is a public one. Public 
 ways are generally known as highways. 
 
 § 425. The double ownership in the soil. — In the ab- 
 sence of agreement or arrangement of some kind to the 
 contrary, the soil to the middle of the highway belongs to 
 the adjacent owners. Whenever land is converted into a 
 highway, either by dedication or under the power of emi- 
 nent domain, the public acquires no interest in the soil, but 
 merely the right of user for highway purposes; and this it 
 loses whenever it ceases to use it as such, and the easement 
 is thereby at an end.^ 
 
 § 426. Light and air. — Though what is known in the 
 English law as the doctrine of ancient lights has never been 
 generally recognized in this country,^ yet there may be an 
 easement in the light and air coming from over the land of 
 an adjacent owner, under which one could prevent such ad- 
 jacent owner from obstructing it by buildings or otherwise.' 
 The rules governing this easement are substantially those of 
 rights of way. 
 
 § 427. Easements in waters. — Eiparian owners have the 
 right to make usual and customary uses of the waters of 
 the stream, but they must not diminish the iiow, corrupt 
 the water, or dam it up. The general rule is that the water 
 must not be so used as to produce a perceptible damage to 
 any other proprietor.* 
 
 §428. Tidal waters and navigable streams. — In this 
 country, the title to the bed of the sea, as of all tidal waters, 
 is presumptively in the state, and usually extends to high- 
 
 1 Benham v. Potter, 52 Conn. 348 : ' Maynard v. Esher, 17 Pa. St. 322. 
 
 Holden v. Shattuck, 34 Vt. 336. ^Dummont v. Kellogg, 29 Mich. 
 
 li Parker v. Foote, 19 Wend. 309; 420, 18 Am. R. 103; Miller v. Miller, 
 
 Washb. Easements, 493; Myers v. 9 Pa. St. 74 
 Gemmel, 10 Barb. 548. 
 
172 PAETICULAE ESTATES AND INTERESTS. [§§ 429-431. 
 
 water mark.^ At common law, a navigable stream was one 
 in which the tide ebbs and flows. But this is not the rule 
 in the United States. With us all streams are considered 
 as navigable streams which are, in fact, capable of actual 
 navigation. But generally, as at common law, the title to 
 the beds of all rivers in which the tide does not ebb and 
 flow is in the riparian owners.^ But this is not the uni- 
 versal rule.'' A grantee of lands bordering upon large lakes 
 takes title only to the water's edge. This is especially true 
 of the Great Lakes.* 
 
 §429. Percolations. — Where water percolates through 
 the soil from one tract of land to another, the owner of the 
 land may divert such percolation by collecting the water in 
 a well, notwithstandino; it results in serious damage to the 
 adjacent owner. The rules with reference to riparian own- 
 ers as announced above do not apply.' 
 
 § 430. Right to lateral support. — Every owner of land 
 has the right to the lateral support afforded by the adjoin- 
 ing land ; nor can he make excavations on his own land which 
 will deprive the land of the adjacent owner of such support.^ 
 But this right extends only to the support of the adjoining 
 land or surface in its natural condition, not increased by the 
 erection of buildings thereon.'' 
 
 §431. Party-walls. — Party-walls are generally erected 
 by express agreement between the parties, each paying his 
 share of the expenses, and a party- wall is one which is erected 
 between two lots or parcels of land for the common benefit 
 of the owners thereof in supporting the beams of their ad- 
 joining buildings. They are not tenants in common of the 
 
 1 111. Cent. Ry. Co. v. State of Illi- « Beard v. Murphy, 37 Vt. 101 ; 
 
 nois, 146 U. S. 387. Thurston v. Hancock, 13 Mass. 220. 
 
 ^Ice Co. V. Shortall, 101 111. 46. 'Tied, on Real Prop., see. 618. 
 
 SMcManus v. Carmlchael, 3 For cases on rights of subjacent 
 
 Iowa, 1. support, see Ottumwa Lodge v. 
 
 *Delaphine v. Railroad Co., 43 Lewis, 34 Iowa, 67, 11 Am. R. 135, 
 
 Wis. 214. and Graves v. Berden, 26 N. Y. 501. 
 
 5 Ocean Grove Ass'n v. Asbury 
 Park, 40 N. J. Eq. 447. 
 
§§ 432-43i.] INCOEPOKEAL HBKEDITAJIENTS. 173 
 
 entire wall; each has title to one half, with an easement for 
 support in the other half. Adjacent owners may acquire 
 party-wall rights as against each other by prescription.^ 
 
 §432. Easements, how extinguished, — An easement 
 may be released by deed, or lost by abandonment, but mere 
 nonuser will not of itself extinguish the easement.^ So if 
 the owner of the dominant estate do or suffer to be done 
 some thing which increases the burden of the servient estate, 
 or changes its nature, the easement is lost.^ 
 
 § 433. Rents. — At the present day, when we spealv of rent 
 we generally refer to the compensation paid by tenant for 
 years to his landlord ; but those hereditaments, purely incor- 
 poreal, known as rents, of which we are about to speak, 
 are rights to rents issuing out of lands, but wholly uncon- 
 nected with the relation of landlord and tenant.* This species 
 of rent consists in a right to the periodical receipt of money, 
 or money's worth, in respect of lands which are held in pos- 
 session, reversion or remainder by him from whom the pay- 
 ment is due.^ The common law made three distinct classes 
 of these rents, known as rent-service, rent-seek and rent- 
 charge. 
 
 § 434. Rent-service. — -When in the olden time the owner 
 of a feud conveyed his estate therein in whole or in part, he 
 reserved to himself what was known as a rentrservice, which 
 was to be paid to him by the grantee. Later on by its oper- 
 ation the Statute Quia Emptores abolished the tenure neces- 
 sarily incident to every reservation of a rent-service of a 
 fee, so that since the passage of the said statute, which is 
 still generally in force in this country, no rent-service can 
 be reserved out of a fee.^ 
 
 iCole V. Hughes, 54 N. Y. 444, 13 Tex. 465, 1 S. W. R. 178: Chicago, 
 
 Am. R. 611. etc. R. Co. v. Hioox (Mich.), 44 N. W. 
 
 2 Eddy V. Chace, 140 Mass. 471. R. 143; Doane v. Badger, 12 Mass. 65. 
 
 3 On the subject of the term of ^Digby, Hist. Real Prop., App., 
 easements, see the following oases: sec. 1. 
 
 MoConnell v. Am. Bronze Co., 41 5 3 Washb. on Real Prop. 272. 
 N. J. Eq. 447; Bullen v. Runnels, 2 « 3 Washb. Real Prop. 273: Wal- 
 N. H, 255; Carpenter v. Graber, 66 lace v. Harnistead, 44 Pa. St. 495. 
 
174: PAETICULAE ESTATES AND INTERESTS, [§§ 435-439. 
 
 § 435. Rent-service only in certain estates. — We find, 
 therefore, as a matter of practice, that since tenure of this 
 nature still exists between reversioner or remainderman and 
 tenant of a term of years, a rent-service may be reserved in 
 a lease v\rhen the same is made between parties standing in 
 that relation to each other.^ 
 
 §436. Distinguishing feature of rent-service. — The 
 distinguishing feature of rent-service is, that inseparably 
 connected therewith is the right of the owner of the rent to 
 distrain upon the goods and chattels of the grantee and sell 
 the same to satisfy his claim for rent due and unpaid to him 
 by the grantee. This right of distress has always been an 
 incident of rent-service, and arises on the creation thereof 
 without the necessity of special mention. 
 
 § 437. Rent-charge and rent-seek. — Where lands are 
 granted in such manner that the payment of the rent re- 
 served is made a lien or charge thereon, the rent is called a 
 rent-charge, provided further that right of distress be given 
 the owner of the rent by some express stipulation. If no 
 right of distress be so given the rent owner, he is said to 
 possess a dry rent, or a rent-seek. It will be observed, there- 
 fore, that the distinction between these two kinds of rent in 
 our present law relates only to the manner of their enforce- 
 ment. The rent-charge can be enforced by the summary 
 process of distress, while rent-sech could be collected by ac- 
 tion against the person only. 
 
 § 438. Fee-farm rents. — Under the term fee-farm rents 
 are included both of the above kinds of rents, and they will 
 therefore be considered together under that term, for our 
 purposes. 
 
 § 439. In what estates rents may be created. — Any of 
 the common-law estates may be created in a rent. And 
 where a rent is granted it is itself the subject of a grant; 
 where it is reserved, it is the lands that are the subject of 
 the grant, and the rent comes in lieu of the land.' 
 
 1 Will. Real Prop. 247. 2 2 Washb. Real Prop. 275, 
 
§§ 440-4:4:3.] INCOEPOEEAL HEREDITAMENTS. 173 
 
 § MO. Fee-farm rents in our law. — Fee-farm rents, 
 though unusual in our law, are not unknown in this country 
 and are proper conveyances, and there is nothing in the law 
 here inconsistent with their being brought into more general 
 use.' With us the old common-law right of distress has 
 been quite generally superseded by statutory remedies, the 
 effects of which are, however, not substantially different.^ 
 
 §441. Eules governing creation and alienation. — The 
 rules for the creation and alienation of rents of this class 
 or estates therein do not essentially differ from those pre- 
 scribed in the case of the other estates at law and hence 
 need no especial consideration here. So far as applicable 
 the incidents of such estates are present in those created in 
 rents; for instance, if the owner of a rent purchase an un- 
 incumbered fee out of which the rent issues, the two will 
 merge. ^ But upon the death, without heirs, of one possessed 
 of a rent-charge in fee, the rent ceases by extinguishment. 
 The rent may also be extinguished by prescription.'' 
 
 § 442. Franchises. — Franchises are defined to be special 
 privileges conferred by the sovereign power on individuals, 
 and which do not belong to the citizens generally by com- 
 mon right. ^ These privileges, though usually granted to 
 and held by artificial persons, that is, corporations, are still 
 classed as hereditaments, notwithstanding the fact that, 
 owing to the fiction of perpetual succession appertaining to 
 persons of this class, there can be no idea of inheritance 
 connected therewith.* It has been held, however, in partic- 
 ular cases, that a franchise may be a private estate in fee, 
 without being appendant to a corporeal tenement.' 
 
 § 443. Examples of franchises. — The right of main- 
 taining ferries, bridges, railroads, telegraph lines, and the 
 like enterprises, in the operation of which the public has an 
 
 1 See 3 Dane Abr. 450; Adams v. < Tudor's Lead. Cas. 199. 
 Bucklin, 7 Pick. 131 ; Alexander v. 'Bank of Augusta v. Earle, 13 
 Warrance, 17 Mo. 228. Pet. 519. 
 
 2 Smith, Land, and Ten., 161,note. « 3 Kent's Com. 459. 
 
 » Cook V. Brightly, 45 Pa, St. 440. ' Clark v. White, 5 Bush, 35& 
 
176 PAETICDLAE ESTATES AND INTERESTS. [§§ 444-446. 
 
 interest, are the most usual examples of franchises, and in 
 all such instances the right to operate must be obtained 
 from the state. 
 
 §444. Franchise and charter distinguished. — A fran- 
 chise granted to a corporation must not be confounded with 
 its charter. The latter is the contract of the state with the 
 corporation ; the former one of the privileges conferred by 
 the contract. The franchise of a corporation may be sold 
 as one of its property rights without affecting its right to 
 existence under the charter. Again, the franchise may be 
 transferred and operated by another, where this right is 
 not restricted by the charter. Enough has perhaps now 
 been said to give the student some understanding of the 
 nature of a franchise, and a further investigation of the 
 subject may be pursued, if desired, in some work devoted 
 to the law of corporations.^ 
 
 § 445. Licenses.^ The term license, as used in the law 
 of real property, indicates an authority or right given one 
 by an owner to make use of land in some specific or partic- 
 ular manner. A license is not created by deed or prescrip- 
 tion, and hence is not a right or interest issuing out of the 
 land, but merely a personal right or interest which ends 
 with the death of either licensor or licensee, and is termi- 
 nated by a sale or transfer of the land.^ 
 
 § 446. License distinguished froni easement. — A license 
 differs from an easement not only because it is not an inter- 
 est in or issuing out of the land, but also by reason of the 
 power which the licensor possesses to revoke it. This 
 power he may lawfully exercise in all cases where the 
 license is an executed one, and even in those instances where 
 it is still executory, provided that the revocation will leave 
 the parties in the same condition as before the license was 
 granted.' 
 
 1 As Elliott, Thompson, or Mora- 599, 2 Am. Lead. Cases (5th ed.). 
 wetz, 549, note. 
 
 2 Post V. Pearsall, 22 Wend. ' Veghte v. Raritan, 19 N. J. Eq. 
 (N. Y.) 435; Forbes v. Balenseifer, 74 154; Cook v. Stearns, 11 Mass. 533. 
 111. 183; De Haro v. U. S., 5 Wall. 
 
§§ 447-4-19.] INCOEPOEEAL HBKEDITAIIENTS. 177 
 
 § 447. In what manner licensee may exercise his au- 
 thority. — The authority given to the licensee must be exer- 
 cised by him in a reasonablj' prudent manner and consist- 
 ently with the terms thereof. For breach of such terms, or 
 for neffligence or lack of usual skill in the exercise of his 
 right the licensee will be responsible for any damages which 
 are the natural consequences thereof.* 
 
 § 448. Revocation not retroactive, etc. — Though the 
 licensor has the broad power of revocation heretofore referred 
 to, its exercise by him can never be held to have a retroactive 
 effect, unless such revocation be based, with good cause, on 
 the fault of the licensee.^ Thus, if one has received license 
 to hunt game upon the lands of another, and such license be 
 revoked without fault on the part of the licensee, he does not 
 thereby become a trespasser. But otherwise had he taken 
 advantage of his license to do an injury to the land of the 
 licensor.' 
 
 § 449. How granted. — Licenses may be granted by im- 
 plication, or expressly by parol agreement.* For example, 
 innkeepers by implication extend a license to the public 
 to enter their premises for the purpose of becoming their 
 guests; or if A. give B. authority, either verbally or in writ- 
 ing, to take fish from waters on his land, B. has an express 
 license. Licenses of the latter sort, being in the nature of 
 personal contracts, are not assignable. 
 
 1 Prince v. Case, 10 Conn. 375; 3 Six Carpenters' Case, Smith's 
 Kent V. Kent, 18 Pick. 569. Lead. Cases, 84. 
 
 2 Selden v. Del. & Hud. Canal Co., < Wood v. Leadbitter, 13 M. & W. 
 
 39 N. y. 639. 838; Muskett v. Hill, 5 Bing. N. C. 
 
 694. 
 13 
 
PART IT. 
 
 THE CREATION AND TRANSFER OF ESTATES 
 AND INTERESTS IN LANDED PROPERTY. 
 
 CHAPTEE XYIII. 
 
 OF TITLE TO THINGS REAL IN GENERAL. 
 
 § 450. Introductory. 
 
 451. Title. 
 
 452. Development of title. 
 
 453. The second stage. 
 
 454. The third stage. 
 
 455. The source of title. 
 
 456. Descent and purchase. 
 
 457. Title by descent. 
 
 458. What included in an inheritance. 
 
 459. Heirs, who may be — Rights of, etc. 
 
 460. Heirship, by what law determined. 
 
 461. Heirship, how determined. 
 463. Heirs must be relatives. 
 
 463. Affinity. 
 
 464. Further rules of descent, 
 
 465. Talking per capita, etc. 
 
 466. Alienage. 
 
 § 450. Introductory. — It would be of but small advan- 
 tage to the student of real-property law to gain a knowledge 
 of the theory of that law, without pursuing his researches 
 further and becoming familiar with the art of putting into 
 practical use those principles which the foregoing chapters 
 have sought to outline and impress upon his mind. When 
 dealing with so technical a branch of the law, it becomes 
 essential, in the first place, to acquire an understanding of 
 the great principles upon which the rules governing it are 
 
18(J CBEATION AND TKANSFEE OF ESTATES. [§§451,452. 
 
 based. Having accomplished this, the student is prepared 
 to undertake the no less important matter of determining 
 the means bj^ which abstract rules are made applicable to 
 the practical operation of the law. Much that has been 
 gone over, of necessity had reference solely to the law as it 
 was in former times; in our studies from this point forward 
 we shall have much to do with the law as it stands at the 
 present day. "With these purposes in view, we shall now 
 proceed to investigate what is known in the law as " title," 
 and the manner in which it may be acquired or lost. 
 
 § 451. Title. — Title is the means whereby the owner of 
 lands or other real property has the just and legal posses- 
 sion and enjoyment of it.^ Lord Coke says that it is that by 
 which one holdeth and defendeth the land.^ So that one is 
 said to have title to that which is of right his property, and 
 his property is that over which he may of right exercise an 
 exclusive dominion. Whether title to propertj'' has its source 
 in bare possession or mere occupation of the estate, without 
 any apparent or even pretended right to continue in such 
 possession, is a mooted question.' If we can conceive that 
 at some time individual ownership in lands was not recog- 
 nized, we may by slight speculation imagine the origin of 
 such ownership as arising from the act of a person in taking 
 actual manual possession of a piece of land, formerly un- 
 occupied and unclaimed, and remaining thereon until his 
 right thereto was established by common consent. But the 
 very use of the term " right" implies the possibility of some 
 claim by another against whom this right is to be upheld. 
 
 § 452. Development of title. — For practical purposes at 
 least, there is probably no better division of titles, with ref- 
 erence to the stages of their progressive development, than 
 that made by Blaokstone.^ According to his division the 
 
 iGreenl. Cruise, Dig., title De- subject are adopted by Mr. Cruise, 
 
 scent, oh. 1, § 3. See Cruise, Dig., star page 312. 
 
 - 1 Co. Lift. 345b. Tliese views assume the existence 
 
 3 3 BIk. Com. IQjetseq. Contra, of individual rights in landed prop- 
 
 Mnine, Ancient Law, 356. erty. 
 
 * The views of Biaokstone on this 
 
§§ 453-455.] OF TITLE TO THINGS KEAL IN GENEKAL. Ibl 
 
 first stage or degree is the bare possession or actual occupa- 
 tion of the estate, without any apparent right, or any pre- 
 tense of right, to hold and continue such possession. While 
 perhaps wrongful in its inception, this naked possession is 
 prima facie evidence of a legal title in the possessor, and is 
 available to him against all the world except the true owner; 
 and such a title may by lapse of time, if such true owner 
 does not assert his right, ripen into an indefeasible title in 
 the holder thereof. We may well conclude, therefore, that 
 the basis of all good title is possession. 
 
 § 453. The second stage. — Proceeding along this line, we 
 find the next step to a good and perfect title to be the right 
 of possession, and that this right of possession may be in one 
 person, while the actual possession rests with another. The 
 right to possession is however of more value than the bare 
 possession ; for by asserting this right in the manner pro- 
 vided by law, the owner thereof may oust the mere possessor, 
 and thus acquire for himself both actual possession and the 
 right thereto. 
 
 § 454. The third stage. — When the possession, the right 
 of possession, and, the right of property are united in one 
 and the same person, that person has a perfect title. For 
 the union of the possession, the right of possession and the 
 right of property constitutes a complete title to lands, ten- 
 ements and hereditaments.^ Mr. Washburn quotes with ap- 
 parent approval the language of Judge Walker, who says 
 that title means the same thing as ownership.^ It would 
 appear, however, that this is rather the statement of a con- 
 clusion that an explanation of the matter in hand. Indeed, 
 it would be very difficult, in the opinion of the writer, to 
 formulate a more satisfactory explanation of the use and 
 signification of the word "title" than that given us by 
 Blackstone as outlined above. 
 
 § 455. The source of title. — It is a principle worthy of 
 notice that from an early day in civilization the primary 
 
 1 Greenl. Cruise, Dig., star page 2 3 Washb. Eeal Prop. 4. 
 315; Coke, Inst. 366a. 
 
182 CREATION AND TEANSFEE OF ESTATES. [§§ 466, 457. 
 
 source of all title or ownership has been regarded as resting 
 in the sovereign power. This principle, so fundamental in 
 the feudal system, is scarcely less effective in the allodial ; 
 for, as has been sought to be explained heretofore in this 
 book,^ the practical distinction between these two systems 
 is, that in the former the sovereign has no power to com- 
 pletely divest itself of title to lands, while under the latter 
 it may invest an individual with all the interest which it 
 possesses therein. 
 
 §456. Descent and purchase. — It is agreed by all the 
 writers that there are two modes only of acquiring a title 
 to land, namely, descent and purchase,' ^ both of which have 
 heretofore been explained. It will, however, be convenient, 
 if not technically correct, for us to make a further division 
 of titles by purchase into those acquired in some way other 
 than by gift or grant, as, for instance, by occupancy, lim- 
 itations, etc., and those acquired by gift or grant, either 
 public or private.' 
 
 § 457. Title by descent. — Pursuing these subjects in due 
 course, we come first to that of title by descent. "Whenever 
 the title to real property is vested in a person by the single 
 operation of the law, such person is said to have title by 
 descent.* Therefore descent, or, as it is sometimes called, 
 hereditarj' succession, is the title whereby a person, on the 
 death of his ancestor, acquires his estate as his heir at law. 
 An heir is he upon whom the law casts the estate immedi- 
 ately on the death of the ancestor, and an estate so de- 
 scended on the heir is in law called an inheritance.^ This 
 heir at law cannot be deprived of the estate except by ex- 
 press devise or necessary implication,^ nor can the heir by 
 any act of his own avoid the estate so cast upon him. 
 
 1 See introductory chapter. * 1 Inst. 186. 
 
 2 3 Washb. Real Prop. i. ' Greenl. Cruise, Dig., star page 
 
 3 While perhaps not specifically 318. 
 
 so set forth, this is, nevertheless, *Haxtun v. Corse,3Barb. Ch. 506; 
 the classification adopted by Mr. Gage v. Gage, 9 Foster (N. H.), 533; 
 Washburn. Doe v. Lavins, 3 Ind. 441. 
 
§ 458.] OF TITLE TO THINGS EEAL IN GENERAL. 183 
 
 §458. What included in an inheritance. — Evervthing 
 which properly falls under the denomination of real estate 
 descends to the heir, as do also such other chattels as are 
 annexed to the freehold, together with all other things 
 which come within the terms " fixtures " or " chattels real." ' 
 Hereditaments, of course, so descend, and in many in- 
 stances even a contingent interest will pass to the heir.^ 
 One cannot be an heir to anything but real estate.' Since 
 the heir takes by operation of law solely, and not by any 
 act or volition of the ancestor, a living person can have no 
 heirs; that is to say, that so long as the ancestor is alive, it 
 is impossible to determine what person or persons will sur- 
 vive him to take the estate as heir or heirs.'' Again, the 
 ancestor being the person from whom the property de- 
 scends, a child or grandchild may in the legal sense be the 
 ancestor of its parents or grandparents.' The common law, 
 in deference to the every-day custom of speaking of rela- 
 tives as " heirs," made use of the expressions " heir apparent" 
 and " heir presumptive." These terms, however, have no prac- 
 tical application in our law, for such persons have no rights 
 in the property of their ancestors which are recognized at 
 law.' The heir thus having no vested interest in the prop- 
 erty of his ancestor, it logically follows that there is no ob- 
 ligation resting upon the ancestor to devise his property to 
 those who at his death intestate would be his heirs. But 
 where by his will the ancestor has devised property to cer- 
 tain of his children, and has omitted to name or include one 
 of them in such devise, a legal presumption arises that it 
 was an accidental omission, and such child will be let in to 
 claim the share of the estate of the testator to which he 
 would have been entitled in the case of intestacy.' But 
 
 1 Green v. Massie, 13 111. 363. « Tied. Real Prop., sec. 663, note: 
 
 2 Clapp V. Stoughton, 10 Pick. 463. Gardner v. Page (Ky,), 11 S. W. R. 
 
 3 Brae. Law Tracts, 128; Lincoln 779. 
 
 V. Aldrich, 149 Mass. 360. "Bradley v. Bradley, 24 Mo. 311; 
 
 < Will. Real Prop. 96. Gage v. Gage, 39 N. H. 533. 
 
 5 3 Washb. Real Prop. 18. 
 
184 CEEATION AND TRANSFER OF ESTATES. [§§ 459, 4G0. 
 
 where the ancestor desires so to do, and clearly expresses 
 such intention in his will, he may leave his property to 
 whomsoever he sees fit. 
 
 § 459. Heir, who may be — Eights of, etc. — The estate 
 of the ancestor which descends to the heir so descends sub- 
 ject to be divested, if required, for the payment of the in- 
 testate's debts.i Intestacy is presumed in every case, and the 
 presumption cannot be rebutted except by the production 
 of a valid will.'' And, generally speaking, a title by descent 
 is deemed worthier than one by devise, so that if a devisee 
 take the same property exactly as if there had been no will, 
 he will be deemed to take as an heir and not as a devisee.' 
 Posthumous children inherit to the same extent as though 
 born during the life-time of the father.* By statute, in most 
 states, illegitimate children are made the heirs of their moth- 
 ers ;' this rule is in derogation of the common law, under which 
 they could be the heirs of no one. Statutory provisions have 
 also been passed in a majority of the states with regard to 
 the matter of inheritance of kindred of the half blood, who, 
 at common law, could take nothing as heirs.^ The tendency 
 of our law is to admit them to the privileges of inheritance.' 
 Where it appears that an heir has received a part of the 
 estate during the life-time of his father, such part will be 
 deducted from his share as an heir. The sum thus advanced 
 is called an advancement and may consist of real and personal 
 estate. But it must be made clearly to appear that what 
 the heir had taken previousl}' was in fact an advancement.' 
 
 § 460. Heirship, by what law determined. — Owing to 
 the fact that the laws of the various states are not uniform 
 on questions arising with regard to the matter of descent, it 
 has been found necessary to establish some general rule by 
 
 1 3 Washb. Real Prop. 18. abrogated in all but one or two 
 
 2Lyon V. Kain, 36 111. 368. states. 
 
 3 Ellis V. Page, 7 Cush. 161. « 3 Blk. Com. 227. 
 
 Changed by statute in many states. ' See 3 Waslib. Real Prop. 15. 
 
 < 4 Kent's Com. 412. 8 This matter is regulated by stat- 
 
 5 The common-law rule has been ute. 
 
§§ 461, 462.] OF TITLE TO THIXGS REAL IN GENERAL. 1S5 
 
 which heirship and the lilie questions may be determined, 
 and such rule is expressed bj' the statement that the descent 
 of real property is governed b}' the law of the place where the 
 land is situated, and that law of descent governs which was 
 in force at the date of the death of the ancestor.^ The place 
 of residence of the ancestor, or of the heir, is of no effect in 
 determining questions of descent. All the states have stat- 
 utory enactments governing the descent of real property 
 within their territorial limits. Many of the statutes are iden- 
 tical, being adapted one from the other, and all have many 
 points in common. But it is apparent that any question of 
 inheritance, descent or heirship can be settled only by ref- 
 erence to the statutes of the state within which the land in 
 question is situated. 
 
 § 461. How heirship is determined. — There is a marked 
 distinction between the principles governing the descent of 
 real property under the civil and at the common law. This 
 is of importance to us, as many of the states of our Union 
 have adopted in part the rules of the civil law. The distinc- 
 tion chiefly to be borne in mind is that, at common law, the 
 title to real property always descended, — that is, it passed 
 from father to son, to the child of the son, etc. In other 
 words, a man's father or grandfather could not become his 
 heir under any circumstances. Under the civil law the term 
 "descent" was made use of to indicate merely the passing 
 of the title to the heir, and who was such heir did not of 
 necessity enter into the question. "We use the term in this 
 latter sense, and say that property descends to the heir, 
 though as a matter of fact the father receives title through 
 the intestacy of his son. 
 
 § 462. Heirs must be relatives. — But whether the ques- 
 tion is to be determined by the rules of civil or of common 
 law, onl}'^ those persons who are in some way related to the 
 ancestor can take as his heirs. But this relationship is of 
 two kinds — by consanguinity and by affinity. The first is 
 
 1 Potter V. Titcomb, 32 Me. 300; Elsava v. Farmer, 7 Ala. 543; Emmert 
 V. Hays, 88 111. 11. 
 
180 CKBATION AND TKAKSFEE OF ESTATES. [§§ 403, 464. 
 
 that relationship which arises from a community of blood, 
 and exists between persons descended from a common an- 
 cestor, who is called the stirpes or root. And further, con- 
 sanguinity is of two kinds: lineal and collateral. Lineal 
 exists between persons who descend from one another in the 
 direct or single line of descent, as father, grandfather, etc.,. 
 or son, grandson, etc. Collateral consanguinity occurs where 
 the relationship is traced through different lines of descent 
 to the common ancestor. Thus, brothers, cousins, nephews,, 
 uncles, etc., are related by collateral consanguinity. 
 
 § 463. Affinity. — At common law only kindred by con- 
 sanguinity could become the heirs of an ancestor.' But in 
 our law the relationship created by marriage, either between 
 the immediate parties thereto, or of their respective rela- 
 tives, is recognized as conferring the right of inheritance. 
 To distinguish this mode of inheritance from that existing 
 between relatives of the same blood, the law designates it 
 by the term affinity. By statute, in most of the states, 
 the husband and wife inherit from each other, as, indeed,, 
 may their blood relations. But it is to be understood that 
 persons can never take as heirs by affinity, except in the ab- 
 sence of lineal heirs, and in some jurisdictions they are even 
 postponed to collateral heirs.^ 
 
 §464. Further rules of descent. — The law of primo- 
 geniture' has never been in force in this country. It will 
 be remembered that this is the rule of the English law, by 
 which the real estate descended to the eldest son, to the ex- 
 clusion of the other sons and daughters. In this country the 
 lineal descendpnts in the descending series inherit equally, 
 no matter whether they be males or females.* Indeed, the 
 assertion may be ventured that our law follows much more 
 closely the civil than the common law with regard to the ■ 
 matter of descent.^ 
 
 12 Blk. Com. 246; Cleaver v. H Spenoe, Eq. Jur. 176. 
 
 Cleaver, 39 Wis. 96, 20 Am. R 30. * Walker's Am. Law, 858. 
 
 2For statutory details, see 3 * 4 Kent's Com. 378. 
 Wash. Real Pi'op. 21, note. 
 
§§465,466.] OF TITLE TO THINGS EEAL IN GENERAL. 187 
 
 §465. Taking per capita. — ^ "Where lineal descendants 
 stand in the same degree removed from the intestate ances- 
 tor, they inherit in equal shares, and in such case they are 
 said to take per capita. But if they are removed in differ- 
 ent degrees, as where, for instance, there is a son, and the 
 children of a deceased daughter, such children will take only 
 the share of the deceased daughter, taking per stirpes and 
 not per capita} In the United States the doctrine of inher- 
 itance per stirpes, or by representation, has generally been 
 limited in its application to the descendants of brothers and 
 sisters, while in the case of all other collateral kindred the 
 inheritance is divided ^er capita? 
 
 § 466. Alienage, etc, — By the statutory enactments of 
 many of the states, alienage is a bar to inheritance. There 
 are many special provisions in the different states regarding 
 this matter of title by descent which it would be out of place 
 to discuss here. The student must of necessity consult the 
 statutes of the various states, or some specially prepared 
 work thereon, to acquire the information which cannot be 
 given here. 
 
 1 Skinner v. Fulton, 39 111. 484. 2 gge Stimson, Am. Law, for stat- 
 
 utory enactments. 
 
CHAPTER XIX. 
 TITLES OTHER THAN BY GRANT. 
 
 § 467. Involuntary alienation. 
 
 468. Nature and origin of title by occupancy. 
 
 469. In the English law. 
 
 470. Public lands in the United States. 
 
 471. Estoppel — ^Definition. 
 473. Estoppel by deed. 
 
 473. Estoppel by deed in law. 
 
 474. Estoppel in pais. 
 
 475. Fraud as an element in estoppeL 
 
 476. Efleect of estoppel on title. 
 
 477. Upon whom binding. 
 
 478. Prescription and limitation — Adverse possession. 
 
 479. Prescription. 
 
 480. Requisites of title by prescription. 
 
 481. Nature of enjoyment requisite. 
 483. Statutory enactments. 
 
 483. Summary. 
 
 484. Limitation. 
 
 485. Adverse possession. 
 
 486. Consideration of elements thereof. 
 
 487. Acts visible, notorious, etc. — What constitute! 
 
 488. Distinct and exclusive possession. 
 
 489. Hostile and adverse possession. 
 
 490. The estate of the disseisor. 
 
 491. Persons under disability. 
 
 493. Abandonment — Definition, etc. 
 
 493. To what kind of property applicable. 
 
 494. What acts constitute. 
 
 495. Summary. 
 
 496. Accretion — Definition, etc. 
 
 497. Avulsion. 
 
 498. Summary. 
 
 §467. Involiintavy alienation. — The subject of invol- 
 untary alienation was treated at some lengtli in a former 
 chapter, but the view therein taken was from the stand- 
 
^§ iGS, 469.] TITLES OTHEK THAN BY GEANT. 189 
 
 point of the owner, rather than from that of the pur- 
 chaser. "We have left for our own consideration the several 
 instances, other than that of descent, wherein the title to 
 landed property may be acquired by a person who has no 
 other relationship either in law or otherwise to the former 
 owner of the land. Such titles are always conferred, or at 
 least confiriixed, and made available, by operation of law. 
 The principal modes of so acquiring title are as follows: 
 Occupanc}', estoppel, prescription and limitation, accretion, 
 and abandonment. These we shall take up in their order. 
 
 OCCUPANCY. 
 
 § 468. Nature and origin of title by occupancy.— Black- 
 stone says that occupancy is the taking possession of those 
 things which before belonged to nobody, and that this is 
 the true ground and foundation of all propert}', or of hold- 
 ing those things in severalty, which by the law of nature, 
 unqualified by that of society, were common to all man- 
 kind.i 
 
 § 469. In the English law. — The law of England re- 
 strained the right of acquiring title by occupancy to the 
 single instance where a man was tenant pur autre vie, or 
 held an estate to himself only (excluding his heirs), for the 
 life of another person, and died during the life-time of such 
 other person by whose life the estate was holden. In such 
 case, he who could first enter on the land might lawfully 
 retain the possession thereof so long as such other person 
 lived, by right of occupancy.^ But the law, both in England 
 and this country, has been changed by legislation so that at 
 the present day the interest left at his death by a tenant 
 jpur autre vie, who dies prior to the one by whose life the 
 estate is measured, is governed by the general laws of de- 
 scent and distribution.^ 
 
 1 8 Blk. Com. 258 et seq. '3 Washb. Real Prop. 51. 
 
 2 3Blk. Com. 358; 3 Wasb. Real 
 Prop. 51. 
 
190 CREATION AND TEANSFEK OF ESTATES. [§§ 470-472, 
 
 § 470. Public lands in the United States.— Under the 
 system of landholding in vogue in this country, there is not, 
 nor can there be, any such thing as common property in 
 lands. The primary title to all landed property, as we have 
 already seen, is in the government; and hence, when not 
 owned b}^ private persons, lands are the property of the 
 state, or of the United States, as the case may be. In colo- 
 nizing this country, England disregarded the claims of the 
 aborigines to the lands therein, and granted such lands to 
 the colonies, by whom they were retained at the close of 
 the Eevolutionary war. The territory embraced ii^ the orig- 
 inal colonies has been extended by conquest and purchase, 
 and to all this property the government holds the primary 
 title.i There are, therefore, no lands in this country with- 
 out an owner; and the only manner in which an individual 
 can obtain title to public lands is through grant from the 
 government.'^ In view of what has just been said, it is ap- 
 parent that title by occupancy, exclusively, no longer holds 
 an important place in our law. 
 
 ESTOPPEL. 
 
 §471. Definition. — Title by estoppel arises in certain 
 cases where either equity or law, in furtherance of justice, 
 draws certain conclusions from the acts of one party in 
 favor of another, in respect to the ownership of lands, which 
 it does not permit the first mentioned partj'^ to controvert 
 or deny.' An estoppel does not create an estate nor take 
 it from one for the benefit of another. It merely concludes 
 the parties from asserting or denying the state of the title.* 
 Estoppels are of two kinds : by deed and in pais. 
 
 § 472. Estoppel by deed. — "When one has, in and by his 
 deed, made an express or implied representation that he 
 was at the time of the making thereof possessed of the title 
 which such deed purports to convey, and such representa- 
 tion be false, he will be estopped to deny the validity of the 
 
 1 1 Kent's Com. 259. 3 g Waslib. Real Prop. 70. 
 
 2 Tied. Real Prop., sec. 683. * 1 Prest. Abst. 420. 
 
§ 473.] TITLES OTHEK THAN BY GEANT. 191 
 
 title of his grantee, and this whether he make such false 
 representation with wilful intent to deceive, or is simplj 
 honestly mistaken about the matter.' Eut in order to cre- 
 ate an estoppel it is necessary that the grantee take the land 
 reljdng upon the representation which he alleges to be 
 false.^ He cannot be misled through his own lack of care, 
 ■and thereafter assert an estoppel against his grantor. And 
 while it is true that the representation may be either ex- 
 press or implied, no estoppel will arise merely from the 
 execution and delivery of a deed upon a valuable consider- 
 ation.' Covenants of warranty in deeds generally raise an 
 estoppel as to after-acquired title, and this will follow 
 whether the covenant be of general or of special warranty-* 
 The idea meant to be conveyed here is that if A. grant 
 lands to B. by deed in which there is a covenant of war- 
 ranty, A. could not thereafter set up any title to such lands 
 which he might acquire, as against B. He could not, for 
 instance, rely upon a tax deed which he had purchased, to 
 defeat the title of B.' But if the deed from A. to B. were 
 merely one of release and without such covenants of warranty, 
 it would operate as an estoppel only as to such title as A. 
 had when the deed was made, and not as to any interest 
 which he might thereafter acquire in the lands.' 
 
 § 473. Estoppel by deed in law — Form of conveyance, 
 -etc. — In order that a recital may work an estoppel, such 
 recital must be of or concerning some particular fact ; and it 
 should also be borne in mind that frequently that which 
 Tvould be sufficient to create an estoppel by deed in equity 
 "would fall far short of doing so in a court of law. For the 
 court of law holds itself bound by the form of the convers- 
 ance and pays no attention to the rights of the parties ex- 
 cept as therein expressed. 
 
 1 Stanford v.Loan Co., 133 Ind. 3 Dart v. Dart, 7 Conn. 250. 
 
 433; Ryan v. United States, 136 * Somes v. Skinner, 3 Pick. 53; 
 
 U, S. 68. Miller v. Railway Co., 133 U. S. 662. 
 
 2McCann v. Oregon, etc. Co., 18 ^Cole v. Raymond, 9 Gray, 317. 
 
 <)reg. 455, ll Pac. R. 336. « 3 Washb. 93 et seg. 
 
192 CREATION AND TEANSFEK OF ESTATES. [§§ 474, 475. 
 
 § 474. Estoppel in pais. — An estoppel in pais arises 
 where a false representation is made by the vendor to the 
 purchaser concerning the title to or the boundary lines of 
 the property under consideration, for tha purpose of influenc- 
 ing the purchaser with regard thereto. And such representa- 
 tion may be by any act, or by word of mouth, or sometimes 
 even by silence.' The representation in order to work an 
 estoppel must be (1) as to facts not equally within the knowl- 
 edge of both parties; for if the purchaser had the same 
 knowledge, or by the exercise of ordinary diligence might 
 have obtained it, there will be no estoppel.^ (2) The repre- 
 sentation must have been actually relied upon to the deceit 
 of the purchaser.' (3) The representation must have been 
 made with the intention of influencing the conduct of the 
 party claiming to have been misled, or have been made in 
 such manner that he might reasonably have been expected 
 to rely upon it.* 
 
 § 475. Fraud as an element of estoppel. — The require- 
 ments set forth in the preceding section would seem to indi- 
 cate that fraud is a necessary element in estoppels in pais. 
 But upon investigation we find that the authorities have not 
 uniformly so held. Some courts hold that if there are pres- 
 ent in any given case the necessary elements with reference 
 to the representation, it is immaterial whether the repre- 
 sentation was made intentionally or through mistake.* Other 
 courts take the ground that the representation must have 
 been made either by one who kneio it to be false, or who 
 had no reasonable grounds for believing it to be true.^ These 
 questions, however, arise only in particular cases with re- 
 gard to title, and are to be discussed in full rather as mat- 
 
 iBaugan V.Bell, 59111. 493; Hicks « Andrews v. Lyon, 11 Allen, 350: 
 
 V. Cram, 17 Vt. 449; Noble v. 111. Maple v. Kussart, 53 Pa. St. 352. 
 
 Cent. Ry. Co., Ill 111. 437. 5 Morris Canal v. Lewis, 12 N. J. 
 
 2Je«-ett V. Miller, 10 N. Y. 406; Eq. 832; Cune v. MoMicbael,39 Ga. 
 
 Fletcher v. Holmes, 25 Ind. 469. 312. 
 
 3 Hanrahan V. O'Reilly, 102 Mass. ^Copeland v. Copeland, 2S Me. 
 
 201; xVnderson V. Coburn, 37 Wis. 539; Boggs v. Merced Co., 14 Cal. 
 
 566. 307. 
 
§§ i76, 477.] TITLES OTHER THAN BY GRANT. 193 
 
 ters of equity jurisprudence than as questions of real-property 
 law. 
 
 § 476. Effect of estoppel on title. — It is to be noted that 
 a distinction with regard to the effect of the estoppel upon 
 the title is made between one in pais and that by deed. 
 The weight of authority and the reason of the matter hold 
 that, where the estoppel is in pais, it does not create title 
 in, or transfer it to, the person claiming the benefit of the 
 estoppel, but precludes the holder of the adverse title from 
 setting up a claim thereto as against the one in whose favor 
 the estoppel operates. For instance, in a case where the in- 
 jured person is in possession of the property he will be pro- 
 tected against action brought under the paramount or rec- 
 ord title by those who are affected by the estoppel. Where 
 the estoppel is by deed, it is maintained by high authority 
 that the estoppel by deed supplies no title in the grantee, 
 but has only the effect of precluding the grantor from set- 
 ting up an after-acquired title in derogation of his own 
 grant.^ On the other hand, however, Mr. Washburn, among 
 others, holds to the theory that the title of the person against 
 whom the estoppel operates inures to the one in whose 
 favor it is established, and so passes the after-acquired title 
 to the grantee.^ Many cases might be cited supporting 
 both views of the matter. But from the fact that many of 
 the states have seen fit to legislate upon the subject, it may 
 perhaps be well said that it is recognized as a matter upon 
 which there is no universal rule. The theory first stated 
 above would seem, however, to be in accord with the gen- 
 eral doctrine of estoppel, and hence to rest upon the better 
 foundation in the law.^ 
 
 §477. Upon whom estoppel is binding. — A stranger 
 cannot be bound by an estoppel, nor can he take advantage 
 
 1 Tied. Real Prop., sec. 739; Frink 2 3 Washb. Real Prop. 190, and 
 
 V. Darst, 14 111. 308; Buckingham authorities there cited. 
 
 V. Haun, 2 Ohio St. 551; Jackson 3 For discussion and citation of 
 
 V. Bradford, 4 Wend. 619. authorities hereon, see Tied. Real 
 
 13 
 
 Prop., sec. 730. 
 
194 CREATION AND TEANSFEE OF ESTATES. [§ 478. 
 
 thereof.' But all persons who are in privity with the maker 
 of the false representation are bound thereby, and this 
 whether such i)rivity be of estate, of contract, or by blood. 
 On the other hand, no one save the person to whom the 
 false representation was made and those in privity with him 
 can claim the advantage of an estoppel. To be bound by 
 estoppel the person must be under no legal disability.^ In 
 connection with this subject the student should observe the 
 etfect of the registration or recording laws universally in 
 force throughout this country. It may be said in reference 
 to such laws that, in general, the grantee is bound onlj'^ by 
 what appears of record as of a date between the acquiring 
 of the title by the grantor and the time when he offers the 
 same for conveyance.' 
 
 PEESCEIPTION AND LIMITATION. 
 
 § 478. Adverse possession. — Titles to property which 
 have their source or foundation in either prescription or 
 limitation, or both, depend for their validity upon possession ; 
 that is to say, upon the possession of the parties setting up 
 such titles. And furthermore, the possession necessary to 
 give force to such a claim of title must be what is known in 
 the law as adverse, i. e., it must be against the right of the 
 former owner or occupant as well as against the world at 
 large. For though, as a matter of law, possession in any 
 form will confer certain rights upon the possessor, j^et if 
 the possession, in the eye of the law, be merely that of the 
 true owner, as, for instance, that of his tenant, such posses- 
 sion, no matter how long continued, can never invest the 
 possessor with good title to the propertj''. Hence, in order 
 that a title maj' arise from possession, such possession must 
 be independent of that of the true owner, and of a nature 
 
 1 Grand Tower Co. v. Gill, 111 Falls Co. v. Worcester, 15 N. H. 
 
 111. 541; CateT. French, 122 Ind. 10. 453; Gouchenoner v. Mowry, 33 
 
 2ToddT. Kerr, 42 Barb. 317. 111. 331. Contra, Pike v. Calvin, 
 
 3 There is, however, some conten- 89 Me. 183; Wilson v. Smith, 52 
 
 tion on this proposition. See Great Hun, 171. 
 
§§ 479-4:81.] TITLES OTHEE THAN BY GiJANT. 195 
 
 incompatible with the claim of the owner, and this is termed 
 adverse possession. 
 
 § 479. Prescription. — Strictly speaking, the terra pre- 
 SGrijptlon is applicable only to incorporeal hereditaments,^ 
 but it is most convenient to treat it in connection with 
 limitation, as the incidents of the two are very like in many 
 particulars. In the first place, as set forth in the preceding 
 section, both prescription and limitation are dependent for 
 their validitj'' upon possession, and in each case the posses- 
 sion must be that of him who claims title by virtue thereof. 
 Again, it is requisite in both cases that this possession be 
 coupled with lapse of time in order to complete the title, 
 and herein we find the chief distinguishing feature between 
 prescription and limitation. In the former, the common law 
 fixes what length of enjoyment of an incorporeal heredita- 
 ment, like a right of way, for instance, shall be deemed 
 sufficient evidence of an ownership of the right; while as 
 to the latter, being land, the period is fixed by statute be- 
 yond which no one may set up a title adverse to the pre- 
 sumed title of him who has for that length of time enjoyed 
 the uninterrupted possession of the same, and is called a 
 limitation.^ 
 
 § 480. Re<inisites of title by prescription. — At an early 
 day the theory of prescription was that the right claimed 
 must have been enjoyed beyond the memory of man; but 
 this standard being difficult of proof, the custom arose of 
 granting the prescription on the presumption of a deed hav- 
 ing been given and lost, in cases where enjoyment for a 
 sufficient length of time was shown.' But latterly, in the 
 United States, grants of incorporeal hereditaments are pre- 
 sumed upon proof of an adverse enjoyment for twenty years, 
 or for the period of time fixed by the statute in the several 
 states as the limitation in respect to lands themselves.* 
 
 § 481. Nature of enjoyment rec][uisite. — To the en- 
 joyment of the benefits conferred by such presumption, it 
 
 1 Crabb, Real Prop. 1039. ^ 3 Washb. Real Prop. 52; Arnold 
 
 2 3 Washb. Real Prop. 51. v. Foote, la Wend. 330. 
 
 3 2 Greenl. Ev., sees. 538, 539. 
 
196 CREATION" AND TRANSFER OF ESTATES. [§§ 482-484. 
 
 is, however, requisite that the possession be shown to have 
 continued a sufficient length of time, that it was adverse, 
 under a claim of right, exclusive, coLtinuous and uninter- 
 rupted, open and notorious, and that the owner was in posi- 
 tion, as a matter of law, to put an end to such enjoyment if 
 the same was not well founded.' 
 
 § 482. Statutory enactments. — In passing statutes with 
 reference to limitations, many of the states have made pro- 
 visions therein covering incorporeal hereditaments, and in 
 others by decisions of the courts the same length of enjoy- 
 ment as to lands is held applicable to such hereditaments. 
 The term of time requisite to raise a right by prescription, 
 therefore, has lost much of its importance in the practical 
 working of the modern rule of presumption as to grant.^ 
 But the distinction as to title by prescription to incorporeal 
 hereditaments is still a proper one. 
 
 § 483. Sunvraary. — Finally, we may say that this doc- 
 trine of presuming grants was originally adopted for the 
 purpose of quieting title and giving effect in law to long- 
 continued possession, and it is upon the theory of a grant 
 presumed that all titles by prescription rest. Such grant 
 being so presumed when the requisite time of enjoyment, 
 together with the extent of the use of which the grant is 
 claimed, are shown with legal sufficiency, when once prop- 
 erly established by competent proof, prescription does not 
 simply raise a presumption in favor of the party in enjoy- 
 ment, but forms a good and valid title to the thing enjoyed.'^ 
 
 §484. Limitation. — Passing now from the title to in- 
 corporeal hereditaments to that of lands, we find that the 
 rules of limitation in respect thereto operate to extinguish 
 or cut off the remedy of the true owner, not to confer upon 
 the one in enjoyment the estate which such owner had ; * 
 and that, beyond what has already been said regarding 
 prescription, the most important matter in connection with 
 
 1 Washb. Basements (3d ed.), pp. 2 3 Washb. Eeal Prop. 58. 
 Ill, 130 eX seq.; Coolidge v. Larned, '3 Kent's Com. 445. 
 8 Pick. 508. 4 3 Washb. Eeal Prop. 53. 
 
§§ 485, 486.] TITLES OTHER THAN BY GRANT. 197 
 
 limitation is that of adverse possession. We have seen that 
 at the common law and by statute certain periods of years 
 are fixed after the lapse of which even the true owner has 
 no remedy to recover his lands in the occupation of another 
 under certain circumstances and conditions. The language 
 generally made use of in the statutes provides in effect that 
 no action can be maintained unless the same be commenced 
 within a certain number of years "after the right of entry 
 accrues." 
 
 § 485. Adverse possession. — This phrase implies seisin 
 in the person who has the right to make the entrjf ; but, as 
 we have seen, seisin is of two kinds, viz., in law and in fact, 
 and when of the latter kind it imports possession as well — 
 that is, actual possession. The former excludes the idea of 
 actual possession and expresses merely the right "to enter " — 
 that is, to take possession by virtue of the right. So, if one 
 take possession of land of which another is seised in law, 
 the seisin, even in law, of such person is lost, and he has 
 left merely this right of entry enforcible by a suit at law.^ 
 But every wrongful dispossession, i. «., one not supported 
 by a good title, does not amount to a disseisin ; for in order 
 that it may have and continue that effect, the possession 
 thus acquired must be actual or constructive, open, notorious, 
 distinct and exclusive, hostile or adverse.^ And when we 
 speak of title by adverse possession, we include all these 
 elements; for, when so taken together, they form the basis 
 for a claim of title which, if undisturbed for the requisite 
 period of time, will become available to the disseisor because 
 the law affords the party disseised no remedy under such 
 circumstances. 
 
 §486. Consideration of these elements. — The posses- 
 sion necessary to the creation of title by adverse posses- 
 sion may be either actual or constructive. If one obtain a 
 deed to premises he is said to be in constructive possession, 
 though he has made no entry upon the land ; but such pos- 
 
 1 Preston, Abst. 284 McCormiok, 113 111. 538; Creekmur 
 
 2 4 Kent's Com. 488; Flaherty v. v. Creekmur, 75 Va. 430. 
 
198 CREATION AND TEANSFEE OF ESTATES. [g§ 487, 488. 
 
 session alone is not su fficient to work a disseisin — there must 
 be an actual occupation of the land to some extent.^ But if 
 one be in constructive possession of all the land claimed, 
 under " color of title," ^ entry on any part thereof will con- 
 stitute a sufScient possession of the whole.' ISTor is it neces- 
 sary that the disseissor be himself in possession; that of his 
 agent, tenant or other legal representative will be suflBcient. 
 So also one who claims title by adverse possession may show 
 that the necessary possession was held by one under and 
 through whom he claims. The entire matter of title by ad- 
 verse possession being to a great extent regulated by stat- 
 utory enactments, the student should not fail in every case 
 to consult them. 
 
 §487. Acts visible, notorious, etc. — What constitute. 
 Ifo particular act or acts can be said as a matter of law to 
 constitute that visible or notorious possession which the law 
 requires. But it may be said that the acts must be of such 
 a nature as to apprise the world at large, and especially the 
 true owner, of the state of affairs. For if the acts done are 
 not of such character that the owner knows, or by the exer- 
 cise of ordinary diligence might know, of the possession of 
 the disseisor, the statute would never run against him to 
 bar his right of action.'' 
 
 § 488. Distinct and exclusive possession. — It is a well 
 settled rule of law that a joint possession, even though ad- 
 verse, will never amount to a disseisin. The owner must 
 be denied access to the premises and treated, if he come 
 thereupon, as a trespasser, or as one there without special 
 right.' As a matter of course, the owner may treat the in- 
 
 1 Denham v. Holeman, 26 Ga. 183, instrument is not material. Stumpf 
 
 71 Am. Deo. 193; Ambrose v. Ealy, v. Osterhage, 111 111. 83. 
 
 58 111. 506. sBarger v. Hobbs, 67 111. 592. 
 
 2 By "color of title" is meant ^Samuel v. Barrowscale, 104 
 
 some instrument in writing, as a Mass. 207; Campau v. Dubois, 39 
 
 will or deed, which purports to Mich. 374; Wait v. Grove (Ky.), 12 
 
 convey a title. In the absence of S. W. R. 1068. 
 
 actual fraud, the validity of such 5 Turney v. Chamberlain, 15 111. 
 
 271. 
 
§§ 489, 490.] TITLBS OTHEE THAN BY GRANT. 199 
 
 truder as a disseisor and bring his action of ejectment to 
 regain possession of the premises. But if the disturbance 
 of possession is to be treated by the owner as disseisin, he 
 must abandon his entire possession. If there be no such dis- 
 tinct and exclusive possession as the law requires, there can 
 be no disseisin, and hence no gaining of title by adverse 
 possession. 
 
 § 489. Hostile and adverse. — Akin to the requirements 
 stated in the preceding section is the one which provides 
 that the possession shall be hostile and adverse to the right- 
 ful owner.^ Such hostile and adverse possession is made up 
 of two elements : 1. The premises must be held under a claim 
 of title which is adverse to that of the disseisee. 2. There 
 must exist on the part of the disseisor an intention to resist 
 the title of him whom he has disseised.^ When the entry 
 of him who seeks to claim by adverse possession is laAvful, 
 as, for instance, with the consent of the owner, no disseisin 
 takes place in case the one making the entry thereafter de- 
 nies the right of the owner, and the law will presume that 
 the continued possession is subordinate to the title of the 
 true owner.^ The intention above spoken of must be evi- 
 denced by acts inconsistent with the title of the owner, and 
 both of the requirements above set forth must concur, or 
 the possession of the intruder will be neither hostile nor 
 adverse. 
 
 § 490. What estate disseisor has, etc. — When the acts 
 of the intruder amount to a disseisin, this, taken together 
 with the actual possession on his part, confers upon him a 
 sufficient seisin to enable him to alien the estate;* arid such 
 estate will, at his death, descend to his heirs. But, while 
 this is true, the title of the disseisor is not an absolute one 
 in its inception, for it is liable at all times, until protected 
 
 1 Lund V. Parker, 3 N. H. 49. » Rigor v. Faye, 63 111. 507; Fur- 
 
 2 Jackson v. Birney, 48 111. 203; long v. Garrett, 44 Wis. 111. 
 Hoyne v. Osborn, 63 Mich. 235; *Kruse v. Willson, 29 111. 233; 
 Jones V. Hookman, 12 Iowa, 108; Haynes v. Boardman, 119 Mass. 414 
 Russell V. Davis, 38 Conn. 563. 
 
200 CKEATION AND TEANSFEE OF ESTATES. [§§ 491-494. 
 
 by the running of the statute of limitations, to be defeated 
 by the owner, and this may be done either by his exercising 
 his right of entry or by recourse to his action at. law. 
 
 § 491. Persons under disability, etc.— Statutes of limit- 
 ation do not run against persons under legal disability, and 
 hence titles resting solely on the bar of such statutes are 
 regarded with much suspicion.^ The doctrine of estoppel, 
 as we have seen, ofttiraes assists in the perfecting of title 
 by adverse possession, but has application generally to the 
 establishment of certain facts incident to the title, rather 
 than to evidence on the question of its validity. 
 
 ABANDONMENT. 
 
 § 492. Definition. — As one may acquire title by possession 
 through prescription and limitation, so one may lose it by 
 an act or acts done by him which in law amount to an 
 abandonment of his rights and interests in the property in 
 question. The loss of title by this means always depends 
 upon the acts of the owner, and not upon any presumption 
 of the execution of an instrument of release having been 
 made, which from lapse of time has been lost, as is the case 
 with prescription and limitation.^ 
 
 .% 493. To what kind of property applicable. — In com- 
 mon with prescription, the doctrine of abandonment, when 
 applied strictly, has to do with incorporeal hereditaments,' 
 for title to lands cannot be lost merely because the owner 
 thereof ceases to exercise his rights with reference thereto. 
 It is always requisite that in addition to the abandonment 
 there must be present the element of adverse possession in 
 order to divest the owner of his title.* 
 
 § 494. What acts constitute abandonment. — As in ad- 
 verse possession, so in abandonment, intent becomes a ma- 
 
 1 For general form and effect of would seem to apply the doctrine 
 such statutes, see ante, " Involun- of abandonment to lands: Holmes 
 tary Alienation." v. Railroad Co., 8 Am. Law Reg. 
 
 2 3 Washb. Real Prop. 61. 716; Corning v. Gould, 16 Wend. 
 8 3 Washb. Real Prop. 63 ef seg. 643; Picket v. Dowdall, 2 Washb. 
 *The following cases, however, 107. 
 
§ i96.] TITLES OTHEE THAN BY GRANT. 201 
 
 terial element. Thus it has been held that a mere non-user 
 of a right of way for a certain length of time is not an aban- 
 donment of the right to enjoy it.' Bat where the owner of 
 a right of way not created by deed exchanged the way for 
 another, he was held to have abandoned his easement in the 
 former way.^ Had the easement been created by deed, how- 
 ever, it is suggested that the holding might have been other- 
 wise. "Whenever it may be inferred as a matter of law, from 
 the acts of the owner, that it was his intention to give up 
 his rights and to lay no further claim thereto, such owner 
 will lose his title as by abandonment ; but when the doctrine 
 is applied to lands, it proceeds rather upon the ground of an 
 estoppel injoais than upon the theory of an abandonment.' 
 Again, it has been considered by the courts of certain of the 
 states that an abandonment cannot be made in favor of any 
 particular person or individual, and that the act of abandon- 
 ment must accordingly be without any intention or desire 
 that any other particular person should thereby acquire any 
 rights in the property.* 
 
 § 495. Summary. — It may be properly stated that it is 
 not abandonment which gives the title to lands, but the fact 
 that possession was held by another for a sufficient length 
 of time to allow the statute of limitations to take effect.^ 
 But in the case of incorporeal hereditaments the title may 
 be lost to one by abandonment, though no title be thereby 
 conferred upon any other person.^ And even though the 
 acts done in abandonment amount to a confirmation of title 
 in another, this can only be effected when sach other had a 
 voida'ble or defeasible title, and cannot operate to create a 
 new estate in the place of one which is void at law. Aban- 
 
 1 MoKee v. Perchment, 69 Pa. St. " For example, when the owner 
 349. of the dominant estate abandons 
 
 2 Pope V. Bevereau, 5 Gray, 409. his right, no new title is conferred 
 sWelland Canal v. Hathaway, upon the owner of the servient es- 
 
 8 Wend. 840. tate; the holding of the latter is 
 
 * Stephens v. Mansfield, 11 Cal. simply freed from the burden of 
 
 363. the easement, 
 6 3 Washb. Real Prop. 67. 
 
202 OEKATION AND TBANSFEE OF ESTATES. [§§ 496, 497. 
 
 donraent, then, is the loss of a title by one without transfer- 
 ring or creating a new one in another person; for if the acts 
 are done with the intent to accomplish the latter purpose, 
 it amounts to a gift or sale and not abandonment.^ 
 
 ACOEETIOII. 
 
 § 496. Deflnitioii, etc. — When one is the owner of lands, 
 and portions of the soil of real estate are gradually added 
 to the lands by deposition through the operation of natural 
 causes, the owner of the lands acquires title to such deposits 
 by what is termed accretion? The most usual example of 
 this mode of gaining title is found in the case of the addi- 
 tions made to lands lying contiguous to the larger streams 
 and bodies of water. When deposits are thus gradually 
 made by the action of the waters upon which the lands 
 border, the formation thus arising is called alluvion. In 
 order to come within this term the deposits must be of soil 
 or earth of a substantial character, making a permanent ad- 
 dition to the land by imperceptible degrees. It frequently 
 occurs that where a stream flows between the lands of ad- 
 jacent owners, the soil will be gradually washed away from 
 one bank and be deposited on the other, in which case the 
 owner upon whose land the deposit is made takes title 
 thereto by accretion. But where islands are formed in 
 navigable streams the title thereto is in the sovereignty. 
 In non-navigable streams, the island, under such circum- 
 stances, would become the property of him who owned that 
 part of the bed of the stream on which it formed.' 
 
 § 497. Aviilsion. — As we have seen, to constitute allu- 
 vion the deposit must be gradual, in such a manner that 
 though witnesses are able to perceive from time to time 
 that the land has encroached upon the water line, yet that 
 it was so done that they could not perceive the progress at 
 the time it was being made.^ But instances are not want- 
 
 1 Dikes V. Miller, 24 Tex. 433. 57; Warren v. Chambers, 35 Ark. 
 
 2 3 Washb. Eeal Prop. 55. 120. 
 
 3 Banks v. Ogden, 3 Wall. (U. S.) ^Z Washb. Real Prop. 59. 
 
§ 498.] TITLBS OTHEK THAN BY GRANT. 2U3 
 
 ing when large qnantities of soil are by some sudden action 
 of the water taken from the land of one and deposited upon 
 that of another. This is called avulsion. In such cases the 
 owner does not lose title to the soil so deposited, unless he 
 permits it to remain upon the land of the other until from 
 natural causes it becomes a part thereof.^ 
 
 § 498. Summary. — Mr. Washburn considers alluvion as 
 an interest appurtenant to the land in the nature of an in- 
 cident of the ownership thereof, and terms the right to land 
 thus added to the former proprietorship as a title by accre- 
 tion.^ 
 
 1 Angell, Water-courses, sec. 60. 23 Washb. Real Prop. 60; Patter- 
 son V. Gelson, 23 Md. 447. 
 
CHAPTER XX. 
 
 TITLE BY GRANT. 
 
 § 499. Origin of the term "grant." 
 
 500. Public and private grant. 
 
 501. Sources of title in the government. 
 
 502. Conveyances of public lands. 
 
 503. Incidents of such conveyances. 
 
 504. Pre-emption. 
 
 505. Title by private grant — Distinction, eta 
 
 506. Divisions of the subject. 
 
 507. Origin of gifts by will. 
 
 508. Recognition of this title. 
 
 509. Nature and requisites of a wilL 
 
 510. Wills and deeds distinguished. 
 
 511. The elements of a vrilL 
 513. Execution. 
 
 513. Acknowledgment. 
 
 514. Publication. 
 
 515. Attestation. 
 
 516. Competent testator. 
 
 517. Must be voluntary act. 
 
 518. Undue influence. 
 
 519. What may be disposed of by will. 
 
 520. Operative as to what property. 
 
 521. Competent beneficiary. 
 
 523. At what time will takes effect. 
 
 523. Must be revocable. 
 
 524. How revocation may be made. 
 
 525. Construction. 
 
 526. Use of technical words. 
 
 537. Use of ambiguous terms, eta 
 
 528. Effect of context. 
 
 529. The methods considered. 
 
 530. As to deeds. 
 
 531. Effect of title by devise. 
 
 532. Necessity of probate. 
 
 §499, Origin of the term ''grant." — Originally lands 
 could be conve\'ed only by feoffment with liverv of seisin, 
 
§§ 500, 501.J TITLE BY GEANT. 205 
 
 and the word "grant" was made use of to denote a transfer 
 by deed of incorporeal hereditaments. But when the neces- 
 sity of making livery of seisin passed away and it became 
 lawful and customary to alien lands by deed, this word 
 "grant" was applied to conve^'ances of both corporeal and 
 incorporeal hereditaments.^ 
 
 § 500. Public and private grant. — Of titles arising by 
 or through a grant there are two kinds — title by public 
 grant, and title by private grant. The former, which will 
 constitute the subject of our first consideration, is the term 
 which is applied where title is created in an individual to 
 lands which had previously belonged to the government;^ 
 and it is to be borne in mind that with us the word " govern- 
 ment" as here used may have reference either to the United 
 States or to one of the several states. 
 
 § 501. Sources of title in the government. — The method 
 by which title to public lands in this country was obtained 
 by the government may be briefly outlined as follows: In 
 the first place there seems to have been among the Indian 
 tribes which occupied this country at the time of its discov- 
 ery and settlement, no clearly defined idea of individual 
 ownership in lands. The only well-established rights in 
 such property with them were based entirely on occupancy. 
 Secondly, no title or interest beyond this right of occu- 
 pation has ever been recognized as existing in these native 
 ■tribes by the nations which took possession of and colonized 
 this country, nor by the United States and the respective 
 states as their successors. ITo seisin on the part of the In- 
 dians was recognized, and the Indian deed amounted simply 
 to a relinquishment of the right to occupy. Such deeds 
 became effective only when followed by an actual entry, in 
 which case the grantee gained title by such entry and pos- 
 session under claim of title.^ Thirdly, the general prop- 
 erty in and sovereignty over the soil embraced within the 
 original English colonies was conceded to Great Britain 
 
 1 4 Kent's Com. 494; Will. R P. 23 Washb. Real Prop. 181. 
 147 and 195; 2 Blk. Com. 310. 3 3 Washb. Real Prop. 183. 
 
206 CEEATION AXD TEASSFEE OF ESTATES. [§§ 502, 503. 
 
 by right of discovery .^ This put it within the power of 
 that country to make gifts or grants of such lands to 
 companies or proprietors by letters patent, and these pro- 
 prietors were given certain powers of control and aliena- 
 tion over the lands so given them. Lands not so granted 
 out remained to the crown. Fourthly, at the close of the 
 Revolutionary war, by the treaty of peace, these lands, to- 
 gether with certain contiguous territory, became a part 
 of the public domain, and upon the adoption of the consti- 
 tution were taken in part by the federal government and 
 in part by certain of the several states.^ Thus the fed- 
 eral government, and in certain cases the governments of the 
 respective states, acquired the primary title to the public 
 domain. And it is to be observed in this connection that a 
 state has no control over lands of the United States lying 
 within its boundaries, until such lands have been conveyed 
 to some individual.' But what is herein said with refer- 
 ence to the modes of alienation and kindred matters ap- 
 plies equally to the governments of the United States and 
 to those of the respective states. 
 
 § 502. Conveyances of public lands — How made, etc. 
 The public lands of the United States can be disposed of 
 only by authority of congress, and such authority is evi- 
 denced either by special or general act.* The general acts 
 of this nature provide for the appointment of representatives 
 of the government, located at convenient places, with whom 
 the purchaser has his dealings. Upon his locating the land 
 desired, and paying the stipulated amount, the purchaser 
 receives what is termed a certificate of entry. Upon pres- 
 entation of this document to the proper authorities, he ob- 
 tains a •patent, which is the formal deed of conveyance as 
 provided for in the general acts above referred to. 
 
 § 503. Incidents of such conveyances. — The validity of 
 a patent cannot be attacked in collateral proceedings, and is 
 
 1 Martin v, Waddell, 16 Pet. 367. « Irvine v. Marshall, 20 How. 558; 
 
 2 Story on Const. 21& Prall v. Brown, 3 Wis. 603. 
 
 * Strother v. Lucas, 12 Pet. 454. 
 
§§ 504, 505.] TITLE BY GEANT. 207 
 
 conclusive evidence of title so long as it is not set aside in a 
 direct proceeding instituted for that purpose. The certifi- 
 cate of entry by the laws of some of the states invests the 
 purchaser with an .inchoate or imperfect legal title, suffi- 
 ciently good to enable him to maintain ejectment or tres- 
 pass.' But the holding of the United States courts on this 
 point is that the holder of the certificate of entry has merely 
 a,n equitable and not a legal title.- The certificate of entry 
 is assignable and will confer upon the assignee the right to 
 demand the patent. In dealing with conveyances from the 
 government it should be remembered that in questions of 
 property arising between it and individuals, that construc- 
 tion will be applied which is most favorable to the govern- 
 ment, nor Avill the doctrine of estoppel be enforced against 
 the state, as in cases of warranty between individuals. 
 
 § 504. Pre-emption. — In many instances the individual 
 gains title to public lands by what is known generally a.spre- 
 €inption, a method provided for in the general acts of con- 
 gress, to encourage immigration and actual settlement upon 
 public lands. As indicated above, the individual, b}'^ this 
 mode, acquires his title in part by actual residence upon an 
 improvement of the lands, paying for his patent thereto the 
 minimum price fixed by law for the sale of public lands. 
 Various acts of congress of this nature are in force, to which 
 the attention of the student is directed for further informa- 
 tion.^ 
 
 TITLE BT PEIVATB GEANT. 
 
 § 505. Distinction between a grant and a gift. — When 
 we come to consider title by private grant we are at once 
 met with the distinction between a grant and a gift. Though 
 these terms are so often used synonymously, there is yet a 
 marked difference in their signification which should not be 
 disregarded by the student. The term " grant " technically 
 
 1 Forbes v. Hall, 34 111. 167; Cav- 3 See 3 Washb. Real Prop. 300; 
 ender v. Smith, 8 Iowa, 349. U. S. Rev. Stat., sees. 3256, 3357. 
 
 •i Fletcher v. Peck, 6 Cranch, 87. 
 
2iJS ceeation and tkansfee of estates. [§§ 506, 507. 
 
 had reference to a conveyance made upon some considera- 
 tion, either good or valuable, and so has application pri- 
 marily to the alienation of lands, tenements, or hereditaments 
 by deed, that is inter vivos, — or between living persons. The 
 word "gift" is indicative of a transfer of property not made 
 upon or with regard to any consideration, solely at the will 
 of the donor, and indeed generally without the consent or 
 even the knowledge of the one who is to receive it. The use 
 of this word is of course proper when one is to become the 
 recipient of the bounty of another during the life-time of 
 both donor and donee; but technically, when applied to 
 transfers of real property, it is to be used in connection with 
 wills and testaments, and is not appropriate to the alienation 
 of lands when made between living persons. 
 
 § 506. Divisions of the subject. — Title by private grant, 
 therefore, naturally divides itself into two classes — grants 
 by deed between living persons, and gifts by last will and 
 testament, taking effect upon or at the death of the donor. 
 While grants inter vivos preceded in point of time gifts bj^ 
 last will and testament, on the ground of simplicity of de- 
 tail, it is here thought advisable to take up gifts by last will 
 and testament, or, as it is generally termed, title 'by devise, 
 before proceeding with the subject of grants by deed. 
 
 §507. Origin of gifts by will. — The feudal system, as 
 has been explained, was essentially restrictive of the power 
 of alienation, and especially so with regard to the disposi- 
 tion of lands by last will and testament. Indeed, for many 
 years after lands became freely alienable by deed, no subject 
 of the British sovereign was able to dispose of his lands by 
 testamentary proceedings. This disability led to an effort 
 on the part of land-owners to direct the course of title to 
 their lands, upon their death, by recourse to conveyances 
 operating under and b}' virtue of the statute of uses. The 
 method pursued was to make conveyance to some person 
 during the life-tinae of the testator, to be by such person 
 holden until the death of the testator, upon or to such -u&es 
 as the testator might by his last will direct; for the restric- 
 
§§ 508, 509.] TITLE BY GRANT. 209 
 
 tions of the feudal system in this regard were applicable to 
 estates of freehold alone, and the direction of a use was a 
 valid act, even when manifested in a last will and testament. 
 But the passage of the statute of uses put an end to this 
 method of disposing of lands at the death of the owner 
 thereof. However, within a few years after the statute of 
 uses was enacted, there was passed what is known as the 
 statute of wills, by the provisions of which lands became 
 freely disposable by last will and testament, and thus there 
 was introduced into the law a new source of ownership, 
 upon and about which has grown up and developed the sub- 
 ject of Title by Devise. 
 
 §508, The recognition of this species of title. — Much 
 valuable effort has been expended in the endeavor to satis- 
 factorily explain the right and power of an individual to 
 direct the disposition of his lands after his death ; ^ but it is 
 apprehended that to us as students of the modern law of 
 real property, it is quite sufficient to know that such right 
 and power do exist, and that the same are exercised and con- 
 stantly upheld by the courts of all the states of our Union. 
 The English statute of wills in its general intendment is in 
 force throughout the United States, and in it we find suffi- 
 cient source of authority for our rules of law governing the 
 disposition of real property by last will and testament. 
 
 § 509, Nature and requisites of a will. — The word 
 "gift" is particularly applicable to those dispositions of 
 propertj' made by will, for therein the testator does not 
 seek to alien the property upon any consideration, nor is a 
 consideration at all necessary to support a devise of real prop- 
 erty. Again, this word "devise'' is never properly used ex- 
 cept in connection with real estate. A testator hequeaths his 
 personal propert}'^, and devises his lands or interests therein. 
 The words "will" and "testament" are frequently made use 
 of in conjunction, though there is no difference in the legal 
 signification of the words. According to Mr. Bigelow, a 
 
 iSee Bigelow on Wills, ch. 1. 
 14 
 
310 CEEATION AND TEANSFEE OF ESTATES. [§§ 510, 51L 
 
 will is a written instrument, duly executed and attested, by 
 which a competent person makes a voluntary disposition 
 of property in favor of another competent person, to take 
 effect after the maker's death, and being meantime capable 
 of revocation.' 
 
 §510. Wills and deeds distinguished. — The principal 
 distinction between title by devise and that by deed is to 
 be found in the rules of law applicable to the construction 
 of the instruments creating such titles. The courts of equity 
 have gone a long way in their endeavors to assist by con- 
 struction the faulty expressions of testators unlearned in 
 the law; and, on principles of justice, the courts of common 
 law have followed them to a certain extent. This leniency 
 has given rise to a general understanding on the part of the 
 laity that the only purpose of the courts in construing a 
 will is to ascertain and give effect to the intention of the 
 testator, and hence that a will is an instrument to the draft- 
 ing of which no technical knowledge of law is necessary. 
 But those who have given a closer attention to the matter 
 are aware that this view is erroneous. Courts are bound 
 b}' certain rules of construction in regard to a will, just as 
 the}^ are when' a deed is under consideration. The distinc- 
 tion, then, between the legal effect of a will and a deed is 
 largely one of construction, and this matter of construction 
 is referable primarily to the difference in the rules applicable 
 to each of such instruments. 
 
 §511. The elements of a will considered — Writing. — To 
 a proper understanding of the rules of construction which 
 are made use of to ascertain the intent of the testator as a 
 matter of law, it is quite necessary for us to consider in de- 
 tail those several elements which go to make up the requi- 
 sites of a valid will. And first, of the necessity of a written in- 
 strument. By the statute 29 Car. II., ch. 3, sec. 5 (commonly 
 
 1 Bigelow on Wills, ch. 3. This eoutors or guardians, and nuncu^ 
 ■definition is not intended to in- pative or holographic wills. These 
 •elude wills simply appointing ex- will be referred to later on. 
 
§§ 512, 513.] TITLE BY GEANT. 211 
 
 called the Statute of Frauds), all devises of lands or tenements 
 were required to be in writing. Legislation founded upon this 
 statute, and containing somewhat similar provisions, is in 
 force generally throughout the United States. The writing, 
 as a matter of law, is therefore taken to be the final evidence 
 of the testator's intention.^ And in the absence of fraud 
 practiced upon the testator, verbal, or even written state- 
 ments, made by him with regard to the disposition of his 
 property, will not be permitted to affect the written will. 
 Eut the will may be in part written and in part printed, as 
 upon a blank or form,^ or written either with pen or pencil, 
 upon any sort of material which is of sufficient permanency 
 to receive and retain the writing.^ 
 
 § 513. Execution. — When the will is a written one, the 
 law requires that the same shall be signed by the testator, 
 but, unlike a deed, there need be no seal in connection with 
 the signature. Unless the statute requires the testator to 
 ^ign his name, he may execute the will by making any mark 
 thereupon with the understanding and intent that such 
 mark shall constitute his signature.* The law will recoff- 
 nize for this purpose the initials or the first name of the tes- 
 tator, or, in cases where he is unable to write, his name 
 written by another person at his direction.''' The signature 
 of the testator should, properly, be placed at the end of the 
 instrument, though generally it is held sufficient if it appear 
 anywhere thereon.' In some states by statutory provision, 
 the signature must be at the end. 
 
 § 513. Acknowledgment. — The second requirement with 
 reference to execution is that of acknowledgment, by which 
 is meant that the testator shall inform the witnesses that • 
 
 1 Smith V. Smith, 54 N. J. Eq. 1 ; * This is statutory and not the 
 Hawker v. Chicago, etc. R. Co., 165 rule in all the states. See Murray 
 la 561. V. Hennessy, 48 Neb. 608; Fritz v. 
 
 2 Jarman on Wills, 78. Turner, 46 N. J. Eq. 515. 
 
 3 Tomlinson's Estate, 133 Pa. St. 6 Adams v. Field, 21 Vt. 256; 
 ^45. Watts V. Public Adm'r, 4 Wend. 
 
 4 Higgins V. Carleton, 28 Md. 115; 168. 
 Kobinson v. Brewster, 140 111. 649. 
 
212 CEEATION AND TEANSFEE OF ESTATES. [§g 514, 515. 
 
 the signature js his; and this he may do in express words or 
 by acts which clearly convey that meaning to the witnesses. 
 
 §514. Publication. — Thirdly, the testator must either 
 expressly in words, or by unmistakable acts or conduct, de- 
 clare the instrument to be his last will and testament, and 
 this is terraed puMicaiion. Publication of this nature is gen- 
 erally required to be made to the witnesses while all are 
 present; and in some jurisdictions the testator is required to 
 affix his signature in the presence of all the witnesses. 
 
 §515. Attestation. — This requirement has reference to 
 the necessity of having a certain number of persons sign the 
 will as witnesses to the due execution thereof. The number 
 of such witnesses required varies in accordance with the stat- 
 utory requirements of the different states. The general rule 
 is that any person who would be a competent witness on 
 any question of fact is a competent person to become a wit- 
 ness to a will, and, speaking generally, the fact that one 
 takes an interest in the property disposed of by the will no 
 longer disqualifies him as a witness, as was once an almost 
 universal rule. The tendency at the present day is to I'e- 
 gard the testimony of such a person as admissible, leaving 
 the question of its weight or credibility to the jury. Stat- 
 utory enactments very generally provide the form or re- 
 quirements of the attestation clause to be attached to a will 
 and signed by the witnesses. The requirement that this 
 clause shall state in substance that the testator signed in the 
 presence of all the witnesses, and that they, at his request 
 and in his presence, and in the presence of each other, signed 
 the will as witnesses to the due execution thereof, is practi- 
 cally universal. But it is also true that wills to which no 
 attestation clause is attached will be admitted to probate 
 when such clause is not specifically required by statute, if 
 it can be shown that the general requirements with regard 
 to witnessing the execution of the will were in fact com- 
 plied with.^ 
 
 •In re Hogan, 73 Wis. 78. These by statute, no universal rule can 
 matters being so largely regulated be announced. 
 
§§ 516, 517.] TITLE BY GEANT. 213 
 
 § 516. Competent testator. — The class of persons who 
 are now under such legal disability as to preclude them from 
 making a valid will is comparatively small. At the common 
 law neither married women nor persons under the age of 
 twenty-one years could make a valid will of real property ; 
 but now the restriction as to the former has been entirely 
 removed, and statutes in many instances have changed the age 
 at which the disability of infancy in this regard is removed. 
 Persons of unsound mind generally are not credited with 
 testamentary capacity, yet the line of demarcation is so 
 finely drawn that a will is not to be rejected on this ground, 
 even though the testator was considered by those who knew 
 him to be of unsound mind upon matters in general. To 
 be erratic or mentally unbalanced with regard to many of 
 the most ordinary affairs of life is not necessarily to be lack- 
 ing in testamentary capacity, though as a matter of course, 
 if the provisions of the will reflect such a state of mind on 
 the part of the testator, it would be strong evidence of a 
 want of such capacity.^ It has been held that the testator 
 may, from lack of mental power, be unable to transact the 
 ordinary affairs of life, or to make a contract, and still be 
 not lacking in testamentary capacity.^ The question in each 
 case is whether the testator, at the time of the execution of 
 the will, was fully aware of how he desired to dispose of his 
 property, and of the fact that he was carrying out his in- 
 tentions and desires by so making his will. 
 
 §517. Must be voluntary act of testator. — In order 
 to the validity of a last will and testament the execution 
 thereof must have been by the free act and will of the tes- 
 tator. This is a matter often confounded with the power 
 of testamentary disposition, and yet it is quite separate and 
 apart therefrom, as viewed in the law. In the first place 
 we may conceive of a case wherein the testator is compelled 
 to execute the will and to publish and declare the same 
 
 1 Nioewander V. Nicewander, 151 Sinnett v. Bowman, 151 111. 146; 
 111. 156. Kramer v. Weinert, 81 Ala. 414; 
 
 2 Jackson v. Hardin, 83 Mo. 175; Meeker v. Meeker, 74 Iowa, 352. 
 
214: CEEATION AND TEANSFEE OF ESTATES. [§ 518. 
 
 through bodily fear, or through fear of some injury to him 
 consequent upon his refusal so to do. But instances of this 
 kind are perhaps less rarely met with than those cases in 
 which the testator is led, rather than driven or compelled, 
 to make certain dispositions of his property in and by his 
 last will and testament, by the exercise of what the law 
 terms undue influence. This element must be considered as 
 separate and apart from both forcible coercion and the lack 
 of testamentary capacity. It will be apparent upon consid- 
 eration, however, that the amount or degree of influence 
 necessary to be exercised in any given case will depend in 
 a large measure upon the condition of the mind of the tes- 
 tator.'- ' 
 
 § 518. Undue influence. — It is a matter of some diffi- 
 culty in most instances to determine what acts or doings 
 constitute undue influence, or under what circumstances 
 it arises. It is certain that it does not consist in the exer- 
 cise of force, nor does it necessarily occur in cases where 
 the testator is under the control of the person who it is 
 alleged has brought about the improper execution of the 
 will.. The test seems to be whether the influence was such 
 that it did in reality take away the testator's free action in 
 the particular instance in question.^ The influence neces- 
 sary to accomplish the result may be exercised in the most 
 quiet or insidious manner, and indeed it may be well said 
 that in the typical case the testator is quite unaware of the 
 existence of such influence. Thus the influence exercised 
 over the testator by his relatives, or by those with whom he 
 has sustained relations of intimacy, is to be regarded from 
 the standpoint of such relationship. But it is not to be un- 
 derstood that the mere fact that such relations have been 
 sustained is sufficient to establish undue infl,uence in any 
 given case. But while this undue influence is not to be con- 
 
 iMooney v. Olsen, 23 Kan. 69; Gurley v. Park, 135 Ind. 440; In 
 
 Westoott V. Shepard, 51 N. J. Eq. reNelson, 39Minn. 218,andOrmsby 
 
 318. V. Webb, 134 U. S. 47. 
 
 2 Bigelow on Wills, p. 83, citing 
 
§§ 519, 520.] TITLE BY GRANT. 215 
 
 sidered as being exercised by any person on accourt of the 
 relations he or she may sustain to the testator, it is equally 
 to be understood that such influence may be exercised by 
 any one, without regard to the nature of the relations he or 
 she may have sustained with reference to the testator. All 
 of the circumstances must be taken into consideration in ar- 
 riving at a determination on the question of the validity of 
 a will. But the fact that the provisions of the will are 
 strongly in favor of certain persons, known to have exer- 
 cised great influence generally over the mind of the tes- 
 tator, as, for instance, his solicitor, a trusted friend, a favorite 
 son or daughter, etc., will have great weight in deciding 
 the question under consideration. 
 
 § 519. What property may be disposed of by will. — A 
 testator may dispose of any and all property which would 
 otherwise at his death go to his heirs or to his personal rep- 
 resentatives,' and this even where he is only the legal or 
 the beneficial owner, or where he has both the legal and 
 the equitable title. The true test seems to be, what prop- 
 erty is descendible? So even a mere possessory right in 
 real estate, or a right of entry after disseisin, may be made 
 the subject of a devise. 
 
 §520. Operative as to what property. — At the early 
 law the will was operative only as to such property as the 
 testator had at the date of the making thereof,^ even though 
 he -especially directed the disposition of after-acquired in- 
 terests. But the view of wills which regarded them as a 
 present conveyance, taking effect only at or upon the date 
 of their execution, has been superseded by the modern 
 rule that a will speaks or takes efi'ect from the death of the 
 testator, and so enables the testator to thus dispose of after- 
 acquired interests as freely and to the same extent as he 
 may those property rights of which he is possessed at the 
 date of the making of the will. But as a matter of course 
 
 1 Jarman on Wills, 48. 2 George v. Green, 13 N. H. 531. 
 
216 CREATION AND TEANSFEE OE ESTATES. [§§ 521, 522. 
 
 there must be an intent to make such disposition expressed 
 upon the face of the will.^ 
 
 § 531. Necessity of a competent beneficiary.— That the 
 provisions of a will with reference to the disposition of real 
 estate shall be effective, it is also necessarj^ that the person 
 in whom the title is to thereby vest, should be such an one 
 as the law will permit to enjoy the ownership of real prop- 
 erty. A very common statutory enactment prohibits the 
 taking of such property generally by corporations, and by 
 trusts in the nature of corporations, for the reasons support- 
 ing the adoption of the ancient statutes of mortmain are 
 still applicable in a large measure to such cases. The courts 
 of equity have, however, greatly aided the power of corpo- 
 rations to take as devisees, where the property given them 
 was upon charitable uses, which is so common a provision in 
 wills. But, as a general rule, the corporation can take only 
 a limited amount of real estate either by will or by deed. 
 Aliens are also under statutory disability to a certain extent 
 in this regard.^ So, also, in most states the witnesses to a 
 will, if they qualify in court as such, are incapable-of tak- 
 ing.' 
 
 § 522. At what time a will takes effect. — During the 
 life-time of the testator his will creates no rights in the dev- 
 isee. It is of no force and effect as an instrument of con- 
 veyance until it appears upon the death of the testator as 
 his last will and testament. The precise form of the instru- 
 ment appears to be of but little moment, if it can be shown 
 that the actual intention of the maker was to effect Sk^^ost- 
 mortem disposition of his property.* Accordingly an in- 
 strument described on its face as a deed may upon proper 
 showing be admitted to probate as a will. And two sep- 
 arate instruments, one taken alone being a deed and the 
 
 1 Jarman on Wills, 62. *Massey v. Huntington, 118 111. 
 
 2 Phillips V. Moon, 100 U. S. 208. 80; Bristol v. Bristol, 53 Conn. 63; 
 'The student is referred to the Cover v. Stem, 67 Md. 449, 
 
 various statutes on this subject. 
 
§§ 523, 524.J TITLE BY GRANT. 217 
 
 other a will, may be treated as one testamentary instru- 
 ment.i 
 
 §523. A will must be revocable. — As a corollary to 
 the proposition that a will does not take effect until the 
 death of the testator, it must during his life-time be subject 
 to revocation at his instance. For if the instrument in 
 question creates a present right in another person it cannot 
 of itself be a will. But one may bind himself to make a 
 devise in favor of another, and a failure so to do will then 
 amount to a breach of contract, and the courts will enforce 
 performance of the thing promised out of the estate of the 
 party so bound, after his death.^ 
 
 § 534. How revocation may be made. — The revocation of 
 a, will may be effected either expressly,^ as by the making of 
 a codicil or of a later will, or by implication as a matter 
 of law. At common law, and in some states by statute, if a 
 woman makes a will and afterward marries, the will is 
 thereby uevoked.* And it is quite generally our law that 
 subsequent marriage revokes a will made by an unmarried 
 man, though such is not the common-law rule. In some 
 states the birth of a child revokes the will, as at common 
 law. The effect of divorce, and indeed each of the matters 
 just referred to, are so far regulated by statute as to be in- 
 capable of proper treatment here. The testator may revoke 
 his will by destroying the same, as by burning or tearing it, 
 or even attempting so to do, if it was his intention to prevent 
 it ever becoming operative.^ But he cannot revoke by de- 
 claring such intention orally, or by mere spoken directions 
 to another to destroy the will.^ Having considered somewhat 
 the elements that go to make up a valid will, we shall now 
 proceed to examine the effect which is given to such instru- 
 
 1 Bigelow on Wills, 106. * Crum v. Sawyer, 133 111. 443. 
 
 2 Gould V. Mansfield, 103 Mass. 5 Blanohard v. Blanchard, 33 Vt. 
 408; Bird v. Pope, 73 Mich. 89; Bige- 63; Gay v. Gay, 60 Iowa, 415. 
 
 low on Wills, 110. * Boyd v. Cook, 3 Leigh, 32; Lans- 
 
 3 Gordon v. Whitlock, 02 Va. 723; ing v. Haynes, 95 Mich. 19; Mundy 
 Jarman on Wills, 134. v. Mundy, 15 N. J. Eq. 290. 
 
218 CREATION AND TRANSFER OF ESTATES. [g§ 525-527. 
 
 ments by the rules of construction as applied thereto, for 
 upon this point depends the value of a will as an instrument 
 for the creation or transfer of title. 
 
 § 525. Construction. — The primary rule applicable to the 
 construction of a will is that the instrument, or rather the 
 wording thereof, shall be so taken that effect may be given 
 to the intention of the testator. The statement of this rule 
 implies that in many cases the testator has for some reason 
 failed to clearly express his wishes and directions with refer- 
 ence to the disposition of his estate. When such a case 
 arises the instrument is said to be open to construction ; that 
 is, it must be submitted to the court in order that the true 
 legal effect of the bequests and devises therein made may 
 be determined as a matter of law. 
 
 § 526. Effect of the use of technical words. — But it 
 sometimes happens that the testator has, perhaps inadvert- 
 ently, made use of certain words or expressions, which in 
 the law have a certain and definite signification, as, for in- 
 stance, the use of the words " his heirs" in connection with 
 a gift of real property; and it is to be observed in such 
 cases that the law will not vary the meaning or effect of 
 such words. It will not permit the testator to import a 
 new signification into the law, but will refuse to place any 
 other or different meaning upon such words than that given 
 them in the law generally. 
 
 § 527. Effect of ambiguous words, etc. — But the mere 
 fact that the testator has sought to express his intentions in 
 ungrammatical terms or in ambiguous words will not, of 
 necessity, prevent the court from giving effect thereto. For 
 it has been held by high authority that if by the use of plain 
 and unambiguous words a testator has made his meaning 
 clear and certain, his will expounds itself, and all the court 
 can do, or has power to do, is to give effect to his purposes, 
 and in such case it matters not that the result is absurd or 
 nonsensical.^ 
 
 1 Marshall v. Hadley, 50 N^. J. Eq. 547. 
 
§§ 528-531.J TITLE BY GEANT. 219 
 
 § 528. Effect of context. — Construction may have to do 
 with intention improperly or insufficiently expressed, or it 
 may deal with particular words and phrases of the will, the 
 meaning of which is rendered uncertain by the context, or 
 by circumstances brought out in connection with the will 
 itself. As it is usually stated, construction is concerned 
 either with ellipsis of intention, or with verbal ellipsis. Con- 
 struction therefore works out its purpose, (1) bj' interpre- 
 tation, (2) by means of rules, or (3) by both methods to- 
 gether.' 
 
 § 529. These methods considered. — The first method is 
 known as the primary method of construction, and accom- 
 plishes its purpose, if at all, by properly interpreting the in- 
 tention of the testator as the same is to be gleaned from a full 
 consideration of the language of the entire will. The sec- 
 ond, or secondary, method proceeds upon the theory that 
 the testator has imperfectly or incompletely expressed his 
 intentions, wishes and desires, and the law steps in to effect- 
 uate his intentions by completing the idea which in its judg- 
 ment the testator had in mind. And hereto are applied 
 those certain rules of construction established by the law as 
 being more likely to bring about justice and uniformity 
 than would the leaving thereof to uncertainty or to the 
 caprice of any particular court.^ 
 
 § 530. As to deeds. — It will be apparent from what has 
 been said that the law applicable to wills differs in this im- 
 portant matter of construction from that applicable to 
 deeds. A party to a deed is bound by the letter of the law, 
 while the testator receives the benefit of the spirit thereof. 
 This becomes of importance when thu legal effect of a gift 
 is under consideration. The question frequently concerns 
 both the quality and the quantity of estates and so falls 
 within the domain of real-property law. 
 
 § .'31. Effect of title by devise. — In common with title 
 by descent and by deed, the legality and effect of devises are 
 
 1 Bigelow on Wills, 151 ^ Fabeiis v. Fabens, 141 Mass. 395. 
 
220 CEEATION AND TKANSFEE OF ESTATES. [§ 532. 
 
 governed by the law of the place where the land devised is 
 situated.! But the interpretation of the will is made in ac- 
 cordance with the laws of the place of residence of Lhe tes- 
 tator. While it is the rule that a will speaks, or becomes 
 operative as an instrument of conveyance, only at, or upon, 
 the death of the testator, yet it is often necessary, in en- 
 deavoring to ascertain the intention of the testator, to bear 
 in mind the conditions existing at the date of the execution 
 of the will. It seems hardly requisite to call attention to 
 the fact that, no matter what may be the provisions of the 
 will to the contrary, the devisee takes the property there- 
 under subject to the debts and obligations of the testator. 
 When the person named in the will as devisee dies prior to 
 the testator, the devise is said to lapse, that is, it comes to 
 r.n end, because in such case there is no one to take. Stat- 
 utes, however, have very generally made provisions regulat- 
 ing the matter of lapsed legacies and devises. 
 
 § 533. Probate — Proof of title, etc. — By statute, in this 
 country, wills must be regularly proven and made a matter 
 of record in order that the title of the devisee may be es- 
 tablished. For, until this step is taken, the public at large 
 is not bound to recognize the rights of him who takes under 
 a will. The methods of procedure, the proper court in which 
 to offer the will, etc., are consequently matters regulated by 
 statutory provisions. 
 
 1 Richard v. Miller, 63 III. 417; Swearingen v. Morris, 14 Ohio St. 424. 
 
CHAPTER XXI. 
 
 TITLE BY PRIVATE GRANT. 
 
 § 533. Private grant by deed. 
 
 534. Effect of statute of uses. 
 
 535. Statutory conveyances. 
 
 536. Incidents of common-law conveyances. 
 
 537. Feoffment. 
 
 538. Effect of possession. 
 
 539. Grant. 
 
 540. Lease. 
 
 541. Partition. 
 
 543. Secondary conveyances — Release. 
 
 543. Confirmation. 
 
 544. Surrender. 
 
 545. Conveyances operating through statute of uses. 
 
 546. Mode of operation, etc. 
 
 547. Bargain and sale. 
 
 548. Statutes of enrollment. 
 
 549. Lease and release. 
 
 550. Use of these forms in the United States. 
 
 551. Modern statutory conveyances. 
 
 552. Quitclaim deeds. 
 
 553. Construction of deeds. 
 
 § 533. Private grant Iby deed. — Title by public grant and 
 by devise having received our attention, we come next to 
 that division of title by private grant in which is included 
 all modes of alienation between individuals wherein both 
 parties to the transaction are living persons. When a trans- 
 fer of landed property is made under these circumstances, it 
 is termed in the law a conveyance inter vivos, and is effectu- 
 ated by the execution and delivery of an instrument under 
 seal, that is, of a deed.* But deeds were not the earliest 
 means made use of to transfer the title to real property, for 
 it appears that in the ancient law it was necessary in every 
 
 1 3 Washb. Real Prop. 239. 
 
222 CREATION AND TEANSFEE OF ESTATES. [§§ 534-536. 
 
 case that there be what the law considered a public de- 
 livery of the land by the vendor to the purchaser.^ This 
 wa.s iinown as livery of seisin and was the proper mode of 
 alienating a freehold. But when lands came to lie in grant, 
 as well as in livery, a form of deed came into use for this 
 purpose, the operation of which is now designated as a com- 
 mon-law conve3'ance. Such a conveyance directly and by 
 its own force and effect takes the legal title from the grantor 
 and confers it upon the grantee. 
 
 § 534. Effect of statute of uses. — The statute of uses, as 
 we have seen, introduced a new mode of transferring the 
 title to real property, and thus arose a separate class of con- 
 veyances, operating under and by virtue of this statute, and 
 quite independent of the common-law conveyance.* 
 
 § 535. Statutory couveyauces. — Then again the body of 
 the more recent law contains many legislative enactments 
 providing new and somewhat different forms and methods 
 for the alienation of lands. Hence, there are for our consid- 
 eration three principal classes of conveyances inter vivos, viz : 
 the common-law conveyance, conveyances operating under 
 the statute of uses, and the modern or statutory convey- 
 ances. As being the earliest in point of time, and largely 
 the foundation of the others, the common-law conveyance 
 is of the greatest importance, and will first receive our at- 
 tention. 
 
 § 536. lucidents, etc., of common-law conveyances. — 
 Common-law conveyances are divided into two classes: pri- 
 mary and secondary. The first are such as confer upon one 
 who theretofore had no interest in the land some interest 
 or estate therein. The second are made use of when it is 
 desired to enlarge, restrain, transfer or extinguish the es- 
 tate or interest which the grantee already has in the lands. 
 The first invests a stranger with title, the second adds to, 
 abridges, or brings to an end, an estate already held in the 
 
 1 2 Blk. Com. 310. 'Spence, Eq. Jur. 452. 
 
§§ 537, 538.] TITLE BY PEIVATE GEANT. 2:i3 
 
 propert}'.^ Of primary conveyances there appear to be four 
 principal kinds: feoffment, grant, lease, and partition. 
 
 § 537. Feoifmeiit. — A feoffment is tiie most ancient 
 method of convej^ance, and is the gift of any corporeal 
 hereditament by one person to another.^ The word in its 
 original meaning signifies the gift of a feud, but gradually 
 the word " enfeoff," to grant a feud, came into general use. 
 It is the proper mode of conveying a freehold, though it 
 seems to serve equally well for the conveyance of any other 
 estate.' Feoffment operated upon the possession without 
 any regard to the estate or interest of the feoffor, and, so 
 long as the feoffor had possession, the feoffment passed a fee 
 and worlied a disseisin of the freehold.* The peculiar oper- 
 ation of this kind of common-law conveyance was due to 
 the fact that whenever it was made use of it was necessary 
 not only that there should be given the deed of feoffment, 
 but also that the deed should be followed by that ceremony 
 known as the livery of seisin.^ This amounted to an actual 
 delivery of possession to the feoffee by the feoffor and in- 
 vested him with a freehold estate in the lands. By statute 
 in England, and generally throughout this country, a feoff- 
 ment has been deprived of the peculiar power just above 
 outlined, and so restricted to the conveyance of the estate 
 which the grantor had in the land. 
 
 § 538. Effect of possession upon title, etc. — The tor- 
 tious operation of a feoffment was probably due to the de- 
 sire, or policy of the law, which seems to have existed then 
 as now, that all transfers of landed property should be open 
 and notorious, and thus susceptible of ready proof when the 
 title of any person was called in question. The foundation 
 of every title at that early day was actual possession,^ and 
 this, as a matter of course, the feoffor must have had in 
 
 1 3 Blk. Qom. 309. *3 BIk. Com. 310; Co. Lit. 486. 
 
 2 2 Blk. Com. 310. " Bigby, Hist. Real Prop,, ch. Ill, 
 
 3 3 Blk. Com. 310. sec. 13. 
 
 4 Digby, Hist. Real Prop., oh. Ill, 
 sec. 12 (2); 4 Kent's Com. 480. 
 
224 CREATION AND TRANSFER OF ESTATES. [§ 539. 
 
 order to perform the ceremony of livery, and it appears 
 that the law did not go back of the fact of this possession 
 on questions of title. In the modern law, registration acts 
 and similar legislation have rendered unnecessary the livery 
 of seisin, and it has but little place in our law of to-day. 
 But, in form, the old deed of feoffment is still largely in use, 
 and, where not specifically abolished by statute, is a proper 
 and sufficient method for conveying a freehold estate.^ 
 "K"othing," says Kent, "can be more concise and more per- 
 fect in its parts than the ancient charter of feoffments." ^ 
 Under our authorities the feoffment now having no tortious 
 operation, the feoffee will come into only such estate and 
 with the same and no greater right therein than had the 
 feoffor, so that no disseisin now takes place in such cases. 
 § 539. Grant. — When at common law it was desired to 
 make a transfer of incorporeal hereditaments, a form of 
 conveyance known as a grant was resorted to. It was from 
 the nature of the property impossible in such cases to make 
 livery of seisin, and in consequence the transaction was com- 
 pleted by the giving of a deed only. In form this deed is 
 practically the same as the deed of feoffment, but, as we 
 have seen, a deed, no matter in what form, was insufficient 
 to convey corporeal hereditaments, and hence at common 
 law that kind of property could not be aliened by grant;' 
 and because there was not present in the case of a grant 
 that sort of possession upon which the law laid so much 
 stress in feoffments, a grant conveyed only the estate which 
 the grantor really had in the property. It had no tortious 
 effect upon the interests of any other person.* But the dis- 
 tinction in this regard has now been abolished, and cor- 
 poreal hereditaments as well as incorporeal are said to " lie 
 in grant," that is, to be alienable by deed alone. The words 
 "have given and granted," common both to feoffments and 
 grants, are now sulficient to effectuate the transfer of either 
 
 1 3 Wash. Real Prop. 360. 3 2 Blk. Com. 810. 
 
 2 4 Kent's Com. 480. 4 4 Kent's Com. 353. 
 
§§ 540-542.] TITLE BY PEIVATE GRANT. 225 
 
 corporeal or incorporeal hereditaments.^ Conveyances at 
 the present day, operative through the common law, are 
 generally deeds of grant. 
 
 § 540. Lease. — The term lease, as we now make use of 
 it, indicates an instrument made use of for the convej^ance 
 of some estate less than a freehold. But such was not the 
 sense in which the word was used in the common law. 
 There it was- properly a conveyance of a particular estate in 
 lands where there was a reversion left to the grantor.^ And 
 such particular estate might have been of freehold, as, for 
 life, or less than freehold, as an estate for years. When em- 
 ployed now it indicates something more than a conveyance, 
 for it embraces the terms and conditions upon the perform- 
 ance of which the lessee gains the right to the possession of 
 the lands for a term of years. Being an estate less than 
 freehold, the lessee or tenant for years is merely possessed, 
 not seised, of the lands, and so until possession is taken he 
 has only a chose in action, called an interesse tennini, the 
 estate for j'^ears not being created as such until the lessee 
 enters into his possession. 
 
 § 541. Partition. — Partition is, properly speaking, of two 
 kinds : voluntary and involuntary. In the former it differs 
 in form and effect very little, if at all, from the other modes 
 of conveyances, feoffment and grant. It affords the means 
 of effecting a division between persons who have joint es- 
 tates in lands, and of changing their joint ownership into 
 estates in severalty. It accomplishes this purpose by ordi- 
 nary deeds of indenture, conveying to each interested party 
 his share in severalty. When a partition cannot be agreed 
 upon by the parties thereto, recourse may be had to equity, 
 and the division effected by and in accordance with a decree 
 of the court. 
 
 § 542. Secondary conveyances — Release, etc. — Of the 
 secondary conveyances we may note the following : Eelease, 
 confirmation and surrender. A release is a discbarge or a 
 
 1 Washb. Real Prop. 353, 2 2 Blk. Com. 317. 
 
 15 
 
226 CEEATION AND TRANSFER 0¥ ESTATES. [§ 543. 
 
 conveyance of a man's right in lands or tenements to another 
 who hath some former estate in possession therein.^ The 
 words appropriate for use in such instruments are " remised, 
 released and forever quitclaimed." A release is effective: 
 (1) For the purpose of enlarging an estate; as, for instance, 
 where a remainderman releases his expectancy in fee to the 
 owner of the particular estate, thus putting an end to the 
 remainder, and investing the tenant of the particular estate 
 with a present estate in fee. (2) For the purpose of passing 
 or conveying an estate; as, for instance, where one of two 
 joint tenants releases all his right to the other, and such 
 other thus acquires the entire estate. (3) For the purpose 
 of conveying or passing a right; as where a disreisee releases 
 all his right, title and interest to his disseisor, and thus 
 changes his estate from one by tortious act to one of right. 
 (4) By way of extinguishment ; as where a reversioner releases 
 to the grantee of his tenant for life and thus puts an end to 
 the reversion. (5) By way of entry and feofifment, as in a 
 case where there are two joint disseisors, and the disseisee 
 releases to one of them, the one receiving such release will 
 be sole seised and in virtue thereof may oust his co-disseisor. 
 The legal effect of a release of this nature is the same as if 
 the disseisee had regained his seisin by making an entry, and 
 had then enfeoffed one of the disseisors of the land. It will 
 be seen that in some of the oases above outlined, livery was 
 not, and in others was, necessary, for in some the releasee 
 already had the seisin, while in others it was necessary'' to 
 invest him with it. 
 
 § 543. Confirmation. — A confirmation is a conveyance 
 of an estate or right in esse, whereby a voidable estate is 
 made sure and unavoidable, or whereby a particular estate 
 is increased.^ The operative words in this kind of convey- 
 ance are, " have given, granted, ratified, approved and con- 
 firmed." Thus a confirmation is a proper conveyance when 
 •one having aliened for a particular purpose, voidable at his 
 
 13 Blk. Com. 324 2 3 Blk. Com. 335; 1 Inst. 395. 
 
§§ 544-546.] TITLE BY FEIVATE GEANT. 227 
 
 option, thereafter desires to make the estate of his grantee 
 certain and unavoidable. 
 
 § 514-. Surrender. — A surrender is a conveyance made 
 use of to pass a lesser estate into a greater, and is in this 
 regard the opposite of a release. It is defined as a yielding 
 up of an "estate for life or years to hira who hath the im- 
 mediate reversion or remainder." ' The operative words 
 are, "hath surrendered, granted and yielded up." To be 
 effective as a surrender, there must be present in every 
 case a privity of estate between the parties thereto and a 
 merging of the lesser in the greater estate. Surrenders, 
 moreover, are of two kinds: in fact and in law; the first 
 by formal instrument of surrender, or by any form of words 
 without the necessary writing, where a clear intention to 
 surrender appears from the acts of the tenant of the partic- 
 ular estate ; ^ the second, by the acceptance of a nev," lease 
 from the lessor for the whole or a part of the time em- 
 braced in the former one, because such an act necessarily 
 implies a determination and surrender of the former lease.'' 
 
 § 545. Conveyances operating through the statute of 
 uses. — We discussed in a former chapter the enactment and 
 operation of the statute of uses, and it was there stated that a 
 conveyance of lands might be made under the provisions of 
 this statute without the necessity of livery of seisin or of ob- 
 serving the forms and requisites prescribed by the common 
 law. This statute being still in force, both in substance and 
 effect, we have at the present day, in addition to those 
 operative by common law, conve3'ances under the statute 
 of uses. 
 
 § 546. Mode of operation, etc. — Uses are raised without 
 transmutation of possession where the legal owner of lands 
 binds himself to hold such lands for the use of some other 
 person.* There are two methods generally employed for 
 
 1 2 Blk. Com. 326. « Digby, Hist. Real Prop., ch. VII, 
 
 2 2 Stark. Ev. 342. § 2. 
 
 ^Schieffelin v. Carpenter, 15 
 IVend. (N. Y.) 405. 
 
228 CKEATION AND TEANSFEE OF ESTATES. [§§ 547, 548. 
 
 the purpose of creating a use which the statute will execute. 
 The first of these is known as a covenant to stand seised to 
 uses, and is effective in those cases where a transfer of lands 
 is to be made between persons standing in close relationship 
 one to another, either by blood or by marriage, or, in other 
 words, when the consideration upon which the transfer is' 
 based is a good and not a valuable one. This sort of arrange- 
 ment is not regarded as a voluntary agreement of the nature 
 that equity refuses to enforce,' and hence the statute exe- 
 cutes the use. For example, if A. covenants to stand seised 
 to the use of B., his eldest son, and his heirs, B., by force 
 of the statute, takes an estate in fee-simple in precisely the 
 same way as if that estate had been conveyed to him by feoff- 
 ment at common law.^ 
 
 §547. Bargain and sale. — The second method of rais- 
 ing such a use is called a ha/rgain and sale, and is employed 
 when the agreement that the estate or interest in the land 
 is to be conveyed is supported by a valuable consideration. 
 The instrument is in the nature of a contract in which the 
 bargainor, for a valuable consideration, bargains and sells 
 the land to the bargainee. But while the law requires in 
 these cases a valuable consideration, it will not inquire into 
 the adequacy thereof. When it is made to appear that 
 such a contract has been made, equity raises a use in favor 
 of the bargainee which the statute at once executes, thus 
 transferring to him the estate so bargained for. ISTo par- 
 ticular form of contract or deed is required to effect the ob- 
 ject of these proceedings.' 
 
 §548. Statutes of enrollment. — Neither of the meth- 
 ods for raising a use, just above outlined, required any par- 
 ticular ceremony, or any open and notorious act to be done, 
 and were in general conducted without the knowledge of 
 any other persons than those directly interested therein. 
 This led to results never intended by the statute of uses, 
 
 1 Leake, Land Law, 108. ^ Trafton v. Hawes, 103 Mass. 533; 
 
 2 3 Saunders on Uses, 83 ; Co. Litt. 1 Prest. Con v. 38. 
 113. 
 
§§ 549, 550.] TITLE BY PEIVATE GEANT. 229 
 
 one of the avowed objects of which was to give publicity 
 to the transfer of landed property. Accordingly a stat- 
 ute was passed in the same year (1535) requiring the enroll- 
 ment of such instruments in certain public offices. With 
 us, our registration acts accomplish the purpose so far as 
 publicity is concerned, and the statute just referred to was 
 never in force in this country .^ 
 
 § 549. Lease and release. — The necessity of enrollment 
 in England was soon evaded by a method of conveyance 
 known as a lease and release. The statute of enrollments ex- 
 tended its provisions only to estates of inheritance or free- 
 hold, and so had no effect upon a bargain and sale of a term 
 of years created out of a freehold. Hence if A., tenant in 
 fee, bargained and sold his lands to B. for one year, there 
 was no necessity for enrollment. By the decision of the 
 courts^ it was held that a bargain and sale for a term of 
 years gave to the lessee, by force of the words of the statute 
 of uses, possession of his term as if he had actually entered 
 on the land, at least to such an extent as to render him ca- 
 pable of taking by a simple deed a release of the reversion. 
 Eor example, on to-day. A., tenant in fee, bargains and sells 
 his land to B. for one year, and to-morrow executes a release 
 of the reversion in fee to B. and his heirs. B. being in pos- 
 session, as soon as the release is executed the smaller and the 
 larger estate would merge in him and he would become ten- 
 ant in fee in possession.' 
 
 § 550. The use of these forms in the United States.* — 
 Bargain and sale is the mode of conveyance most prevalent 
 in the United States, except where there are conveyances 
 of special statutory form, and indeed many of these, when 
 
 1 Jackson v. Wood, 13 Johns. 74. and Recovery never found great 
 
 3 In the eighteenth year of the favor in our lavr, and is of so little 
 reign of James I. importance at the present day that 
 
 ' Digby, Hist. Real Prop., oh. VII, we have not discussed it here. For 
 
 sec. 8. its explanation, see 3 Blk. Coni. 
 
 4 That method of alienation 348-357, and 4 Kent's Com. 497. 
 known in the English law as Fine 
 
230 CREATION AND TEANSFEK OF ESTATES. [§§ 551, 552. 
 
 traced to their source, are found to operate upon the prin- 
 ciples of bargain and sale.' 
 
 Lease and release was formerly much in use with us, but 
 it was cumbersome and somewhat inconvenient, requiring, 
 as it did, two deeds in every case. Nor was it ever our law 
 that a hargain and sale was of necessity to be enrolled or 
 filed for record; hence, there being no absolute requirement 
 for the lease and release, it gradually fell into disuse and was 
 succeeded by the method of bargain and sale? 
 
 § 551. Modern statutory conveyances. — One of the rules 
 of construction applicable to statutory enactments is that, 
 unless especially worded to that effect, such enactments do 
 not render invalid the provisions of the common law with 
 regard to the subject in question. Applying this rule to the 
 matter of statutory conveyances, we find that in general, 
 while in many states the statutes provide certain forms for 
 the conveyance of landed propert}', the effect thereof is not 
 to render the old common-law forms, the bargain and sale, 
 or the lease and release, ineffectual as modes of alienation.' 
 The purpose of such statutory enactments is to provide sim- 
 pler forms and methods to accomplish the same purpose.* 
 The statute of frauds, so generally in force with us, requires 
 that all such conveyances shall be made by an instrument 
 in writing, and in the majority of the states such instru- 
 ment is further required to be under seal in order to pass 
 the legal title. 
 
 §552. Qnitclaim deeds. — An instrument of this nature 
 is peculiar, in that it may operate either as a primary or as a 
 secondary conveyance.^ It is quite as effectual as any other 
 deed for conveying title to a stranger, and will transmit to 
 
 lit is to be noted that bargain *For Instance, in Illinois it is 
 and sale by deed can create an es- held that the words "convey and 
 taXe. in futuro. Rogers v. Eagle F. warrant," made use of in the stat- 
 ins. Co.,9Wend. 611; Seals v. i^rice, utory form of deed, imply full and 
 83 Ga. 587. complete covenants of warranty. 
 -i Kent's Com. 494-496. 5 There are exceptions to this 
 3 3 Washb. on Real Prop. 360. rule in some states. 
 
§ 553.] TITLE BY PRIVATE GKANT. 231 
 
 such a person all the right, title and interest which the 
 grantor has in the lands at the date of its execution and de- 
 livery. But as it contains no covenants warranting the 
 title, the grantee is without remedy against the grantor in 
 case the same prove defective.^ As secondary conveyances, 
 quitclaim deeds have largely taken the place of the old com- 
 mon-law release in our every-day practice, and are available 
 in all cases where the release might have been used. No 
 particular form of words is necessary in making a deed of 
 this nature, providing that some words indicating the in- 
 tention of making a transfer are present.^ 
 
 § 553. Construction of deeds. — A deed will operate as 
 that mode of conveyance which best carries out the inten- 
 tion of the parties when clearly manifested therein, pro- 
 vided there are sufficient operative words to bring the deed 
 within that class of conveyances.^ Thus, an instrument con- 
 taining the words " give, grant, bargain and sell " may oper- 
 ate either as a bargain and sale, or as a common-law deed. 
 The utility of this rule arises from the fact that deeds would 
 otherwise sometimes fail for inaccuracy of expression with 
 regard to the operative words. It is always the policy of 
 the law to uphold and enforce this class of instruments, 
 rather than to hold them void and of no effect. 
 
 1 Sherwood v. Barlow, 19 Conn, ^ Fash v. Blake, 38 111. 367. 
 471; May v. Le Clair, 11 Wall. 233. STied. on Real Prop., sec. 783. 
 
CHAPTER XXII. 
 
 CONVEYANCES INTER VIVOS. 
 
 § 554. Deeds. 
 
 555. Deeds poll and indentures. 
 
 556. Indentures. 
 
 557. Requisites of a deed. 
 
 558. The writing. 
 
 559. Alterations, etc. 
 
 560. Burden of proof. 
 
 561. Of parties to a deed. 
 
 563. Ratification and disafBrmance. 
 
 563. Continued. 
 
 564. Married women as parties to deeds. 
 
 565. Grantees. 
 
 566. Naming parties in the deed. 
 
 567. Something to be granted. 
 
 568. The consideration. 
 
 569. Third parties. 
 
 570. Execution — Signing. 
 
 571. Sealing. 
 573. Attestation. 
 
 573. Acknowledgment. 
 
 574. Object and purpose thereof. 
 
 575. Form of certificate — Effect, etc. 
 
 576. Delivery. 
 
 577. Effect of delivery. 
 
 578. Delivery in escrow. 
 
 579. Registration, recording, etc. 
 
 580. Effect of registration. 
 
 581. Requisites as to notice. 
 583. Notice, how given, etc. 
 
 § 554. Deeds. — The transmutation of the legal title to 
 lands between living persons is at the present day accom- 
 plished by the making, executing and delivery of a deed. A 
 deed is a writing sealed and delivered, to prove and testify 
 the agreement of the parties whose deed it is to the things 
 
§§ 555-558.] CONVEYANCES INTEK VIVOS. 233 
 
 therein contained. ' Though, as we have seen, certain of 
 the formalities required in the ancient law with regard to 
 deeds may now be omitted, yet it is time well spent to con- 
 sider the essentials of the old common-law deed and to 
 familiarize ourselves with its form and contents. 
 
 § 555. Deeds poll and indentures. — We find, in the first 
 place, that deeds are of two sorts — deeds poll and indent- 
 ures. The former is not, strictly speaking, an agreement 
 between two or more persons, but is a deed which con- 
 tains the language, signature and seal of the grantor only. 
 It should be observed in passing, however, that instruments 
 of this sort may contain agreements which will become bind- 
 ing upon the grantee on his acceptance of the deed.^ Our 
 ordinary warranty and quitclaim deeds are among the ex- 
 amples of deeds poll. 
 
 § 556. Indentures. — An indenture is a deed containing 
 the mutual agreements between two or more parties. A 
 lease for a term of years, as made use of at the present day, 
 is an indenture. The distinction above outlined arises from 
 the manner of the jyrtsparaiioM. of the instruments, rather 
 than from a difference in the form thereof, and with this 
 exception the requisites of a good and valid deed, whether 
 poll or indenture, are identical and may be treated of as one. 
 
 § 557. The re(iuisites of a deed. — As to the nature of 
 these requisites it may be said that the essentials of a deed 
 are: (1) The writing; (2) competent parties; (3) a thing to 
 be conveyed; (4) a consideration; (5) the execution; (6) the 
 delivery; (7) registration. Some further investigation of 
 these matters may not be unprofitable. 
 
 § 558. The writing. — So far as the writing is concerned, 
 it probably makes no difference in our law upon what ma- 
 terial the wording of the instrument is transcribed. Nor 
 need it be precise in language, correctly spelled or en- 
 
 iGreenl. Cruise, Dig., title 33, that the grantee is to assume and 
 «ec. 16. discharge an existing incumbrance 
 
 2 As, for instance, a stipulation upon the property conveyed. 
 
234: CEEATIOX AND TEANSFEE OF ESTATES. [§§ 559-561^ 
 
 tirely grammatical,^ so long as the meaning and intentions- 
 of the parties can be gleaned from the instrument itself. 
 Parol evidence, however, cannot be resorted to for the pur- 
 pose of supplying deficiencies which render the deed uncer- 
 tain.^ 
 
 § 559. Alterations, etc. — The deed should be complete 
 in all its essential parts before its delivery; for, as a general 
 rule, any alteration, as adding or crossing out words, filling 
 in blanks, and the like, after delivery, will impair, or per- 
 haps destroy, the validity of the instrument. Where a deed 
 is to take effect in its modified form, exhibiting upon its 
 face alterations or interlineations, such changes must be 
 made prior to its delivery; and where the same are of such 
 import as to affect the scope of the conveyance, before its 
 execution. 
 
 § 560. Burden of proof. — There is some controversy on 
 the question upon whom the burden of proof rests to show 
 whether such alterations were made prior or subsequent 
 to delivery. In some jurisdictions it is held that a pre- 
 sumption exists that the changes were made after delivery, 
 and thus the burden of proof is put upon the grantee.* 
 In other states it is denied that any presumption exists, and 
 so held that the burden of establishing the validity of the 
 deed is upon him who relies upon it for his title.* The effect 
 of the delivery of a deed being as it is to pass the title ta 
 the fffantee, no alteration or destruction of the deed there- 
 after can affect the title so vested; and should the grantee 
 lose his deed before he has filed the same for registration,, 
 he may apply to a court of equity, and prove the contents 
 thereof by parol testimony.^ 
 
 §561. Of the parties to a deed. — In common with all 
 instruments having anything of the nature of contracts, a 
 deed can be made and be of force and effect only between 
 those persons who are recognized by the law as competent 
 
 1 3 Washb. Real Prop. 240. * Corastock v. Smith, 26 Mich. 30a, 
 
 2Deery v. Cray, 10 Wall. 270. 'King v. Gilson, 33 111. 354. 
 
 31 Greenl. Ev., sec. 564. 
 
§§ 562, 563.] CON"VEYANCES INTEE VIVOS. 235 
 
 parties. In the first place there must be a competent 
 grantor, that is to say, one who possesses the legal capacity 
 to convey the property. The class of persons who are not 
 regarded as competent grantors consists of infants, persons 
 of unsound mind, and, in some jurisdictions, married women. 
 The deeds of infants and persons non compos mentis are 
 generally held to be voidable rather than void.^ These 
 deeds being voidable may be ratified by the proper party 
 thereto after his disability has been removed.^ 
 
 § 562. Of ratification and disaffirmance. — -It is of course 
 a question of much difficulty to determine when the degree 
 of mental disturbance is sufficient to avoid the deed. If 
 the grantor prior to the making thereof had regularly been 
 adjudged insane or imbecile, the deed may be avoided with- 
 out further proof of his condition. In other cases a ques- 
 tion may arise as to what, if anything, there was to put 
 the grantee upon inquiry as to the mental condition of the 
 grantor.' In some instances on disaffirmance the infant or 
 insane person need not restore the consideration.* But 
 under other circumstances he may be required to do so.° 
 
 § 563, Continued. — What will be a sufficient ratification 
 or a valid disaffirmance will depend largely upon the cir- 
 cumstances of each particular case. It is not necessary that 
 there should be any formal instrument of writing to consti- 
 tute either the one or the other. It may be accomplished 
 orally or by acts which clearly evidence the intention in 
 question.^ Mere silence, with full knowledge of the facts, 
 may be sufficient to render the deed unassailable, in those 
 cases where the grantee has been in possession and improv- 
 
 1 Bensell V. Chancellor, 5 Whart. ^Scanlan v. Cobb, 85 111. 296; 
 376, 34 Am, Dec. 561; Grouse v. Kerr v. Bell, 44 Mo. 120. 
 Holraan, 19 Ind. 30, 5 Kitchen v. Lee, 11 Paige, 107, 
 
 2 Oliver v. Houdlet, 13 Mass. 237, 43 Am. Dec. 101; Farr v. Sumner 
 7 Am. Dec. 134. (Vt.), 36 Am. Dec. 327. 
 
 sCorbitT. Smith, 7 Iowa, 60, 71 6 Hubbard v. Cummings, 1 Met. 
 Am. Dec. 431. 11; Howe v. Howe, 99 Mass. 98; 
 
 Blankenship v. Stout, 85 111. 133. 
 
236 OEEATION AND TEANSFBR OF ESTATES. [g§ 564-566. 
 
 ing the property for a reasonable length of time after the 
 disability of the grantee ceased to exist.^ 
 
 § 564. Married women as parties to deeds.— At the 
 common law the deed of a married woman is void ; in many 
 of the states, however, statutes are in force whereby a mar- 
 ried woman has the same rights with reference to her sep- 
 arate property as those enjoyed by her husband, and this is 
 the tendency of the modern law. Owing to the existence 
 of the estates of dower and curtesy the execution of a deed 
 by a married women is generally done in conjunction with 
 that of her husband, though a deed executed by her alone 
 will convey title to her property subject to the marital es- 
 tate vested by law in her husband.^ As statutory provis- 
 ions exist in the various states regulating the methods of 
 property holding and of alienation by married women, such 
 statutes should be consulted by the student as occasion re- 
 quires. 
 
 § 565. Grantees. — With regard to competency to take 
 property as a grantee there is less restriction than in the 
 case of grantors; for, as a general rule, all persons may so 
 take.' There are exceptions to this rule when the disability 
 of the person is of such a nature as to preclude him from 
 performing certain conditions essential to the validity of the 
 grant, and hence in some instances the persons heretofore 
 mentioned are incompetent as grantees. 
 
 § 566. Naming parties in the deed.— Finally, with regard 
 to parties, the rule is that they should be properly and cor- 
 rectly named in the deed. The object of this is to assist in 
 the matter of identification. But when the names as inserted 
 are incomplete or even erroneous, the real person to receive 
 the property may establish his identity by extrinsic proof.* 
 Permission to do this is in part rendered necessary by the 
 confusion arising from the similarity of names, but there 
 
 iHoit V. Underbill, 9 N. H. 439; ' 3 Washb. Real Prop. 367. 
 
 Hartman v. Kendall, 4 Ind. 403. < Grand Tower Co. v. Gill, 111 111. 
 
 2 3 Washb. Real Prop. 252; Camp- 541; Tostln v. Faugbt, 33 Cal. 237. 
 bell V. Bemis, 16 Gray, 487. 
 
§§ 567-569.] CONVEYANCES INTER VIVOS. 237 
 
 must be a real person capable of being definitely ascertained 
 or the deed is void for uncertainty. 
 
 § 567. Something to be granted. — As a matter of course 
 no deed could be operative as a conveyance unless there 
 were something the title to which is to be transferred 
 thereby. It will be readily perceived that the greatest 
 necessity exists for clearly expressing in the deed exactly 
 what is to be thus conveyed, both as to its nature and extent, 
 as well as to its location. Otherwise an uncertainty would 
 arise as to the identification of the property. We have 
 already discusssed what may be the subject of transfer by 
 deed, and it is only necessary here to urge upon the student 
 the desirability of exercising a high degree of care in this 
 particular in the preparation or examination of instruments 
 of this nature. 
 
 § 568. The consideration. — The necessity or not of a con- 
 sideration, either good or valuable, depends upon the nature 
 of the conveyance. A common-law deed, as hereinbefore 
 explained, operating by transmutation of possession, will be 
 etfectual to pass a legal title without the necessity of show- 
 ing any consideration whatever. But it is proper to add the 
 words " to his and their use " to the name of the grantee and 
 his heirs, for if the estate be of fee, there will without such 
 words be raised a resulting use in favor of the grantor, upon 
 which the Statute of Uses will operate to restore the seisin 
 to the grantor.^ A use, however, will not be so raised where 
 it can be shown that the grantor had the intention to fully 
 part with his lands. Modern statutory conveyances in most 
 instances, and conveyances operating under the statute of 
 uses in every case, must have and express a consideration.^ 
 
 § 569. Third parties. — The question of consideration can- 
 - not be discussed without reference to the rights of third par- 
 ties, who, though strangers to the deed, have, as a matter of 
 law, some rights in or concerning the premises conveyed. 
 
 1 2 Saunders on Uses, p. 65. Obvi- ^gee preceding chapter. 
 ated by statute in some states. 
 
238 CREATION AND TJEANSFEE OF ESTATES. [§§ 570, 571. 
 
 Whether there be a consideration, and whether that consid- 
 eration be a valuable one and adequate, are questions which 
 largely affect the rights of such third parties. Mere Tolun- 
 tary conveyances, the effect of which is to render the grantor 
 unable to perform his legal obligations to his creditors, are 
 void as against them, and they may invoke the assistance of 
 equity to set aside such conveyances and subject the rights 
 of the grantees therein to their own.^ 
 
 §570. Execution — Signing, — The due execution of a 
 deed embraces the four essentials of signing, sealing, attesta- 
 tion, and acknowledgment. By the universal rule in this 
 country a deed is required to be signed by the grantor.^ 
 But such signing may be done by the grantor in person or 
 by some one lawfully authorized by him to do so. Thus a 
 deed may be signed by one holding a power of attorney 
 from the grantor,^ or, in the case of a person unable to write 
 his name, by any one whom he may request so to do, in his 
 presence, and to which signature the grantor affixes his 
 mark. Powers of attorney to be effectual for this purpose 
 must themselves be under seal, but a deed signed by a per- 
 son in the presence and at the direction of the grantor will 
 be valid.* 
 
 § 571. Sealing. — The ancient formalities and legal sanc- 
 tity that formerly surrounded the sealing of an instrument 
 have largely ceased to exist, but it is still the law in the 
 majority of our states that a seal is necessary to pass the 
 legal title.^ The seal, generall}'^ speaking, need be of no par- 
 ticular form or material,^ and may even be affixed by some 
 person other than the grantor if so done at his request. It 
 is valid if adopted by the grantor.' The deed should recite 
 that the grantor has affixed his seal to further evidence the 
 intention of executing a sealed instrument. 
 
 iGridley v. AVatson, 53 111. 193; *Frost v. Deering, 21 Me. 156. 
 Baker v. Bliss, 39 N. Y. 70. 68 Washb. Real Prop. 271. 
 
 2 Hutohins V.Byrnes, 9 Gray, 387. ^gome states require wafers or 
 
 3 Cady V. Shepherd, 11 Pick. 400, wax. 
 22 Am. Bee. 879. '3 Washb. Real Prop. 272. 
 
§§ 572-576. J CONVEYANCES INTEE VIVOS. 239 
 
 § 672. Attestation. — At common law witnesses to the ex- 
 ecution of a deed were not required, and such is now the 
 law in some of our states. It would appear that where wit- 
 nesses are required, the lack thereof renders the deed inop- 
 erative as a legal conveyance in the full sense of the word, 
 and hence is of prime importance. The function of witnesses 
 to a deed is merely to prove the signatures thereto, and 
 the deed need not be signed by them in the presence of the 
 grantor, it being suflScient if he acknowledges the signature 
 as his own.i 
 
 §573. Acknowledgment.— Every deed, as a part of its 
 due execution, should be acknowledged ; that is, the grantor 
 or grantors should appear before some officer authorized by 
 law to take acknowledgments, and state to such officer that 
 they have signed and sealed the said instrument with full 
 and complete knowledge and understanding of the contents 
 thereof. The officer should thereupon attach his certificate 
 to that effect to the deed.^ 
 
 § 574-. Object and purpose. — The object of the acknowl- 
 edgment, in the broadest sense, is threefold : (1) To admit 
 the deed to record ; (2) to provide an additional safeguard 
 against fraudulent conveyances; and (3) to furnish a further 
 means of identification of the grantor and additional proof 
 of due execution by him. 
 
 § 575. Form of certificate — Eifect, etc. — The formal- 
 ity of acknowledgment very generally must be observed in 
 cases where married women join with their husbands in 
 deeds for the purpose of releasing dower.' Whether such 
 acknowledgment be necessary to pass the legal title is a 
 mooted question;* but be that as it may, there can be no 
 doubt of its value and propriety as a precautionary measure. 
 
 § 576. Delivery. — The next requisite to the validity of 
 a deed as an instrument of conveyance between the parties 
 
 1 Jackson V. Phillips, 9 Gow. 113. 662; Perdue v. Aldridge, 19 Ind. 
 
 23 Washb. Eeal Prop. 314. See 290. 
 
 ^IsD statutes in the various states. * See various statutory provis- 
 
 i* McBride v. Wilkinson, 29 Ala. ions. 
 
2i0 CREATION AND TEANSFEE OF ESTATES. [§ 577. 
 
 thereto is the delivery, and this of necessity implies an ac- 
 ceptance on the part of the grantee. The matters of de- 
 livery and acceptance are quite as essential as any of the 
 acts which we have considered with reference to this sub- 
 ject.' For, so long as the deed remains with the grantor, it 
 passes no title. Again, the delivery must be made with the 
 intention to pass the title to the grantee; otherwise he 
 gains nothing thereby.^ To constitute a complete and per- 
 fect delivery the deed must be completely executed, and the 
 presumption is that the deed was delivered on the date of 
 its execution.' But this presumption is not a conclusive 
 one, and the true date of delivery may be shown for the 
 purpose of establishing the time at which the deed became 
 effective.* 
 
 § 577. Effect of delivery. — But when a deed is once de- 
 livered the title passes to the grantee, and he can be divested 
 thereof only in some manner recognized by law for the alien- 
 ation of lands. The mere destruction of the deed by him 
 or his handing it back to the grantor wilL not reinvest the 
 grantor with the title conveyed by the deed. "Where a deed 
 appears in the possession of the grantee, the presumption 
 arises that there has been a delivery and acceptance thereof.^ 
 But this presumption may be overthrown in those cases 
 where the question arises between the parties to the deed or 
 those in privity with them. But in a case where the rights 
 of an innocent purchaser for value would be prejudiced, this 
 presumption will not prevail. !N"o particular form of words, 
 or no certain acts, can be said to constitute a delivery. In 
 determining this question the matter of intention largely 
 governs.^ And so long as the acts or words, or both, of the 
 grantor evidence a clear intention on his part to make de- 
 livery, it will be quite sulBcient. 
 
 1 Fisher v. Beck with, 30 Wis. 55, •'Blake v. Fash, 44 III. 303. 
 
 11 Am. R. 546. 5 Chandler v. Temple, 4 Cush. 285. 
 
 2Cline V. Jones, 111 111. 563. « Stewart v. Reddett, 3 Md. 67; 
 
 3 Lyerly v. Wheeler, 13 Ired. 290, Crawford v. Bertholf, 1 N. J. Eq. 
 
 53 Am. Dec. 415. 458. 
 
§§ 578-581. J CONVETANOBS INTEE VIVOS. 241 
 
 § 578. "Delivery in escrow. — It sometimes happens that 
 the grantor is desirous of making a conditional delivery, 
 that is, one which will be effective to pass title provided cer- 
 tain conditions are performed. The method then to be pur- 
 sued is that of depositing the deed by the grantor with a 
 stranger, to be by him delivered to the grantee when the 
 stipulated conditions are performed. This is called a deliv- 
 ery in escrow,! ^^^^ when completed is effectual to pass title 
 to the grantee. 
 
 § 579. Registration, recording, etc. — In conformity 
 with that policy of the law which has ever favored pub- 
 licity in the holding and transfer of lands, and to the end 
 that all persons having occasion to deal with landed prop- 
 erty may be furnished with reliable means for ascertaining 
 the facts with reference to the title thereof, every state of 
 our Union has enacted laws requiring that deeds, among 
 other instruments, shall be filed for record in the county 
 wherein the lands are situated, in order that persons not 
 parties or privies thereto may be bound thereby. 
 
 § 580. Effect of registration.— The record of the deed 
 thus made affords constructive notice of the conveyance, 
 and hence when neither of two grant,ees is in actual posses- 
 sion, the one named in the recorded deed will have prefer- 
 ence over the other holding a deed which has never been 
 placed on record.^ 
 
 §581. Eequisites of deed for notice, etc. — Of course, 
 in order to be effective, the deed so recorded must be good 
 and valid, such an instrument as the law permits to be re- 
 corded, and the record of the same must be in the usual 
 form and manner.' As a general rule, when a deed has been 
 recorded a certified copy thereof is available in evidence in 
 case of the loss of the original.^ 
 
 1 Plank Road Oo. v. Stevens, 10 3 Pringle v. Dunn, 37 Wis. 449; 
 
 Ind. 1; Stevenson v. Crapnell, 114 Harper v. Tapley, 35 Miss. 510. 
 
 111. 19. 4 Clague v. Washburn, 43 Minn. 
 
 sirvin v. Smith, 17 Ohio, 326. 371, 44 N. W. E. 130. 
 16 
 
242 CREATION AND TEANSFEE OF ESTATES. [§ 582. 
 
 § 582. Notice, how given, etc. — JSTotice of the rights of 
 persons in or to real property is either actual or constructive. 
 Actual notice is given by actual possession ; constructive, 
 by means of these recording laws which we are now dis- 
 cussing. This constructive notice is available only as 
 against subsequent purchasers claiming under or through 
 the grantor, and not to strangers or the world at large.^ 
 
 ITraphagen v. Irwin, 18 Neb. 195; Shaw v. Poor, 6 Pick. 85. 
 
CHAPTEE XXIII. 
 
 COMPONENT PARTS OP DEEDS. 
 
 § 583. Introductory. 
 
 584. Component parts enumerated. 
 
 585. What may be omitted. 
 
 586. The premises. 
 
 587. Description. 
 
 588. Reformation in equity. 
 
 589. Rules of construction. 
 
 590. Construction continued. 
 
 591. Same subject continued. 
 
 593. As to the methods of description. 
 
 593. Monuments. 
 
 594. Extrinsic evidence of quantity of land granted. 
 695. The habendum. 
 
 596. Tenendum — Redendum — Conditions, 
 
 597. Covenants in deeds. 
 
 598. Of seisin and right to convey. 
 
 599. The breach. 
 
 600. Against incumbrances. 
 
 601. The breach of this covenant. 
 
 602. The covenant for quiet enjoyment. 
 608. The covenant of warranty. 
 
 604. Actions, who may maintain — Damages, etc. 
 
 § 583. Introdactory. — In addition to those formal requi- 
 sites to the validity of a deed discussed in the preceding 
 chapter, there remains for our consideration the matter of 
 those elements or component parts which make up the sev- 
 eral divisions of instruments of that nature. The student 
 will understand that the use of these component parts as a 
 whole is not essential to the validity of a deed, nor that 
 they be placed therein in the order prescribed. It is desir- 
 able, however, to follow the course laid down by the prece- 
 dents, and to this end familiarize ourselves with the objects 
 and purposes of the component parts of a deed as well as 
 
244 CEEATION AND TEANSFEE OF ESTATES. [§§ 584-586. 
 
 the order in which they should appear in every properly 
 prepared instruraeut of conveyance. Again, when we under- 
 take to apply the rules of construction to deeds, we find 
 ourselves at much inconvenience, except it be possible for us 
 to refer to these orderly and component parts of deeds by 
 their several names, and to have due understanding of the 
 purpose and proper contents of each.' 
 
 § 584. Component parts enumerated. — As stated in the 
 preceding chapter, deeds, as to form, are divided into deeds 
 poll and indentures. The peculiarities and distinguishing 
 features of each were then discussed. The early writers 
 upon the subject divided the deeds then in use into seven 
 orderly or constituent parts, viz.: premises, habendum^ 
 tenendum, redendum, condition, warranty, and covenants.^ 
 Though the modern deed does not always follow this order 
 nor contain all of these parts, it is customary to observe a 
 similar division when considering the constituent elements 
 of a good deed and the rules of construction applicable to 
 them.' 
 
 § 585. What may be omitted. — It is stated by Coke that 
 a deed operating as a feoffment is good though it contain 
 nothing but the gift, provided it be sealed and delivered, 
 with livery where necessary.* And with us it cannot be 
 doubted that a deed will be effective to pass title no matter 
 though informal, if only it contain some expression of an 
 intent to convey the land described, and is duly executed 
 and delivered as the deed of the party making it. So far as 
 merely transferring the legal title is concerned, the premises 
 is the only part of a deed which cannot be dispensed with.' 
 
 § 586. The premises. — The names of the parties, the 
 consideration, recitals by way of explanation, identification 
 and like matters, the description of the property granted 
 with the exceptions or reservations if any, the words of 
 grant, and usually the estate or quantity of ownership (the 
 
 'See Maine, Ancient Law, 276. ■'Co. Lit. 7a. 
 
 2 Shep. Touch. 74; Co. Lit. 6o. » 4 Kent's Com. 461. 
 
 3 3 Washb. Eeal Prop. 365. 
 
§§ 587-589.] COMPONENT PARTS OF DEEDS, 245 
 
 latter may be supplied by the habendum, though if repug- 
 nant the habendum will yield to the premises where it is 
 definite in limiting the estate),^ are all embraced in what is 
 termed the premises of a deed.^ These several elements 
 have heretofore received our attention, but something ad- 
 ditional ought perhaps to be said with regard to the descrip- 
 tion. 
 
 §587. Description. — "We should understand at the out- 
 set that a clearly-worded description can never be contra- 
 dicted or controlled by parol testimony.' And it is this rule 
 of law which compels the coaveyaacer to employ a high 
 degree of care in the matter of description. But the court 
 v^^ill uphold and enforce the grant if, by the application of 
 any reasonable rule of construction, it is possible to gather 
 the intention from the description, no matter how inform- 
 ally it may be Avorded, nor in what general terms it is ex- 
 pressed.* If, however, the subject of the grant cannot be 
 ascertained from the description the deed will be void for 
 uncertainty.^ 
 
 § 588. Reformation in equity.— Courts of equity have 
 power under certain circumstances to reform deeds, to the 
 end that the intentions and desires of the parties thereto 
 may not be defeated.^ But such reformation will not be 
 decreed where the uncertainty may be removed by the ap- 
 plication of any of the established rules of construction,'' 
 nor in cases where the parties have mistaken the legal oper- 
 ation of the deed.* The student is advised to consult a work 
 on equity jurisprudence for further information on the sub- 
 ject of this section. 
 
 § 589. Rules of construction. — The law will not permit 
 an estate to depend upon the use or omission of punct- 
 
 iBuddv. Brooke, 3 Gill, 336. 53 Washb. Real Prop. 381; 1 
 
 2 3 Washb. Real Prop. 366. Wood, Conv. 206. 
 
 3 Broom's Leg. Max. 477. "^ Adams v. Stevens, 49 Me. 362. 
 
 * Wabash R. Co. v. McDougal, ' Andrews v. Spurr, 8 Allen, 416. 
 113 111.603^ Smith v. Westall, 76 8 Hutchings v. Higgins, 59 111. 32. 
 Tex. 509. 
 
246 CEEATION AND TEANSFEE OF ESTATES. [§§ 590, 591. 
 
 uation, and consequently the marks thereof are not taken 
 into consideration in determining the meaning of the in- 
 strument.' Another well-recognized rule is that the lan- 
 guage of the deed is presumed to be that of the grantor, 
 and hence that if there be a point of doubt it shall be taken 
 most favorably for the grantee. This rule, however, is ap- 
 plied only as a last resort, as its use may frequently lead to 
 conclusions of an inequitable character.^ 
 
 § 590. Construction continued. — It is a further rule that 
 a deed must be so construed, if possible, that no part thereof 
 shall be rejected, so that force and effect may be given to 
 all its provisions.' When this cannot be done, effect is sought 
 to be given to the general rather than 2m^ particular inten- 
 tion of the parties. Thus the former of two repugnant 
 clauses is held to prevail over the latter, but the terms of 
 the granting cause will determine what is to be taken, as 
 against the conditions of an introductory clause. And where 
 a deed is partly written and partly printed, so long as it is 
 intelligible the written provisions will prevail.* 
 
 § 591. Same subject continued, — Under the maxim. Falsa 
 demonstratio non nooet, if the instrument sets forth with suf- 
 ficient certainty what is the subject of the grant, a subse- 
 quent erroneous addition will not vitiate it.' Thus, an offi- 
 cer's deed was of " all the right and title " of A. to certain 
 lands, " being a leasehold unexpired," when in fact he owned 
 a fee. It was held that the fee passed.^ Parol evidence may 
 be admitted to make plain latent, but not patent, ambiguities, 
 and so the condition and circumstances of the parties, or 
 other pertinent facts, existing at the time of the conveyance, 
 may be proved by parol testimony, when the terms Lave 
 not clearly indicated the intention of the parties.' 
 
 iWill. Real Prop. 161. « Dodge v. Walley, 32 Cal. 224 
 
 2 Marshall v. Niles, 8 Conn. 469. 'Abbott v. Abbott, 51 Me. 582; 
 
 3 Waters v. Breden, 70 Pa. St. 338. Bond v. Fay, 13 Allen, 88. See also 
 
 * 3 Washb. Real Prop. 398. the leading case of Worthington 
 
 6 Broom's Leg. Max. 490; Morrow v. Hylyer, 4 Mass. 196. 
 V. Willard, 30 Vt. 118. 
 
§§ 592, 693.] COMPONENT PAETS OF DEEDS. 247 
 
 § 592. As to the methods of description. — Frequently 
 the quantity of land to be conveyed is mentioned in the deed, 
 but this is regarded merely as a part of the description, and 
 is governed by the general grant. Hence good conveyancers 
 at the present day are wont to add to the description the 
 words, "containing or embracing therein blank acres more 
 or less," or some similar phraseology.^ So also measure- 
 ments of distances, from the fact of their well known liability 
 to inaccuracy, will give way to established boundaries and 
 monuments that are specified in the deed.'^ For it is a gen- 
 eral rule that the nature and quantity of the interest to be 
 operated upon are always to be ascertained from the instru- 
 ment itself,' and that where is a discrepancy between two or 
 more descriptions given in the deed, that one will be adhered 
 to as to which there is the least likelihood that a mistake 
 could be committed.* The order of applying boundaries is, 
 first, to natural objects; second, to artificial marks; third, to 
 courses and distances given in the deed.' 
 
 § 593. Monuments.— As a rule of law applicable to the 
 matter in hand, monuments must control courses and dis- 
 tances in every case.* Monuments may be either natural or 
 artificial. Trees, streams, highways, or indeed any object 
 which may serve to indicate the boundaries of lands, when 
 not placed there for that especial purpose, are natural mon- 
 uments.'' But in many localities the lands were by acts of 
 congress surveyed and divided into convenient parcels for 
 the purposes of use and of sale, and artificial monuments were 
 placed to determine the form and extent of these parcels or 
 divisions of lands.' Such artificial monuments are indicated 
 
 iHall V. Mayhew, 15 Md. 551; SBeahan v. Stapleton, 13 Gray, 
 
 U. S. Digest, "Boundaries," sec. 41. 427. 
 
 2 Evansville v. Page, 23 Ind. 527. « Wells v. Company, 47 N. H. 235. 
 
 3 Lippett V. Kelly, 46 Vt. 516. 'Bates v. Tymanson, 18 Wend. 
 
 < 3 Washb. Real Prop. 405 ; 3 Jones, 300. 
 Eq. 29. " The divisions into townships, 
 
 sections, and fractional sections. 
 
2i8 CEEATION AND TEANSFEE OF ESTATES. [§§ 594, 595. 
 
 as to their locations upou the maps and records of the sur- 
 veys and measurements under which they are established.' 
 § 594. Extrinsic evidence of quantity of land granted. 
 
 A description in a deed may be aided by reference to other 
 deeds, maps, etc., and when properly applicable such other 
 documents become to all intents and purposes a part of the 
 deed under consideration.^ Many things which are appur- 
 tenant will pass with the general grant of the lands, unless 
 especially reserved.' Exceptions and reservations withdraw 
 the object thereof from the operation of the grant. There 
 is some technical distinction between the meaning of these 
 two words, and both ar£ to be distinguished from conditions. 
 But the discussion of these differences must be left to a more 
 comprehensive work on the subject.* 
 
 § 595. The habendum. — This is the clause which follows 
 the words " to have and to hold " and defines the quantity 
 of tnterest or estate which the grantee is to take in the 
 lands. As we have seen, this clause frequently yields to the 
 general provisions of the grant as expressed in the prem- 
 ises, and is not absolutely essential to the validity of a deed. 
 But where the habendum contains provisions not inconsist- 
 ent with, but rather explanatory of, the general grant, it 
 may be taken in connection therewith and thus aid in giv- 
 ing eifect to the intentions of the parties to the deed.' So 
 the habendum may limit or qualify the operation of the 
 premises, as, for instance, to change the character of joint 
 tenants to tenants in common, etc. It is further the proper 
 place in the deed to insert declarations of uses and trusts, 
 or to name the grantees where their names do not appear 
 in the premises.^ 
 
 1 Sufficient has already been said Hereditaments," infra, for appur- 
 
 in our introductory chapter re- tenances. 
 
 garding boundaries by lakes and <See Jones on Conveyancing, 
 
 streams, etc. ' 1 Wood, Conv. 224; Riggin v. 
 
 miller V. Topeka Land Co., 24 Love, 72 111. 553; 3 Prest. Abst. 
 
 Pac. R. (Kan.) 420. Title, 43. . 
 
 ' See chapter on " Incorporeal « Irwin v. Longworth, 20 Ohia 
 
 581. 
 
§§ 596-598.] COMPONENT PARTS OF DEEDS. 249 
 
 § 596. Tenendum — Eedendum — Conditions. — The U- 
 
 nendum clause, having reference to the matter of tenure, 
 ■according to the feudal system, is of no moment in our law. 
 The redeiidum is the clause which contains the reservations, 
 the consideration of which we have heretofore undertaken. 
 Following the redenduTn are the conditions. This matter 
 has already been explained at such length as the scope of 
 this work would seem to indicate as advisable. There re- 
 mains for our investigation the matter of Covenants in 
 Deeds, to which we shall now proceed. 
 
 § 597. Covenants in deeds. — A covenant is an agreement 
 or undertaking embodied in a sealed instrument ; thus, those 
 parts of deeds which refer to matters of contract or agree- 
 ment therein are termed covenants in deeds. Such cove- 
 nants generally have reference to the title and are called 
 covenants of title, though the legal effect of a grant may 
 sometimes be governed by the provisions contained in a 
 covenant.^ The covenants found in our modern deeds are 
 the following: Of seisin, of the right to convey, against in- 
 cumbrances, for quiet enjoyment, and of warranty. In 
 many of the states only the covenant of warranty is em- 
 ployed, it being held that it has the legal force and ef- 
 fect of the others. In some jurisdictions, however, the deed 
 should contain all the covenants above enumerated. The 
 primary object of covenants in deeds is to afford a remedy 
 to the grantee in case the title prove defective or the grantor 
 fail in some other of his undertakings.^ 
 
 § 598. Of seisin and riglit to convey. — These two cove- 
 nants resemble one another so closely that we may treat of 
 them as identical. Their purport is that the grantor repre- 
 sents himself as lawfull}' seised of the premises, and that he 
 has full right to convey the same. It would appear from 
 the weight of authority that the covenant of lawful seisin is 
 satisfied by the possession of actual seisin, though the same 
 
 1 Adams V. Ross, 30 N. J. L. 509; 23 Washb. Real Prop. 447. 
 Blanohard v. Brooks, 13 Pick. 67. 
 
250 CREATION AND TEANSFEE OF ESTATES. [§§ 599, 600. 
 
 be tortious, and that if under such circumstances the true 
 owner evicts the grantee, there will be no breach of the 
 covenant of seisin.' But if the grantor be neither seised nor 
 in possession when he conveys, this covenant is broken as 
 soon as made, and action accrues thereon to the grantee,^ 
 who alone can maintain it under such circumstances. But 
 if the grantor covenants that he is seized of an indefeasible 
 estate, it is a future covenant and passes with the land by 
 conveyance thereof; that is, it is "a covenant running with- 
 the land," and upon breach thereof any one who holds under 
 the covenantee may sue thereon.' 
 
 § 599. The breach. — To keep his covenant inviolate the 
 grantor must have the very estate, both as to quality and 
 quantity, which he purports to convey, so if the estate be 
 less in either particular it will amount to a breach of the 
 covenant; or if there be an outstanding right or title which 
 diminishes the estate conveyed in the matter of its nature 
 or extent. But the existence of an easement consistent with 
 the seisin of the grantor, a mortgage, a right of dower, or a 
 judgment lien, will not constitute a breach.^ 
 
 § 600. Against incumbrances. — The covenants of seisin 
 and right to convey afford no protection against incum- 
 brances, and hence the covenant against incumbrances is in- 
 serted in the deed. Mr. Greenleaf defines this to be a cove- 
 nant intended to provide security against the assertion of 
 every right to or interest in the land which may subsist in 
 third persons, but consistent with the passing of the fee by 
 the conveyance.' Such a covenant may be in prmsenti, as 
 where it is to the effect that the estate is free from incum- 
 brances, in which case the breach occurs at once if at all, 
 and the right of action does not pass to the assignees of the 
 
 •Richards v. Brent, 59 111. 45; 134; Lookwood v. Sturdevant, fr 
 
 Dale V. Shively, 8 Kan. 376; Mars- Conn. 373. 
 
 ton V. Hobbs, 3 Mass. 433; Kirken- ^ Wheeler v. Hatch, 13 Me. 389; 
 
 dall V. Mitchel, 3 McLean, 145. Phipps v. Tarpley, 34 Miss. 597. See 
 
 2 Backus V. McCoy, 3 Ohio, 318. also Walker v. Wilson, 13 Wis, 533. 
 
 3 Raymond v. Raymond, 10 Cush. sg Greenl. Ev., sec. 343. 
 
§§ 601, 602.] COMPONENT PAETS OF DEEDS. 251 
 
 grantee.' Or the covenant may be so construed as to amount 
 practically to one for quiet enjoyment, that is, that the 
 grantee shall enjoy the lands free from incumbrances, and 
 in such case it will be infuturo, and hence run with the 
 land." 
 
 § 601. The breach of this covenant. — The general rule 
 is that the grantee or his assigns, as the case may be, can 
 recover whatever loss they may have sustained by the en- 
 forcement of the incumbrance. When the action accrues 
 will depend upon the circumstances of each case, as will 
 also the measure of damages to be applied. As to what is 
 an incumbrance such as will constitute a breach of this 
 covenant, the general rule is that every outstanding right 
 which comes under the general definition of incumbrances 
 will have that effect. Among these may be mentioned 
 mortgages, judgment liens, that of taxes and assessments, 
 leasehold interests where the lessees are in possession, ease- 
 ments, marital estates, and any conditions or limitations re- 
 stricting the beneficial use of the property conveyed. The 
 fact that the grantee knew of the existence of the incum- 
 brance when he accepted the deed is no defense to an ac- 
 tion for the breach of this covenant.' 
 
 §602. The covenant for quiet enjoyment. — This cove- 
 nant imports " an assurance against the consequences of a 
 defective title and of any disturbances thereon." * It is used 
 throughout the United States, chiefly in the creation of es- 
 tates for years, being generally superseded in the convey- 
 ance of freeholds by the covenant of warranty, which it so 
 much resembles.* As to what will constitute a breach of 
 this covenant, the general rule is that nothing but actual or 
 constructive eviction, by the assertion of the paramount 
 title, will constitute a breach of this covenant.* So long as 
 
 1 Guerin v. Smith, 63 Mich. 369. * Tied Real Prop., sec. 855, citing 
 Thayer v. Clemence, 23 Pick. 490. Howells v. Eichards, 11 East, 63a 
 
 2 Eawle, Gov. 93. « Rawle, Gov. 126. 
 
 s Beach V.Miller, 51111. 206; Hub- «Scrivner v. Smith, 100 N. Y. 
 bard v. Norton, 10 Gonn. 481. 471; Drew v, Towie, 80 N. H. 587. 
 
2.32 CEEATION AND TEANSFEK OF ESTATES. [§§ 603, 604. 
 
 the attempt to evict the grantee or his assigns proves in- 
 effectual they have no action for a breach of this covenant.^ 
 
 § 603. The covenant of warranty. — This covenant is the 
 broadest in its scope, and the one of which the most fre- 
 quent use is made. In the first place it is of two sorts: gen- 
 eral and special. It should also be noted that this covenant 
 may be made either expressly, or it may arise by implica- 
 tion. The division into general and special has reference to 
 the persons or class of persons against whom the covenant 
 may run. Where the grantor covenants to warrant and de- 
 fend the title against the lawful claims of all persons whom- 
 soever, the covenant is one of general warranty. When he 
 covenants only against the acts of all persons claiming b}', 
 through or under him, and af against the acts and doings of 
 no others, the covenant of warranty is a special one. Im- 
 plied covenants cannot arise under that class of conveyances 
 which operate through the statute of uses, for such convey- 
 ances do not raise covenants b}' implication.^ But by stat- 
 ute in many of the states the words "grant, bargain and 
 sell" are made to imply general covenants of seisin and war- 
 ranty.' Where the effect of an implied covenant in this re- 
 gard is desired to be avoided in such jurisdictions, words 
 different from those mentioned in the statute should be em- 
 plo^'ed. 
 
 §604. Actions, who may maintain — Damages, etc. — 
 A covenant of warranty runs with the land until there has 
 been a breach. There can be no assignment of this breach, 
 and upon its happening the covenant ceases to run with the 
 land.* The grantee, or his assignee in possession at the time 
 of the breach, is, as a general rule, the only person who can 
 maintain action for the breach of this covenant.* If evic- 
 
 1 Thomas v. Stickle, 33 Iowa, 76; '4 Kent's Com. 473; Walker, Am. 
 Russ V. Steele, 40 Vt. 815. Law, 881. 
 
 2 De Wolf V. Hayden, 24 111. 529; <Forder v. Walsworth, 19 Wend. 
 Sanford v. Travers, 40 N. Y. 140; 3 384; Brown v. Metz, 33 111. 339. 
 Washb. Real Prop. 489. 'Chase v. Weston, 13 N. H. 413; 
 
 Kane v. Sanger, 4 Johns. 89. 
 
§ 604.] COMPONENT PARTS OF DEEDS. 253 
 
 tiou has taken place, full damages may be recovered ; but if 
 the grantor secures the paramount title before the eviction 
 takes place, the plaintiff can recover nominal damages only.' 
 What is the proper measure of damages in the various cases 
 should be investigated in some special work on that subject.^ 
 The breach of a covenant, such as of warranty, or of restric- 
 tion upon the use of the land, etc., will not of itself work a 
 forfeiture of the estate, giving rise only to personal actions 
 for damages. A covenant may, however, be so worded as to 
 amount to a condition, and in such event the grantor might 
 re-enter as for a breach of condition. The courts are prone 
 to construe such provisions to be covenants rather than con- 
 ditions, thus avoiding a forfeiture of the estate.^ 
 
 1 King V. Gilson, 33 111. 356. ^Ayer v. Emery, 14 Allen, 69; 
 
 2 See Sedgwick on Damages. Parsons v. Miller, 18 Wend. 564. 
 
LEADING AND ILLUSTRATIVE CASES. 
 
 CHAPTEE I. 
 
 THE NATURE AND DISTINGUISHING FEATURES OF REAL 
 
 PROPERTY. 
 
 Strong V. Wliite et al. 
 
 Decision by Supreme Court of Errors of Connecticut, July, 1848. Opin- 
 ion by Storrs, J. 
 
 (Reported in 19 Conn. S38.) 
 
 The principal question in this case is whether the bequest to the de- 
 fendant, James W. White, of the testator's " movable property," em- 
 braced the judgment against Stewart. 
 
 The law attaches no technical or artificial meaning to that phrase; 
 and we must therefore construe it according to its ordinary significa- 
 tion, unless there is something in the other parts of the will which 
 shows that the testator intended to use it in a different sense. But we 
 find nothing elsewhere in that instrument which sheds any light on 
 the subject in this respect. The popular meaning must therefore pre- 
 vail. The adjective "movable," applied to property, signifies, in its 
 ordinary and proper sense, that which is capable of being moved, or put 
 out of one place into another. It therefore necessarily implies that 
 such property has an actual locality, and is susceptible of locomotion, 
 or a change of place. But this is predicable of that only which is cor- 
 poreal and tangible. A judgment is obviously not of this character; 
 since, like other choses in action, it is in its nature incorporeal, and 
 therefore has no real locality; although, as we shall hereafter have oc- 
 casion to perceive, judgments sometimes have in contemplation of law 
 for certain purposes (not applicable to the point now before us), a ficti- 
 tious or imaginary locality assigned to them, and are deemed to exist 
 in a particular place. 
 
 It is, however, insisted that the word "movable," applied as an epi- 
 thet to property, is equivalent to the word "personal; " and in support 
 of this claim we are referred to Blackstone. This position, however, 
 so far from being supported, is discountenanced by that writer. In 
 his chapter describing the nature and kinds of personal property (2 
 
256 LEADING AND ILLUSTEATIVE CASES. 
 
 Comtn. 383), he commences by stating that "under the name of things- 
 personal are included all sorts of things movable which may attend 
 a man's person wherever he goes;" and he subsequently adds: "But 
 things personal, by our lavp, do not only Include things movable, but 
 also something more; the virhole of vphich is comprehended under the 
 name of ' chattels.' " He then proceeds to show that this last term sig- 
 nifies not only goods or movables, but whatever was not a feud, and 
 adds: "It is in this latter, more extended, negative sense, that our law 
 adopts it; the idea of goods or movables only, being not sufficiently 
 comprehensive to take in everything that the law considers as a chat- 
 tel interest." From this passage it is quite plain that he did not deem 
 the phrases " movable property " and " personal property " to be equiv- 
 alent; but, on the contrary, that he considered movable property to 
 be only one of the several species of personal property. 
 
 Judge Blackstone, speaking of what is included in personal property, 
 mentions " movables which may attend a man's person," etc. It is, we 
 think, moreover, plain from the context and his subsequent enumera- 
 tion (on page 387) of what he intended to embrace by that expression, 
 that he used it in its literal, primitive sense, as indicating that particu- 
 lar species of personal property which consists of tangible, corporeal, 
 locomotive chattels, and not choses in action, to which it would apply 
 only in an imaginary, artificial, legal sense: a chose in action having, 
 as it is sometimes expressed, no corpus, but being a mere right, not in a 
 thing (in re), but to a thing {ad rem), and having, therefore, no actual 
 locality; which right is indeed often evidenced by a written instrument, 
 although such instrument does not constitute right itself, nor in any 
 sense the property therein. Indeed, those instruments, such as bonds, 
 bills and notes, were not, at common law, the subjects of larceny, be- 
 cause they were not deemed to be of any intrinsic value. Calye's Case, 
 8 Coke, 38; 1 Hawk. P. C, c. 33, § 55; 4 Bl. Comm. 234. Nor do we find 
 any case in which they give a locality to debts evidenced by them, so 
 that those debts pass by a general bequest of property described as being 
 situated in the place where those instruments happen to be. On the 
 contrary, it is held that a bill of exchange, mortgage, bond, or banker's 
 receipt, do not pass by a bequest of all the testators property in a par- 
 ticular house, where those instruments are; and the reason given is, 
 that bills, bonds, etc., are mere evidence of title to things out of the 
 house, and not to things in it. Fleming v. Brooke, 1 Schoales & L. 318; 
 Lambert v. Lambert, 11 Ves. 607. So a bequest of indoor movables has 
 been held not to include notes and other choses in action. Penniman 
 V. French, 17 Pick. 404. We cannot suppose that Judge Blackstone in- 
 tended to convey a different idea from that which we have imputed to 
 him, by those general and casual expressions to which we have been 
 referred, in other portions of his Commentaries, which, although not 
 perhaps critically exact, were sufficiently so, for the purpose for which 
 
LEADING AND ILLUSTEATIVE OASES. 257 
 
 he introduced them in that elementary work, but were not designed to 
 have any reference or application to such a point as the one now before 
 us. See 1 Steph. Comm. 156; 2 Steph. Comm. 65, pt. 2, o. 1; Co. Litt. 
 118b; 1 Atk. 183; Com. Dig., tit. "Biens," D. 2. 
 
 The same remark also applies to the quotations which have been 
 made by the defendants from other elementary writers. 
 
 We have looked in vain at the cases on the subject of devises to find 
 any judicial construction of the particular phrase "movable prop- 
 erty," used in the bequest here in question, either as connected or not 
 with the other, language of the will, in reference to the question 
 whether chosea in action are thereby embraced. In Sparke v. Denne- 
 W. Jones, 335, however, is a determination upon the meaning of a be- 
 quest, the language of which is exactly synonymous with that phrase, 
 and where, as in the present case, the construction of it was not aided 
 by any other part of the wilL The testator in that case, after devising 
 several pecuniary legacies to several persons, devised the residue " of 
 all my movable goods and chattels " to his wife. The question was 
 whether debts due on bond to the testator at the time of his decease 
 passed by that bequest; and it was held, after much argument and con- 
 sideration, that they did not. The court say, that " by the devise of 
 'all my movable goods and chattels,' debts which are jura [rights or 
 choses in action] are not devised." The words "movable property,'' 
 used in the devise before us, and the words "movable goods and chat- 
 tels," used in the devise in that case, are precisely equivalent, both 
 phrases having relation to personal property. If, therefore, the bequest 
 is restricted by the word "movable" in one case, it must be in the 
 other. It is well settled that a bequest of " all my goods and chattels " 
 is sufficiently comprehensive to embrace every species of personal 
 property, and consequently choses in action; but it was there held to 
 be restricted by the term "movable," so as to exclude debts; that word 
 having been construed according to its ordinary and proper meaning, 
 as applying only to tangible personal property. This case, therefore, is 
 in point; and we find no other that is inconsistent with it. If the be- 
 quest in the present case had been of all the testator's movables, his 
 intention to exclude debts due to him would have been more palpable; 
 but it is difficult to distinguish that term in meaning from the phrase 
 " movable property." There are other cases, besides the one cited, which 
 have some, although not such a particular, bearing on the question be- 
 fore us, as renders it important for us to notice them. 
 
 We think, therefore, that the judgment against Stewart did not pass 
 by the devise in question. 
 
 Judgment debts are bona notabilia in the state only where the judg- 
 ments are rendered. It therefore appertained solely to the proper tri- 
 bunal of the state of Ohio to cause the judgment against Stewart to be 
 administered upon there as a part of the estate of David White, Sr. 
 17 
 
258 LEADING AND ILLUSTEATIVE CASES. 
 
 For that purpose the law imputes to it a locality within that jurisdic- 
 tion, and not elsewhere. The authorities are decisive on this point. 
 Cro. Bliz. 472; 3 Dyer, 305a, in notis; 3 Bac. Abr. 37, 38; Toller, 55; 1 
 Wms. Saund. 274, note 3; Slocum v. Sanford, 2 Conn. 533. 
 
 In the case last cited the law is thus stated by Gould, J.: "As to the 
 transmission of personal chattels, by succession, distribution or bequest, 
 the rule is that they have no locality, but follow the law of the last 
 domicile of the deceased owner. But with respect to the question of 
 probate jurisdiction, the cases establish this distinction: that debts by 
 specialty or judgment have a temporary locality, but that those due by 
 simple contract have not. The former are regarded as eflEects only at 
 the place where the securities are found at the death of the creditor; 
 the latter follow the person of the debtor, and are considered as eflEects 
 in the jurisdiction in which the debtor is, at the time, domiciled." 
 
 The executors of David White, Sr., therefore, were not guilty of any 
 breach of duty in not causing the judgment against Stewart, recovered 
 in Ohio, to be inventoried here. But when the defendant, Joseph W. 
 White, one of those executors, after the death of his co-executor, by 
 means of a suit brought here upon that judgment, collected a part of 
 the amount due thereon, it became his duty to account therefor to the 
 court of probate; and for neglecting to do so, he became liable on his 
 ofiScial bond, which requires him to account to that court for all the 
 property of the testator which should at any time come into his hands 
 or possession. 
 
 [Here the judge stated the breaches assigned in the plaintiff's repli- 
 cation.] 
 
 The first breach assigned, regarding the neglect of the executors to 
 inventory the judgment rendered in the state of Ohio against Stewart, 
 constitutes, as we have seen, no violation of their duty, and, indeed, is 
 not i-elied upon by the plaintiff. Whatever we might think as to the 
 validity of the second breach, which we do not deem it necessary to 
 consider, we are of opinion that it sufficiently appears from the allega- 
 tions in the third that the said James has never rendered to the court 
 of probate any account for what he received on the judgment recovered 
 by him; and that he is, therefore, liable on his bond. This breach is 
 obviously framed somewhat inartiflcially. It seems to have been drawn 
 up under a mistaken impression that it was the duty of the surviving 
 executor to exhibit to that court a technical inventory of the judgment 
 recovered by him, or of its proceeds. But he alleges that the executor 
 had converted and applied to his own use the money received for the 
 land set off to him under that judgment; and we think that, connect- 
 ing that averment with the subsequent allegation of his neglect to ex- 
 hibit an inventory, and construing the whole together, with reference 
 to the subject-matter, it may fairly be considered as amounting to a 
 statement that he had unlawfully disposed of that money, and neglected 
 
LEADING AND 1LLU8TEATIVE CASES. 259 
 
 to account for it to the court of probate. No special demurrer being 
 interposed for want of form in the replication, we are not disposed to 
 be very nice in regard to the construction of this part of the pleadings. 
 We do not intend, however, to decide whether the allegations in this 
 breach would be held suflScient to subject the defendant for not render- 
 ing an account, in a case where a technical inventory is required. A 
 different question might be there presented. 
 
 The damages should be the sum received for said land by said execu- 
 tor, with interest. 
 
 The superior court is advised to render judgment for the plaintiff 
 accordingly. 
 
 In this opinion the other judges concurred. 
 
 Judgment for plaintiff. 
 
 Canfleld v. Ford- 
 Decision by Supreme Court of New York, September, 1858. Opinion by 
 
 Potter, J. 
 
 (Reported in 28 Barb. SSe.) 
 
 The only real question to be decided in this case is whether the par- 
 ties to this action have such an estate or interest in the lands in ques- 
 tion as is susceptible of partition by action. 
 
 It is conceded that Jonathan Fuller was the original source of title, 
 and that he owned the entire estate in fee simple, in quantity and 
 quality, and that the conveyance from him to the defendant, and from 
 the defendant Ford to Canfield, and from Canfleld to Chapman, in form 
 and covenants, are alike. It is therefore sufficient to set forth one of 
 these conveyances. On the 6th of November, 1847, Fuller and his wife 
 conveyed by deed to Chillion Ford, the defendant, " and to his heirs 
 and assigns forever, all the mines, ores, minerals and metals lying or 
 being in or upon the lands of the parties of the first part, situate, lying 
 and being in the town of Depeyster, in the county of St. Lawrence 
 [describing three parcels of land], together with the right to raise, 
 work, and carry away said mines, ores, minerals and metals. And the 
 right to put up all buildings, and to use all lands that may be necessary 
 for the purposes aforesaid. And the right of ingress and egress thereto 
 and therefrom for the purpose of raising, digging and working and 
 carrying away said mines, ores, minerals and metals as aforesaid. And 
 all the estate, riglit, title, interest, claim and demand whatsoever of the 
 parties of the first part of, in and to the above-granted mines, ores, min- 
 erals and metals. To have and to hold the above mentioned and de- 
 scribed mines, ores, minerals and metals, to the said party of the second 
 part, his heirs and assigns forever; " with a covenant to warrant and 
 defend the same, in the usual form of a deed of warranty. 
 
260 LEADING AND ILLUSTRATIVE CASES. 
 
 The Revised Statutes provide that when several persons shall hold 
 and be in possession of any lands, tenements or hereditaments as joint 
 tenants, or as tenants in common, in which one or more of them shall 
 have estates of inheritance, or for life or lives, or for years, any one or 
 more of such persons, being of full age, may apply to the court for a 
 division or partition of ^such premises, according to the rights of the 
 respective parties interested therein, and for sale of such premises, if 
 it shall appear that a partition cannot be made without great prejudice 
 to the owner. Is the interest in question such an interest as comes 
 within the meaning and intent of this statute ? Either of the terms 
 employed in this statute would seem to include the estate of the parties 
 in this action. " Land," in its most general sense, comprehends any 
 ground, soil or earth, whatsoever, as meadow, pastures, woods, moors, 
 waters, marshes, furzes and heaths. Co. Litt. 4a. It includes all things 
 of a permanent and substantial nature; not only the face of the earth, 
 but everything under it or over it. 2 Bl. Comm. 18. " Cujus est solum 
 ejus est usque ad caelum, et ad inferos." "Tenements" is a word of 
 greater meaning and extent, sometimes, than land, and includes not 
 only land, but rents, commons, and several other rights and interests 
 issuing out of or concerning land. 1 Steph. Comm. 158, 159. "Heredit- 
 aments " is a still more comprehensive term in law, and includes what- 
 ever may be inherited, corporeal or incorporeal. 2 Bl. Comm. 17. 
 These terms, therefore, seem to be comprehensive enough to include 
 the estate in question. I think there can be no doubt that the estate 
 in question is an estate of inheritance. It is so by the very terms and 
 forms of the grant. The difficulty suggested upon the argument was, 
 how to describe this estate so carved out of the whole fee. If it is an 
 estate that can be partitioned, the precise description is not very ma- 
 terial; nor is the question as to what would be the rights of the parties 
 after partition at all necessary to be discussed here. The latter ques- 
 tion does not arise in this review. The counsel for the defendant has 
 argued, with great force, that the right or interest which was con- 
 veyed as above stated is not a fee simple. In this I think he is mis- 
 taken upon authority. 2 Rev. St. 722, § 2. It is not, however, neces- 
 sary that it should be a fee simple, to entitle to partition. Whatever 
 estate it may be, the owner has such an interest in it that he can main- 
 tain trespass quare olausum fregit for any wrong done to it. "Worces- 
 ter V. Green, 2 Pick. 429. True, Lord Coke says: "An inheritance in 
 fee simple expresses the largest estate that a man can have in land." 
 But Littleton says: "This doth extend as well to all fee simples con- 
 ditional and qualified, as to fee simples pure and absolute, for our 
 author speaketh here of the ampleness and greatness of the estate, and 
 not of the perdurableness of the same, and he that hath a fee simple 
 qualified hath as ample and great an estate as he that hath a fee sim- 
 ple absolute. So as the diversity appeareth between the quantity and 
 
LEADING AND ILLUSTEATITE OASES. 261 
 
 the quality of the estate." Litt 18a. And so also Plowden says: 
 " That two fees simple absolute cannot be at the same time of one and 
 the selfsame land." Plowd. 249. That is, the mines, ores and min- 
 erals being laud, a man may have a fee simple in them as well as he 
 who holds the soil that remains unconveyed may have a fee simple, for 
 they are not the selfsame land. A man may have a fee simple not only 
 in lands, but also in advowsons, commons, estovers, and other incor- 
 poreal hereditaments. So if a man grants to another all woods, under- 
 woods, timber trees, or others, saving the soil, the grantee has a fee to 
 take in "alieno solo." Crabb, Real Prop., § 964. The estate so par- 
 titioned, therefore, is an estate of inheritance, a fee simple. It is 
 limited in quantity, not in quality. It is carved out of a fee simple 
 absolute, and the latter, having lost this quantity of estate, is itself 
 qualified to that extent, without losing its quality of a fee simple. The 
 estate in controversy, I think, may also be classified among estates, as 
 a "corporeal hereditament; " and comes within the definition of that" 
 estate, to wit: "Such hereditaments as are of a material and tangible 
 nature, such as may be perceived by the senses, consisting wholly of 
 substantial and permanent objects, and may be comprehended under 
 the general denomination of lands only." Steph. Comm. 159; Bouv. 
 Law Diet. 288. 
 
 The class of oases referred to by the learned counsel for the defend- 
 ant, which may not be partitioned, are cases of mere license, or author- 
 ity to enter upon another's land, and to do a particular act, or series of 
 acts, without possessing any estate in the land. Such interests, it is 
 true, cannot be partitioned. This class of cases is nearly allied to, and 
 very often confounded with, a still superior interest in real property, 
 called an " easement," which is described as " a liberty, privilege or ad- 
 vantage in land, existing distinct from an ownership in the soil, and is 
 founded on a grant by deed, or writing, or upon prescription which 
 supposes one, being a permanent interest in another's land without 
 profit, with a right at all times to enter and enjoy it." 3 Kent, Comm. 
 452. Such an intei;est possible, may not be partitioned. The distinc- 
 tion between the two classes of cases last above mentioned, and that of 
 a permanent grant for a good consideration of an interest in lands to 
 be used for profit, to a man, and to his heirs and assigns forever, is 
 palpable. There is still another distinction found in the old law books, 
 existing in regard to estates of inheritance, — entire estates of inherit- 
 ance not divisible, and estates that are divisible and yet shall not be 
 parted or divided between coparceners. Among the examples given 
 of them is found the following: "If a man have reasonable estovers, 
 as housebote, haybote, etc., appendant to his freehold, they are so en- 
 tire as they shall not be divided between coparceners." Co. Litt. 164b. 
 " So, too, of a pischarie incertaine, or a commons sauns nombre, or of a 
 corody incertaine." Id. Another instance cited by Littleton, of estates 
 
262 LEADING AND ILLTJSTEATIVE CASES. 
 
 that shall not be partitioned, is this: Lord Mount joy, being seised of the 
 manor of C, did by deed, indented and enrolled, bargain and sell the 
 same to one Browne in fee, in which indenture was contained a clause 
 on the part of Browne, amounting to a grant by him of an interest and 
 inheritance to Lord Mountjoy, his heirs and assigns, to dig for ore in 
 the lands (which were a great waste), parcel of the said manor, and to 
 dig for turf; also for the making of alum. In this case three points 
 were resolved upon by all the judges, viz.: First. That this conveyance 
 did amount to a grant of an interest and inheritance to Lord Mount- 
 joy, to dig, etc. Second. That notwithstanding this grant, Browne and 
 his heirs and assigns might dig also, and like to a case of common 
 •' sauns nombre." Thirdly. That the Lord Mountjoy might assign his 
 whole interest to one, two, or more, but then, if there be two or more, 
 they could make no division of it, but work together with one stock. 
 Co. Litt. 164&. 
 
 It will be seen that the reason given by the judges why partition 
 could not be made in the case above cited does not at all apply to 
 the case in question. First, the exclusive right or all the right to 
 mines, ores, etc., was not granted in that case, but a mere right or per- 
 mission to dig, etc. The grantor and his assigns might also dig. And 
 second, the extent of the grant being uncertain, the grantee might 
 surcharge, to the injury of the tenant of the land. Interests uncertain 
 in their extent could never be partitioned. In the case now in question 
 the tenant would be bound to take the estate subject to the terras of 
 the conveyance, granting the exclusive right to all the mines, etc., and 
 of the right to put up all buildings, and use all lands that may be neces- 
 sary for the purposes expressed, and the right of ingress and egress 
 thereto and therefrom. The terras of the grant, by construct'ion, being 
 taken most strongly against the grantor, and the whole interest in the 
 mines, etc., being conveyed, it is immaterial to the grantor whether 
 one person with fifty or more laborers, or fifty or more persons singly, 
 should dig thereon, provided they use no more of the land than is nec- 
 essary for the purpose of digging, etc., all the mines, ores, eta This is 
 a certain grant, and no difficulty occurs in making equality of division. 
 
 But if the provisions of our Revised Statutes are not broad enough 
 to include the power to partition, it has been settled that this court, as 
 now constituted, has common-law jurisdiction to partition real estate 
 (Story, Eq. Jur., §§ 646, 658; Smith v. Smith, 10 Paige, 470), limited, how- 
 ever, to the power to divide estates certain. It is only necessary in a 
 court of equity, to entitle to partition, so far as this point is in ques- 
 tion, to show that equality can be obtained, in value, of lands, especially 
 in advantages and profits redounding from each share to the several 
 owners. AUn. Part 10. Whatever is capable of being divided may be 
 the subject of partition in equity. Id. 84. The only remaining ques- 
 tion raised in the case is whether the owner in fee qiialified in quan- 
 
LEADING AND ILLUSTEATIVE OASES. 263 
 
 tity, out of which the estate in question was carved, ought not to be 
 made a party to the action. The statute (3 Rev. St. 318, § 5) requires 
 that the petition (complaint) shall set forth the rights and titles of all 
 persons interested therein, etc. What interest can Fuller, the grantoi 
 of this estate, have in the estate, which by deed he has conveyed away? 
 In the estate sought to be partitioned he has no interest whatever. The 
 partition in no respect affects the title of Fuller. He is not a tenant in 
 common with the parties to the suit. They own separate portions of 
 the estate, in severalty. 
 
 I think the judgment must be aflBrmed, 
 
 Judgment affirmed. 
 
 CHAPTER 11. 
 
 TENURES AND ESTATES IN GENERAL. 
 
 Cutts V. Commonwealth. 
 
 Decision by Supreme Judicial Court of Massachusetts, March Term, 
 1807. Opinion by Sedgwick, J. 
 
 {Reported in S Mass. 28i.) 
 
 This case is brought before the court by a writ of error, which com- 
 plains of a judgment of the court founded on a suit in favor of the 
 commonwealth, against the plaintiff in error, instituted by the solicitor 
 general, by the order of a special resolve of the. legislature, in pursuance 
 of the act passed June 18, 1791, "directing the manner in which inquests 
 of oflSce shall be taken to revest real estate in the commonwealth, or to 
 entitle the commonwealth thereto." 
 
 This writ is grounded on the second section of the statute, which en- 
 acts that "in all other cases, where an inquest of office is necessary by 
 law, to entitle the commonwealth to hold lands, tenements or her- 
 editaments, such inquest shall be taken by the supreme judicial court 
 in the county where such estate lies, upon information of the attorney- 
 general, describing (among other things) the estate claimed, and the 
 title set up thereto by the commonwealth." 
 
 As this is a prosecution instituted by statute, in which, from the 
 nature of the subject, the government, the party plaintiff, is the whole 
 people, against an individual or individuals, the party defendant, — and 
 against whom the judges are inevitably interested, — it becomes im- 
 portant that none of the guards which the law has provided for the 
 security of the defendant should be dispensed with. The statute, as 
 recited, has rendered it necessary that the information should describe, 
 1st, the estate claimed by thp commonwealth; and 2d, the title set up 
 
264 LEADING AND ILLUSTRATIVE CASES. 
 
 thereto by the commonwealth. If the information on which the judg- 
 ment was founded was deficient in describing the estate claimed by 
 the commonwealth, or its title thereto, the judgment must be reversed: 
 then — 
 
 1. Does the information describe the estate which the commonwealth 
 claims in the demanded premises? By "estate " in land I understand 
 the kind and quantum of interest therein. This interest may be a free- 
 hold, or of an inferior degree. A freehold may be of inheritance or for 
 life. If of inheritance, it may be pure or base, absolute or conditional, 
 in fee simple or fee tail. If fee tail, it may be general or special If for 
 life, it may be for that of the tenant or of another person, with or with- 
 out impeachment of waste, absolute or conditional. If the estate be less 
 than freehold, the term may be of greater or less duration.and with duties 
 to the superior more or less burdensome. In short, an estate, in real prop- 
 erty,is susceptible of every possible variation in which man can be related 
 to the soil. When the government claims, against an individual, lands in 
 his possession, it is proper that the law should provide, as this act does, 
 that the " estate claimed," the kind and quantum of interest therein, 
 should be described. Indeed, this is necessary, ordinarily, in contro- 
 versies between private persons. Was this done by the information in 
 this case? I think not. After describing the land to which claim is 
 laid, the information says, " which tract of land the commonwealth 
 are entitled to hold and possess." Here, certainly, the estate claimed 
 by the commonwealth is not described. Nothing could have been less 
 precise and more indefinite than the words "hold and possess," as de- 
 scriptive of an estate in lands; they apply equally to many kinds of 
 estates. The information gives no other description of the estate of 
 the commonwealth in the lands demanded than by describing that de- 
 rived from Sir William Pepperell. And there is no other estate in- 
 tended to be described as derived from him but what is expressed by 
 the allegation that he " wad seised and possessed, and entitled to be 
 seised and possessed, of the tract of land" demanded. Here, again, the 
 words descriptive of the estate of Sir William are altogether vague 
 and indefinite. The information, then, does not "describe " the estate, 
 the kind and quantum of interest claimed in the land demanded. 
 
 8. The remaining question is, whether the title set up, by the infor- 
 mation, to the lands demanded, is such as would authorize a judgment 
 for the possession in favor of the commonwealth. The title set up is 
 an act of the government, passed on the 30th of April, 1779, "to con- 
 fiscate the estates of certain notorious conspirators," etc. In this act, 
 among others, Sir William Pepperell is named; and it enacts "that all 
 the goods and chattels, rights and credits, and lands, tenements, and 
 hereditaments, of every kind, of which any of the persons before named 
 were seised or possessed, or entitled to possess, hold, enjoy, or demand, 
 in their own right, or of which any other person stood, or doth stand, 
 
LEADING AND ILLUSTEATIVE CASES, 265 
 
 seised or possessed, or are, or were, entitled to have or demand, to and 
 for their use, benefit, and behoof, shall escheat, inure, and accrue, to 
 the sole use and benefit of the government and people of this state, 
 and are accordingly declared so to escheat, inure, and accrue; and the 
 said government and people shall be taken, deemed, and adjudged, and 
 are hereby accordingly declared, to be in the real and actual possession 
 of the goods, etc., lands, etc., without further inquiry," etc. To this 
 there is a proviso, in these words: "Provided always, that the escheat 
 shall not be construed to extend to, or operate upon, any goods, chat- 
 tels, rights, credits, lands, tenements, or hereditaments, of which the 
 persons aforenamed and described, or some other in their right and to 
 their use, have not been seised or possessed, or entitled to be seised or 
 possessed, or to have or demand, as aforesaid, since the 19th day of 
 April, in the year of our Lord 1775." 
 
 From this recital it is manifest that, to derive a title to any lands, 
 from the seisin or possession of a conspirator, named in the act, to the 
 commonwealth, it was necessary, 1st, that the person from whom the 
 title was derived should have been seised or possessed in his own right; 
 and 2d, that such seisin or possession should have been since the 19th 
 day of April, 1775, and before or .at the time of passing the act. The 
 act, however just or necessary, was certainly rigorous, and must there- 
 fore have a strict construction. Now the information does indeed say 
 tliat Sir William Pepperell was seised and possessed of the land de- 
 scribed; but it does not aver that it was in his own right. He might 
 have been seised and possessed, in trust, or in the right of another, of 
 the land demanded, and yet no title derived, by the act, to the com- 
 monwealth. Again, to derive a title from Sir William to the common- 
 wealth, he must have been seised, since the 19th day of April, 1775, and 
 before the 30th day of April, 1779. But the allegation in the informa- 
 tion is, that prior to the 19th day of April, 1775, and since that time, he 
 was seised and possessed. All this might be true, and yet the lands de- 
 manded not be confiscated by the act. . The allegation may be all true, 
 and yet the whole time within which the act required a seisin and pos- 
 session, to give effect to the confiscation, excluded. The title set up, 
 therefore, is wholly defective, and cannot be aided by the verdict. 
 
 I have not incumbered my opinion with a recital of the errors as- 
 signed by the plaintiff, because it was found to be unnecessary, from the 
 view taken of the case by the court. We are all of opinion, for "the 
 reasons which I have stated, that the judgment must be reversed. 
 
266 LEADING AND ILLUSTEATIVE OASES. 
 
 CHAPTER III. 
 
 FEE SIMPLE ESTATES. 
 
 Adams V. Boss. 
 
 Decision by Court of Errors and Appeals of New Jersey, June Term, 
 1860. Opinion by Whelpley, J. 
 
 {Jieported in SO N. J. Law, 505.) 
 
 This writ of error brings up for review the judgment of the supreme 
 court, giving a construction to a deed, dated the 9tli of September, 1854, 
 between Anna V. Traphagen, of the first part, and Catharine Ann V. B. 
 Adams, wife of Alonzo Whitney Adams, of the second part, by which 
 the grantor, in consideration of natural love and affection and of one 
 dollar, conveyed to the grantee the premises in the deed described. The 
 operative words are " grant, bargain, sell, alien, remise, release, convey, 
 and confirm unto the said party of the second part, for and during her 
 natural life, and at her death to her children which may be begotten 
 of her present husband; to have and to hold the above described prem- 
 ises unto the said party of the second part for and during her natural 
 life, and at her death to her children which may be begotten of her 
 present husband, Alonzo W. Adams." 
 
 The deed contains covenants of seisin, for quiet epjoyment. against 
 incumbrances, for further assurance and of warranty. 
 
 These covenants are made by the grantor for herself and her heirs with 
 the party of the second part, her heirs and assigns. 
 
 Mrs. Adams, at the date of conveyance to her, was a minor. On the 
 12th October, 1855, she, with her husband, executed a mortgage to se- 
 cure the payment of $6,000, in one year from date, upon the premises 
 conveyed to her. She was then nineteen. The mortgage was to Ross, 
 the applicant in the supreme court. 
 
 The Erie Railway Company, under the provisions of an act of the leg- 
 islature, took a part of the land in question, and hold it in fee simple. 
 The value of the land taken has been ascertained at $3,061; that is now 
 in the supreme court, to be awarded to the parties entitled to it, and 
 who they are must depend upon the true construction of the deed. 
 
 What, then, are the rights of Mrs. Adams, her husband and children, 
 one having been born of the marriage since the conveyance; and what 
 if any, are the rights of Ross, the mortgagee, to the money in court. 
 
 The supreme court held that the estate granted by the deed was an 
 estate in fee tail special in Catharine Adams and the heix's of her body 
 by her present husband; that her husband was entitled to curtesy; that 
 the mortgage to Ross on the interest of Mrs. Adams was void as to her, 
 but was a lien upon the estate of her husband in case he survived her. 
 
LEADING AND ILLUSTEATITE OASES. 267 
 
 This decision was reached by interpreting the word "children," in 
 the deed, as equivalent to " heirs," calling in the covenants in aid of that 
 interpretation, as throwing light upon what the court called the inten- 
 tion of the grantor. 
 
 The supreme court was right in holding the first estate conveyed to 
 Mrs. Adams not a fee simple; the express limitation of the estate to her 
 during life, and after her death to her children, forbade any other con- 
 clusion. The covenant, warranting the land to her and her heirs gen- 
 eral, cannot enlarge the estate, nor pass by estoppel a greater estate 
 than that expressly conveyed. A party cannot be estopped by a deed, 
 or the covenants contained in it, from setting up that a fee simple did 
 not pass, when the deed expressly shows on its face exactly what estate 
 did pass, and that it was less than a fee. Bawle, Co v. 420; Blanchard 
 V. Brook, 13 Pick. 67; 3 Co. Litt. 3856. 
 
 Lord Coke expressly says: But a warranty of itself cannot enlarge 
 an estate ; as if the lessor by deed release to his lessee for life, and war- 
 rant the land to the lessee and his heirs; yet doth not this enlarge his 
 estate. 
 
 Justice Vredenburgh, in his opinion, admits this to be law. He says, 
 although the covenants cannot be used to enlarge the estate, yet they 
 may be used to show in what sense the words in the conveying part of 
 the deed were used. What is that but enlarging what would otherwise 
 be their meaning ? If without explanation they f>re insufiScient to pass 
 the estate, does not the explanation enlarge their operation? 
 
 The learned judge, in his elaborate opinion, says: From these cove- 
 nants it is demonstrated that, by the terms " children by her present 
 husband," the grantor intended the heirs of her body by her present 
 husband. It follows, from this argument, that although the conveying 
 part of the deed may not contain sufficient to convey the estate as a 
 fee simple, for example, yet that if the covenants show an intent to pass 
 a fee simple, it will pass. 
 
 The argument is, that the words of conveyance and covenant must 
 be construed together. If the covenants look to the larger estate, that 
 will pass upon the intent indicated. Children are said to be equivalent 
 to heirs, because she warranted to her heirs; and the heirs are said to 
 be not heirs general, because she called them children. 
 
 The inconsistency between the conveyance and covenant shows mis- 
 take in the one or the other. The safest rule of construction is that 
 propounded by the supreme court; that the quantity of the estate con- 
 veyed must depend upon the operative words of conveyance, and not 
 upon the covenants defending the quantity of estate conveyed. 
 
 Starting with that premise, it seems difficult, nay impossible, to reach 
 the conclusion that the covenants are to be looked to in the interpre- 
 tation of the conveyance, as such. 
 
 The covenants only attach to the estate granted or purporting to be 
 
268 LEADING AND ILLUSTRATIVE CASES. 
 
 granted. If a life estate only be expressly conveyed, the covenantor 
 warrants nothing more. The conveyance is the principal, the covenant 
 the incident. If they do not expressly enlarge the estate passed by the 
 operative words of the deed, I cannot perceive upon what sound prin- 
 ciple of construction they can have that effect indirectly by throwing 
 light on the intention of the grantor. In the construction of a deed of 
 conveyance the question is, not what estate did the grantor intend to 
 pass, but what did he pass by apt and proper words. If he has failed 
 to use the proper words, no expression of intent, no amount of recital 
 showing the intention, will supply the omission, although it may pre- 
 serve the rights of the party under the covenant for further assurance 
 or in equity upon a bill to reform the deed. 
 
 The object of the covenants of a deed is to defend the estate passed, 
 not to enlarge or narrow it. To adopt, as a settled rule of interpreta- 
 tion, that deeds are to be construed like wills, according to the pre- 
 sumed intent of the parties making them, to be deduced from an 
 examination of the whole instrument, would be dangerous, and, in my 
 judgment, in the last degree inexpedient. It is far better to adhere to 
 the rigid rules established and firmly settled for centuries than to open 
 so wide a door for litigation, and render uncertain the titles to lands. 
 The experience of courts in the construction of wills, the difiSculty of 
 getting at the real intent of the party, where imperfectly expressed, or 
 where he had none; the doubt which always exists in such cases, 
 whether the court has spelt out what the party meant, all combine to 
 show the importance of adhering to the rule that the grantor of a deed 
 must express his intent by the use of the necessary words of convey- 
 ances, as they have been settled long ago by judicial decision and the 
 wi-itings of the sages of the law. Upon this point it is not safe to yield 
 an inch; if that is done, the rule is effectually broken down. Where 
 shall we stop if we start here ? 
 
 Littleton says: Tenant in fee simple is he which hath lands or tene- 
 ments to hold to him and his heirs forever. For if a man would pur- 
 chase lands or tenements in fee simple, it behooveth him to have these 
 words in "his purchase: " to have and hold to him and his heirs." For 
 these words, "his heirs," make the estate of inheritance. For if a man 
 purchase lands by these words, "to have and to hold to him forever," 
 or by these words, " to have and to hold to him and his assigns forever," 
 in these two cases he hath but an estate for life, for that there lack 
 these words, " his heirs," which words only make an estate of inherit- 
 ance in all feoffments and grants. 
 
 " These words, ' his heirs,' do not only extend to his immediate heirs 
 but to his heirs remote and most remote, born and to be born, svb quibus 
 vooabuUs 'hceredibus suis ' omnes hceredes, propinqui oomprehenduntur, 
 et remoti, nati et nasoituri, and hceredum appellatione veniunt, hceredes 
 hceredum inflnitum. And the reason wherefore the law is so precise to 
 
LEADING AND ILLU8TEATIVE OASES. 269 
 
 prescribe certain words to create an estate of inheritance is for avoid- 
 ing of uncertainty, the mother of contention and confusion." Co. Litt. 
 la, 8b; 1 Shep. Touch. 101; Com. Dig., tit. "Estate," A, 3; Prest. Est. 1, 
 3, 4, 5; 4 Cruise, Dig., tit. 32, c. 21, cl. 1. 
 
 There are but two or three exceptions to this rule. The cases of sole 
 and aggregate corporations, and where words of reference are used 
 "as fully as he enfeoffed me.'' A gift in frank marriage, etc., which 
 are to be found stated in the authorities already cited. 
 
 These exceptions create no confusion; they are as clearly defined and 
 limited as the rule itself. 
 
 The word " heirs " is as necessary in the creation of an estate tail as 
 a fee simple. 1 Co. Litt. 20a; 4 Cruise, Dig., tit. 33, c. 33, § 11; 4 Kent, 
 Comm. 6; 3 BI. Comm. 114. 
 
 This author sets this doctrina in clear light. He says: As the word 
 ■'heirs "is necessary to create a fee, so, in further limitation of the 
 strictness of feodal donation, the word " body," or some other word of 
 procreation, is necessary to make it a fee tail. If, therefore, the words 
 of inheritance or words of procreation be omitted, albeit the other 
 words are inserted in the grant, this will not make an estate tail, as if 
 the grant be to a man, and his issue of her body, to a man and his seed, 
 to a man and his children or offspring, all these are only estates for 
 life, there wanting the words of inheritance. 
 
 The rule in Shelley's Case, that when the ancestor, by any gift or con- 
 veyance, takes an estate of freehold, and in the same gift or convey- 
 ance an estate is limited either immediately or mediately to his heirs 
 in fee or in tail, that always in such cases the word " heirs " are words 
 of limitation, and not of purchase (Shelley's Case, 1 Coke, 93; 4 Cruise, 
 Dig., u. 33, § 3, tit. 32), requires the use of the word " heirs " to bring it 
 in operation. 
 
 No circumlocution has been ever held sufifioient. It is believed no 
 case can be found where this rule has been held to apply, unless the 
 word " heirs " has been used in the second limitation. 
 
 Neither the researches of the learned judge who delivered the opin- 
 ion of the supreme court, nor those of the very diligent counsel who 
 argued the case here, have produced a case decided in England, or in 
 any state of this Union abiding by the common law, where, in a con- 
 veyance by deed, the word "children " has been held to be equivalent 
 to "heirs." That this has been determined in regard to wills is freely 
 conceded, but that does not answer the requisition. The reasoning of 
 the supreme court is, to my mind, entirely unsatisfactory. In the ad- 
 ministration of the law of real estate, I prefer to stand super antiquas 
 vias, stare decisis; to maintain the great rules of property; to adopt 
 no new dogma, however convenient it may seem to be. The refined 
 course of reasoning adopted in the face of so great a weight of author- 
 ity rather shows what the law might have been than what it is. 
 
270 LEADING AND ILLrSTEATIVE CASES. 
 
 I am utterly unprepared to overturn the common law, as understood 
 by Littleton, Coke, Shepherd, Cruise, Blackstone, Kent, and all the 
 judges who have administered it for three centuries, and to adopt the 
 fiogma that intention, not expression, is hereafter to be the guide in 
 the construction of deeds. That would be as unwarrantable as dan- 
 gerous. 
 
 Under this deed Mrs. Adams took an estate for life, which was not 
 enlarged by the subsequent limitation to a fee tail. The remainder 
 vested in Anna Adams, the child of the marriage, for life, subject to 
 open and let in after-born children to the same estate. 
 
 The deed operated as a covenant to stand seized. The proper and 
 technical words of sUoh conveyance are, "stand seized to the use of," 
 etc., but any other words will have the same effect, if it appear to have 
 been the intention of the parties to use them for that purpose. The 
 words " bargain and sell, give, grant and confirm " have been allowed 
 so to operate. 4 Cruise, Dig., tit. 33, c. 10, §§ 1, 3. 
 
 By such a covenant an estate may be limited to a person not in esse, 
 if within the considerations of blood or marriage. Fearne, Rem. 888; 
 1 Rep. 154, 3; 1 Prest. Est. 173, 176; Doe v. Martin, 4 Term R. 39. 
 
 This deed, on the face of it, expresses the considerations of natural 
 love and affection, as well as the money consideration of one dollar. 
 
 It follows, from these considerations, that Adams is not entitled to 
 curtesy in the lands on surviving his wife. The mortgage to Ross 
 created no valid charge on the estate against Mrs. Adams, she being a 
 minor when it was executed. 
 
 Mrs. Adams' interest in the land was subject to the provisions of the 
 act for the better securing the property of married women, passed 
 March 35, 1853; the deed to her was after this act passed. 
 
 This was clearly a gift or grant, within the meaning of the act. The 
 legislature did not intend to limit the benefits of the act to property 
 conveyed by a deed operating as a gift or grant; all the ordinary modes 
 of acquiring property by deed were intended by the use of the terms 
 gift, grant. The reasoning of Justice Vredenburgh upon this point is 
 conclusive. Upon the determination of the respective life estates, the 
 land reverts to Miss Traphagen. 
 
 The judgment of the supreme court must be reversed. The money in 
 court must be invested for the benefit of Mrs. Adams for life, and after 
 her death for the benefit of the surviving children of the marriage in 
 equal shares,'during their respective lives, and at their deaths, respect- 
 ively, their several shares must be paid to Miss Traphagen, or if she be 
 then dead, to her heirs or devisees. 
 
LEADING AND ILLUSTEATIVE CASES. 271 
 
 OHAPTEE lY. 
 
 ESTATES IN FEE TAIL. 
 
 Lehndorf et al. v. Cope. 
 
 Decision by Supreme Court of Illinois, September 28, 1887. Opinion by 
 
 Shope, J. 
 
 {Reported in XSS III. 317.) 
 
 Statement of Case. — James W. Humphrey, being the owner of the 
 lands in controversy, bargained with Maria Anna Lehndorf for the sale 
 thereof for $5,100, and, joined by his wife, on the 3d day of August, 
 1883, by statutory form of warranty deed, in consideration of that sum, 
 did " convey and warrant to Maria Anna Lehndorf, and her heirs by 
 her present husband, Henry Lehndorf," said lands. Two thousand dol- 
 lars of the purohaso-money was paid in hand, and two notes of Maria 
 Anna Lehndorf were given for $1,550 each, payable, with interest, to 
 said Humphrey in twelve and twenty-four months, respectively. At 
 the same time, and as part of the same transaction, a mortgage in stat- 
 utory form was duly executed and delivered by said Maria Anna Lehn- 
 dorf and Henry Lehndorf, her husband, upon the same lands, to secure 
 the said two notes; all being done simultaneously, and as part of the 
 same transaction. James W. Humphrey afterwards sold, indorsed and 
 delivered the said notes to Allen Cope, defendant in error. On the 26th 
 day of December, 1885, said Maria A., joining with her two sons, Paul 
 and Albert Lehndorf, executed and delivered a deed conveying to 
 Elizabeth Wirtz said lands. The first deed and mortgage mentioned 
 were duly recorded August 8, 1883; the latter, December 26, 1885. The 
 notes remaining unpaid after due. Cope, assignee thereof, filed this bill 
 to foreclose the said mortgage, making Maria A. Lehndorf, Henry 
 Lehndorf, her husband, Paul, Albert and William Lehndorf (children 
 of Maria and Henry), and Elizabeth Wirtz, defendants. 
 
 The bill, after alleging the sale of the land by Humphrey to Mrs. 
 Lehndorf, and making the deed, mortgage and notes exhibits, sets up 
 the foregoing facts, and then proceeds: "At the request of said Maria 
 A. Lehndorf, the said James W. Humphrey and his wife, Sarah F. C. 
 Humphrey, conveyed and warranted said lands and real estate to her 
 by the name and style of Maria Anna Lehndorf, and her heirs by 
 her present husband, Henry Lehndorf, by a deed of conveyance bear- 
 ing date of the said 3d day of August, 1883, duly recorded the 8th 
 day of August, 1883, and hereto attached, marked ' Exhibit A.' Com- 
 plainant submits that said Maria Anna Lehndorf can have no heirs 
 while living, and that the words ' and her heirs by her present husband, 
 Henry Lehndorf,' are surplusage in said deed, and that said Paul, Albert 
 
272 LEADING AND ILLUSTEATIVB CASES. 
 
 and William Lehndorf take no Interest, either in law or equity, in said 
 lands and real estate, by virtue of the same being incorporated, as 
 aforesaid, in said deed of conveyance. And complainant further shows 
 that said Paul, Albert and William Lehndorf paid nothing of the pur- 
 chase-money of said lands and real estate to said James W. Humphrey, 
 and of any interest of said lands by virtue of said words, or otherwise. 
 Such interest would be subject to the payment of the purchase-money 
 of said lands and real estate, and subject to the rights and equities of 
 your complainant to have said lands and real estate subjected to the pay- 
 ment of said purchase-money, so secured by said notes and mortgage as 
 aforesaid. Complainant further shows that on, to wit, the 26th day 
 of December, 1885, Maria Anna Lehndorf, Paul and Albert Lehndorf 
 executed, acknowledged and delivered to one Elizabeth Wirtz, of St. 
 Louis, Mo., a warranty deed of conveyance, purporting to convey and 
 warrant said lands to said Elizabeth Wirtz, which said deed was duly 
 recorded in said Marion county, in Record Book 41, page 55. Complain- 
 ant charges, on information and belief, that said conveyance, so made 
 by Maria Anna, Paul and Albert Lehndorf to said Elizabeth Wirtz was 
 without any consideration; that said Elizabeth Wirtz is the mother of 
 said Maria Anna Lehndorf, and that she paid nothing for said lands 
 and real estate to said Maria Anna, nor to said Paul or Albert Lehndorf, 
 but said conveyance was made to embarrass in the collection of said 
 notes. Complainant submits that, if said conveyance of said lands and 
 real estate to said Elizabeth Wirtz was in good faith, the rights of said 
 Elizabeth Wirtz, acquired by such conveyance, would be subject to the 
 rights and equities of complainant in and to said lands and real estate." 
 The bill prays for appointment of guardian ad litem for Paul, Albert 
 and William Lehndorf, who are alleged to be minors; that an account 
 be taken of the amount due complainant on the mortgage; that, in de- 
 fault of payment, sufficient of the land be sold to pay the amount found 
 due; that the rights and equities of the defendants be decreed subject 
 to the equities of complainant; and that they be barred, etc., of equity 
 of redemption. 
 
 The defendant Maria A. Lehndorf answered, admitting the making 
 of the deeds and mortgage, and that the notes mentioned and secured by 
 the mortgage were part of the purchase-money; admits that it was 
 agreed between her and said Humphrey that in making the conveyance of 
 said land the deed shouldbemade to Maria Anna Lehndorf and her heirs 
 by her present husband; that said deed vras so made for the purposes 
 in the deed expressed, and with the intent to so convey the land, and 
 not otherwise; denies that she agreed to purchase and take a convey- 
 ance to herself, but that the deed was intended to convey said lands to 
 her and her heirs by her husband, Henry Lehndorf, and not otherwise; 
 avers that the deed conveyed an estate for life to her in said lands, and 
 the fee therein to her heirs of said Henry, and that Humphrey well 
 
LEADING AND ILLUSTEATIVE CASES. 273 
 
 knew the same before and at the time of the execution of said deed; 
 admits making notes as alleged and mortgage to secure the same, but 
 denies that it was upon any interest in the land not owned by her; that 
 said mortgage was intended to be only of her life estate, and Humphrey 
 well knew the same and accepted the same with such knowledge and 
 intent; avers that, if complainant is owner of the notes, he had them 
 with notice that Maria Anna had purchased and taken by said deed 
 only a life estate in said lands at the time and before he purchased said 
 notes of said Humphrey; that Humphrey had taken and accepted a 
 mortgage on her life estate for the security of said notes with full knowl- 
 edge, and his assignee took no other or greater interest or right than 
 he possessed; denies the right of complainant to other equitable relief; 
 avers that Humphrey waived right to a lien in equity for the purchase- 
 money by taking security by mortgage of life estate, and that upon the 
 assignment of the notes he received pay and satisfaction of the purchase- 
 money, and thereby any right of equitable relief for the purchase-money 
 he might have had was lost; avers that her children by said Henry be- 
 came and were owners in fee of said lands, as tenants in common, sub- 
 ject to the life estate in herself, and subject, also, to be opened to let in 
 other child or children that may be born to the body of said Maria by 
 her present husband, Henry Lehndorf, etc. 
 
 The defendants Paul, Albert and William Lehndorf, by their guardian 
 ad litem, demurred to the bill, which was overruled by the court, and 
 defendant Wirtz was defaulted. Decree was rendered foreclosing the 
 mortgage, finding the interest of all of the defendants subject thereto, 
 and decreeing accordingly. 
 
 The only evidence introduced, other than the deeds, notes and mort- 
 gage mentioned, was that of the scrivener who drew the deed and 
 mortgage of August 3, 1883, who identified the notes as those given at 
 the time for the purchase-money of the land; and it was shown, also, 
 that Paul, Albert and William Lehndorf were the children of said Maria 
 by her husband Henry Lehndorf; that all were minors. Two of them 
 were born prior to the 3d day of August, 1883, and one since. 
 The defendants below prosecute this writ of error. 
 Opinion. — It is contended by appellee that by the deed of August 3, 
 1883) from Humphrey and wife to " Maria Anna Lehndorf, and her heirs 
 by her present husband, Henry Lehndorf," Mrs. Lehndorf took a fee- 
 simple estate in the lands conveyed; while appellants contend that she 
 thereby took a life estate only, with remainder in fee to her children 
 by said Henry Lehndorf. The deed, being statutory in form, contains 
 no habendum limiting or defining the estate taken by Mrs. Lehndorf; 
 and, although the deed must be held equivalent to one containing full 
 covenants (Elder v. Derby, 98 111. 228), it is manifest that the estate 
 granted would not be enlarged or restricted thereby. Such covenants 
 are an assurance of the title granted to the grantees, whomsoever they 
 18 
 
274 LEADING AND ILLUSTEATIVE CASES. 
 
 may be. If Mrs. Lehndorf took the fee, the covenants assure that estate 
 to her; if she takes an estate in tail, the covenantor warrants to her a 
 life estate, and the remainder in fee to whoever would take upon de- 
 termination of her estate. Therefore, as said by counsel for appellee, 
 the determination of the question depends upon a construction of the 
 granting clause of the deed, which is that the grantors, in considera- 
 tion, etc., "convey and warrant to Maria Anna Lehndorf, and her heirs 
 by her present husband, Henry Lehndorf, of," etc., the lands in contro- 
 versy. 
 
 The legitimate purpose of all construction of a contract or other in- 
 strument in writing is to ascertain the intention of the party or parties 
 in making the same; and, when this is determined, effect will be given 
 thereto, unless to do so would violate some established rule of property. 
 The nature and quantity of the interest granted by a deed are always 
 to be ascertained from the instrument itself, and are to be determined 
 by the court as a matter of law. The intention of the parties will con- 
 trol the court in construction of the deed; but it is the intention ap- 
 parent and manifest in the instrument, construing each clause, word, 
 and term involved in the construction according to its legal import, 
 and givmg to each, thus construed, its legal effect. 3 Washb. Real 
 Prop. 404; Bond v. Fay, 12 Allen, 88; Lippett v. Kelley, 46 Vt. 516; Price 
 V. Sisson, 13 N. J. Eq. 169, 178; Caldwell v. Fulton, 31 Pa. St. 489; Wager 
 v. Wager, 1 Serg. & R. 374. It cannot be presumed that the parties used 
 words or terms in the conveyance without intending some meaning 
 should be given them, or without an intent that the effect legitimately 
 resulting from their use should follow; hence, if it can be done con- 
 sistently with the rules of law, that construction will be adopted which 
 will give effect to the instrument, and to each word and term em- 
 ployed, rejecting none as meaningless or repugnant. 
 
 We should, perhaps, first note the contention of counsel for appellee 
 that, by virtue of section 13 of the conveyance act (as there is here no 
 express limitation upon the estate of Mrs. Lehndorf, and as no one can 
 have heirs while living), the words following the grant to her should be 
 rejected, and the deed read as if to her only. This arises from a mis- 
 apprehension of the statute. The evident purpose of the section re- 
 ferred to was to change the rule of the common law, whereby, if a con- 
 veyance, etc., was made without words of inheritance, an estate for the 
 life of the grantee only was created. The section is as follows: " Sec. 13. 
 Every estate in lands which shall be granted, conveyed, or devised, 
 although other words heretofore necessary to transfer an estate of in- 
 heritance be not added, shall be deemed a fee-simple estate of inherit- 
 ance, if a less estate be not limited by express words, or dc not appear 
 to have been grantecj, conveyed, or devised by construction or opera- 
 tion of law." It is not necessary, as seems to be supposed, that, to 
 create a less estate than the fee, there should be express words of lim- 
 
LEADING AND ILLUSTKATIVE CASES. 275 
 
 itation, either under the statute or at common law. It is sufficient for 
 that purpose if it appear by necessary implication that a less estate 
 was granted. 
 
 In an early case (Frogmorton v. Wharrey, 3 W. Bl. 728), where there 
 was a surrender of copyholds by R., who was seized in. fee, to M., his 
 then intended wife, and the heirs of their two bodies, etc., Wilmot, C. J., 
 delivering the opinion of the court for himself, Bathurst, Gould, and 
 Blackstone, JJ., after holding, on authority of Gossage v. Tayler, Style, 
 325, and Lane v. Pannell, 1 Rolle, 438, that the children thus begotten 
 took as purchasers, and not as heirs, says the only difference in the 
 cases is that in those cases " the wife had an express estate for life, and 
 here not. But upon legal principle the cases are just alike. An estate 
 < to A. and the heirs of his body ' is the same as an estate ' to A. for life, 
 remainder to the heirs of his body.'" By operation of law, the added 
 words created, in the case cited, in M. a life estate only, with remainder 
 to the heirs of herself and E., as purchasers. So the grant " to A. and 
 the heirs of his body," by operation of law, creates an estate tail in A.; 
 remainder in tail. And this has been the uniform holding. The sixth 
 section of the conveyance act provides that in cases where, by the com- 
 mon law, any person or persons might, after its passage, become seized 
 in fee tail of any lands, etc., by virtue of any gift, devise, grant, or 
 conveyance " hereafter to be made," or by any other means whatso- 
 ever, such person or persons, instead of being or becoming seized thereof 
 in fee tail, shall be deemed and adjudged to be and become seized 
 thereof for his natural life only, and the remainder shall pass, in fee- 
 simple absolute, to the person or persons to whom the estate tail would, 
 on the death of the first grantee or donee, pass according to the course 
 of the common law, by virtue of such gift, devise or conveyance. 
 
 It is apparent if, at common law, by virtue of this conveyance, Mrs. 
 Lehndof would take an estate tail, whether an estate-tail general or an 
 estate-tail special, the thirteenth section would be inoperative, and by 
 virtue of section 6 she would become seized of an estate for her life, 
 with remainder in fee to those to whom the estate is immediately 
 limited. 
 
 Estates tail came into general use upon construction by the courts of 
 the statute de donis conditionalibua (13 Edw. I., c. 1); and, while no 
 extended discussion will be necessary, an examination sufficient to de- 
 termine if this case falls within the rules creating an estate tail will be 
 proper. To create an estate in fee simple at common law, the grant 
 must be to the grantee and his heirs, without limitation, to take from 
 generation to generation in the regular course of descent. A tenant in 
 fee simple is defined by Blackstone to be "he that hath lands, tene- 
 ments, or hereditaments, to hold to him and his heirs forever, generally 
 absolutely, simply; without mentioning what heirs, but referring that 
 to his own pleasure, or the disposition cf the law." 3 Bl. Comm, 104. 
 
276 LEADING- AND ILLTJSTEATIVE CASES. 
 
 Estates in fee tail were of two kinds: Estates-tail general, as where the 
 grant was to one, and the heirs of his body generally, so that his issue 
 in general, by each and all marriages, are capable of taking per formam 
 doni; and estates-tail special, where the gift or grant was restricted to 
 certain heirs, or class of heirs, of the donee's body. Id. 113, 114; 4 Kent, 
 Comm. 11; 1 Washb. Real Prop. *66. In a grant of lands words of in- 
 heritance were necessary at common law to the creation of a fee; but 
 in the creation of a fee-tail estate more was required. There must also 
 be words of procreation, indicating the body out of which the heirs 
 were to issue, or by whom they wei-e to be begotten. The ordinary 
 formula was to make the gift or grant to the donee, as the grantee was 
 called, "and the heirs of his body," or "her heirs upon her body to be 
 begotten." or "upon her body to be begotten by A." But there was no 
 special eflScacy in these particular forms of words, and it was requisite 
 only that, in addition to limitation to " heirs," the description of the 
 heirs should be such that it should appear they were to be the issue of 
 a particular person. 2 Bl. Comm. 114; 1 Washb. Real Prop. *73; 3 
 Prest. Est. 478, and cases cited ; 2 Jarm. Wills, 325. 
 
 The necessary words of inheritance are not here wanting to create a 
 fee simple or fee tail at common law. The grant is to Mrs. Lehndorf 
 and her heirs, and, if the description had stopped here, a fee-simple es- 
 tate would at common law have passed by the deed. The grant is not, 
 however, to her and her heirs simpliciter, but to her and her heirs by a 
 particular husband, and by necessary implication excludes the con- 
 struction that heirs generally were intended. Heirs generally would 
 include not only those designated, but children she may have, or have 
 had by any other husband, as well as collaterals. Who, under the law, 
 could be her heirs by her present husband except her children by him 
 begotten? If the word "begotten" had been introduced before the 
 preposition "by," so as that it would have read "her heirs begotten by 
 her present husband," etc., it would have been no more certain that the 
 issue of her bofly was intended. If it be conceded that equivalent 
 words, which by necessary implication describe and designate the par- 
 ticular body out of which the heirs should proceed, would sufiBce to .cre- 
 ate an estate tail at common law, wliich seems to be done by the cases 
 and text-writers, then the conclusion seems irresistible that such an 
 estate was here created. " Her heirs by her present husband " could be 
 no other than the issue of her body by him begotten; no other person 
 or class of persons would answer the description, and they would and 
 do fill it in every particular. 
 
 This precise point was ruled in Wright v. Vernon, S Drew. 439, where 
 it is said: "The effect, therefore, of a limitation 'to tlie right heirs of 
 Sir Thomas Samwell by a particular wife forever' is precisely the same 
 as that of a limitation to the heirs of his body by that particular wife 
 forever. The words ' of his body ' are not in the least degree necessary 
 
LEADING AND ILLUSTEATIVE CASES. 277 
 
 to this construction of the term 'heirs' or 'right heirs,' because, with- 
 out their Insertion, the full and absolute efifeot of them is involved in 
 the description 'his right heirs by Mary, his second wife," which de- 
 scription limits the meaning of the term 'heirs' to heirs special, pro- 
 created by himself, as effectually and as necessarily as the words 'of 
 his body ' could do if they had been added." This was a case, it is true, 
 arising upon a devise, in respect of which much greater latitude of con- 
 struction is allowable than in the construction of deeds; but that con- 
 sideration can in no way affect the weight of the authority upon the 
 matter being considered. 
 
 It follows that Mrs. Lehndorf would, at common law, be seized, by 
 virtue of this conveyance, of an estate-tail special in the lands conveyed, 
 and therefore, under the statute, would take an estate for her life only; 
 and that, by virtue of the statute cited, the remainder vested in fee in 
 her children by her said husband in esse at the time of making the deed, — 
 subject, possibly, however, to be opened to let in after-born children 
 of the same class. If no issue of her body "by her present husband" 
 had been then living, the remainder would have fallen under Fearne's 
 fourth and Blaokstone's first definition of a contingent remainder; i e., 
 when the remainder is limited "to a dubious and uncertain person." 
 But, here, at least two of the children who would, under the statute, 
 take the fee-simple estate upon the determination of the life estate, were 
 in being when the deed was executed and delivered, and the remainder 
 vested immediately in them in fee, subject to the possible contingency 
 of being divested pro tanto, if opened to let in after-born children an- 
 swering the same description. The person to whom the remainder is 
 limited is ascertained; the event upon which it is to take effect is cer- 
 tain to happen; and, although it may be defeated by the death of such 
 person before the determination of the particular estate, it is a vested 
 remainder. " It is the uncertainty of the right of enjoyment which 
 renders a remainder contingent; not the uncertainty of its actual en- 
 joyment." Bl. Coram, ii, 169; Fearne, Rem. 149; 4 Kent, Comm. 203; 
 Hawley v. James, 5 Paige, 467; Williamson v. Field, 3 Sandf. Ch. 533; 
 Moore v. Lyons, 25 Wend. 144. 
 
 But it is said that the rule in Shelley's Case should be applied; but it 
 will be seen that its application will produce the same result. That 
 rule, as formulated by Jarman in his work on Wills (page 331). will best 
 illustrate the position here. It is: "The rule simply is that where an 
 estate of freehold is limited to a person, and the same instrument con- 
 tains a limitation, either mediate or immediate, to his heirs, or the 
 heirs of his body, the word ' heirs ' is a word of limitation ; i. e., the an- 
 cestor takes the whole estate comprised in this term. Thus, if the lim- 
 itation be to the heirs of his body, he takes a fee tail; if to his heirs gen- 
 eral, a fee simple,'' The rule operates upon the words of inheritance 
 without affecting the words of procreation; so that if in any case the 
 
^tO LEADING AND ILLUSTRATIVE CASES. 
 
 word "heirs of his body," or other equivalents sufBcient to create an 
 estate tail, are used, a fee tail is vested in the first taker, and not the 
 fee simple, as seems to be supposed. Therefore, if the rule be applied, 
 Mrs. Lehndorf would at common law be seized of an estate in fee tail, 
 and brought directly within the terms of section 6 of the conveyance 
 act before cited. When, therefore, Mrs. Lehndorf, joined by her hus- 
 band, mortgaged the land to Humphrey, it was not in her power to in- 
 cumber the fee; and that estate passed to and vested in her two children 
 then living, unincumbered by the lien created by the mortgage. 
 
 But it is said this mortgage was given for the purchase-money of the 
 land, and that in some way, not clearly defined in argument, a lien 
 therefor exists upon the estate conveyed. If it is intended thereby to 
 insist that a vendor's lien exists, the answer to such a contention would 
 be threefold. A vendor's lien upon real estate is a creation of the courts 
 of equity, upon the equitable consideration that where the vendor has 
 taken no security for the purchase-money, and done no act showing an 
 intention to waive the lien, it is presumed that it was not the intention 
 of the parties that one should part with, and the other acquire, the title, 
 without payment of the purchase price of the land. It exists, if at all, 
 independent of any contract,— is personal to the vendor; and when- 
 ever, from the circumstances, the court can infer that he did not rely 
 upon the lien at the time of the sale, or subsequently abandoned it as 
 security, it will be held to be waived. Pom. Eq. Jur. : Cowl v. Varnum, 
 37 111. 184; Richards v. Learning, 27 111. 432. Thus taking an independ- 
 ent security will discharge the lien. Conover v. Warren, 1 Gilman, 498. 
 
 It is manifest that when the deed and mortgage back to secure the 
 purchase-money are parts of a single transaction, as in this case, one 
 estate may be conveyed by the deed, and a wholly different interest 
 conveyed by the mortgage; as if the fee be granted by the deed, and 
 an estate for life or for years mortgaged. The power of the parties to 
 so contract cannot be questioned. If the vendor saw proper to take 
 security by mortgage upon less than the whole land, or upon less than 
 the estate conveyed, for the unpaid purchase-money, there is no reason 
 why it would not be a valid contract, and the residue of the land or 
 estate pass by the deed unincumbered by any lien in his favor. But 
 the bill in this case is for foreclosure of the mortgage given to secure 
 the purchase-money, and proceeds upon the theory that in eqxiity the 
 mortgage attached to and became a lien upon the fee, which is alleged 
 to be. in Mrs. Lehndorf, and is to enforce the security under the con- 
 tract, — a theory wholly inconsistent with the preservation of a vendor's 
 lien. 
 
 Again, as before said, the lien created by implication in favor of the 
 vendor is personal to him, and is not assignable or transferable, even 
 by express contract between the vendor and an assignee. It can be 
 enforced only by the vendor himself. Richards v. Leaming, supra; 
 
LEADmO AND ILLUSTEATIVE OASES. 279 
 
 Keith V. Horner, 32 111. 534; McLaurie v. Thomas, 39 111. 291; Markoe 
 V. Andras, 67 111. 34; Moshier v. Meek, 80 III. 79. This is an established 
 rule in equity, and is an insuperable obstacle to the enforcement of a 
 vendor's lien by appellee. Such liens are secret; often productive of 
 gross injustice to others dealing in respect of the property to which 
 they attach; and courts of equity will not extend them beyond the re- 
 quirements of the settled principles of equity. 
 
 But it is said that, the deed and mortgage being parts of the same 
 transaction, the title would not vest as against the purchase-money; 
 and the principle so often announced by this and other courts, that, in 
 such case, there is no interregnum between the effective operation of 
 the deed and mortgage in which judgment liens and the like can at- 
 tach as against the mortgage security, is sought to be invoked. The 
 doctrine can have no application to the facts of this case. It is true, 
 as so often held, that in the case stated, the making and delivery of 
 the deed and mortgage, being simultaneous and parts of one transac- 
 tion, are to be construed as one act; eo insiante upon the delivery of 
 the deed the mortgage becomes effective, and the title passes to the 
 mortgagor, subject to the lien of the mortgage. The mortgage attaches 
 to the title conveyed in its transmission from the vendor and the 
 vendee, and, obviously, is effective in arresting the passage of the title 
 so far only as it reconveys the estate to the original vendor. There- 
 fore, if, by deed, a life estate is conveyed to one, and the fee to another, 
 and, as part of the same transaction, the life estate is mortgaged by the 
 grantee thereof to the grantor, the mortgage would attach to the life 
 estate, and the life tenant would take subject to the lien, and the fee 
 would pass unaffected by the mortgage. 
 
 It is also insisted that the children of Mrs. Lehndorf are mere volun- 
 teers, who paid nothing, and therefore, in equity, their interest should 
 be subjected to the payment of this purchase-money. We know of no 
 recognized principle of equity by which the case can be affected by 
 that consideration. If it be conceded they paid nothing, it is apparent 
 defendant in error has no such equity as should prevail against their 
 title. It is not enough that they are not purchasers for value; the 
 party questioning their title must show himself legally or equitably 
 entitled to the relief. When defendant in error purchased the notes 
 of Humphrey he had notice by the record of the state of the title; and 
 that the mortgagor, in the mortgage given to secure them, had a life 
 estate only in the lands mortgaged. He must be presumed to have 
 known that the mortgage conveyed, subject to the condition of defeas- 
 ance, the life estate of Mrs. Lehndorf only; and also that the assign- 
 ment of the notes, or of the notes and mortgage, could not transfer to 
 him any equitable lien Humphrey might have had upon the fee in the 
 land for the unpaid purchase-money. Two thousand dollars of the 
 consideration was paid at the execution and delivery of the deed, but 
 
280 LEADING AND ILLUSTEATPVE CASES. 
 
 by whom does not appear. If the children paid nothing, it was neither 
 unlawful nor immoral for the parents, or either of them, to provide for 
 the future welfare of their offspring by purchasing this land, and hav- 
 ing the fee deeded to them, if done without fraud as to existing cred- 
 itors, and with the knowledge and consent of their grantor. No fraud 
 is alleged or shown, nor is it shown that the mortgage upon the life 
 estate of Mrs. Lehndorf was or is inadequate security for the money 
 remaining unpaid to defendant in error; but, if it was, it could make 
 no difference. As we have seen, it is not purchase-money in his hands, 
 in any sense in which a lien can be enforced in equity otherwise than 
 by a foreclosure of the mortgage upon the estate and interest of which 
 Mrs. Lehndorf was seized; that is, her life estate in these lands. 
 
 It appears by the bill that the deed was made to Mrs. Lehndorf, and 
 her heirs by her present husband, etc., at her request. The grantor had 
 full knowledge of the grant, and took back a mortgage to secure the 
 unpaid purchase-money, executed by Mrs. Lehndorf and her husband 
 only. Defendant in error purchased the notes with notice of the facts, 
 as disclosed by the record, and, if he must lose because of the inade- 
 quacy of his security, he cannot complain. 
 
 The decree of the circuit court will be reversed, and the cause re- 
 manded for further proceedings not inconsistent with this opinion. 
 Reversed and remanded. 
 
 CHAPTEE V. 
 
 CONVENTIONAL LIFE ESTATES. 
 
 Merritt v. Scott et ux. 
 
 Decision by Supreme Court of North Carolina, June, 1879. Opinion by 
 
 Smith, C. J. 
 
 (Reported in 81 N. C. SS5.) 
 
 The tract of land described in the complaint was in 1843 conveyed by 
 James Merritt. the owner, to his son, John Merritt, in trust for another 
 son, Francis Merritt, for life, remainder to his wife, Deborah, for life 
 or widowhood, and with a further limitation over at her death or 
 marriage to the children of Francis then living. John Merritt, the 
 trustee, died intestate, leaving children, who, with the said Deborah, 
 are the plaintiff s in this action. The life tenant Francis, who is also 
 dead, in his life-time conveyed his estate to one John Cox, and after his 
 death his administrator, under proceedings in the probate court and 
 with license therefor, sold and conveyed the land to the defendant 
 Edward Scott. The object of the suit is to recover the land for the use 
 
LEADING AND ILLUSTEATIVE CASES. 281 
 
 of said Deborah, and damages for its detention since the death of 
 Francis Merritt. 
 
 No issue as to title is made, and in the inquiry before the jury as to 
 the damages, the defendant offered to show, in support of the defense 
 set up in his answer, that valuable improvements had been made on 
 the lands both by himself and the preceding occupant, in the erection 
 of useful buildings, and by ditching, fencing and manuring, whereby 
 the value of the land has been greatly enhanced. The evidence on ob- 
 jection from plaintiff was excluded, and the exception to this ruling of 
 the court is the only point presented in the appeal. 
 
 Under instructions the jury assessed the damages from August 18, 
 187-3, which we suppose to be the date of the determination of the first 
 life estate, at the rate of $100 per annum. Whether these improve- 
 ments or any of them were made during the years for which the defend- 
 ant is charged for rent does not appear. 
 
 We think it clear that improvements of any kind put upon land by 
 a life tenant during his occupancy constitute no charge upon the land 
 when it passes to the remainderman. He is entitled to the property in 
 its improved state, without deduction for its increased value by reason 
 of good management or the erection of buildings by the life tenant, for 
 the obvious reason that the latter is improving his own property and 
 for his own present benefit. This proposition is too plain to need the 
 citation of authority. 
 
 For subsequent rents and uses he is entitled to have the amount re- 
 duced by those improvements. Suppose, while holding over, the defend- 
 ant had by such improvements as in the answer are alleged to have 
 been made, rendered the land more valuable, as it comes to the remain- 
 derman, would it not be reasonable he should pay a smaller rent than 
 if nothing of the kind had been done ? So if no repairs were made and 
 the buildings had gone to decay, and by mismanagement and bad cul- 
 tivation the farm had been abused and its value impaired, a full and 
 larger rent might justly be required of the tenant. 
 
 The evidence of such improvements as were made by the defendant, 
 after his estate expired and he became chargeable with rent, ought to 
 have been admitted and considered by the jury in measuring the value 
 of the rent, and in mitigation of damages. The evidence was com- 
 petent for this purpose only, and not, in case the improvements were 
 worth more than the rents, to constitute a counter-claim for the excess. 
 
 The rule is thus stated by Mr. Tyler: "The defendant should be al- 
 lowed for the value of his improvements made in good faith, to the 
 ■extent of the rents and profits claimed, and this is the view of the sub- 
 ject which is supported by the authorities." Tyler, Ej. 859. 
 
 Referring to the action for mesne profits which might be brought 
 after a recovery in ejectment, RufBn, C. J., uses this language: "The 
 jury can then make fair allowance out of the rents, and to their extent, 
 
282 LEADING AND ILLUSTRATIVE OASES. 
 
 for permanent improvements honestly made by the defendant, and 
 actually enjoyed by the plaintiff, taking into consideration all the cir- 
 cumstances." Dowd V. Faucett, 4Dev. 93. 
 
 Thus far the jury should have been allowed to hear and consider the 
 evidence, in assessing the sum which the defendant should pay for the 
 use of the premises, for it is quite apparent the improvements were 
 made in good faith and will inure to the plaintiff's benefit. 
 
 As a counter-claim and to charge the land therewith when the estate 
 in remainder is vested in Deborah, the evidence is totally inadmissible 
 under the act of February 8, 1873. Battle's Revisal, c. 17, § 363a et seq. 
 The act is not applicable to a case like this, but to independent and 
 adversary claims of title, and was intended to introduce a just and rea- 
 sonable rule in regard to them. 
 
 The owner of land who recovers it has no just claim to anything but 
 the land itself and a fair compensation for being kept out of possession ; 
 and if it has been enhanced in value by improvements made under the 
 belief that he was the owner, the increased value he ought not to take 
 without some compensation to the other. This obvious equity is estab- 
 lished by the act. But to enjoy its benefits, a party after judgment 
 must file his petition and ask to be allowed for his permanent improve- 
 ments, "over and above the value of the use and occupation of such 
 land." 
 
 If the court is satisfied of the probable truth of the allegation, and 
 the case is one to which the statute applies, and this must be prelimi- 
 narily determined, it may suspend execution, and cause a jury to be 
 impaneled "to assess the damages of the plaintiflE and the allowance to 
 the defendant" for his permanent improvements, "over and above the 
 value of the use and occupation of the land." 
 
 This course has not been pursued, and the evidence is offered in the 
 trial without any previous application to the judge, or his assent being 
 obtained. But waiving the informality, we are not prepared to say the 
 judge was in error in disallowing the evidence for the purpose of estab- 
 lishing a counter-claim for the excess. The defendant is entitled to 
 have his claim for improvements made since the expiration of his own 
 estate considered by the jury in estimating the value of the rents under 
 appropriate instructions from the court in relation thereto. For this 
 error in wholly rejecting the evidence there must be a venire de novo, 
 and it is so ordered. 
 
 Error. Venire de novo. 
 
LEADING AND ILL0STEATIVE CASES. 283 
 
 Keeler v. Eastman. 
 
 Decision by Supreme Court of Vermont, January, 1839. Opinion by 
 Bennett, Chancellor. 
 
 {Reported in 11 Vt S93.) 
 
 Statement of Case. — The orator's bill stated, in substance, that 
 Seba Eastman, in October, 1828, executed a lease of a certain farm, de- 
 scribed in the bill, to the defendant and his wife, during their natural 
 lives, and afterwards, in February, 1832, conveyed his reversionary 
 interest in the farm to the orator. The bill then alleged that the de- 
 fendant had committed waste on the premises, and especially upon a 
 sugar orchard, by cutting down and carrying away and selling the 
 wood and timber growing thereon, and concluded with a prayer for an 
 injunction to stay further waste, and that the defendant might be de- 
 creed to account to the orator for such as had been committed. The 
 substance and amount of the testimony will appear from the opinion 
 of the court. 
 
 Opinion. — The great subject of complaint seems to be the destruction 
 of the sugar orchard, which it alleged has been out down and destroyed 
 since the orator became possessed of the reversionary interest in Feb- 
 ruary, 1833. It is unnecessary to go into the particulars of the evi- 
 dence, which is quite voluminous, and is evidently somewhat contra- 
 dictory; but suffice it to say that it seems to be pretty well established 
 from the current of the testimony that the principal part of the chopping 
 in the sugar orchard was prior to the winter of 1833, and this too by Seba 
 Eastman and Charles Eastman, while Seba had the reversionary interest. 
 The whole evidence taken together satisfies the court that the farm, on the 
 whole, has been managed by the tenant for life in a prudent and husband- 
 like manner; and that there have been no acts of wantonness on the part 
 of the defendant, or disregard to the ultimate value of the reversionary 
 interest. Indeed, the value of the property seems to have been en- 
 hanced by the betterment and good husbandry of the defendant. We 
 are not aware of any decisions in the courts of this state laying down 
 any precise rules establishing what acts shall constitute waste; and, 
 indeed, it is difficult there should be any. The general principle is that 
 the law considers everything to be waste which does a permanent in- 
 jury to the inheritance. Coke Litt. 53, 54; Jacob's Law Die, vol. 6, 393, 
 tit. Waste; 7 Com. Dig., tit. Waste. 
 
 By the principles of the ancient common law many acts were held 
 to constitute waste — such as the conversion of wood, meadow or 
 pasture into arable land, and of woodland into meadow or pasture 
 land — to which we might not, at the present day, be disposed to 
 give that effect. These principles must have been introduced when 
 agriculture was little understood, and they are not founded in rea- 
 son, and many of them are inconsistent with the most important 
 
284: LEADING AND ILLUSTRATIVE CASES. 
 
 improvements in the cultivation of the soil. In England that species 
 of wood which is designated as timber shall not be cut, because 
 the destruction of it is considered an injury done to the inherit- 
 ance; and, therefore, waste. From the different states of many parts 
 of our country a different rule should obtain in our courts; and timber 
 may and must, in some cases to a certain extent, be out down, but not 
 so as to cause damage to the inheritance. To what extent a tenant 
 for life can be justified in cutting wood before he shall be guilty of 
 waste must depend upon a sound discretion applied to the particular 
 case. It is not iu this slate waste tocut down wood or timber so as to 
 fit the land for cultivation, provided this would not damage the inherit- 
 ance, and would be according to the rules of good husbandry, taking 
 into view the location and situation of the whole farm. So, to remove 
 the dead and decaying trees, whether for the purpose of clearing the 
 land, or giving the green timber a better opportunity to come to ma- 
 turity, is not waste. We are satisfied that when the wood or timber is 
 cut with this intent, and is according to a judicious course of hus- 
 bandrj', the tenant is not guilty of waste, though the wood or timber 
 so cut may have been sold or consumed off the farm. This farm, it is 
 to be remembered, is comparatively in a state of nature, and the town 
 in which it is situated comparatively new; and what might constitute 
 waste, as applied to one farm in one place, might not, when applied to 
 another in a different place. 
 
 Though the evidence is somewhat contradictory, we are not satisfied 
 that the defendant has gone beyond his rights. The orator's bill is 
 therefore dismissed. But inasmuch as the defendant has made declara- 
 tions claiming the right to out off all the wood and timber from the 
 farm it he chose to do it, and threatened the doing of it, the bill was 
 not brought without some apparent cause, and the defendant in this 
 particular is not without fault; it is therefore dismissed without costs. 
 
 CHAPTEE VI. 
 
 LEGAL LIFE ESTATES. 
 
 Bozarth et al. v. Largent. 
 
 Decision by the Supreme Court of Illinois, April 5, 1889. Opinion by 
 
 Shope, J. 
 
 (Reported in WS III. 95.) 
 
 This was an action of ejectment, brouglit by James Bozarth, Mary L. 
 Bozarth, and Ida B. Cook, the heirs at law of Louisa Bozarth, deceased, 
 against William Largent, for the recovery in fee of the E. -J- S. W. J of 
 
LEADING AND ILLUSTEATIYE CASES. 285 
 
 section 17, and the W. ^ of the S. W. J of section 8, all in township 23 N., 
 range 2 W. of the third P. M., in Tazewell county. General issue was 
 filed, and a trial had, resulting in a finding and judgment for defend- 
 ant. Plaintifi's below prosecute this writ of error. The facts are as 
 follows: Louisa Bozarth, now deceased, being the owner in fee of said 
 lands, which she had inherited from her father, was, on August 19, 
 1863, married to Asa Bozarth. They lived together as husband and 
 wife until November 1, 1868, when she died intestate, leaving her hus- 
 band, who is still living, and the plaintiffs, her children and only heirs 
 at law, surviving her. On March 5, 1868, she and her husband executed 
 their mortgage upon the lands in controversy, and other lands of the 
 husband, to Anna R. Cohrs, to secure the payment of $2,500 evidenced 
 by the note of Asa Bozarth, the husband, payable two years after date, 
 with ten per cent, interest, payable annually, and containing a clause 
 that, in default of the payment of the annual interest, the principal 
 should become due. The mortgage was in the usual form, and con- 
 tained a release of all homestead rights; and the wife acknowledged 
 the release of all her rights of homestead, but the husband did not ac- 
 knowledge the release of homestead, his acknowledgment being simply 
 that he acknowledged the mortgage to be his free act and deed for the 
 uses and purposes therein set forth. On March 27, 1873, Mary C. Maus, 
 the assignee of said note and mortgage, filed her bill in the circuit 
 court of Tazewell county against the said Asa Bozarth, and the plaint- 
 iffs and others, for the foreclosure of said mortgage. Summons was 
 duly served on all the defendants, and a guardian ad litem was ap- 
 pointed for James, Ida B., and Mary Bozarth, the plaintiffs, they being 
 then minors, who answered. At the May term, 1873, a decree was entered 
 foreclosing said mortgage, and finding due thereon the sum of $2,973.75, 
 and a solicitor's fee of $125, provided for in the mortgage, and ordering 
 a sale of the premises, etc. Sale was made under said decree July 12, 
 1873, to William Don Maus, for the sum of $3,048.84. The sale was 
 made en masse, the master having failed to obtain bids on the several 
 tracts when separately offered. Certificate of purchase was made and 
 recorded the same day. At the May term, 1874, of the McLean circuit 
 court, Albert Welch recovered a judgment against the said Asa Bozarth, 
 John Bozarth, and Elihu Bozarth for $1,250.50 and costs. Execution was 
 issued to the sheriff of McLean county, and returned August 19, 18T4, 
 when Welch assigned the judgment to George W. Thompson. On the 
 same day an alias execution issued to the sheriff of Tazewell county, 
 which came to that oflSoer's hands August 20, 1874, and was levied on 
 all the land sold under the foreclosure decree, and a certificate of levy 
 was filed and recorded August 31, 1874. On October 10, 1874, a certifi- 
 cate of redemption from the sale under the decree of July 12, 1873, was 
 executed by the sheriff of Tazewell county, and recorded the same day. 
 On October 31, 1874, the land was sold en masse by the sheriff to Welch 
 
286 LEADING AND ILLUSTEATIVE CASES. 
 
 for redemption money and costs. On January 14, 1875, after the term 
 of office of the sheriff had expired, he made and delivered to Welch a 
 deed for the premises, dating the same as of the day of sale. On the 
 same day, Pratt, the then sheriff, also executed a deed to Welch for the 
 lands on the same sale. Welch and wife, by their deed of December 1, 
 1875, conveyed the land to John Bozarth, and he, on May 22, 1883, con- 
 veyed the same to William Largent, defendant in error, v?ho went into 
 possession of the same. 
 
 At the common law a husband held in right of his wife all her lands 
 in possession, and owned the rents and profits thereof absolutely. 1 
 Washb. Real Prop. 276; Tied. Eeal Prop., § 90; Haralson v. Bridges, 14 
 111. 37; Clapp v. Inhabitants of Stoughton, 10 Pick. 463; Becker v. Liv- 
 ingston, 15 Johns. 479. The birth of issue was not necessary to this 
 right of the husband, which continued during tlie joint lives of the 
 husband and wife. It was called an estate during coverture, or the 
 husband's freehold estate jure uxoris. Kibble v. Williams, 58 111. 30; 
 Butterfield v. Beall, 3 Ind. 203; Montgomery v. Tate, 12 Ind. 615; Croft 
 V. Wilbar, 7 Allen, 248. It differed from curtesy initiate in its being a 
 vested estate in possession, while the latter is a contingent future es- 
 tate, dependent upon the birth of issue. Wright's Case, 2 Md. 429-453. 
 It is held in right of the wife, and was not added to or diminished 
 when curtesy initiate arose. Subject to the husband's beneficial enjoy- 
 ment during coverture, the ownership remained in the wife, and, on 
 dissolution of the marriage, was discharged from such estate of the hus- 
 band. Stew., Husb. & W., §146. Where there was marriage, seisin of the 
 wife, and birth of issue capable of inheriting, the husband, by the com- 
 mon law, took an estate in the wife's land during coverture. This was 
 an estate of tenancy by the curtesy initiate, and which would become 
 consummate upon the death of the wife in the life-time of the tenant. 
 A tenant by the curtesy was seised of an estate of freehold, which was 
 subject to alienation, and was liable to be taken on execution for his 
 debts. Tied. Real Prop., § 101; Howey v. Goings, 13 III. 95; Jacobs v. 
 Rice, 33 111. 369; Cole v. Van Riper, 44 111. 58; Beach v. Miller, 51 111. 206; 
 Lang V. Hitchcock, 99 111. 550. 
 
 The act of 1861, known as the "Married Woman's Act," provides: 
 " That all the property, both real and personal, belonging to any married 
 woman as her sole and separate property, or which any woman here- 
 after married owns at the time of her marriage, or which any married 
 woman during coverture acquires in good faith from any person other 
 than her husband, by descent, devise or otherwise, together with all the 
 rents, issues, increase and profits thereof, shall, notwithstanding her 
 marriage, be and remain, during coverture, her sole and separate prop- 
 erty, under her sole control, and be held, owned, possessed and enjoyed 
 by her the same as though she was sole and unmarried, and shall not 
 be subject to the disposal, control or interference of her husband, and 
 
LEADING AND ILLUSTEATIVE CASES. 287 
 
 shall be exempt from execution or attachment for the debts of her hus- 
 band." In this case, Louisa Bozarth, who was common source of title, 
 was the owner of the land in controversy, as it is conceded, at the time 
 of her marriage, August 19, 1863, to Asa Bozarth. The marriage hav- 
 ing taken place after the act of 1861 took effect, and the wife being 
 then the owner of the land in question, it was not, during her covert- 
 ure, subject to the control, interference or disposal of her husband, or 
 liable for his debts or other obligations. The effect of the statute was 
 to abrogate the husband's estate in her lands, or the estate he would 
 have had at common law during the coverture, and consequently during 
 that period he had no estate therein liable to execution or attachment. 
 The act did away with the estate he would have had at common law, 
 growing out of the mere marital relation, and of his curtesy initiate; 
 and it therefore follows, if the wife had been living at the time of the 
 redemption and sale by the creditor of her husband, that proceeding 
 would not have divested any right of herself or husband, nor conferred 
 any right upon the purchaser. 
 
 The question, however, remains whether Asa Bozarth, the husband, 
 on the death of his wife in 1868, acquired an estate in her land as tenant 
 by the curtesy. We have already seen that the property of a married 
 woman, under the act of 1861, notwithstanding her marriage, was to be 
 and remain during coverture her sole and separate property, and was 
 not subject to the husband's control, or liable for his debts. The gen- 
 eral effect of statutes of this kind is to destroy the marital rights of the 
 husband in his wife's estate; but a statute may exempt her property 
 from his debts without in any way destroying his rights therein. Un- 
 less tenancy by the curtesy is destroyed by the statute by express 
 words or necessary implication, or by the wife's disposition of her 
 property by virtue of her power over it, he will be held to have an es- 
 tate by the curtesy at her death. The prevailing opinion seems to be 
 that while separate property acts do suspend during coverture all the 
 rights of a husband, or his creditors, in statutory separate property, 
 they do not destroy curtesy, or prevent its vesting on her death, unless 
 such an event is clearly excluded by the statute; as where the statute 
 not only provides that the property of the wife shall be hers, etc., but 
 also defines her husband's interest therein, if she dies intestate, in which 
 case curtesy is excluded. Where she has power to alienate or charge 
 her property, she may thereby defeat curtesy, but the statute must 
 contain express words to enable her to convey alone; and, also, when 
 she has power of disposition of the property by will she may thereby 
 defeat curtesy. Stew. Husb. & W., g§ 161, 243; In re Winne, 3 Lans. 21; 
 Hatfield v. Sneden, 54 N. Y. 280: Noble v. McFarland, 51 111. 226; Free- 
 man v. Hartman, 45 111. 57; Cole v. Van Riper, supra. 
 
 It will be seen that the married woman's act of 1861 does not attempt to 
 define the husband's rights in his wife's property after her decease, nor 
 
288 LEADING AND ILLUSTEATIVE CASP;S. 
 
 does it give her any power to dispose of her separate property, independ- 
 ent of the husband. The purpose and effect of the statute were to secure 
 to the wife the control of her separate property during coverture. Dur- 
 ing that period the husband's common-law rights in her property are 
 suspended. We are of opinion that this act did not have the effect 
 of destroying the estate by curtesy, but that, after the passage of that 
 act, and prior to the passage of the act of 1874, the husband, on his 
 wife's death, leaving Issue of marriage, took a life estate in her land as 
 tenant by the curtesy. After the passage of the act under considera- 
 tion, the estate by the curtesy in the lands of the wife did not vest in 
 the husband until the death of the wife (Lucas v. Lucas, 103 111. 131 ; 
 Beach v. Miller, 51 111. 206); but upon her death such estate became 
 consummate, and vested in the husband in all I'espects as at common 
 law (Noble v. McFarland, Id. 226; Shortall v. Hinckley, 31 111. 219; Gay 
 V. Gay, 138 III. 331, 13 N. E. R. 813; Castner v. Walrod, 83 111. 171). It fol- 
 lows that we are of opinion that upon the death of the wife in 1868, 
 leaving issue surviving, the husband, Asa Bozarth, became seised of a 
 freehold interest in the lands in controversy as tenant by the curtesy, 
 and which was subject to seizure and sale on execution against him. 
 
 The validity of the sale of the premises under the decree of fore- 
 closure, and the redemption upon the execution issued upon the judg- 
 ment in favor of Welch, and against the said Asa Bozarth, and the sale 
 thereunder, are questioned by plaintiff in error. If the foreclosure sale 
 was void for any cause, the judgment creditor redeeming therefrom 
 acquired no title under his purchase, for the reason that his rights, like 
 those of the purchaser at the sale under the decree of foreclosure, are 
 dependent upon a, valid judgment or decree and sale. Johnson v. 
 Baker, 38 111. 99; Mulvey v. Carpenter, 78 111. 580; Keeling v. Heard, a 
 Head, 592. 
 
 It is objected that there was no sufBcient service of summons upon 
 the plaintiffs in error, who were defendants in the foreclosure suit. 
 The return to the summons therein is as follows: "Executed this writ 
 by reading the same to the within-named Asa Bozarth, James Bozaitli, 
 Ida Bell Bozarth, and Mary Bozarth, and by delivering to each a true 
 copy hereof, on the 10th day of April, 1872," and properly signed by the 
 sheriff. The process was returnable to the May term, 1873. The serv- 
 ice was in apt time. The fact that the summons was read to the de- 
 fendants did no harm, and that part of the return may be disregarded. 
 It is apparent that the circuit court had, therefore, jurisdiction of the 
 subject-matter and of the parties, and mere errors or irregularities, if 
 any, cannot be taken advantage of in this collateral proceeding. 
 
 It is objected that the mortgaged premises were improperly sold en 
 masse. If this be conceded, it would not render the sale void; at most, 
 it would only be ground for setting the sale aside on proper application 
 to the court in apt time. It however appears that the land was offered 
 
LEADING AND ILLUSTKATIVE CASES. 289 
 
 by the master in separate parcels, and, receiving no bids therefor, it 
 was then offered and sold en masse. We are not prepared to say that 
 the action of the master was not warranted. 
 
 It is next objected that all the lands sold under the decree were re- 
 deemed en masse, and so sold to Welch under the execution. A judgment 
 creditor's right of redemption is no greater or more extensive than that 
 of the original debtor. He cannot redeem in a case where the original 
 owner cannot redeem, and within the time allowed by law for redemp- 
 tion by the debtor. In Hawkins v. Vineyard, 14111. 26, a quarter-section 
 of land had been sold, of which the debtor owned only sixty-five acres and 
 it was held he could not redeem the sixty-five acres, but that he must re- 
 deem the whole or none. A person cannot redeem an undivided .share 
 of land by paying his proportional share of the debt; and apart owner 
 must redeem the whole. Durley v. Davis, 69 111. 133. A purchaser of 
 a part of mortgaged land cannot redeem that part by paying his pro- 
 portion of the debt. Meacham v. Steele, 93 111. 135. When the purchaser 
 at a master's sale of an entire tract of land afterwards assigns an undi- 
 vided interest in such purchase, there can be no legal redemption of 
 such undivided interest by a judgment creditor. Groves v. Maghee, 73 
 111. 526; Titsworth v. Stout, 49 111. 78. Section 35, chapter 77, Revised 
 Statutes, provides: " Any person entitled to redeem may redeem the 
 whole or any part of the premises sold in like distinct parcels or quanti- 
 ties in which the same were sold." If the several mortgaged tracts had 
 been sold separately, redemption might have been made of any one or 
 more of the tracts. In such case the amount that each tract sold for would 
 furnish the basis for determining the amount to be paid in order to re- 
 deem; but, as the several parcels of land were sold together, and for a 
 gross sum, neither the debtor nor his judgment creditor could redeem 
 without paying the full amount for which the same sold, with interest. 
 The law gives the debtor twelve months in which to redeem, after 
 which time any judgment creditor of the debtor may also redeem within 
 fifteen months from the date of the sale; but, in so doing, the creditor 
 will possess no greater right than his debtor had within the time lim- 
 ited for redemption by him. After the expiration of twelve months 
 from the sale, the right of redemption of the judgment debtor is gone. 
 He no longer has any interest in the premises and cannot take advan- 
 tage of mere irregularities in making redemption by his judgment 
 creditor, and his acquisition of title by virtue of a sale in pursuance of 
 such redemption. The purchaser at the foreclosure sale makes no ob- 
 jection to the validity of the redemption, and, having accepted the 
 money, the redemption was complete. The title of Asa Bozarth being 
 gone by his failure to redeem within the time allowed by law, he was 
 not injured by a sale en masse on the execution, if, indeed, the sale 
 could have been otherwise made. 
 There is no force in the objection that the redemption should have 
 19 
 
290 LEADING AND ILLUSTRATIVE CASES. 
 
 been made in the name of Thompson, assignee of Welch, the judgment 
 creditor. Sweezey v. Chandler, 11 111. 445. It in no way concerns the 
 plaintiffs in error whether redemption was made in the name of the plaint- 
 iff in the judgment against Asa Bozarth or in the name of his assignee. 
 No proof was made or offered at the trial tending to show that the 
 premises, when sold under the decree of foreclosure, or when the mort- 
 gage was given, were occupied by the mortgagors, or either of them, 
 as a homestead ; nor does it appear that they were at any time so oc- 
 cupied. Therefore, the question of the right of homestead was not 
 presented for adjudication, and cannot now be considered in this court. 
 It may, however, be observed that the mortgage was executed and ac- 
 knowledged before the act of 1872, relating to conveyances, took effect, 
 and the cases cited by counsel were determined under the provisions 
 of that act. 
 
 It is claimed that only the title of Louisa Bozarth passed by the sale 
 under the decree of foreclosure, and therefore a creditor of her husband 
 could not redeem from that sale. This contention is not well grounded. 
 While the husband, as we have seen, at the time of the execution of the 
 mortgage had no estate in the land, it was necessary to the execution 
 of a valid mortgage or conveyance of his wife's estate therein that he 
 should join in the mortgage or conveyance, which he did. The mort- 
 gage was in the usual form, and contained covenants of both the husband 
 and wife of good right to convey, seisin in fee and of general warranty, 
 and was sufficient to pass not only the estate of the wife, but also all 
 the estate, right and interest of the husband in the property, which he 
 then had or might subsequently acquire. If he had no estate by the 
 curtesy initiate or otherwise during the life of the wife, upon her 
 death he took an estate for life in this land as tenant by the curtesy, 
 which, under the covenants of the mortgage, inured to the benefit of 
 the mortgagor. Grochenour v. Mowry, 33 111. 331. The sheriff's deed 
 was dated October 31, 1874, the date of the sale upon the redemption, 
 but was, in fact, executed January 14, 1875, after the term of office of 
 the sheriff had expired. Section 21 of the act relating to judgments, 
 etc., provides that the redeeming judgment creditor shall be considered 
 as having bid at the sale the amount of the redemption money paid by 
 him, with interest thereon, and the costs of the redemption and sale; 
 "and, if no greater amount is bid at such sale, the premises shall be 
 struck off to such person making such redemption, and the officers 
 shall forthwith execute a deed of the premises to him, and no other 
 redemption shall be allowed." It is urged that the provision of the 
 statute requiring the deed to be made "forthwith " is mandatory, and 
 that a failure in this respect would render the sale void. We are not 
 prepared to so hold. The purchaser is entitled to a deed forthwith in 
 such case, but the failure of the sheriff to make the deed immediately 
 after the sale will not render the redemption and sale invalid. This 
 provision of the statute must be regarded as directory only. 
 
LEADING AND ILLDSTEATITE CASES. 291 
 
 .It is lastly objected that Reeves, the sheriflf, had no authority to make 
 the deed after his term of office had expired. Section 30 of the act re- 
 lating to judgments, etc., provides: "The deed shall be executed by the 
 sheriff, master in chancery, or other officer who made such sale, or by 
 his successor in office,'' etc. Freeman, in his work on Execution (sec- 
 tion 327), says: "The officer who made the salo, whether he continues 
 in office or not, is, in ordinary circumstances, and in the absence of 
 statutory provisions to the contrary, the proper person to make the 
 conveyance. . . . When the term of the officer who made the sale 
 terminates, his power to make the conveyance continues. In fact, un- 
 less the new sheriflf is specially authorized by statute, he seems to have 
 no authority whatever to make a conveyance based on a sale made by 
 his predecessor." 
 
 We are of opinion that the deed made by the retiring sheriflf, under 
 our statute, was valid. If this is so, it will be unnecessary to determine 
 whether the deed made by his successor in office is good or not. In 
 any event, under the section of the statute quoted, by one deed or the 
 other, the title acquired under the redemption sale passed to the grantee 
 in said deeds. The plalntlflfs claimed an estate in fee in the land in 
 controversy, with a present right of possession. Their father having a 
 life estate in the property, which has passed by virtue of the foreclosure 
 sale, the redemption and sale thereunder, and the deed in pursuance 
 thereof to the defendant, they are not entitled to recover of the defend- 
 ant the possession of said lands during the continuance of such estate. 
 Until the termination of that life estate by the death of the life tenant, 
 their right to a recovery must be postponed. Some questions are raised 
 as to the effect of the proceedings before mentioned upon the fee to the 
 land which are not now before us for consideration, and no adjudica- 
 tion is made in repect thereof. The judgment of the circuit court 
 will be affirmed. 
 
 Stanwood v. Dunning et al. 
 
 Decision by Supreme Judicial Court of Maine. 1837. Opinion by 
 Emery, J. 
 
 (Reported in I4. Me. S90.) 
 
 The only question in this case is whether, on the facts legally and 
 properly proved, David Stanwood had such seisin of the premises as 
 could entitle the demandant to dower. Premising that family settle- 
 ments made without fraud are justly entitled to the favorable consid- 
 eration of courts, we proceed to suggest our ideas of the merits of the 
 case as disclosed in the agreed statement of facts. The claim of dower, 
 it has long been said, is to be favored. Still unless the husband were 
 legally and beneficially seised of the estate during the coverture, the 
 
292 LEADING AND ILLUSTRATIVE CASES. 
 
 wife is not entitled to dower. But if the land vests in the husband but 
 for a single moment beneficially for his own use, the wife shall be 
 endowed. 
 
 It is said that the case cited by plaintiff from Cro. Eliz. 503, which is 
 Broughton v. Randall, is differently reported in Noy, 64. In Cro. Eliz. 
 it is said the title of the feme to recover dower was that the father 
 and son were joint tenants to them and the heirs of the son; and they 
 were both hanged in one cart; but because the son, as was deposed by 
 witnesses, survived, as appeared by some tokens, viz., his shaking his 
 legs, his feme thereupon demanded dower, and upon this issue, nunques 
 seizu dowers, this matter was found for the demandant. 
 
 In 1 Rop. Prop. 369, the case of Broughton v. Randall is thus stated: 
 A father was tenant for li'^, remainder to his son in tail, remainder to 
 the right heirs of the father. Both of them were attainted of felony 
 and executed together. The son had no issue, and the father left a 
 widow. Evidence was given of the father having moved or struggled 
 after the son, and the father's widow claimed dower of the estate, and 
 it was adjudged to her. The principle appears to be this: that the in- 
 stant the father survived the son, the estate for life of the father united 
 with the remainder in fee limited to him upon the determination of 
 the vested estate tail in the son, so that the less estate having merged 
 in the greater, the father became seized of the freehold and inheritance 
 for a moment during the marriage, to which dower attached itself. 
 
 But if the instantaneous seisin be merely transitory, that is, when 
 the very same act by which the husband acquires the fee takes it out 
 of him, so that he is merely the conduit for passing it, and takes no in- 
 terest, such a momentary seisin will not entitle his widow to dower. 
 
 An illustration is given in the English books, that if lands be granted 
 to the husband and his heirs by a fine, who immediately by the same 
 fine renders it back to the conusor, the husband's widow will not be 
 entitled to dower of such an instantaneous seisin. Dixon v. Harrison, 
 Vaughan, 41; Cro. Car. 191; Co. Litt. 81. 
 
 In this case, the marriage, death of the husband, and demand of 
 dower are admitted, but his seisin is denied. 
 
 Without going into an examination of the law relating to the four 
 species of fines used in England, we may remark that it is considered 
 there as one of the most valuable of the common assurances of that 
 realm, being in fact a fictitious proceeding to transfer or secure real 
 property by a mode more efficacious than ordinary conveyances. 1 Co. 
 Litt. 121a. 
 
 But to show how this mode of passing property bears on the seisin 
 of the husband, so far as instantaneous in the case of a fine, compared 
 with it in case of bargain and sale, the case of Nash v. Preston, Cro. 
 Car. 191, is not inappropriate. It was a bill in chancery. "J. S., being 
 seised in fee, by indenture enrolled, bargains and sells to the husband 
 
LEADING AMD ILLUSTEATIVE CASES. 293 
 
 for £120, in consideration that he shall re-demise it to him and his wife 
 for their lives, rendering a peppercorn; and with a condition that if he 
 paid the £120 at the end of twenty years the bargain and sale shall be 
 void. He re-demiseth it accordingly and dies; his wife brings dower. 
 The question was whether the plaintiff shall be relieved against this 
 title of dower. Jones, J., and Croke, to whom the bill was referred, 
 conceived it to be against equity and the agreement of the husband at 
 the time of the purchase that she should have it against the lessees, for 
 it was intended that they should have it re-demised immediately to 
 them as soon as they parted with it; and it is but in nature of a mort- 
 gage; and upon a mortgage, if land be re-demised, the wife of the mort- 
 gagee shall not have dower. And if a husband take a fine sur cogni- 
 zance de droit comme ceo, and render arrear, although it was once the 
 husband's, yet his wife shall not have dower, for it is in him and out 
 of him, quasi unoflatu, and by one and the same act. Yet in this case 
 they conceived that by the law she is to have dower; for, by the bar- 
 gain and sale, the land is vested in the husband, and thereby his wife 
 entitled to have dower; and when he re-demises it upon the former 
 agreement, yet the lessees are to receive it subject, to this title of dower; 
 and it was his folly that he did not conjoin another with the bargainee, 
 as is the ancient course in mortgages. And when she is dowable by 
 act or rule in law, a court of equity shall not bar her to claim her dower, 
 for it is against the rule of law, viz., " where no fraud or covin is, a 
 court of equity will not relieve." And upon conference with other the 
 justices at Serjeant's Inn, upon this question, who were of the same 
 judgment, Jones and Croke certified their opinion to the court of chan- 
 cery " that the wife of the bargainee was to have dower, and that a 
 court of equity ought not to preclude her thereof." 
 
 The case of Holbrook v. Finney, i Mass. 566, recognizes that which 
 we have just recited as sound law. 
 
 In the case now under discussion the deed from William Stanwood 
 to David Stanwood bears date the 1st of March, 1824, is acknowledged 
 on the 6th of the same month, and recorded March 16, 1824. It is a 
 deed of bargain and sale to said David in fee for the consideration of 
 love and affection with general warranty. 
 
 The deed from David Stanwood to Charles Stanwood is dated the 6th 
 of March, 1834, acknowledged the same day, and recorded March 11, 
 1824. But if requisite so to examine in order to help to a decision, it 
 is manifest from inspecting the deed from William to Charles Stan- 
 wood that in the order of time the deed to David from William was 
 made first, and then it is apparent that David became rightfully seised 
 in fee, and beneficially so, though for a short time. 
 
 The fee was not rendered back by David to William, quasi tmoflatu, 
 and therefore the demandant is entitled to dower. It is agreed that 
 the object of the father was to divide his estate among his sons. Noth- 
 
294 leadIng and illustrative cases. 
 
 ing could more strongly evince the propriety of leaving the law to raise 
 the future benefit to the wife of David in dower after his decease, if 
 his notorious insolvency might put at hazard the beneficial continu- 
 ance of the property in him during his life. 
 
 The questions about the admissibility of any other evidence of former 
 or subsequent agreements and conversations it is unnecessary to ex- 
 amine further than to say that those which preceded the deed of Will- 
 iam to David were merged in that conveyance. And the subsequent 
 agreements and conversations do not abridge the plaintiff's right. But 
 we reject them. The purchasers under Charles Stan wood are estopped 
 to deny the seisin of David. Kimball v. Kimball, 3 Greenl. 226. 
 
 Upon every view of which the case is legally susceptible, on the facts 
 legally and properly proved, we are satisfied that David Stanwood had 
 such seisin of the premises as would entitle the demandant to dower. 
 
 The defendants must be defaulted. 
 
 Warren v. "Warren et al. 
 
 Decision by Supreme Court of Illinois, October 26, 1893. Opinion by 
 
 Magruder, J. 
 
 {Reported in IJ^S III. 64I.) 
 
 The original bill in this case was filed on September 84 1890, by the 
 appellant, Eliza A. Warren, the widow of Alpha Warren, who died tes- 
 tate on November 12, 1888, against John H. Warren in his own right, as 
 the son of Alpha Warren by a former wife, and as executor of the will 
 of said Alpha Warren. Appellant was married to Alpha Warren on 
 June 15, 1875, and was at that time a widow having a daughter by a 
 former husband, but never had any children by Alpha Warren, his only 
 child being said John H. Warren. After answer filed, the bill was 
 amended by making the children of John H. Warren defendants. Sub- 
 sequently, on October 4, 1893, a supplemental bill was filed by appellant 
 against said John H. Warren and his children. The questions in the 
 case arise upon the issues made by the answers to the supplemental 
 bill and the replications to such answers. The supplemental bill prays 
 for an allotment of dower and homestead; for an accounting by the 
 trustee and executor; for a disallowance of certain payments made by 
 him for special assessments and special taxes levied against real prop- 
 erty of the estate in Rockford; for removal of the trustee, and for gen- 
 eral relief, etc. The answers deny that complainant is entitled to 
 any of the relief asked for, and set up release and settlement by her 
 and payment to her and receipt by her of one-third of the balance of 
 the rents and interest given to her by the will, etc. The decree of the 
 circuit court finds that the will of Alpha Warren was admitted to pro- 
 bate on November 15, 1888; that John H. Warren entered upon the 
 
LEADING AND ILLUSTEATIVE OASES. 295 
 
 duties of executor and trustee thereunder; that complainant aflSrmed 
 said will, and did not relinquish any of the provisions thereof, and is 
 not entitled to either dower or homestead in the lands of her deceased 
 husband; that the personal estate has been and will be exhausted in 
 payment of widow's award, claims allowed, and the compensation of 
 the trustee to be allowed; that since the testator's death the city of 
 Rockford has carried on proceedings by special assessment for the im- 
 provement of public streets and the construction of public sewers; that 
 such assessments against the lands of the testator amount to $1,441; 
 that complainant has been wrongfully charged with one-third thereof, 
 to wit, §480.33; that under the will she is only charged with one-third 
 of the ordinary taxes and repairs. The decree orders that John H. 
 Warren pay to complainant said sura of $480.83, with five per cent, in- 
 terest, and certain costs, within forty days, etc., and have execution 
 therefor, and that the question of the executor's compensation be re- 
 served, etc. 
 
 The will of Alpha Warren appoints his son his " executor to settle and 
 manage my estate, and also my trustee to hold and keep my estate in- 
 tact during his natural life-time: " and, after providing for the pay- 
 ment of debts and funeral expenses out of the personal property, it 
 proceeds as follows: "I direct that the annual income of my estate, 
 personal and real, shall be used as follows: My executor and trustee 
 shall be entitled to and shall receive a reasonable compensation for his 
 services. The annual taxes and insurance, and also all reasonable re- 
 pairs and improvements, shall be provided for out of the annual rents 
 and interest; and of the annual income not used for the purposes above 
 named, one-third shall belong to my wife, Eliza A. Warren, during her 
 natural life, and also a suitable house for her residence during the same 
 period; and two-thirds of the above named income shall belong to my 
 son, John Henry Warren, for the support of himself and family during 
 his natural life. At the decease of my wife, Eliza A. Warren, the one- 
 third of income belonging to her as dowry shall revert to my estate 
 for the benefit of my lawful heirs. Subject to the direction and con- 
 trol of the said John H Warren, the trustee of my estate, and after the 
 decease of both my wife, Eliza A. Warren, and of my son, John H. 
 Warren, then my entire estate shall belong in equal values to the 
 children of John H. Warren who shall survive him ; said sura to be held 
 in trust for each one Jintil he or she shall be twenty-one years of age. 
 My executors, after consulting with the probate judge, and both judge 
 and executor shall decide that a sale or exchange of any of my real 
 estate in the city of Rockford will benefit my heirs interested in said 
 estate, such sale or exchange and reinvestment may be made with the 
 approval of the probate court, but not otherwise. And my son, John 
 H. Warren, and my wife, Eliza A. Warren, shall not be required to pay 
 rent for the use of the residence that they shall occupy which shall be 
 
298 LEADING AND ILLUSTRATIVE CASES. 
 
 suitable for their respective families, but they are not to occupy the 
 double houses that are arranged for different families at one and the 
 same time as tenants." On November 27, 1888, appellant executed 
 under her hand and seal an instrument by which, in consideration of 
 the payment and approval of the award allowed her on that day, and 
 for other good and valuable considerations, she agreed with those in- 
 terested in the estate as follows: "First. I, widow of said deceased, do 
 hereby covenant and agree to accept the legacy and interest given in 
 and by the last will of said deceased, my award, and the claim of §200 
 filed by me in said estate, in full of all claim to or right or interest in 
 the estate, real, personal, or mixed, of said deceased, of every name and 
 nature; and any other interest is hereby expressly waived and released 
 to said estate." The appellant did not renounce the provisions of the will 
 within one year after letters testamentary were issued. During Decem- 
 ber, 1888, and in each mouth in the years 1889, 1890, 1891, and 1893, she 
 has re^eived moneys from the trustee and executor out of the income 
 of the estate. She was paid her widow's award, about $1,300, and the 
 claim of S300 against the estate, which is above referred to. 
 
 The first question arising upon the assignments of error is whether 
 or not the appellant is entitled to have dower assigned to her in the 
 lands of her deceased husband. Sections 10 and 11 of the present dower 
 act, which was approved March 4, 1874, and went into force on July 1, 
 1874, are as follows: (10) "Any devise of land, or estate therein, or any 
 other provision made by the will of a deceased husband or wife for a 
 surviving wife or husband, shall, unless otherwise expressed in the 
 will, bar the dower of such survivor in the lands of the deceased, unless 
 such survivor shall elect to and does renounce the benefit of such de- 
 vise or other provision, in which case he or she shall be entitled to 
 dower in the lands and to one-third of the personal estate after the 
 payment of all debts." (11) "Any one entitled to an election under 
 either of the two preceding sections shall be deemed to have elected to 
 take such jointure, devise or other provision, unless, within one year 
 after letters testamentary or of administration are issued, he or she shall 
 deliver or transmit to the county court of the proper county a written 
 renunciation of such jointure, devise or other provision." Section 13 
 prescribes the form of renunciation, by the terms of which the surviv- 
 ing husband or wife does thereby " renounce and quitclaim all claim to 
 the benefit of any . . . devise or other provision made tome by the 
 last will and testament of the said . . . and I do elect to take in 
 lieu thereof my dower and legal share in the estate of the said . . ." 
 As the appellant did not renounce the provisions of the will within 
 one year after letters testamentary were issued to the executor of Alplia 
 Warren's estate, it would seem to be clear that she had elected to take 
 under the will, and that she is not entitled to an assignment of dower 
 in the testator's lands under the decisions of this court. Cowdrey v. 
 
LEADING AND ILLUSTEATIVE CASES. 297 
 
 Hitclicoclc, 103 111. 262; Stunz v. Stunz, 131 111.310, 23 N. E. K. 407; Crib- 
 ben V. Cribben. 136 111. 609, 27 N. E. R. 70. 
 
 It is contended by counsel for appellant that the acceptance by the 
 ■widow of the provision made for her in the will will not bar her dower, 
 vinless such provisions shall be a reasonably adequate compensation for 
 the loss of what she would have been entitled to under the statute if 
 there had been no will. This contention is based upon the decision of 
 the circuit court of the United States for the seventh circuit in the case 
 of United States v. Duncan, 4 McLean, 99, Fed. Cas. No. 15,002, where a 
 liberal construction was given to sections 39 and 40 of the act of this 
 state in regard to wills in force in 1839 (Rev. Laws, 1833, p. 634). But a 
 comparison of sections 39 and 40 of the act of 1889 with sections 10 and 
 11 of the act of 1874 will show that the phraseology of the former is 
 different from the phraseology of the latter. By the terras of said sec- 
 tion 11, if the surviving husband or wife fails to renounce within the 
 year, he or she shall be deemed to have elected to take the provision 
 given by the will. The directions of the statute are explicit, and a 
 compliance with them can work no harm to any of the parties con- 
 cerned. Section 10 directs that the devise or other provision made bythe 
 will shall be a bar to dower "unless otherwise expressed in the will." 
 If, therefore, a husband desires to make, in his will, a provision for his 
 wife, which shall not operate as a bar to her dower, he can therein state 
 that such provision is not to be in lieu of dower, in which case she will 
 take both her dower and what is devised or bequeathed to her. If the 
 widow deems such devise or bequest an inadequate compensation for 
 dower, she can file her renunciation within the time specified, and 
 thereby take what she is entitled to under the statute. 
 
 In the present case, however, we are not satisfied that the provision 
 made for the appellant by the will is not a reasonably adequate com- 
 pensation for her dower, if the doctrine of the Duncan Case should be 
 held to be applicable. It is conceded that the personal estate of the 
 deceased testator has been exhausted in the payment of the debts and 
 expenses of administration, and that no personal property would have 
 passed to appellant if her husband had died intestate. All that she 
 could have received in any event was dower in the lands. All that her 
 dower, when assigned and set off, would amount to, would be the right 
 to use the one-third in value of her husband's lands, and draw the rents 
 and profits thereof, during her life; The will, by directing that one- 
 third of the annual rents and interest, after deducting certain expend- 
 itures, shall belong to her, gives her what is substantially equivalent to 
 the value of her dower in the real estate. Counsel refer us to a number 
 of oases which hold that the wife cannot be deprived of her dower by 
 a testamentary disposition in her favor, so as to put her to her election, 
 unless the testator has declared the same to be in lieu of dower, either 
 in express words or by necessary implication. Under the rule laid down 
 
298 LEADING AND ILLUSTEATIVE CASES. 
 
 in most of these cases the testator will not be presumed to have in- 
 tended the provision in his vrill to be a substitute for dovcer, unless the 
 claim of dower would be inconsistent with the will or so repugnant to 
 its provisions as to disturb and defeat them. Adsit v. Adsit, 8 Johns. 
 Ch. 448; Smith v. Keniskern, 4 Johns. Ch. 9; Wood v. Wood, 5 Paige, 
 595; Fuller v. Yates, 8 Paige, 325; Church v. Bull, 2 Denio, 430. The 
 decisions referred to will be found, upon examination, to have been 
 rendered in the absence of such statutory provisions as exist in this 
 state, and such decisions are consequently inapplicable to the case at 
 bar. The great object in construing the wills which the courts there 
 had under consideration was to ascertain the intention of the testator 
 upon the question whether or not the testamentary disposition was to 
 be taken in lieu of dower. Even in the Duncan Case, supra, the rea- 
 soning of the court proceeds largely upon the ground that the testator 
 will not be presumed to have intended his bequest or devise to be a 
 substitute for dower if its amount or value is, to a very considerable 
 extent, less than the amount or value of the dower. But under the 
 peculiar terms of the Illinois statute the provision in the will is declared 
 to be a bar, unless the intention that it shall not be a bar is expressed 
 in the will. The statute makes the silence of the testator the conclu- 
 sive index to his intention, and it also makes the failure to renoiince 
 within a specified time conclusive evidence that the surviving husband 
 or wife has elected to take under the will. 
 
 We think, however, that if the rules laid down in the authorities re- 
 lied upon are applied to the interpretation of the will in this case, there 
 will be disclosed an intention to make the testamentary provisions a 
 substitute for dower and not a gift in addition to it. Alpha Warren 
 drew his own will, and he therein designates the portion of the "annual 
 rents and interest" given to his wife as "one-third of income belonging- 
 to her as dower." If the one-third of the income specified in the will 
 was to be her dower or "dowry," he could not have intended that she 
 should have another dower outside of and in addition to that given by 
 the will. Again, after directing that one-third of his net annual in- 
 come shall belong to his wife, he directs that the other two-thirds 
 thereof shall belong to his son, John H. Warren. If the wife was to 
 have dower besides the third of the income given her by the will, the 
 son could not take the two-thirds of the income therein devised to him. 
 The widow, in such case, would virtually have two-thirds, and only one- 
 third would be left for the son. It follows that the claim of dower on 
 the part of the widow is inconsistent with the provisions made for the 
 son in the will, and so repugnant to them that, if allowed, it would 
 defeat them. A case might arise where the widow, in accepting the 
 testamentary disposition, acted without full knowledge and under- 
 standing of her true situation and rights, and of the consequence of 
 her acceptance. 4 Kent, Comm., p. 58. It might then be necessary to 
 
LEADING AND ILLUSTRATIVE CASES. 299 
 
 determine whether the lapse of more than a year without renunciation 
 would cut her off from the privilege of making her election. United 
 States V. Duncan, supra; Cowdrey v. Hitchcock, supra. But here it ap- 
 pears that the widow was correctly advised as to her testamentary 
 rights and her statutory rights and the value of the one as compared 
 with the other. 
 
 Counsel further insists that the dower of the appellant is not harred 
 because the devise is not to the wife, but to the executor in trust for 
 her benefit. Under the English statute of uses a jointure was not avail- 
 able to bar the widow's dower, unless the settlement was to the wife 
 herself, and not to any other person in trust for her. Van Arsdale v. 
 Van Arsdale, 26 N. J. Law, 404. It has also been held that a devise of 
 lands to trustees for the benefit of the wife does not necessarily indi- 
 cate intention to defeat dower, as the trustee may take the lands sub- 
 ject to its legal incidents, that of dower included. Wood v. Wood, 
 supra; Church v. Bull, supra. But the language of our statute is broad 
 enough to include devises to trustees for the benefit of the wife, as well 
 as those directly to the wife herself. It would be a narrow construc- 
 tion that wouldexolude a devise to a trustee from the meaning of the 
 following words in section 10: "Any other provision made by the will 
 of a deceased husband or wife for a surviving wife or husband." The 
 use of the word " for " forbids a limitation of the meaning to devises 
 made to the wife. 
 
 The next question is whether the appellant is entitled to have a home- 
 stead assigned to her. The will provides not only that there shall be- 
 long to the appellant one-third of the net annual income during her 
 natural life, but "also a suitable house for her residence during the same 
 period," and that she shall not be required to pay rent for the use of 
 ^uch residence. Since her husband's death she has continued to reside 
 in the same house, belonging to her estate, in which she lived with 
 him at the time of his death, and several years prior thereto. Section 
 11, as above quoted, directs that any one entitled to an election under 
 section 10 "shall be deemed to have elected to take such jointiire, 
 devise or other provision, unless " there is a renunciation within the 
 specified year. The provision which such person shall be deemed to 
 have elected to take is the whole of the provision made for him or her 
 in the will, and not a part of such provision. The devise elected to be 
 taken will be the whole of the devise given, and not a part thereof. It 
 follows that when appellant, by her failure to renounce, elected to take 
 one-third of the net annual income for her natural life, she also elected 
 to take therewith a suitable house for her residence during the same 
 period. Hence her continued residence in the house where she and her 
 husband lived when he died will be presumed to be in the exercise of 
 her right thereto as given by the will, and not in the exercise of her 
 statutory right of homestead. Stunz v. Stunz, supra. The statute gives 
 
300 LEADING AND ILLUSTEATIVE CASES. 
 
 a householder having a family an estate of homestead to the extent in 
 value of 81,000, and continues such exemption after his death to his 
 surviving wife, so long as she continues to occupy the homestead. Eev. 
 St., c. 53, §i; 1, 2. The will in this case does not limit the value of ap- 
 pellant's residence to §1,000, or any other amount, but only requires 
 that the house shall be suitable for her residence. The residence pro- 
 vided for by the will is not the same as the homestead given by the 
 statute. The general rule is that a person cannot accept and reject the 
 same instrument. Birmingham v. Kirwan, 3 Schoales & L. 449; 3 
 Story, Eq. Jur., g 1077, note 4. It is a maxim of equity not to permit 
 the same person to hold under and against a wil). Brown v. Pitney, 39 
 111. 468 ; Ditch v. Sennott, 1 17 111. 363, 7 N. E. R 636. The appellant cannot 
 accept the will as to dower and reject it as to the provision which it 
 makes for a homestead or residence. Nor does the law contemplate 
 that a householder can have two homesteads. Tourville v. Pierson, 39 
 111. 446. Appellant, having elected to take a house for her residence 
 according to the terms of the will, cannot have a homestead set apart 
 to her under the statute. It is true that a homestead under the stat- 
 ute is exempt " from the laws of conveyance, descent, or devise," ex- 
 cept as therein provided ; but where the testator directs in his will that 
 his wife shall have a suitable house for her residence during her life 
 without payment of rent therefor, and she accepts the provision of the 
 will, she cannot insist upon her statutory right of homestead. Cow- 
 drey V. Hitchcock, supra. 
 
 The next question arises upon a cross-error assigned by appellees, 
 and is whether the appellant is justly chargeable with malfeasance as 
 trustee in discharge of certain special assessments levied upon real 
 property of the estate for paving streets and putting in sewers. The 
 will directs that " the annual taxes and insurance, and also all reason- 
 able repairs and improvements, shall be provided for out of the annual 
 rents and interest," before one-third of the annual income shall belong 
 to the wife. It cannot be said that a direction to pay "annual taxes " 
 is a direction to pay special assessments. A special assessment im- 
 posed for a special purpose has none of the distinctive features of the 
 ordinary annual tax, which is imposed for some general or public ob- 
 ject. Illinois Cent. R. Co. v. City of Decatur, 126 111. 93, 18 N. E. R.^15; Id., 
 147 U. S. 190, 13 Sup. Ct. 293. But we see no reason why the paving of 
 a street in front of a lot, and the putting down of a sewer therein, 
 should not be regarded as " reasonable improvements." The improve- 
 ment may be local as affecting the locality in which the property is 
 situated, but it is of special benefit to the particular property assessed, 
 because it increases its value; not only the permanent value inuring 
 to the benefit of the reversioner, but also the rental value during the 
 existence of the life estate. The widow must pay the taxes and charges 
 upon the property assigned to her for dower. Peyton v. Jeffries, 50 111. 
 
LEADING AND ILLUSTEATIVE CASES. 301 
 
 143; Whyte v. Mayor, etc., 2 Swan, 364; Haulenbeck v. Cronkright, 28 
 N. J. Eq. 407. In Whyte v. Mayor, etc., supra, it was held that, where 
 a lot had been assigned to a widow as part of her dower, the cost of 
 paving the street in front of the lot was a proper charge against her. 
 When dower is assigned the widow becomes seized of a freehold estate 
 for life in the portion allotted to her. She is in by relation from her hus- 
 band's death and is in of the seisin of her husband. 4 Kent, Comm., 
 §§61, 69. Standing in his place, she must be " subjected to the charges, 
 duties and services to which the estate may be liable, in proportion, 
 certainly, to her interest therein.'' Peyton v. Jeffries, supra. Here 
 the appellant, being entitled to one-third of the net annual rents and 
 interest during her life, may be regarded as a tenant for life. The 
 tenant for life is bound, out of the rents and profits, to keep down all 
 incidental charges upon the land which accrue during the continuance 
 of his or her estate, as for repairs, taxes, and the like. Whyte v. Mayor, 
 supra. A special assessment for paving and sewerage, as well as taxes 
 and repairs, may be included in such incidental charges. If, under the 
 terms of the will of Alpha Warren, the appellant cannot be charged 
 with her proportionate share of the special assessments, then the ap- 
 pellee John H. Warren cannot, by the same construction, be charged 
 with his proportionate share thereof. If such assessments are not to 
 be paid out of the rents and interest, how are they to be paid? It is 
 suggested that application can be made to a court of equitj' for leave 
 to sell some of the land in order to raise the amount required; but the 
 amount of appellant's income might be diminished by such a sale as 
 much as it would be by paying the assessments out of the rents and 
 interest; and, not only so, but a sale of a portion of the property for 
 such a purpose would defeat the manifest intention of the testator as 
 disclosed by that clause of the will which directs "my trustee to hold 
 and keep my estate intact during his natural life-time." For the rea- 
 son thus stated, we think that the decree of the circuit court was cor- 
 rect in holding that appellant was not entitled to dower and homestead- 
 but was erroneous in holding that appellant was wrongfully charged 
 with one-third of said special assessments, and in ordering that the 
 executor and trustee should pay to the appellant the amount so charged 
 to her. For this error the decree to the extent here indicated is re- 
 versed, and the cause is remanded to the circuit court for further pro- 
 ceedings in accordance with the views herein expressed. Reversed. 
 
303 LEADING AND ILLUSTEATIVE OASES. 
 
 CHAPTER VII. 
 
 ESTATES FOR YEARS. 
 
 Sexton V. Chicago Storage Co. et al. 
 
 Decision by Supreme Court of Illinois, June 15, 1889. Opinion by Scho- 
 
 field, J. 
 
 (Reported in 129 III. SIS.) 
 
 The evidence sufficiently proves that "the Chicago Storage Company 
 has ceased doing business." This is not contested by counsel for ap- 
 pellees, though they seek to avoid its effect by the circumstance which 
 they claim to be proved, that such failure is solely because of the 
 seizure and appropriation of its property for the payment of rent due 
 from Frank F. Cole alone to appellant. It is therefore manifest that 
 in determining vehether the corporation has left debts unpaid, so as to 
 bring the case vrithin section 25, chapter 32, Revised Statutes 1874, as 
 amended by the act of May 22, 1877, in relation to corporations (Laws 
 1877, p. 66), the first and most important question is whether the stor- 
 age company is an assignee of the term of Frank F. Cole, or only a sub- 
 lessee under him; for, if it is an assignee of the term of Frank H. Cole, 
 it stands in his shoes as respects his covenant to pay rent, and its prop- 
 erty is liable to be seized and appropriated to the payment of the rent 
 by distress, as was done. If, however, it is but a sublessee under Frank 
 F. Cole, it is liable only on its covenants to him. 
 
 The leases to Frank F. Cole are " for and during " the terms named, 
 "and until the 1st day of May, 1888." The lease executed by Frank F. 
 Cole to the Chioaj^o Storage Company is of precisely the same premises 
 included by the leases to him, and it is in the identical language of 
 those leases, " for and during " the term named, " and until the 1st day 
 of May, 1888;" so that the terms all end at the same instant of time. 
 No space of time, however minute, therefore, can by any possibility 
 remain after the term of the storage company l^as ended before the 
 expiration of the term of Cole, in which he could enter upon or accept 
 a surrender of the premises. The general principle, as held by all the 
 authorities, is that, where the lessee assigns his whole estate, without 
 reserving to himself a reversion therein, a privity of estate is at once 
 created between his assignee and the original lessor, and the latter 
 then has a right of action directly against the assignee on the cove- 
 nants running with the land, one of which is that to pay rent; but if 
 the lessee sublets the premises, reserving or retaining any reversion, 
 however small, the privity of estate between the sublessee and the 
 original landlord is not established, and the latter has no right of ac- 
 
LEADING AND ILLUSTEATIVE CASES. 303 
 
 tion against the former, there being neither privity of contract nor 
 privity of estate between them. The chief difficulty has been in deter- 
 mining what constitutes such reservation of a reversion. The more 
 recent English decisions, and all of the text-books treating of the ques- 
 tion which have been accessible to us, hold that, where all of the les- 
 see's estate is transferred, the instrument will operate as an assign- 
 ment notwithstanding that words of devise instead of assignment are 
 used, and notwithstanding the reservation of a rent to the grantor, and 
 a right ef re-entry on the non-payment of rent or the non-performance 
 of the other covenants contained in it. 1 Piatt, Leases, 1-9, 102; Woodf. 
 Landl. & Ten. (7th ed.) 311; Wood, Landl. & Ten., p. 131, § 93; Tayl. 
 Landl. & Ten. (8th ed.) 16, note 3; Bac. Abr.,tit. "Leases," H. 3; 3 Prest. 
 Conv. 124, 125; Beardman v. Wilson, L. R. 4 C. P. 57; Doe v. Bateman, 
 2 Barn. & Aid. 168; Wollaston v. Hake will, 3 Scott, N. R. 616. Undoubt- 
 edly many cases may be found wherein the lessee has granted to an- 
 other party his entire term, retaining no reversionary interest in him- 
 self; and it has been held that the relation, as between the parties, was 
 that of landlord and tenant, or, perhaps more correctly, lessee and sub- 
 lessee, because such was clearly the intention of the parties; but this 
 was the result of contract only, and not conclusive upon the original 
 landlord, since he was not a party to it. The relation of landlord and 
 assignee of a term, however, it has been seen, does not result from con- 
 tract, but from privity of estate, and therefore, when the original lessee 
 has divested himself of his entire term, and thus ceased to be in privity 
 of estate with the original landlord, the person to whom he has trans- 
 ferred that entire term must necessarily be in privity of estate with 
 his original landlord, and hence liable as assignee of the term. See 
 Wood, Landl. & Ten. 133, and authorities cited in note 1; Van Rensse- 
 laer V. Hays, 19 N. Y. 68; Pluck v, Digges, 5 Bligh (N. S.), 31; Thorn v. 
 Woollcombe, 8 Barn. & Adol. 586; Carpenters' Union v. Railway Co., 
 45 Ind. 381; Smiley v. Van Winkle, 6 Cal. 605; Blumenbterg v. Myres, 
 33 Cal. 93; Schilling v. Holmes, 33 Cal. 230. 
 
 Counsel for appellees contend, and the courts below ruled accord- 
 ingly, that the reservation of a new and different rent, or the reserva- 
 tion to the lessor of the right to declare the lease void for the non-per- 
 formance of its covenants, and to re-enter for such breach, or at the 
 end of the term, coupled with the covenant of the lessee to surrender 
 at the end of the term or upon forfeiture of the term for breach of 
 covenant, make the letting by the lessee a subletting and not an as- 
 signment of the term, notwithstanding the lessee has retained in him- 
 self no part of the term; and they rely upon Collins v. Hasbrouck, 56 
 N. Y. 157; Ganson v. Tifft, 71 N. Y. 48; McNeil v. Kendall, 128 Mass. 
 345; and Dunlap v. Bullard, 131 Mass. 161, — as sustaining this conten- 
 tion. There is general language in Collins v. Hasbrouck quite as broad 
 as claimed, but no question therein presented called for its use, and its 
 
304 LEADING AND ILLTJSTEATIVE CASES. 
 
 meaning ought to be limited by the facts to which it was applied. 
 There the first original lease was for the term often years from the 1st 
 of April, 1864; the second was for the term of nine years from the 1st 
 of April, 1865. Thus both expired April 1, 1874. The sublease was for 
 the term of two years and seven months from the 1st of September, 
 1867,— that is to say, until the 1st of April, 1870,— with the privilege, 
 however, to the lessee to extend the term four years, or until April 1, 
 1874, by giving two months' notice, etc. The plaintiff claimed that the 
 leases were forfeited by the subletting, and the court so held. No dis- 
 tinction was taken, in the opinion of the court, between an absolute 
 demise until the end of the term and a mere privilege to have the de- 
 mise extended four years, which was until the end of the term. We 
 have held that a similar clause in a lease is not a present demise, but a 
 mere covenant, which may be specifically enforced in chancery, or 
 upon which an action at law may be maintained for a breach of cove- 
 nant. Hunter v. Silvers, 15 111. 174; Sutherland v. Goodnow, 108 111. 
 538. And it would seem quite evident that in no view could the rever- 
 sion have passed until after the grantee elected to have the term for 
 four years longer; and so, when the lease was executed, there was still 
 a revel'sionary interest in the sublessor of four years, subject, though 
 it may have been, to be thereafter divested by the election of the sub- 
 lessee. In Ganson v. Tifft, the sublease provided that at the expiration 
 of the term, or other sooner determination of the demise, the lessee 
 should surrender the demised premises to the lessors, and the court 
 said: " This constitutes a sublease of the premises, and not an assign- 
 ment of the term." In Stewart v. Railroad Co., 102 N. Y. 601, 8 N. E. 
 R. 200, there was a demise by the lessee to the Long Island Railroad 
 Company for a term longer than that held by the lessee. There was 
 also a different rent to be paid than that provided to he paid by the 
 original lease, and there was a reservation of the right to re-enter for 
 non-payment of rent, etc. It was held that, as to the original land- 
 lord, this amounted to an assignment of the lease, and that its char- 
 acter was not destroyed by the reservation therein of a new rent to the 
 assignor with a power of re-entering for non-payment of rent, or by its 
 assumption of the character of a sublease. The court, after laying 
 down the rule substantially as we have heretofore stated it to be rec- 
 ognized by the text-books and recent English decisions, said: "The 
 effect, therefore, of a demise by a lessee for a period equal to or exceed- 
 ing his whole term is to divest him of any reversionary right and ren- 
 der his lessee liable, as assignee, to the original lessor, but at the same 
 time the relation of landlord and tenant is created between the parties 
 to the second demise, if they so intended ; " citing Tayl. Landl. & Ten. 
 (7th ed.), § 109, note; Id., § 10, note 5; 1 Washb. Real Prop. (4th ed.) 515, 
 note 6; Adams v. Beach, 1 Phila. 99, 178; Carpenters' Union v. Railway 
 Co., 45 Ind. 381; Lee v. Payne, 4 Mich. 106; Lloyd v. Cozens, 2 Ashm. 138; 
 
LEADING AND ILLUSTRATIVE CASES. 305 
 
 Wood, Landl. & Ten. (Banks' ed.) 347, — and then adding: "These rules 
 are fully recognized in this state. Prescott v. De Forest, 16 Johns. 159; 
 Bedford v. Terhune, 30 N. Y. 457; Davis v. Morris, 36 N. Y. 569; Wood- 
 hull V. Rosenthal, 61 N. Y. 382, 391, 393." In speaking of the ruling in 
 Collins V. Hasbrouck, supra, after stating the facts, the court said: 
 " In the opinion the question is discussed whether the sublease 
 amounted to an assignment of the term of the original lease, or a mere 
 subletting or reletting of part of the demised premises. This question, 
 in view of the result reached on the question of waiver, ceased to be 
 controlling, but, in discussing it, the learned judge delivering the 
 opinion made some remarks touching the effect of reserving a new 
 rent in the sublease, and of reserving to the original lessee a right of 
 re-entry for a breach of condition by his lessee, which have given rise 
 to some confusion. The features of the instrument which are above 
 referred to would be proper subjects of consideration for the purpose 
 of determining whether the relation of landlord and tenant was cre- 
 ated as between the original lessee and his lessee, and bore upon the 
 question then before the court, viz., whether the second lease was a 
 subletting or reletting of part of the demised premises, which consti- 
 tuted a breach of the covenant not to sublet or relet. But the question 
 of privity of estate between the original lessor and the lessee of his 
 lessee was not in the case. The determination of the question depends 
 upon whether the whole of the term of the original lessee became 
 vested in his lessee, and the circumstances that the second lease re- 
 serves a different rent or a right to entry for breach of condition are 
 immaterial." And, after quoting many authorities to sustain that 
 position, the opinion proceeds: "The cases which hold that where a 
 lessee subleases the demised premises for the whole of his term, but his 
 lessee covenants to surrender to him at the end of the term, the sub- 
 lease does not operate as an assignment, proceed upon the tlieory that, 
 by reason of this covenant to surrender, some fragment of the term 
 remains in the original lessor. In most of the cases, and in the earlier 
 cases in which this doctrine was broached, the language of the cove- 
 nant was that the sublessee would surrender the demised premises on 
 the last day of the term.'' 
 
 It is true that in this case, as has been before stated, the lessee de- 
 mised for a number of years beyond the term for which he held; but 
 it is impossible that, upon principle, there can be any difference be- 
 tween a demise of an entire term, which can leave no possible space of 
 time remaining in the lessor, and a demise for an additional time be- 
 yond the term; for, since no one can demise what he does not have, all 
 that can pass by the demise in the latter instance is the entire term of 
 the lessor. If, here, the demise of Frank F. Cole vests his entire inter- 
 est in the property, as it professes to do, " for and diiring " the re- 
 mainder of his term, "and until the 1st day of May, 1888," it cannot be 
 20 
 
306 LEADING AND ILI.IISTEATIVE CASES. 
 
 that any portion, however short in duration, of the term granted him 
 by the leases of appellant, remained in him, because they are limited 
 by the same words precisely, namely, " for and during " the term, " and 
 until the 1st day of May, 1888." In McNeil v. Kendall, supra, there 
 were easements reserved from the effect of the lease. In Dunlap v. 
 BuUard, supra, however, the facts are analogous in principle to those 
 here involved; and it was held that the demise of the entire term of 
 the lessee was a sublease and not an assignment, because of the right 
 reserved in the lease for the lessor to re-enter and resume possession 
 for a breach of the covenants. But this is held upon the ground that, 
 under the decisions of that court, the right to re-enter and forfeit the 
 lease is a contingent reversionary estate in the property; the court hav- 
 ing previously held, in Austin v. Parish, 31 Pick. 315-333, and in Church 
 V. Grant, 3 Gray, 143-147, that, where an gstate is conveyed to be held 
 by the grantee upon a condition subsequent, there is left in the grantor 
 a contingent reversionary interest, which is an estate capable of devise. 
 It has been suggested that these decisions are predicated upon a local 
 statute (see Tied. Eeal Prop., note 1 to sec. 377, and note 1, p. 904, 6 Amer. 
 & Eng. Cyclop. Law), but whether this be true or not, the decisions are 
 plainly contrary to the principles of the common law. The right to 
 enter for breach of condition subsequent could not be alienated as it 
 could have been had it been an estate; and Coke says: "The reason 
 hereof is for avoiding of maintenance, suppression of right, and stirring 
 up of suits; and therefore nothing in action, entry or re-entry can be 
 granted over." Co. Litt., § 347 (314a). See also 1 Com. Dig., tit. "As- 
 signment," C. 2, p. 688; 3 Com. Dig., tit. "Condition," O. 1, p. 134; 4 
 Kent, Comm. (8th ed.) 136, 133; 1 Prest. Est. 20, 21; Shep. Touch. 117, 
 131. It is said in 1 Washb. Real Prop. (3d ed.) 474, 451: "Such a right 
 \i. e., to enter for breach of condition subsequent] is not a reversion, 
 nor is it an estate in land. It is a mere chose in action, and, when en- 
 forced, the grantor is in by the forfeiture of the condition and not by 
 the reverter." To like effect is also Tied. Real Prop., § 377; 6 Amer. & 
 Eng. Cyclop. Law, 903; Tayl. Landl. & Ten. (8th ed.), § 393; Southard 
 V. Railroad Co., 36 N. J. Law, 31: Webster v. Cooper, 14 How. 501; 
 Sohulenberg v. Harriman, 21 Wall. 63; Nicoll v. Railroad Co., 13 N. Y. 
 131. It is true that by section 14 of our statute in relation to landlord 
 and tenant (Rev. St. 1874, p. 659), "the grantees of any demised lands, 
 tenements, rents or other hereditaments, or of the reversion thereof, 
 the assignees of the lessor of any demise, and the heirs and personal 
 representatives of the lessor, grantee or assignee shall have the same 
 remedy by entry, action or otherwise for the non-performance of any 
 agreement in the lease, or for the recovery of any rent, or for the doing 
 of any waste or other cause of forfeiture, as their grantor or lessor might 
 have had if such reversion had remained in such lessor or grantor." But 
 this does not make what was before but a chose in action an estate. 
 
LEADING AND ILLUSTEATIVE OASES. 307 
 
 The right to enter for breach of covenant is still but a remedy for en- 
 forcing performance of a contract which may be defeated by tender. 
 Tayl. Landl. & Ten. (8th ed.) 302. As is said by the court in De Peyster 
 T. Michael, 6 N. Y. 507, in speaking of the effect of a like statute of 
 New York: " The statute only authorized the transfer of the right, and 
 did not convert it into a reversionary interest nor into any other estate." 
 See also Nicoll v. Railroad Co., 13 N. Y. at p. 139. It follows that, in 
 our opinion, the rule assumed to be followed in Collins v. Hasbrouok, 
 Ganson v. Tifft, and Dunlap v. Bullard, supra, is not in conformity 
 with the common law, and that it cannot, therefore, be applied here. 
 
 The objection that the written assent of appellant was not obtained 
 to the assignment cannot be urged by appellees. The clause in the 
 leases, in that respect, is for the benefit of, and can be set up by, appel- 
 lant alone. He may waive it if he will; and if he does not choose to 
 set it up no one else can. Webster v. Nichols, 104 111. 160; Willoughby 
 V. Lawrence, 116 111. 11, 4 N. E. R. 356; Arnsby v. Woodward, 6 Barn. 
 & C. 519; Rede v. Farr, 6 Maule & S. 131. 
 
 But counsel insist that appellant is estopped by his conduct to now 
 allege that the instrument executed by Frank F. Cole is an assignment. 
 We have carefully considered the evidence bearing upon this question 
 and we are unable to concur in this view. Appellant did refuse to 
 acquiesce in the construction placed by appellees upon the lease of 
 Frank F. Cole, and to settle with them upon that basis. He refused to 
 release Frank F. Cole and accept the storage company alone; and he 
 refused to accept the amount of rent which the storage company obli- 
 gated itself to pay Frank F. Cole as a satisfaction of Frank F. Cole's 
 covenant to pay rent to him; but he was all the time willing that the 
 storage company should remain in possession, provided the rent due 
 him by his lease to Frank F. Cole was paid to him. He knew the terms 
 of the lease of Frank F. Cole to the storage company, and he after- 
 wards received rent from it and permitted it to remain in possession. 
 The lessee continues, notwithstanding the assignment, liable upon his 
 express covenant to pay rent; and the assignee becomes liable upon 
 the same covenant, by reason of his privity of estate, because that cov- 
 enant runs with the land. Tayl. Landl. & Ten. (8th ed.), ^438; 3 Piatt, 
 Leases, 356; Walton v. Cronly, 14 Wend. 63; Bailey v. Wells, 8 Wis. 
 141. Since appellant might sue Cole on his express covenant to pay 
 rent, and, he having fled the state, take out an attachment in aid 
 thereof, we perceive no reason why he might not at the same time take 
 garnishee process against the storage company, and recover any debt 
 which it owed him. There is certainly nothing in this inconsistent 
 with his ultimately enforcing his liability against that company as 
 assignee of Cole's term. It is not shown that the storage company has 
 been,by anythingdoneorsaidby appellant.induced to do to its prejudice 
 anything that it would not otherwise have done. No judgment has 
 
308 LEADING AND ILLUSTEATIVE CASES. 
 
 been recovered against it, as garnishee of Frank F. Cole, for rent due 
 from it to Frank. F. Cole, nor does it appear, otherwise, to have been 
 compelled to pay money or incur liability by reason of any act or word 
 of appellant proceeding upon the recognition of its being liable to 
 Frank F. Cole, as such lessee, only. For the reasons given, the decree 
 of the superior court, and the judgment of the appellate court, are re- 
 versed, and the cause is remanded to the superior court for further 
 proceedings consistent with this opinion. 
 
 Newman v. Rutter. 
 
 Decision by Supreme Court of Pennsylvania, May, 1839. Opinion by 
 
 Rogers, J. 
 
 (Reported in 8 Watts, SI.) 
 
 One of the objections to the judgment of the court of common pleas 
 is their answer to the fourth point. The court instructed the jury, in 
 answer to that point, that to entitle the plaintiff to enter agreeably to 
 the terms of the deed, it must appear not only that the rent was in arrear 
 and unpaid, but that there was not sufHcient personal property on the 
 lot, liable to be distrained, to enable plaintiff effectually to compel pay- 
 ment of the rent by distress. By the terms of the deed it is stipulated 
 that if the rent should be in arrear sixty days, the grantor might dis- 
 train ; and if a sufBcient distress should not be on the premises, that 
 the owner of the rent might enter on the lots and repossess them, as 
 though the deed had not been made. The deed must he construed ac- 
 cording to the intention of the parties; and, to entitle the plaintiff to 
 enter, it must appear not only that the rent was in arrear for the time 
 specified, but that upon a distress being made by him, it was found 
 that there was not sufBcient property on the premises to pay it. In 
 this point of view, therefore, the defendant, rather than the plaintiff, 
 has reason to complain of the charge, as the court put the c^se upon 
 the fact whether there was enough of property on the premises to an- 
 swer the plaintiff's claim. If the plaintiff had pursued his remedy by 
 distress, there were, if the witnesses are to be believed, at all times, 
 goods more than sufficient for that purpose. 
 
 But the plaintiff contends that the defendant denied his title, and 
 that this denial amounts to a forfeiture, and that, therefore, he can 
 maintain ejectment. A forfeiture may be incurred either by a breach 
 of those conditions which are always implied and understood to be 
 annexed to the estate, or those which may be agreed upon between the 
 parties, and expressed in the lease. The lessor, having the jus dispo- 
 nendi, may annex whatever conditions he pleases, provided they be 
 not illegal, unreasonable or repugnant to the grant itself; and upon 
 breach of these conditions may avoid the lease. Any act of the lessee, 
 
LBADmG AND ILLUSTRATIVE OASES. 300 
 
 by which he disaflBrras or impugns the title of his lessor, comes within 
 the first class; for, to every lease the law tacitly annexes a condition 
 that if the lessee do anything which may affect the interest of the les- 
 sor, the lease shall be void, and the lessor may re-enter. Every such 
 act necessarily determines the relation of landlord and tenant; since to 
 claim under another, and at the same time to controvert his title; to 
 affect to hold under a lease, and at the same time to destroy the interest 
 out of which the lease arises, would be the most palpable inconsisten/jy. 
 Barr. Leases, 119; Woodf. Landl. & Ten. 219. So where the tenant does 
 an act which amounts to a disavowal of the title of the lessor, no notice 
 to quit is necessary; as where the tenant has attorned to some other 
 person, or answered an application for rent by saying that his connec- 
 tion as tenant with the party applying has ceased. Bull. N. P. 96; Esp. 
 N. P. 463. In such cases, as the tenant sets his landlord at defiance, 
 the landlord may consider him either as his tenant, or as a trespasser. 
 But these principles only apply where there is no dispute as to the per- 
 son entitled to the rent; so where there was a refusal to pay rent to 
 devisee in a will which was contested, it is not such a disavowal of the 
 title as will enable the devisee to treat the tenant as a trespasser, and 
 to maintain ejectment without previous notice. Woodf. Landl. & Ten. 
 219, and the authorities there cited. These principles are usually ap- 
 plied to the relation which subsists between landlord and tenant on a 
 demise for a term of years; and whether they are applicable to a grant 
 of land in fee with the reservation of a rent charged on the land may 
 admit of doubt, although no case has been cited, and I know of none, 
 where it has been so applied. But however this may be, the doctrine 
 does not hold where there is no denial of the title under which the de- 
 fendant claims, but it is denied that the plaintiff is the person entitled 
 to receive the rent, although he is the representative or devisee of the 
 original grantor, or where, as in this case, the proportion of the rent 
 which he owns is disputed. The plaintiff claims the entire rent, and 
 the court and jury have decided that he is entitled to a moiety only. 
 It would therefore be a harsh application of the principle to decide 
 that a defense which certainly has some plausibility about it should 
 work a forfeiture of the estate. Courts of law always lean against a 
 forfeiture, and it is the province of a court of equity to relieve against 
 it. Whenever a landlord means to take advantage of a breach of cov- 
 enant, so as that it should operate as a forfeiture of the lease, he must 
 take care not to do anything which may be deemed an acknowledg- 
 ment of the tenancy, and so operate as a waiver of the forfeiture, as 
 distraining for the rent, or bringing an action for the payment of it, 
 after the forfeiture has accrued, or accepting rent. Bull. N. P. 96; 
 Woodf. Landl. & Ten. 227; Barr. Leases, 226. For this reason the court 
 was right in admitting in evidence a receipt from the plaintiff to the 
 defendant for ground rent for the two lots for the year 1831; this evi- 
 
310 LEADING AND ILLUSTEATITE CASES. 
 
 dence was pertinent because the receipt of rent waives the forfeiture, 
 if any such there was, for neglecting to erect the buildings on the lot, 
 as provided for in the deed. 
 
 In deducing title to the ground rents, plaintifiE proved that the 
 ground rent in Newmanstown had been devised by the last will and 
 testament of Walter Newman to Henry Newman and David Newman, 
 as joint devisees. This, of course, vested in Henry Newman, the 
 plaintiff, a moiety only of the ground rent reserved in the deeds. For 
 the purpose of proving that he was entitled to the whole ground rent 
 charged on the locus in quo, he offered in evidence a deed from Magda- 
 lena Newman, administratrix of David Newman, deceased, one of the 
 devisees of Walter Newman, to Christian Seibert, dated the 24th of 
 August, 1786, for sixty-three acres of the tract of one hundred and 
 twenty-eight acres devised to Henry and David Newman, by Walter 
 Newman, the said sixty-three acres including the one-half of Newmans- 
 town; also a deed from Christian Seibert to Francis Seibert, for same, 
 dated the 19th of April, 1793; also the will of Francis Seibert, devising 
 the same sixty-three acres, including one-half of Newmanstown, to 
 Elizabeth, wife of Peter Shoch, dated February 9, 1811, with parol proof 
 that the said Francis Seibert, in the year 1805, or thereabouts, until 
 the time of his death, and those claiming under him since his death, 
 held and exercised exclusive ownership and occupation of the said 
 sixty-three acres, including the one-half of Newmanstown, and that 
 Henry Newman, the other devisee of Walter Newman, and those claim- 
 ing under him, in the same time, viz. : from the year 1805, or there- 
 abouts, to the present time, have exercised exclusive ownership on the 
 remainder of the tract of one hundred and twenty-eight acres, includ- 
 ing the other half of Newmanstown, and that the two lots for which 
 this ejectment is brought are located in that part of the said tract last 
 mentioned; with further parol proof that search has been made in the 
 recorder's office in Dauphin and Lebanon counties for deed or agree- 
 ment of partition of the premises, and none such has been found. 
 
 From the evidence here offered it is plain that the ground rent was 
 not divided between the devisees by writ of partition ; so that the only 
 question is, was such proof offered as will justify the jury in presum- 
 ing a deed, grant, or mutual conveyance 1 The evidence would have 
 proved that the plaintiff had been in the enjoyment and receipt of the 
 entire rent, charged on the premises, for a period of thirty years and 
 upwards, and that they who deduce their title from David Newman 
 had received the whole ground rent charged on this portion of the es- 
 tate. A jury is required, or at least may be advised by a court, to infer 
 a grant of an incorporeal hereditament after an adverse enjoyment 
 for the space of twenty-one years; and in Hearn v. Lessee of Witman, 
 6 Bin. 416, it is held that what circumstances will justify the presump- 
 tion of a deed is matter of law ; and that it is the duty of the court to 
 
LEADING AND ILLUSTEATIVE CASES. 311 
 
 give an opinion whether the facts proved will justify the presumption. 
 This presumption seems to have been adopted in analogy to the act of 
 limitations, which makes an adverse enjoyment of twenty-one years a 
 bar to an action of ejectment; for as an adverse possession of that 
 duration will give a possessory title to the land itself, it seems, also, to 
 be reasonable that it should afford a presumption of right to a minor 
 interest arising out of the land. The ground of presumption, in such 
 cases, is the difficulty of accounting for the possession or enjoyment 
 without presuming a grant or other lawful conveyance. This is not 
 an absolute presumption, but one that may be rebutted by accounting 
 for the possession consistently with the title existing in another. Here 
 we cannot account for the enjoyment and receipt of the entire rent 
 without presuming a grant or some lawful conveyance from the one 
 tenant in common to the other; and for this reason we think the court 
 erred in excluding the evidence. 
 
 The court were right in admitting the evidence of Job Pearson. The 
 objection goes to his credit rather than to his competency. 
 
 Judgment reversed and a venire de novo awarded. 
 
 CHAPTER YTII. 
 
 TENANCY FROM YEAR TO YEAR, ETC. 
 
 Weed V. Lindsay et al. 
 
 Decision by Supreme Court of Georgia, January 11, 1893. Opinion by 
 Bleckley, C. J. 
 
 {Beported in S8 Qa. 686.) 
 
 The contract of June 4, 1889, signed by tlie parties, respectively, a 
 copy of which is in the report, was not a present demise or lease which 
 granted to Lindsay & Morgan an immediate estate for years, but was 
 an agreement to give them a future lease for ten years from the time 
 the building to be erected was " ready for occupation." It is plain 
 from the nature of the agreement and the language of the instrument 
 that the contract was executory on both sides. It was not contem- 
 plated that Lindsay & Morgan shoiild become tenants to Weed, or 
 owners of any interest in the premises, or that they should be liable 
 for the payment of the stipulated rent, if Weed did not erect the build- 
 ing and make it ready for occupation. Until that time should arrive 
 they were to remain without any interest in the property whatever. 
 If the building, as they contend, has not yet been completed and made 
 ready for occupation according to the agreement, the time appointed 
 
312 LEADING AND ILLUSTEATIVE CASES. 
 
 for an interest to vest in them as lessees, and for their occupation to 
 commence, has not yet arrived; and so they are without any legal 
 ownership of an estate for years, or of a right to possession by virtue 
 of such ownership. The instrument executed as evidence of the con- 
 tract contains no words of present demise or any equivalent terms, 
 nor does it fix with certainty either the amount of the annual rent to 
 be paid, or appoint any time for the completion of the building and 
 the consequent commencement of the ten years' term. The amount 
 of the rent was to, or might, depend in part upon the cost of the build- 
 ing, and when the building would be ready for occupation would nec- 
 essarily depend on contingencies to be met and dealt with after the 
 agreement was signed. It is manifest that the words, "Upon these 
 conditions, Joseph D. Weed agrees to give them a lease for ten years 
 from the date the building is ready for occupation," ought to be con- 
 strued, not as a stipulation for further assurance, but as an undertak- 
 ing to create a lease not previously existing, and to pass by it an estate 
 not before conveyed nor attempted to be conveyed. It could not have 
 been the-intention of the parties either that Lindsay & Morgan should 
 be owners of the contemplated terms of years, or any term in the 
 premises, before the annual rent which they were to pay began to ac- 
 crue, or that this rent was to begin to accrue before the building was 
 ready for occupation. In distinguishing between a lease and a mere 
 executory agreement for a lease, the intention of the parties, as mani- 
 fested by the writing, is a controlling element. Lloyd, Bldg. Cont, 
 § 88; 13 Am. & Eng. Enc. Law, 980; 1 Wood, Landl. & Ten., § 179; Mc- 
 Adam, Landl. & Ten., § 41; 1 Tayl. Landl. & Ten., § 37 et seq.; 6 Lawson, 
 Rights, Rem. & Prac, § 2801. For cases illustrating the distinction, 
 see Sturgion v. Painter, Noy, 188; Jackson v. Ashburner. 5 Term R. 163; 
 Hegan v. Johnson, 2 Taunt. 148; Jackson v. Bulkley, 3 Wend. 433; Peo- 
 ple V. Kelsey, 88 Barb. 269, 14 Abb. Prac. 372; McGrath v. City of Bos- 
 ton, 103 Mass. 369; Adams v. Hagger, 4 Q. B. Div. 480; Jackson v. 
 Kisselbrack, 10 Johns. 336; Kabley v. Gaslight Co., 102 Mass. 392. 
 
 No lease creating a term of ten years, and vesting the same in Lind- 
 say & Morgan, having ever come into existence as contemplated by the 
 agreement, what was the effect of admitting them into possession by 
 virtue of the consent given by Weed in his letter to them of Septem- 
 ber 27, 1889, in which he says: " I simply write to tell you, as Mr. 
 Brown told me you wished to begin to occupy the building before it 
 was entirely finished, that the rent will begin from the time you begin 
 to occupy it. I have no objection whatever to your moving into the 
 building as soon as you find it can serve your convenience to do so," 
 (Mr. Brown was the contractor employed by Weed to construct the 
 building.) Was this permission a license to occupy for ten years with- 
 out the execution of any lease, or was it, as events turned out (posses- 
 sion having been taken under it, and Lindsay & Morgan having after- 
 
LEADING AND ILLUSTEATIVE CASES. 313 
 
 wards refused to join in the execution of a lease), the creation of a 
 tenancy at will? We think it was the latter, and, no rent having at 
 any time been paid and accepted, this is in accordance with the cur- 
 rent of authority. 1 Tayl. Landl. & Ten., § 00; 1 Washb. Real Prop., 
 p. 376; Tied. Real Prop., § 216; 6 Lawson, Right, Rem. & Prac, § 2809; 
 12 Am. & Eng. Eno. Law, 670; Chapman v. Towner, 6 Mees. & W. 100; 
 Anderson v; Railway Co., 3 EI. & El. 614; Anderson v. Prindle, 23 
 Wend. 616; Dunne v. Trustees, 39 111. 578. In Hamerton v. Stead, 3 
 Barn. & C. 483, Littledale, J., said: "Where parties enter under a mere 
 agreement for a future lease, they are tenants at will; and, if rent is 
 paid under the agreement, they become tenants from year to year, de- 
 terminable on the execution of the lease contracted for, that being the 
 primary contract." Perhaps, as the law of remedy in the superior 
 court now stands, the payment of rent would have raised, not merely 
 a tenancy from year to year, but one for the whole term covered by 
 the lease. Walsh v. Lonsdale, 21 Ch. Div. 9. It is plain that, consist- 
 ently with the written agreement of the parties, Lindsay & Morgan 
 would have no right to occupy and use the premises for ten years un- 
 less they were willing to pay therefor the stipulated rent, nor unless 
 they were willing to occupy as lessees, and not merely as tenants at 
 will. In this litigation they seek, as they did in some of the prelimi- 
 nary steps which led to it, to take the position and have all the rights 
 of lessees on terms different from any which Weed has ever assented 
 to; that is, they want to hold at a less annual rent than they have 
 agreed to pay. They make this claim because, as they contend, Weed 
 has not erected and made ready for occupation such a building with 
 respect to plan and finish as was contemplated. If this contention be 
 well founded in fact, the result will be, not that they could occupy for 
 ten years on terms different from those agreed upon, but that they 
 could, if they did not choose to waive their objection and unite in the 
 lease and pay the stipulated rent, exercise their option between vacat- 
 ing the premises, and compelling, by a proper equitable action, a specific 
 performance on the part of Weed of his undertaking. Weed's viola- 
 tion of his contract would also furnish a cause of action in their favor 
 for any damages resulting from his failure to comply. Perhaps if they 
 had, under protest, paid rent according to the contract, they might have 
 done so without surrendering any substantial right, legal or equitable. 
 Lamare v. Dixon, L. R. 6 H. L. 514. When this proceeding was com- 
 menced, they had not pursued any course open to them, but had en- 
 deavored to pursue one not open; they had declined to join in the lease; 
 had not paid rent at the stipulated rate ; had entered no suit for specific 
 performance; and had refused to vacate the premises. Having brought 
 themselves into the position of mere tenants at will, section 2291 of the 
 code applies to them. The two-months notice having been given, they 
 were subject to eviction as tenants holding over. Code, §§ 4077-4081. 
 
314 LEADING AND ILLUSTEATIVE CASES. 
 
 The pleadings in the case were simplythe affidavitandcounter-aflidavit 
 provided for by the sections of the code last cited. The pending ap- 
 plication in the superior court to enjoin the prosecution of this pro- 
 ceeding was not operative, because no injunction, tenaporary or perma- 
 nent, had been ordered, nor any restraining order granted. What we 
 have ruled embraces all that is fundamental in the case, and effectually 
 controls the final result of this proceeding in the city court. The court 
 erred in not granting a new trial. 
 Judgment reversed. 
 
 Hussell V. Pabyan. 
 
 Decision by Supreme Court of New Hampshire, July Term, 1856. Opin- 
 ion by Bell, J. 
 
 [Reported in Sk N. H. S18.) 
 
 Fabyan entered into possession of the premises in question under a 
 written lease, to continue for five years from March 20, 1847. He re- 
 mained in possession until April 29, 1853, when the buildings were 
 burned down, more than a year after the lease expired. During the 
 interval between the 20th of March, 1853, and April 29, 1853, he was 
 either a tenant at sufferance, a tenant at will, or a disseizor. The gen- 
 eral principle is that a tenant who, without any agreement, holds over 
 after his term has expired, is a tenant at sufferance. 2 Bl. Comm. 150; 
 4 Kent, Comm. 116; Livingston v. Tanner, 13 Barb. 483. No act of the 
 tenant alone can change this relation : but if the lessor or owner of the 
 estate, by the acceptance of rent, or by any other act, indicates his as- 
 sent to the continuance of the tenancy, the tenant becomes a tenant at 
 will, upon the same terms, so far as they are applicable, of his previous 
 lease. Conway v. Starkweather, 1 Denio, 113. 
 
 In this case there is no evidence to justify an inference of assent by 
 the lessor to any continuance of the tenancy, but, on the contrary, very 
 direct and conclusive evidence, in the demand of possession, to the con- 
 trary; while the reply made to that demand by Fabyan negatives any 
 consent on his part to remain tenant of the plaintiff. There was, then, 
 no tenancy in fact between these parties at the time of the fire, and the 
 defendant was consequently either a disseizor or a tenant at sufferance. 
 
 When the demand of possession was made upon Fabyan, upon the 
 22d of March, 1853, the demand was refused, Fabyan saying he had taken 
 a lease of the property from Dyer. The previous demands seem to 
 have been premature, and before the expiration of the lease, but they 
 were refused upon the same ground as the last, and that refusal might 
 constitute a waiver of any objection to the time of their being made. 
 
 Such a denial of the right of the lessor, though not a forfeiture of a 
 lease for years, is sufficient to put an end to a tenancy at will, or at suf' 
 
LEADING AND ILLTJSTEATIVE CASES. 315 
 
 feranoe, if the lessor elects so to regard it; and he may, if he so choose, 
 bring his action against the tenant as a disseizor, without entry or no 
 tioe, and may maintain against him any action of tort, as if he had 
 originally entered by v.Tong. Delaney v. Ga Nun, 13 Barb. 120. 
 
 But as this result depends on the lessor's election, and nothing appears 
 in the present case to indicate such election, the tenant must be re- 
 garded as a tenant at sufferance. 
 
 To ascertain the liability of a tenant at sufferance for the loss of 
 buildings by fire, it becomes material to inquire what is the nature of 
 this kind of tenancy; and we have examined the books accessible 
 to us, to trace the particulars in which it differs from the case of a party 
 who originally enters by wrong. 
 
 All the books agree that he retains the possession as a wrong-doer, 
 just as a disseizor acquires and retains his possession by wrong. Den v. 
 Adams, 13 N. J. Law, 99; 2 Bl. Comm. 150; 4 Kent, Coram. 116. By the 
 assent of the parties to the continuance of the possession thus wrong- 
 fully obtained or retained, the wrong is purged, and the occupant be- 
 comes a tenant at will or otherwise to the owner. 10 Vin. Abr. 41fi, 
 "Estate," D, C, 3. 
 
 If no such assent appears, the tenant is entitled to no notice to quit. 
 Jackson v. McLeon, 12 Barb. 483; 13 Johns. 183; 1 Cruise, Dig., tit. 9, § 10. 
 
 The owner may make his entry at once upon the premises, or he may 
 commence an action of ejectment or real action. Livingston v. Tanner, 
 12 Barb. 483; Den v. Adams, 12 N. J. Law, 99. And it makes no differ- 
 ence that the lessee, after his term has expired, has taken a new lease 
 for years of a stranger rendering rent, which has been paid; for he still 
 remains tenant at sufferance as to the first lessor, as was held in Pres- 
 ton V. Love, Noy, 120; 10 Vin. Abr. 416. 
 
 We have been able to discover but one point of difference between 
 the case of the disseizor and the tenant at sufferance, which is that the 
 owner cannot maintain an action of trespass against his tenant by suf- 
 ferance until he has entered upon the premises (4 Kent, Comm. 116); a 
 point to which we shall have occasion further to advert. 
 
 Upon this view the liability Of the defendant Fabyan to answer for 
 the loss by fire, which is the subject of this suit, is regulated, not by 
 the rule applicable to tenants under contract, or holding by right, but 
 by that which governs the case of the disseizor and unqualified wrong- 
 doer. 
 
 By statute (6 Anne, c. 81, made perpetual 10 Anne, c. 14; 1708, 1713) no 
 action or process whatever shall be had, maintained or prosecuted 
 against any person in whose house or chamber any fire shall accident- 
 ally begin. Co. Litt. 67, note 877; 3 Bl. Comm. 338, note; 1 Com. Dig. 
 309, "Action for Negligence," A, 6. It is not necessary to consider 
 whether this statute has been adopted here, though it is strongly rec- 
 ommended by its intrinsic equity, because at all events a di£ferent rule 
 applies in this case. 
 
316 LEADING AND ILLTTSTEATIVE OASES. 
 
 The mere disseizor or trespasser, who enters without right upon the 
 land of another, is responsible for any damage which results from any 
 of his wrongful acts. Such a disseizor is liable for any damages occa- 
 sioned by him, whether willful or negligent. He had no right to build 
 any fire upon the premises, and if misfortune resulted from it he must 
 bear the loss. 
 
 For this purpose the defendant Fabyan stands in the position of a 
 disseizor. 
 
 3. Assuming that Fabyan is liable for the loss of these buildings the 
 question arises whether he is liable in this form of action; and, as we 
 have remarked, he is not liable in trespass. Chancellor Kent (4 Comm. 
 116) says: "A tenant at sufferance is one that comes into possession of 
 land by unlawful title, but holdeth over by wrong after the determina- 
 tion of his interest. He has only a naked possession, and no estate 
 which he can transfer, or transmit, or which is capable of enlargement 
 by lease, for he stands in no privity to his landlord, nor is he entitled 
 to notice to quit; and, independent of the statute, he is not liable to 
 pay any rent. He holds by the laches of the landlord, who may enter 
 and put an end to the tenancy when he pleases. But before entry he 
 cannot maintain an action of trespass against the tenant by sufferance." 
 1 Cruise, Dig,, tit. 9, c. 3; Rising v. Stanard, 17 Mass. 283; Keay v. Good- 
 win, 16 Mass. 1, 4; 3 Bl. Comm. 150; Co. Litt. 576; Livingston v. Tanner, 
 18 Barb. 483; Trevillian v. Andrew, 5 Mod. 384. 
 
 If, then, Fabyan is answerable at all, he must be liable to the action 
 of trespass on the case. There is no evidence of any entry, and the de- 
 mand of possession, whatever its other effects may be, is not an entry, 
 nor do we find it made equivalent to an entry. 
 
 The case of West v. Trende, Cro. Car. 197, Jones, 124, 334, is a decision 
 that case lies in such a case. 
 
 "Action upon the case. Whereas he was and yet is possessed of a 
 lease for divers years adtunc et adliuc ventur, of a house, and being so 
 possessed demised it to the defendant for six months, and after the six 
 months expired, the defendant being permitted by the plaintiff to oc- 
 cupy the said house for two months longer, he, the defendant, during 
 that time pulled down the windows, etc. Stone moved, in arrest of 
 judgment, that this action lies not, for it was the plaintiff's folly to 
 permit the defendant to continue in possession, and to be a tenant at 
 sufferance, and not to take coui'se for his security; and if h" should 
 have an action it should be an action of trespass, as Littleton (section 
 71). If tenant at will hath destroyed the house demised, or shop de- 
 mised, an action of trespass lies, and not an action upon the case. But 
 all the court conceived that an action of trespass or an action upon the 
 case may well be brought, at the plaintiff's election, and properly in 
 this case it ought to be an action upon the case, to recover as much as 
 he mav be damnified, because he is subject to an action of waste; and 
 
LEADING AND ILLUSTRATIVE CASES. 317 
 
 therefore it is reason that he should have his remedy by action upon 
 the case. Whereupon rule was given that judgment should be entered 
 for the plaintiff." 
 
 8. It seems clear that if Fabyan is to be regarded as a wrong-doer in 
 retaining the possession of the plaintiff's property after his lease had 
 expired, all who aided, assisted, encouraged or employed him to retain 
 this possession must be regarded as equally toi't-feasors, and equally 
 responsible for any damage resulting from his wrongful acts. No more 
 direct act could be done to encourage a tenant in keeping possession than 
 that of leasing to him the property, unless it was that of giving him a 
 bond of indemnity, such as is stated in this case. In wrongs oi: this 
 class all are principals, and the defendant, Dyer, must be held equally 
 responsible with Fabyan ; and it seems clear that as Dyer could justify 
 in an action of trespass under the authority of Fabyan so as, like him, 
 not to be liable in that action, he must be liable with him in an action 
 upon the case. 
 
 Whether the allegations of the declarations are suitable to charge 
 either of the defendants, we have not considered, as the court have not 
 been furnished with a copy. 
 
 4. The case of Russell v. Fabyan, 7 Fost. (N. H.) 529, is not to be re- 
 garded as a decision of the question raised in this case, in relation to 
 the sale of a supposed right of redemption as belonging to Burnham, 
 after the first levy made upon the property. It was there held, upon 
 the facts appearing in that case, that independent of the question of 
 fraud in Burnham's deed to Russell, all Burnham's right of redeeming 
 the levy, which might be made upon the attachment subsisting at the 
 time of the deed, and of course good against it, passed to Russell. Upon 
 this point there can be no question, and none is suggested. The ques- 
 tion then arose, whether, if Russell's deed was proved to be fraudulent 
 as to the creditors of Burnham. the right of redemption did not pass to 
 Dyer by the sale on his second execution, so as to invalidate the tender 
 made by Russell. This question might have been met and decided, but 
 the case did not require it. It was held that whether Russell's title was 
 good or bad, Fabyan, as his tenant, could not dispute it. He could be 
 discharged from his liability to pay his rent, which was the subject of 
 that action, only by an eviction by the lessor, or by some one who had 
 a paramount title to his; a mere outstanding title not put in exercise 
 is not a defense. The defendant relied on an eviction on the 14th of 
 June, 1848, as his defense. The sale of the right of redemption was 
 made on the 31st of July following, and after that date there was no 
 eviction, so that the attempt there was merely to show an outstanding 
 but dormant title, which it proved would be no defense. And the court 
 took the ground that Fabyan stood in no position to raise a question as 
 to the validity of Russell's title, except so far as the opposing title was 
 the occasion of some disturbance of his estate. So far as the principles 
 
318 LEADING AND ILLUSTEATITE OASES. 
 
 stated in that case are concerned, they appear to us sound and unan- 
 swerable. Whether, if the case had taken a different form, the result 
 would have been in any degree different, it is not necessary to inquire. 
 By our statute every debtor whose land or any interest in land is sold 
 or set off on execution has a right to redeem by paying the appraised 
 value, or sale price, with interest, vpithin one year. Rev. St., ch. 195, 
 sec. 13; Id., ch. 196, sec. 5; Comp. St., pp. 501, 503. This right to redeem 
 is also subject to be levied upon and sold, as often as a creditor supposes 
 he can realize any part of his debt by a sale, until some one of the levies 
 or sales becomes absolute. But these sales have each inseparably con- 
 nected with them the right of redemption. If the debtor has parted 
 with his title before the levies are made while the property is under an 
 attachment, the right of redemption is vested in his grantee, who, being 
 the party interested, may redeem any sale or levy if he pleases; the 
 effect of his payment or tender for this purpose being of course depend- 
 ent upon the state of facts existing at the time. . . . Russell had a 
 right, as a party interested in the land, to pay or tender the amount of 
 the first levy to Dyer and so to discharge it. . . . And if it should 
 be shown that the deed to Russell was void as to creditors, and Dyer 
 was one of that class, his second levy was good if properly made, and 
 title to these premises passed to him, subject to his prior and any sub- 
 sequent levy, and to Russell's right of redemption. As the offer of the 
 defendant to prove Burnham's deed to Russell to be fraudulentand void 
 as to creditors, and as to the defendant,.Dyer, as one of them, was 
 refused, there must be a new trial. 
 
 CHAPTER IX. 
 
 JOINT ESTATES. 
 
 Mette et al. v. Feltgen. 
 
 Decision by the Supreme Court of Illinois, January 16, 1894. Opinion 
 
 by Bailey, J. 
 
 {Reported in H8 III. 357.) 
 
 This was an action of ejectment brought by Anna M. Feltgen against 
 Henry, August and Louis Mette to recover the undivided one-half of 
 lots eight and nine in block five in Murray's addition to South Chicago. 
 The defendants pleaded not guilty, and the cause being tried by the 
 court, a jury being waived, it was found that the plaintiff was the 
 owner in fee of an undivided one-half of the lots, and that the defend- 
 ants were guilty of unlawfully withholding possession thereof from her. 
 
LEADING AND ILLUSTRATIVE CASES. 319 
 
 A motion by the defendants for a new trial being oven-uled, judgment 
 was entered that the plaintiff recovered possession of the undivided 
 one-half of the lots, and that a writ of possession issue in her favor 
 therefor. The defendants bring the record to this court by appeal. 
 
 The facts are all admitted by stipulation and are, in substance, as 
 follows: On the 23d day of April, 1878, Theodore H. Sohintz, the common 
 source of title of the plaintiflE and defendants, executed and delivered 
 to Peter Mayer and Anna Mayer, his wife, a deed which, omitting the 
 signature and certificate of acknowledgment, is as follows: "This in- 
 denture witnesseth that the grantor, Theodore H. Schintz, a bachelor, 
 of the city of Chicago, in the county of Cook and state of Illinois, for 
 the consideration of §1, conveys and quitclaims to Peter Mayer and 
 Anna Mayer, his wife, not as tenants in common, but as joint tenants 
 of the city of Chicago, county of Cook and state of Illinois, all interest 
 in the following described real estate, to wit, lots eight and nine in 
 block five in Murray's addition to South Chicago, situated in the county 
 of Cook and state of Illinois, hereby releasing and waiving all right 
 under and by virtue of the homestead and exemption laws of this state. 
 Dated this 23d day of April, 1878." Anna Mayer, one of the grantees 
 in the deed, died intestate April 4, 1879, leaving, surviving her, her hus- 
 band and co-grantee, and also leaving the plaintiff, her daughter by a 
 former marriage and her only heir at law, who was then a minor be- 
 tween eleven and twelve years of age. On the 16th day of February, 
 1882, Peter Mayer executed a deed conveying the lots to August Mette 
 and Henry Mette, and on the same day the plaintiff, then being a minor 
 between fourteen and fifteen years of age, executed a deed by which, 
 for an expressed consideration of $50, she conveyed and quitclaimed to 
 August and Henry Mette all her interest in the lots. On the 1 1th day 
 of September, 1885, the plaintiff attained the age of eighteen years, and 
 on the 15th day of June, 1888, she executed, acknowledged and recorded 
 an instrument expressly revoking, annulling and declaring void her 
 deed executed during her infancy; and July 13, 1888, as a further act 
 of disaflBrmance, she instituted this suit, and shortly thereafter com- 
 menced a suit in chancery to set the deed aside and to recover her in- 
 terest in the lots. August and Henry Mette, immediately after the 
 execirtion of the deeds to them, together with their co-defendant, 
 Louis Mette, took possession of the lots, and excluded the plaintiff 
 therefrom, and were in possession thereof, to the exclusion of the 
 plaintiff, at the time of the commencement of this suit, and are still 
 in possession. On the 12th day of January, 1884, August and Henry 
 Mette executed to Louis Mette a deed by which they conveyed to him a 
 fractional interest in the lots. 
 
 The conveyance by the plaintiff to August and Henry Mette, made 
 during her minority, having been expressly revoked and disaffirmed by 
 her after becoming of age, may be disregarded, and the rights of the 
 
320 LEADING AND ILLUSTRATIVE CASES. 
 
 parties are to be determined precisely as though no snoh conveyance 
 had been made. The claim of the defendants is that the estate of 
 Peter Mayer and Anna Mayer, his wife, in the lots, was a joint tenancy, 
 with the common-law incident of survivorship, and consequently that, 
 upon the death of Anna Mayer, Peter Mayer, by right of survivorship, 
 became tenant of the lots in severalty, to the exclusion of the heir at 
 law of Anna Mayer, and that Peter Mayer's conveyance of the lots to 
 August and Henry Mette vested in them the entire estate. The 
 plaintiff, on the other hand, insists that, whether the deed from 
 Sohintz to Peter Mayer and wife created a joint tenancy or not, it was, 
 under our statute, a tenancy in respect to which there was no right 
 of survivorship, and therefore that on the death of Anna Mayer her 
 joint interest descended to and became vested in the plaintiff, as her 
 sole heir at law. There can be no doubt that the parties in the Sohintz 
 deed intended thereby to create an estate in joint tenancy, and not a 
 tenancy in common; and it must be admitted, we think, that the lan- 
 guage employed was apt and sufficient for the accomplish nlent of that 
 purpose. It only remains to be determined whether, under our statute, 
 the right of survivorship can still be regarded as an incident of an 
 estate in joint tenancy. The doubt on this que.stion grows out of the 
 apparent conflict between section 5, chapter 30, of the Revised Statutes, 
 entitled "Conveyances," and section 1, chapter 76, entitled "Joint 
 Rights and Obligations." These statutes are inpari materia, and are to 
 be construed together, and very much aid in such construction may be 
 obtained by examining their history, as a part of the legislation of the 
 state. On the IStli day of January, 1821, the general assembly passed 
 ' An act concerning partitions and joint rights and obligations," the 
 first and second sections of which were as follows: " Section 1. Be it 
 enacted," etc., "th.t all joint tenants or tenants in common who now 
 are or hereafter shall be possessed of any estate of inheritance, or estate 
 less than those of inheritance, either in their own right or in the right 
 of their wives, maj- be compelled to make pai-titions between them of 
 such lands, tenements or hereditaments, as they now hold or hereafter 
 shall hold, as joint tenants, or tenants in common. Provided, how- 
 ever, that no such partition, between joint tenants or tenants in 
 common, who hold or shall hold estate for life or years, with others 
 holding equal or greater estates, shall prejudice any entitled to the re- 
 version or remainder, after the death of the tenants for life, or after 
 the expiration of the years. Section 2. That if partition be not made 
 between joint tenants, the parts of those who die first shall not accrue 
 to the survivor or survivors, but descend or pass by devise, and shall be 
 subject to debts, dower, charges, etc., or transmissible to executors or 
 administrators, and be considered to every intent and purpose in the 
 same view as if such deceased joint tenants had been tenants in com- 
 mon." Afterwards, on January 31, 1827, the general assembly passed 
 
LEADING AND ILLUSTEATIVB OASES. 32l 
 
 " An act concerning conveyances of real property," the iafth section of 
 which was as follows: "No estate in joint tenancy, in any lands, tene- 
 ments or hereditaments, shall be held or claimed under any grant, de- 
 vise or conveyance whatever, heretofore or hereafter made, other than 
 to executors and trustees, unless the premises therein mentioned shall 
 expressly be thereby declared to pass, not in tenancy in common, but 
 in joint tenancy; and every such estate, other than to executors or 
 trustees (unless otherwise expressly declared as aforesaid), shall be 
 deemed to be a tenancy in common." In the Revised Statutes of 1845, 
 section 3 of the act of 1821 appears as section 1 of chapter 56, entitled 
 " Joint Eights and Obligations," while section 5 of the act of 1827 ap- 
 pears as section 5 of chapter 24, entitled " Conveyances," both chapters 
 having been approved on the same day. In the Revised Statutes of 
 1874, section 2 of the act of 1821 again appears as section 1 of " An act 
 to revise the law in relation to joint rights and obligations," approved 
 February 25, 1874, and section 5 of the act of 1827 appears as section 5 
 of the " Act concerning conveyances," approved March 29, 1872, and in 
 force July 1, 1872. Both sections have now been on the statute books 
 concurrently since 1827, and both, since their original enactment, have 
 been twice included, without change of phraseology, in general revis- 
 ions of the statutes. 
 
 It seems plain that the act of 1821 undertook to deal only with joint 
 tenancies and tenancies in common held by the tenants in their own 
 rights, or in right of their wives. Such is the express limitation con- 
 tained in the language of section 1, and that limitation undoubtedly 
 was intended to apply to and control the entire act. No other tenan- 
 cies were within the legislative contemplation. The act, therefore, 
 had no application to estates held by executors, trustees or others hold- 
 ing estates en autre droit. But as to estates held by the tenants in 
 their own rights, or in the right of their wives, whether held as joint 
 tenants or tenants in common, the act gave the right to xompel parti- 
 tion, and in cases of joint tenants, if partition was not made, the right 
 of survivorship was taken away; and it was provided that the part of the 
 tenant dying first should pass by descent or devise and be subject to 
 debts, dower, charges, etc., and be transmissible to executors or admin- 
 istrators, and be considered, to every intent and purpose, in the same 
 view as if the deceased joint tenant had been a tenant in common. 
 The effect of this statute, clearly, was to practically abolish joint ten- 
 ancies where the estates were held by the tenants in their own rights 
 or in the right of their wives, or, that which is the same thing, to con- 
 vert them into tenancies in common. The right of survivorship, 
 which is and always has been the principal and distinguishing incident 
 of joint tenancies, was taken away; and upon the death of the tenant, 
 without having made partition, the estate was to be treated and con- 
 sidered, to every intent and purpose, as a tenancy in common. 
 21 
 
822 LEADING AND ILLUSTEATITE OASES. 
 
 The act of 1837 made no reference to that of 1821, but, as it was the 
 later expression of the legislative will, it had the effect of repealing 
 or modifying the former act, in so far as it was inconsistent therewith. 
 It becomes important then, in the first place, to determine the proper 
 interpretation to be placed upon that act, standing by itself. In using 
 without explanation or qualification the terms "joint tenancy " and 
 •'tenancy in common," terras having, at common law, a fixed and well 
 understood meaning, it was doubtless intended to use them in their 
 ordinary common-law sense. Its effect was to restore the right to 
 create estates in joint tenancy, as known at common law, in so far as 
 that right was abrogated by the act of 1821, rather by tacit recognition 
 than by express words, and then undertook to change the rule of pre- 
 sumptions obtaining at common law where a conveyance of lands was 
 made to two or more persons. Where an estate was conveyed to a 
 plurality of persons without adding any restrictive, exclusive or ex- 
 planatory words, such conveyance, at common law, was held to consti- 
 tute the grantees joint tenants, and not tenants in common; it being 
 necessary, in order to create a tenancy in common by deed, to add ex- 
 clusive or explanatory words, so as to expressly limit the estate to the 
 grantees, to hold as tenants in common and not as joint tenants. 2 Bl. 
 Comm. 180, 193. By section 5 of the act of 1827, this rule, except in 
 cases of conveyances to executors or trustees, was precisely reversed. 
 Under that section a conveyance to two or more persons, without 
 restrictive or explanatory words, created a tenancy in common; and 
 in order to create a joint tenancy, the estate had to be expressly de- 
 clared to pass, not in tenancy in common but in joint tenancy. If the 
 question had arisen at any time after the passage of the act of 1837, 
 and prior to the revision of 1845, it would have presented no material 
 difficulty. The rule established by the act of 1827 would have been 
 held to prevail, that being the latest act; and as that act clearly recog- 
 nized the existence of estates in joint tenancy, a well-known species 
 of common-law estate, and expressly provided the mode in which they 
 might be created, the result would have logically followed that joint 
 estates created in the manner prescribed were joint tennncies in the 
 common-law sense, and possessing the qualities and incidents which the 
 common law attaches to them, notwithstanding the provisions of the 
 act of 1821 to the contrary. The view that the estate in joint tenancy 
 referred to in the act of 1827 was the common-law estate, with its 
 common-law incidents, is strengthened by reference '^o the provisions 
 of the act in relation to the tenancy when vested in executors or trust- 
 ees. As we have already seen, tenancies of that character are not 
 within the purview of the act of 1821, nor affected by its provisions. 
 They were doubtless excluded from the operation of that act on account 
 of the manifest impropriety of compelling partition between joint ten- 
 ants holding in a trust capacity, and the obvious advantages resulting 
 
LEADING AND ILLUSTEATIVE CASES. 323 
 
 from an application of the rule of survivorship to joint tenants of that 
 character. The act of 1827 also expressly excepts from its operation 
 executors and trustees, thus keeping in force, as to them, the common- 
 law rule, hut provides that in other cases, to create a joint tenancy, it 
 must be expressly declared in the deed to be such, and not a tenancy 
 in common. But there is nothing in the act of 1837 furnishing the 
 least indication that the legislature intended to attach to joint tenan- 
 cies, where the tenants held in their own right, any other or different 
 incidents than those which properly belonged to the estate where exec- 
 utors or trustees were the tenants. It is beyond question that, in the 
 latter class of joint tenancies, it was the intention of the act that the 
 incident of survivorship should prevail; and, as the act furnishes no 
 indication to the contrary, it would seem to be equally clear that the 
 same rule was intended to apply to those where the tenants were such 
 in their own right. 
 
 Up to the passage of the Revised Statutes of 1845 the law on the sub- 
 ject, so far as was declared by statute, was to be found in the act of 
 1831, as modified by the act of 1837; the latter act prevailing, and fur- 
 nishing the rule in all matters where the two were inconsistent with 
 «ach other. It would seem, therefore, that the re-enactment of these 
 two statutes, without change of phraseology, in the revision of 1845, 
 and again in the revision of 1874, was intended as a re-adoption of the 
 statutory law on the subject in precisely the condition in which it was 
 before any revision was made. It has been held, and we think cor- 
 rectly, that, where there are repugnant provisions in a revised code, 
 those portions which are transcribed from later statutes must be 
 deemed to repeal sections adopted earlier, or transcribed from earlier 
 statutes, or to so modify them as to produce agreement between such 
 repugnant provisions. End. Interp. St., § 183. In Ex parte Ray, 45 Ala. 
 15, a revised code had been enacted, embracing various prior statutes 
 enacted at different times, and, in giving construction to a particular 
 portion of such code, it was said: "All the several sections on the same 
 subject should be construed together. By being embraced in the code, 
 they are formed into a system on the .subject to which they refer, and 
 by the adoption of the code the legislature has. as it were, laid its 
 hands on them, and given them new life and vitality, as a body. For 
 this reason, if for no other, they should be interpreted and construed 
 together, and, if possible, made consistent and in harmony with each 
 other. If, however, this, in any particular case, cannot be done, then 
 the earlier sections, or sections taken from earlier acts, must be held to 
 be repealed, or so modified as to be in agreement with the later sec- 
 tions." See also O'Neal v. Robinson, 45 Ala. 536; State v. Heidorn, 74 
 Mo. 410. Section 3, chapter 131, of the Revised Statutes of 1874 is as 
 follows: "The provisions of any statute, so far as they are the same as 
 those of any prior statute, shall be construed as a continuation of such 
 
324 LEADING AND ILLUSTEATIVE CASES. 
 
 prior provisions, and not as a new enactment." As applicable to our 
 present Revised Statutes, this section furnishes a rule of construction. 
 Under It, as it would seem, a statute gains no additional force by being 
 included in a revision, but is only continued as a part of our statutory 
 law, having the same force and effect as before. Under this rule, the 
 fact that one of the statutes now under consideration was re-enacted 
 more recently than the other in the revision of 1874 is immaterial, as 
 in both cases an old statute was continued in force, and no new one 
 enacted. Under these circumstances, we are disposed to hold that the 
 two statutes under consideration still sustain to each other the same 
 relation which existed prior to the revision of 1845, and that they 
 should be construed now the same as they would have been construed 
 prior to that revision. As a consequence, the act of 1827 must still be 
 regarded as repealing or modifying the act of 1821, to the extent of 
 permitting parties to create the common-law estate of joint tenancy, 
 with its common-law incidents, by expressly declaring, in a deed run- 
 ning to two or more grantees, that the estate conveyed shall pass, not 
 in tenancy in common, but in joint tenancy. 
 
 Applying these conclusions to the case before us, it follows that upon 
 the death of Anna Mayer, intestate, her share passed to her husband 
 by right of survivorship, and that he thereby became vested with thi' 
 entire estate as tenant in severalty. It follows that no estate or in- 
 terest in the land passed by inheritance to Anna M. Feltgen, the plaint- 
 iff, on the death of her mother, but that the conveyance from Peter 
 Mayer to the defendants vested in them the entire estate. The plaint- 
 iff having failed to establish any interest in the land, the judgment in 
 her favor is erroneous. It will therefore be reversed, and the cause 
 will be remanded to the superior court. Judgment reversed. 
 
 Of the two sections of the statute under consideration in this case, 
 that adopted in 1821 is now in force as section 1 of the act in regard to 
 joint rights and obligations, and that adopted in 1827 is now in force in 
 section 5 of the conveyance act. The re-adoption of these two sections 
 by the legislature, at several different times since their original pas- 
 sage, indicates an intention on the part of the lawmaking power that 
 they should both stand together, and that the one should not operate 
 as a repeal of the other. There is no necessary conflict between them. 
 They can be so construed as to harmonize with each other. St- ction 1 
 refers to both personal and real property. Section 5 refers to real 
 property alone. Section 1, standing by itself, is broad enough to abol- 
 ish the right of survivorship, as between joint tenants, and to convert 
 the estate of joint tenancy into an estate of tenancy in common. But 
 section 5 was evidently intended to be a qualification of the broad rule 
 laid down in section 1, so far as lands, tenements and hereditaments 
 are concerned, and was designed to limit the application of the rule to 
 cases where the girant, devise or conveyance did not, in express terms. 
 
LEADING AND ILLUSTEATIVE OASES. 6%'.i 
 
 create an estate of joint tenancy. Section 5 is merely a recognition of 
 the rule that the law will effectuate the intention of the parties, where 
 such intention is clearly manifest, whether in wills, deeds or contracts. 
 It is a mistake to suppose that the estate of joint tenancy has been 
 prohibited by our statute. The creation of such an estate is not for- 
 bidden. It does not exist by operation of law, but it may exist by the 
 express declaration of the parties. No other construction could be 
 given to the language of section 5. By the terms of that section, an 
 estate in joint tenancy may be held in lands under a conveyance, where 
 the premises mentioned in the conveyance are thereby expressly •' de- 
 clared to pass, not in tenancy in common, but in joint tenancy." 
 Joint tenancy shall be deemed to be tenancy in common, "unless oth- 
 erwise expressly declared," except, of course, where the grant or de- 
 vise is to executors and trustees. The law will construe the estate to 
 be a tenancy in common, and not a joint tenancy, where no contrary 
 intention is expressly declared in the instrument; but where the in- 
 strument expressly declares that the land shall pass, not in tenancy in 
 common, but in joint tenancy, the law will permit the estate in joint 
 tenancy to exist. It will not do to say that section 1 abolished the 
 right of survivorship, and that section 5 merely permitted a joint ten- 
 ancy without the right of survivorship to be created by an express dec- 
 laration in the devise, grant, or conveyance. "The doctrine of surviv- 
 orship, or jus accrescendi, is the distinguishing incident of title by joint 
 tenancy, and therefore, at common law, the entire tenancy or estate, 
 upon the death of any of the joint tenants, went to the survivors." 
 4 Kent, Comm. 360. It can hardly be presumed that the legislature, in 
 authorizing an estate by joint tenancy to be created by an express dec- 
 laration in the grant or devise, referred to those technical joint tenan- 
 cies arising from the unities of time, title, interest, and possession. If 
 such a construction of section 5 is to prevail, then no right of survivor- 
 ship was reserved to executors and trustees by that section. In both 
 sections 1 and 5, joint tenancy is spoken of as the antithesis of tenancy 
 in common ; and tire distinguishing feature of the latter is that a ten- 
 ant in common is, as to his own undivided share, precisely in the posi- 
 tion of the owner of an entire and separate estate. In Kent's Com- 
 mentaries we find the following: "In New York, , . . estates in 
 joint tenancy were abolished, except in executors and other trustees, 
 unless the estate was expressly declared, in the deed or will creating 
 it, to pass in joint tenancy. ... In the states of Maine, . . . 
 Illinois, and Delaware, joint tenancy is placed under the same restric- 
 tions as in New York, and it cannot be created but by express words; 
 and, when lawfully created, it is presumed that the common-law inci- 
 dents belonging to that tenancy follow." 4 Kent, Comm. 361, 363. It 
 follows that the estate in joint tenancy, which may be expressly de- 
 clared to exist by section 5, includes the right of survivorship as one 
 
326 LEADING AND ILLUSTEATIVE CASES. 
 
 of its common-law incidents. In Arnold v. Jack's Ex'rs, 24 Pa. St. 57, 
 the supreme court of Pennsylvania, in commenting upon a statute of 
 that state whose language is the same as that of said section 1, say: 
 " It is a question worthy of consideration whether the provisions of the 
 act . . . apply to a joint tenancy created by express words in a de- 
 vise." That is to say, it is a question worthy of consideration whether 
 the provisions of section 1 would apply where the joint tenancy was 
 created by express words in the grant or devise, even if that section 
 had stood alone, and section 5 had never been enacted. In comment- 
 ing upon the legislation in reference to joint tenancy, Pomeroy, in his 
 work on Equity Jurisprudence, says: " This legislation, throughout all 
 the states, has declared that a conveyance of land to two or more 
 grantees shall, unless a contrary intention is clearly expressed, create 
 an ownership in common and not a joint ownership." 1 Pom. Eq. Jur. 
 g 408. In Stimpson v. Batterman, 5 Cush. 153, the devise was to the 
 "children and survivor or survivors of them;" and it was held that 
 these words were apt words to create an estate of joint tenancy, and 
 that the children took as joint tenants. In Mittel v. Karl, 133 111. 65, 
 34 N. E. R. 553, it was held that a deed to a man and his wife, and " the 
 survivor of them, in his or her own right," gave to the grantee dying 
 first an estate for life, with remainder in fee to the survivor. What is 
 the substantial difference between deeding or devising land to two 
 persons and the survivor of them, and deeding or devising land to two 
 persons to be held in joint tenancy? The distinguishing feature of 
 joint tenancy is the right of the survivor to take the whole estate. If 
 the statute does not prohibit the conveyance or devise of land to two 
 persons, and the survivor of them, so as to give the survivor the right to 
 take the whole estate, it is difficult to see why the statute should be con- 
 strued as prohibiting land from being held in joint tenancy, so far as 
 the right of survivorship is involved in joint tenancy, if the deed 
 or devise expressly declares that such land shall be held in joint ten- 
 ancy, and not in tenancy in common. Evidently, the statute does not 
 prevent parties from conveying or devising their lands so as to enforce 
 the right of survivorship, provided they indicate their intentions by 
 clear and express declarations in the deed or will. The question here 
 discussed has never before been fully and fairly presented to this court, 
 as arising directly out of the facts involved. If, in any decisions here- 
 tofore made, expressions have been made use of which are seemingly 
 at variance with these views, such expressions cannot be regarded 
 otherwise than as mere dicta. It follows from what has been said that 
 the deed from Schintz to Peter Mayer and Anna Mayer so far conveyed 
 to them an estate in joint tenancy as that Peter Mayer, the survivor, 
 took the whole title in fee to the lots after the death of his wife. Therp- 
 fore, the judgment below should have been for the defendants. 
 
LEADING AND ILLUSTEATIVE OASES. 327 
 
 Thornburg et al. v. Wiggins et ux. 
 
 Decision by the Supreme Court of Indiana, October 19, 1893. Opinion 
 
 by Dailey, J. 
 (Reported in 1S5 Ind. 178.) 
 This was an action instituted in the court below, in two paragraphs, 
 in the first of which appellees allege, in substance, that on and before 
 December 15, 1884, one Lemuel Wiggins was the owner of a certain 
 tract of real estate, therein described, containing eighty acres; that on 
 said day said Lemuel and his wife, Mary, executed and delivered to the 
 appellees a warranty deed conveying to them the fee simple of said real 
 estate; that at the time of said conveyance the appellees were, ever 
 since have been, and now are, husband and wife; that said deed con- 
 veyed to the appellees the title to said real estate which they took and 
 accepted, ever since have held, and now hold by entireties and not other- 
 wise; that appellees hold their title to said real estate by said deed of 
 Lemuel Wiggins, and not otherwise; that on the 24th day of April, 1877, 
 Isaac R. Howard and Isaac N. Gaston, who were defendants below, re- 
 covered a judgment in the Randolph circuit court for the sum of $403.70 
 and costs against one John T. Burroughs and the appellee Daniel S. 
 Wiggins as partners doing business under the firm name of Burroughs 
 & Wiggins; that on May 12, 1886, said Howard and Gaston caused an 
 execution to be issued on said judgment, and placed in the hands of 
 the appellant Thornburg, as sheriff of said county, and directed him 
 to levy the same on said real estate, and that said sheriff did, on the 
 25th day of May, 1886, levy said execution on said real estate, or on the 
 one-half interest in value thereof taken as the property of said appellee 
 Daniel S. Wiggins, to satisfy said writ ; that pursuant to the levy thereof 
 said sheriff proceeded, by the direction of said Howard and Gaston, to 
 advertise said real estate for sale under said execution and levy to make 
 said debt, and did on the 8th day of June advertise the same for sale 
 on the 3d day of July, 1886, and will on said day sell the same unless 
 restrained and enjoined from so doing by the court: that said Daniel 
 S. Wiggins has no interest in said premises subject to sale thereon; that 
 the appellees hold the title thereto as tenants by entireties, and not 
 otherwise; that the sale of said tract on said execution would cast a 
 cloud on the appellees' title, etc. The second paragraph is the same as 
 the first in substantial averments, except that in this paragraph the 
 appellees set out as a part thereof a copy of the deed under which they 
 claim title to said real estate as such tenants by entireties. The grant- 
 ing clause of the deed is as follows: "This indenture witnesseth that 
 Lemuel Wiggins and Mary Wiggins, his wife, of Randolph county, in 
 the state of Indiana, convey and warrant to Daniel S. Wiggins and 
 Laura Belle Higgins, his wife, in joint tenancy,'' etc. Appellants sepa- 
 
328 LEADING AND ILLUSTEATIVE CASES. 
 
 rately and severally denmrred to each paragraph of the complaint, and 
 their demurrers were overruled by the court, to which the appellants 
 excepted, and, refusing to answer the complaint, judgment was ren- 
 dered in favor of appellees on said demurrers. Appellants appeal, as- 
 signing as errors the overruling of said demurrers, and urge that the 
 appellees under the deed took as joint tenants, and hence that the hus- 
 band's interest is subject to levy and sale upon execution. 
 
 A joint tenancy is an estate held by two or more persons jointly, so 
 that during the lives of all they are equally entitled to the enjoyment 
 of the land, or its equivalent, in rents and profits; but upon the death 
 of one his share vests in the survivor or survivors until there be but 
 one survivor, when the estate becomes one in severalty in him, and de- 
 scends to his heirs upon his death. It must always arise by purchase, 
 and cannot be created by descent. Such estates may be created in fee, 
 for life, or years, or even in remainder. But the estate held by each 
 tenant must be alike. Joint tenancy may be destroyed by anything 
 which destroys the unity of title. Our law aims to prevent their crea- 
 tion, and they cannot arise except by the instrument providing for such 
 tenancy. Griffin v. Lynch, 16 Ind. 398. 9 Am. & Eng. Enc. Law, 850, 
 says: " Husband and wife are, at common law, one person, so that when 
 i-ealty vests in them both equally, . . . they take as one person; 
 they take but one estate, as a corporation would take. In the case of 
 realty they are seized, not per my et per tout, as joint tenants are, but 
 simply per tout; both are seized of the whole, and, each being seized of 
 the entirety, they are called ' tenants by the entirety,' and the estate 
 is an estate by entireties. . . . Estates by entireties may be created 
 by will, by instrument of gift or purchase, and even by inheritance. 
 Each tenant is seized of the whole; the estate is inseverable, cannot be 
 partitioned; neither husband nor wife can alone affect the inheiitance; 
 the survivor takes the whole." This tenancy has been spoken of as 
 " that peculiar estate which arises upon the conveyance of lands to two 
 persons who are at the time husband and wife, commonly called ' es- 
 ' tates by entirety.' " As to the general features of estates by entireties 
 there is little room for controversy, and there is none between counsel. 
 Our statute re-enacts the common law. Arnold v. Arnold, 30 Ind. 805; 
 Davis V. Clark, 26 Ind. 424. Strictly speaking, estates by entireties are 
 not joint tenancies (Chandler v. Cheney, 37 Ind. 391 ; Hulett v. Inlow, 
 57 Ind. 412), the husband and wife being seised, not of moieties, but both 
 seised of the entirety per tout, and not per my (Jones v. Chandler, 40 
 Ind. 589; Davis v. Clark, supra; Arnold v. Arnold, supra). It has been 
 said by this court in some of the earlier decisions that no particular 
 words are necessary. A conveyance which would make two persons 
 joint tenants will make a husband'and wife tenants of the entirety. It 
 is not even necessary that they be described as such, or their marital 
 relation referred to. Morriso£ v. Seybold, 93 Ind. 802; Hadlock v. Gray, 
 
LEADING AND ILLUSTKATIVE CASES. 329 
 
 104 Ind. 596, 4 N. E. R. 167; Dodge v. Kinzy, 101 Ind. 103; Hulett v. 
 Inlow, 57 Ind. 414; Chandler v. Cheney, 37 Ind. 395. But the court has 
 said that the general rule may he defeated by the expression of condi- 
 tions, limitations and stipulations in the conveyance which clearly 
 indicate the creation of a different estate. Hadlock v. Gray, supra; Ed- 
 wards V. Beall, 75 Ind. 401. Having its origin in the fiction of common- 
 law unity of husband and wife, the courts of some states have held that 
 married women's acts extending their rights destroyed estates by en- 
 tirety, but this court holds otherwise (Carver v. Smith, 90 Ind. 226); and 
 the greater weight of authority is in its favor. Our decisions hold that 
 neither alone can alienate such estate. Jones v. Chandler, supra; Mor- 
 rison V. Seybold, supra. There can be no partition. Chandler v. Cheney, 
 37 Ind. 391. A mortgage executed by the husband alone is void (Jones 
 V. Chandler, 40 Ind. 391), and the same is true of a mortgage executed 
 by both to secure a debt of the husband (Dodge v. Kinzy, 101 Ind. 105); 
 and the wife cannot validate it by agreement with the purchaser to in- 
 demnify in case of loss arising on account of it (State v. Kennett, 114 
 Ind. 160, 16 N. E. E. 173). A judgment against one of them is no lien 
 upon it. Ditching Co. v. Beck, 99 Ind. 250; McConnell v. Martin, 53 
 Ind. 434; Orthwein v. Thomas (111. Supp.), 13 N. E. R 564. Upon the 
 death of one, the survivor takes the whole in fee. Arnold v. Arnold, 
 supra. The deceased leaves no estate to pay debts (Simpson v. Pearson, 
 31 Ind. 1); and during their joint lives there can be no sale of any part 
 on execution against either (Carver v. Smith, supra; Dodge v. Kinzy, 
 101 Ind. 105; Hulett v. Inlow, 57 Ind. 413; Chandler v. Cheney, supra; 
 Davis V. Clark, supra; McConnell v. Martin, supra; Cox's Adra'r w 
 Wood, 20 Ind. 54). The statutes extending the rights of married women 
 have no effect whatever upon estates by entirety. Carver v. Smith, 90 
 Ind. 223. Such estate is in no sense either the husband's or the wife's 
 separate propei'ty. The husband may make a valid conveyance of his 
 interest to his wife, because it is with her consent. Enyeart v. Kepler, 
 118 Ind. 34, 20 N. E. R. 539. The rule that husband and wife take by 
 entireties was enacted in this territory in 1807, nine years before Indi- 
 ana was vested with statehood, and has been repeated tn each succeed- 
 ing revision of our statutes. It has thus been the law of real property 
 with us for eighty-six years. Section 2923, Revised Statutes of 1881, 
 provides that "all conveyances and devises of lands, or of any interest 
 therein, made to two or more persons, except as provided in the next 
 following section, shall be construed to create estates in common, and 
 not in joint tenancy, unless it be expressed therein that the grantees 
 or devisees shall hold the same in joint tenancy and to the survivor of 
 them, or it shall manifestly appear from the tenor of the instrument 
 that it was intended to create an estate in joint tenancy.'' Section 2923 
 provides that the preceding section shall not apply to conveyances 
 made to husband and wife. Under a statute of the state of Michigan, 
 
330 LEADING AND ILLTJSTEATIV^ CASES. 
 
 similar in all its essential qualities to our own, the court held that, 
 " where lands are conveyed in fee to husband and wife, they do not 
 take as tenants in common " (Fisher v. Provin, 25 Mich. 347), they take 
 by entireties. Whatever would defeat the title of one would defeat 
 the title of the other. Manwaring v. Powell, 40 Mich. 371. They hold 
 neither as tenants in common nor as ordinary joint tenants. The sur- 
 vivor takes the whole. During the lives of both, neither has an abso- 
 lute inheritable interest; neither can be said to own an undivided half. 
 Insurance Co. v. Resh, id. 241; Allen v. Allen, 47 Mich. 74, 10 N. W. E. 
 113. 
 
 While the rule of entireties was predicated upon a fiction, the legis- 
 lative intent in this state has always 'been to preserve this estate, and 
 has continued the peculiar statute for this purpose. Estates by en- 
 tireties have been preserved as between husband and wife, although 
 joint tenancies between unmarried persons have been abolished, so as 
 to provide a mode by which a safe and suitable provision could be 
 made for married women. Carver v. Smith, 90 Ind. 227. " Where a 
 rule of property has existed for seventy years, and is sustained by a 
 strong and uniform line of decisions, there is but little room for the 
 court to exercise its judgment on the reasons on which the rule is 
 founded. Such a rule of property will be overruled only for the most 
 cogent reasons, and upon the strongest convictions of its incorrectness. 
 . . . It is evident that the legislature of 1881 did not intend to re- 
 peal the statutes establishing tenancies by entireties. They simply in- 
 tended to enlarge in some particulars the power of the wife, which 
 existed already under the acts of 1853 and the years following. . , . 
 It did not abolish estates by entireties as between husband and wife, 
 but provided that when a joint deed was made to husband and wife 
 they should hold by entireties, and not as joint tenants or tenants in 
 common." Carver v. Smith, supra. In Chandler v. Cheney, 37 Ind., 
 on page 396, the court says: " It was a well-settled rule at common law 
 that the same form of words which, if the grantees were unmarried, 
 would have constituted them joint tenants, will, they being husband 
 and wife, make them tenants by entirety. The rule has been changed 
 by our statute above quoted." The whole trend of authorities, how- 
 ever, is in the direction of preserving such tenancies, where the grantees 
 sustain the relation of husband and wife, unless from the language 
 employed in the deed it is manifest that a different purpose was in- 
 tended. Where a contrary intention is clearly expressed in the deed, 
 a different rule obtains. "A husband and wife may take real estate 
 as joint tenants or tenants in common, if the instrument creating the 
 title use apt words for the purpose." 1 Prest. Est. 132; 3 Bl. Comm., 
 Sharswood's note; 4 Kent, Comm., side page 363; 1 Bish. Mar. Worn., 
 § 616 et seq.; Freem. Coten., § 73; Fladung v. Rose, 58 Md. 13-24. " And 
 in case of devise and conveyances to husband and wife together, though 
 
LEADING AND ILLUSTEATIVE OASES. 331 
 
 it has been said that they can take only as tenants by entireties, the 
 prevailing rule is that, if the instrument expressly so provides, they 
 may take as joint tenants or tenants in common." Stew. Husb. & 
 Wife, §g 307-310; Tied. Real Prop., § 244. "And as by common law it 
 was competent to make husband and wife tenants in common by 
 proper words in the deed or devise,'' etc. (Hoffman v. Stigers, 28 Iowa, 
 310; Brown v. Brown, 133 Ind. 476, 32 N. E. R. 1128), "so it seems that 
 husband and wife may by express words be made tenants in common 
 by gift to them during coverture" (McDermott v. French, 15 N. J. Eq. 
 80). In Hadlock v. Gray, 104 Ind. 599, 4 N. E. R. 167, a conveyance had 
 been made to Isaac Cannon and Mary Cannon, who were husband and 
 wife, during their natural lives, and the court say: "The language em- 
 ployed in the deed plainly declares that Isaac Cannon and Mary Can- 
 non are not to take as tenants by entirety. The result would follow 
 from the provision destroying the survivorship, for this is the grand 
 and essential characteristic of such a tenancy. . . . The whole 
 force of the language employed is opposed to the theory that the deed 
 creates an estate in fee in the husband and wife." The court further 
 say: "It is true that, where real property is conveyed to husband and 
 wife jointly, and there are no limiting words in the deed, they will 
 take the estate as tenants in entirety. . . . But, while the general 
 rule is as we have stated it, there may be conditions, limitations and 
 stipulations in the deed conveying the property which will defeat the 
 operation of the rule. The denial of this proposition involves the af- 
 firmation of the proposition that a grantor is powerless to limit or de- 
 fine the estate which he grants, and this would conflict with the funda- 
 mental principle that a grantor may for himself determine what estate 
 he will grant. To deny this right would be to deny to parties the right 
 to make their own contracts. It seems quite clear upon principle that 
 a grantor and his grantees may limit and define the estate granted by 
 the one and accepted by the other, although the grantees be husband 
 and wife." The court then adopts the language of Washburn (1 Washb. 
 Real Prop. 674) and Tiedeman, supra. In Edwards v. Beall, supra, the 
 court hold that when lands are granted husband and wife as tenants in 
 common they will hold by moieties, as other distinct and individual 
 persons would do. If, as contended by appellees, the rule prevail that 
 the same words which, if the grantees were unmarried, would have 
 constituted them joint tenants, will, they being husband and wife, make 
 them tenants by entireties, then it would result as a logical conclusion 
 that husband and wife cannot be joint tenants, because by this rule, 
 words, however apt or appropriate to create a joint tenancy, would, in 
 a conveyance to husband and wife, result in an estate by entireties; 
 joint tenancy would be superseded or put in abeyance by the estate 
 created by law — tenancy by entirety. The result of such reasoning 
 would be to destroy the contractual power of the parties where this re- 
 
332 LEADING AND ILLUSTRATIVE OASES. 
 
 lationship between the grantees is shown to exist. Any other process 
 of reasoning would carry the rule too far, and we must hold it modilied 
 to the extent here indicated. Husband and wife, notwithstanding ten- 
 ancies by entirety exist as they did under the common law, may take 
 and hold lands for life, in joint tenancy or in common, if appropriate 
 language be expressed in the deed or will creating it; and we know of 
 no more apt term to create a joint tenancy in the grantees in this es- 
 tate than the expression "convey and warrant to Daniel S. Wiggins 
 and Laura Belle Wiggins in joint tenancy." These words appear in the 
 granting clause of the deed conveying the land in question, and the es- 
 tate accepted and held by the grantees is thereby limited, and they 
 hold, not by entireties, but in joint tenancy. A joint tenant's interest 
 in property is subject to execution. Freeni. Ex'ns, 125. Judgment re- 
 versed, with instructions to the circuit court to sustain the demurrer 
 to each paragraph of the complaint. 
 
 Dyer v. Clark et al. 
 
 Decision by Supreme Judicial Court of Massachusetts, March Term, 
 1843. Opinion by Shaw, C. J. 
 
 {Reported in 5 Mete. 56S.) 
 
 This is a suit in equity by the surviving partner of the firm of Bur- 
 leigh & Dyer, established by articles of copartnership, under seal, for 
 the purpose of carrying on the business of distillers. The principal 
 question is one which has arisen in several other oases, and is this: 
 whether real estate, purchased by copartners from partnership funds, 
 to be held, used and occupied for partnership purposes, is to be deemed 
 in all respects real estate, in this commonwealth, to vest in the part- 
 ners severally as tenants in common, so that, on the decease of either, 
 his share will descend to his heirs, be chargeable with his wife's dower, 
 and in all respects held and treated as real estate held by the deceased 
 partner as a tenant in common; or, whether it shall be regarded as 
 guasi-personal property, so as to be held and appropriated as personal 
 property, first to the liquidation and discharge of the partnership debts, 
 and to the adjustment of the partnership account, and payment of the 
 amount due, if any, to the surviving partner, before it shall go to the 
 widow and heirs of the deceased partner. This is a new question here, 
 and comes now to be decided for the first time. 
 
 There are some principles, bearing upon the result, which seem to be 
 well settled, and may tend to establish the grounds of equity and law 
 upon which the decision must be made. It is considered as established 
 law that partnership property must first be applied to the payment of 
 partnership debts, and therefore that an attachment of partnership 
 property for a partnership debt, though subsequent in time, will take 
 
LEADING AND ILLUSTRATIVE CASES. 333 
 
 precedence of a prior attachment of the same property for the debt of 
 one of the partners. It is also considered that, liowever extensive the 
 partnership may be, thougli tlie partners may hold a large amount and 
 great variety of property, and owe many debts, the real and actual in- 
 terest of each partner in the partnership stock is the net balance which 
 will be coming to him after payment of all the partnership debts and 
 a just settlement of the account between himself and his partner or 
 partners. 1 Ves. Sr. 343. 
 
 The time of the dissolution of a partnership fixes the time at which 
 the account is to be taken, in order to ascertain the relative rights of 
 the partners, and their respective shares in the joint fund. The debts 
 may be numerous, and the funds widely dispersed and difficult of col- 
 lection; and therefore much time may elapse before the affairs can be 
 wound up, the debts paid, and the surplus put in a condition to be di- 
 vided. But whatever time may elapse before the final settlement can 
 be practically made, that settlement, when made, must relate back to 
 the time when the partnership was dissolved, to determine the relative 
 interests of the partners in the fund. 
 
 When, therefore, one of the partners dies, which is de facto a dissolu- 
 tion of the partnership, it seems to be the dictate of natural equity 
 that the separate creditors of the deceased partner, the widow, heirs, 
 legatees, and all others claiming a derivative title to the property of 
 the deceased, and standing on his rights, should take exactly the same 
 measure of justice as such partner himself would have taken had the 
 partnership been dissolved in his life-time; and such interest would be 
 the net balance of the account, as above stated. 
 
 Such indeed is the result of the application of the well known rules 
 of law when the partnership stock and property consist of personal 
 estate only. And as partnerships were formed mainly for the promo- 
 tion of mercantile transactions, the stock commonly consisted of cash, 
 merchandise, securities, and other personal property; and therefore the 
 rules of law governing that relation would naturally be framed with 
 more especial reference to that species of property. It is therefore 
 held that, on the decease of one of the partners, as the surviving part- 
 ner stands chargeable with the whole of the partnership debts, the in- 
 terest of the partners in the chattels and ohoses in action shall be 
 deemed so far a joint tenancy as to enable the surviving partner to 
 take the property by survivorship, for all purposes of holding and ad- 
 ministering the estate, until the effects are reduced to money, and the 
 debts are paid; though, for the purpose of encouraging trade, it is held 
 that the harsh doctrine of l\i& jus accrescendi, which is an incident of 
 joint tenancy, at the common law, as well in real as in personal estate, 
 shall not apply to such partnership property; but, on the contrary, 
 when the debts are all paid, the effects of the partnership reduced to 
 money, and the purposes of the partnership accomplished, the surviv- 
 
334 LEADING AND ILLUSTEATIVE CASES. 
 
 ing partner shall be held to account with the representatives of the 
 deceased for his just share of the partnership funds. 
 
 Then the question is whether there is anything so peculiar in the 
 nature and characteristics of real estate as to prevent these broad prin- 
 ciples of equity from applying to it. So long as real estate is governed 
 by the strict rules of the common law, there would be, certainly, great 
 diflficulty in shaping the tenure of the legal estate in such form as to 
 accomplish these objects. Should the partners take their conveyance 
 in such mode as to create a joint tenancy, as they still may, though 
 contrary to the policy of our law, still it would not accouiplish the pur- 
 poses of the parties; first, because either joint tenant might, at his 
 option, break the joint tenancy and defeat the right of survivorship, by 
 an alienation of his estate, or (what would be still more objectionable) 
 the right of survivorship at the common law would give the whole 
 estate to the survivor, without liability to account, and thus wholly 
 defeat the claims of the separate creditors, and of the widow and heirs 
 of the deceased partner. 
 
 But we are of opinion that the object may be accomplished in equity 
 so as to secure all parties in their just rights, by considering the legal 
 estate as held in trust for the purposes of the partnership; and since 
 this court has been fully empowered to take cognizance of all implied 
 as well as express trusts, and carry them into effect, there is no diffi- 
 culty, but on the contrary great fitness, in adopting the rules of equity 
 on the subject, which have been adopted for the like purpose,, in Eng- 
 land and in some of our sister states. And it appears to us that con- 
 sidering the nature of a partnership, and the mutual confidence in 
 each which that relation implies, it is not putting a forced construe, 
 tion upon their act and intent to hold that when property is purchased 
 in the name of the partners, out of partnership funds and for partner- 
 ship use, though by force of the common law they take the legal estate 
 as tenants in common, yet that each is under a conscientious obliga- 
 tion to hold that legal estate until the purposes for which it was so 
 purchased are accomplished, and to appropriate it to those purposes, 
 by first applying it to the payment of the partnership debts, for which 
 both his partner and he himself are liable, and until he has come to a 
 just account with his partner. Each has an equitable interest in that 
 portion of the legal estate held by the other, until the debts, obligatory 
 on both, are paid, and his own share of the outlay for partnership stock 
 is restored to him. This mutual equity of the parties is greatly strength 
 ened by the consideration that the partners may have contributed 
 to the capital stock in unequal proportions, or indeed that one may 
 have advanced the whole. Take the case of a capitalist who is willing 
 to put in money, but wishes to take no active concern in the conduct 
 of business, and a man who has skill, capacity, integrity and industry 
 to make hira a most useful active partner, but without property, and 
 
LEADING AND ILLUSTEATIVE OASES. 335 
 
 they form a partnership. Suppose real estate, necessary to the carry- 
 ing on of the business of the partnership, should be purchased out of 
 the capital stock, and on partnership account, and a deed taken to them 
 as partners, without any special provisions. Credit is obtained for the 
 firm as well on the real estate as the other property of the firm. What 
 are the true equitable rights of the partners, as resulting from their 
 presumed intentions, in such real estate ? Is not the share of each to 
 stand pledged to the other, and has not each an equitable lien on the 
 estate, requiring that it shall be held and appropriated, first to pay the 
 joint debts, then to repay the partner who advanced the capital, before 
 it shall be applied to the separate use of either of the partners ? The 
 creditors have an interest, indirectly, in the same appropriation; not 
 because they have any lien, legal or equitable (3 Story, Eq., § 1253), upon 
 the property itself, but on the equitable principle, which determines 
 that the real estate so held shall be deemed to constitute part of the 
 fund from which their debts are to be paid, before it can be legally or 
 honestly diverted to the private use of the partners. Suppose this trust 
 is not implied, what would be the condition of the parties, in the case 
 supposed, in the various contingencies which might happen? Suppose 
 the elder and wealthy partner were to die. The legal estate descends 
 to his heirs, clothed with no trust in favor of the surviving partner. 
 The latter, without property of his own, and relying on the joint fund, 
 which, if made liable, is sufficient for the purpose, is left to pay the 
 whole of the debt, whilst a portion, and perhaps a large portion, of the 
 fund hound for its payment is withdrawn. Or suppose the younger 
 partner were to die, and his share of the legal estate should go to his 
 creditors, wife or children, and be withdrawn from the partnership 
 fund; it would work manifest injustice to him who had furnished the 
 fund from which it was purchased. But treating it as a trust, the 
 rights of all parties will be preserved; the legal estate will go to those 
 entitled to it, subject only to a trust and equitable lien to the surviv- 
 ing partner, by which so much of it shall stand charged as may be 
 necessary to accomplish the purposes for which they purchased it. To 
 this extent, and no further, will it be bound; and, subject to this, all 
 those will take who are entitled to the property, namely, the creditors, 
 widow, heirs and all others standing on the rights of the deceased part- 
 ner. 
 
 It may happen that real estate may be so purchased by partners, and 
 out of partnership funds, in such manner as to preclude such implied 
 trust, and indicate that the parties intended to purchase property to 
 be held by them separately for their separate use; as where there is 
 such an express agreement at the time of the purchase, or a provision 
 in the articles of copartnership, or where the price of such purchase 
 should be charged to the partners respectively, in their sevefal accounts 
 with the firm. This would operate as a division and distribution of so 
 
336 LEADING AND ILLUSTRATIVE CASES. 
 
 much of the funds, and each would take his share divested of any im- 
 plied trust. If, in the conveyance, the grantees should be described as 
 tenants in common, it would be a circumstance bearing on the ques- 
 tion of intent, though perhaps it might be considered a slight one, be- 
 cause those words would merely make them tenants in common of the 
 legal estate, which, by operation of law, they would be without them. 
 But, as we have already seen, such legal estate is not at all incompat- 
 ible with an implied trust for the partnership. 
 
 The result of this part of the case seems to us to be this: that when, 
 by the agreement and understanding of partners, their capital stock 
 and partnership fund consist, in whole or in part, of real estate — inas- 
 much as it is a well-known rule governing the relation of partnership 
 that neither partner can have an ultimate and beneficial interest in the 
 capital until the debts are paid and the account settled; that both rely 
 upon such rule and tacitly claim the benefit of it, and expect to be 
 bound by it, — the same rule shall extend to real estate. The same mut- 
 ual confidence, which governs the relation in other respects, extends to 
 this; and, therefore, when real estate is purchased as part of the capi- 
 tal, whether by the form of the conveyance the legal estate vests in 
 them as joint tenants or tenants in common, it vests in them and their 
 respective heirs clothed with a trust for the partners in their partner- 
 ship capacity, so as to secure the beneficial interest to them until the 
 purposes of the partnership are accomplished. It follows, as a neces- 
 sary consequence, that such partnership real estate cannot be conveyed 
 away and alienated by one of the partners alone without a breach of 
 such trust; and that such a conveyance would not be valid against the 
 other partner, unless made to one who had no notice, actual or con- 
 structive, of the trust. But, if a person knows that a particular real 
 estate is the partnership property of two or more, and he attempts to 
 acquire a title to any part of it from one alone, without the knowledge 
 or consent of the other, there seems to be no hardship in holding that 
 he takes such title at his peril, and on the responsibility of the person 
 with whom he deals. 
 
 But we think the same conclusion is well supported by authorities, 
 although there has been some diversity of opinion amongst the earliest 
 cases. 
 
 The adjudged oases were so fully examined by the counsel in their 
 arguments that it is unnecessary to state them in detail. The principles 
 which have already been suggested as the grounds on which we decide 
 the present case were applied in Phillips v. Phillips, 1 Mylne & K. 649; 
 Broom v. Broom, 3 Mylne & K. 443; Sigourney v. Munn, 7 Conn. 11; 
 Hoxie V. Carr, 1 Sumn. 173, Fed. Cas. No. 6,802. In these cases all the 
 previous decisions on the subject were carefully considered. See also 
 3 Kent, Comm. (4th ed.) 36-39; 1 Story, Eq., sees. 674, 675; 3 Story, Eq., 
 sec. 1207; Colly. Partn. 76; Cary, Partn. 27, 28; Houghton v. Houghton^ 
 11 Sim. 491. 
 
' LEADING- AND ILLUSTEATIVE OASES. 337 
 
 It has been supposed that the case of Goodwin v. Richardson, 11 Mass. 
 469, stands opposed to the decision now made. I do not think it does. 
 That case was decided in 1814, before equity powers existed in this 
 commonwealth on the general subject of trusts. It was in terms a 
 question as to the vesting of the real estate; and the court were bound 
 to decide the case for the defendant, if they found, upon the facts, that 
 the estate in question had vested in the partners, on foreclosure, as ten- 
 ants in common. Had they decided the other way, they must have de- 
 cided that partners, taking real estate in satisfaction of a partnership 
 debt, by foreclosing a mortgage, would hold the estate as joint tenants 
 with right of survivorship at law, without liability to account — a prin- 
 ciple directly opposed to the statutes of 1785, chapter 63, respecting 
 joint tenancy; because in that case and at that time the real estate 
 must descend and vest according to the rules of law, and there was no 
 court of equity competent to require the surviving partner to account 
 with the representatives of the deceased party. 
 
 In that case, as it happened, both the separate estate and the part- 
 nership estate were insolvent, and therefore good justice would have 
 been done in deciding that the plaintiff should recover for the benefit 
 of the partnership creditors. But the court were deciding upon a rule of 
 law which must apply to all cases, and they could not have decided 
 that for the plaintiff without holding that all such estate, held by part- 
 ners, should be deemed joint estate. With aright of survivorship at law, 
 and without liability to account; a rule opposed to the plainest prin- 
 ciples of equity, and to the spirit, if not to the letter, of the statute re 
 specting joint tenancy. The court were dealing solely with a question 
 of law, in determining a legal estate, and intimate that a court of 
 equity might make joint real estate applicable, as personal, to the pay- 
 ment of partnership debts. We consider, therefore, that that decision 
 is not opposed to the decision, upon equitable principles, to which we 
 now propose to come. 
 
 On the facts of the present case, we are of opinion that the real estate 
 in question was a part of the capital stock purchased out of the part- 
 nership funds, for the partnership use, and for the account of the firm. 
 The partners entered into articles as distillers. The business required 
 a large building and fixtures, which they purchased and paid for in 
 part out of the joint funds, and gave notes in the partnership name for 
 the remainder of the price, and the estate was regarded by them as 
 partnership effects. The repairs and improvements were also charged 
 to joint account. These are all decisive indications of joint property. 
 The plaintiff has received a sum in rents and profits that have accrued 
 since his partner's death. The defendant, Clark, as administrator of 
 Burleigh, the deceased partner, has sold an undivided half of the prop- 
 erty as his, under a license, and with the assent of the plaintiff. The 
 widow joined to release her dower for a nominal sum. But we cannot 
 23 
 
338 LEADING AND ILLUSTEATIVE CASES. 
 
 perceive that the right of the widow is distinguishable from that of the 
 creditors and heirs of the deceased partner. As far as this estate wa- 
 held in trust by her deceased husband, she was not entitled to dower. 
 For all beyond that she will be entitled, because he held it as legal es- 
 tate, unless she is barred by her release; of which we give no opinion. 
 The plaintiff is entitled to a decree charging the amount of rents and 
 profits in his hands, and so much of the proceeds of the sale made by 
 the administrator, as will be sufficient to discharge the balance of the 
 partnership account; and the rest of the proceeds will remain in the 
 hands of Clark, the administrator of Burleigh, to be distributed accord- 
 ing to law. 
 
 OHAPTEE X. 
 
 ESTATES UPON CONDITION, 
 
 Warner v. Bennett et al. 
 
 Decision by Supreme Court of Errors of Connecticut, April, 1863. 
 Opinion by Sanford, J. 
 
 {Reported in SI Conn. 468.) 
 
 In our opinion the conveyance from Tomlinson to Bennett and 
 others was of a fee-simple estate upon condition expressed in the deed. 
 The instrument is a common deed of bargain and sale to the grantees, 
 their heirs, and assigns forever, for certain used specified in the deed, 
 which contains the following clause : "The conditions of the within 
 deed are such that whenever the within named premises shall be con- 
 verted to any other use than those named within, and the within 
 grantees shall knowingly persist in the use thereof for any purpose 
 whatever except such as are described in said within deedj the said 
 grantees forfeit the right herein conveyed to the within described 
 premises. Upon the grantor paying to the said Hatch and Bennett and 
 other stockholders the appraised value of such buildings as may be 
 thereon standing." 
 
 Blackstone says estates upon condition " are such whose existence 
 depends upon the happening or not happening of some unoert-ain event 
 whereby the estate may be originally created or enlarged, or finally 
 defeated." 3 Bl. Comm. 1.11. Littleton says, " It is called an estate 
 upon condition because that the estate of the feoffee is defeasible'ifth* 
 condition be not performed." Co. Litt., § 335. " A condition is created 
 by inserting the very woid 'condition ' or 'on condition ' in the agree- 
 jnent." 1 Bouv. Inst. 385. Conditions are precedent or subsequent^ 
 ■" Precedent 'aTie such as must: happen or be p€(rformed before the estate 
 
LEADING AND ILL0STEATIVE OASES. 339 
 
 can vest or be enlarged. Subsequent are suoh by the failure or non- 
 performance of which an estate already vested may be defeated." 2 
 Bl. Comm. 154. In the case of a condition " the estate or thing is given 
 absolutely without limitation, but the title is subject to be divested by 
 the happening or not happening of an uncertain event. Where, on the 
 contrary, the thing or estate is granted or given until an event shall 
 have arrived, and not generally with a liability to be defeated by the 
 happening of the event, the estate is said to be given or granted sub- 
 ject to a limitation." 2 Bouv. Inst. 275,; 2 Bl. Comm. 155. 
 
 In the case before us the estate vested in the grantees upon the de- 
 livery of the deed, to have and to hold to them, their heirs and assigns, 
 not until they should convert the property to other uses than those 
 specified in the deed, nor so long as they should continue to use it for 
 the purposes specified, but forever; with a proviso or condition ex- 
 pressed in the deed, that if they should convert the property to other 
 uses they should forfeit their estate. The words employed are most 
 appropriate and apt to make an express condition in deed. They are 
 " the conditions of the within deed are such," etc. And in Portington's 
 Case, 10 Coke, 41a, it is said that "express words of condition shall not 
 be taken for a limitation," It has indeed been held that they may be 
 so taken where the estate is limited over to a third person upon the 
 breach or non-performance of the condition (Fry's Case, 1 Inst. 202), 
 but there is no such limitation over in the case before us. So when 
 it is said that " whenever the within named premises shall be converted 
 to any other use," etc., " the grantees forfeit the right herein conveyed," 
 it is clearly indicated that the estate thus forfeited by the misappro- 
 priation is to be out off before the time originally contemplated for its 
 termination by the parties. 
 
 But it is said that by the terms of the instrument the forfeiture de- 
 pends not merely upon the misappropriation of the property by the 
 grantees, but also upon the grantor's payment of the appraised valine 
 of the building. Suppose it is so, how can that affect the question 
 whether this is a condition in deed or a limitation? No matter how 
 many events the forfeiture depends upon, nor how many individuals 
 must act in producing them, when all those events concur and co-exist 
 the forfeiture is effected as completely as if it depended upon the oc- 
 currence of a single event, and the action or omission of a single indi- 
 vidual. But the payment for the building was not an event upon 
 which the forfeiture depended. It was .merely a duty imposed upon 
 the grantor by the contract in addition to that which the law imposed, 
 ito. enable him to take advant9.ge of the breach of condition and enforce 
 the forfeiture. JHis l^gal obligation to interior breaqh of the condi- 
 tion was in no wise affected by it. The estate conveyed byijhe defld 
 Twas nqt an easement, lOr any other right or interest in the prope,i;ty 
 ■ess tbap a fe.e simple. The fact -that the instrBme^titiwas signed bj 
 
340 LEADING AND ILLUSTRATIVE CASES. 
 
 both of the parties to it is of no importance. They were neither more 
 nor less bound by the stipulations and conditions contained therein by 
 reason of such signature. The instrument contains no contract on the 
 part of the grantor to pay for the building. The provision upon that 
 subject operates as a qualification of the grantor's right to enforce the 
 forfeiture and regain his property, but operates in no other way. But 
 for that provision the estate granted could have been put an end to, 
 and revested in the grantor, by an entry only; under that provision an 
 entry could be made available only by payment for the building alsa 
 
 We think it clear that the estate of the grantees was an estate on 
 condition in deed, and that it was an estate upon condition subsequent; 
 and hence, notwithstanding a breach of the condition by reason of 
 which the estate might have been defeated, it must continue to exist 
 in the grantees, with all its original qualities and incidents, until the 
 grantor or his heirs, by an entry (or its equivalent, a continual claim), 
 have manifested, in the way required by law, their determination to 
 take advantage of the breach of condition to avail themselves of their 
 legal rights, and to reclaim the estate thus forfeited. 
 
 The law upon this point is thus laid down by Professor Washburn, 
 in the first volume of his treatise on Real Property (page 450), with ac- 
 curacy and precision. " A condition, however, defeats the estate to 
 which it is annexed only at the election of him who has a right to en- 
 force it. Notwithstanding its breach, the estate, if a freehold, can 
 only be defeated by an entry made, and until that is done it loses none 
 of its original qualities or incidents." See also Id. 453; 2 Bl. Comm. 155; 
 3 Cruise, Dig. 43. 
 
 But there is in this bill no allegation that an entry for condition 
 broken was ever made. No right to maintain this suit is disclosed, no 
 title to the property is set up, nothing is claimed but a right of entry 
 for condition broken. And for this reason, if for no other, the bill is 
 insufficient, and the decree must be pronounced erroneous. 
 
 The allegation in relation to an abandonment of the property is im- 
 material. It is not averred that the grantees had abandoned the prop- 
 erty, but only that they had abandoned it " so far as the uses named in 
 said deed are concerned; " that is, that they had ceased to use the prop- 
 erty for the purposes for which the grant was made, not that they had 
 ceased to use it altogether. What effect an absolute and entire aban- 
 donment of the property by the grantees would have had upon the 
 legal or equitable rights of this petitioner, we are not now called upon 
 to decide. 
 
 Secondly. A right of entry for condition broken is not assignable at 
 common law, and we have no statute which makes it so. 3 Cruise, 
 Dig. 4; 4 Cruise, Dig. 113; 1 Spence, Eq. Jur. 153; 1 Swift, Dig. 93. The 
 grantor or his heirs only can enter for breach of such condition. 1 
 Washb. Real Prop. 451; 3 Cruise, Dig. 44. The petitioner, therefore, 
 
LEADING AND ILLUSTRATIVE CASES. 341 
 
 could have obtained no right or title to make an entry for breach of 
 the condition, and without such entirety the estate of the grantees 
 could not be terminated, and no suit at law or in equity could be main- 
 tained against the occupant of the property. 
 
 Thirdly. If there was a breach of the condition and a forfeiture of 
 the grantees' estate in consequence, and if a right of entry could be 
 and was in fact assigned to the petitioner, still the petitioner could not 
 obtain the relief for which he seeks in a court of equity, because that 
 court never lends its aid to enforce a forfeiture. 4 Kent, Comm. 130; 
 2 Story, Eq. Jur., § 1319; Livingston v. Tompkins, 4 Johns. Ch. 415. 
 
 Lastly. If the right, title or interest, whatever it was, of the grantor 
 or his heirs was assignable, and was assigned to and vested in the 
 petitioner, as he claims, he had no occasion to come into a court of 
 equity for relief. We do not see why he might not have entered for 
 breach of the conditions, requested the respondent to unite with him 
 in procuring an appraisal of the building, if he refused procured such 
 appraisal without the respondent's co-operation, tendered the amount 
 of the appraisal, and brought his action of ejectment. The petitioner's 
 legal right, if he had it, to put an end to the grantees' estate and 
 obtain possession of the property, we think could have been defeated 
 by the respondent's refusal to co-operate in the appraisal or accept the 
 tender. See 1 Swift, Dig. 295; Powell, Cont. 417; Whitney v. Brooklyn, 
 2 Conn. 406. We know of no power in a court of equity to compel the 
 respondent to join the petitioner in procuring an appraisal, nor to 
 make one, in such a case as this; and we see no occasion for the exer- 
 cise of such a power if it exists. We think the petitioner has an ade- 
 quate remedy for the enforcement and protection of all his rights at 
 law. 
 There is manifest error in this record. 
 
 In this opinion the other judges concurred, except Button, J., who, 
 having tried the case in the court below, did not sit. 
 
 Henderson et al. v. Hunter et al. 
 
 Decision by Supreme Court of Pennsylvania, January 4, 1869. Opinion 
 
 by Agnew, J. 
 
 (Reported in 59 Pa. St. SS5.) 
 
 This was an action of trespass by church trustees under a deed of 
 trust made by Thomas Pillow in 1836, for taking down and removing 
 the materials of a church building in 1867. 
 
 The case turns on the limitation in the deed. The legal estate of the 
 trustees clearly has no duration beyond the use it was intended to pro- 
 tect. The word "successors" is used to perpetuate the estate, but as 
 the trustees are an unincorporated body having no legal succession, 
 
3i2 LEADING AND ILLUSTEATIVE CASES. 
 
 there is nothing in the terms of the grant to carry the trust beyond its 
 appropriate use. This brings us to the limitation of the use itself. 
 
 It is for the erection of " a house or place of worship for the use of 
 the members of the Methodist Episcopal Church of the United States 
 of America (so long as they use it for that purpose, and no longer, and 
 then to return back to the original owner), according to the rules and 
 discipline which, from time to time, may be agreed upon and adopted 
 by the ministers and preachers of the said church at their general con- 
 ference in the United States of America." This is the main purpose of 
 the trust, the other portions of the deed relating to the use being an- 
 cillary only to this principal object. The interjected words, " so long 
 as they use it for that purpose, and no longer, and then to return back 
 to the original owner," are terms of undoubted limitation, and not of 
 condition. They accompany the creation of the estate, qualify it, and 
 prescribe the bounds beyond which it shall not endure. 
 
 The equitable estate is in the members of the church so long as they 
 use the house as a place of worship in the manner prescribed, and no 
 longer. This is the boundary set to their interest, and when this limit 
 is transcended the estate expires by its own limitation, and returns to 
 its author. The words thus used have not the slightest cast of a mere 
 condition. No estate for any fixed or determinate period had been 
 granted before these expressions were reached, and they were followed 
 by no proviso or other indication of a condition to be annexed. 
 
 "A special limitation," says Mr. Smith in his work on Executory In- 
 terests (page 12), " is a qualification serving to mark out the bounds of 
 an estate, so as to deteritaine it ipso facto in a given event without ac- 
 tion, entry or claim, before it would, or might, otherwise expire by 
 force of, or according to, the genei-al limitation." A special limitation 
 maybe created by the words " until," "so long," "whilst" and "dur- 
 ing," as when land is granted to one so long as he is parson of Dale, or 
 while he continues unmarried, or until out of the rents he shall have 
 made £500. 2 Bl. Comm. 155; Smith, Ex. Int. 12; 2 Coke, 12P-121; 
 Fearne, Rem. 12, 13, note, p. 10. "In such case," says Blackstone, "the 
 estate determines as soon as the contingency happens (when he ceases 
 to be parson, marries a wife, or has received the £500), and the subse- 
 quent estate which depends on such determination becomes imme- 
 diately vested, without any act to be done by him who is next in 
 expectancy." 
 
 The effect of the limitation in this case was that the estate of the 
 trustees terroinated the moment the house ceased to be used as a place 
 of worship according to the rules and discipline of the church, by the 
 members to whose use in that manner it had been granted; and the re- 
 version %pso faeto returned to Thomas Pillow, the grantor. The aban- 
 donment of the house as a place of worship, therefore, became a chief 
 question in the cause, because the title of the trustees to the property, 
 
LEADING AND ILLUSTEATIVE CASES. 34.^ 
 
 and consequently their right to maintain this aotioii, hinged upon this 
 event. Then, as the use of the members of this church was to be ac- 
 cording to the rules and discipline from time to time adopted by the 
 general conference, it became a question whether the alleged abandon- 
 ment of the house as a place of worship was by church authority, and, 
 according to the rules and discipline then existing; for a mere tempo- 
 rary suspension of services there, or a discontinuance of the use with- 
 out authority, would not ipso facto determine the use. Hence an 
 inquiry both into the fact of abandonment and the authority of the 
 church became essential. 
 Judgment aflSrmed. 
 
 CHAPTER XI. 
 
 FUTURE ESTATES AND INTERESTS. 
 
 Buckler v. Hardy. 
 
 Decision by Court of Queen's Bench, 1597. 
 (Reported in Cro. Eliz. 585.) 
 
 Ejectione Firmce. Upon a special verdict the case was, Andrew Buck- 
 ler being tenant for life, the remainder to Christopher Buckler in tail 
 remainder to the right heirs of the said Andrew, lets the land to J. S. 
 for four years, and afterwards granted the reversion to one Row, ha- 
 bendum from midsummer next for the life of the said Andrew Buckler. 
 After midsummer, J. S., the lessee, attorned to Row, and after that 
 granted all his terra unto him, Row entered, and granted the land to 
 Ha;rdy, the defendant, to have and to hold to him for his life; but no 
 livery was made. Hardy entered; and after the four years expired 
 Hardy continued his possession. Andrew Buckler levied a fine to him 
 sur conusance de droit come ceo, etc. Christopher Buckler, the tenant 
 in tail, enters for a forfeiture, and lets it to the plaintiff for years, upon 
 whom the defendant re-entered. Et si, etc. 
 
 The first question was, when this reversion was granted by Andrew 
 Buckler to Row, habendum, after midsummer, and the attornment to 
 that grant is after midsummer, whether it be a good or void grant. 
 And all the justices agreed that the grant was void, being limited to 
 begin at a day to come; fbr if it should be good, the lessor should have 
 a particular estate reserved in himself in the meantime, which cannot 
 be. So if the attornment had been made thereto presently, yet it had 
 been clearly ill. And although the attornment was not until after 
 midsummer, yet it cannot help the grant, which was void at the begin- 
 ning; for quod ab initio nan valet, in tractu temporis convalescere non 
 
34:i LEADING AND ILLUSTEATIVE CASES. 
 
 potes; as if a man makes a lease for years, and before the lessee's entry 
 he grants the reversion, and afterwards the lessee enters and attorns, 
 yet it is void; because he had not at that time a reversion to grant. So 
 in Trevillian's Case one devised his land before the statute of wills and 
 afterwards the statute was made and the devisor died, yet this will is 
 void; but if a man grants a reversion, habendum aiter the death of the 
 tenant for life, it is good, for it is but a limitation when he shall have 
 the possession; but, if it were habendum after the death of a stranger, 
 it should be otherwise. Popham said it had been ruled where a feoff- 
 ment was made habendum after Michaelmas and the attorney made 
 livery after Michaelmas, yet it was void. 
 
 Secondly. Admitting the reversion passed not to Eow, when he af ter- 
 ■ wards purchased the term, and granted the land to Hardy for his life 
 (no livery being made)^ whether the land passed by that grant. And 
 Gawdy, Fenner and Popham held that the term passed; for (10 Eliz.) 
 Dyer, 277, is where a termor for years devised the land to one for his 
 life, that the term passed. So here. But Popham said if there had been 
 in the deed a letter of attorney to make livery, then peradventure it 
 would have been otherwise, for thereby the purpose of the grantor had 
 appeared to pass a freehold and not the term onlj'; but here is no more 
 than the grant of his term during his life. 
 
 Thirdly. Admitting he had the term or not by this grant, whether, 
 after the term expired, he continuing the possession shall be said to be 
 tenant at sufferance. And if he hath not the term, whether, by his 
 entry, he be a disseisor. And then when Andrew Buckler levied a fine 
 unto him sur conusance de droit come ceo, etc., it is a forfeiture every 
 way; for the conusor and the oonusee are both estopped to say that he 
 had not any estate before the fine by the gift of the conusor. Where- 
 fore it is a manifest forfeiture; and so the entry of Charles Buckler, 
 tenant in tail, is congeable. Wherefore it was adjudged for the plaintiff. 
 See same case in the common pleas, Cro. Eliz. 450, 3 Cooke, 55, and 
 Moore, 433. 
 
 Morse v. Proper. 
 
 Decision by tte Supreme Court of Georgia, January 31, 1889. Opinion 
 by Simmons, J. 
 
 {Reported in 82 Oa. IS.) 
 On the 13th of January, 1855, L. S. Morse executed a deed conveying 
 certain real and pe rsonal property to his step-mother, Mrs. Anna Morse 
 for and during her natural life; the habendum and tenendum clause of 
 the will being as follows : " The said Anna Morse to have and to hold said 
 house and lot, and said negroes and their increase, during her natural 
 life, for her sole and separate use and benefit, free from the debts and 
 liabilities of her husband, the said Oliver Morse, either heretofore made 
 
LEADINa AND ILLUSTEATIVE CASES, 345 
 
 or hereafter contracted; and after the death of the said Anna Morse I 
 give said property, real and personal, and its increase, to such of the 
 children of the said Anna Morse by her present husband as may be liv- 
 ing at her death, and the representatives of such as may be dead, in fee, 
 the representative to take the share their deceased parent vpould have 
 been entitled to had he or she been alive; but if the said Anna Morse 
 should die without child or children, or the representative of either, 
 then the vphole of the above-named property, with the increase, I give 
 unto the said Oliver Morse in fee simple." The deed appointed Oliver 
 Morse trustee, with power to sell and reinvest for the purposes set forth. 
 Oliver and Anna Morse had, at the time of the execution of this deed, 
 a son, Daniel Morse, who was born on the 1st of January, 1854, and died 
 on the 18th of July, 1868, and at his death was the only child, and none 
 other was born to them. Daniel died without issue, and before his 
 father. The trustee sold the property conveyed by the deed, and rein- 
 vested the proceeds in real estate, taking deeds thereto in his name as 
 trustee; and at his death he had on hand a certain dwelling-house and 
 a store-house and fifty acres of land. After the death of Daniel Morse, 
 the child, on the 18th of July, 1868, Oliver Morse, on the 5th of 
 August, 1868, made a will by which he bequeathed to his wife, Anna 
 Moi'se, "all and every interest, claim or title, either present or in ex- 
 pectancy, and all my real estate that I own individually or as trustee 
 for her." Oliver Morse died in a few days after making this will. Anna 
 Morse lived until the 18th of November, 1887, when she died, leaving no 
 child or children, or representative of child or children, and leaving a 
 will in which she bequeathed all her property of every character to her 
 sister, Mrs. Sarah Proper, and making Mrs. Proper her executrix. Mrs. 
 Proper undertook to carry out the will, and to administer upon the 
 property above described; and L. S. Morse, the grantor in the deed to 
 Mrs. Anna Morse, filed a bill claiming that the property constituted no 
 part of Anna Morse's estate, and that his father had no right to trans- 
 mit the remainder interest to his wife by will or deed; that the re- 
 mainder interest was "gone forever," and the property reverted to him, 
 the original grantor; and that Anna Morse had no right to convey said 
 property in her will to her sister Mrs. Proper. He prayed an injunction 
 restraining Mrs. Proper, the executrix, from interfering with his rights 
 touching the property, and from exercising control or management over 
 it; and prayed for the appointment of a receiver, etc. The defendant 
 answered the bill, and claimed the absolute title to the property in dis- 
 pute under her sister's will. She insisted in her answer that Oliver 
 Morse had such an interest as he could dispose of by will, and that he 
 devised it to his wife, Anna, and that Anna devised it to her, and that 
 her title to and ownership of the property were absolute. The chan- 
 cellor refused the injunction prayed for by L. S. Morse, and the com- 
 plainant excepted. 
 
346 lEADING AND ILLUSTEATI-VE OASES. 
 
 The question for decision in this case is whether Oliver Morse had 
 such an interest in this property, at the time of his death in 1868, as he 
 could transmit by will to his wife. If he did have such a devisable in- 
 terest, having devised it to his wife, and his wife having devised it to 
 her sister (the defendant in error here), the chancellor was right in 
 refusing the injunction. It will be remembered that the deed from 
 L. S. Morse to Anna Morse gave her this property for and during her 
 natural life, and after her death it was to go to her children or the 
 representatives of the children; and, in case she died leaving no chil- 
 dren or representatives of children, the property was to go to Oliver 
 Morse in fee. In our opinion, Oliver Morse, under this deed, took a re- 
 mainder interest in this property. Was it a vested or a contingent re- 
 mainder? The plaintiif in error contended that it was a contingent 
 remainder, and that the contingency was as to the person, and there- 
 fore Oliver Moore, under section 2266 of the code, had no such interest 
 in the property as he could devise to his wife. Counsel for the defend- 
 ant in error contended that Oliver took a vested remainder under the 
 deed made in 1855, but that, if it was a contingent remainder, the con- 
 tingency was as to the happening of an event, and not as to the person- 
 and therefore he had a right to devise it. 
 
 This case was ably argued on both sides, and we have given it a great 
 deal of consideration, and we think that Oliver Morse had such an in- 
 terest in this property as he could devise to his wife; and that there- 
 fore the chancellor was right in refusing the injunction. We think 
 that under the deed he took a contingent remainder, and the contin- 
 gency was as to the event, and not as to the person. The language of 
 the code on this subject is as follows: " Section 8265. Remainders are 
 either vested or contingent. A vested remainder is one limited to a 
 certain person, at a certain time, or upon the happening of a necessary 
 event A contingent remainder is one limited to an uncertain person, 
 or upon an event which may or may not happen. Sec. 2366. If the re- 
 mainder-man dies before the time arrives for possessing his estate in 
 remainder, his heirs are entitled to a vested remainder interest, and to 
 a contingent remainder interest when the contingency is not as to the 
 person, but as to the event." The deed in ( liis case declares that " if the 
 said Anna Morse should die without child or children, or the representa- 
 tive of either, then the whole of the above-named property, with the in- 
 crease, I give unto the said Oliver Morse in fee simple." We think the 
 contingency depended on the event of Anna Morse dying without 
 children, or the representative of children. The deed means, in our 
 opinion, that in that event, or in that case, or when that particular 
 thing should, happen, Oliver Morse should take the property in fee. 
 There was no uncertainty as to who should take if there were no 
 children, or representative of children, living at the time of her death. 
 The person to take in that event was certain, and was fixed by deed. 
 
LEADING AND ILLUSTEATIVE CASES. 347 
 
 In case there were no children, or representatives of children, living at 
 the time of Anna's death, the deed points unerringly to the person who 
 would take, and d'eclares that he should take in fee simple, which, under 
 our law, means not only himself, but his heirs and assigns. If the deed 
 had said that in case Mrs. Morse died without children, or representative 
 of children, then to the heirs or right heirs of Oliver Morse, the person to 
 take in that event would have been uncertain; or if it had said, in case of 
 Mrs. Morse dying without children, or representative of children, to the 
 heirs of John Smith, the person to take would have been uncertain ; 
 but, as we have said before, the deed does not leave it uncertain who 
 is to take in the event she died without children, or representative of 
 children. It seems that in that case Oliver Morse is to take in fee sim- 
 ple. Oliver Morse having a contingent remainder interest in this 
 property, did he have a right to dispose of it by will to his wife ? We 
 think he did. The old doctrine was that contingent remainders were 
 not devisable by the person entitled thereto; but that doctrine was 
 abandoned many years ago, and it is now held almost universally that 
 a contingent remainder is devisable where the contingency is not as to 
 the person, but as to the event. Indeed, that is the principle announced 
 in our code, section 2366. That section declares that, if the remainder- 
 man dies before the time arrives for the possessing his estate, his heirs 
 are entitled to a contingent interest, when the contingency is not as 
 to the person, but as to the event. If the contingency be as to the per- 
 son, and that person be not in esse at the time when the contingency 
 happens, his heirs are not entitled. It is contended by counsel for the 
 plaintiff in error that the latter part of this section controls the case; 
 but we think that we have shown that the contingency was not as to the 
 person, but as to the event, and therefore the latter part of the section 
 does not apply to this case. Counsel for the defendant in error cited 
 the case of Loring v. Arnold, 15 R. I. 428, 8 Atl; R. 335, the facts of 
 which case, we think, are exactly the same as in the case now under 
 consideration. In that case it appears that Thomas Whipple died in 
 1843, leaving a will by which he devised certain real estate to. his son 
 James, " for and during his natural life, and at his decease, if he should 
 leave any lawful child or children, then to them, their heirs and as- 
 signs, forever; but, if he should die without leaving any lawful child 
 or children, then my will is that the same shall descend and be divided 
 equally among his brother T., his sisters G.,, M, S., A. and J. A. B^. to 
 them, their heirs and assigns forever." J. A. B. died in Illinois, in 18S1, 
 leaving by will all her estate in Rhode Island to C. E. B. James died in 
 1885, leaving no wife or children; and it was held that J. A. B. had a 
 contingent remainder, and that, although this contingency was not de- 
 termined until after the death of J. A. B., yet, the person who was to 
 take being certain, the interest was descendible and devisable. So, 
 also, in 3 Shars. & B. Lead. Gas. Real Prop. 374; Buzby's Appeal, 61 Pa. 
 
34:8 LEADING AND ILLUSTEATIVE CASES. 
 
 St. Ill; Chess' Appeal, 87 Pa. St. 363; Fearne, Rem. (7th ed.) 364, 365; 
 4 Kent, Comm. 264; 2 Washb. Real Prop. 523. The case of Jackson v. 
 Waldron, 13 Wend. 178, relied on so strongly by the plaintifiE in error, 
 was overruled in the case of Miller v. Emans, 19 N. Y. 384. The de- 
 cision in the case of Moorhouse v. Wainhouse, decided in 1767, and re- 
 ported in 1 W. Bl. 638, also relied on by the plaintiff in error, was put 
 upon the peculiar circumstances of that case, and the facts of that 
 case are different from the facts in this. Judgment affirmed. 
 
 CHAPTEE XII. 
 
 REMAINDERS, VESTED AND CONTINGENT. 
 
 Chapin et al. v. Crow. 
 
 Decision by Supreme Court of Illinois, October 27, 1893. Opinion by 
 
 Shope, J. 
 
 {Reported in U7 HI. S19.) 
 
 Statement of Facts. — This was a bill for specific performance, filed 
 April 21, 1892, by Alice J. Crow against appellants, in which it is alleged 
 that complainant sold to appellants, and they agreed to purchase, at 
 the price of $8,250, certain lands. The contract of sale was reduced to 
 writing, signed by the parties, which recited that $500 of the consider- 
 ation had been paid as earnest money, and appellants contracted to pay 
 the further sum of $7,750 upon the making of a good and sufScient 
 deed conveying to them "a good and merchantable title to said prem- 
 ises." It is stipulated that the vendor shall convey a good and mer- 
 chantable title, subject to certain leases, etc., and shall furnish an ab- 
 stract brought down to date, showing such title. It is then provided 
 that the purchaser, within ten days after receiving the abstract, shall 
 deliver a note or memorandum of objections to the title, if any, etc.; 
 and, if material objections are found, not cured within thirty days after 
 notice, the contract to be void, at the option of the purchaser, etc. The 
 cause was heard on bill, answer and proofs, and a decree entered ac- 
 cording to the prayer of the bill. 
 
 Opinion. — The question presented is whether, by the deed to the War- 
 ringtons, the sons took a vested estate in remainder after the death of 
 their father. If they did, it is conceded appellee had a merchantable 
 title, and the decree was properly entered. The three — Henry, George 
 and James Warrington — joined in a warranty deed to appellee's grantor, 
 and the question is whether that conveyed a perfect title. The deed 
 calling for construction 'was made by Horatio L. Wait and wife to 
 
LEADING AND ILLDSTKATIVE CASES. 349 
 
 Henry Warrington, George Warrington and James Warrington, par- 
 ties of tlie second part, and purported to convey the premises in ques- 
 tion to tlie "said Henry Warrington and his assigns for and during the 
 natural life of the said Henry Warrington; and upon his death, then 
 unto his sons, the said George Warrington and James Warrington, of 
 the second part, to their heirs and assigns, forever, in equal parts if 
 they shall both survive the said Henry Warrington; but, if either of 
 said sons shall die vpithout issue him surviving, then the survivor shall 
 take all the said property hereby conveyed; but, if one of said sons 
 shall die leaving issue, then one moiety to the survivor and the other 
 moiety in equal parts to the children of the deceased." Habendum: 
 "To have and to hold, all and singular, the above mentioned and de- 
 scribed premises, together with the appurtenances, in conformity with 
 and in pursuance of the conditions of the aforementioned grant." 
 
 It win not be necessary in this case to discuss at length the doctrine 
 of remainders, however interesting that may be. It should, however, 
 be remarked that the rule is well established that contingent remain- 
 ders are not favored, and unless, from the language of the instrument, 
 it is manifest that a contrary result was intended, the estate will be re- 
 garded as vested, and not contingent. It is, however, equally well 
 settled that eflEect must be given to the language employed, and, if an 
 estate upon contingency is created, it must be so declared. "Vested 
 remainder (or remainder executed, whereby a present interest passes 
 to the party, although to be enjoyed m/Miwro) is where the estate is 
 invariably fixed, to remain to a determinate person, after the particular 
 estate is spent." 3 Bl. Comm. 168. Or, as said by Kent (4 Comm. 202): 
 " A remainder is vested when there is an immediate right of present 
 enjoyment, or a present fixed right of future enjoyment. ... A 
 vested remainder is an estate to take effect in possession after a par- 
 ticular estate is spent." For, though it may be uncertain whether a 
 remainder will ever take effect in possession, it will nevertheless be a 
 vested remainder if the interest is fixed. It is the present capacity of 
 taking effect in possession, if the possession were to become vacant, that 
 distinguishes a vested from a contingent remainder. In cases of vested 
 remainders a present interest passes to a determinate and fixed person 
 or class of persons, to be enjoyed in the future. "Contingent or exec- 
 utory remai nders (whereby no present interest passes) are where the 
 estate in remainder is limited to take effect either to a dubious and 
 uncertain person or upon a dubious and uncertain event; so that the 
 particular estate may chance to be determined and the remainder never 
 take effect." 8 Bl. Comm. 169. " It is," says Mr. Preston (page 74), " not 
 the uncertainty of enjoyment in future, but the uncertainty of the 
 right to that enjoyment, which marks the difference between an inter- 
 est which is vested and one which is contingent. It is in one case the 
 certainty and fixed right of having the enjoyment at the time when 
 
350 LEADING AND ILLUSTEATIVE CASES. 
 
 the possession shall fall, and in the other case the uncertainty of having 
 this right at that time, which are universally the characteristics and 
 distinguishing features; the former instance of a vested estate, and in 
 the latter instance an interest in contingency." Thus, it is said by 
 Blackstone (3 Comm. 170): "A remainder may be also contingent where 
 the person to whom it is limited is iixed and certain, but the event 
 upon which it is to take effect is vague and uncertain ; as, where land 
 is given to A. for life, and, in case B. survives him, then with remain- 
 der to B. in fee. Here B. is a certain person, but the remainder to him 
 is a contingent remainder, depending upon a dubious event, — the un- 
 certainty of his surviving A. During the joint lives of A. and B. it is 
 contingent; and, if B. dies first, it never can vest in his heirs, but is 
 forever gone. If A. dies first, the remainder to B. becomes vested." 
 Fearne, Rem., p. 1. In Smith v. West, 103 111. 332, this court quoted 
 with approval from Hawley v. James, 5 Paige, 466, as follows: "Where 
 the remainderman's right to an estate in possession cannot be defeated 
 by third persons, or contingent events, or by a failure of a condition 
 precedent, if he lives, and the estate limited to him by way of remain- 
 der continues till the precedent estates are determined, his remainder 
 is vested ii) interest," — and from Moore v. Littel, 41 N. Y. 73, that "de- 
 cisions and text-writers agree that by the common law remainder is 
 vested where there is a person in being who has a present capacity to 
 take in remainder, if the particular estate be then presently deter- 
 mined; otherwise the remainder is contingent. . . . The person 
 must be one to whose competency to take no further or other condi- 
 tion attaches, etc., i. e., in respect to whom it is not necessary that any 
 event shall occur, or condition be satisfied, save only that the preced- 
 ent estate shall determine." Olney v. Hull, 21 Pick. 311; Thompson v. 
 Ludington, 104 Mass. 193; Hull v. Beals, 28 Ind. 25; Dingley v.Dingley, 
 5 Mass. 537; Sohofield v. Olcott, 120 111. 363, 11 N. E. R. 351. 
 
 In this case, that a life estate was vested in Henry Warrington is un- 
 questioned. The grant is to Henry Warrington and assigns, for and 
 during his natural life; and upon his death, then unto his sons, the said 
 George Warrington and James Warrington, of the second part, in equal 
 parts. If the ^rant to the sons had stopped here there could have been 
 no question that the estate vested in the sons as tenants in common- 
 Such would have been the effect without the words, "in equal parts." 
 These words, "an equal parts," are to be read with the succeeding 
 words, "if they shall both survive the said Henry Warrington." There 
 can be, no question about the intent thus far. But these words are fol- 
 lowed by .the clause: "But if either of said sons shalLdie without issue 
 him surviving, then the survivor shall take all of said, property .hereby 
 conveyed." That is, the intention expressed is, they shall take in. equal 
 iparts if .tbeyiboth isurvive the life .tenant, :but, if one die -without sur- 
 viving issue, fthsotllfij: shall take thevwhole; -thus attempting, upon the 
 
LEADING AND ILLgSTEATIVE CASES. 351 
 
 contingency of one dying during the continuance of the life estate, 
 without issue surviving him, to oast the vrhole estate upon the sur- 
 vivor. It IS unnecessary to determine whether, if the granting clause 
 had ended with this provision, the estate would have vested in the two 
 subject to be divested as to one who should die during the life estate 
 without surviving issue or not. In our opinion, the remaining portion 
 of the granting clause clearly indicates an intention that, upon the 
 contingency that one of the sons shall die before the termination of 
 the life estate, leaving issue him surviving, the estate of the decedent 
 shall go to his children. As we have seen, after granting to the sons 
 and their heirs and assigns in remainder in equal parts if they shall 
 both survive the life tenant, but, if either should die without issue sur- 
 viving before the falling in of the precedent estate, then the survivor 
 should take the whole, there is the further condition: "But if one of 
 said sons shall die leaving issue, then one moiety to the survivor and 
 the other moiety in equal parts to the children of the deceased." It is 
 clear that by the words " if one of said sons shall die leaving issue " was 
 meant if the sons shall die leaving issue before the vesting of the estate 
 in possession, — that is, before the termination of the intermediate es- 
 tate, — then, and in that event, the moiety that would have vested in 
 him had he lived is granted to his children. 
 
 The term " children," in its natural sense, is a word of purchase and 
 will be taken to have been so used, unless so controlled and limited by 
 other expressions in the instrument as to show that it was intended as 
 a word of limitation. We need not extend this opinion by a discussion 
 of this proposition ; it will be found to be well established. In re San- 
 ders, 4 Paige, 293; Baker v. Scott, 62 111. 86; Beacroft v. Strawn, 67 111. 
 38; Rogers v. Rogers, 3 Wend. 503. Not only are there no words tend- 
 ing to show that the word "children " was here used as meaning heirs 
 generally, but it is clearly shown to have meant the issue of the son 
 dying. Upon the contingency, therefore, of one of the sons dying be- 
 fore the falling in of the life estate, leaving children surviving him, 
 such children would take, not as heirs of the son dying, but as grantees 
 in the deed, — as purchasers. Ebey v. Adams, 135 111. 80, 35 N. E. R. 
 1013, and cases cited. This being so, it is apparenUthat it was not iixed 
 and determined by the deed who should take absolutely at the termi- 
 nation of the precedent estate. If the sons survive the father, the es- 
 tate would be vested in them, both in interest and possession. If one 
 of them died, leaving children him surviving, the estate would, upon 
 the teTmination of the life estate, vest in the survivor of the two sons 
 and the children of the deceased son. If the limitation had been to the 
 sons, and, if they died before the life estate terminated, then to a 
 stranger, Dfo qiuestiom could, have been made 'that the lestarte was con- 
 tingent upon their surviving until the expiration t>f the intermediate 
 estate. Precisely the same occurs heve. The grant is 'to "the sons, -if 
 
352 LEADING AND ILLUSTBATIVE CASES. 
 
 alive when the estate terminates; if not, to their children surviving 
 them as a class. It cannot be known until the death of the life ten- 
 ant whether the contingency upon which the sons are to take will 
 exist. Nor can it be known whether the children of either one of them 
 will take, as that will depend upon the contingency of issue being 
 born, the death of the sons, and the children surviving them. Nor 
 need we determine here what would be the result if both sons should 
 die during the continuance of the particular estate, with or %vithout 
 issue. It is clear, we think, that the estate in the sons James and 
 George Warrington, was contingent upon their surviving the life 
 tenant; or, if one of them should die, and not the other, that the de- 
 ceased son should have died without issue him surviving. It follows 
 necessarily that we are of opinion the deed from the Warringtons to 
 Smith, and from Smith to appellee, did not convey a good and mer- 
 chantable title, and the decree ordering specific performance of the 
 agreement of purchase and sale was therefore erroneously entered. It 
 will accordingly be reversed, and the bill dismissed. 
 
 Hardage et al. v. Stroope. 
 
 Decision by Supreme Court of Arkansas, December 23, 1893. Opinion 
 
 by Battle, J. 
 
 {Reported in 58 Arh. SOS.) 
 
 J. L. Stroope and wife conveyed the land in controversy to Tennessee 
 M. Carroll, " to have and to hold the said land unto the said Tennessee M. 
 Carroll for and during her natural life, and then to the heirs of her 
 body, in fee simple ; and if, at her death, there are no heirs of her body to 
 take the said land, then in that case to be divided and distributed ac- 
 cording to the laws for descent and distribution in this state.'' After 
 this, Mrs. Carroll conveyed it in trust to James M. Hardage to secure 
 the payment of a debt. She had two children born to her after the 
 conveyance by J. L. Stroope and wife, but they died in her life-time. 
 She died leaving no heirs of her body, but left her father, W. S. Stroope, 
 surviving. After her death the land was sold under the deed of trust, 
 and was purchased by Joseph A. Hardage. W. S. Stroope, the appellee, 
 now claims it as the heir of Mrs. Carroll, and Joseph A. Hardage, the 
 appellant, claims it under his purchase. 
 
 The rights of the parties depend on the legal eflfeot of the following 
 words contained in the deed to Mrs. Carroll: "To have and to hold the 
 said land unto the said Tennessee M. Carroll for and during her natural 
 life, and then to the heirs of her body, in fee simple; and if, at her 
 death, there are no heirs of her body to take the said land, then in that 
 case to be divided and distributed according to the laws for descent 
 and distribution in this state." Appellee contends that Mrs. Carroll 
 
LEADING AND ILLUSTEATIVB OASES. 353 
 
 only took a life estate in the land under this clause, and that he is en- 
 titled to the remainder, she having left no descendants. On the other 
 hand, the appellant contends that the remainder in fee vested in the 
 children, and, when they died, Mrs. Carroll inherited it, and the whole 
 estate in the land became vested in her; and that, if this contention 
 be not true, the deed to Mrs. Carroll comes within the rule in Shelley's 
 Case, and vested in her the estate in fee simple; and that in either 
 event he is entitled to the land. 
 
 It is obvious that the deed to Mrs. Carroll created in her no estate in 
 tail. Her grantor reserved no estate or interest, nor granted any re- 
 mainder, after a certain line of heirs shall become extinct, but con- 
 veyed the land to her to hold during her life, and then to the heirs of 
 her body in fee simple. No remainder vested in her children. It was 
 to be inherited by the heirs of her body, and they were her descendants 
 who survived her and were capable of inheriting at the time of her 
 death. They might have been grandchildren. They were not the 
 children, as they died in the life-time of the mother. 
 
 The effect of the deed, as explained by the habendum, in the absence 
 of the rule in Shelley's Case, was to convey the land to Mrs. Carroll for 
 her life, and then to her lineal heirs, and, in default thereof, to her 
 collateral heirs. As there can be no collateral heirs only in the absence 
 of the lineal, the deed conveyed the land to Mrs. Carroll, in legal 
 phraseology, for her life, and after her death to her heirs. 
 
 Two questions now confront us: (1) Does the rule in Shelley's Case 
 obtain in this state ? (2) And, if so, does the deed in question fall 
 within it? 
 1. Is it in force in this state ? 
 
 Section 566 of Mansfield's Digest provides: "The common law of 
 England, so far as the same is applicable and of a general nature, and 
 all statutes of the British parliament in aid of or to supply the defect 
 of the common law made prior to the fourth year of James the First 
 that are applicable to our own form of government, of a general nature 
 and not local to that kingdom, and not inconsistent with the constitu- 
 tion and laws of the United States or the constitution and laws of this 
 state, shall be the rule of decision in this state unless altered or re- 
 pealed by the general assembly of this state." 
 
 The rule in Shelley's Case, as stated by Mr. Preston, which Chancellor 
 Kent says is full and accurate, is as follows: "When a person takes an 
 estate of freehold, legally or equitably, under a deed, will, or other writ- 
 ing, and in the same instrument there is a limitation by way of remain- 
 der, either with or without the interposition of another estate, or of an 
 interest of the same legal or equitable quality, to his heirs, or heirs of 
 his body, as a class of persons to take in succession from generation to 
 generation, the limitation to the heirs entitles the ancestor to the whole 
 estate." Its origin is enveloped in the mists of antiquity. It was laid. 
 23 
 
354 LEADING AND ILLUSTRATIVE CASES. 
 
 down in Shelley's Case in the twenty-third year of the reign of Queen 
 Elizabeth, upon the authority of a number of cases in the year books- 
 Sir William Blackstone, in his opinion in Perrin v. Blake, 1 W. Bl. 673, 
 cites a case in 18 Edw. II. as establishing the same rule. The earliest 
 intelligible case on the subject, however, is that of Provost of Beverly, 
 3 Y. B. 9, which arose in the reign of Edward III., and substantially 
 declared the rule as laid down in Shelley's Case. 
 
 Various reasons have been assigned for the origin of the rule. Chan- 
 cellor Kent, upon this subject, says: '-The judges in Perrin v. Blake 
 supra, imputed the origin of it to principles and policy deduced from 
 feudal tenure, and that opinion has been generally followed in all the 
 succeeding discussions. The feudal policy undoubtedly favored de- 
 scents as much as possible. There were feudal burdens which attached 
 to the heir when he took as heir by descent, from which he would have 
 been exempted if he took the estate in the character of a purchaser. 
 An estate of freehold in the ancestor attracted to him the estate im- 
 ported by the limitation to his heirs; and it was deemed a fraud upon 
 the feudal fruits and incidents of wardship, marriage and relief to give 
 the property to the ancestor for his life only, and yet extend the enjoy- 
 ment of it to his heirs, so as to enable them to take as purchasers, in 
 the same manner and to the same extent, precisely, as if they took by 
 hereditary succession. The policy of the law will not permit this, and 
 it accordingly gave the whole estate to the ancestor, so as to make it 
 descendible from him in the regular line of descent. Mr. Justice Black- 
 stone, in his argument in the exchequer chamber in Perrin ,v. Blake, 
 does not admit that the rule took its rise merely from feudal principles, 
 and he says he never met with a trace of any such suggestion in any 
 feudal writer. He imputes its origin, growth and establishment to the 
 aversion that the common law had to the inheritance being in abey- 
 ance; and it was always deemed by the ancient law to be in abeyance 
 during the pendency of a contingent remainder in fee or in tail. An- 
 other foundation of the rule, as he observes, was the desire to facilitate 
 the alienation of land, and to throw it into the track of commerce one 
 generation sooner, by vesting the inheritance in the ancestor, and 
 thereby giving him the power of disposition. Mr. Hargrave, in his ob- 
 servations concerning the rule in Shelley's Case, considers the principle 
 of it to rest on very enlarged foundations; and, though one object of it 
 might be to prevent frauds upon the feudal law, another and a greater 
 one was to preserve the marked distinctions between descent and pur- 
 chase, and prevent title by descent from being stripped of its proper 
 incidents, and disguised with the qualities and properties of a pur- 
 chase. It would, by that invention, become a compound of descent 
 and purchase, — an amphibious species of inheritance,— or a freehold 
 with a perpetual succession to heirs, without the other properties of 
 inheritance. In Doe v. Laming, 3 Burrows, 1100, Lord Mansfield con- 
 
LEADINO AND ILLUSTRATIVE OASES. 355 
 
 Bidered the maxim to have been originally introduced, not only to save 
 to the lord the fruits of his tenure, but likewise for the sake of spe- 
 cialty creditors. Had the limitation been construed a contingent re- 
 mainder, the ancestor might have destroyed it for his own benefit; and, 
 if he did not, the lord would have lost the fruits of his tenure, and the 
 specialty creditors their debts." 
 
 But, whatever may have been the cause of its origin, its effect has 
 been "to facilitate the alienation '" of land " by vesting the inheritance 
 in the ancestor, instead of allowing it to remain in abeyance until his 
 decease." Its operation in this respect has commended it to the fa- 
 vorable consideration of the most learned and able men of Great Britain 
 and the United States, and doubtless contributes to its preservation 
 and continuance, and enabled it to survive the innovation of legislation 
 and the changes and fluctuations of centuries. Based upon the broad 
 principles of public policy and commercial convenience, which abhor 
 the locking up and rendering inalienable any class of property, it has 
 ever been in harmony with the genius of the institutions of our country, 
 and with the liberal and commercial spirit of the age. Hence, it has 
 been recognized and enforced as a part of the common law of nearly 
 every state where it has not been repealed by statute. Starnes v. Hill 
 (N. C), 16 S. E. R 1011; Baker v. Scott, 63 111. 88; Hageman v. Hageman, 
 129 111. 164, 21 N. E. R. 814; Doebler's Appeal, 64 Pa. St. 9; Kleppner v. 
 Laverty, 70 Pa. St. 72; Polk v. Faris, 9 Yerg. 209; Crockett v. Robin- 
 son, 46 N. H. 454; 4 Kent, Comm., marg. pp. 229-233; 2 Washb. Real 
 Prop. (5th ed.), pp. 655-657, 
 
 The rule has never been changed in this state except in one respect, — 
 estates tail have been abolished. Section 643 of Mansfield's Digest 
 provides that, whenever any one would become seized at common law 
 "in fee tail of any lands or tenements by virtue of a devise, gift, grant 
 or other conveyance, such person, instead of being or becoming seized 
 thereof in fee tail, shall be adjudged to be and become seized thereof 
 for his natural life only, and the remainder shall pass in fee-simple ab- 
 solute to the person to whom the estate tail would first pass according 
 to the course of the common law by virtue of such devise, gift, grant 
 or conveyance.'' To this extent it has been repealed; in other respects 
 it remains in full force in this state; and it was so held in Patty v. 
 Goolsby, 51 Ark. 71, 9 S. W. R. 846. 
 
 3. Does this case come within the rule? 
 
 "Whenever there is a limitation to a man which, if it stood alone, 
 would convey to him a particular estate of freehold, followed by a 
 limitation to his heirs ... (or equivalent expressions) either im- 
 mediately, or after the interposition of one or more particular estates, 
 the apparent gift to the heirs, . . ." according to the rule in Shel- 
 ley's Case, " is to be construed as a limitation of the estate of the 
 ancestor, and not as a gift to his heirs." The theory was that, in cases 
 
356 LEADING AND ILLUSTBATIVE OASES. 
 
 which come within the rule, the heirs take by descent from the an- 
 cestor, and they cannot do so unless " the whole estate is united, and 
 vests as an executed estate of inheritance in the ancestor." This theory 
 was based upon the fact that " the ancestor was the sole ascertained 
 and original attracting object,— the groundwork of the grantor's or 
 testator's bounty," — and upon the presumption, arising from the fact, 
 that the grantor or testator, as the case may be, " meant the person 
 who should take after the ancestor should be any person indiscrimi- 
 nately who should answer the description of heirs ... of the an- 
 cestor, and be entitled only in respect to such description," and that 
 the estate devised or conveyed should vest in them in that character 
 only. '• In order to effectuate this intent, and secure the succession to 
 its intended objects," the rule rejects, as inconsistent and incompatible 
 with this primary or paramount intent, "any other intent than that 
 the ancestor should take an estate for life only, and the heirs should 
 take by purchase," and vests the estate of inheritance in the ancestor. 
 This was considered necessary to accomplish the primary object of the 
 grantor or ancestor. 2 Fearne, Rem., pp. 216-220. 
 
 " Hargrave has justly observed," says Fearne on Remainders, " that 
 the rule cannot be treated as a medium for discovering the testator's 
 intention, but that the ordinary rules for the interpretation of deeds 
 should be first resorted to; and that, when it is once settled that the 
 donor or testator has used words of inheritance according to their legal 
 import,— has applied them intentionally to comprise the whole line of 
 heirs to the tenant for life, has made him the terminus by reference to 
 whom the succession is to be regulated, — then the rule applies. But 
 the rule is a means for effectuating the testator's primary and para- 
 mount intention, when previously discovered by the ordinary rules of 
 interpretation, — a means of accomplishing that intention to comprise, 
 by the use of the word 'heirs,' the whole line of heirs to the tenant for 
 life, and to make him the terminus, by reference to whom the succes- 
 sion is to be regulated; and the way in which the rule operates, as a 
 means of doing this, is by construing the word ' heirs ' as a word of 
 limitation, or, in other words, by construing the limitation to the heirs, 
 general or special, as if it were a limitation to the ancestor himself and 
 his heirs, general or special." 2 Fearne. Rem., p. 321. 
 
 In Doebler's Appeal, 64 Pa. St. 9, Judge Sharswood, in discussing the 
 rule in Shelley's Case, said: "If the intention is ascertained that the 
 heirs are to take qua heirs, they must talie by descent, and the inherit- 
 ance vest in the ancestor." The rule in Shelley's Case is never a means 
 of discovering the intention. It is applicable only after that has been dis- 
 covered. It is then an unbending^rule of law, originally springing from 
 the principle of the feudal system; and, though the original reason of 
 it — the preservation of the rights of the lord to his relief, primer seisin, 
 wardship and marriage — has passed away, it is still maintained as a 
 
LEADING AND ILLTJSTEATIVE CASES. 35Y 
 
 part of the system of real property which is based on feudalism, and 
 as a rule of policy. It declares inexorably that, where the ancestor 
 takes a preceding freehold by the same instrument, a remainder shall 
 not be limited to the heirs, qua heirs, as purchasers. If given as an 
 immediate remainder after the freehold, it shall vest as an executed 
 inheritance in the ancestor; if immediately after some other inter- 
 posed estate, then it shall vest in him as a remainder. Wherever 
 this is so it is not possible for the testator to prevent this legal conse- 
 quence by any declaration, no matter how plain, of a contrary inten- 
 tion. This is a subordinate intent which is inconsistent with, and must 
 therefore be sacrificed to, the paramount one. Even if he expressly 
 provides that the rule shall not apply that the ancestor shall be tenant 
 for life only, and impeachable for waste, if he interpose an estate in 
 trustees to support contingent remainders, or, as in this will, declare 
 in so many words that he shall in no wise sell or alienate, as it is in 
 tended that he shall have a life interest only, it will be all ineffectual 
 to prevent the operation of the rule. No one can create what is in the 
 intendment of the law an estate in fee, and deprive the tenant of those 
 essential rights and privileges which the law annexes to it. He can- 
 not make a new estate unknown to the law." 
 
 "The policy of the rule," says Chancellor Kent, " was that no person 
 should be permitted to raise in another an estate which was essentially 
 an estate of inheritance, and at the same time make the heirs of that 
 person purchasers." 4 Kent, Comm. 216, 
 
 At common law the word " heirs " was necessary to convey a fee 
 simple by deed. No equivalent words would answer the purpose. If 
 the conveyance was not made to a man and his heirs, the grantee only 
 took a life estate, notwithstanding the estate was limited by such 
 phrases as "to A. forever," or "to A. and his successors," and the like. 
 An express direction that the grantee should have the fee simple in the 
 land would not have supplied the place of the word "heirs." But in 
 this state the question as to what estate a deed to land conveys is de- 
 termined by the intent of the parties, as ascertained from the contents 
 of the deed and the power of the grantor to convey. When construed 
 in this manner, it is obvious that the intention of the deed in question 
 was to convey the land in controversy to Mrs. Carroll for life, then to 
 her lineal heirs, and, in default thereof, to her collateral heirs; in other 
 words, to Mrs. Carroll for life, and, after her decease, to her heirs. The 
 intention that the heirs were to take only in the capacity of heirs is 
 manifest. The deed comes within the rule in Shelley's Case. The es- 
 tate of inheritance vested in Mrs. Carroll, and she became seised of the 
 land in fee simple. 2 Washb. Real Prop. (5th ed.), p. 653. 
 
 "As a consequence from the foregoing principles, whoever has a free 
 hold which, by the terms of the limitation, is to go to his heirs, may 
 
358 LEADING AND ILLUSTEATIVE CASES. 
 
 alien the estate, subject only to such limitation as may have been cre- 
 ated between his freehold and the inheritance limited to his heirs." 
 2 Washb. Real Prop. 651. 
 
 It follows, then, that Mrs. Carroll had the right to convey the fee in 
 the land in trust to secure the payment of her debts, and that a sale of 
 such estate under the deed, and in conformity with law, was valid. 
 
 The decree of the court below is reversed, and the cause is remanded 
 for proceedings consistent with this opinion. 
 
 CHAPTEE XIII. 
 
 ESTATES IN EQUITY. 
 
 Witham v. Brooner. 
 
 Decision by Supreme Court of Illinois, January Term, 1872. Opinion 
 by Thornton, J. 
 
 {Reported in 63 III. 344.) 
 
 The refusal to admit in evidence the deed to Hallowbush is the only 
 error assigned. 
 
 The deed was executed to Hallowbush "in trust for White and 
 Smith." The trustee had no trusts to execute — no duties to perform. 
 He was a mere naked trustee. 
 
 One of the cestuis que trust had executed a deed to the same land to 
 the plaintiff below, under which he claimed title. 
 
 In whom was the legal estate, by operation of the deed to fiallow- 
 bush — the trustee or the cestuis que trust? 
 
 Our statute is a substantial re-enactment of the twenty-seventh stat- 
 ute of Henry VIII., usually termed the "Statute of Uses." Leaving 
 out some of the verbiage, it enacts that when any person shall be seized 
 of any lands, to the use, confidence or trust of any other person, by any 
 bargain, sale, agreement or otherwise, in such case all persons that 
 have such use or trust in fee simple shall be seized, deemed and ad- 
 judged in lawful seizin, estate and possession of and in the same land, 
 to all intents, in law, as they shall have in the use or trust of and in the 
 same. R. S. 1845, p. 103, § 3. 
 
 The clear and positive langtiage of the statute, aided by the first sec- 
 tion of the same act, unmistakably determines the question. The 
 person having the use shall be adjudged to be in lawful seizin, estate 
 and possession. No language could more aptly stamp the character of 
 the title. 
 
 Livery of seizin is abolished by the first section of the conveyance 
 act, and the title is thereby absolutely vested in the donee, grantee. 
 
LEADING AND ILLUSTRATIVE OASES. 359 
 
 bargainee, etc., independently of the statute of uses. Hence, under 
 this statute, a deed in the form of a bargain and sale must be re- 
 garded as having the force and effect of a feoffment; and under the 
 statute of uses, a feoffment to A., for the use of or in trust for B., 
 would pass the legal title to B. In a deed purely of bargain and sale, 
 independently of the first section of the conveyance act, the rule would 
 be different, and the title would vest in the bargainee. Without the 
 first section, the legal title would be in the trustee, in this case; but as 
 the trust was a passive one, the deed operated as a feoffment would at 
 common law, and vested the legal title in the cestuis que trust, by virtue 
 of the statute of uses. Thus the statute executes itself. It conveys the 
 possession to the use, and transfers the use to the possession; and by 
 force of the statute the cestuis que trust had the lawful seizin, estate 
 and possession. 
 
 The three things necessary to bring this estate within the operation 
 of the statute did concur. There was a person seized to a use; a cestui 
 que use; and a use in esse. The use was then executed, and the statute 
 operated. There was nothing in the deed to prevent the execution of 
 the use. There was nothing to be done by the trustee to make it neces- 
 sary that he should have the legal estate. There was to be no payment 
 of rents and profits to another, or debts, or taxes. The statute operated 
 instantly and vested the legal estate in the cestuis que trustent. 
 
 All the authorities sustain this view. 
 
 Blackstone says that previous to the enactment of twenty-seventh 
 Henry VIII., abundance of statutes had been provided which tended to 
 consider the cestui que use as the real owner, and that this Idea was 
 carried into full effect by the twenty-seventh Henry VIIL, called, in 
 conveyances and pleadings, the "Statute for Transferring Uses into 
 Possession;" that the statute annihilated the intervening estate of the 
 feoffee, and changed the interest of the cestui que use into a legal in- 
 stead of an equitable ownership; and that the legal estate never vests 
 in the feoffee for a moment, but is instantaneously transferred to the 
 cestui que use, as soon as the use is declared. Bl. Comm., bk. 3, pp. 332, 
 333. 
 
 Cruise, in his Digest of the Law of Real Property (1 Greenl. Ed., top 
 page 313, § 34), says when the three circumstances concur, necessary to 
 the execution of a use, "the possession and legal estate of the lands out 
 of which the use was created are immediately taken from the feoffee to 
 uses, and transferred, by the mere force of the statute, to the cestui que 
 use. And the seizin and possession thus transferred is not a seizin and 
 possession inlaw only, but are actual seizin and possession in fact — not 
 a mere title to enter upon the land, but an actual estate." See, also. 
 Smith, Real & Pers. Prop. 155; 1 Land Uses, 119; 3 Washb. Real Prop. 
 (1st ed.) 120; 4 Kent, Comm. 288 et seq.; Webstei v. Cooper, 14 How. 
 488; Barker v. Keat, 2 Mod, 250. 
 
360 LEADING AND ILLUSTEATIVE CASES. 
 
 We are of opinion that the legal estate was in the cestui que trust, 
 and that the rejected deed was admissible. 
 
 The cases referred to in this court are not in conflict with our con- 
 clusion. 
 
 The judgment is reversed and the cause remanded. 
 
 Judgment reversed. 
 
 Jackson ex dem. White v. Gary. 
 
 Decision by Supreme Court of New York, May, 1819. Opinion by 
 Spencer, C. J. 
 
 {Beported in 16 Johns. SOS.) 
 
 This was an action of ejectment brought to recover an undivided 
 eighth part of about six thousand acres of land in the county of Ot- 
 sego. The cause was tried before Mr. J. Piatt, at the Otsego circuit, in 
 June, 1818. 
 
 The premises in question were part of of a patent granted to George 
 Croghan, and ninety-nine otJiers, for one hundred thousand acres of 
 land. The other proprietors released to Croghan, who, by deed dated 
 March 8, 1770, conveyed the premises to Augustine Prevost; and Augus- 
 tine Prevost and wife, by deed dated June 29, 1771, conveyed the same 
 to Cornelius P. Low, who died about the year 1791, leaving the defend- 
 ant his only child and heir at law. 
 
 The plaintiff founded his claim upon a deed dated the 20th of October, 
 1790, from Helena Kip, widow, and sole devisee of Henry Kip, deceased, 
 and Henry H. Kip, to Richard Gary the elder, and the defendant Ann, 
 his wife. This deed was expressed to be given for the consideration of 
 £425, and granted to the parties of the second part (being in their pos- 
 session by virtue of a bargain and sale bearing date the day before, and 
 by force of the statute, etc.) a tract of six thousand acres formerly con- 
 veyed by G. Croghan to A. Prevost, and lately conveyed by the sheriff of 
 Montgomery to Henry Kip, deceased, and Henry H. Kip, to have and 
 to hold the same unto the said parties of the second part, their heirs and 
 assigns, to the only proper use and behoof of the said parties of the 
 second part, their heirs and assigns: "In trust, nevertheless, to and 
 for the only proper use of the heirs of him, the said Richard Gary, party 
 hereto, on the body of her the said Ann, the wife of the said Richard 
 Gary, for ever, whether the same are already begotten or to be begot- 
 ten; provided always, and this trust is upon this condition, neverthe- 
 less, that it shall and may be lawful to and for the said Richard Gary 
 and Ann Gary to grant, bargain, sell, alien, release, and convey unto 
 Edward Hurtin, of Stonington, in Connecticut, his heirs and assigns, a 
 farm containing three hundred acres of land, etc., and also to let out in 
 leases, renewable from time to time, or to grant, bargain, sell, alien, re- 
 
LEADING AND ILLUSTEATIVE CASES. 361 
 
 lease, and convey in fee simple, by mortgage, or otherwise, to any person 
 or persons, a quantity of the above released premises, not exceeding 
 three hundred acres of land, including the aforesaid and described farm 
 ■of three thousand acres of land, and out of such sale or sales to pay and 
 retain to their own use the sum of £485, lawful money aforesaid, the con- 
 sideration money above mentioned, paid by them out of their own 
 proper money, and the interest thereof, together with all costs and 
 charges as may arise or happen by reason or means of such sale or sales: 
 and the overplus money to have and to hold in trust, to and for the use 
 ■of their heirs, as before limited and expressed." 
 
 Richard Gary, the grantee, came on the premises as early as the year 
 1790 or 1791, and within one or two years afterwards removed his 
 family there, and continued to occupy the premises until his death, 
 which happened ten or twelve years before the trial, and the defend- 
 ant has ever since remained in possession. Gary the elder, the grantee 
 in the last mentioned deed, left Richard Gary the younger, and seven 
 other children; and Richard Gary the younger, by deed dated the 14th 
 •of April, 1809, conveyed to the plaintiff's lessor and one Seelye all his 
 right and interest, being one eighth part of the premises in question. 
 In May, 1810, Seelye released all his interest to the lessor of the 
 plaintiff. 
 
 A witness testified that both before and after the deed from E. 
 Gary the younger he had many conversations with the defendant in 
 relation to the interest, and the interest of her children in the premises, 
 • and in relation to the title; that in all these conversations the defend- 
 ant never pretended that she had any other interest or title than what 
 was given by the deed from Helena and Henry H. Kip; and that, by 
 the legal construction of that, deed, she supposed that she had a life 
 estate in the premises and nothing more. The witness stated that the 
 reason of his inquiring into the title to the premises was, that he had 
 been engaged in negotiating a purchase of some of the rights of the 
 •children of R. Gary the elder in the property; that his conversations 
 with the defendant were had in reference to the contemplated pur- 
 chase, and that in all these conversations the defendant admitted the 
 right of the children to sell, when of age, subject to the life estate, 
 which she claimed under the deed from the Kips. 
 
 A verdict was found for the plaintiff, subject to the opinion of the 
 court, on a case which was submitted to the court without argument. 
 
 The first objection to the deed from the Kips is, that it is a deed 
 of bargain and sale, and that upon such a deed a use cannot be limited 
 to any other person than the bargainee. This court adopted and rec- 
 ognized that principle in Jackson v. Myers, 3 Johns. 396. Sanders, in 
 his Treatise on Uses and Trusts, gives this question a very full discus- 
 sion.' He says (page 315): "That the nature of the estate since the 
 statute is the same as it was before; that the bargainee is still but a 
 
362 LEADING AND ILLUSTEATIVE CASES. 
 
 cestui que use, and though he has a legal instead of a fiduciary estate 
 since the statute, yet that legal estate is made such by force of the 
 statute of uses, and not according to the rules of the common law. 
 Upon this principle it has been held, and is now established, that no 
 use can be limited to arise out of the estate of the bargainee to a 
 third person, for that would be to limit a use to arise upon a use. There- 
 fore, if A. bargains and sells in fee to C, to the use of A. (the bar- 
 gainor), or to any other person, for life or in fee, this; limitation to the 
 use is void. But though this declaration of the use is void as a use, yet 
 it has been a question whether it would not be supported as a trust, in 
 chancery." And he apprehends it would be supported in that court. 
 Shepherd, in his Touchstone (505-507), holds the same doctrine. He 
 observes that if one seized of land in fee bargain and sell it or make a 
 lease of it to another in trust, or for the benefit of a third person, this is 
 but a chancery trust in this third person, as was clearly held in 8 Car. 
 B. R. ; and he proceeds to show that a fine, feoffment or recovery may 
 be had of land to the use and intent that either the parties thereto, or 
 others, shall have it for any time or estate. Cruise (title 13, c. 3, §§ 11, 
 18, 84) confirms the positions of Shepherd and Sanders; and, indeed, 
 there is no case to the contrary. This doctrine receives full and com- 
 plete confirmation from the observations of Lord Hardwicke in Hopkins 
 V. Hopkins, 1 Atk. 591. 
 
 The legal estate, therefore, was in Cary and wife, under the deed from 
 the Kips; and it is the settled doctrine of this court that we look only 
 to the legal estate in an action of ejectment, disregarding the equitable 
 interest. 8 Johns. 488, and the cases there cited. 
 
 Mrs. Cary having survived her husband, and the estate granted to 
 them being neither in joint tenancy nor tenancy in common, and so 
 not affected by the statute, she, as survivor, takes the whole legal estate. 
 This point was decided at the last term in Jackson v. Stevens, 16 Johns. 
 110. 
 
 Independently of these considerations the case shows that the defend- 
 ant deduced a legal title to himself, as the heir of Cornelius P. Low, 
 who, it was proved, acquired a complete title to the premises under the 
 original patentee; and most certainly she was not concluded by the 
 deed from the Kips from asserting her title. Without stopping, there- 
 fore, to inquire whether, under any circumstances, the lessor of the 
 plaintiff could avail himself of that deed as an estoppel, which I am 
 clearly of opinion he could not, the defendant never could be estopped 
 by it, as she was a feme covert when it was given. 
 
 The evidence of declarations made by the defendant avail nothing 
 for although parol declarations of tenancy have been received, with 
 certain qualifications, parol proof has never yet been admitted to de- 
 stroy or take away a title. To allow parol evidence to have that effect 
 would be introducing a new and most dangerous species of evidence. 
 
LEADING AND ILLUSTEATIVE OASES. 363 
 
 The statute to prevent frauds and per juries, which has been considered 
 the Magna Charta of real property, avoids all estates created by parol, 
 and all declarations of trust, excepting resulting trusts, regarding any 
 lands, tenements or hereditaments. Yet, in defiance of this statute, we 
 are asked to devest the defendant of what appears to be a complete 
 title to the premises by her parol declarations. This cannot bf lis- 
 tened to. 
 Judgment for the defendant. 
 
 CHAPTER XIV. 
 EXECUTORY INTERESTS. 
 
 Wyman v. Brown et al. 
 
 Decision by Supreme Court of Maine, 1863. Opinion by Walton, J. 
 (Reported in 50 Me. 139.) 
 
 . . , Another question raised in this case is whether the deed from 
 Mrs. Brown to Oliver S. Nay was valid. The objection to it is that it 
 purports to convey a freehold estate to commence in fiituro; and such 
 is its effect, for by its terms Mrs. Brown was " to have quiet possession, 
 and the entire income of the premises until her decease." 
 
 Deeds in which grantors have reserved to themselves estates for life 
 are believed to be very common in this state; and whether or not such 
 deeds are valid is certainly a very important question and ought to be 
 authoritatively decided. 
 
 It was a principle of the old feudal law of England that there should 
 always be a known owner of every freehold estate, and that the free- 
 hold should never, if possible, be in abeyance. This rule was established 
 for two reasons: (1) That the superior lord might know on whom to 
 call for the military services due from every freeholder, as otherwise 
 the defense of the realm would be weakened. (8) That every stranger 
 who claimed a right to any lands might know against whom to bring 
 his suit for the recovery of them ; as no real action could be brought 
 against any one but the actual tenant of the freehold. Consequently, 
 at common law, a freehold to commence in future could not be con- 
 veyed, because in that case the freehold would be in abeyance from the 
 execution of the conveyance till the future estate of the grantee should 
 vest. And it is laid down in unqualified terms in several cases in 
 Massachusetts, and in one in this state, that an estate of freehold can- 
 not be conveyed to commence infuturo by a deed of bargain and sale, 
 which owes its validity to the statute of uses, and not to the common 
 law. 
 
364 LEADING AND ILLITSTBATIVE OASES. 
 
 But the doctrine that freehold estates to commence infuturo cannot 
 be conveyed by deeds of bargain and sale, since the passage of the stat- 
 ute of 37 Hen. VIII., c. 10, commonly called the "Statute of Uses," is 
 clearly erroneous. It is clear that, at common law, such conveyances 
 could not be made; and it is equally clear that, by virtue of the statute 
 of uses, such conveyances may be made. Prior to the reign of Henry 
 VIII., real estate could be so held that one person would have the legal 
 title, and another the right to the use and income. To obviate many 
 supposed inconveniences which had grown out of this practice of sepa- 
 rating the legal title from the use, the statute of uses was passed, by 
 which it was enacted that the estates of the persons so seized to uses 
 should be deemed to be in them that had the use, in such quality, man- 
 ner, form and condition as they had before in the use. It will be 
 noticed that the effect of this statute was to annex the legal title to the 
 use, so that they could not be separated. Mr. Cruise says that, when^ 
 this statute first became a subject of discussion in the courts of law, it 
 was held by the judges that no uses should be executed that were lim- 
 ited against the rules of the common law; but that this doctrine was 
 not and could not be adhered to, for the statute enacts that the legal 
 estate or seizin shall be in them that have the use, in such quality, 
 manner, form and condition as they before had in the use; that chan- 
 cery having permitted uses to commence infuturo and to change from 
 one person to another, by matter ex post facto, the courts of law were 
 obliged to admit of limitations of this kind. The statute did not at- 
 tempt to limit or control the doctrine of uses; it simply declared that 
 where the use was, there the legal estate should be also. The result 
 was that it opened several new modes of conveying legal estates wholly 
 unknown to the common law; for whatever would convey the use and 
 income of real estate before its passage, would, by virtue of the statute, 
 convey the legal estate afterwards. It will thus be seen that convey- 
 ances through the medium of the statute of uses are effected in this 
 way: The owner of an estate in lands, for a consideration either good 
 or valuable, agrees that another shall have the use and income of it, 
 and the statute steps in and annexes the legal title to the use, and thus 
 the cestui que use becomes seized of the legal estate in the same man- 
 ner as before the statute he would have been seized of the use. The 
 argument, presented in a syllogistic form, is this: Since the statute of 
 uses, freeholds can be conveyed in any manner that uses were conveyed 
 before its passage. Before its passage, uses were conveyed to com- 
 mence infuturo; therefore, freeholds may be conveyed to commence 
 in future since its passage. It must be remembered, however, that 
 neither legal estates nor uses can be so limited as to create perpetuities. 
 If future estates are so limited as to take effect in the life-time of one 
 or more persons living, and a little more than twenty-one years after, 
 the rule against perpetuities will not be violated. We will refer to a 
 few leading authors: 
 
LEADING AND ILLUSTRATIVE CASES. 365 
 
 Mr. White, a very learned English writer, in one of his additions to 
 the text of Mr. Cruise, says: "By executory devise and conveyances 
 operating by virtue of the statute of uses, freehold estates may be lim- 
 ited to commence in futuro." 1 Greenl. Cruise, tit. 1, § 36. 
 
 Mr. Chitty, after stating that, by a common-law conveyance, a free- 
 hold to commence in futuro could not be conveyed, continues: "But 
 deeds operating under the statute of uses, such as bargain and sale, 
 covenant to stand seized, or a conveyance to uses, or even a devise, may 
 give an estate of freehold to commence in futuro." 1 Chit. Gen. Prac. 
 306; a Bl. Comm. 144, note 6. 
 
 Mr. Sugden says: " A bargain and sale to the use of D. after the death 
 of S. is good." Gilb. Uses (Sugd. Ed.) 163. 
 
 Mr. Cornish: "By a bargain and sale, or covenant to stand seized, a 
 freehold may be created in futuro." Corn. Uses, 44. 
 
 Chancellor Kent: "A person may covenant to stand seized, or bargain 
 and sell, to the use of another at a future day." 4 Kent, Comm. 298. 
 
 Mr. Archbold: "Deeds acting under the statute of uses, such as bar- 
 gain and sale, covenant to stand seized, or a conveyance to uses, or even 
 a devise, may give an estate of freehold to commence in futuro." Note 
 to 2 Bl. Comm. 166. 
 
 In a note to the 5th American edition of Smith's Leading Cases (vol- 
 ume 2, p. 451), after noticing the Massachusetts cases in which it is 
 held that a freehold to commence in futuro cannot be created by a deed 
 of bargain and sale, the learned editors say: "It is undoubtedly true 
 that such limitations are bad at common law; but it seems equally 
 well settled that they are good in deeds operating under the statute of 
 uses, whether the use be raised on a pecuniary consideration or on blood 
 or marriage. The point is so held in England, and has been repeatedly 
 and expressly decided in New York, and several of the other states of 
 this country. The attributes of a use are the same, whatever may be 
 the consideration in which it is founded ; and, if uses commencing in 
 futuro were without the operation of the statute when raised by a 
 bargain and sale, they would be equally so when originating in a cove- 
 nant to stand seized." 
 
 In Rogers v. Insurance Co., 9 Wend. 611, the question underwent a 
 most thorough examination, and the conclusion was that a freehold to 
 commence in futuro could be conveyed by a deed of bargain and sale, 
 operating under the statute of uses; and the court expressed surprise 
 that any one should have ever supposed that such was not the law. 
 
 In Bell V. Scammon, 15 N. H. 381, the same question was raised, and 
 the court held that "a freehold in futuro could be conveyed either by 
 deed of bargain and sale, or by a covenant to stand seized." 
 
 Mr. Washburn, in his late very able work on Real Property (volume 
 3, p. 617, § 16), says that the reasoning of Chancellor Walworth in 
 Rogers v. Insurance Co., 9 Wend. 611, in which he maintains that an 
 
366 LEADING AND ILLUSTRATIVE CASES. 
 
 estate of freehold, to commence in futuro, can be conveyed by a deed 
 of bargain and sale, and the authorities upon which he rests, would 
 seem to leave little doubt in the matter, beyond what arises from the 
 circumstance that other courts have taken a different view of the law. 
 
 It is true that, in Massachusetts and this state, when determining 
 that the deeds then under consideration were valid upon other grounds, 
 judges have expressed the opinion that a freehold to commence in 
 futuro could not be conveyed by a deed of bargain and sale; but these 
 opinions are mere obiter diota, for they have never yet had the ^ffect 
 of defeating a deed. The idea seems to have originated in an unauthor- 
 ized statement (probably accidental) to be found in Pray v. Pierce, 7 
 Mass. 381. Having under discussion the rule that deeds should be so 
 construed as to give effect to the intention of the parties, and not to 
 defeat it, the case of Wallis v. Wallis, 4 Mass. 135, was referred to by 
 way of illustration, and the reporter makes the court say that the deed 
 in the latter case was held to be a covenant to stand seized, " because, 
 as a bargain and sale, it would have been a conveyance of a freehold 
 in futuro and therefore void." By turning to that case (Wallis v. 
 Wallis), it will be seen that such a statement is unauthorized. The 
 court remarked that, by a common-law conveyance, a freehold could 
 not be conveyed to commence in futuro, which was unquestionably 
 true; but the court did not say that such a conveyance could not be 
 made by a, deed of bargain and sale, which owes its validity to the 
 statute of uses and not to the common law. Why the deed in Wallis 
 V. Wallis was not sustained as a bargain and sale, instead of covenant 
 to stand seized, does not appear. The case was submitted without argu- 
 ment, and, as the deed could readily be sustained as a covenant to stand 
 seized, it may not have occurred to the court that it could just as well 
 be sustained as a bargain and sale. On careful examination it will be 
 seen that these cases (Wallis v. Wallis and Pray v. Pierce) are not au- 
 thorities for the doctrine they are so often cited in support of. 
 
 In Welsh v. Foster, 13 Mass. 93, the deed, for a valuable consideration, 
 to be paid whenever the deed should take effect, and not otherwise, 
 purported to convey a certain part of a mill, with the land, etc., " pro- 
 vided that the said deed should not take effect or be made use of until 
 the said millpond should cease to be employed for the purpose of carry- 
 ing any two mill-wheels." It was held that nothing passed by the 
 deed, not because it was to take effect only upon the happening of a 
 future event, but because the event, if it should ever happen, might be 
 delayed much beyond the utmost period allowed for the vesting of es- 
 tates on a future contingency. The event, it was held, must, in its 
 original limitation, be such that it must either take place, or become 
 impossible to take place, within the space of one or more lives in being, 
 and a little more than twenty-one years afterwards, to prevent the 
 creating of a perpetuity, or an unalienable estate. Such is undoubtedly 
 
LEADING AND ILLUSTEATIVE OASES. 367 
 
 the law. Besides, no consideration was ever paid for the deed, and the 
 grantor afterwards conveyed to another. Under these circumstances 
 the court very properly held the deed void. But the distinction made 
 by Judge Jackson, in that case, between covenants to stand seized, and 
 deeds of bargain and sale, is mere dictum, and has neither reason nor 
 authority to rest upon. 
 
 Speaking of the qualities of a bargain and sale, Judge Jackson says: 
 "One of these qualities is that it must be to the use of the bargainee, 
 and that another use cannot be limited on that use, from which it fol- 
 lows that a freehold to commence infuturo cannot be conveyed in this 
 mode; as that would be to make the bargainee hold to the use of an- 
 other until the future freehold should vest." Hold what? Upon the 
 execution of a deed in which the grantor reserves to himself an estate 
 for life, and conveys the residue, the grantee obtains a present vested 
 right to a future enjoyment of the property; but, until the future 
 freehold vests, the use, the seizin, and the right of possession, remain 
 with the grantor, and there is no conceivable thing that the bargainee 
 will be required to "hold to the use of another." 
 
 Judge Jackson seems to have supposed that when such a deed is exe- 
 cuted the legal estate or seizin passes immediately to tlie grantee, and 
 that, until his own future freehold vests, he holds this legal estate, or 
 ideal seizin, to the, use of the grantor. But such a theory is wrong and 
 contrary to every authority we have been able to find. In fact, under 
 the statute of uses, such a theory, which separates the legal estate from 
 the use, cannot be correct; for, by the very terms of the statute, the 
 lawful seizin, estate and possession shall be deemed and adjudged to 
 be in him that hath the use, to all intents, constructions and purposes 
 in law; and is made applicable to "any such use in fee simple, fee tail, 
 for life, or for years." "The seizin remains in the person creating the 
 future use till the springing use arises, and is then executed to this use 
 by the statute." 2 Washb. Real Prop. 283. "If raised by a covenant 
 to stand seized, or bargain and sale, the estate remains in the cove- 
 nantor or bargainor until the springing use arises." Gilb. Uses (Sug- 
 den's note), 163. A person may covenant to stand seized, or bargain 
 and sell, to the use of another at a future day. In such a case " the 
 use is severed out of the grantor's seizin." 4 Kent, Comm. 298. "Here 
 is a conveyance to the bargainee to take effect at the decease of the 
 bargainor, which creates a resulting use to the latter during life, with 
 a vested use in remainder to the bargainee in fee, both uses being 
 served in succession out of the seizin of the bargainor." Jackson v. 
 Dun shah, 1 Johns. Cas. 96. 
 
 The rule that a bargain and sale must be to the use of the bargainee, 
 and not to the use of another, applies to only so much of the estate as 
 is bargained for, and not to the residue, which is not bargained for and 
 not paid for; and the rule is not violated, and there is nothing inequita- 
 
368 LEADING AND ILLTJSTEATIVE CASES. 
 
 ble or repugnant to the grant, in requiring him to wait for the enjoys 
 ment of the property till such time as, by the express terms of the- 
 deed under which he claims, he is entitled to it. 
 
 It will be noticed that Judge Jackson assumes the existence of a 
 rule that one use cannot be limited upon another, and that it would 
 be a violation of this rule to give effect to a deed of bargain and sale 
 of a freehold to commence in futuro. Such a rule does exist in Eng- 
 land. Mr. Watkins, in his introduction to his very able work on Con- 
 veyancing, says that "about the time of passing the statute of uses 
 some wise man, in the plenitude of legal learning, declared there could 
 not be an use upon an use ; and that this very wise declaration, which 
 must have surprised every one who was not sufficiently learned to- 
 have lost his common sense, was adopted." And Lord Hardwicke, 
 in Hopkins v. Hopkins, 1 Atk. 591, says that by this means a stat- 
 ute made upon great consideration, introduced in a solemn and 
 pompous manner, has had no other effect than to add, at most, three 
 words to a conveyance. Mr. Williams, in his work on Real Property 
 (page 184), says this rule has much of the technical subtility of tha 
 scholastic logic wliich was then prevalent. Lord Mansfield calls it 
 "absurd narrowness." 2 Doug. 774. Blackstone calls it a "technical 
 scruple; " and Mr. Sugden, in a note to Gilb. Uses, p. 348, says it never 
 ought to have been sanctioned at all. In Thacher v. Omans (decided, 
 in 1792), reported in 3 Pick. 521, on page 528, the court refer to the cen- 
 sures of Blackstone and Lord Mansfield, and express strong doubts as 
 to the propriety of admitting it in this country; and Mr. Greenleaf says 
 it may well be doubted whether the rule has been adopted in this 
 country. Note to Greenl. Cruise, tit. 12, oh. 1, § 4. With such a weight of 
 authority against it, if the effect of the rule would be to defeat such 
 conveyances as we are now considering, we think we might be war- 
 ranted in rejecting it altogether. But such is not its effect. When a 
 freehold is conveyed, to commence at a future day, till such future- 
 day arrives the use results to the grantor, and then passes to the 
 grantee; and the uses are not limited one upon the other, but one after 
 the other; and, in this way, a fee simple may be carved into an in- 
 definite number of less estates. "So long as a regular order is laid 
 down in which the possession of the lands may devolve, it matters not 
 how many kinds of estates are granted, or on how many persons the 
 same estate is bestowed. Thus, a grant may be made at once to fifty 
 different people, separately, for their lives." Williams, Real Prop. 189, 
 190. " Shifting or substituted uses do not fall within this technical 
 rule of law, for they are merely alternate uses." 4 Kent, Comm. 301. 
 
 The statement that a freehold to commence in futuro cannot be con- 
 veyed by a deed of bargain and sale, which seems first to have been 
 made in Pray v. Pierce, as before stated, has been several times re- 
 peated in Massachusetts (Welsh v. Foster, 12 Mass. 93; Parker v. Nich- 
 
LEADING AND ILLCSTEATIVE CASES. 369 
 
 ols, 7 Pick. 115; Gale v. Coburn, 18 Pick. 397; Brewer v. Hardy, 32 Pick. 
 376), and once at least in thi^ state (Marden v. Chase, 33 Me. 329); but 
 the only case we have found in which an attempt has been made to 
 give a reason for the supposed rule is that of Welsh v. Foster; and a 
 careful examination has satisfied us that the argument in that case is 
 unsound, and not supported by any adjudged case that has the weight 
 of authority. It is admitted in all these cases that if it can be shown 
 that the parties to such deeds are near relatives, effect may be given 
 to them as covenants to stand seized, made, not as they purport to be, 
 for a pecuniary consideration, but in consideration of love and affec- 
 tion. And there is no doubt that if two deeds should be executed in- 
 stead of one; that is, if the grantor should first convey the whole es- 
 tate, and then take back a life lease, the transaction would be held 
 legal. The doctrine, therefore, that a freehold to commence in futuro 
 cannot be conveyed by a deed of bargain and sale amounts to no more 
 than this: that if the owner of a fee-simple estate proposes to reserve 
 to himself a life estate, and to sell the residue, if he deals with a rela- 
 tive, such an arrangement can be carried into effect by making one 
 deed; but if he deals with a stranger it will be necessary to make two. 
 It is certainly very strange that a doctrine so technical, so easily 
 evaded, and so utterly destitute of merit, should have gained the cur- 
 rency it has. 
 
 We entertain no doubt that, by deeds of bargain and sale, deriving 
 their validity from the statute of uses, freeholds may be conveyed to 
 commence in futuro. It will be seen that the law is so held in Eng- 
 land, and by an overwhelming weight of authority in this country. In 
 fact that such was the law seems never to have been doubted except 
 in Massachusetts and this state; and we think the error originated in 
 the unauthorized remark found in Pray v. Pierce, and has been re- 
 peated from time to time without receiving that consideration which 
 its importance demanded. 
 
 We also are of opinion that effect may be given to such deeds by 
 force of our own statutes, independently of the statute of uses. Our 
 deeds are not framed to convey a use merely, relying upon the statute 
 to annex the legal title to the use. They purport to convey the land 
 itself, and being duly acknowledged and recorded, as our statute re- 
 quire, operate more like feoffments than like conveyances under the 
 statute of uses. In Thacher v. Omans, 3 Pick., on page 525, Chief Jus- 
 tice Dana, speaking of our statute of conveyances, first enacted in 
 1697, re-enacted in the revised laws of 1784, incorporated into the stat- 
 utes of this state in 1831, and still in force, says: " This statute was 
 evidently made to introduce a new mode of creating or transferring 
 freehold estates in corporeal hereditaments, namely, by deed signed, 
 sealed, acknowledged and recorded as the statute mentions; it does 
 not describe any particular kind of deeds or conveyances, but is gen- 
 24 
 
570 LEADING AND ILLTTSTEATIVE CASES. 
 
 ■eral, and extends to all kinds of conveyances." On page 533 he further 
 says: "It seems evident to me that a deed executed, acknowledged 
 and recorded as our statute requires cannot be considered as a bargain 
 and sale, because the legal estate is thereby passed without the opera- 
 tion of the statute of uses, in as ample a manner as by a feoffment at 
 common law, accompanied with the ancient ceremony of livery of 
 seizin." Sufh also were the opinions of Chancellor Kent and Professor 
 Greenleaf. 4 Kent, Comm. 461; Greenl. Cruise, tit. 13, o. 1, § 4, note, 
 tit. 32, c. 4, § 1, note. Mr. Greenleaf, in the note iirst cited, sr-ys that in 
 most of the states (including Maine), "deeds of conveyance derive 
 their effect, not from the statute of uses, but from their own statutes 
 of conveyances; operating nearly like a feoffment, with livery of seizin, 
 to convey the land, and not merely to raise a use to be afterwards exe- 
 cuted by the statute of uses." Mr. Oliver, in his work on Conveyancing 
 <Ed. 1853, p. 281), speaking of our common warranty deed, says: "This 
 deed derives its operation from statute, and has therefore some prop- 
 erties peculiar to itself. . . . The transfer is not affected by the ex- 
 ecution of a use, as in a bargain and sale, but the land itself is conveyed, 
 as in a feoffment, except that livery of seizin is dispensed with, upon 
 complying with the requisitions of the statute, acknowledging and 
 recording, substituted instead of it." We think these views are sound; 
 and if any of the technioal rules which have grown up under the stat- 
 ute of uses stood in the way of giving effect to deeds executed in ac- 
 cordance with the provisions of our statute, simply because they pur- 
 port to convey freeholds to commence at a future day, we think effect 
 might be given to them independently of the statute of uses. But, in 
 our judgment, no such rules do stand in the way of giving effect to 
 such deeds. They may be upheld either as bargains and sales under 
 the statute of uses, or as conveyances deriving their validity from our 
 own statutes. 
 
 Having come to the conclusion that the demandant is entitled to re- 
 cover upon another ground, it was not necessary to consider the va- 
 lidity of the deed from Mrs. Brown to Oliver S. Nay, which purports to 
 convey a freehold to commence in futuro. But, as the question in- 
 volved is an important one, and was ably argued by the counsel in 
 the case; and, as the court has already decided one case within the 
 past year (Hunter v. Hunter, in the county of Sagadahoc), in accord- 
 ance with the views here expressed, but without any written opinion; 
 and as several other suits, involving the same question, are still pend- 
 ing before the court, we deemed it best to make known our decision 
 of the question, and to state our reasons for the decision, in connection 
 with this case. Judgment for demandant. 
 
LEADING AND ILLUSTEATIVE CASES. 371 
 
 Hale et al. v. Hale et al. 
 
 Decision by Supreme Court of Illinois, June 16, 1887. Opinion by 
 
 Scott, J. 
 
 {Reported in 1S5 III. 399.) 
 The bill in this case is for partition of the real estate of which Ezekiel 
 J. M. Hale died seized, and which is situated in the county of Cook, in 
 this state, and was brought by one of the heirs in the superior court 
 against the widow, the executors and the other heirs of the decedent. 
 Concerning the facts out of which the litigation arises no controversy 
 exists. Prior to his death the common ancestor of the heirs, claiming his 
 estate in Cook county as intestate property, resided at Haverhill, in the 
 state of Massachusetts. At the time of his death he owned a large 
 estate in Massachusetts, consisting of both real and personal property, 
 all of which it is conceded was disposed of by his will, which was, after 
 his death, admitted to probate in that state, and which is conceded by 
 all parties interested to be valid under the laws of Massachusetts. The 
 testator also left a large amount of property situated in the state of 
 New York, and the property involved in this litigation in Illinois. The 
 larger portion of the estate seems to have been in Massachusetts, where 
 the testator had resided and where his will was admitted to probate. It 
 seems the testator gave various legacies and devises, and provided in 
 different clauses of his will for life annuities to a number of persons, 
 perhaps twelve in all, and for other annuities, payable at stated periods, 
 tntil the final division of the residue of his property under the pro- 
 visions of his will. It is understood, and perhaps admitted, that there 
 is sufficient estate in Massachusetts out of which to pay all legacies, 
 devises and annuities provided for or declared in the will. It is not 
 claimed that any of the property belonging to the estate situated either 
 in New York or this state will be wanted for the payment of either 
 legacies, devises or annuities under the will. The bill in this case al- 
 leges the will of Ezekiel J. M. Hale, deceased, was admitted to probate 
 in Massachusetts, where he died, no one objecting; which is an admis- 
 sion it was valid, and disposed of all the property belonging to the es- 
 tate in that state. But the bill is framed on the theory it was not the 
 intention of the testator to devise the real estate now sought to be 
 partitioned; that the scheme of his will was not adapted to the condi- 
 tion of his estate in New York and in Illinois, and was not intended to 
 convey the same; that by the laws of Illinois and New York the devise 
 was void, and had been so declared by the courts of the latter state; 
 that such testator well knew that the provisions of his will, if applied 
 to his real estate in New York and Illinois, made the same illegal and 
 void on account of the statutes of such states prohibiting perpetuities; 
 that, if the provisions of the will should be applied to the lands in lUi- 
 
372 LEADING AND ILLUSTEATIVE CASES. 
 
 nois or New York, the same could not be alienated for many years, and 
 not until after the death of twelve life annuitants; that the property 
 in Illinois is unproductive, and cannot be made productive; that the 
 taxation upon it is large, and that the interest and taxation will en- 
 tirely absorb the value of said real estate, so as to render it a total loss 
 to the heirs, if it should be held to be included within the terms of the 
 will, and hence not subject to division except in accordance with the 
 will. It is alleged the property situated in New York belonging to 
 the estate exceeds in value §1,000,000, and that in Illinois is now esti- 
 mated to be of the value of |300,000. The executors answered the bill, 
 as they were required to do, in which they admitted most, if not all, of 
 the formal charges in the bill, but insisted the lands sought to be par- 
 titioned passed to them under the residuary clause of the will of the 
 testator; and, on filing their answer, they filed a cross-bill, in which 
 they claimed to have the power under the will to sell such real estate, 
 and ask the court to so decree. The respondents in their cross-bill make 
 the same allegation as is contained in the original bill; that, unless the 
 property described in the bill can be sold, it will be absorbed by taxes 
 and assessments and other expenses before the time for distribution 
 would arrive under the provisions of the will. The superior court, at 
 the hearing of the cause, dismissed the cross-bill of respondents, and 
 found that the property described in the original bill was intestate 
 property, and decreed a partition of the same, as it was asked to do. 
 That decision is assigned for error. 
 
 The residuary clause of the will out of which all the questions made 
 on this record arise is as follows: "Twenty-second. As to the residue 
 and remainder of all my estate, both real and personal, not herein 
 otherwise disposed of, it is my will that the same be and remain in the 
 care and control of my said executrix and executors and trustees, and 
 their successors, well and safely invested, until the decease of the last 
 survivor of the life annuitants named in my foregoing will; and that 
 then the said residue and remainder, with all the accumulated interest 
 thereof, shall be divided equally among my grandchildren per stirpes, 
 to hold to such grandchildren so distributed, and to their heirs, exec- 
 utors, administrators and assigns forever." Most of the other clauses 
 of the will contain provisions for legacies, bequests, devises and annui- 
 ties to certain persons, and others contain specific directions as to what 
 disposition shall be made of certain property; and beyond giving an 
 outline of the general scope of the will, and the intention of the testator 
 as to the management of his estate by his executors and trustees, they 
 contain nothing that is important in connection with the present dis- 
 cussion, and their contents need not be stated other than in a general 
 way. 
 
 Two principal questions are made by the original and cross-bills: 
 (1) Whether the lands involved were devised by this clause of the will, 
 
LEADING AND ILLUSTEATIVK OASES. 373 
 
 or whether the same can be treated as intestate property, as not being 
 embraced in the will: and (2), if it shall be held the lands were devised, 
 is any power given the executors and trustees, either expressly or by 
 implication, by this or any other clause of the will, to sell these lands 
 at any time within their discretion ? It will be found most convenient 
 to consider these questions in the inverse order in which they are 
 stated, which will be done briefly. 
 
 There is and can be no pretense that any express power is given to 
 the executors and trustees to sell any real estate situated in New York 
 or in Illinois that had belonged to the testator by the twenty-second 
 clause, or any other clause, of his will; and if any such power exists in 
 them it must arise by implication from powers conferred or duties ex- 
 pressly imposed by the will in regard to such real estate. Power is ex- 
 pressly conferred upon the executors and trustees to sell certain real 
 property, as in the second clause of the will, but nothing is said any- 
 where in the will concerning the sale of real property in New York or 
 Illinois. It is not even mentioned by any description, by location, or 
 otherwise. If it is devised at all, it is by the twenty-second or residu- 
 ary clause of the will, and not otherwise. But does the twenty-second 
 paragraph of the will confer any power upon the executors and trustees 
 to sell real estate situated in New York or Illinois, even by implication ? 
 It is thought it does not. There can be no doubt of the correctness of 
 the rule stated by counsel that authority to sell and convey trust prop- 
 erty may be conferred by implication; as, for instance, where duties 
 are imposed by the instrument creating the trust upon the trustee, 
 which he cannot perform without making a sale, the law will imply 
 the necessary power; otherwise there would be a failure of the objects 
 of the trust. A most coQimon example is where there has been an as- 
 signment for the payment of debts; if no express power is given to sell 
 the trust property, the duties to be performed by the trustees will nec- 
 essarily create the power of sale, for it is obvious iu no other way could 
 the trustee perform the duties required of him by the instrument cre- 
 ating the trust. The law will not permit a trust to fail because it may 
 be inartificially declared or expressed. This is undoubtedly as liberal 
 a statement of the implied powers of trustees as the law will sanction. 
 Applying this rule, neither the twenty-second clause, nor indeed any 
 other provision, contains anything that indicates, by implication or 
 otherwise, it was the intention of the testator that his executors and 
 trustees should have power to sell and convey any of his real property, 
 either in New York or Illinois, for the purpose of converting it into 
 personalty. The words supposed to manifest the intention of the 
 testator in this regard are " that the same be and i-emain in the care 
 and control of my said executrix and executors and trustees, and their 
 successors, well and safely invested, until the decease of the last sur- 
 vivor of the life annuitants named in the foregoing will." It is said 
 
374 LEADING AND ILLUSTKATIVE OASES. 
 
 the words " well and safely " mean that the testator gives, the executors 
 and trustees the usual authority to make prudent investments, and 
 that they mean they must keep the property invested. The vice of the 
 argument on this branch of the case lies in detaching these words 
 from their place in the will, and giving to them a meaning inconsistent 
 with the context. What is the direction given by the testator concern- 
 ing this property in New York and Illinois? It is that it "remain in 
 the care and control " of the executors and trustees, " well and safely 
 invested." That is, it is to "remain," as now, "well and safely in- 
 vested." Any other would be a strained and unnatural construction 
 of the words of the will. So far from indicating any intention on the 
 part of the testator that his executors and trustees should sell his lands 
 either in New York or Illinois, the words used indicate unmistakably 
 it was his intention and purpose they should " remain " in the care and 
 control of his executors and trustees, " well and safely invested," as 
 they then were, until the time appointed for the distribution of the 
 residue of his estate, both real and personal, should arrive. The prin- 
 ciple running through all the cases on this subject, so far as the writer 
 has been able to examine the same, is, the provisions of the will must 
 be so clearly written as to leave no doubt of the intention of the tes- 
 tator to have his real estate converted into personal estate, to sustain 
 the doctrine of what is called equitable conversion. That intent does 
 not appear from any language used by the testator in this case, and it 
 is not perceived his trustees have any implied power to change the real 
 property devised into personal estate for reinvestment or otherwise. 
 This precise question was presented to the court of appeals of the state 
 of New York by the same parties to this litigation; and in an action 
 brought by these executors and trustees to obtain a construction of 
 certain provisions of the last will and testament of Ezekiel J. M. Hale, 
 deceased, that court held, after most elaborate argument, the will, 
 while valid under the laws of Massachusetts, where the testator died 
 and where his will was admitted to probate, contained no express di- 
 rection for the conversion of real estate into personalty, or for the sale 
 of the real estate. Hobson v. Hale, 95 N. Y. 588. This court is entirely 
 satisfied with the conclusion reached by the court of appeals in that 
 case, and the elaborate discussion there given to the exact question in- 
 volved in the case now being considered would seem to relieve this 
 court from the necessity of any extended consideration of the question. 
 Under this view of the meaning of the will, the relief demanded by the 
 cross-bill, that the right of complainants in that bill to sell and convey 
 the lands involved and to convert the same into money may be estab- 
 lished and declared, was properly denied. 
 
 The remaining question arises on the original bill, and is whether the 
 lands situated in Illinois, and which belonged to the estate of the 
 testator, were devised by the residuary clause of the will, or whether 
 
LEADING AND ILLUSTRATIVE CASES. 375 
 
 the same can be treated as intestate property, as not being embraced 
 in the will. There is evidence tending to show that the court found 
 by its decree that the testator bought these lands in Cook county for 
 speculation, and that had he lived it is probable he would have sold 
 the same on receiving the first favorable offer. That he gave expres- 
 sion to such views is proved past all doubt, but whether he changed 
 his mind in that regard ^sefore his death of course cannot be known. 
 Construing the will in the light of the surrounding circumstances, as the 
 law requires shall be done, does it show the testator intended to omit 
 these lands from the operation of his will? It ia seen that the residu- 
 ary olause of the will is as broad and comprehensive as it can well be 
 expressed. It is, " As to the residue of all my estate, both real and per- 
 sonal, not herein otherwise disposed of." Primarily the words " all ray 
 estate " mean all the estate of the testator, wherever situated, and that 
 meaning will always be given to them unless something in the context 
 will show a more restricted construction will better comport with 
 the clear intention of the testator. It will be noticed that the real 
 estate of the testator situated in New York, if devised at all, was de- 
 vised by this same clause of the will. There is no other clause of the 
 will that can have the slightest application to it. If the lands in Illi- 
 nois shall be held not to have been devised by the twenty-second clause 
 of the will, the conclusion would necessarily be the New York lands 
 were not within its operation. No one has ventured to suggest the 
 testator did not intend by this clause of his will to devise his property 
 in New York. "When the case was before the court of appeals of New 
 York, that court seems to have held, without much discussion, the 
 property in that state was devised by the will; forit was said: "While 
 it should not be overlooked that the testator was domiciled in the state 
 of Massachusetts, and his will was executed there, it should also be 
 borne in mind that by his will he devised his real estate, as real estate, 
 situated in the state of New York." Any other conclusion would be 
 too improbable to be adopted. The same words in the will that are 
 held to constitute a devise of lands in New York include also the lands 
 in Illinois. Either the lands in both states are devised, or they must 
 be treated as intestate property in both states. It is incredible that a 
 testator making a will that by its terms, when understood in their pri. 
 mary sense, disposes of all " his estate, both real and personal," omitted 
 therefrom property conceded to be of the value of over $1,200,000. Such 
 a proposition is too improbable to be adopted, unless the testator was 
 incapable of comprehending what he was doing. Plainly the residu- 
 ary clause of the will is broad enough to include all the property of the 
 testator, no matter where situated, and there is nothing in either of 
 the attendant circumstances, or in any other clause of the will, that 
 shows any intention on the part of the testator to omit any property 
 in Illinois or elsewhere from its operation. When this case was before 
 
olb LEADING AND ILLUSTEATIVE OASES. 
 
 the court of appeals of New York it was held that the clause of the 
 twenty-second paragraph of the will that postponed the final division 
 of the estate until the death of the last survivor of the life annuitants, 
 BO far as it applied to real estate in that state, worked an unlawful 
 suppression of the powers of alienation, and was for that reason void, 
 and it %vas also held that such clause was repugnant to the provisions 
 of the statute of that state prohibiting accumulations except for the 
 times and purposes therein permitted. No such objection lies to that 
 provision of the will in this state. A perpetuity in this state is defined 
 to be a limitation taking the subject thereof out of commerce for a 
 longer period of time than a life or lives in being and twenty-one years 
 beyond. Here the right of alienation is not suspended for any period 
 beyond the lives of certain persons in being, and hence this provision 
 of the will is not repugnant to any rule of law in this state inhibiting 
 perpetuities. But it is said a construction that would postpone the 
 alienation of this property for more than fifty years is opposed to pub- 
 lic policy. The limitation fixed is to terminate at the death of certain 
 life annuitants, and of course when that contingency will happen is a 
 matter of the merest conjecture. It might occur within five, ten, 
 twenty, forty or sixty years. Of course the time is indefinite, and all 
 that can be i^nown concerning it with any degree of certitude is that 
 it is sure to happen sooner or later. The time for which the executors 
 and trustees are to hold the residue of the estate, for which there 
 might be a suspension of the right of alienation of the property in con- 
 troversy, is limited to the death of the last survivor of the life annui- 
 tants, and it is not perceived that in that respect it contravenes any 
 public policy existing in this state. The decree of the superior court 
 dismissing the cross-bill will be afilrmed, and the decree granting the 
 relief demanded on the original" bill will be reversed, and the cause 
 will be remanded, with direction to that court to dismiss the original 
 bill also. 
 
 CHAPTER XV. 
 MORTGAGES. 
 Helm V. Boyd. 
 
 Decision by Supreme Court of Illinois, March 27, 1888. Opinion by 
 
 Magruder, J. 
 
 (Reported in IS4 III. S70.) 
 
 Statement op Facts.—- This is a bill in chancery filed in the circuit 
 court of Wabash county by the appellee, Helen G. Boyd, against the 
 appellant, James M. Helm, who is her brother. Appellee, whose maiden 
 
LEADING AND ILLUSTEATIVE OASES. 3(7 
 
 name was Helen G. Helm, inherited from her mother, who died in July 
 or August, 1874, one-seventh of a tract of seven hundred and forty-two 
 and forty-one one-hundredths acres in Wabash county, and one-seventh 
 of a part of block eighteen, in the town of Grayville, in White county. 
 By a quitclaim deed, dated and acknowledged January 10, 1882, and 
 recorded on June 9, 1884, in White county, and on January 21, 1885, in 
 Wabash county, appellee and her husband, James S. Boyd, conveyed 
 the said one-seventh interest in said property to John J. Helm, appel- 
 lee's father, for an expressed consideration of $1,000. By a quitclaim 
 deed dated and acknowledged January 17, 1885, and recorded Januaiy 
 2], ISSo, John J. Helm and his wife, Annie V. Helm (the latter being 
 appellee's step-mother), conveyed said interest for an expressed consid- 
 eration of $1,000 to the appellant, John J. Helm's son, reserving to John 
 J. Helm the use and benefit of said premises during his life. Appellee 
 alleges in her bill that her one-seventh of said property was worth 
 §3,000 on January 10, 1882; that on that day her father loaned her |1,000, 
 without interest, and that she and her husband made the quitclaim to 
 him to secure such loan; that the deed was not intended by her and 
 her father to be an absolute one, but that It was expressly agreed be- 
 tween them that he should hold the deed and the land as security for 
 the loan, and should reoonvey the land to her upon repayment of the 
 §1,000; that when her father deeded her interest to defendant, her 
 brother, the latter had due notice and full knowledge of her rights, and 
 of the terms on which her father held the property; that it was ex- 
 pressly agreed between her father and the defendant that she should 
 have the right to redeem upon paying defendant $1,000, with legal in- 
 terest; that defendant, since the death of John J. Helm, their father, 
 in March, 1886, has collected 6-300 of rents; that on December 2, 1886, 
 she tendered to.defendant §1,000, with legal interest, and offered to pay 
 him what was due to him, but he refused to accept the money or re- 
 convey the premises. The bill prays for an account, and that, upon the 
 payment to defendant of the amount due him, he may be required to 
 reconvey and deliver possession of the premises to the complainant. 
 The answer admits the original ownership by complainant and the 
 execution of the quitclaim deeds, but denies that the deed to John J. 
 Helm was made to secure a loan, and claims that it was made to carry 
 out a sale of the property, and that John J. Helm paid complainant 
 $1,000 as purchase-money. The answer also denies that wlien the de- 
 fendant took the deed from his father he had any notice of complain- 
 ant's alleged interest in the premises, and claims that he bought the 
 property in good faith, and paid $1,000 for it, and that $1,000 was its 
 full value: and furthermore denies that defendant agreed to allow 
 complainant to redeem, or that he collected $300 of rents. The answer 
 claims the benefit of the statute of frauds. Replication was filed to the 
 answer, and the cause was heard upon bill, answer, replication and 
 
378 LEADING AND ILLUSTEATIYE CASES. 
 
 proofs taken and filed. The circuit court found the allegations of the 
 bill to be true, and decreed that appellee should pay to appellant, within 
 sixty days, $993.40, with six per cent, interest from May 26, 1887, till paid, 
 and that thereupon appellant should convey all his right, title and in- 
 terest in the premises to appellee, and upon his failure to make such 
 conveyance within twenty days after such payment it was ordered 
 that the master make the deed, etc. 
 
 Opinion.— The first question is whether the deed from appellee and 
 her husband to her father, John J. Helm, was an absolute conveyance 
 or a mere mortgage security. The statute says: "Every deed convey- 
 ing real estate, which shall appear to have been intended only as a 
 security in the nature of a mortgage, though it be an absolute convey- 
 ance in terms, shall be considered as a mortgage." Starr & C. Ann. St., 
 p. 1636, oh. 95, entitled "Mortgages," § 13. A deed absolute on its face 
 may be shown by parol to be a mortgage. The law will, however, pre- 
 sume, in the absence of proof to the contrary, that such a deed is what 
 it purports to be — an absolute conveyance. The party who claims an 
 absolute deed to be a mortgage must sustain his claim by proof suffi- 
 cient to overcome this presumption of the law. Before a deed absolute 
 m form will be held to be a mortgage, the evidence must be clear, sat- 
 isfactory and convincing. It must be made to appear clearly that such 
 a conveyance was intended to be a mortgage at the time of its execu- 
 tion. The question is one of intention, to be ascertained from all the 
 circumstances. Sharp v. Smitherman, 85 111. 153; Bartling v. Brasuhn, 
 103 111. 441; Bentley v. O'Bryan, 111 111. 53; Workman v. Greening, 115 
 111. 477, 4 N. E. R. 385. 
 
 An examination of the testimony is necessary in order to see what 
 the real intention of the parties was. It is not clear from the evidence 
 whether appellee's mother died before or after July 1, 1874. But it is- 
 admitted by counsel on both sides that John J. Helm had a life interest 
 as tenant by the curtesy in the one-seventh part of the premises in 
 question, which appellee inherited from her deceased mother. When 
 she deeded her one-seventh interest to her father, on January 10, 1882,. 
 she was only twenty years old, and had been married only about six 
 months. Appellee swears that her father proposed to her to advance 
 81,000 to her husband, James S. Boyd, to start him in business; that 
 her father said he did not want the land, and that the payment of the 
 $1,000 was merely an advancement made to help her and her husband^ 
 and that it would all come back to her; that he told her the land had 
 been left to her by her mother, and should all come back to her and 
 her children; that she never asked her father for money when he pro- 
 posed to advance money on the land; that she never offered to sell the 
 land to him, and he never offered to buy it; that when she signed the 
 deed he said to her: " You and Jim are young yet, and I merely do this 
 to have a little jurisdiction over it. As for the deed being recorded. 
 
LEADING AND ILLUSTKATIVE CASES. 379 
 
 there shall never be a scratch of the pen against your property. As 
 far as the $1,000 is concerned I will make that right with the other 
 children; " that in July, 1885, when she learned that her father had 
 recorded the deed from her, and had made a deed of the land to her 
 brother, the appellant, she asked him about it, and he replied : " I trans- 
 ferred to Jimmy Helm under the same conditions that I got it from 
 you, and he is to let you have it back. I did it to keep Annie [the sec- 
 ond wife] and her children from getting a foothold; . . . your 
 brother will do what is right; " that when she made the deed to her 
 father, she did not know how much land she owned or was conveying, 
 or anything about its value; that an hour after she made the deed her 
 father paid $500, and the balance in small amounts from time to time; 
 that there was no agreement between her and her father about paying 
 him the $1,000, etc. 
 
 James S. Boyd swears that in November and December, 1881, and 
 again about January 1, 1883, John J. Helm proposed to advance money 
 to him to go into business by buying an interest in a printing-oiKce, 
 and said he would take a quitclaim deed on Helm's portion of the 
 property, and let them have $1,000, part of which he would pay next 
 morning; that "he requested me to explain the matter to my wife; he 
 said for me to have no fears, for the amount would all come back to 
 us children, and he would make it satisfactory with the other chil- 
 dren; " that John J. Helm "said he took the deed to have a little juris- 
 diction over us and the amount he advanced us, as we were both 
 young, and that the deed should never be recorded; " that he talked 
 with his wife, and told her to do what she thought best, and she 
 said she was satisfied her father would "stick to what he says; " that 
 the next morning he told Mr. Helm his wife " was willing to get or bor- 
 row the money;" that neither he nor his wife knew the amount or 
 value the deed called for; that he never offered to sell his wife's land 
 to her father, nor asked him to furnish money to go into business 
 with; that when the deed was made Mr. Helm said: "I merely ad- 
 vanced this much money on the place; . . . eventually this will 
 all come back to her: I will see that it is made up to the other heirs; " 
 that his wife's father never stated that he expected the $1,000 to be 
 paid back to him, and never asked for it. 
 
 Annie V. Helm, widow of John J. Helm, and stepmother of appellee, 
 swears that her husband told her, before Mrs. Boyd made the deed to 
 him, that he wanted to get the deed to keep them from disposing of the 
 land to Mr. Gray (the brother of Helm's first wife); that after her hus- 
 band received the deed he said he intended to give it back to appellee, 
 and merely wanted to get it in such a way that she could not dispose 
 of it; that he never had the deed recorded on that account; that appel- 
 lant wrote to his father, advising the latter to get a deed from Helen 
 to prevent the land going into Gray's hands, and that such letter was 
 
380 LEADING AND ILLUSTRATIVE CASES. 
 
 sent to Mrs. Malcom Eastwood (appellant's sister), to prevent it from 
 falling into the wrong hands; that on the evening before she and her 
 husband conveyed the premises to appellant, her husband said to her: 
 "He [appellant] wants me to make that property over to him, and I 
 don't want to do it; " that she (witness) did not want to sign the deed 
 to James, and reminded her husband of his promise to give the land 
 back to Helen, and he said that " Jimmie would make it all right with 
 her." 
 
 Jane Kelton swears: "A short time before John J. Helm made the 
 deed to James M. Helm for said lands I heard said John J. say, Jimmie 
 would hold the property for Ella the same as he had, and Mrs. Helm 
 objected to doing it." 
 
 George W. Cline, the attorney who drew the deed made by appellee 
 to her father, swears that before the deed vpas executed John J. Helm 
 told him that he wanted the deed so that he could control the property, 
 and keep Boyd from disposing of it " if he got to drinking; " and that 
 he wcs afraid Gray might get hold of it; that Helm also told him that 
 the property would go to Ella at his death, and that "he did not want 
 it to get mixed up with his other property." 
 
 The testimony of Catharine A. Wintermute confirms the evidence of 
 appellee and Annie V. Helm in several particulars. 
 
 There is considerable amount of testimony in the record as to the 
 value of the land. After a cai-eful examination of it, we are satisfied 
 that appellee's one-seventh interest in the property, notwitlistanding 
 the fact that it was an undivided interest, and subject to her father's 
 life estate, was worth very much more than $1,000 when she made the 
 deed to her father, and when the latter made his deed to appellant. 
 
 Appellant testified as follows: "About the first of 18S5 said John J. 
 Helm told me he had bought Mrs. Boyd's share of her mother's estate; 
 that he had advised her not to sell it, and told her that at his death the' 
 property would be worth more than she could then realize on it on ac- 
 count of his life estate; that she insisted on his buying it, and said if he 
 did not she would sell to some one else; that he bought the property to 
 keep it from falling into other hands, and paid her $1,000 for it, and 
 that he had to borrow money to pay for it. He proposed that I buy it 
 from him at the same price to prevent Mrs. Helm No. 3 and her children 
 getting a foothold in ray estate." • 
 
 Mary W. Helm, a sister of appellant and appellee, testified on behalf 
 of appellant as follows: "I heard a conversation between father and 
 complainant, in which he advised her not to sell her interest in said 
 lands. He told her it would be worth more at his death than she could 
 get for it then. She wp.nted $1,300, and he told her he could not give 
 more than $1,000; that he did not think any one would give more than 
 that when they could not get possession until he died. She said she 
 would rather have the money then, to buy a homestead. They were on 
 
LEADING AND ILLUSTKATIVE OASES. 381 
 
 the front porch and I was in the hall. I think this was in July, 1881. 
 I also heard Pa tell Mr. Boyd that he thought Ella was very foolish to 
 sell her land." 
 
 John J. Helm, Jr., and J. R. Eastwood testified as to declarations of 
 John J. Helm, to the effect that he purchased the property; but, as 
 these declarations were made in his own favor, and in the absence of 
 appellee, they were clearly incompetent. 
 
 The circuit judge found that the deed from appellee to her father was 
 a mere security, and we are unable to say that the evidence does not 
 sustain his finding. The relation in which John J. Helm stood to his 
 daughter naturally gave him great influence over her. The price which 
 he is claimed by appellant to have paid her for her property was greatly 
 below its real value. Her statement that he promised not to record the 
 deed is confirmed by the fact that such deed, although executed on 
 January 10, 1882, was not, as matter of fact, recorded in "White county 
 until June 9, 1884, nor in Wabash county until January 21, 1885. It is 
 true that she did not agree to pay back the |1,000 at a definite time. 
 Her father would appear to have held out to her the Idea that she would 
 get enough from his estate to pay back the |1,000, or that there would 
 be enough coming to her from his estate to cancel the Indebtedness of 
 $1,000. Still, the impression made by the evidence is that, if he did 
 not actually practice a fraud upon her, he induced her to deed to him 
 her property under the belief that in some way it was to come back to 
 her, and that she was not to be troubled about repaying the amount 
 advanced to her. We said in Workman v. Greening, supra: "If it 
 shall appear, no matter what the form of the transaction, that the con- 
 veyance is in fact but an indemnity or security, it will be held a mort- 
 gage; and the character of liability against which indemnity is in- 
 tended, or the kind or dignity of indebtedness intended to be secured, 
 is important." 
 
 The next question is whether appellant had notice of appellee's 
 rights when he received the deed from his father of his sister's one- 
 seventh interest. There is testimony that he had actual notice of such 
 fights. Mrs. Helm, who is a disinterested witness, swears that when 
 she and her husband were having a conversation about her signing 
 the deed to appellant, and while she was reminding him of his promise 
 to give the land back to appellee, and was refusing to sign the deed he 
 wanted her to sign, the appellant was in the adjoining room or hall, 
 and called out to his father, " Make her sign it," — showing that he 
 heard the conversation. 
 
 The decree directs that there shall be returned to appellant the 
 ^1,000 which he paid to his father, with interest thereon, subject only 
 to the deduction of rents received by him from the property. We 
 think the decision of the court below does justice between the parties. 
 The decree of the circuit court is affirmed. 
 
382 LEADING AND ILLUSTRATIVE CASES. 
 
 Russell's Appeal. 
 
 Decision by the Supreme Court of Pennsylvania, 1850. Opinion by 
 
 Coulter, J. 
 {Reported in IB Pa. St. 319.) 
 
 Roberts, the defendant, as whose estate the land was sold, purchased" 
 it by articles of agreement, dated 11th of April, 1846, for $800, of which 
 he paid §463, went into possession, and remained in possession until the 
 sale and distribution of the money below. Roberts became embarrassed 
 with debts, and on the 5th of July, 1848, he executed to Stone & Graves 
 and Graves & Moore an assignment of the contract with Dunn under 
 which he held the land, and all his right and title thereby acquired, as 
 collateral security for the amount due them. 
 
 This assignment was never recorded, and Roberts still remained in 
 possession. On the 19th of August, 1848, after the unrecorded assign- 
 ment, Russell obtained his judgment, and on the 9th of September fol- 
 lowing, McGowan obtained his judgment. These two judgments claim 
 the money produced by the sale, according to their priority. But on 
 the 1st of December, 1848, Roberts, by parol, surrendered the land to 
 Graves, one of the assignees; and on the same day, Dunn and wife con- 
 veyed to C. C. Graves, consideration mentioned in deed, §900. On the 
 4th of December, 1848, Graves and wife conveyed to H. D. Roberts, the 
 defendant, who gave a judgment note to Graves for |800, which was 
 immediately entered up. 
 
 To this last judgment the court below awarded the whole money 
 made by the sale on Russell's judgment. It was contended by Russell 
 and McGowan that they were entitled to the whole fund, because the 
 note given by Russell falsely and fraudulently recited that it was for 
 the purchase-money. But it is well enough to deliver the case at once 
 from this argument, because these judgments could only bind the 
 equity, if they bound anything, which was in Roberts at the time thej' 
 were obtained, that is, after the assignment to Graves & Moore. The 
 stream cannot rise above the fountain. And the balance of purchase- 
 money then due was a previous, valid, subsisting lien. The shuffling 
 between Dunn, Roberts and Graves cannot give to Russell and McGowan 
 more than they were entitled to, nor deprive Dunn or his representative 
 of that to which he had a lawful claim. 
 
 The real question then is, whether the judgments of Russell and Mc- 
 Gowan bound the equity which Roberts had in the land at the time of 
 the assignment to Graves & Moore? And that will depend upon the 
 effect of that assignment. It was not an absolute sale or transfer of 
 the equity, because it is expressed on its face to be a collateral security 
 for the payment of a debt. It was, therefore, at most, nothing moi-e 
 than a mortgage. Even although a conveyance be absolute in its terms, 
 
LEADING AND ILLUSTEATITE CASES. 383 
 
 if it is intended by the parties to be a mere security for the payment of 
 a debt, it is a mortgage. Keene v. Gilmore, 6 Watts, 409; Claris v. Henry, 
 2 Cow. 824; Henry v. Davis, 7 Johns. Ch. 40. Roberts still continued 
 the debtor of Graves & Moore. The debt was not extinguished ; it was 
 therefore a mortgage. Nor has the writing the distinctive marks of a 
 conditional sale, for the same reason, to wit, that the original debt was, 
 by the face of the papers, still subsisting. But it was never recorded, 
 and therefore must be postponed to a subsequent judgment. Jaques 
 V. Weeks, 7 Watts, 261. 17 Serg. & E. 70; St. March 28, 1820; Dunl. Laws 
 Pa. (2d ed.), p. 354. It is contended, however, that the contract for the 
 conveyance of the land to Roberts was but a chose in action, and that 
 the assignment passed the title without the necessity of recording; 
 that it is not within the recording acts; and Craft v. Webster, 4 Rawle, 
 241, and Mott v. Clark, 9 Pa. St. 399, were cited. But these cases do not 
 carry the defendant in error through. An article of agreement for the 
 sale of land, accompanied by delivery of possession and payment of 
 part of the purchase-money, is much more than a chose in action; it is 
 an abiding interest in the land itself. It may be bound by judgment; 
 is the subject of judicial sale, not as a chattel, but as an interest in the 
 land. In the early history of Pennsylvania, improvement rights were 
 considered as chattels. But this time has long passed, and pre-emption 
 or inchoate interests are bound by judgments and sold, because every 
 interest arising out of real estate, equitable as well as legal, is con- 
 sidered as an interest in the land. Thousands of acres are held in this 
 commonwealth by location and survey only. It would sound strangely 
 to a lawyer of the interior to say that these interests were not real es- 
 tate, and the transfer or incumbrance of them not subject to the record- 
 ing laws. Such a doctrine would upset estates and change the accepted 
 principles of the com'monwealth. They have from ancient time been 
 dealt with by the people as interest in real estate, like other equitable 
 interests in land; and, being the subject of contract and sale as such, 
 there is the same reason for their being subject to the recording acts 
 as the legal title. The experienced and learned counsel states that he 
 has been unable to find any reported case in which such equities were 
 adjudged to be the subject of the recording acts. But it may never be- 
 fore have been drawn in question. I know very well, and I think every 
 practitioner is acquainted with the fact, that mortgages are often given 
 upon equitable estates, and that equitable estates are often the subject 
 of bargain and sale; and I may say that I don't recollect to liave seen 
 it contended in any case that the recording acts applied only to strictly 
 legal titles, or that judgments were liens or attached only upon legal 
 
 •estates. The subsequent judgments, therefore, became liens at the 
 time of their entry upon the equitable interest of Roberts, the assign- 
 ment to Graves & Moore being merely a mortgage or security for a 
 
 ■debt, and therefore, not being recorded, must give way to the subsequent 
 
 Judgments. 
 
3S1 LEADING AND ILLUSTEATIVE CASKS. 
 
 The decree is therefore reversed, and it is modified so as to award to 
 the legal title, or those representing it, so much of the money or funds 
 in court as was due for balance of purchase-money by Roberts at the 
 time Russell obtained his judgment; and the residue is awarded to 
 Russell's judgment, unless the residue will more than satisfy it; and 
 in such case what remains is awarded to McGowan's judgment. 
 
 The record is remitted to the court below for the purpose of carrying 
 out this modified decree. 
 
 CHAPTEE XVII. 
 
 INCORPOREAL HEREDITAMENTS. 
 
 Post V. Pearsall. 
 
 Decision by Court of Errors of New York, December, 1839. Opinion by 
 Walworth, Chancellor. 
 
 (Reported in 22 Wend. 425.) 
 
 Nearly the whole law on the subject of customary rights, easements 
 and public highways, and places in the nature of highways or public 
 walks for health or recreation, and also of dedications for charitable 
 or pious purposes, and the various decisions on these subjects, both in 
 this country and in England, are collected in the very learned and 
 elaborate opinion of Mr. Justice Cowen, who gave the reasons for the 
 decision of the supreme court in this case, and in the case of Pearsall 
 V. Hewlett, 20 Wend. Ill, which is also before us for decision at this 
 time. Little, therefore, remains for me but to apply the legal principles 
 thus collected to the facts of the case under consideration. 
 
 The plaintiff in error claims a prescriptive right for all the inhabit- 
 ants of the state, or the public at large, to enter the locus in quo, which 
 is unquestionably the soil and freehold of Pearsall, and to use it as a 
 landing place to deposit manure brought thither by water, and to load 
 and unload manure and other materials thereon. If this was claimed 
 as a customary right in behalf of the inhabitants of the town, hamlet 
 or other local district, it might be necessary to decide whether a right 
 to deposit manure and other materials upon the land of another, and 
 let them remain there until the depositor could make sale thereof, or 
 until it suited his convenience to remove them, was such an easement 
 as could be prescribed for as a customary right, without reference to 
 any dominant tenement; or whether it was a profit a prendre, or such 
 an interest in the soil and freehold of another as could only be pre- 
 scribed for in a que estate. In the great contest between the ball play- 
 ers and the rabbits relative to the right of deposit and the privilege of 
 
LEADING AND ILLUSTEATIVE OASES. 'ij6~> 
 
 scratching within the golfing links of St. Andrews, which case was 
 twice before the house of lords in England, the late Lord Chancellor 
 Eldon, although he amused their lordships at the expense of the Scot- 
 tish judges, the magistrates of St. Andrews, the ofScers and students 
 of the college, and of the golfing society, and was a little smutty 
 withal, had in that case a strong impression upon his mind that a cus- 
 tomary servitude or easement could not be supported, which would de- 
 prive the owner of the servient tenement of the whole beneficial use 
 of his property. See Dempster v. Cleghorn, 3 Dow, 40. I presume that 
 strong impression was founded upon the established principle of the 
 common law, that a custom, to be good, must be reasonable; and I 
 doubt whether any member of this court would consider a custom rea- 
 sonable which should allow the community at large to deposit manure, 
 without restriction as to kind or quantity, upon his premises, within a 
 few rods of his mansion; and to suffer it to remain there until it suited 
 the convenience of the depositors to remove it; especially if it should 
 be bone manure, a commodity with which it seems the farmers in the 
 neighborhood of the locus in quo have recently found it profitable to en- 
 rich their farms. Indeed, in its legal effect upon the rights of the owner 
 of the soil, it is very difficult to distinguish the occupancy claimed in 
 this case from the temporary occupancy by fishing huts, which was 
 claimed in Cortelyou v. Van Brundt, 3 Johns. 357. But as the law is 
 well settled that a customary accommodation in the lands of another, 
 to be good, must be confined to the inhabitants of a local district, and 
 cannot extend to the whole community or people of the state, the right 
 claimed by Post, the plaintiff in error, cannot be sustained as a cus- 
 tomary right or easement consistently with the rules of law. 
 
 Nor can it be sustained as an ordinary easement, founded upon a pre- 
 sumed grant from the owner of the premises in which the right or ease- 
 ment is claimed. Such easements are either personal and confined to 
 an individual for life merely, or are claimed in reference to an estate 
 or interest of the claimant in other lands as the dominant tenant; for 
 a profit a prendre in the land of another, when not granted in favor of 
 some dominant tenement, cannot properly be said to be an easement, 
 but an interest or estate iu the land itself. The three personal servi- 
 tudes of the Roman law, use, usufruct and habitation, and which are 
 still retained in the laws of France and of Spain and of Holland, were 
 not, strictly speaking, servitudes, but limited estates in the land; and 
 they are now separately provided for as such by the Napoleon Code, 
 one article of which expressly declares that servitudes cannot be per- 
 sonal, and that they can only exist when imposed upon an estate and 
 for the benefit of an estate. Article 686. 
 
 Neither can the right claimed in this case be sustained upon the prin- 
 ciples upon which the dedication of highways and streets for the pas- 
 sage of carriages and other conveyances, and of public squares in cities 
 35 
 
386 LEADIXG AND ILLUSTRATIVE CASES. 
 
 and villages as promenades for the health and exercise of the inhabit- 
 ants, have been declared and adjudged to be public rights. Public places 
 of this description, as well as public highways, were well known even 
 in the days of Justinian, and were protected by the same pretorian in- 
 terdict from all obstructions which could interfere with the free pas- 
 sage of the people, without the consent of the public authorities. Poth. 
 Paud. de Just., lib. 43, tit. 8, art. 1. They were equally well known in 
 the ancient law of France, and embraced the public squares and prom- 
 enades, where the whole community had a right to go; and the places 
 where the public fairs were held. 14 Guizot, Revert art. "Public." Al- 
 though at the time of the publication of the laws of William the Con- 
 queror there were but four great roads in England called the king's 
 [highways, yet no one can doubt that there were, even at that time, in- 
 numerable thoroughfares, and many squares and open spaces, which 
 had been dedicated to the use of the people at large, for passages and 
 promenades; and the number since that time has probably increased 
 an hundred fold. The law of dedication, therefore, which was applicable 
 to thoroughfares, was properly applicable to market places and prome- 
 nades, although they were not highways in the ordinary sense of the 
 term. But a public place for landing and depositing manure must, 
 from its very nature, be confined to a very few individuals; and would 
 generally be permitted as a mere neighborhood accommodation, while 
 the owner of the land on which it was deposited had no immediate use 
 of the premises himself. The only right, therefore, which would be 
 likely to be acquired by long user would be a right of easement or ac- 
 commodation in favor of the owners of the farms, for the use of which 
 the manure had from time to time been brought, so as to authorize 
 their successors in such ownership to prescribe in a que estate. I think, 
 therefore, it would be most unreasonable to apply the principles of 
 dedication to such a case. A dedication for pious or charitable pur- 
 poses does not vest a legal right but merely creates a pious or chari- 
 table trust, which under our statute relative to religious corporations 
 is turned into a legal estate. Dutch Church v. Mott, 7 Paige, 77; Curd 
 ■v. Wallace, 7 Dana, 192. Such a dedication, therefore, has no applica- 
 bility to the case under consideration. 
 
 The rights to public watering places on Long Island can be sustained 
 either as customary rights, or as easements appurtenant to the estates 
 which have been supplied with water therefrom, for a sufBcieut time 
 to raise the legal presumption of a grant. The right to take water 
 from the pond of another is a mere easement, and not a profit a pren- 
 dre. Manning v. Wasdale, 2 Harr. & W. 431. 
 
 I think the judgment of the court below in this case was not errone- 
 -ous, and that it ought to be affirmed. 
 
LEADING AND ILLDSTEATIVE CASES. 887 
 
 Thurston v. Hancock et al. 
 
 Decision by Supreme Judicial Court of Massachusetts, March Terra, 
 1815. Opinion by Parker, C. J. 
 
 (Reported in IS Mass. SW.) 
 
 The facts agreed present a case of great misfortune and loss, and one 
 which has induced us to look very minutely into the authorities, to see 
 if any remedy exists in law against those who have been the immedi- 
 ate actors in what has occasioned the loss; but after all the researches 
 we have been able to make, we cannot satisfy ourselves that the facts 
 reported will maintain this action. 
 
 The plaintiff purchased his land in the year 1803, on the summit of Bea- 
 con Hill, which has a rapid declivity on all sides. In 1804 he erected 
 a brick dwelling-house and out-houses on this lot, and laid his founda- 
 tion, on the western side, within two feet of his boundary line. The 
 inhabitants of the town of Boston were at that time the owners, either 
 by original title or by an uninterrupted possession for more than sixty 
 years, of the land on the hill lying westwardly of the lot purchased by 
 the plaintiff. On the 6th of August, 1811, the defendants purchased of 
 the town the land situated westwardly of the lot owned by the plaint- 
 iff; and, in the same year, commenced leveling the hill, by digging 
 and carrying away the gravel; they not actually digging up to the 
 line of division between them and the plaintiff; but keeping five or 
 six feet therefrom. Nevertheless, by reason of the hill, the earth fell 
 away, so as in some places to leave the plaintiff's foundation wall bare, 
 -and so to endanger the falling of his house, as to make it prudent and 
 necessary, in the opinion of skilful persons, for the safety of the lives 
 of himself and his family, to remove from the house; and, in order to 
 save the materials, to take down the house, and to rebuild it on a safer 
 foundation. The defendants were notified of the probable consequences 
 of thus digging by the plaintiff, and were warned that they would be 
 called upon for damages in case of any loss. 
 
 The manner in which the town of Boston acquired a title to the land, 
 or to the particular use to which it was appropriated, can have no in- 
 fluence upon the question; as the fee was in the town without any re- 
 striction as to the manner in which the land should be used or occu- 
 pied. 
 
 It is a common principle of the civil and of the common law, that 
 the proprietor of land, unless restrained by covenant or custom, has 
 the entire dominion, not only of the soil, but of the space above and 
 below the surface, to any extent he may choose to occupy it. 
 
 The law, founded upon principles of reason and common utility, has 
 admitted a qualification to this dominion, restricting the proprietor so 
 to use his own as not to injure the property or impair any actual ex- 
 
388 LEADING AND ILLUSTEATIVE OASES. 
 
 isting rights of another. "Sic utere tuo ut alienum non Icedas." Thus- 
 no man, having land adjoining his neighbor's which has been long 
 built upon, shall erect a building in such manner as to interrupt the 
 light or the air of his neighbor's house, or expose it to injury from the 
 weather or to unwholesome smells. 
 
 But this subjection of the use of a man's own property to the con- 
 venience of his neighbor is founded upon a supposed pre-existing right 
 in his neighbor to have and enjoy the privilege which by such act is 
 impaired. Therefore it is that, by the ancient common law, no man could 
 maintain an action against the owner of an adjoining tract of land for 
 interrupting the passage of the light or the air to a tenement unless the 
 tenement thus affected was ancient, so that the plaintiff could pre- 
 scribe for the privilege of which he had been deprived, upon the com- 
 mon notion of prescription that there was formerly a grant of the 
 privilege, which grant has been lost by lapse of time, although the en- 
 joyment of it has continued. 
 
 Now, in such case of a grant presumed, it shall, for the purposes of 
 justice, be further presumed that it was from the ancestor of the man 
 interrupting the privilege, or from those whose estate he has; so as to 
 control him in the use of his own property in any manner that shall 
 interfere with or defeat an ancient grant thus supposed to have been 
 made. This is the only way of accounting for the common-law princi- 
 ple which gives one neighbor an action against another for making the 
 same use of his property which he has made of his own. And it is a 
 reasonable principle; for it would be exceedingly unjust that succet" 
 sive purchasers or inheritors of an estate for the space of sixty years, 
 with certain valuable privileges attached to it, should be liable to be 
 disturbed by the representatives or successors of those who originally 
 granted, or consented to, or acquiesced in, the use of the privilege. 
 
 It is true that of late years the courts in England have sustained ac- 
 tions for the obstruction of such privileges of much shorter duration 
 than sixty years. But the same principle is preserved of the presump- 
 tion of a grant. And, indeed, the modern doctrine, with respect to 
 easements and privileges, is but a necessary consequence of late decis- 
 ions, that grants and title deeds may he presumed to have been made,, 
 although the title or privilege claimed under them is of a much later 
 date than the ancient time of prescription. 
 
 The plaintiff cannot pretend to found his action upon this principle; 
 for he first became proprietor of the land in 1803, and built his home 
 in 1804, ten years before the commencement of his suit. So that, if 
 the presumption of a grant were not defeated by showing the com- 
 mencement of his title to be so recent, yet there is no case where less 
 than twenty years has entitled a building to the qualities of an ancient 
 building, so as to give the owner a right to the continued use of priv- 
 ileges, the full enjoyment of which necessarily trenches upon his neigh- 
 
LEADING AND ILLUSTBATIVE OASES. 389 
 
 bor's right to use his own property in the way he shall deem most to 
 his advantage. A man who purchases a house, or succeeds to one, 
 ■which has the marks of antiquity about it, may well suppose that all 
 its privileges of right appertain to the house; and, indeed, they could 
 not have remained so long without the culpable negligence or friendly 
 acquiescence of those who might originally have had a right to hinder 
 or obstruct them. But a man who himself builds a house adjoining 
 his neighbor's land ought to foresee the probable use by his neighbor 
 of the adjoining land, and, by convention with his neighbor or by a dif- 
 ferent arrangement of his house, secure himself against future inter- 
 ruption and inconvenience. 
 
 This seems to be the result of the cases anciently settled in England, 
 upon the substance of nuisance or interruption of privileges and ease- 
 ments; and it seems to be as much the dictate of common sense and 
 sound reason as of legal authority. 
 
 The decisions cited by the counsel for the plaintiff in support of this 
 action generally go to establish only the general principle that a rem- 
 edy lies for one who is injured consequentially by the acts of his neigh- 
 bor done on his own property. The civil-law doctrine cited from 
 Domat will be found, upon examination, to go no further than the 
 common law upon the subject. For, although it is there laid down 
 that new works on a man's ground are prohibited, provided they are 
 hurtful to others who have a right to hinder them; and that the per- 
 son erecting them shall restore things to their former s'tate and repair 
 the damages; from whence, probably, the common-law remedy of abat- 
 ing a nuisance as well as recovery of damages; yet this is subsequently 
 explained and qualified in another part of the same chapter, where it 
 is said that, if a man does what he has a right to do upon his own land, 
 without trespassing upon any law, custom, title or possession, he is not 
 liable to damages for injurious consequences, unless he does it, not for 
 his ovrn advantage, but maliciously; and the damages shall be consid- 
 ered as casualties for which he is not answerable. 
 
 The common law has adopted the same principle, considering the 
 actual enjoyment of an easement for a long course of years as estab- 
 lishing a right which cannot with impunity be impaired by him who 
 is the owner of the land adjoining. 
 
 The only case cited from common-law authorities, tending to show 
 that a mere priority of building operates to deprive the tenant of an 
 adjoining lot of the right of occupying and using it at his pleasure, 
 without being subjected to damages, if by such use he should injure a 
 building previously erected, is that of Slingsby v. Barnard, 1 RoUe, 430. 
 Sir John Slingsby brought his action on the case against Barnard and 
 Ball, and declared that he was seized of a dwelling-house nuper edifl- 
 catus, and that Barnard was seized of a house next adjoining; and that 
 Barnard, and Ball under him, in making a cellar under Barnard's house, 
 
390 LEADING AND ILLUSTEATIVE CASES. 
 
 dug SO near the foundation of the plaintiff's house that they under- 
 mined the same, and one-half of it fell. Judgment upon this declara- 
 tion was for the plaintiff, no objection haTing been made as to the 
 right of action, but only to the form of the declaration. 
 
 The report of this case is very short and unsatisfactory; it not ap- 
 pearing whether the defendant confined himself in his digging to his 
 own land, or whether the house then lately built was upon a new or 
 an old foundation. Indeed, it seems impossible to maintain that case 
 upon the facts made to appear in the report, without denying princi- 
 ples which seem to have been deliberately laid down in other books, 
 equally respectable as authorities. 
 
 Thus, in Sid. 107, upon a special verdict the case was thus: A., hav- 
 ing a certain quantity of land, erected a new house upon part of it, and 
 leased the house to B. and the residue of the land to C, who put logs 
 and other things upon the land adjoining said house, so that the win- 
 dows were darkened, etc. It was holden that B. could maintain case 
 against C. for this injury. But the reason seems to be, that C. took 
 his lease seeing that the house was there, and that he should not, any 
 more than the lessor, render the house first leased less valuable by his 
 obstructions. It was, however, decided in the same case, that, if one 
 seized of land lease forty feet of it to A. to build \ipon, and another 
 forty feet to B. to build upon, and one builds a house, and then the 
 other digs a cellar upon his ground, by which the wall of the first 
 house adjoining falls, no action lies; and so, they said, it was ad- 
 judged in Sliewry v. Piggott, W. Jones, 145, for each one may make 
 what advantage he can of his own. The principle of this decision 
 is, that both parties came to the land with equal rights in point of 
 time and title; and that he who first built his house should have 
 taken care to stipulate with his neighbor, or to foresee the accident 
 and provide against it by setting his house sufficiently within his line 
 to avoid the mischief. In the same case it is stated, as resolved by the 
 court, that, if a stranger have the land adjoining to a new house, he 
 may build new houses, etc., upon his land, and the other shall be with- 
 out remedy when the lights are darkened; otherwise, when the house 
 first built was an ancient one. 
 
 In RoUe, Abr. 565, A., seized in fee of copyhold estate, next adjoining 
 land of B., erects a new house upon his copyhold land, and a part is built 
 upon the confines next adjoining the land of B., and B. afterwards digs 
 his land so near the house of A., but on no part of his land, that the 
 foundation of the house, and even the house itself, fall; yet no action 
 lies for A. against B., because it was the folly of A. that he built his 
 house so near to the land of B. For by his own act he shall not hinder 
 B. from the best use of his own land that he can. And after verdict, 
 judgment was arrested. The reporter adds, however, that it seems 
 that a man, who has land next adjoining my land, cannot dig his land 
 
LEADING AKD ILLUSTEATIVB CASES. 391 
 
 SO near mine as to cause mine to slide into the pit; and, if an action 
 be brought for this, it will lie. 
 
 Although, at first view, the opinion of RoUe seems to be at variance 
 with the decision which he has stated, yet they are easily reconciled 
 with sound pi-inciples. A man in digging upon his own land is to have 
 regard to the position of his neighbor's land, and the probable conse- 
 quences to his neighbor if he digs too near his line; and if he disturbs 
 the natural state of the soil, he shall answer in damages; but he is an- 
 swerable only for the natural and necessary consequences of his act, 
 and not for the value of a house put upon or near the line by his neigh- 
 bor. For, in so placing the house, the neighbor was in fault, and ought 
 to have taken better care of his interest. 
 
 If this be the law, the case before us is settled by it; and we have not 
 been able to discover that the doctrine has ever been overruled, nor to 
 discern auy good reason why it should be. 
 
 The plaintiff purchased his land in 1803. At that time the inhabit- 
 ants of Boston were in possession and the owners of the adjoining land 
 now owned by the defendants. The plaintiff built his house within 
 two feet of the western line of the lot, knowing that the town, or those 
 who should hold under it, had a right to build equally near to the line, 
 or to dig down into the soil for any other lawful purpose. He knew 
 also the shape and nature of the ground, and that it was impossible to 
 dig there without causing excavations. He built at his peril; for it 
 was not possible for him, merely by building upon his own ground, to 
 deprive the other party of such use of his as he should deem most ad- 
 vantageous. There was no right acquired bj' his ten years' occupation, 
 to keep his neighbor at a convenient distance from him. He could not 
 have maintained an action for obstructing the light or air; because he 
 should have known that, in the course of improvements on the adjoin- 
 ing land, the light and air might be obstructed. It is, in fact, damnum 
 absque injuria. 
 
 By the authority above cited, however, it would appear that for the 
 loss of, or injury to, the soil merely, his action may be maintained. The 
 defendants should have anticipated the consequences of digging so near 
 the line; and they are answerable for the direct consequential damage 
 to the plaintiff, although not for the adventitious damage arising from 
 his putting his house in a dangerous position. 
 
392 LEADING AND ILLUSTBATIVE OASES. 
 
 CHAPTER XIX. 
 
 TITLES OTHER THAN BY GRANT. 
 
 liOtodell V. Hayes et al. 
 
 Decision by the Supreme Judicial Court of Massachusetts, November 
 Term, 1858. Opinion by Thomas, J. 
 
 {Reported in IS Gray, S36.) 
 
 Upon the decease of the owner of real estate, it descends to and vests 
 in his heirs at law, unless otherwise disposed of by his will. It vests in 
 his heirs, however, subject to the payment of his debts. But until a 
 sale is lawfully made for that purpose, the heirs may enter upon the 
 estate and receive the rents and profits. Their interest is determined 
 only by the sale. Gibson v. Farley, 16 Mass. 287; Boynton v. Railroad 
 Co., 4 Gush. 467. 
 
 This is true also of the estate in which the deceased had an equitable 
 interest, which he had purchased of the city of Boston, upon which he 
 had erected dwelling-houses, and of wliich he was in possession at the 
 time of his death. R. S., c. 61, § 1; Id., c. 74, §§ 8-14; Reed v. Whitney, 
 7 Gray, 533. 
 
 The real estate of Lobdell was disposed of by his last will and testa- 
 ment. In the portion devised in trust for his daughters, the heirs at 
 law, as such, have of course no interest. But, in relation to so much 
 as was devised to the widow, she, as she had a legal right to do, waived 
 the provisions of the will. Of this estate there is no devise over. The 
 devise fails, and the estate descends as intestate estate to the heirs at 
 law. 
 
 The plaintiff is one of three heirs at law who take the estate devised 
 to the widow, and the devise of which fails by her waiver of the pro- 
 visions of the will. The plaintiff would therefore be entitled to the 
 possession of one-third of such estate, or of the rents and profits of one- 
 third, until the same is sold for the payment of debts; that is to say, 
 she is entitled under the facts agreed to one-third of one-half of the 
 rents received by the administrators, subject to the deductions here- 
 after stated. 
 
 By the agreed statement of facts it appears that the administrators, 
 in the collection of the rents and in the management and care of the 
 estates, acted as the agents of all the parties in interest. And from 
 the amount to be accounted for as rents are first to be deducted the 
 sums expended for repairs upon the real estate, for interest upon the 
 mortgages, for taxes and insurance, and a reasonable compensation to 
 the administrators for their services in the care of the estates and col- 
 lection of the rents. 
 
LEADING AND ILLUSTBATITE CASES. 393 
 
 As to the rents received from the houses in Medford Court, they 
 aiiust be held to abide the decision in the suit of Montague v. Lobdell. 
 
 The demand of the widow upon the administrators for dower was of 
 no avail, so far, at any rate, as it applied to the estates which, by her 
 waiver of the provisions of the will, descended to the heirs at law, and 
 no deduction is to be made from the plaintiff's share on that account. 
 
 If the parties are unable to agree upon the amount to be paid to the 
 plaintiff under the rules above stated, the case must be sent to an as- 
 sessor to fix the amount. ( 
 
 Judgment for the plaintiff. 
 
 Kohl et al. V. United States. 
 
 Decision by Supreme Court of the United States, October, 1875. Opin- 
 ion by Strong, J. 
 
 {Reported in 91 U. S. 367.) 
 
 It has been seriously contended during the argument that the United 
 States government is without power to appropriate lands or other prop- 
 erty within the states for its own uses, and to enable it to perform its 
 proper functions. Such an authority is essential to its independent ex- 
 istence and perpetuity. These cannot be preserved if the obstinacy of 
 a private person, or if any other authority, can prevent the acquisition 
 of the means or instruments by which alone governmental functions 
 can be performed. The powers vested by the constitution in the gen- 
 eral government demand for their exercise the acquisition of lands in 
 all the states. These are needed for forts, armories, and arsenals, for 
 navy-yards and light-houses, for custom-houses, post-ofBces, and court- 
 houses, and for other public uses. If the right to acquire property for 
 such uses may be made a barren right by the unwillingness of property 
 holders to sell, or by the action of a state prohibiting a sale to the fed- 
 eral government, the constitutional grants of power may be rendered 
 nugatory, and the government is dependent for its practical existence 
 upon the will of a state, or even upon that of a private citizen. This 
 cannot be. No one doubts the existence in the state governments of 
 the right of eminent domain, — a right distinct from and paramount to 
 the right of ultimate ownership. It grows out of the necessities of their 
 being, not out of the tenure by which lands are held. It may be exer- 
 cised, though the lands are not held by grant from the government, 
 either mediately or immediately, and independent of the consideration 
 whether they would escheat to the government in case of a failure of 
 heirs. The right is the offspring of political necessity; and it is insepa- 
 rable from sovereignty, unless denied to it by its fundamental law. 
 Tatt, c. 80, 34; Bynk., lib. 2, c. 15; Kent, Comm. 338-340; Cooley, Const. 
 iLim. 584 et seq. But it is no more necessary for the exercise of the 
 
394 LEADING AND ILLUSTEATIVE CASES. 
 
 powers of a state government than it is for the exercise of the conceded 
 powers of the federal government. That government is as sovereign, 
 within its sphere as the states are within theirs. True, its sphere is 
 limited. Certain subjects only are committed to it; butits power over 
 those subjects is as full and complete as is the power of the states over 
 the subjects to which their sovereignty extends. The power is not 
 changed by its transfer to another holder. 
 
 But, if the right of eminent domain exists in the federal government, 
 it is a right which may be exercised within the states, so far as is nec- 
 essary to the enjoyment of the powers conferred upon it by the consti- 
 tution. In Ableraan v. Booth, 21 How. 523, Chief Justice Taney de- 
 scribed in plain language the complex nature of our government, and 
 the existence of two distinct and separate sovereignties within the same 
 territorial space, each of them restricted in its powers, and each, within 
 its sphere of action prescribed b}' the constitution of the United States,, 
 independent of the other. Neither is under the necessity of applying 
 to the other for permission to exercise its lawful powers. Within its 
 own sphere, it may employ all the agencies for exerting them which 
 are appropriate or necessary, and which are not forbidden by the law 
 of its being. When the power to establish post-oflSces and to create 
 courts within the states was conferred upon the federal government- 
 included in it was authority to obtain sites for such oiifioes and for 
 court-houses, and to obtain them by such means as were known and 
 appropriate. The right of eminent domain was one of those means well' 
 known when the constitution was adopted, and employed to obtain 
 lands for public uses. Its existence, therefore, in the grantee of that 
 power ought not to be questioned. The constitution itself contains an 
 implied recognition of it beyond what may justly be implied from the 
 express grants. The fifth amendment contains a provision that private 
 property shall not be taken for public use without just compensation. 
 What is that but an implied assertion that, on making just compensa-- 
 tion, it may be taken? In Cooley, Const. Lira. 526, it is said: "So far 
 as the general government may deem it important to appropriate lands 
 or other property for Its own purposes, and to enable it to perform its 
 functions, — as must sometimes be necessary in the case of forts, light- 
 houses, and military posts or roads, and other conveniences and neces- 
 sities of government, — the general government may exercise the author- 
 ity as well within the states as within the territory under its exclusive 
 jurisdiction; and its right to do so may be supported by the same rea- 
 sons which support the right in any case; that is to say, the absolute 
 necessity that the means in the government for performing its func- 
 tions and pei-petuating its existence should not be liable to be controlled 
 or defeated by the want of consent of private parties or of any other 
 authority." We refer also to Trombley v. Humphrey, 23 Mich. 471; 10' 
 Pet. 723; Dickey v. Turnpike Co., 7 Dana, 113; McCullough v. Maryland,. 
 4 Wheat. 429. 
 
LEADING AND ILLTJSTEATIVE OASES. 395 
 
 It is true, this power of the federal government has not heretofore 
 been exercised adversely; but the non-user of a power does not disprove 
 its existence. In some instances, the states, b}' virtue of their own right 
 of eminent domain, have condemned lands for the use of the general 
 government, and such condemnations have been sustained by their 
 courts, without, however, denying the right of the United States to act 
 independently of the states. Such was the ruling in Gilmer v. Lime 
 Point, 18 Cal. 229, where lands were condemned by a proceeding in a 
 state court and under a state law for a United States fortification. A 
 similar decision was made in Burt v. Insurance Co., 106 Mass. 356, 
 where land was taken under a state law as a site for a postoflSce and 
 sub-treasury building. Neither of these cases denies the right of the 
 federal government to have lands in the states condemned for its uses 
 under its own power and by its own action. The question was, whether 
 the state could take lands for any other public use than that of the 
 state. In Trombley v. Humphrey, 23 Mich. 471, a different doctrine 
 was asserted, founded, we think, upon better reason. The proper view 
 of the right of eminent domain seems to be, that it is a right belonging 
 to a sovereignty to take private property for its own public uses, and 
 not for those of another. Beyond that, there exists no necessity; whicli 
 alone is the foundation of the right. If the United States have the 
 power, it must be complete in itself. It can neither be enlarged nor 
 diminished by a state. Nor can any state prescribe the manner in 
 which it must be exercised. The consent of a state can never be a 
 condition precedent to its enjoyment. Such consent is needed only, if 
 at all, for the transfer of jurisdiction and of the right of exclusive leg- 
 islation after the land shall have been acquired. 
 
 It may, therefore, fairly be concluded that the proceeding in the 
 case we have in hand was a proceeding by the United States gov- 
 ernment in its own right, and by virtue of its own eminent domain. 
 The act of congress of March 3, 1873 (17 Stat. 39), gave authority to the 
 secretary of the treasury to purchase a central and suitable site in the 
 city of Cincinnati, Ohio, for the erection of a building for the accom- 
 modation of the United States courts, custom-house. United States de- 
 pository, postofflce, internal-revenue and pension offices, at a cost not 
 exceeding $300,000; and a proviso to the act declared that no money 
 should be expended in the purchase until the state of Ohio should cede 
 its jurisdiction over the site, and relinquish to the United States the 
 right to tax the property. The authority here given was to purchase. 
 If that were all, it might be doubted whether the right of eminent do- 
 main was intended to be invoked. It is true, the words "to purchase " 
 might be construed as including the power to acquire by condemna- 
 tion; for, technically, purchase includes all modes of acquisition other 
 than that of descent. But generally, in statutes as in common use, the 
 word is employed in a sense not technical, only as meaning acquisition 
 
396 LEADING AND ILLUSTRATIVE CASES. 
 
 by contract between the parties, without governmental interference. 
 That congress intended more than this is evident, however, in view of 
 the subsequent and amendatory act passed June 10, 1873, which made 
 an appropriation " for the purchase at private sale or by condemnation 
 of the ground for a site " for the building. These provisions, connected 
 as they are, manifest a clear intention to confer upon the secretary of 
 the treasury power to acquire the grounds needed by the exercise of 
 the national right of eminent domain, or by private purchase, at his 
 discretion. Why speak of condemnation at all, if congress had not in 
 view an exercise of the right of eminent domain, and did not intend to 
 confer upon the secretary the right to invoke it? 
 
 But it is contended on behalf of the plaintiffs in error that the cir- 
 cuit court had no jurisdiction of the proceeding. There is nothing in 
 the acts of 1873, it is true, that directs the process by which the con- 
 templated condemnation should be effected, or which expressly authoi- 
 izes a proceeding in the circuit court to secure it. Doubtless congress 
 might have provided a mode of taking the land, and determining the 
 compensation to be made, which would have been exclusive of all other 
 modes. They might have prescribed in what tribunal or by what agents 
 the taking and the ascertainment of the just compensation should be 
 accomplished. The mode might have been by a commission, or it might 
 have been referred expressly to the circuit court; but this, we think, 
 was not necessary. The investment of the secretary of the treasury 
 with power to obtain the land by condemnation, without prescribing 
 the mode of exercising the power, gave him also the power to obtain 
 it by any means that were competent to adjudge a condemnation. The 
 judiciary act of 1789 conferred upon the circuit courts of the United 
 States jurisdiction of all suits at common law or in equity, when the 
 United States, or any officer thereof, suing under the authority of any 
 act of congress, are plaintiffs. If, then, a proceeding to take land for 
 public uses by condemnation may be a suit at common law, jurisdic- 
 tion of it is vested in the circuit court. That it is a "suit" admits of 
 no question. In Weston v. Charleston, 3 Pet. 464, Chief Justice Marshall, 
 speaking for this court, said: "The term [' suit '] is certainly a very com- 
 prehensive one, and is understood to apply to any proceeding in a court 
 of justice by which an individual pursues that remedy which the law 
 affords. The modes of proceeding may be various; but, if a right is 
 litigated in a court of justice, the proceeding by which the decision of 
 the court is sought is a suit." A writ of prohibition has, therefore, 
 been held to be a suit; so has a writ of right, of which the circuit 
 court has jurisdiction (Green v. Liter, 8 Cranoh, 839); so has habeas 
 corpics. Holmes v. Jamieson, 14 Pet. 564. When, in the eleventh sec- 
 tion of the judiciary act of 1789, jurisdiction of suits of a civil nature 
 at common law or in equity was given to the circuit courts, it was in- 
 tended to embrace not merely suits which the common law recognized 
 
LEADING AND ILLUSTEATITE CASES. 397 
 
 as among its old and settled proceedings, but suits in which legal rights 
 were to be ascertained and determined as distinguished from rights in 
 equity, as well as suits in admiralty. The right of eminent domain 
 always was a right at common law. It was not a right in equity, nor 
 was it even the creature of a statute. The time of its exercise may 
 have been prescribed by statute; but the right itself was superior to 
 any statute. That it was not enforced through the agency of a jury is 
 immaterial; for many civil as well as criminal proceedings at common 
 law were without a jury. It is difficult, then, to see why a proceeding to 
 take land in virtue of the government's eminent domain, and determin- 
 ing the compensation to be made for it, is not, within the meaning of 
 the statute, a suit at common law, when initiated in a court. It is an 
 attempt to enforce a legal right. It is quite immaterial that congress 
 has not enacted that the compensation shall be ascertained in a judicial 
 proceeding. That ascertainment is in its nature at least gMosi-judicial. 
 Certainly no other mode than a judicial trial has been provided. 
 
 It is argued that the assessment of property for the purpose of taking 
 it is in its nature like the assessment of its value for the purpose of 
 taxation. It is said they are both valuations of the property to be made 
 as the legislature may prescribe, to enable the government, in the one 
 case, to take the whole of it, and in the other to take a part of it for 
 public uses; and it is argued that no one but congress could prescribe 
 in either case that the valuation should be made in a judicial tribunal 
 or in a judicial proceeding, although it is admitted that the legislature 
 might authorize the valuation to be thus made in either case. If the 
 supposed analogy be admitted, it proves nothing. Assessments for tax- 
 ation are specially provided for, and a mode is prescribed. No other is, 
 therefore, admissible. But there is no special provision for ascertain- 
 ing the just compensation to be made for land taken. This is left to 
 the ordinary processes of the law; and hence, as the government is a 
 suitor for the property under a claim of legal right to take it, there ap- 
 pears to be no reason for holding that the proper circuit court has not 
 jurisdiction of the suit, under the general grant of jurisdiction made 
 by the act of 1789. 
 
 The second assignment of error is, that the circuit court refused the 
 demand of the defendants below, now plaintiffs in error, for a separate 
 trial of the value of their estate in the property. They were lessees of 
 one of the parcels sought to be taken, and they demand a separate trial 
 of the value of their interest; but the court overruled the demand, 
 and required that the jury should appraise the value of their lot or 
 parcel, and that the lessees should in the same trial try the value of 
 their leasehold estate therein. In directing the course of the trial, the 
 court required the lessor and the lessees each separately to state the 
 nature of their estates to the jury, the lessor to offer his testimony 
 separately, and the lessees theirs, and then the government to answer the 
 
398 LEADING AND ILLUSTRATIVE CASES. 
 
 testimony of the lessor and the lessees; and the court instructed the 
 jury to find and return separately the value of the estates of the lessor 
 and the lessees. It is of this that the lessees complain. They contend 
 that whether the proceeding is to be treated as founded on the national 
 right of eminent domain, or on that of the state, its consent having 
 been given by the enactment of the state legislature of February 15, 
 1873 (70 Ohio Lavrs, p. 36, § 1), it was required to conform to the practice 
 and proceedings in the courts of the state in like cases. This require- 
 ment, it is said, was made by the act of congress of June 1, 1873. 17 Stat. 
 •522. But, admitting that the court was bound to conform to the practice 
 and proceedings in the state courts in like cases, we do not perceive 
 that any error was committed. Under the laws of Ohio, it was regular 
 to institute a joint proceeding against all the owners of lots proposed 
 to be taken (Giesy v. Railroad Co., 4 Ohio St. 308); but the eighth sec- 
 tion of the state statute gave to "the owner or owners of each separate 
 parcel " the right to a separate trial. In such a case, therefore, a sep- 
 arate trial is the naode of proceeding in the state courts. The statute 
 treats all the owners of a parcel as one party, and gives to them collect- 
 ively a trial separate from the trial of the issues between the govern- 
 ment and the owners of other parcels. It hath this extent; no more. 
 The court is not required to allow a separate trial to each owner of an 
 estate or interest in each parcel, and no consideration of justice to 
 those owners would be subserved by it. The circuit court, therefore, 
 gave to the plaintiffs in error all, if not more than all, they had a right 
 to ask. The judgment of the circuit court is affirmed. 
 
 Mr. Justice Field (dissenting). Assuming that the majority are cor- 
 rect in the doctrine announced in the opinion of the court, — that the 
 right of eminent domain within the states, using those terms not as 
 synonymous with the ultimate dominion or title to property, but as in- 
 dicating merely the right to take private property for public uses, be- 
 longs to the federal government, to enable it to execute the powers 
 conferred by the constitution, — and that any other doctrine would 
 subordinate, in important particulars, the national authority to the 
 caprice of individuals or the will of state legislatures, it appears to me 
 that provision for the exercise of the right must first be made by legis- 
 lation. The federal courts have no inherent jurisdiction of a proceed- 
 ing instituted for the condemnation of property; and I do not find any 
 statute of congress conferring upon them such authority. The judi- 
 ciary act of 1789 only invests the circuit courts of the United States with 
 jurisdiction, concurrent with that of the state courts, of suits of a civil 
 nature at common law or in equity; and these terms have reference to 
 those classes of cases which are conducted by regular pleadings be- 
 tween parties, according to the established doctrines prevailing at the 
 time in the jurisprudence of England. The proceeding to ascertain 
 
LEADING AND ILLUSTEATITE OASES. 399 
 
 the value of property which the government may deem necessary to 
 the execution of its powers, and thus the compensation to be made 
 for its appropriation, is not a suit at common law or in equity, but an 
 inquisition for the ascertainment of a particular fact as preliminary to 
 the taking; and all that is required is that the proceeding shall be con- 
 ducted in some fair and just mode, to be provided by law, either with 
 or without the intervention of a jury, opportunity being afforded to 
 parties interested to present evidence as to the value of the property, 
 and to be heard thereon. The proceeding by the states, in the exercise 
 of their right of eminent domain, is often had before commissioners of 
 assessment or special boards appointed for that purpose. It can hardly 
 be doubted that congress might provide for inquisition as to the value 
 of property to be taken by similar instrumentalities; and yet, if the 
 proceeding be a suit at common law, the intervention of a jury would 
 be required by the seventh amendment to the constitution. 
 
 I think that the decision of the majority of the court in including 
 the proceeding in this case under the general designation of a suit at 
 common law, with which the circuit courts of the United States are 
 invested by the eleventh section of the judiciary act, goes beyond pre- 
 vious adjudications and is in conflict with them. 
 
 Nor am I able to agree with the majority in their opinion, or at least 
 intimation, that the authority to purchase carries with it authority to 
 acquire by condemnation. The ofle supposes an agreement upon valu- 
 ation and a voluntary conveyance of the property: the other implies a 
 compulsory taking and a contestation as to the value. Beekman v. 
 Railroad Co., 3 Paige, 75; Railroad Co. v. Davis, 2 Dev. & B. 465; Will- 
 yard V. Hamilton, 7 Ham. (Ohio), 453; Livingston v. Mayor, etc., 7 Wend. 
 85; Koppikus v. Commissioners, 16 Cal. 249. 
 
 For these reasons, I am compelled to dissent from the opinion of the 
 court. 
 
 CHAPTEE XX. 
 
 TITLE BY GRANT. 
 
 Moore v. Robbins. 
 
 Decision by the Supreme Court of the United States, October, 1877. 
 Opinion by Miller, J. 
 
 (Reported in 96 U. S. 5S0.) 
 
 This case is brought before us by a writ of error to the supreme court 
 •of the state of Illinois. 
 
 In its inception it was a bill in the circuit court for De Witt county 
 ito foreclose a mortgage given by Thomas L Bunn to his brother, Lewis 
 
400 LEADING AND ILLUSTRATIVE CASES. 
 
 Bunn, on the south half of the southeast quarter and the south half of 
 the southwest quarter of section 27, township 19, range 3 east, in said 
 county. In the progress of the case the bill was amended so as to al- 
 lege that C. H. Moore and David Davis set up some claim to the land;, 
 and they were made defendants and answered. 
 
 Moore said that he was the rightful owner of forty acres of the land 
 mentioned in the bill and mortgage, to wit, the southwest quarter of 
 the southwest quarter of said section, and had the patent of the United 
 States giving him title to it. 
 
 Davis answered that he was the rightful owner of the southeast quar- 
 ter of said southwest quarter of section 87. He alleges that John P., 
 Mitchell bought the land at the public sale of lands ordered by the 
 president for that district, and paid for it, and had the receipt of the 
 register and receiver, and that it was afterwards sold under a valid 
 judgment and execution against Mitchell, and the title of said Mitchell 
 came by due course of conveyance to him, said Davis. 
 
 It will thus be seen that, while Moore and Davis each assert title 
 to a different forty acres of land covered by Bunn's mortgage to his 
 brother, neither of them claims under or in privity with Bunn's title, 
 but adversely to it. 
 
 But as both parties assert a right to the land under purchases from 
 the United States, and since their rights depend upon the laws of the 
 United States concerning the sale of its public lands, there is a question 
 of which this court must take cognizance. 
 
 As regards Moore's branch of the case, it seems to us free from diffi- 
 culty. 
 
 The evidence shows that the forty acres which he claims was struck 
 off to him at a cent or two over §2..50 per acre, at a public land sale, by 
 the officers of the land district at Danville, Illinois, November 15, 1855; 
 that his right to it was contested before the register and receiver by 
 Bunn, who set up a prior pre-emption right. Those officers decided in 
 favor of Bunn, whereupon Moore appealed to the commissioner of the 
 general land office, who reversed the decision of the register and re- 
 ceiver, and on this decision a patent for the land was issued to Moore, 
 who has it now in his possession. 
 
 Some time after this patent was delivered to Moore, Bunn appealed 
 from the decision of the commissioner to the secretary of the interior, 
 who reversed the commissioner's decision and confirmed that of the 
 register and receiver, and directed the patent to Moore to be recalled,, 
 and one to issue to Bunn. But Moore refused to return his patent, and 
 the land department did not venture to issue another for the same 
 land; and so there is no question but that Moore is vested now with 
 the legal title to the land, and was long before this suit was commenced,. 
 Nor is there, in looking at the testimony taken before the register and 
 receiver and that taken in the present suit, any just foundation for 
 
LEADING AND ILLUSTRATIVE CASES. 4U1 
 
 Bunn's pre-emption claim. We will consider this point more fully 
 when we come to the Davis branch of the case. 
 
 Taking this for granted, it follows that Moore, who has the legal 
 title, is in a suit in chancery decreed to give it up in favor of one who 
 has neither a legal nor an equitable title to the land. 
 
 The supreme court of Illinois, before whom it was not pretended that 
 Bunn had proved his right to a pre-emption, in their opinion in this 
 case place the decree by which they held Bunn's title paramount to that 
 of Moore on the ground that to the ofiScers of the land department, in- 
 cluding the secretary of the interior, the acts of congress had confided 
 the determination of this class of cases; and the decision of the secre- 
 tary in favor of Bunn, being the latest and the final authoritative de- 
 cision of the tribunal having jurisdiction of the contest, the courts are 
 bound by it, and must give effect to it. Robbins v. Bunn, 54 111. 48. 
 
 Without now inquiring into the nature and extent of the doctrine 
 referred to by the Illinois court, it is very clear to us that it has no ap- 
 lication to Moore's case. While conceding for the present, to the full- 
 est extent, that when there is a question of contested right between 
 private parties to receive from the United States a patent for any part 
 of the public land, it belongs to the head of the land department to de- 
 cide that question, it is equally clear that when the patent has been 
 awarded to one of the contestants, and has been issued, delivered and 
 accepted, all right to control the title or to decide on the right to the 
 title has passed from the land office. Not only has it passed from the 
 land office, but it has passed from the executive department of the 
 government. A moment's consideration will show that this must, in 
 the nature of things, be so. We are speaking now of a case in which 
 the officers of the department have acted within the scope of their au- 
 thority. The offices of register and receiver and commissioner are 
 created mainly for the purpose of supervising the sales of the public 
 lands; and it is a part of their daily business to decide when a party has 
 by purchase, by pre-emption, or by any other recognized mode, estab- 
 lished a right to receive from the government a title to any part of the 
 public domain. This decision is subject to an appeal to the secretary, 
 if taken in time. But if no such appeal be taken, and the patent issued 
 under the seal of the United States, and signed by the president, is de- 
 livered to and accepted by the party, the title of the government 
 passes with this delivery. With the title passes away all authority or 
 control of the executive department over the land, and over the title 
 which it has Conveyed. It would be as reasonable to hold that any 
 private owner of land who has conveyed it to another can, of his own 
 volition, recall, cancel or annul the instrument which he has made and 
 delivered. If fraud, mistake, error or wrong has been done, the courts 
 of justice present the only remedy. These courts are as open to the 
 United States to sue for the cancellation of the deed or reconveyance 
 26 
 
402 LEADING AND ILL0STEATIVE CASES. 
 
 of the land as to individuals; and if the government is the party in 
 jured, this is the proper course. 
 
 "A patent," says the court in United States v. Stone, 3 Wall. 525, " is the 
 highest evidence of title, and is conclusive as against the government 
 and all claiming under junior patents or titles, until it is set aside or 
 annulled by some judicial tribunal In England, this was originally 
 done by scire facias; but a bill in chancery is found a more convenient 
 remedy." See also Hughes v. United States, 4 Wall. 832, 11 How. 552. 
 
 If an individual setting up claim to the land has been injured, he 
 may, under circumstances presently to be considered, have his remedy 
 against the party who has wrongfully obtained the title which should 
 have gone to him. 
 
 But in all this there is no place for the further control of the execu- 
 tive department over the title. The functions of that department nec- 
 essarily cease when the title has passed from the government. And 
 the title does so pass in every instance where, under the decisions of 
 the ofiScers having authority in the matter, a conveyance, generally 
 called a patent, has been signed by the president and sealed and deliv- 
 ered to and accepted by the grantee. It is a matter of course that, 
 after this is done, neither the secretary nor any other executive officer 
 can entertain an appeal. He is absolutely without authority. If this 
 were not so, the titles derived from the United States, instead of being 
 the safe and assured evidence of ownership which they are generally 
 supposed to be, would be always subject to the fluctuating, and in 
 many cases unreliable, action of the land office. No man could buy of 
 the grantee with safety, because he could only convey subject to the 
 right of the officers of the government to annul his title. 
 
 If such a power exists, when does it cease ? There is no statute of 
 limitations against the government; and if this right to reconsider 
 and annul a patent after it has once become perfect exists in the exec- 
 utive department, it can be exercised at any time, however remote. It 
 is needless to pursue the subject further. The existence of any such 
 power in the land department is utterly inconsistent with the universal 
 Ijrinciple on which the right of private property is founded. 
 
 The order of the secretary of the interior, therefore, in Moore's case, 
 was made without authority and is utterly void, and he has a title per- 
 fect both at law and in equity. 
 
 The question presented by the forty acres claimed by Davis is a very 
 different one. Here, although the government has twice sold the land 
 to different persons and received the money, it has issued no patent to 
 either, and the legal title remains in the United States. It is not de- 
 nied, however, that to one or the other of the parties now before the 
 court this title equitably belongs; and it is the purpose of the present 
 suit to decide that question. 
 
 The evidence shows that on the sanae day that Moore bought at the 
 
LEADING AND ILLCSTEATIVE CASES. 403 
 
 public land sale the forty acres we have just been considering, Mitchell 
 bought in like manner the forty acres now claimed by Davis, to wit, 
 November 15, 1855. He paid the sum at which it was struck off to 
 him at public outcry, and received the usual certificate of purchase 
 from the register and receiver. On the 20th day of February, 1856, 
 more than three months after Mitchell's purchase, Thomas I. Bunn 
 appeared before the same register and receiver and asserted a right, 
 by reason of a pre-emption commenced on the 8th day of November, 
 1855, to pay for the south half of the southwest quarter and the south 
 half of the southeast quarter of section 37, which includes both the 
 land of Moore and Davis in controversy in this suit, and to receive their 
 certificates of purchase. They accepted his money and granted his 
 certificate. A contest between Bunn on the one side and Moore and 
 Mitchell on the other, as to whether Bunn had made the necessary set- 
 tlement, was decided by those officers in favor of Bunn; and on appeal, 
 as we have already shown, to the commissioner, this was reversed, and 
 finally the secretary of the interior, reversing the commissioner, decided 
 in favor of Bunn. But no patent was issued to Mitchell after the com- 
 missioner's decision, as there was to Moore; and the secretary, there- 
 fore, had the authority undoubtedly to decide finally for the land 
 department who was entitled to the patent. And though no patent 
 has been issued, that decision remains the authoritative judgment of 
 the department as to who has the equitable right to the land. 
 
 The supreme court of Illinois, in their opinion in this case, come to 
 the conclusion that this final decision of the secretary is not only con- 
 clusive on the department, but that it also excludes all inquiry by 
 courts of justice into the right of the matter between the parties. 
 
 The whole question, however, has been since that time very fully 
 reviewed and considered by this court in Johnson v. Towsley, 13 "Wall. 
 73. The doctrine announced in that case, and repeated in several cases 
 since, is this: 
 
 That the decision of the officers of the land department, made within 
 the scope of their authority on questions of this kind, is in general con- 
 clusive everywhere, except when reconsidered by way of appeal within 
 that department; and that as to the facts on which their decision is 
 based, in the absence of fraud or mistake, that decision is conclusive 
 even in courts of justice, when the title afterwards comes in question. 
 But that in this class of cases, as In all others, there exists in the courts 
 of equity the jurisdiction to correct mistakes, tb relieve against frauds 
 and impositions, and in cases where it is clear that those officers have, 
 by a mistake of the law, given to one man the land which on the undis- 
 puted facts belonged to another, to give appropriate relief. 
 
 In the recent case of Shepley v. Cowan, 91 U. S. 340, the doctrine is 
 thus aptly stated by Mr. Justice Field: "The officers of the land de- 
 partment are specially designated by law to receive, consider and pass 
 
404 LEADING AND ILLUSTRATIVE CASES. 
 
 upon proofs presented with reSpeot to settlements upon the public 
 lands, with a view to secure rights of pre-emption. If they err in the 
 construction of the law applicable to any case, or if fraud is practiced 
 upon them, or they themselves are chargeable with fraudulent prac- 
 tices, their rulings may be reviewed and annulled by the courts when a 
 controversy arises between private parties founded upon their decis- 
 ions; but for mere errors of judgment upon the weight of evidence in 
 a contested case before them, the only remedy is by appeal from one 
 officer to another of the department." 
 
 Applying to the case before us these principles, which are so well 
 established and so well understood in this court as to need no further 
 argument, we are of opinion, if we take as proved the sufficiency of the 
 occupation and improvement of Bunn as of the date which he al- 
 leged, his claim is fatally defective in another respect in which the 
 oflficers of the land department were mistaken as to the law which gov- 
 erned the rights of the parties, or entirely overlooked it. 
 
 In the recent case of Atherton v. Fowler, 96 tJ. S. 513, we had occa- 
 sion to review the general policy and course of the government in dis- 
 posing of the public lands, and we stated that it had formerly been, if 
 it is not now, a rule of primary importance to secure to the govern- 
 ment the highest price which the land would bring by offering it pub- 
 licly at competitive sales, before a right to any part of it could be 
 established by private sale or by pre-emption. In the enforcement of 
 this policy, the act of September 14, 1841, which for the first time 
 established the general principle of pre-emption, and which has re- 
 mained the basis of that right to this day, while it allowed persons 
 to make settlements on the public lands as soon as the surveys were 
 completed and filed in the local offices, affixed to such a settlement 
 two conditions as aflEecting the right to a pre-emption. One of these 
 was that the settler should give notice to the land office of the district, 
 within thirty days after settlement, of his intention to exercise the 
 right of pre-emption, and the other we will give in the language of the 
 fourteenth section of that act: 
 
 "This act shall not delay the sale of any of the public lands of the 
 United States beyond the time which has been or may be appointed by 
 the pi-oclamation of the president, nor shall any of the provisions of 
 this act be available to any person who shall fail to make the proof of 
 payment and file the affidavit required before the commencement of 
 the sale aforesaid." 5 Stat. 457. 
 
 There can be no misconstruction of this provision, nor any doubt 
 that it was the intention of congress that none of the liberal provisions 
 of that act should stand in the way of a sale at auction of any of the 
 public lands of a given district where the purchase had not been com- 
 pleted by the payment of the price before the commencement of the 
 sales ordered by the president's proclamation. We do not decide, be- 
 
LEADING AND ILI.TJSTEATIVE CASES. 405 
 
 cause we have not found it necessary to do so, whether this provision 
 is applicable under all the pre-emption laws passed since the act of 1841, 
 though part of it is found in the Revised Statutes (section 2383), as part 
 of the existing law. But we have so far examined all those laws en- 
 acted prior to November, 1855, the date of Mitchell's purchase, as to 
 feel sure it was in full operation at that time. The act of March 3, 1853, 
 extending the right of pre-emption to the alternate sections, which the 
 government policy reserved in its numerous grants to railroads and 
 other works of internal improvement, required the pre-emptor to pay 
 for them at $3.50 per acre, before they should be offered at sale at public 
 auction. 10 Stat. 244. Tliis was only two years and a half before these 
 lands were sold to Mitchell, and they were parts of an alternate section 
 reserved in a railroad grant. That statute, in its terms, was limited to 
 persons who had already settled on such alternate sections, and it may 
 be doubted whether any right of pre-emption by a settlement made 
 afterwards existed under the law. But it is unnecessary to decide that 
 point, as it is beyond dispute that it required in any event that the 
 money should he paid before the land was offered for sale at public 
 auction. 
 
 The record of this case shows that while Bunn's pre-emption claim 
 comes directly within the provisions of both statutes, they were ut- 
 terly disregarded in the decision of the secretary of the interior, on 
 which alone this case has foundation. 
 
 We have no evidence in this record at what time the president's 
 proclamation was issued, or when the sales under it began at which 
 Mitchell purchased. The proclamations are not published in the stat- 
 utes as public laws, and this one is not mentioned in the record. But 
 we know that the public lands are never offered at public auction until 
 after a proclamation fixing a day when and the place where the sales 
 begin. The record shows that both Moore and Mitchell bought and paid 
 for the respective forty-acre pieces now in contest, at public auction. 
 That they were struck off to them a few cents in price above the mini- 
 mum of §3.50, below which these alternate sections could not be sold, 
 and that this was on the 15th day of November, 1855. These public 
 sales were going on then on that day, and how much longer is not 
 known, but it 'might have been a week, or two weeks, as these sales 
 often continue open longer than that. 
 
 Bunn states in his application, made three months after this, that his 
 settlement began on the 8th of November, 1855. It is not apparent from 
 this record that he ever gave the notice of his intention to pre-empt the 
 land, by filing what is called a declaration of that intention in the 
 land office. There is a copy of such a declaration in the record accom- 
 panying the affidavit of settlement, cultivation and qualification re- 
 quired of a pre-emptor, which last paper was made and sworn to Febru- 
 ary 30, 1856, when he proved up his claim, and paid for and received his 
 
406 LEADING AND ILLUSTEATITE CASES. 
 
 certificate. There is nothing to show when the declaration of intention 
 was filed in the office. 
 
 Waiving this, however, which is a little obscure in the record, it is 
 very clear that Bunn "failed to make proof of payment, and failed to 
 file the affidavit of settlement required, before the commencement of 
 the sale " at which Mitchell bought. The statute declares that none of 
 the provisions of the act shall be available to any person who fails to 
 do this. The affidavit and payment of Bunn was made three months 
 after the land sales had commenced, and after these lands had been 
 sold. 
 
 The section also declares that the act shall not delay the sale of any 
 public land beyond the time which has been or may be appointed by the 
 proclamation of the president. To refuse Mitchell's bid on account of 
 any supposed settlement, even if it had been brought to the attention 
 of the officers, would have been to delay the sale beyond the time ap- 
 pointed, and would, therefore, have been in violation of the very stat- 
 ute under which Bunn asserts his right. 
 
 Whatever Bunn may have done on the 8th of November, and up to the 
 15th of that month, in the way of occupation, settlement, improve- 
 ment, and even notice, could not withdraw the land from sale at pub- 
 lic auction, unless he had also paid or offered to pay the price before 
 the sales commenced. 
 
 It seems quite probable that such attempt at settlement as he did 
 make was made while the land sales were going on, or a few days be- 
 fore they began, with the purpose of preventing the sale, in ignorance 
 of the provision of the statute which made such attempt ineffectual. 
 
 At all events, we are entirely satisfied that the lands in controversy 
 were subject to sale at public auction at the time Moore and Mitchell 
 bid for and bought them; that the sale so made was by law a valid 
 one, vesting in them the equitable title, with right to receive the pat- 
 ents; and that the subsequent proceedings of Bunn to enter the land 
 as a pre-emptor were unlawful and void. 
 
 It was the duty of the court in Illinois, sitting as a court of equity, 
 to have declared that the mortgage made by Bunn, so far as these 
 lands are concerned, created no lien on them, because he had no right, 
 legal or equitable, to them. 
 
 The decree of the supreme court of that state must be reversed, and 
 the cause remanded to that court for further proceedings in accord- 
 ance with this opinion; and it is so ordered. 
 
LEADING AND ILLPSTBATIVE OASES. 407 
 
 CHAPTER XXI. 
 
 TITLE BY PRIVATE GRANT. 
 
 Havens v. Sea Shore Land Co. 
 
 Decision by Court of Chancery of New Jersey, October 31, 1890. Opin- 
 ion by Van Fleet, V. C. 
 
 (Reported in 47 N. J. Eq. S65.) 
 
 This is a partition suit. The title to one of the tracts which the 
 complainants seels: to have divided is in dispute. The defendant as- 
 serts title to the whole tract. The complainants, on the other hand, 
 assert a title to the undivided half of it, but admit that the defendant 
 has title to an undivided fourth, and that the title to the other undi- 
 vided fourth is in certain other persons. The defendant exhibits a 
 paper title to the whole tract. The important question, therefore, pre- 
 sented for decision is. Is the title exhibited by the defendant valid ? 
 For, if it is, the bill, as against the defendant, as to that tract, must be 
 dismissed. Both parties claim under David Curtis, who died intestate 
 between 1783 and 1788. At the time of his death he owned two undi- 
 vided sevenths of Manasquan beach, one of which he acquired from 
 Elisha Lawrence by deed dated July, 1770, and the other from Benja- 
 min Lawrence by a deed which it is alleged is lost. Among the gifts 
 made by David Curtis by his will, there is one which reads, in sub- 
 stance, as follows: "I give and devise unto my eldest son, Elisha, that 
 right of beach I bought of Elisha Lawrence, — to him, and the heirs of 
 his body lawfully begotten ; and, for the want of such heir or heirs, 
 then to be equally divided between my two sons John and Benjamin." 
 David Curtis, besides limiting over to his two sons John and Benjamin 
 the land devised to his son Elisha, made John and Benjamin his resid- 
 uary devisees, and they, as such devisees, took that undivided seventh 
 of Manasquan beach which had been conveyed to their father by Ben- 
 jamin Lawrence. The thing in dispute is the one-half of that seventh 
 which David Curtis acquired from Elisha Lawrence, and which he, by 
 his will, limited over to his son John, in case his son Elisha, for the 
 want of heirs of his body, did not take it. The defendant claims this 
 half, and puts forward as the foundation of its title a deed purporting 
 to have been made on the 31st day of May, 1788, by John Curtis to 
 Joseph Lawrence. The whole contest between the parties centers in 
 this deed. If it passed the land in controversy, the defendant will be 
 entitled to prevail in this suit. If it did not, the complainants will be 
 entitled to the decree they ask. The complainants contend — First, 
 that the deed has not been sufficiently proved to entitle it to be ad 
 
408 LEADING AND ILLUSTEATIYE CASES. 
 
 mitted in evidence; and, secondly, that if it was admitted, no effect 
 could be given to it (1) for the want of apt words to pass any right or 
 estate which the grantor may have held at the time of its execution, 
 and (3) because the grantor then held no right or estate in the land 
 which he could grant or convey. These questions will be considered in 
 an order directly the reverse of that in which they have just been 
 stated. It is undisputed that Elisha Curtis, the eldest son of David, died 
 childless, never having had issue of his body. John died before Elisha. 
 Their deaths occurred very near together in point of time, but the proof 
 makes it entirely clear that John died first, so that it was undeter- 
 mined when John died whether or not Elisha would have issue of his 
 body. As the law stood when the devise to Elisha took effect, it Is 
 clear that he took an estate tail in the land devised. Our statute cut- 
 ting an estate tail down to an estate for life in the first taker, with re- 
 mainder in fee to the issue of his body, was not passed until 1820 (Elmer. 
 Dig., p. 130, pt. 6), and the devise to Elisha took effect prior to 1788. 
 Chief Justice Kirkpatrick stated with great clearness, in Den v. Taylor, 
 5 N. J. Law, 413, 417, what words would be held to be sufBcient to 
 create an estate tail. He said: "It is as well settled that a devise to 
 one and his heirs, and, if he die without issue, then over to another, 
 creates an estate tail, as if the principal devise had been, in the most 
 technical language, to him and the heirs of his body. The words of 
 the devise over, "if he die without issue, then over to another,' limit 
 the generality of the terms ' heirs ' in the principal devised, and lead us 
 to the inevitable conclusion that the testator intended heirs of the body 
 only, and not heirs generally. And whenever this intention can be 
 collected from the whole will, taken together, let the phraseology in 
 the particular clauses of it be what it may, it has been always con 
 strued to make an estate tail." This statement of the law has been so 
 uniformly followed by the courts of this state as to have become a 
 canon of real-property law. Moore v. Rake, 26 N. J. Law, 574, 585. It 
 is entirely clear that Elisha Curtis took an estate tail in the land in 
 controversy. This being so, it necessarily follows that the devise over 
 to John and Benjamin, in case Elisha did not have issue of his body, 
 gave them a vested remainder in fee, subject to be defeated by the 
 birth of issue to Elisha. The law is settled that a remainder limited 
 upon an estate tail will be held to be vested, though it is uncertain 
 whether a right to possession will ever vest in the remainderman. 
 
 The decision of the court of errors and appeals in Moore v. Rake, 26 
 N. J. Law, 574, is directly in point, and furnishes an authoritative illus- 
 tration of the manner in which this principle of law is to be applied. 
 The devise in that case took eflEect in 1795, and was expressed substan- 
 tially in this form: "I give to my son Isaac, his heirs and assigns, all 
 my lands whereon I now live, to hold to him, his heirs and assigns, for- 
 ever; but, if my son Isaac should die without lawful issue, then I give 
 
LEADING AND ILLTjSTEATIVE OASES. iOQ 
 
 my land to my wife, her heirs and assigns, forever." The testator's son 
 Isaac died in 1843, without issue, never having been married. His 
 mother, the testator's widow, died in 1832, over ten years before Isaac. 
 The controverted question in the case was what estate the testator's 
 wife took under the devise. The court held that she took a vested re- 
 mainder, and not by way of an executory devise, nor a contingent re- 
 mainder. Each of the three judges who wrote opinions — Chancellor 
 Williamson, and Justices Elmer and Vredenbui-gh — so expressly de- 
 clared. Justice Vredenburgh (page 586) gave the following summary of 
 the leading rules distinguishing a vested from a contingent remainder: 
 "An estate is vested when there is a present fixed right of present or 
 future enjoyment. The law favors the vesting of remainders, and does 
 it at' the first opportunity. It is the present capacity of taking effect in 
 possession, if the possession were to become vacant, that distinguishes 
 a vested from a contingent i-emainder. It is the uncertainty of the 
 right which renders a remainder contingent, not the uncertainty of 
 the actual enjoyment. A remainder limited upon an estate tail is held 
 to be vested, though it is uncertain if the possession will ever take 
 place." There can, therefore, be no doubt that John Curtis, by force of 
 the devise to him, took a vested remainder in fee in the land in contro- 
 versy, and it is equally certain, if such was the character of his estate, 
 that he had good right and full power to make an effectual conveyance 
 of it during the life of his brother Elisha. 
 
 If a different conclusion had been reached as to the nature of John's 
 estate, and it had been found that the remainder limited to him was 
 contingent, still I think the court would have been bound to declare, 
 in conformity to the well-settled law on this subject, that he had full 
 power, during the life of Elisha, to make an effectual conveyance of his 
 ■estate in the land, though it was uncertain whether such estate would 
 ever vest in possession. All contingent estates of inheritance, or pos- 
 sibilities coupled with an interest, where the person who is to take is 
 certain, may be conveyed or devised before the contingency on which 
 they depend happens. In Ackerman's Adm'rs v. Vreeland's Ex'r, 14 
 N. J. Eq. 33, 29, Chancellor Green said: "It may be relied on as a rule 
 that every interest in lands, however remote the possibility is, may be 
 released." The law on this subject, as stated by Sergeant Williams in 
 his note to Purefoy v. Rogers, 2 Saund. 388, and adopted by the supreme 
 court in Den v. Manners, 20 N. J. Law, 142, 145, and restated approv- 
 ingly by Justice Vredenburgh in Moore v. Rake, 26 N. J. Law, 593, is 
 this: "It seems now to be established, notwithstanding some old opin- 
 ions to the contrary, that contingent and executory estates, and possi- 
 bilities accompanied by an interest, are descendible to the heir, or 
 ■transmissible to the representative, of a person dying, or may be granted, 
 assigned or devised by him, before the contingency upon which they 
 ■depend takes effect." These authorities make it plain that the first 
 
■ilO LEADING AND ILLUSTRATIVE CASES. 
 
 question must be decided in favor of the defendant. At the date of the- 
 deed which the defendant puts forward as the foundation of its title, 
 there can be no doubt that John Curtis had full power to make an- 
 effectual conveyance of the land in controversy. 
 
 Assuming, for the present, that the deed on trial has been sufficiently 
 proved to entitle it to be admitted in evidence, the next question is. What 
 effect shall be given to it? Did it pass the estate of John Curtis in the 
 land in controversy ? Its granting clause is in these words: " Witness- 
 eth, that the said John Curtis, for and in consideration of the just and 
 full sum of sixteen pounds, proclamation money, hath remised, released 
 and forever quitclaimed, and by these presents, for himself and his- 
 heirs, doth fully, clearly, and absolutely remise, release, and forever 
 quitclaim, unto the said Joseph Lawrence, all his right, title, interest 
 and property," etc. It will be observed that, although the grant is not 
 made to the grantee and his heirs, it is made by the grantor for himself 
 and his heirs. This language, standing by itself, and in the absence of 
 any words plainly indicating that the estate to be granted was less 
 than a fee, would seem to furnish very cogent evidence that the grantor 
 intended to convey a fee. That such was the intention of the maker of 
 this instrument is put beyond all question by the language of its haben- 
 dum, which is in these words: "To have and to bold the above, [then 
 designating the thing conveyed,] with, all and singular, the privileges- 
 and appurtenances thereunto belonging, [reserving liberty to fish and 
 gun,] to the only proper use, benefit and behoof of him, the said Joseph 
 Lawrence, his heirs and assigns forever; so that neither he, the said 
 John Curtis, nor Mercy, his wife, nor their heirs, nor any other person 
 or persons, for themselves, or any other of the name, or in the name, 
 right or stead of any of them, shall or will, by any way or means, here- 
 after claim, challenge or demand any right, title or interest of, in or 
 to the said right, or any part or parcels thereof." Where the granting 
 clause of a deed is silent as to the estate intended to be conveyed, re- 
 sort may be had to the habendum to ascertain the intention of the 
 grantor in that regard. It cannot be used either to enlarge or diminish 
 the estate specifically defined in the granting clause, for if it is repug- 
 nant to that clause it is void; but if that clause is either silent or am- 
 biguous, then the habendum becomes the standard by which the estate 
 granted must be measured. The chief justice, speaking for the court 
 of errors and appeals, in Gravel Co. v. Newell, 53 N. J. Law, 413, 19 Atl.- 
 R. 809, said: "The well-settled rule is that, if the granting part of 
 the conveyance does not, by clear and definite terms, conclude the 
 question, this clause, [the habendum,] whose office is to define the ex-^ 
 tent of the ownership granted, may be resorted to. It may be used to 
 explain, but not to vary or control, the premises." And Justice Dupue, 
 in speaking for the same court, in Melick v. Pidcook, 44 N. J. Eq. 535, 
 540, 15 Atl. R. 3, said: "To create a fee the limitation must be to heirs; 
 
LEADING AND ILLUSTEATIVE CASES. 411 
 
 but it may be made either in direct terms or by immediate reference, 
 and it is not essential that the word 'heirs' be located in any particu- 
 lar part of the grant.'' No doubt can be entertained that, if this instru- 
 ment passed anything, it passed a fee. 
 
 But it is further said that the deed on trial contains no words of con- 
 veyance, but merely words of release, and as the defendant has admitted 
 by its answer that, so far as it has been able to discover, the person to 
 whom the release was made was, at the date of its execution, without 
 right of any kind in the land released, the release must, as a matter of 
 law, be adjudged to be without legal force. Both of the propositions 
 of fact upon which this contention rests appear to be true. The oper- 
 ating or essential words of the deed are "remise, release and quit- 
 claim," and it is also true that the defendant admits that the person to 
 whom the deed was made was, at the date of its execution, without 
 right in the land released; but, as I understand the law, it does not 
 follow that the deed, for these reasons, must be adjudged to be nuga- 
 tory. On the contrary, I think the law from the earliest times has 
 made it the duty of the courts in all cases, where it appeared that the 
 deed put on trial was founded on a valuable consideration, and there 
 was no reason to declare that it had been unfairly obtained, to sustain 
 it and carry it into effect, if bylaw it were possible to do so. More than 
 a century ago Lord Mansfield said: "The rules laid down in respect 
 of the construction of deeds are founded in law, reason and common 
 sense, that they shall operate according to the intention of the parties 
 if by law they may: and, if they cannot operate in one form, they shall 
 operate in that which by law will effectuate the intention." Goodtitle 
 V. Bailey, Cowp. 597, 600. And in Sheppard's Touchstone the same doc- 
 trine is stated in this wise: "A deed that is intended and made to one 
 purpose may inure to another; for, if it will not take effect that way, 
 it is intended it may take effect another way. And therefore a deed 
 made and intended for a release may amount to a grant of a reversion, 
 an attornment or a surrender, or e oonverso. And if a man have two ways 
 to pass lands by the common law, and he intended to pass them one way, 
 and they will not pass that way, in that case, ut res valeat, they may pass 
 the other way.'' (1st Amer. Ed. 83.) Judge Hare, in his notes to Roe v. 
 Tranmarr, Willes, 683, 3 Wils. 75, says: "Any instrument which shows 
 that a title was meant to be given in return for value received will be 
 equally effectual with the most formal deed ; words to raise a use, and a 
 consideration to support it, being all that is requisite to call the statute 
 of uses into operation, and constitute a bargain and sale. A deed which 
 has failed of effect as a release, from the want of an estate in possession 
 in the releasee, or as a feoffment, from want of livery of seisin, may con- 
 sequently be rendered valid as a bargain and sale by the averment and 
 proof of a valuable consideration, although none is expressed in the 
 writing." 3 Smith, Lead. Gas. (8th Amer. Ed.) 534. And Chancellor 
 
412 LEADING AND ILLUSTEATITE CASES. 
 
 Kent, while chief justice of the supreme court of New York, said, in 
 pronouncing the prevailing opinion of that court in Jackson v. Alexan- 
 der, 3 Johns. 484, 493: "The law from the beginning has been very in- 
 dulgent in helping out deeds on the ground of consideration." And in 
 his Commentaries he said: "Any words that will raise a use will, with 
 a valuable consideration, amount to a bargain and sale. " 4 Kent, Comm. 
 496. These citations render it unnecessary to discuss the question as 
 to what effect shall be given to the deed on trial. They make it clear 
 that it passed the land by way of bargain and sale. The deed shows on 
 its face that it was founded on a valuable consideration paid by the 
 grantee; hence, if the deed shall be admitted in evidence, the fact that 
 a valuable consideration was paid for the land will be established by 
 proof inherent in the deed. No particular form of words is required to 
 raise a use. Any words will be sufficient for that purpose which show 
 an intention to convey. That such was the intention of the maker of 
 this instrument is put beyond dispute by the words of the instrument 
 itself. Effect must be given to the deed as a bargain and sale. 
 
 We now come to the question, Has the deed been sufficiently proved 
 to entitle it to be admitted in evidence ? It was not acknowledged, but 
 purports to have been executed in the presence of two subscribing wit- 
 nesses. If it is an honest paper it was executed over one hundred years 
 ago. This great lapse of time puts it out of the power of the defendant 
 to call the subscribing witnesses, or to produce any direct evidence of 
 the authenticity of the signatures of either the subscribing witnesses 
 or the grantor. All persons who could give such evidence we know 
 must have been dead for years. The antiquity of the paper appears to 
 me to be fully established. The paper itself furnishes, as I think, very 
 strong evidence of that fact. Its color and texture show that it is very 
 ancient. Its water-mark indicates that it was made in the reign of one 
 of the Georges. The spelling and style of penmanship are such as dis- 
 tinguish documents written near the beginning of the present century 
 from those written at a more recent date. And the consideration men- 
 tioned in it, it will be observed, is expressed in a currency which, as a 
 matter of history, we know was in use about the time the deed pur- 
 ports to have been made. It is undoubtedly true that all these things 
 might exist if the paper had been forged, but there is no proof suggest- 
 ing even a suspicion of forgery, and the law never presumes either 
 fraud or crime. Besides, it is not to be supposed, as Judge Harper of 
 the court of appeals of South Carolina very pertinently remarked in 
 Robinson v. Craig, 1 Hill, 389, 391, that "a deed would be forged with a 
 view to a fraud to be committed at the end of thirty years." The mo- 
 tive which usually leads to crime is the hope of present gain. No 
 motive of that kind existed in this case. Until quite recently the land 
 in controversy was worthless, not capable of being used with profit for 
 any purpose, a mere barren waste, lying between the waters of the 
 
LEADING AND ILLUSTEATIVE CASES. 413 
 
 Atlantic ocean and Barnegat bay. Nobody ever had possession of it or 
 exercised any acts of ownership over it until the latter part of 1880, 
 when the defendant built a small house and some fence on it, which it 
 subsequently caused to be removed. From the date of the deed until 
 less than twelve years ago the land was regarded as without present or 
 prospective value. In this state of affairs, it is impossible to believe that 
 anybody would have expended the time and talent requisite in the per- 
 petration of such a complicated forgery simply to place himself in a 
 position where he might set up a claim to a worthless tract of land. 
 But there is other evidence on this point. The deed on trial, it will be 
 remembered, purports to have been made May 31, 1788, by John Curtis 
 to Joseph Lawrence. Joseph Lawrence — Curtis' grantee — conveyed 
 the same land to James Price by deed dated November 16, 1790. This 
 latter deed, though purporting to have been executed in the presence 
 of three subscribing witnesses, is unacknowledged, and the same objec- 
 tions are urged against its admission in evidence that are urged against 
 the admissibility of the other. Joseph Lawrence, in his deed to Price, 
 describes the land which he conveys as that part of Sqan beach " which 
 I bought of John Curtis, which was left to him by his father, David 
 Curtis, deceased, which he bought of Elisha Lawrence, bearing date 
 July 9, 1770." Now, although this description does not say in express 
 words that John Curtis had made a deed to Joseph Lawrence, still I 
 think it says so in substance and effect. What it says in plain words 
 is that Joseph Lawrence had bought the land of John Curtis, and as 
 this was said by Joseph Lawrence in the instrument which he used to 
 transfer the title to the land from himself to another, — in which in- 
 strument it will be observed that he describes another transfer of title 
 by almost precisely similar words, namely, " which he bought of Elisha 
 Lawrence, deed bearing date," etc., — there would seem to be no reason 
 to doubt that what Joseph Lawrence meant by the phrase, " which I 
 bought of John Curtis," and what his grantee understood he meant, 
 was that the title he was conveying was the same title that had been 
 made to him by John Curtis by deed. The phrase " under considera- 
 tion " amounted, unquestionably, to a direct and positive assertion of 
 title by Joseph Lawrence, and that he had acquired his title from John 
 Curtis. This is suflScient, in my judgment, especially when considered 
 in connection with the proof inherent in the paper itself, to justify the 
 presumption that the deed on trial was in existence on the 16th day 
 of November, 1790, when Lawrence conveyed to Price. A recital in 
 an ancient deed or will of any antecedent deed or document, consistent 
 with its own provisions, will, after the lapse of a long period, be pre- 
 sumptive proof of the former existence of such deed or document, 
 especially in a case where nothing appears to rebut such presumption. 
 Fuller v. Saxton, 20 N. J. Law, 61, 65. James Price — Joseph Lawrence's 
 grantee — conveyed the land in question to James Price, Jr., by deed 
 
414 LEADING AND ILLUSTEATIVE CASES. 
 
 duly executed and recorded in December, 1813. No allusion, however, 
 was made in this deed to either of the two prior deeds. James Price, Jr., 
 together with his wife, conveyed, in 1836, by a deed executed in due 
 form of law, the land in controversy to James Johnson. A oertiiied 
 copy of this latter deed was put in evidence without objection. It 
 refers, in express terms, to the deed executed November 16, 1790, by 
 Joseph Lawrence to James Price. This reference establishes the an- 
 tiquity of that deed. It shows that it was in existence more than fifty 
 years ago. In my judgment the antiquity of both deeds is fully estab- 
 lished. 
 
 But the mere fact that a deed is ancient will not of itself warrant 
 the presumption that it is genuine and entitled to be admitted in evi- 
 dence. Even according to the English rule, which seems to be some- 
 what more indulgent than that prevailing in this country, it is required 
 that, in addition to proof of antiquity, there shall be evidence that the 
 deed comes from the proper custody or depository to justify its admis- 
 sion in evidence. Lord Ellenborough, in Roe v. Rawlins, 7 East, 279, 
 291, said: "Ancient deeds, proved to have been found among deeds and 
 evidences of land, may be given in evidence, although the execution of 
 them cannot be proved; and the reason given is that it is hard to prove 
 ancient things, and the finding them in such a place is a presumption 
 they were fairly and honestly obtained, and reserved for use, and are 
 free from suspicion and dishonesty." Stated in substance, the rule 
 given by Phillips is this: If an instrument is thirty years old, and is 
 proved to have come from a proper place of custody, it may be admit- 
 ted in evidence without any proof of its execution. Such an instru- 
 ment is said to prove itself. 2 Phil. Ex. 475. There is proof in this 
 case that the deeds under consideration came from the proper custody. 
 A sou of James Johnson, to whom the land in controversy was con- 
 veyed in 1836, and who retained the title until 1880, swears that he 
 saw the deeds in his father's possession as far back as he can remem- 
 ber.. He was thirty-eight years old at the time he testified. He also said 
 that he had seen the deeds frequently during his father's life, and looked 
 them over, but would not say that he had ever read them entirely 
 through. He was sure, however, that they were the same two deeds 
 which he had seen in his father's possession, because of certain distin- 
 guishing marks, which he mentioned, and also because he found them 
 among his father's papers after his father's death. He also testified 
 that he delivered the deeds to the persons who afterwards passed them 
 to the defendant. The foregoing summary shows, I think, that three 
 facts tending to demonstrate the authenticity of the deed may be con- 
 sidered proved: First. That the deed has been in existence for nearly 
 one hundred years. Second. The possession of the deed by James John- 
 son, to whom the land was conveyed in 1836, warrants the belief that, 
 whenever the title to the land changed, the deed was delivered to the 
 
LEADING A^T> ILLUSTEATIVE QASES. 415 
 
 j)erson taking title as a muniment of his title. And, third, there have 
 been three different assertions of title to the land under the deed, — the 
 first in 1790, when Lawrence conveyed to Price; the second in 1813, 
 when Price conveyed to Price; and the third in 1836, when Price con- 
 veyed to Johnson. The first of these, — that which was made in 1790, — 
 it will be observed, was made so near the time when the deed on trial 
 was executed that it is highly probable John Curtis heard of it. It 
 is scarcely possible to believe that he did not. He was then living 
 in the neighborhood where the transaction occurred. He did not 
 ■die until 1813 or 1813. The deed of 1790 was executed in the pres- 
 ence of three witnesses. This fact shows that no effort was made 
 to conceal its execution, but the effort was rather in the opposite direc- 
 tion — to give publicity to it. Such transactions, even at this day, in 
 sparsely-populated neighborhoods, attract public attention, and form 
 the subject of conversation wherever men meet. This was undoubt- 
 edly the case in 1790, when such transactions were much less frequent 
 than they are now, and when they doubtless excited much greater 
 general interest than they do now. It thus appears, as I think, that 
 when we come to take an account of the probabilities of the case, the 
 mind is naturally led to believe, from the facts in evidence, that John 
 •Curtis must have heard of the conveyance of 1790, and that he did not 
 attempt to defeat it, because he knew that Joseph Lawrence, in con- 
 veying the land, had simply done what he had a lawful right to do. 
 
 The rule as to what evidence, in addition to proof of antiquity and 
 that the deed comes from a proper source, is required to justify the 
 •admission of an ancient deed in evidence, without proof of execution, 
 is not entirely settled in this country. The cases are entirely harmo- 
 nious to this extent: that where possession of the land has accompa- 
 nied the deed, that fact furnishes sufficient evidence of its authenticity 
 to justify its admission, but, where possession has not accompanied the 
 deed, the cases are not entirely agreed as to what proof, other than 
 proof of possession, will be sufficient to justify its admission. Professor 
 Greenleaf says that where possession has not accompanied the deed, to 
 justify its admission there must be other equivalent or explanatory 
 proof. 1 Greenl. Ev., § 144. The rule as thus stated seems to have met 
 the approval of Chief Justice Green; for, in Osborne v. Tunis, 25 N. J. 
 Law, 633, 663, he, in effect, said: The presumption that an ancient deed 
 is genuine only arises in case the deed comes from the proper depos- 
 itory and is accompanied and followed by possession, or in case there 
 is other collateral proof to warrant the belief that the deed is genuine. 
 Chief Justice Bronson, in Wilson v. Betts, 4 Denio, 301, 213, 215, said 
 that other facts besides possession might be sufficient to raise the pre- 
 sumption'that an ancient deed was genume, bvit he thought that noth- 
 ing would justify such presumption but acts done under the deed or 
 the recognition of its validity by those having an interest in the other 
 
416 LEADING AND ILLCSTEATIVE CASKS. 
 
 direction. What is called "explanatory" or "collateral proof" in some- 
 of the cases was defined in Jackson v. Larroway, 3 Johns. Cas. 283, 285. 
 as follows: Such account must be given of the deed as may reasonably 
 be expected under all the circumstances of the case, and as will afford 
 a presumption that it is genuine. This definition has been approved 
 in several cases. 3 Phil. Ev. (4th Am. ed.) 475, note 430, by Cowan & 
 Hill. The supreme court of the United States, speaking by Judge 
 Story, held, in Barr v. Gratz, 4 "Wheat. 213, 221, that where a deed is 
 more than thirty years old, and is proved to have been in the possession 
 of the lessors of the plaintiff in ejectment, and actually asserted by 
 them as the ground of their title in a chancery suit, it is, in the language 
 of the books, sufficiently accounted for, and it is admissible in evidence 
 without regular proof of its execution. The rule, as thus stated, was- 
 reiterated by the same court in Coulson v. Walton, 9 Pet. 70, 72. The 
 proof in support of the authenticity of the deed on trial comes up, in 
 my judgment, to the required standard. Such an account has been 
 given of it as was reasonably to be expected under the circumstances 
 of the case, and as leads naturally to the presumption that it is genuine. 
 Neither party has shown possession; on the contrary, both admit that 
 the land has been vacant for a century, so that possession speaks neither 
 for nor against the deed. But the proofs show that just such use has 
 been made of it, and that just such claims have been made under it, aa 
 would, in the usual and ordinary course of such transactions among 
 men at a very early day, have been made, had the persons dealing with 
 it known it to be an honest paper. It has been dealt with, treated and 
 preserved as an honest and valid paper. In addition to this, as I thiuk,^ 
 the paper bears on its face strong evidence of its integrity. In my 
 judgment, it should be admitted in evidence and full effect given to it> 
 There is an interlineation apparent on the face of the deed. This, it is 
 said, so greatly discredits it that no effect should be given to it. As 
 originally drawn, the deed described the land conveyed as that undi- 
 vided half of the one-seventh of Sqan beach which David Curtis left to 
 his son John, without saying whether the half which it conveyed was 
 the half of that seventh which Elisha Lawrence had conveyed to the 
 testator, or the half of the seventh conveyed to the testator by Ben- 
 jamin Lawrence. The half of the seventh conveyed to the testator bj- 
 Benjamin Lawrence, it will be remembered, was devised to John abso- 
 lutely, with an immediate right to possession, while the whole of the 
 one-seventh conveyed to the testator by Elisha Lawrence was devised, 
 in the first instance, to Elisha Curtis, and the heirs of his body lawfully 
 begotten, with a limitation over to John of the one-half of that seventh, 
 in case Elisha Curtis did not have an heir of his body. As originallj' 
 drawn, the deed described the land which it conveyed as that half o£ 
 an undivided seventh of Sqan beach which David Curtis left to his son 
 John. With this description unchanged, there can be no doubt, I think,. 
 
LEADING AND ILLUSTEATIVE CASES. 417 
 
 that the deed would have passed that half of the one-seventh in which 
 John had a present absolute estate, and not the half of the other seventh 
 in which his estate was liable to be defeated by the birth of issue to 
 his brother Elisha. The interlineation changed this description, and 
 made the deed say that the land which it passed was the half of that 
 seventh part of Sqan beach which David Curtis bought of Elisha Law- 
 rence by deed bearing date July 9, 1779. The effect of the interlineation 
 was to change entirely the land upon which the deed was to operate, and 
 to pass the grantee an estate, which, though vested, was nevertheless sub- 
 ject to a life estate, and liable, in addition, to be completely destroyed 
 by the birth of a child, instead of a present absolute estate which no 
 future eve>.„ could defeat. This fact would seem to make it as certain 
 as anything can be, in the absence of convincing proof to the contrary, 
 that neither the grantee nor any one claiming under him inserted the 
 interlineation after the delivery of the deed. As to the land in dis- 
 pute, the complainant's bill must be dismissed. 
 
 CHAPTER XXII. 
 
 CONVEYANCES INTER VIVOS. 
 Jackson ex dem. Gouch v. Wood- 
 Decision by Supreme Court of Judicature of New York, January Term, 
 1815. Opinion by Piatt, J. 
 {Reported in 12 Johns. 73.) 
 The single question in this case is, whether an estate in fee can be 
 conveyed otherwise than by deed; that is to say, whether a seal is es- 
 sential to such conveyance. 
 
 The earliest mode of transferring a freehold estate, known in the 
 English common law, was by livery of seisin only. Co. Litt. 48&, 49b. 
 But when the art of writing became common among our rude ances- 
 tors, the deed of feoffment was introduced, in order to ascertain with 
 more precision the nature and extent of the estate granted, with the 
 various conditions and limitations. This deed, however, was of no va- 
 lidity, unless accompanied by the old ceremony of livery and seisin. 
 3 Bl. Comm. 318. 
 
 The statute of uses (27 Hen. VIII.) gave rise to the deed of bargain 
 and sale; and, soon afterwards, the conveyance by lease and release 
 was introduced, in order to avoid the necessity of enrolment, required 
 by the statute of 37 Hen. VIII. 3 BI. Comm. 343. By virtue of the 
 statute of uses, which we have adopted (without the proviso in the 
 English statute requiring the enrolment o,f deeds), the deed of bargain 
 27 
 
418 LEADING AND ILLUSTEATIVE CASES. 
 
 and sale, now in use here, is equivalent to the deed of feoffment with 
 livery of seisin (8 Bl. Comm. 339, 343), and has, in practice, superseded 
 the lease and release. 
 
 By the common law, estates less than a freehold might be created or 
 assigned, either by deed, by writing without seal, or by parol merely. 
 
 By 29 Car. II., c. 3 (9th and 10th sections of our " act for the prevention 
 of frauds "), (a) it was enacted, " that all leases, estates, interest of 
 freehold, or terms of years, or any uncertain interests in lands, etc., 
 made or executed by livery and seisin only, or by parol, and not in 
 writing, and signed by the parties so making and creating the same, 
 shall have the force and effect of leases or estates at will only; except 
 in leases for three years and less," etc. ; and, "that no leases, estates, 
 or interests, either of freehold, or terms of years," etc., "in any lands," 
 etc., "shall, at any time hereafter, be assigned, granted, or surrendered, 
 unless it be by deed or note in writing signed by the party so assign- 
 ing, granting or surrendering the same," etc. 
 
 Now, it is contended on the part of defendant that the common-law 
 mode of conveyancing has been so modified by this statute as to de- 
 stroy the distinction between an estate of freehold and an estate less 
 than a freehold, as it regards the mode of alienation; and that either 
 may now be conveyed by " note in writing " without seal, as well as 
 by deed. 
 
 No direct decision appears to have been made on this point; but in 
 the case of Fry v. Pliillips, 5 Burrows, 2837, and in the case of HoUiday 
 V. Marshall, 7 Jolins. 211, it was decided that a written assignment of a 
 lease for ninety-nine years was valid, though not sealed; upon the ex- 
 press ground that it was tlie sale of a chattel-real, for which the statute 
 of frauds requires only a "note in writing," plainly recognizing the dis- 
 tinction between a term for years and a freehold estate, as to the mode 
 of conveyance. 
 
 According to Sir William Biackstone (2 Bl. Comm. 309), etc., sealing 
 was not in general use among our Saxon ancestors. Their custom was, 
 for such as could write, to sign their names and to afBx the sign of the 
 cross; and those who could not write made their mark in sign of the 
 cross, as is still continued to this day. The Normans used the practice 
 of sealing only, without writing their names, and, at the Conquest, they 
 introduced into England waxen seals, instead of the former English 
 mode of writing their names and aflSxing the sign of the cross, it being 
 then usual for every fi'eemaM to have his distinct and particular seal. 
 The neglect of signing, and resting upon the authenticity of seals alone, 
 continued for several ages, during which time it was held, by all the Eng. 
 lish courts, that sealing alone was sufRcient. But in the pi'ocess of time 
 the practice of using particular and appropriate seals was, in a great 
 measure, disused ; and Sir William Biackstone (2 Bl. Comm. 310) seems 
 to consider the statute of 29 Car. II., c. 3 (of which the ninth and tenth 
 
LEADIITG AND ILLUSTEATIVE CASES. 419 
 
 sections of our statute of frauds are a copy), as reviving the ancient 
 SaxoD custom of signing, witiiout dispensing witli the seal, as then in 
 use, under the custom derived from the Normans. 
 
 We have the authority of that learned commentator, unequivocally 
 in favor of the opinion that a seal is indispensable in order to con- 
 vey an estate in fee simple, fee tail, or for life. 2 Bl. Comm. 297, 313. 
 
 Such seems to have been the practical construction ever since the 
 statute of Car. IL, in England, and under our statute of frauds in this 
 state; and to decide nov? that a seal is unnecessary to pass a fee would 
 be to Introduce a new rule of conveyancing, contrary to the received 
 opinion, and almost universal practice in our community, and danger- 
 ous in its retrospective operation. Construing this statute with refer- 
 ence to the pre-existing common law and the particular evil intended 
 to be remedied, I think the legislature did not intend to dispense with 
 a seal where it was before required, as in a conveyance of a freehold 
 estate; but the object waste require such deeds to be signed also, which 
 the courts had decided to be unnecessary. 
 
 I construe this statute as though the form of expression had been 
 thus : " No estate of freehold shall be granted unless it be by deed signed 
 by the party granting; and no estate less than a freehold (excepting 
 leases for three years, etc.) shall be granted or surrendered unless by 
 deed, or note in writing signed by the grantor." 
 
 This venerable custom of sealing is a relic of ancient wisdom and is 
 not without its real use at this day. There is yet some degree of solem- 
 nity in this form of conveyance. A seal attracts attention, and excites 
 caution in illiterate persons, and thereby operates as a security against 
 fraud. 
 
 If a man's freehold might be conveyed by a mere note in writing, he 
 might more easily be imposed on, by procuring his signature to such a 
 conveyance, when he really supposed he was signing a receipt, a prom- 
 issory note, or a mere letter. 
 
 The plaintiff is entitled to judgment. Judgment for the plaintiff. 
 
 Leonard v. White. 
 
 Decision by Supreme Judicial Court of Massachusetts, September 
 Term, 1810. Opinion by Sedgwick, J. 
 
 (Reported in 7 Mass. 6.) 
 
 It is not contended in this case, on the part of the plaintiff, that the 
 conveyance mentioned in the report does not operate as the grant of 
 an easement for the accommodation of the mill, by means of the way 
 which has been mentioned; but it is contended that it cannot be con- 
 sidered as a grant of the soil over which the way passed; and, on the 
 
420 LEADING AND ILLUSTEATIVE CASES. 
 
 other side, it is insisted that the deed ought to be considered as a grant 
 of the land. 
 
 It is agreed that the locus in quo is not within the lines designating 
 the limits of the grant. And as the seisin of the defendant and his 
 wife in the land is put in issue, the question is whether the soil was 
 conveyed by the expression "with the appurtenances thereon." 
 
 An appendant or appurtenant is a thing used with, and related to, 
 or dependent upon another thing more worthy, and agreeing in its 
 nature and quality with the thing whereunto it is appendant or appur- 
 tenant. Co. Litt. 1216, 122a. The way, then, as an easement, might be 
 appendant or appurtenant to the mill; but the soil, over which the 
 way went, could not. 
 
 An appendant is that which, beyond memory, has belonged to an- 
 other thing more worthy, and which agrees with that to which it is 
 related, in its nature and quality; and an appurtenant is that the com- 
 mencement of which may be known. Co. Litt. 1216; Com. Dig., "Ap- 
 pendant and Appurtenant," A. Appendances and appurtenances will 
 pass by the words " with the appurtenances thereunto belonging," or 
 by other tantamount expressions. 
 
 By the grant of a messuage, cum pertinentiis, a shop, annexed to it 
 for thirty years, does not pass, unless it be found to be a parcel of the 
 messuage. Cro. Car. 17. By the grant of a house or land, cum perti- 
 nentiis, another house or land does not pass, unless it be found to be a 
 parcel. 1 Lev. 131. By the grant of a mill, cum pertinentiis, the close 
 where the mill is, or the kiln there, does not pass without some further 
 expression. 1 Sid. 211; 1 Lev. 131. Land cannot be appended to land. 
 1 RoUe, 230, 1. 50. Nor can it be appendant to a meadow or messuage. 
 Plowd. Comm. 1706. So a meadow cannot be appurtenant to a pasture, 
 nor a pasture to a wood. Plowd., ubi supra. 
 
 From these authorities it is evident that the deed in question did not 
 convey the soil, over which the way went, to the defendant and his 
 wife; and, therefore, will not support this issue on his part. 
 
 Nor can the defendant better avail himself of the deed of the devisees 
 of Asaph Leonard to him, inasmuch as it is a conveyance to himself 
 alone, whereas his plea sets up a joint seisin in himself and his wife; 
 and. further, this last deed is subject to the same objections as that 
 which has been alreadj' considered; there being no pretense that the 
 soil in the locus in quo was conveyed by this latter deed, except as ap- 
 purtenant to the subject of the grant. 
 
 We are, for the reasons which have been given, all of opinion that 
 the direction, and the finding of the jury, upon this issue were right 
 
 Judgment on the verdict. 
 
LEADING AND ILLTISTKATIVE OASES. 421 
 
 CHAPTER XXIII. 
 
 COMPONENT PARTS OF DEEDS. 
 
 Gould V. Howe. 
 
 Decision by Supreme Court of Illinois, January 21, 1890. Opinion by 
 
 Scholfield, J. 
 
 (Reported in ISl III. 490.) 
 
 Two questions only are presented for our decision by the arguments 
 made upon this record: (1) Does the plat of the Illinois Centr'al Railroad 
 Company vest the fee of the streets and alleys marked thereon in the 
 corporation of Wenona ? (2) Do the words " reserving streets and alleys 
 according to the recorded plat of the town of Wenona," in the deed of 
 the Illinois Central Railroad Company to Hill, prevent the transfer of 
 the,fee in such streets and alleys, subject to the easement of the public 
 therein, by that deed? 
 
 1. Bearing in mind that acknowledgments of instruments affecting 
 title to, or interests in, realty were unknown to the conimon law, and 
 are purely of statutory origin, it will be obvious that whether, in a 
 given case, an acknowledgment is defective depends entirely upon 
 whether it is taken and certified in the manner and by the person 
 within the contemplation of the statute. The statute in force when 
 this plat was made was the Revision of 1845. By that revision one 
 mode is provided for taking acknowledgments of town plats, and an- 
 other and different mode is provided for taking acknowledgments of 
 deeds and other instruments for the conveyance of real estate. The 
 former are to be acknowledged before "a justice of the supreme court, 
 justice of a circuit court or a justice of the peace," while the latter are 
 to be acknowledged before "any judge, justice or clerk of any court of 
 record in this state having a seal, anj- mayor of a city, notary public 
 or commissioner authorized to take the acknowledgment of deeds, hav- 
 ing a seal, or a justice of the peace." See sec. 16, ch. 24, and sec. 20, 
 ch. 25, R. S. 1845; 1 Purple, St. 1856, pp. 156,176; Gross, St. 1868, pp. 103, 
 118, g§ 16, 20. It may be that there is nothing in the character of the 
 instruments which would preclude a uniform system of acknowledg- 
 ment for all; and we may concede that it would therefore have been 
 competent for the general assembly to have so provided, either by as- 
 signing that duty to courts, to persons exercising gMasi-judicial powers 
 or to persons arbitrarily selected and named for that purpose without 
 leference to any ofiScial position; but it would have been equally com- 
 petent to have dispensed with acknowledgments altogether, and, in the 
 matter of town plats, to have provided that the simple causing of the 
 
422 LEADING AND ILL0STEATIVE CASES. 
 
 plat to be made and recorded should ipso facto vest the fee of the streets 
 and alleys in the municipality, without reference to any acknowledg- 
 ment whatever. But these are all legislative questions, with .which we 
 have nothing to do; it being our province solely to inquire, What has 
 the general assembly enacted in this respect ? not. Why has it enacted 
 it? In the enactments referred to supra, the general assembly did not 
 assume to vest the power to take acknowledgments in persons exercis- 
 ing the same classes or grades of powers ; for there is no more dissimilar- 
 itj' between the powers exercised by any ofificers under our government 
 than between those exercised by the judges, mayors, notaries, clerks, 
 commissioners and others who are empowered to take acknowledgments 
 of deeds. The enumerated officers are empowered to take acknowledg- 
 ments of deeds, not because the act of taking acknowledgments is 
 germane to any particular power inhering in the offices they hold, but 
 simply and only because the general assembly has, in the exercise of 
 plenary legislative authority in that respect, arbitrarily designated 
 them for that purpose, just as it has since designated masters in chan- 
 cery, and might have designated aldermen and constables. The lan- 
 guage of the statute in relation to the acknowledgment of plats, to 
 which we have referred, is first found in an act approved January 4, 
 1825 (Compilation 1830, p. 184), and it remained unchanged until the 
 revision of 1874. The language of the statute in relation to the ac- 
 knowledgment of deeds and other conveyances of real estate has, how- 
 ever, often been changed so that different acknowledgments may have 
 been properly taken from time to time, before persons who had no au- 
 thority to take acknowledgments at prior times. Thus, by the act in 
 relation to conveyances, approved January 31, 1837 (Rev. Laws 1827, 
 p. 98, § 9), deeds and other conveyances of real estate were required to 
 be acknowledged before "one of the judges of the supreme or circuit 
 court of this state, or before one of the clerks of the circuit court, 
 . . . or before one of the justices of the peace of the county; " and 
 it was not until two years after that statute was in force that the legis- 
 lature enacted, by an amendment approved January 23, 1839 (Laws 
 1829, p. 24, § 1), that notaries public, mayors and certain other desig- 
 nated ofiElcers should, in addition to those enumerated therein, be em- 
 powered to take acknowledgments. No one will pretend that the 
 acknowledgment of a deed before a notary public or a mayor, taken 
 before the 22d of January, 1839, could have had any validity ; and this, 
 for the plainly obvious reason that no power to take acknowledgments 
 was conferred upon a class of officers to which they belonged, nor upon 
 them by specific designation; and precisely the same is to be said of 
 the acknowledgment of this plat before a notary public. The power 
 confessed by the statute in relation to conveyances does not extend 
 beyond the class of instruments which are the subject of that statute; 
 and the statute in relation to town plats neither expressly nor by neces- 
 sary implication includes notaries public. By the revision of 1874, the 
 
LEADING AND ILLUSTRATIVE CASES. 423 
 
 general assembly has provided that town plats are to be "acknowledged 
 in the same manner that deeds of land are required to be acknowl- 
 edged;" but this is palpably a radical amendment and change of the 
 prior law, and it has no retroactive effect. It necessarily follows that, 
 in our opinion, the acknowledgment of the plat before the notary was 
 a nullity, and the plat, therefore, did not operate to vest the fee of the 
 streets and alleys in the municipality. See also Gosselin v. Chicago, 103 
 111. 623; Thomas v. Eckard, 88 111. 593. 
 
 3. While the plat was not a conveyance of the fee, it was evidence 
 tending to prove a common-law dedication, which we have held vests 
 an easement in the streets and alleys in the municipality. Railroad Co. 
 V. Hartley, 67 111. 439; Maywood Co. v. Village of Maywood, 118 111. 61, 
 6 N. E. R. 866. It is often difBcult to distinguish between an exception 
 and a reservation in a deed, and the words "reserving" or "excepting" 
 are not conclusive in determining which is intended. The character 
 and effect of the provision itself, in which such words occur, must de- 
 termine what is intended. It is sufficient, for the present, to say that 
 an exception in a deed withholds from its oi)eration some part or parcel 
 of the thing which, but for the exception, would pass, by the general 
 description, to the grantee. A reservation in a deed, on the other hand, 
 is the creation of some new right issuing out of the thing granted, and 
 which did not exist before as an independent right in behalf of the 
 grantor, and not of a stranger. Co. Litt. 47a; 1 Shep. Touch. 77, 80; 
 3 Washb. Real Prop. (3d ed.), pp. 646, 693, § 67; Tied. Real Prop., § 843. 
 If here there had been no public easement in the streets and alleys, and 
 the company had desired to retain for its servants and employees a pri- 
 vate way across the land conveyed, it would have been a reservation ; 
 it would have been the creation of a new right, issuing out of the thing 
 granted, in behalf of the grantor. But the streets and alleys were al- 
 ready in existence. The municipality had an easement in them for the 
 public. The land occupied by them was included by the terms of the 
 deed in the general description of the property conveyed, and hence, 
 but for the provision withholding them from its operation, they would 
 have been included in the grant. Beach v. Miller, 51 111. 207. The lan- 
 guage of the deed could only be held to withhold the fee of the streets 
 and alleys from its operation upon the hypothesis that, "according to 
 recorded plat of town of Wenona," the fee of the streets and allej's is 
 vested in the municipality, for that is the measure of what is withheld 
 from the operation of the deed; and therefore, since "according to re- 
 corded plat of town of Wenona " an easement only in the soil of the 
 streets and alleys is vested in the municipality for the use of the pub- 
 lic, that only is withheld from the operation of the deed. Nothing, 
 therefore, was retained in the railroad company which could subse- 
 quently pass by its quitclaim; and when the alley was vacated the 
 easement was terminated, and there was nothing to revert to the rail- 
 road company. The judgment is affirmed. 
 
424: LEADING AND ILLUSTEATIVE CASES. 
 
 Cole et ux. v. Kimball. 
 
 Decision by Supreme Court of Vermont, March Term, 1880. Opinion 
 
 by Royce, J. 
 
 {Reported in S3 Vt. 639.) 
 
 Statement op Facts. — Covenant. The declaration counted on a 
 covenant against incumbrances in a deed from the defendant to the 
 plaintiff Florette. The case was referred, and the referee reported in 
 substance as follows: On August 26, 1871, the defendant by vparranty 
 deed containing the usual covenants, including a covenant against in- 
 cumbrances, conveyed to the plaintiff Florette certain premises in Brain- 
 tree that had been conveyed to him by Mansel Heselton and vfife; and 
 said Florette, in payment therefor, conveyed to the defendant a farm 
 vphich had before been conveyed to her by her father, Leonard Fish, 
 and vpith her husband executed to him a promissory note for §463, 
 which said Leonard afterwards paid. On June 11, 1872, the plaintiffs 
 by like deed conveyed the premises to Lucia M. Fish, the mother of said 
 Florette, and wife of said Leonard. The premises, when conveyed by 
 the defendant as aforesaid, were subject to a mortgage executed by Hes- 
 elton and wife to Elihu Hyde in 1869, conditioned for the payment of 
 two promissory notes for §2.50 each, payable in one and two years re- 
 spectively, with interest, one of which only had been paid. In Decem- 
 ber, 1875, Hyde brought a petition for foreclosure against the Fishes 
 and others, but not against the Heseltons nor the Coles, and in the fol- 
 lowing January obtained a decree for §313.29, the sum due in equity, 
 and §28.55 costs, to be paid before January 1, 1877, with interest. On 
 November 1, 1876, Hyde sold and assigned that decree to Ephraim 
 Thayer for $850, Thayer acting therein for said Leonard and at his re- 
 quest; and afterwards, and before this action was brought, said Leon- 
 ard, acting therein for his wife, paid Thayer the amount of the decree 
 in full, with interest. The conveyance from said Leonard to said Flo- 
 rette, and from her to said Lucia, were without consideration, and they 
 and the holding of title by said Florette were for the convenience and 
 at the request of the Fishes, said Leonard doing all the business in con- 
 nection therewith, and the plaintiffs having nothing to do with it, ex- 
 cept to execute (deeds, etc., as desired. This action was brought and 
 prosecuted by said Lucia, in her own behalf and for her own benefit, 
 and with the privity and consent of said Leonard. The? referee found 
 that if the plaintiffs were entitled to recover, they should recover §341.84, 
 with interest from January 1, 1876. While the action was pending the 
 Fishes, in consideration that final judgment should ultimately be ren- 
 dered therein for the plaintiffs for the full amount of damages found 
 by the referee, filed in court a release of the defendant from all causes 
 of action that they or either of them had, or could have, in their own 
 
LEADING AND ILLUSTRATIVE OASES. 425 
 
 names to recover damages consequent on a breach of any of the cove- 
 nants in his deed to said Florette. The court at the December term, 
 1879, Povrers, J., presiding, rendered judgment on the report for the 
 plaintiffs for nominal damages and costs; to which the plaintiffs ex- 
 cepted. 
 
 Opinion. — It is conceded that the plaintiffs are entitled to nominal 
 damages; and the only question made is whether, upon the facts found 
 by the referee, they are limited to the recovery of such damages, or 
 are entitled to recover the amount paid to redeem the premises from 
 the Hyde decree. This suit was brought and prosecuted by Lucia M. 
 Fish, for her benefit, with the privity and consent of, her husband, 
 Leonard Fish, who acted for her in paying the money to redeem the 
 premises from the Hyde decree. Florette D. Cole held the title to the 
 premises conveyed to her by the defendant as the trustee of Leonard and 
 Lucia M. Fish, and the covenants contained in the deed from the defend- 
 ant to Florette D. are in equity to be treated as covenants for the benefit 
 of the cestuis que trust. All the interest tliat Florette D. had in said cove- 
 nants passed to Lucia M. Fish by the deed from the plaintiffs to her. 
 The defendant is liable on the covenants in his deed to protect the title 
 against the incumbrances that were upon the premises described in 
 the deed at the time of its execution. The covenant against incum- 
 brances runs with the land, and can be enforced for the benefit of the 
 party holding the legal title. The payment of the amount due on the 
 Hyde decree was not a voluntary payment, but a compulsory one. 
 Fish was obliged to make it to save his title to the premises. The claim 
 to indemnity on account of the breach of the covenants of title and 
 against incumbrances was a chose in action, and was transferred to 
 Lucia M. Fish by the deed from the plaintiffs to her; and the assignee 
 of a chose in action has the right (subject to the right of the assignor 
 to require indemnity against costs) to sue in the name of the assignor. 
 It is a matter of indifference to the defendant to whom he pays, if he 
 is fully protected against any further liability. It is not claimed that 
 there is any other party but Leonard Fish and wife that could make 
 any claim against the defendant on account of his covenants; and the 
 discharge filed in the case is a full protection against any claim that 
 I hey might otherwise make. The rule of law that limits the recovery 
 ,in actions of covenant against incumbrances to the amount paid to re- 
 move the incumbrance was adopted for the protection of the cove- 
 nantor, for until full payment the liability of the covenantor would 
 continue. The cases relied upon by the defendant differ from this in 
 the important fact that in none of those cases did it appear that the 
 suit was being prosecuted for the benefit of an assignee who had been 
 compelled to make payment to save his estate, and full indemnity had 
 been tendered to the covenantor. The attempted defense is purely 
 
426 LEADING AND ILLUSTEATIVE CASES. 
 
 technical; and it does not appear that any defense which the defend- 
 ant might have made if the suit had been in the name of Leonard Fish 
 and wife was not equally available to him in the present suit. In 
 Smith V. Perry, Adm'r, 26 Vt. 879, the plaintiff had not paid the judg- 
 ment i-ecovered by his grantee on account of the breach of his cove- 
 nant of title, but the court allowed a full recovery to be had, protect- 
 ing the defendant's estate against further liability by the form of the- 
 judgment rendered. Here, as we have seen, the defendant is protected 
 by the discharge filed. 
 Judgment reversed, and judgment for the largest sura. 
 
INDEX. 
 
 Seferences are to sections. 
 ABANDONMENT— 
 title by, 492-494. 
 ABSOLUTE OWNERSHIP, 8. 
 ACCRETION, 496. 
 
 ACKNOWLEDGMENT — 
 
 of wills, 513. 
 
 of deeds, 573-575. 
 ACTIONS — 
 
 for breach of covenants, 604, 
 ACTS — 
 
 waste, 108. 
 
 abandonment, 494. 
 ADVERSE POSSESSION, 478, 485. 
 AFFINITY, 463. 
 AIR — 
 
 easement in, 486. 
 ALIENAGE, 466. 
 ALIENATION — 
 
 modes of, 38, 45, 57. 
 
 development, 46-51. 
 
 power of, 67, 114-119. 
 
 at early law, 883-285. 
 
 involuntary, 387, 467. 
 ALLODIAL TENURE, 11. 
 ALLUVION, 496. 
 
 ALTERATIONS IN DEEDS, 559, 560. 
 AMBIGUOUS TERMS — 
 
 use of, in wills, 527. 
 
 APPENDANT INCORPOREAL HEREDITAMENTS, 409. 
 APPORTIONMENT, 120. 
 ASSIGNMENT — 
 
 of a term of years, 190. 
 
 of mortgage, 384. 
 ATTESTATION — 
 
 of wills, 515. 
 
 of deeds, 572. 
 AVULSION, 497. 
 BANKRUPTCY, 897. 
 BAR — 
 
 with reference to dower, 165. 
 BARGAIN AND SALE — 
 
 deeds of, 547-559. 
 
428 INDEX. 
 
 References are to sections. 
 BASE FEE, 347. 
 
 BENEFICIARY — 
 under will, 521. 
 
 BETTERMENTS, 490. 
 BREACH OF COVENANTS, 195, 604 
 BOUNDARIES, 59a-594. 
 BUILDINGS, 31, 33. 
 CANCELLATION, 534, 563. 
 CHARITABLE USES, 315, 316. 
 CHARTER. See Franchise. 
 CHATTEL INTERESTS, 373. 
 CHATTELS, REAL, 174. 
 
 distinguished from franchise, 444. 
 
 CHILD, 139, 459. 
 CHURCH AND STATE, 315. 
 CODICIL, 534. 
 COMMON — 
 
 rights of, 413. 
 COMMON LAW — 
 
 distinguished from equity, 307, 311. 
 
 CONDITIONS — 
 
 precedent and subseqiient, 849. 
 
 in deed and at law, 351-353. 
 
 what may be made, 358-360. 
 
 estates iipon, 347. 
 
 in deeds, 596. 
 CONDITIONAL LIMITATION, 356. 
 CONFIRMATION — 
 
 deed of, 543. 
 CONSANGUINITY, 463. 
 CONSIDERATION — 
 
 in deeds, 568. 
 CONSTRUCTION — 
 
 in estates tail, 87, 88. 
 
 in conditional estates, 261. 
 
 of powers, 361. 
 
 of wills, 535-539. 
 
 of deeds, 553, 589-591. 
 
 CONTEXT — 
 
 effect of, in wills, 538. 
 in deeds, 530. 
 CONTINGENT ESTATES — 
 
 at law, 341. 
 
 in equity, 343. 
 CONTINGENT REMAINDERS, 391. 
 
 nature of contingency, 393-398. 
 
 defined, 294. 
 
 origin and incidents, 295. 
 
 must vest, when, 297. 
 
 how aliened, 301. 
 
 estate to trustees therein, 303. 
 
INDEX. 429 
 
 References are to sections. 
 
 CONVENTIONAL LIFE ESTATES, 103. 
 CONVEYANCES, 328. 
 
 of public lands, 502, 503. 
 
 at common law, 536. 
 
 operating through statute of uses, 545, 546. 
 COPARCENARY — 
 
 estates in, 340-342. 
 
 CORPORATIONS — 
 
 as owners of real property, 315-365. 
 CORPOREAL HEREDITAMENTS, 403. 
 
 CREDITORS — 
 
 rights of, in lands of debtors, 192, 388. 
 COVENANTS, 187. 
 
 in deeds — of seisin and right to convey, against incumbrances, for 
 quiet enjoyment, of warranty, of the breaches hereof, 597-604. 
 CURTESY — 
 
 estates by the, 132. 
 CUSTOM — 
 
 easements by, 418. 
 COVERTURE, 131-146. 
 DATE. See Deed. 
 DEATH — 
 
 effect of, on life estate, 128. 
 
 DE DONIS — 
 statute of, 76. 
 
 DEED — 
 
 component parts of, 583-584. 
 
 forms of, 381. 
 
 distinguished from will, 510. 
 
 mortgage deed, 373. 
 
 poll and indenture, 555. 
 
 construction, 553. 
 
 requisites of, 557. 
 DELIVERY — 
 
 effect of, 576-577. 
 
 in escrow, 578. 
 
 DESCENT — 
 
 title by, 457. 
 
 rules governing, 464-465. 
 DESCRIPTION — 
 
 in deeds, 587. 
 
 methods of, 592. 
 DESTRUCTION — 
 
 of leased premises, effect of, 193. 
 DEVISE — 
 
 title by, 531. 
 
 an executory, 349, 350. 
 
 DISABILITY — 
 
 of persons, 491. 
 DISAFFIRMANCE — 
 
 of deed. 563. 
 
430 INDEX. 
 
 References are to sections. 
 
 DISSEISOR — 
 estate of, 490. 
 
 DISTRESS — 
 
 for rent due, 806. 
 
 DIVORCE — 
 
 effect upon marital estates, 166. 
 
 DOMINANT ESTATE, 416. 
 
 DOWER, 146. 
 
 origin and history, 147. 
 
 classifications, 148-153. 
 
 in the modern law, 154. 
 
 by statute, 156-158. 
 
 attaches to what lands, 161. 
 
 in what estates, 161. 
 
 how barred, 165. 
 DURESS. See Disability. 
 
 EASEMENTS, 415. 
 
 how created and conveyed, 417. 
 
 by prescription, 418. 
 
 by separate deed, 419. 
 
 by implication, 420. 
 
 classification, 431. 
 
 equitable doctrines in reference thereto, 42^ 
 
 distinguished from conditional estates, 433. 
 
 how extinguished, 433. 
 
 ELEGIT — 
 
 writ of, 389, 390. 
 EMBLEMENTS — 
 
 right of life tenant thereto, 113, 316. 
 
 EMINENT DOMAIN, 398, 399. 
 ENDOWED, 155. 
 ENGLISH LAW, 8. 
 ENJOYMENT — 
 
 in certain estates, 69, 186. 
 ENROLLMENT — 
 
 statutes of, 548. 
 ENTRY — 
 
 under agreement for lease, 318. 
 
 EQUITABLE DOCTRINES — 
 effect of, on mortgages, 365. 
 
 EQUITY — 
 
 distinguished from common law, 307. 
 its importance, 308. 
 origin and development, 310-313. 
 application in real property law, 818. 
 future estates and interests in equity, 340. 
 
 EQUITY OF REDEMPTION, 370. 
 ESCHEAT, 400. 
 ESCROW. See Delivery. 
 
 ESTATES — 
 
 how acquired, 43. 
 as to quantity, 58. 
 
INDEX. 431 
 
 References are to sectloiUL 
 
 ESTATES (continued) — 
 as to quality, 58. 
 in fee simple, 61. 
 how distinguished, 64. 
 how acquired and aliened, 64, Q8. 
 in fee tail, 71-79. 
 for life, 99-101. 
 upon condition, 247, 248. 
 less than freehold, 171, 172. 
 
 ESTOPPEL — 
 
 defined, 471. 
 
 bv deed, in law, in pais, 472-474, 
 
 effect on titles, 476. 
 
 upon whom binding, 477. 
 ESTOVERS — 
 
 right of tenant for life thereto, 113. 
 EVICTION — 
 
 what is an, 189. 
 EVIDENCE — 
 
 as to quantity of land granted, 594 
 EXECUTION — 
 
 of wills, 513. 
 
 of deeds, 570. 
 EXECUTION, WRIT OF, 391. 
 
 EXECUTORY DEVISE, 349, 350. 
 origin, 351. 
 in practice, 358. 
 
 may be effective without uses, 354. 
 alienation of, 355. 
 
 EXECUTORY INTERESTS — 
 how created, 348. 
 defined, 348. 
 
 EXECUTORY USES, 344. 
 EXEMPTIONS, 396. 
 
 EXPECTANCY. See Future Estates. 
 FAMILY SETTLEMENTS, 96. 
 FEE-FARM RENTS, 438-441. 
 FEOFFMENT, 537. 
 FEUDAL SYSTEM, 4. 
 
 origin and principles, 31, 83. 
 FINE AND RECOVERY, 91-93. 
 FIXTURES, 33, 34. 
 FORFEITURE, 194-196. 
 FOUNDATIONS OF OUR LAW, 2. 
 FRANCHISE, 442. 
 FRAUD — 
 
 effect of, etc., 184. 
 
 in estoppel, 475. 
 
 FREE ENJOYMENT, 66. 
 FREEHOLD ESTATES, 40. 
 
432 INDEX. 
 
 References are to sections. 
 
 FREE TENURES, 35-38. 
 lay, 36. 
 socage, 37. 
 military, 39. 
 
 FUTURE ESTATES AND INTERESTS, 363, 264. 
 
 in equity, 340. 
 GIFT — 
 
 by will, 507, 508. 
 GRANT — 
 
 title by, 499-539. 
 
 public and private, 500. 
 
 title of government, 501. 
 GRANTEE — 
 
 in a deed, 565. 
 GROWING CROPS. See Emblements. 
 HABENDUM CLAUSE — 
 
 in deeds, 595. 
 HEIRS, 63. 
 
 effect of failure of, 89. 
 
 who may be, 459. 
 
 rights of, 459. 
 
 must be relatives, 462. 
 HEIRSHIP — 
 
 how determined, 461. 
 
 by what laws, 460. 
 HEREDITAMENTS, 36-29. 
 HOLDING OVER — 
 
 by tenant for years, 290. 
 HOMESTEAD ESTATES, 169, 170. 
 HUSBAND AND WIFE. See Marital Estates. 
 IMPEACHMENT FOR WASTE. See Waste. 
 IMPLIED TRUSTS, 338. 
 INCHOATE RIGHTS — 
 
 of husband, 140. 
 
 of wife, 164. 
 
 INCIDENTS OF ESTATES, 133. 
 INCORPOREAL HEREDITAMENTS, 403. 
 
 divisions of, 406. 
 
 creation and transfer, 405. 
 
 in gross, 408. 
 
 appendant, 409, 410. 
 INCUMBRANCES — 
 
 covenants against, 600, 601. 
 INDENTURE, 556. See Deeds. 
 INFANT. See Disability. 
 INHERITANCE, 27. 
 
 what included in, 458. 
 INITIATE — 
 
 tenancy of husband in curtesy, 144. 
 INSANE PERSON. See Disability. 
 
INDEX. 433 
 
 Eeferences are to sections. 
 
 INSURANCE — 
 
 rights of life tenant in regard to, 124. 
 INTENT— 
 
 in conditional estates, 255. 
 INTENTION OF PARTIES — 
 
 effect of, 215. 
 INTERESSE TERMINI. See Estates fob Years. 
 INTEREST — 
 
 duty of life tenant to pay, when, etc., 135, 
 ISLANDS. See Navigable Streams. 
 ISSUE — 
 
 failure of, 83. 
 
 necessity of, etc., 138, 139, 163. 
 JOINT ESTATES— 
 
 nature of, etc., 232. 
 JOINT TENANCIES, 233-338. 
 JOINTURE, 168. 
 
 JUDGMENT LIEN. See Alienation; Creditors' Rights. 
 LAND, 21, 22, 29. 
 
 LANDLORD AND TENANT, 176. 
 LATERAL SUPPORT — 
 
 right to, 430. 
 LEASE, 540. 
 
 LEASE AND RELEASE, 549, 550. 
 LEGAL LIFE ESTATES, 103-130. 
 LESSOR AND LESSEE, 183. 
 LICENSES, 445. 
 
 distinguished from easements, 446. 
 
 how to be exercised, 447. 
 
 revocation, etc., 444 
 
 how granted, 449. 
 
 LIENS — 
 
 mechanic's, vendor's, etc., 380. 
 
 LIGHT AND AIR — 
 
 easements in, 426. 
 LIMITATIONS — 
 
 in conditional estates, 257. 
 
 in regard to title, 484-491. 
 
 LIMITATION, STATUTES OF, 394. 
 LIVERY OF SEISIN. See Feoffment. 
 LUNATIC. See Disability. 
 MARITAL ESTATES, 131. 
 MARRIAGE SETTLEMENTS, 168. 
 
 MARRIED WOMEN— 
 
 rights of, as afEected by legislation, 136, 
 
 as parties to deeds, 564. 
 MERGER OF ESTATES, 127-204, 803. 
 MINES. See Lands. 
 
 MODERN LEASE. See Estates foe Years. 
 28 
 
434 
 
 INDEX. 
 
 References are to sections. 
 MODERN STATUTORY CONVEYANCES, 551. 
 MONUMENTS, 593. 
 MORTGAGES — 
 
 defined and exj)lained, 363, 361 
 
 equitable doctrines, 865. 
 
 at common law, b67, 368. 
 
 forms of, 379. 
 
 in what estates, 382. 
 
 sale of, 384 
 
 rights and remedies, 376-878, 883. 
 
 release of, 385. 
 
 MORTMAIN, STATUTES OF, 316. 
 NAMES OF PARTIES IN DEEDS, 566. 
 NAVIGABLE WATERS, 428. 
 NECESSITY, WAY BY. See Easements. 
 NON-USER. See Easements. 
 NOTICE — 
 
 as applied to title, 581, 582. 
 NOTICE TO QUIT, 217. 
 
 OCCUPANCY — 
 
 title by, 468, 469. 
 ORIGIN AND SOURCES OF THE LAW OF REAL PROPERTY, 2. 
 ORIGIN OF DISTINCTION BETWEEN REAL AND PERSONAL 
 
 PROPERTY, 16-19. 
 OUSTER, 229. 
 OWNERSHIP — 
 
 genei-al principles, 5. 
 
 nature of, 7. 
 
 PARTIES TO DEEDS, 561. 
 
 PARTITION, 541. 
 
 PARTY- WALLS, 431. 
 
 PER CAPITA AND PER STIRPES — 
 taking by, 465. 
 
 PERCOLATIONS, 429. 
 
 PERMISSIVE WASTE, 107. 
 
 PERPETUITIES — 
 
 rule against, 272-275. 
 POSSESSION, 105. 
 
 of life tenant, 121. 
 
 effect of, on title, 538. 
 
 of wife, 137. 
 
 as element of ownership, 404. 
 
 exclusive, 488. 
 
 hostile, 489. 
 POWERS — 
 
 generally, 356. 
 
 defined and explained, 857. 
 
 of appointment, 359. 
 
 extent and effect, 380. 
 
 requisites, 363. 
 
 to underlease, 189. 
 
INDEX. 435 
 
 References are to sectiona. 
 
 PRE-EMPTION, 504. 
 
 PREMISES — 
 
 in deeds, 586. 
 PRESCRIPTION — 
 
 title by, 479-483. 
 PRESCRIPTION AND LIMITATION, 478. 
 PRIMOGENITURE. See Titlb by Descent. 
 PRIVATE GRANT, 500. 
 
 title by, 505. 
 
 classification, 506. 
 
 by deed, 533. 
 PROBATE OF WILLS. 532. 
 PROCREATION — 
 
 necessity of words of, 85. 
 PROPERTY, 9, 10, 14, 15, 30. 
 
 PUBLICATION — 
 
 of wills, 514. 
 PUBLIC GRANT, 500. 
 PUBLIC LANDS, 407. 
 PURCHASE — 
 
 title by, 456. 
 
 in joint tenancy, 337. 
 QUALITY OF ESTATES, 41, 43. 
 QUANTITY OF ESTATES, 59. 
 QUIA EMPTORES — 
 
 statute of, 52-54. 
 QUIET ENJOYMENT — 
 
 covenant for, 603. 
 QUITCLAIM DEEDS, 553. 
 RATIFICATION — 
 
 of deeds, 563, 563. 
 RECORDING — 
 
 of deeds, 579. 
 
 effect of, etc., 580. 
 
 notice in connection therewith, 581, 583. 
 
 REDDENDUM CLAUSE, 596. 
 
 REDEMPTION — 
 
 time for, etc., 392. 
 REFORMATION OF DEEDS IN EQUITY, 588. 
 
 REGISTRATION — 
 
 of deeds, 579. 
 RELEASE — 
 
 of mortgage, 385. 
 REMAINDERS, 369-371. 
 
 nature and incidents, 376, 377. 
 
 created by deed or will, 378. 
 
 RENT, 433. 
 
 rent-service, 434-436. 
 ren^charge, 437. 
 rent-seek, 437. 
 
436 INDEX. 
 
 References are to sections. 
 RENTAL UPON SHARES, 303. 
 REPAIRS — 
 
 duty of life tenant as to, 123. 
 REQUISITES OF DEEDS, 557-582. 
 RESTRICTED ENJOYMENT — 
 
 of estates, 104. 
 RESTRICTIVE WORDS — 
 
 in deeds and estates, 103. 
 
 REVERSIONS, 265. 
 
 how created, 867. 
 
 how aliened, 268. 
 REVOCABLE — 
 
 wills must be, 523. 
 REVOCATION OF WILLS — 
 
 how affected, 524. 
 
 RIGHTS AND REMEDIES — 
 in mortgages, 383. 
 
 RIGHTS OF COMMON, 4ia 
 
 RIGHTS OF WAY, 424, 435. 
 
 RULES — 
 
 for construction of deeds, 589-591. 
 SALE — 
 
 power of, in mortgages, 384. 
 SEALING — 
 
 of deeds, 570. 
 SECONDARY CONVEYANCES, 542. 
 SEISIN, 44. 
 
 distinguished from possession, 62. 
 
 of wife, 134, 135. 
 
 of husband, necessary to dower, 167. 
 
 covenants of seisin, 598, 599. 
 SERVIENT ESTATE, 416. 
 
 SHELL Y'S CASE — 
 
 rule in, 281-290. 
 
 efifeot, 287. 
 
 rule stated, 288. 
 
 results of, 289. 
 
 in modern law, 290. 
 SHERIFF — 
 
 deed of, 393. 
 SHIFTING USE, 346. ^ 
 
 SIGNING — 
 
 of deeds, 570. 
 SPRINGING USE, 346. 
 
 STATUTE OF FRAUDS. See Deeds; Conveyances. 
 STATUTES — 
 
 of wills, 56, 352. 
 
 dower, 167. 
 
 estates for years, 197-303. 
 
 of limitations, 394. 
 
 conveyances, 535-551. 
 
INDEX. 4S7 
 
 References are to sections. 
 
 SUFFERANCE — 
 
 tenancy at, 219, 220. 
 SURRENDER — 
 
 generally, 544. 
 
 of leasehold interest, 194. 
 TAXATION, 403. 
 TAXES — 
 
 duty of life tenant to pay, 126, 
 TECHNICAL WORDS — 
 
 use of, in wills, 526. 
 TENANCY — 
 
 at will, 214. 
 
 at sufferance, 219-231. 
 
 in common, 230, 231. 
 
 how created, 232. 
 
 rights therein, 237. 
 
 in what estates, 338. 
 
 termination of, 339. 
 
 by entireties, 343-346. 
 TENEMENTS, 35-29. 
 TENENDUM, 596. 
 TENURE, 11. 
 
 nature of, 30. 
 TERM OF YEARS, 178-180. 
 TERMINATION — 
 
 of estates, 127-139, 218. 
 TERMINOLOGY, 6, 12, 13. 
 TESTATOR — 
 
 competency of, 516. 
 THE FOUR UNITIES, 336. 
 THIRD PARTIES, 569. 
 
 TITLE, 450, 45^1. 
 
 development, 453-454. 
 
 sources, 455. 
 
 by descent and purchase^ 456, 457. 
 
 TRUSTEES — 
 estates of, 305. 
 who may be made, 339. 
 
 TRUSTS, 330. 
 defined, 333. 
 what estates in, 337. 
 active and passive, 333. 
 
 UNCERTAIN PERSON, IN REMAINDERS, 393, 394. 
 
 UNDUE INFLUENCE, 518. 
 
 UNITIES — 
 
 the four, 236. 
 USE AND OCCUPATION, 305. 
 
 USES — 
 
 how enforced in equity, 814. 
 statute of, 318. 
 provisions of, 819. 
 effect of, 330. 
 
438 INDEX. 
 
 References are to sections. 
 USES (continued) — 
 
 methods for evading, 322. 
 effects, 326-534. 
 before the statute, 324. 
 use upon a use, 323, 335. 
 springing and shifting, 346.' 
 
 VESTED REMAINDERS, 279, 280. 
 VIVUM VADIUM, 367. 
 VOLUNTARY ACT, 517. 
 VOLUNTARY WASTE, 107. 
 
 WALLS — 
 party, 431. 
 
 WARRANTY — 
 
 covenant of, in deeds, 603. 
 
 WASTE, 106, 111. 
 
 WATERS — 
 
 easements in, 427. 
 
 tidal, 428. 
 
 navigable, 428. 
 WAY — 
 
 rights of, 424, 425. 
 WILL — 
 
 tenancy at, 210, 211. 
 WILLS — 
 
 statute of, 56. 
 
 power of disposition by, 55. 
 
 nature and requisites, 509. 
 
 elements, 511. 
 
 execution, 512. 
 
 aclinowledgment, 513. 
 
 publication, 514. 
 
 attestation, 515. 
 
 competent testator, 516. 
 
 must be revocable, 533. 
 
 when to take effect, 522. 
 
 revocation of, 524. 
 
 operative as to wliat property, 520. 
 
 what may be disposed of by, 519. 
 
 WORDS — 
 
 necessary to a condition, 354. 
 
 WRITING — 
 
 deed must be in, 558. 
 YEAR TO YEAR — 
 
 tenancy from, 207, 208. 
 
KF 570 115*^ci.i 
 
 Author 
 
 Vol. 
 
 Newell, Grant 
 
 Copy 
 
 ELements ofthe law of real 
 
 properxy 
 
 Date 
 
 Borrower's Name