i^r^ 17 1902 Cornell University Library KF 385.K37 1851 V.4 Commentaries on American law. 3 1924 018 808 125 i- ■■^''■'-•' L'oii^.iiY Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018808125 COMMENTARIES ON AMERICAN LAW. BY JAMES KENT. VOLUME IV. SEVENTH EDITION". NEW YOEK: PUBLISHED BY WILLIAM KENT, SXD SOLD BT THE PEINOIPAL LAW BOOKSELLERS TIIKOUQHOUT THE CNITED STATES. M DCCC LI. Southern District of New-York, S9. BE IT EEMEMBEEED, That on the tenUi day of April, A. D., 1880, in the finy-roiirliV year of the Independence of tlie United States of America, James Kent, of (L. S.) the said district, has deposited in this office the title of a Book, the right ivhereof he claims as author, in the words following, to wit: " Commentaries on American Law. By James Kent. Vol. IV." In conformity to an Act of the Congress of the United States, entitled " An Act for the encour- agement of learning, by securing the copies of Maps, Charts and Books, to the authors and proprietors of such copies, during the times therein mentioned." And also to an Act, entitled. An Act, supplementary to an Act, entitled, An Act for tte encouragement of learning, by securing the copies of Maps, Charts and Books, to the authors and proprietors of such copies, during the times therein mentioned, and extending the benefits thereof to the arts of designing, engraving and etching historical and other prints. FEED. J. BETTS, /y ./ Clerk ofthe Southern District of New-Tork. Entered according to the Act of Congress, in the year one thousand eight hundred and thirty- two, by James Kent, in the Clerk's Office of the District Court of the United States, for the Southern District of New-Tork. Entered according to the Act of Congress, in the year one thousand eight hundred and fortj , by James Kent, in the Clerk's Office ofthe District Court ofthe United Slates, for the Southera District of New-Tork. Entered according to the Act of Congress, in the year one thousand eight hundred and forty- eight, by WiLLiAii Kent, in the Clerk's Office ofthe District Court of the United States, for llic Southern District of New-Tork. Entered according to the Act of Congress, in the year one thousand eight hundred and flfly- one, by Wiliiam Kent, in the Clerk's Office of the District Court of the United Slates, for the Southern District of New-Tork. Yan Noeden & Ameeman, Printers, 60 "William-street. CONTENTS. PAET VI. OF THE LAW CONCEENING REAL PEOPEETY. (OONTTNtTED FEOM THE TniED VOLUME.) Page Lecture LIV. — Of Estates in Fee, 1 1. Of fee simple, 4 2. Of qualified fees, 8 3. Of conditional fees, 10 4. Of fee taU 12 Lecture LV. — Of Estates for Life 22 1. Estates for life by agreement, 23 2. Tenancy by tbe cuilesy, 26 3. Dower, 33 (1.) Of what estate the wife may be endowed, 36 (2.) In what way dower will be defeated 47 (3.) How dower may be barred, 50 (4.) The manner of assigning dower, 60 4. Incidents to tenancies for life, 74 Lecture LVI. — Of Estates for Years, at Will and at Sufferance, 87 1 . Of estates for years /(/. AND HEREIN, (1.) Histoiy of attendant terms 88 94 (2.) Creation of leases, 96 (3.) Eight of lessees, 98 id (4.) Operate by estoppel, 101 (5.) Extinguished by merger, 103 (6.) Extinguished by sun-ender, 106 (7.) Extinguished by forfeitui-e, &c., 109 Of contracts for a lease, '. 108 (8.) Of powers to lease, 109 1^ CONTENTS. Page (9.) CavenantB for renewal, HI (10.) Emblements, 112 Of estates at will ' 114 Of estates at sufferance,. 120 Lecture LVIL — Of Estates upon Condition, 125 1. Of condition in law, Id^ 2. Of conditions in deed, 127 Lecture LVIII. — Of the Law of Mortgage, 138 1 . Of the general nature of moi'tgages, Id. AND HEREIN, (1.) Different kinds of moi'tgages 138 (2.) Pledge and mortgage of chattels, 141 — 144 (3.) Defeasance 144 (4.) Conditional sales, and covenants to pay, 147 (5.) Power to sell, 149—152 (6.) Mortgage of reversionary tenns, 152 (7.) Deposit of title deeds, 154 (8.) Equitable lien of vendors, 155 — 168 2. Rights of moi-tgagor, 159 AND HEBEra, , (1.) His character at law, 159 — 162 (2.) His rights in equity, 162—166 (3.) His equity of redemption, 166 3. Rights of the mortgagee, 171 A>"D HEREIN', (1.) His right to the possession, 171 (2.) Accountable for the profits, 173 (3.) Registiy of the moilgage, 175 — 183 (4.) Future advAices, 183 (5.) Doctrine of tacking, 185 — 190 4 . Of foreclosm-e 191 AND HEREIN, (1.) Of strict foreclosm-e 191 (2.) Selling the land, ' 193 (3.) Pai-ties on foreclosure, 196. 198. 202, 203 (4.) Equity of redemption baiTed by time, 198. 201 (5.) Opening biddings 203 (6.) Reconveyance, 205 Lecture LIX. — Of Estates in Remainder, 210 1. Of the general nature of remainders, Id 2. Of vested remainders, 203 3. Of contingent remainders, ; . . . . 217 CONTENTS. V Page 4. Of the rule in Shelley'8 case 225 6. Of the particular estate 244 6. Of remainders limited by way of use, 246 1. Of the time within which a contingent remainder must vest, 256 8. Of the destruction of contingent remainders, 261 9. Of other properties of contingent remainders 264 Lectuee LX. — Of Executory Devises, 272 1. Of the history of executory devises Id 2. Of the several kinds and general qualities of executoi-y devises 276 3. Of limitations iu executory devises, 279 AND HEUEIN, (1.) When too remote, 279 (2.) Dying without issue, as to real estate 273. 292 (3.) As to chattels , 293. 296 4. Of accumulation and other matters, 296 Leotuhe LXI. — Of ITses and Trusts SOI 1. Of uses, Jd. AND HEREIN, (1.) Of theii- history, 301 (2.) Shifting or secondary uses, 308 (3.) Springing uses, 309 (4.) Future or contingent uses 310 (5.) Resulting uses, 310 (6.) Abolished in New-York, 311 2. Of trusts 313 AND HDEEIN, (1.) Growth and doctrine of trusts, 313 (2.) How created, 316 (3.) Resulting trusts, 317 (4.) Restricted in New-York, 321 Lecture LXII.— 0/ Powers, 331 1. Of the nature and division of powers 332 AND HEREIN, (1.) Classification of powers, 332 (2.) Appendant and collateral, Id. (3.) General and special, 334 2. Of the creation of powers 334 VI COHTENTS. P»ge AND HEREIX, (1.) Estate created by the power, 334. 336 (2.) Devise to executors, 336. 338 (3.) PoTver vmder statute of uses, 338 3. Execution of powers, 340 A\D HEKEIX, (1.) Who may execute, 340 (2.) When powers survive 341 (3.) Valid execution 344. 346 (4.) Strict execution, * 346. 351 (5.) Execution need not refer to the power, 351 (6.) Power of revocation, 353 (T.) Relation back to the deed creating the power 354 (8.) Defective execution aided, 356 (9.) Equity control over the execution of powers, 363 4. Of the extinguishment of powers 358 — 363 Lectuke LXin. — Of Estates in Reversion, ■ 370 Lecthee LXIV. — Of a Joint Interest in Land, 373 1. Of joint-tenants, Id. 2. Coparceners, 383 3. Tenants in conuion, 384 Lectuke LXV.— 0/ Title by Descent, 391 1st Rule, lineals in equal degrees, 393 2d , " in unequal degrees, 409 3d , parents, 411 (1.) Of the father, 412 (2.) Of the mother, 418 4th , brothers and sisters, 420 5th , grandparents, 428 6th , uncles and aunts 431 7th , ex parte paterna ct materna, 431 8th , next of kin, Id. 1. Posthumous children, 435 2. Computation of degrees, Id. 3. Bastards 436 4. Advancement to a child, 441 5. Marshalling assets, 445 Lecture LXVL — Of Title by Escheat, by Forfeiture and by Execution 449 1. Of Title by escheat, /d 2. Of title by forfeiture, 452 3. Of title by execution, 455 Leotuee LXVIL— 0/ Title by Deed, 479 1. Of the history of the law of alienation, Id. CONTENTS. Vn Page ■2. Of the piu'chase of pretended titles, 484 •3. Of the execution of the deed,. 490 (1.) To be in writing, and signed and sealed 491 (2.) Delivered, 499 (3.) Recorded, 502 1. Of the component parts of a deed, SOt (1.) Foi-m of the deed, Id. (2.) Parties, 510 (3.) Consideration Id. AND HEEEDf OP FEAUDUXEJIT CONVEYANCES, (4.) Description of the estate, 515 (5.) Habendum, 519 (6.) Usual covenants, 520 5. Of the several species of conveyance, 635 (1.) Of feofftnent, Id. (2.) Of gi-ant, 544 (3.) Of covenant to stand seised, 64*7 (4.) Of lease and release, 648 (5.) Of bargain and sale, 650 (6.) Of fines and recoveries, 651 Lectoee LXVIII— 0/ Title by Will or Devise, 555 1. Of the history of devises, Jd. 2. Of the parties to a devise, 659 2. Of things devisable, SOT 4. The execution of -wills, 572 5. The revocation of -wills, 581 6. Of the construction of -wills, 596 TABLE OF CASES. A Abeel v. Radcliff, 112 Abbott V.Allen 623 Adair v. Lett 29 Adams v. Adams 363 V. Buford, 447 V. Chaplin, 673 V. Gibney, 628 V. Hume 521 V. Winne 594 Adams' and Lamberts' Case, 324 Adamson v. Armitage, 699 Addy ti. Grix, 573 Adsit V. Adsit, 58 Agar V. Fail-fax 381 Aggas V. Pickerell, 199 Alchorne v. Gomme 171 Alexander t;. Alexander, . .366. 362, 363 ■ V. Jameson, 498 Alford and Lea's Case, 601 Allan V. Backbouse 77. 161 V. Heber 561 Allard v. Lane 205 Allen V. Anthony, 191 V. Bradshaw, 347. 674 V. Chambers, 494 V. Culver, 448. 526 V. Little, 559 V. Parish, 463 j;. Pray, 58 V. Smith 488 Allen's Estate 495 Allison V. Allison, 517 AUston V. Thompson 604 Allyn V. Mather 15 Alsberry v. Hawkins 35 Alston V. Alston, 99 Ambler v. Weston, 56 Ambrose v. Ambrose 43 Amesbeny v. Brown 76 Amory v. Fairbanks, 194 Ancastor v. Mayes, 149 Anders v. Anders, 386 Anderson v. Foulke, 204 -. V. Greble 388 T V. Jackson, 289 V. Nesmith, 124 V. Roberts 513 Andrew v. Pearce 525 Andrews v. Andrews, 589 V. Boyd 699 V. Emmet 352 Annable v. Patch, 205 Anworth v. Johnson, 114 Archers' Case, . .221. 223. 231. 256. 261 Arden v. Patterson, 489 Argent v. Durant 122 Armstrong v. Huston, 476 J). Wheeler 627 V. Wholesey, 310 Arnold v. Brown 476 V. Congreve, 294 0. Earle 660 V. Foot, 172 Arthur v. Brockenham, 667. 590 Ash V. Ash 181 V. Livingston,- 181 Aspinall v. Kempson, 93 Aston V. Aston 81 Astor V. Miller 175 V. Turner 173 Astiy V. Astry, 360 Atkins V. Bolyston F. & M. Ins. Co., 98 ex. d. Taylor v. Horde, 482, 483, 484. 486—488 •». Sa-wyer,i 196 Atkinson v. Hutchinson, 276 Attorney-General v. Andrew, 564 V, Backhouse,. . . 190 V. Bayley, 286 V. Boyer, 564 V. Brooke, 112 ■ 1). Green, 326 ■ V. Hall 278 V. Ironmongers' Company, . . . 564 1). Mayor of Dub- lin 563 V. S. Sea Co.,... 326 Avelyn v. Ward 224. 569 Averill v. Guthrie, ] 85 V. Wilson 278 Aubert v. Maze, 514 Austin V. Bradley, .' 146 V. Halsey, 156 V. Sawyer, 99 Aylesford'a Case, ,. . 493 Ay lor ti. Chop 3.74 Ayres v. Trustees, etc., 562 TABLE OF CASES. B Bachelder v. Fiske, 389 Backhouse v. Wells, 231. 233 Backus V. M'Koy, 626. 631 Bacon v. Bowdoin, 108 Badgely v. Bruce 73 Badger v. Lloyd, 215 Badham v. Mee, 344. 364 Bagley v. Bailey 106 ■ V. MoUai-d, 438 Bagsha-w v. Spencer, 229. 231. 233. 237. 316. 596 Bainfcon v. Ward 357 Baird v. Kii-tland, 463 Baker v. Chalfant 425 V. Dening, 573 V. Harris 628 V. Thrasher, 148 V. Whiting, 488 V. Wind, 145 Baldrick v. White, 213 Baldwin and Cock's Case, 134 Bale V. Coleman, 228 Baley v. Deakins, 488 Balfour v. Scott, 400 Ball V. Hairis, 321 Ballard v. Carter 328. 691 Ballentine v. Beall 457 V. Poyner, 77 Ballet V. Ballet 529 Ballinger v. Worsley, 173 Ballune v. Wallace 161 Bally V. Wells 525 Bampfield v. Popham, 605 Bancroft v. White, 37 Bank of C. V. Bugbee 499 Canton v. Coram. Bank.. . . 165 Lansingburgh v. Crary, . . . 493 — Utica V. Finch 184 J). Mersereau,. . 101. 270 Cleveland v. Sturges, 182 Penn. v. Wise, 519 • United States v. Carroll, 204 V. Daniels 278 V. Dunseth, . . 65 V. Owens,. . . . 613 V. Sutton, .... 43 V. Tyler, 469 ■ . «. Wise, 468 Bantleon v. Smith, 473 Barber v. Taylor's Heirs, 418. 443 Barford v. Street 353 Baling v. Nash, 381 Barker v. Barker, 26 V. Keat 549 V. Parker 26 Barnard v. Edwards, 71 Barnes v. Rackston, 189 Barnes' Case 326 Barnet v. Thrice, 71 Barney v. Frowner, 68 V. Patterson, 458. 467 Barnwell v. Lord Cawdor, 446 Barrel! v. Sabine, 148 Barron v. Martin, 201 Barrow v. Paxton, 142 V. Eichard, 131 Bartlett v. Harlow, 385 V. Nye, 663 «. Pickersgm, 317. 319 Barton's Case, 108 Bartow v. Salter, 287 Barwick's Case 243 Basset v. Basset, 408 Bate V. Amherst, 265. 277 Bateman v. Bateman, 167 Bates't). Bates, 89 V. Norcross 520 V. Sohroeder, 407 Bates' Case, 40 Battersbee v. Fanington, 623 Bawell and Lucas' Case, 307 Baxter v. Browne, 108 V. Manning 184 V. Taylor, 124 Bayard v. Hoffman, 457 ■ ■ V. M'Lean, 489 Bayley v. Greenleaf, 155. 157 Baylies v. Bussen 193 Baynham v. Guy's Hospital, 112 Beachcroft v. Beachcroft 438 Beall ii. Holmes, 601, 602. 604, 605 Bean v. Smith, 513 Beardslee v. Beardslee 38. 49 Bears v. Ambler, 113 Beauchamp v. Damoi-y, 532 Beddoet). Wadsworth, 625. 633 Bedford v. M'Elbetton, 118 Bedingfield's Case, 70 Belch V. Harvey, 199 Belchier v. Butler, 187 Bell V. Dozier, 432 V. Mayor of M". T 38. 173, 174 Bellas V. McCarty,. . .' 503 Bellasis v. Hester, 98 Bellows V. Dewey, 371 Bells V. GiUespie, 286, 287 Bender v. Fromberger, 626. 630 Benedict v. Gaylord, 616 ^ V. Lynch, 4 Bengough v. Eldridge, 17 Bennet ti. Aburrow, 362 V. Davies 30 Bennett, Mx parte 475 — V. Hayton, 564 V. Jackson, 576 V. Jenkins 630, 631 Bensley v. Burden, 268 Benson v. Le Roy 316 V. Whittam, 365 Bentham v. Smith, 361 Bergen v. Bennett 151. 336 Berger v. Hiester, 195 Berkshire v. Vanlore, 47 Bernardine v. L'Espinasse, 421 TABLE OF CASES. XI Berrien v. Conover, 71 . V. McLanc 327. 490 Bevry v. Mutual Ins. Company,. . . . 155 Bethel! v. Moore 591, 592 Bevan v. Taylor, 426 Bevans v. Briscoe 75 Bibb V. Tliomaa 593 Bickford v. Daniels 145 V. Page 524 V. Parsons, 126 Bickley v. Guest, 365 Bigelow V. Jones, 530 Billingliui-st v. Vickers, 672 BiUington v. "Welsh 493 Bingham v. "Weiderwax, 515. 524 Birch v. Ellames, 154 . V. Wright,.. . 159. 160, 161. 171. 371 Bird V. Gardner, 44. 167 Birmingham v. Kii-wau, 57 Birney v. Hann 524 Biscoe V. Perkins, 264 Bishop V. Doty, 99 V. Selleck 241 of Ely V. Kenrick 381 of Winchester v. Beaver, . . 197 V. Paine, 198 Bissell V. Erwin 630 Black t). Ligon 420 Blackborough v. Davis 430 Blackbourn v. Gregson, 158 Blackburne v. Stables, 5 Blacke v. Tucker, 269 Blacklee v. Webb, 600 Blackmore v. Burnside, 146 Blackwell v. The Justices 531 Blackston t). Hemsworth Hospital,. 326. 523 Blagden v. Bradbear 495 Blagge V. Miles, 352 Blague V. Gould, 517 Blaine v. Chambers, 518 Blake v. Crowniushield, 98 . »;. Foster, 200 V. Hayward, 472 V. Tucker 101 Blakey v. Abert 463 Blanchard v, Blancbard, 466 V. Castile 513 ■ V. Colburn, 165 Blaney v. Bearce, 145. 159. 164 Blatch V. Wilder, 343 Blaymire v. Haley, 98 Bleecker v. Bingham, 136 Bledsoe v. Doe, 488 Bliman v. Brown, 381 Bloomer v. Waldroo 336. 348 Blosse V. Clanmonis, 261 Blount V, Winter 54 Blunden v, Baugh, 641 Boards v. Jones, 283 Bodenham v. Pui-chas, 448 Bogai'dus V. Clarke, 566 Bogart V. Perry 320 Bogert V. Hertell 343 Bogie V. Eutlege, 38 Bohart v. Atkinson, 476 Bolton V. Carlisle 252. 497 Bonafault v. Greenfield 341 Bond V. SeawoU, 675 Bonethon v, Hockmore 173 Bonny v. Ridgard, 199 Booker v. Bell 476 Boone v. Chiles, 191 V. Eyre, 129 Booth V. Booth, 195. 320. 462 V. Rich 203 V. Stark, 624 Boothby v. Vernon, 39 Bootle V. Blundell, 362. 445 Boraston v. Green, 114 Boraston'a Case 327 Borey v. Smith, 351 Boring v. Lemmon 458 Borland v. Dean, 453 Botsford V. Burr 318 ?;. Morehouse, 497 Bottomly v. Fairfax 43 Boughey v. Moreton, 592 Bovar v. Archers, 382 Bowen v. Edwards 146 Bowles' Case, 70. 388 Bowser v. Colbey, 129 Bowyer v. Judge,. •. 379 Boyd V. Annstrong, 447 V. Boyd, 320 V. Cook 559 • II. Hawkins, 476 V. M'Lean, 318 Boyle V. Rowland, 70 Brace v. Duchess of Marlborough,. 177. 437 Bracebridge v. Buckley, 1 34 Bracken v. Miller, 189 Brackenridge v. Holland 4-76 Brackett v. Wail, 179 Bradford v. Sheet, 335 Bradish v. Gibbs, 352 V. Schenck 99 Bradley v. Covell, 117 Bradshaw's Case, 524 Brady v. Cubitt 583 V. Waldron, 165 Bragge v. Dyer, 677 Brainard v. Bushnell, 95 V. Brainard, 146 Brandon v. Brandon 601 V. Robinson, 237 Branson v. Yancy, 62 Brant v. Gelston, 241 V. Wilson ■ 591 Brashier v. Jackson, 108 Braybroke v. Inskip, 603 Breckenridge v. Brooks, 173. 207 Brent's Case, 247. 306 Brewer v. Blougher, 414 xu TABLE OF CASES. Brewster v. Brewster, 27T V. Benedict 426 V. Hill 94 — V. M'Call 570 1). Striker, 269 Brice v. Smith 286 Bridge v. Eggleston 513 Bridges D. Duchess of Chandos, . . . 590 ' V. Hitchcock, 112 Bridgewater (Duke of) v. Egerton, . 296 Briggs t). Hill,.. 15'7 Brigham v. Eveleth, 315 Bright V. Boyd, 361 Brinckerhoflf v. Brown,. . 16Y. 457. 473 V. Marvin 185 1). Eemaen, 574 Brinley v. Whiting, 487 Briscoe V. King, 149 Bristow V. Ward 362 Britain v. M'Kay and Bates, 493 Britton v. Twining 295 Broaddus v. Turner, 287. 289 Brodie v. Barry, 572 Brogden v. Walker, 321 Bromfield v. Crowder, 217 Brooker v. Bell 531 Brooks V. Tyler, 516 Broson «. Kinzie, 193. 465 Brothers v. Porter, 319 Broiigh V. Higgins 84 Brown v. Armistead 343 V. Baldridge, 504 V. Barkham 213 V. Bement, 142 V. Brown 500 V. B. & D. Bank, 573 V. Dewey, 146 V. Dye 438 V. Ford, ■ 204 '■ — V. Frost, 185 V. Gribbs, 45 V. Gray, 462 D. Haines, 493 V. Higgs 360. 606 V. M'Cormick 102 ■ — V. Potter 37 V. Sprague, 451 ■ V. Staples, 270 V. Thompson, 583 — V. Wheeler 268 Brownell v. Brownell 380 Browning v. Bettis 458 Brudenell i>. Elwes 362 Brummet v. Barber 294 Brash V. Kinsley, 157 V. Ware, 190 V. Wilkins 584, 585. 587 Bryan v. Bradley,. . . ; 544 V. Strait, 461 Bubier v. Bubier 169 Buchanan v. Deshon, 35 Buckti. Pike, 318 V, Sanders, 165 Buckinghamshire (Earl of) v. Ho- bart 76 Buckle V. Mitchell 611 Buckmaster v. Grundy, 630 Buckworth tJ. Thirkell 31. 49. 133 Bulkley i>. Dolbeave 80 Bull j;. Church 88 BuUock V. Dibler, 540 . «i. Stones, 217 Bulteel, &; ;)arte, 156 Bumpas v. Gregory, 460 V. Platner, 190 Bunker «. Coke 667 Burcl^^rd v. Hubbard, 102 Burchet v. Durdaut 223. 230 Burden «. Thayei-, 371 Burdet v. Spilsbury, 347 Bui-dett !). Clay 206 Burdick v. McVanner, 142 Burford (Corporation of)^. Lenthal, 565 Burges v. Mawbey , 74 Burgess 4). Wheate,... 43. 76. 314, 315 Bm-hans v. Van Zandt, 476 Burlington v. Fosby 414 BurneU v. Martin, 195 Burr, In matter of, 659 Burton v. Smith 461. 470 Burtonshaw v. Gilbert, 592 Bush i;. Bradley, 29 • V. Golden 179 Bushnell v. Bushnell, 182 Butcher v. Butcher, 359 Butler V. Benson, 572 V. Haskell, 476 V. King 424 V. Stratton 600 Butler and Baker's Case,.. 67, 500. 667 c Cabiness v. Mahon, 603 Cadell J). Palmer 276 Cairns v. Chabert 77 Caldwell v. Kii-kpatrick, 526 Caldecott v. Brown, 77 V. Curtis 387 Calhoun v. Snider 435 Calkins v. Calkins, 201 . D. Munsell 167 Call V. Barker 381 Calmady v. Calmady 381 Cameron v. Irwin, 194 Cammeyer v. United Ger. L. C, . . . 492 Camp V. Coxe 196 Campbell v. Arnold, 123, 124 : — V. Harding 294 V. Leach 109. Ill V. Macomb, 166 V. Mesier 389 V. Penn. L. Ins. Co. 476 V. Walker, 475 Canby (Lessee of) v. Porter 33 TABLE OF CASES. XIU Candler v. Lunsford, 270 : Cauham v. Fisk 517 ', Cai-bone v. Scarfe 45 ^ Cardwell v. Spi-igg 487 Carletou v. Leighton 148 Carlos V. Ansley, 457 Cai-negie v. Morrison 252 Carpeuter v. Bailey 526 • V. Buller, 261 V. First Parish 164 ^ J). Smith, 136 1 Can- V. Bedford 600 I W.Ellison 112 V. Green 287 V. Hoxie , 500 V. Jeannerett 287 V. Porter, 238. 287. 604 Carroll v. Van Rensselaer, 155 Carson v. Blakey 152 Carter v. Barnadistan, 264, 265 V. Burley, 498 V. Thomas, 570 V. Tyler, 287 Cai'twright v. Pultney, 381 Carver v. Jackson, 261 V. Mdler 388 Caruthers v, Caruthers, 65 Carwardiue v. Carwardine 272 Gary v. Bertie, 134 t). Rawson 145 Casborne v. Scarf, 29. 74. 163 Case V. Haight 519 Casey d. Insloes, 269 Caskey v. Brewer, 286, 287 Cassell V. Cook, 565 CassiUy v. Rhodes, 196 Casson v. Dade, 660. 575 Castle V. Burditt, 98 Caston V. Caston, 58 Caswell, Ex parte, 352 V. Wendell, 630, 531 Catesby's Case 98 Cathcart v. Bowman, 530 V. Robinson, 464. 512 Catlin V. Corbitt, 55 ■ V. Hayden, 119 v. Ware, 60. 66. 497 Cave V. Holford, 691 Cecil V. Butcher, 500 Chadock v. Cowley 201. 286, 287 Chaffee v. Baptist M. C 673, 674 Chalmer v. Bradley, 199. 328 Chamberlain v. Crane 310 V. Gorham, 609 .• Chambers v. Bedel] 122 Chapel V. Girdler, 91 Chaplin v. Chaplin 18. 29, 30. 43 Chapman v. Armistead, 61 V. Bhssel 265. 296 V. Holmes 524 -. . V. Thumblethorp, 118 V. Townei-, 108 Chapron v. Cassaday , . . . 47S Charman v. Charman, 590 Charter v. Stevens 142 Chase v. Lockerman 446 Chatham v. Tothill, 295 Cheesborough v. Green, 388 Chelsey I). Thomp.son, 371. 386 Cheney v. Watkins, 615. 548 Chesterman i). Gardner 190 Childs V. Clark, 100 Childress v. AUin, 458. 466 Chiles V. Conley, 179 Chinnery v. Blackman, 161 Chipman v. Bluck 108 V. Tanner, 162 Cholmley v. Oxford, 198 Chomley's Case, 218 Cholmondellyt). Clinton,.. 161. 187. 537 Christopher v. Christopher, 683 V. Sparke 160 Chudley's Case 248. 250, 261. 266. 259. 261. 266. 305. 496 Church V. Bull, 58 V. Gilman, 500 Churchman v. Ireland 568 Churchwardens v. Smith, 627 City Bank v. Smith, 129. 136 Claflin V. Carpenter 493 Clarborne v. Henderson, 45 Clanton v. Burgees, 611 Clappi). Bromagham, . . . 381, 382. 538 t). Paine, 118 Clapper v. Livergood, 30 Clare v. Marshall, 492 Clare's (Sir Edward) Case,... 362. 366 Clarendon v. Hornby, 383 Clark V. Beach 160 V. Cummings, 109 V. Dew, 666 . V. Earl of Ormond, 447. 478 V. Henry, 140 V. Jones 132 V. Muni'oe, 38 V. Parr 580 V. Robbins 173 I). Smith,. 174. 269. 277. 287. 300 V. Sprague, 424 V. Swift, 524 V. Wethey, 516 Clary v. Marshall, 470 Clavering D.'Clavcring, 497 Clay V. Hart, 341 ■ V. White 28 Clayton v. Blackey, I15 Claytor^ Case, 98. '448 Clements v. Paske, ; 366 Cleve's (Sir Ed.) Case, 264. 310 Clinan v. Cooke, 493 Clowes V. Hawley,. . . . . ; 370 ■ ■ V. Dickenson,. 189 Clute V. Bool 327 V. Robinson, 626 Coates i). Chever, 40. 73. 317 V. Hughes 586 xiy TABLE OF CASES. Coate's Appeal Ooburn v. Mollis Cochoun u. Thompson,. Cochran v. O'Hern,. . . . Cockrell ii. Cholmelly,. Oockee v. ThorntoD,. . . . Coe V. Talcott, Coffee V. Wraj OoffiD V. Coffin, ■ V. Lunt, . Cogan V. Oogan Cogswell V. Tibbetts, Coit t'. Millikln ,. ^Colby 1). Kennistou, Colclough V. Richardson, Coldecoff V. Brown, Cole V. Cole, 1). Scot, J). Wade, 341. Coleman v. Coleman, V. Cooke, Coles V. Coles, ■ i;. Mordaunt . V. Trecothick, Collin V. Collin Collins V. BaiTow, ■ V. Blantern &. Hannay v. Gibson, V. Hoxie, V. Torrey, 38. Colman v. Packard, Colston V. Gardner, Colt D.Colt, ^ Colthirst V. Bejuskin, Colvin V. Fraaer Colyer's Case, Combs V. Jolly, • V. Young, . Combe's Case, 343, Oomiug, Ex parte, Commendam Case, Commons v. Marshall, Commonwealth v, Blanton V. Chambre V. M'Clanachan, . . . V. Stauffor, V. Welcome Compton V. Oxenden Comstock ti. Smith, Conard v. Atlantic Ins. Co Conghlin v. Knowles, Cong. Church v. Morris, Conkliu V. Egerton, ..." Connelly v. Smith, Conner v. Shepherd, 41. Conrad v. Atlantic Ins. Co V. Harrison Contant v. Sewoss, Converse i'. Converse '. . . Conway v. Alexander 148. Sx parte, Cook V. AUen V. Booth, . 317 . 485 . 608 . 30 , 361 . 120 , 102 , 472 , 479 . 116 257 53 498 500 516 166 413 155 343 389 471 44 576 475 296 114 515 164 438 44 159 354 43 256 592 605 673 40 344 155 352 363 452 99 523 597 454 106 102 472 495 35 343 35 78 185 189 348 573 174 321 380 112 Cook V. Duckenfield, 355 J). Hammond, 405. 408 V. Pai-sons, 576 V. Soltan, 201 ■!). Ch. T. Company, 79 Cooke V. Turner, 597 Cooley V. Dewey 437 Ooombe, Ex parte, 155 Cooper ti. Davis, 165 V. Whitney, 46 Cooth V. Jackson, 495 Coppin V. Coppin, 572 Corbet ;■. Baker 200 y V. Johnson 445 V. Stone 237 Corbin v. Healy, 15. 394 Corbit V. Corbit, 55 Corbyn v. Fi-euch, 562 Cordal's Case, 40 Corder v. Morgan, 150 Corporation v. Wallace, 436 Coster V. Clarke, 60 V. LoriUard, 282. 324. 564 Cotter V, Layer, 689 Cotterell v. Pm-chase, 145 Cotton D.Heath, 278 Coulson V. Coulson, 229. 233. 237 Countess de Z. JF. v. Marquis of H., 572 Coutts V. Walker, 471 Cowden's Estate 174 Cowie V. Goodwin, 114 Cowles V. Kaguet, 167 Cos V. Chamberlain, 363 V. Day, 351 V. Fenwick 155 V. Strode, 531 V. Walker, 320 Craft V. Webster, 206 Craig V. Craig, 299. 599 V. Pinson, 604 V. Tappm : . . 184 Crawford v. Bertholf, 500 Crenshaw v. Smith, 531 Cressen v. Miller, 488 Crews V. Pendleton, 519 Cripps V. Wolcott, 214 Crist V. Baakin, 466 Croft V. Powell, 150 Croly V. Croly, 287 Cromer v. Pinckney, 596 Cromwell v. Selden 518 Cromwell's (Lord) Case, 136. 144 Crook's Case, 360 Crosby v. Wadsworth 493 Cross V. Faustenditch 647 Grossling v. Crossling, 335 Crouch V. Pm-yeai-, 78 V. Fowle, 628 Cruger v. Halliday 328 • — V. Hayward, 287 Matter of, 64 Cruise v. Barley, 542 Crump V. Norwood, 254 1'ABLE OF OASES. TV Orumpton V. Ballard, 820 OuUum t). Emanuel, 194, 195, 196 Cumberland v. Cumbei-laud, 446 Culver V. Sissons 149 Cunningham v. Knight, 60 V. Mood 29. 216. 339 V. Williams 204 Currier v. Green 476 Curtis V. Curtis 72 !■. Mundy 179 V. Hubbard 461 Cushing V. Hurd 172 Custer V. Deterer, 473 Cutler V. Davenport, 478. 572 Cutter, Case of, 275 V. Doughty 288. 302 ' D Dabney v. Green, 145 V. Manning, 337 Daintry v. Daintry, 287 Dakin v. Williams, 129 Dallam !'. Dallam 287 D.alley v. Read, 478 Dando v. Tremper, 497 Daniels i'. Davison 190 V. Ellison, 455 Dansey v. Griffith, 211. 285 Darby v. M.ayer, 572 D'Arcy v. Blake, 37. 42. 48 Darley v. Darley, 589 Darling v. Rogers 293. 324 Darlington v. Pultney, 348 Dart II. Dart 270 Dashiell v. Attorney-General, 563 V. Dashiell, 294 Dashwood v. Blythway, 194 Dater v. Troy T. . Pool, 252 Dygest V. Matthews, 619 Dyke v. Sweeting 99 Dyer v. Martin, 190 E Eare v. Snow 50 Earl Ferrers, Case of, 566 Earle v. Middletou, 530 Early v. Black 477 Earnfit v. Winans 436 Eastwood V. Vincke, 417 Eaton V. Jaques, 148. 173 );. Simonds, 44 V. WHting 164, 165 Eby v.Eby, 183 Edelen v. Hardy 575 Edgall V. Lowell, 613 Edwards v. Cuncliffe, 160. 4»8 i>. Freeman, 442 V. Etherington, 114 YoL. IV. Edwards ». Martin's Heirs,. . V. Morgan, V. Slater V. Varick, . Eichelberger v. Bernetz, Elcock'a Will Eldredge v. Forrestal, EUiam v, Moore, Ellie V. Osborne, Ellis f. Paige, 115, 116, 117, ■ V. Smith Ellison V. Daniels, Ells V. Tousley Ellsworth t). Cook Elmendorf v. Taylor, Elmsley v. Young Emanuel College v. Evans, Emblyn v. Freeman, Embree v. Ellis, Emery v. Grocock Emerson v. Proprietors in Minot,. . . Emmerson v. Heelis, V. Washington County,. . Emmons v. Littlefield, Endsworth v. GrifBth, England v. Clark, English V. Lane, Englishbe v. Helmuth, Ennis v. Waller, Episcopal Academy v. Frieze Erskine v. Townsend, 145. 159. 1 67. Eskridge v. M'Clure, 158, Estep V. Weems, 458. Evans v. Elliot V. Goodlet, V. Iglehart V. Jones V. Roberts 75. 1). Webb, Evelyn v. Evelyn Everson v. Kirkland, Exeter v. Odeorne Extou V. Greaves, Eyre v. Countess of Shaftesbm-y,. . . V. Dolphin, V. Ivison, 533 57 355 289 294 678 39 3S 246 118 575 206 474 29 199 600 161 319 37 93 624 493 623 616 148 466 318 451 467 409 192 157 467 161 156 7j 183 493 68 158 524 311 174 342 180 495 Factor v. Philpot, 164 Fairclaim v. Shackleton, 387 Farmers'- Fire Ins. Co. v. Edwards,.. 205 ■ A M. Bank v. Haight, 499 ■ L. & T. Co. V. The People, 452 Bank v. Wallace, 473 Famsworth- v. Childs, 179 Farrar v. Farrar 196. 208. 497 Fatheree v. Fatheree 425 Faulkner v. Brockenborough, 207 Fawell V. Healis, I68 Felch n. Felch, Fell V. Brown, 179 XVlll TABLE OF CASES. Felton V. Billups, 404 Ferebee v. Proctor 343 Ferguson v. Hedges 60'7 v, Thomas 142 Fergoson's Case 114 Ferris v. Crawford, 149 a. Smith 601 Festing v. Allen 256 Field V. Pelot, 389 Fifty Associates v. Howland,. 132 Fiuch V. Earl of Winchelsea 158 Findlay v. Riddle,. . ; 240 Findly v. Smith, IS Findon v. Pai'ker, 489 Finlay v. King 129. 596. 605 Finney v. Pennsylvania, 473 Fisha. Fisli 44 V. Howland 155. 158 Fisher v. Fields 315. 317 V. Smith, . . . .t 516 v. Taylor, 322 f. Wigg 376 Fisk V. Eastman, 39 V. Sarber 476 Fitch V. Pindead, 165 Fitchbury Cotton M. v. Mehen 159 Fite V. Doe 488 Flagg D.Mann, 146. 148. 190. 389 Flavin V. Ventrice 49 Fleetwood's Case 43 Flemming v. Tours, 5J3 Fletcher v. Grover 389 V. Robinson, 43 i). Smiton 7 V. Wijson, , 102 Flintham, Case of, 335. 599 V. Holder, 438 Flood's Case, 562 Floyer v. Lavington 149 Flynn v. Williams 521 Folgert). Mitchell 386 Poote V. Burnet, 632 V. Colvin, 321. 437. 474 ' Forbes v. Moifat 106 Force v. Craig 498 Ford V. Ford, 693 ti.Philpot, 161. 164. 174 Fordyce v. Bridge 360 Forse . Blakeman, 324 o Oakley v. Stanley 517 Gates V. Cooke, 315 V. Jackson 374 O'Bannon v. Roberts 383 Okinson v. Patterson 515 Gland's Case 76 Oliver v. Richardson 71 «. Piatt, 319 Olmsted v. Harvey 604 O'Maule v. Weaver 508 Omaly v. Sevan, 1 94 Ommanney v. Bingham, 597 Onions v. Tyrrer, 592 Orby V. Trigg, 147 Orgill V. Kemshead 100 Oriental Bank v. Harkins 513 Ormond v. Anderson 493 Orphan Asylum v. M'Cartee 563 Osgood V. Breed, 559 V. Franklin 341 Otley V. Price, 458 Overbury v. Overbury, 583 Overdeer v. Lewis, 113 Overseers of Poor of H. v. Overseers of A., 498 Overton v. Tozer, . . . ; 462 Owen II. Hyde, 78 Owings V. Owings, 252 V. Thompson, 523 Oxford, Earl of v. Chm-chill ; 362 Pack V. Bathurst 357 Packer v. Nixon, 537 Packington v. Packington, 80 XXVlll TABLE OF OASES. Page V. Hay wai-d, 131 Paget, Lord, Case of, 647 Pain V. Smitb 154 Paine's Case, 26. 49 Paine v. Frencli, 206 Pallc V. Clinton, 167 Palmes v. Danby, 47 Pansey v. Lowball, 5 Papillon V. Voice 230 Pardee v. Van Anken, 167 Park V. Bates, 530 Parke v. Mears 499 Parker v. Constable 117 V. Housefield, 154 V. Kett, 352 V. Obear, 71 V. Propietors, 538 V. Straneland, 451 V. Wells, 495 Parkhurst v. Smith 214, 215 v. Van Cortland, 493 Parkins v. Coxe 78 Parsons v. Freeman, 590 V. Lanoe, 583 V. Parsons, 517. 575 V. Welles, 207 Paterson „. Ellis, 287. 295 V. Johnson, 156 Partridge v. Bere, 160 V. Strange, 484 Patten v. Tallman, 572 Pattison v. Hull, 206. 448 Paul V. Nurse 527 Paunell v. Farmers' Bank, 192 Paxon V. Paul, 206, 207 Paxton II. Douglass 447 V. Popham 515 Payne v. Sale 238 V. Atterbury 155 Pay's Case, 296 Peabody v. Minot, 385 V. Patten 44 Peaceable v. Read, 387 Peacock v. Monk, 365 Peake, JSx parte, 154 Pcarse, Ex parte, 155 V. Killian, 11 Peay v. Peay, 42 Peck V. Henderson 336 - — ■ V. Land, 458 Peebles v. Watts, 343 Pelham's Case 83 Pelletreau v. Jackson 269, 270 Pells «. Brown, 131. 273, 274. 278, 279 Pemberton v. Hicks, 392 Pembroke v. Berkley, 136 Penhyrn v. Hughes, 76 Penman v. Hart, 181 Pennant's Case, 138. 455 Pennimanw. HoUis 198 People V. Beebe 167 The V. Conklin, 451 ,1. GUlis 25 Percy v. Millaudon, 389 Perine v. Dunn, 193. 199 Perkins v. Dibble, 206 V. Drye 1^3 V. Little, 68 V. Norvell, 468 Walker 351 Pernam v. Weed, 516 Perrin v. Blake, 226, 227. 229. 231. 233, 234, 235, 236, 237. 241. 267 V. Leverett 469 V. Lyon, 128 Perrine v. Cheeseman, 498 PeirSt V. Perrot, 81 Peny v. Barker, 194 V. Craig 141. 143 V. Dixon, 475 V. NixoD 473 V. Price 644 Peter v. Beverly 342 Peters v. Goodrich, 183 V. Marsham, 363 Peterson v. Clark, 166 Pettibone v. Griswold, 185 Phelps V. Butler 165 V. Green, 381 v.Hav, 362 V. Parks, 461 V. Sage, 207 V. Wilson 517 Philadelphia (City of) v. Davis, 567 Philips V. Brydges, 313 Crammond, 319 Phillips V. Beall 362 V. Covert, 117 V. Garth, 537 t). Smitb, 531 V. Thompson, 493 Philpott V. Jones 448 Phipps V. Kelynge, 296 Pibus V. Mitford, 226 Pickens v. Mai-low, 463 Pickett V. Peay, 57, 58 Pickering v. Staples, 517 Pierce v. Alsop, 444 V. Pierce 319 Potter, 195 Pierrepont v. Barnard, 493 Pike V. Armstead, 179 V. Williams 493 Pillsworth V. Hopton, 81 Pirn V. Downing 320 Pimb, Case of, 452 Pimbury v. Elkin, 297 Pincorabe v. Rudge, 523 Pindar j;. Ainsley, 113 Pinero v. Judson, 108 Pioneer v. Long, 448 Pistol V. Riccardson, 667 Pitcher v. Livingston, 529 Pitt V. Jackson, 30 J^lanters' Bank v. AUard, 179 I Tlatt V. Sprigg 264 TABLE OF CASES. XXIX Pleydell v. Pleydell 285 Plomer ii. Long, 448 Plume V. Bone J83 Plunkett V. Holmes, 264 ■ — V. Penson, 164 Podmove v. GuDning 317 Poiadexter D. M'CaunoD 140. 148 Police Jury v. EeeYes 130 Polk V. Paris, 238 V, Plummer, 363 Pollard V. Dwigbt 290 Pomfret v. Eicroft 617 PoDd V. Bergh 270. 421. 569 Pool V. Glover 322 Poole V. Bentley 108 V. Needham, 133 | Pope V, Biggs, 172] Popham V. Bampfield, 129. 134 1 Popkin V. Bumstead 45 Porter v. Bradley 287 V. Cocke, 472 V. Constable, 110 Porterfield v. Clark, 290 Post V. Kearney, 100 Potter !). Gardner, 191 V. Potter, 405. 567 Powell V. Blackctt, 499 fj. Clark, 516' V. Knowler 449 • V. Lyles, 529 V. Monson and B. M. Co., 60. 67. ' 69. 318 Power V. Sheil, 65 Powis V. Corbat, 175 Powsley V. Blackmao 160 Prentiss' Case 385 Presbrey v. WiUiams, 97 Presbyterian Corporation v. "Wallace, 473 Prescott V. Fevers 483. 489. 638 V. Trueman 534, 535 V. EUingwood 207 Preston v. Bawmar, 616 V. Croful, 513 Price V. Jenkin, 613 Prichard i). Atkinson, 479 Prickets V. Dickens, 629 Priest V. Cummings, 36 Prince v. Hazelton 577 Prindle v. Anderson, 117 Prodgers v. Langhara, 511 Proprietors v. Laboree, 538 Provost V. Calder, 519 of Beverley, Case of, 226 Pugb V. Duke of Leeds, 97 V. Good 493 Purefoy «). Rogers, 261. 263, 264 Pyke i. "Williams, 451 Pyott V. Dixwcll, 229 Q Quarrell v. Beckford 174 Quesnel v. "Woodlief, 517 Quigley v. Beatty 447 Quin V. Brittain 174 Quiuby v. Higgina 423 E Rachal v. PLachal 14 Radford v. Radford, 287 Radnor ii. Rotlierham, 43 Eagan's Estate, 383 Ramsay v. Dozier, 70 Randall v. Bookey, 307 V. Cleveland 372 ji.Phillips S76 Randolph v. Carlton, 121 Ranelagh v. Ranelagh, 287, 288 Rantin v. Robertson, 524 Ratcliffu. Davis 141 V. Ratoliff, 423 Ratcliff's Case, 406. 416 Ratlibone v. Dyckman, 605 Ray z). Adams 311 V. Pung, 42 Rayner v. Mowbry, 637 Raynor v. "Wilson, 207 Read v. Livingston, 322 V. Robinson, 601 Redford v. Peggy, 578 Redman v. Sanders 449 Reed v. Landale 142 . V. Morrison, 41. 45, 46 V. Norris, 477 V, Reed 437 Reeks v. Poslethwait 201 Reeve v. Long, 267 Reeves v. Johnson 436 Regina v. Higginson, 666 Rehoboth v. Hunt 386 Reid V. Campbell 40 V. Shergold, 328. 344 Relph V. Gist, 453 Remington v. Cady, 379 Linthicum, 431 Remsen v. Brinckerhoff, 515 Ren V. Bulkeley, 364 Renwick v. Macomb, 197 Kenyan v. Mersereau, 206 Revel V. "Watkinson, 76 Reynish v. Martin 129 Reynolds v. Reynolds, 65 Rhodes v. Rhodes, 494 Ribbans v. Crickett, 448. 614 Rich V. Atwater, 507 Richards v. Bergaveny, 5 V. M'Kie, S22 V. Syms, 206 Richai-dson v. Anthony, 122 V. Dorr 534 Ricker v. Ham, 512 Rickert v. Madeira, 165 Ricks V. Blount, 436 V. Doe 603 XXX TABLE OF CA8ES. Ricks V. 'Williams 600 Riddle v. Biyar 436 Rider v. Wager, 689 Ridgley v. Gary, 328 Ried V. Truelove 335 Rigden w. Vallier, 376 Riggs V. Sally 14, , 15 Right V. Beard UT V. Creber, 217. 285 V. Darby 116, 117, 118 «. Price 575 Righton K.Righton 179 Rigny «. Lovejoy, 198 Ringgold V. Malott, 450 Ripka V. Sergeant, 372 Rising V. Stannard, 116 Roach V. Hammond 600 V. Wadham 827. 353. 356 Roads V. Symmes, 179. 471 Roake v. Denn 335 Roat «. Puflf, 516 Robards v. Jones 294 Roberts v. Anderson, , 613 V. Bozon 150 V. Cooke, 606 V. Dixall 151 V. Dixwell 30. 229. 362 V. Jackson, 414 V. Salisbury, 157 Roberts' WiU, 458. 672 Robertson «. Campbell, 173 V. Kennedy, 505 V. St. John, Ill Robinson v. Bland 479. 572 V. Codman, 46 ii. Cripsey, 148 V. Hardcastle, 297 V. Hoffman, 374 V. Litton, 165 V. Schley, 655 Rockwell V. Bradley, 166. 160 V. Hobby, 154 Rodgers v. Jones 192 Roe V. Ashbumer, 108 V. Griffith 270 V. Hayley, 527 II. JefiEi-ey, 289 V. Jerome, 268 V. Jones, 270 V. PogsoD,. 76 V. Prideaux, 107. 110 V. Tanner, 309 V. TranmaiT, 648 1). Wilkinson, 116 V. York, 497 Roebuck ». Duprey, 629 Rogers' v. De Forest 293 V. Eagle Fire Ins. Co, 309 V. Estate, 360 V. Qrider, 378 V. Jones, 179. 192 V. Pittis, 592 ti. RosB 300 Rolfe i;. Harris, 186 Rolt V. Somerville 78. 80 Romilly v. James 276. 287 Ronald v. Barkley 462 Rondeau v. Wyatt, 495 Rood V. Chapin, 487 Rookt/. Clealand 371 Root V. Stuyvesant 293 Roper V. Radcliffe 589 Rose V. Mynett 490 Rosecerrick {). Barton, 162 Ross II. Close,.. 341 D. Garrison, 378 %. Norvell, 201. 318 t'. Vertner, 326 V. Whitson, 157 Roweu. Teed 495 Rowel V. Walley 76 Rowland v. Rowland 124 Rowton V. Rowton, 46 Roy «. Garnett, 239 Royal V. Epes 294 Royle V. Hamilton, 362. 442 Ruft V. Rutherford S62 Runlet V. Otis 145 Runyan 0. Mersereau 47, 159. 164 Russell «. Austin, 39 V. Blake, 174 . V. Clarke 457 V. Falls, 575 u. Gee,..( 66 V. Gulwell 527 t). Russell, 38. 150, 151 t). Smith, 174 Ruston V. Ruston 596 Rutgers v. Hunter 112 Rutlierford v. Munce, 44 v. Ruff, 321 V. Rutherford, 574 Rutledge v. Smith 317 Ryall V. Rowley, 141 V. Ryall 319 S Sackett V. Sackett, 83 Saflford v. Safford , 66 Sailly V. ClcTeland, 252 Saixbury v. Mathews, 451 Salmon v. Stuyvesant, 292 Sammes v. Payne,. 49 Sammcs' Case, 49 Sampson v. Henry, 122 V. Thornton, 691 Sanders v. Van Sickle & G., 172 Sanderson v. Dobson, 608 Sandford v. Jackson, 58 Sands, (Sir George,) Case of, 462 «. Codwise, 512 ti. Smith, 473 Sandys v. Dixwell 229 Sanford v. Dick 468 TABLB OF CASES. XXXI Sargent v. Towne, 601 Sai'les V. Sailes, 14 Saunders v. Frost, 114: Savage v. Bed 457 Say & Seal v. Jones,. SIT Sayers, Mx parte, 329 Scatterwood v. Edge,. . .'•224. 275. 277 Schermerhorn u Vanderhey den, . . 252 > V. Barhydt, 445 V. Negus 135 Schmidt v. Hoyt, 181 Schoole V. Sail, 195 Schoonmaker v. Sheely, 241 Schnell v. Schroder 194 Schutt V. Large, 600 Scott V. Ahiutt 479 V. Crosdale 41 V. Ffelds,. 149 V. Freeland 476 V. Gallagher, 190 V. Hancock, 478 ■ V. Lenox, 81 V. M'Farland, 198 V. Scholey, 164 V. Tyler, 129. 477 Scrafton v. Quincey, 355 Screven v. Joyner 389 Scribner v. Hickok, 171 Scrugham v. Wood, 502 Seagrave v. Seagi'ave, 55 Seaman v. Hogeboom 516 Seamore v. Harlan 630 Seaton v. Slade, 162 Seddon v. Senate 627 Seghers v. Antheman, 580 Selby «. Asten, 106 Semmes v. Semmes 592 Semple v. Bmd, 156. 182 Serjeant v. Steinberger, 876 Seymour v. Bourgeat, 477 V. Delancy, 493 Seymour's Case, 493 Shackleford v. Hunt, 470 ShaoDon v. Bradstreet, 110 Marselis, 189 .Smith, 222 Sherman v. Cox, 197 Sheridan v. Bean 124 Sherratt v. Bentley, 596 Shields v. Mitchell 503 Shires v, Glascock, 575 Shirley v. Sugar Refinery,. '. 168 jj. Watte 167 Sharpe v. Scarborough, 167 Shaw V. Boyd 67 V. Hearsey, 378 V. Poor, 183 W.White 68 Sheaflfer v. O'Neil 61 Sheets v. Andrews, 476 «. Peabody, 193 Shelburne v. Biddulph, 372 Sheldon v. Dormer 151 Shelley v. Wright, 269 Shelley's Case 221. 225. 227. 405 Shepard v. Philbrick, 171 Shepherd v. M'Evers, 321. 328 V. Shepherd, 522. 524 Sheratz v. Nicodemus, 166 Sherman ti. Angell, 438 Shirras n. Craig 184, 186 Shirtz V. Shirtz 67 Shoemaker J). Walker 37. 45 Short V. Smith 593 Shotwell V. Mott 328 V. Sedam 57 Shrewsbury, (Countess of,) Case 81 Shuee V. Ferguson, 471 Shufelt V. Shufelt 196 Shultz V. Young, 516 Shutet). Harder, 321 Shuttleworth v. Lay cock, 184 Sidney v. Sidney, 32. 64 Siglar V. Van Riper, 61 Silvester v. Wilson, 222 Simmons v. Norton, 79 Simon v. Barber, 664 Simouds v. Catlin, 467 Simpson v. Ammons 159 — V. Ingham 448 V. Margitson, 98 Sims V. Cross, 4S9 Sisson V. Seabury 217. 231 Sites V. Keller, 495 Skinner v. Brewer, 169 Slee 41. Manhattan Company,. .146, 147, 148. 199 Slight V. Wilson 573 Sloan V. Maxwell 666 Sloane v. Cadogan 352 Slover, Hx parte, 494 Small V. Dudley, 320. 405 Smiley v. Wright, 46 Smith V. AngeU 371 V. Bailey, 192 V. Burtis, 638 V. Clay, 199 ' V. Clyfford 86 V. Evans, 516 V. Follansbee 83 V. Goodwin 166 V. Hiscock, 189 V. Johnston, 519 V. Jones, 671 V. Kelley 167 V. Kemper, 307 V. Manning, 166 V. Paxton 488 V. Pendel, 216 ». Ridley , 547 . V. Smith, 380 V. Strong, 630 V. Sumam 592 V. Vincent 207 Smoot V. Lecatt 28. 32 Smyth, Mx parte 110 xxxu TABLE OF CASE8. Snape v. TurtoD 351 Sneed v. Atherton 389 Sneyd v. Sneyd, 38 Snow, Case of, , 275 V. Steph lis, 44 Snowe V. Cutler, 274, 275 Somes V. Brewer, 613 V. Skinner 102 Sondy's Case, 282 South, Sx parte, 321 Soutbby V. Stonehouse, 356 Southworth v. Van Pelt 166 Souverbye v. Arden, 502 Spader v. Davis 457 V. Lawler 184 Sparrow v. Hardcastle, 691 V. Kingman, 37. 270 Spencer t). Champion 467. 462 V. Duke of M., 308 Spencer's Case 525. 627 Sperry v. Pond 128 Spiller V. Spiller 193 Sprague v. Baker, 624 Spraker v. Van Alstyne, 604 Staats V. Ten Eyck 529 Stackpole v. Beaumont, 129 Stafford v. Van Rensselaer, 156 Stagg V. Beekman, 328 Stamp V. Cooke, 637 Standen v. Standen 352 St. Andrew's Church v. Tompkins,. 185 Stanley v. Jones, 489 V. Stanley, 216. 327 V. Twogood, 121 V. Wife 231 Standen v. Chiiatmas, 113 Stansell v. Roberts, 180 Stanton v. Hall, 323 Stanwood v. Dunning, 38 Stark V. Hunton 58 V. Mercer, 197 Stan- V. Ellis, 106 V. Jackson, 113. 123 Start V. Connedy, 318 State of Connecticut ji.Bradish, 456 V. Guilford, 320 V. Nicols, 696 St. Claii- V. Williams 70 Steadman v. Powell, 561 Stearns v. Godfrey, 132 Stems V. Hubbaj-d, 495 Stebbins v. Eddy 517 Stedfast v. NicoU, 267 Stedman v. Fortune, 62 Steele v. Moxley, 343 V. Thompson, 537 Steeve v. Steeve, 317 Steiger v. Hillen 69 Stelle V. Carroll 43 Stent V. M'Leod 396 Stephens v. Stephens, 275. 299 Stephenson v. Heathcote, 446 Sterlington v. Penlington,. ... 28, 29 Sterlington v. Peet, 630 Sterret v. Sleeve, 318 Sterry «;. Arden, 511 Stevens v. Bagwell 489 V. Cooper, 171 • V. Enders 380 V. Griflltti 510 V. Lambard, 627 V. Patterson, 287 ?;. Smith, 78 V. Stevens, 64 Stewai-t V. Careless, 495 V. Doughty, 113. 493 — * — V. Drake 531 V. Gai-nett, 549 v. M'Mai-tin, 61 V. Stewart, 40. 498 V. Waters 47 St. George v. St. George, 309 Stiles V. Murphy, 436 Stilley V. Folger, 66 Stilwell V. Van Epps, 468 Stimpson v. Thomaston, Bank,. ... 37 Stiner v. Cawthora 63 St. John V. Benedict, 493 Stocking V. Faircbild, 146 Stoddard v. Gibbs, 28. 623 Stoever v. Whitman, 488. 571 Stokes V. M'Allister, 62 Stone !). Seymour, 448 Stonehouse v. Evelyn, 319. 575 Stoim V. Mann, 81 Story V. Odin, 517 Stoughton V. Leigh 40. 64 V. Lynch, 507 V. Pasco, 185 Stout V. Jackson, 531 Stovall V. Barnett, 514 Stow D.Tift, 38 V. Wyse, 269 Stowe V. MeseiTe, 180 Stowell V. Tike, 166 Strahan v. Sutton, 58 Stratford v. Twynam 476 Stratton v. Best, 374 V. Giymes, 597 Streatfield v. Streatfield, 228 Streeper v. Eckhart, 458 StricMer v. Todd, 518 Stringer v. New, 407 Strong V. DoUner, 181. 193 V. Shumway, 530 V. Stewart 146. 318 Stroud 1). Bamett, 422. 446 Stukely v. Butler, 135 Sturdevant v. Goodrich, 571 Sturgeon v. Painter, los Stuyvesant v. Hale 183. 189 ' V. The Mayor, 126 Suggett V. Kitchell, 578 Sumner v. Patridge, 49 V. Williams, 630, 631 Surget V. Arighi 524 TABLE OF OASES. XXXUl Sussex V. Temple, Sli Sutton V. Sutton 693 Suydam v. Dequindi'e, 320 Swaine v. Kennerley, 438 V. Ferine,.. 38. 44. 46. 71, 72 V. Roscoe, 238 Swatt V. Patiick, 530 Sweet V. Chase, , 696 II. Horn 137. 193 V. Southcote 190 Sweetapple v. Bindon, 29 Swift V. Cobb, 461 V. Duffield, 257 V. Robei-ts, 376 Switzer v. Skills 320 Sydnor v, Sydnor, 287 Symance v. Tattain, 264 Symonds v. Cudmore, 372. 501 Thayer v. Thayer, 41 TheUuson v. Woodford,. 273. 275. 284, 285. 297. 667, 668 Theobald 41. Dufifoy, 87 Thomas v. HaU, 600 V. Thomas 360 V. Walker, 474 Tabb V. Binford, 523 Tabele v. Tabele, 38. 44 Tabor v. Tabor, 165 Taft V. Morse, 604 Tait V. Crawford, 180. 603 Talbot V. Bedford * 630 V. Braddill, 167. 174 I). Talbot, 585 V. Tipper, 362 Talhnan v. Wood 229 Talmage v. Wilgera 183 Taltarum's Case, 12 Tankerville v. Coke, 362 Tanner v. Elworthy, 390 Tapley v. Labeaume, 630 Tapner v. Merloti 6. 346 Taul V. CampbeU, 378 Taunton v. Costar, 122 Taw V. Bury, 601 Taylor v. Broderick, 69 V. Cole, 122 V. D'Egeville 577 V. Horde,. . . 538. 641, 542, 643 V. Jones, 457 V. Luther, 146 V. M'Crackin 62 V. M'Donald, 179 V. Mixter, 469 V. Morris, 341 V. Shum 527 V. Weld 145. 421 Taylor's Case, 37 Teal V. Awty, 492 Telfair v. Stead's Ex'rs, 455 Temple v. Hawley, 55 V. Logwood, 498 Tenny i;. Agar, 200. 285. 287 Terhoven «. Kerns, 186 Thatcher v. Omaae 650 Thayer v. Cramer, 183 V. Clemence, 524 Vol. TV. C Thompson v. Allanshaw, 395 V. Atherton, 471 V. Bostick, 388 V. Boyd 43 V. Brown, 439. 478 V. Ex'rs of Carmiohael, . . 419 V. Davenport, 145 V. Gibson, 311 V. Gregoiy, 619 V. Leach, 246. 263. 601 V. M'Lean 513 V. MoiTOW 66, 67, 68 V. MuiTay, 340 V. Phillips, 290 Thomborough v. Baker, 165 Thornton v. Heirs of Henry, 493 V. Payne, 105 V. Thornton 357. 378 Thoi-p V. M'Cullum, 476 Threfceld v. Ktzhugh 631 Thunder v. Belcher, 161, 162 Thurston v. Dickerson, 388 Thynne v. Eai-1 Glengall 599 Tice V. Annin 184 Tierman v. Beam, 156 Tieman v. Jackson, 321 Tifit V. WaJkcr, 145 Tilton V. Hunter, 485 TiltoD, 496 Tipper's (Su: Th. Case,) 230. 264 Tippin V. Cosin, 222 Titley v. Welstcholme, 327 Titus V. Neilson 44 Tobey v. Webster, 120. 123 Tobys). Reed, 171 Tod V. Baylor, 66. 68, 69 Toddv. EailofW., 575 V. Stokes, 626 Tollett v. Tollett, 360 Tomlinson v. Dighton, 385 Tomlinson, 586 Tone V. Brace, 621 Took V. Hai-tley, 182 Ton'ey v. Shaw, 409 Torriano v. Young, 84 Town of Bmlington v. Fosby, 437 Townsend v. Bishop of N., 93 V. Houston, 457 V. Morris, 526 V. Windham, 367 Townson v. Tickell, 601. 595 Tracy v. Hereford, 76. 81 • V. LeUiieulier, 224 Trafford v. Ashton, 151 TrammeU v. Nelson, 516 Trasker v. Everhart, 498 XXXIV TABLE OF CASES. Tvevivan v. Lawrence 102 Trevor v. Trevor, 228 Tripp V. Vincent, 149 Trott &, M'B. V. M'Gavoct, 469 Trotter v. Watson 813 Troughton v. Troughton, 184 Ti-onadale v. Daniell 116 Trustees B. Ass. v. Smitii, 664 of Mclntry v. Z. C. & M. Co., 663 Tucker v. Wilson, 142 TunstaU v. Trapper, Ill Turner v. Meymott, 122 Turpin v. Turpin 571 Tuttle V. Jackson, 603 V. Wilson, 11 Twambly v. Hinkey, 634 Twelves v. Williams 158 Twort V. Twort, 386 Tyler v. Lake, 323 Tyrrell v. Moms, 477 V. Mai'sh, S46 V. Roundtree, 468 TyiTell's Case 313 u United States v. Appleton, 618 V. Brown, 363 V. Crosby, 479 V. Harris, 617 V. Kirkpatrick, 448 V. Morrison, 471 Underwood v. Campbell 548 Upham V. Favoui-e 449 Urbana Bank v. Baldwin, 471 University v. Brown, 426 Vail V. Vail, 299 Valliant v. Codemede, 527 Van Alst v. Hunter, 666 Van Bergen v. Demai-est, 201 Van Blaricum v. Teo, 498 Van Buren v. Olmstead, 173 Vance v. Huling, 571 V. M'Nairy 456 Vandever's Appeal, 320 Van Derzee v, Aclom 869 V. Waiis, 141, 142 Vandoren v. Todd, 156. 157 Vanderkarr v. Vanderkarr, 628 Vanderheyden v. Ciandall,. . . 264. 405 Vanduzer v. Vanduzer, 33 Van Dyne v. Thayer, 46 Vane v. LordBamard, 80, 81 Van Epps v. Van Epps, 390 Van Horn v. Harrison 6 Van Home v. Fonda, 389, 390 Van Kleeck v. Dutch Church, 607 Van Ness v. Hyatt, 165 Van Orden v. Van Orden, 57 Van Rensselaer v. Clark, 60S Van Vechten v. Van Vechten,. . . . 281 Vaiick V. Edwards, 270. 538 Vasse V. Comegyi-, 271 Vaughan v. Northrup 432 Vaux V. Henderson,. 637 D.Parke 321 Vawser v. Jeffi'ey, 590 Venable «. Beauchamp, 389 Vernon t). Smith, 627 Vernon's Case, 54 Vignaud v. Tonnacourt, 477 ViUers ». Handley, 371 Viffiers v. Villiers, 94. 315 Vinyor's Case 681 Violett V. Violett, 486. 513 Vose V. Handy, 207 Vyvyan v. Ai'tbiu*, 527 w Wack V. Sorber, 494 Waddington v. Bristow, 493 Wade V. Paget 106 V. Pettibone, 476 Wade's Case, 144 WaitV Wait, 53 Wagstaff ». Smith, 325 Wake V. Wake, 57 Wakeman v. Banks 160 V. Roache 71 Walker v. Pitts 99 V. GiTswold, 44 V. MacHe, 363 V. Preswick, 166 ■ V. Schuyler, 68 V. Snediker, 186 V, Snow, 233 V. Symonds 320 Walker's Case 525 Wall ». Bright^ 60S D.Hill, 66 Wallace v. M'Connell 467 WallU V. Duke of P. 489 V. Lonbat, 490 Walling !). Aiken, 185 Walter v. Munde 341 Walters v. Morgan, 495 Walton V. Cromly, 175 . V. Walton 448. 689. 591 Waneham v. Brown, 361 Ward V. Andi'ews, 124 «. Lenthal, 353, 354 V. WiUai-d 101 Warden v. Adams, 207 Wai-e V. Wcathnall 530 V. Bradford, 459 Waring v. Prigg, 214 V. Smith, 164. 497 «. Waring,. 445 Warner v. Bull 490 TABLE OF OASES. XXXV Warner v. Sweaiingen 606 ' V. Van Alstyne 156 Warley v. Wailey, 445 Warren v. Lynch, 499 Wm-rick V. Hunt 478 Warwick v. Bruce, 455 Wash V. M'Brayer, 487 Waahbume v. Merrills, 146 Wasson v. King, 341 Waterbury v. Stui-tevant, 467 Waters v. Duval 461 V. Stewaj-t, 164 WatMns v. Holmaa, 320. 444 V. Stockett 318 Watson V. Brickwood 445 V. Dickson, 146 V. Hill. 414 ' V. Watson S3 V. Wells 166 Watts «. Ball, 29 V. Brooks, 614 V. Cole, 570 Wawser v. Jeffiey, 689 Way V. Lyon, 604 Wayland v. Wayland, 442 Weakly v. Hall, 489 WeaUt;. Lower, 101. 221. 268 Webb«. Bindon 490 V. Jones, 445 V. Rice, 146 V. Russell 108. 526 V. Townsend 41 Webber v. Shearman 114 Webster v. Oilman, 595 Weedon v. Wallack 489 Weeksw.Hull 98 V. Patten 68 Weems v. McCaughan, 528 Wegg V. Villers, 250 Weir V. Humphi-eys, , 39 Weiser v. Weiser, 621 Welch V. Phillips 616 WeUand Canal «. Hathaway, 270 Wellington v. Wellington 583 Wells «. Beall, 71 V. Middleton, 490 V. Prince 86. 201 V. Smith 129 Wendell v. Crandall 217 V. K H. Bank, 192 Wentz V. Dehayen, 206 West V. Barney, 363 V. Randall, 503 V. Steward, 602 V. West, 569 Weston V. Barker, 320 Wbaler v. Stoiy 66 Whaley v. Drummond, 348 V. Jenkins, 601 Wharf V. Howell 146 Whelpdale v, Cockson, 476 Whetstone v. Bury, 313 Whitbeck v. Cook 635 Whitbread, Ex parte, 164 Whitohui'oh v. Whitchurch, 94 White V. Barford 584 V, British Museum, 576 V. Cassanove, 168 ".Gay, 616 V. Green, 606 V. Patten 102 V. Wagner, 79. 84 V. Warner 606 v. White 76, 77 V. Whitney, 161 V. Williams 157 V. WUlis 41 V. Wilson, 204 Wliite's Lessee v. Sayre, 385 Whiteside v. Mai-tln 488 Whitfield V. Fausset, 270 Whiting V. White 201 V. WiUdns, 5 Whitlook V. Duffield, 102 Whitlock's Case 362 Whittemore v. Bean, 488. 570 Wicks V. Caulk, 606 Wilkes D. Clarke S3 Wigg V. Wigg, 127. 131 Wiggins, Ex parte 476 Wigglesworth tr. DaUison, 75 Wilber v. Payne, 451 Wilcox V. MoriTS, 163 V. Randall, 58 V. Wood 98 Wilder v. Houghton 169. 171 Wild's Case, 231. 567 Wilkes V. Bodington, 91 V. Lyon, 289 Wilkin V. Wilkin 381 Wilkins v. French, 164 V. Vashbinder, 519 Wilkinson d. Adams, 438 ■ V. Gaston 97 V. Palish 382 i V. Sterne 448 V. Windnson, 128 Willan V. Willan 112 WiUard v. Morris 473 V. Twichel, 419. 488 Willett V. Winnell, 146 Williams v. Bosanquet, 148. 175 V. Bennett, 160 V. Jackson, 487 V. Mayor of Baltimore,. . 563 ». Otey, 843 V. Price, 173 V. Robeils 157 V. Thomas, 638 J). Thorn 179 V. Turner 294 Williamson v. Dale 204 V. Champlin 196 V. Farrow, 99 V. Field 214 Willington v. Gale, 164 xxxvx TABLE OF OASES. "Willion V. Berkley, 11 Willis V. Lucas 605 V. SheiTal, 355. 363 V. Watson, 102. 488. 511 V. Willis, 31Y Willoughby v. Willoughby, 89 Wills V. Cowper, 343 v. Stradliug 494 Wilson, Ex parte, 171 V. Forbes, 530 V. Kimbley,. . . ' 149 V. M'Lenaghan, TO ti. Oatman, 66 V. Spencer 532 «.Ti-oup, 151. 164.194. 203. 206 ■ ■ V. Watson, 429 Windham v. Chetwind, 567 Winsor v. Pratt, 691 Winstead v. Winstead, 40, 41 Winter v. Bold 162 V. Lord Anson, 167, 168 Wiscot's Case, 373 Wisemans Case, 547 Witherspoon v. Anderson, 530 Withy V. Mumford, 524, 625 — ; 11. Thui-liston, 362 Witman v. Lex, 563 Wolcott V. Knight, 487 Wolff. Van Nostrand, 181 Womble v. Battle, 156 Wood V. Biu-nham, 229 V. Colvin, 461 V. Dixie, 458 41. Downes, 489 41. Griffith, 488 V. Mann, 203 V. Spai'ks, 341 Woodgate v. TJnwin, 374 Woodhouse v. Meredith 328 Woodhull V. Osborne, 192. 204 Woodliife v. Drmy, 309 Woodi-uff 41. Wickworth 430 V. Brown 69 Woods V. Clute, 64 4). Farmere, 190 V. M'Gavock, 466 Woodward v. Brown 118 4). Halsey 338 Woodbridge v. Wilkins 66 Woolmer's Estate, 606 Wormley v. Wormley, 190. 477 Woraeley v. De Mattes, 513 Wragg V. Compti-oller-General ,158 V. Denham, 174 Wray v. Steele, 319 Wren v. Bradley, 597 Wright V. Atkyns, 317. 600 ■ 41. Bai-low, 347 J). Bates 145, 146 ■ — ' V. Denn, 601 1). Douglass, 323 41. Jennings 66 V. LaJng 448 . V, Morley, 320 V. Pearson, 222. 229. 231 V. Rose, 1 98 V. Trustees of M. E. Church, 637. 562 V. Wakeford, 347 V. Wi-ight, 270 Wrixon v. Cotter 147 Wroth V. Greenwood, 316 Wyckoff 4). Hemsen, 181 Wynn v. WiUiams 91 Wynne v. Alston 166 Wyth V. Blackman 442 Yale 4). Seely, 492 Yarnell, Priscilla E 577 Yates V. Compton 336 York Buildings v. Mackenzie, 475 Young V. Eobinson, 606 Zebach v. Smith 342 Zollicoffer v. Zollicoffcr, 294 PART VI. OF THE LAW COIfCEENmG EEAL PEOPEETY. (COXTIXrED FBOM THE TJIIED VOLUME.) LECTUEE LIV. OF ESTATES IN EEE. The perusal of the former volumes of these Commentaries has prepared the student to enter upon the doctrine of real estates, which is by far the most artificial and complex branch of our municipal law. We commenced with a general view of the international law of modern civilized nations, and en- deavoured to ascertain and assert those great elementary- maxims of universal justice, and those broad principles of national policy and conventional regulation, which constitute the code of public law. The government of the United States next engaged our attention ; and we were led to examine and explain the nature and reason of its powers, as distributed in departments, and the constitutional limits of its sphere of ac- tion, as well as the restrictions imposed upon the original sovereignty of the several members of the Union. We then passed to the sources of the municipal law of the state governments, and treated of personal rights, and the domestic relations which *are naturally the ob- *3 jects of our earliest sympathies, and most permanent at- tachments. Our studies were next directed to the laws of personal property, and of commercial contracts, which fill a wide space in all civil institutions ; for they are of constant application in the extended intercourse and complicated busi- ness of mankind. In all the topics of discussion, we have Vol. IY. 1 2 OP REAL PROPERTY. [Part VI. been, and must continue to be, confined to an elementary view and sweeping outline of the subject; for the plan of these essays will not permit me to descend to that variety and minuteness of detail, which would be oppressive to the general reader, though very proper to guide the practical lawyer through the endless distinctions which accompany and qualify the general principles of law. In treating of the doctrine of real estates, it will be most convenient, as well as most intdligible, to employ the estab- lished technical language to which we are accustomed, and which appertains to the science. Though the law in some of the United States discriminates between an estate in fee and pure allodium, and an estate in fee-simple absolute, these es- tates mean essentially the same thing ; and the terms may be used indiscriminately, to describe the most ample and per- fect interest which can be owned in land. The words seisin and fee, have always been so used in New-York, whether the subject was lands granted before or since the revolution ; though by the act of 1787, the former were declared to be held by the tenure of free and common socage, and the latter in free and pure allodium. ^^ In Connecticut and Virginia, the terms seisin and fee are also applied to all estates of in- heritance, though the lands in those states are declared to be allodial, and free from every vestige of feudal tenure.'' The statute of ISTew-Tork, to which I have alluded, made an unne- cessary distinction in legal phraseology as applied to *3 estates ; and the distinction lay *dormant in the statute, and was utterly lost and confounded in practice. The technical language of the common law was too deeply rooted in our usages and institutions, to be materially affected by legislative enactments. The New-York Revised Statutes have now abolished the distinction, by declaring, that all lands within the state are allodial, and the entire and abso- * See the Reports passim, and particularly 18 Johns. Sep. 14, and 20 ibid. 548. 653. •■ 6 Conn. Rep. 873. 386. 500. 4 3f%mf. 205. Uotes to 2 BlacTcs. Com. 4A. i1. It. 104, by Dr. Tucker. In Michigan, by act of 1821, all persons seised in fee-tail were declaimed to be seised of an aUodial estate. So, also, in Pennsylvania. In Con- necticut, by statute in 1'793, eveiy proprietor of land in fee-simple was declai-ed to have an absolute and dh'ect dominion and property in the same. Lee. LIV.] OF REAL PROPERTY. 3 lute property vested in the owners, according to the nature of their respective estates. All feudal tenures, of every descrip- tion, with their incidents, are abolished, subject, nevertheless, to the liability of escheat, and to any rents or services certain, which had been, or might be, created or reserved.'' And to avoid the inconvenience and absurdity of attempting a change in the technical language of the law, it was further declared, that every estate of inheritance, notwithstanding the abolition of tenure, shoidd continue to be termed a fee-simple, or fee ; and that every such estate, when not defeasible or condi- tional, should be termed a fee-simple absolute, or an absolute fee.b It was undoubtedly proper that the tenure of lands should be uniform, and that estates should not in one part of the country be of the denomination of socage tenures, and in another part allodial ; but it may be doubted, whether there was any wisdom or expediency in the original statute pro- vision, declaring the lands in New-York to be allodial, and abolishing the tenure of free and common socage, since no- thing is gained in effect, and nothing is gained even in legal language, by the alteration. The people of the state, in their right of sovereignty, are still declared to possess the original and ultimate property in and to all lands ; and the right of escheat, and the rents and services already in use, though incident to the tenure of free and common socage, are reserved.<= A fee, in the sense now used in this country, is an estate of an inheritance in law, belonging to the owner, and *transmissible to his heirs."! No estate is deemed a fee, *4: unless it may continue for ever. An estate, whose dura- " THa is also the language of the Revised Constitution of Ifew-Tork, of 1846, Brt. 1. § 12, 13. "■ N. Y. Revised Statutes, vol i. VIS. sec. 3, 4; p. '722. sec. 2. iV. Y. R. S. 3d edit. ToL ii. p. 9. ' N. Y. Revised Statutes, vol. i. 'TIS. sec. 1. 3, 4. Why should we assume the allodial theory, if we must preserve the language of the socage tenm-e ? With the mutato nomine, it is still de tefabula narratur. ^ The -word feudum imports not only heneficiwrn, but beneficivm and hmreditatem. It is an inheritable estate. Feudum idem est quod hoereditas. Zitt. sec. 1. Wriffht on Tenures, 148. Spdimstn Ba,ja,tha,t feodum signifies pwram hereditatem, maximum jus possidendi, et perpetuum rei immobilis dominium. Gloss, voce Feodum. Dr. Webster, the lexicographer, says that/«e, when applied to land, was a contraction 4 OP REAL PROPERTY. [Pai-t VI. tion is circumscribed by the period of one or more lives in being, is merely a freehold, and not a fee. Though the limi- tation be to a man and his heirs during the life or widow- hood of B., it is not an inheritance or fee, because the event must necessarily take place within the period of a life. It is merely a freehold, with a descendible or transmissible quali- ty ; and the heir takes the land as a descendible freehold. =■ The most simple division of estates of inheritance is that mentioned by Sir William Blackstone,'' into inheritances ab- solute or in fee-simple, and inheritances limited ; and these limited fees he subdivides into qualified and conditional fees. This was according to Lord Coke's division, and he deemed it to be the most genuine and apt division of a fee." Mr. Pres- ton, in his Treatise on Estates, "^ has, however, gone into more complex divisions, and he classes fees into fees simple, fees determinable, fees qualified, fees conditional, and fees tail. The subject is full of perplexity, under the distinctions which he has attempted to preserve between fees determinable and fees qualified ; for he admits that every qualified fee is also a determinable fee. I shall, for the sake of brevity and per- spicuity, follow the more comprehensive division of Lord *5 Coke, and divide the subject *into fees simple, fees quali- fied, fees conditional, and fees tail. (1.) Fee-simple is a pure inheritance, clear of any qualifica- tion or condition, and it gives a right of succession to all the heirs generally, under the restriction that they must be of the blood of the first purchaser, and of the blood of the person last seised.^ It is an estate of perpetuity, and confers an un- of the Latin word fides, and the name originated with the Lombai-ds, and it was a grant or loan of land in trust for futui-e services, and not a rewai'd for past services. > 1 Go. 140. b. 10 Co. 98. b. Vaughan's Rep. 201. 2 Blacks. Com. 259. Pnston on Estates, vol. i. 480. According to Lord Oh. J J. Vaughan, (though Sir William Blackstone and Mi-. Preston do not follow his opinion,) the heir takes in the character and title of heii', and not of special occupant. t Ccm. vol. ii. 104. 109. « Go. Litt. 1. b. 10 Go. 97. b. 2 Inst. 333. The Judges, in Plowden, 241. b. 245. b. and Lord Oh. J. Lee, in Mai-tin v. Strachan, 5 Term Rep. 10*7, in noiis, are still more lai-ge in the division of inheritances at common law. They make but two kinds, fees simple absolute, and fees simple, conditional or qualified. J Vol i. 419. e Xt«. sec. 1. 11. Co. Litt.l.h. Fleta, \\h. %. c. %. Rlowd. 551. a. But the Lee LI v.] OF REAL PROPERTY. 6 limited power of alienation, and no person is capable of having a greater estate or interest in land. Every restraint upon alienation is inconsistent with the nature of a fee-simple, and if a pai'tial restraint be annexed to a fee, as a condition not to alien for a limited time, or not to a particular person, it ceases to be a fee-simple, and becomes a fee subject to a condition. The word heirs is, at common law, necessary to be used, if the estate is to be created by deed." The limitation to the heirs must be made in direct terms, or by immediate refer- ence, and no substituted words of perpetuity, except in special cases, will be allowed to supply their place, or make an estate of inheritance of feoffments and grants.'' *The *6 location of the word in any particular part of the grant is not essential ; for a grant of a rent to A., and that he and his heirs should distrain for it, will pass a fee.<= The general rule is applicable to all conveyances governed by the rules of the common law ; for though prior to the statute of uses, the fee, in the view of a court of chancery, passed by reason of above restriction has been essentially changed in this countiy, as we shall see here- after, when we come to treat of the law of descent. » A gi-ant to a man and his right heirs is the same as a grant to a man and his heirs. Co. Lilt. 22. b ; but Lord Coke, in Go. Lilt. 8. b, says that a grant to a man and his heir, in the singular number, conveys only an estate for life, because the heir is but one. This is a strange reason to be given, under a system of law which prefers males to females in the com-se of descent, and in which the right of primo- geniture among the males is unrelentingly enforced. Mr. Hai'grave, note 45, to Co. Lift. 8. b, and note 11 to Co. Lift. 494, questions the doctrine, and he says there are authorities to show that the word heii-, in a deed, as well as in a will, may be taken for nomen eollectivum, and stand for heirs in general. The doctrine of Coke was very vigorously attacked by Lord Ch. J. Eyre, near a century ago, in Dubber v. TroUope, Arab. 453 ; and Lord Coke himself showed in Co. Litt. 22. a, that an estate tail, with the word heir in the singular number, was created and allowed in 39 Ass. pi. 20. See, also, Richards v. Lady Bergavenny, 2 Vern. 324. Pansey v. Lowball, Styles, 249. Whiting v. Wilkins, 1 Bulst. 219. Blaokburne V. Stables, 2 Ves. & Bea. 371. Ifotwithstanding all this authority in opposition to the rule as stated by Lord Coke, and the unintelligible reason assigned for it, Mr. Preston states the rule as still the existing law. Treatise on Estates, vol. ii. 8 . In the case of King's Heii's v. King's Adm. 12 Ohio, 412, a case distinguished for the most learned and elaborate discussion, the com't held that the word heir in the singular number in a will, was to be construed the same as the word heirs. ■> Hit. sec. 1. ' Lord Coke, in 3 Bulst. 128. 6 OF EEAL PROPERTY. [Part VI. the consideration, in a bargain and sale, or covenant to stand seised to uses, without any express limitation to the heirs ; yet, when uses were by statute transferred into possession, and became legal estates, they were subjected to the scrupu- lous and technical rules of the courts of law. The example at law was followed by the courts of equity, and the same legal construction applied by them to a conveyance to uses.^ If a man purchases lands to himself for ever, or to him and to his assigns for ever, he takes but an %state for life. Though the intent of the parties be ever so clearly expressed in the deed, a fee cannot pass without the word heirs.'' The rule was founded originally on principles of feudal policy, which no longer exist, and it has now become entirely technical. A feudal grant was, stricti juris, made in consideration of the personal abilities of the feudatory, and his competency to ren- der military service ; and it was consequently coniined to the life of the donee, unless there was an express provision that it should go to his heirs. = But the rule has for a long time been controlled by a more liberal policy, and it is counteracted in practice by other rules, equally artificial in their nature, and technical in their application. It does not apply to conveyances by fine, when the fine is in the nature of an action, as the fine sur conu- sance de droit, on account of the eificacy and solemnity *7 *of the conveyance, and because a prior feoffment in fee is implied. ii Nor does the rule apply to a common re- covery, which is in legal contemplation a real action ; for the recoverer takes a fee by fiction of law, according to the ex- tent of his former estate, of which he is supposed to be dis- seised." It does not apply to a release by way of extinguish- ment, as of a common of pasture ;*' nor to a partition between joint tenants, coparceners, and tenants in common ; nor to re- leases of right to land by way of discharge or passing the • 1 Co. 81. h. 100. b. Gilbert on Uses and Ikusts, by Sugden, 29. 148. Tap- ner v. Merlot, Wines' Rep. 111. Van Horn v. Hanison, 1 Dal. Rep. 137. >> Holt, Ch. J., 6 Mod. Rep. 109. « 2 Blacks. Com. ICY, 108. ^ Co. lAtt. 9. b. Preston on Estates, vol. ii. 51, 52. » Preston on Estates, vol. ii. 51, 52. 2 Blacks. Com. 3 5 7. f Co. Litt. 280. a. Lee LIV.] OF REAL PROPERTY. 7 right, by one joint-tenant or coparcener to another. In ta- king a distinct interest in his separate part of the land, the releasee takes the like estate in quantity which he had before in common.^ Grants to corporations aggregate pass the fee without the words heirs or successors, because in judgment of law a corporation never dies, and is immortal by means of perpetual succession.i' In wills, a fee wiU also pass without the word heirs, if the intention to pass a fee can be clearly ascertained from the will, or a fee be necessary to sustain the charge or trust created by the will.<= It is likewise under- stood, that a court of equity will supply the omission of words of inheritance; and in contracts to convey, it will sustain the right of the party to call for a conveyance in fee, when it appears to have been the intention of the contract to convey a fee.d Thus stands the law of the land, without the aid of legisla- tive provision. But in this country, the statute law of some of the states has abolished the inflexible rule of the common law, which had long survived the reason of its introduc- tion, and has rendered the insertion of the word *heirs *8 no longer necessary. In Virginia, Kentucky, Mississippi, Missouri, Alabama and New-York,« the word heirs, or other words of inheritance, are no longer requisite, to create or con- vey an estate in fee ; and every grant or devise of real estate made subsequent to the statute, passes all the interest of the grantor or testator, unless the intent to pass a less estate or interest appears in express terms or by necessary implication.^ The statute of ISTew-York also adds, for greater caution, a de- claratory provision, that in the construction of every instru- » Co. lAtt. 9. b. 273. b. Preston, supra, 5. 55—59. ^ Co. lAit. 9. b. « Ibid. Holdfast T. Marten, 1 Term Rep. 411. Fletcher v. Smiton, 2 ibid. 656. Ifewkii'k V. Newkii'k, 2 Caines' Rep. 345. Dane's Abr. vol. iv. c. 128. ^ Comyns' Dig. tit. Chancery, 2.T. 1. Defraunce v. Brooks, 8 Watts S Serg. 67. ^ Statute of Virginia, December 13th, 1792. Statute of Kentucky, Decem- ber 19th, 1797. Statute of Alabama, 1812. New-York Revised Statutes, vol. i. 748. sec. 1, 2. OriffitKs Law Register. R. C. of Mississippi, 1824. R. S. of Missouri, 1835. ' In Tllinois, words of pei"petuity or inheritance are still essential to create a fee, and the same general rale is implied to a devise. Jones v. Bramblet, 1 Scammon's Rep. 276. 8 OF REAL PROPERTY. [Part Y t ment creating or conveying any estate or interest in land,, it shall be the duty of the courts to carry into effect the inten- tion of the parties, so far as sneb intention can be collected from the whole instrument, and is consistent with the rules of law. Some of the other states, as Wew-Jersey, North Caro- lina, and Tennessee, have confined the provision to wills, and left deeds to stand upon the settled rales and construction of the common law. They have declared by statute, that a de- vise of lands shall be construed tcT convey a fee-simple, unless it appears, by express words or manifest intent, that a lesser estate was intended." *9 *(2.) A qualified, hise or determinable fee, (for I shaU use the words promiscuously,) is an interest which may continue for ever, but the estate is liable to be determined without the aid of a conveyance, by some act or event, cir- cumscribing its continuance or extent. Though the object on which it rests for perpetuity may be transitory or perishable, yet such estates are deemed fees, because, it is said, they have a possibility of enduring for ever. A limitation to a man and his heirs, so long as A. shall have heirs of his body ; or to a man and his heirs, tenants of the manor of Dale ; or till the marriage of B: ; or so long as St. Paul's church shall stand, or a tree shall stand, are a few of the many instances given in the books, in which the estate will descend to the' heirs, but continue no longer than the period mentioned in the respective limitations, or when the qualification annexed to it is at an end.'' If the event marked out as the boundary • R..8. iV. J. ISiY, p. 342. Mr. Humphreys, m his Essay on Real Property, and' Outlines of a Code, 235, firat edition, hae proposed the same refomi, of rendering- tile T7ord heirs no longer necessaiy in conveyances in fee ; and the American lawyer cannot but be forcibly sti'ucli, on the perusal of that work, equally remark- able for profound knowledge and condensed thought, with the analogy between his proposed improvements and the actual condition of the juiispradence of this countiy. But I think it very probable that the abolition of the rule I'equu'ing the word heu's to- pass by a fi'ee deed, will engender litigation. There was none under the operation of the rule. The intention of the grantor was never defeated by the application of it. He always used it when he intended a fee. T'echnical and artificial rules of long stand- mg, and hoary with age, conduce exceedingly to certainty and fixedness in the law, and? are infinitely preferable, on that account, to rules subject to be bent every way by loose latitudinai-y reasoning. A lawyer always speaks with confidence on questions of sight under a deed, and generally circumspectly as to questions of right under a will.. '> JPlcmd.5&1. 3. 10. Co. 97. b. 11 Co. 49, a. lLd.Raym.S26. Powells J;, ia Lee. LIV.] OF REAL PROPERTY. 9' to the time of the continuance of the estate, becomes impos- sible, as by the death of B. before his marriage, the estate then ceases to be determinable, and changes into a simple and absolute fee; but until that time, the estate is in the grantee, subject only to a possibility of reverter in the grantor. It is the uncertainty of the event, and the possibility that the fee may last for ever, that renders the estate a fee, and not merely a freehold. All fees liable to be defeated by an exe- cutoxy devise, are determinable fees, and continue descendi- ble inheritances until they are discharged from the deter- minable c[uality annexed to them, either by the happening of the event, or a release. =>• These qualified or determinable fees are likewise termed base fees, because their duration depends upon the occurrence of collateral circumstances, which qualify and debase the purity of the title. A tenant in tail may, by a bargain and sale, lease *and *10 release, or covenant to stand seised, create a base fee, which will not determine until the issue in tail enters.'' If the owner of a determinable fee conveys in fee, the de- terminable quality of the estate follows the transfer ; and this is founded upon the sound maxim of the common law, that nemo potest plus jwris in alium transferre quam ipse habet.. Idle T. Coote, 2 Ld. Raym. 1148. 2 Blacks. Com. 109, Preston on Estates, vol. i. 431, 4a2, 433. 481, 482, 483. • Goodright T. Searle, 2 Wils. Rep. 29. ■> Machell t. Clarke, 2 Ld. Raym. IIS. The apprentice of the Middle Temple, in the course of his learned and succesaful argument in Walsingham's case, (P?oro- den, 54'7. 557,) stated the distinction which has been folio-wed by Mr. Preston, be- tween a determinable and a base fee, and he gives the following obscure explana- tion of the latter : " A. has a good and absolute estate in fee-simple, and B. ha» another estate of fee in the same land, which shall descend from heir to heir, but which is base in respect of the fee of A., and not of absolute perpetuity, as the fee of A. is." He then gives the following example, by way of illustration : " If a man mak& a gift in tail, and Hie donee be attamted of treason, the king shall have th& land as long as there are any heirs of the body of the donee ; and in that case, there are two fees, for the donor has his ancient fee-simple, and the crown another fee in the same land, which is but a base fee, for it is younger in time than the fee of the donor, and if the heirs of the body of the donee fail, the fee is gone, whereas the fee of the donor never perishes : it is pm-e and perpetual, while the other is but base and transitory." Mr. Preston, in his Treatise on Estates, vol. i. 460. 468, de- fines a qualified fee to be an interest given to a man and to certain of his heirs only, as to a man and his heirs on the part of his father ; but this is termed in Plowden, 241. b, a fee-simple conditional 10 OF REAL PROPERTT. [Pai-t VI. Within that rule, the proprietor of a qualified fee has the same rights and privileges over the estate as if he were a tenant in fee-simple ; all the estate is in the feoffee, notwith- standing the qualification, and no remainder can be limited over, nor any reversion expectant thereon, other than the pos- sibility of a reverter when the estate determines, or the quali- fication ceases.^ *11 *(3.) A oondiiionalfee is one which restrains the fee to some particular heirs, exclusive of others, as to the heirs of a man's body, or to the heirs male of his body.'' This was at the common law construed to be a fee-simple on condition that the grantee had the heirs prescribed. If the grantee died without such issue, the lands reverted to the grantor. But if he had the specified issue, the condition was supposed to be performed, and the estate became absolute, so far as to enable the grantee to alien the land, and bar not only his own issue, but the possibility of a reverter. By having issue the condition was performed for three purposes ; to alien, to for- feit, and to charge.i^ Even before issue had, the tenant of the fee-simple conditional might by feoffment have bound the issue of his body. But there still existed the possibility of a reverter in the donor. After issue born, the tenant could also bar the donor and his heirs of that possibility of a reversion, but the course of descent was not altered by having issue."! » 10 Oo. 9Y. b. Preston on Estates, vol. i. 484. According to Lord Ch. J. Vaughan, the reverter in this case is a quasi reversion, and he did not see why a I'emaindei- might not be granted out of such a qualified fee. Gardner v. Shelden, Vaughan, 269. But the rule is probably otherwise, and on a fee-simple conditional at common law, a remainder could not be created, for the fee was the whole estate. There was only a possibility, or right of reverter, left in the donor, and that was not an actual estate ; Lee, Ch. J., in Mai-tin v. Straohan, 5 Term Rep. 107, note ; and yet Mr. Preston [on Estates, vol. ii. 353,) concludes, that limitations of r.emamders, after ■qualified or limited estates of inheiitance, were in use at common law. >> Fleta, lib. 3. c. 3. sec. 5. 2 Blacks. Oom. 110. '■ In Izard v. Izard, 1 Bailey's Eg. R. S. 0. 228, the rule was recognised that lands held in fee-simple conditional, were bound, after the bii'th of issue, by the lien of a judgment or decree, against the tenant, in bar of the right of the issue, to take performam doni. And in Pearse v. KilUan, 1 McMullan, 231, it was held that the reversion or remainder expectant on the fee-sknple conditional, or the possibility of reverter may be released, so as to make the estate of the tenant of the fee condi- tional, an absolute fee. <• Bracton, lib. 2. c.&. IT. b. Oo. Litt. 19. a. 2 Inst. 333, Lee. LrV.] OF REAL PROPERTT. H The common law provided tlie formedon in reverter, as the remedial writ for the grantor and his heirs, after the determi- nation of the gift of the conditional fee, by the failure of heirs. ^ Before the statute de donis, a fee on condition that the donee had issue of his body, was in fact a fee-tail, and the limitation was not effaced by the birth of issue. If the donee died without having aliened in fee, and without leaving issue general or special, according to the extent of the gift, the land reverted again to the donor. But the tenant, after the birth of issue, could and did alien in fee ; and this alleged breach of the condition of the grant, was the occasion of the statute of "Westminster 2, 13 Edw. I., c. 1, commonly called the statute de donis, which recited the evasion *of the con- *12 dition of the gift by this subtle construction, and conse- quent alienation, going to defeat the intention of the donor. . The statute, accordingly, under that pretence, preserved the estate for the benefit of the issue of the grantee, and the re- version for the benefit of the donor and his heirs, by declaring that the will of the donor, according to the form of the deed manifestly expressed, should be observed, and that the grantee should have no power to alien the land. If deprived the owner of the feud of his ancient power of alienation, upon his having issue, or performing the condition, and the donor's possibility or right of reverter was turned into a reversion; The feud was to remain under the issue according to the form of the gift ; and if such issue failed, then the land was to revert to the grantor or his heirs ; and this is freqixently considered to have been the origin of estates tail, though the statute rather gave perpetuity, than originally created that ancient kind of feudal estate.'' (4.) Of fees tail. The statute de donis took away the power of alienation on • F. n:b. 219. ^ Sii' Martin Wright, {Int. to Tenures, 189,) observes, that the statute de donis did not create any new fee, aut re aut nomine. It only sevei'ed the limitation from the condition of the gift, according to the manifest intent of it, and restored the effect of the limitation to the issue, and the rcTereion, as the proper effect of the condition to the donor. The fee-simple conditional at common law, was declared, in the case of Willion v. Berkley, Plowd. 239, to be the same as the estate tail un- der the statute de donis. 12 OF REAL PROPERTY. [Pai-t VL the birth of issue, and the courts of justice considered that the estate was divided into a particular estate in the donee, and a reversion in the donor. Where the donee had a fee-simple before, he had by the statute what was denominated an estate tail ; and where the donor had but a bare possibility before, he had, by construction of the statute, a reversion or fee- simple expectant iipon the estate tail.^ Under this division of the estate, the donee could not bar or charge his issue, nor for default of issue, the donor or .his heirs, and a perpetuity was created. The tenant in tail was not chargeable with waste, and the wife had her dower and the husband his cur- tesy in the estate tail. The inconvenience of these fet- *13 tered inheritances is as strongly described, and *the policy of them as plainly condemned, in the writings of Lord Bacon and Lord Coke, as by subsequent authors,'' and the true policy of the common law is deemed to have been overthrown by the statute de donis establishing those perpe- tuities. Attempts were frequently made in Parliament to get rid of them, but the bills introduced for that purpose (and which Lord Coke says he had seen) were uniformly rejected by the feudal aristocracy, because estates tail were not liable to forfeiture for treason or felony, nor chargeable with the debts of the ancestor, nor bound by alienation. They were very conducive to the security and power of the great landed proprietors and their families, but very injurious to the in- dustry and commerce of the nation. It was not until Talta- rumh case, 12 Edw. lY., that relief was obtained against this great national grievance, and it was given by a bold and un- exampled stretch of the power of judicial legislation. The judges, upon consultation, resolved, that an estate tail might be cut off and barred by a common recovery, and that by reason of the intended recompense, the common recovery was not within the restraint of the statute de donis.'^ These re- * Entails are generally supposed to have been introduced by the Normans, but they -were frequent in the Saxon times, and they existed in the Roman law — volo meas cedes manere firmas meis filiis el nepotibus, in universiim tempus. Dig. 31. ITS. ^ Lord Bacon on the Use of the Law. Co. iJW. 19, b. 6 Co. 40. Lord Coke's Dedication of his Reports to the Reader, 6. » Oo. Litt. 19. b. Mildmay's case, 6 Co. 40. Mary Portingtou's case, 10 Co, 35. Lee. LIV.] OF REAL PBOPERTY. 18 coveries were afterwards taken notice of, and indirectly sanc- tioned, by several acts of Parliament, and have, ever since their application to estates tail, been held as one of the lawful and established assurances of the realm. They are now con- sidered simply in the light of a conveyance on record, in- vented to give a tenant in tail an absolute power to dispose of his estate, as if he were a tenant in fee-simple ; and the es- tates tail in England, for a long time past, have been reduced to almost the same state, even before issue born, as conditional fees were at common law, after the condition was performed by the birth of issue. A common recovery removes all limi- tations upon an estate tail, and an absolute, unfettered, *pure fee-simple, passes as the legal effect and opera- *14 tion of a common recovery. It is the only mode of con- veyance in England, by which a tenant in tail can effectually dock the entail. If he conveys by deed, he conveys only a base or voidable fee, and he will not exclude his heirs per formam doni. Even by fine, he only bars his issue, and not subsequent remainders. He conveys only a base or qualified fee, though the remainder-man will be barred by limitation of time, as a stranger would upon a fine levied with proclama- tions. It is the common recovery only that passes an absolute title.^ In Mary PorUngtorCs cobse^ Lord Coke says, that the judgment in 12 Edw. lY., was no new invention, but ap- proved of by the resolutions of the sages of the law ; who, " perceiving what contentions and mischiefs had crept in, to the disquiet of the law, by these fettered inheritances, upon consideration of the act, and of the former exposition of it by the sages of the law, always after the said act, gave judg- ment that in the case of a common recovery, where there was a judgment against the tenant in tail, and another judgment against the vouchee to have in value, the estate should be barred." Estates tail were introduced into this country with the other * Martin v. Strachan, 5 Term Rep. 107, note. This case was affirmed in the House of Lords. Willed Rep. 444. By the statute of 3 and 4 Wm. IV., c. "74, conveyances in England by fine and recoveiy are abolished, and all warranties of lands entered into by tenants in tail are declared void against the issue in tail, and estates tail can now only be baired by a deed enrolled under the statute. •- 10 Co, 38. 14 OF REAL PROPERTY. [Part VI. parts of the EnglisL. jurisprudence," and they subsisted in full force before our revolution, subject equally to the power of being barred by a fine or conamon recovery.'' But the doctrine of estates tail, and the complex and multifarious learning connected with it, have become quite obsolete in most parts of the United States. In Yirginia, estates tail were abolished as early as 1116 ; in New-Jersey, estates tail were not abolished until 1820 ; and in New- York, as early as *15 1782, and all estates tail were turned into estates in *fee- simple absolute." So, in North Carolina, Kentucky, Tennessee and Georgia, estates tail have been abolished, by being converted by statute into estates in fee-simple.'^ In the states of South Carolina and Louisiana, they do not appear to be known to their laws, or ever to have existed ; but in sev- eral of the other states, they are partially tolerated, and exist in a qualified degree.^ " In the Pennsylvania charter of 1681, it was expressly declared, that estates of inheritance might be granted in fee-simple, or in fee-tail, the statute de donia notwithstanding. '' In "Virginia, a law was passed, in 1705, to take away from the courts the power of defeating entails. JkcJcer's Zife of Jefferson, vol. i. 21. « Act of Virginia, of "Ith October, 1776. Acts of Assembly of New-Jersey, 1784, 1786 and 1820. R. S. N. J, 1847. Doe v. Robinson, 2 South, 713. Den V. Spachius, 1 Harrison's Rep. 172. Laws of New-York, sess. 6, c. 2, sess. 9. t. 12. New-York Revised Statutes, vol. i. 722, sec. 8. ^ Act of North Carolina, 1784. Act of Kentucky, 1796. Griffith's Reg. under the appropriate heads, Ko. 8. Rrince's Dig. of the Laws of Georgia, 1837, p. 231, 246. • The Civil Code of Louisiana, art. 1507, prohibits substitutions and fidei com- missa. It is more rigorous than the code Napoleon, for it prohibits substitutions in favom- of the grandchildren of the testator, or of the children of his brothers or sisters, and even when the provisions of the will do not tend to alter the course of descents, and whether the substitution be conditional or unconditional. The persons to take must be in esse and designated by the will. The testator cannot control property beyond one life. He may name childi-en living, and provide that, after the death of their mother, they shall take the property. Code, ai-t. 1509. Rachal v. Rachal, 1 Rob. Loui. Rep. 116. In New-Hampshii-e, estates tail are said to be retained, but I should have inferred from statutes passed in 1789. 1791 and 1792, respecting conveyances by deed and by will, and the com'se of descents, that estates tail were essentially abolished. But it was not so, for by statute in 1837, any tenant in tail, in New-Hampshire, may convey by deed his estate, and bar all remainders and reversions as effectually as by a fine or common recoveiy. So, a. tenant for life, with the person having a vested remainder in tail, may by deed convey the whole estate, as if the remainder was in fee-simple. In Alabama and Mississippi, a man may convey or devise land to a succession of donees then living, Leo. LIT.] OP REAL PROPERTY. 15 Conditional fees at common law, as known and defined prior to the statute de donis^ have generally partaken of the fate of estates in fee tail, and have not been revived in this country. Executory limitations under the restrictions requi- and to the heirs of the remainder-man. Statute of Alabama, 1812. In Connecticut, (Kirby's Rep. 118. 176, I'/l. Hamilton v. Hempstead, 3 Day, 832. Swifts Big. vol. 1. 79. Allyn v. Mather, 9 Conn. Rep. 114,) and in Vermont, Ohio, Illinois, and Missouri, if an estate tail be created, the first donee takes a life estate, and a fee- simple vest in the heirs, or person having the remainder after the life estate of the grantee, or first donee in tail. Revised Statutes of Vermont, 1839, p. 310. Statutes of Ohio, 1831. Statutes of Connecticut, \1%i. Ibid. l%il. iftid. 1838. Revised Laws of Illinois, 1833. Revised Statutes of Missouri, 1835. This is also the case in New-Jersey, by the act of 1820. Mmer's Dig. 130. The estate on the death of the tenant for life vests in his children, though difficulty has been suggested to exist if the grantee has no ohildi'en, or then- issue. Griffith's Reg. The tenant in tail in those states, is in reahty but a tenant for life, -without the power to do any act to defeat or incumber the estate in the hands of the heir or person in remainder. In Indiana a person may be seised of an estate tail, by devise or grant, but he shall be deemed seised in fee after the second generation. Revised Statutes of Indiana, 1838, p. 238. In Connecticut there may be a special tenancy in tail, as in the case of a devise to A. and to his issue by a pai'ticular wife. The estate tail, in the hands of the issue in tail, as well special as general issue, male or female, is enlarged into an estate in fee-simple. In Rhode Island, estates tail may be created by deed, but not by wiU, longer than to the children of the devisee, and they may be barred by deed or will. Estates tail exist in Maine, Massachusetts, Delaware and Pennsylvania, subject, nevertheless, to be baiTed by deed, and by common recovery, and in two of these states by will, and they are chargeable with the debts of the tenant. Dane's Abr. vol. iv. 621. Lithgow v. Kavenah, 9 Mass. Rep. 167. 170. 173. Nightingale v. Bui-rell, 15 Pick. 104. Corbin v. Healey, 20 Fink, 514. Statutes of Mass. 1791, a 60. Mass. Revised Statutes, 1836, part 2, c. 60. Jackson on Real Actions, 299. American Jurist, No. 4, p. 392. Purdon's Dig. 353. Riggs v. Sally, Maine Rep. vol xv. 408. A fee-simple passes on a judicial sale to satisfy a charge. This is so decided in one of those states, and the same consequence must follow in all of them, when the land is chargeable with debt. Gause v. Wiley, 4 Serg. & Rawle, 509. In Mai-yland, estates tail general, created since the act of 1786, ai-e now understood to be virtually abolished, since they descend, and can be conveyed, and are devisable, and chai'geable with debts, in the same manner as estates in fee-simple. Docking estates tail by common recoveiy had been previously abolished by statute in 1782, and they were to be conveyed as if they were in fee. It is equally understood that estates tail special are not affected by the act of 1786, and therefore the decisions prior to Newton v. Griffith, (1 Harris & Gill, 111,) would seem to apply to that species of estates tail. Such estates may be baiTed by deed as well as by common i-ecoveiy ; and they are chargeable with debts by mortgage, and not otherwise ; and they are not devisa- ble ; and if the tenant dies seised, they go to the issue, but not to collaterals. Sta- tutes of 1782 and 1799. 3 Harris & McHenry, 244. 1 Harris & Johns. 244. 465. 2 ibid. 69. 281. 314. 3 ibid. 302. Newton v. Griffith, Raymond's Digested Chan- cery Cases, 115. 16 OF REAL PROPERTY. [Pan-t VI. site to prevent perpetuities, and estates in fee upon condition, other than those technical conditional fees of which we are speaking, are familiar to our American jurisprudence, as will be more fully shown in a subsequent lecture. In Connecticut, the doctrine of conditional fees, so far as they are a species of entails, restraining the descent to some particular heirs in ex- clusion of others, have never been recognised or adopted.^ These conditional fees are likewise understood to be abolished in Virginia, by a statute which to^ok effect in 1787 ; and this I apprehend to be the better construction of the statute law of ]^ew-York in respect to these common law entailments ; for the owner can alienate or devise them, as well as an absolute estate in fee. By the act of 178Y,'' every freeholder was au- thorized to give or sell at his pleasure any lands whereof he was seised in fee-simple ; and by the act of 1813,= every per- son having an estate of inheritance, was enabled to give or devise the same ; and by the newEevised Statutes,^ every per- son capable of holding lands, and seised of or entitled to any estate or interest therein, may alien the same. These *17 qualified fees are estates of inheritance* in fee-simple, though not in fee simple absolute ;<'- and they would seem to come within the letter and spirit of the statute pro- visions in New-Tork. In South Carolina, fees conditional at common law exist, and fees tail proper have never existed. The first donee takes an estate for life, if he has no issue : but if he has issue, the condition of the grant is performed, and he can alien the land in fee-simple.^ The general policy of this country does not encourage re- straints upon the power of alienation of land ; and the Nerua- York Revised Statutes have considerably abridged the pre- • Kirhy's Hep. 118. 176. 3 Say, 339. Swift's Digest, vol i. 79. ^ Lams of New-Yorh, sess. 10. c. 36. •= Lcaos of New-York, sess. 36. c. 23. ^ New-Yorh Revised Statutes, rol. i. 719. sec. 10. • Mtt. sec. 13. Co. Litt. 19. u. ' 2 Bay, 897. 1 M'Oord's Oh. Rep. 91. 2 ibid. 324. 32«. 328. 2 Bailey, 231. The creation of a fee-simple coniiitioBal, passes tbe -whole estate to the tenant in fee. The existing possibility of a reverter is held not to be an estate, and neither the subject of inheritance nor devise. The fee conditional in the heir at law can- not merge in the possibility of reverter, if they should both meet in the same person. 1 Hill's S. 0. Oil. Rep. 276. Lee. LIV.] OF EEAL PROPERTY. 17 vailing extent ot executory limitation. The capacity of es- tates tail in admitting remainders over, and of limitations to that line of heirs which family interest or policy might dic- tate, renders them still beneficial in the settlement of English estates. But the tenant in tail can alien his lands, and the estate tail can only be rendered inalienable during the settle- ment on the tenant for life, and the infancy of the remainder- man in tail. Executory limitations went further, and allowed the party to introduce at his pleasure any number of lives, on which the contingency of the executory estate depended, pro- vided they were lives in being at the creation of the estate ; and to limit the remainder to them in succession, and for twenty-one years afterwards.^ This was the rule settled by Lord Chancellor Nottingham, in the great case of the Duke of Norfolk ;'• and the decision in that case has been acqui- esced in uniformly since that time, and every attempt to fetter estates by a more definite extent of *limitation, or *18 a more subtle aim at a perpetuity, has been defeated."^ But the power of protracting the period of alienation has been restricted, in New-York, to two successive estates for life, limited to the lives of two persons in being at the creation of the estate. "J The English law of entail is so greatly mitigated, as to re- move the most serious inconveniences that attend that species of estates ; and it is the opinion of the most experienced Eng- lish property lawyers, that the law of entail is a happy me- dium between the want of any power, and an unlimited power, over the estate. It accommodates itself admirably to the wants and convenience of the father who is a tenant for life, and' of the son who is tenant in tail, by the capacity which they have, by their joint act, of opening the entail, and re-settling the estate from time to time, as family exigencies may require. The privileges of a tenant in tail are very ex- • Twisden, J., 1 Sid. 451. In Bengough v. Edridge, 1 Simons, 173. 267, a limitation was made to depend on an absolute teim of twenty-one years after twenty-eight lives in being at the testator's death 1 '' 3 Oases in Chancery, 1. ' Duke of Mai'lborough v. Earl Godolphin, 1 Eden^s Rep. 404. Long v. Blackall, 7 Term Rep. 100. ^ N. T. Revised Statutes, vol. i. 723, 724. sec. 17. 19. ToL. lY. 2 18 OF REAL PROPERTY. [Part VI. tensive. He not only can alienate the fee, but he may com- mit any kind of waste at his pleasure.^' And yet, with a strange kind of inconsistency in the law, he is not, any more than a tenant for life, bound to discharge incumbrances on the estate. He is not obliged even to keep down the interest on a mortgage, as a tenant for life is bound to do. K, how- ever, he discharges incumbrances or the interest, he is pre- sumed to do it in favour of the inheritance ; for he might ac- quire the absolute ownership by, a recovery, and it belongs to his representatives to disprove the presumption.'' On the other hand, the tenant cannot affect the issue in tail, or those in remainder or reversion, by his forfeitures or engage- "19 ments. They are *not subject to any of the debts or in- cumbrances created by the tenant in tail, unless he comes within the operation of the bankrupt law, or creates the mortgage by fine.'' Entails, under certain modifications, have been retained in various parts of the United States, with increased power over the property, and greater facility of alienation. The desire to preserve and perpetuate family influence and property is very prevalent with mankind, and is deeply seated in the affections. "^ This propensity is attended with many beneficial effects. But if the doctrine of entails be calculated to stimulate exer- tion and economy, by the hope of placing the fruits of talent • Moseley, 224. Gases temp. Talbot, 16. ' Lord Talbot, in Chaplin v. Chaplin, 2 P. Wms. 235. Amesbury v. Brown, 1 Vesey, 411. Eai-1 of BuckiDghamshire t. Hobart, 3 Swanston, 186. ' Jenkins v. Keymea, 1 Zev. 23'7. * Ch. J. Crew, of the K. B., in the gi-eat case concemong the eai-ldom of Oxford, in which that house, under the name of De Vere, was traced up through a I'egular coui-se of descent to the time of WiUiam the Conqueror, obsei-ved, that " there was no man that hath any apprehension of gently or nobleness, but his affection stands to the continuance of so noble a name and house, and would take hold of a twig or twine-thread to uphold it." (Sir W. Jones' Rep. 101. 1 Charles I.) But the lustre of families, and the entailments of property, are like man himself, perishable and fleeting ; and the Chief Justice, in that vei-y case, stays for a moment the com-se of his argument, and moralizes on such a theme with great energy and pathos. " There must be," he observes, " an end of names and dignities, and what- soever is terrene. Where is Mowbray? Where is Mortimer? Nay, which is more and most of all, where is Plantagenet ! They are entombed in the urns and sepulchres of mortality." Lcc. UY.] OF REAL PROPERTY. 19 and industry in the possession of a long line of lineal descend- ants, undisturbed by their folly or extravagance, it has a tend- ency on the other hand, to destroy the excitement to action in the issue in tail, and to leave an accumulated mass of pro- perty in the hands of the idle and the vicious. Dr. Smith insisted, from actual observation, that entailments were unfa- vourable to agricultural improvement. The practice of per- petual entails is carried to a great extent in Scotland, and that eminent philosopher observed, half a century ago, that one-third of the whole land *of the country was loaded *20 with the fetters of a strict entail ; and it is understood that additions are every day making to the quantity of land in tan, and that they now extend over half, if not nearly two- thirds, of the country. Some of the most distinguished of the Scotch statesmen and lawyers have united in condemning the policy of perpetual entails, as removing a very powerful incentive to persevering industiy and honest ambition. They are condemned as equally inexpedient and oppressive ; and Mr. Bell sincerely hoped that some safe course might ere long be devised, for restraining the exorbitant effects of the entail law of Scotland, and for introducing some limitations, consist- ent with the rules of justice and public policy.'' Entailments are recommended in monarchical governments, as a protection to the power and influence of the landed aristocracy ; but such a policy has no application to republican establishments, where wealth does not form a permanent distinction, and under which every individual of every family has his equal rights, and is equally invited, by the genius of the institutions, ' Smith's Wealth of Nations, vol. i. 383, 384. Mdin. Review, vol. xi. 359. vol. liL 360. Miller's Inquiry into the Present State of the Civil Law of England, 40Y. BelVs Gomm. on the Laws of Scotland, vol. i. 44. In Spain, private entaila pre- vailed for ages, and one of the Spanish lawyers contends that they have been prejudicial to the agiiculture and population of the nation. But since the Spanish revolution, the future creation of them has been prohibited. Institutes of the Civil Law of Spain, by Asso & Manuel, b. 2. tit. S. ch 1. u. 6. And in the Austrian states, noi-th of the Danube, as Bohemia, Moravia and Gallicia, according to a late and very intelligent ti'aveller, the feudal tenure of land prevails, with its vigorous feudal restrictions ; and in Hungaiy it exists in the greatest severity; while in the Austrian States, south of that river, feudality has mainly abated, and equality of descent and freedom of alienatioQ have succeeded. Turnhull's Austria, vol. ii. ch. 3. 20 OF REAL PROPERTY. [PartYI. to depend upon his own merit and exertions. Every family, stripped of artificial supports, is obliged, in this country, to repose upon the virtue of its descendants for the perpetuity of its fame. The simplicity of the civil law is said by Mr. Gibbon, to have been a stranger to the long and intricate system of en- tails; and yet the Roman trust settlements, ovfidei commissa, were analogous to estates tail. When an estate was left to an heir in trust, to leave it at his death to his eldest son, and so on by way of substitution, the person substituted corresponded in a degree to the English issue in tail. One of the novels of Justinian^ seems to have assximed that these entailed *21 settlements could not be carried beyond the limit *of four generations. This is the construction given to that law by some of the modem civilians,'' though Domat admits that the novel is expressed in a dark, ambiguous man- ner, and he intimates that it was introduced by Tribonian from corrupt views. It is also termed, by Mr. Gibbon,"^ a partial, perplexed, declamatory law, which, by an abuse of the novel, stretched the Jldei commissa to the fourth degree. In France, entails were not permitted formerly to extend beyond the period of three lives ; but in process of time, they gained ground, and trust settlements, says the ordinance of 1T4:7, were extended not only to many persons successively, but to a long series of generations. That new species of suc- cession or entailment was founded on private will, which had usurped the place of law, and established a new kind of juris- prudence. It led to numerous and subtle questions, which perplexed the tribunals, and the circulation of property was embarrassed. Chancellor D'Aguesseau prepared the ordi- nance of 1T47, which was drawn with great wisdom, after consultation with the principal magistrates of the provincial parliaments, and the superior counsels of the realm, and re- ceiving exact reports of the state of the local jurisprudence « JVovel, 159. c. 2. •> Brovmds View of the Civil Law, vol. i. 189. Woo(fs Inst, of tlie Civil Law, 189. Domat' s Civil Law, b. 5. tit 3. Proeme. But Pothier, veiy loosely, and ■without any reference to authority, says, that the Roman law allo-wed entails to an indefinite extent. Traite des Substitutions, sec 7. art 4. » Sist. vol. TiiL 80. Lee. LIV.] OF REAL PROPERTY. 21 on the subject. It limited the entail to two degrees, counted per capita, between the maker of the entail and the heir ; and, therefore, if the testator made A. his devisee for life, and after the death of A. to B., and after his death to C, and after his death to D., &c., and the estate should descend from A. to B., and from B. to C, he would hold it absolutely, and the remainder over to D. would be void."- But the Code Napoleon annihilated the *mitigated entailments *22 allowed hj the ordinance of 1747, and declared all substitutions or entails to be null and void, even in respect to the first donee.i' * JPothier, TraiU des Substitutions, sec. 1. art. 4. TouHier, tome v. 27. 29. Be- pertoire de Jurisprudence, tit Substitution Fidei Gommissaire, sec. 9. art. 2. ■• Code Napoleon, art 896, but see infra, p. 268. So by the Civil Code of Loui- siana, ai-t. 150T, substitutions and_/f(fei cammissa ai'e prohibited, and consequently every disposition, by which the donee, the heu-, or legatee, is charged to preserve for, or to return a thing to a thii'd buyer, is null ; and by the Roman law, a portion of the testator's property might be retained by the instituted heii", when he was charged with a, fidei commissa, or fiduciaj-y bequest, but this is no longer the law in counti'ies where trusts are abolished. See the Code of Louisiana, ai't. sup. ed. Few-Orleans, 1838, with annotations by Upton & Jennings. In monai-chical govern- ments, which requii-e the establishment and maintenance of hereditary orders in power and dignity, it may be very questionable whether the entire abolition of entails be wise or politic. As they are applied to family settlements, in England, and modified according to circumstances, they ai'e found, according to a very able and experienced lawyer, Mr. Parke, to be extremely convenient, and to operate by way of mutual check. Thus, if the father, being tenant for life, wishes to charge the estate beyond his own life, to meet the wants of the junior branches of the family, and provide for then- education and maiiiage, and settlement in hfe, and his eldest son being the tenant in tail, stands in need, on aniving to majority, of some independent income, they can do nothing without mutual consent. It is therefore, a matter of daily occurrence, in respect to estates, among the principal families belonging to the landed aristocracy, to open the entail, and resettle it, by the joint act of the father and son, to their mutual accommodation. New arrange- ments are repeated at intervals, as new exigencies arise, and all improvident charges and alienations ai-e checked by these limitations of estates of inheritance, by way of particular estate in the father for Ufe, with a vested remainder in the son in tail ; for the father cannot charge beyond his life, nor the sou convey the remainder duiing the father's life, without mutual consent. That consent is never obtained, but for useful or salutaiy famUy purposes ; and by this contiivance estates are made to subserve such purposes, while their entii'ety is peimanently preserved. The Massachusetts Revised Statutes of 1835, part 2. tit. 1. c. 59. sec. 4, follow this policy, for they declare, that where lands are held by one person for life, with a vested remainder in tail to another, they both may, by a joint deedj convey the same in fee-simple. LECTUEE LY. OF ESTATES FOR LIFE. An estate of freehold is a denomination wMch applies equally to an estate of inheritance and an estate for life.^' Li^erum tenementum denoted anciently an estate held by a freeman, independently of the mere will and caprice of the feudal lord ; and it was used in contradistinction to the inter- ests of terms for years, and lands in villenage or copyhold, which estates were originally liable to be determined at pleasure. This is the sense in which the terms liberum tene- Tnentum, frank tenement, or freehold, are used by Bracton, Fleta, Littleton and Coke ; and therefore, Littleton said, that no estate below that for life was a freehold.'' Sir William Blackstoneo confines the description of a freehold estate sim- ply to the incident of livery of seisin, which applies to estates of inheritance and estates for life ; and as those estates were the only ones which could not be conveyed at common law without the solemnity of livery of seisin, no other es- *24: tates were properly freehold estates. But *this crite- rion of a freehold estate, as being one in fee, or for life, applies as well to the estates created by the operation of the statute of uses, as to those which are conveyed by livery of " This is even made a matter of legislative declai-ation, in the New- York Revised Statutes, vol. i. ITi. sec. 5. ^ Fuerunt in eonquestu liberi homines, qui lihere ienuerunt tenementa ma per libera servitia, vel per liberas consuetudines. Bracton, lib. 1. p. 7. Liberum tene- mentum non habuit, qui non tenuit nisi ad terminum annorum. Fleta, lib. 5. c. 5. sec. 16. lAtt. see. 57. Co. Litt. 43. b. In the French law, the liberi, or freemen, were defined to be celles qui ne recognoissent superieure en Feidaliti. So in Doomsday, the liberi were expressed to be qui ire poterant quo mlebant. DaU rymple on Feudal Property, 11. « Com. vol. ii. 104 Lee. LV.] OP REAL PROPERTY. 23 seisin ; for the statute which unites the possession to the use, supplies the place of actual livery. Any estate of inheri- tance, or for life, in real property, whether it be a corporeal or an incorporeal hereditament, may justly be denominated a freehold. By the ancient law, a freehold interest conferred upon the owner a variety of valuable rights and privileges. He became a suitor of the courts, and the judge in the capacity of a juror ; he was entitled to vote for members of parliament, and to defend his title to the land ; as owner of the immediate free- hold, he was a necessary tenant to the prwoipe in a real action, and he had a right to call in the aid of the reversioner or remainder-man, when the inheritance was demanded. These rights gave him importance and dignity as a freeholder and freeman.ii Estates for life are divided into conventional and legal es- tates. The first are created by the act of the parties, and the second by operation of law. (1.) Estates for life by the agreement of the parties, were, at common law, freehold estates of a feudal nature, inasmuch as they were conferred by the same forms and solemnity as estates in fee, and were held by fealty, and the conventional services agreed on between the lord and tenant.^ Sir Henry Spelmanc endeavoured to show that the English law took no notice of feuds until they became hereditary at the ISTorman conquest ; and that fealty, as well as the other feudal inci- dents, were consequences of the perpetuity of fiefs, and did not belong to estates for years, or for life. The question has now become wholly immaterial in this country, where every real vestige of tenure is annihilated, and the doubt, whether fealty was not, in this *state, an obligation *2o upon a tenant for life, has been completely removed, in JSTew-Tork, by the act declaring all estates to be allodial.'' But, considering it as a point connected with the history of " Sullivan's Lectures on Feudal Law, Lee. 6. Preston on Estates, vol, i. 206 — 210. '' Wright on Tenures, 190. ' Treatise of Feuds and Tenures, c. 3. ^ Nem-Torh Revised Statutes, toI. i. "/IS. sec. 3. 24 OF REAL PROPERTY. [Part VI. our law, it may be observed, that the better opinion would seem to be, that fealty was one of the original incidents of feuds when they were for life. It was as necessary in the life estate as in a fee, and it was in accordance with the spirit of the whole feudal association, that the vassal, on admission to the protection of his lord, and the honours of a feudal inves- titure, should make an acknowledgment of his submission, with an assurance of service and fidelity. The rites of the feudal investiture were exceedingly solemn, and implied pro- tection and reverence, beneficence and loyalty.^ Life estates may be created by express words, as if A. con- veys land to B. for the term of his natural life ; or they may arise by construction of law, as if A. conveys land to B. without specifying the term of duration, and without words of limitation. In this last case, B. cannot have an estate in fee, according to the English law, and according to the law of those parts of the United States which have not altered the common law in this particular, but he will take the largest estate which can possibly arise from the grant, and that is an estate for life.!" The life estate may be either for a *26 man's own life, or for the life of another person, *and in this last case it ia termed an estate pwr cmtre vie., which is the lowest species of freehold, and esteemed of less value than an estate for one's own life. The law in this re- spect has proceeded upon known principles of human nature ; for, in the ordinary opinion of mankind, as well as in the language of Lord Coke, " an estate for a man's own life is higher than for another man's." A third branch of life es- tates may also be added, and that is, an estate for the term ©f the tenant's own life, and the life of one or more third per- * See Lib. Feud. lib. 1. tit. 1, and lib. 2. tit. 5, 6., 1, -where the vassal for life is termed fidelis, and every vassal was bound by oath to his lord, quod sibi erit Jiddis, ad ultimum diem vitm contra omnem haminem, excepto rege et quod creden- tiam sibi eommissam non manifesiabit. Doctor Gilbert Stuart, in his View of Society in Europe, 81, 88, was of the same opinion ; and he explored feudal antiqui- ties with a keen spiiit of research, shai'pened by conti'oversy. His work is deserving of the study of the legal antiquarian, if for no other purpose, yet for the sagacity and elegance with which he comments upon the sketches of barbai-ian manners, as they remain embodied in the cleaj' and unadorned pages of CjBsar, and the nervous and profound text of Tacitus. >> Oo. Litt. 42. a. Leo. LY.] OF REAL PROPERTY. 25 sons. In this case, the tenant for life has but one freehold limited to his own life, and the life of the other party or par- ties.a These estates may be made to depend upon a contingency, which can happen and determine the estate before the death of the grantee. Thus, if an estate be given to a woman dMm sola, or durcmte viduitate, or to a person so long as he shall dwell in a particular place, or for any other intermediate period, as a grant of an estate to a man until he shall have received a given sum out of the rents and profits ; in all these cases, the granted takes an estate for life, but one that is determina- bfe upon the happening of the event on which the contin- gency depended.*" If the tenant for the life of B. died in the lifetime of B., the estate was open to any general occupant during the life of B. ; but if the grant was to A. and his heirs during the life of B., the heir took it as a special occupant. The statute of 29 Charles 11., c. 3, made such an interest de- visable, and if not devised, the heir was made chargeable with the estate as assets by descent, and it speaks of him as a special occupant. The statute of 14 Geo. 11., c. 20, went further, and pro- vided that if there was no such special occupant named, and *the land be not devised, it was to go in a course *27 of administration as personal estate. This peculiar es- tate ^■t^ cmtre vie, has been frequently termed a descendible freehold, but it is not an estate of inheritance, and perhaps, strictly speaking, it is not a descendible freehold, in England, for the heir does not take by descent. It is a freehold interest sub modo, or for certain purposes, though in other respects it partakes of the nature of personal estate." In JsTew-Tork, an estate ^w?" autre vie, whether limited to heirs or otherwise, is » Oo. JUtt. 41. b. There are several subtle distinctions in the books, growing out of this topic, whereof students, according to Lord Ooke, " may disport themselves for a time ;" and Mr. Ram has endeavoured to do so, in a puzzling note to his recent Outline of the Law of Tenure and Tenancy, 33. •> Braeton, lib. 4. c. 28. sec. 1. Co. Zitt. 42. a. The People v. Gillis, 24 Wen- dell, 201. ' Lord Kenyon, in Doe t. Luxton, 6 Term Rep. 289. By the statute of 1 Vic- toria, ch. 26, estates pur autre vie, if not devised, were to be chargeable in the- hands of the heir, as assets by descent ; and if there be no special occupant, they were to go as ali'eady provided. 26 OF REAL PROPERTY. [Part VI. deemed a freehold only during the life of the grantee or de- visee, and after his death it is deemed a chattel real.=- The interest of every occupant, general or special, is, therefore, in New- York, totally annihilated ; but the statute provisions in other states vary considerably upon this subject. In New- Jersey, the act of 1T95 is the same as that in New-York; but Virginia and North Carolina follow in the footsteps of the English statutes, and leave a scmtiUa of interest, in certain events, in the heir as a special occupant.'' In Massachusetts and Yermont, on the death of the tenant ^iw autre me, with- out having devised the same, the estate descends to his lawful representatives, like estates in fee-simple." In many other states, the real and personal estates, and all interest therein, go in the same course of distribution. (2.) Tenanay ly the curtesy, is an estate for life, created by the act of the law. When a man marries a woman, seised, at any time during the coverture, of an estate of inheritance, in severalty, in coparcenary, or in common, and hath issue by her born alive, (1) and which might by possibility inherit the same estate as heir to the wife, and the wife dies in the life- time of the husband, he holds the land during his life, by the curtesy of England ; and it is immaterial whether the *28 issue be living at the time of the seisin, *or at the death of the wife, or whether it was bom before or after the seism d This estate is not peculiar to the English law, as Littleton erroneously supposes," for it is to be found, with some modi- '■ N. Y. Revised .Statutes, toI i. '722, sec. 6. I" Revised Code of Virginia, vol. L 233. Revised Statutes of North Carolina, vol. i 278. In Maiyland, estates pur autre vie, except those granted to the deceased and heii's only, are considered as assets in the hands of the executor or administrator. Act of I'FgS, ch. 101. Dorsey's Testamentary Law of Maryland, 88. " Revised Statutes of Massachusetts, 413. Revised Statutes of Vermont, 292. i lAtt. sec. 35. 53. Co. Litt. 29, b. Paine's case, 8 Co. 34. If the issue take as purchasers, the husband is not entitled to take by the cui'tesy, as where there was a devise to the wife and her heii'S, but iJF she died leaving issue, then to such issue and then' heiiu Bai'ker v. Barker, 2 Simons, 249. « Litt. sec. 35. {1) During the life of the motlier. 2 Maclcs. Com. 128. llarsellis t. Thalimer, 2 Paige, 35. Lee. LV.] OF REAL PROPERTY. 27 fications, in the ancient laws of Scotland, L-eland, ISTormandy and Germany, a Sir Martin "Wright is of opinion, that curtesy ■was not of feudal origin, for it is laid down expressly in the book of feuds,!" that the husband did not succeed to the feud of the wife, without a special investure ; and he adopts the opinion of Craig, who says, that curtesy was granted out of respect to the former marriage, and to save the husband from falling into poverty ; and he deduces curtesy from one of the rescripts of the Emperor Constantine." But whatever may have been the origin of this title, it was clearly and distinctly established in the English law, in the time of Glanville ; and it was described by Bracton, and especially in a writ, in 11 Hen. in., with the fulness and precision of the law of defi- nitions at the present day.^ Though the extent of it, as against the adult heir of the wife, may be justly complained of, yet it is remarkable that curtesy has continued un- impaired in England and Scotland, « *and it remains al- *29 most entirely unshaken in our American jurisprudence. South Carolina is an exception, for in that state tenancy by the curtesy eo nomine^ has ceased by the provision of an act in 1791, relative to the disl/rihuUon of 'intestates'' estates, which gives to the husband surviving his wife the same share of her real estate as she would have taken out of his, if left a widow, and that is either one moiety or one-third of it, in fee, according to circumstances. In Georgia, also, tenancy by curtesy does not exist ; but all marriages, since 1785, vest the real equally with the personal estate of the wife in the hus- band. * Co.IAtt.50,3,. Wright on Tenures, 19S. 2 Blaclcs. Oom. 116. In Normandy, according to the Ooutumier, c. 119, the eui'tesy lasted only during the widowhood of the husband. ^ Feud, Hb. 1, tit. 15 ; lib. 2, tit. 13. ' Wright on Tenwes, 194:. Craig's Jus Feudale, Mh. 2. Dieg. 22. Bee. iO. ' Glanville, lib. 1, c. 1 8. Bracton, lib. 5, c. 30, sec. 7. Sal^s Hist. Com. Law, e. 9. In the form of the writ given by Sii- Matthew Hale, in which Henry III. dh'ccts the English laws to be observed in Ii'eland, tenancy by the cm'tesy is stated, even at that time, to be consuetudo et lex Anglim ; and the Mirror, u. 1, sec. 8, Bays, that this title was gi-anted of tJw curtesy of Xing Henry 1. « In Scotland, there is this variation in the curtesy from that in England, that the wife must have been seised of the estate as heir, and not have acquired it by pm'- ehase, IJjough it is admitted there is no good reason for the distinction. BelVs Com. vol i. 6th edit. 61, 28 OF REAL PROPERTY. [Paj-t VL Four things are requisite to an estate by the curtesy, viz., marriage, actual seisin of the wife, issue, and death of the wife. The law vests the estate in the husband immediately on the death of the wife, without entry. His estate is ini- tiate on issue had, and consummate on the death of the wife.* The wife, according to the English law, must have been seised in fact and in deed, and not merely of a seisin in law of an estate of inheritance, to entitle the husband to his cur- tesy. •> The possession of the lessee for years is the possession of the wife as reversioner ; but if there be an outstanding estate for life, the husband cannot be tenant by the cm-tesy of the wife's estate in reversion or remainder, unless the particu- lar estate be ended during the coverture. "= This is still the general rule at law, though in equity the letter of it has been relaxed by a free and liberal construction.'^ The circum- stances of this country have justly required some quali- *30 fication of the strict letter of the *rule relative to a sei- sin in fact by the wife ; and if she be owner of waste, uncultivated lands, not held adversely, she is deemed seised in fact, so as to entitle her husband to his right of curtesy.^ The title to such property draws to it the possession ; and that constructive possession continues, in judgment of law, until an adverse possession be clearly made out ; and it is a settled point in our courts, that the owner of such lands is deemed in possession, so as to be able to maintain trespass for entering upon the land and cutting the timber. To entitle the hus- band to curtesy, he must be a citizen and not an alien, for an « In Pennsylvania tie husband's curtesy by statute in 1833 is good, though there be no issue of the man-iage. Pv/rdon's Dig. 550. In 1831, a bill upon the suggestion of the English Real Property Commissioners was brought into parlia- ment, to abolish the rule that the issue in cui'tesy must be bom alive, but the bill Tvas suffered to drop. ^ Co. Litt. 29, a. Mercer v. Selden, 1 Howards U. 8. Rep. Si. ' PerUm, sec. 457. 464. Go. Litt. 29, a. De Grey v. Richai-dson, 3 Atk. 469. Gently v. Wagstaff, 3 Dev. N. C. Rep. 270. Stoddard v. Gibbs, 1 Sumner, 263. • De Grey v. Richai-dson, 3 AtJc. 469. Sterling v. Penlington, 7 Viner, 149, pi. 11. 3 Eg. Ca. Air. 780. Jacljson V. Sellick, 8 Johns. Rep. 262. Clay v. White, 1 Munf. 162. Green T. Liter, 8 Oraneh'a Rep, 249. Davis v. Mason, 1 Peters' XI. S. Rep. 503. Smoot V. Lecatt, 1 Stewart's Ala. Rep. 590. M'Corvy v. King, 3 Hump. Tenn. Rep. 267. Lee. LV.] OF REAL PROPERTY. 29 alien husband was not at common law entitled to curtesy, any more than an alien wife was entitled to be endowed ; and the wife must have had such a seisin as will enable her issue to inherit ; and therefore, if she claims by descent or devise, and dies before entry, the inheritance will go, not to her heir, but to th.e heir of the person last seised, and the husband will not have his curtesy."^ The rule has been carried still further in this country ; and in one state, where the title by curtesy is in other respects as in England, it is decided that it was sufficient for the claim of curtesy that the wife had title to the land, though she was not actually seised, nor deemed to be so.b The law of cur- tesy in Connecticut is made to symmetrize with other parts of their system ; and in that state, ownership without seisin, is sufficient to govern the descent or devise of real estate."^ At common law, the husband could not be tenant by the curtesy of a use ^^ but it is now settled in equity, that he may be a tenant by the curtesy of an equity of redemption, and of lands of which the wife had only a seisin in equity as a cestui que trust.^ So, if money be agreed to be laid out *in the purchase of land, the money is considered *31 as land in the view of a court of equity, and the hus- band win be allowed his curtesy.*' Though the husband be entitled to his curtesy in a trust estate, it has been a question- able point, whether it must not be such a trust estate as will give him an equitable seisin. The wife must have had a seisin of the freehold and inheritance, simul et semel, either * Jackson v. Johnson, 5 Coweii's Hep. 74. Adair v. Lott, 3 Hill, 182. •> Bush T. Bradley, 4 Da^s Rep. 298. Kline v. Bebee, 6 Oonn. Rep. 494. The severity of the ancient law on the right to curtesy is much relaxed in England as well as in this country, and a constructive seisin of the wife is sufficient to sus- tain the husband's right to his curtesy, where it is not rebutted by an actual dis- seisin. See De Grey v. Richardson, and Sterling v. Penlington, sup., and EUsworth V. Cook, 8 PaigdsRep. 643. " 4 Dajfs Rep. uh. mp. * Gilbert on Uses, by Sugden, 48. 440. * Watts V. Ball, 1 P. Wms. 108. In Vii-ginia, by statute, (1 R. 0. 1819,) the husband has his curtesy in a trast estate. So it is in Maine, and deemed to be so throughout the countiy. 1 Svmner, 128. ' Sweetapple v. Bindon, 2 Term, 536. Watts v. Ball, 1 P. Wms. 108. Chaplin V. Chaplin, 3 ihid. 229. Cashborne v. Scarfe, 1 Atk. 693. Cunningham v. Moody, 1 Ves. 1Y4. Dodson v. Hay, 3 Bro. 404. 30 OF EEAL PROPERTT. [Part VI, at law or in equity, during the coverture.* In JRdberts t. Dixwell^ Lord Hardwicke held, that the husband might have his curtesy in an estate devised to the wife for her sepa- rate use ; bat afterwards he declared, that a seisin in law or in equity, was essential to a tenancy by curtesy. The opinions of Lord Hardwicke, in Hea/rle v. Greenlcmh, and Roberts t. Dixwell^ are conflicting, and cannot be reconciled ; and it would seem to have followed, that if the equitable freehold was out in trustees for the separa/le use of the wife, and kept distinct during the coverture from her equitable remainder in fee, that she wanted that seisin of the entire equitable estate requisite to a tenancy by the curtesy. But it is now settled otherwise, and the husband is tenant by the curtesy if the wife has an equitable estate of inheritance, notwithstanding the rents and profits are to be paid to her separate use during the coverture. The receipt of the rents and profits are a suf- ficient seisin in the wife." And if lands be devised to the wife, or conveyed to trustees for her separate and exclusive use, and with a clear and distinct expression that the husband was not to have any life estate or other interest, but the same was to be for the wife and her heirs ; in that case, the *32 court of chancery will consider the husband a trustee *for the wife and her heirs, and bar him of his curtesy.^ But the husband of a mortgagee in fee is not entitled to his cur- tesy, though the estate becomes absolute at law, unless there has been a foreclosure,. or unless the mortgage has subsisted so long a time as to create a bar to the redemption.^ The rule has now become common learning, and it is well under- stood that the rights existing in, or flowing from the mort- gagee, are subject to the claims of the equity of redemption, so long as the same remains in force. • Hearle v. Greenbank, 1 7e%. 298. 3 Ath. 716. S. C. •> 1 AtTc. eo"?. - Pitt v. Jackson, 3 Bro. 51. Morgan v. Morgan, 5 MaM. Rep. 248, Amer. ed. If the wife's lands be sold in partition after her death, the husband, as tenant by the cm-tesy, will be entitled to the use of the proceeds for life, upon giving security for repayment at his death. Clapper v. Livergood, 5 Watts, 113. •i Bennet v. Davis, 2 P. 'Wins. 316. Cochran v. O'Hem, 4 Watts & Serg. 95. " This is so stated in Chaplin v. Chaplin, as reported in 1 Viner, 156, pL 23 ; and the same thing is declai-ed by Lord Hardwicke, in a case which Lord Loughborough cited from his note book, in 2 Ves.jr. 433. Lee. LV.] OF REAL PBOPEETT. 31 Curtesy applies to qualified as well as to absolute estates in fee, but the distinctions on this point are quite abstruse and subtle. It was declared in Fame's case,^ to be the common law, that if lands had been given to a woman, and the heirs of her body, and she married and had issue which died, and then the wife died without issue, whereby the estate of the wife was determined, and the inheritance of the land reverted to the donor, yet the husband would be entitled to hold the estate tail for life as tenant by the curtesy, for that was im- plied in the gift. So, where an estate was devised to a woman in fee, with a devise over, in case she died under the age of twenty-one, without issue, and she married, had issue which died, and then she died, under age, by which the devise over took effect ; still, it was held, the husband was entitled to his curtesy.*" But there are several cases in which curtesy, as well as dower, ceases upon the determination of the estate ; and this upon the maxim, that the derivative estate cannot con- tinue longer than the primitive estate, cessanU statM primi- tivo cessat derivatvvus. As a general rule, curtesy and dower can only be commensurate with the estate of the grantee, and must cease with the determination of that estate. They cease necessarily where *the seisin was wrongful, and *33 there is an eviction under a title paramount. The distinc- tion is principally between a condition and a limitation. If the wife's seisin be determined by a condition in deed expressly annexed to the estate, and the donor or his heirs enter for breach of the condition, the curtesy is defeated, for the donor reassumes his prior and paramount title, and all intermediate rights and incumbrances are destroyed. On the other hand, a limitation merely shifts the estate from one person to another, and leaves the prior seisin undisturbed. The limitation over takes effect, and the estate next in expectancy vests without entry, and the curtesy is preserved. If, however, instead of being a simple limitation, it be a conditional limitation, it is said, that, in that case, the curtesy would be defeated, for the conditional limitation cuts off, or produces a cesser of the estate upon which it operates. The cases of an estate tail • 8 Co. 34 '' Buckworth v. Thirkell, 3 Bos. & Pull. 652, note. 32 OP EEAl PROPERTY. fPai-t VI. determining by failure of issue, and of a fee determining by executory devise or springing use, are exceptions to the ge- neral rule, denying curtesy or dower after the determination of the principal estate.* *34 *Though the wife's dower be lost by her adultery, no such misconduct on the part of the husband will work a forfeiture of his curtesy ; nor will any forfeiture of her estate by the wife defeat the curtesy.^ The reason, says Lord Talbot, why the wife forfeits her dower, and the husband does not forfeit his curtesy in cases of misconduct, is because the statute of "Westm. 2, gave the forfeiture in one case and not in the other. "= This is showing the authority, but not the reci- procal justice or equity of the distinction. There is no parity of justice in the case.^ So, the husband, as well as any other • Buckworth V. Thii-kell, 3 Bos. & Pull. 652, note. Butler's note lYO, U> Co. Litt. 241, a. Roper on Husband and Wife, vol. i. 36, 3T. Preston on Abstracts of Title, vol. iii. 384. Park on Dower, 172. 186. Mr. Butler, in speaking of lim- ited fees, which by the grant are to continue only to a certain period, obseryee that cui-teey and dower will continue after the expii-ation of the period to which the fee was to continue. But where the fee was originally created by words importing an absolute fee, and by subsequent words was made determinable upon some particu- lar event, there the cmiesy and dower cease with the estate to which the event is annexed. The case of Buckworth v. Thirkell, stands in the way of the doctrine of Ml-. Butler, and Lord Mansfield decided, that the case before him was one of a con- tingent, and not of a conditional limitation. Lord Alvanley, in 3 Bos. & Full. 654, cites the distinction of Mr. Butler, as woi-thy of attention, and Mr. Roper has varied it, and discussed it. Neither of them, as it would seem, have traced the lines of the distinction with satisfectoiy clearness and precision, or shown any sound piinciple on which it rests. The subject is replete with perplexed refinements, and it is involved too deep in mystery and technical subtleties, to be sufiiciently intelli- gibl« for practical use. Here aaises a proper case for the aid of the refoi-mer. When any particular branch of the law has departed widely fi-om cleai- and simple rules, or, by the use of artificial and redundant distinctions, has become uncertain and almost incomprehensible, there is no effectual relief but fi'om the potent hand of the law-giver. * Preston on Atstracts of Title, vol. iii. 385. Smoot v. Lecatt, 1 Stewart's Ala. Rep. 590. Mass. Revised Statutes, 1835. Whether a divorce a vinculo will de- stroy curtesy depends on circumstances, and there is some variety in the laws of the several states. If the cause of the divorce be for causes ai-ising before maniage, the light to curtesy, as well as to other rights growing out of the maniage, is gone, but if for causes subsequent to maniage, the rule is not absolutely stable and uni- form. See SilliarcPs Abr. vol. i. 51, 52. « Sidney v. Sidney, 3 P. Wins. 276. ^ In Indiana, the unequal rule is con-ected, and the husband and wife are b-eated, Lee. LV.] OF REAL PROPERTY. 33 tenant for life, may forfeit his curtesy by a wrongful alienation, or by making a feoffment, or levying a fine importing a grant in fee, suffering a common recovery, joiningthe mise in a writ of right, or by any other act tending to the disherison of the reversioner or remainder-man.»- In New-York, this rule of the common law existed until lately. The statute of "Westm. 2, cap. 24, giving a writ applicable to such cases of forfeiture, was re-enacted in 1787.^ The injury of the alienation to the heir was removed by the statute of 6 Edw. I., cap. 3, also re- enacted in 1787." That statute declared, that alienation by the tenant by the curtesy, should not bar the issue of the mo- ther, though the father's deed bound his heirs to warranty. But every vestige of this law of forfeiture has recently and wisely been abrogated in New-York, by a provision of the new statute code, which *declares that a convey- *35 ance by a tenant for life, or years, of a greater estate than he possessed, or could lawfully convey, shall not work a forfeiture of his estate, nor pass any greater estate or interest than the tenant can lawfully convey ; except that the convey- ance shall operate by way of estoppel, and conclude the grant- or and his heirs claiming from him by descent. "^ (3.) The next species of life estates created by the act of the law, is that of dower. It exists where a man is seised of an estate of inheritance, and dies in the lifetime of his wife. In that case she is at common law entitled to be endowed, for her natural life, of the third part of all the lands whereof her alike on this point, and if he leaves his wife and lives with an adulteress, he loses his right of tenancy by the curtesy. Revised Statutes of Indiana, 1838, p. 240. * Oo. Liu. 251, a. b. 302, b. 2 Jnst. 309. *• Laws N. Y., sess. 10, c. 50, sec. 6. " Laws N. Y., sess. 10, c. 48, sec. 8. The same provision against alienations by the tenant by the curtesy, was enacted in New-Jersey, in 1798. Elmer's Big. 1%, When the estate by the curtesy is once vested in the husband, it becomes liable to his debts, and cannot be divested by his disclaimer. Watson v. Watson, 13 Conn. Rep. 82. The creditors have a right to sell the same on execution at law. Lessee of Canby v. Porter, 12 Ohio Rep. 79. A voluntary settlement of that cm-tesy up- on the wife by the husband, is void as to his creditors. Vanduzer v. Vanduzer, 6 Paige Rep. 366. Wickes v. Clarke, 8 ib. 161. ^ N. Y. Revised Statutes, vol. i. 739, sec. 143. 145. The Mass. Revised Statutes, in 1835, have made the same alteration in this law of forfeiture. The husband's life estate, in his wife's land, is liable to be taken, and appropriated and sold for his debts. Litchfield v. Cudworth, 15 Pick. 23. Vol. IV. 3 34 OF REAL PEOPERTT. [Part VL husband was seised, either in deed or in law, at any time during the coverture, and of which any issue that she might have had, might by possibility have been heir.^ This humane provision of the common law was intended for the sure and competent sustenance of the widow, and the better nurture and education of her children^ We find the *36 *law of dower, in the mode of endowing ad ostium, eccle- siw, in common use in the time of Glanville," but limited to the third part of the freehold lands which the husband held at the time of the ma/rriage. This limitation is likewise men- tioned in Bracton and Fleta \^ whereas in magna cha/rta,^ the * Liu. see. 36. Perhina, sec. 301. N. T. Revised Statutes, vol. i '740, sec. 1. Park's Treatise on the Law of Dower, 6. Chases Statutes of Ohio, voL iL 1314. 1 Virginia R. G, Mass, R. Statutes, of 18S5, pmt. 2, tit. 1, c. 60, sec. 1. Ailcini Alabama Dig. 2d ed. p. 132. The New-Jersey statute of 1799, and of 1847, ■which re-enacts all the essential doctrines of the English law on the subject of dower, omits the condition in the text in respect to the wife's issue. Elmer's Dig. 143. R. S. New-Jersey, 184'7. So does the Virgmia statute of 1792. Revised Code of Virginia, vol. i. 288, and the Statute of New-Yorlc, and the R. L. of Mis- souri, 1835, p. 226, and of Arkansas. In Arkansas the right of dower is para- mount to creditors and pui'chasers, and the wife also takes her dower in one-thii-d of the slaves owned by her husband at his death. Hill v. Mitchell, 5 Arkansas R. 608. In Missouii, the widow is also entitled to dower, in leasehold estates, for a term of twenty years or more. '' Bracton, 92, a. Fleta, lib. 5, c. 23, sec. 2. Co. -Litt. SO, b. In the customs of the ancient Germans recorded by Tacitus, De Mor. Germ. c. 18, doiem non uxor marito, sed uxori maritus offert. In this custom we probably have the oiigiu of the right of dower, which was carried by the northern barbarians into their exten- sive conquests ; and when a permanent interest was acquired in land, the dower of the widow was extended and applied to real estate, from principle and aflFection, and by the influence of the same generosity of sentiment which fii'st applied it to chattels. Stuarts View of Society, 29, 30. 223 — 227. Olaus Magnus records the same custom among the Goths ; and Dr. Stewart shows it to have been incoi-porated into the laws of the Visigoths and Burgundians. Mr. Banington observes, that the English would probably boiTOW such an institution from the Goths and Swedes, rather than from any other of the noi-them nations. Observ. upon the Ancient Statutes, 9, 10. Among the Anglo-Saxons, the dower consisted of goods ; and there were no footsteps of dower in lands until the Iforman conquest. 2 Blacks. Com. 129. Spelman, Gloss, voce Doarium, deduces dos from the French douaire ■ and Sir Martin Wright says, that dower was probably brought into England by the Nonnans, as a branch of their doctrine of fiefs or tenures. Wright on Tenures 192. In the French law, tenancy by curtesy is called droit de viduite. CEuvrea de D'Aguesseau, torn. iv. 660. « Glan. lib. 6, c 1. a Bracton, lib. 2. c. 39. sec. 2. Fleta, lib. 5. o. 24. sec. 7. « C. 7. Lee LV.] OF REAL PROPERTT. 35 law of dower, in its modern sense and enlarged extent, as ap- plying to all lands of which the husband was seised dwrvag the coverture, was clearly defined and firmly established. It has continued unchanged in the English law to the present times ; and, with some modifications, it has been everywhere adopted as part of the municipal jurisprudence of the United States. To the consummation of the title to dower, three things are requisite, viz. : marriage, seisin of the husband, and his death.=- Dower attaches upon all marriages not absolutely void, and existing at the death of the husband ; it belongs to a wife de facto, whose marriage is voidable by decree, as well as to a wife dejv/re. It belongs to a marriage within the age of consent, though the husband dies withia that age.i* But &feme covert, being an alien, was not by the common law entitled to be en- dowed any more than to inherit." This rule has been relaxed in some parts of this country ; in ISTew-Jersey there is no dis- tinction, whether widows be aliens or not ; and in Maryland, an alien widow, who married in the United States, and resided here when her husband died, was admitted to dower."! In ISTew-York, the alien widow of a natural *born *3T citizen, who was an inhabitant of the state at the pas- sage of the act of 1802, enabling aliens to purchase and hold real estate, is dowable.« The act of New-York of the 30th April, 1845,f is more extensive, and gives dower to any woman " Co. Lift. 31. a. ' Co. Liu. 33. a. 7 Co. 42. Kenne's case, Doct. * Bates v. Bates, 1 Lord Raym. 326. Co. Litt. 296. 32, a. Weir v. Humphreys, Iredell's Rep. of June Tei-m, 1846, p. 273. i" Pcriins, 333. 335. 338. £ro. tit. -Dower, pi 6. Finch's Law,125. Bates' case, 1 Salk 354. 1 Lord Raym. 326. S. C. Eldredge v. Forrestal, 1 Mass. Rep. 253. Dunham v. Osbom, 1 Paige, 634. Fisk v. Eastman, 5 N. H. Rep. 240. Moore v. Esty, ibid. 469. Mr. Park iu his copious and thorough Treatise on the Law of Dower, 61 — 73, discusses at lai'ge the embarrassing question, whether the intei'po- sition of a contingent estate of freehold, between a limitation to the husband for life, and a subsequent remainder to his heii'S, will prevent dower. The prevailing language with the best property lawyers is, that a remainder to the heirs so cir- cumstanced, is executed in possession in the tenant for life sub modo, and that the estates are consolidated by a kind of temporary merger, until the happening of the contingency ; and when it does happen, they divide and resume the character of several estates, so as to let in the estate originally limited upon that contingency. The anonaalous notion of a remainder executed sub modo, involves insuperable diffi- culties ; and it is not easy to perceive how dower can attach to an estate executed in the husband only sub modo ; for dower at common law does not attach upon a mere possibility. If the wife has a title of dower upon such an estate, and the in- tervening contingent remainder comes in esse after her title is consummated by the husband's death, as by the bu'th of a posthumous child, will the remainder take e6fect subject to the title of dower, or will it defeat and overreach that title ! The better opinion, according to Mr. Park, is, that the husband would be considered as seised of several estates, ab initio, and the dower must consequently be defeated. Cordal's case, Oro. Eliz. 316. Boothby v. Vernon, 9 Mod. Rep. 147, and Hooker v. Hooker, 2 Barn. K. B. 200. 232, are severely criticized in reference to this question. Ml'. Feame also speaks of estates executed sub modo, that is, to some purposes though not to all, as if an estate be granted to A. and B. for their lives, and after their deaths to be heirs of B., the estates in remainder and in possession are not so executed in possession as to sever the jointure, or entitle the wife of B. to dower. There is no merger of the estate for life ; and a joint seisin of the freehold is a bar to dower. And yet these estates are so blended, or executed in the possession, as to make the inheritance not grantable distinct from the freehold. Feame on Re- mainders, 5th ed. 35, 36. To enter fm-ther into this abstruse leai-ning, would be of veiy little use, as such recondite points rarely occur. (1) Green v. Putnam, 1 Bari. S. 0. SOO. 40 OF REAL PROPERTY. [Part VI. Dower attaches to all real hereditaments, such as rents, commons in gross or appendant, arid piscary, provided the husband was seised of an estate of inheritance in the *41 *same.a- But in these cases the wife is dowable only by reason of her right to be endowed of the estate to which they are appendant. So, dower is due of iron or other mines wrought during the coverture, but not of mines unopened at the death of the husband ; and if the land assigned for dower contains an open mine, the tenant* in dower may work it for her own benefit ; but it would be waste in her to open and work a mine.'' The claim of dower attaching upon all lands whereof the husband was seised at any time during the cov- erture, is a severe dormant incumbrance upon the use and cir- culation of real property. In point of fact, it is of little or no use, unless the husband dies seised ; for it is, in practice, almost universally extinguished, by the act of the wife in concur- rence with the husband, upon sales and mortgages of real es- tate. The existence of the title only serves to increase the expense, and multiply the forms of alienation ; and, cotise- quently, in several of these United States, the title to dower has been reduced down to the lands whereof the husband died seised. This is the case in the states of Vermont, Connec- ticut, Tennessee, North Carolina and Georgia.'^ In *4:2 *Maine, l^ew-Hampshire and Massachusetts, the widow is not dowable of land in a wild state, unconnected a . « PerMns, sec. 342. 345. 347. Oo. Litt. 32, a. Park on Dower, 112. 4. ' Stoughton V. Leigh, 1 Tawnt. Bep. 402. Coates v. Cheever, 1 Cowen's Rep. 460. " Griffith's Register, Swifts Dig. vol. L 85. Stewart v. Stewart, 5 Conn. Rep. 317. Statides of Connecticut, 1838, p. 188. Winsteadv. Winstead, 1 Hayw. 243. Statutes of Vermont, 1799. Statutes of ffcorijrja, December 23d, 1826. IN. C. Revised Statutes, 1837, p. 612. Statuie of Tennessee, 1784, ch. 22. Combs v. YouDg, 4 Yerger's Tenn. Rep. 218. This last case gives to the widow's claim of dower a preference over the creditors of the husband ; and Ch. J. Catron condemns severely the act of 1784, for destroying the stability of the common law right of dower, and leaving the wife's support, as widow, entuely at the mercy of the hus- band. The Tennessee statute leaves the wife to be endowed of the lands whereof her husband died seised, provided he died intestate, or did not make a provision for her by will satisfactory to her, and which dissent must be declai'ed within six months, after probate of the will. The court, in Reid v. Campbell, 1 Meigs' Tenn. Rep. 388, were of opinion, that the widow's provision was improved by the act of 1784, because it gave her also, an indefeasible right to a part of the personalty. In Cormectiout, Vermont, and probably in other states, the husband cannot by will Lee. LV.] OF REAL PROPERTY. 41 ■with any cultivated farm, on the principle that the land would be wholly useless to her if she did improve it ; and, if she did, she would expose herself to disputes with the heir, and to forfeiture of the estate for waste.'' If such land should be sold by the husband during coverture, and subdued and culti- vated by the purchaser before the husband's death, yet the widow has no right of dower in it, on the principle that the husband was never seised of any estate in the land of which the widow could be endowed.'' In Pennsylvania, the title to dower does not apply to lands of the husband sold on judi- cial process before or after the husband's death, nor to lands sold under a mortgage executed by the husband alone during coverture." In Tennessee, the restriction upon the widow's dower is substantially the same ^"^ and in Missouri, it would seem to be subject generally to the husband's debts ; whereas in JSTorth Carolina and Indiana, the widow's dower is declared by statute to be paramount to the claims of creditors.^ deprive Ha wife of her dower ; for the estate in dower is cast upon the wife before the devise attaches. If the husband, shortly before his death, conveys all his estate to his children, without any valuable consideration, and seeming the possession to himself while he lives, with the intent to defeat the claims of the wife, the convey- ance wiU be set aside as fraudulent against the wife's claim for dower and for her distiibutive share of his personal estate. Thayer v. Thayer, 14 Vermont Rep. lOY. In Scotland, the widow's dower, (called terce) extends only to the lands of which the husband died seised. The husband may alienate or incumber the land during the maniage, and thereby defeat the dower ; and though, as against creditors, she is entitled only to the use for life of one-thii-d of the estate, yet, as against the heir, she will, under circumstances, be entitled to claim an additional aliment. 1 Bell's Com. 6*7. 59, 60. So now, in England, the husband may bar his wife's dower by alienation or devise, by statute of 3 and 4 Wm. IV., as see post, page 44. ' Conner v. Shepherd, 15 Mass. Rep. 164. Johnson v. Perlee, 2 N. S. Rep. 56. Griffith's Register, tit. Maine. White v. Willis, 7 Picjc. Rep. 193. Mass. Revised StatuUs 0/1835, part 2. tit. 1. ch. 60. sec. 12. '' Webb V. Townsend, 1 Pick. Rep. 21. ' Reed v. Monison, 12 Sere/. & Ravile, 18. Shippen President, in Graff v. Smith, 1 Dallas, 484. Seott v. Crossdale, 2 Dallas, 127. ^ According to the old statute of 1715, cited as part of the Tennessee statute code, in 1836, the mortgage of the husband did not bar the widow's dower, unless she united in the mortgage; but I should infer, from the statute of 1784, that she was barred as against the moi-tgagee ; for she, by that statute, takes her dower only in the lands whereof her husband " died seised or possessed," and she is only saved from the fraudulent conveyances of her husband, made to defeat her dower. Statute Laws of Tennessee, Caruthers & Nicholson, 1836, p. 262. 497. London v. London, 1 Humphreys Tenn. Rep, p. 1. S. P. " Griffith's Register, h. t. Frost v. Etheridge, 1 Badger & Dev. 30. Norwood v. 42 OF REAL PROPERTY. [Part VI. At common law, the wife of a trustee, who had the legal estate in fee, and the wife of a mortgagee, after condition broken, had a valid title at law to dower ; for courts of law looked only to the legal estate.^ To avoid this result, it was the ancient practice in mortgages to join another person with the mortgagee in the conveyance, so as by that joint seisin to avoid the attachment of the legal title of dower.'' But a *43 court of equity considered the equity of redemption *as a right inherent in the land, which barred all persons, and it would always restrain the widow from prosecuting her dower, if the mortgage had been redeemed, or the trustee had conveyed the land according to the direction of the cestui que i/rust ; and it has been long held, and is now definitely set- tled, that the wife of a trustee is not entitled to dower in the trust estate, any further than the husband had a beneficial interest therein ; and if she attempts it at law, equity will restrain her, and punish her with costs." ISTor is the wife of a cestui que trust dowable in an estate to which her husband had only an equitable and not a legal title during coverture. It has, however, been thought reasonable, and consistent with principle, that a court of equity should apply the rules and incidents of legal estates to trust property, and give the wife her dower in her husband's equitable estate. (1) But at com- mon law, the wife was not dowable of a use, and trusts are now what uses were at common law ; and it is well settled in the English cases, that the wife of a cestui que t/rust is not dowable in equity out of a trust estate, though the husband is entitled to his curtesy in such an estate.^ A widow is conse- MaiTow, 3 Battle, 442. In Indiana, the wido-w takes t^wo-thirds of the personal estate, and one-thii-d of the real estate, in fee, subject to debts, or her usual dower, at her option, and her dower stands on the ground of the common law. Kevised Statutes of Indiana, 1838, p. 237. 239. * Bro. tit. Dower, pL 2. Perkins, sec. 392. I" Gro. Car. 191. « Lord Hardwicke, in Hinton v. Hinton, 2 Vesey, 631. Noel v. Jevon, 2 Freeman, 43. i D'Arcy V. Blake, 2 8ch. & Lef. SST. Ray v. Pung, hB.d: Aid. 561. Hamlin V. Hamlin, 19 Maine Rep. 141. (1) See Peay v. Peay, 2 Rich. E(i. B. 409. lee. ly.] OF EEAL PROPERTY. 43 quently not dowable in her husband's equity of redemption ; (1) and this anomalous distinction is still preserved in the English law from the necessity of giving security to title by perma- nent rules. This policy outweighs the consideration that would naturally be due to consistency of principle. Sir Joseph Jekyll, in Bomks v. Sutton,^ held that the widow might be endowed of an equity of redemption, though the mortgage in fee was executed before the marriage, upon her paying the third of the mortgage money, or keeping down a third of the interest. *> But the reasoning of that learned judge did not *preTail to establish his doctrine, and the *4:4 distinction which he suggested between the case of a trust created by the husband himself, and a trust estatcj which descended upon, or was limited to him, has been condemned by his successors as loose and unsound." The same rule pre- vails as to an equity of redemption in an estate mortgaged in fee by the husband before marriage, and not redeemed at his death.ii • 2 P. Wms. Too. ^ The rule in chancery had been TacillatiDg previous to that decision, though the weight of authority, and the language of the courts, irere decidedly against the right to dower. Colt t. Colt, Reports in Chancery, vol. i. 134 ; Radnor v. Eotherham, Free, in Ch. 65; Bottomly v. Fairfax, ibid. 326. Ambrose v. Ambrose, 1 P. Wms. 321, vrere all opposed to Fletcher v. Robinson, cited in Free, in Ch. 260, and 2 P. Wms. 710. Chaplin v. Chaplin, 3 P. Wms. 229. Godwin v. Winsmore, 2 Atlc. 525. Sir Thomas Clai-ke, in Bm-gess v. Wheate, 1 Blacks. Rep. 138. Dixon v. Saville, 1 Bro. 326. D'Arcy v. Blaie, 2 Bch. & Lef. 387. ' In Maryland, and in the Maryland part of the District of Columbia, the rule of the common law prevails, and a widow is not dowable in her husband's equity of redemption. SteUe v. Carroll, 12 Peters, 201. But in England, by the statute of 3 and 4 Wm. IV. c. 105, dower now attaches upon equitable estates of inherit- ance in possession, other than estates in joint tenancy, and upon lands in which the husband, though he had no seisin, was entitled to a right of entiy at his death. On the other hand, the wife is not entitled to dower in lands sold by the husband in his lifetime, or devised by will, or declared by will to be exempt from her dower ; and all partial estates and interests created by the husband by any dis- position or will, and all debts and incumbrances to which his lands are liable, are declared to be eflfectual against the claim of dower. A devise of any estate in the land to the widow, baj's her dower, unless a conti-aiy intention be declai-ed ; but not (1) In New-Jersey, when the mortgagee after forfeiture acquires the equity of redemption, he holds the estate under the mortgage, and it is not subject to dower. Thompson v; Boyd, 1 Za- irUMe's 2f. J. B. 67. 4A: OF REAL PROPERTY. [Pai-t VI. In the United States, the equity of the wife's claim has met with a more gracious reception ; and in Massachusetts, Con- necticut, iN'ew-York, IsTew-Jersey, Pennsylvania, Maryland, Virginia, North Carolina, Tennessee, Alabama, Mississippi, Indiana, and probably in most or all of the other states, the wife is held dowable of an equity of redemption existing at the death of her husband.^ Though the wife joins with her husband in the mortgage, and though the husband should afterwards release the equity, the wife will be entitled, at his death, to her dower in the lands, subject to the mortgage ; and if they are sold under the mortgage, then to her claim as for dower in the surplus proceeds, if any there should *4:5 be.b If, *however, the mortgage was executed on a purchase before the marriage, and the husband releases the equity after the marriage, his wife's right of dower is en- a bequest of personal estate, unless an intention to that effect be declared. These provisions leave the wife's dower completely in the husband's power, and break in upon the common law right of dower as extensively as any of the alterations in the laws of the American states. • Bird V. Gardner, 10 Mass. Hep. 364. Snow v. Stephens, 15 ibid. 2'?8. S Pick. Rep. 476. Walker v. Griswold, 6 iUd. 416. Fish v. Fish, 1 Conn. Rep. 559. Hitchcock V. Harrington, 6 Johns. Rep. 290. Collins v. Tony, 7 ibid. 278. Coles v. Coles, 15 ibid. 319. Titus v. Neilson, 5 Johns. Ch. Rep. 452. New-York Revised Statutes, vol. i. 740. sec. 4. Montgomeiy v. Bruere, 2 Southard, 865. Reed V. Monison, 12 Serg. & Rawle, 18. Heth v. Cocks, 1 Randolph, 344. 1 Virginia Revised Code, 1819. Mass. Revised Statutes of 1835. Revised Statutes of North Carolina, c. 121, 1828. Taylor v. M'Crackin, 2 Blaekf. Ind. Rep. 261. M'Mahan v. Kimball, 3 ibid. 1. Rutherford v. Munce, Walker's Miss. Rep. 371. By the New-York Revised Statutes, vol. ii. 112. sec. 71, 72; ibid. 374. sec. 63, 64, the wife has her dower in the inheritable interest of the husband in lands, whereof he died seised of the equitable, but not of the legal title. The same in Illinois. Revised Laws of Illinois, edit. 1833, p. 627. The same in Kentucky. 6 Dana, 204. 1 B. Monroe, 91. And in Tennessee. Statute Laws of Tennessee, 1836, p. 266, and act of 1823, ch. 37. ■i Tabele v. Tabele, 1 Johns. Ch. Rep. 45. Swaine v. Ferine, 5 ibid. 482. Titus V. Neilson, 5 ibid. 452. Peabody v. Patten, 2 Pick. Rep. 517. Gibson v. Crehore, 5 ibid. 146. Eaton v. Simonds, 14 ibid. 98. KecMcy v. Keckley, 2 Hill's S. C. Ch. Rep. 252. 256. In Ifew-York, if the lands of a testator or intestate be sold for the payment of debts, by order of the suiTOgate, and the widow will not accept of payment of a sum in gross, in lieu of her dower upon the lands sold, the surro- gate is directed to set apart one-third of the purchase money, to be invested by him in permanent secmities, on annual interest, and the interest to be paid to her during life. The same payment, or investment, is to be made, with the widow's consent, in the case of the sale of infants' estates. New- York Revised Statutes, vol. u. 106, sea 86, 37. 46. Ibid. 196. sec. 181. lee. LV.] OP REAL PROPERTY. 45 tirely gone ; for it never attached, as the mortgage was exe- cuted immediately on receiving the purchaser's deed." In the cases of Harrison t. JEldridge^ and Barker v. ParTcer^ the wife's interest in the equity of redemption, in a mortgage ex- ecuted by her and her husband, was held not to be sold by a sale of her husband's equity, under an execution at law against him only ; and the purchaser at the sheriff's sale took the land subject to the widow's dower. These cases present a strong instance of the security afforded to the wife's dower in the equitable estate of her husband. But if the mortgagee in such a case enters under a foreclosure, or after forfeiture of the estate, and by virtue of his rights as mortgagee, the wife's dower must yield to his superior title ; for, as against the title under the mortgage, the widow has no right of dower, and the equity of redemption is entirely subordinate to that title. The wife's dower in an equity of redemption, only applies in case of redemption of the incumbrance by the husband or his representatives, and not when the equity of redemption is released to the mortgagee, or conveyed. "= The reason of the American rule giving dower in equities of redemption is, that the mortgagor, so long as the mortga- gee does not exert his right of entry or foreclosure, is regarded as being legally as well as equitably seised in respect to all the world but the mortgagee and his assigns. Even in the view of the English courts of equity, the owner of the *equity of redemption is the owner of the land, and the *46 mortgage is regarded as personal assets."!' The rule, in several of the states, is carried to the extent of giving to the wife her dower in all trust estates. This is said to be the law of New-Jersey, Pennsylvania, Maryland, Virginia, Ken- tucky, Mississippi, Ohio, Illinois and Alabama ;« but the rule • Jackson v. Dewitt, 6 Cowen, 316. >- 2 HaUted, 392. l"? Mass. Rep. 564. - Popkin V. Bumsted, 8 Mass. Rep. 491. Bird v. Gardiner, 10 ihid. 364. Hil- dreth v. Jones, 13 ihid. 525. Gibson v. Crehore, 3 Tick. i15. 480, 481. Jackson V. Dewitt, 6 Ccnoen, 316. Van Dyne v. Thayer, 19 Wendell, 162. ^ Brown v. Gibbs, Prec. in Ch. 91. Carbone y. Scarfe, 1 Atk. 605. « Shoemaker v. Walker, 2 Serg. tb Rawle, 554. Reed v. Moriieon, 12 ibid. 18. Statutes of Virginia, 1785 and 1792. Miller v. Beverly, 1 ffen. d' Munf. 368. Claiborne v. Henderson, 3 ihid. 322. Griffith's Reg. American Jurist, No. 4, 398. Lawson v. Moi-ton, 6 Dana's Ken. Rep. 471. Elmei's Big. 147. note, where the 46 OF EEAL PROPERTT. [Part VI. in those states must be understood to be limited to the case of trusts in which the husband took a beneficial interest. It could not be applied to trust estates in which the husband was seised in fee of the dry technical title, by way of trust or power, for the sole interest of others.^ In all the other states, except those which have been mentioned, and except Louisi- ana, where the rights of married women are regulated by the civil law, and except, also, Georgia, where tenancy in dower is said to be abolished, jjjie strict English rule on the subject of trust estates is presumed to prevail.'' Though the wife be dowable only of an equity of redemp- tion, when the mortgage was given prior to her marriage, or when she joined with her husband in the mortgage, she is, after her husband's death, if she claims her dower, bound to contribute ratably towards the redemption of the mortgage. If the heir redeems, she contributes by paying, during life, to the heir, one-third of the interest on the amount of the mort- gage debt paid by him, or else a gross sum, amounting to the value of such an annuity." In England, the widow entitled to dower in an equity of redemption in a mortgage for years, has also, upon the same principles applicable to that *i^ analogous case, the right to redeem, *by paying her New-Jersey case of Dennis v. Kiernan, in Chancery, 1829, is^cited. The Statutes of Ohio, 1824, gives dower not only in all lands whereof the husband was seised as an estate of inheritance dui'lng the coverture, but in all hia right, title or interest at the time of his death, in lands and tenements held by Ijond, ai-ticle, lease or other evidence of claim. Chases Statutes of Ohio, vol. ii. 1314. If the husband purchases land, takes possession, makes improvements, and pays part of the pur- chase money without deed, the widow is entitled to dower. Smiley v. Wright, 2 Ohio Rep. 501. In North Carolina, on the other hand, it is said to have been more than once decided, that the widow was not entitled to dower in her husband's equity. Hen- derson, J., in 1 Badger dk Devereux's Equity Gases, 196. * See Rowton v. Rowton, 1 Hen. & Munf. 92. In Alabama, the widow is entitled to dower in lands held for the use, or in tnist for the benefit of her husband, provided she would be entitled if the estate was a legal one. Laws of Alabama, 24Y. sec. 9. So, in Mississippi. R. C. of Mississippi, 1824. ' In the case of Robinson v. Codman, 1 Sumner, 129, Judge Stoiy held, at the Circuit Court in Maine, that an estate held by the husband in trust, was not hable to the dower of his wife. See, also. Cooper v. Whitney, 3 Hill, 101. S. P. ' Swaine v. Perine, 6 Johns. Oh. Rep. 482. Gibson v. Crehore, 6 Pick. Rep. 146. Bell V. Mayor of New-York, 10 Paige, 49. House v. House, id. 159, vide infra, 76. Lee. LV.] OF REAL PROPERTY. 47 proportion of the mortgage debt, and to hold over until she is reimbursed.'' As to the interest of a widow of a mortgagee^ the case, and the principles applying to it, are different. A mortgage be- fore foreclosure is regarded by the courts in this country, for most purposes, as a chattel interest j^ and it is doubted whether the wife of the mortgagee, who dies before foreclosure or entry on the part of her husband, though after the techni- cal forfeiture of the mortgage at law by non-payment at the day, be now, even at law, entitled to dower in the mortgaged estate. The better opinion I apprehend to be, that she would not be entitled as against the mortgagor. The New- York JRevised StatMtes" have settled this question in-iNew-Tork, by declaring that a widow shall not be endowed of lands con- veyed to her husband by way of mortgage, unless he acquired an absolute estate therein during the marriage.^ *II. In what wa/y dower will he defeated. *48 Dower will be defeated upon the restoration of the sei- sin under the prior title in the case of defeasible estates, as in the case of re-entry for a condition broken, which abolishes the intermediate seisin.^ A recovery by actual title against the " Palmea v. Danby, Free, in Ch. 13'7. ^ Stewart v. Waters, 1 Gained Case in Error, 47. Jackson t. Willard, 4 Johns, Rep. 41. Huntmgton v. Smith, 4 Conn. Rep. 235. Eaton v. Whiting, 3 Pick. Rep. 484. " Vol i. 741. sec. 7. ^ By the absolute estate, in the revised code, more was intended than the estate which is technically absolute at law on default of paylnent at the day. I presiime the word absolute is here to be taken in the sti'ongest sense. In Runyan t. Merse- reairx, 11 Johns. Rep. 534, it was held, that the freehold was in the mortgagor before foreclosure or entry. If the mortgagee enters without foreclosure, the free- hold may then be shifted in contemplation of law ; but still the mortgagee has not an absolute estate, so long as the equity of redemption hangs over that estate and qualifies it. According to the English law, the wife of the mortgagee would be entitled to her dower, in such a case, from the heir of the moi-tgagee, who. died in possession, though' the^estate in dower would be defeasible, like her husband's estate, by redemption, on the pai-t of the mortgagor. The words of the new revised statutes were probably intended to stand for an estate with the equity of redemp- tion finally foreclosed and absolutely barred. Upon that construction the restriction has been earned beyond the English mle, and I apprehend, beyond the necessity or reason of the case. • Ferlcins, sec. 311, 312. 317. 48 OF REAL PEOPERTY [Pm-t TI. husband, also defeats the wife's dower ; but if he give up the land by default, and collusirely, the statute of "Westm. 2, c. 4, preserved the wife's dower, unless the tenant could show af- firmatively a good seisin out of the husband and in himself. This statute, according to Perkins, was an affirmance of the common law.a The principle is, that the wife shall have dower of lands of which her husband was of right seised of an estate of inheritance, and not otherwise. If, therefore, a disseisor die seised, and his wife be endowed, or bring her writ of dower, she will be defeated of her dower on recovery of the lands, or upon entry by the disseisee.'' And the sound principle of making the title to dower rest upon the husband's right, is carried so far as to allow the wife to falsify even a recovery against her husband, upon trial, provided the re- covery was upon some other point than the abstract question of right." But under the complicated modifications of seisin, contemplated in the ancient law, and which are collected and digested by Perkins, in his excellent repository of the black- letter learning of the Year Books, the seisin of the husband was sometimes defeated so as to bar dower, though the *49 right remained in him ; and in other *cases, the dower would be preserved though the seisin was defeated, by reason of some prior distinct seisin which had attached in the husband."! If the husband be seised during coverture of an estate sub- ject to dower, the title will not be defeated by the dermina- tion of the estate by its natural limitation ; for dower is an incident annexed to the limitation itself, so as to form an in- cidental part of the q^ tate limited. It is a subsisting interest implied in the limitation of the estate. Thus, if the tenant in * Perkins, sec. S'lB. It Tivas, ho-wever, re-enacted in totidem verbis, in New- York, ITS'/. rXawso/JVew-Ioj-A, sess. 10. c. 4eec. 4. And it is in substance adopted and enlarged by the New-York Revised Statutes, vol. i. 742. sec. 16, -which declare, that " no judgment or decree confessed by or recovered against the husband ; and no laches, default, covin or crime of the husband, shall prejudice the right of his •wife to her doTver or jointure, or preclude her from the recovery thereof, if other- ■wise entitled thereto." See, also, to S. P. Statute of Ohio, 1824. Chases Statutes, vol. ii. 1315. ^ Litt. see. 893. Co Litt. 240. b. Berkshii-e v. Vanlore, Winch. 11. " Perkins, sec. 381. i Perkins, sec. Sl9, 380. Park on Dower, 148. Leo. LV.] OF REAL PBOPERTT. 49 fee dies without heirs, by which means the land escheats ; or if the tenant in tail dies without heirs, whereby the inherit- ance reverts to the donor ; or if the grantee of a rent in fee dies without heirs ; yet in all these cases, the widow's dower is preserved, ii By the rules of the common law, dower will determine, or be defeated, with the determination of the estate, or avoidance of the title of the husband by entry as for a con- dition broken, or by reason of a defective title. (1) So, dower will be defeated by the operation of collateral limitations, as in the case of an estate to a man and his heirs so long as a tree shall stand ; or in the case of a grant of land or rent to A. and his heirs till the building of St. Paul's church is fin- ished, and the contingency happens. i* Whether dower will be defeated by a conditwnal limitation, created by way of shifting use or executory devise, is hitherto an unsettled and vexed question, largely discussed in the books." The estate of the husband is, in a more emphatical degree, over- reached and defeated *by the taking effect of the limi- *50 tation over, on these conditional limitations, than in the case of collateral limitations ; and the ablest writers on pro- perty law are evidently against the authority of the case of BucTcwm'ih v. Thirhell, and against the right of the dowress when the fee of the husband is determined by executory de- vise or shifting use.'^ As a general principle, it may be observed, that the wife's dower is liable to be defeated by every subsisting claim or incumbrance in law or equity, existing before the inception of the title, and which would have defeated the husband's • Bro. tit. Tenures, pi. 33, tit. Dower, pi. 86. Paine's case, 8 Co. 34. Jenh Cent. 1. case 6. p. 5. '• Jenk. Cent, supra. Preston on Abstracts of Title, vol. iii. 373. Butler's note, 170, to Co. lAtt. 241. a. » The cases of Sammes v. Payne, 1 Leon. 167. Ooldsb. 81. Mavill v. Vea- trice, Viner's Abr. vol. ix. 217. F. pi. 1. Sumner v. Pai-tridge, 2 Ath. 47, and Buctworth y. Thirkell, 3 Bos. db Pull. 652. n., are ably reviewed by Mr. Park ; and the latter case, though decided by the K. B. in the time of Lord Mansfield, after two successive arguments, is strongly condemned, as being repugnant to settled distinctions on this abstruse branch of law. ^ Butler's note, 170, to Co. Litt. 241, a. Sugden on Powers, 333. Preston on Abstracts of Title, vol. iii. 372. Park on Dower, 168—186. (1) Beardalee v. Beardslco, 5 Sari. S. O. Bep. 824 Vol. IV. 4: 50 OF REAL PROPEETY. [Part VI. seisin. An agreement by the husband to convey before dower attaches, will, if enforced in equity, extinguish the claim to dower. In equity, lands agreed to be turned into money, or money into lands, are considered as that species ot property into which they were agreed to be converted ; and the right of dower is regulated in equity by the nature of the property in the equity view of it.^ in. Sow dower may le ha/rredt' Dower is a title inchoate, and not consummate till the death of the husband ; but it is an interest which attaches on the land as soon as there is the concurrence of marriage or seisin. It may be extinguished in various ways, though the husband alone, according to the common law, cannot defeat it by any act in the nature of alienation or charge, without the assent of his wife, given and proved according to law ; and this is now the declared statute law of New- York. ^ *51 *If the husband and wife levy a fine, or suffer a common recoveiy, the wife is barred of her dower.<= This was until lately the only regular way, in the English law, of barring dower, after it has duly attached, but now, by the statute of 3 & 4 "Wm. lY., c. 105, power is given to the husband in various ways, in his discretion, to bar his wife's right of dower, as by conveyance in his lifetime, by devise, or by his declaration by will that his lands shall be exempt from her dower.^ A devise in fee, by will, to a wife, with a power of disposition of the estate, would not enable her to convey without a fine, for the power would be void, as being inconsistent with the fee.« But other ingenious devices have been resorted to, in order to avoid the troublesome lien of lower. If an estate be conveyed to such uses as the purchaser by • Greene v. Greene, 1 Hammonds Ohio Rep. 538. In that case the subject is ably discussed ; and the -whole volume is evidence of a very con-ect and enlight- ened administration of justice, in equity as well as in law. Coster v. Clarke, 3 Edwards' N. Y. Ch. Rep. i1. >> N'ew-YorJc Revised Statutes, vol. i. 742. sec. 16. " Lampet's Case, 10 Co. 49, b. Eare v. Snow, Plowd. 504. ' See ante, p. 44, note. » Goodell v. Bingham, 1 Bos. S Pull. 192. Lee. LV.] OF EEAL PROPERTY. 31 .deed or will should appoint, and in default of appointment to the purchaser in fee, it is settled, that the estate vests in the purchaser as a qualified fee, subject to be divested by an exer- cise of the power, (for the power is not merged in the fee,) and, consequently, dower attaches. It has been a cpestion- able point, whether the subsequent exercise of the power, as being a prior or paramount right, would not dislocate and carry with it the dower of the purchaser's wife. The better opinion is, that the dower is defeated by the execution of the power ; and yet, in order the more certainly to prevent it, the conveyancers have limited the land to the use of the purchaser's appointee, and, in default of the appointment, to his use for life, and then to the use of his heirs in fee. Here it does not require the power of appointment to bar the dower; and yet the whole estate is completely in the purcha- ser's power.* A more sm-e way to bar the dower, was by the introduction of a trustee into the conveyance, and limiting the lands to such persons as the purchaser should appoint ; and in default of, and until such appointment, to the purchaser for life ; and in case his wife should survive him, then to B. and his heirs during the *life of his wife, in trust for the *52 purchaser's heirs and assigns, with remainder to the heirs of the purchaser in fee.^ But here a very vexatious question arose, whether the trustee must be a party to the con- veyance from the purchaser ; and eminent counsel have given different opinions on the subject." In this country, we are, happily, not very liable to be perplexed by such abstruse questions and artificial rules, which have incumbered the subject of dower in England to a grievous extent. Even in those states where the right of dower, as at common law, ex- • Butler's note, 119, to Co. Litt. 216, a. and note 330, to Oo. Lift. 379, b. Gil- bert on Uses, by Sugden, 321, note. Fearne oti Remainders, vol. i. 437, note, 5th edit Park on Dower, 85. 187, 188. Lord Eldon, in Maundrell v. Maundrell, 10 Vesey, 263. 265, 266. Heath, J., in 3 ibid. 657. ^ Butler's note, 330, to Co. Litt. lib. 3. » Parle on Dower, 93 — 99, has given ua the conflicting opinions of such distinguished and largely experienced conveyancing counsel as Mr. Marriott, Mr. Wilbraham, Mr. Booth, and Mr. Filmer, who flourished in the middle of the last century ; and he adds as his own opinion, that, strictly speaking, a purchaser is entitled to the con- cuiTence of the trustee, in every case in which that trustee is sui juris, and can convey without the expense of a fine, or an order in chancery. 52 OF REAL PEOPERTY. [Port VI. ists in full force, the easy mode and familiar practice of bar- ring dower by deed, supersedes the necessity of the ingenious contrivances of English coimsel. Eather than have the sim- plicity and certainty of our jurisprudence destroyed by such mysteries, it would be wiser to make dower depend entirely upon the husband's seisin in his own right, and to his own use, of an estate in fee-simple, pure and absolute, without any condition, limitation or qualification whatsoever annexed. The statute of Westm. 2, 13 Edw. I., made adultery in the wife, accompanied with elopement, a forfeiture of dower by way of penalty ; but reconciliation with the husband would reinstate the wife in her right. The statute was re-enacted in New-York, in 178Y, and has undergone a very material modi- fication in the new revised code." The same provision « .Laws of New-TorTc, Bess. 10, c. 4. sec, 7. Nem-Tork Revised Statutes, vol. i. 741, sec. 8. The statute of 1787 ban-ed the -wife of dower who eloped and lived ■with an adulterer, unless her husband was subsequently reconciled to her. The new revised statutes have abridged this ancient bar, by confining it to cases of a dissolu- tion of the marriage contract ; or else making it to depend on conviction of adulteiy in a suit by the husband for a divorce. It is declared that " in case of divorce dis- solving the maniage contract for the misconduct of the wife, she shall not be en- dowed." See vol. i. 741. Upon this provision it may be observed, that in case of a divorce a vinculo, dower would cease, of course, and no such statute provision was necessaiy ; and if there should be no divorce, or the husband should die before he had time or the means to obtain it, the adulteress could sue for and recover her dower. It is difficult to know what is exactly meant here by the misconduct of the wife. It is much too vague and general to be the ground of such a penal for- feitui'e. In a subsequent branch of the Revised Statutes, (see vol. ii. 146, sec. 48,) it is declared that if the wife be convicted of adultery, in a suit for divorce brought by the husband, she forfeits her right of dower. The word misconduct must then have some other meaning, and apply to some other offence than adulteiy. Marri- ages are to be dissolved by the chancellor, when made within the age of consent, or when a former husband or wife is living, or when one of the parties is an idiot or lunatic, or the consent of one of the pai-ties was obtained by force or fraud, or causa impotentics. New-York Revised 8tatutes,yo\. ^.Ii2,li%, 144. It is uncertain how far the term misconduct applies to these several causes of divorce, so directly as to work a forfeitui'e of dower. But in fact there was no need of the provision ; for as the law always stood, if the dowress was not the wife at the death of the husband, her claim of dower fell to the gi-ound. The provision seems to be absolutely useless ; and it ought to be added, in justice to the revisers, that the bill, as onginaUy re- ported by them, contained on this point, the provision and the language of the old law. It would have been safer and wiser to have retained the plain, blunt style of the old law, and confined the loss of dower to a conviction of adulteiy ; or else to have defined in precise terms the additional offence, if any, which was to destroy the dower. Lee. LV.] OF REAL PROPERTY. 53 *was made by statute in Connecticut ; and there is so *53 much justice in it, that an adulterous elopement is pro- bably a plea in bar of dower in all the states in the Union which protect and enforce the right of dower.'^ New- York, however, is to be considered an exception'to this remark ; for, by the Revised Statutes^ the wife only forfeits her dower in cases of divorce a vinculo for misconduct, or on convic- tion *of adultery, on a bill in chancery by the husband *54- for a divorce ; and every plea of elopement in bar of dower would seem to be annihilated. A divorce, a vinculo matrimonii, bars the claim of dower ; for to entitle the party claiming dower, she must have been the wife at the death of the husband.^ (1) But in case of such a divorce for the adultery of the husband, it is provided in the statute law of those states which authorize the divorce, that a right of dower shall be preserved, or a reasonable provision be made for the wife out of the husband's estate, by way of indemnity for the loss of her dower, and of her husband's pro- tection." The wife may also be barred of her dower by having a joint estate, usually denominated a jointwre, settled upon " Swift's Digest, vol. i. 86. Bands Abr. vol. w. 672. 676. Cogswell t. Tib- bitts, Z N. H. Rep. 41. Statute of Ohio, Jan. 26, 1824, sec. 6. Revised Laws of Illinois, 1833. But, in Hetberington v. Graham, 6 Bingham, 135, adultery is deemed a bar to dower, though the wife does not elope with the adulterer. It will bar her dower, if she leaves her husband voluntarily, and afterwards lives in adul- tery. The Revised Statutes of Connecticut of 1821, give dower to every married woman living with her husband at his death, or absent by his consent, or default, or by inevitable accident. An adulterous elopement will of course exclude her. In New-Jersey, a decree of divorce, a vinculo, for the fault of the wife, forfeits her dower. So does a voluntary elopement with an adulterer, or consent to a ravisher, bar her of dower and jointure, unless her husband be voluntarily reconciled to her, and suffer her to live with him. Elmer's Dig. 145, In Ohio, it has been adjudged that a decree of divorce in another state, for wilful abandonment of the husband by the wife, was no bar to her right of dower in lands lying in the state of Ohio. Mansfield v. Mclntyre, 1 Wilcox, 27. >> 2 Blacks. Oom. 130. " New-York Revised Statutes, vol. ii. 145. sec. 45. Connecticut Statutes, 180. tit. Dower. Mass. Statutes, 1785, c. 69. Statutes of Ohio, Jan. 7th, 1824. The same statute confines the bar by divorce, to that arising from the aggression of the wife. Mass. Revised Statutes, 1835, part 2. tit. 7. c. 76. sec. 32. (1) A woman, who has obtained a decree for a divorce a vinculo matri'nwnii for tlie adultery of her liusband, has been held not entitled, after his death, to dower in his estate. Wait t. Wait , iBari.S.O.Eep.m. 54 OF BEAL PROPERTT. [Part VI. her and her husband, and in case of his death, to be extended to the use of the wife during her life. The jointure, in the English law, is founded on the statute of 2Y Hen. VIII., c. 10 ; and its provisions have been very extensively incorpora- ted into the law of4;his country. It must take effect immedi- ately on the death of the husband ; and must be for the wife's life, and be made and declared to be in satisfaction of her whole dower.a If the jointure be made before marriage, it bars the dower ; but if made after marriage, the wife, on the death of her husband, has her election to accept of the joint- ure, or to . renounce it, and apply for her dower at common law ; and if she be at any time lawfully evicted of her jointure, or of any part of it, she may repair the loss or deficiency by resorting to her right of dower at common law. Under the English law, adultery is no forfeiture of the jointure, or of articles of agreement to settle a jointure, though it be a *55 bar to dower; *and the distinction depends upon a positive provision by statute for the one case, and none for the other.'' It was a rule of law deduced from the statute of 27 Hen. Vni., making a jointure a bar, that the settlement, to be a bar of dower, must be to the wife herself, and not to any other person in trust for her, provided the estate remains in the trustee." A conveyance to trustees, for the use of the wife after her husband's death, is, in point of law, no jointure ; but such a settlement, if in other respects good, will be enforced in chancery as an equitable bar of dower ; and courts of equity have greatly relieved the parties from the strict legal con- struction given to the English statute.^ It has also been settled, after great discussion in the English House of Lords, in the case of Drury v. Drury^ and in New-York, in McOartee v. Teller, that a jointure on an infant before covert- » Go. Liu. 36. b. Vernon's case, 4 Co. 1. ^ Sidney v. Sidney, 3 P. Wms. 269. Blount t. Winter, cited in note to 3 Plowd. 211. The Master of the Rolls, in Seagrave v. Seagrave, 13 Vesey, 443. Jointure, by the New-Yorlc Revised Statutes, toI. i. 742. sec. 15, is forfeited in the same cases in which dower is, and consequently adultery forfeits it ; and the same provision is in the Virginia act of 1792, concerning jointures in bar of dower. « Go. Zitt. 36. b. ^ Lord Hardwicke, in Hervey v. HeiTcy, 1 Atl: 562, 668. Jordan v. Savage, Bacon's Abr. tit. Jointure, b. 5. Lee. LV.] OF REAL PROPERTr. 55 ure, bars her dower, notwithstanding her infancy, on the ground of its being a provision by the husband for the wife's support. It was considered to be a bar, a provisionemr% and not ex contractu; and the assent of the wife was held not to be an operative circumstance, though the ante-nuptial contract was, in that case, executed by the infant in the presence of her guardian. 1 An equitable jointure, or a competent and certain provision for the wife, in lieu of dower, if assented to by the father or the guardian of the infant before marriage, will also, in analogy to the statute, constitute an equitable bar.b But the conveyance before marriage of an estate to the wife, to continue during widowhood, by way of joint- ure, *or if made to depend on any other condition, will *56 not bar her dower, even if she be an adult, unless, when a widow, she enters and accepts the qualified freehold. The legal or equitable provisions must be a fair equivalent to the dower estate, to make it absolutely binding in the first in- stance. <= In E"ew-York, the statute of 27 Hen. VIII., concerning jointures, was, in 178T, adopted verbatim;'^ but it has been altered and improved by the new revised statutes ; and the • Druiy V. Druiy, 5 Bro. P. 0. 570. 2 Eden JR. 39. 4 Bro. Oh. Rep. 506. note. S. C. Caruthera v. Caruthers, 4 ibid. 500. M'Cartee v. Teller, 2 Paige, 511. 8 Wendeirs Rep. S. C. See, also, supra, Oomm. voL ii. 243. S. P. la Ohio, the mdre just rule ia adopted, that if the jointure was made when the wife was an infant, or after marriage, she has her election after her husband's death, to waive her jointure and demand her dower. Statute of Ohio, 1824. The same statute secures her from loss or eviction of her jointure, according to the provision of 27 Hen. VIII. Ohas^s Statutes of Ohio, voL ii. 1315. The Assistant Vice-Chancellor, in Temple V. Hawley, 1 Sandfords Ch. Rep. 153, after a very elaborate and able examina- tion of cases, adjudged that a. female infant could not bind her real estate by a man'iage settlement absolutely, but might avoid it after she came of age, if sole. i- Corbit v. Corbit, 1 Sim. & Stu. 612. M'Cartee v. Teller, 2 Paige, 511. " M'Cartee v. Teller, 2 Paige, 511. An adult female cannot contract before marriage to relinquish her dower without due compensation. Neither a court of law or equity will tolerate such a contract. Power v. Shell, 1 Molloy's Rep, 296. In Georgia, the rule of the ancient English law is retained, that if the wife sell or give in fee, or for a term of life her dower land, she forfeits the same, and the heir or reversioner may enter. Hotchkiss Code, p. 436. But after dower has been duly assigned and set-off, (but not before,) the widow may sell and convey her life interest. 14 Ohio Rep. 520. ^ Laws of New-York, seas. 10. c. 4. sec. 8. 56 OF REAL PROPERTY. [Part VL principle in equity, allowing jointures to exist also by con- veyance of lands to a trustee, in trust for the wife, has been introduced into the statute law, which provides, that if " an estate in lands be conveyed to a person and his intended wife, or to such intended wife alone, or to any other person in trust for such person and his intended wife, or in trust for such wife alone, for the purpose of creating a jointure for such in- tended wife, and with her assent, such jointure shall be a bar to any right or claim of dower, Oo. lAtt. 36. b. Harg. note 224, to lib. 1. Co. Litt. Lawrence v. Lawrence, 2 Vern. Rep. 365. 1 Dallas Rep. 117. Larrabee v. Van Alstyne, 1 Johns. Rep. 307. ■= Lord Alvanley, in French v. Davies, 2 Ves. jun. 578. Lord Redesdale, in BiiToingham v. Kirwan, 2 8ch. & Lefroy, 451. Larrabee v. Van Alstyne, 1 Johns. Rep. 307. Van Orden v. Van Orden, 10 ibid. 30. Jackson v. Churchill, 7 Oomen's Rep, 287. Pickett v. Peay, 2 Const. Rep. S. G. 746. See, also, Butler's and Baker's case, 3 Leon, 272. arg. Gosling v. Warburton, Cro. Eliz. 128. Be- 68 OF REAL PROPERTY. [Part VL vision in lieu of dower, in order to render it such, even with the widow's acceptance of it, must be declared, in express terms, to be given in lieu of dower ; or that intention must be deduced by clear and manifest implication from the will, founded on the fact that the claim of dower would be incon- sistent with the will, or so repugnant to its dispositions as to disturb and defeat them.^ (1) The New- York Revised Stahttes^ have embodied most of these principles of law and equity, with some variations and amendments. They declare, and so does the law of Massa- chusetts and Connecticut, that any pecuniary provision made before marriage in lieu of dower, if duly assented to by the wife, shall bar her dower. But any settlement, by land, or any pecuniary provision, if made after marriage, or if before mar- riage, without the wife's assent, or if made by wUl, shall not bind her, though declared to be in lieu of dower; but she shall be obliged to make her election between her dower and the tween two inconsistent rights, where it is against the intention of the party creating the right, and against conscience, that both should be enjoyed, an election will be enforced even against feme coverts and infants, after a reference to a master to inquire which course would be most reasonable. See Gretton v. Howard, 1 Swanston, 413. Davis v. Page, 9 Vesey, 350, and see the learned note in 1 Swan- sion, 413 — 41'7. One cannot take a right as legatee under a will, and then set up a claim in opposition to the will. Hamblett v. Hamblett, 6 Jf. H. Bep. 333. Weeks v. Patten, 18 Maine Rep. 42. » French v. Daviea, 2 Ves. Rep. 572. Strahan v. Sutton, 3 Ves. Rep. 249. Dowson V. Bell, 1 Keen, 761. Hai-rison v. Harrison, ibid. 765. Kennedy v. Ned- row, 1 Dallas' Rep. 415. Adsit v. Adsit, 2 Johns. Ch. Rep. 448. Jackson v. Churchill, 7 Oowen's Rep. 287. Pickett v. Peay, 2 Const. Rep. S. O. 746. Evans y. Webb, 1 Yeates' Rep. 424. Perkins v. Little, 1 Greenleaf, 150. Dickson v. Robinson, 1 Jacob, 503. AUen v. Pray, 3 Fairfield, 138. Stark v. Hunton, Bax- ton's N. J. Ch. Rep. 216. Bull v. Church, 5 HilVs N. Y. Rep. 206. If the wife takes a legacy in lieu of dower, she takes as a purchaser for a valnable considera- tion, and is entitled to be paid in preference to legatees who are mere volunteers; Hubbard v. Hubbard, 6 Metcalf, 50. >■ Vol. i. 741. sec. 11, 12, 13, 14. (1) Sandford v. Jackson, 10 Paige's B. 266. Holdich v. Holdich, 2 You. & Coll. Jl. 18. Leon- ard T. Steele, 4 Sari. iS. 0. 20. Where a testator devised all his estate to his wife during her U/e, or so long as sJie sliould remain his widow, and, after her decease or re-marriago, to his children, and the widow subsequently married a second husband, held, that although she had occupied the land for several years, she was still entitled to dower. Church v. Bull, 2 Denio's E. 430. Occupancy by a widow for eleven years under the will, has been held to be evidence that she had elected to take under the will, though the will contained no express provision that she should elect Caston v. Caston, 2 Mich. Eg. 23. Lee. LV.] OF REAL PROPERTY. 59 jointure or pecuniary provision. The widow shall be deemed ' to have elected to have taken the jointure, devise or pecu- niary provision, unless, within one year after the husband's death, she shall enter on the lands to be assigned her for dower, or commence proceedings to *recover the *59 same.a It is likewise declared that every jointure, devise and pecuniary provision in lieu of dower, shall be for- feited by the woman for whose benefit the same shall be made, in the same cases in which she would forfeit her dower.i" It was a principle of the common law, that if the husband, seised of an estate of inheritance, exchanged it for other lands, the wife should not have dower of both estates, but should be put to her election." This principle is also introduced into the New- York Itemsed Statutes ; and the widow is required to evince her election to take dower oiit of the lands given in exchange, by the commencement of proceedings to recover it, within one year after her husband's death, or else she shall be bound to take her dower out of the lands received in ex- change.^ (1) The usual way of barring dower, in this country, by the voluntary act of the wife, is not by fine, as in England, but by her joining with her husband in a deed of conveyance of the land, containing apt words of grant or release on her part, and acknowledging the same privately, apart from her husband, in the mode prescribed by the statute laws of the several - Hawley v. James, 5 Paige Rep. 318. The Statute of Virginia of 1'727, gave the -wido-w Dine months; and the Statute of Ohio of 1831, six months; and the Statute of Vermont of 1T99, sixty days, to make her election; and if she made none, she ivas held exclusively to her dower at common law. The Mass. Statutes of 1836, give the widow six months to elect, but, like those of New- York, they assume that the substituted provision in lieu of the dower is taken, unless waived within the time prescribed. The Revised Statutes of Illinois, edit. 1833, p. 624, declare, that any provision by will bars dower, unless it be other- wise expressed in the will, and unless the widow in six months renounces the provision. ^ New-York Revised Statutes, vol. i. 742. sec 15. « Co. Litt. 31. b. ^ Nevi-York Revised Statutes, vol. i. WO. sec 3. How far a wife may be baiTed of her dower by a sale under a decree in partition, see infra, p. 365. (1) TUcox V. EandaD, T Barrli. S. O. Jl. 683. 60 OF REAL PROPERTY. [Part VI. states. This practice is probably coeval with the settlement of the country ; and it has been supposed to have taken its rise in Massachusetts, from the colonial act of 1644:.^ The wife must join with her husband in the deed, and there must be apt words of grant, showing an intention on her part to relinquish her dower. •» This is the English rule in *60 respect to a fine ; and the wife's dower is *barred by a fine, either wholly, or only^ro tanto^ according to the declared intent. It is almost a Jnatter of course, in this coun- try for the wife to unite with her husband in aU deeds and mortgages of his lands ; and though the formality of her sepa- rate acknowledgment is generally required to render her act binding, yet, by the laws of ISTew-Tork and Illinois, if she resides out of the state, the simple execution of the deed by her will be sufficient to bar her dower, as to the lands in the state so conveyed, equally as if she were a feme sole.'' (1) *61 *IV. The mwrnier of assigning dower. To give greater facility to the attainment of the right of dower, (and which Lord Coke informs us was one of the three principal favourites of the common law,)'^ it was provided by magna charta,^ that the widow should give no- thing for her dower, and that she should tarry in the chief house of her husband for forty days, (and which are called the widow's quarantine,) after the death of her husband, with- in which time her dower should be assigned her ; and that, * 3 Masons Rep. 361. >> Catlin y. Ware, 9 Mass. Rep. 218. Lufkin v. Curtis, 13 ibid. 223. Powell v. M. & B. Mann. Company, 3 Mason's Rep. 347. By the Mass. Revised Statutes, of 1835, the wife may bar her dower by joining with her husband in the conveyance of the estate, or by his joining with her in a subsequent release of it Ifo private examination seems to be requisite. = New-Tork Revised Statutes, vol.1 785. sec. 11. Revised Laws of Rlinois, 1833. In Georgia a conveyance by the husband alone dming coverture, bars a wife's right of dower, except as lands whereof he became possessed by his marriage with her. HotchMss, Code, ttc, 429. So a conveyance of land by sale or execu- tion in the lifetime of the execution, bars the right of dower. Id. i Co. Litt. 124. b. • 0.7. (1) But an infant ^me covert cannot bind herself by deed so as to bar her right of dower. Cunningham t. Knight, 1 Barb. S. C. Rep. 899. Lee. LV.] OP REAL PEOPERTY. 61 in the mean time, she should have reasonable estovers, or maintenance, out of the estate. The provision that the widow should pay nothing for dower, was made with the generous intention of taking away the uncourtly and oppressive claim of the feudal lord, for a fine, upon allowing the widow to be endowed. This declaration of magna charta is, probably, the law in all the United States. In New-York the provision is re-enacted, and with the addition that she shall not be liable for any rent during the forty days, though the allowance of maintenance necessarily implied that she was to live free of rent.8- The widow cannot enter for her dower until it be as- signed her, nor can she alien it, so as to enable the grantee to sue for it in his own name. It is a mere chose or right in action, and cannot be sold on execution at law, though in New-York it may be reached by process in chancery for the benefit of creditors.'' (1) She has no estate in the lands until assignment ; and after the expiration of her quarantine, the heir may put her out of possession, and drive her to her suit for her dower. She has no right to tarry in her husband's house beyond the forty days ; and it is not until her dower *has been duly assigned, that the widow acquires *62 a vested estate for life, which will enable her to sustain her ejectment.<= It was decided in New-Jersey^ that though » New-York Revised Statutes, vol. L 742. sec. 17. It is also the law in Massa- chusetts, Revised Statutes, of 1835, part 2. tit. 1. c. 60. Id the first act of the legislature of the province of New-York, under the Duke of York, in 1683, it was among other things declared, that the widow should have her dower, consisting of one-thii'd part of all the lands of her husband during coverture, and that she might tarry in the chief house of her husband, forty days after his death, within which time her dower was to be assigned. I" Nem- York Revised Statutes, vol. ii. 214. sec. 39. = Zitt. sec. 43. Co. lAtt. 32. b. 31 a. Doe v. Nutt, 2 Carr. & Payne, 430. Jackson v. O'Donaghy, 7 Johns. Rep. 247. Jackson v. Aspell, 20 ihid. 411. Jack- son V. Vanderheyden, 17 ibid. 167. Chapman v. Armstead, 4 Munf. 382. Moore V. Gilliam, 6 ibid. 346. Johnson v. Morse, 2 N. H. Rep. 49. Sheaffer v. O'Neil, 9 Mass. Rep. 13. Siglar v. Van Eiper, 10 Wetidell, 414. M'CuUy v. Smith, 2 Baileys S. 0. Rep. 103. (1) In New-York, until assignment, tlie wife's interest is a cliose m ad/ion or claim, whicli is extinguislied by a sale under a surrogate's order. Lawrence v. Miller, 2 Comst. R. 245. Stewart V. McMartin, 5 Barb. S. C. Rep. 438. She has no etstate in the land before assignment, and can- not assign or convey her right, though she may release it. Green v. Putnam, 1 Bari, S, 0. Rep. 500. 3/(?.319. 62 OF REAL PROPERTY. Part VL the widow could not enter upon the land until dower was as- signed, yet, being in possession, she could not he ousted by the owner of the fee in ejectment, unless her dower was as- signed her.'' This decision is against the decided weight of English and American authority, but it was correctly decided, according to the very reasonable statute law of New-Jersey, which gives to the widow the right to hold and enjoy the mansion house, and the messuage and plantation thereto be- longing, free of rent, until dowef be assigned ; and she has, therefore, a freehold for life, unless sooner defeated by the act of the heir.!" There is the same reasonable statute provision in Kentucljy, Indiana, Illinois, Alabama, Mississippi and Vir- ginia ; the rule in Connecticut and Missouri is the same, and upon the death of her husband, the widow is by law deemed in possession as a tenant in common with the heirs, to the extent of her right of dower ; and her right of entry does not depend upon the assignment of dower, which is a mere sever- ance of the common estate."= Though in point of tenure she holds of the heir or reversioner, yet the widow claims para- mount to the heir. Her estate is a continuation of that of her husband, and upon assignment she is in by relation from her husband's death.^ In North Carolina, the law provides for the widow's sup- port for one year, and it is suggested that the time of her quarantine may be thereby enlarged. But though she be an occupant, the legal title before the assignment of dower is exclusively in the heirs, and they are occupants also.'' ■ Den V. Dodd, 1 Hahted, 361. *■ 3 Halsied, 129. " Stedman t. Fortune, 5 Conn. Rep. 462. GriffitKs Reg. tit. Kentucky. Taylor v. M'Crackin, 5 Blackf. Ind. Rep. 261. Revised Laws of Illinois, edit. 1833, and of Indiana, 1838, p. 239. Alabama Dig. 258. 1 Revised Code of Virginia, c. 107. sec. 1, 2. p. 403. Stokes v. M'AUister, 2 Missouri Rep. 163. In Tennessee, by- statute, the widow is entitled to a support for herself and her fixmily, for one year, out of the assets. "■ Norwood T. MaiTOW, 3 Battle's y. C. Rep. 448. - Branson v. Yancy, 1 Bad. & Bev. Eq. Cos. 11. If it bo the case, that in Xorth Carolina the quarantine is enlarged for a year, it is a revival of the ancient law of England ; and this enlarged quarantine. Lord Coke says, was certainly the law of England before the conquest. Co. Lilt. 32. b. In Ohio, the widow is to remain in the mansion house of her husband, free of chai-ge, for one yeai- after his death, if her dower be not sooner assigned her. Statutes of Ohio, 1824. Lea LV.] OP REAL PROPERTY. 63 *The assignment of dower may be made in pais by *63 parol, by the party who hath the freehold ; bnt if the dower be not assigned within the forty days, by the heir or devisee, or other persons seised of the lands subject to dower, the widow has her action at law by writ of dower, unde nihil hdbet, or by writ of right of dower against the tenant of the freehold. The former is to be preferred, because the widow, in that case recovers damages for non-assignment of her dower, which she would not in a writ of right ; and the dam- ages by the statute of Merton were one-third of the annual profits of the estate from the death of the husband. The writ lies, in every case, excepting only where the widow has re- ceived part of her dower of the same person who is sued, and out of lands in the same town.'' The writ of right of dower is of rare occurrence, if not entirely unknown in this country ; and the learned author of the Treatise en the Pleadings and Practice in Peal Actions, says,'' that he had never known any such action in Massachusetts. On recovery at law, the sheriflF, under the writ of seisin, delivers to the demandant possession of her dower by metes and bounds, if the subjects be properly divisible, and the lands be held in severalty.<= If the dower arises from rent, or other incorporeal hereditament, as commons or piscary, of which the husband was seised in fee, the third part of the profits is appropriated to the widow. "^ If the property be not divisible, as a mill, she is dowable in a special manner, and has either one-third of the toll, or the - Co. Lilt. 32. b. 2 Inst. 262. '' P. SOT. The Mass, Revised Statutes, of 1835, authorize Ihe judge of piotate of the county -where the lands lie, to assign dower, if the husband dies seised, and the right be not disputed by the heir, by his warrant to three commissioners ; and if not so assigned, nor set out by the heir or other tenant of the freehold, she recovers the same by writ of dower in the courts of common law. « Litt. sec. 36. In liTorth Carolina, Alabama and Illinois, the husband's mansion house is to be included in the one-third, unless manifestly unjust to the children, to include the whole mansion-house, and cfFices, and she is then only to have a rea- sonable portion thereof. Her dower is estimated by one-third in value, and not merely in quantity of acres. McDaniel v. McDaniel, 3 Iredell's N. C. Rep. 61. Oriffith's Register. Revised Laws of Illinois, 1833. Stiuer v. Cawthorne, 3 Bat- tle, 501. ^ Co. Litt. in. h. Popham,S1. Chase's Statutes of Ohio, yol ii. 1316. sfic. U. Dunsett v. Bank of the United States, 6 Ohio Rep. 1&. 64: OF REAL PROPERTY, [Part VL entire mill for erery third month.'^ The asaignment of a dower of a mine should be by metes and bounds, if practi- cable ; and if not, then by a proportion of the profits, *64: or separate alternate enjoyment *of the whole for short proportionateperiods.'' The widow may also consent to take her dower of the undivided third part of the estate with- out having it set off by metes and bounds." Of lands held in common, the wife has a third part of the share of her hus- band assigned to her, to be held by her in common with the other tenants.* A case may occur in which there may be two or more widows to be endowed out of the same messuage. Lord Coke alludes to such a case,« and the point was proved, and learnedly illustrated, in Geer v. HambUnS If A. be seised, and has a wife, and sells to B. who has a wife, and the husbands then die, leaving their wives surviving, the wife of B. will be dowable of one-third of two-thirds in the first in- stance, and of the one-third of the remaining one-third on the death of the widow of A., who, having the elder title in dower, is to be first satisfied of her dower out of the whole fai-m.& (1) The ■ Co. Litt. 32. a. Perkins, sec. 342. 415. Fark on Dower, 112. 252. la this case of a mill, or of other tenement which cannot be divided without damage, the dower, by the Mass. Revised Statutes, of 1835, is to be assigned out of the rents and profits. The case of Stevens v. Stevens, 3 Bands Ken. Rep, 373, says, that where the husband died seised of a ferry, the widow was to be endowed of one- third of the profits, or to have the use of it one-third of the time alternately. The act of New- York, of April 28th, 1840, ch. \1'1, provides for the better security of the inchoate, contingent or vested light of dower in lands divided or sold under judgment or decree in partition. *> Stoughton T. Leigh, 1 Taunt. Rep. 402. " 5 Bos. & Pull. 33. In Woods v. Clute, V. Cb., m i N. Y. Legal Observer, 407, it Was declai-ed, that a widow having a right of dower in land, is not a tenant in common with the owner in fee, so as to be made a party to a suit in partition. ^ Litt. sec. 44. Go. Litt. 32. b. « Go. Litt. 31. a. *■ Decided in the Supreme Couii of New-Hampshh-e, in 1808. 1 Oreenleaf, 54, note. e Judge Reeve puts the following case for illustration. If A. sells to B., and B. to C, and C. to D., and D. to E., and the husbands all die, leaving their respective (1) In the matter of Oregier, 1 Bctri. Oh. U. 599. Where a son takes lands 'by descent from his father, subject to the dower of his mother, which is subsequently assigned to her, such assign- ment relates back to the death of the father ; so as to deprive the widow of the son, who died in the lifetime of his mother, of dower, even in the reversion of the third of the estate which is assigned to the mother for dower. The same rule applies and defeats the curtesy of the husband Lee. LV.] OF REAL PBOPERTY. 65 ■widow is not obliged to accept of a single room or chamber in the capital messuage ; and unless she consents to it, and there are no other equivalent lands, a rent must be assigned to her, issuing out of the mansion-house.'' *If the husband dies seised, the heirs may assign *65 when they please ; but if they delay it, and improve the land, and render it more valuable by cultivation or build- ings, the widow will be entitled to her dower according to the value of the land, exclusive of the emblements at the time of the assignment ; and the heir is to be presumed to have made the improvements with a knowledge of his rights and obligations.'' But the widow is not entitled to damages for the detention of the dower, unless the husband died seised.<= The statute of Merton, 20 Hen. III., gave damages in that case, equal to the value of the dower from the time of the husband's death ; but the construction is, that the dam- ages are computed only from the time of making the demand of the heir.d The provision in the statute of Merton was adopted in l^ew-York in 1787, and continued in the Revised Statutes of 1830 ; and it was adopted in Massachusetts in 1783, 1816 and 1835 ; and the damages in the case of de- tention of dower rest probably on similar grounds in most of the United States.^ In cases of alienation by the husband. wives living ; the widow of A. is entitled to be endowed of one-third of the estate ; the widow of B. is entitled to be endowed of one-third of what remains, after de- ducting the dower of the first wife ; the widow of C. of one-thii-d of what remains, after deducting the dower of the wives of A. and B. ; and so on to the wife of D. And if we suppose the estate to consist of nine acres ; the wife of A. would be endowed of three acres ; the wife of B. of two acres ; the wife of C of one acre and a third ; and the wife of D. of one-thii-d of the remaining two acres and two- thirds. Reeves' Domestic Relations '58. So, if lainds descend to B., charged with the right of dower of his mother, and it is decreed to her, and B. dies in her lifetime, bis widow is only entitled to dower in two-thirds of the premises, because he died seised of no greater pai't. Reynolds v. Reynolds, 6 Paic/e, 161. Safford v. Saiford, 1 Paige, 259. Had B. survived his mother, the case would have been different. « Perkins, sec. 406. "WTialer v. Stoiy, 2 HilVs R. 543. •> Go.Zitt, 32, a. Barff. note 192, ibid. 6 Jo/ms. Oh. Rep. 260. ' Co. Litt. 32, b. i Ibid. ' In South Carolina and Ohio, no damages are allowed on a judgment in dower ■ in the converse case of the death of the wife. But if the estate comes to the husband or wife by xmrclmse, tlie rule is otherwise. Eeynolds v. Eeynolds, mi/pra. Dunham v. Osbom, 1 Paige JS. 634. YoL. IV. 5 66 OF REAL PROPEETT. [Part Tl the general rule is, that the widow takes her dower according to the value of the land at the time of the alienation, and not according to its suhsequent increased or improved value. This was the ancient and settled rule of the common law ;» and the reason of the rule is said to he, that the heir was not bound to warrant, except according to the value of the land as it was at the time of the feoffment ; and if the wife were to recover according to the improved value, subsequent to the alienation, she would recover more against the feoffee *66 than he would recover in *value against the heir.*" The reason assigned in the old books for the rule has been ably criticized and questioned in this country ; but the rule itself is founded in justice and sound policy ; and whether the land be improved in value, or be impaired by acts of the party subsequently, the endowment, in every event of that kind, is to be according to the value at the time of the alien- ation, in case the husband sold in his lifetime, and according to the value at the time of the assignment, if the land de- scended to the heir. This is the doctrine in the American cases, and they are in conformity with the genei-al principles of the English law, as to the time from which the value of the dower is to be com- puted, both as it respects the alienee of the husband, and the heir.= If the husband continues in possession after he has mortgaged the land, and makes improvements, the wife will have the benefit of them, in computing the value of her dower, though the equity of redemption should afterwards be and the rule prescribed in the statute of Merton is not adopted or followed. Hey- ward T. Cuthbert, 1 M'Oord's Rep. 386. Bank XS. States v. Dunseth, 10 Ohio Rep. 18. On the assessment of the value of the -widow's dower, interest is allowed in cases where the husband aliened during coyerture, and none when he died seised. Wright v. Jennings, 1 Bailei/s 8. C. Rep. 277. M'Creary v. Cloud, 2 ibid. 343. » Fits. Ahr. tit. Voucher, 288, and tit. Dower, 192, cites 17 Hen. III. Perkins, sec. 328. •> Sir Matthew Hale's MSS. cited in Sarg. n. 193, to Co. Litt. lib. 1. « Humphrey v. Phinney, 2 Johns. Rep. 484. Catlin v. Wai-e, 9 Mass. Rep. 218. Powell V. M. &, B. Man. Co. 3 Mason's Rep. 347. Thompson v. Morrow, 5 Serg. <& Rawle, 289. Hale v. James, 6 Johns. Oh. Rep. 258. Russell v. Gee, 2 Const. Rep. S. C. 264. 2 N. H. Rep. 58. Wilson v. Oatman, 2 Blackf. Ind. Rep. 223. Tod V. B.aylor, 4 Leigh, 498. Mahoney v. Toung, 3 Dana's Ken. Rep. 588. Wall v. Hill, 7 iUd. 175. Woodbridge v. Wilkine, 3 Howard's Miss. Rep. 360. Lec.LV.] OF REAL PROPERTY. 67 barred or released; for the foreclosure or release is to be deemed the period of alienation." As the title to dower is consummate by the husband's death, when the wife is endowed, she is in from the death of her husband ; and, like any other tenant of the freehold, she takes, upon a recovery, whatever is then annexed to the free- hold, whether it be so by folly, by mistake or otherwise. The heir's possession is avoided, as not being rightly acquired, as to the widow's third part, and the rule that subjects the im- provements, as well as the land in the possession of the heir, to the claim of dower, seems a natural result of the gen- eral principles of the common law, which gave the *improvements to the owner of the soil.'' But an im- *67 portant distinction is taken on this subject, and it has been made a question, whether the widow be entitled to the advantage of the increased value of the land, arising from extrinsic or collateral circumstances, unconnected with the direct improvements of the alienee by his particular labour and expenditures ; such as the enhanced value, arising from the increasing prosperity of the country, or the erection of valuable establishments in the neighbourhood. The allowance would seem to be reasonable and just, inasmuch as the widow takes the risk of deterioration, arising from public misfor- tunes, or the acts of the party. If the land, in the interme- diate period, has risen in value, she ought to receive the ben- efit ; if it has depreciated, she sustains the loss. Oh. J. Par- sons, in Qore v. Brazier," was inclined to the opinion, that the widow ought to be allowed for the increased value arising from extrinsic causes ; and the Supreme Court of Pennsyl- vania, in an elaborate judgment, delivered by the Chief Jus- tice, in Thompson v. Morrow,^ decided that the widow was to take no advantage of any increased rise in value, by reason of improvements of any kind made hy the pwchaser ; but, throwing those out of the estimate, she was to be endowed according to the value at the time of the assignment. This • Hale T. James, 6 Johns. Ch. Rep. 258. Powell v. M. &, B. Man. Co. 3 Mason's Rep. 450. ' Story, J., 3 Mason's Rep. 368. " 3 Mass. Rep. 544. * 5 Serg. & Rawle, 289. Shirtz v. Shirtz, 5 Waits, 255. S. P. 68 OF EEAL PEOPERTT. [Part VI. doctrine is declared, by Mr. Justice Story, » to stand upon solid principles, and the general analogies of the law, and he adopts it. The distinction is supposed not to hare been within the purview of the ancient authorities. In New-York, the very point arose, and was discussed, in Dorchester v. Coveni/ry^ and the court adhered to the general rule, without giving it any such qualification ; and they con- fined the widow to her dower, computed according *68 *to the value of the land %t the time of the alienation, though it had risen greatly in value afterwards, exclu- sive of buildings erected by the alienee. The same doctrine was followed in Shaw v. White,'^ and the language of the stat- ute to which these decisions alluded* was, that the dower of any lands sold by the husband should be " according to the value of the lands, exclusive of the improvements made since the sale." That statute required, in case of improvements made by the heir, or other proprietor, upon lands previously wild and unproductive, that the allotment of dower be so made, as to give those improvements to the heir or owner. The construction of the statute, as to this question, did not arise, and was not given, in Humphrey v. Phinney ;^ and it may be doubted whether the statute has not received too strict a construction in the subsequent cases. The better, and the more reasonable American doctrine upon this subject, I ap- prehend to be, that the improved value of the land, from which the widow is to be excluded, in the assignment of her dower, as against a purchaser from her husband, is that which « 3 Mason's Eep.ZlS. ^ 11 Johns. Rep. 510. ' 13 Johns. Rep. ITO. Walker v. Schuyler, 10 Wendell, 480. S. P. So, in Tod v. Baylor, 4 Leigh's Rep. 498, the Coui-t of Appeals of Virginia held, that in equity as ^rell as at law, the widow was to take for dower the lands according to the value at the time of alienation, and not at the time of the assignment of dower ; and that she was not entitled to any advantage from enhancement of the value by improvements made by the alienee, or from general rise in value, or from any cause whatever. On the other hand, the Supreme Coui-t of Ohio, in the case of Dunsett v. Bank of tTnited States, 6 Ohio Rep. 76, follows the doctrine laid down in Thompson v. Morrow, and Gore v. Brazier, and by Mi-. Justice Story, in 3 Mason, 376. (1) ^ Zaws of ^evj-YorJe, Beaa. 29, c. 168. = 2 Johns. Rep. iSi. (1) In Alabama, the widow is endowed of the value at the time of the alienation. Barney r. Frowner, 9 Ala. B. 901. Lee. LV.] OF REAL PROPERTY. 69 has arisen from the actual labour and money of the owner, and not from that which has arisen from extrinsic or gen- eral causes.^ The New- York Revised Statutes,^ have *declared, that if the husband dies seised, the widow *69 shall recover damages for withholding her dower ; and the damages shall be one-third of the annual value of the mesne profits of the lands in which she shall recover dower, to be estimated from the time of the husband's death, in the suit against the heirs, and from the time of the demand of her dower, in the suit against the alienee of the heir, or other per- sons, and not to exceed six years in the whole. No damages are to be estimated for the use of any permanent improve- ments made after the death of the husband. A more neces- sary provision respecting damages, as against the alienee of the husband, (for on that point there is a difference between the decisions in this country,) is altogether omitted." When the certainty of the estate belonging to the widow as dower, is ascertained by assignment, the estate does not pass by assignment, but the seisin of the heir is defeated db • See supra, pp. 66, 6t, and the cases there referred to, and Taylor v. Broderiok, 1 Dana's Ken. Rep. 348. Essay on Dower, in the American Jurist, No. 36, for January, 1838, p. 32t. In the case of Powell v. M. & B. Man. Co. 3 Mason's Rep. 373, it was suggested, that in Hale v. James, 6 Johns. Oh. Rep. 258, the Chancellor adhered to the rule, that the value of the land at the time of alienation was to be taken and acted upon as a clear rule of the common law ; and that the common law authorities do not waiTant any such docti'ine. I am rather of the opinion that they do wan-ant the doctrine, to the extent the Chancellor meant to go, viz. : that the widow was not to be benefitted by improvements made by the alienee. That position does not seem to be denied, and in Hale v. James, as well as in Humphrey V. Phinney, nothing else was decided, for nothing else was before the court. In the former case, the Chancellor did not mean to give any opinion on the distinction between the increased value, arising from the acts of the purchaser and from collat- eral causes ; and so he expressly declared. ^ Vol. i. 742, sec. 19, 20, 21, 22, 23. ' In Tod V. Baylor, 4 Leigh's Rep. 498, it was held, that the widow was not en- titled to an account of profits, as against an alienee of the husband, except from the date of the subpoena. In Maiyland, also, the widow recovers damages against the alienee of her husband, only from the time of the demand and refusal to assign. Steiger's Adm. v. Hillen, 5 QUI <& Johnson, 121. In Woodruff v. Brown, 4 Harri- son's N. J. Rep. 246, it was held that tout temps prist might be pleaded by the heir in an action of dower, but that the plea was personal and peculiar to him, and could not be pleaded by his alienee or feoffee. They must answer in damages from the death of the husband dying seised, and seek theii- indemnity upon theii- covenants against the heir. 70 OF EEAL PROPERTY. [Part VI. initio, and the dowress is in, in intendment of law, of the seisin of her husband; and this is the reason that neither livery nor writing is essential to the validity of an assign- ment in pais.'- Eveiy assignment of dower by the heir, or by the sheriff, on a recovery against the heir, implies a war- ranty, so far, that the widow, on being evicted by title par- amount, may recover in value a third part of the two remain- ing third parts of the land whereof she was dowable.'' In BedingfieWs case," it was held, that the widow, in such a case, was to be endowed anew of other lands descended to the heir ; but where the assignment was by the alienee of the husband, and she was impleaded, she was not to vouch the alienee to be newly endowed, because of the greater privity in the one case than in the other. It is likewise provided by the new statute law of New-York,^ that upon the accept- *70 ance of an assignment of dower by the heir, *in satis- faction of the widow's claim upon all the lands of her husband, it may be pleaded in bar of any future claim on her part for dower, even by the grantee of the husband. In the English law, the wife's remedy by action for her dower, is not within the ordinary statutes of limitation, for the widow has no seisin ; but a fine levied by the husband, or his alienee or heir, will bar her by force of the statute of non-claims, unless she brings her action within five years after her title accrues, and her disabilities, if any, removed. « In South Carolina, it was held in Hamswy v. Dozier^ and again, in Boyle, v. Iiowand,s that time was a bar to dower, as * Go. Litt. 36, a. ' Perkins, sec. 419. Co. Lilt. S84, b. The widow's remedy on eviction by para- mount title of lands assigned to her for" dower, is by a new assignment of dower, and she cannot sustain an action upon the covenant of warranty to her husband, because she does not hold the whole estate. The right of action is in the heu-s. St. Clair V. Williams, T Ohio Rep. pai-t 2, 110. « 9 Co. 176. ^ New-York Revised Statutes, vol. i. "793, sec. 23. ' Davenport v. Wright, Dy. 224, a. Sheppard's Touch, by Preston, vol. i. 28. 32. Park on Dower, 311. ' 1 Tred. Const. Rep. 8. C. 112. t 3 J)esa. Ch. Rep. 553. The dowress in South Carolina is now barred by a statute of limitations after twenty years. Wilson v. McLenaghan, 1 MeMvl- Ian, 36. Lee. LV.] OF REAL PROPERTY. Yl well as to other claims. But in the -English law there is no bar ; and in I^ew-Hampshire, Massachusetts and Georgia, it has been adjudged, that the writ of dower was not within the statute of limitations.* As to the account against the heir for the mesne profits, the widow is entitled to the same from the time her title accrues ; and unless some special cause be shown, courts of equity carry the account back to the death of the husband.'' The New-York Revised Statutes'' have given a precise period of limitation, and require dower to be demanded within twenty years from the time of the death of the husband, or from the termination of the disabilities there- in mentioned, one of which is imprisonment, on a criminal charge or eonvictionfi ' Bavnai-d v. Edwards, 1 N. B. Cas. lOY. Parker v. Obear, 7 Metcalf Rep. 24. WakemaQ v. Roache, DucUey's Rep. 123. In Maryland, in the case of Wells v. Seall, 2 Gill & Johnson, 468, Chancellor Bland held, that the statute of limitations was no bar in equity to the claim of dower, or the rent and profits thereof. '' Oliver v. Richai'dson, 9 Ves. 222. See, also, Swaine v. Perine, 5 Johns, Oh. Rep. 482. ° Vol. i. "742, sec. 18. ' In New-Jersey, an action of dower is barred by the statute of limitations after twenty years. Berrien v. Connoyer, 1 Harrison's Rep. 107, and in Ohio, after twenty-one years. Tuttle v. Willson, 10 Ohio Rep. 24. If dower be not assigned to the widow during her life, the right is extinct. I know of no proceedings, said Lord Wynford, by which the fruits of dower could be recovered for her represen- tatives. 1 Knapp's Rep. on Appeals, 225. In the report of the EngUsh real property commissioners, in 1829, it was proposed, that no suit for dower should be brought, unless within twenty years next after the death of the husband ; and that on account of the rents and profits of the dowable land should be limited to six years next before the commencement of the suit. This rule was adopted by the statute of 3 and 4 WiUiam IV., c. 27 ; and it is the rule precisely in the New- York Revised Statutes, (see supra) ; and in vol. ii. 303. 332, 343, the writ of dower, as well as other real actions, is aboMshed, and the action of ejectment substituted and retained, after dismissing all the fictitious parts of it. The common law remedy, by writ of nuisance is retained, and simplified ; and that writ, with some parts of the action of waste, are the only specimens of any of the real actions, known to the common law, which are retained in H"ew-York. A writ of nuisance waa prosecuted to trial in New-York, in 1843, in the case of Kintz v. McNeal, 1 Denio, 438, but this antiquated proceeding was not encouraged, and the court held the parties to strict practice. The real actions are still retained in several of the United States. In Pennsylvania, the ancient real actions have been hitherto retained as part of their remedial law, though the wiit of right is not known to have been actually brought, and the assize of nuisance is reluctantly retained as an existing remedy. (Brachenridffe's Miscellanies, 438. Barnet v. Ihrie, 17 Serg. & Rawle, 174. 1 Rawle, 44, S. C. Report of the Commissioners on the Civil Code of 12 OF REAL PROPERTY. [Part VI. *71 *Dower may be recovered by bill in equity, as well as by action at law. The jurisdiction of chancery over the claim of dower, has been thoroughly examined, clearly assert- Pennsyhania,Ya January, 1835,pp.58, 59. The commissioners recommended the sub- stitution of the writ of nuisance for the assize of nuisance, as more simple, easy and effectual.) The writ of right, and possessory real actions, are still in use in Maine, New-Hampshire, Virginia and Kentucky, and they were in Virginia placed under statutoiy limitations, as late as December, 1^.30. Robinsmi on the Practice in the Courts of Law and Equity, in Virginia, vol. i. 464. The writ of right is retained and regulated by the Territorial Law of Michigan, of February 26th, 1821, and the writ of disseisin in Indiana. Revised Statutes of Indiana, 1838. The action of ejectment with its hai-mless, and as matter of history, curious and amusing English fictions, is retained in New-Jersey, Delaware, Ohio, Indiana, Illinois, Mary- land, North Carolina, Virginia, Kentucky, Mississippi, Tennessee, and perhaps in some other states. In Pennsylvania, South Carolina, Missouri and New- York, the fictitious part of the action is abolished by statute. In Alabama the action of tres- pass is used to try title to lands. In Tennessee a writ issues and is served by the sheriff on the tenant along with the declaration in ejectment. This is by the statute of 1801. In Pennsylvania, the revisors of the civil code suggested that the action of ejectment might well be expanded, modified and applied as a sub- stitute for the principal part of the ancient real actions, and they prepared a bill for that purpose. By the bill it might be brought upon the right of possession of real estate of a corporeal nature, and upon the light of property in incorporeal hereditaments ; and upon the right of property in any remainder or reversion in real estate against any other person claiming the same remainder or reversion, and by any person in possession of real estate to determine adverse claims thereto. Possession of land might also be recovered in the action of trespass guare clausum fregit. In Massachusetts, the writ of right, and the possessoiy real actions, would appear to be in active and familiar use, in all their varied forms and technical dis- tinctions, after having become simplified, and rendered free from every trouble- some incumbrance that pei-plexed the ancient process and pleadings. See Professor Steam's and Judge Jackson's Treatises on the Pleadings and Practice in Peal Ac- tions in Massachusetts, passim, and 2 Metcalf's Rep. 32. 163. So late as 1834, we perceive a decision in New-Hampshire, in the action oiformedon in remainder, in the case of Frost v. Cloutman, (T New-Hampshire Rep. 1.) and to which the defence was a common recovery, levied there in 1819, in bar of an estate tail. The law of common recoveries was familiarly and learnedly discussed. Indeed it is a singular fact, a sort of anomaly in the histoiy of jurisprudence, that the curious inventions, and subtle, profound, but sohd distinctions, which guarded and cherished the lights and remedies attached to real property in the feudal ages, should have been transported, and should for so long a time have remained rooted in soils that never felt the fabric of the feudal system ; whilst, on the other hand, the English parliamentary commissioners, in their report, proposed, and parliament exe- cuted, a sweeping abolition of the whole fonnidable catalogue of writs of right, writs of entry, writs of assize, and all the other writs in real actions, with the single exception of writs of dower, and quare impedit. This we should hardly have expected in a stable and proud monarchy, heretofore acting upon the great text authority of Lord Bacon, that " it were good if men, in their innovations, would Lee. LV.] OF REAL PROPERTY. Y3 ed, and definitively established. It is a jurisdiction concurrent with that law ; and when the legal title to dower is in contro- versy, it must be settled at law ; but if that be admitted or settled, full and effectual relief can be granted to the widow in equity, both as to the assignment of *dower *'72 and the damages. The equity jurisdiction was so well established, and in such exercise in England, that Lord Loughborough said that writs of dower had almost gone out of practice." The equity jurisdiction has been equally enter- tained in this country,'' though the writ of dower unde nihil hahet, is the remedy by suit most in practice. The claim of dower is considered, in New- Jersey, which has a distinct and well organized equity system, as emphatically, if not exclu- sively, within the cognizance of the common law courts. <= In addition to the legal remedies at law and in eqtiity, the surrogates, in New-York, and courts in other states are em- powered and directed, upon the application either of the widow, or of the heirs or owners, to appoint three freeholders follow the example of time itself, which, indeed, innovateth greatly, but quietly, and by degi'ees scarce tat be perceived." By the statute of 3 and 4 William IV., u. 27, all real and mixed actions, except the wiit of right of dower, and the writ of dower unde nihil habet, quare impedit, and ejectment were abolished. So, the legislatui'e of Massachusetts, upon the re- commendation of the commissioners appointed to revise their laws, have at length yielded to the cun'ent of events, the force of examples, and the innovating spirit of the age, which is sweeping rapidly before it, in England and in this countiy, all vestiges of the ancient jurisprudence. They have abolished all writs of right and of foi-medon, and aU writs of entiy, except the writ of entry upon disseisin, and which is regulated and reduced to its simplest form. This last writ was deemed by the commissioners more simple and convenient, and much more effectual than the ejectment, because a final judgment in a writ of entry is a bar to another action of the same kind. The old common law remedies for private nuisances are also abolished, and the substituted remedies are the action on the case, and an en- larged equity juiisdiction given to the Supreme Judicial Com-t. Mass. Revised Statutes, 1835, part 3, tit. 3, c. 101. 106. • Goodenough v. Goodenough, Dichens, 'lOS. Curtis v. Cui'tis, 2 Bro. 620. Mundy v. Mundy, 4 ibid. 295. 2 Ves. jun. 122. S. C. "> Swaine v. Peiine, 5 Johns. Ch. Rep. 482. Greene v. Greene, 1 Hammond's Rep. 535. Dr. Tucker, note to 2 Blacks. Com. 135, n. 19. Chase's Statutes of Ohio, vol. ii. 1316. Grayson v. Moncure, 1 Leigh, 449. Kendall v. Honey, 5 Mon- roe, 284. Stevens v. Smith, iJ.J. Marsh's Rep. 6i. Badgeley v. Bruce, 4 Paige, 98. London v. London, 1 Humphrey's Term. Rep. 1. 12. " HaiTison v. Eldridge, 2 Hoisted, 401, 402. 74 OF REAL PROPERTY. [Part VL to set off by admeasurement the widow's dower.* This con- venient and summary mode of assignment of dower, under the direction of the courts of probates, or upon petition to other competent jurisdictions, in the several states, has, pro- bably, in a great degree, superseded the common law remedy by action. When a widow is legally seised of her freehold estate, as dowress, she may bequeath the crop in the ground of the land holden by her in dower.^ Having finished a review of the several estates of freehold not of inheritance, we proceed to take notice of the principal incidents which attend them, and which are necessary for their safe and convenient enjoyment, and for the better pro- tection of the inheritance. *73 *(1.) Every tenant for life is entitled, of common right, to take reasonable estovers, that is, wood from off the land, for fuel, fences, agricultural erections, and other ne- cessary improvements. According to Sir Edward Coke, they are estoveria oedifiocmdi, ardenM, a/randi et claudendi.'^ But, under the pretence of estovers, the tenant must not destroy the timber, nor do any other permanent injury to the inherit- ance ; for that would expose him to the action and penalties of waste."! (1) J (2.) He is entitled, through his lawful representatives, to the profits of the growing crops, in case the estate determines ■ New-York Revised Statutes, yol. ii. 488 — 492. Coatea T. Cheever, 1 Cowen, 460. Hotchkiss' Gode of Statute Law of Georgia, 433. *■ Periires, sec. 521. ji/. 316, pi. 2. The statute of Merton, 20 Hemy III., had this provision ; and it has been fi-equently re-enacted in M"ew-York, and is now included in the new revision of the statute laws. New-Torh Revised Statutes, vol. L 743, sec. 25. In the revised statute codes of the several states, the law concerning dower is usually one of the titles, and it is weU digested upon common law prin- ciples, and power is given to the chcuit com'ts, county com-ts, probate, sun-ogate, or orphans' courts, before whom suits in dower are brought, to cause dower to be as- signed by commissioners. These revised codes in the western, as well as in the Atlantic states, are ably executed, and wisely conservative in their provisions, not only in this particular case, but under all the titles and modifications of property. None of the states have gone quite as far in their improvements or innovations as the Revised Statutes of New-Torli, of 1830. Co. Litt. 41, b. •i Oo. Litt. 73, a. b. (1) See Sarles v. Sarles, 8 Saiiclf. Oh. Jt. 601. Lee. LV.] OF REAL PROPERTY, t5 by his death, hefore the produce can be gathered. The profits are termed emllements, and are given on very obvious princi- ples of justice and policy, as the time of the detennination of the estate is uncertain. He who rightfully sows ought to reap the profits of his labour ; and the emblements are confined to the products of the earth, arising from the annual labour of the tenant. The rule extends to every case where the estate for life determines by the act of God, or by the act of the law, and not to cases where the estate is determined by the vohm- tary, wilful or wrongful act of the tenant himself.'' The doctrine of emblements is applicable to the products of the earth which are annual, and raised by the yearly expense and labour of the tenant. It applies to grain, garden roots, &c., but not to grass, or fruits, which are the natural products of the soil, and do not essentially owe their annual existence to the cultivation of man.'' The tenant, under the protection of this rule, is invited to agricultural industry, without the ap- prehension of loss by reason of the unforeseen contingency of his death.'! (3.) Tenants for life have the power of mating underleases for any lesser term ; and the same rights and privileges *are incidental to those under-tenants which belong to *^i the original tenants for life. If the original estate de- termines, by the death of the tenant for life, before the day of payment of rent from the under-tenant, the personal represen- tatives of the tenant for life are entitled to recover from the under-tenant, the whole or a proportional part, of the rent in arrear. Johns, Vlt, In England, a custom that a tenant shall have the way-going crop, after the expiration of his term, is good, if not repugnant to his lease. Wigglesworth v. Dallison, Doug. 201. " Co. Zitt. 55, b. A dowress may bequeath her emblements, otherwise they go to her personal representatives. Statute of Merton, 20 Hen. HI c. 2. ^ See vol. iii. p. 4tll. " Bevans v. Bi-iscoe, 4 Harr. & Johns. 139. 76 OF REAL PROPERTY. [Part VI. cumbrance, the tenant for life is bound, in equity, to keep down the interest out of the rents and profits ; but he is not chargeable with the incumbrance itself, and he is not bound to extinguish it. The doctrine arises from a very reasonable rule in equity, and applies between a tenant for life, and other parties having successive interests. Its object is to make every part of the ownership of a real estate bear a ratable part of an incumbrance thereon, and to apportion the burden equitably between the parties fti interest, where there is a possession. The tenant for life contributes only during the time he enjoyed the estate, and the value of his life is calcu- lated according to the common tables.=i If he pays off an in- cumbrance on the estate, he is, prima facie, entitled to that charge for his own benefit, with the qualification of having no interest during his life.'' And if the incumbrancer neglects for years to collect his interest from the tenant for life, he may, notwithstanding, collect the arrears from the remainder- man ;= though the assets of the estate of the tenant for life would equitably be answerable to the remainder-man for his indemnity, and they remain answerable for arrears of *75 interest accrued in his lifetime. The *true principle on this subject is, that the tenant for life is to keep down the annual interest, even though it should exhaust the rents and profits ; and the whole estate is to bear the charge of the principal, in just proportions. The old rule was, that the life estate was to bear one-third part of the entire debt, and the remainder of the estate the residue.'^ But the Master of the EoUs, in White v. White,^ declared this to be a most ab- surd rule ; and he held, that the interest alone arising during the life estate, was the tenant's fair proportion. Lord Eldon said, that this was the rule as to mortgages, and other charges on the whole inheritance. But it is now the doctrine in the ■ Lord Hardwicke, in Casborne v. Searfe, 1 Atk. 606. Revel v. 'Watkinson, 1 Ves. 93, and in Amesbury v. BrowD, ibid. 480. Tracy v. Hereford, 2 Bro. 128. Penhyrn v. Hughes, 5 Ves. 99. Burgea T. Mawbey, 1 Turner dk Eussell, 961. Hunt V. Watkins, 1 Bumphrei/s Tenn. Rep. 498. Foster v. Hilliard, 1 Story's Rep. 11. ■> Lord Eldon, in Eavl of Buckinghamshire v. Hobart, 3 Swanst. 199. "= Roe V. Pogson, 2 Madd. Rep. 581. American edit ■s Rowell v. Walley, 1 Rep. in Ch. 219. • 4 Ves. 24. Lee. LV.] OF REAL PROPERTY. T7 English chancery, in respect to a charge upon renewal leases, that the tenant for life contributes in proportion to the benefit he derives from the renewed interest in the estate. The pro- portion that he is to conti'ibute depends upon the special cir- cumstances of the case ; and the practice is, to have it settled on a reference to a master.^^ The rents and profits are to be applied in the discharge of the arrears of interest accruing during a former, as well as during an existing tenancy for life, and remaining unpaid ; and this hard rule was explicitly de- clared by the Master of the Eolls, in Penliyrn v. Hughes.^ The rule applies to a tenant in dower, and by the curtesy, as well as to any other tenant for life, with this qualification, that a dowress is only bound to keep down one-third part of the ac- cruing interest, because she takes only one-third part of the estate ; and if she redeems the whole mortgage, she would have a claim on the estate for two-thirds of the interest of the mortgage so redeemed, and the whole of the principal. = But while tenants for life are entitled to these privileges, the law has discovered a similar solicitude for those who *have an interest in the inheritance in remainder or re- *76 version. If, therefore, the tenant for life, or for years, as the case may be, should, by neglect or wantonness, occa- sion any permanent waste to the substance of the estate, whether the waste be voluntary or permissive, i^ as by pulling down houses ; suffering them to go to decay from the want of ordinary care ; cutting the timber unnecessarily ;^ opening * Lord Eldon, in WTiite v. White, 9 Ves. 560. Allen v. Backhouse, 2 Ves. (b Bea. 65. » 5 Ves. 99. « Vide supra, 46. House v. House, 10 Paige, 159. ^ Neither Mr. Hargrave nor Mr. Park -were able to find any authority declaring that the dowress was chargeable with permissive waste ; though both of them were of opinion that she was answerable. Harg. note 377, to Co. Litt. lib. 1. Farlc on Dower, SST. <= Clearing land by the tenant, which is bad husbandry, and without pretence that it was for estovers, is waste. 1 N. H. Rep. 171. But the tenant for life is bound to keep down ordinary charges for taxes and repairs, out of the rents and profits of the estate. Cairns v. Chabert, 3 Ed. Oh. Rep. 812. But a tenant for life cannot lay out moneys in building or improvement on the estate, and charge it to the inheritance. The court of chancery will not sustain an inquiry whether, the im- provements were beneficial. The tenant makes them at his own hazard. Calde- cott v. Brown, 2 Hare, \4A. 78 OF REAL PROPERTT. [Pai-t VI. mines ; or changing one species of land into another ; he be- comes liable, in a suit by the person entitled to the immediate estate of inheritance, to answer in damages, as well as to have his future operations stayed." If the land be wholly wild and uncultivated, it has been held, that the tenant may clear part of it for the purpose of cultivation ; but he must leave wood and timber sufficient for the permanent use of the farm. And it is a question of fact for a jury, what extent of wood may be cut down, in such cases, without exposing the party to the charge of waste.'' The American doctrine on the subject of waste is somewhat varied from the English law, and is more enlarged, and better accommodated to the circumstances of a new and growing country. In Pennsyl- vania, the law, as to the tenant in dower, on the subject of clearing wild lands assigned for dower, accords with the rule in New-Tork.c In Massachusetts, the inclination of the Su- preme Court seemed to be otherwise, and in favour of the strict English rule ; and that was one of the. reasons assigned for holding the widow not dowable of such lands."! Jq yfj.. ginia, it is admitted, that the law of waste is varied from that in England ; and the tenant in dower, in working coal mines already opened, may penetrate into new seams, and *7Y sink new shafts, without being *chargeable with waste.^ So, in North Carolina, it has been held not to be waste to clear tillable land for the necessary support of the tenant's family, though the timber be destroyed in clearing.^ And in ■ Co Liit. 53, a. b. Butler's note, 122, to Co. lAtt. lib. 3. Dan^s Abr. vol. iii. tit. Waste, passim. 2 Blacks. Com. 281. Alterations in a tenement become waBte, as by converting two chambers into one, or pulling down a house, and rebuilding it in a different fashion, even though it be thereby more valuable. Graves' case, Co. Litt. 53, a. n. 3. City of London v. Grfeme, Cro. Jac. 182. 2 Rol. Abr. 815, pi. 17, 18. i' Jackson v. Brownson, 7 Johns. Rep. 227. Hickman v. Irvine, 3 Dana's Ken. Rep. 123. ° Hastings v. Crunckleton, 3 Teates' Rep. 261. ^ Conner v. Shepherd, 15 Mass. Rep. 164. " Findly v. Smith, 6 Munf. 134. Crouch v. Puryear, 1 Randolphs Rep. 253. < Pai'Mns V. Coxe, 2 Hayw. 339. In Tennessee, also, the law concerning waste is construed liberally in favour of the widow. She may cut down timber for neces- saiy use, provided the estate be not injured, and enough be left for peimanent use. Owen V. Hyde, 6 Yerger, 334. Leo.LV.] OF REAL PROPERTY. 79 BallenUne v. Poyner^^ it was admitted, that the tenant in dower might use timber for making staves and shingles, when that was the ordinary use, and the only use to be made of such lands. She was only restricted from clearing lands for cultivation, when there was already sufficient cleared for that purpose.'' The tenants by the curtesy, and in dower, and for life or years, are answerable for waste committed by a stranger ; and they take their remedy over against him ;" and it is a general principle, that the tenant, without some special agreement to the contrary, is responsible to the reversioner for all injuries amounting to waste, done to the premises during his term, by whomsoever the injuries may have been committed, with the exception of the acts of God, and public enemies, and the acts of the revisioner himself. The tenant is like a common carrier, and the law in this instance is founded on the same great principles of public policy. The landlord cannot pro- tect the property against strangers ; and the tenant is on the spot, and presumed to be able to protect it.^ The ancient remedies for waste by writ of est/repement^ and writ of waste at common law, are essentially obsolete ; and the modern practice, in this country as well as in England, is to resort to the prompt and efficacious remedy by an injunc- tion bill, to stop the commission of waste, when the injury would be irreparable ; or by *a special action on *78 the case in the nature of waste, to recover damages.^ • 2 Hayw. 110. ■> In Loomis V. Wilbur, 5 Mason, 13, it was adjudged not to be waste in a tenant for life, to cut down timber trees, in order to make necessary repairs, and selling them to procure boai'da for the purpose, if the mode be economical, and for the benefit of the estate. But see Simmons t. Norton, ^ Bing. R. 640. • Go. lAtt. 54, a. 2 Imt. 145. 303. Oook v. Oh. T. Co. 1 Denio, 109. ^ White T. Wagner, 4 Harr. & Johns. SYS. In Ohio, every tenant seised of lands for life, or having the care of lands, either as guardian or executor, or tenant by cmtesy, or in dower, or for life, or in right of his wife, and refusing or neglecting to pay the tax charged thereon, forfeits his estate therein, to the person next entitled in reversion or remainder. Oliase's Statutes of Ohio, vol. ii. 1868, 1869. M'Millan V. Robbins, 5 Ohio Rep. 30. ' In the case of the Governors of HaiTow School v. Alderton, 2 Bos. & Pull. 86, we have the ancient action of waste, on the statute of Gloucester, in which the plaintiff is entitled to recover the place wasted, and treble damages. In Pennsyl- vania and Delaware, the ancient writ of estrepement, to prevent the commission of 80 OF REAL PEOPEETT. [Part VI. The modern remedies are much more convenient, simple and prompt, and a judicious substitute for the dilatory proceed- ings and formidable apparatus of the ancient law. At common law, no prohibition against waste lay against the lessee for life or years, deriving his interest from the act of the party. The remedy was confined to those tenants who derived their interest from the act of the law ; but the timber cut was, at common law, the property of the owner of the in- heritance ; and the words in the Jease, without imjpeachment of waste, had the effect of transferring to the lessee the pro- perty of the timber.'' The modem remedy in chancery, by injunction, is broader than at law ; and equity will interpose in many cases, and stay waste, where there is no remedy at law. If there was an intermediate estate for life, between the lessee for life and the remainder-man or reversioner in fee, the action of waste would not lie at law; for it lay on be- half of him who had the next immediate estate of inherit- ance.'' Chancery will interpose in that case ; and also where the tenant effects the inheritance in an unreasonable and un- ■waste, ia in use, and it is regulated and impi-oyed in the bill prepared by the com- missioners on the revision of the civil code of Pennsylvania in 1835 ; and it ia also applied to prevent trespasses upon "unseated lands." In Virginia, the action of waste at law is never brought. The remedy is exclusively in chancery. 1 Robinson's Practice, 560. In Delaware, the action of waste is in use. 3 Harr. Rep. 9. » At common low, a tenant for life, without impeachment of waste, had much of the character of a tenant in fee, except aa to the duration of the estate. He might cut down ti'ees and open mines, and take the produce for his own benefit. Lewia Bowie's case, 11 Co. 19, a 82, b. Co. Zitt. 220, a. But equity gives a more limited construction to the clause, and allows to the tenant for life those powers only which a prudent tenant in fee would exercise. He cannot puU down or dilapi- date houses, or destroy pleasure-grounds, or prostrate trees planted for ornament or shelter. Vane v. Lord Barnard, 2 Vern. 7 39. 1 8alk. 16l. Rolt v. Lord Somerville, 2 Eg. Cas. Abr. tit. Waste, pi. 8. Packington v. Packington, 3 Atk. 215. But such a clause in leases is not one that is likely to be palatable to lessoi-s, and is not in use in this country. Tunber cut by a stranger belongs to the reversionei', and not to the tenant ; and, if carried away, the reversioner has aconstructive possession, sufficient to maintain trespass de bonis asportatis against the stranger. Bulkley v. Dolbeave, 7 Conn. Rep. 232. If cut by the tenant unnecessarily, he acquires no title to the timber cut, nor can he convey any to a purchaser. Mooers v. Wait, 3 Wenr- dell, 104. •■ Co Litt. 53, b. 54, a. Lee LV.] OF REAL PROPERTY. 81 conscientious manner, even though the lease be granted with- out impeachment of waste."- The chancery remedy is limited to cases in which *the title is clear and undis- *79 puted ;'' and the remedy by an action on the case in the nature of waste, has been held" not to lie for permissive waste. If this last doctrine be well founded, (and I think it may very reasonably be doubted,)^ then recourse must be had, in cer- tain cases, as where the premises are negligently suffered to be dilapidated, to the old and sure remedy of a writ of waste ; and which, so far as it is founded either upon the common law, or upon the statute of Gloucester,® has been generally received as law in this country, and is applicable to all kinds of tenants for life and years.f It is frequently said by Lord Coke, in his Commentaries, s and it was so declared by the K. B., in the Countess of Shrewsbury's case,^ that waste would not lie, at common law, against the lessee for life or years ; for the lessor might have restrained him by covenant or con- dition. But Mr. Reeve, who was thoroughly read in the ancient English law, insists that the common *law pro- *80 vided a remedy against waste by all tenants for life and » Pen-ot V. Penot, 3 Atlc. 94. Aston v. Aston, 1 Ve$. 264. Vane v. Barnard, 2 Vern. "738. Lord Thurlow, in Tracy v. Hereford, 2 Bro. 138. Kane v. Vander- burgh, 1 Johns. Ch. Rep. 11. The New-York Revised Statutes, vol. i. TSO, sec. 8, have incoi-porated the doctrine of these chancery decisions, so far as to give to the person seised in remainder or reversion, an action of waste for an injury to the in- heritance, notwithstanding any intervening estate for life or years. The statute remedy was fii-st introduced, and smothered, amidst the multiplied temporary pro- visions of the Supply Bill, in 1811 1 and I presume it was intended to meet the difficulty of some special case. Xaws of New- York, sess. 34, c. 246, sec. 47. The recovery, in such a case, must be without prejudice to the inteiTening estate for life or years ; and the courts will still have to supply, by construction, the want of specific provision in the statute, as to the disposition of the place wasted, and the damages. In Massachusetts, by statute, the person having the next intermediate estate of freehold may also biing an action of waste against a dowress. Jaekson on Pleadings in Real Actions, 329. >■ Pillsworth V. Hopton, 6 Ves. 51. Storm v. Mann, 4 Johns. Ch. Rep 21. " Gibson v. Wells, 4 Boa. <& Full. 290. Home v. Benbow, 4 Taunt. Rep. 764. ■■ See the just and able criticism by counsel on those decisions, in 4 I{arr. S Johns. 378, 379. 388, 389, and the dictum of Johnson, J., ibid. 393. ' 6 Edw. I, c. 6. ' An action of waste will not lie against the tenant by elegit. Co. Litt. 54, a. Scott V. Lenox, 2 Brockenburgh, 57. s 2 Inst. 299. h 5 Co. 13. YoL. lY. 6 82 OF REAL PROPERTY. [Pait VI. for years, and that the statute of Gloucester only made the remedy more specific and certain." The proTJsion in the statute of Gloucester, giving, by way of penalty, the forfeiture of the place wasted, and treble dam- ages, was re-enacted in New-Tort, New-Jersey and Yirginia,'' and it is the acknowledged rule of recovery, in some of the other states, in the action of waste." It may be consid- " Reeve's History of the English Law, vol. il "73. 184. By the common law. says Lord Coke, 2 Inst. 800, the punishment for waste against the guardian was the forfeitui'e of his tnist, and damages to the value of the waste. So the tenant in dower yielded the like damages, and had a keeper set over her, to guard against future waste. '' laws ofNewYorh, 1'78'7, eess. 10, c. 6. Act of Virginia, 1792, c. 139. Act of New-Jersey, lt95. Elmer's Digest, 593. ' Cameron tfc Norm. N. 0. Rep. 26. Ch. J. Parsons, in 4 Mass. Rep. 563. Johnson, J., in 4 Harr. & Johns. 391. In Ohio, the tenant in dower, who wantonly commits or suffers waste ; forfeits the place wasted in an action of waste ; but the statute is silent as to the treble damages. Chases Statutes of Ohio, vol. ii. 1316. In Pennsylvania, the provisions in the English statutes were always followed ; but the commissioners on the revision of the civil code, reported a new provision in the case of permissive waste by directing the tenant to repaii-, and in default, the usual recovery follows of the place wasted, and treble damages. Mr. Dane, in his Gen- eral Abridgment and Digest of American Law, vol. iiL c. "78, art. 11, sec. 2, art 13. sec. 3, 4, 5, art. 14, sec. 2, says, that the statute of Gloucester was adopted in Massa- chusetts, as part of their common law, as to the remedial pai't only, but not as to the forfeiture of the place wasted, and treble damages. The statute of 1783 gave the forfeiture of the place wasted, and single damages, against the tenant in dower. On the other hand. Judge Jackson, in his Treatise on the Pleadings and Practice in Real Actions, 340, follows the opinion of Ch. J. Parsons, and considers the com- mon law of Massachusetts to be, that the plaintiff will generally, in the action of waste, recover the place wasted, and treble damages. The weight of authority is on that side", but the Mass. Revised Statutes, of 1835, have settled the question, by declaring, that the forfeiture for waste by a tenant in dower, shall be the place wasted, and the amount of damages done to the premises, to be recovered in an ac- tion of waste. This is also the law of Michigan. And, while on the subject, I take this occasion to say, that I think it must somewhat stai'tle and sui-prise the learned sergeants at Westminster Hall, if they should perchance look into the above trea- tise of Judge Jackson, or into the work of Professor Stearns on the Law and Practice of Real Actions, to find American lawyers much more aecm'ate and familiar, than, judging from some of the late reports, they themselves appear to be, with the learning of the Year Books, Fitzherbert, Rastel and Coke, on the doc- trines and pleadings in real actions. Until the late work of Mr. Roscoe on the Law of Actions relating to Real Property, and which was subsequent to that of Professor Stearns, and contains great legal learning, there was no modern work in Eno'land on real actions, to be compared with those I have mentioned. Those ab- struse subjects are digested and handled by Judge Jackson with a research, judg- Lee. LV.] OF REAL PROPEETT. 83 ered *as imported by our ancestors, with the whole body *81 of the common and statute law then existing, and appli- cable to our local circumstances. As far as the provisions of that statute are received as law in this country, the recovery in the action of waste, for waste done or permitted, is the place wasted, and treble damages ; but the writ of waste has gone out of use, and a special action on the case, in the na- ture of waste, is the substitute ; and this latter action, which has superseded the common law remedy, relieves the tenant from the penal consequences of waste under the statute of Gloucester. The plaintiff, in this action upon the case, re- covers no more than the actual damages which the premises have sustained. »• Under the head of permissive waste, the tenant is answera- ble, if the house or other buildings on the premises be de- stroyed by fire, through his carelessness or negligence ; and he must rebuild, in a convenient time, at his own expense.'' ment, precision and perspicuity, that reflect lustre on the profession in this coun- try. The Supreme Court of Massachusetts decided, in Padelford v. Padelford, (T Pick. Rep. 152,) the question of the forfeiture for waste on estates in dower, in accordance with the opinion of Mr. Dane. But afterwards, in Sackett t. Sackett, (8 Pick. Rep. 309,) the question was much more elaborately discussed and consid- ered ; and the conclusion was, that the rule presciibed by the statute of Gloucester was brought over from England by the colonists, when they first emigrated, as part of the common law. The statute of Gloucester is not law iu the state of Maine, and an action of waste cannot be maintained in that state against a tenant in dower, but it is suggested that an action on the case, in the nature of waste, may be maintained by the rever- sioner, against a tenant in dower, for actual waste. Smith v. FoUansbee, 13 Maine Rep. 273. » Parker, J., in Linton v. Wilson, Kerr's N. B. Rep. 239, 240. By the New- Tork Revised Statutes, vol ii. 334 — 338. 343, the writ of waste, as a real action, is essentially abolished; but an action of waste is substituted, in which the first pro- cess by summons is given ; and the judgment to be rendered is, that the plaintiff recover the place wasted and treble damages. If the action be brought by a joint tenant, or tenant in common, against his co-tenant ; the plaintiff, if he recover, may, at his election, take judgment for the treble damages, or have partition of the pre- mises, with a deduction of the damages from the share of the defendant. In Rhode Island and Ohio, the action of waste is still in use, for the recovery of the freehold wasted. Loomis v. Wilbur, 5 Mason, 13. Statutes of Ohio, 1831, 252. This is, probably, the general law in this countiy. But as the statute of 3 and 4 Wm. IV., c. 21, abolished the wi'it of waste, it is now considered in England that the place wasted cannot be recovered. '' Lord Coke says, that burning the house by negligence or mischance is waste ; Si OF REAL PROPERTY. [Part VI. The statute of 6 Anne, c. 31, guarded the tenant *82 *from the consequences of accidental misfortune of that kind, by declaring, that no suit should be brought against any person in whose house or chamber any fire should accidentally begin, nor any recompense be made by such per- son for any damage suffered or occasioned thereby. Until this statute, tenants by the curtesy, and in dower, were re- sponsible, at common law, for accidental fire ; and tenants for life and years, created by the act of the parties, were respon- sible, also, under the statute of Gloucester, as for permissive waste.'' (1) There does not appear to have been any question raised, and judicially decided, in this country, respecting the tenant's responsibility for accidental fires, as coming under the head of this species of waste. I am not aware that the statute of Anne has, except in one instance, been formally adopted in any of the states.'' It was intimated upon the ar- gument in the case of White v. Wagner,''- that the question had not been decided ; and conflicting suggestions were made by counsel. Perhaps the universal silence in our courts, upon the subject of any such responsibility of the tenant for accidental fires, is presumptive evidence that the doctrine of permissive waste has never been introduced, and carried to that extent, in the common law jurisprudence of the United States.> Liu. sec. 61. ' Co. Liu. 46. a. Lord Parker, ia Theobalds v. DufFoy, 9 Mod. Rep. 102. ■> J^. N. B. 198, cites 19 Hen. VI. " See a list of the authorities, pro and con, taken principally from the Year Boohs, cited in the mai-gin to Co. Litt. 46. -a,. 88 OF EEAL PEOPERTT. [Part VI. when they could be purchased and held in safety. They were converted to the purpose of raising portions for children, in family settlements, and by way of mortgage.^ It was said, in the Duke of WorfoWs case^ that there was nothing in the books before the reign of Elizabeth, respecting terms attendant upon the inheritance ; but that in the latter part of her reign, mortgages for long terms of years came into use ; and then it was deemed, in chancery, advisable to keep the term outstanding, to wait upon, and protect the inherit- ance. A long lease, in modern times, has been considered a muniment of title, and equivalent, in some respects, to an estate in fee. No man, said Lord Mansfield, held a lease for 2000 years as a lease, but as a term to attend the inheritance ; and half the titles in the kingdom were so." Long terms, as for one hundred, or five hundred, or a thousand years, created by way of trust to secure jointures, and raise portions, or money on mortgage for family purposes, and made attendant upon the inheritance, first came into extensive discussion, in the case of Freeman v. BarnesA They now occupy a large space in the English law ; and the practice of keeping out- standing terms on foot, to attend and protect the inheritance, after the performance of the trusts for which they were raised, renders the learning on this subject extremely interesting to conveyancers, and to the profession at large in the coun- try where that practice prevails. This learning is, *87 *fortunately, not of much use or application in the TJnited States ; but a cursory view of its general prin- ciples seems due to the cause of legal science, and it will at least excite and gratify the curiosity of the American student. (1.) The advantage derived from attendant terms ^ is the security which they afford to purchasers and mortgagees. If the ionafide purchaser or mortgagee should happen to take a defective conveyance or mortgage, by which he acquires a mere equitable title, he may, by taking an assignment of an outstanding term to a tmstee for himself, cure the defect, so *■ F. N.B. 221. 2 Blacks. Com. 142. Reeves History of the English Lav!, vol. iv. 232, 233. •• 3 Ch. Gas. 24. " Denn v. Barnard, Cowp. Rep. 59*7. i 1 Vent. 53. 80. 1 Lev. 2'70. S. C. Lee. LVI] OF REAL PEOPERTT. 89 far as to entitle himself to the legal estate during the term, in preference to any creditor, of whose incumbrance he had not notice, at or before the time of completing his contract for the purchase or mortgage. He may use the term to protect his possessions, or to recover it when lost. This protection extends generally as against all estates and incumbrances created intermediately between the raising of the term and the time of the purchase or mortgage ; and the outstanding term, so assigned to a trustee for the purchaser or mortgagee, will prevail over the intermediate legal title to the inherit- ance. In the case of Willoughhy v. Willoug/iby,^ Lord Hard- wicke took a full view of the doctrine ; and he may be consi- dered as having established the principle of applying old out- standing terms to the protection of purchasers and incum- brancers. Mr. Butler considered that case as the magna charta of this branch of the law. It was observed, that a term for years attendant upon the inheritance was the crea- ture of a court of equity, and invented to protect real pro- perty, and keep it in the right channel ; and a distinction was made between these attendant terms ajid teryns in gross, though, in the consideration of the common law, they are the same. At law, every term is a term in gross. It is a term in active operation, without having the purpose of its crea- tion fulfilled. Such terms are considered as separate from the inheritance, and a distinct and different species *of property. The reversioner or remainder-man has *88 no interest in them, other than a right to redeem, on fulfilling the purpose of their creation. When the legal ownership of the inheritance and the term meet in the same person, a legal coalition occurs ; and, at law, the term, which before was personal property, falls into the inheritance, and ceases to exist. But in equity, another kind of ownership takes place, being an equitable or benefi- cial ownership, as distinguished from the mere legal title. "Where that ownership of the term and the inheritance meet in the same person, undivided by any intervening beneficial interest in another, an equitable union exists, and the term, which before was personal property, becomes annexed to the « 1 Term Rep. 163. 1 Coll. Jurid. 251. S. C. 90 OF REAL PEOPERTT. [PartVL inheritance, and attendant upon it, as part of the same estate, unless the owner of the property had expressed a contrary in- tention, and which would prevent the union of the term and the inheritance. The relation between the ownership of such a term and the inheritance, forms their union in equity, and gives the term the capacity of being considered as attendant upon the inheritance, where no trust is declared for that ;^ui-- pose'. But, though equity considers the trust of the term as annexed to the inheritance, yet the legal estate of the term is always separate from it, and existing in a trustee, otherwise it would be merged. It is this existence of the legal estate, that enables a court of equity to protect an equitable owner of the inheritance against mesne conveyances, which w'ould carry the fee at common law, and also to protect the person who is both legal and equitable owner of the inheritance, against such mesne incumbrances, with which he ought not in conscience to be affected. It was accordingly decided by Lord Hardwicke, that if a subsequent purchaser or mortgagee had notice of a former purchase or incumbrance, he could not avail himself of an assignment of an old outstanding term prior to both, in order to gain a preference ; but that without such notice he could protect himself under the old *89 term.'' *The same doctrine received the sanction of Lord Eldon, in Maundrell v. Maundrell;^ and he ob- served, that if a term be created for a particular purpose, and that purpose has been satisiied, if the instrument does not provide, on the happening of that event, for the cesser of the term, the beneficial interest in it becomes a creature of equity, to be disposed of and moulded according to the equitable in- terests of all persons having claims upon the inheritance. When the purposes of the trust are satisfied, the ownership of the terra belongs, in equity, to the owner of the inheritance, and will attend the inheritance, whether declared by the ori- ginal conveyance to attend it or not. The trustee will hold the term for equitable incumbrancers, according to priority ; and it is a, general rule, that in all cases where the term and ' See the strong and lucid opinion of Mr. Fearne, and the subject of these atten- dant terms, in 1 Coll. Jurid. 219. '■ 10 Ves. 246. Lee LVI] OF REAL PROPERTY. 91 the freehold would, if legal estates, merge by being vested in the same person, the term will, in equity, be construed to be attendant on the inheritance, unless there be evidence of an intention to sever them.=- These attendant terms will not be permitted to deprive creditors of any benefit they would have of the term for pay- ment of their debts ; nor will they protect the inheritance in fee from debts due from the vendor, by specialty, to the crown.'' They protect the purchaser against an act of bankruptcy in the vendor, if the purchaser had not notice of it ; and equity denies permission to the assignees of the bankrupt to call, to ■ the prejudice of the purchaser, for an assignment of a term standing out in trustees.<= They likewise protect against a claim of dower, if the purchase or mortgage was made pre- vious to the right of dower attaching, and the assignment of the term be actually made before the husband's death.'' *The purchaser or mortgagee may call for the assign- *90 ment of all terms conferring a title to the legal estate, and of which he can avail himself in an action of ejectment ; and that includes every term which is not barred, or merged, or extin- guished, by a proviso or cesser, or presumed to be surrendered. The question whether the term be validly subsisting as an outstanding estate, has led, in the English courts, to the most protracted and vexatious discussions ; and it may become in- teresting to the American lawyer, standing on his " vantage ground," and happily exempted from the control of those subtle and perplexing modiiications of property, to trace the progi'ess of the discussions, and witness the ability and search- ing inquiry which they have displayed. He will find new occasion to cherish and admire the convenience and simplicity of our own systems, which, on this subject afi'ord better secu- rity to title, and greater certainty to law. A proviso of cesser is usually annexed to long terms, raised by mortgage, marriage settlement or annuity, whereby the term is declared to be determinable on the happening of a * Chapel V. Girdler, 9 Ves. 509. ■" The King v. Smith, SugdcrCs Treatise of Vendors and Purchasers, app. u. 13. The King t. St, John, 2 Price, 317. ■= Wilkes V. Bodington, 2 Vsrn. 599. ■1 Wynn v. Williams, 5 Ves. 130. 92 OF REAL PROPERTY. [Part VI. certain event ; and until the event provided for in the decla- ration of cesser has occurred, the term continues. And if there be no such proviso, it will continue until expressly- merged, or surrendered, even though the special purpose for which it was created be answered. But the doctrine of a presumed surrender of a term, is that which has occupied the most intense share of professional attention, and given rise to a series of judicial decisions, distinguished for a strong sense of equity, as well as for the spirit and talent with which they handle this abstruse head of the law. According to the old rule of practice, if the tenn had been once assigned to attend the inheritance, there could be no presumption of a surrender, and it would be treated as a sub- sisting term ; for, a direct trust being annexed to the term, it followed the inheritance through all its channels and descents from ancestor to heir. But if the term was once satisj&ed, and had not been assigned, it was subject to be barred by *91 the operation of the statute of limitations. *So, if it had been assigned, and lain dormant for forty, fifty or sixty years, without any notice being taken of it, in the changes which the title had undergone, a surrender might be pi-esumed. The current of the decisions at law has, for some time, been setting strongly in favour of a presumed surrender of the term, when set up as a defence in ejectment, provided there be circumstances to induce the presumption. Such cir- cumstances exist, if the term had been passed over in silence, on a change of property, and the parties had not taken an actual assignment of the term, or a declaration from the trus- tee, when they had the means of knowing that the term existed. A declaration, however, by the trustee, or an actual assignment, or the fact that the term has not been satisfied, will rebut the presumption of a surrender. Courts of law do now take notice of trusts of attendant terms, and have de- parted from the ancient rigid rule, of considering every trust term to be a term in gross. The two latest cases at law on the subject, are those of Doe v. Wright and Doe v. HilcLer.'^ In the first of those cases, a term for one thousand years was created by deed., and, eighteen years thereafter, it was assigned ' 2 Barnw. & Aid. 710. 783. Lee. LVL] OF REAL PEOPERTT. 93 for the purpose of securing an annuity, and then to attend the inheritance. The estate remained undisturbed in the hands of the owner of the inheritance, and his devisee, for seventy- eight years, without any material notice having been taken of the term ; and it was held, that a surrender of the term was to be presumed, in favour of the owner of the inheritance. In the other case, a term for years, created, in 1T62, by the owner of the fee, was assigned to a trustee, in 17T9, to attend the inheritance ; and, in 1814, the owner of the inheritance executed a marriage settlement. In 1816, he conveyed his life interest, and his reversion in the estate, under the settle- ment, to a purchaser, as a security for a debt ; but no assign- ment of the term, on delivery of the deeds relating to it, took place ; and, in 1819, an actual assignment of the term was *made by the administrator of the trustee, to a new *92 trustee, for the purchaser in 1816. It was decided, that a surrender was here to be presumed prior to 1819, and that the term could not be set up, to protect the purchaser against a prior incumbrancer. The presumption of a suri'ender was deemed necessary, to prevent the more unfavourable infer- ence, either of want of integrity in the purchaser in suffer- ing the attendant tei-m to pass neglected, or of want of care and caution on the part of the professional men engaged in the transactions. This last decision threw the English conveyancers into con- sternation ; and it was very much condemned, as shaking the landmarks of real property, and rendering insecure the title of every purchaser, by destroying all reliance upon attendant terms. a Lord Eldon was strongly opposed to the modern facility, in courts of law, of sustaining the presumption of the surrender of a term.'' But the Yice-Chancellor, Sir John Leach, in Emery v. Grocock,'' supports the doctrine of the » See Sii- Edward B. Sugden's Letters to Charles Butler, Esq., on the doctrine of presuming a euiTender of tenna assigned to attend the inheritance. Best on Presumptions, sec. 113. 122. '' The cases of Townsend v. Bishop of Norwich, Hays v. Bailey and Aspinal v. Kempson, are refen'ed to, in the appendix to the sixth edition of Sugden's Essays on Vendors and Purchasers, for Lord Eldon's continued marks of disapprobation of the recent doctrine. ' 6 MaM. Rep. 54. 94 OF REAL PROPERTY. [Part VT. K. B. in clear and decided language ; and this would seem to be the most authoritative conclusion from the review of the cases on the subject.^ *93 *As the owner of the fee is entitled to all the benefits which he can make of a term attendant upon the inherit- ance during its continuance in trust, the equitable interest in the term will devolve in the same channel, and be governed by the same rules as the inheritance. The tenant in whose name the term for years stands, is but a trustee for the owner of the inheritance, and he cannot obstruct him in his acts of ownership. The term becomes consolidated with the inherit- ance, and follows it in its descent or alienation. On the death of the ancestor^ it vests, technically, in his personal represen- tatives ; but in equity, it goes to the heir, and is considered as part of the inheritance, notwithstanding it formally goes in a course of administration, and not in a course of descent. Being part of the inheritance, it cannot be severed from it, or made to pass by a will, not executed with the solemnities re- quisite to pass real estate.'' In this country, we have instances of long terms of aearone thousand years ; but they are treated altogether as personal estate, and go, in a course of administration, as chattel inte- rests, without any suggestion of their being of the character of attendant terms.'= Our registry acts, applicable to mortgages ' The leading cases on the question have been collected, and the doctrine of at- tendant terms clearly and neatly condensed, by MJr. Butler, in Co. Litt. 290, b. note 249, sec. 1 3 ; but the whole subject is much more fully exammed by Mr. Coventry, in his voluminous notes to 2 Powell on Mortgages, ill — 512. The English real property commissioners, in then' second common law report, in 1830, proposed, as an improvement of the doctrine of outstanding terms, that the plaintiff be not defeated in his recovery by proof of the existence of a term, unless it be shown to be held adversely to him, or unless the defendant, with his plea, give notice of the existence of the term, and of his intention to set it up. ^ Levet V. Weedham, 2 Vern. 138. Whitchm-ch v. Whitchm-ch, 2 P. Wms. 236. Villiers v. Villiers, 2 AtJc. 71. Since the last edition of these Commentaries, the English statutes of 8 and 9 Vict., ch. 112, relating to satisfied terms, of the 1st of January, 1846, put an end to satisfied teiins by not allowing them to be any longer kept on foot, as an attendant term by assignment. The Revised Constitution of New- York of 1846, has demolished all long leases, by declaring, that no lease or grant of agricultural land, thereafter to be made, for a longer period than twelve years, in which shall be reserved any rent or service of any kind, shall be valid. ' Gay's case, 5 Mass. Rep. 419. Brewster v. Hill, N. H. Rep. 350. Dillingham Lee. LVI] OF EEAL PROPERTY. 95 and conveyances, determine the rights and title of lona fide purchasers and mortgagees, by the date and priority of the record; and outstanding terms can have no operation when coming in collision with a registered deed. We appear to be fortunately relieved from the necessity of introducing the in- tricate machinery of attendant terms, which have been devised in England with so much labour and skill, to throw protection over estates of inheritance. Titles are more wisely guarded, by clear and certain rules, which may be cheaply discovered, and easily understood ; and it would be deeply to be regret- ted if we *were obliged to adopt so complex and artificial *94 a system as a branch of the institutes of real property law. In New-York, under the recently Eevised Statutes relative to uses and trusts,=^ these trust terms cannot exist for the pur- poses contemplated in the English equity system. All trusts, except those authorized and modified by the statute, are abolished ; and express trusts may be created, to " sell lands for the benefit of creditors, and to sell, mortgage or lease lands, for the benefit of legatees, or for the purpose of satisfy- ing any charge thereon, and to receive the rents and profits of land, to be applied to the use of any person ; and the trustees cannot sell, convey or do any other act in contravention of the trust ; and when the purposes for which the express trust shall have been created have ceased, the estate of the trustees V. Jenkins, 7 Smede d M. 487. In Massachusetts, by the Revised Statutes of 1835, it was declared, that the lessees and assignees of lessees of real estate, for the term of one hundred years or more, in cases where there is an unexpired resi- due of fifty years or more of the term, shoidd be regarded as fi'eeholders, and the estate subject, like freehold estates, to descent, devise, dower and execution. And, in Ohio, by statute in ,1821, lands held by the tenure of permanent leases, were to be considered real estate in respect to judgments and executions. Chases Statutes of Ohio, vol. ii. 1186. A judgment in Ohio, is a lien on permanent leaseholds, or for instance on a lease for the term of ninety-nine years, renewable for ever, equally as upon other real estate. And in the purview of the Ohio statutes, leasehold es- tates for the most essential purposes, as judgments, executions, descent and distribu- tion are regarded as freeholds or real estate. The Northern Bank of Kentucky v. Roosa, 13 Ohio Rep. 334. (1) • New-Yorh Revised Statutes, vol.i. 72'?, 728, 729, 730, sec. 45. 49. 65. 60, 61. 66. 67. (1) Superseded by statute of 1839, which gives the attributes of realty to permanent leases, renewable for ever. Eev. Stat. 1341, p. 289. 96 OF REAL PROPERTY. [Part "^ I- ceases also.''^ This strict limitation of the power of creating and continuing trusts, would, in its operation, have totally- destroyed these attendant terms, haii they otherwise existed in New-York. Leases, among the ancient Eomans, was usually of very short duration, as the quinquennium, or term for five years ; and this has been the policy and practice of several modem na- tions; as France, Switzerland and China. But the policy has been condemned by distinguished writers, as discouraging agricultural enterprise and costly improvements.'' (2.) Leases for years may be made to commence infuturo ; for, being chattel interests, they never were required to be created by feoffment and livery of seisin. The tenant *95 was *never technically seised, and derived no political importance from his tenancy. He could not defend himself in a real action. He held in the name of his lord, and was rather his servant than owner in his own right. This was the condition of the tenant for years, in early times, as described by Bracton and Fleta, and other ancient authori- ties ;"= and this distinctive character of terms for years, has left strong and indelible lines of distinction in the law between leases for years and freehold estates. But the statute of frauds of 29 Car. IL, c. 3, sec. 1, 2, 3, (and which has been generally adopted in this country,) rendered it necessary that these se- condary interests should be created in writing. The statute " See infra, p. 310. " Gibbon's Hist. vol. y'm. 86, note. Lord Karnes' Gentleman Farmer, 40*7, cited in 1 Bro. Civil Law, 198, note. Jefferson's remai'ks on short leases in France. Jef- ferson! s Worlcs, vol. ii. 105. Dr. Browne, 191 — 198, has given an interesting detail of the condition of the Roman lessee. In Scotland veiy long leases are considered as -within the prohibition of alienation ; and Mr. Bell says, that a lease for nineteen yeiirs is alone to he relied on, under a general clause in a deed of entail prohibiting alienation. Bell's Comm. vol.i. 69, 70. It is stated in the Edinburgh Review, for July, 1834, p. 392, that it is believed that not more than a third part of England is occupied by tenants holding under leases. They must, then, be tenants from year to year, and this must be veiy unfavoui'able to agricultural improvement. The fact would seem to be almost incredible ; and yet see what Lord Mansfield says on the subject, m/)'a, p. 111. See, a\&o, Edinburgh Review, for April, 1836, p. Ill, where it is said, that a great part of the best cultivated region of England, is in the occu- pation of farmers, who hold from year to year. " Fleta, lib. 5, c. 5, sec. 18, 19, 20. Dalrymple on Feiulal Property, c. 2, sec. 1, p. 25. Preston on Estates, vol. i. 204, 205, 206. Lee. LVL] OF REAL PROPERTY. 97 declared, that " all leases, estates, or terms of years, or any uncertain interests in lands, created by livery only, or by parol, and not put in writing, and signed by the party, should have the force and effect of leases, or estates at will only, ex- cept leases not exceeding the term of three years, whereupon the rent reserved during the term shall amount to two-third parts of the full improved value of the thing demised." " And that no lease or estate, either of freehold or term of years, should be assigned, granted or surrendered, imless in writing." The general provisions of the statute of frauds have been adopted, by statute in ISTew-York, and the statute declares, that no es- tate or interest in lands, other than leases for a term not ex- ceeding one year, shall be created, assigned or declared, un- less by a deed or conveyance in writing, subscribed by the party ; and every contract for the leasing for a longer period than one year, or for the sale of lands, or any interest therein, is declared void, unless in writing, and subscribed by the ■pavtj.^ (1) • New-Yorlc Revised Statutes, vol. ii. 135, sec. 8. The Mass. Revised Statutes, p. 408, declare all estates and interests in land, created without writing, to be estates at will only. By the StattUes of Oonnecticut, 1838, p. 391, no leases of land, ex- ceeding a year, are valid, except against the grantor, &c., unless in writing, signed and witnessed. The Pennsylvania statute of 1'7'72, follows the English statute, and allows parol leases not exceeding three years, without adding any thing as to the reservation of rent. Purdon's Big. "779. In other states, as Wew-Jersey, Georgia, Ac, the English statute of frauds is strictly followed. Elmer's Dig. 213. Prince's Dig. 915. See infra, p. 115, and see supra, vol. ii. 336, note a, as to the character of betterments. In Scotland, leases of land exceeding the term of a year are not effectual, unless in writing, and followed by possession. 1 Bell's Com. 20. It was the old rule that a lease commencing from tlte day of the date, ox from the date, be- gan to operate the day after the date. Co. lAtt. 46, b. But this rule was after- wards shaken, stadifrom the date, or from the day of the date, may be either iaclu- sive or exclusive of that day, according to the context or subject-matter, and the courts will construe the words so as to effectuate the deeds of parties and not de- stroy them. Pugh v. Duke of Leeds, Cmcp. Rep. 714. There is no general rule on the subject, and in computing time from act or an event, the day is to be inclusive or exclusive, according to the reason of the thing, and the circumstances of the case. R. V. Stevens, 5 East, 244. Presbrey v. Williams, 15 Mass. Rep. 193. Lester v. Garland, 15 Ves. 248. Wilkinson v. Gaston, 9 Ad. d Ell. N. S. 141. The principle of that latter case was, that when time fi'om a particular period is allowed to a party (1) A parol lease for one year, to commence in futuro, is void by the statute cited in the text. Sucli lease is void also, as being a contract not to be performed ■within one year from the making tliereof. 1 Bari. S. C. Rep. 191. Vol. IY. 7 98 OF REAL PROPERTT. [Part VI. (3.) If land te let upon shares, for a single crop only, that does not amount to a lease, and the possession remains in the to do an act, the first day is to be reckoned exclusiTely, and ttat case was deemed a sound authority in Blaymire v. Haley, 6 Meeson & W. 49. (1) The tendency of the recent English decisions is to exclude the day of the act, unless some special reason renders it necessai'y to reckon it inclusive. But in NeTV-Hampehire 'n hen a computation is to be made from an act done, or fiom the time of an act, the day ■when the act is to be done is to be included ; though in the computation of time from a date, or from the day of a date, the day of the date is to be excluded. Blake v. Cro-wninshield, 9 iV. K Rep. 304. It -was truly observed in this latter case that it would be veiy difficult to deduce from the cases a general rule. In Illinois the rule is, -when an action is to be performed -within a particular time from and after a specified day, to exclude the day named and include the day in -which the act is to be done. 4 Scammon, 420. But ordinarily, the day of a demise is inclusive, and to be considered in computing the time of its commencement and termination. The reason is that this construction is here used, not by -way of com- putation, but of passing an interest ; and -when there is nothing else to guide the construction, that one is assumed which is most beneficial to him in -whose favour the instrument is made, and an immediate interest passes. Ly sle v. Williams, 1 5 Serg. & Rawle, 136. Donaldson v. Smith, 1 Ash. 197. In New-York, a lease from the first day of May to the first day of May, has been supposed to include that day, though contraiy to the English rule. But it -was admitted to be a very unsettled point, and the usage in Albany, was said to be a reasonable one, that such a lease commences and tei-minates at twelve at noon on the first of May. Savage, Ch. J. in Wilcox v. Wood, 9 Wendell, 346. See ante, vol. i. 161. In the King v. Justices of Cumberland, 4 Neville cfc Manning, 378, it was held, that where a certain num- ber of days' notice of an intention to do an act was requisite, the day of the ser- vice of the notice was excluded from the computation, and that on which the act was to be done included. In Glassington v. Rawlins, 3 Mast's Eep.'iQI, the gene- ral rule was declared to be, that where the computation of time is to be made /rom an act done, the day when such act is done is to be included. See, also, supra, vol. i. 161. This i-ule was also laid down in Clayton's case, 5 Co. 1. a. Bellasis v. Hester, 1 Ld. Raym. 280. The King v. Adderley, Doug. Rep 463. Castle v. Bur- ditt, 3 Term Rep. 623. Korris v. The Hundred of Gautris, 1 Brownlow, 156. Hob. 139. S. C. Insurance on goods to be shipped between two certain days, does not cover goods shipped on either of those days. Atkins v. Boylston F. & M. Ins. Co. 5 Metcalf's Rep. 439. Though a day in legal contemplation is punctum tcm- poris, without fractions, yet, where justice requii-es it, the exact time in the day in which an act was perfoi-med, may be shown by proof. Brainard v. Bushnell, 11 Conn. Rep. 17. It may be well here to observe, that a month ex vi termini, in the English law, means a lunar month. 2 Blacks. Com. 141. Catesby's case, 6 Co. 61, b. (2) But in mercantile contracts, the usage or rule is to calculate the months as calendar ; (Jolly v. Young, 1 Mp. N. P. Cases, 186,) and in other contracts the lu- nar is made to yield to the calendar month, if such was the intention of the con- (1) So, also, -Weeks" V.Hull, 19 Conn. R. 876. (2) See Simpson v. Margitson, 12 Jurist Rep. 1848, p. 155. Lee.LVL] OF REAL PROPERTY. 99 owner." The occupant is however a tenant in common with the owner of the growing crop, and he continues so until the tenancy be severed by a division.!) J^^t if the contract be, that the lessee possess *the land with the usual pri- *96 vileges of exclusive enjoyment, it is the creation of a tenancy for a year, though the land be taken to be cultivated upon shares." A lessee for years may assign or grant over his whole in- terest, unless restrained by covenant not to assign without leave of the lessor. He may underlet for any fewer or less number of years than he himself holds ; and he may incum- ber the land with rent, and other charges.ii If the deed passes all the estates, or time of the termor, it is an assign- ment ; but if it be for a less portion of time than the whole term, it is an underlease, and leaves a reversion in the termor. The tenant's right to create an undertenancy, by the grant of a less estate than his own, is a native principle of the feudal system, and a part of the common law. The lessee so under- leasing may distrain for the rent due him on the underlease ; though, if he assign over the whole term, he cannot, because he has no reversion. The under, or derivative lessee, is not liable for the rent reserved in the original lease, except so far as his goods and chattels, while on the premises, are liable to tract. Dyke v. Sweeting, Willes' Rep. 585. Lang v. Gale, 1 Maule .^ In Jack- son V. Bradford,'^ it was held, that though a covenant of war- ranty would bar, by way of estoppel, the heir and his issue, the estoppel would not affect the purchaser, under a'judgment entered against the heir, in the lifetime of his ancestor, and previous to the conveyance creating the estoppel. vol. ii. 136. 139. Brown v. M'Cormick, 6 Watts, 60. Logan v. Moore, "7 Dana's Eep. 76. Fletcher y. Wilson, 1 Smede & Marshall, Miss. Oh. Rep. Sl6. 389. Willis V. Watson, 4 Scammon Rep. 61. But if the estate comes to him as trustee to convey to a bona fide purchaser, the estoppel does not apply. Bui'chard v. Hub- bard, 11 Ohio Rep. 316. * Trevivau v. Lawi'ence, 1 Salk. 2*76. The learned editor has annexed to this short case of Trevivan v. Lawrence, in SmitKs Leading Cases, vol. ii. an elaborate essay on the doctrine of estoppels. Coe v. Talcott, 5 Day's Rep. 88. Jackson v. Stevens, 13 Johns. Rep. 316. M'WiUiams v. Nisly, 2 Serg. & Ravjle, SOY. Somes v. Skinner, 3 Pick. Rep. 52. White v. Patten, 24 id. 324. Middlebury College v. Cheney, 1 Vermont Rep. 336. Gardner v. Johnston, 1 Reek's Tenn. Rep. 24. Douglass v. Scott, 5 Hammond! s Ohio Rep. 194. Lawiy v. Williams, 13 Maine Rep. 281. In Doswell v. Buchanan, 3 Leigh, 355, A. having only an equitable title, conveyed lands by bargain and sale without warranty to B. in trust for C, and afteiTvards acquired the legal title, and sells it to D. with warranty. It was held, that the legal estate subsequently acquired by A. did not enure to B. in trust for C. (2) ■i Goodtitle v. Morse, 3 Term Rep. 365. In Comstock v. Smith, 13 Rich Rep. 115, the estoppel was held not to apply to the case of a deed with waiTanty, when the waiTanty was restricted to the grantor, and those claiming under him. <■ 4 Wendell, 619. (1) But it is said, that an agreement not under seal cannot operate as an estoppel to bar a right to real estate. Gerrish v. Proprietors of Union Wharf, 26 Maine B. 884. (2) So, where a person has a vested share under an executory devise, and makes a convey- ance of all right, &c., and subsequently the whole estate vests, the estate subsequently vesting, does not pass by estoppel. Hall v. Chaffee, W N. ITanvp. Ii. 216. LecLVI] OF REAL PROPERTY. . 103 (5.) A term for years may be defeated by way of merger, when it meets another term immediately expectant thereon. The elder term merges in the term in reversion or remainder. A merger also takes place, ■^en there is a union of the free- hold or fee and the term, in one person, in the same right, and at the same time. In this case, the greater estate mei^es and drowns the less, and the term becomes extinct; because they are inconsistent, and it would be absurd to allow a per- • eon to have two distinct estates, immediately expectant on each other, while one of them includes the time of both ; nemo potest esse dominus et tenens. There would be an abso- lute incompatibility in a person filling, at the same time, the characters of tenant and reversioner in one and the same estate ; and. hence the reasonableness, and even necessity, of the doctrine of merger. =^ The estate in which the merger takes place is not enlarged by the accession of the preceding estate; and the greater or only subsisting estate continues' after the merger, precisely of the same quantity and extent of ownership as it was before the accession of the estate which is merged, and the lesser estate is extinguished.'' As a ge- neral rule, equal estates will not drown in each other. The merger is ^produced either from the meeting of *100 an estate of higher degree with an estate of inferior degree, or fi-om the meeting of the particular estate and the immediate reversion in the same person. An estate for years may merge in an estate in fee, or for life ; and an estate ^owr autre vie may merge in an estate for one's own life ; and an estate for years may merge in another estate or term for years, in remainder or reversion."^ There is no incompatibi- lity, and, therefore, there is no merger, where the two estates are successive, and not concurrent. Thus, a lease may be granted to a tenant jpotw autre me, to commence when his life estate ceases ; and he will never, in that case, stand in the " 2 Blacks. Com. \Ti. Preston on Convey, vol. iii. H. 15. 18. 23. t Ibid. n. ° Preston ore Convey, vol. iii. 182, 183. 201. 213. 219. 225. 261. The merger applies if there be a unity of seisia of the laad, and of a right of way over it, in the same person. Tindal, Chief Justice, in James v. Plant, 4 Adolph. <& Ellis, W9. t5 104 OF REAL PROPERTT. [Part VI- character, wMch the law of merger is calculated to prevent, of the reversioner to himself." Merger bears a very near resemblance, in circumstances and effect, to a surrender ; but the analogy does not hold in all cases, though there is not any case in which merger will take place, unless the right of making and accepting a sur- render resided in the parties between whom the merger takes place.b To a surrender, it is requisite that the tenant of the particular estate should relinquisJi his estate in favour of the tenant of the next vested estate, in remainder or reversion. But merger is confined to the cases in which the tenant of the estate in reversion or remainder grants that estate to the ten- ant of the particular estate, or in which the particular tenant grants his estate to him in reversion or remainder." Surren- der is the act of the party, and merger is the act of the law. The latter consolidates two estates, and sinks the lesser in the greater estate. The merger is co-extensive with the interest merged, as in the case of joint-tenants, and tenants in com- mon ; and it is only to the extent of the part in which *101 the owner has two several estates. An *estate may merge for one part of the land, and continue in the re- maining part of it.'' To effect the operation of merger, the more remote estate must be the next vested estate in remainder or reversion, without any intervening estate, either vested or contingent ; and the estate in reversion or remainder must be at least as large as the preceding estate.*^ The several estates must ge- nerally be held in the same legal right ; but this rule is sub- ject to qualification, and merger Tnay take place even when the two estates are held by the same person in different rights, as when he holds the freehold in his own right, and the term en aut/re droit. If they are held in different legal rights, there will be no merger, provided one of the estates be an accession to the other merely by the act of law, as by marriage, by de- scent, by executorship or intestacy. This exception is al- » Doe V. Walker, 5 Barnw. & Cress. 111. ' Preston on Convey, vol. iii. 23. 163. « Ibid. 25. ^ Preston on Convey, vol. iii. 88, 89. • Ibid. 50. 55. SI 107. 166. Lee LVL] OF REAL PROPERTY. 105 lowed, on the just principle, that as merger is the annihilation of one estate in another by the conclusion of law, the law will not allow it to take place to the prejudice of creditors, infants, legatees, husbands or wives." But the accession of one estate to another, is when the person in whom the two estates meet is the owner of one of them, and the other afterwards devolves upon him by the act of the party, or by act of law, or by de- scent, or in right of his wife, or by will. If the other estate, held in another's right, as in right of the wife, had been uni- ted, to the estate in immediate reversion or remainder, by act of the party, as by purchase, the merger would take place.^ The power of alienation must extend to the one estate as well as to the other, in order to allow the merger, as where the husband has a term for years in right of his wife, and a reversion in his own right by purchase.'^ *Merger is not favoured in equity, and is never al- *102 lowed, unless for special reasons, and to promote the intention of the party. (1) The intention is considered in mer- ger at law, but it is not the governing principle of the rule, as it is in equity ; and the rule sometimes takes place with- out regard to the intention, as in the instance mentioned by Lord Coke.'' At law, the doctrine of merger will operate, even though one of the estates be held in trust, and the other beneficially, by the same person ; or both the estates be held by the same person, on the same or different trxists. But a court of equity wUl interpose, and support the interest of the cestui que t/rust, and not suffer the trust to merge in the legal estate, if the justice of the case requires it.e Unless, how- ever, there exists some beneficial interest that requires to be protected, or some just intention to the contrary, and the equitable or legal estates unite in the same person, the equi- table trust will merge in the legal title ; for, as a general rule. • Preston on Convey, vol. iii. 273. 285. 29i. Donisthorpe v. Porter, 2 Eden's Rep. 162. ' Preston on Convey, vol iiL 294, 295. 809. ' Ibid. 306, 307. * Co. lAtt. 54. b. Preston on Convey. Tol. iii. 43 — 49. ' \ P. Wms. 41. Atk. 582. Preston on Convey, vol. iiL 314, 315. 657, 558. (1) Loomer v. Wteelright, 3 Samdf. Ch. R. 136. 106 OF REAL PROPERTY. [Pai-t YI. a person cannot be a trustee for himself. "Where the legal and the equitable interests descended through different chan- nels, and united in the same person, and were equal and co- extensive, it has been held, that the equitable estate merges in the legal, in equity, as well as at law.* The rule at law is inflexible ; but in equity it depends upon circumstances, and is governed by the intention, either expressed or implied, (if it be a just and fair intention,) of the person in whom the es- tates unite, and the purposes of justice, whether the equitable estate shall merge, or be kept in existence.*" If the *103 person in whom the estates unite be *not competent, as by reason of infancy or lunacy, to make an election, or if it be for his interest to keep the equitable estate on foot, the law will not imply such an intention." It would be inconsistent with the object of these Lectures, to pursue the learning of merger into its more refined and complicated distinctions ; and especially when it is considered, according to the language of a great master in the doctrine of merger, that the learning under this head is involved in much intricacy and confusion, and there is difficulty in drawing solid conclusions from cases that are at variance, or totally ir- reconcilable with each other.^ (6.) Surrender is the yielding up of an estate for life or years, to him that hath the next immediate estate in rever- * Preston, uh. mp. 314 — 342. Donisthorpe v. Porter, 2 Eden's Rep. 162. Goodright v. Wells, Dmg. 111. Wade v. Paget, 1 Bro. 363. Selby t. Asten, 8 Ves. 339. ■i Forbes v. Moffat, 18 Ves. 384. Gardner t. Astor, 3 Johns. Gh. Rep. 63. Starr v. Ellia, 6 Johns. Oh. Rep. 393. Freeman v. Paul, 3 Greenleaf, 260. Gibson v. Crehore, 3 Pickering, 475. ' Lord Rosslyn, in Comptou v. Oxeaden, 2 Ves. jr. 861. James v. Johnson, 6 Johns. Ch. Rep. 417. James T. Morey, 2 Gowen, 246. '^ The third volume of Mr. Preston's extensive Treatise on Gonveyancing, is devoted exclusively to the law of merger. It is the ablest and most interesting discussion in all his works. It is copious, clear, logical and profound ; and I am the more ready to render this tribute of justice to its merits, since there is great reason to complain of the manner in which his other works ai-e compiled. He has been declared, by one of his pupils, to have "stupendous acquirements as a property lawyer." The evidence of his great industry, and extensive and critical law learning, is fally exhibited; but I must be permitted to say, after having attentively read all his voluminous works, that they are in general incumbered with much loose matter, and with unexampled and intolerable tautology ; magni- tudine laborant sua. Lee. LVI.] OF REAL PROPERTY. 107 sion or remainder, whereby the lesser estate is drowned by mutual agreement.'' The under-lessee cannot surrender to the original lessor, but he must surrender to his immediate lessor or his assignee.'' The surrender may be made expressly, or it may be implied in law. (1) The latter is when an estate, incompatible with the existing estate, is accepted; *or the lessee takes a new lease of the same lands." *104 As there is a pjivity of estate between the parties, no livery of seisin is necessary to a perfect surrender, though (as we have already seen'J) the surrender is required by the sta- tute of frauds to be in writing. It has accordingly been held, by Lord Chief Baron Gilbert,'' that a lease for years cannot be surrendered by merely cancelling the indenture, without writing. The surrender must not be taken from the cestui que trust, but from the legal tenant ; and if an old satisfied term has lain dormant for a long time, though still outstand- ing in the trustee, the surrender of it to the cestui qiie use is sometimes presumed to support the legal title in him.f To guard against the mischievous consequences which sometimes result from a surrender, in discharging the under- lessee from the payment of rent, and the conditions and de- pendent covenants annexed to his lease, the statute of 4 Geo. II., c. 28, sec. 6, provided, that if a lease be surrendered to be renewed, and a new lease given, the privity and relation of » Co. Liit. SST. b. ^ Preston on Abstracts of , Title, vol. ii. T. ■= LiTingaton t. Potts, 16 Johns. Rep. 28. Slwp. Touch, by Preston, vol. ii. 800, 301. In that old and venerable work, under the title Surrender, the "whole law is fully and clearly laid down ; but Mr. Prestmi said, that in a fourth volume to his Treatise on Conveyancing, (and which I have not seen,) the theory and practice of the law of surrenders was to be examined. On a demise in writing of a house to C, the key was delivered to C.'s wife, and he entered into possession. But the wife afterwards delivered back the key to the lessor, who accepted it. It was held, that the delivering back the key, animo sursum reddendi, and the ac- ceptance of it, amounted to a surrender by operation of law within the statute of frauds. Dodd v. Acklom, 6 Manning & Granger, 6'72. ^ Supra, p. 95. « Magennis v. M'CuUough, Gilb. Cas. in Eq. 236. ' Doe V. Syboum, 7 Term Rep. 2. Goodtitle v. Jones, iUd. ii. Doe v. Hilder, 3 Sarnw. & Aid. 782. (1) Hiokells v. Atherstono, 10 Ad. & M. N. 8. 944. Greider's Appeal, 5 Sarr^s S. 422. 108 OF REAL PROPERTY. [Part VI. landlord and tenant, between the original lessee and his un- der-lessees, should be reserved ; and it placed the chief land- lord and his lessees, and the under-lessees, in reference to rents, rights and remedies, exactly in the same situation as if no surrender had been made. This provision has been incor- porated in the New-Yorh Revised Statutes;'^ but in those states in which it has not been adopted, the question may arise, how far the under-tenant (whose derivative estate *105 still continues) is dischafged from *all the rents and covenants annexed to his tenancy, according to the authority of Bartov^s case,^ and of Weih v. Hussel,'' in which that inequitable result is indicated. The same rule is de- clared in the text-books of the old \a.\fA (T.) A term for years may be defeated by a condition, or by a proviso of cesser on the happening of a specified event, or by a release to the disseisor of the reversioner.^ It is sometimes a question, whether the instrument amounts to a lease, or is merely a contract for a lease. It is purely a question of intention ; and the cases sufficiently establish the rule of construction to be, that though an agreement may, on one part of it, pux'port to be a lease, yet if, from the whole in- strument, taken and compared together, it clearly appears , to have been intended to be a mere executory agreement for a future lease, the intention shall prevail. So, a contrary con- clusion is drawn, when the intention from the instrument ap- pears to create a subsisting term, though it contemplated a more formal lease to be made.f The case of Poole v. Bent- • New-York Revised Statutes, vol. i. 744. sec 2. *■ Moore, 94. " 3 Term Rep. 401. ^ Sliep. Touch, by Preston, vol. ii. 301. • Co. Litt. 276. a. f Chapman v. Tonner, 6 Meeson tk W. 100. Brashier v. Jackson, id. 549. Sturgeon v. Painter, JVoy, 128. Foster v. Foster, 1 Lev. 65. Baxter v. Browne, 2 Wm. Blacks. Rep. 973. Goodtitle v. Way, 1 Term Rep. 735. Doe v. Clare, 2 ibid. 739. Roe v. Ashburner, 5 ibid. 163. Doe v. Smith, 6 Sasfs Rep. 530. Poole V. Bentley, 12 ibid. 168. Morgan v. Bissell, 3 Taunt. Rep. 65. Jackson v. Myers, 3 Johns. Rep. 388. Jackson v. Clark, ibid. 424. Thornton v. Payne, 5 ibid. 77. Jackson v. Kisselbrack, 10 ibid. 336. Jackson v. Delacroix, 2 Wendell, 433. Bacon v. Bowdoin, 22 Rick. 401. Preston on Convey, vol. ii. 177. Pinero V. Judson, 6 Binff. 206. In Chipman v. Black, Arnold's Rep. vol. i. 27, it was Lee. LVL] OP REAL PEOPERTY. 109 ley^^ contains the leading and the sound doctrine on the sub- ject. "Where agreements have been adjudged not to operate by passing an interest, but to rest in contract, there has been, usually, either an express agreement for another lease, or the construing of the agreement to be a lease in jn^msenti^ would work a forfeiture, or the terms have not been fully settled, and something further was to be done. *Leases for years may be forfeited, by any act of *106 the lessee, which disaffirms the title, and determines the relation of landlord and tenant. If he acknowledges or affirms, by matter of record, the fee to be in a stranger, or claims a greater estate than he is entitled to, or aliens the estate in fee by feoffment, with livery, which operates upon the possession, and effects a disseisin, or if he breaks any of the conditions annexed to the lease, he forfeits the same.'' (1) But these forfeitures are very much reduced, in this country, by the disuse or abolition of fines and feoffments, and by the statute provision, that no conveyance, by a tenant for life or years, of a greater estate than he could lawfully convey, should work a forfeiture, or be construed to pass any greater interest.<= As conveyances, with us, are in the nature of grants, and as grants pass nothing but what the grantor may lawfully grant, "i it would follow, of course, upon sound legal principles, even without any statute provision, that convey- ances to uses would not work a forfeiture of the particular estate. (8.) It was a clear principle of the common law, that no man could grant a lease to continue beyond the period at held, that the intention of the parties as ■whether a lease was meant, or only an agi'eement for a lease, may be gathered not only from the instrument, but from the concniTent or subsequent acts of the parties. By the acts of 1 and 8 Vict. ch. 76, and 8 and 9 Vict. ch. 106, any instrument not under seal, will operate only as an agreement for a lease, though in the terms of a lease. • \'!, East's Rep. 168. ^ Co. Liu. 251. b. Bacon, tit. Leases, sec. 2. See infra. « Nevi-Yorlc Revised Statutes, toI. i. 739. sec. 143. 146. Mass. Revised Statutes, 1835, pai-t 2. tit. 1. c. 59. sec. 6. i Litt. sec. 608, 609, 610. 618. Co. Litt. 330. b. 332. a. (1) If an assignee from llie leBfee of a portion of the premises leased, commit an act of forfeit- ure, tlie whole premises are forfeited. Clarke v. Cummings, 5 Barb. S. C.Iiep. 840. 110 OF REAL PROPERTY. [Pprt VI. which his own estate was to determine ; and, therefore, a tenant for life could not, by virtue of his ownership, make an estate to continue after his death. But a lease made under a power may continue, notwithstanding the determination of the estate by the death of the person by whom the power is exercised.^ The limitation and modifying of estates, by vir- tue of powers, came from equity into the common law *107 with the statute of uses, and the intent of *the party who gave the power, gevems the construction of it. Powers to make leases are treated liberally, for the encourage- ment of agricultural improvement and enterprise, which re- quire some permanent interest. (1) If a man hath a power to lease for ten years, and he leases for twenty years, the lease is bad at law, but good in equity for the ten years, because it is a complete execution of the power, and it appears how much it has been exceeded.'' If the power to lease be uncircum- scribed, it is liable to abuse, and to be carried, even with up- right intentions, to an extent prejudicial to the interest of the cestui que trusts, or parties in remainder. Thus, the implied power in trustees to lease, was carried to a great extent, and received a very large and liberal construction, in the Court of Appeals in South Carolina, in the case of Black v. Ligon.'^ The trustees of a charity raised by will, were under an ex- press prohibition against selling or alienating the land ; but it was adjudged, that a power to lease was implied. A lease for ninety-nine years, without any annual reservation of rent, and for a very moderate gross sum, payable in eight years, was con- firmed upon appeal; inasmuch as great improvements had been made by the purchaser, and the power had been exer- cised in good faith, and lessees, and sub-lessees had a strong interest in the confirmation of the lease. This was pushing an implied power to lease very far, and, I apprehend, it' went beyond the established precedents. The final decision " Hale V. Green, 2 Rol. Ah: 261. pi. 10. Ram on Tenure and Tenancy, 75. ' Lord Mansfield, in 1 Burr. 120. Campbell v. Leach, Amh. 740. Ex parte Smyth, 1 Swanst. Rep. 337. 357. Hale, Ch. B., in Jenkins v. Kemishe, Hard. 396, Sugden on Powers, 2d Lond. edit. 545. Roe v. Prideaux, 10 East's Rep. 158. "■ Harper's Eq. Rep. 205. (1) Dowell V. Dew, 1 Younge & Coll. E. 345. Lee. LVL] OF REAL PROPERTY. Ill in the Court of Appeals (and which was contrary to the opinion of the Chancellor, in the court below) was directly contrary to the decisions in the House of Lords, in the Queensbury cases from Scotland ; where it was finally settled, that leases for ninety-nine *years, though at an *108 adequate rent, were a breach of the prohibition against alienation. Even a lease for fifty-seven years was held to fall within the prohibition. ^^ It has been made a question, how far equity could relieve against a defective execution of a power of leasing, as against the party entitled in remainder. But if the lessee be in the nature of a purchaser, and has been at expense in improvements, and there is no fraud on the re- mainder-man, or there is merely a defect in the execution of the power, equity will interfere, and help the power. ^ (9.) Covenants for renewal are frequently inserted in leases for terms of years, and they add much to the stability of the lessee's interest, and afford inducement to permanent *improvements. But the landlord is not bound to re- *109 new, without a covenant for the purpose ;<= and cove- * 2 Sow. 90. 285. 5 ibid. 293. 1 Bligh, 339. Bell's Com. toI. i. 69. '' Campbell v. Leach, Amb. liO. Shannon v. Bradstreet, 1 8ch. i: Lef. 52. Sugden on Powers, 364 — 368. 564, 566. In c. 10, of Mr. Svgden's Treatise of Powers, he considers extensively the law of powers to lease, and to which I must refer the student for a detailed view of that doctrine. In the Neio-YorJc Bevised Statutes, Tol. i. 731. ait. 3, the subject of powers in general is ably digested, and the doctrine is discharged, in a Teiy considerable degree, from the subleties which have given it so forbidding a character, and it is placed on clear and rational grounds. The doctrine will be noticed hereafter, in its application to different subjects, and I would now only observe, that the Revised Statutes provide, in relation to the immediate subject before us, that a special and beneficial power may be granted to a tenant for life, of the lands embraced in the power, to make leases for not more than twenty-one years, and to commence in possession during his life ; that such a power is not assignable as a separate interest, but is annexed to the estate, and will pass (unless specially excepted) by any conveyance of such estate ; and if specially excepted in the conveyance, it is extinguished. So, it may be extinguished by a release of it by the tenant to any person entitled to an ex- pectant estate in the lands. The power is not extinguished or suspended by a mortgage executed by the tenant for life, having a power to make leases, but it is bound by the mortgage in the same manner as the lands are bound ; and the moi'tgagee is entitled, in equity, to the execution of the power, so far as the satis- faction of the debt may require. New-York Revised Statutes, vol. i. 732, 733. sec. 73. 87, 88, 89, 90, 91. " Lee V. Vernon, Bro. P. 0. vol. vii. 432. edit. 1784. Robertson v. St. Johns, 2 Bro. 140. 112 OP REAL PROPERTY. [Part VI, nants by the landlord for continual renewals are not favoured, for they tend to create a perpetuity. "When they are explicit, the more established weight of authority is in favour of their validity.!!- These beneficial covenants to renew the lease at the end of the term, run with the land, and bind the grantee of the reversion. •• (10.) The tenant for years is not entitled to emblements, provided the lease be for a certain period, and does not de- pend upon any contingency; for it is his own folly to sow when he knows for a certainty that his lease must expire before harvest time." If, however, the lease for years depends upon an uncertain event, as if a tenant for life, or a husband seised in right of his wife, should lease the estate for five years, and die before the expiration of the term, by reason whereof the lease is determined, the lessee would be entitled to his emblements, on the same principle that the representatives of a tenant for life take them, if there would have been time to have reaped what had been sowed, provided the lessor had •■ FurniTal t. Crew, 3 Ath. 83. Cooke v. Booth, Oowp. Rep. 819. Lord Eldon, m Willan t. Willan, 16 Ves. 84. Rutgers v. Hunter, 6 Johns. Ch. Rep. 215. Lord Alvanley, as Master of the Rolls, in Baynham v. Guy's Hospital, 3 Ves. 295, spoke strongly against covenants for a perpetual renewal. In Attorney-General T. Brooke, 18 Ves. 326, Lord Eldon said, that it was impossible to contend in chanceiy that trustees for a charity could make leases with covenants for peipetual renewal. It would be equivalent to an alienation of the inheritance. A covenant to renew tlie lease, implies the same term and rent, and pei-haps the same conditions. But a covenant to renew upou such terms as might be agreed on, is void for uncertainty. Rutgers v. Hunter, supra. Whitlock v. DuflSeld, 1 Hoffman's Ch. Rep. 110.(1) '' Moore, 169. pi. 300. In covenants by the tenant to repair, he is to take care that the tenements do not suffer more than the natm'al operation of time and nature would effect. He is not bound to go further. He is only bound to keep up an old house as an old house. Tindal, Ch. J., Harris v. Jones, 1 Moo. & Rob. VIZ. Guttridge v. Munyard, iUd. 334. Stanley v. Twogood, 3 Bingham! s N. C. Rep. 4. This head of covenants to repair, is treated fully, with a review of all the distinctions, in Gibions on Dilapidations, p. 63 — 11. " Litt. sec. 68. By the reasonable custom in Pennsylvania, the tenant for years is entitled to the way-going crop, which is coniined to gi-ain sowed in the autumu before the expiration of the lease, and cut in the summer after it is determined. Demi v. Bossier, 1 Penn. Rep. 224:. (1) A covenant " to renew a lease under the same covenanla," is aatlsfled by a renewal omit- ting the covenant to renew. Oarr v. Ellison, 20 Wend, It. 178. See, also, Abeel v. Eaddiffe 18 Johns. R. 297. But see, contra. Bridges v. Hitchcock, 5 Brown's P. 0. 6. Lee LVI.1 OF EEAL PROPERTY. 113 lived.a The common law made a distinction between the right to emblements, and the expense of ploughing and ma- nuring the ground ; and the determination by the land- lord of an estate at will would *give to the lessee his *110 emblements, but not any compensation for ploughing and manuring the land, provided the lease was determined before the crop was actually in the gi'ound.'' The doctrine of emblements is founded on principles so very reasonable, that it could not have escaped the wisdom of the Roman law. They must have existed, as at common law, in tenancies depending on uncertainty ; and we find it pro- posed as a question by Marcellus,'= whether a tenant for the term of five years could reap the fruits of his labour, arising after the extinguishment of the lease ; and he was correctly of opinion that the tenant was not entitled, because he must have foreseen the termination of the lease. The Roman law made some compensation to the lessee for the shortness of his five years' lease, for it gave him a claim upon the lessor for reimbursement for his reasonable improvements. The land- lord was bound to repair, and the tenant was discharged from the rent, if he was prevented from reaping and enjoying the crops, by an extraordinary and unavoidable calamity, as tem- pests, fire or enemies."! In these respects the Roman lessee had the advantage of the English tenant ; for, if there be no agreement or statute applicable to the case, the English land- lord is not bound to repair, or to allow the tenant for repairs made without his authority ; and the tenant is bound to pay the rent, and to repair at his own expense, to avoid the charge of permissive waste.« (1) • Oo. Litt. S6. a. I* Bro. Abr. tit. MnUements, pL 7. tit. Tenant pour Oopie de Court roll, pL 3. SteT^art T. Doughty, 9 Johns. Rep. 108. ° Dig. 19. 2. 9. i Dig. 19. 2. 16. 1. 2. • Pindar v. Ainsley, cited by BuUer, J., in 1 Term Rep. 312. Mumford v. Brown, 6 Cowen, 475. The rule in the Freuch law is the same : the landlord is not bound (1) There is no implied contract to use ptemises in a tenant-like manner, ■where the tenant has expressly contracted to repair. Standen t. Christmas, 10 Ad. & El. N. S. 185. The tenant who is bound to repair is liable for damages to third persons from the ruinous state of the premises ; and if the premises were in a good state of repair when leased, the landlord is not liable. Bears T. Ambler, 9 .Barr^e B. 193. Vol. IY. 8 114 OF REAL PROPERTY. [Part VI. (II.) Of estates at will. An estate at will is "where one man lets land to *111 another, *to hold at the will of the lessor. =>■ It was determined very anciently, by the common law, and upon principles of justice and policy, that estates at will were equally at the will of both parties, and neither of them was permitted to exercise his pleasure in a wanton manner, and contrary to equity or good faith.'' The lessor could not deter- mine the estate after the tenant had sowed, and before he had reaped, so as to prevent the necessary egress and regress, to take the emblements." The possession of the land, on which the crop is growing, continues in the tenant, until the time of taking it arrives."* Nor could the tenant, before the period of payment of the rent arrived, determine the estate, so as to cut oflF the landlord from his rent.^ The tenant at will is also en- titled to his reasonable estovers, as well as to the profits of his to indemnify the tenant for hia meliorations. Lois det Batimens, par Le Page, tome ii. 205. But though a tenant for yeai-s as well as a tenant for life is answerable for waste, as see supra, pp. 11. 80. 82, yet a tenant from year to year is only bound to make ordinaiy tenantable repairs, such as to keep the house wind and water tight, and to repaii' windows and doors broken by him, and not to make lasting repairs. Anworth v. Johnson, 6 Carr. & Payne, 230. Ferguson's case, 2 Esp, N. P. C. 690. But if the house be in want of substantial repairs, or be other- wise unfit for occupation, the tenant is not bound to repair, and may quit without notice or paying rent. Edwards v. Etheiington, 7 Term Rep. Ill S. C. Ryan d Mood. 268. Collins T. Barrow, 1 Moo. d: Rob. 112. Cowie v. Goodwin, 9 Cwi: but there is a variation in the rule, or per- haps no jfixed established rule on the subject, in other parts of the United States. In Massachusetts, it was said, in Hising V. Stannard," that the English rule of six months' notice had not been adopted, but that reasonable notice must be given to a tenant at wiU. Afterwards, in Ooffim, v. Zv/nt,^ it was left as a point unsettled, whether notice to quit was requisite ; but the better opinion is that notice is necessary in that state ; and it was the opinion of Mr. Justice Putnam, upon an elabo- rate and thorough view of the subject, in Ellis v. Paige,^ that in a tenancy at will, the parties must give to each other reasonable notice of a determination of .the will.^ Justice ' Leighton v. Theed, 1 Ld. Raym. 'ZOT. Doe v. Snowden, 2 Wm. Blacks. Rep. 1224. Doe V. Porter, 3 Krm i?cp. 13. Porter v. CoDstable, 3 Fi7s. 25. Right v Darby, 1 Term Rep. 159. Roe T. WilkinsoD, cited from MSS. in Butler's note 228, to Co. Litt. lib. 3. By the New-Yorh Revised Statutes, vol. i. 744, sec. 1, if lands or tenements be occupied in the city of JN^ew-York, without any specified tenn of duration, the occupation is deemed valid until the fii'st day of May next after the possession, under the agi-eement commenced ; and the rent is deemed payable at the usual quaiier days, if there be no special agreement to the contraiy. ' Jackson t. Bryan, 1 Johns. Rep. 322. Hanchet v.^Whitney, 1 Vermont Rep. 311. Hoggins V. Becraft, 1 Sana's Ken. Rep. 30. Trousdale v. Dai-neB, 6 Terger. 431. Den v. Mcintosh, 4 Iredell, 291. « l"; Mass. Rep. 28"?. i 2 Pick. Rep. 10. • 2 ibid. 11, note. f The opinion of Judge Putnam, in the case referred to, contains a fuU and broad view of the whole ancient and modern law on the question ; and he established, by authority and illustration, the necessity of reasonable notic^to quit, in all cases of uncertain tenancy, whether under the name of tenancies from year to year, or ten- ancies at will. He showed that the doctrine was gi'ounded on the immutable principles of justice and the common law, and was introduced for the advancement of agiiculture, and the maintenance of justice ; and to prevent the mischievous effects of a capiicious and uni-easonable deteimination of the estate. By the Mass . Revised Statutes, of 1825, pai-t. 2, tit. 1, c. 60, sec. 26, all estates at will may be determined by either party, by three months' notice in writing ; and in cases of neglect or refusal to pay rent due on a lease at will, fourteen days' notice in writing to quit is sufficient. If there be no tenancy, or existing relation of landlord and Lee. LVI.] OF REAL PROPERTY. 117 and good sense require that the time of notice should vary with the nature of the contract and the character of the estate. Though the tenant of a house is equally under the protection of notice as the tenant of a farm, yet if lodgings be hired, for instance, by the month, the time of notice must be proportionably reduced.* In *Pennsylvania, the com- *114 mon law notice of six months is understood to be shortened to three months, as well in cases without, as within the statute of that state, passed in the year 1772.'' The reservation of an annual rent is the leading circum- stance that turns leases for uncertain terms into leases from year to year.^ If the tenant be placed on the land, without any terms prescribed, or rent reserved, and as a mere occu- pier, he is strictly a tenant at wiU 'j^ and an actual tenant at will has not any assignable interest, though it is sufficient to admit of an enlargement by release.^ On the other hand, estates which are constructively tenancies for the term of a year, or from year to year, may be assigned-^ A strict tenant at will, in the primary sense of that tenancy, has been held not to be entitled to notice to quit ;? but the later and more liberal rule seems to be, that tenants at will are regarded as holding from year to year, so far as to be entitled to notice to quit before they can be evicted by process of law. Or even without that assumption, if the party came into possession with the consent of the owner, and for an indefinite period, he is entitled to notice to quit.^ There is no uniform rule on tenant, the doctrine of notice to quit does not apply. Jackson v. Deyo, 3 Johns. Rep. 417. • Right T. Darby, 1 Term Rep. 159. Doe v. Hazell, 1 Esp. N. P. Rep. 94. If the tenant holds from month to month, a month's notice to quit must be given. Piindle v. Anderson, 19 Wendell, 391. '' Gibson, J., in Logan v. HeiTon, 8 8erg. Parker v. Constable, 3 Wils. Rep. 25. Right v. Beard, 13 Easts Rep. 209. Jackson v. Bryan, 1 Johns. Rep, 322. Jackson v. Langhead, 2 ibid, 15. Jackson v. Wheeler, 6 ibid. 2'72. Phillips v. Covert, 1 ibid. 1. 4. Bradley v. Oovell, 4 Cowen's Rep. 349. EUis v. Paige, supra, p. 113. 118 OF REAL PEOPERTY. [Pai't VL the subject, for it was held in Doe v. Ba/rlcer,^ that -where a person takes possession of land by the license of the owner for an indeterminate period, without any rent reserved, he is not a tenant from year to year, but a remaining instance of the old strict common law tenancy at will, and is not entitled to notice to quit. It is settled, however, that notice is not re- quisite to a tenant, whose term is to end at a certain time ; for, in that case, both parties are apprised of their rights and duties. The lessor may enter on the lessee when the term expires, without further notice.'' Except for the purpose of notice to quit, tenancies at will seem even still to retain their original character ;<= and the distinction between tenants from year to year, and tenants at will, was strongly marked in the case of Nioliols v. WilUamsA The Ifew- York Revised Stat- utes^ authorize a summary proceeding to regain the posses- sion, where the tenant for one or more years, or for a part of a year, or at will, or sufferance, holds wrongfully against *115 *his landlord ; but it requires one month's notice to be given to a tenant at will, or sufferance, created by hold- ing over or otherwise, to remove, before application be made for process under the act. It was held, in the case last cited, that a tenant from year to year was not entitled to any notice, in proceedings under a similar statute provision, though in the action of ejectment he would still be entitled to his six months' notice to quit. There is a summary mode of pro- ceeding, provided also by statute, in Pennsylvania, Maryland, South Carolina, Maine and other states, for such cases ; and » 4 Dev. N. C. Rep. 220. ' Messenger y. Armstrong, 1 Term Rep.hi. Right v. Darby, ibid. 162. Jack- son v. Bradt, 2 Caines' Eep. 160. Jackson v. Parkhurst, 5 ibid. 128. Bedford v. M'Elhetton, 2 Serg. & Rawle, 49. Ellis v. Paige, 1 Rich. Rep. 43. Nor is a tenant who disclaims his landlord's title entitled to notice to quit. Woodwai'd v. BroTVD, 13 Peters' V. 8. Rep. 1. When a lease expires by its own limitation, the lessee be- comes a tenant at will, and the landlord may enter forthwith and dispossess him without notice, using only the requisite force. Duncan v. Blachford, 2 Serff. d; Rawle, 480. Overdeer v. Lewis, 1 Watts & Berg. Rep. 90. Clapp v. Paine, 18 Maine Rep. 264. " t Johns. Rep. 4. Nichols v. Williams, 8 Cowen's Rep. 75. ■■ 8 Cowen's Rep. 18. » Vol. i. 745, sec. 7, 8, 9, and vol. ii. 612, 513, sec. 28. See infra, p. 118, and mpra, vol. iii. pp. 480, 481. Lee LVL] or REAL PROPERTY. 119 the statute req.uires, in one state three months, and in others thirty days, or one month's notice only ; and they make no discrimination between different kinds of tenants.'' The resolutions of the courts, turning the old estates at will into estates from year to year, with the right on each side of notice to quit, are founded in equity and sound policy, as they put an end to precarious estates, which are yery injurious to the cultivation of the soil, and subject to the abuses of discre- tion. But they are a species of judicial legislation, tempering the strict letter of the law by the spirit of equity. Estates at will, under the salutary regulation of the reasonable notice to quit, have still a strong foundation in the language of the statute of frauds,!' -^vliich declared, that " all leases, estates or uncertain interests in land, made by parol, and not in writing, should have the force and effect of estates at will only, and should not, in law or equity, be deemed or taken to have any other or greater force or effect." The statute of frauds made an exception in favour of leases not exceeding the term of three years, and on which the rent reserved amounted to two- third parts of the full improved value of the land demised. But it appears that the English decisions have never alluded to that exception. They have moved on broader ground, and on general principles, so as to have rendered the ex- ception *practically useless." The exception is now *116 dropped, in the Massachusetts, Connecticut, ISTew-Tork and Ohio statutes of frauds."! The Roman law, like the English, was disposed, as much as possible, and upon the same principles of equity, to con- strue tenancy at will to be a holding from year to year ; and, therefore, if the tenant held over, after the term had expired, and the lessor seemed in any way to acquiesce, his silence was » Statute of Pennsylvania, March, 1772, and of Maryland, Dec. 1*793, and of S. Carolina of 1812, 1811 and 1839. The Revised Statutes of Massachusetts, 1836, part 3, tit. 3, c. 104, provide a short proceeding before a justice of the peace, in cases of tenants holding over after the expiration of the teiin. Statute of Maine, 1824, is to the same effect. b 29 Charles II., c. 3. ' Patnam, J., in Ellis v. Paige, 2 Pich. Rep. 71, note. ^ New-York Revised Statutes, Yo\.u.lZ5, sea. 6. Statute of Ohio, \%Zl. Mass. Revised Statutes, 1835. Statutes of Connecticut, 1838. 120 OF REAL PROPERTY. [Part VL construed into a tacit renewal of the lease, at least for the following year, with its former conditions and consequences ; and the lessee became tenant from year to year, and could not be dispossessed without regular notice.'^ The whole of the title in the Pandects upon this subject,'' contains the impres- sion of a very cultivated jurisprudence, under the guidance of such names as Papinian, Ulpian, Julian and Gains. And when the sages at "Westminster were called to the examina- tion of the same doctrines, and with a strong, if not equally enlightened and liberal sense of justice, they were led to form similar conclusions, even though they had to contend, in the earlier period of the English law, when the doctrine was first introduced, with the overbearing claims of the feudal aristoc- racy, and the scrupulously technical rules of the common law. (ni.) Of estates at sufferance. A tenant at sufferance is one that comes into the possession of land by lawful title, but holdeth over by wrong, after the determination of his interest. <= He has only a naked possession, and no estate which he can transfer or *117 *transmit, or which is capable of enlargement by re- lease ; for he stands in no privity to his landlord, nor is he entitled to notice to quit \^ and independent of 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.^ There is a material distinction between the cases of a person coming to an estate by act of the party, and afterwards holding over, and by act of the law, and then holding over. In the first » Big. 19. 2. 13. 11. Ibid. 1. 14. Pothier's Pandectce, tome ii. 225. Brovm's Civil Law, vol. L 198. I have assumed the existence of the rule in the Roman law, requiring notice to quit, upon the credit of Dr. Brown ; but he cites no authority for it, and I have not perceived it in the text of the Digest. ^ Lib. 19. tit. 2. Zocati conducti. ' Go. lAtt. 51. b. i" Co. Liu. 270. b. Jackson v. Parkhm-st, 5 Johns. Hep. 128. Jackson v. M'Leod, 12 ibid. 182. e Cruise's Big. tit. 9. c. 2. sec. 6. ' 2 Blacks. Com. 150. Lee. LVL] OF REAL PROPERTT. 121 case, he is regarded as a tenant at sufferance, and in the other, as an intruder, abator or trespasser. >>• This species of estate is too hazardous to be frequent, and it is not very likely to occur, since the statutes of 4 Geo. II., c. 28, and 11 Geo. II., c. 19, declaring, that if a tenant held over after demand made, and notice in writing to deliver up the possession, or if he held over after having himself given notice of his intention to quit, he should be liable to pay double rent, so long as he continued to hold over. The provisions of these statutes have been re-enacted in New-York, though they are not generally adopted in this country .*> There is, likewise, in ITew-York, a farther provision by statute, against holding over without ex- press consent, after the determination of their particular estates, by guardians and trustees to infants, and husbands seised in right of their wives, or by any other persons having estates determinable upon any life or lives. They are de- clared to be trespassers, and liable for the full value of the profits received during the wrongful possession." This last provision was taken *from the statute of 6 Anne, *118 c. 18 ; and the common law itself held the guardian, in such a case, to be an abator, and it gave an assize of raort d^ ancestor ; and so it equally gave an action of trespass, after entry, against the tenant j)out autre vie, and against the tenant for years holding oygvA In the case of the tenant holding over after the expiration "of his term, the landlord may recover the possession of the premises by an action of ejectment ; and, in New-Tork, as we have already seen, a summaiy remedy is given to the landlord by statute, under the process of a single judge.^ In- • Co. Zitt. 51. b. 2 Inst. 134. '' New-Yorh Revised Statutes, vol. i. "745. sec. 10, 11. la South Carolina, under the act of 1808, the tenant holdiDg over, after the expiration of his lease, is chargea- ble with double rent. " New-YorTc Revised Statutes, vol. i. 749. sec. 7. i Co. Litt. 57. b. 2 Inst. 134. " See ante, vol. iii. 480, and New-York Revised Statutes, vol. i. 745. sec. 7, 8, 9. A summai-y process to oust tenants at sufferance, is also given to the landlord by the statute of 1 and 2 Vict. 74. In Randolph v. Carlton, Alabama R. N. 8. vol- viiL 606, it was adjudged, that although a tenant, as a general nile, could not con- trovert the title of his landlord, yet his tenancy or lease would not estop him from showing that his landlord's title had expired or been extinguished by operation of 122 OF REAL PROPERTY [Part YI. dependent of any statute provision, the landlord may re-enter, upon the tenant holding over, and remove him and his goods, with such gentle force as may be requisite for the purpose ; and the tenant would not be entitled to resist or sue him. The plea of liberum tenementum would be a good justification, in an action of trespass, by the party, for the entry and ex- pulsion.a But the landlord would, in the case of an entry by force, and with strong hand, be liable to an indictment for a forcible entry, either under the' statutes of forcibly entry, or at common law ; and in the cases which justify the entry as against the tenant, it is admitted that the landlord would be indictable for the force.'' It may be further observed, in respect to the rights of land- lords, that, by the English statute of 11 Geo. II., they were entitled to be admitted to defend, in ejectment, suits brought against the tenant of the premises. This provision, probably, has been universally adopted or practised upon in this coun- try. It is just and reasonable, and supplies the place *119 of the process of voucher and aid-prayer in the *real law. The court were not unanimous in this decision, and its effect was considered to be dangerous to the solidity of the general rule. > Taylor v. Cole, 3 Term Rep. 292. 1 H. Blacks. 555. S. C. Taunton v. Costal-, •? Term Rep. 431. Argent t. Durrant, 8 ihid. 403. Turner v. Meymott, 1 Bing. ham, 158. Jackson v. Farmer, 9 Wendell, 201. Jones v. Muldrow, 1 RMs S. C. Rep. 64. In Richardson vJ Anthony, 12 Vermont Rep. 273, and Chambers t! Bedell, 2 Watts Co. Utl. 215. a. b. ° Lewis V. Ridge, Cro. M. 863. ■^ lAtt. sec. 325. " Lord Hardwicke, in Wigg t. Wigg, 1 Alh. 383. Doe v. "Watt, 1 Mann, & Ryl. 694. 128 OF EEAL PROPERTY. [Pai-t VI, condition in deed is either general or special. The former puts an end altogether to the tenancy, on entry for the breach of the condition; but the latter only authorizes the re- yersioner to enter on the land, and take the profits to his own use, and hold the land by way of pledge until the condition be fulfiUed.a The stipulations in the form of a condition are various, and may be of any kind consistent with the general rules of law, as that the tenant pay a rent yearly or quarterly, or enfeoff B., or do a specified service for A., or sow the land with some particular grain, or do not assign or underlet with- out license, or do not marry a particular person.!" ^ cove- nant in a lease, that if lessee, or his assigns, sells, the lessor shall have the right of pre-emption, and one-tenth of the pur- chase money, is a valid covenant ; and the estate is forfeited if that be made a condition of the breach of it.<= The cove- nant not to assign without license, is understood to apply only to voluntary sales, by the act of the lessee. It does not apply to sales by act of law, or proceedings in mvituon/ and creditors may seize and appropriate the value of the leases^ as in cases of insolvency or bankruptcy, or on judgment and execution ; unless the judgment be confessed with a view to evade the covenant, or unless it be part of the express agree- ment, that the lease shall not so pass by operation of law.^ « Ziit. sec. 325. 3i1. Co. Litt. 203. a. Shep. Touch. 151. •■ Oo. Mtt. 206, 207. Shep. Touch, by Preston, vol. i 128—130. Jackson v. Silveraail, 15 Johns. Rep. 278. Penin v. Lyon, 9 East's Rep. 170. A conveyance on condition that the grantee shall keep a saw and grist-mill on the land, doing business, is a valid condition, and a failure of perfonnance forfeits the estate. Lessee of Speny v. Pond, 5 HammoncCs Ohio Rep. 389. ' Jackson v. Schutz, 18 Johns. Rep. 174. Jackson v. Groat, 7 Oowen's Rep. 285. In the case of Livingston v. Stickles, 8 Paiges Rep. 398, the chancellor held that a condition and covenant, in a lease in perpetuity, that upon eveiy sale of the premises, the lessee or his assigns, must obtain the consent in writing of the owner of the rent and reversion, and should offer him the right of pre-emption ; and if sold after such offei', one-tenth of the pui-chase money was to be paid to the lessor, was in restraint of, and in the nature of a fine upon alienation, and inconsistent with the spirit of our institutions. That the remedy, if any, was at law, and not in equity, and that if the landlord had not secured to himself a remedy al law, the court of chanceiy would not interfere to help him. ■• Doe V. Carter, 8 Term Rep. 57. 300. Doe v. Sevan, 3 Maule tb Selw. 358. Wilkinson v. Wilkinson, Cooper's Eq. Rep. 259. Jackson v. Corlis, 7 Johns. Rep. 531. Where a lease contained a condition that the lessees or their assigns should not alien without license, a license given to one of three lessees, dispensed with the Lee. LVII.] OP REAL PROPERTY. 129 These conditions are also either precedent or subsequent ; and as there are no technical words to distinguish them, it follows, that whether they be the one or the other, is matter of construction, and depends upon the intention of the *party creating the estate.'^ (1) A precedent condition *125 is one which must take place before the estate can vest, or be enlarged ; as if a lease be made to B. for a year, to com- mence from the first day of May thereafter, upon condition that B. pay a certain sum of money within the time ; or if an estate for life be limited to A. upon his marriage with B. ; here the payment of the money in the one case, and the mar- riage in the other, are precedent conditions, and until the con- dition be performed, the estate cannot be claimed, or vest.^ Precedent conditions must be literally performed, and even a court of chancery will never vest an estate, when, by reason of a condition precedent, it will not vest in law. It cannot relieve from the consequences of a condition precedent un- performed." Subsequent conditions are those which operate upon estates already created and vested, and render them liable to be de- condition as to all, on the gi'ound that the condition being entire, could be divided or apportioned. Dumpor'a case, 4 Co. 119. b. This hard rule is considered aa un- shaken law, down to this day. 4 Taunion, *\Zf). 14 Yesey, 1*73. Dakin v. "Williams, 17 Wendjell, 447. See, also, nole a, to Dumpor'a case, in Thomaa & Fra- ser's excellent edition of Lmd Ook^$ Reports, and also in the notes to that case in Smith's Leading Cases, Law Library, N. S. vol. jcxvii. • Ashhurst, J., in 1 Term Rep. 645. Lord Eldon, in 2 Bos. <& Pull. 295. Heath, J., ibid. 297. Finlay v. King, 3 Peter^ U. S. Rep. 346. "> 2 Blacks. Com. 154. ' Popham V. Bampfield, 1 Vern. 83. Harvey v. Aston, 1 Atk. 361. West's Rep. 350. S. 0. Reynish v. Martin, 3 Atk. 330. Scott v. Tyler, 2 Bro. C. C. 431. Hargrave's argument in this latter case is distinguished for ita learning and skill, and he has republished it separately in the volume of his Judicial Arguments. Stackpole v. Beaumont, 3 Vesey, 89. Wells v. Smith, 2 Edwards' V. C. Rep. 75. But see City Bank v. Smith, 3 Oill & Johns. 265, where it is said that equity will relieve against penalties and forfeitures, when the matter admits of compensation, whether the condition on which they depend be precedent or subsequent. (2) (1) "Where mutual covenants go to the whole consideration on both aides, they are mutual con- ditions, the one precedent to the other ; but where the covenants go only to apartoftbe consi- deration, the remedy is by damages, and the covenant is not a condition precedent. Boone v; Eyre, 1 E. Bla. R. 278. McOuUough v. Cox, 6 Barb. S. C. Bep. 387. On the subject of conditions, see 1 WiMaans^ Scuwndsrs, 820, &. (2) See Bowser v. Colby, 1 Bore's B. 109. YoL. lY. 9 130 OF REAL PROPERTY. [Part VI. feated. Of this kind are most of the estates upon condition in law, and which are liable to be defeated on breach of the con- dition, as on failure of payment of the rent, or performance of other services annexed to the estate. So long as these es- tates upon subsequent condition continue unbroken, they re- main in the same situation as if no such qualification had been annexed. The persons who have an estate of freehold subject to a condition, are seised, and may convey or devise the same, or transmit the inheritance to their heirs, though the estate will continue defeasible until the condition be performed, or destroyed, or released, or barred by the statute of limitations, or by estoppel.* A devise of lands to a town for a school- house, provided it he iuilt within one hundred rods of the place where the meeting-house stands, was held to be valid as a condition subsequent ; and the vested estate would *126 be *forfeited, and go over to the residuary devisee as a contingent interest, on non-compliance, in a reasonable time, with the condition. •> So, if land be given, on condition that the public buildings of the parish be erected thereon, it has been held to revert to the donor, if the seat of justice of the parish be removed, under the sanction of an act of the legislature, passed subsequent to the grant." Though an es- tate be conveyed, it passes to the grantee, subject to the con- dition, and laches are chargeable upon the grantee, even though such grantee, or his assignee, be an infant ovfeme co- vert, for non-performance of a condition annexed to the es- tatcii (1) It is a general principle of law, that he who enters for a condition broken, becomes seised of his first estate; and he avoids, of course, all intermediate charges and incum- brances.e If the condition subsequent be followed by a limitation over to a third person, in case the condition be not fulfilled, or there be a breach of it, that is termed a conditional limita- ' 2 Blacks. Com. 156. Preston cm Abstracts of Title, vol. ii. 185. •> Hayden v. Stoughton, 5 Pich. Rep. 528. " Police Juiy v. Reeves, 18 Martin's Louis. Rep. 221. i Co. Litt, 246. b. » Perkins, sec. 840. Shep. Touch, by Preston, vol. i. 121. 155. (1) See Garrett t. Scouten, 3 Senio'sJi. 884 Lee LVIl] OP REAL PROPERTY. 131 tion.'' Words of limitation mark the period whicli is to de- termine the estate ; but words of condition render the estate liable to be defeated in the intermediate time, if the event ex- pressed in the condition arises before the determination of the estate, or completion of the period described by the limita- tion. The one specifies the utmost time of continuance, and the 'other marks some event, which, if it takes place in the course of that time, will defeat the estate.'' The ma- terial distinction between a condition and a limitation consists in this, that a condition does not defeat the estate, although it be broken, until entry by the *grantor or *127 his heirs ; and when the grantor enters, he is in as of his former estate. His entry defeats the livery made on the creation of the original estate, and, consequently, all subse- quent estates or remainders dependant thereon. Conditions can only be reserved for the benefit of the grantor and his heirs. A stranger cannot take advantage of the breach of them. (1) There must be an actual entry for the breach of the condition, or there must be, in the case of non-payment of rent, an action of ejectment, brought as a substitute, provided by the statute of 4 Geo. II., c. 2, for the formal re-entry at common law, and which provision on this point is adopted in ISTew-YorkjC and in several of the other states which have fol- lowed the English system. But it is in the nature of a limi- tation to determine the estate when the period of the limita- tion arrives, without entry or claim ; and no act is requisite to vest the right in him who has the next expectant interest. "Were it otherwise, the heir might defeat the limitation over, by refusing to enter for breach of the condition.iJ To get rid ' Pells V. Brown, 2 Gro. 591. Holt, Ch. J., Page v. Haywai'd, 11 Mod. Rep. 61. Lord Hardwicke, in Wigg v. "Wigg, 1 Ath 383. 2 Blacks. Com. 165. Doe v. Hawk, 2 Bast's Hep. 488. ' Shep. Touch, by Preston, vol. L IIY. Preston on Estates, vol. i. 45. 49. 128, 129. " New-York Revised Statutes, vol. ii. 605. sec. 30. ■• Co. Lift. 214, b. 218. a. 10 Co. 40. b. 2 Blacks. Com. 155. Preston on Estates, vol. i. 46 — 48. Sliep. Touch, by Preston, vol. i. 121. Den v. Hance, 6 (1) Where an owner of land, in the city of New-York, divided it into several parcels, which he sold, from time to time, to different persons, inserting conditions in each deed, malting void the conveyance, if certain trades should be permitted on the premises, "Walworth, Chancellor, held, that one of the grantees, though unable to sue at law for the condition broken, might, through a court of equity, enforce against another gi'antce the observance of the conditions. Bar- row V. Eichard, 8 Paige, 861. See, also, Bleeckcr v. Bingham, 3 Paige, 246. 132 OF REAL PROPERTY. [PartVI. of the diiBculty under the old rule of law, that an estate could not be limited to a stranger upon an event which went to abridge or determine the previously limited estate, a distinc- tion was introduced, in the case of wills, between a condition and a conditional limitation, and which has been supposed to partake more of refinement and subtlety than of solidity. A eonditional limitation is of a mixed nature, and partakes of a condition and of a limitation : as if an estate be limited to A. for life, provided that when C. Tetums from Home, it shall thenceforth remain to the use of B. in fee ; it partakes of the nature of a condition, inasmuch as it defeats the estate pre- viously limited ; and is so far a limitation, and to be distin- guished from a condition, that upon the contingency *128 taking place the estate passes to the *stranger without entry, contrary to the maxim of law, that a stranger cannot take advantage of a condition broken.* These condi- tional limitations, though not valid in the old conveyances at common law, yet within certain limits, they are good in wills and conveyances to uses.'' Hoisted, 244. Mr. Justice Wilde, in Fifty Associates y. Howland, Supreme Coui't Massachusetts, July, 1846, (N. Y. Legal Observer for August, 1846,) says that Blackstone con'ectly lays down the distinction between words of condition or con- ditional limitation. ' * Butler's note, 99, to Co. lAtt. lib. 3. Steams v. Godfrey, 16 Maine Rep. 168. Douglass, in a note to Doug. Rep. 755, thinks the distinction between a conditional limitation and a remainder, merely verbal; but Fearne {Fearne on Remainders, 10 — 18,) vindicates the distinction, and relies on the authority of the case of Cogan v. Cogan, Oro. Eliz, 360. Conditional limitations which are contingent remainders, are limited to commence when the first estate is, by its original limitation, to deter- mine ; but conditional limitations, which are not remainders, are so limited as to be independent of the extent and measure given to the first estate, and are to take effect upon an event which may happen before the regular determination of the first estate, and so rescind it. This is Mr. Feame's distinction ; but he is not clear and fortunate when he comes to illustrate it by examples ; and they appeal' to be quite refined, and essentially verbal. * Fearne on Remainders, 10. 391 — 393. 409, 410. In Lady Ann Fry's case, 1 Vent. 199, Sir Matthew Hale said, the point was too clear for ai-gument ; and that though the word condition be used, yet, limiting a remainder over made it a limita- tion. If there be no limitation over of the estate upon a breach of the condition annexed, it is not a conditional limitation, but an estate upon a condition subsequent at the common law, and the heir must enter for a breach of the condition. The New-York Revised Statutes, vol. i. 725. sec. 27, declare, that a remainder maybe limited on a contingency, which, in case it should happen, will operate to abridge or determine the precedent estate ; and eveiy such remainder shall be consti'ued a Lee. LVn.] OF REAL PROPERTY. 133 There is this further distinction to be noticed between a condition annexed to an estate for years, and one annexed to an estate of freehold, that in the former case the estate i])so facto ceases as soon as the condition is broken ; whereas, in the latter case, the breach of the condition does not cause the cesser of the estate, without an entry or claim for that pur- pose. It was a rule of the common law, that where an estate commenced by livery, it could not be determined before entry. When the estate has, ipso facto, ceased, by the operation of the condition, it cannot be revived without a new grant ; but a voidable estate may be confirmed, and the condition dispensed with.^ *A collateral limitation is another refinement be- *129 longing to this abstruse subject of limited and condi- tional estates. It gives an interest for a specified period, but makes the right of enjoyment to depend on some collateral event, as a limitation of an estate to a man and his heirs, tenants of the manor of Dale, or to a woman during widow- hood, or to 0. till the return of B. from Rome, or until B. conditional limitation, and shall have the same effect as such a limitation would have by law. An able wi'iter in the American Jurist, vol. xi. 61, says, that those words were merely declaratory of the common law, which is, that a remainder, whether termed such, or a contingent limitation, or improperly, as in the statute a conditional limitation, takes effect on the happening of a contingent event which puts an end to the precedent estate. ■ Co. Lilt. 216. a. Pennant's case, 3 Co. 64. Preston on Abstracts of Title, vol. iii. 397. This distinction between leases for years and for life, no longer pre- vails. In relation to leases for years as well as for life, the cause of forfeiture only renders the lease void as to the lessee, and it may be affirmed by the lessor, and the rights and obligations of both parties will in that case continue. The courts will not so construe the conti-act as to enable the lessee to put an end to it at pleasure, by his own improper conduct. Clark v. Jones, 1 Denio, 516. Mr. Pres- ton says, that every limitation which is to vest an interest on a contingency, or upon an event which may, or may not happen, is a conditional limitation. A con- tingent remainder is a conditional limitation ; and estates which have their opera- tion by resulting or springing use, or by executory devise, and are to commence on an event, are all raised by conditional limitations. It is the uncertainty of the happening of the event, that distinguishes an absolute limitation from a conditional limitation, or a limitation upon contingency. Though all contingent interests are executory, yet all executory interests are not contingent. Preston on Estates, vol. i. 40, 41. 63. Mr. Preston here confounds conditional and contingent limitations ; but Lord Mansfield, in Buckworth v. Thu-kell, 3 Bos. & Pull. 247. note. S. C. 1 Col. Jurid. 247, marked the distinction, and said there might be a limitation depending on a contingency, without any condition in it. * 134 OF REAL PROPERTT. [Piirt VI shall have paid him twenty pounds. The event marked for the determination of the estate is collateral to the time of continuance. These superadded clauses of qualification give to the estate a determinable quality ; and, as we have already seen in a former lecture,^ if the estate be one of inheritance, it is distinguished, as a qualified base, or determinable fee. The estate will determine as soon as the event arises, and it never can be revived.'' Conditions subsequent are nt)t favoured in law, and are construed strictly, because they tend to destroy estates; and the rigorous exaction of them is a species of summwni jus, and in many cases hardly reconcilable with con- 130 science.'^ *If the condition subsequent be possible at the time of making it, and becomes afterwards impos- sible to be complied with, either by the act of God, or of the law, or of the grantor ; or if it be impossible at the time of making it, or against law, the estate of the grantee, being once vested, is not thereby divested, but becomes absolute.* So, if the condition be personal, as that the lessee shall not sell without leave, the executors of the lessee,, not beingnamed^ may sell without incurring a breach. <= A court of equity will never lend its aid to divest an estate for the breach of a con- dition subsequent. The cases, on the contrary, are full of discussions, how far chancery can relieve against subsequent conditions. The general rule formally was, that the court would interfere, and relieve against the breach of a condi- tion subsequent, provided it was a case admitting of com- pensation in damages.*" Eut the relief, according to the modern English doctrine in equity, is confined to cases where the forfeiture has been the effect of inevitable accident,, and the injury is capable of a certain compenssition in dama- • Lect. LIV. I" Poole T. Needham, Yelv-. 149. Baldwin and Cock's case, 1 Leon. 74. Preston on Estates, vol. i. 43, 44. 49, 50. « Co. Litt. 205, b. 219, b. 8 Co. 90, b. J Co. Litt. 206, a. 208, b. 2 Blacls. Com. 156. Parker, Ch. J., in Mitchel v. ReynoldB, 1 P. Wms. 189. Lord Chief Justice Treby, in Caiy v. Bertie, 2 Fern.. S39. « Z)j/cr, 66, a. pi. 8. J/bor«, 11, pi. 40. i Popham V. Bampfield, 1 Vern. 83. lee LVII.] OF REAL PROPERTY. 135 ges.a 111 the case of Hill v. Barclay^ Lord Eldon said, re- lief might be granted against the breach of a condition to pay money, but not where any thing else was to be done ; and he insisted, that where the breach of the condition consisted of acts of commission, directly in the face of it, as by assign- ing a lease without license, and the law had ascertained the contract, and the rights of the parties, a court of equity coiild not interfere. *A court of equity cannot control *131 the lawful contracts of parties, or the law of the land. Conditions are not sustained when they are repugnant to the nature of the estate granted, or infringe upon the essential enjoyment and independent rights of property, and tend ma- nifestlj'' to public inconvenience. A condition annexed to a conveyance in fee, or by devise, that the purchaser or devisee should not alien, is unlawful and void. The restraint is ad- mitted in leases for life or years, but it is incompatible with the absolute right appertaining to an estate in tail or in fee.'' If the grant be upon the condition that the grantee shall not commit waste, or not take the profits, or his wife not have her dower, or the husband his curtesy, the condition is repug- nant and void, for these rights are inseparable from the estate in fee. "J Nor could a tenant in tail, though his estate was originally intended as a perpetuity, be restrained by any pro- viso in the deed creating the estate, from suffering a common recovery. e Such restraints were held by Lord Coke to be ab- surd, atfd repugnant to reason and to " the freedom and liberty of freemen." The maxim which he cites, contains a just and enlightened principle, worthy of the spirit of the English law in the best ages of English freedom ; iniquwm • Rolfe V. Hanis, 2 Price's Exchange Rep. 207, note. Bracebridge t. Buckley, ibid. 200. City Bank t. Smith, 3 Gill 4; Johns. 265. Jerem^s Eq. Jur. 476. Schermerhorn v. Negus, 1 Denio, 450. >> 18 Ves. 56. " In a bequest to a daughter, -with a proviso that if she attempted to sell or dis- pose of it, it should be void, the restriction was held to be void. Newton v. Reid, 4 Simon's Rep. 141. A restraint upon alienation in cases of leases in perpetuity, with a reservation of rent, and with covenants and conditions annexed, is tolerated and held valid in law. Vide supra, p. 1 24. •■ Mildway's case, 6 Co. 40. Litt. sec. 360. Co. Zitt. 206, b. 223, a. Stukeley v. Butler, Hob. 168. Lord Kenyon, 8 Term Rep. 61. " Mary Portington's case, 10 Oo. 42, a. 136 OF REAL PROPERTT. [Part VI. est ingenuis hominibus non esse Uberam rerum suarum alien- ationem.^ If, however, a restraint upon alienation be con- fined to an indiyidual named, to whom the grant is not to be made, it is said by very high authority^ to be a valid con- dition. But this case falls within the general principle, and it may be very questionable whether such a condition would be good at this day. In Newki/rh v. Newlcirh,<^ the *132 *court looked with a hostile eye upon all restraints upon the free exercise of the inherent right of alien- ation belonging to estates in fee ; and a devise of lands to the testator's children, in case they continued to inhabit the town of Hurley, otherwise not, was considered to be unreasonable, and repugnant to the nature of the estate. If it be doubtful whether a clause in a deed be a covenant or a condition, the courts will incline against the latter con- struction ; for a covenant is far preferable to the tenant. If a condition be broken, the landlord may indulge his caprice, and even malice, against the tenant, without any certain re- lief; but equity will not enforce a covenant embracing a hard bargain ; and, at law, there can be no damages without an injury.^ Whether the words amount to a condition, or a limitation, or a covenant, may be matter of construction, de- pending on the contract. The intention of the party to the instrument, when clearly ascertained, is of controlling efiicacy ; though conditions and limitations are not readily to be raised by mere inference and argument.^ The distinctions- on this subject are extremely subtle and artificial ; and the construc- • Co Litt. 228, a. i" Lilt. see. 361. Co. Litt. 223. " 2 Caines' Bep. 345. ^ Beat, Ch. J., in Doe v. Phillips, 9 Moore's Rep. 46. If words, both of covenant and condition, be used in the same instrument, both are allowed to operate. Bay- ley, J., in Doe v. Watt, 8 Barnw. S Cress. 308. « Pembroke v. Berkley, Moore, 106. Cro. MHz. 384. Argument of PoUexfen, in Carpenter v. Smith, Pollex. Rep. 70. The words usually employed in creating a condition ai'e, upon condition ; and this, says Lord Coke, is the most appropriate expression ; or the words may be, so that ; provided; if it shall happen, &c. The apt words of limitation are, while; .w long as; until; during, &c. The words, provided always, may, under the circumstances, be taken as a condition, or as a limi- tation, and sometimes as a covenant. Ijitt. sec. 325 — 380. Co. Litt. 203, a. b. Mai-y Portington's case, 10 Co. 41, b. 42, a. Lord Cromwell's case, 2 Co. 69. Ba- con's Abr. tit. Conditions, H. lee. LVIL] OF REAL PEOPERTr. 137 tion of a deed, as to its operation and effect, will, after all, depend less upon artificial rules, than upon the appli- cation of good sense and *sound equity to the object *133 and spirit of the contract in the given case. A tender of performance at the day will save a condition ; and if the tender be refused, the land may be discharged, as in the case of a mortgage, while the debt remains." * ii«. sec. 838. Co. Litt. 209, b. Jackson v. Crafts, 18 Johns. Rep. 110. Sweet T. Horn, 1 Adanis N. H. Rep. 32. LECTUKE LYIII. ON THE LAW OF MOETGAGE. A MOETGAGE IS the Conveyance of an estate, by way of • pledge for the security of debt, and to become void on payment of it. The legal ownership is vested in the creditor ; but, in equity, the mortgagor remains the actual owner, until he is debaiTed by his own default, or by judicial decree. There is no branch of the law of real property which em- braces a greater variety of important interests, or which is of more practical application. The different, and even conflict- ing views, which were taken of the subject, by the courts of law and of equity, have given an abstruse and shifting character to the doctrine of mortgages. But the liberal minds and en- larged policy of such judges as Hardwicke and Mansfield, gave expansion to principles, tested their soundness, dispersed anomalies,' and assimilated the law of the different tribunals on this as well as on other heads of jurisprudence. The law of mortgage, under the process of forensic reasonings, has now become firmly established on the most rational foun- dations. In the examination of so extensive a title, I shall endeavour to take a just and accurate, though it must necessarily be only a very general view of the subject, under the following heads : I. Of the general nature of mortgages : II. Of the mortgagor's estate and equity of redemption : III. Of the estate and rights of the mortgagee : TV. Of foreclosure. I. Of the general nature of mortgages. (1.) Different Mnds of mortgages. The English law of mortgages appears to have been bor- rowed, in a great degree from the civil law ; and the Eoman Lee. LVIII.] OF REAL PROPERTY. 139> liypotheca corresponds very closely with the description of a mortgage in our law. The land was retained by the debtor, and the creditor was entitled to his actio hypothecaria, to ob- tain possession of the pledge, when the debtor was in default ; and the debtor had his action to regain possession, when the debt was paid, or satisfied out of the profits, and he might redeem at any time before a sale." The use of mortgages is founded on the wants and convenience of mankind, and would naturally follow the progress of order, civilization and com- merce. In the time of Glanville, the mortgage of lands, as security for a loan, was in use, though, during the feudal ages, it was doubtless under the same check as the more absolute alienation of the fee ; and both the alienation and mortgage of land were permitted only with the concurrence *of the lord.b The English books distinguish between *13T. a vadium vivum, and vadium mortuum. The first is when the creditor takes the estate to hold and enjoy it, with- out any limited time for redemption, and until he repays him- self out of the rents and profits. In that case, the land sur- ' Mr. Butler is of opinion that mortgages were introduced less upon the model of the Roman pignus, or hypotheca, than upon the common law doctrine of condi- tions. But, upon a view of the Roman hypotheca, it is impossible to withhold om- belief, that the English law of mortgages, taken in its most comprehensive sense, was essentially boiTOwed from the civil law. Thus, in the Roman law, the mort- gage could beheld as security forfmiher advances; {Gode,8. 27. 1,) and a covenant, that the mortgage should be forfeited absolutely on a default, was void. Code, 8. 35. 3. So, a mortgagor was entitled to due notice and opportunity to redeem, be- fore his right was extinguished ; and the pledge could not be sold without a pro- tracted notice, or judicial decree. Code 8. 28. 4. Ibid. 34. 3, sec. 1. The mort- gagee was allowed to tack subsequent debts, in the case of the mortgagor seeking redemption, though this was not permitted to the extent of impairing the rights of intermediate incumbrancers. Dig. 20. 4. 3. Ibid. 20. 4. 20. Code, 8. 2% 1. See Story's Com. on Eq. Jurispnidence, vol. ii. 276, note. The analogy might be traced in other important pai-ticulai'S. See Pothier's Pandectm Justiniance, lib. 27, and Diet, du Digest, par Thevenot-Dessaules, tit. Hypotheque, passim. Tn Dr. Brown's View of the Civil Law, vol. i. 200 — 210, the general features of similitude between the Roman hypotheca and the English mortgage, are strongly delineated. In Surges' Com. on Colmiial and Foreign Laws, vol. ii. 164 — 246, there is a full and instructive view of the law of mortgages, under the Roman civil law, and the law of those modern nations which have adopted the civil law ; and such a view gives us a profound impression of the wisdom, refinement and justice of the property regulations of the Roman law. '' Glanville, lib. 10, c. 6. Nulli liceatfeudimi vendere vel pignorarc sine permis- sione illius domini. Feud. lib. 2, tit. 55. 140 OF REAL PROPERTT. [Pai-t VL vives the debt ; and, when the debt is discharged, the land, by right of reverter, returns to the original owner. In the other kind of mortgage the fee passed to the creditor, subject to the condition of being defeated, and the title of the debtor to be resumed, on his discharging the debt at the day limited for the payment ; and if he did not, then the land was lost, and became dead to him for ever.^^ This latter kind of mortgage is the one which is generally in use in this country. The Welsh mortgages, which are very frequently mentioned in the English books, though they have now entirely gone out of use, resembled the vivum vadium of Coke, or the m.ortuum va- dium of Glanville ; for though in them the rents and profits were a substitute for the interest, and the land was to be held until the mortgagor refunded the principal ; yet, if the value of the rents and profits was excessive, equity would, not- withstanding any agreement to the contrary, decree an ac- count.'' • Co. Liu. 205, a. 2 Blacks. Com. lal. ^ Fulthorpe v. Foster, 1 Vern. 476. ITie Welsh moi-tgage, under its strict con- tract, without anj mitigation of its seTerity in equity, was analogous to the contract termed antichresis in the Roman law. Dig. 20. 1. 11. 1. It was likewise analo- gous to the mortgage of lands in the age of Glanville ; and he gives to a mort- gage, by which the creditor was to receive the rents and profits during the deten- tion of the debt, without account and without applying them to reduce it, the name of mortuum vadium. It was a hard and unconscientious, but a lawful contract ; and Glanville, with primeval frankness and simplicity, does not scrapie to condemn it as unjust, while he admits it to be lawful ; injusta est et honesta. Olan. lib. 10, c. 6. 8. The French Code Civil, No. 2085, has adopted the Roman antichresis, with this mitigation, that the rents and profits are to be applied to keep down the interest, and the surplus, if any, to extinguish the principal Under the Civil Code of Louisi- ana, taken from the Code Napoleon, there are two kinds of pledges : the pawn, when a movable is given as security, and the antichresis, when the security given consists in immovables or real estate. Under the latter the creditor acquiies the right to take the rents and profits of the land, and to credit, annually, the same to the interest, and the surplus to the principal of the debt, and is bound to keep the estate in repaii-, and to pay the taxes. Upon default upon the part of the debtor, the creditor may prosecute the debtor, and obtain a decree for selling the land pledged. Civil Code, art. 3143 — 3148. Livingston v. Story, 11 Peters, 351. Judge Ruflta, in Poindexter, v. M'Cannon, 1 Bad. & Dev. Eq. Cas. iK C. 377, speaks in indignant terms of the vadium, vivum : " No moi-tgagee or mortgagor ever yet made a contract, upon which the possession was to change immediately, unless it were the veriest gi-inding bargain that could be driven with a distressed man, who fcad no way to turn." Lee. LVIIl] OP REAL PROPERTY. 141 (2.) Of the pledge and mortgage of chattels. There is material distinction also to be noticed between a pledge and a mortgage. A pledge, or pawn, is a deposit of goods redeemable on certain terms, and either with or with- out a fixed period for redemption. Delivery accompanies a pledge, and is essential to its validity. The general property does not pass, as in the case of a mortgage, and the pawnee has only a special property. =i If no time of redemption be fixed by the contract, the pawnor may redeem at any time ; and though a day of payment be fixed, he may redeem after the day. He has his whole lifetime to redeem, provided the pawnee does not call upon him to redeem, as he has a right to do at any time, in his discretion, if no time for redemption be fixed ; and if no such call be made, the representatives of the pawnor may redeem after his death.^* As early as the time of Glanville, these just and plain principles of the law of pledges were essentially recognised ; and it was declared, that if the pledge was not redeemed by the time appointed, the creditor might have recourse to the law, and compel the pawnor to redeem by a given day, or be for ever foreclosed and barred of his right. And if no time of redemption was fixed, the creditor might call upon the debtor at any time, by legal process, to redeem or lose his pledge." The distinction be- tween a pawn and mortgage of chattels is equally well settled in the English and in the American law ; and a mortgage of goods differs from a pledge or pawn in this, that the former is a conveyance of the title upon condition, and it becomes an absolute interest at law, if not redeemed by a given time, and it may be valid in certain cases without actual deliv- • In the Roman law, thepj^»«s, pledge or pawn answered to a pledge of mova- bles in the common law, and possession was requisite. But the hypotheca an- swered to a mortgage of real estate, where the title to the thing might be acquired without possession. Inst. 4. 6. 7. Dig. 13. 7. 35. Vide supra, vol, ii. 577. ^ Bro. Abr. tit. Pledges, pi. 20. tit. Trespass, pi. 271. Burnet, J., in Ryall v, Rowley, 2 Ves. 358, 359. Mores v. Gorham, Owen's Rep. 123. Ratcliff v. Davis, 1 Buht. 29. Oro. Joe. 244. Yelv. 178. S. 0. Com. Dig. tit. Mortgage by Pledge of Goods, b. Demaudray v. Metcalf, Prec. in Ch. 419. Vanderzee v. Willis, 3 Bro. 21. Perry v. Craig, 3 Missouri Rep. 516. » Glanville, lib. 10. o. 6 8, 142 OP HEAL PROl'ERTY. [Part VI. *139 ery.a (1) According to the civil law, *a pledge could not be sold without judicial sanction, unless there was a special agreement to this effect ; and this is, doubtless, the law at this day in most parts of Europe. The French Civil Code has adopted the law of Constantine, by which even an agreement at the time of the original contract of loan, that if the debtor did not pay at the day, the pledge should be abso- lutely forfeited, and become the property of the debtor, was declared to be void.'' While on this subject of pledges, it may be proper further to observe, that the pawnee, by bill in chancery, may bar the debtor's right of redemption, and have the chattel sold. This has frequently been done in the case of stock, bonds, plate or other personal property pledged for the payment of debt." But without any bill to redeem, the creditor, on a pledge or mortgage of chattels, may sell at auction, on giving reasonable opportunity to the debtor to re- deem, and apprising him of the time and place of sale ; and this is the more convenient and usual practice. "^ "While the • The Master of the Rolls, in Jooes v. Smith, 2 Ve&. jr. StS. Powell on Mortgages, i. Barrow v. Paxton, 5 Johns. Rep. 258. Brown v. Bement, 8 ibid. 96. M'Lean V. Wallcer, 10 «5«'d 471. Garlick t. James, 12 jftM 146. Wilde, J., in 2 Pick. 610. Haven t. Law, 2 N. H. Rep. 13. De Lisle v. Priestman, 1 Brown's Perm. Rep. 176. Langdon v. Buel, 9 Wendell, 80. Gifford v. Ford, 6 Vermont Rep. 532. >■ Inst. lib. 2. tit. 8. sec. 1. Vinii Com. h. t. Code, 8. 35. 3. Perezius on ilie Code, vol. ii. 62. tit. 34. sec. 4, 5. p. '63. sec. 8. BelVs Com. on the Law of Scot- land, vol. ii. 22. 5th ed. Merlin's Repertoire, art. Gage. Code Civil, art. 2078. Institutes of the Loms of Holland, by J. Vander Linden, translated by J. Henry, Esq., 180. » Kemp V. Westbrook, 1 Fes. 278. Demaudry v. Metcalf, Pree. in Ch. 419. Vanderzee v. Willis, 3 Bro. 21. ^ Tucker v. Wilson, 1 P. Wms. 261. 1 Bro. P. C. 494. edit. 17'84. Lockwood v. Ewer, 2 Aik. 303. Hart v. Ten Eyck, 2 Johns. Ch. Rep. 100. Johnson v. (1) It seems that the interest of a mortgagor of personal property, if he has Bot a right of possession for a d^mte time, is not the subject of levy and sale on execution. Mattiaon v. Bau- cus.l Comst.B.W5. Even if a mortgagee of chattels acquire a complete title to them on default of payment, the mort- gagor has a right to redeem ; and a sale by the mortgagee, under a power of sale, of an amount equal to the debt, is a full payment, and the residue of the chattels belong to the mortgagor. Charter v. Stevens, 3 Denio's H. 38. 'Where the mortgage contained a power of private sale on default, it was held, that the mortgagee's title became absolute on default witlwut sale. Bur- diet V. McVanner, 2 Denio's B. 170. The mortgagee is entitled to immediate possession, in the absence of an agreement to the .contrary. Ferguson v. Thomas, 20 Maine R. 490. lee. LVIII] OF REAL PROPERTY. 143 debtor's right in the pledge remains unextinguished, his in- terest is liable to be sold on execution ; and the purchaser, like any other purchaser or assignee of the interest of the pawnor, succeeds to all his rights, and becomes entitled to redeem." (1) *The law of pledges shows an accurate and refined *140 sense of justice ; and the wisdom of the provisions by which the interests of the debtor and creditor are equally guarded, is to be traced to the Eoman law, and shines with almost equal advantage, and with the most attractive simpli- city, in the pages of Glanville. It forms a striking contrast to the common law mortgage of the freehold, which was a feoffment upon condition, or the creation of a base or determinable fee, with a right of reverter attached to it. The legal estate vested immediately in the feofiee, and a mere right of re-entry, upon performance of the condition, by payment of the debt strictly at the day, remained with the mortgagor and his heirs, and which right of entry was neither alienable nor devisable. If the mortgagor was in default, the condition was forfeited, and the estate be- came absolute in the mortgagee, without the right or the hope of redemption.'' So rigorous a doctrine, and productive of such forbidding, and, as it eventually proved, of such intole- rable injustice, naturally led to exact and scrapulous regula- tions concerning the time, mode and manner of performing the condition, and they became all important to the mort- gagor. The tender of the debt was required to be at the time and place prescribed ; and if there was no place mentioned in the contract, the mortgagor was bound to seek the mort- gagee, and a tender upon the land was not sufficient." If VamoD, 1 Bailejfs 8. 0. Hep. 521. Perry v. Graig, 3 Missouri Rep. 516. See supra, vol. ii. 582. ■ Kemp V. Weatbi'ook, 1 Ves. 278. New-YorJc Revised Statutes, vol. ii. 366. sec. 20. See supra, vol. iL 5'7'7 — 586, on the doctrine of pledging. !> Litt. sec. 332. • Co. lAtt. 210. b. (1) In Massachusetts, a stringent law has been passed to prevent frauds on the mortgagee of chattels. If the mortgagor sell without the written consent of the mortgagee, or without informing the purchaser, the act is a misdemeanor, punishable by fine and imprisonment Zatos, 1850, ch. 284 144 OF REAL PBOPERTT. [Part Tl, there was no time of payment mentioned, the mortgagor had his whole lifetime to pay, unless he was quickened by a de- mand ; but if he died before the payment, the heir could not tender and save the forfeiture, because the time was past.a If, however, the money was declared to be payable by the mort- gagor, or his heirs, then the tender might be made by them at any time indefinitely after the mortgagor's death, unless the performance was hastened by request ; and if a time for payment was fixed, and the mortgagor died in the mean time, his heir might redeem, though he was not mentioned, *141 for he had an interest in the condition.'' *If the repre- sentatives of the mortgagee were mentioned in the feofiPment, whether they were heirs, executors or assignees, the payment could rightfully be made to either of them.<= (3.) The defeasance. The condition, upon which the land is conveyed, is usually inserted in the deed of conveyance, but the defeasance may be contained in a separate instrument ; and if the deed be absolute in the first instance, and the defeasance be executed subsequently, it will relate back to the date of the principal deed, and connect itself with it, so as to render it a security in the nature of a mortgage. The essence of the defeasance is that it defeats the principal deed, and makes it void if the condition be performed. In order, however, to render the deed a security against subsequent purchasers and mortgagees, it is necessary that the deed and defeasance should be recorded together. An omission to have the defeasance registered, would operate to make the estate, which was conditional be- tween the parties,, absolute against every person but the original parties and their heirs."^ The practice of placing • lAtt. sec. 337. i- The Lord Cromwell's case, 2 Oo. '79. Lilt. sec. S34. Co. lAtt. 208. b. » Goodell's case, 5 Co. 95. Co. Zitt. 210. This case of GoodeU, and Wade's case, 5 Co. 114, ai-e samples of the discussions on -what was, in the time of Lord Coke, a veiy momentous question, whether the absolute forfeiture of the estate had or had not been incuiTed by reason of non-payment at the day. Such a ques- tion, which would now be only material as to the costs, was in one of those cases decided, on error from the K. B., after argument and debate, by all the judges of England. •■ Dey v. Dunham, 2 Johns. Ch. Rep. 182 New-York Revised Statutes, vol. i. Lee LVIIL] OF REAL PROPERTY. 145 the conveyance in fee and *the condition or defeasance *142 whicli is to qualify it, in separate instruments, is liable to accidents and abuse, and may be productive of injury to the mortgagor ; and the court of chancery has frequently, and very properly, discouraged such transactions. * This must more especially be productive of hazard to the rights of the mortgagor, in those states where the powers of a court of equi - ty are very sparingly conferred, and where the character of an instrument of defeasance is to be determined upon the strict technical principles of the common law, and must take eifect concurrently with the deed, as part of the one and the same transaction.!" In equity, the character of the conveyance is determined by the clear and certain intention of the parties ; and any agreement in the deed, or in a separate instrument, showing that the parties intended that the conveyance should operate as a security for the repayment of money, will make it siich, and give to the mortgagor the right of redemption. « A deed, 756. Harrison v. The Trustees of Phillipa' Academy, 12 Mass. Rep. 456. Blaney V. Bearce, 2 Oreenleaf, 132. Wright v. Bates, 13 Vermont Rep. 341. The words of the ITew-York statute are, that if a deed appeal's, by a separate instrument, to have been intended as a mortgage, it shall be deemed a mortgage; and the grantee shall not derive any advantage from the recording of it, unless the de- feasance be also recorded, and at the same time. In Pennsylvania, upon a similar point, it has been decided, that if the separate defeasance be not recorded, the absolute deed is to be considered as an unrecorded moi'tgage, and postponed, ac- cording to the rule in that state in such cases, to a subsequent judgment creditor. Friedley v. Hamilton, 11 Serg. & Rawle, 10. * Lord Talbot, in Cotterell v. Purchase, Cases Temp. Talbot, 89. Baker v. "Wind , 1 Ves. 160. In New-Hampshire this evil is guarded against by statute of July 3d, 1829, which declared that no estate in fee should be defeated or incumbered by any agreement or writing of defeasance, unless the same be inserted in the con- veyance as pai't thereof. But though such an absolute deed, accompanied with a bond to reconvey on payment of a loan, be void as against the creditors of the grantor, yet the agi-eement constitutes a secret trust, which might, perhaps, be en- forced in equity as between the parties. Tifft v. Walker, 10 N. S. Rep. 150. ^ Lund V. Lund, 1 N. H. Rep. 39. Bickford v. Daniels, 2 iUd. 71. Runlet v. Otis, ihid. 167. Erskine v. Townsend, 2 Mass. Rep. 493. Kelleran v. Brown, 4 ibid. 443. Stocking v. Fairchild, 5 Pick. Rep. 181. WewhaU v. Burt, 7 Fink. 157. » Taylor v. Weld, 5 Mass. Rep. 109. Caiy v. Eawson, 8 ibid. 159. Wharf v. Howell, 5 Binney, 499. Menude v. Delaire, 2 Desaus. 564 . Reed v. Landale. Hardin, 6. James v. Morey, 2 Cowen's Rep. 246. Anon. 2 Hayw. 26. Dabney V. Green, 4 Hen. & Munf. 101. Thompson v. Davenport, 1 Wash. Rep. 125, Vol. IY. 10 146 OF REAL PROPERTY. [Pm-t VI. absolute on the face of it, and though registered as a deed, will be valid and eifectual as a mortgage, as between the parties, if it was intended by them to be merely a security for a debt, and this would be the case though the defeasance was by an agreement resting in parol ; for parol evidence is admissible in equity, to show that an absolute deed was intended as *143 a mortgage, and that the defeasance has been *omitted or destroyed by fraud, surprise or mistake. =• (1) When it is once ascertained that the conveyance is to be considered and treated as a mortgage, then all the consequences apper- taining in equity to a mortgage are strictly observed, and the right of redemption is regarded as an inseparable incident.^i An agreement, at the time of the loan, to purchase for a given price, in case of default, is not permitted to interfere with the right of redemption ;<= though an agreement to give the mort- gagee the right of pre-emption, in case of a sale, has been as- Hughe3 T. Edwards, 9 Wheat. Rep. 489. Hicks v. Hicks, 5 Gill Lord Eldon, in Carleton v. Leighton, 3 Merivale, 667. " Doug. Rep. 455. ^ Williams v. Bosanquet, 1 Brod. tt Bing. 238. It is, however, said to be better for the mortgagee to take an assignment of the whole time, than an underlease by (1) Brown v. Dewey, 2 £arb. S. C. Sep. 23. And see Baker v. Thrasher, 4 Demo's B. 498. tec. LVm.] OF EEAL PROPERTY. 149 mortgage is iTSually accompanied with a bond for the debt intended to be secured by it ; but a covenant for the pay- ment of the money, inserted in the mortgage, will be suffi- cient and equally effectual, with us ; though in England, up- on a very narrow construction of the statute of 3 W. & M., the remedy by an action of covenant does not lie against a devisee.^ The covenant must be an express one, for no ac- tion of covenant will lie on the proviso or condition in the mortgage ; and the remedy of the mortgagee for non-pay- ment of the money according to the proviso, woiild seem to be confined to the land, where the mortgage is without any express covenant or separate instrument. (1) The absence of any bond or covenant to pay the money, will not 'make the instrument less effectual as a mortgaged *(5.) Of the power to sell. *146 It is usual to add to the mortgage a power of sale in case of default, which enables the mortgagee to obtain re- lief in a prompt and easy manner, without the expense, trou- ble, formality and delay of foreclosure by a bill in equity. way of mortgage ; for then the right of renewal of the lease -will be in him. 1 Powell on Mart. 191, n. 1. By the New-York Revised Statutes, vol. i. 739, lands held adversely may be mortgaged, though they cannot be the subject of gi-ant. • Wilson V. Kimbley, 1 Easts Rep. 128. ^ Floyer v. Lavington, 1 P. Wms. 268. Briscoe v. King, Gro. Joe. 281. Yeh. 206. Lord Hai'dwicke, in Lawley v. Hooper, 3 Atk. 278. Drummond v. Rich- ards, 2 Munf. 337. Scott v. Fields, 7 Watts, 360. This doctrine has been made a statute provision in the New-York Revised Statutes, vol. i. 738, sec. 139, where it is declared, that no mortgage shall be consfa'ued as implying a covenant for the payment of the money ; and if there be no express covenant for such payment in the moi-tgage, and no bond or other separate instrument to secure payment, the mortgagee's remedy is confined to the land mortgaged. (2) In Ancaster v. Mayes, 1 Bro. G. G. 464, Lord Thurlow, however, intimated very strongly, that though the mortgage was unaccompanied with either bond or covenant, yet that the mortga- gee would have the rights of a contract creditor, for there was still a debt ; but the statute in New-York has disregarded the suggestion, and it is in opposition to the current of authority and the reason of the thing. (3) (1) The same rule applies to chattel mortgages. Culver T. Sissons , 8 Comst. R, 264. (2) Howe V. Fisher, 2 Barb. Oh. B. 559. (3) If a mortgagor convey the mortgaged premises to a purchaser, subject to the mortgage, and the personal liability of the mortgagor be released, the mortgaged property remains ^W7?zaWZ2/ liable. Tripp v. Vincent, 3 BarT). Oh. B. 613. See, also, Ferris v. Crawford, 2 Denio's B. 595. 150 OF REAL PROPERTY. [Pai-t VI. The vexatious delay which accrues upon foreclosure, arises, not only from the difficulty of making all proper persons par- ties, but chiefly from the power that chancery assumes to en- large the time for redemption on a bill to foreclose. There are cases in which the time has been enlarged, and the sale postponed, again and again, from six months to six months, to the great annoyance of the mortgagee.^- These powers are found, in England, to be so convenient, that they are gaining ground very fast upon the mode of foreclosure by process in chancery. Lord Eldon considered it to be an extraordinary power, of a dangerous nature, and one which was unknown in his early practice.'' He was of opinion, that the power ought, for greater safety, to be placed 'in a third person, as trustee for both parties ; and this appears to be still a prac- 1100,*= though it is considered as rather unnecessary and *14'r cumbersome. The mortgagee *himself, under such a power, becomes a trustee for the surplus ; and if due notice of the sale under the power be not given, the sale may be impeached by bill in chancery.'^ The title under the power from the mortgagee himself is suificient in law, and the mortgagor will not be compelled to join in the conveyance.|= A power given to the mortgagee to sell on default, may be given by any person otherwise competent to mortgage, of the age of twenty-one years, though formerly in ISTew-Tork he was required to be of the age of twenty-five ; and the power before any proceedings are had under it, must be duly regis- " Iq Edwards v. CunlifFe, 1 Madd. Cli. Rep. 160, the usual order on foreclosure was, that the mortgagor pay in six months, or stand foreclosed. This was after- wards enlarged to six months more, then to five, then to three, and to three again. *> Roberts v. Bozon, Februaiy, 1825. The power to sell inserted in a mortgage, though unknown to Lord Eldon in his early practice, is of a more ancient date than even the life of Lord Eldon ; for we find an instance of it in Croft v. Powell, Comyn's Rep. 603. It was there insisted to be a valid power ; and the court with- out questioning its operation, decided the cause on the ground that the mortgagee had not conveyed an absolute estate under the power. Lord Eldon's aversion to innovation has gi-own with his growth, and breaks out on eveiy occasion ; but who does not revere even in his errors, the^MSium et tenacem propositi virum ? " Anon., 6 Madd. Oh. Rep. 15. ^ Anon., 6 Madd. Ch. Rep. IB. « Corder v. Morgan, 18 Ves. 394. After a sale under a power, the mortgagor's interest is divested, and he becomes a tenant at sufferance. Kinsley v. Ames, 2 Metcalf's Rep. 29. Lee. LVIII] OF REAL PROPERTT. 151 tered or recorded."- These powers fall under the class of powers appendant or annexed to the estate, and they are powers coupled with an interest, and are irrevocable, and are deemed part of the mortgage security, and vest in any person, who, by assignment or otherwise, becomes entitled to the money secured to be paid.!" But the power is not divisible, and an assignment by the mortgagee of a part of his interest in the mortgage debt and estate will not carry with it a correspond- ing portion of the power." There may be difficult questions arising, as to the competency of persons to mortgage, who have only qualified interests in the estate, or are invested with beneficial or trust powers. But a power to mortgage includes in it a power to execute a mortgage, with a power to sell ; Wilson V. Troup, 7 Johns. Ch. Rep. 25. ' 1 Powell on Mortgages, 61, a. ed. Boston, 1828. f Roberts v. Dixall, 3 S^. Cas. Abr. 668, pi. 19. Kenworthy v. Bate, 6 Ves. 793. s Lingon V. Foley, 2 Ch. Cas. 205. Sheldon v. Dormer, 2 Vern. 310. Trafford V. Ashton, 1 P. Wms. 415. AUan v. Backhouse, 2 Ves. & Beame, 66. 152 OP EEAL PROPERTY. [Part ¥1 tive upon every other mode.'^ This rule more strongly ap- plies to extended than to restricted executions of powers, for (yinne majus in se minus continet, and, generally, the execution of a power will be good, though it falls short of the full ex- tent of the authority.!* In respect, however, to the execution of a power to sell contained in a mortgage, the specific direc- tions usually contained in the mortgage, and particularly when they are the subject of a statute provision, will preclude all departure from those directions,,,and consequently the power in the mortgage to sell would not include a power to lease. It is declared by statute, in New-York, that where any form- alities are directed by the grantor of a power, to be observed in the execution of the power, the observance of them is ne- cessary ; and the intentions of the grantor as to the mode, time and conditions of its execution, unless those conditions are merely nominal, are to be observed."^ (6.) Mortgage of reversiona/ry terms. A very vexatious question has been agitated, and has distressed the English courts, from the early case *149 *of Graves v. Mattison^^ down to the recent decision in Winter v. Sold,^ as to the time at which money provided for children's portions, may be raised by sale, or mortgage of a reversionary term. The history of the ques- tion is worthy of a moment's attention, as a legal curiosity, and a sample of the perplexity and uncertainty which com- plicated settlements " rolled in tangles," and subtle disputa- » Joy v. Gilbert, 2 P. Wins. 13. Mills t. Banks, 3 ibid. 1. I" Isherwood v. Oldlmow, 3 Maule <& Selw. 383. Sugden on Powers, 44*7. 44^. 2d London ed. « New-Yorh Revised Statutes, Mo\. i. *l&&, sec. 119,120, 121. A power of sale contained in a mortgage is held valid in Missouri, and a sale by the mortgagee under the power conveys a valid title to the purchaser. Carson v. Blakey, 6 Mis- souri Rep. 273. Such a power is said to be invalid in Vii-ginia. A power of sale in a mortgage is valid, and the proceedings regulated by statute in New- York. N. T. R. 8. vol. ii. 645, and by statute in 1842, ch. ill, g 8, every sale duly made xmder a power is equivalent to a foreclosure in equity, so far as to be a bar to the mortgagor and his representatives, and all persons claiming under him by any title subsequent to the mortgage, or having any lien by or under any judgment or decree subsequent to the moi'tgage. J Sir T. Jones, 201. « 1 Simon 6s Stuart, SCj. LecLVIII] OP REAL PROPERTY. 153 tion, and eternal doubts, will insensibly incumber and oppress a free and civilized system of jurisprudence. If nothing appears to gainsay it, the period at which they are to be raised is presumed to have been intended to be that which would be most beneficial to those for whom the portions were provided. If the term for providing portions ceases to be contingent, and becomes a vested remainder in trustees, to raise portions out of the rents and profits after the death of the parents, and payable to the daughters coming of age, or marriage, a court of equity has allowed a portion to be raised by sale or mortgage iw the lifetime of the parents, subject, nevertheless, to the life estate. The parents' death is antici- pated, in order to make provision for the children. The result of the very protracted series of these discussions for one hundred and fifty years is, that if an estate be settled to the use of the father for life, remainder to the mother for life, remainder to the sons of the marriage in strict settlement, and, in default of such issue, with remainder to trustees to raise portions, and the mother dies without male issue, and leaves issue female, the term is vested in remainder in trustees, and they may sell or mortgage such a reversionary term, in the lifetime of the surviving parent, for the pixrpose of raising the portions, unless the contingencies on which the portions were to become vested had not happened, or there was a manifest intent that the term should not be sold or mortgaged in the lifetime of the parents, nor until it had become vested in the trustees in *possession.=' The inclination *150 of the court of chancery has been against raising por- tions out of reversionary terms, by sale or mortgage, in the lifetime of the parent, as leading to a sacrifice of the interest of the person in reversion or remainder ; and modern settle- ments usually contain a prohibitory clause against it.*" » Sir Joseph Jekyll, ia Evelyn v. Evelyn, 2 P. Wms. 661. 14 Viner, 240. pi. 11. ^ See Coote's Treatise on the Law of Mortgages, HI- — ^163, and 1 Powell on Mortgages, "74 — 100, Boston edit. 1828, where numerous cases on this question are collected ; and the review of them becomes a, matter of astonishment, when we consider the ceaseless litigation which has vexed the courts on such a point. Most of the gi-eat pames which have adorned the English chancery, from the reign of Charles II., when the first adjudication was made, down to the present day, have 154: OF REAL PROPERTY. [Part VI. (7.) Of deposit of title deeds. A mortgage may arise in equity, out of the transactions of the parties, without any deed or express contract for that spe- cial purpose. It is now well settled in the English law, that if the debtor deposits his title deeds with a creditor, it is evi- dence of a valid agreement for a mortgage, and amounts to an equitable mortgage, which is not within the operation of the statute of frauds. The earliest leading decision in support of the doctrine of equitable mortgages, by the deposit of the muniments of title, was that of Russell v. Russell, in ITSS.'' It was followed by the decision in Birch v. Ellames^ and the principle declared is, that the deposit is evidence of an agree- ment to make a mortgage, which will be carried into *151 execution by a court *of equity, against the mortgagor, and all who claim under him, with notice, either actual or constructive, of such deposits having been made. Lord Eldon, and Sir William Grant, considered the doctrine as per- nicious, and they generally expressed a strong disapprobation of it, as breaking in upon the statute of frauds, and calling upon the court to decide, upon parol evidence, what is the meaning of the deposit.'' But the decision in Russell v. Rus- sell has withstood all the subsequent assaults upon it, and the principle is now deemed established in the English law, that a mere deposit of title deeds upon an advance of money, without a word passing, gives an equitable lien.i^ The decis- expressed an opinion, either for or against the expediency and solidity of the rule. Such a contingent limitation to trustees, as the one in the instance cited, would be too remote, and void, under 'Csi^ New-Yorh Revised Statutes, vol.i.'723, sec. li — IT; but the great point touching the power to sell or mortgage the remainder to raise portions, may arise in New- York, as well as elsewhere. > 1 Sro. 269. •■ 2 Anst. 42*7. ° Ex pai-te Haigh, 11 Ves. 403. Noms v. Wilkinson, 12 ibid. 192. Ex paiie Hooper, 19 ibid. 411. ^ Ex parte Whitbread, 19 Ves. 209. Ex parte Langton, 1*7 Vesey, 230. Lord EUenborough, in Doe t. Hawke, 2 Easfs Rep. 486. Ex parte Kensington, 2 Vesey & Beame, 79. Factor v. Philpot, 12 Price, 6'il. Rockwell t. Hobby, 2 Sandford's Oh. Rep. 9. In the case of an equitable mortgage given by the deposit of deeds, the mortgagee is entitled to enforce it by bill and a decree for a sale of the estate ; and the mortgagor is allowed six months to redeem the deposited deeds, and pay the debt, whether the decree be for a sale or for a strict foreclosure. Pain v. Smith, 2 Mylne dh Keene,4l1. Parker v. Housefield, ibid. 419. Lee, LVIIL] OF REAL PROPERTY. 155 ions on this subject have, however, shown a determined dis- position to keep within the letter of the precedents, and not to give the doctrine further extension ; and it is very clear, that a mere parol agreement to make a mortgage, or to de- posit a deed for that purpose, will not give any title in equity. There must be an actual and hona fide deposit of all the title deeds with the mortgagee himself, in order to create the lien.^ Nor will such an equitable mortgage be of any avail against a subsequent mortgage, duly registered, without notice of the deposit ; and if there be no registry, it is the settled English doctrine, that the mere circumstances of leaving the title deeds with the mortgagor, is not, of itself, in a case free from fraud, sufficient to postpone the first mortgagee to a second, who takes the title deeds with his mortgage, and without notice of the first mortgage.^ (8.) Equitable lien of vendor. The vendor of real estate has a lien, under certain circum- stances, on the estate sold, for the purchase money. The vendee becomes a trustee to the vendor for the pur- chase *money, or so much as remains unpaid ; and the *152 principle is founded in natural equity, and seems to be inherent in the English equity jurisprudence. (1) The court of chancery wUl appoint a receiver in behalf of the vendor, if the vendee has obtained the property and refuses to pay.<= This equitable mortgage will bind the vendee and his heirs, and volunteers, and all purchasers, from the vendee, with notice of the existence of the vendor's equity. Prima facie the lien exists without any special agreement for that purpose, and it remains with the purchaser to show, that fi-om the cir- cumstances of the case, it results that the lien was not intended to be reserved, as by the taking other real or personal security. * Ex parte Coombe, 4 MaM. Rep. 133. Lucas v. Dorrien, *\ Taunt. Rep. 2*79. Ex pai-te Coming, 9 Vesei/,115. Ex parte Bulteel, 2 Coa:, 243. Norris v. WilMu- Bon, 12 Vesey, 192. Expaiie Pearae, 1 Buck. B. G. 525. ■• Beny v. Mutual Ins. Company, 2 Johns. Ch. Rep. 603. " Payne v. Atterbury, Harrington's Mich. Ch. Rep. 414. (1) A vendor who has conveyed the legal estate to a vendee, has no lien on the title deeds for the unpaid purchase money. Goode v. Burton, 1 Wela, S. & Qor. li. 189. 156 OF REAL PROPERTY. [Paii YI. or where the object of the sale was not money, but some col- lateral benefit. =• In MacJcreth v. Symmons^ Lord Eldon dis- cusses the subject at large, and reviews all the authorities ; and he considers this doctrine of equitable liens to have been borrowed from the text of the civil law ;<= and it has been extensively recognised and adopted in the United States. 2 Ves. & Beame, 306. = Oilman v. Brown, 1 Masoris Rep. 191. 4 Wlieat. Rep. 255. S. C. Williams V. Roberts, 5 Hammonds Ohio Rep. 35. Eskridge v. M'Clure, 2 Yerger's Rep. 84. Foster v. The Trustees of the Athenaeum, 3 Alabama, R. N. 8. 302. In the Ro- man law, from whence the doctiine of the vendor's lien is supposed to be derived, the absolute property passed to the buyer, if the seller took another pledge, or other personal security ; venditje vero res et tradifee non aliter emptori acquiruntur, quam si is v^nditori pretium solverit, vel alio modo ei satisfecerit, velnti expromis- sore aut pignore dato. Inst. 2. 1. 41. Hoc nomine fide jussor, hie intelligi videtur. Vinnius in Inst. h. t. ' Bayley v. Greenleaf, 7 Wheat. Rep. 46 ; and, to the same point, see Roberts 158 OF KEAL PROPERTY. [Part VL against a judgment creditor of the vendor, intervening be- tween the time of the agreement to convey and receipt of the consideration money, and the actual conveyance. Under these circumstances, the vendor is justly considered in the light of a trustee for the purchaser. But in that case, an in- tervening mortgagee or purchaser, for a valuable considera- tion, and without notice, would be preferred.'' V. Salisbury, 3 Oill & Johns. 425. Gann v. Chester, 5 Terge/s Tenn. Rep. 203. The opinion in "Wheaton, is decidedly condemned in Twelves v. Williams, 3 Whar- ton, 493. So, also, in Shirley v. Sugar Refineiy, 2 Edw. V. Ch. Rep. 611, the vice- chancellor in New- York, dissents from the opinion of the Supreme Court of the United States, unless the conveyance or mortgage to the creditor be founded upon some new consideration, and without notice of the lien, and he refers to the cases of Gfrant v. Mills, 2 Ves. & Sea. 306, and of ex parte Peake, 1 Modi. Ch. Rep. 191, Phil. ed. But those cases only go to establish the position, that the assignees of bankrupts and insolvents, take the estate subject to the existing equities against the vendee, and that they are in no better condition than the banki'upt, for they come in by operation of law, and without paying value. That point was, however, not decided by the supreme com't. The court took a distinction between an assignment by a bankrupt, under the direction of a banki-upt or insolvent act, and an absolute conveyance by the vendee to bona fide creditors as purchasers. As the registry of deeds is the poUcy and practice in this country, I think the decision in Wheaton is correct, and that this latent equitable lien ought not to prevail over hona fide pur- chasers from the vendee, and for valuable consideration, and that they are not bound to take any notice of this dormant lien, resting for its validity on the state of the accounts between the vendee and his vendor. • Finch' V. Earl of Winchelsea, 1 P. M'ms. 277. Hoagland v. Latourette, 1 Green's N. J. Ch. Rep. 254. Money v. Dorsey, 7 Smede 1 Powell, 159,Dote 160—162. See, also, Thunder v. Belcher, 3 .EWs^'s iJep. 449. " In Chinneiy v. Blackman, 3 Doug. Rep. 391, Lord Mansfield said, as early as 1784, that until the mortgagee takes possession, the mortgagor is owner to all the world, and is entitled to all the profits made. A gi-aut by the mortgagor of his equity of redemption with covenants of warranty, passes the covenants real an- nexed to the conveyance, to the grantee. White v. Whitney, 3 Metcalf's Rep. 81. In Evans v. Elliot, 9 Adolph. dc Ellis, 342, the court of K. B. was disposed to qua- lify the universality of the rule, that the mortgagee might always treat both the mortgagor and his lessee as trespassers. He may by his own conduct preclude himself from so doing. (1) But a stipulation in a mortgage oi personal property, that the mortgagor shall remain in possession until breach of condition, is not assignable. Ballune v. "Wallace, 2 Eich. E, 80. YoL. lY. 11 163 OF REAL PROPERTY. [Pai-t VL mortgagee is abolished, a court of law would seem to have no jurisdiction over the mortgagee's interest. He is not en- titled to the possession, nor to the rents and profits ; and he is turned over entirely to the courts of equity. =^ (2.) His rights in equity. *158 *In ascending to the view of a mortgage in the con- templation of a court of equity, we leave all these tech- nical scruples and difficulties behind. us. ISTot only the ori- ginal severity of the common law, treating the mortgagor's interest as resting upon the exact performance of a condition, and holding the forfeiture or the breach of a condition to be absolute, by non-payment or tender at the day, is entirely re- laxed ; but the narrow and precarious character of the mort- gagor at law is changed, under the more enlarged and liberal jurisdiction of the courts of equity. Their influence has reached the courts of law, and the case of mortgages is one of the most splendid instances in the history of our jurisjiru- dence, of the triumph of equitable principles over technical rules, and of the homage which those principles have received by their adoption in the courts of law. Without any prophetic anticipation, we may well say, that "returning justice lifts aloft her scale." The doctrine, now regarded as a settled principle, was laid down in the reign of Charles I., very cau- tiously, and with a scrupulousness of opinion. "The court conceived, as it was observed in chancery, that the said lease being but a security, and the money paid, though not at the day, the lease ought to be void in equity."'' The equity of redemption grew in time to be such a favourite with the • Jackson, J., in 15 Mass. R. 270. Parker, Ch. J., 1 Pick. Rep. 90. Duncan, J., 9 Serg. dc Rawle, 311. New-Toric Revised Statutes, vol. ii. 312. '' Emanuel College t. Evans, 1 Rep. in Ch. 10. In the case of Rosecerrick v- Barton, 1 Cases in Ch. 211, Sir Matthew Hale, when Chief Justice, showed that he had not risen above the mists and prejudices of his age on this subject, for he com- plained very severely of the growth of equities of redemption, as haviug been too much favoured, and been carried too far. In 14 Rich. II., the parliament, he said, would not admit of this equity of redemption. By the gi-owth of equity, the heart of the common law was eaten out. He complained that an equity of re- demption was transferable from one to another, though at common law a feoffment or fine would have extinguished it; and he declared he would not favour the equity of redemption beyond existing precedents. liec. LVIIL] OF REAL PROPERTY. 363 courts of equity, and was so highly cherished and pro- tected, that it became a maxim, *that " once a mort- *159 gage always a mortgage." The object of the rule is to prevent oppression ; and contracts made with the mortgagor, to lessen, embarrass or restrain the right of redemption, are regarded with jealousy, and generally set aside as dangerous agreements, founded in unconscientious advantages assumed over the necessities of the mortgagor. The doctrine was es- tablished by Lord ISTottingham, as early as 1681, in Newcornh V. Bonham y ^ for, in that case, the mortgagor had covenanted, that if the lands were not redeemed in his lifetime, they should never be redeemed ; but the chancellor held, that the estate was redeemable by the heir, notwithstanding the agree- ment ; and though the decree in that case was subsequently reversed, it was upon special circumstances, not affecting the principle. The same general doctrine was pursued in How- ard V. Harris,^ and it pervades all the subsequent and mod- ern cases on the subject, both in England and in this country." The equity doctrine is, that the mortgage is a mere security for the debt, and only a chattel interest, and that until a de- cree of foreclosure, the mortgagor continues the real owner of the fee. The equity of redemption is considered to be the real and beneficial estate, tantamount to *the fee *160 at law ; and it is accordingly held to be descendible by inheritance, devisable by will, and alienable by deed, pre- cisely as if it were an absolute estate of inheritance at law."* » 1 Vem. 1. 282, and 2 Vent. S64. *> 1 Vern. 190. " In Seaton v. Slade, 1 Vesey, 273, Lord Eldon observed, that the doctiine of the coui't gave countenance to the strong declaration of Lord Thurlovr, that no agree- ment of the parties would alter the right of redemption. And as to the recogni- tion of the doctrine with us, see Holdridge v. Gillespie, 2 Johns. Oh. JRep. 30. Clark V. Hemy, 2 Cowen's Rep. 324. Wilcox v. Moriis, 1 Murphy, HI. Perkins V. Drye, 3 Sana's Ken. Rep. 176 — 178. In ITewcombe v. Bonham, 1 Vern. 7, Loj-d Nottingham held, that the mortgagee might compel the mortgagor, at any- time, to redeem, or be foreclosed, even though there was a special agreement in the mortgage that the mortgagor was to have his whole lifetime to redeem ; but his suc- cessor, on a re-hearing, (1 Vern. 232,) reversed his decision, and held, that the party had his whole lifetime, according to his contract ; and this last decree was affirmed in parliament. ■i Casborne v. Scarf, 1 AiJc. 603. 2 Jac. & Walh. 190, n. S.C. 164 OF REAL PEOPEBTT. [Part VI. The courts of law have, also, by a gradual and almost insen- sible progress, adopted these equitable views of the subject, which are founded in justice, and accord with the true intent and inherent nature of every such transaction. Except as against the mortgagee, the mortgagor, while in possession, and before foreclosure, is regarded as the real owner, and a free- holder, with the civil and political rights belonging to that character ; whereas the mortgagee, notwithstanding the form of the conveyance, has only a chattel interest, and his mort- gage is a mere security for a debt. (1) This is the conclusion to be drawn from a view of the English and American author- ities. ^^ The equity of redemption is not liable, under the English law, to sale on execution as real estate.'' It is held to be equitable assets, and is marshalled according to equity principles." But, in this country, the rule has very exten- sively prevailed, that an equity of redemption was vendible as real property on an execution at law ; and it is also *161 *chargeable with the dower of the wife of the mort- gagor."^ On the other hand, the estate of the mort- • The King v. St. Michaels, Doug. Hep. 630. The King v. Edingfxin, 1 MJasCs Rep. 288. Jackson v. Willai'd, 4 Johns. Sep. 41. Eunyan v. Mersereau, 11 ibid. 534. Huntington v. Smith, 4 Conn. Rep. 235. Willington t. Gale, 1 Mass. Rep. 138. M'Call v. Lenox, 9 Serg. & Rawle, 302. Ford v. Philpot, 5 Harr. & Johns. 312. Wilson T. Troup, 2 Cowen's Rep. 195. Eaton v. Whiting, 3 Pick. Rep. 484. Blaney V. Bearce, 2 Greenleaf, 132. The gi-owth and consolidation of the American doc- trine, that until foreclosure the mortgagor remains seised of the freehold, and that the mortgagee has, in effect, but a chattel interest, and that it goes to the executor, as personal assets, and though, technically speaking, the fee descends to the heir, yet he is but a trustee for the personal representatives, and need not be party to a bill by the executor for a foreclosm'e, was fully shown and ably illustrated by the Chief Justice of Connecticut, in Clark v. Beach, 6 Gonn. Rep. 142, and by the Chief Justice of Maine, in Wilkins v. French, 20 Maine Rep. Ill ; and by the chancellor of New-Jersey, in Kinne v. Smith, 2 Green, 14 ; and these general piinciples were not questioned by the com-ts. •• Lester v. Dolland, 1 Ves. jtm. 431. Scott v.Scholey, 8 East's Rep. 467. Met- calf T. Scholey, 5 Bos. & Pull. 461. = Pluntet T. Penson, 2 Atk. 290. 4 Ves.jvm. 436. S. C. I* "Waters v. Stewart, 1 Gained Gases in Error, 4*7. Hobart v. Fi'isbie, 5 Conn. Rep. 592. IngersoU v. Sawyer, 2 Pick. Rep. 276. Ford v. Philpot, 5 Uarr. dt (1) In New- York a mortgage is only a clwse in action ; and the only right the mortgagee has in the land itself is to take possession thereof, with the assent of the mortgagor, after the debt has become due and payable, and to retain such possession until the debt is paid. Waring t , Smith, 2 Sari. 0!i. B. 119. 185. LecLVni] OF REAL PROPERTY. 165 gagee, before foreclosure, or at least before entry, is not the subject of execution, not even though there has been a default, and the condition of the mortgage forfeited.^ The English policy led to an early adoption of these just and reasonable views of the character of a mortgagor ; and it was settled in the reign of Charles II., that the executor, and not the heir of the mortgagee in fee, was entitled to the mortgage money ; for, as Lord Nottingham observed, the money first came from the personal estate, and the mortgagee's right to the land was only as a security for the money.'' By the statute of Y and 8 William III., mortgagors in possession were allowed to vote for members of parliament. The mortgagor may exercise the rights of an owner while in possession, provided he does nothing to impair the secu- rity ; but a court of chancery will always, on the application of the mortgagee, and with that object in view, stay the com- mission of waste by the process of injunction.<^ An action at Johns. 312. Carpenter v. First Parish in Sutton, "7 Pick. Rep. 49. Collins The interference with the discretion of the mortgagor is not carried further, and, in ordinary cases, he is not bound to repair, and keep the estate in good order •,<= and there is no instance in which a court of equity has under- taken to correct permissive waste, or to compel the mortgagor to repair ; though cases of negligence rapidly impairing the security, without any overt act whatever, would address them- selves with peculiar force to the courts of equity in New-Tork, since the mortgagee is now deprived by statute, of the power of taking the estate into his own management. As the law stands, it would seem, that the mortgagee is left to guard his pledge against such contingencies, by his own provident fore- sight and vigilance in making his contract, or to seek for aid in the enlarged discretion of a court of equity, which would interfere for his indemnity in special cases, in which justice manifestly required it. (3.) Sis equity of redemption. The right of redemption exists, not only in the mortgagor himself, but in his heirs, and personal representatives, and as- signee, and in every other person who has an interest in, or a legal or equitable lien upon the lands ; and therefore,, a tenant the moi-tgagee out of possession is not entitled as of course to an injunction to re- strain the mortgagor from cutting timber. There must be a special case, as that the security may become insufficient, before the court will interfere. King v. Smith, 2 Hare Ch. Rep. 243. » Peterson v. Clark, 15 Johns. Rep. 205. ■> Smith V. Goodwin, 2 Greenleaf, 173. Stowell v. Pike, ibid. SST. « Campbell v. Macomb, 4 Johns. Ch. Rep. 534. (1) In South worth v. Van Pelt, 3 Barl). S. C.R.SO,a. mortgagee, after forfeiture, and a decree- obtained for the sale of the mortgaged premises, was allowed to maintain an action (on the case in the nature of waste,) for waste committed by the mortgagor. The mortgagor was insolvent, and the premises were esteemed an inadequate security. After a thorough examination^ Mr. J . Mason was unable to find sa^ precedent for the aciloa. Lee. LVIII.] OF REAL PROPERTY. 167 in dower, or jointress, a tenant by the curtesy, a remainder- man and reversioner, a judgment creditor, and every otlier incumbrancer, (1) unless he be an incumbrancer pendente lite^ may redeem ; and the doubts as to the extent of the right to redeem beyond the mortgagor and his representatives, arise only in courts of limited, and not of general equi- ty jurisdiction.^ Lord Hardwicke felt himself *bound *163 to allow a prowling assignee, who had bought in the equity of redemption for an inconsiderable sum, to redeem.'' But the redemption must be of the entire mortgage, and not by parcels. (2) He who redeems must pay the whole debt, and he will then stand in the place of the party whose inter- est in the estate he discharges. <= If the judgment creditor seeks to redeem against the mortgagee of the leasehold es- tate, he must, as it is but a chattel interest, have iirst sued out a fieri faoias, in order to create a lien on the estate. "^ The power of enforcing the right of redemption is an equitable power residing in the courts of chancery ; and if there be no formal, distinct equity tribunal, the power is exercised upon equitable principles in courts of law clothed with a greater or less proportion of equity jurisdiction. >= In carrying the " Loi-d Ch. B. Comyns, in Jones v. Meredith, Comyns' Rep. 670. Bateman v. Bateman, Free, in Ch. 191. Sharpe v. Scarborough, 4 Ves. 538. 1 Powell on Mortgages, 312. 369, in notis. Grant r. Duane, 9 Johns. Hep. 591. Hill v. HoUiday, 2 Zilt. 332. Smith v. Manning, 9 Mass. Hep. 422. Bird v. Gardner, 10 ibid. 364. '' Anon. 3 Atk. 313. A mortgagor may redeem, though the consideration of the note secm'ed by the mortgage was illegal. Cowles v. Raguet, 14 Ohio Rep. 33. = The Master of the Rolls, in PaUs: v. Clinton, 12 Ves. 59. Calkins v. Munsell, 2 Roots Rep. 333. ■> Shii-ley v. Watts, 3 Atk. 200. Brinckerhoff v. Brown, 4 Johns. Ch. Rep. eTl. ' In Wew-Jersey, Mississippi and North Carolina, the jurisdiction and pro- ceedings in chancery are ably digested by statute law. Elmer's Digest. Revised Code of Mississippi, 1824. Revised Statutes of North Carolina, ISS"?, vol. i. ; (1) After tendering to a senior mortgagor tlie amount due, and demanding an assignment of tlie 5zmor nwrtgage, a junior mortgagee may, byabill in equity, compel sucli assignment. Par- dee v. Van Anlcen, 3 Barb. 8. G. Ji. 034 An assignment of tlie senior mortgage, in some cases, may be more advantageous to tlie junior mortgagee than a satiRfaciion. In New- York a cre- ditor by mortgage has a right to redeem the mortgaged premises sold on execution, If his mort- gage was a lien on tlie premises. Laws, 1836, ch. 525. p. 793. People v. Beebe, 1 Bavh. S. C. Bep. 879. (2) Smith V. Kelley, 27 llaine B. 227. 168 OF REAL PROPERTY. [Pai-tVI. *164: right of redemption into effect, a *court of equity is sometimes obliged to marshal the burthen according and it 13 worthy of remark, that in New-Jersey, in particular, there is less innova- tion upon the common and statute law of the land, as they existed at the revolu- tion, than in any other state. This contributes to render their system of jurispru- dence veiy intelligible, familiar and attractive to persons educated in the school of the common law. The statute law of Mississippi, under the revised code of 1824, is of the same cbai'acter, and resembles the statute law of New-York, prior to the memorable revision of 1830. In Delaware, South Carolina, Alabama and Missis- sippi, equity powers reside in, and are exercised by, distinct and independent tri- bunals, upon the English model. This was also the case in New- York, until 1823 ; but the exclusive juiisdiction in equity was withdrawn from the chancellor, and equity powers were, at that period, by the amended constitution of New-York, partially vested in the circuit judges, as vice-chancellors, and in a special vice- chancellor, and in an assistant vice-chancellor, in the city of New-York, and the circuit judges, except in the city of New- York, exercised, in distinct capacities, a mixed jurisdiction of law and equity. The same mixed jurisdiction is conferred on the courts in Maryland and Virginia, and on the circuit courts in Tennessee and Missouri, and was on the cii'cuit courts in Alabama, until the statute of Januaiy, 1839, established separate courts of chancery, and detached them from an alliance with the courts of law. In Florida, power is given by their constitution to the legislature to detach the courts of chancery from the circuit courts, and to establish separate courts, with original equity jurisdiction. In Virginia, the high court of chancery, with a single judge, was organized, and its powers and proceedings de- clared in 1792 ; but it being found productive of great delay, three superior courts of chancery, one for each great district, were established in 1802. Revised Code of Virginia, vol. i. 88. 600. It since appears that the county and corporation courts, and the circuit superior courts, have chancery as well as law powers, and when sitting in chanceiy, they administer equity according to the course of procedure in the English chancery. 1 Robinson's Practice, 86. In the states of Vermont, Maine, New-Hampshire, Massachusetts, Rhode Island, Connecticut, Ohio, Indiana, Illinois, Missouri, Kentucky, North Carolina, Georgia and Arkansas, the jmisdiotion of law and equity is vested in the same tribunal ; but the chancery proceedings are distinct, and earned on by bill and answer, in the circuit court, with appeal to the supreme court. In Michigan, under the constitution of 1835, a separate court of equity was established with plenary powers and jurisdiction ; and the chancellor holds his court of chancery in the general circuits in which the state is divided, subject to equity appellate jurisdiction in the supreme court. The administration of justices in equity,in that state, under Chancellor Farnsworth and Chancellor Manning, as reported in Harrington's & Walker's Report, appears to be enlightened and cor- rect, and does distinguished honour to their state. In Vermont, each judge of the supreme court is a chancellor, with the usual chanceiy powers, within his judicial district ; and in Georgia, and perhaps in some other states, cases in equity are generally decided by special juries. {Dudley's Geo. Rep. 8. R. M. Charlton's Rep. 134, 135. 138,) though the association of a special jury with the judge in equity, is held to be a matter of practice, and not of legal obligation. Ibid. 184. In some of those states, as in Maine, Massachusetts, New-Hampshue and Rhode Island, chancery powers are confined to a few specified objects, or assumed in Lee. LVIIL] OF REAL PROPERTY. 169 to the equity of the different claimants, in order to preserve a just proportion among those who are bound in good con- hard cases from necessity. In Maine, by their revised statutes, the supreme court may, by a bill in equity, compel the specific performance of a contract in writing, ■when the pai'ty has not a plain and adequate remedy at law. But, with few ex- ceptions, the conti'act must have 3'eference to the realty, and not the personalty. Bubier v. Bubier, 24 Maine Rep. 42. In other cases, as in Georgia, for instance,' equity powers are granted in all cases where a common law remedy is not ade- quate ; and in Indiana, chanceiy powers are given not only to the supreme court and to the circuit courts, but certain chancery powers ai'e also conferred on the judges, individually, in vacation time. In Louisiana, the distinction between law and equity, according to the theory of the English law, eeems to be entu'ely un- known. There is no distinction, in that state, in the proceedings, or between the law and equity powers and jurisdiction of the court. 16 Louis. Rep. 196. 4 Roh. Louis. Rep. 82. But in the federal courts in Louisiana, and in some of the other states already mentioned, the jurisdiction of law and equity are distinctly main- tained. In the province of Upper Canada, they have a vice-chancellor exercising the equity powers of the court of chanceiy in England ; and in the provinces of Nova Scotia and New-Brunswick, the Masters of the Rolls are, by provincial statute, constituted judges of the court of chancery, and the responsible advisers of the chancellor, (and the lieutenant-governor is ex officio chancellor^ except on ap- peals from then- own decisions. In the Revised Statute Code of Connecticut, pub- lished in 1'784, p. 48, and, again, in 1821, p. 195, the courts having jurisdiction of suits in equity, ai-e directed to proceed according to the rules in equity, and to take cognizance of such matters only wherein adequate remedy cannot be had in the ordinary course of law ; but, under this general grant, the equity system in Con" necticut appears, in practice, to be broad and liberal. See Swift's Digest ami Connecticut Reports, passim. In Ohio, the chanceiy powers confeiTed upon the supreme court, and the courts of common pleas sitting as courts of chancery, by the statutes of 1831, entitled "An act directing the mode of proceeding in chancery," are large and liberal, and would appear to constitute a very adequate jurisdiction. The digest in that statute of chancery powers and proceedings, is executed with much skill and abiUty. The same thing may be said of the chancery jurisdiction under the territorial act of Michigan, of April 23, 1833. In Massachusetts, the equity powers of the supreme judicial court are quite limited. The power to enforce redemption is confined to a statute provision, and the mortgagor must redeem in three years after entiy by the mortgagee. See Erskine v. Townsend, 2 Mass. Rep. 493. Kelleran V. Brown, 4 ibid. 443. Skinner v. Brewer, 1 Pick. Rep. 468. Jackson on Real Actions, 49. But in relation to trusts created by will, the courts of probate and the supreme judicial court have concurrent and general chanceiy powers, subject to appeal from the first to the last of those tribunals. So the supreme judicial court has ample equity powers to enforce by bill, and a course of proceeding in chanceiy, the specific performance of contracts concerning land, as against heirs, Ac. Mass. Revised Statutes, 1835. Under the Plymouth Colony Laws, the court of assistants had not only supreme criminal and civil jurisdiction at law, but smc/j matters of equity as could not be relieved at law, such as the forfeiture of an ob- ligation, breach of covenants, and other like matters of apparent equity. Brigham's edit. 1836, p. 260. In Pennsylvania, equity powers have been gradually assumed 170 OF REAL PROPERTY. [Part VI. science to a just contribution, and in order to prevent one creditor from exercising his election between different funds by their supreme court, from the necessity of the case, and for tlie advancement of justice, with the aid of a few legislative provisions. The provincial legislature of Pennsylvania, from its earliest existence, made repeated efforts to unite chan- cery powers with those of the courts of law, by the acts of lYOl, 1710, and 1715, but those acts were successively disallowed by the royal council in England. The constitution of 1776, and the- acts under it, gave to the courts of law a few specific equity powers, and the constitution of 1790 continued the same grant, and under the latter instrument various equity powers have been gradually granted, assumed and amalgamated with the common law powers of the courts. Those principles of equity have been digested from the acts of the legislature, and the decisions of the supreme court, with diligence, ability and judgment, in a clear and neat little code of equity law, under the unpretending title of " ^» Essay on Mquity in Pennsylvania, by Anthony Zausset, Jim., Student at Law, 1826." In January, 1835, the commissioners appointed to revise the civil code of Penn- sylvania, made an elaborate report to the legislature, upon the administration of justice, in which they propose to invest the supreme com-t and the several courts of common pleas with specific but more enlarged equity powers than had heretofore been exercised. They recommended, and in reference to the established jurispru- dence, usages and practice in Pennsylvania, perhaps wisely recommended, not the establishment of a separate court of chancery, nor the union of a court of chancery with the existing courts of law, but the incorporation or amalgamation, as heretofore, of the peculiar powers and practice of chancery with those of the common law courts in the requisite cases, and with the adaptation of the old common law foi-ms of proceeding and existing remedies to new equity cases and purposes. Under this recommendation the legislature of Pennsylvania, in June, 1836, gave enlarged equity powers to the supreme court and the several courts of common pleas, and to be exercised according to the practice in equity, prescribed or adopted by the Supreme Court of the United States. Again, in June, 1840, the equity power of the courts was still further extended. But the equity jm-isdiction of the courts Is still only a limited and selected portion of equity power. There is not an univer- sal or even a general equity juiisdictioa conferred on the Pennsylvania courts. The organization of their com-ts is iU-suited for such a pui-pose. Gilder v. Merwin, 6 Wh^lrton, 540, 541. In New-York, in 1846, the state convention which revised the constitution, effected an entu'e revolution in the judicial system of the state. They abolished the existing courts of chanceiy, the supreme comt, the ofiice of vice- chancellor, assistant vice-chancellor, judge of the county courts, supreme court com- missioner, master in chancery, and examiner in chancery, (Constitution of 1846, art. 13, sec. 8,) and as a substitute they ordained that there should be a supreme court having general jm-isdiction in law and equity, and with power in the legislature to confer equity jurisdiction in special cases upon the county judges. {Id. sec. 14.) This was leaving the organization, powers, proceedings and practice of the supreme com't in painful difiltulty and uncertainty, while they annihilated, at the same time, the well defined and well settled jurisdiction and practice of the courts of law and equity which had previously existed. This would seem to be, on the first impres- sion, a rash and unwise innovation, and especially when we consider that a separate equity jm-isdiction had been exercised upon the English model, and with the Eng- Lee. LVIIL] OF REAL PROPERTY. ITl unreasonably, and to the prejudice of another. The principle of equity in these cases is clear and luminous, and it is deeply ingrafted in general jurisprudence."^ III. Rights of the mortgagee. (1.) Ills right to the possession. "We have seen, that the mortgagee may, at any time, enter and take possession of the land, by ejectment or writ of entry, though he cannot make the mortgagor account for the past, or by-gone rents, for he possessed in his own right, and not in the character of receiver.'' He may, without suit, ob- tain possession of the rents and profits from a lessee existing prior to the mortgage, on giving him notice of his mortgage, and requiring the rent to be *paid him, *165 and in default he may distrain."^ The case of Moss v. Oallimore applies the right and the remedy of the mortgagee, to the rent in arrear at the time of the notice, as well as to the rent accruing subsequently ; and that case was cited, and the principle of it not questioned, in Alchorne v. Gomme ;^ though it would seem to be now understood in chancery, that the mortgagor is not accountable as receiver for the rents, and that the rent due prior to the notice belongs to the mort- gagor.o But the case of Moss v. Gallimore has been consid- ered as good law, to the whole extent of it, by the courts of lish spirit and instruction, from the first settlement of tlie country, and had fonned ow habits and shaped our learning, and proved to be eminently propitious to the gi-owth and character of the New- York jurisprudence. * Sii- William Harbert's case, 8 Go. 14. 1 Powell on Mortgages, 342, b. Ste- vens V. Cooper, 1 Johns. Cli. Rep. 425. Scribner v. Hickok, 4 ibid. 630. ■> Lord Hardwicke, in Mead v. Lord Orrery, 3 Ath. 244, and Higgina v. York Buildings Company, 2 Atk. 107. Parker, Ch. J., in Wilder v. Houghton, 1 Pick. Rep. 90. Howell v. Ripley, 10 Paige, 43. « Moss V. Gallimore, Song. Rep. 279. BuUer, J., in Birch v. Wright, 1 Term Rep. 378. ^ 2 Ring. Rep. 54. " Exparte Wilson, 2 Ves. & Beame, 252. The mortgagee not in possession is not entitled to the emblements. Toby v. Reed, 9 Conn. Rep. 216. As between mort- gagor and mortgagee, the property in timber cut and being on the premises is in the mortgagee subject to an account. This is the rule in Massachusetts and Maine. Grove V. Jenness, \Q Maine Rep. ZZ. The purchaser of mortgaged premises sold on forecloem-e is entitled to the growing crops. Shepard v. Philbrick, 2 Denio'i Rep. 174. 1Y2 OF REAL PROPERTY. [Pm-t VI. law in this country, =■ and the distinction taken is between a lease made by the mortgagor prior, and one made subsequent to the mortgage. In the latter case, it is admitted, that the mortgagee cannot distrain, or sue for the rent, because there is no privity of contract, or of estate, between the mortgagee and tenant. But if the subsequent tenant attorns to the mort- gagee after the mortgage has become forfeited, he then be- comes his tenant, and is answerable to him for the rent.^ The statute of 14 Geo. II., c. 19, expressly admitted of the attornment of the tenant (and whether the tenancy existed be- fore or after the date of the mortgage, has been held to make no difference) to the mortgagee after forfeiture; and this provision has been incorporated into the statute law of this country." It will depend, therefore, upon the act of *166 the tenant, under a *lease from the mortgagor subse- quent to the mortgage, whether the mortgagee can sus- tain a suit or distress for the rent prior to his recovery in ejectment. In ISTew-York, I apprehend, the mortgagee can in no case, without such attornment, have any remedy at law for the rent, for he is deprived of any action to recover the posses- sion ; and if he gains the possession, it must be by contract with the mortgagor, or by one with the tenant, subsequent to the forfeiture, or by the aid of a court of equity, and which aid would be afforded when the pernancy of the rents and profits becomes indispensable to the mortgagee's indemni- ' Sanders v. Van Sickle and Garrison, 3 HaUted, 313. M'Kircher v. Hawley, 16 Johns. Rep. 289. ^ Jones V. Clark, 20 Johns. Rep. 61. Magill v. Hinsdale, 6 Conn. Rep. 464. It was held, in Pope v. Biggs, 9 Barnw. & Cress. 245, that a mortgagee may entitle himself to the rents due at the time of notice, as well as to those accruing after- ■wai'ds, from a tenant holding under a lease from the mortgagor, subsequent to the mortgage. = New-York Revised Statutes, vol i. 744. see. 3. Nexe-Jers^iy Revised Laws, 192, 17. 3 Halsted, 317. ^ The interest of the mortgagee before foreclosure, is not the subject of sale on execution at law, notwithstanding the debt is due and the estate has become (1) It has been decided in Kentuclcy, tliat a mortgage to a siu'ety to secure him, is in effect a security for the debt, and that the creditor is entided to the benefit of it Arnold v. Foot, T JB. Mon. B. C6. Lee. LVIII.] OF REAL PROPERTY. 1Y3 (2.) Accountable for the^profits. If the mortgagee obtains possession of the mortgaged prem- ises before foreclosure, he will be accountable for the actual receipts of the net rents and profits, and nothing more, unless they were reduced, or lost by his wilful default, or gross neg- ligence. '^ (1) By taking possession, he imposes upon himself the duty of a provident owner, and he is bound to recover what such an owner would, with reasonable diligence, have received.'' The net rents and profits are to be ascertained after payment of taxes and ordinary repairs, and other ex- penses of that character, and the mortgagee is not to be charged with the increased rents and profits arising from the use of any permanent improvements made by himself." He may charge for the expenses of a bailiff or receiver, when it becomes proper to employ one ; but he is not entitled to make any charge, by way of commission, for his own trouble in managing the property and collecting and receiving the rents.'J This is the English rule, and the evident policy of it is to guard against abuse, in cases where there might be a strong temptation to it ; and the rule has been followed in New-York and Kentucky, while in Massachusetts a commis- sion of five per cent, has been allowed to the assignee of a mortgagee for managing the estate.'^ The mortgagee in pos- absolute at law. Jackson v. Willard, 4 Johns. Rep. 41, and see 4 Day's H. N. S. 235. 16 Mass. Rep. 345. 3 Pich. Rep. 489. 1 Walker's Miss. Rep. 194. S. P. » Anon., 1 Vern. 44. 1 Eq. Cos. Abr. 328, pi. 1. Robertson v. Campbell, 2 Call, 428. Ballinger v. Worsley, 1 Bibb, 195. Van Buren v. Olmstead, 5 Paige, 1. Felch v. Felch, in Vermont, cited in The Law Reporter for September, 1846. ^ Williams v. Price, 1 Sim. <& 8tu. S81. 3 Powell on Mortgages, 949, a. note. Hughes v. Williams, 12 Ves. 493. « Bell V. Mayor of New- York, 10 Paige, 49. ^ Bonethon T. Hockmore, 1. Vern. 316. French v. Baron, 2 Ath. 120. Godfrey V. Watson, 3 ibid. 517. Langstaffe v. Fenwick, 10 Ves. 405. Davis v. Dendey, 3 Madd. Ch. Rep. 95. Clark v. Robbins, 6 Dana's Ken. Rep. 350. - Moore v. Cable, 1 Johns. Ch. Rep. 385. Breckenridge v. Brooks, 2 Marshall, 339. Gibson v. Crehore, 5 Pick. Rep. 146. The Massachusetts Revised Statutes, in 1835, part 3, tit. 3, c. 107, provide, that after the breach of the condition of the mortgage of real estate, the mortgagee or his assignee may take possession peace- (1) After Iho mortgage has become due, if the mortgagor, or the person liable for the debt, be insolvent, and the mortgaged premises are insuflieient to pay the debt, the mortgagee will in equity be entitled to the rents and proflts. Astor v. Turner, 11 Paige i?. 456. lli OF REAL PROPERTY. [Part VI. *167 session is *likewise allowed for necessary expenditures, in keeping the estate in repair, and in defending the title -f^ but there has been considerable diversity of opinion on the question, whether he was entitled to a charge for beneficial and permanent improvements. The clearing of un- cultivated land, though an improvement, was not allowed in Moore v. Cable, on account of the increasing difficulties it would throw in the way of the ability of the debtor to re- deem. But lasting improvements in building have been al- lowed, in England, under peculiar circumstances ;'' and they have been sometimes allowed, and sometimes disallowed in this country." The mortgagee in possession holds the estate ably, or he may recover it by suit; and that, in either case, possession for three years forecloses the right of redemption. He may also enter or recover posses- sion by suit before a breach of the condition, and the three years will not run ex- cept from the time of the breach. Upon redemption within the three years, the mortgagee must account for the rents and profits, and will be allowed for the ex- pense of reasonable repairs and impi-ovements, and all other necessary expenses in the care and management of the estate. This would seem to put an end to the al- lowance of any commission. ' Godfrey v. Watson, 3 Ath 611. Lord Alvanley, in Hardy v. Rees, 4 Ves. 480. Moore v. Cable, 1 Johns. Rep. 385. Saunders v. Frost, 5 Pick. Rep. 259. The mortgagee is bound to keep the estate in necessaiy repaii', and if he be guilty of wilful default or gi'oss neglect as to repairs, he is responsible for loss and dam- ages occasioned thereby. But he is not bound to repair against the natural effects of waste and decay from time. Russell v. Smith, 1 Anst. 96. Hughes v. Wil- liams, 12 Ves. 495. Wragg v. Denbam, 2 Younge & Coll. 11*7. 121. Dexter v. Ai-nold, 2 Sumner, 103. He may maintain trespass or trover for cutting and car- i-ying away the timber. Frothingham v. M'Kusick, U Maine Rep. 403. •i Exton V. Greaves, 1 F«™. 138. Talbot v. Braddill,j6«W. 183, note. Quarrell V. Beckford, 1 Madd. Rep. 153, Phil. edit. A tenant for life cannot make benefi- cial improvements and charge them on the inheritance. Coldeoott v. Brown, 2 Hare's Ch. Rep. 144. " In Conway v. Alexander, 1 Cranch, 218, the Circuit Court for the District of Columbia directed an allowance for pennanent improvements ; and, though the decree was reversed on appeal, that point was not questioned. So in Ford v. Phil- pot, 5 Jffarr. S Johns. 312, a similar allowance was made in chancery, and that point was untouched in the com-t of appeals. In Russell v. Blake, 2 Pick. Rep. 505, it was said, that the mortgagee could not be allowed for making anything new, but only for keeping the premises in repair. So, in Quin v. Brittain, 1 Hoffman's Uli. TJep. 353, Clark v. Smith, Saxton's Ch. Rep. in New-Jersey, 121, Dougherty v. M'Colgan, 6 Gill dt Johns. 275. S. C. Raymond's Digested Chancery Cases, 342, and in Bell v. Mayor of New- York, 10 Paige, 49, it was held to be a general prin- ciple in chancery, though not without exceptions, that a mortgagee in possession is not to be allowed for new improvements. All the cases agree, that the mortgagee Lee. LVIII.] OF REAL PROPERTY. :|.75 "with duties and obligations analogous in some respects to those of a trustee ; and if he takes the renewal of a lease, it is for the benefit of the estate, and not for his own benefit. He can make no gain or profit out of the estate, which he holds merely for his indemnity.'"' (1) *(3.) Of Registry. *168 The mortgagee's right depends very essentially upon the registry of his mortgage, and upon the priority of that registry. The policy of this country has been in favour of the certainty and security, as well as convenience of a registry, both as to deeds and mortgages ; and by the statute law of ISTew-Tork, every conveyance of real estate, whether abso- lutely, or by way of mortgage, must be recorded in the clerk's ofiice of the county in which the real estate is situated, after being duly proved or acknowledged, and certified, as the law prescribes. If not recorded, it is void as against any subse- quent purchaser, or mortgagee, in good faith, and for a valu- able consideration, of the same estate, or any portion thereof, whose conveyance shall be first duly recorded.^' It may be is to be alloTved the expense of necessary repairs, and beyond that tlie rule is not inflexible, but it is subject to the discretion of the court, regulated by the justice and equity arising out of the circumstances of each particular case. See, on this sub- ject, Burges' Com. on Colonial and Foreign Laws, vol. ii. 205. " Holdridge v. Gillespie, 2 Johns. Ch. Rep. 30. In England, it is held, that the mortgagee of a term is liable on the covenants in the lease assigned to him, by way of mortgage, though he has never been in possession of the term, or taken the issues and profits thereof. Williams v. Bosanquet, 1 Brod. tb JBing. 72. (2) But in New- York it is held, that such a mortgagee is not liable as assignee upon the cove- nants. Waltonr. Cronlj, li Wendell, 6S. Astor v. Miller, 2 Pai^e, 68. This last decision is conformable to that of Eaton v. Jaques, Doug. Hep. 455. By the Mas- sachusetts Revised Statutes of 1835, part 2. tit. 4. c. 65. sec. 10. 15, the interest of the mortgagee before foreclosure, is deemed personal assets in the hands of execu- tors and administrators. He ia chargeable with waste, but what is waste in respect to clearing the land for timber, must depend on circumstances. Givens v. M'Cal- mont, 4 Watts, 460. '' New-York Revised Statutes, vol. i. 756, sec. 1. Ibid. 762, sec. 37. The term purchaser, in the statute, is declared to embrace every mortgagee aud his assignee. (1) Oa the subject of allowances to mortgagees in possession, see the learned and able note of Mr. Coventry, 3 Powell on Mortgages, 956, note (Q), Sand's MI. (2) But, ii seems, an equitable mortgagee of a term is not liable on the covenants of the lease, tboughhehas taken possession, until he has made himself legal assignee, iloorc v. Gregg, 2 FMlKpa' Oh. B. TIT. Eenewed leases from churches, and by the trustees of charities, "will, in general, for the pro- X76 OF REAL PROPERTY. [Part VI, said, generally, that this is the substance of the statute law on the subject in every state of the Union; but in some of them the recording is still more severely enforced, and deeds are declared void, at least to all third persons, unless recorded.^ If the question of right between a mortgagee, and a subse- quent mortgagee or purchaser of the same estate, depended entirely upon the existence and priority of the registry, it would turn upon a simple matter of fact of the easiest solu- tion, and it would undoubtedly remeve much opportunity for litigation. The French ordinance of 1747, allowed to credit- ors and purchasers, having notice of a deed containing a substitution of an estate prior to their contract or *169 *purchase of the same, to object to the want of registry of the deed according to the requisition of the ordinance. The ordinance was framed by an illustrious magistrate, the Chancellor d'Aguesseau, and the commentators upon it, laid it down as a fixed principle, that not even the most actual and direct notice would countervail the want of registration ; so that if a person was a witness, or even a party, to the deed of substitution, still if it was not registered, he might safely purchase the property substituted, or lend money upon a A pmxhaser for a valuable consideration, witliin the meaning of the registiy act, is one who has advanced a new consideration for the estate conveyed, or who has re- linquished some security for a pre-existing debt due him. The mere receiving of a conveyance in payment of a pre-existing debt is not sufficient to give him a prefer- ence over a prior um-egistered mortgage. Dickerson v. Tillinghast, 4 Paige, 215. ' In Pennsylvania, no deed or mortgage is good unless recorded in six, and in Delaware, no mortgage is good unless recorded in twelve months ; and in Massa- chusetts, Rhode Island, Connecticut, Eind some other states, the deed does not ope- rate until recorded, except as between the parties and their heirs. In Ohio, deeds must be recorded in six months ; and an unrecorded deed is void against a subse- quent purchaser for valuable consideration, without notice of the deed, whether the subsequent deed be, or be not recorded. In Georgia, mortgages of real or personal property are to be recorded within three months from their date, or they lose their preference. Prince's Dig. edit. 1836, p. 165. In Indiana, mortgages must be re- corded or deposited for record, in ninety days, and in Kentucky, in sixty days, to be valid against creditors. The Louisiana code, art SSll. 3333,requii-es all mortgages, whether conventional, legal or judicial, to be recorded, and then- effect ceases un- less renewed within ten years. But the rule does not apply to mortgages to which husbands, tutors and curators are subjected by operation of law. tection of equitable rights, be treated as continuations of the leases renewed. 3 Scmdf. Ch. li, 180. t,I'aigeJi. ^ Fai-nsworth v. Childs, 4 Mass. Rep. 637. M'Mechan v. Griffing, 3 Pick. 149. Hewes v. Wisivell, 8 Greenleaf 94. OhDes v. Conley, 2 Dana's Ken. Rep. 23. Pike V. Armstead, 1 Badger & Dev. Equity Cases, 110. Brackett v. "Wail, 6 Vermont Rep. ill. Taylor v. M'Donald, 2 Bibb. 420. Newman v. Chapman, 2 Randolph, 93. Guerrant v. Anderson, 4 ibid. 208. Jackson v. Shaip, 9 Johns. Rep. 164. Jackson v. Burgott, 10 ibid. 45Y. Roads v. Symmes, 1 Hammond, 281. Muse v. Letterman, 13 Serg. dt Rawle, 167. Jaques v. Weeks, 7 Watts, 261. Hudson v. Warner, 2 Harr. vould be sufHolent, was left undecided. Lee. LVIIL] OF REAL PROPERTY. 181 7 Anne, c. 20, whether there be notice or not notice, and that the grantee in the prior deed must seek his relief in equity. One of the judges, however, laid stress on the fact, that the registry act declared the unregistered conveyance void against every subsequent purchaser for a *valuable *l'r3 consideration, without a.di&mg'bona fide purchaser ; and as the statute of New-York uses the words, purchaser in good faith,, the jurisdiction of the courts of law over the case, would seem to remain unaffected. It is a question on the sound interpretation of the registry acts, and in a matter of fraud, and the better opinion is in favour of the jurisdiction of the courts of law. A mortgage, not registered, has preference over a subse- quently docketed judgment ; (1) and the statutory regulations concerning the registry of mortgages, and the docketing of judgments, do not reach the case.^ A mortgage unregistered is still a valid conveyance, and binds the estate, except as against subsequent hona fide purchasers and mortgagees, whose conveyances are recorded. If, therefore, the purchaser at the sale on execution, under the judgment, has his deed first recorded, he will then gain a preference by means of the record over the mortgage, and the question of right turns upon the fact of priority of the record in cases free from fraud. (2) This is also the case as to purchasers deriving title respectively under a fraudulent grantor, and a fraudulent grantee.*" The •■ M. Valette, Professor of the Civil Code to the faculty of la-w of Paris, discussed eleborately the question whether a subsequent judgment against the debtor will in- juriously affect a prior mortgage, and he concludes very clearly, that it will not, either by the Roman or French law, for the judgment is res inter alios acta. See a translation of that discussion taken from the Hevue de Droit Franfois et Etranrjer of Jan. 7, 1844, in the American Law Magazine fur July, 1844. ■■ Jackson v. Dubois, 4 Johns. Rep. 216. Jackson v. Terry, 13 ihid. 471. Jack- son V. Town, 4 Cowen, 605. Ash t. Ash, 1 Bay, 304. Ash v. Livingston, 3 ibid. 80. Penman v. Hart, ihid. 251. Hamilton v. Levy, 1 M' Cords Ch. Rep. 144. The rule remains the same since the New- York Revised Statutes. Schmidt v. Hoyt, 1 Edw. Oh. Rep. 652. Ledyard v. Butler, 9 Paige Rep. 132. (1) And over a subsequent assignment, altliough the assignment is first recorded. Wyclcoff v. Eemsen, 11 Paige^s B. 564. (2) But the second recorded mortgage does not avoid the prior unrecorded mortg.ige, as of a time prior to the execution of the recorded mortgage ; and rights acquired by the holder of the unrecorded mortgage previous to such time will not be defeated. Strong v. Dollner, 2 Sandf. {Lcm) R. 4M. 182 OF REAL PROPERTY. [Part YI. rule in Pennsylvania is different,* and the docketed judgment is preferred, and not unreasonably; for there is much good sense, as well as simplicity and certainty, in the proposition, that everyincumbrance, whether it be a registered deed or docketed judgment, should, in cases free from fraud, be satis- fied according to the priority of the lien upon the record, which is open for public inspection. In one instance, a mort- gage will have preference over a ^rior docketed judgment, and that is the case of a sale and conveyance of land, and a mortgage taken at the same time, in return, to secure the payment of the purchase money. The deed and the mortgage are considered as parts of the same contract, and con- *174 stituting *one act ; and justice and policy equally re- quire that no prior judgment against the mortgagor should intervene, and attach upon the land, during the tran- sitory seisin, to the prejudice of the mortgage. This sound doctrine is, for greater certainty, made a statute provision in ISTew-York.'' There has been much discussion on the question whether the registry be, of itself, in equity, constructive notice to subsequent purchasers and mortgagees. The weight of au- thority in the English books, and Mr. Coote says the weight of principle also, are against notice founded on the mere regis- tration of a deed ; and Lord Eedesdale thought, that if the record was held to be notice, it would be very inconvenient, for the principle would have to be carried to the extent of holding it notice of the entire contents of the deed, and to be notice whether the deed was duly or authorizedly recorded or not.o But Lord Camden was evidently of a different opinion, though he held himself bound by precedents to consider the registry not notice. <* In this country the registry of the deed » Semple v. Burd, T Serg. tfc Rawle, 286. Friedley v. HamiltoD, 17 ibid. 10. Jaques v. Weeks, 1 Watts, 261. So in North Carolina, a judgment creditor is prefeiTed to a prior uni'egistered mortgage, and is not effected by notice of it. Da- vidson V. Cowan, 1 Sad. d: Dev. Eq. Oases, 4*70. Same law in Ohio, Bank of Cleve- land V. Stm-ges, 2 McLean, 341. ^ New- York Revised Statutes, vol. i. 749, sec. 5. « Latouch V. Dusenben-y, 1 £i<;A. ife ie/. 157. Bushnellv. BushneU, ?62cZ. 90. See, also, the opinion of Sergeant Hill, in 4 Mad. Ck. Rep. 286, note. ^ Morecock v. Dickins, Amb. 678, Lcc. LVIII.] OF REAL PROPERTY. 188 is held to be constructive notice of it to subsequent purchasers and mortgagees ;=' but we do not carry the rule to the extent apprehended by Lord Eedesdale ; and a deed unduly regis- tered, either from want of a valid acknowledgment or other- wise, is not notice according to the prevailing opinion in this country, i" *(4:.) Future advances. *175 The ancient rule was, that if the mortgagor contracted further debts with the mortgagee, he could not redeem without » Johnsoa v. Stagg, 2 Johns. Rep. 510. Frost T. BeekmaD, 1 Johns. Ch, Rep. 298. 18 Johns. Rep. 544. S. C. Peters v. Goodrich, 3 Oonn. Rep. 146. Hughes V. Edwards, 9 ^Vheat. Rep. 489. Thayer v. Cramer, 1 M'Oord^s Ch. Rep. 395. Eraas y. Jones, 1 Yeates' Rep. 1'74. Shaw t. Poor, 6 Pick. 86. Laaaelle v. Bar- nett, 1 Blackford's Ind. Rep. 150. Plume v. Bone, 1 Green's N. J. Rep. 63. N. Y. Revised Statutes, vol. i. "761, sec. 33. But the recording of the assignment of a mortgage, is not of itself notice of such assignment of the moi-tgagor, his heirs, or personal representatives, so as to invalidate payments to the mortgagee. (1) Ibid. 763, sec. 41. And in Napier v. Elam, 6 Yerger's Tenn. Rep. 108, it was held, that if the vendor did not disclose the fact, that a previous incumbrance existed upon the property, it was a fraud that equity would relieve against, although the pre- vious incumbrance was registered. In the case of Talmage v. Wilgers, before the Ass. V. Ch,, in New- York, it was adjudged that a mortgagee who leases a portion of the mortgaged premises, is not bound prior to such release, to search the records as to conveyances by the mortgagor subsequent to his own mortgage. The record is not constructive notice and binding the mortgagee in that case, and the mortgagee is not bound to allow upon the mortgage the value of the lot re- leased. (2) New-York Legal Observer, vol. i. 42. '' Heister v. Fortner, 2 Binney's Rep. 40. Hodgson v. Butts, 3 Cranch, 140. Frost V. Beekman, 1 Johns. Ch. Rep. 300. Sutherland, J., James v. Morey, 2 Couien, 246. 296. Kerns v. Swope, 2 Watts' Penn. Rep. 75. Lessee of Shults v. Moore, 1 M'Lean's Rep. 520. It would not be notice to affect a purchaser. But see Moriaon v. Trudeau, 13 Martin's Xouis. Rep. 384, where such a deed is said to operate as notice to third persons. By the Massachusetts Revised Statutes of 1835, part 2, tit. 1. c. 59, sec. 31, the recording the deed, or writing, creating or declaring a trust, is made equivalent to actual notice of the same to pm-chasers and creditors. (1) New-Tork Life Ins, &c. Oo. v. Smith, 2 Barb. Ch. li. 82. The recording of the assign- ment of a mortgage, is only constructive notice of such assignment, as against subsequent assignees of the mortgagee. (2) See Stnyvosant v. Hall, 2 Barl. Oh. It. 151. Where two oLortgages are recorded at the same time, and each mortgagee is cognisant of the giving of the other, at the time that he takes his own, the recording acts do not affect the ques- tion of priority. If it was the intention of all parties that one of the mortgages should have pri • ority, the court will presume that one to have been first delivered. Jones v. Phelps, 2 Bari. Ch, B.4Aa. 184 OF REAL PROPERTY. [Part VI. paying those debts also.'^ The principle was to prevent cir- cuity of action ; but it was not founded upon contract, and Lord Thurlow said it had no foundation in natural justice ; though I think the rule evidently had a foundation in the civil law.'' The rule is now limited to the right to tack the subsequent debt to the mortgage, as against the heir of the mortgagor, and a beneficial devisee ; but it cannot be per- mitted as against creditors, or against the mortgagor's assignee for valuable consideration, or devisee for the payment of debts." So, a mortgage or judgment may be taken, and held as a security for future advances and responsibilities to the extent of it, when this is a constituent part of the original agreement; and the future advances will be covered by the lien, in preference to the claim under a junior intervening incumbrance, with notice of the agreement."! (1) The prin- ciple is, that subsequent advances cannot be tacked to a prior mortgage, to the prejudice of a iona Jlde junior incumbrancer ; but a mortgage is always good, to secure future loans, when * Shuttleworth v. Laycoct, 1 Vent. 246. Baxter t. Maiming, ibid. 244. Anon.. SSalk. 84. Francis' Maxims of Equity, 1. I" This was clearly and learnedly shown by Mr. Justice Jackson, in 35 Mas». Rep. 407. See, also, Story's Com. on Equity & Jurisprudence, vol. ii. 276, and Institutes of the Oivil Law of Spain, by Aso. & Manuel, b. 2, tit. 11, eh. 3, sec. 2, u. 71. In Lee v. Stone, 5 Gill & Johns. 1, it was held, that a mortgagor seeking to redeem, must pay not only the moi-tgage debt, but all other debts due fi-om him to his mortgagee ; but if the mortgagee seeks a foreclosure, the mortgagor can re- deem on paying the mortgage debt only. So he can, if a subsequent mortgagee, or a judgment creditor, files a bill to redeem. "= Troughton v. Troughton, 1 Ves. 86. Anon., 2 ibid. 662. Heams v. Bance, S Ath. 630. Powis v. Corbat, ibid. 556. Lowthiau v. Hasel, 3 Bro. 162. Hamevton v. Rogers, 1 Ves.jun., 513. Lord Alvanley, in Jones v. Smith, 2 ibid. 376. ^ Marshall, Ch. J., in Shirras v. Craig, 7 Oranch, 34. It was adjudged by tlie Vice-Chancellor, after a full consideration of the cases, that a mortgage to secure future advances was valid, without showing on its face the object of it. It is suf- ficient if the extent of the lien be clearly defined. The policy of the registry laws does not affect the question of the validity of it in this respect. But a subsequent mortgage on the same premises for an existing debt, takes precedence of all advan- ces made after such second mortgage is executed. Craig v. Tappin, 2 Sandford Ch. B. 78. (2) (1) Bank of Utica v. Finch, 3 Ba/rli. Ch. R. 298. (2) Spader v. Lawler, IT Ohio U. 870. See Greeniteafs Cruise, tit. 15, Mortgage, ch. 5. sec. 2. note- 1. The editor thinks the mortgage deed, set up against a subsequent incumhranee>. should disclose the fact that it was intended to cover such advances. Lee. LVIIL] OF REAL PROPERTY. 185 there is no intervening equity.'' It is necessary *tliat the agreement, as contained in the record of the *17() lien, should, however, give all the requisite inforination as to the extent and certainty of the contract, so that a junior creditor may, by inspection of the record, and by common prudence and ordinary diligence, ascertain the extent of the incumbrance. This is requisite to secure good faith, and pre- vent error and imposition in dealing.'' It is the settled rule in England, and in this country, that a regularly executed mortgage cannot be enlarged, by tacking subsequent advances to it in consequence of any agreement by parol ;= and an agreement to that effect in writing could not, as I apprehend, affect a subsequent incumbrancer, unless he had dealt with the mortgagor with full knowledge of the agreement.'^ (5.) Doctrine of taking. It is the established doctrine in the English law, that if there be three mortgages in succession, and all duly registered, ' Garduer t. Graham, Y Vin. Abr. 52, E. pi. 3. Lyle v. Duoomb, 5 JBinnej/'s Rep. 586. Hughes v. Worley, 1 Sibb, 200. Livingston y M'Inlay, 16 Johns. Rep. 165. Hendricks v. Robinson, 2 Johns. Ch. Rep. 309. Bvinckerhoff v. Marvin, 5 ibid. 326. James V. Johnson, 6 i6«W. 420. Shin-as v. Craig, 7 ft-anc/i's i?e/). 34. Story, J., in Conrad v. Atlantic Insurance Company, 1 Peters' Xf. S. Rep. 448. Hubbard v. Savage, 8 Conn. Rep. 215. Averill v. Guthrie, 8 Dana, 83. Leeds v. Cameron, 3 Sumner's Rep. 492. Brown v. Frost, 1 Hoff. Ch. Rep. 41. Walling v. Aiken, 1 McMullan's S. 0. Rep. 1. ■■ Pettibone v. Griswold, 4 Conn. Rep. 158. Stoughtonv. Pasco, 5 ibid. 442. St. Andrew's Churchy. Tompkins, Y Jb/ms. Ch. Rep. 14. Garber v. Henry, 6 Walts, 57. But if a mortgage or judgment be taken as a security for future advances and subsequent judgment or mortgage duly registered intervenes, it is suggested that further advances after iliMt period, would not be covered. Brinckerhoff y. Marvin, 5 Johns. Ch. Rep. 326. Terhoven v. Kerns, 2 Barr, 96. « Ex parle'B.oo^ec, 19 Fes. 477. "Walker v. Snediker, 1 HoffmarCs Ch. Rep. 146. ^ In New-Hampshire by statute of 3d July, 1829, mortgages to secure future liabilities are invalid. So by the Revised Statutes of Massachusetts, ch. 74, sec. 5, a deliveiy of subsequently acquired personal property by the mortgagor to the mortgagee does not render the mortgage, as to such subsequent property, valid as against subsequently attaching creditors, unless delivered with the intention to ra- tify the mortgage, and unless the mortgagee retamed open possession of the same,, until the time of such attachment. In Jones v. Richardson, (10 Met. R. 481,) it would appear that the dehvery and possession of subsequently acquired goods,, except under the special provision in the statute, would not be valid under the mortgage as against attaching creditors. 186 OF REAL PROPERTY. [Part VI. or a mortgage, and then a judgment, and then a second mort- gage upon the estate, the junior mortgagee may purchase in the first mortgage, and tack it to his mortgage, and by that contrivance "squeeze out" the middle mortgage, and gain preference over it. The same rule would apply if the first, as well as the second incumbrance, was a judgment ; but the incumbrancer who tacks must always be a mortgagee, for he stands in the light of a lona fide purchaser, parting with his money upon the security of the mortgage. This doctrine, harsh, and unreasonable as it strikes us, was not authorized in the Roman law to the extent to which it is carried in the English law. The general maxim in that system, on the sub- ject of pledges and hypothecations, was, qui prior est temrpm-e potior e est jure ^^ and it yielded only in a qualified degree to this doctrine of substitution, when the subsequent in- *177 cumbrancer took the place of a *prior one by pur- chasing in the first mortgage and tacking it to his own.'' The substitution in the Roman law was not carried so far as to disturb the vested rights of intermediate incumbrancers, and only went to the extent of the first mortgage so purchased."^ In the English law, the rule is under some reasonable qualifi- ■cation. The last mortgagee cannot tack, if, when he took his mortgage, he had notice in fact (for tlie registry or docket of the second incumbrance is not constructive notice, as we have already seen) of the intervening incumbrance. But if he ac- quired that knowledge subsequent to the time of taking his mortgage, he may then purchase and taok, though he had notice at the time of his purchase, and though there was even a bill then pending by the second mortgagee to redeem. The courts say, that up to the time of the decree settling priorities, the party may tack or struggle for the tabula in • Big. 20. 4. 12. 3. •> Heineccii, Elm. Jur. Oiv. secund. ord. Pand. part 4-, lib. 20, tit. 3, sec. 35. Opera, torn. v. part 2, p. 350. Dig. 20. 4. 3. 5. Fothier, ud Pand. ibid. " Dig. 20. 4. 16. Story's Comm. on Eq. Jurisprudence, vol. ii. 276, note. Vide supra, p. 136, note. So, by the Spanish law, the thii-d mortgagee, by purchasing in the first mortgage, acquires no other light than what strictly belonged to the mortgage, and the intermediate mortgages are not prejudiced by any act to which they were not parties, or did not consent. Institutes of the Civil Law of Spain, by Asa. S Manuel, b. 2, tit. 11, ch. 3. 2, u. 11, and this they consider to be the extent to which the civil law went Lee. LVIIL] OF REAL PROPEETT. 187 naufragio.^ The English doctrine of tacking was first solemnly established in JfojrsA v. Lee^^ under the assistance of Sir Matthew Hale, who compared the operation to a plank in shipwreck gained by the last mortgagee ; and the subject was afterwards very fully and accurately expounded by the Master of the Eolls, in Braoe v. Duchess of Marlborough.'^ It was admitted, in this last case, that the rule carried with it a great appearance of hardship, inasmuch as it defeated an in- nocent second incumbrancer of his security. The assumed equity of the principle is, that the last mortgagee, when he lent his money, had no notice of the second incumbrance ; and, the equities between the second and third incumbrancers being equal, the latter, in addition thereto, has the prior legal estate or title, and he shall be preferred. In the language of one of the cases, he hath "both law and equity for him." The legal title and equal equity prevail over the equity.!! *The Irish registry act, of 6 Anne, has been con- *1T8 sidered as taking away the doctrine of tacking, for it makes registered deeds effectual according to the priority of registry. The priority of registry is made the criterion of title to all intents and purposes whatsoever ; and this Lord Eedesdale considered to be the evident intention of the statute, but that it did not exclude any thing which affects the con- science of the party who claims under the registered deed, nor give a priority of right to commit a fraud.^ This leaves the doctrine of a notice of a prior unregistered deed in full force ; and this is the true and second distinction which pre- vails in the United States, and I presume that the English law of tacking is with us very generally exploded.^ Liens ■ Lord Eldon, 11 Ves. 619. i- 2 Vent. 337. ' 2 P. Wms. 491. ^ The law established by these decisions has been regularly transmitted down in Westminster Hall to this day. Belchier v. Butler, 1 Eckn, 523. Frere v. Moore, 8 Price, 475. « Sch. & Lef. 157. 480. In M'Neil v. Cahill, 2 Bligh, 228, on appeal to the House of Lords, in an Ii-ish case, it was declared, that if the deed posterior in date and execution be first registered, even -with notice of the other deed, it has priority both in law and eq^uity ;' but this does not apply to the case of a fraudulent priority of registiy. ' Grant v. U. S. Bank, 1 Gaines' Cases in error, 112, Feb. 1804. This was the 188 OF REAL PROPERTY. [Part YI. are to be paid according to the order of time in which they respectively attached. This is the policy and meaning of our registry acts, and, consequently, all incumbrancers are to be made parties to a bill to foreclose, that their claims may be chargeable in due order.* There is no natural equity in tacking, and when it supersedes a prior incumbrance, it works manifest injustice. By acquiring a still more antecedent in- cumbrance, the junior party acquires, by substitution, the rights of the first incumbrancer over the purchased security, and he justly acquires nothing more. The doctrine of tacking is founded on the assumption of a principle which is *179 not true in point of fact ; for, as between *A., whose deed is honestly acquired, and recorded to-day, and B., whose deed is with equal honesty acquired, and recorded to-morrow, the equities upon the estate are not equal. He who has been fairly prior in point of time, has the better equity, for he is prior in point of right.i> earliest case that I am aware of in this countiy, destrojing the system of tacking. In that case I had the satisfaction of hearing that profound civilian, as well as illus- trious statesman, General Hamilton, make a masterly attack upon the doctrine, which he insisted was founded upon a system of artificial reasoning, and encouraged fraud. See, also, 11 Serg. & Rawle, 223. 3 Pick. 50. 6 Munf. 560. » Haines v. Beach, 3 Johns. Ch. Rep. 459. *> In case of conflicting equities, precedency of time gives the advantage in right. 1 Bibb, 523. 1 Blackford's Ind. Rep. 91. With respect to priorities in the case of contribution and liens, it may be here observed that a judgment creditor is not entitled to go against the land of a subsequent purchaser, so long as there is land of the debtor remaining unsold, and he is entitled to resort to the land of the purchaser, to the extent only of that part of his debt which remains unsatisfied after the debtor's estate has been exhausted. So, if a debtor sells part of his land charged with a judgment, and dies seised of the residue, his heirs are bound to satisfy the judgment, so far as the assets go, and they are not entitled to any con- tribution from the purchaser, for " the heir sits in the seat of his ancestor," and" the assets that descend to him are first to be charged. But if there be several co.heii's, and the judgment creditor collects the debt from a part of the inheritance allotted to one of them, such heir is entitled to contribution from his co-heii's. On the other hand, where there is no equality there is no contribution, as if a person seised of thi-ee acres of land, charged with a judgment, sells one acre to A., the two re- maining acres are first chargeable in equity with the payment of the debt ; and if he should sell another acre to B., the remaining acre in his hands, or in those of his heir, is chargeable in the first instance with the judgment debt as against B., as well as against A., and if that prove insufficient, then the acre sold to B. ought to supply the deficiency in preference to the acre sold to A., for when B. pm'chased, he took the land chargeable with the debt in the hands of A., in preference to the Lee. LVIII.] OF REAL PBOPERTY. 189 Witli the abolition of the English system of tacking, we are relieved from a multitude of refined distinctions, which have given intricacy to this peculiar branch of equity juris- prudence. The doctrine of notice is also of very extensive application throughout the law of mortgage, and is very greatly surcharged with cases abovmding in refinements. It is, indeed, difiBcult to define, with precision, the rules which regulate implied or constructive notice, for they depend upon the infinitely varied circumstances of each case. The general doctrine is, that whatever puts a party upon an inquiry, amounts, in judgment of law, to notice, provided the inquiry becomes a duty, as in the case of purchasers and creditors, and would lead to the knowledge of the requisite fact, by the exercise of ordinary diligence and understanding.^ So, notice of a deed is notice of its contents, and notice to an agent is notice to his principal. A purchaser with notice, from a pur- chaser without notice, even in the case of an endorsement of a note, can protect himself under the first purchaser, who was duly authorized to sell ; and a purchaser without notice, from a purchaser with notice, is equally protected, for he stands perfectly innocent. ^ land already sold to A. Between purchasers in succession at different times, of different parts of the estate of the judgment debtor, there is no contribution, for there is no equality of right between them. Sir William Herbert's case, 3 Co. 11, b. Clowes V. Dickenson, 5 Johns. Ch. Rep. 235. Conrad v. Harrison, 3 Leigh's Rep. 532. See, also, 6 Ohio Rep. 22'7. 6 Paige's Rep. 35. 525. 10 Serg. & Rawle, 455. S. P. Shannon v. Marselis, Saxton's N. J. Ch. Rep. 413. 421, and Cowden's Estate, 1 Barr's Penn. Rep. 274— 277. S. P.(l) ' A pin-ohaser of lands from an incorporated company is chargeable with notice of all the restrictions upon its power to hold and convey lands contained in its charter. Merritt v. Lambert, 1 Hoffman's Ch. Rep. 166. •■-Hascall v. Whitmore, 19 Maine Rep. 102. Smith v. Hiscock, \iid. 449. Griffith V. Griffith, 9 Paige Rep. 315. Bracken v. Miller, 4 Watts dt Serg. 102. (1) In accordance with this principle, it has been held, that if the mortgagee, with notice of the rights of subsequent purchasers, releases a part of the premises primarily liable for the pay- ment of his debt, he cannot enforce his lien against the residue, without deducting the value of the part released. Stuyvesant v. Hall, 2 £ari. Ch. Ji. 151. But the mere recording of a .subse- quent deed or mortgage is not notice to the prior mortgagee. Hid. King v. McVJcker, 8 Sandf. Oh. Sep. 192. Though the principle of resorting to the mortgaged premises sold subsequently to the mortgage, in the inverse order of their ahonation, is firmly established in New-York, it has been questioned in some recent English oases, and denied in the case of Dickey v. Thompson, 8 S. Mm. B. 812. 2 Stonfa Eq. Jurlsp. sec. 1233. u, Barnes v. Eacksten, 1 Younge & CoU. 2r. B. 401. 190 OP EEAL PROPERTY. [Part VI, There is, also, this further rule on the subject, that the pur- chaser of an e state in the possession of tenants, is chargeable with notice of the extent of their interests as tenants ; for, having knowledge of the tenancy, he is bound to inform himself of the conditions of the lease. The general rule is, that possession of land is notice to a purchaser of the possessor's title.^ The effect of notice, on the equity and validity of claims, is very strong. A purchaser of an equitable interest, standing out in a trustee, and who neglects to inform the trustee of it, will be post- poned to a subsequent purchaser of the same interest *180 who makes inquiries of the trustee, and has no ''^know- ledge of the prior assignment, and gives due notice of his purchase. So, a purchaser of real estate cannot hold against a prior equitable title, if he have notice of the equity before the payment of the purchase money, or the execution of the deed.!" Sweet v. Southcote, 2 Bro. 66. Bumpus v. Platner, 1 Johns. Ch. Rep. 219. God- frey V. Disbrow, 1 Walker's Mich. Gh. Rep. 260. To constitute a purchaser with- out notice, it is not suflBcient that the contract should be made without notice, but that the purchase money should be paid before notice. And though a purchaser may be held as a trustee for the cestui que trust, yet if he belieyed the title to be good, he is entitled to the incumbrances from which he relieved the land, and to the permanent impj-ovements which he has made, and to his advances for the sup- port of the wife and children, and which are to be set off against the profits for which he is chargeable ; and the incumbrances and improvements are a charge on the land, unless absorbed by the residue of the profits. Wormley v. Wormley, 1 Brockenhrowgh, 330. S. C. 8 Wheaton, 421. The doctrine of constructive notice was fully examined in the case of GriiEth v. Griffith, 1 Hoffman's Ch. Rep. 163, and in the case of Brush v. Ware, 15 Peters' TI. 8. Rep. 93 ; and it is of two kinds, that which arises from testimony, and that which results from a record. » Daniels v. Davison, 16 Vesey, 249. Ghesterman v. Gardner, 5 Johnson's Oil. 29. Dyer v. Martin, 4 Scammon Rep. 14'7. But the consti-uctive notice, arising from tenancy, does not extend beyond the tenant's title, or apply to the title of the lessor under whom the tenant holds. Lord Eldon, in Attorney-General v. Back- house, 17 Vesey, 293. Sugden on Vendors and Purchasers, ch Vl, p. "746, 746, 'Tth edit. Our registry acts are designed to protect pui-chasers against latent equities ; the doctrine in the English law of constructive notice of the title of the lessee, or pai'ty in the possession, is not favoured in the American courts. Scott v. Gallagher, 14 Serrj. & Rawle, 333. M'Mechan v. Griffing, 3 PicJc. 149. Hewes v. Wiswell, 8 Oreenleaf,9i. Flagg v. Mann, 2 /Samner, 556, BSY. Where the possessor of land has caused a registry of a particular- title, the pm-chaser need not look beyond it. But apart from any registry, possession ought to be sufficient to put purchaser on inquiry ; and Oh. J. Gibson, in Woods v. Farmere, 7 Watts, 882, with his usually strong and stringent logic, justifies the doctrine of implied notice in such cases. i" Dearie v. Hall, 3 Russell, 1. Jewett v. Palmer, 1 Johns. Ch. Rep. 65. Frost v. LecLVIIL] OP REAL PROPERTY. 191 TV. Of foreclosure. (1 .) Of strict foreolosv/re. The equity of redemption which exists in the mortgagor, after default in payment, may be barred ov foreclosed., if the *mortgagor continues in default after due notice *181 to redeem. The ancient practice was, by bill in chan- cery, to procure a decree for a strict foreclosure of the right to Beekman, 1 ibid. 288. Gallion t. M'Caslin, 1 ElaclcfordCs Ind. Rep. 91. GouTcr- neur t. Lynch, 2 Paige, 300. Grimestone v. Carter, 3 ibid. 421. Boone v. Chiles, 10 Peters' U. S. Pep. 111. Meux v. Maltby, 2 Swanst. Pep. 281 Allen v. An- thony, 1 Merivale, 282. Menitt v. Lambert, 1 Hoffman's Ch. Pep. 166. With respect to the Uability of purchasers, for the right application of the purchase money, it was declared as a general rule, by the Supreme Coui-t of the United States, in Potter v. Gardner, 12 Wheaton, 498, that the person who pays the pui-- chase money to the person authorized to sell, was not bound to look to its appli- cation, whether the lands sold be charged in the hands of an heir or devisee with the payment of debts, or the lands be devised to a trustee for the payment of debts, unless the money be misapplied with his co-operation. The principle of this decision appears to be most consistent with the common sense and practice of man- kind, and to be reasonable and just, and a contrary doctrine would lead to abuse and imposition upon purchasers. The law concerning notice, express and implied, is veiy amply discussed by Mr. Coventry, in his notes to Powell on Mortgages, vol. ii. c. 14, 561 — 662; and the American editor, Mr. Rand, has with a thorough accuracy, collected all the cases and decisions in this country appertaining to the subject. The immense body of Enghsh learning with which Mr. Coventry has en- riched every pai-t of the original work of Powell, is not only uncommon, but very extraordinary. There never were two editors who have been more searching, and complete, and gigantic in theh labours. The work has become a mere appendage to the notes, and the large collections of the American editor, piled upon the vastly more voluminous commentaries of the English editor, have unitedly ovenvhelmed the text, and rendered it somewhat difScuIt for the reader to know, without con- siderable attention, upon what ground he stands. Conati impmiere pelio ossam — atgue ossm frondosum involvere olympum. I acknowledge my very great obligations to those editors for the assistance I have received from their valuable labours ; but I cannot help thinking, that Mr. Coventry would have better accommodated the profession, if he had written an original treatise on the subject, and we should then, probably, have had, what is now wanting in the present work, unity of plan, adaptation of parts, and harmoni- ous proportion. Several of his essays in the notes, as, for instance, those relating to receivers ; equitable assets ; voluntary settlements ; the wife's equity ; when debts, as between the representatives of the deceased, are to be charged upon the real, and when on the personal estate ; interest and usury, Ac, have no veiy close application to mortgages. Mr. Coot^s " Treatise on the Law of Mortgage" is neat, succinct and accurate, and free from several of the objections which have been sug- gested. 195 OF REAL PROPERTY. [Part TI. redeem, by which means the lands became the absolute pro- perty of the mortgagee. This is the English practice to this -day, though sometimes the mortgagee will pray for, and ob- tain, a decree for the sale of the mortgaged premises, under the direction of an officer of the court, and the proceeds of the sale will, in that case, be applied towards the discharge of in- cumbrances according to priority. ^ The latter practice is evidently the most beneficial to the mortgagor, as well as the most reasonable and accurate disposition of the pledge. It prevails in New-Tork, Maryland, Yirginia, South Carolina, Tennessee, Kentucky, Indiana, and probably in several other states. *> But in the New-England states, the practice of a strict foreclosure would seem to prevail, and the creditor takes the estate to himself, instead of having it sold, and the proceeds applied. But a subsequent incumbrancer, by pay- ing the original debt, becomes entitled to all the rights of the first mortgagee.": In Yermont, the mortgagor is allowed by the decree a definitive time (which is sometimes one and two years) to redeem, and in default the equity of redemption is foreclosed. "J In Massachusetts, Ehode Island and Maine the mortgagor has three years, after the mortgage is foreclosed, to redeem, and in Connecticut fifteen years, and in New-Hamp- shire one year to redeem, after entry and seisin by the mort- gagee upon breach of the condition, and without foreclosure. ^ " llondey v. Mondey, 1 Ves. & Beame, 223. I" Johns. Oh. Rep. passim. Nem-Tork Revised Statutes, vol. ii. 191. sec. 151. In Lansing v. Goelet, 9 Cowen's Rep. 346, it was decided, that a decree of foreclo- sure and sale, and a decree of sale without any express decree of foreclosure, were equally a complete bar of the equity of redemption. ITelson v. Carrington, 4 Munf. 332. Downing v. Palmateer, 1 Monroe, 66. Humes v. Shelby, 1 Temi. Rep. 79. Hurd T. James, ibid. 201. Rodgers v. Jones, 1 M'Cord's Ok. Rep. 221. Paunell v. Farmers' Bank, 1 Ilarr. & Johns. 202. David v. Grahame, 2 Harr. d: Gill, 94. Act af Indiana, 1840. In Ohio, the mortgagee is entitled to a decree of foreclosure, where two-thii'ds of the value of the mortgaged lands do not ex- ceed the amount of the debt, and he may insist on a sale. 5 Hammond's Rep. 554. In Tennessee, the mortgagor has two years under an act of 1820, to i-edeem after ■confirmation of the master's sale, under a decree of foreclosure. Henderson v. Lowry, 5 Yerger's Rep. 248. " Mix T. Hotchkiss, 14 Oonn. Rep. 45. i Smith V. Bailey, 1 Shaw's Vermont Rep. 163, B". S. Ibid. 267. Lockwood V. Lockwood, 1 J)ay's Rep. 295. Swift's Dig. voL ii. 656. 683. Erskine v. Townsend, 2 Mass. Rep. 493. 1 Rick 356. "Wilde, J., Newall v. Lee. LVIII.] OP REAL PROPKRTT. I93 The severity of the foreclosure without a sale is *miti- *182 gated, by the practice of enlarging the time to redeem from six months to six months, or for shorter periods, accord- ing to the equity arising from circumstances."- (2.) Of selling onforeclosv/re. In England, and with us, the practice of selling the land by the party himself, or by an authorized, trustee, under a power inserted in the mortgage, has extensively prevailed. (1) The course in Ireland, as well as here, is to decree a sale in- stead of a foreclosure ; and if the sale produces more than the debt, the surplus goes to the mortgagor, and if less, the mort- gagee has his remedy for the difference. This course was recommended, by Lord Erskine, as more analogous to the Wright, 3 Mass. Rep. 155. Statute of Massachusetts, Ist March, 1799, 0. 1*1. Massachusetts Revised Statutes, 1835, part 3. tit. 3. c. lOT. Baylies v. Bussen, 5 Greenleaf, 153. Sweet v. Horn, 1 N. S. Rep. 332. Gilman v. Heddin, 5 N. H. Rep. 31. The practice of a strict foreclosure has also been allowed in North Car- olina. Spiller T. Spiller, 1 Hayw. 482. In Connecticut, the taking possession of mortgaged premises by the mortgagee, under a decree of foreclosure, was held to be an extinguishment of the debt by the appropriation of the pledge in satisfac- tion of it. The Derby Bank v. Landon, 3 Oonn. Rep. 62. But by the statute in 1833, the foreclosm-e of a mortgage does not preclude the creditor from recovering, by action, so much of his debt as the moiigage proper shall be insufficient to sat- isfy, estimated in value at the expiration of the time limited for redemption, and such action, after foreclosure, shall not open it. - Edwards v. Cunliffe, 1 Madd. Rep. 287. Ferine v. Dunn, 4 Johns. Ch. Rep. 190. In Missomi, a shoi-t and easy mode of foreclosing moi-tgages is provided, and to be commenced by petition to the cii-cuit court, and by process of summons. Revised Statutes of Missouri, 1835, p. 409. And in New-Hampshire the mortga- gee, or the administrator, may foreclose a moiigage by peaceable entiy, and a pos- session of one year, without process. Gibson v. Bailey, 9 N. H. Rep. 168. This is under the statuteof 1829, and after a possession of one year, according to the terms of the act, without tender of payment or demand of an account on the part of the mortgagor, the mortgage is foreclosed. This statute remains good, notwithstanding chancery powers respecting the redemption and foreclosure of mortgages, accord- ing to established piinciples of chanceiy, were conferred on their superior court by the act of July 4, 1834. Wendell v. N. H. Bank, 9 N. H. Rep. 404. (1) The sale is not perfect until an acceptance of the title by the vendee, and a confirmation on the part of the court. Strong v. Dollner, 2 Samdf. {Law) R. 444. Brown v. Frost, 10 Paige R.U1. The foreclosure of the mortgage, and the sale of the mortgaged premises, must take place according to the statute In force at the time of making the mortgage— at least so far as the mh- sta/nUal rights of the mortgagee would otherwise be injuriously alfected. Broson v. Kinzie, 1 zr(«> Hillaiy v. Waller, 12 Ves. 239. Cook v. Soltan, 2 Bim. & Stu. 154 Moore v. Cable, 1 Johns. Ch. Rep. 385. Giles v. Baremore, 6 ibid. 545. Jackson v. Wood, 12 Johns. Rep. 242. Ross v. Iforvell, 1 Wash. 14. Howland v. Shurtleff, 2 Metcdifs Rep. 26. By the statute of 3 and 4 Wm. 4, c. 2"?, explained by statute, 1 Vict. c. 28, mortgagees must bring their suit to recover the land mortgaged within twenty years next after the last payment of any part of the principal money, or interest secured by the mortgage. « Whiting V. White, Cooper's Eq. Rep. 1. Reeks v. Postlethwaite, ibid. 161. Ban-on v. Martin, iUd. 189. Hughes v. Edwards, 9 Wheat. Rep. 489. The Eng- lish rule as to the allowance of parol proof to destroy the effect of the mortgagee's possession for twenty years, was proposed in England to be abolished, by the pro- position of the real property commissioners, that the moiigagee's right,' founded on (1) Proceeding commenced by the mortgagee to foreclose, "will rebut such presumption. Calkins v. Calkins, 8 Ba/rl. S. C. Bep. 805. 202 OF REAL PROPERTY. [Pai-t VI- When a foreclosure takes place by a sale of the mortgaged premises under a power, it is usual, in England, to provide in the mortgage itself for due notice of the sale, so as to afford a fair opportunity of an advantageous sale. If the mortgagee omits to give proper notice, whether directed by the power or not, the sale may be impeached in chancery.=^ In New-York,'' and probably in other states, a sale under a power is made the subject of a statute provision; but as the title under such a sale does not affect any mortgagee or judgment cred- *191 itor whose lien accrued prior to the *sal6, it must be rather a hazardous and unsatisfactory title, and far in- ferior to one under a decree in chancery, founded on a view of the rights (and which bars the rights) of all incumbrancers who are brought before the court. The sale under a power, if regularly and fairly made, according to the direction of the statute, is a final and conclusive bar to the equity of redemp- tion. This has been the policy and language of the law of New-York, from the time of the first introduction of the sta- twenty years' possession, should not be taken away by any unwritten promise, statement or acknowledgment. * Anon. 6 Madd. Ch. Rep. 15. The notice of sale under the foreclosure of moi-t- gages is the subject of special regulation by the New- York statute of May 7, 1844, ch. 346. ■^ It is requisite, in Ifcw-York, to a valid execution of the power, that it be pre- viously registered, or the mortgage containing it, recorded ; and that there be no pending suit at law, nor any judgment for the debt on which an execution has not been returned unsatisfied ; and that notice sufficiently descriptive of the mortgage, and the debt, and the land, be published for twenty-four weeks, successively, once a week, in a newspaper printed in the county where the lands, or a part of the lands, are situated, and the same also affixed twelve weeks prior to the time of the sale, on the outward door of the nearest com-t-house of the county. Every such sale must be in the county where the mortgaged premises, or some part of them, are situated, and at public auction, and distinct farms, tracts or lots, are sold separately. The statute fui-ther provides, that the moiigagee, and his representa- tives, may purchase ; and every such sale ia declared to be equivalent to a foreclo- sure and sale in equity, so far as to bar the equity of redemption of the moi-tgagor, and of all persons claiming under him by title subsequent to the mortgage ; but it is not to affect a mortgagee, or judgment creditor, whose title or lien acci-ued prior to the sale. The affidavit of tlie publication and notice of sale, and circumstances of the sale, are evidence of the sale and foreclosure without any conveyance. The statute contains some further directions necessaiy to be attended to, concerning the contents and disposition of the affidavit of the sale. New- York Revised Statutes, vol. ii. 546, tit 15, and Acts of New-YorTc, April 18tb, 1838, and of May 7th, 1844, ch. 346. Lee. LVIll] OF REAL PROPERTY. 203 tiate regulations on the subject, in March, 1774. >>■ As pro- ceedings under a power are in ^ais, and no day in court is given to the mortgagor to set up any equitable defence, a court of equity will interfere, where payments have been made, and not credited, and stay the proceedings, and regulate the sale as to the extension of notice, or otherwise, as justice may require, and particularly when the rights of the infant heirs of the mortgagor are concerned.'' A sale under a power, as well as under a decree, will bind the infant heirs ; for the in- fant has no day after he comes of age to show cause, as he has where there is the strict technical foreclosure, and as he gene- rally has in the case of decrees.*^ (o.) Of opening iiddings. Upon a decree for a sale, it is usual to insert a direction that the mortgagor deliver up possession to the purchaser ; but whether it be or not part of the decree, a court of *equity has competent power to require, by injunc- *192 tion, and enforce by process of execution, deliveiy of possession ; and the power is founded upon the simple ele- mentary principle, that the power of the court to apply the remedy is co-extensive with its jurisdiction over the subject matter. li The English practice of opening biddings on a sale » Doolittle V. Lewis, 1 Johns. Ch. Rep. 50. It -was formerly held, that though the moi-tgagee omitted to record the power, yet that the sale would be binding upon the mortgagor, and bar his equity of redemption. Wilson v. Troup, 2 Cowen'a Rep. 229. 242. But the new revised statute would seem to be too precise in its injunctions, to admit of such a latitudinai-y construction. It declares, that to entitle the party to give notice, and to make the foreclosure, it shall 6« rejajsiie that the power has been duly registered, and that every sale pursuant to a power as afore- said, and conducted as therein prescribed, shall be a bar, &c. ■> Van Bergen t. Demarest, 1 Johns. Gh. Rep. 31. Nichols t. Wilson, ibid. 115. ' Boothv. Rich, 1 Vern. 295. Mallack v. Galton, 3 P. Wms. 352. MillsT. Den- nis, 3 Johns. Oil. Rep. 36'7. ^ Dove V. Dove, Dickens, 617. 1 Bro. Oh. Gas. Z15. 1 Oox's Gases, 101. S. C. Kershaw v. Thompson, 4 Johns. Gh. Rep. 609. Ludlow v. Lansing, 1 Hopkins, 231. Garretson v. Oole, 1 Harr. & Johns. 370. This power is confinned by the New-York Revised Statutes, vol. ii. 191, sec. 162. In Wood v. Mann, 3 Sumner's Rep. 318, it was held that a court of equity may, by attachment, compel a pur- chaser at a sale by the master, and even his surety for the payment of the purchase money, to complete the purchase by paying in the purchase money. 204 OF REAL PROPERTY. [Part VI. of mortgaged premises, imder a decree, does not prevail to any great extent in this country. =• The object is to aid credit- ors by an increase of the bid ; but Lord Eldon condemned the practice, as injurious to the sale ; and he observed, that a great many estates were thrown away upon the speculation that there would be an opportunity of purchasing afterwards by opening biddings.i> The English method of selling under a decree varies greatly from ours, and is favourable to open- ings of the sale; whereas the sale at- public auction, with us, is ordinarily a valid and binding contract, as soon as the ham- mer is down. The master sells at public auction on due no- tice, and the purchaser becomes entitled to a deed, unless there be fraud, mistake, or some occurrence, or some special circumstances, affording, as in other cases, a proper ground for equitable relief. <= In England, the sale has the attributes of a private sale. The master gives notice, and receives bids, and reports the highest bidder ; and if his report be confirm- ed, the title is examined, and the conveyance prepared ; and the whole proceeding is m fieri, until the final settlement of the title.'J ' Woodhull V. Osborne, 2 Mw. V. Ch. Rep. 614. I' 2 Jacob <5s Walk 348. 'The mortgagor has no right to redeem after the premises have been sold under a decree, though the purchase by the mortgagee be not consummated by con- fii-mation of the report and the deed delivered. Brown v. Ford, 10 Paige, 246. 1. And iu the Bank of the TJ. S. v. Carroll, 4 B. Monroe, 49, the Court of Appeals in Kentucky were so struck with the policy of affording the highest sanction to ju- dicial sales, as to question whether the purchaser's title, he being a purchaser with- out notice, ought not to prevail even against the right to redeem of a junior mort- gagee, who was no party to the suit of foreclosure. On the other hand, in Michi- gan, under a mortgage sale, the mortgagor, or his assigns, may redeem within two years, on paying the purchase money and 10 per cent, interest. So, a subsequent mortgagee may redeem and succeed to the right of the prior mortgage. Johnson V. Johnson, Walker's Mich. Ch. Rep. 332. ^ White v. Wilson, 14 Vesey, 151. Cunningham v. Williams, 2 Anst. Rep. 344. Williamson v. Dale, 3 Johns. Ch. Rep. 290. Lansing v. M'Pherson, ibid. 424. Bland, Chancellor, in Anderson v. Foulke, 2 Harr. & Gill, 355, 356. In that case the chancellor observed, that biddings were never opened, in Maryland, or the sale suspended, merely to let in another and a higher bid. But if, either before or after ratification of the sale, there be any injurious mistake, misrepresentation or fraud, the biddings will be opened, and the property again sent into the market. Gordon V. Sims, 2 M'Cord's Ch. Rep. 158. 165 ; and see the note of the learned reporter in the latter case, page 159, in which the English and American practice on this point are clearly stated, and the inferences justly drawn. The practice in England Lee. LVIIL] OF REAL PROPERTY. 205 *(6.) Of the reconveyance. *193 If a mortgage be satisfied without a sale, and the es- tate is to be restored to the moi'tgagor, it will depend upon circumstances whether a reconveyance be necessary. When the mortgage is made with a condition that the conveyance shall be void on payment at a given day, and the condition be fulfilled, the land returns to the mortgagor, without any recon- veyance, and by the simple operation of the condition. ^ But if there had been a default, then, as the estate had become absolute at law, according to the old doctrine, the language of the books has been, that a reconveyance was necessary on discharging the debt.b The general understanding, and the practice on this subject in this country, have been different, though the cases are not uniform. This contrariety of opinion, which shows itself here and in England, proceeds from the vibration between law and equity views of the subject. A judge at law, as was observed in Oray v. Jenlcs,'^ sometimes deals with the mortgage in its most enlarged and liberal cha- racter, stripped of its technical habiliments ; and a judge in equity sometimes follows out the doctrine of law, and con- templates it with much of its original and ancient strictness. The debt, generally speaking, is considered to' be the principal, and the land only the incident ; and discharging or forgiving the debt, with the delivery of the security, any time before foreclosure, extinguishes the mortgage; and no reconvey- ance is necessary to restore the title to the mortgagor."! is not to open biddings after the confirmation of the master's report of a purchaser, except under special circumstances ; but it is almost a matter of course ■when the report has not been absolutely confirmed. The terms yaiy according to circum- stances. The biddings may be opened even in favour of a person present at the sale ; but the general rule is against it, and the fact furnishes a very strong objec- tion to the interference of the court. In Tennessee, the courts of chancery do not open biddings in a sale, under a decree of foreclosure, after confirmation of the master's report, except in cases which would justify setting the sale aside altogether. Henderson v. Lowry, 5 Yerger, 240. * Fveston on Convey, vol. ii. 200, 201. ^ Lord Hardwicke, in Hamson v. Owen, 1 Atk. 520. 1 Sch. & Lef. 176, 177. Judge Trowhridge's Essay on Mortgages, 8 Mass. Rep. 557, 561. 563, appendix. ' 3 Mason's Rep. 521. ^ In the case of the Farmers' Fire Ins. and Loan Co. v. Edwai'ds, 26 Wendell, 541, it "was decided in the K Y. Court of Errors, that a tender of a debt secured by 206 OF REAL PROPERTY. [Part VI. *194: *So, an assignment of the debt by deed, by writing simply, or by parol, is said to draw the land after it as a consequence, and as being appurtenant to the debt. (1) The one is regarded as the principal, and the other the accessory, and omne prvncvpale trahit ad se aooessorium. The assign- ment of the interest of the mortgagee in the land, without an assignment of the debt, is considered to be without meaning or use. This is the general language of the courts of law, as well as of the courts of equity ; and the common sense of par- ties, the spirit of the mortgage contract, and the reason and policy of the thing, would seem to be with doctrine.'' In Massachusetts and Maine, the technical rules of the common law are more strictly maintained. The doctrine of Lord Mansfield, in Martin v. MowUn, is not regarded as correct ; and, upon the construction of their statute law, the estate of the mortgagee cannot be assigned except by deed ; though a bond may be assigned, and pass without deed, and even by delivery. Upon the discharge of the mortgage debt, after a default, a reconveyance is deemed requisite to restore the fee mortgage after the day stipulated for payment, removed the lien of the mortgage, as a tender at the day, provided it be made before foreclosure. The moi'tgagee, if in possession, may, after the tender, be ousted by the moi-tgagor. * Lord Hardwicke, in Richards v. Syms, 3 Eq. Cas. Ahr. BlY. Barnard's Ch. Rep. 90. S. C. Lord Mansfield, in Martin v. Mowlin, 2 Burr. 9^8, 979. Johnson T. Hart, 3 Johns. Gas. 322. 1 Johns. Rep. 580. S. C. Jackson v. WiUard, 4 ihid. 41. Kenyan V. Mersereau, 11 «6i(Z. 534. Jackson v. Davis, 18 j5W. 7. Jackson v. Brown, 19 ibid. 325. Wilson v. Troup, 2 Cowen's Rep. 195. Jackson v. Blodget, 6 ibid. 202. Wentz v. Dehaven, 1 Berg. > Vol. i. "728, sec. 10, 11. Vol. IV. 14 210 OF REAL PROPERTY. [Part VI. otherwise, of a precedent estate, created at the same time^ Mr. Cornish, after a careful analysis of Lord Coke's definition, substitutes his own. A remainder, he says, is " an estate in lands, hereditaments, or chattels real, limited to one who may take a new estate therein, on the natural determination of a particular estate in the same subject matter, created either in fact, or in contemplation of law, together with such particular estate, and forming, to certain purposes, but one estate there- with."'^ A remainder may consist of the whole remnant of the estate ; as in the case of a lease to A. for years, remainder to B. in fee ; or it may consist of a part only of the residuary estate, and there may be a revei'sion beyond it left vested in the grantor, as in the case of a grant to A. for years, remain- der to B. for life ; or there may be divers remainders over, exhausting the whole residuum of the estate, as in the case of a gi'ant to A. for years, remainder to B. for life, remainder to C. in tail, remainder to D. in fee. The various interests into which an estate may be thus subdivided, make, for many purposes, but one estate, being diiFerent parts or portions of the same entire inheritance.'' Though a remainder, in its original simplicity, would appear to be very easy, safe and practical, yet the doctrine of remainders, when the collateral refinements, and complex settlements which have, in *199 the *course of time, grown out of it, ai-e considered, will be found to surpass all the modifications of pro- perty in the difficulties which attend the study and the prac- tice of it. The subdivision of the interest of an estate, to be enjoyed partively, and in succession, is a very natural and * The New-York statutes give a broad coustruction to the term remainder, for they declare, that where a fuhire estate is dependent on a precedent estate, it is a remainder, and may be created and transfen'ed as such. 1 N'ew- York Revised Sta- tutes, 12S, sec. 11. ^ Cornish's Essay on the Doctrine of Remainders, 182'/, p. 96. Mr. Cornish pronounces his own definition to be accurate ; but he is not remarkably happy, either in brevity, or neatness, or cleai-ness of espi-ession. He ought to be accurate adunguem, for he has occupied upwardsof seventy pages in a laboured analysis to produce his definition ; and some parts of his inquiry involve critical discussions upon the most abstruse, subtle and artificial distinctions in the law. They could not be made intelligible without giving more space to them than these Lectures will allow. ° 2 Blachs. Com.. 164. Lee. LIX.] OP REAL PROPERTY. 211 otvious contrivance, and must have had a place in early ci- vilization." If the whole fee be granted, there cannot, as a matter of course, he any remainder.'' So, if an estate be granted to A. and his heirs, till C. returns from Rome, and then to the use of B. in fee, the limitation to B. cannot be good as a remain- der, though it may enure as a shifting use or executory limi- tation ; for the entire fee passed to A. as a base or qualified fee, in which the grantor retained only a possibility of rever- ter.<= But if the estate had been granted to A. withont words of inheritance, until C. returned from Kome, he would have taken only a freehold estate, and the residue of the estate, upon the return of C, if limited to the use of B., would be a remainder. It would equally have been a remainder, if the estate had been limited to A. and the *heirs of *200 his body, until the return of C. from Home, and then to the use of B. in fee ; for an estate tail, not being the whole inheritance like a qualified fee, but only a portion of the en- tire estate, the remnant to B. would be a remainder. There can be no remainder limited after an estate of inheritance, except it be after an estate tail. There may be a future use, or executory devise, but it will not be a remainder.^ In a devise, a subsequent interest may frequently be supported as a remainder, notwithstanding a limitation to the heirs of the prior devisee, provided the generality of the word heirs be restrained to issue, as a devise to A. and his heirs, and if he dies without issue, remainder over.« If the prior fee be con- " Mr. Cornish has detected, in some ancient authorities, the evidence that partial interests, carved out of the inheritance, with a limitation of remainders over, ex- isted among the Anglo-Saxons. Essay on Remainders, 3. "i This is a clear principle of the common law ; but the New- York Revised Statutes, vol. i. 723, sec. 16, have changed the whole doctrine on this point, and allowed a con- tingent remainder in fee to be created on a prior remainder in fee, and to take effect in the event that the persons to whom the first remainder is limited shall die under the age of twenty-one years, or upon any other contingency, by which the estate of such persons may be determined before they attain their full age. So, a fee may be limited upon a fee, upon a contingency which, if it should occur, must hap- pen within the period prescribed by the article, that is, two Uvea in being at the creation of the estate. Ibid. sec. 24. ' 10 Co. 97. 1 Sq. Cas. Abr. 186, E. 1. Vide supra, p. 10, note b. ■■ 2 Inst. 336. Fearne on Remainders, 7, 8. « Doe V. Ellis, 9 East's Rep. 382. Tenny v. Agar, 12 ibid. 253. Dansey y. GrifSth, 4 Maule & Selw. 61 . The series of cases on this subject, as Mr. Humphreys 212 OF EEAL PROPERTY. [Part VL tingent, a remainder may be created, to vest in the event of the first estate never taking efifect, though it would not be good as a remainder, if it was to succeed^ instead of being collateral to the contingent fee. Thus, a limitation to A. for life, remainder to his issue in fee, and in default of such issue remainder to B., the remainder to B. is good as being collate- ral to the contingent fee in the issue. It is not a fee mounted upon a fee, but it is a contingent remainder with a double aspect, or, as Mr. Douglas says, with less quaintness, on a double contingency.^' But if the remainder over to B. *201 *had been merely in the event of such dying before twenty-one, it would have been good only as a shifting use or executory devise, for it would have rested on an event which rescinds a prior vested fee.!" There is likewise a double contingency when estates are limited over in the alternative, or in succession. If the previous estate takes effect, the sub- sequent limitation awaits its determination, and then vests. But if the first estate never vests by the happening of the con- tingency, then the subsequent limitation vests at the time when the first ought to have vested. <^ The New- YorJc Revised Statutes^ have provided for this case of limitations in the alternative, by declaring, that two or more future estates may be created to take effect in the alternative, so that if the first in order shall fail to rest, the next in succession shall be sub- stituted for it, and take effect accordingly. Cross-remainders are another qualification of these expect- ant estates, and they may be raised expressly by deed, and by implication in a devise. If a devise be of one lot of land to A., and of another lot to B., in fee, and if either dies with- out issue, the survivor to take, and if both die without issue, then to C. in fee, A. and B. have cross-remainders over by ex- expresses it, in liis Observations on ReaZ Property, has been " obscurely shading down from a fee-simple to a fee-taiL" The New-York Revised Statutes, (toL i. T22, sec. 3, 4,) have provided for the preservation of valid remainders, limited upon everj estate, ■which, imder the English law, would be adjudged an estate tail. They are declared valid as conditional limitations upon a fee, and vest in possession on the death of the first taker, without issue living at the time of his death. ■ Luddington v. Kine, 1 Lord Raym. 203. Dowj. Rep. 505, note. >> Cornish on Remainders, 27 — 29. • Damg. sapra. i Vol. i. 274, see. 25. Lee. LIX.] OF REAL PROPERTY. 213 press terms ; and on the failure of either, the other, or his issue, takes, and the remainder to C. is postponed ; but if the devise had been to A. and B. of lots to each, and remainder over on the death of both of them, the cross-remainders to them would be implied. ^^ So, if different parcels of land are conveyed to different persons by deed, and by the limita- tion they are to have the parcel of each other when their respective interests shall determine, they take by cross-re- mainders ; and this complex doctrine of cross-remainders, in the mode in which the parties become entitled, and in their proportions, though not in their interests, has a great analogy, as Mr. *Preston observes, to the order of sue- *202 cession between coparceners.'' The courts lean in favour of cross-remainders, in order to effectuate the inten- tion. It is a method to bring the estate together. II. Of vested remainders. Kemainders are of two sorts, vested and contingent. An estate is vested when there is an immediate right of present enjoyment, or a present fixed right of future enjoyment. It gives a legal or equitable seisin." The definition of a vested remainder in the New- York Revised Statutes,^ appears to be accurately and fully expressed. It is " when there is a per- son in being who would have an immediate right to the pos- session of the lands, upon the ceasing of the intermediate or precedent estate." A grant of an estate to A. for life, with the remainder in fee to B., or to A. for life, and after his death to B. in fee, is a grant of a fixed right of immediate enjoy- ment in A., and a fixed right of future enjoyment in B. So, if the grant was only to A. for life, or years, the right under it would be vested in A. for the term, with a vested reversion • Chadock v. Cowley, Cro. Jac.'6^5. 2 Blacks. Oom. 381. Baldrick v. "White, 2 Bailey's S. C. Rep. 442. '' Preston on Estates, vol. i. 94. 98. " Ibid. vol. i. 64. Mr. Preston says, there may he an executory interest, which is neither vested nor contingent, and yet carries with it a certain and fixed right of future enjoyment ; and he instances the case of a devise of a freehold, to commence on the death of B. This, he says, is a certain interest, which is not executed im- mediately, so as to he vested ; but this is excessive refinement. Is it not a vested right of future enjoyment? i Vol. i. '?23, sec. 13. 214 OF REAL PROPERTY. [Part VI. in the grantor. Eeversions, and all such fatnre uses and ex- ecutory devises as do not depend upon any uncertain event or period, are vested interests.* A vested remainder is a fixed interest, to take effect in possession after a particular estate is spent. If it be uncertain whether a use or estate limited in futuro shall ever vest, that use or estate is said to be in con- tingency.'' But though it may be uncertain whether a re- mainder will ever take effect in possession, it will *203 nevertheless *be a vested remainder if the interest be fixed. The law favours vested estates, and no remain- der will be construed to be contingent, which may, consist- ently with the intention, be deemed vested.^ A grant to A. for life, remainder to B., and the heirs of his body, is a vested remainder ; and yet it is uncertain whether B. may not die without heirs of his body, before the death of A., and so the remainder never take effect in possession. Every remainder- man may die, and without issue, before the death of the ten- ant for life. It is the present capacity of taking effect in pos- session, if the possession were to become vacant, and not the certainty that the possession will become vacant before the estate limited in remainder determines, that distinguishes a vested from a contingent remainder. "^ When the event on * Fearii^s Int. to his Treatise on Jiemainders. *■ 10 Co. 85, a. " In Moore t. Lyons, 25 Wendell, 119, it Tras held in the Court of Errors of Xew- Tork, after a Tery able and learned discussion, tliat in a devise of real estate to A. ^forlife, and after his death to three others^or to the survivors or survivor of them, their heirs andas»ignsfor ever, the remainder-men took a vested interest at the death of the testator. Survivorship is referred to the period of the death of the testator, if there be no special intent manifest to the contrary, so as not to cut oflf the heirs of the remainder-man who should happen to die before the tenant for life. They are vested, and not contingent remainders. This is now become the settled technical construction of the language and the established English rule of construction. Doe ex dem. "Waring v. Prigg, 8 Barn. & Cress. 2S1, and the decision of Sh John Leach, in Cripps v. Wolcott, i Madd. Rep. 11, is ovemiled. King v. King, 1 Watts d- Serg. Rep. 205. S. P. It is the uncertainty of the rigjit of enjoyment, and not the uncertainty of its actual enjoyment, which renders a remainder contingent. The present capacity of taking effect in possession, if the possession were to become va- cant, distinguishes a vested from a contingent remainder, and not the certainty that the possession will ever become vacant while the remainder continues. Vice-chan- cellor, 2 Sandford's Ch.Rep. 533, Williamson v. Field. ^ Parkhnrst v. Smith, Willeil Rep. 337. Fearne on Rem. 211, 278. Vander Heyden v. Crandall, 2 Dcnio's Rep. 18. Mr. Cornish, however, observes very justly. Lee. LIX.] OF REAL PROPERTY. 215 which the preceding estate is limited miist happen, and when it also may happen before the expiration of the estate limited in remainder, that remainder is vested ; as in the case of a lease to A. for life, remainder to B. during the life of A., the preceding estate determines on an event which must happen ; and it may determine by forfeiture or surrender before the expiration of A.'s life, and the remainder is, therefore, vested." A remainder, limited upon an estate tail, is held to be vested ; though it must be uncertain whether it will ever take place.'' The lines of *distinction between vested and *204r contingent remainders are so nicely drawn, that they are sometimes difficult to be traced ; and, in some instances, a vested remainder would, seem to possess the essential quali- ties of a contingent estate. The struggle with the courts has been for that construction which tends to support the remain- der by giving it a vested character ; for if the remainder be contingent, it is in the power of the particular tenant to de- feat it by a fine or feoffment.'^ The courts have been subtle and scrutinizing in their disci'imiilations between vested and contingent remainders. The stability of title has depended very much on the distinction ; and the judges observed, in the case of Parhhurst v. Smith,^ that if they were to adopt the that there are cases in which a remainder is vested, without a present capacity for taking effect in possession, if the particular estate were to determine immediately. Essay on Rem. 102. > Fearne, 279 — 280. i" Badger v. Lloyd, 1 Salk. 232. 1 Lord Raym. 523. S. C. Ives v. Legge, 3 Term Rep. 488, note. Thus, in a case of a devise to A. and the heirs of his body, and in default thereof to B. ; or in the case of a devise to B. and after his death, without male issue, to C. ; and after his death, without male issue, to D. ; and if D. die without male issue, none of these prior devisees being living, to E. in fee ; here the remainder to B., in the one case, and to E. in the other, is vested. There was a like decision in Luddington v. Kine, 1 Lord Raym. 203, though the judges were not unanimous on the question, whether the remainder was vested or contingent. A vested remainder is an interest, said Chancellor Walworth, in Hawley & King v. James, [infra, p. 230.) which cannot be defeated by third persons, or contingent events, or by failure of a condition precedent, if the remahider-man lives, and the estate limited to him by way of remainder continues, until all the precedent estates are determined. (1) ' Dampier, J., 3 Maule & Selw. 32. * Willes' Rep. 337. (1) Devise to A. and her heirs, remainder to B. was held to give B. a contingent remain- der, which he could not give to a stranger during the life of A. Smith v. Pendol, 19 Conn. K. lOT. 216 OF REAL PROPERTY. [Part VL definition of a contingent remainder contended for upon the argument, they would overturn all the settlements that ever were made. A limitation, after a power of appointment, as to the use of A. for life, remainder to such use as A. shall appoint, and in default of appointment, remainder to B., is a vested remain- der, though liable to he divested by the execution of the power. =1 The better opinion also is, that if there be a devise to trustees and their heirs, during the minority of a beneficial devisee, and then to him, or upon trust to convey to him, it conveys a vested remainder in fee, and takes effect in posses- sion when the devisee attains twenty-one. The general rule is, tliat a trust estate is not to contimie beyond the period re- quired by the purposes of the trust ; and notwithstanding the devise is to trustees and their heirs, they take only a chattel interest, for the trust, in such a case, does not require an es- tate of a higher quality. If the devisee dies before the age of twenty-one, the estate descends to his heirs as a vested in- heritance. The Master of the EoUs said, that the *205 trustees in such a case had an *estate for so many years as the minority of the devisee might last.'' Vested remainders are actual estatesj and may be conveyed by any of the conveyances operating by force of the statute of uses. "Where estates tail exist, they may be destroyed by a common recovery suffered by the tenant in tail ; for that de- stroys every thing, as well remainders and reversions, and all ulterior limitations, whether by shifting use or executory de- vise. But if a particular tenant for life or years, on whose es- tate a vested remainder depends, makes a tortious conveyance, which merely works a forfeiture of his particular estate, and > Cunningham T. Moody, 1 Ves. 174. Doe v. Martin, 4 Term Hep. 39. If a mere power be given to appoint a remainder among a number of ascertained per- sons, with a limitation over to the whole number of persons in default of appoint- ment, the remainder is vested, subject to be divested by the execution of the power. Sugdenon Powers, 151, 5th London edit. ^ Doe V. Lea, 3 Term Rep. il. Stanley v Stanley, 16 Ves. 491. Doe v. Nicholls, 1 Barnw, ck Cress. 336. Mr. Cornish, in his Essay on Heinainders, 105. lOt, con- siders this principle as a glaring anomaly in the law, holding an estate with words of inheritance, a mere chattel devolvable upon executors; and that if it was to be applied to conveyances instead of wills, it would extirpate the most rooted princi- ples of the system of property. Lee LIX.] OF REAL PROPERTY. 217 does not ransack the whole estate, the nest remainder-man, whose estate was disturbed and displaced, may take advantage of the forfeiture, and enter.^ "Where a remainder is limited to the use of several persons, who do not all become capable at the same time, as a devise to A. for life, remainder to his children ; the children living at the death of the testator take vested remainders, subject to be disturbed by after-born children. The remainder vests in the persons first becoming capable ; and the estate opens and becomes divested in quantity by the birth of subsequent chil- dren, who are let in to take vested proportions of the estate. i" So, a devise to A. in fee, if^ or when he attains the age of twenty-one years, becomes a *vested remainder, *206 provided the will contained an intermediate disposition of the estate, or of the rents and profits, during the minority of A., or if it directed the estate to go over in the event of A. dying under age." But if there be no intermediate disposi- tion of the estate, the estate so devised is not vested, but be- comes a contingent or executory devise."^ in. Of contingent remainders. A contingent remainder is limited so as to depend on an • Liti. sec. 416. Co. Litt. 252, a. •> Fearne, 349 — 396. Doe v. Pen-yn, 3 Term Rep. 484. Lawrence v. ] 1 Eden's Rep. 453. Doe v. Provoost, 4 /oAns. iJep. 61. Right v. Creber, 5 Barnw . & Cresn. 866. Annable y. Patch, 3 Pick. Rep. 360. A devise to B. for life, remain- der to his children ; but if he dies without leaving children, remainder over. Both the remainders ai-e contingent, but if B. afterwards marries, and has a child, the re- mainder becomes vested in that child, subject to open and let in after-bora children, and the remainders over are gone for ever. The remainder becomes a vested remain- der in fee in the child as soon as it is bora, and it does not wait for the parent's death ; and if the child dies in the lifetime of the parent, the vested estate in re- mainder descends to its heirs. Doe v. Perryn, 3 Term Rep. 484, and see particu- larly the opinion of Mr. Justice BuUer in that case. Right v. Creber, .5 Barnw. > The Mayor of London v. Alford, Cro. C. 576. 2 Co. 51. Cholmley's case. This difficulty is provided for by the New-York Revised Statutes, vol. i. 724, sec. 26, which declare, that no future estate, otherwise valid, should be void, on the gi-ound of the probability or improbability of the contingency on which it is limited to take effect. Lee. LIX.] OF EEAL PROPERTY. 219 contingent determination of the estate in B., by the return of C. from Eome.^ (2.) The second sort is where the contingency, on which the remainder is to take effect, is independent of the determina- tion of the preceding estate, and must precede the remainder. As if a lease be to A. for life, remainder to B. for life, and if B. die before A., remainder to C. for life; the event of B. dying before A. does not affect the determination of the pre- ceding estate, but is a dubious event which must precede, in order to give effect to the remainder in C.'' (3.) A third kind is where the condition upon which the remainder is limited is certain in event, but the determina- tion of the pai-ticular estate may happen before it. Thus, if a grant be made to A. for life, and after the death of B., to C. in fee ; here, if the death of B. does not happen until after the death of A., the particular estate is determined before the re- mainder is vested, and it fails from the want of a particular estate to support it.i^ (4.) The fourth class of contingent remainders is where the person to whom the remainder is limited is not ascertained, or not in being. As in the case of a limitation to two persons for life, remainder to the survivor of them ; or in the case of a lease to A. for life, remainder to the right heirs *of B. then living. B. cannot have heirs while living, *208 and if he should not die until after A., the remainder is gone, because the particular estate failed before the remainder could vest."! * 3 Co. 20, a. b. Lovie's case, 10 Go. 85, a. i" 3 Co. 20, a. Co. Zitt. 318, a. " 3 Co. 20, a. ■• Cro. 0. 102. 3 Co. 20, u. Fearne, 3 — 6. The examples -which are here cited by Mr. Feame to support and illustrate this classification of contingent re- mainders, are mostly taken from Boraston's case, 3 Co. 19. As Mr. Fearne's treatise has attained the authority of a text-book on this abstruse branch of the law, I have followed, though without entirely approving of his arrangement. The more comprehensive division by Sir- "William Blackstone, has the advantage of being less complex and more simple. The definition in the New- York Revised Statutes, vol. i. '723, sec. 13, is brief and precise. A remainder, says the statute, is contingent, whilst the person to whom, or the event upon which it is limited to take effect, remains uncertain. Contingent remainders are divided by Sir William BLickstone into two kinds, viz., remainders limited to take effect either to a dubious 220 OF REAL PROPERTY. [Part TL *209 *There is a distinction whicli operates by way of ex- ception to the third class of contingent remainders. Thus, a limitation for a long term of years, as, for instance, to A. for eighty years, if B. should live so long, with the re- mainder over, after the death of B., to C. in fee, gives a vested remainder to C, notwithstanding it is limited to take effect on the death of A., which possibly may not happen until after the expiration of the preceding estate for eighty years. The possibility that a life in being will endure thereafter for that period, is so exceedingly small, that it does not amount to a degree of uncertainty sufficient to constitute a contingent re- mainder. If, however, the limitation had been for a term of years so short, say twenty-one years, as to leave a common possibility that the life on which it is determinable may ex- ceed it, then the remainder would be contingent, and there and uncertain person, or upon a dubious and uncertain event The three first of Mr. Fearne's remainders are all resolvable into the contingency of a dubious and uncer- tain event, and it is only the last that is limited to a dubious and uncertain person. Lord Oh. J. Willes, in the opinion which he gave before the House of Lords, on behalf of all the judges, in the case of Parkhurst v. Smith, ( Willes' Eep. 327,) declared, that there were but two sorts of contingent remainders: (1.) Where the person to whom the remainder was limited was not in esse. (2.) Where the com- mencement of the remainder depended on some matter collateral to the deter- mination of the particular estate. He put, as an instance of the second kind, the case of a limitation to A. for life, remainder to B. after the death of C, or when D. returns from Rome ; and Mr. Feame'a three fii'st species of contingent remainders are included imder the second class here stated. It must be admitted, in the words of Ch. J. Willes, that " the notion of a contingent remainder is a matter of a good deal of nicety." Professor Woddeson, in his Vinerian Lectures, (vol. i. 191,) though he had the classification of Mr. Fearne before him, followed that of his il- lusti-ious predecessor. Mi-. Cornish, in hia recent work, severely criticises Fearne's classification of contingent remainders, as not being tenable ; though he admits that it imparted a beautiful and scientific aiTangement to his essay. Three of Mr. Fearne's sorts of remainders are.avowedly identical. Cruise, on the other hand, in his Digest, has closely copied the aiTangement of Feame. On this vexatious subject of classifications, I am disposed to concur in the criticisms of Mr. Cornish ; but in recurring to the chapter on expectant estates, in the commentaries of Sir William Blackstone, what a relief to the patience and taste of the reader I The doctrine of remainders, whether vested or contingent, is there most ably digested, and reduced to a few simple elementary principles. Its merits have never been duly acknow- ledged by subsequent writers on the subject. It far surpasses them all, if we take into one combined view, its perspicuity, simplicity, comprehension, compactness, neatness, accuracy and admirable precision. I have read the chapter frequently, but never without a mixtm-e of delight and despair. LecLIX.] OF REAL PEOPEETT. 221 must be a present vested freehold estate to support it, and prevent the limitation over from being void as a freehold to commence infuhiro.^ Exceptions exist also to the generality of the rule Avhich governs the fourth class of contingent remainders. Thus, if the ancestor takes an estate of freehold, and an immediate remainder is limited thereon, in the same instrument, to his heirs in fee, or in tail, the remainder is not contingent, or in abeyance, but is immediately executed in possession in the ancestor, and he becomes seised in fee, or in *tail. *210 So, if some intermediate estate for life, or in tail, be interposed between the estate of freehold in A. and the limi- tation to his heirs, still the remainder to his heirs vests in the - ancestor, and does not remain in contingency or abeyance. If there be created an estate for life to A., remainder to the heirs of his body, this is not a contingent remainder to the heirs of the body of A., but an immediate estate tail in A. ; or if there be an estate for life to A., remainder to E. for life, remainder to the right heirs of A., the remainder in fee is here vested in A., and after the death of A., and the termi-' nation of the life estate in B., the heirs of A. take by descent as heirs, and not by purchase.'' The possibility that the free- hold in A. may determine in his lifetime, does not keep the subsequent limitation to his heirs from attaching in him ; and it is a general rule, that when the ancestor takes an estate of freehold, and there is in the same conveyance an unconditional limitation to his heirs in fee, or in tail, either immediately, with- out the intervention of any estate of freehold between his free- hold and the subsequent limitation to his heirs, or mediately with the inteqDosition of some such intervening estate, the subsequent limitation vests immediately in the ancestor, and becomes, as the case may be, either an estate of inheritance in possession, or a vested remainder." The rule does not operate so as ab- solutely to merge the particular estate of freehold, where the limitations intervening between the preceding freehold and the subsequent limitation to the heirs, are contingent, because ■ Napper v. Sanders, Hutton, 118. Opinion of Lord Oh. J. Hale, in 'Weall v. Lower, Pollexfen, 61. Fearne on Remainders, lY — 23. i" SheUey's case, 1 Co. 104. 2 Eol Abr. ill. ■^ Fearne on Remainders, 32. 222 OF REAL PROPERTT. [Pai-t VI. that would destroy such intervening limitations. The two limitations are united, and executed in the ancestor, only until such time as the intervening limitations become vested, and they then open and become separate, in order to admit such limitations as they arise.* Eut if the estate limited to the ancestor be merely an equitable, or trust estate, *211 and the subsequent ^limitation to his heirs carries the legal estate, the two estates will not incorporate into an estate of inheritance in the ancestor, as would have been the case under the rule in Shelley's case, if they had been of one quality, that is, both legal and both equitable estates ; and the limitation to the heirs wiU operate as a contingent remainder.*) The freehold in the ancestor, and the limitation to his heirs, must be by the same deed or instrument, or they will not » Fearne on Remainders, 36. ' Tippia V. Cosin, Carth. 272. 4 Mod. Rep. 380. S. 0. Jones v. Lord Say and Seal, 8 Viner, 262, pi. 19. Shapland v. Smith, 1 Bro. 75. SUvester v. Wilson, 2 Term Rep. Hi. Mr. Pearne on Remainders, 67, supposes tLe male to be the same if the case was reversed, and the ancestor had the legal estate, and the limitation over to his heirs was an equitable estate as in a devise to A. for life, and after hia death to the use of trustees, in ti-ust for the heirs of his body. If such a devise in trust ■would not be a trust or use executed by the statute of uses, or entitled to the same consti'uction as a legal estate, as I should think that it ought, under the doctrine in Wright v. Peai'son, 1 Eden, 119, yet the Kew-YorTc Revised Statutes would operate to destroy such a trust ; for it is declared, (vol. i. 727, 728, sec. 47. 49,) that every disposition of lands by deed or devise, shall be di- rectly to the person in whom the right to the possession and profits shall be intended to be vested, and not to any other to the use of, or in trust for, such person ; and if made to one or more persons, to the use of, or in tnist for another, no estate or inter- est, legal or equitable, shall vest in the trustee. The legal estate is attached to the beneficial interest. There would be no difficulty, therefore, under that statute, of the union of the two estates in the case stated by Jlr. Feai-ne, for they would both be legal estates ; and upon the doctrine of the English law, the devisee for life would take an estate tail. But another insuperable obstacle to that conclusion oc- curs under the New- York Revised Statutes, which have desti-oy ed the iiile in Shel- ley's case, root and branch. It is declared, (iV-CTo- Jor J Revised Statutes, vol. L 726, sec. 28,) that where a remainder shall be limited to the heirs, or heirs of the body, of a person to whom a life estate in the same premises shall be given, the persona who, on the tennination of the life estate, shall be the heirs, or heii-a of the body, of such tenant for life, shall be entitled to take as purchasers, by virtue of the re- mainder 60 limited to them. The limitation, then, in the case stated by Mr. Fearae, instead of being an estate in tail, settles down into a contingent remainder. This is arriving, diverse iniititu, to the same result with the English theoiy. The extent and consequences of this alteration in the doctrine of real estate.', we shall have occasion to consider hereafter. Lee. LIX.] OF REAL PROPERTY. 223 consolidate in the ancestor. If he acquires the freehold by one deed, and the limitation to his heirs be by another, the limitation will continue, as it originally was, a contingent re- mainder.^ But if the estate be limited to A. for life by one deed, and afterwards, in his lifetime, to the heirs of his body, under the execution of a power of appointment contained in the same deed, the limitations unite according to the general rule ; and on this principle, that a limitation under a power contained in a conveyance to uses, operates as a use created by and arising under, the conveyance itself. It is a branch of one and the same settlement.'^ This arises from the restro- spective relation which appointments bear to the instrument containing the power.": Another exception to the fourth class of contingent remain- ders, is where there is a limitation by a special designation by will to the heirs of a person in esse, as to the heirs of the body of A. now living. The limitation is deemed to be vest- ed in the heirs so designated by purchase, and, consequently, there is no contingent remainder in the case. Heirs are con- strued here to be words of purchase, and not of limitation, in order to carry into effect the manifest intention of the testa- tor, which, in this instance, controls the common law maxim, that nemo est hceres viventisA *There is also *213 a class of cases under this branch of the law of re- • Moore v. Parker, 1 Lord Raym. 37, where Lord Ch. J. Holt traces back the distinction to 29 Edw. IIL Doe v. Fonnereau, Doug. Rep. 487. ^ Butler's note, 261, to Co Lilt. 299. b. The observations of Mr. Fearne on this point, are with his usual acuteness. Fearne on Remainders, 85. " Mr. Preston on Abstracts of Title, vol. i. 115, speaks too generally when he says, that all estates, aiising from the execution of powers, operate by way of exe- cutory devise, or shifting use. There is no doubt that a remainder may arise under the execution of a power. Cornish on Remainders, 45. ^ Burchet V. Durdant, 2 Vent. -311. James v. Richardson, 2 Jones' Rep. 99. 2 Lev. 232. S. C. Goodright v. Wliite, 2 Blacks. Rep. 1010. Lord Coke says, {Co. Litt. 24, b,) that if lands be given to A. and the heirs female of his body, and he dies leaving a son and daughter, the daughter shall inherit. But if A. hath a son and daughter, and a lease for life be made, remainder to the heirs female of the body of A., the heir female talces nothing : for she must be both heir and heir fe- male to take by pm-chase, and her brother, and not she, is heir. The distinction turns on the difference between the operation of words of limitation, and words of purchase. In the first case, the daughter takes by descent, and in the second she takes by purchase, and must answer to the whole description, of being both heir 224 OF KEAL PROPERTY. [Part VI. mainder, which relate to the condition annexed to a preced- ing estate, and which give rise to the question whether it be not a coniition precedeni tending to give effect to the ulterior limitations. Mr. Fearne* distinguishes such cases by three classes ; JiJ'st, where there are limitations after a preceding estate, which is made to depend on a contingency that never takes effect ; and the decisions show, that in order to support the testator's intention, the contingency is deemed to affect only the estate to which it is annexed, without extend- *214 ing to, or running over, the whole ^ulterior train of limitations.'' Secondly, limitations over upon a condi- tional contingent determination of a preceding estate where such preceding estate never takes effect. Here there is no ap- parent distinction between the preceding estate and those which follow it, and, consequently, the contingency will extend to, and connect itself with, all the subsequent limitations, and de- stroy them, as contingent remainders, depending on a contin- gency which never happens.<= Thirdly, limitations over upon the determination of a preceding estate by a contingency, which, though such preceding estate takes effect, never hap- pens. In this case the subsequent limitations will take place.* anA. female. Mr. Hargrave, in along and learned note, (note 145,) undertakes to vindicate the reasonableness and solidity of this distinction of Lord Coke, against the severity of modern criticism. Mr. Fearne, (p. 1*1*1,) refers with gi'eat approba- tion to this note of Mr. Hargrave ; but I notice it only as one sti'ong illustration of the fact, that the English law of real property has, in the lapse of ages, become incumbered with much technical and abstruse refinement, which destroys its sim- plicity and good sense, and renders it almost impossible for ordinaiy minds to ob- tain the masteiy of the science. Lord Chancellor Cowpei's scorn of this distinc- tion is veiy apparent in his powerful and spu-ited opinion in Brown v. Barkham, {Free, in Oh. 461,) where he says, that " it has no foundation in natm'al reason, but is raised and supported purely by the artificial reasoning of lawyers." Lord Hard- wicke, also, when the same case was brought before him, on a biU of review, declared himself "fully convinced of the uni'easonableness of the rule," though he bowed to the authority of it ' Essay on Remainders, 300. ^ Napper V. Sanders, ^Jittom, 119. Tracy v. Lethieulier, 3 ^ii. iJep. "ZM. Amb. 204. S. C. Hoi-ton v. Whitaker, 1 Term Rep. 346. " Davis V. Norton, 2 P. Wms. 390. Doe v. Shippard, Doug. Rep. 15. <> Scatterwood V. Edge, 1 &ft. iJep. 229. Avelyn v. Ward, 1 Fes. 422. Lord Hardwicke decided, in Tracy v. Lethieulier in favour of a vested remainder after a conveyance of a conditional or determinable fee. This abstruse point is learnedly discussed in the American Jurist for January, 1843. To those who wish to pursue Lee. LIX.] OF REAL PROPERTY. 225 ly. Of the rule in Shelley^s case. The rule in Shelley's case has been already alluded to, but it occupies so prominent a place in the history of the law of real property, that it ought not to be passed over without more particular attention. In Shelley^s case,^ the rule was stated, on the authority of several cases in the Tear Books, to be, " that when the ancestor, by any gift or conveyance, taketh an estate of freehold, and in the same *gift or *215 conveyance an estate is limited, either mediately or immediately, to his heirs, in fee or in tail, the hews are words of limitation of the estate, and not words of purchase." Mr. Preston, in his elaborate essay on the rule,^' gives us, among several definitions, one of his own, which appears to be full and accurate. " "When a person takes an estate of freehold, legally or equitably, under a deed, will or other writing, and in the same instrument there is a limitation by way of re- mainder, either with or without the interposition of another estate, 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."<= The word heirs^ or heirs of the iody, create a remainder in fee, or in tail, which the law, to prevent an abeyance, vests in the ancestor, who is tenant for life, and by the conjunction of the two estates he becomes tenant in fee or in tail ; and whether the ancestor takes the freehold by express limitation, or by resulting use, or by implication of law ; in either case the sub- sequent remainder to his heirs unites with, and is executed on his estate for life. Thus, where A. was seised in fee, and into greater detail these abstruse distinctions, I refer to Mr. Feame's analysis of the cases which declai'e and enforce them, in order to carry into effect the intention of the testator. Fearne on Bern. 300 — 317. It would certainly be incompatible with the general purpose of these essays, to be rating in the ashes of antiquated cases, and critically shifting diy facts and circumstances ai^ising on wills and settlements, merely to anive at some technical reasoning, adapted to promote the testator's or the settler's views. As far as it is necessaiy, on this subject, it is happily done to our hand, by the acute investigations of Mr. Fearne himself. » 1 Co. 104. ^ Preston on Estates, vol i. 263 — tl9. " I have ventured to abridge the definition in a slight degree, and with some small variation in the expi-ession, without intending to impair its precisioa Vol. IY. 15 226 OF REAL PROPERTY. [PartTI. covenanted to stand seised to the use of his heirs male, it was held, that as the use during his life was undisposed of, it of course remained in him for life by implication, and the sub- sequent limitation to his heirs attached in him.* The cases from the Year Books, as cited in Shelley's case, are 40 Edw. HI., 38 Edw. m., 24 Edw. HI., 27 Edw. III.; and Mr. Preston gives at large a translation of the first of these cases, as being one precisely in point in favom* *216 *of the rule.'' Sir William Blackstone, in his opinion in the case of Perrin v. BlaJce,'' relies on a stiU earlier case, in 18 Edw. 11., as establishing the same rule. It has certainly the pretension of high antiquity, and it was not only recognised by the court in the case of Shelley, but it was re- peated by Lord Coke, in his Institutes, as a clear and undis- puted rule of law, and it was laid down as such in the great abridgments of Fitzherbert and KoUe.^ The rule is equally applicable to conveyances by deed, and to limitations in wills, whenever the limitation gives the legal, and not the mere trust or equitable title. But there is more latitude of construction allowed in the case of wills, in furtherance of the testator's intention ; and the rule seems to have been con- sidered as of more absolute conti-ol in its application to deeds. When the rule applies, the ancestor has the power of aliena- tion, for he has the inheritance in him ; and when it does not apply, the children or other relations under the denomination of heirs, have an original title in their own right, and as pur- chasers by that name. The policy of the rule 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. Yarious considerations have been supposed to have con- » Pibu3 V. Mitford, 1 Vent. 372. Hayes v. Forde, 2 Blachs. Rep. 698. Fearne on Remainders, 42. 62, 58. It \raa held in Doe v.Welford, 12 Adolph. & Ellis, 61. on the authority of Baron Gilbert, in 6 Bacon's Ahr. H&i edit. 655, tit. Remainder and Reversion, B. 2, and of Fearne on Cont. Rem. 29, that a remainder in tail, given to a party who takes a previous life estate by the same event, does not exclude in- termediate estates, under any just construction of the rule in Shelley's case. ' The case of the Provost of Beverly, 40 Edw. III. Preston on Estates, vol. i. 304. « Sarg. Law Tracts, 501. J Fitz. Ahr. tit. Feoffment, pi. 109. Co. lAtt. 22, b. 319, b. 2 Rol. Abr. 417. Lee. LIX.] OF REAL PROPERTY. 227 curred in producing the rule, but the judges, in Perrin v. Blake, imputed the origin of it to principles and policy de- duced from feudal tenure ; and that opinion has been gene- rally followed in all the succeeding discussions. The feudal policy undoubtedly favoured descents as much as possible. There were feudal burdens which attached to the heir when he took as heir by descent, from which he would *haTe been exempted if he took the estate in the cha- *217 racter of purchaser. An estate of freehold in the an- cestor attracted to him the estate imported 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 enjoyment 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 po- licy of the law would 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. Blahe,^ 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 im- putes 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. Another 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 vest- ing the inheritance in the ancestor, and thereby giving him the power of disposition. Mr. Hargrave, in his Observations 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 lord, another, and a greater one was, to preserve the marked dis- tinctions between descent and purchase, and prevent title by descent from being stripped of its proper incidents, and dis- * Sarg. Law Tracts, 489. ' Harg. Law Tracts, 561. 223 OF REAL PEOPERTT. [Part YL guised with the qualities and properties of a purchase. It would, by that iuvention, become a compound of descent and purchase — an amphibious species of inheritance, *218 *or a freehold with a perpetual succession to heirs, without the other properties of inheritance. In Doe V. Laming,^ Lord Mansfield considered 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 specialty creditors. Had the limitation been construed a contingent remainder, 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 original cause and true policy of the rule, it has been firmly established as an axiom in the English law of real property for near five hundred years ; and yet it is admitted to interfere, in most cases, with the presumed, and in many others with the declared intention of the parties to the instrument to which it is applied. The rule as to legal estates has had a prescriptive and uncontrolla- ble authority ; but the courts of equity have not considered themselves bound to an implicit observance of it in respect to limitations which do not include or carry the legal estate. In marriage articles, for instance, where there is a covenant to settle an estate upon A. for life, and the heirs of his body, the courts look at the end and consideration of the settlement, and beyond the legal operation of the words ; and heirs of the body are construed to be words of purchase, and an estate for life only is decreed to the first taker, and an estate tail to his eldest son, in order to carry marriage articles into execution by way of strict settlement.'' So, also, in decreeing the exe- cution of executory trust, the court of chancery has departed from what would be the legal operation of the words limiting the trust, when applied to legal estates ; and the words *219 heirs of the body of cestui que trust, although *pre- ceded by a limitation for life to the cestui que trust, « 2 Burr. JJep.llOO. ^ Trevor v. Trevor, 1 Eq. Oas. Abr. S8Y, pi. 7. Jones v. Laughton, ibid. 392, pi. 2. Streatfield v. Streatfield, Cases temp. Talb. Vl6. Honour v. Honour, 2 Vern. 658. Bale v. Coleman, 1 P. Wms. 142. Highway v. Bonner, 1 Bro. 584 Lee. LIX.] OF REAL PROPERTY. 229 are construed to be words of purchase, and not of limitation. »■ When the testator devises the legal estate, he takes upon himself to order the limitations, and the rules of law will control them. But when the will or settlement is in the light of a set of instructions merely for the purpose of a convey- ance to be made by the directions of chancery, a court of equity will follow the instructions, and execute the trust in conformity to the intention.'' In Bagshaw v. Sjpencer,'^ there was a devise to trustees in fee, in trust, and after divers limi- tations in trust, then to B. for life^ remainder to the tmstees and their heirs, during his life, to preserve contingent re- mainders, and after the death of B., remainder to the heirs of his iody. Lord Hardwicke decided that this was a trust in equity, and that B. did not take an estate tail under the will ; for the words heirs of the body were taken to be words of purchase to fulfil the manifest intent. This decision was founded upon a most elaborate examination of the cases, and a train of very forcible and ingenious reasoning. But it has not been able to endure the scrutiny of subsequent criticism. There is a settled distinction between trusts executory and trusts executed. In the former something is left to be done, some conveyance thereafter to be made ; and where, as in the case of marriage articles, a trust is created to be subse- quently carried into execution."! This discrimination Lord Hardwicke confounded in the case cited ; and he endeavoured to establish one general line of distinction between trusts and legal estates, in order to avoid the force of the decision of the K. B. in Coulson v. Coulson,^ in which the rule in Shel- ly's *case, had been emphatically and recently enforced *220 in a similar case. The decision has been severely questioned, and permanently overruled, by Lord Northing- ton, in Wright v. Pecvrson^ and by Lord Thurlow, in Jones V. Morgcm,s on the ground that the case before Lord Hard- ' Fearne on Remainders, 141. Tallman v. Wood, 26 Wendell, 1. ' Tates, J., in Pen-in v. Blake, Roberts v. Dixwell, Sandys v. DixweE and Pyott V. Dixwell, 1 Wests Rep. temp. Hardw. 542. Wood v. Burnham, 6 Paige, 513. ' 1 Ves. 142. 2 Atk. Rep. 346. 578. 1 Coll. Jurid. TSo. 15. In this last work the case is very fully reported, and taken from an original MS. ^ Fearne on Remainders, 141. 175 — 181. « 2 Atk. Rep. 2i6. Btr. Rep. 1125. f 1 Eden, 119. Fearne on Remainders, 159—169. e 1 Bro. 206. 230 OF REAL PEOPEETT. [Part VI. wicke was not the case of an executory trust. It is settled that the same construction ought to he put upon, and the same rule of law applied to, words of limitation, in cases of trusts and of legal estates, except where the limitations were imperfect, and something was left to be done by the trustee, or, in other words, except the trust was executory, and not a trust executed. If a limitation in trust was perfected, and declared by the testator, it receires the same construction as an estate executed.* There are several cases in which, in a devise, the words heirs, or heirs of the iody, have been taken to be words of purchase, and not of limitation, in opposition to the rule in Shelley's case. (1.) Where no estate of freehold is devised to the ancestor, or he is dead at the time of the devise. In that case the heir cannot take by descent, when the ancestor never had in him any descendible estate. It is the same thing if the ancestor takes only a chattel interest by the devise ; for if there be no vested estate of freehold interposed between the term of the ancestor and the estate of his heirs, the latter can take only by way of executory devise ; and if there be such a vested estate, the contingent remainder to the heir is *221 supported by the intermediate *estate, and not by the chattel interest of the ancestor.!" (2.) Where the testa- tor annexes words of explanation to the word heirs, as to the heirs of A. now living, showing thereby that he meant by the word heirs, a mere desoriptio persona/rwrn, or specific designation of certain individuals ;" or where the testator superadds words of explanation, or fresh words of limitation, and a new inheritance is grafted upon the heirs to whom he gives the estate. Thus it is in the case of a limitation to A. for life only, and to the next heir male of his body, and the » In Papillon v. Voice, 2 P. Wms. 471, Lord King very clearly illustrated the distinction between executory and executed trusts. Where the devise was of lands to B. for life, with remainder to trustees, to support contingent remainders, remain- der to the heirs of the body of B., the limitation was held to be an estate tail in B ; but so far as the will directed lands to be purchased, and settled in the same way, it was an executory estate or trust, and the intention was to govern, and not th« rule of law. •> Sir Thomas Tippen's case, cited in 1 P. Wms. 359. Co. Litt. 31 9, h. • Bui-chettv. Durdant, 2 Feni. 311. Cartft. 154. S. C. * Lee. LIX.] OF REAL PROPERTY. 231 heirs male of such heir male ; and in the case of a devise of gavel-kind lands to A., and the heirs of her body, as well female as male, to take as tenants in common. In such cases it appears that the testator intended the heirs to he the root of a new inheritance, or the stock of a new descent, and the denomination of heirs of the body was merely descriptive of the persons who were intended to take.^' (1) The great difficulty has been to settle when the rule, and when the intention in opposition to the rule, shall prevail. We have seen the effort that was made by Lord Hardwicke, in Bagshaw v. Spencer, to allow the rule to be controlled by the intention of the testator ; and in the great case of Perrin V. Blake, the Court of K. B. made the rule yield to the testa- tor's manifest intent, even where the limitation was of a legal, and not of a trust estate. In that case,'' the testator declared in his will his intent and meaning to be, that none of his children should sell his es- tate for a longer time than their lives ; and to that "intent" he *devised a part of his estate to his son *222 • Archer's case, 1 Go. 66. Case put by Anderson in Shelley's case, 1 Co. 95, b. Liale v. Gray, 2 Lev. 223. T. Raym. 315. S. C. Luddington v. Kime, 1 Ld. Raym. 203. Backhouse v. Wells, 1 Eq. Cos. Abr. 184, pi. 27. King v. Burcel, Amb. 379. Goodright v. Pullyn, 2 Ld. Raym. 1437. Wright v. Pearson, 1 Eden, 1 1 9. Doe v. Laming, Burr Rep. 1100. Mr. Justice Blackstone's argument, in Perrin v. Blake, Harg. Law Tracts. 504, 505. Brant v. Gelston, 2 Johnson's Gases, 384. In a de- vise to A. and to his male children and their heirs, to be equally divided amongst them and their heirs for ever. Judge Story held after a critical review of numerous cases, and in which he considered Doe v. Laming as very much in point, that A. took a life estate, with a contingent remainder in fee to his children, he having no children at the making of the will. Sisson v. Seabuiy, 1 Sumner, 235. If A. gives land by deed to B. and his children and to their heirs, the father of all the children takes a fee jointly by force of the words their heirs. Go. Litt. 9, a. So, where A. devised to B. for life, and then to C. and her children and their heirs, it was held, that C. was jointly seised in fee with the children as joint-tenants. Hatterley v. Jackson, Str. 1172. In such cases it is immaterial whether there be children born or not bom, after the testator's death, and it is no objection that the several estates may commence at different times, for vested estates will, in such cases, open to let in after-bora children to partake equally of the estate. The Master of the Rolls, in Stanley v. Wife, 1 Gox's Gases, 432. Strange, supra. Wild's case, 6 Go. 16. Dingley v. Dingley, 5 Mass. Rep. 535. Doe v. Provoost, 4 Johns. Rep. 61. <> 1 Goll. Jurid. No. 10. 4 Burr Rep. 2579. (1) And the iTftmediate devisee takes a fee. Schoonmaker v. Sheely, 8 Denio^s B. 485. 232 OF REAL PROPERTY. [Part VI. John, for and during the term of his natural life, remain- der over during his life, remainder to the heirs of the body of John, with remainders over. The question was, whether the son took an estate for life, or an estate tail, under the will ; and that depended upon the further question, whether the words heirs of the body were, as used in that will, to be taken to be words of purchase to effect the mani- fest intent of the will, or words of limitation, according to the rule in Shelley's case. A majority of the court decided that the intent was to prevail. On error to the exchequer chamber, the judgment of the K. E. was reversed by a large majority of the judges ; and upon a further writ of error to the house of loi-ds, the dispute was at length compromised, and a nonpros, entered on the writ of error by consent. The resnlt of that famous controversy tended to confirm, by the weight of judicial authority at Westminster Hall, the irre- sistible pre-eminence of the rule, so that even the testator's manifest intent could not control the legal operation of the word heirs, when standing for the ordinary line of succession as a word of limitation, and render it a word of purchase. If the term heirs, as used in the instrument, comprehended the whole class of heirs, and they became entitled, on the death of the ancestor, to the estate, in the same manner, and to the same extent, and with the same descendible qualities as if the grant or devise had been simply to A. and his heirs, then the word heirs is a word of limitation, and the intention will not control the legal effect of the word. The term must be used as a mere designation of one or more individuals, or a new import given to it by superadded, or engrafted words of limi- tation, varying its sense and operation, in order to make it a word of purchase, ii ' The case of Penin v. Elate was first brought into discussion before the King's Bench in I'ZBQ, and decided there in February, Il'/O ; but the litigation upon that will, involving merely the validity of a widow's jointure of £1000 a year, was first commenced by an action of ejectment in the Supreme Court of the Island of Jamaica, as far back as the yeai" 1646 ; and after the question had travelled, in two ejectment suits, through the supreme court, and the court of appeals and errors in Jamaica, it passed the Atlantic on appeal in each suit to the king in council. After a reversal in one suit, a new ejectment was instituted in the island of Ja- maica ; and it passed through the com-t of appeals and eiTors there, and back again to the kiog in council ; and then, upon recommendation, the question was brought Lee. LIX.] OP EEAL PROPERTT. 233 *In Perrin v. Blake, the judges considered the in- *223 tention of the testator, that his son should take only an estate for life, to be manifest ; and assuming that fact, they insisted, that in the construction of wills, the intention was always emphatically regarded. They were for confining the rule in Shelley's case within its exact bounds, especially as the reason and policy of the rule had ceased ; and they relied upon a series of cases, principally in chancery, to show that words of limitation had, in particular cases, and in deeds, as well- as in wills, been held to be words of purchase, and con- trolled in their ordinary meaning, by superadding explanatory words denoting a different species of heirs to have been in- tended. * The strongest case in favour of the decision was Bagshaw v. Spencer, before Lord Hardwicke, in 1748 ; and the most difficult one to surmount, because the one of the most point and authority against the innovation upon the rule, was Coulson v. Coulson, before the K. B. in 1744. Lord Mansfield denied, as he had done before in Doe v. Laming, that there was any solidity in the distinction between trusts executed and trusts executory ; and he held, that all trusts were executory, because a trust executed was within the statute of uses. He insisted, also, *that there was *224 no sense in the distinction between the trusts and the legal estate, and that courts of equity, as well as courts of law, were equally bound by a general rule of law. If he could have established these principles, he would have brought the decision in Bagshaw v. Spencer to bear upon the case with unqualified and imperative force.'^ before the K. B., as already stated. The final tennination, (by mutual consent,) of this protracted litigation, was in Itti, after an exhausting sti'ife of upwards of thirty years. See Harg. Law Tracts, 489 — 493, in the notes. * Archer's case, 1 Co. 66. Walker v. Snowe, Palm. S59. Lisle v. Gray, 2 Lev. 223 ; and these two last cases arose upon deeds. Backhouse v. Wells, 1 Eq. Cos. Abr. 184. Luddington v. Kime, 1 LA>rd Raym. 203. Bagshaw t. Spencer, 1 Coll. Jurid. Wo 15. ' Lord Mansfield's opinion does not appear, upon the whole, to be equal to the occasion, or on a level with his fame. It is not to be compared, in research or ability, to that of Lord Hardwicke, in Bagshaw v. Spencer, and some of his reflec- tions had a sarcastic allusion. " There are, and have been always," he observed, " lawyers of a different bent of genius, and of diffei'ent course of education, who have chosen to adhere to the strict letter of the law ; and they will say that Shel- ley's case is uncontrollable authority, and they will make a difference between 234 OF REAL PROPERTY. [Pai-t VI The minds of the court were well prepared for such a de- cision, for in Doe v. Laming^^ which arose a few years *225 *before in the K. B., Lord Mansfield had reasoned upon the rule and authorities in the same way, and in a still more elaborate manner, and he scrutinized most of the cases. The doctrine of the court was, that the rule in Shelley's case was to be adhered to as a rule of property, in all cases literally within it ; but when circumstances took any case out of the letter of the rule, it was to be held subservient to the mani- fest intention, whether the limitation was created by deed or will. In the opinion of Mr. Justice Blackstone, in the exchequer chamber, upon the case of Perrin v. Blake^ he admitted that the rule in Shelley's case might be controlled by the manifest intention of the testator ; and he has classified and given a very clear and comprehensive summary of the several cases which have created exceptions to the operation of the rule. He concurred in principle with the court of K. B. ; but he held, that in the case before him the intent was not Bufliciently clear and precise, and, therefore, he was for re- versing the judgment. It was true that the testator meant that his son should only take a life estate ; but it was not cer- trusts and legal estates, to the harassing of a suitor." Mr. Justice Yates, who dis- sented from the opinion of his brethi'en in this case, and in whose presence these words were pronounced, immediately resigned his seat as a judge, and was trans- ferred to the 0. B. He resigned, says Junius, {Letter to Lord Mansfield^ because, " after years of ineffectual resistance to the pernicious principles introduced by his lordship, and uniformly supported by his humble Mends upon the bench, he deter- mined to quit a court whose proceedings and decisions he could neither assent to with honour, nor oppose with success." But all this was monstrous exaggeration ; and that celebrated and still unknown author was, in this instance, so far overcome by the malignity of his temper, and the bitterness of his invective, as to be utterly regardless of truth. Mi-. Justice Yates had been associated with Lord Mansfield on a bench from January, 'Vj&i, to February, 1'7'70 ; and with the exception of this case of Perrin v. Blake, and the great case of Miller v. Taylor, concerning copyright, there was no final difference of opinion in the com-t in any case, or upon any point whatsoever. Eveiy order, rale, judgment and opinion, until the decision of the latter case, in April, I'zeg, had been unanimous. See 4 Burr Rep. 2395. 2582. It was, however, greatly to the credit of Judge Yates' abilities as a lawyer, that in both of these cases in which he dissented from the decision of the K. B., and ou very nice and debatable questions, the decision was reversed upon error. « 2 Burr. Rep. 1100. '' Harg. Law Tracts, 489. Lee. LIS.] OF REAL PROPERTY. 235 tain, he said, that the testator meant that the heirs of the body- should take as purchasers, and, consequently, the rule must be left to operate. According to this opinion, two things must appear upon the face of the will : (1.) That the testator meant to confine the first taker to an estate for his life ; and (2.) that he meant to effectuate that intent by some clear and intelli- gent expression of a design to have the heirs of his son take by purchase, and not by descent. This opinion has been much admired, as containing incontestable evidence of the skill and talents of its great author. But the premises and the conclusion do not appear to be very consistent. The argument admits, that the intention of the testator will control the rule ; and it would seem then naturally to follow that when the tes- tator explicitly declared that the son was not to have a *power to sell and dispose of the estate for a longer *226 time than his life, and to that intent gave him a life es- tate, with an intervening contingent remainder, and then with remainder to the heirs of his body, that the words, heirs of the hody, were not intended to operate to the destruction of that intent, so as to give the son a fee with the power to sell. The presximption that those technical words were intended to be used in a technical sense, was certainly rebutted, when that technical sense would inevitably destroy the testator's declared intent, and confer upon the son, by the magical operation of attraction and merger, an estate tail, which the testator never intended. The decision in Perrin v. Blahe, has called forth a series of essays upon the rule in Shelley's case, which have been distinguished for laborious learning, great talents, and free and liberal investigation. Mr. Hargrave, in his observations on the rule, is for giving it a most absolute and peremptory obligation. He considered that the rule was beyond the con- trol of intention when a fit case for its application existed. It was a conclusion of law of irresistible efficacy, when the tes- tator did not use the word heirs or heirs of the body, in a special or restrictive sense, for any particular person or per- sons who should be the heir of the tenant for life at his death, and in that instance, inaptly denominated heir, and when he did not intend to break in upon, and disturb the line of de- scent from the ancestor, but used the word heirs as a nomen collectivum, for the whole line of inheritable blood. It is not, 236 OF REAL PEOPERTT. [Part VI. nor ought to be, in the power of a grantor or testator, to pre- scribe a different qualification to heirs from what the law pre- scribes, when they are to take in their character of heirs ; and the rale, in its wisdom and policy, did not intend to leave it to the parties to decide what should be a descent, and what should be a purchase. The rule is absolute, (and this was the doctrine of Lord Thurlow, in Jones v. Morgan,^') that whoever takes in the character of heir, must take in the *227 *quality of heir. All the eflferts of the party to change the qualification, while he admits the character of heirs, by saying that they shall take as purchasers, or otherwise, are fruitless, and of no avail. The rule in Shelley's case, if ap- plied to real property, enlarges the estate for life into an inhe- ritance, and gives to the tenant for life the capacity of a tenant in fee, by which he can defeat the entail or strict settlement intended by the party. If the rule be applied to personal property, it makes the tenant for life absolute owner, instead of being a mere usufructuary, without any power over the property beyond the enjoyment of it for his life. Mr. Fearne's essay on the rule in Shelley's case is in every view a spirited and masterly production ; and it is confessedly the groundwork of Mr. Preston's complicated analysis, and long and painful, but thorough discussion of the rule.^" All the great property lawyers justly insist upon the necessity and importance of stable rules ; and they deplore the perplexity, strife, litigation and distress which result from the pursuit of loose and conjectural intentions, brought forward to counteract the settled and determinate meaning of technical expressions.'' It is now generally admitted, that the decision in Perrin v. JBlake, was directly contrary to the stream of former authori- ties on the same subject ; and in Mr. Fearne's view of the case,^ convenience and policy equally dictate an adherence to the old and established doctrine. • 1 Bro. 206. ■• My objection to the work of Mr. Preston is, that he has analyzed, and divided, and subdivided the subject, ah-eady sufficiently intricate, until he has involved it still deeper in " involutions wild." ' Mantica, a civilian, wrote a learned treatise, de conjecturis uUimarum volunta- tern ; and Sii' William Blackstone hoped never to see such a title in the English law. ^ Fearne on Remainders, 223. Lee. LIX.] OF REAL PROPEETY. 237 Since the termination of the case of Perrin v. Blake, Lord Thurlow came out a decided champion for the rule ; and he held, in Jones v. Morgan,''- that a devise to trustees, *to stand seised to the use of A. for life, and after his *228 death, to the use of the heirs male of his body, several- ly, successively and in remainder, created an estate tail in A. This was repugnant to the doctrine in Bagshaw v. Spencer, for here, as in that case, was a trust estate. So, the case of Hodgson v. Ambrose,^ falling literally within the purview of that of Coulson V. Coulson, received from the K. B. the same deter- mination ; and Mr. Justice Buller observed, that if the testator made use of technical words only, the courts were bound to understand them in the legal sense. But if he used other words, manifestly indicating what his intention was, and that he did not mean what the technical words imported, the in- tention must prevail, if consistent with the rules of law. That qualification applies only to the nature and operation of the estate devised, and not to the construction of the words. A man is not to be permitted by will to counteract the rules of law, and change the nature of property ; and, therefore, he cannot create a perpetuity, or put the freehold in abeyance, or make a chattel descendible to heirs, or destroy the power of alienation by a tenant in fee, or in tail. In Doe v. Stnith,'^ Lord Kenyon took a distinction between a general and second- ary intention in a will, and he held, that the latter must give way when they interfered. If, therefore, the testator intended that the first taker should take only an estate for life, and that his issue should take as purchasers, yet, if he intended that the estate should descend in the line of hereditary succession, the general intent prevails, and the word issue is a word of limitation. To conclude : the rule in Shelley's case survived all the rude assaults which it received in the controversy un- der Perrin v. Blake; and it has continued down to the present time in full vigour, with commanding authority, and with its roots struck immovably deep in the foundations of the English law. All the modern cases contain one uniform language, and declare that the words, hei/rs of the hody, *whether in deeds or wills, are construed as words of *229 1 Bro. 206. >> Dmg. Rep. SST. <= 7 Term Rep. 531. 238 OP REAL PROPERTY. [PartTI. limitation, unless it clearly and unequivocally appears, that they were used to designate certain individuals answering the description of heirs at the death of the party. ^i The rule in Shelley's case has been received and adopted, in the United States, as part of the system of the common law. In South Carolina the rule was early acknowledged ;•> and, in a recent case, after a long controversy, and conflicting de- cisions, the court of appeals, upon great consideration, decided a case upon the basis of the authority of the rule in Shelley's case." It is assumed to be the rule in North Carolina, both in respect to lands and chattels, though it was properly ad- mitted not to operate, where the estate limited to the ancestor, and the estate limited to the heirs of his body, were of differ- ent natures and could not unite ; as if the first limitation was of a trust estate, and the subsequent limitation passed the real estate, the remainder over would go to the persons designated, in the character of purchasers.* The rule was also fully admitted « Doe V. Colyear, 11 JSas(s Rep. 648. Doe v. Jesson, 2 Bligh, 2. Doe t. Har- vey, 4 Barnw. & Cress. 610. But now, by the statute of 3 and 4 Wm. IV., c. 106, itia declared that when lands are devised to the heir, he takes as devisee scaA not by descent ; and a limitation by deed to the gi'antor or his heirs creates a new estate hy purchase. And when any person takes by purchase or will, under a limitation to the heirs or the heirs of the body of the ancestor, the descent is to be traced as if such ancestor had been the purchaser. •■ Dott V. Cunnington, 1 Bay, 453. « CaiT V. Porter, 1 M' Cord's Ch. Rep. 60. Since the thii-d edition of these com- mentaries, the rule in Shelley's case has been declared to be the law of the land in the state of Tennessee, in the case of Polk v. Paris, 9 Yerger, 209, after a profound, able and spirited discussion in the supreme court of that state. It was declared, by Judge Reese, to be a settled principle of the common law ; and that whatever might have been the original policy of the rule, it was, as a rule of property, not inconsistent with the genius of our institutions, or with the liberal and commercial spirit of the age. It checked the disposition to lock up property and render it in- alienable. The rule was considered as equally applicable to deeds and wills of personal property, and on the acknowledged principle that where the words would create an estate tail in real property, they would vest the entu'e and absolute prop- erty in chattels. ^ Payne v. Sale, 3 Battle's Rep. 455. Davidson v. Davidson, 1 Savsks. 163. But by statute in North Carolina of 1827, dying without issue is declared to mean is- sue living at the death of the first taker. The common law rule previously pre- vailed, for in Swain v. Roscoe, 3 Iredell, 200, it was held, that in a will of personal property to A. for life, and if he should die leaving lawful heu's of his body, to be equally divided between them, it was a limitation for life to A. with remainder to his children as tenants in common. See, also, ibid. 136. Lee LIX.] OF REAL PROPERTT. 23^ as a binding authority in Virginia, in the case of Roy v. Gar- nett,^ though it was allowed to be under the control of the testator's intention ; and in Maryland it has received the clearest elucidation, and the most unqualified support. In Home T. lAjelh^ the rule, under all its modifications and ex- ceptions, was learnedly and accurately expounded. In that case, a devise of a term for ninety-nine years to A., during her natural life, and, after her death, to her heirs, was held to pass to A. the entire interest in the term. It was admitted by Ch. J. Dorsey, that if it had been a devise of an estate of in- heritance, the remainder would have been immediately ex- ecuted in the ancestor, and he would have been seised of an estate in fee. The word heirs, when used alone, without explanation, is always a word of limitation, and not of pur- chase, and no presumed intention will control its legal opera- tion. Even superadded words of limitation, engrafted on the first limitation, would not alter the rule, unless they went to alter, abridge or qualify the words, and to establish a new succession, inconsistent with the descent pointed out by the first words, so as *to make the next heir the *230 terminus or stock, by reference to whom the future succession was to be regulated.<= To change the term into a word of purchase, the heirs must not be able to take as heirs, by reason of a distributive direction incompatible with the ordinary course of descent, or the limitation must be directed to the then presumptive heirs of the person on whom the es- tate for life is limited. This correct view of the rule of law admitted the acknowledged exceptions to the rule in the case of limitations in mamage articles, and of executory trusts, and also where the ancestor takes a trust or equitable estate, and the heir the legal estate, or an executed use ; and, as- suming the rule to have been introduced on feudal principles, " yet, to disregard rules of interpretation sanctioned by a suc- cession of ages, and by the decisions of the most enlightened judges, under pretence that the reason of the rule no longer exists, or that the rule itself is imreasonable, would not only prostrate the great landmarks of property, but would intro- • 2 Wash. Rep.9. ' 4 Harr. & Johns. Rep. 431. = Vide supra, p. 221, note c. 240 OF REAL PROPERTY. [Part VI duce a latitude of construction, boundless in its range, and pernicious in its consequences." It was further declared in the same case, that the rule in Shelley's case applied to leasehold estates, as well tp estates of inheritance ; and that in the bequest of chattels, a gift to A. for life, with remainder to his heirs, or to the heirs of his body, would carry the entire interest. The word issue, in grants, was exclusively a word of purchase ; and in devises of real estate it often means childnen, and is then a word of purchase, though it may be used either as a word of limita- tion or of purchase. Afterwards, in I/yles v. Digge,^ the rule was recognised as equally applicable to limitations in willSj and conveyances by deed ; and a case was withdrawn from its operation on the acknowledged exception, in the instance where the testator shows a manifest intent to give the first taker only an estate for life, by using superadded words *231 of explanation and limitation, *in the selection of sons of the first taker in succession, and the heirs of their bodies successively, and making those sons evidently the stock of a new line of descent. In Pennsylvania, in the case of James' davm^ the rule was recognised in a decided manner ; and the word mwe, in a case of a devise of an estate of inheritance to A. for life, re- mainder to his lawful issue, was held to be a word of limita- tion, and that A. consequently took an estate tail. After- wards, in Findlay v. JUddle," there was a devise to A for life, and if he died, leaving lawful issue, to his heirs as tenants in common, and their respective heirs and assigns ; and the court, under the circumstances, in furtherance of the intent, held the words of limitation to be words of purchase, and that A. took only an estate for life, with a contingent remainder to his heirs. The English doctrine on the subject of Shelley's rule, with all its refinements and distinctions, was fully ad- • 6 Harr. & Johns. Rep. 364. ■> 1 Dallas' Rep. 4V. S. P. f Watts & Berg. 295. « Binney's Rep. 139. The rule in Shelley's case is declared to be the rale in Ohio, 5 Hammond, 465, M'Feely v. Moore. King's heii's v. King's adm'i-, 12 Ohio Rep. 390. But by statute the rule is not now applicable in Ohio to wills taking effect since 1840, though in all other respects it is a rule of property. 12 Ohio Rep. 471. Lee LtS;.] OP REAL PROPERTY. 241 mitted, but with an evident leaning towards the doctrine of the K. B. in Perrin v. Blake, in favour of the manifest in- tent of the testator. The English rule was entirely recognised, in Connecticut, in the case of Bishop v. Sellech.'^ This was in 1804, but the rule has since been abrogated by statute •,'' and, in Massachusetts, by statute, in the year 1Y91, the rule was abolished, as to wills, by a provision declaring, that " a devise to a person for life, and after his death to his children, or heirs, or right heirs, in fee, shall vest an estate for life only in such devisee, and a remainder in fee in his children." The rule has also in the subsequent revision of their statutes been dispensed with as to deeds."= In New-York, the rule, according to the English view of it, was considered, in the case of Brant v. Oelston,^ to be *of binding authority ; and so it continued to be until *232 the revisers lately recommended its abolition, as being a rule " purely arbitrary and technical," and calculated to defeat the intentions of those who are ignorant of technical language.^ The New- York Revised Statutes^ have accord- ingly declared, that " where a remainder shall be limited to the heirs, or heirs of the body of a person, to whom a life estate in the same premises shall be given, the persons who, on the termination of the life estate, shall be the heirs, or heirs of the body of such tenant for life, shall be entitled to • 1 Bajfs Rep. 299. •> 5 Conn. Rep. 100. Statutes of Connecticut, 1821, p. 301. Ibid. 1838, p. 389. The Connecticut statute declares, that all grants or devises of an estate in lands, to any person for life, and then to his heii's, shall be only an estate for life in the gi'antee or devisee. • In New-Jersey, by the statute of 1820, in the case of a devise to A. for life with remainder to his heu-s, or to the heirs of his body, the life estate is good, but after its determination, the lands go to the children or heirs of such devisee as tenants ia common, in fee. Nem-Jeney Revised Laws, lli. Miner's Digest, 130. The Massachusetts Revised Statutes, of 1835, adopted the same rule, and applied it equally to lands so given by deed or will. ^ 2 Johns. Gas. 384, " In Kingsland v. Rapelye, decided by the Vice-Chancellor, m the city of New- York, (1834) and in Schoonmaker v. Shelley, decided in the New- York circuit court for the second cu-ouit, in 1841, upon will made prior to the operation of the revised statutes, the rule in Shelley's case was recognised, and strictly applied and enforced. 3 Edwards' Ch. Rep. 1. The words lawful issue held to have as extensive a signification as heii's of the body. ' Vol. I 725, see. 28. YOL. IV. 16 242 OF REAL PHOFERTY. [Part TI. take as purchasers, by rirtue of the remainder so limited to them." (1) The abolition of the rule applies equally to deeds and wills ; and in its practical operation, it will, in casea where the rule would otherwise have applied, change estates in fee into contingent remainders. It saciifices the paramount intention in all cases, and makes the heirs instead of the an- cestor the stirjps or terminus from which the posterity of heirs is to be deduced. It will tie up property from alienation during the lifetime of the first taker, and the minority of his heirs. But this, it may perhaps be presumed, was the actual intention of the party, in every case in which he creates an express estate for life in the first taker, for otherwise he would not have so limited it. It is just to allow individuals the liberty to make strict settlements of their property in their own discretion, provided there be nothing in such dispositions of it affecting the rights of others, nor inconsistent with public policy, or the settled principles of law. But this liberty of modifying at pleasure the transmission of property, is in many respects controlled, as in the instance of a devise to a charity, or to aliens, or as to the creation of estates tail j and the rule in Shelley's case only operated as a check of the same kind, and to a very moderate degree. Under the existence of the rule, land might be bound up from circulation for a life, and twenty-one years afterwards, only the settler was required to use a little more explicitness of intention, and a more specific provision. The abolition of the rule facilitates such settlements, though it does not enlarge the individual capacity to make them; and it is a question for *233 *experience to decide, whether this attainable advan- tage will overbalance the inconvenience of increasing fetters upon alienation, and shaking confidence in law, by such an entire and complete renunciation of a settled rule of property, memorable for its antiquity and for the patient cul- tivation and discipline which it has received.^ " The jniidical scholar, on -whom his gi'cat master, Coke, haa besto-wed some portion of the " gladsome light of jurisprudence," ■vdll scarcely be able to withhold an involuntaiy sigh, as he casts a retrospective glance over the piles of learning, devoted to destruction by an edict as sweeping and unrelenting as the torch of (1) Sucli is noTV the statute law of Virginia. Me-v. Stat. 1849, tit. 38, ch. 116, sec 11. Lee. LIX.] OF REAL PROPERTY. 243 V. Of the particulwr estate. There must be a particular estate to precede a remainder, for it necessarily implies, that a part of the estate has been already carved out of it, and vested in immediate possession in some other person. The particular estate must be valid in law, and formed at the same time, and by the same instrument, with the remainder.* The latter cannot *be *234 created for a future time, without an intervening estate to support it. If it be an estate of freehold, it must take effect presently, either in possession or remainder; for at common law, no estate or freehold could pass without livery of seisin, which must operate either immediately, or not at all. " If a man," said Lord Coke,"* " makes a lease for life, to begin at a day to come, he cannot make present livery to a future estate, and, therefore, in that case, nothing passeth." Though a term for years may be granted to commence in future^ an estate of freehold, limited on such future interest, would be void. When, therefore, a freehold remainder is intended to be created and vested, it is necessary to create a previous particular estate to subsist in the mean time, and to deliver immediate possession of it, which is construed to be giving possession also to him in remainder, since the particular estate, and the remainder, constitute one and the same estate Omar. He must bid adieu, for ever, to the renowned discussions in Shelley's case, •which were so vehement and so protracted as to rouse the scepti-e of the haughty Elizabeth. He may equally take leave of the multipled specimens of profound logic, skilful criticism and refined distinctions, which pervade the varied cases in law and equity, from those of Shelley andArcher, down to the direct collision between the com-ts of law and equity, in the time of Lord Haidwicke. He will have no more concern with the powerful and animated discussions in Perrin v. Blake, which awakened all that was noble and illustrious in talent and endowment, through evei-y precinct of Westminster Hal). He wiU have occasion no longer, in pursuit of the learning of that case, to tread the clear and bright paths illuminated by Sir- Wil- liam Blackstone's illustrations, or to study and admire the spii-ited and ingenious dissertation of Hargi-ave, the comprehensive and profound disquisition of Feanie the acute and analytical essay of Preston, the neat and orderly abridgment of Craise, and the severe and piercing criticisms of Reeve. What I have therefore written on this subject, may be considered, so far as my native state is conceraed as a humble monument to the memory of departed learning. " Plcnod. 26, a. Doctor questions the existence and application of the doctrine of the scintilla juris to that extent, and denies the necessity of actual entry, any more in the case of contingent uses, than in the case of contingent remainders, in order to regain the requisite seisin to serve the contingent uses. He denies the necessity of actual entry by any person to restore a contingent use, so long as a right of entry subsists in the cestui que use / and the scintilla juris, if of any real efficacy, must be competent to serve contingent uses without the ne- cessity of actual entry. The whole controversy relates to the common law conveyances, as feoffments, releases, fines and recoveries, which operate by transmutation of possession, and • Preston on Estates, vol. i. 159. Cruise's Dig. tit. Remainder, u. 5, sec. 3. 5, c. 6, aeo. 37. 39. I" Fearne on Remainders, 3'7'7^-380. 252 OF REAL PROPERTT. [Pai-t VI. under wMch tlie fee-simple vests in the feoffees, and the uses arise out of their seisin. Mr. Sugden takes a higher and bolder stand, and, by a critical review of all the cases, puts to flight this ignis faPwus of a scintilla, and shows that it never had any foundation in judicial decisions, but was deduced from extrarjudicial dicta. He considers that the fiction ope- rates mischievously, by requiring actual entry to restore the divested estate, or a feoffee to uses actually existing when the contingent uses arise. The sound construction of the statute requires, that limitations to uses should be construed in like manner as limitations at common law. Thus, if by feoffment, or release to some third persons, (who are generally strangers in interest to the estate,) or by covenant to stand seised, *244: or, perhaps, by bargain and sale," a use *be limited to • Mr. Sugden, m his Treatise on Powers, 38, says, that covenants to stand seised are, at this day, wholly disused. This I should not have supposed, from the great use of them in the precedents; and Lord Ch. J. PoUexfen, in Hales v. Risley, [Polhx. Rep. 383,) speaks of the covenants to stand seised, as one of the usual modes of raising uses in marriage settlement. It was said by Newdigate, J., in Heyns v. Tillars, (2 Sid. Rep. 158,) that a contingent use could not be raised by bai'gainand sale ; and Mr. Sugden is of the same opinion ; because a bargain and sale requires a consideration, and the intended cestui que use, not in esse, cannot pay a considera- tion, and a consideration paid by the tenant for life, would not extend to the unborn son. Gilbert on Uses, by Sugden, 398. Lord Chief Bai-on Gilbert raises a doubt upon the same point, and this is no doubt the settled English rule ; but it is a hard and unreasonable technical objection, and the good sense of the thing is, that the consideration paid by the tenant for hfe, should enure to sustain the deed through- out, in like manner as a promise to B., for the benefit of C, will enure to the bene- fit of C, and givehim a right of action. Dutton v. Pool, 2 Lev. 210. T. Raym. 302. Schermerhom v. Vanderheyden, 1 Johns. Rep. 139. Owings v. Owings, 1 Harr. & Gill, 484. SaiUy v. Cleveland, 10 Wendell, 156. Kemper v. Smith, 3 Martin's Louis. Rep. 622. Carnegie v. Morrison, 2 Metcalf Rep. 381. The con- sideration requisite is merely nommal. A peppercorn is a sufficient consideration to raise a use. Anon., 2 Vent. 35. If no consideration be stated in the pleadings, setting forth a deed of bargain and sale, the omission is but matter of form, and can only be objected to ou special demurrer. Bolton v. Bishop of Cai'lisle, 2 H. Blacks. Rep. 269. And why should not the courts admit the consideration paid by the tenant for life to enm-e to sustain the deed, with all its contingent uses ? An assignment of property to a creditor is good without his knowledge, if he comes in afterwards, and assents to it ; (7 Wlieat. Rep. 556. 11 ibid. 97 ;) and why should not the son, when he comes in esse, be permitted to advance a consideration, and give validity to the use ? In New- York, the question can never hereafter arise, for we have no longer any conveyances to uses. The statute of uses is repealed, and uses are abolished, and turned into legal estates, except so far as they may exist in the shape of trusts, or be attendant on powers. All future or expectant Lee. LIX.] OF REAL PROPERTY. 253 A. for life, remainder to trustees to preserve contingent uses, remainder to the first and other unborn sons in tail, the use is vested in A., and the uses to the sons are contingent, depending on the particular estate ; and in case of a feoffment and release by A., the tenant for life, the uses woiild be sup- ported by the right of entry in the trustees. The feoffees, or releases to uses, could neither destroy nor support the contingent uses. The statute *draws the whole estate *2tl:5 in the land out of the feoffees, and they become divest- ed, and the estates limited prior to the contingent use, take effect as legal estates, and the contingent uses take effect as they arise by force of the original seisin of the feoffees. If there be any vested remainders, they take effect according to the deed, subject to divest, and open, andlet in the contingent uses, in the proportions in which persons afterwards arising may become capable of taking under the limitation. To give a fuller illustration of this abstruse point, we may suppose a feoffment in fee to A., to the use of B. for life, remainder to his first and other sons unborn, successively in tail, remainder to C. in fee ; the statute immediately draws the whole estate out of A., and vests it in B. for life, remainder to C. in fee, and those estates exhaust the entire seisin of A., the feoffee. The estate in contingency in the unborn sons, is no estate un- til the contingency happens ; and the statute did not intend to execute contingent uses, but the contingent estates are sup- ported by holding that the estates in B. and C. were vested sub modo only, and would open, so as to let in the contingent estates as they come in esse. There is no scintilla whatever remaining in A., the feoffee, but the contingent uses, when they arise, take effect, by relation, out of the original seisin. By this clear and masterly view of the subject, Mr. Sugden destroys all grounds for the fiction of any scintilla juris in A., the feoffee, to feed the contingent uses.* Mr. Preston in his construction of the statute of uses, is also estates, and all vested estates and interests in land, are equally conveyed by gi-ant. Feoffments and fines are abolished ; and though deeds of bai'gain and sale, and of lease and release, may continue td be used, they shall be deemed gi-ants. New- York Revised Statutes, vol. L 121, sec. 45. Ibid. 125, sec. 35. Ibid. 1S8, 739. See also fm-ther on this subject, infra, 491. • Bugden on Powers, c. 1, sec 3. 254 OF REAL PROPEETT. [Part TI. of opinion, that limitations of contingent uses do give contin- gent interests, and that the estate may be executed to the use, though there be no person in whom the estate thus executed may vest. The statute passes the estate of the feoflPees in the land, to the estates and interests in the use, and apportions the estate in the land to the estates and interests in the use. Immediately after the conveyance to uses, no scintilla *246 juris, or the most remote possibility of *8eisin, remains with the trustees. But Mr. Jreston speaks with diffi- dence of his conclusions, and he is of opinion, that the doc- trine respecting the scintilla juris requires to be settled by judicial decision. =• I am not aware that the English doctrine of remainders and uses has undergone any essential alteration in the United States, except it be in the late Revised Statutes of New-York. The general doctrines of the English law on the subject con- stitute, as I presume, a branch of the municipal jurisprudence of this country. A statute of Virginia, in 1792, made some alteration of the law of remainders, by declaring that a con- tingent remainder to a son or daughter unborn, was good, al- though there was no particular estate to support it after the father's death. But, in !New-Tork, very deep innovations have recently been made upon the English system. No valid remainder can be defeated by the determination of the prece- dent estate, before the happening of the contingency on which the remainder is limited to take effect ; and the remainder takes effect when the contingency happens, in the same man- ner, and to the same extent, as if the precedent estate had continued.*' This relieves us in New-York, and fortunately and wisely relieves us, from the burden of investigating and following all the inventions and learning calculated to elude the fatal consequences of the premature destruction of the particular estate. But another, and more momentous change • Preston on Estates, ToL i. 164 — 184. It is rather extraordinary that Mr. Cor- nish should undertake to write and publish from the temple, an -Essay on the Doc- trine of Remainders, so late as 1827, and assert that the doctiine of scintilla juris rested on paramount authority, without even taking notice of the full and ex- hausting discussions in opposition to it, by such masters of the science as Preston and Sugden. I" Kew-Yorh Revised Statutes, vol. i. 725, sec. 34. Lee. LIX.] OP REAL PROPERTY. 265 in the law, has annihilated at once all this doctrine of remain- ders by way of use. The New- York Remsed Statutes^ have abolished uses and trusts, except as *authorized *24T and modified in that article, and has turned them into legal rights. The article is a very short one, and allows re- sulting trusts, and four sorts of express trusts. Every contin- gent remainder which, under the English law, is by way of use, is now, in New-York, a strictly legal contingent remain- der, and governed by the same rules. There is no longer any need of ti-ustees to preserve contingent remainders ; and they could not exist if they were necessary, for their duty is not one of the express trusts which may be created. It is declared, that every disposition of lands, whether by deed or devise, shall be directly to the person in whom the right to the pos- session and profits shall be intended to be invested, and not to any other, to the use of, or in trust for such person ; and if so made, no estate or interest, legal or equitable, vests in the trustee.'' But, to proceed with the review of the general law on the sub- ject of remainders, there is one case which forms an exception to the rule that a preceding particular estate of freehold is requisite to support contingent limitations, and that is where the legal estate is vested in trustees. The estate will continue in that instance, notwithstanding the failure of an intermediate life estate, until the persons who were to take the contingent remainder should come in esse, and in the interval the rents will belong to the grantor, or to his heirs, by way of resulting trusts. = - Vol. i. 727, 8ec. 45. 50. 55. •> New-YorTc Revised Statutes, vol. i. 728, sec. 49. See, also, infra, under the head Of Uses and Trusts. ' Feurne on Remainders, 383, 384. Preston on Mstates, vol. i. 241. In Hop- kins T. Hopkins, Cases temp. Talb. 43, Lord Talbot considered such a limitation as good by -way of executoiy devise ; but .aftei-wards, in Chapman v. Blissel, ibid. 145, he held it to be good either way, and might be taken as a future limitation, or as a contingent remainder of a tnist. A stiict conditional limitation does not require any particular estate to support it. But the difficulty of distinguishing between such a limitation and a contingent remainder, has been already noticed ; (see supra, p. 128, note,) and in Doe v. Henneage, (4 Term Rep. 13,) both the bar and bench assumed a conditional limitation to be, what Mr. Cornish says {Essay on Remainders, 221,) it was not, viz., a contingent remainder. If this be 256 OP REAL PROPERTY. [Part Vt *24:8 *Vn. Of the time within which a contingent re- mainder m,ust vest. The interest to be limited as a remainder, either vested or contingent, must commence or pass out of the grantor in the same instrument, and at the time of the creation of the par- ticular estate, and not afterwards.* It must vest in the grantee, either m esse, or by right of entry, during the con- tinuance of the particular estate, or at the very instant that it determines.'' The rule was founded on feudal principles, and was intended to avoid tbe inconvenience of an interval when there should be no tenant of the freehold to do the ser- vices of the lord, or answer to the suit of a stranger, or pre- serve an uninterrupted connection between the particular estate and the remainder. If, therefore, A. makes a lease to B. for life, witb remainder over, the day after his death ; or if an estate be limited to A. for life, remainder to the eldest son of B., and A. dies before B. has a son, the remainder, in either case, is void, because the first estate was determined before the appointment of the remainder. There must be no inter- val, or " mean time," as Lord Coke expresses it, between the particular estate and the remainder supported by it. If the particular estate terminates before the remainder can vest, the remaiader is gone for ever ; for a freehold cannot, accord- ing to the common law, commence in futuro.'^ This rule^ upon a strict construction, was held by the courts of law to exclude a posthumous son from taking a contingent remainder, when the particular estate determined before he was bom. so, the distinction must be rei-y latent and fine spun, to have escaped detection by such judges as Lord Kenyon and Mi-. Justice Buller 1 » Plowd. 25. 28. Co. Liu. 49, a. b. ■> Colthirst V. Bejuskin, Plowd. Rep. 25. Ai-cher's case, 1 Co. 66. Chudleigh's case, 1 Co. 138. ' 3 Co. 21, a. 3 Blacks, Com. 168. Preston mi Abstracts, voL i. 114. In Festing v. Alien, 12 Meeson & Welsby, 279, it was adjudged, that if there was a tenant for life under a devise, with a contingent remainder in fee for such of her childi-en as should attain the age of twenty-one, and no child attained that age at her death, the estate as well as the limitations over were divested by her death, and the estate went to the heii- at law. This was only a. recognition of a settled principle, and yet the case was elaborately discussed. If the devise had been to the mother for Ufe, and at her death to her children, then they would have had vested remainders in fee, according to the case of Doe v. Provoost, 4 Johnson's Rep. 61. See supra, 205. Lee LIX.] OF REAL PROPEETT. 257 and the person who succeeded took by purchase. But the decision of the K. B. upon that point was reversed by the house of *lords ;"• and it is now the settled law in *249 England, and in this country, that an infant en ventre sa mere, is deemed to be in esse, for the purpose of taking a remainder, or any other estate or interest which is for his benefit, whether by descent, by devise, or under the statute of distributions.'' The remainder must be so limited as to await the natural determination of the particular estate, and not to take effect in possession upon an event which prematurely determines it.'= This is the true characteristic of a remainder ; and the law will not allow it to be limited to take effect on an event which goes to defeat, or abridge, or work the destruction of the particular estate ; and if limited to commence on such a condition, it is void. Thus, if there be a lease to A. for life, and if B. do a certain act, that the estate of A. shall then cease, and the remainder immediately vest in C, it is clear that the remainder will be void in that case.'* This rule ap- plies to common law conveyances, and follows from the maxim that none but the grantor and his heirs shall take advan- tage of a condition ; and both the preceding estate, and the remainder, are defeated by the entry of the grantor.* If limitations on such conditions be made in conveyances to uses and in wills, they are good as conditional limitations, or future or shifting uses, or executory devises ; and upon the breach of the *condition the first estate, ipso facto, *250 determines without entry, and the limitation over com- « Eeeve v. Long, 1 Bdh. 227. ' "Willes, Ch. J., in Goodtitle v. Wood, cited in 7 Term Rep. 103, note. Sted- fast T. Nicoll, 3 Johns. Cos. 18. Swift v. Duffield, 5 Serg. d Rawle, 38. Statute of Alabama, 1812. Harper v. Archer, 4 Smede & Marshall, 99. Marsellis v. Thalkimer, 2 Paige, 36. In the two last cases it was decided, that, as respects the rights of others, a child bom dead, within such an early stage of pregnancy aa to be incapable of living, is not deemed to have been in esse ; and if bom withm the first six months after conception, the presumption is that it was incapable of living. This is the rule of the civil law, as adopted in the Code Napoleon, ai't 312. 314, and in the Civil Code of Louisiana, art. 203. ' Cogan v. Cogan, Cro. Eliz. 360. Pl New-Yorh Revised Statutes, vol. i. sec. 82, 33, 34. The remainder-man may be let in to defend suits brought against the tenant of the particular estate, or to recover the same when lost by the tenant's default. Ibid. vol. ii. 389, sec. 1, 2. No undue recovery against the tenant bars the title of the remainder-man to relief. Ibid. vol. ii. 340, sec. 6, H. In Virginia, the doctrines of the common law, relating to the destruction of contingent remainders, by the determination of the particulai- estate before the contingency, have also undergone essential changes by statute, and the policy of the legislature was to place contingent remainders beyond the reach of accident to the particulai- estate. Trustees, to preserve contingent remain- ders, are no longer in much use. Lcmaiis Digest, vol i. 45'7. 468. « New-Torh Revised Statutes, vol. i. "750, sec. 11. i Bro. tit. Done and Rem. -pi. 21. Matthews v. Temple, CoimJ. 467. Fearneoyi Remainders, 393. Lee LIX.] OF REAL PROPERTY. 261 VIII. Of the destruction of contingent remainders. If the particular estate determine, or be destroyed before the contingency happens on ■which the expectant estate de- pended, and leave no right of entry, the remainder is annihi- lated. The alteration in the particular estate which will de- stroy the contingent remainder, must amount to an alteration in its quantity, and not merely in the quality ;^ and, therefore, the severance of the jointure between two joint-tenants for life, will not destroy the contingent remainder, limited after their joint estate. The particular estate in the tenant in tail, or for life, may be destroyed by feoffment or fine ; for these convey- ances gain a fee by disseisin, and leave no particular estate in esse, or in right, to support the contingent remainder.'' So, if the tenant for life disclaimed on record, as by a fine, a for- feiture was incurred upon feudal principles ; and if the owner of the next vested estate of freehold entered for the forfeiture, the contingent remainder was destroyed." A merger, by the act *of the parties, of the particular estate is *2o4 also equally effectual as a fine to destroy a contingent remainder.^ But with respect to this doctrine of merger, there are some nice distinctions arising out of the case of the inheritance becoming united to the particular estate for life by descent ; for, as a general rule, the contingent remainder is destroyed by the descent of the inheritance on the particular tenant for life. Out of indulgence, however, to last wills, the law makes this exception, that if the descent from the testator, or the particular tenant, be immediate, there is no merger ; as if A. devises to B. for life, remainder to his first son unborn, ' Fearne on Remainders, 426. Lane v. Pannel, 1 Rol. Rep. 238. 317. 438. Hanison t. Belsey, T. Raym. 413. '' Aicher's case, 1 Co. 66. Chudleigh's case, 1 Co. 120. IST, b. 2 Rol. Abr. 418. pL 1, 2. Purefoy T. Rogers, 2 Lev. 39. Chudleigh's case is a strong authority to prove that a feoffment, without consideration, and even with notice in the feoffee of the trust, will destroy a contingent remainder. It is a doctrine flagi-antly unjust, and repugnant to eveiy settled principle in equity, as now understood. " Co. Litt. 252, a. There has been a long and vexed question in the English law, how far a common recoveiy, suffered by a tenant in tail, would bar a remain- der to the king. It was declared by the highest authorities, in the House of Lords, in the late case of Blosse v. Clanmorris, (3 Bligh, app. 62,) to be still a doubtful point of law. I allude to it merely as fresh proof of the everlasting uncertainty that perplexes this branch of legal science. ^ Purefoy v. Rogers, 2 Samid. Rep. 386. 262 OF REAL PROPERTY. [Part VI. and dies, and the land descends on B. as heir at law. Here the descent is immediate. But if the fee, on the death of A., had descended on C, and at his death on B., here the descent from A. would he only mediate, and the contingent remainder to the unborn son of B. would be destroyed by merger of the particular estate on the accession of the inheritance. Mr. Fearne* vindicates this distinction, and reconciles the jarring cases by it ; and it has been since judicially established, in Crump V. Norwood y' In equity, the tenant for life of a trust cannot, even by a fine, destroy the contingent remainder dependant thereon ; and it will only operate on the estate he can lawfully *255 grant.= A court of equity does not countenance the *de- struction of contingent remainders ; and Lord Lough- borough observed, that it had been intended to bring a bill into parliament to prevent the necessity of trustees to preserve contingent remainders."^ There is also an established distinc- tion between those wrongful conveyances at common law which act on the possession, and those innocent conveyances which do not ; and, therefore, a conveyance of a thing lying in grant does not bar a contingent remainder. Nor do con- veyances which derive their operation from the statute of uses, as a bargain and sale, lease and release, and covenant to stand seised, bar contingent remainders, for none of them ' Fearne on Remainders, 432 — 434. ^ 1 Taunt. Rep. 362. This is one among the thousand samples of the refine- ments -which have gjadually accumulated, until they have, in a very considerable degree, overshadowed and obscured many parts of the English law of real pro- perty ; and I am more and more impressed with a sense of the great utility of the provision rescuing contingent remainders, by legislative authority, from all per- plexing dependence on the particular estate. ' Lord Hardwicke, in LethieuUier v. Tracy, 3 Ath. Rep. "730. * 6 Vesey, 648. This has been done, as we have ah-eady observed, in New- Tork,bytheiVi!i»-TbrA Revised Statutes, vol. i. 725,860. 32. 34, rendering expectant estates or remainders no longer dependent on the continuance of the precedent es- tate. So, in Mississippi, by the Revised Code of 1824, p. 459, the same rule is de- clared, and an estate of freehold or inheritance may be made to commence in fu- turo by deed as well as by will. Mr. Cornish thinks, that the doctrine of remain- ders can scarcely be said to apply to equitable estates ; for eveiy ulterior limitation of a trust is, in substance, an executory trust, and more analogous to a futui'e use or executory devise than to a remainder. Cornish on Remainders, 208. Lee. LIX.] OF REAL PROPERTY. 263 pass any greater estate than the grantor may lawfully convey.* There are also some acts of a tenant for life, which, though they amount to a forfeiture of the estate, and give the vested remainder-man a title to enter, yet they do not destroy the contingent remainder, unless advantage be taken of the for- feiture by some subsequent vested remainder-man. They do not, ipso facto, discontinue, divest or disturb any subsequent estate, nor make any alteration or merger of the particular estate.'' Though a right of entry, even after the particular tenant be disseised, will support a contingent remainder, yet, when once the right of entry is gone, it is gone for ever, and a new title of entry will not restore the remainder. If there be, therefore, a tenant for life, with contingent remainder over, and the tenant for life makes a feoffment in fee, upon condition, and the contingency happens before the con- dition *is broken, or before entry for breach thereof, *256 the remainder is totally destroyed, though the tenant for life should afterwards enter for the condition broken, and regain his former estate.''- To preserve the contingent remainder from the operation of the feoffment, which, in this respect, sacrificed right to fic- tion and metaphysical subtlety, recourse has been had to the creation of trustees to preserve the contingent remainder during the life of the tenant for life, notwithstanding any de- termination of the particular estate prematurely, by forfeiture or otherwise. This precaution is still used in settlements on marriage, or by will, where there are contingent remainders to be protected. The legal estate limited to trustees during the tenant's life, is a vested remainder in trust, existing be- tween the beneficial freehold and the contingent remainder, and the limitation in trust is not executed by the statute of uses, and the legal estate in such cases remains in the trustees. The tenant for life has a legal estate, and the re- mainder of the same character and for the same period is vested in the trustees ; and if the particular estate determines * Gilberts Law of XIaes, by Sugden, 312. Litt. sec. 600. Magennia v. M'Cul- lough, Gilb. Rep. 236. '■ Fearne on Remainders, 405, 406. « Thompson t. Leach, 2 Salk. Rep. 5*76. Hale, Ch. J., in Purefoy v. Rogers, 2 8aund.Rep.ZS1. Fearne on Remainders, iSS, 4:39. 2Wodd.Lec.l96,l'i1. 26i OF REAL PROPERTY. [Part VI. otherwise than by the death of the tenant, the estate of the trustees eo instanti, takes effect, and as a particular estate in possession, it supports the remainder depending on the con- tingency.a The trustees are entitled to a right of entry in case of any wrongful alienation by the tenant for life, or when- ever his estate for life determines in his lifetime by any other means. •> The trustees are under the cognizance of a court of equity, and it will control their acts, and punish them for a breach of trust ; and if the feoffment be made with notice by the purchaser of the trust, as was the fact in ChudleigKs case, a court of chancery will hold the lands still subject to the former trust." But this interference of equity is regulated by the circumstances and justice of the particular case. The court may, in its discretion, forbear to interfere, or it may, and will, even allow or compel the trustees to join in a sale to destroy the contingent remainder, if it should appear that such a measure would answer the uses originally intended by the settlement.'! *25Y *IX. Of other properties of contingent remainders. If a contingent remainder be created in conveyances by way of use, or in dispositions by will, the inheritance, in the mean time, if not otherwise disposed of, remains in the grantor or his heirs, or descends to the heirs of the testator, to remain imtil the contingency happens. This general and equitable principle is of acknowledged authority. « Convey- ances to uses are governed by doctrines derived from courts of equity ; and the principles, which originally controlled them, they retained when united with the legal estate. So much of ■ Vanderheyden v. Crandall, 2 Denio Rep. 1. The various forms of these settle- ments in trust were stated and illustrated by Lord Eldon, in Moody t. Walters, 16 Vesey, 294, and in Tanderheydeu t. Crandall, supra, ■" 2 Blacks. Com. 171. Fearne on Remainders, 409, 410. ' Mansel v. Mansel, 2 P. Wms. 678. ^ Sir Thomas Tippen's case, cited in 1 P. Wms. 359. Piatt v. Sprigg, 2 Vern. Rep. 303. Frewin v. Charleton, 1 Eg. Gas. Abr. 380, pi. 4. Symance t. Tattam, 1 Aik. Rep. 613. Fearne on Remainders, 410 — 423. Biscoe v. Perkins, 1 Ves. d Bea. 485. " Sir Edward Cleve's case, 6 Go. lY, b. Davies v. Speed, Garth. Rep. 262. Pui-efoy T. Rogers, 2 Sound. Rep. 380. Plunket v. Holmes, T. Raym. 28. Lord Parker, in Carter v. Bai-nadiston, 1 P. Wms. 616. Lee. LIX.] OF REAL PROPERTY. 265 the use as is not disposed of, remains in the grantor ; and if the remainder in fee be in contingency, the inheritance or use, in the mean time, results to the grantor, and descends to his heirs, and becomes a springing or shifting use, as the con- tingency arises. The same doctrine is applied to executory devises ; and the fee remains unaffected by the will, and goes to the heir, subject to be defeated when the devise takes effect, provided it takes effect within the period prescribed against pei'petuities.'' Though the fee descends, in the in- terim, to the heir, there shall be an hiatus, as was observed in Plunket v. Holmes, to let in the contingency when it hap- pens. It was fully and definitively settled by Lord Parker, on appeal from the rolls in Garter v. Ba/rnadiston^ that the inheritance descends to the heir, in the case of a contingent remainder created by will, to await the happening of the con- tingency. The only debatable question, according to Mr. Fearne, is, whether the rule applies to conveyances at common *law. As conveyances in this country are *258 almost universally by way of use, the question in this case, and in many others arising upon common law convey- ances, will rarely occur ;= but it is still a point involved in the general histoiy and doctrines of the English law, and is there- fore deserving of the attention of the student. If a conveyance be made to A. for life, remainder to the heirs of B. then living, and livery be made to A., Mr. Fearne contends that the inheritance continues in the grantor, because there is no passage open for its transition at the time of the livery. The transition itself may rest in abeyance, or expec- tation, until the contingency or future event occurs to give it operation ; but the inheritance, in the mean time, remains in » Preston on Mstates, vol. i. 240. 242. >■ 1 P. Wms. 605. " In New- York, the conveyances by feoffment, mth livery, and by finea, and common recoveries, are abolished. New-York Revised Statutes, vol. i. 738, sec. 136. Ibid. vol. ii. 343, sec. 24. All conveyances are now to be deemed grants ; and though deeds of bargain and sale and of lease and release, may be used, they are to be deemed gi'ants. This was a common law conveyance, and it is now de- clared to pass all the interest of the gi'antor, if so intended. Ibid. 739, sec. 138. 142. Ibid. "748, sec. 1, 2. I see no reason why the question in the text should not apply to grants in New- York, equally as it would have done to feof&nents with livery before they were abolished. 266 OF EEAL PROPERTT. [Part VI. the grantor, for the very plain and unanswerable reason that there is no person in rerum natura to receive it ; and he, or his heirs, must be entitled, on the determination of the particular estate, before the contingent remainder can take place, to enter and resume the estate. He treated with ridi- cule the notion that the fee was in abeyance, or in nubibus, or in mere expectation or remembrance, without any definite or tangible existence ; and he considered it as an absurd and un- intelligible fiction.a Of the*existence of such a techni- *259 cal rule of *the common law there can be no doubt. The principle was, perhaps, coeval with the common law, that during the pendency of a contingent remainder in fee, upon a life estate, as in the case already stated, the inher- itance was deemed to be in abeyance.** But a state of abey- ance was always odious, and never admitted but from neces- sity, because, in that interval, there could not be any seisin of the land, nor any tenant to the prmovpe, nor any one of the ability to protect the inheritance from wrong, or to answer for its burdens and services. This was the principal reason why a particular estate for years was not allowed to support a contingent remainder in fee." The title, if attacked, could not be completely defended, because there was no one in being whom the tenant could pray m aid to support his right ; and, upon a writ of right patent, the lessee for life could not join the mise upon the mere right. The particular tenant could not be punishable for waste, for the writ of waste coiild only be brought by him who was entitled to the inheritance. So many operations of law were suspended by this sad theory of an estate in abeyance, that great impediments were thrown in the way of it, and no acts of the parties were allowed to put the immediate freehold in abeyance by limiting it to com- mence infufuro,' and we have seen, that one ground on which the rule in Shelley's case is placed, was to prevent an • Jiiarne on Remainders, 452 — i58. That an estate in abeyance is to be con- sidered as in mihibus, was a doctrine frequently suggested and admitted in Plow- den, (29, a. 35, a. 556. 563, 664,) and Lord Coke, in Co. Litt. 342, b. said, that an estate placed in such a nondescript situation, bad tbe quality of fame ; inter nubila caput. Such an occasional glimpse at faiiy land, serves at least to cheer us amidst the disheartening gloom of the subject. i" Bro. tit. Done and Bern. pi. 6. Gawdy, J., in Chudleigh's case, 1 Co. 135. • Sob. 153. Lee. LIX.] OF EEAL PROPERTY. 26T abeyance of the estate." Thougli the good sense of the thing, and the weight of liberal doctrine, are strongly opposed to the ancient notion of an abeyance, the technical rule is, that livery of seisin takes the reversion or inheritance from the grantor, and leaves him no tangible or disposable interest. Instead of a reversion he has only a potential ownership, subsisting, in contemplation of law, or a possibility of reverter ; *and Mr. Preston'' insists, that an estate of freehold *360 depending on another estate of freehold, and limited in contingency, must be in abeyance, and not in the grantor. The fee passes out of the grantor, and a vested estate of free- hold necessarily precedes the remainder, and the inheritance is in contingency as well against the grantor, who has no power over it, as against the person to whom the contingent remainder is limited. Mr. Preston confidently asserts, that the argument of Mr. Fearne, however abstractedly just and reasonable, is without authority, and contrary to all settled technical rules. Another able writer" also contends, that the doctrine of abeyance was never shaken or attacked, until Mr. Fearne brought against it the weight of his eloquence and talents.'^ A vested remainder, lying in grant, passes by deed without livery ; but a contingent remainder is a mere right, and can- not be transferred before the contingency happens, otherwise than by way of estoppel. Lork Coke« divides estoppels into • Hoh. 153. Sir William Blackatone's argument, ia Perrin v. Blake. Preston on Estates, voL i. 229. 240—255. •> Preston on Estates, vol. L 255. Preston on Abstracts, toL ii. 103 — 106. • Cornish's Essay on Remainders, \1b. ^ There eaa be no doubt, though good sense was with Mr. Feame, that the book authorities are against him. We cannot surmount the technical rule, if techni- cal rules are binding in questions on property. The one in this case deduces its lineage from high antiquity. It is found in the Year Books, and is dispersed orer Plowden and Coke. Mi-. Preston and Mr. Cornish have the undoubted advantage; and though Mr. Fearne's Treatise on Remainders is distinguished for its searching analysis of cases, he has abandoned them in this instance, and followed the irre- sistible impulse of his judgment. Those other writers are equally masters of abstruse law ; and the latter, in particular, is a shrewd and dry critic, dealing in occult points. The fee will take an occasional flight to the clouds, and can- not be stayed, for common sense is disabled, and pierced by the longe fallente lagitta ! • Co. Litt. 352. a. 268 OF REAL PROPERTY. [Pai-t VI. three kinds ; viz., by matter of record, as by letters *261 patent, fine, common recovery and pleading ;=' by *mat- ter in writing, as by deeds indented ; and by matter in pais, by acts of notoriety, as by livery, by entry, by ac- ceptance of rent, and by partition. Any conveyance by mat- ter of record, or by deed indented, of an executory or contin- gent interest, will work an estoppel.*" Thus, if there be an estate to A. and B., and to the survivor in fee, a conveyance operating by way of an estoppel will bind the contingent re- mainder in fee in the survivor. A lease and release, if the latter be by deed indented, will work an estoppel. The es- tate for life is the only tangible interest, and the other is a mere possibility ; and estoppels exist where no interest passes from the party. <= » Where a tenant, in a writ of equity, disclaimed all title to the land demanded, he "was held to be afterwards estopped from setting up against the demandant, or his assignee, any title then existing in him. Hamilton t. Elliott, 1 N. H. Cases, 182. ■> Weall V. Lower, Follex. Rep. 54. 61. Noel v. Benby, 3 Simon's Rep. 103. ' Co. Liu. 45. a. Bensley t. Burdon, 2 Simon & Stuart, 519. In an elaborate note of the learned English editor to the case of the Duchess of Kingston, in 2d vol. Smith's Leading Cases, the law of estoppels is considered, and the cases classi- fied under the heads of, (1.) Matter of Record. Judgments in comta of record are estoppels, and conclusive between the same parties and privies thereto, either in blood, in law or by estate. So, also, are decrees, as heinm quasi of record in other judicial proceedings, as decrees in chanceiy, in ecclesiastical, maritime and militaiy courts, (ov nemo debet bis vexari pro eadem causa. (2.) Deed. (3.) Matter ire ^ais. All these heads, and the sound qualities of estoppels under each, are illustrated by apposite cases. The American editor, Mr. Hare, has also added an elaborate note on the same subject, confined principally to a critical discussion of American cases. S. C. Law Library, U. 8. vol. xxviii., and to the consideration of them I would re- fer the student. The sense of estoppels is, that a man, for the sake of good faith and fair dealing, ought to be estopped from saying that to be false which by his means has once become accredited for truth, and by his representations has led others to act The very definition of an estoppel, said Mr. Justice Cowen, in 3 Hill, 219, is when an admission is intended to lead and does lead a man with whom a party is dealing, into a line of conduct which must be prejudicial to his interest, unless the party estopped be cut off from the power of retraction. So, an estoppel affecting the right of a pai'ty in real estate, may be created by matter in pais, consisting of acts and declarations of a person, by which he designedly in- duces another to alter his position, injuriously to himself. Brown v. Wheeler, 11 Conn. Rep. 345. Kinney v. Farnsworth, id. 355.(1) In Doe v. Martyn, 8 Barnw. (1) Frost r. Saratoga Mut Ins. Co. 5 DenWs R. 154. L'Amoreux v. Viseher, B. 278. Eoe V. Jerome, 18 Comn,. Jt, 138. M. 443. If a person, ■with fUll knowledge, permits another, Lee. LIX.] OF REAL PROPERTY. 269 All contingent and executory interest are assignable in equity, and will be enforced, if made for a valuable consider- ed Cress. 497. Mr. Justice Bayley, after an elaborate examination of cases, con- cluded, that a fine by a contingent remainder-man passed nothing ; and that when the contingency happened, then in the mouth of a stranger to the fine, it was no bar against a claim in the name of the remainder-man. It operates by estoppel, and by estoppel only ; and parties aud privies may avail themselves of that estop- pel. But in Doe v. Oliver, 10 Barmo. d: Cress. 181, the above opinion was quali- fied, and it was held that a fine by a contingent remainder-man did not operate by estoppel only. It had an ulterior operation when the contingency happened. It then operates upon the estate as though it had been vested at the time the fine was levied, and the estoppel becomes an estate in interest. Where a party is estopped by his deed, all persons claiming under or through him are equally bound by the estoppel Stow v. Wyse, 7 Conn. Eep. 214. Recitals in a deed of land estop parties and privies. Story, J., Carver v. Jackson, 4 Peier^ U. 8. Rep. 83. Jackson v. Parkhurst, 9 Wendell, 209. A party executing a deed is estopped by the recital of a particular fact, to deny that fact. Shelly v. Wright, Willes' Eep. 9.(1) Every man is bound to speak and act according to the truth of the case, and the law wiU presume he has done so, and will not allow him to contradict such a reasonable presumption. This is the reason and foundation of the doctrine of estoppels. The estoppel prevents circuity of action. The truth is deemed to be shown by what estops. But the estoppel must be certain to eveiy intent, for no one shall be denied setting up the truth, unless it be in a case of plain contra- diction to his former allegations and acts. Nelson, J., in Pelletreau v. Jackson, 11 WendelVs Rep. IIT. Jackson v. Waldron, 13 Wendell, 178, Tracy, senator. And as the effect of an estoppel may be to shut out the real truth, by its artificial repre- tentative, estoppels, whether at law or in equity, are not to be favoured or extended by construction. Gaston, J., Jones v. Sasser, 1 Sev. & Battle's N. C. Rep. 464. A recital does not operate as an estoppel in an action by another party not founded on the deed, and wholly collateral to it. Carpenter v. BuUer, 8 Mee. cb Wels. 209. Whenever the application of the doctrine of estoppel would be likely to defeat the principle on which it rests, to effect justice and prevent wi'ong, it be- comes the duty of the com-ts to prevent its application. Blacke v. Tucker, 12 without objection, to seli his property as the property of the vendor, he wil] not be permitted to question the title of a horuifide purchaser. So, where one has a secret title to, or trust or interest in, property, and permits another to expend money on the credit of such property. Watltins v. Peck, 13 N. Hamp. B. 860. Casey v. Inloes, 1 6-iWa B. 430. It is declared that a party is not estopped by his admission or assertion of a conclusion of law. Brewster v. Striker, 2 Comst. B. 19. In Freeman v. Cooke, 2 Wels. II. &. Bep. 653, the whole doctrine of estoppels in pais was much discussed, and the rule is laid down with admirable precision by Ba/ron Parke, as follows : Where one, by his words or conduct, wilfuV/y causes another to believe in the existence of a certain state of things, and induces him to act on that belief, or to alter his own previous position, the former is concluded from averring, against the latter, a different state of things as existing at the same time. By the term vMf-iMy, it must be understood, if not that the party represents that to be true which he knows to be untrue, at least that he means his representation to be acted upon, and that it is acted upon accordingly ; yet, generally, without regard to in- tention, if the party so conducts himself as to deceive a reasonable man to his prejudice, he will be estopped from asserting the truth. See, also, Den v. Baldwin, 1 ZabrisHe^s If J. B. 403. (1) MoCasky v. Leadbitter, 1 KeTley^a B. B51. 270 OF EEAL PROPERTY. [Part VI. ation ; and it is settled, that all contingent estates of inherits ance, as well as springing and executory uses, and possibili- ties, coupled with an interest, where the person to take is cer- tain, are transmissible by descent, and are devisable *262 and assignable.^- *If the person be not ascertained, they are not then possibilities coupled with an inter- est, and they cannot be either devised or descend, at the common law.^ Contingent and executory, as well as vested Vermont Rep. 44 Technical estoppels by deed or matter of record, sometimes conclude the party, ■without any reference to the moral qualities of his conduct, but it is other^nse as to estoppels in pais. Welland Canal Co. v. Hathaway, 8 Wendell, 488. Bronson, J., in Dezell v. Odell, 3 Hill, 215. Nor do estoppels bind the sovereign or state. Candler v. Lunsford, 3 Battle's Rep. 407. A release, or other deed, when the releasor or gi-antor has no right at the time, passes nothing, and will not cany a title subsequently acquii'cd, unless it contains a clause of wai-- ranty ; and then it operates by way of estoppel, and not otherwise. Litt. sec. 446. Co. Litt. ibid. Jackson v. Wright, 14 Johns. Rep. 193. Dart v. Dart, '7 Conn. Rep. 260. Jackson v. Winslow, 9 Cowen's Rep. 1. Pelletreau v. Jackson, 11 Wendell, l\0. (1) See supra, ■p. S5. The deed of a feme covert will not operate by way of estoppel, so as to bar her subsequently acquired interest in the land. Jackson v. Tanderheyden, 17 Johns. Rep. 167. But a fine levied by husband and wife, will bar her contingent interest, by way of estoppel. Helps v. Hereford, 2 Barnw. & Aid. 242. By statute in Missouii, if a person conveys and purports to convey in fee when he has not the legal estate, and he aftenvards acquires it, the same shall pass immediately to the gi'antee. Revised Statvtes of Misaoiiri, ISS5, p. 119. ■ Whitfield V. Fausset, 1 Fescy, 891. Wiight v. Wright, t5td 411. Lawrence V. Bayai'd, 1 Paige, 16. Tarick v. Edwards, 1 Hoffman's Ch. Rep. 383. 395 — 405. Pond V. Bough, 10 Paige, 141. See, also, supra, vol. ii. 475, note. *> Lampet'a case, 10 Co. 46, with Eraser's notes, ibid. 47, b. Roe v. Jones, 1 H. Blacks. Rep. 30. Moore v. Hawkins, cited in 1 ibid. 33. Jones v. Roe, 3 Term Rep. 88. Roe v. Gi-iffiths, 1 Wm. Blacks. Rep. 605. But possibilities which can- not be gi-anted or devised, may be released to the owner of the land. Lord Hard- wicke, Wright v. Wright, 1 Vesej/, 411. In the case of Jackson v. Waldron, 13 (1) Bank of TJlioa t. Mcrsereau, 8 Sari. Oh. S. 528. If the husband and wife unite, by covenants of warranty, in conveying her land, the wife as well as the husband is estopped from denying title at the time. Nash v. Spoflbrd, 10 Met. It. 192. The grantee in fee, in either a quit-olaim deed or a deed containing cmenants of warramty, is not estopped from denying that the grantor had any title in the premises conveyed, either at or previous to the date of the deed. Such grantee holds adversely to his grantor, and may con- trovert such title, or strengthen his own by acquiring any other title. Averill v. Wilson, 4 Barb. S. G. Bep. 180. Sparron v. Kingman, 1 Comst. B. 242. A. conveys land to B., with covenants against incumbrances ; B. reconveys the land in fee and in mortgage to A., with similar covenants; B. is not estopped by the covenants in his deed from maintaining an action against A. for a breach of A.'s covenant Haynes v. Stevens, 11 N. JSamp. B. 28, See, also, Brown v. Staples, 23 Maine B. 497. Hubbard v. Norton, 10 Omn. B. 422. Lee. LIX.] OF REAL PROPERTY. 271 interests, pass to the real and personal representatives, ac- cording to the nature of the interest, and entitle the represen- tatives to them when the contingency happens.^ Wendell, 178, after a full and learaed discussion, it was decided, that a mere naked possibility, -without being coupled with an interest, as that a son may inherit to his father who b living ; or where there is a devise of white acre to A., and of black acre to B., and if either die without issue, his estate to go to the survivor, and both be living, such a possibility cannot be assigned, or released, or devised, or pass by descent, and can only be extinguished by estoppel. On the other hand, if the pos- sibility be coupled with an interest, as when a person, who is to take upon the hap- pening of the contingency, is ascertained and fixed, such a possibility may be re- leased, devised or assigned, like any other future estate in remainder. Fortescue V. Satterthwaite, 1 Iredell, N. 0. Rep. 510. S. P. A mere jus precarium, or possi- bility of right resting on coui-tesy or an anticipated donation, is not assignable. Co. Litt. 446. Long on Sales, Boston edit. 4. Vasse v. Comegyr, 4 Wash. 0. 0. 570. 574. Stoiy, J., in 1 Feters, 193. 213. MunseU v. Lewis, 4 Sill, K Y. Rep. 635. * fearne on Rem. 459. Preston on Abstracts, vol. ii. 119. Goodtitle v. Wood, Willes' Rep. 211. Goodright v. Searle, 2 Wilson, 29. See infra, p. 284. I ap- prehend that the i-ule at the common law, that executoiy interests cannot be trans- feiTed by deed, except by way of estoppel, no longer exists in Kew-York. By ,the New-York Revised Statutes, (vol. i. 723, sec. 9, 10. 13. Ibid. 725, sec. 36,) estates in expectancy include all future estates, vested and contingent : and all expectant estates are descendible, devisable and alienable, in the same manner as estates in possession. This sweeping provision would seem to embrace every executoiy and contingent interest ; and all conveyances whatsoever are reduced to simple grants. So, by the Mass. Revised Statutes of 1835, when any contingent remainder, execu- tory devise, or other estate in expectancy, is so limited to any pei'son, that in case of his death before the contingency happens, the estate would descend to his heirs in fee, such person may sell, assign, or devise the same, subject to the contingency. Also, by the statute of 1 Vict. c. 26, all contingent interests may be devised, and by this statute of 7 > Pollex. Rep. 31. 1 Oases in Chancery, 4. 2 Freeman, 163. Lord Bridg- man's MS. report of the case, cited by Mr. Hargi'ave, in 4 Ves Rep. 258. ' 3 Ch. Cas. Pollex. Rep. 223. 2 Ch. Rep. 229. Lee LX.] OF REAL PROPERTY. 275 Were not within the reason of the objection, and were neces- sary to provide for the exigencies of families. The principle of that case was, that terms for years were, equally with in- heritances, subject to executory devise, and to trusts of the same nature ; and it led to the practice of a strict settlement of that species of property, by executory devise, to the extent of lives in being, and twenty-one years afterwards. The doc- trine of executory devises grew and enlarged, pari passu, in its application to terms for years, and to estates of inheritance. In Soatterwood v. Edge,^ the judges considered lives in being as the ultimatum of contingency in point of time ; and they showed that they inherited the spirit of the old law against such limitations. Every executory devise was declared to be a perpetuity as far as it went, and rendered the estate unalien- able during the period allowed for the contingency to happen, though all mankind should join in the conveyance.'' The question which arose about the *same time in *267 Lloyd V. Ca/rew,'^ was, whether a limitation could be extended for one year beyond co-existing lives. The decision in chancery was, that it could not ; but the decree was re- versed upon appeal, and the limitation with that advance, al- lowed, though not without great efforts to prevent it, on the ground that perpetuities had latterly increased to the entan- glement and ruin of families. Afterwards, in Lvddmgton v. Kime,^ Powell, J., was of opinion, that a limitation, by way of executory devise, might be extended beyond a life in esse, so as to include a posthumous son. But Ch. J. Treby was of a different opinion, and he held, that the time allowed for ex- ecutory devises to take effect, ought not to be longer than the life of one person then in being, according to Snowe and Cut- ler's case. At last, in Stephsns v. Stephens, in 1736,« the doc- • 1 Salk. Rep. 229. 12 Mod. Rep. 278. *• This last observation of Mr. Justice Powell is supposed to be rather too strong ; for the owner of the contingent fee, together with the executory devisee, may bar it by a common recoveiy, and it may be baiTed by fine by way of estoppel. But in those states where there are no fines or recoveries, the executoiy devise is a per- petuity as &r as it goes. Feame on Executory Devises, by Powell, 56. ' Free, in Ch. 72. Shmoei'aP. 0. 1S7. S. C. Marks v. Marks, 10 Mod. Rep. 419. S. P. TheUuson v. Woodford, 4 Vesey, 227. 11 Ibid. 112. ■> 1 Zord Raym. 203. • 2 Barnard, K. B. 375. Cases temp. Talb. 228. 276 OF REAL PEOPERTY. [Part VI. trine was finally settled and defined by precise limits. The addition of twenty-one years to a life or lives in being, was held to be admissible ; and that decision received the sanction of the court of chancery, and of the judges of the king's bench. A devise of lands in fee, to such unborn son of &feme covert as should first attain the age of twenty-one, was held to be good ; for the utmost length of time that could happen before the estate would vest, was the life of the mother, and the sub- sequent infancy of the son. Since' that time, an executory devise of the inheritance to the extent of a life, or lives in being, and twenty-one years, and the fraction of another year, to reach the case of a posthumous child, has been uniformly allowed ; and the same rule equally applies to chattel inter- ests.^ And thus, notwithstanding the constant dread of per- petuities, and the jealousy of executory devises, as being an irregular and limited species of entail, a sense of the *268 *convenience of such limitations in family settlements, has enabled them, after a struggle of nearly two cen- turies, to come triumphantly out of the contest. They have also become firmly established (though with some disabili- ties, in ISTew-York, as we have already seen,'') as part of the system of our American testamentary jurisprudence." II. Of the several Mnds, and general qualities of executory devises. * There are two kinds of executory devises relative to real es- • Attinson v. Hutchinson, 3 P. Wms. 258. Goodman v. Goodright, 1 Blacks. Rep. 188. 2 Blacks. Com. IH. Long v. Blackall, 1 Term Rep. 100. Cadell v. Palmer, 1 Clark & Finnelly, 373. \0 Bingham, 140. S. C. In this last case, it was decided in the House of lords, in accordance with the opinion of the twelve judges, that a limitation by way of executory devise is valid, though it is not to take effect until after the determination of a life or lives in being, and a term of twenty-one years afteiTvai'ds as a term in gross without reference to the infancy of any person who is to take under such limitation. ^ Supra, p. 1*7. " Though the Code Napoleon has abolished all perpetuities and substitutions, (as see supra, p. 21,) yet the convenience and policy of giving some reasonable effect to the will of the testator, even on the subject of fidei commissa, has pre- vailed. There axe fidei commissa, and substitutions, which are held not to be pro- hibited ; and it is declared to be the spirit of the existing jurispnidence of France, not to annul a testamentaiy disposition made under the code, except it necessarily presents a substitution, and cannot receive any other construction. TouUicr, torn. Lee. LX.] OF REAL PROPERTY. 277 tate, and a third sort relative to personal estate.^ 1. Where the devisor parts with his whole estate, but, upon some con- tingency, qualifies the disposition of it, and limits an estate on that contingency. Thus, if there be a devise to A. for life, remainder to B. in fee, provided that if 0. should, within three months after the death of A., pay one thousand dollars to B., then to 0. in fee, this is an executory devise to C, and if he dies, in the lifetime of A., his heir may perform the condition.!" (1) 2. "Where the testator *gives a fu- *269 ture interest to arise upon a contingency, but does not part with the fee in the mean time ; as in the case of a devise to the heirs of B., after tfie death of B., or a devise to B. in fee, to take effect six months after the testator's death ; or a devise to the daughter of B., who shall marry C. within fifteen years." 3. At common law, as was observed in a former vo- lume,= that even the technical rule was created for the pui-pose of supporting the testator's inten- tion. If, says he, lands be devised to A., and if he dies with- out issue, then to B., this gives an estate tail to the issue of the devisee. And this construction, he observes, " is con- trary to the natural import of the expression, and made pure- ly to comply with the intention of the testator, which seems to be, that the land devised should go to the issue, and their issue, to all generations." So, in Tenny v. Agar,^ the devise " Where there was a devise to A. for life, with remainder to her child or child- ren, if she should leave any, and if she should die and leave no lawful issue, then with remainder over ; A. survived the testator and had one child, and she sm-vived her child and was left a widow. It was held, that the devise to her children or issue was a, contingent remainder in fee, and which, on the birth of a child, became a vested remainder in fee, subject to open and let in after-born children. Macomb V. Miller, 9 Paige Rep. 265. S. 0. 226 Wendell, 29. If it had been an estate tail in A. turned by our law into a fee-simple, the remainder over was not good by way of executory devise, because it was upon an indefinite failure of issue. King v. Bur- chell, 1 Edin Rep. 424. Doe v. Periyn, 3 Term, 484. Den v. Bagshaw, 6 Term, 512. Doe V. Elvy, 4 East, 313, and 1 Fearne, 141, 3d edit, referred to in that case. Dansey v. Griffith, 4 MavXe do Selw. 61. Right v. Creber, 5 Barnw. ct Cress. SCO. Frankhn v. Lay, 6 Madd. Ch. Rep. 161. Hannan v. Osbora, 4 Paige, 336. i" Jeffrey v. Spiiggc, 1 Gos^s Cases, 62. - Pleydell v. Pleydell, 1 P. Wms. 750. ' 12 Easts Rep. 253. 286 OF REAL PROPERTY. [Part VI. was to the son and daughter in fee ; but if they should hap- pen to die without having any child or issue lawfuU/y be- gotten, then remainder over. Lord EUenborough said, that nothing could be clearer than that the remainder-man was not intended by the testator to take any thing until the issue of the son and daughter were all extinct, and the remainder over was, consequently, void. The same construction of the testator's real intention was given to a will, in £ells v. Gil- lespie,^ where there was a devise *to the sons, and if either should die without lawful issue, his part was to be divided among the survivors. Mr. Justice Carr declared, that the testator meant that the land given to each son should be en- joyed by the family of that son, so long as any branch of it remained. He did not mean to say, " you have the land of C. if he has no child living at his death, but if he leave a child you shall not have it, though the child dies the next hom-." A father, as he justly observed, is not prompted by such motives. The opinions of these distinguished judges would seem to prove, that if the rule of law depended upon the real fact of intention, that intention would still be open to discus- *276 sion, *and depend very much upon other circumstances and expressions in the will, in addition to the usual words. The series of cases in the English law have been uniform, from the time of the Tear Books down to the present day, in the recognition of the rule of law, that a devise in fee, with a remainder over if the devisee dies without issues or heirs of the body, is a fee cut down to an estate tail ; and the limita- tion over is void, by way of executory devise, as being too remote, and founded on an indefinite failure of issue.'' The • 5 RandolpKs Rep, 2'73. Caskey v. Brewer, 17 Berg. S Rawle, 441. S. P. ' The number of cases in 'wbich that point has been raised, and discussed, and adjudged, is extraordinary, and the leading ones are here collected for the gratifi- cation of the curiosity of the student. Assize, 35 Edw, IIL, pL 14. Sonday's case, 9 Co. 127. King Y. Rumbail, Oo. /ac. 448. Chadock v. Cowly, i Jid 695. Holmes V. Meynel, T. Raym. 452. Foi-th v. Chapman, 1 P. Wms. 663. Brice v. Smith, Willes' Rep. 1. Hope v. Taylor, 1 Burr. Rep. 268. Attorney-General v. Bayley, 2 Bro. B53. Knight v. Ellis, ibid. 570. Doe v. Fonnereau, Doug. Rep. 604. Denn V. Slater, 5 Term Rep. 335. Doe v.Rivers, 7 ibid. 276. Doe v. Ellis, 9 ^os<'siB«p. LecLX.] OP REAL PROPERTY. 287 general course of American authorities would seem to be to the same effect, and the settled English rule of construction is considered to be equally the settled rule of law in this country ; though, perhaps, it is not deemed of quite so stub- born a nature, and is more flexible, and more easily turned aside by the force of slight additional expressions in the will."' The English rule has been adhered to, and has not been per- mitted, either in England or in this country, to be affected by such a variation in the words of the limitation over, as dying without leaving *issue •,'• nor, if the devise *277 was to two or more persons, and either should die without issue, the survivor should take." But if the limita- 3S2. Tenuy v. Agar, 12 ibid. 253. Romilly v. James, 6 Taunt. Rep. 263. Bar- tow V. Salter, 17 Vesey, 479. " For the strict effect of the rule, see Ide t. Ide, 5 Mans. Rep. 500. Dallum v. Dallum, 7 Harr. & Johns. Rep. 220. Newton v. Griffith, 1 Harr. tfc Gill, 111. Sydnor v. Sydnor, 2 Munf. Rep. 269. Cai-ter v. Tyler, 1 Gall, 143. Hill v. Bur- row, 3 ibid. 342. Bells v. Gillespie, 5 Randolph's Rep. 273. Broaddus v. Tui'ner, ibid. 308. Denn v. Wood, Cameron <£• Norw. Rep. 202. Cruger v. Hayward, 2 Dessaus. Rep. 94. Ii-win v. Dunwoody, 17 Serg. ib Rawle, 61. Caskey v. Brewer, ibid. 441. Hefiher v. Knapper, 6 Watts, 18. Patersoa v. Ellis, 11 Wendell, 259. Moody V. Walker, 3 Arkansas Rep. 198. Hollett v. Pope, 3 ITarr. (Del.) Rep. 542. "> Forth T. Chapman, 1 P. Wms. 663. Den v. Shenton, 2 Chitty's Rep. 662. Romilly v. James, 6 Taunt. Rep. 263. Daintry v. Daintry, 6 Term Rep. 307. Croly T. Croly, 1 Batty' s Rep. 1. CaiT v. Porter, 1 M' Cord's Ch. Rep. 60. Newton V. Gi-iffith, 1 Harr. th Gill, 111. In Cai-r v. Jeannerett, and the Same v. Green, 2 M'Cord's Rep, 66 — 75, there was a devise of the rest of the estate to B. and C, to be equally divided between them, and delivered to them at the age of .twenty- one ; but should they die, leaving no lawful issue, devise over to D. and others. The com-t of appeals at law, in May, 1821, held, that C, having anived at the age of twefaty-one, and having issue, took a, fee, and that B. having died under age, and without issue, C. became entitled to the entire estate, and his children took by lim- itation, and not by purchase. The court of appeals in equity, in May, 1822, gave a different opinion. They admitted that 0., the sm-vivor, and his issue, took a cross remainder by implication. That the general intent of the wiU was to be satisfied; and if the secondary intent interfered with it, the former was to prevail. That as the testator intended that the estate should go eventually to the issue of B. and C, an absolute estate in fee to B. and 0. would be inconsistent with that general in- tent ; and B. and C, therefore, took only estates for life, with a contingent re- mainder in the issue as pm'chaaers. » Chadock V. Cowly, Cro. Joe. 695. Newton v. Griffith, 1 Harr. d; Gill, 111. Bells V. Gillespie, 5 Randolph's Rep. 273. Broaddus v. Tm-nei', 6 ibid. 308. Con- tra, Ranelagh v. Ranelagh, 2 Mylne & Keen, 441. Den v. Cox, 3 Dev. N. C. Rep, 394. Radford v. Radford, 1 Keen, 486. De Treville v. Ellis and Stevens t. Pat- 288 OF EEAL PROPERTY. [Part VL tion over was upon the first taker dying without issue living it was held, so long ago as the case oi Pells v. Brown^^ that the will meant issue living at the death of the first taker; and the limitation over was not too remote, but good as an execu- tory devise. The same construction was given to a will, when the limitation over was upon the event of the first taker dying without leaving issue hehind him ;'' or where the will, in a bequest of personal estate only, was to two, and upon either dying without children^ then to the survivor ^'^ or when ""2T8 the first taker *sbould die and leave no issue, then to A. and B., who were in esse, or the survivor, and were to take life estates only y^ or when the first taker should hap- pen to die, and leave no child or children.^ The disposition in this country has been equally strong, and, in some instances, much more effectual than that in the English courts, to break in upon the old immemorial con- struction on this subject, and to sustain the limitation *279 *over as an executory devise. In Morgan v. Morgan,^ the limitation over was upon dying withowt children, then over to the brothers of the fii-st taker ; and it was held to mean children living at the death of the first taker. So, in Den v. Sohenclc,s the words creating the remainder over were, if any of the children should happen to die without any issue alive, such share to go to the survivors ; and it was held to be good as an executory devise."" The case of Ander- tcrson, 1 Bailey's Eq. Rep. 40. 42. These last decisions seem to be suflncient to chaoge the former rule, and that a limitation to the survivor, may be good by way of executory devise. ' Cro. Joe. 590. "i Porter v. Bradley, 3 Term Rep. 143. • Hughes V. Sayer, 1 P. Wms. 533. Nicholas v. Skinner, Free: in Ch. 528. ^ Roe V. Jeffrey, 7 Term Rep. 589. " Doe V. Webber, 1 Barnw. & Aid. 713. In Ranelagh t. Eauelagh, 2 Mylne iSc Keen, 441, it wiis declared, that if eepaiate legacies were given to two or more pereons, with a limitation over to the survivors or survivor, in case of the death of either, without legitimate issue, the presumption was that the testator had not in contemplation an indefinite failure of issue. The term issue may be used either as a word of purchase or of limitation, but it is generally used by the testator as synonymous with child or children. ' 5 Day, 517. t 3 Halste(rs Rep. 29. t It was declared, in Cutter t. Doughty, 23 WendeUs Rep. 513, to be settled, Lee LX.] OF REAL PROPERTY. 289 son V. Jhckson,^ was discussed very elaborately, in the courts of New- York ; and it was finally decided in the court of errors, that after the devise to the sons A. and B. in fee, the limitation, that if either should die without lawful issue, his share was to go to the swvivor, was good as an executory devise ; because there Vas no estate tail created by these words, but the true construction was a failure of issue living at the death of the first taker> (1) that a devise to tlie survivor or survivors of another, after lus death, without lawful issue, was not void as a limitation upon an indefinite failure of issue. It is good by way of executory devise. The word survivor qualifies the technical or primary meaning of the words dying without issue, and must be read 'dyiitg without issue at the time of his death. See, also, to S. P. supra, p. 27'7. n. a. (2) ■ 16 Johns.Rep. 382. '' The decision in Anderson v. Jackson rested entirely upon the word sm-vivor. If that word will not support it, then it is an anomalous and unsound authority The preceding words of the will, in that case, were those ordinaiy words creating an estate tail, as declaimed by all the authorities, atlcient and modern, and without the instance of a single exception to the contrary, according to the remark of Lord Thurlow and of Lord Mansfield. When that case was afterwai'ds brought into re- view, in Wilkes v. Lion, (2 Cowen's Rep. 333,) it was declared that the construction assumed by the coui't rested upon the effect to be given to the word survivor The cases have already been referred to, in which it has been often held, that the word survivor did not alter the settled construction of the words dying without issue .; and there is no case in which it has been constraed to alter them, unless there was a material auxiliary circumstance, as in Roe v. Jeffrey, or the word sur- vivor was coupled not with issue, but with children, in I'eference to personal property, as in Hughes v. Sayer ; or it was in the case of dying without issue alive, as in Den v. Schenck. The case of Anderson v. Jackson was, therefore, a step taken in advance of all preceding authority, foreign and domestic, except that found in the court below ; and it shifted and disturbed real property in the city of Kew-Tork to a very distressing degi-ee. The same question, under the same will, arose in the Circuit Court of the United States for the southern district of New- York, and it was eventually decided in the Supreme Court of the United States, (Jackson v. Chew, 12 Wheat. Rep. 153,) in the same way. But the court, without undertaking to settle the question upon the English law, constituting the prior common law of New- York, decided it entii'ely upop the strength of the New- York (1) The effect of the devise, construed in the case of Anderson v. Jackson, came again under discussion in Edwards v. Yarick, 5 Denio^s R. 664, and it was there held, that a release by both the devisees did not affect, either in law or equity, the mete naked possibility, -which was de- vised to the survivor, nor was it an equitable contract on the part of the grantor to convey the estate which he afterwards acquired by the death of his brother without issue. (2) Where a remainder is limited to certain individuals, or the swrimiors of tlieiK,, the court will refer the survivorship to the death of the testator, and not to the determination of the par- ticular estate, where the probable intention of the testator requires it. Lovett v. Buloid, 3 jBqrl>. Ch. B. 137. Vol. IV. 1§ 290 OF REAL PROPERTY. [Part VI. In Virginia, by statute, in 1819, and in Mississippi, by the revised code of 1824, and in ISTorth Carolina by statute in 1827," the rule of construction of devises, as well as *280 deeds, with contingent limitations, *depending upon ' the dying of a person without heirs, or without heirs of the body, or issue, or issue of the body, or children, was declared to be, that the limitation should take eifect on such dying without heirs or issue living at the time of the death of the first taker, or born within l^n months thereafter.'' So, decisions, as being the local law of real property in the given case. This was leaving the merits of the question, independent of the local decisions, untouched ; and, therefore, the doctrine of the Supreme Court of the United States is of no authority beyond the particular case. If the same question had been brought up, at the same term, on appeal from the Circuit Court of Virginia, in a case unaffected by statute, the decision must have been dii'ectly the reverse, because the nile of construction in that state, under like circumstances, is different. The local law of Virginia ought to be as decisive in the one case, as the local law of New- York in the other. The testamentaiy dispositions in the cases above refeiTed to, from 5 Randolph, agree, in all particulars, with the case in New- York. The devise in each was to the sons, and if either should die without lawful issue, then over to the survivor ; and tlie question was profoundly discussed, and decided in opposition to the New- York decision, and with that decision full before the court. It seems to be a settled principle in the Supreme Court of the United States, in deciding on local statutes, or on titles to real property in the diifei-ent states, to follow the local decisions, whether they are grounded on the construction of the statutes of the state, or form part of the unwritten law of the state. This was the doctrine declared in Pollard v. Dwight, 4 Cranch, 429 ; Hinde v. Vattier, 5 Peters' U. S. Rep. S98; Jackson v. Chew. 12 Wheaton, 153; Bank of the United States v. Daniels, 12 Feter^ Rep. 53; Thompson v. PhUlips, 1 Baldwin's 0. 0. XI. 8.Rep_ 246. Porterfield v. Clark, 2 Howard's IT. 8. Rep. HI. But the decisions of state courts on the construction of wills, do not constitute rules of decision in the federal courts. Lane v. A''ick, 3 Howard, 464, See, also, supra, vol. i. 342. 894, note. The local law, which forms a rule of decision in the federal comis, applies to rights of person and property. But questions of commercial law are not included in that branch of local law, which the federal courts deem themselves bound to follow and administer. Story, J., 2 Sumner's Rep. 378. Nor does the local law apply to the practice of the federal com-ts. See supra, vol. i. The federal jurisprudence concerning real property, under the operation of the rule of decision assumed by the Supreme Court of the United States, (and perhaps it could not have been discreetly avoided,) may, however, in process of time, run the risk of becoming a system of incongruous materials, "crossly indented and whimsically dove- tailed." » iV. C. R. B. vol. i. 259. 622. Mississippi R. Code, p. 458. t By the New- Jersey Revised Statutes of 184*7, p. 740, a devise to A. for life, and at his death to his heii's or issue, or heii'S of the body, the lands, after the death of the devisee for life, shall go to his childi-en, as tenants in common in fee. Lee LX.] OF REAL PROPERTY. 291 also, by the New- York Revised Statutes,'^ it is declared, that where a remainder in fee shall be limited upon any estate which would be adjudged a fee tail, according to the law of the state as it existed before the abolition of entails, the re- mainder shall be valid as a contingent limitation upon a fee, and shall vest in possession, on the death of the first taker, without issue living at the time of his death. (1) It is further declared, that when a " remainder shall be limited to take effect on the death of any person without heirs, or heirs of his body, or without issue, the words heirs or issue, shall be construed to mean heirs or issue living at the death of the person named as ancestor." It is, however, further provided,!" that where a future estate shall be limited to heirs, or issues, or children, posthumous children shall be entitled to take in the same manner as if living at the death of their parent ; and if the future estate be dependmg on the contingency of the death of any person without heirs, or issue, or children, it shall be defeated by the death of the posthumous child. These provisions sweep away, at once, the whole mass of English and American adjudications on the meaning, force and effect of such limitations. The statute speaks so per- emptorily as to the construction which it prescribes, that the courts may not, perhaps, hereafter, feel themselves at liberty to disregard its direction, even though other parts of the will should contain evidence of an intention not to fix the period of the devisee's death for *contingency to hap- *281 pen, and that the testator had reference to the extinc- tion of the posterity of the devisee, though that event might not happen until long after the death of the first taker. They might be led to regard any such other intent, collected from the whole will, if such a case should happen, not to be consistent with the positive rale of construction given by the statute to the words heirs and issue. Yet, when we consider the endless discussions, and painful learning, and still more • Vol. i. 722. see. 4. Ibid. 124:. sec. 22. >> Vol. L 724, sec. 30, 31. (1) See Hone v. Van Schaick, 8 £arb. CIu Rep. 489, aa to tlie tinie when the interests of posthumoos children are considered as vesting. 292 OF REAL PROPERTY. [Part VI. painful collisions of opinion, wliich have accompanied the history of this vexatious subject, it is impossible not to feel some relief, and to look even with some complacency, at the final settlement, in any way, of the litigious question, by legis- lative enactment.^ " The English statute of wills of 1 Victoria, c. 26, dedaves, that the words " die without issue," or " die without leaving issue," or other words which may import either a want or failui'e of issue, are to be construed to mean dying without issue living, at the death of the person, and not an indefinite failure of issue, unless a con- ti'aiy intention shall appear by the will, without any implication ainsing from the words denoting a want or failui'e of issue, and if such intention appeal's, the case is exempted fi'om the provision of the statute. The New- York Revised Statute makes no such exception. Here, also, the English Ism is rescued from all that body of learaing and litigation which has so long been a fi'uitful source of discussion and acute investigation. The gi'eat objection to legislative i-ules on the consti'uction of insti'uments, and to all kinds of codification, when it runs into detail, is, that the rules are not mal- leable ; they cannot be accommodated to circumstances; they are imperative. And such interference is the more questionable when a pei'manent, inflexible consti'uction is attempted to be prescribed even for the words used by a testator in his will. The noted observation of Lord Hobart natm-ally occurs, that " the statute is like a tyrant — where he comes he makes all void ; but the common law is like a nursing fether, and makes only void that part where the fault is, and presei-ves the rest." It is not, however, to be understood that even a statute prohibition will destroy those parts of an insti'ument or conti'act, which are not within the prohibition, or depen- dent upon the pai't prohibited, provided the sound part can be sepai'ated from the unsound. 1 Ashmead, 212. Other cases on this point are collected in the Ameri- can Jurist, No. 20, art. 1, and No. 45, art. 1 ; and in Goodman v. Newell, 13 Conn. Rep. 16. In this last case the histoi'y and chai'acter, and trae principle, and limita- tion of the maxim aie well and fully explained. It was a point discussed by Mr. Justice Cowen, with learning and ability, in Sal- mon V. Stuyvesant, 16 Wendell, 321, howfai- a will, invalid under the statute as to some of its provisions, would be sustained as to others not in conflict with the statute ; and when a will would be avoided in toto, on the ground that the invalidity of portions of it, defeats the main intention of the testator. The same question was again discussed by him and the other judges of the supreme court, in Root v. Stuvvesant, 18 Wendell, 257, in a case on appeal fi-om the court of chancei'y, with gi'eat force and upon sound authority. The final judgment in the case, as rendered by a majority of the senate, was against their opinions, but those opinions were exceedingly well stated. They held that powers and limitations in a will which passed the limits prescribed by statute, were to be considered as valid, so far as they were capable by the terms of them, of being executed within statutory limits, and that they were void so far only as they ti'ansgressed those limits. The inde- pendent provisions in a will, which were free from objections, '^ould be sustained and not overthro'wii, on the ground that another independent provision was contrai'y to law. Thus a wiU not duly executed to pass real property, would nevertheless, be good to pass personal estate. An illegal provision would not de^roy a legal Lee. LX.] OF REAL PKOPERTT. 293 (3.) Of dying without issue as to chattels. The English courts long since took a distinction between an executory devise of real and of personal estate, and held, that the words dying without issue made an estate tail of real property, yet that, in respect to personal property, which is transient and perishable, the testator could not have intended a general failure of issue, but issue at the death of the first taker. This distinction was raised by Lord Macclesfield, in Forth V. Chapman,^ and supported afterwards by such names as Lord Hardwicke, Lord Mansfield and Lord Eldon. But the weight of other distinguished authorities, such as those of Lord Thurlow, Lord Loughborough and Sir 'William Grant, is brought to bear against such distinction. There is such an array *of opinion on each side, that it becomes *282 difficult to ascertain the balance upon the mere point of authority ; but the importance of uniformity in the con- struction of wills, relative to the disposition of real property, has, in a great degree, prevailed over the distinction ; though in bequests of personal property, the rule will, more readily than one, unless the latter essentially depended upon the former. The rule is to save all that agrees with the statute. If, however, said Chancellor Walworth, in another case, a deed be declared Toid by statute, on account of some illegal or fraudulent provision therein, all the provisions of the deed must fall together. Rogers v. De Forest, 7 Paige, 211. Finally, in the court of errors, in Hone's Executors v. Van Schaick, 20 Wendell, 564, the same salutary principle, advanced by the judges of the supreme court, in Root v. Stuyvesant, was declared, and adopted, and settled in the last resort. A bequest in a will, in itself free from objection, and having no necessary connection with a trust adjudged void, was held to be valid, and a Kke principle had been established in Hawley v. James, 16 Wendell, 61, and was also established in Darling v. Rogers, in the court of errors on appeal from chancery, 22 Wendell, 483. It is now considered to be the settled rule of law in New-Tork, that the will of a testator is to be canied into effect, so far as that in- tention is consistent with the rules of law. That although some of the objects for which a trust is created, or some future interests limited upon a trust estate are illegal and void, yet if any of the pm'poses of the trust are valid, the legal title vests in the trustees during the continuance of such valid objects of the trust, pro- vided the legal be not so mixed up with the illegal objects of the trust that the one cannot be sustained without giving effect to the other. L'ving v. De Kay, 9 Paige .B«p. 521.528.(1) * 1 P.Wms. 663. (1) AfBrtned in the court of errors. S. C. 5 Deni&e E. 640. Dnpro v. Thompson, 4 Barb. S. C. Rep. 280. 294 OP REAL PROPERTT. [Part VI. in devises of land, be made to yield to other expressions, or slight circumstances in the will, indicating an intention to confine the limitation to the event of the first taker dying without issue living at his death. The courts, according to Mr. Fearne, lay hold, with avidity, of any circumstance, however slight, and create almost imperceptible shades of distinction, to support limitations over of personal estates.^ • Fearne on Executory Devises, by Powell, 186. 239. 259. Doe v. Lyde, 1 Term Rep. 598. Dashiell v. Dashiell, 2 Earr. ifc Gill, 12*?. Eichelberger v. Ber- netz, l"? Serg. & Rawle, 293. Doe ex dem. Cadogan v. Ewart, 1 Adolph. & Ellis, 636. The conflict of opinion, as to the solidity of the distinction in Forth v. Chap- man, is very remartable, and foi-ms one of the most cm-ious and embarrassing cases in the la'w, to those -well disciplined minds that desire to ascertain and follow the authority of adjudged cases. Lord Hardwicke, (2 Atlc. Rep. 314.) Lord Thurlow, (1 Bro. 188. 1 Ves. jr. 286.) Lord Loughborough, (3 Ves. 99.) Lord Alvanley, (5, iUd. 440.) Lord Kenyon, (3 Term Rep. 133. 7 ibid. 595.) Sir William Grant, (IT Ves. 4*79,) and the court of K. B., in 4 Mavle <& Selw. 62, are authorities against the distinction. Lord Hardwicke, (2 Atk. Rep. 288. 2 Ves. 180. 616,) Lord Mansfield, {Cowp. Rep. 410. Den t. Shenton, 2 Ohilty's Rep. 662,) Lord El- don, (9 Ves. 203,) and the House of Lords, in Keily v. Powler, 6 Bro. P. C. 309. are authorities for the distinction. As Lord Hardwicke has equally commended, and equally condemned the distinction, without any kind of explanation, his author- ity may be considered as neutralized, in like manner as mechanical forces of equal power, operating in contrary directions, naturally reduce each other to rest. In the case of Campbell v. Harding, 2 Russell & Mylne, 390, it was held at the Rolls, and afterwards by the chancellor on appeal, that where by will, a sum of stock, and also real estate were given to C, and in case of her death without lawful issue then over ; she took an absolute interest in the stoch, inasmuch as the bequest over, limited after a general failui-e of issue, was void. The old rule was re-asserted. The American cases, without adopting absolutely the distinction in Forth v. Chap- man, are disposed to lay hold of slighter circumstances in bequests of chattels, than in devises of real estate, to tie up the generahty of the expression dying without issue, and confine it to dying without issue living at the death of the party, in order to support the devise over ; and this is the extent to which they have gone with the distinction. Executors of Moffat v. Strong, 10 Johns. Rep. 12. Newton v. Griffith, 1 Harr. & Gill, 111. Royall v. Eppes, 2 Munf. Rep. 479. Brummet v. Barber, 2 Hill's S. O. Rep. 544, 545. Williams v. Turner, 10 Yerger, 287. Robai-ds V. Jones, 4 Iredell N. O. Rep. 53. In Ai'nold v. Congi'eve, 1 Tamlyn, 347, it was said by the Master of the Rolls to be now perfectly well settled, that there is no difference with respect to a limitation of freehold and personalty, and the rule was also declared in ZoUicoffer v. ZoUicoffer 3 Battle's N. O. Rep. 438, on the ground of the presumed intention of the testator that executory limitations of land and chattels were to be construed alike, and to go over on the same event ; and in this last case in N. C, the limitation over a devise of land and chattels was held good where the gift was to the children, and in case of either dying without lawful heirs of the body, his share to go to the survivors. In Mazyck v. Vanderhost, 1 Bailey's Eq. Rep. 48, it was held that in a devise of real and personal estate to B., and to Lee. LX.] OF REAL PROPERTY. 295 *Tlie New- Yorh Revised Statutes^ have put an end *283 to all semblance of any distinction in the contingent limitation of real and personal estates, by declaring, that all the provisions relative to future estates should be construed to apply to limitations of chattels real, as well as to freehold estates ; and that the absolute ownership of personal property shall not be suspended by any limitation or condition whatever, for a longer period than during the continuance, and until the termination of not more than two lives in being at the date of the instrument containing the limitation or condition, or, if it be a will, in being at the death of the testator. In all other respects, limitations of future or contingent interests in personal property, are made subject to the rules prescribed in relation to future estates in land. The same limitation under the English law, which would create an estate tail if applied to real estates, would vest the whole interest absolutely in the first taker, if applied to chat- tels.b And if the executory limitation, either of land or chat- tels, be too remote in its commencement, it is void, and can- not be helped by any subsequent event,or by any modification or restriction in the execution of it. The possibility, at its creation, that the event on which the executory limitation depends, may exceed in point of time the authorized period, is fatal to it ; though there are cases in which the limitation the heirs of her body, but if she should depart this life leaving no heirs of her body, then over, the word " leaTing" restrained the otherwise indefinite failure of issue, to the death of the first taker, and that the Umitation over was good by way of ex- ecutory devise as to the personal estate, but was too remote, and void as to the real estate, although both species of property were disposed by the same words in the same clause of the will. This sanction of the case of Forth v. Chapman was in the court of appeals in South Cai'olina, in 1828, but the reporter, in an elaborate note annexed to the case, questions the reason, justice and applicability of the rule to the jurisprudence in this countiy, and ably contends that the rule of construction which imputes a difference of intention to a testator in respect to his real and per- sonal estate, when he devises both by the same words, ought to be abandoned. See the case of Moody v. Walker, 3 Arkansas Rep. 14Y, to the same point, and that case contains an able and elaborate discussion of the doctrine of executoi-y devises. ■ Vol. i. 724, sec. 2.3 : vol. i. '7'73, sec. 1, 2. Vide supra, p. 271. '' Attorney-General v. Bayley, 2 Bro. 553. Knight v. Ellis, ibid. 570. Lord Chatham v. Tothill, 6 Bro. P. 0. 450. Britton v. Twining, 3 Merivale, 176. Pat- erson v. Ellis, 11 Wendell, 259. See, also, st«pra, vol. ii.p. 354. 296 OF REAL PROPERTY. [Psrt TI- over has been held teo remote only ^ro tanto, or in relation to a branch of the disposition.^ *284 *IY. Of other matters relating to executory devises. When there is an executory devise of the real estate, and the freehold is not, in the mean time, disposed of, the inheritance descends to the testator's heir until the event hap- pens. So, where there is a preceding estate limited, "with an executory devise over of the real estate, the intermediate profits between the determination of the first estate, and the vesting of the limitation over, will go to the heir at law, if not otherwise appropriated by the wiU.'' The same rule applies to an executory devise of the personal estate ; and the inter- mediate profits, as well before the estate is tO' vest, as between the determination of the first estate, and the vesting of a sub- sequent limitation, will fall into the residuary personal estate."^ These executory interests, whether in real or personal estates, like contingent remainders, may be assigned or devised ; and they are transmissible to the representatives of the devisee, if he dies before the contingency happens : and they vest in th& » Fearne on Executory Devises, li^, wo. Phipps t. Kelynge, iftirf. 84. A limit!- atioD to an unborn child for life is not good, unless the remainder vests in interest at the same time. A gift ia remainder, expectant apoa the death of unbom- children, is too remote. 4 Russell, 311. In Hannan v. Osboni, 4 Paige, 366, there- was a devise of real and' personal estate to a sister and her children, with devise oyer, if she should die, and all her children, without leaving children. The sister had but one child at the making of the will, and at the testator's death. It was. held, that the sister took an estate for life, and the child a vested remainder in fee, subject to open and let in after-bom children, but that the hmitatibn over was void, as being too remote as to the after-bora children. In that case the real and personal estate was held subject to the same rule, and the chancellor said that there was no (Bfference in principle under the New-Tork Revised Statutes on this subject, between the devise of real and personal estates, in respect to limitations over. See, also, Gott V. Cook, "7 Paige, 521, and Hone v. Van Schaick, 1 Paige, 222, to the- same point. (1) - Pay's case, Cro. Eliz. 8T8. Hayward v. StiUingfleet, 1 Atk. Rep. 422. Hop- kms V. Hopkins, Cases temp. Talb. 44. « Chapman v. Blissel, Oases temp. Talb. 145. 3Duke of Bridgewater v. Egeiion,. 2 Vesey, 122. (1) CoUin T. CoUin, 1 Sarb. Sh. B. 631. Lee. LX.] OF KEAL PROPERTT. 297 representatives, either of the real or personal estate, as the case may be, when the contingency does happen."- In the great case of Thellusson v. Woodford,"" it was the declared doctrine, that there was no limited number of lives for the purpose of postponing the vesting of an executory in- terest. There might be an indefinite number of concurrent lives no way connected with the enjoyment of the estate ; for, be there ever so many, there must be a survivor, and the limitation is only for the length of that life." *The *285 purpose of accumulation was no objection to an execu- tory devise, nor that the enjoyment of the subject was not given to the persons dui-ing whose lives it was to accumulate. The value of the thing was enlarged, but not the time. The accumulated profits arising prior to the happening of the con- tingency, might all be reserved for the persons who were to take upon the contingent event ; and if the limitation of the executory devise was for any number of lives in being, and a reasonable time for a posthumous child to be born, and twenty-one years thereafter, it was valid in law. The devise in that case was, that all the real and personal estate of the testator should be converted into one common fund, to be vested in trustees in fee for the rents and profits to accumu- late during all the lives of all the testator's sons, and of all the testator's grandsons, bom in his lifetime, or living at his death, or then in ventre sa mere, and their issue, to receive the profits during all that time in trust, and to invest them from time to time in other real estates, and thus be adding income to principal. After the death of the last survivor of all the enumerated descendants, the estates were to be con- Teyed to those branches of the respective families of the sons who, at the end of the period, should answer the description of the heirs male of the respective bodies of the sons. The testator's object was to protract the power of alienation, by • Piabuiy v. Elkin, 1 P Wms. 563. Goodright v. Searle, 2 Wils. Sep. 29. Fearne on Executory Devises, 529 — 535. New-York Revised Statutes, vol. i. '726> sec. 35. Higden v. Williamson, Oases temp. Talb. 131. 2 Saund. Rep. 388, k. note. See, also, the concluding part of the last Lecture. ^ 4 Vesey, 227. 11 ibid. 112. S. C. " Lord Thurlow, in Robinson v. Hardcastle, 2 Bro. G. O. 80. Lord Eldon, ki Thellusson V. "Woodford, 11 Vesey, 145. 298 OF REAL PROPERTY. [Part VL taking in lives of persons who were mere nominees, without any corresponding interest. The trusts created by the Thel- lusson will, were held valid by the court of chancery and the decree was affirmed in the house of lords. The property was thus tied up from alienation, and from enjoyment for three generations ; and when the period of distribution shall arrive? the accumulated increase of the estate will be enormous.^- This is the most extraordinary instance upon record of cal- culating and unfeeling pride and"vanity in a testator, disre- garding the ease and comfort of his immediate descendants, for the miserable satisfaction of enjoying in anticipa- *286 tion *the wealth and aggrandizement of a distant pos- terity. Such an iron-hearted scheme of settlement, by withdrawing property for so long a period, from all the uses and purposes of social life, was intolerable. It gave occasion to the statute of 39 and iO Geo. III., c. 98, prohibiting there- after any person by deed or will, from settling or devising real or personal property, tor the purpose of accumulation, by means of rents or profits, for a longer period than the life of the settler, or twenty-one years after his death, or during the minority of any person or persons living at his decease, who, under the deed or will directing the accumulation, would, if then of full age, be entitled to the rents and profits.!" The New-Yorli Revised Statutes'' have allowed the accu- mulation of rents and profits of real estate, for the benefit of one or more persons, by wUl or deed ; but the accumulation must commence either on the creation of the estate out of which the rents and profits are to arise, and it must be made for the benefit of one or more minors then in being, and ter- minate at the expiration of their minority ; or if directed to » The testator died ia 1'797. He left three sons and three daughters, and half a imllion sterling, on an accumulating fund. If the limitation should extend to up- wards of one hundred yeai-s, as it may, the property will hare amounted to up- wards of one hundred millions sterling ! ■■ The TheUusson Act does not operate to alter any disposition in a will, except only the direction to accumulate. 2 Keen, 564. The New- York Revised Statutes, 1 R. S. 773, was founded on the TheUusson Act, suspending the absolute ownership of personal property, and does not apply to charitable perpetuities. Shotwell y. Mott, 2 Sandforis Ch. Rep. 56. ' Vol. i. 726, sec. 37 — iO. As to the regulation of accumulation of personal property, see ante, voL iL 353, note. Lee. LX] OF REAL PROPERTT. 299 commence at any time subsequent to the creation of the es- tate, it must commence within the time authorized by the statute for the vesting of future estates, and during the minori- ty of the persons for whose benefit it is directed, and termi- nate at the expiration of such minority. (1) If the direction for accumulation be for a longer time than during the minorities aforesaid, it shall be void for the excess of time ; and all other directions for the accumulation of the rents and profits of real estate are void. It is further provided, that whenever there is, by a valid limitation, a suspense of the power of alienation, and no provision made for the disposi- tion, in the mean time, of the rents and profits, they shall be- long to the persons presumptively entitled to the next event- ual estate. If the trust of accumulation of the income of personal property be void under the statute, the income de- scends as if the testator had died intestate.^ The intermediate rents and profits arising on an estate given by way of executory devise, will pass by a de- vise of *all the residue of the estate.'' But if these *287 are not devised, when the estate is devised to trustees for any lawful purpose whatever, they are then, at common law, thrown upon the heir for want of some other person to take them, and they attend the estate in its descent to the heir, and belong to him during the continuance of the trust estate. So, it is a settled rule, that where there is an execu- tory devise of a real estate, and the freehold is not, in the mean time, disposed of, the freehold and inheritance descends * Tail V. Vail, 4 Paige, Zll. In that case the chancellor considered the statute check to accumulation a salutaiy provision, and that no man ought to be permitted to withhold the income of his estate, for the sole pui-pose of hoarding up wealth by compound interest after his death, to provide for a second or a third futm'e generation, or even for his immediate descendants, to be given to them at the close of theii- lives, when they are no longer in a situation to enjoy it. The statute ought to be carried into effect according to its spirit and intent, and so as to meet and cor- rect those evils. But under the English statute, trusts by wills for accumulation dm-ing a life contraiy to the statute, are good for twenty-one years. Griffiths v. Vere, 9 Vesey, 12'7. '■ Stephens v. Stephens, Cases temp. Talh. 228. (1) Trusts for accumulation teing prohibited in New-Torlc, except for the benefit of minora, cannot be created for the benefit of a lunatic who is not a minor. Craig v. Craig, 8 Barb. Oh. iJ.76. 300 OF REAL PROPERTY. [Paa-t VI. to the testators's heir at law.^ If the profits are bequeathed, and the land left, in the mean time, to descend to the heir imtil the contingent limitation takes eflfect, and no other per- son made trustee of the profits, the heir becomes a trustee, and the rents and profits will accumulate in his hands for the benefit of the party under the will.'' ' Clarke v. Smith, 1 Lutw. "798. Hopldns v. Hopkins, Cases temp. Talb. 4A. Gibson v. Lord Mountfort, 1 Vesey, 485. Ami. 93. S. 0. Duffield v. Duffield, 1 Dow N. S. 268. 310. ^ Rogers t. Ross, 4 Johns. Ch. Rep, 388. LECTUKE LXI. OF USES Am) TEUSTS. I. Of uses. A USE is where the legal estate of lands is in A., in trust, that B. shall take the profits, and that A. will make and exe- cute estates according to the direction of B.=i Before the sta- tute of uses, a use ■was a mere confidence in a friend, to whom the estate was conveyed by the owner without consideration, to dispose of it upon trusts designated at the time, or to be afterwards appointed by the real owner. The feoffee or trustee was, to aU intents and purposes, the real owner of the estate at law, and the cestui que use, had only a confidence or trust, for which he had no remedy at the common law. (1.) In examining the History of Uses, we shall find that they existed in the Eoman law, under the name oi fidei com- missa, or trusts. They were introduced by testators, to evade the municipal law, which disabled certain persons, as exiles and strangers, from being heirs or legatees. The inheritance or legacy was given to a person competent to take, in trust, for the real object of the testator's bounty. But such a confi- dence was precarious, and was called by the Eoman lawyers jus precarium ; for it rested entirely in the good faith of the trustee, who was under no legal obligation to execute it. Tq invoke the patronage of the emperor in favour of these defenceless trusts, they were created *under an appeal *290 to him, as rogoteper salutum, ovperfortunam Augusti. Augustus was fiattered by the appeal,, and directed the praj- tor to afford a remedy to the cestMi que trust ; and these fidu- ciary interests increased so fast, that a special equity juris- diction was created to enforce the performance of the trusts. • jOilberi on Usee, 1. 302 OP REAL PROPERTY. [Part VI. This " particular chancellor for uses," as Lord Bacon terms him, who was charged with the support of these trusts, was cdl\&^ prcEtor fidei commissarius."- If the testator, in his will, appointed Titius to be his heir, and requested him, as soon as he should enter upon the inheritance, to restore it to Caius, he was bound to do it, in obedience to the trust reposed in him. The Emperor Justinian gave greater efficacy to the remedy against the trustee, by authorizing the prsetor, in cases where the trust could not otherwise be proved, to make the heir, or any legatee, disclose or deny the trust upon oath, and when the trust appeared, to compel the performance of \i.^ The English ecclesiastics borrowed uses from the Eoman law, and introduced them into England in the reign of Ed- ward ni. or Eichard II., to evade the statutes of mortmain, by granting lands to third persons to the use of rehgious houses, and which the clerical chancellors held to be fidei commissa, and binding in conscience.'^ When this evasion of law was met and suppressed by the statute of 15 Richard II., uses were applied to save lands from the effects of attainders ; for the use, being a mere right in equity, of the profits of land, was exempt from feudal responsibilities ; and uses were afterwards applied to a variety of purposes in the business of civil life, and grew up into a refined and regular sys- *291 tem. They were required by the *advancing state of society, and the growth of commerce. The simplicity and strictness of the common law would not admit of secret transfers of property, or of dispositions of it by will, or of those family settlements which became convenient and desira- ble. A fee could not be mounted upon a fee, or an estate made to shift from one person to another by matter ex post facto ; nor could a freehold be made to commence infuturo, nor an estate spring up at a future period independently of any other ; nor could a power be reserved to limit the estate, or create charges on it in derogation of the original feofiinent. All such refinements were repugnant to the plain, direct mode • Inst. 2. 23. 1. Vinnius, h. t. Bacon on the Statute of Uses, Law Tracts, 315. b Inst. 2. 23. 12. • Blacks. Com. 328. Saunders on Xlsea and Trusts, 14. Lee. LXL] OF REAL PROPERTY. 303 of dealing, natural to simple manners and unlettered ages. The doctrine of livery of seisin rendered it impracticable to raise future usfes upon feoffment ; and if a person wished to create an estate for life, or in tail, in himself, he was obliged to convey the whole fee to a third person, and then take back the interest required. Conditions annexed to the feoffment would not answer the purpose, for none other than the grantor, or his heir, could enter for the breach of it ; and the power of a freeholder to destroy all contingent estates by feoffment or fine, rendered all such future limitations at common law very precarious. The facility with which estates might be modified, and fu- ture interests secured, facilitated the growth of uses, which were so entirely different in their character from the stern and unaccommodating genius of feudal tenure. " Uses," said Lord Bacon, " stand upon 'their own reasons, utterly different from cases of possession."* They were well adapted to answer the various purposes to which estates at common law could not be made subservient, by means of the relation of trustee and cestui que use, and by the power of disposing of uses by will, and by means of shifting, secondary, contingent, springing and resulting *uses, and by the reservation *292 of a power to revoke the uses of the estate, and direct others. These were pliable qualities belonging to uses, and which were utterly unknown to the common law, and grew up under the more liberal, and more cultivated principles of equity jurisprudence. The contrast between uses and estates at law was extremely striking. When uses were created before the statute of uses, there was a confidence that the feoffee would suffer the feoffor to take the profits, and that the feoffee, upon the request of the feoffor, or notice of his will, would execute the estate to the feoffor and his heirs, or according to his directions.'' "When the direction -^as complied with, it was essentially a convey- » Bacon's Law Tracts, 310. Lord Bacon's Reading on the Statute of Uses, has a scholastic and quaint ail' peiTading it : but is very instructive to read, because it Is profoundly intelligent. *■ Lord Bacon says, that these properties of a use -were exceedingly well set forth by Wahnsley, J., in a case in 36 Eliz., to which he refers. Bacon's Law Tracts, SOT. 30i OP REAL PROPERTY. [Part VI ance by the feoffor, tlirough his agent the feoffee, who, though even an infant or feme covert^ was deemed in equity compe- tent to execute a power, and appoint a use. The existing law of the land was equally eluded in the selection of the appointee, who might be a corporation, or alien, or traitor, and in the mode of the direction, which might be by parol. As the feoffee to uses was the legal owner of the estate, he had complete control over it, and he was exposed to the ordi- nary legal claims, debts and forfeitures, to dower, curtesy, wardship and attainder. » "When uses were raised by convey- ances at common law operating by transmutation of posses- sion, the uses declared in such conveyances did not require a consideration. The real owner had divested himself of the legal estate, and the person in whom it was vested, being a mere naked trustee, equity held him bound in conscience to execute the directions of the donor. If, however, no uses were declared, then the feoffee, or releasee, took, to the use of the feoffor or releasor, to whom the use resulted ; for if *293 there was no consideration, and no declaration *of uses, the law would not presume that the feoffor or releasor intended to part with the use. But in the case of covenants to stand seised, and of a bargain and sale, which did not trans- fer the possession to the covenantee, or bargainee, the inherit- ance remained in the contracting party ; and it was a mere contract, which a court of equity would not enforce, for a use could not be raised when the conveyance was without a suffi- cient consideration. The same principle applied to the case of a release, which was a conveyance operating at common law.b Uses were alienable without any words of limitation requisite to carry the absolute interest ; for, not being held by tenure, they did not come within the technical rules of the common law.<= A use might be raised after a limitation in fee, or it might be created in futuTV, without any preceding limitation ; or the order of priority might be changed by shift- ing uses, or by powers ; or a power of revocation might be reserved to the grantor, or to a stranger, to recall and change » Oo. Liu. 271, b. note. I" Bacon on Uses, Imw Tracts, 312. Sugden on Powers, 5, 6. « 1 Co. 87. b, 100. v. Lee. LXI.] OF REAL PROPERTY. 305 the uses.* Uses were descendible, according to the rules of the common law, in the case of inheritances in possession.'' They were also devisable, as they were only declarations of trust binding in conscience ; and Lord Bacon, in opposition to Lord Coke, who, in ChudleigKs case, had put the origin of uses entirely upon the ground of frauds invented to elude the statutes of mortmain, maintained that uses were introduced to get rid of the inability at common law to devise lands." It is probable that both these causes had their operation, though the doctrine of uses existed in the civil law, and would natu- rally be suggested in every community by the wants and policy of civilized life. The wife could not be endowed, or the husband have his curtesy of a use, nor was the use avail- able by writ of elegit or other legal process in favour of the creditor of cestui que useA Lord Bacon complained that uses were " turned to deceive many of their just and reasonable rights." Uses were certainly perverted to mischievous pur- poses ; and the complaint is constant and vehement in the old books, and particularly in GhudleigK's case, and in the pre- amble to the statute of uses, against the abuses and frauds which were practised *by uses prior to the *294: statute of uses. It was the intention of the statute to extirpate such grievances, by destroying the estate of the feoifee to uses, and reducing the estate in the use to an estate in the land. There was a continual struggle maintained for upwards of a century, between the patrons of uses and the English parliament, the one constantly masking property, and separating the open legal title from the secret equitable owner- ship, and the other, by a succession of statutes, endeavouring to fix the duties and obligations of ownership upon the cestui que use. At last the statute of 27 Hen. VIII., commonly called the statute of uses, transferred the uses into possession by turning the interest of the cestui que use into a legal estate, and annihilating the intermediate estate of the feoffee ; so that if a feoifment was made to A. and his heirs, to the use of B. • Bro. Feoff, al. Use, pi. 30. Jenlc. Cent. 8. Co. 52. Co. Litt. 23Y, a. Preston on Estates, vol. i. 154. i" 2 Rol. Abr. 780. « Bacon's Law Tracts, 316. <■ 4 Oo. 1. Bro. Abr. tit. Executions. 90. Vol. IY. ' 30 806 OF REAL PROPERTY. [Pmt VI. and bis heirs, B., the cestui qus use became seised of the legal estate, by force of the statute. The legal estate, as soon as it passed to A., was immediately drawn out of him and trans- ferred to B., and the use and the land became convertible terms. (1) The equitable doctrine of uses was, by the statute, trans- ferred to the courts of law, and became an additional branch of the law of real property. Uses had new and peculiar qualities and capacities. They bad none of the lineaments of the feudal system, which had been deeply impressed upon estates at common law. Their influence was sufiB- cent to abate the rigour, and, in many respects, to destroy the simplicity of the ancient doctrine. When the use was changed from an equitable to a legal interest, the same qualities which were proper to it in its fiduciaiy state, followed it when it became a legal estate. The estate in the use, when it became an interest in the land, under the statute, became liable to all those rules to which common law estates were liable ; but the qualities which had attended uses in equity, were not separated from them when they changed their nature, and became an estate in the land itself. If they were contingent in their fiduciary state, they became *295 contingent interests in the land. They *were still liable to be overreached by the exercise of powers, and to be shifted, and to cease, by clauses of cesser^ inserted in the deeds of settlement. The statute transferred the use, with its accompanying conditions and limitations, into the land.^ Contingent, shifting and springing uses, presented a method of creating a future interest in land, and executory devises owed their origin to the doctrine of shifting or spring- ing uses. But uses differ from executory devises in this re- spect ; that there must be a person seised to the uses when the contingency happens, or they cannot be executed by the " Brent's case, 2 Leon. 16. Manwood, J., 2 And. 15. Preston on Estates, vol. 155, 156. 158. (1) Where land was sold to several persons, in trust for the present and future members of an incorporated association, it was held that, under the statute of uses, the legal title vested in the vendee, in trust for the association, as a charitable use. If a beneficial use cannot take effect as a legal estate, it may, if consistent with the rules of law, take effect as a trust. Vandervolgen v. Yates, 8 Bari. Oh. B. 242. Lee. LXL] OF REAL PROPERTY. 361 Statute. If the estate of the feoffee to such uses be destroyed by alienation or otherwise, before the contingency arises, the use is destroyed for ever ; whereas, by an executory devise, the freehold is transferred to the future devisee."' Contingent uses are so far similar to contingent remainders, that they also require a preceding estate to support them, and take effect, if at all, when the preceding estate determines. The statute of uses meant to exclude all possibility of future uses,b but the necessity of the allowance of free anodifications of property introduced the doctrine, that the use need not be executed the instant the conveyance is made, and that the operation of the statute might be suspended until the use should ai'ise, provided the suspension was confined within reasonable limits as to time." In the DiiJce of JVorfoWs case, Lord ISTottingham was of opinion (as we have already seen,) that there was no inconvenience, nor any of the mischiefs of a perpetuity, in permitting future uses, under the various names of springing, shifting, contingent or secondary uses to be limited to the same period to which the law *permits the vesting of an executory devise to be post- *296 poned. Uses and contingent devises became parallel doctrines, and what, in the one case, was a future use, was, in the other, an executory devise. The statute having turned uses into legal estates, they were thereafter conveyed as legal estates, in the same manner, and by the same words."! The statute intended to destroy uses in their distinct state, but it was not the object of it to interfere with the new modes of conveyance to uses ; and the manner of raising uses out of the seisin created by a lawful transfer, stood as it had existed before. If it was really the object of the statute of uses to abolish uses and trusts, and have none other than legal estates, the wants and convenience of man- kind have triumphed over that intention, and the beneficial and ostensible ownerships of estates were kept as distinct as ever. The cestui que use takes the legal estate according to « 2 Blades, Com. 334. Fearneon Executory Devises,hj Powell, 86, note. ■• Sacon on Uses, Law Tracts, 335. 340. " Dyer, J., ia Bawell and Lucaa' case, 2 Leon. 221. Holt, Ch. J., in Davis v. Speed, 12 Mod. Rep. 38. 2 Salk. 675. S. 0. ^ Willed Rep. 180. 308 OF REAL PROPERTY. [Part VI. STich quality, manner and form as he had in the use. The complex and modified interests annexed to uses were engrafted upon the legal estate ; and upon that principle it was held to be competent, in conveyances to uses, to revoke a former limitation of a use, and to substitute others. The classifi- cation of uses into shifting or secondary, springing and fu- ture, or contingent and resulting uses, seems to be necessary, to distinguish with precision their nice and varying charac- ters ; and they all may be included under the general de- nomination of future uses. (2.) Shifting or secondary uses take efiect in derogation of some other estate, and are either limited by the deed creating them, or authorized to be created by some person named in it. Thus, if an estate be limited to A. and his heirs, with a proviso, that if B. pay to A. 100 dollars, by a given time, the use of A. shall cease, and the estate go to B. in fee, the estate is vested in A., subject to a shifting or secondary use *29'7 in fee in B. So, if the proviso be, *that C. may re- voke the use to A., and limit it to B., then A. is seised in fee, with a power in C. of revocation and limitation of a new use.=^ These shifting uses are common in all settlements ; and in marriage settlements the first use is always to the owner in fee till the marriage, and then to other uses. The fee remains with the owner until the marriage, and then it shifts as uses arise. These shifting uses, whether created by the original deed, or by the exercise of a power, must be con- fined within proper limits, so as not to lead to a perpetuity ; which is neatly defined by Sir Edward Sugden,*" to be such a limitation of property as renders it inalienable beyond the period allowed by law. If, therefore, the object of the power be to create a perpetuity, it is void.<= And yet, in England, it is well settled, that a shifting use may be created after an estate tail ; and the reason given is, that such a limitation, to take efi'ect at any remote period, has no tendency to a perpe- tuity, as the tenant in tail may, when he pleases, by a reco- very, defeat the shifting use ; for the recovery bars and de- • Bro. Feoff, al. Uses, 339, a. pi. 30. Mutton's case, Dyer, 2,14, b. Gilbert on Uses,hj Sugden, 152. 155. >> Gilbert on Uses, by Sugden, 260, note. « Spencer v. Duke of Marlborough, 5 Bro. P. C. 592. Lee. LXI.] OF REAL PROPERTY. 309 stroys every species of interest ulterior to the tenant's estate. It is on this principle that a power of sale or exchange, in cases of strict settlement, is valid, though not confined to the period allowed for suspending alienation, provided the estate be regularly limited in tail."^ Shifting and secondary uses may be created by the execution of a power ; as if an estate be limited to A. in fee, with a power to B. to revoke and limit new uses, and B. exercises the power, the uses created by him will be shifting or secondary in reference to A.'s es- tate ; but they must receive the same construction as if they had been created by the original deed. (3.) Springing uses are limited to arise on a future event, *where no preceding estate is limited, and they *298 do not take effect in derogation of any preceding inte- rest. If a grant be to A. in fee, to the use of B. in fee, after the first day of January next, this is an instance of a spring- ing use, and no use arises until the limited period. The use, in the mean time, results to the grantor, who has a determina- ble fee.'' A springing use may be limited to arise within the period allowed by law in the case of an executory devise. A person may covenant to stand seised, or bargain and sell, to the use of another at a future day.^ By means of powers, a use, with its accompanying estate, may spring up at the will of any given person. Land may be conveyed to A. and his heirs, to such uses as B. shall by deed or will appoint, and in default of, and until such appointment, to the use of C and his heirs. Here a vested estate is in C subject to be divested or destroyed at any time by B. exercising his power of ap- pointment, and B., though not the owner of the property, has such a power, but it extends only to tJie use of the land, and the fee simple is vested in the appointee, under the operation of the statute of uses, which instantly annexes the legal es- tate to the use."! These springing uses may be raised by any form of conveyance ; but in conveyances which operate by ' NichoUs V. Sheffield, 2 Bro. 218. St. George v. St. George, in the House of Lords, cited in Gilbert on Uses, by Sugden, 151. <> Woodliffe T. Druiy, Cro. Eliz. 439. Mutton's case, Dyer, 2H, b. " Roe V. Tranner, 2 Wih. Rep. 75. Holt, Ch. J., 2 Salk. Rep. 675. Rogers v. Eagle Fire Insurance Company of New- York, 9 Wendell. 611. ■* Williams on the Principles of Real Propei-ty, Part II. ch. 3, p. 231. 310 OF REAL PROPERTY. [Part VI. way of transmutation of possession, as a feoffment, a fine or deed of lease and release, the estate must be conveyed, and the use be raised out of the seisin created in the grantee by the conveyance. A feoffment to A. in fee, to the use of B. in fee, at the death of C, is good, and the use would result to the feoffor, until the springing xise took effect by the death of 0.=^ A good springing use must be limited at once, inde- pendently of any preceding estate, and not by way of re- mainder, for it then becomes a contingent and not a springing use ; and contingent uses, as we have already seen, are subject to the same rules precisely as contingent remainders. The other mode of conveyance by which uses may be raised, ope- rates, not by transmutation of the estate of the grantor, but the use is severed out of the grantor's seisin, and executed by the statute. This is the case in covenants to stand seised, and in conveyances by bargain and sale. (4.) Future^ or contingent uses, are limited to take effect as remainders. If lands be granted to A. in fee, to the use of B., on his return from Rome, it is a future contingent use, because it is uncertain whether B. will ever return.'' *299 *(5.) If the use limited by deed expired, or could not vest, or was not to vest but upon a contingency, the use resulted back to the grantor who created it. The rule is the same when no uses are declared by the conveyance. So much of the use as the owner of the land does not dispose of, remains with him. If he conveys without any declaration of uses, or to such uses as he shall thereafter appoint, or to the use of a third person on the occurrence of a specified event, in all such cases there is a use resulting back to the grantor.'' (6.) The English doctrine of uses and trusts, under the statute of 27 Henry VIH., and the conveyances founded thereon. > Gilbert on Uses, by Sugden, 163. 176. '■ Sir Edward Sugden, in a note to his edition of Gilbert on Uses, 1,')2 — 178, has given a clear and methodical analysis, definition and description of these various modifications of future uses. In Mr. Preston's Abstracts of Title, voL i. 105, 106, 107, and vol. ii 151, we have, also, illustrations of the various shades of distinction between them. « Co. Liu. 28, a. 271, b. Sir E. Clere'scase, 6 Co. 17, b. Armstrong v. Whole- sey, 2 Wils. Rep. 19. Lee. LXI.] OF REAL PROPERTY. 311 have been very generally introduced into the jurisprudence of this country.'' But in the remarks which accompanied the bill for the revision of the JSTew-Tork statutes, relative to uses and trusts, the following objections were made to uses as they now exist. (1.) They render conveyances more complex, ver- bose and expensive than is requisite, and perpetuate in deeds the use of a technical language, unintelligible as a " myste- rious jargon," to all but the members of one learned profes- sion. (2.) Limitations intended to take effect at a future day, may be defeated by a disturbance of the seisin, arising from a forfeiture or change of the estate of the person seised to the use. (3.) The difficulty exists of determining whether a par- ticular limitation is to take effect as an executed use, as an estate at common law, or as a trust. These objections were deemed so strong and unanswerable, as to induce the revisers to recommend the entire abolition of uses. They con- sidered, that by making a *grant, without the actual *300 delivery of possession, or livery of seisin, effectual to pass every estate and interest in land, the utility of convey- ances deriving their effect from the statute of uses would be superseded ; and that the new modifications of property which uses have sanctioned, would be preserved by repealing the rules of the common law, by which they were prohibited, and permitting every estate to be created by grant which can be created by devise. The New- Yorh Revised Statutes^ have, accordingly, declared, that uses and trusts, except as autho- rized and modified in the article, were abolished ; and every estate and interest in land is declared to be a legal right, or • Chamberlain v. Crane, 1 N. B. Rep. 64. Exeter v. Odiorne, H. 23'7. French v. Fi-ench, 3 ibid. 239. Parsons, Ch. J., in Marshall v. Fish, 6 Mass. Rep. 31. Johns. Rep. passim. 3 Binney's Rep. 619. It is doubted whether the statute of uses was ever in force in the state of Ohio. Thompson v. Gibson, 2 Ohio Rep. 439. Helfeinstine t. Garrard, ibid. 270. The statute of uses of Hen. VIII, was a part of the colonial law of Virginia; but the Revised Statutes of Virginia, since 1'792, adopted as a substitute, the provisions which only executes the seisin to the use in the cases of deeds of bargain and sale, of lease and release, and of covenants to stand seised to use. The statute only executes the seisin to the use in those speci- fied cases, and does not, like the English statute, include every case where any per- son should stand seised to the use of any other person. Lomax's Digest of the Laws respecting Real Property, vol. i. 188. ^ Vol. L "727, sec. 45, 46. 312 OP REAL PROPERTT. [Part VI. cognizable in the courts of law, except where it is otherwise provided in the chapter ; and every estate held as an use exe- cuted under any former statute, confirmed as a legal estate. The conveyance by grant is a substitute for the conveyance to uses ; and the future interests in land may be conveyed by grant as well as by devise.^ The statute gives the legal es- tate, by virtue of a grant, assignment or devise ; and the word assignment was introduced to make the assignment of terms, and other chattel interests„pass the legal interest in them, as well as in freehold estates ; though, under the Eng- lish law, the use in chattel interests was not executed by the statute of uses. The operation of the statute of New-Tork, in respect to the doctrine of uses, will have some slight effect upon the forms of conveyance, and it may give them more brevity and sim- plicity. But it would be quite visionary to suppose that the science of law, even in the department of conveyancing, will not continue to have its technical language, and its various, subtle and profound learning, in common with every other branch of human science. The transfer of property assumes so many modifications, to meet the varying exigencies of spe- culation, wealth and refinement, and to supply family *301 wants and wishes, that the *doctrine of conveyancing must continue essentially technical, under the inces- sant operation of skill and invention. The abolition of uses does not appear to be of much moment, but the changes which the law of trusts has been made to undergo, becomes extremely important.'' • New-Yorlc Revised Statutes, vol. i. tii sec. 24. Ibid. *IZ&, T39, sec. 137, 138. 142. 146. Ibid. 121, sec. 47. ' Lord Hardwicke is reported to have said, in the course of his opinion, in Hop- kins T. Hopkins, (1 AtJc. Rep. 691,) that the statute of uses had no other effect than to add, at most, three words to a conveyance. This was rather too strongly ex- pressed ; but I presume the abohtion of uses ■with us will not have much greater effect. It was the abolition of a phantom. The word grant is not more intelligible to the world at large, than the words bargain and sale ; and the fiction indulged for 200 yeai's, that the bargain raised a use, and the statute transferred the posses- sion to the use, was as cheap and harmless as any thing could possibly be. It would, perhaps, have been as wise to have left the statute of uses where it stood, and to have permitted the theoiy engrafted upon it to remain untouched, consid- ering that it had existed so long, and had insinuated itself so deeply and so tho- roughly into every branch of the jui-isprudence of real property. Lee. LXL] OF REAL PROPERTY. 313 II. Of trusts. The object of the statute of uses, so far as it was intended to destroy uses, was, as we have already seen, subverted by the courts of law and equity. (1.) Growth and doctrine of trusts. It was soon held, that the statute executed only the first use, and that a use upon a use was void. In a feoffment to A., to the use of B., to the use of C, the statute was held to execute only the use to B., and there the estate, res ted, and the use to 0. did not take effect."! J^ a bargain and sale to A. in fee, to tbe use of B. in fee, the statute passes the estate to A., by executing the use raised by the bargain and sale ; but the use to B., being a use in the second degree, is not executed by the statute, and it becomes a mere trust, and one which a court of equity will recognise and enforce.^ Shifting, or substituted uses, do not fall within this technical rule at law, for *they are merely alternate uses. Thus, *302 a deed to A. in fee, to the use of B. in fee, and if C. should pay a given sum in a given time, then to C. in fee ; the statute executes the use to B., subject to the shifting use declared in favour of C." Chattel interests were also held not to be within the statute, because it referred only to per- sons who were seised ; and a termor was held not to be tech- nically seised, and so the statute did not apply to a term for years. d An assignment of a lease to A., to the use of B., was held to be void as to the use, and the estate was vested wholly in A. This strict construction at law, of the statute, gave a pretext to equity to interfere ; and it was held in chancery, that the uses in those cases, though void at law, were good in equity ; and thus uses were revived under the name of trusts. « * TyrreU'a case, Dyer, 155. 1 And. 37. Meredith v. Jones, Cro. C. 244. Lady Wletstone v. Bury, 2 P. Wms. 146. Doe v. Passmgham, 6 Barnw. cfc Cress. 305. ^ Lord Hardwicke, in Hopkins v. Hopkins, 1 Atk. 591. Jackson v. Caiy, 16 Johns. Rep. 302. " Preston on Abstracts, vol. i. 307 — 310. ^ Anon., Dyer, 369, a. » A conveyance in trust to receive the profits, and pay them over to a tliu'd person, was never a use within the statute, but an equitable trust at common law. 314 OF REAL PEOPERTT. [Part VI. A regular and enlightened system of trusts was gradually form- ed and established. The ancient use was abolished, with its manifold inconveniences, and a secondary use or trust intro- duced. Trusts have been modelled and placed on true foun- dations, since Lord Nottingham succeeded to the great seal ; and we have the authority of Lord Mansfield for the asser- tion, that a rational and uniform system has been raised, and one proper to answer the exigencies of families, and other civil purposes, without any of the mischdefs which the statute of uses meant to avoid. ^^ Trusts have been made subject to the common law canons of descent. They are deemed capable of the same limitations as legal estates ; and curtesy was let in by analogy to legal estates, though, by a strange anomaly, dower has been ex- cluded.'' Executed trusts are enjoyed in the same condition, and entitled to the same benefits of ownership, and are, con- sequently, disposable and devisable, exactly as if they *303 were legal estates ; and these rights the *cestui que tr%ist possesses, without the intervention of the trustee. Any disposition of the land by the cestui que trust, by con- veyance or devise, is binding upon the trustee.'' In limita- tions of trusts, either of real or personal estates, the construc- tion, generally speaking, is the same as in the like limitations of legal estates, though with a much greater deference to the testator's manifest intent.^ And if the statute of uses had only the direct effect of introducing a change in the form of conveyance, it has, nevertheless, gradually given occasion to such modifications of property as were well suited to the vary- ing wants and wishes of mankind, and affording an opportu- nity to the courts of equity of establishing a code of very re- fined and rational jurisprudence.^ " Lord Mansfield, in Burgess v. Wheate, 1 W. Blacks. Rep. 160. '' But see supra, pp. 44. 46. ° Nortb V. Champernoon, 2 Ch. Cas. IS. Lord Alvanley, in Philips v. Brydges, 8 Vesejf, 127. ^ Lord Hardwicke, in Garth v. Baldwin, 2 Vesei/, 655. Saunders on Uses, 181, PhiL edit. 1830. " Siigden's Int. to Gilbert on Uses, contains an interesting summary of the rise and progress of uses, down to the statute of uses, and of the effect of the statute upon them. A masterly sketch is given by Lord Mansfield, in his opinion in Bur- Lee. LXI.] OF REAL PROPERTY. 316 Trusts are now what tises were before the statute, so far as they are mere fiduciary interests, distinct from the legal es- tate, and to be enforced only in equity. (1) Lord Keeper Henley, in Burgess v. Wheate,^ observed, that there was no difference in the principles between the modern trust and the ancient use, though there was a wide difference in the appli- cation of those principles. The difference consists in a more liberal construction of them, and, at the same time, a more giiarded care against abuse. The cestui que trust is seised of the freehold in the contemplation of equity. The trust is re- garded as the land, and the declaration of trust is the disposi- tion of the land. But though equity follows the law, and applies the doctrines appertaining to legal estates *to trusts, yet, in the exercise of chancery jurisdiction *304: over executory trusts, the court does not hold itself strictly bound by the technical rules of law, but takes a wider range, and more liberal view, in favour of the intention of the parties. An assignment, or conveyance of an interest in trust, will carry a fee, without words of limitation, when the intent is manifest. The cestui que trust may convey his in- terest at his pleasure, as if he were the legal owner, without the technical forms essential to pass the legal estate. There is no particular set of words, or mode of expression, requisite for the purpose of raising trusts.'' The advantages of trusts in the management, enjoyment and security of property, for the multiplied purposes arising in the complicated concerns of life, and pinncipally as it respects the separate estate of the wife, and the settlement of portions upon the children, and the security of creditors, are constantly felt, and they keep increasing in importance as society enlarges and becomes re- ge8s T. Wheate ; but the historical view of thia subject, by Sir Wm. Blachstone in his Commentaries, (vol. ii. 328-337,) is neat and comprehensive to a superior degree. * 1 TK Blacks. Rep. 180. ' Gibson v. Mountfort, 1 Ves. 491. Lord Hardwicke, in Villiera v. Villiers, 2 Ath. Hep. 72. Gates v. Cooke, 3 Burr Rep. 1684. Fisher v. Fields, 10 Johns. Rep. 495. Preston on Abstracts, vol. ii, 233, 234. Saunders on Uses, 215, 216. (1) Ejectment cannot be maintained by tbe beneficiary of a resulting trust; nor can the bene- ficiary defend himself against such an action brought by a trustee. Moore v. Spellman, 5 Denio^s B. 2S5. 316 OF REAL PROPERTY. [Part VI. fined. The decisions of the courts of justice bear uniform tes- timony to this conclusion.^ A trust, in the general and enlarged sense, is a right on the part of the cestui que thrust to receive the profits, and to dis- pose of the lands in equity. But there are special trusts, for the accumulation of profits, the sale of estates, and other dis- positions of trust funds, which preclude all power of interfe- rence on the part of the cestui que trust, until the purposes of the trusts are satisfied.'' Trusts are of two kinds, executory and executed. A trust is executory, when it is to be perfected at a future period by a conveyance or settlement, as in *305 the case of a conveyance to *B. in trust, to convey to C. It is executed, either when the legal estate passes, as in a conveyance to B. in trust, or for the use of C, or when only the equitable title passes, as in the case of a conveyance to B., to the use of C, in trust for D. (1) The trust in this last case is executed in D., though he has not the legal estate.'= (2.) How created. Though there be no particular form of words requisite to create a trust if the intention be clear, yet the English statute of frauds, 29 Car. II., c. 3, sees. T, 8, (and which is generally the adopted law through this country,) requires the declara- tion or creation of trusts of lauds to be manifested and proved by some writing signed by the party creating the trust; and all grants or assignments of any trust or confidence are also to be in writing, and signed in like manner. "^ It is sufficient un- der the statute if the terms of the trust can be duly ascertained • Neville v. Saunders, 1 Vern. 415. Say cSt Seal v. Jones, 1 Bq. Cas. Abr. R83, pi. 4. Harton v. HartoD, 1 Term Rep. 662. Bagehaw v. Spencer, 1 Coll. Jurid. 378. Benson v. Leroy, 4 Johns. Ch. Sep. 651. ■i Saunders on Uses, 186. • Preston on Estates, vol. i. 190. Where real estate is devised to A. and his heirs in trust, to pernait the wife to take the rents and profits simply, the use would be exe- cuted by the statute ; but when the trustee has some duty to perfoi-m, as to permit the wife to take the net rents and profits for life, subject to a rent charge, and with remainders over, the legal estate in fee remains in the trustee. Wroth & Wife v. Greenwood, Home & Hurlstone's Rep. vol. i. 389. •» New-York Revised Statutes, vol. ii. ISY, sec. 2. S. P. (1) Dennison v. Goelhring, 7 Barr''s M. ITS. ITT. Leo. LXI.] OF REAL PROPERTY. 317 by the writing. A letter acknowledging the trust will be sufficient to establish the existence of it. A trust need not be created by writing, but it must be evidenced by writing. * In addition to the various direct modes of creating trust estates, there are resulting trusts implied by law from the manifest intention of the parties, and the nature and justice of the case ; and such trusts are expressly excepted from the operation of the statute of frauds.'' Where an estate is pur- chased in the name of A., and the consideration money is ac- tually paid at the time by B., there is a resulting trust in fa- vour of B., provided the payment of the money be clearly proved. The payment, at the time, is indispensable to the creation of the trust ; and this fact may be established, or the resulting trust rebiitted, by parol proof.'' Lord Hardwicke * Lord Alvanley, 3 Vesey, 70Y. Leman T. Wliitley, 4 Mussel!, 423. Fisher t. Fields, 10 Johns. Rep. 495. Steeve t. Steeve, 5 Johns, Ch. Rep. 1. Movan v. Hays, 1 ibid. 339. Rutledge v. Smith, 1 H'CoriTs Oh. Rep. 119. In North Caro- lina, the law on this point is the same as the English law was before the statute of frauds, and parol declarations of tmst are valid. Foy v. Foy, 2 Ilayw. 141. In a will, a devise to A., with a recommendation or request to provide in his discre- tion for B., was held not to be sufficient to raise a trust in favour of B., by reason of the discretion. Heneage v. Lord Andover, 10 Price, 230. But where the tes- tator gave, by will, all his estate to his wife, having confidence that she would dis- pose of it, after her decease, according to his views, communicated to her, and it bemg alleged that the testator, at the time of making the will, desired Ids wife to give the whole of his property to B., and that she promised to do it, it was held, that the allegation being proved, a, trust would be created, as to the whole of the property, in favour of B. Podmore v. Gunning, 7 Simons, 644. When the words desire, request, entreat, confidence, hoping, recommending, &c., will be sufficiently imperative to create a trust, see the leanied note to Lawless v. Shaw, Lloyd Ryal V. Ryal, 1 Atk. Hep. 59. Amb. 413. Bartlett v. Pickersgill, 1 £;den's Rep. 515. Lane v. Dighton, Amb. 409. Wray v. Steele, 2 Vesey & Beame, 338, Stoiy, J., 3 Mason's Rep. 364. ' Kirk V. Webb, Free, in Chan. 84. Ryal v. Ryal, Amb. 413. If one partner purchase lands with partnership funds, a resulting trust will arise. Philips v. Crammond, 2 Wash. Cir. Rep. 441. ^ Holdridge v. Gillespie, 2 Johns. Ch. Rep. 30. Davoue v. Fanning, ibid. 252, and the vai-ious cases there refen-ed to. Philips v. Crammond, 2 Wash. Cir. Rep. 441. « OUver T. Piatt, 3 Howard:s XT. S. Rep. 333. 401. '•Randall v. Bookey, Free, in Ch. 162. Emblyn v. Freeman, ibid. 541. Stone- house V. Evelyn, 3 P. Wins. 252. Digby v. Legard, cited in ibid. 22, note. e The general rule is, that trustees are responsible only for their own acts, and not for the acts of each other. 2 Story's Eq. 520. But one trustee is liable for an (1) Brothers v. Porter, 6 B. 3fon. R. lOG. Pierce v. Pierce, 7 id. 438. But if a person talces a conveyance in trnst, and Mrwieifpays tlie purchase-money, tlae trust will be enforced. Deunison V. Goehring, T Barr'a Bep. 175. 320 OF REAL PROPERTY. [Part VI. the benefit of a third person without his knowledge, he may, when he has notice of it, affirm the trust, and call upon the court to enforce the performance of it.^^ (1) Collateral securi- abuse of trust by his co-trustees. (1.) When the money has been received jointly. (2.) When a joint receipt has been given, unless it be shown by satisfactoiy proof that the joining in the receipt was necessaiy, or merely fonnal, and that the money was in fact paid to the co-trustee. (3.) When the moneys were in fact paid to his companion, yet so paid by his act, direction > or agreement. Monell v. Monell, 6 Johns. Ch. Rep. 287. Pim v. Downing, 11 Serg & Rawle, 66. Deaderick v. Can- trell, 10 Terger, 2'70. Booth v. Booth, 1 Beav. 125. Lincoln v. Wright, 4 id. 427. Joint trustees cannot separately act or give a discharge. Montgomery v. Clark, 2 Atk. 379. Walker v. Symonds, 3 Swanston, 63. Hertell v. Van Buren, S JEd- wards' N. T. Ch. Rep, 20. (2) The power, interest and authority of co-trustees in the subject matter of the trust, being equal and undivided, they cannot, hke execu- tors, act separately, but all must join. (3) This principle enters into all cases depend- ing upon the discretion and judgment of the trustees, in contradistinction to acts of a mere ministerial natm'e. The former require the concurrence of all the trus- tees ; the latter may be performed by one. Vandever's Appeal, 5 Watts ck Serg. ,405. The same rule applies in the case of two or more assignees of a bankrupt. Opinions of the Attorneys-General of the United States, Washington, 1841, vol. i. 93. Bigby, ex parte, 19 Vesey, 463. ' Neilson v. Blight, 1 Johns. Cas. 205. Weston v. Barker, 12 Johns. Rep. 281. Small V. Dudley, 2 P. Wms. 427. Moses v. Murgatroyd, 1 Johns. Ch. Rep. 129. Cmn. Dig. tit. Chancery, 4. W. 5. Ibid. 2. A. 1. Story's Com. on Eq. Juris, vol. ii. 307. Suydam v. Dequindre, Harrison's Mich. Ch. Rep. 347. If a person re- ceives money, and promises to pay it over to a third person, that person may sue for it. Crumpton v. Ballai-d, 1 Shaw's V. Rep. N". S. 251. This doctrine, in a late case, has been much restricted in England. In the case of Garrard v. Lord Lau- derdale, (3 Simon's Rep. 1,) it was held, that if a debtor convey to a trustee, upon trust to sell, and pay certain schedule creditors, they cannot enforce the trust, unless they have become parties to the deed by executing it. See supra, vol. iL p. 533. But in Marigny v. Remy, 16 Martin's Louis. Rep. 607, it was decided, that one might have an action on a stipulation in his iavom- in a deed to which he was not a party. See Smith v. Kemper, 3 ibid. 622, and 4 ibid. 409, and Duchamp v. Nichol- son, 14 ibid. 672. S. P. This is conformable to the French law. Toullier, Droit Civil Franpais, liv. 3, tit 3, i;. 2, n. 150. Pothier, Traite des Oblig. H"o. 71. An action at law will not lie by a cestui que trust against a trustee or his executor, > Kew-York Revised Statutes, vol. i. "732, sec. 79. » New-York Revised Statutes, vol. i. T34, sec. 93, 95. Laws iVeio-Jorft, April 20th, 1830, c. 320, sec. 11. J Lord Mansfield, Doug. Rep. 293. Lord EUenborough, 3 East's Rep. 441. Jackson v. Veeder, 11 Johns. Rep. 169. Lee. LXII] OF REAL PROPERTY. 335 terial whether the donee of the power be authorized to limit and appoint the estate, or Avhether the language of the settle- ment goes at once to the practical effect intended, and author- izes the donee to sell, lease or exchange.^- A devise of an estate generally, or indefinitely, with a power of disposition over it, carries a fee.^ (1) But where the estate is given for life only, the devisee takes only an estate for life, though a power of disposition, or to appoint the fee by deed or will, be annexed ; unless there should be some manifest general in- tent of the testator, which would be defeated by adhering to this particular intent. "Words of implication do not merge or destroy an express estate for life, unless it becomes absolutely necessary to uphold some manifest general intent. <= The rule is more inflexible where a specific mode of exercis- ing the power is pointed out ; but if the estate *for life *320 be given to let in estates to strangers, and no specific mode is required in the disposition of the inheritance, there, if the intervening estates do not take effect, the devisee takes the entire fee.^ The New- York Revised Statutes^ have pro- vided for this case, by declaring, that where an absolute power of disposition, not accompanied by any trust, or a gene- ral and beneficial power to devise the inheritance, shall be given to the owner of a particular estate for life or years, such estate shall be changed into a fee, absolute in respect to the right of creditors and purchasers, but subject to any future estates limited thereon, in case the power should not be exe- cuted, or the lands sold for debt. So, if a like power of dis- • Sugden on Powers, 96. t Dalison's Rep. 58. 1 Jones, 137. Co. Litt. 9, b. See infra, p. 536. S. P. An estate for life, with an unqualified power to appoint an inheritance, makes the whole an equitable fee. Barford v. Street, 16 Vesey, 135. " 3 Leon. 71. 4 ibid. 41. S. C. Liefe v. SaltiDgstone, 1 Mod. Rep. 189. Doe T. Thonby, 10 Easfs Rep. 438. Tomlinson v. Dighton, 1 Salk. Rep. 239. Cross- ling v. Crossling, 2 Coa:, 396. Reid V. Shergold, 1 Vesey, 310. Jackson t. Robins, 16 Johns. Rep. 588. In the case of Flintbam, 11 Serff. & Rawle, 16. See, also, infra, pp. 535, 536. ' Sugden on Rowers, 96 — 101. ° Vol. i 732, sec. 81, 82. 84. (1) As to what power OYer real estate gives authority to make a conveyance in fee, see Ladd v.Ladd, 8 Hmo. B. 10. 336 OF REAL PEOPERTT. [Part TI. position be given to any person to whom no particular estate is limited, he takes a fee, subject to any future estates limited thereon, but absolute in respect to creditors and purchasers. The absolute power of disposition exists, when the grantee is enabled, in his lifetime, to dispose of the entire fee for his own benefit." (2.) Devise to executors. The earlier cases established the distinction that a devise of land to executors to sell, passed the interest in it ; but a devise that executors shall sell, or that the lands shall he sold hy them, gave them but a power. This distinction was taken as early as the time of Henry YI.,i' and it received the sanction of Little- ton and Coke, and of the modern determinations." A devise of the land to he sold ly the executors, confers a power, *321 and does not give any *interest.> Year Book, 9 Hen. Vl, 13, b. 24, b. ' Litt. sec 169. Co. Litt. 113, a. 181, b. Honell v. Barnes, Cro. 0. 382. Tates V. Compton, 2 P. Wms. 308. Bergen v. Bennett, 1 Caines' Cases in Error, 16. Jackson v. Schauber, 7 Cowen's Rep. 187. Peck v. Henderson, 1 Yerger, 18. ■■ Ferebee V. Proctor, 2 i)«j).(i£o«Ze, 489. S.O.Dev.d: Battle's Eg. ttis. 496. Tbis is the opinion of Sii" Edward Sugden, and I think it is, upon the whole, the better opin- ion ; but Mr. Hargrave thought differently ; and he refers to Lord Coke in support of the position, that if one devises lands to be sold by his executors, an interest passes. Sugden on Powers, 104 — 108. Harg. Co. Litt. 113, a. note, 146. A devise that exe- cutors or others may sell, is always a naked power. 1 Chance on Powers, 52. But it is understood that a person may by a single instrument be invested with a power coupled with an interest as to one estate, and a naked power as to another estate in tlie same land. Bloomer v. Waldron, 3 RilVs Rep. 361. The distinctions on this subject have the appearance of too curious and overstrained a refinement ; and Mr. Hargrave pushed hia opinion to the extent of holding, that a devise that executors should sell, and a devise of lands to be sold by executors, equally invested them with a fee. The general doctrine applicable to the subject is, that trustees are to be presumed to have been clothed with an estate commensurate with the charges or duties imposed on them, and were not by mere construction to take a greater estate than the nature of the tiiist requires. Lord Hardwicke, in Gibson V. Mountfort, 1 Vesey, 491. Heath, J., in Doe v. Barthrop, 5 Taunton, 385. ° New-Yorlc Revised Statutes, vol. i. 729, sec. 66. lee. LXIL] OF REAL PROPEETY. 337 tees are not also empowered to receive the rents and profits, shall vest no estate in the trustees ; but the trust shall be valid as a power, and the lands shall descend to the heirs, or pass to the devisees of the testator, subject to the execution of the p)ower." If the construction of this section be, that a devise of the lands to executors to be sold, does not pass an interest without a special aidliorityto receive the rents, then the estate does not, in any of the cases already mentioned, pass to the executors, and the devise is only a power simply collateral. The English rule is, that an estate may be conveyed to trus- tees to sell, with a provision that the rents and profits be, in the meantime, received by the party who would have been entitled if the deed had not been made, and yet the trustees will take a fee." If the trust be valid as a power, then, in every such case,'' " the lands to which the trust relates remain in, or descend to, the pei'sons *entitled, subject *322 to the trust as a power." The statute<= authorizes " ex- press trusts to be created to sell lands, for the benefit of cred- itors, or for the benefit of legatees, or for the purpose of satis- fying charges." These are the very trusts or powers relative to executors which we are considering ; and by the same stat- ute,'' " every express trust, valid as such in its creation, ex- cept as therein otherwise provided, vests the whole estate in the trustees, subject to the execution of the trust." The con- clusion would seem to be, that, as a general rule, every express trust created by will to sell lands, carries the fee with it ; but if the executors he not also empowered to receive the rents and profits, they take no estate, and the trust becomes a power without interest. This restriction of the general rule applies to the case of a " devise of lands to executors, to be sold or » Keene v. Deardon, 8 Easfs Rep. 248. In Ohio, a power given to executors to sell land, when they deem it can be done to good advantage, and distribute the proceeds, is a power with an interest, and entitles them to the possession of the land, though the fee in the mean time descends to the heir. Dabney v. Manning, 3 Ohio Rep. 321. ^ Nevj-Yorh Revised Statutes, vol. i. 729, sec. 69. = Ibid. vol. i. 729, sec. 55. * Ibid. vol. i. 729, sec. 60. In sales of lands by executors, under a power in the will, for the payment of debts and legacies, the sales must be conducted under the same regulations prescribed in the case of sales by order of any sm'rogate. Ibid. vol. ii. 109, sec. 66. Vol. IY. 22 338 OF REAL PROPERTY. [Part YI. mortgaged ;" and the usual case of a dvrection in the will to the executors to sell lands to pay debts or legacies, is not within the liberal terms of the restriction ; and it may be a question whether it be one of the cases in which, according to the 60th section above mentioned, "the whole estate is in the trus- tees."a (3.) Powers under the statute of uses. Powers of appointment and revocation may be reserved, in conveyances under the statute of uses, as well as in convey- ances at common law ; but the deed of bargain and sale, or of covenant to stand seised, must be sustained by a sufficient consideration, according to the nature of the deed. In conse- quence of the necessity of a consideration, a general power to lease, at the discretion of the donee, cannot be valid, even in a bargain and sale, or covenant to stand seised ; because a consideration must move from the lessee, or become a debt due from him, at the time that the deed creating the *323 power was executed ; and this cannot *tai:e place when the lessee is not then designated, as is the case in a general power.'' It is different in conveyances operating by way of ti'ansmutation of possession, as by fine or feoffment, because the feoffees become seised to uses, and are bound to execute them without reference to any consideration." A power given by will to sell an estate, is a common law authority, and it may also operate under the statute of uses. Lands may be devised without the aid of the statute of uses, and, on the other hand, the statute may operate on uses crea- ted by will, provided a seisin is raised to feed the uses created by it ; and the statute will, in most cases, transfer the posses- sion to them."^ The question has now become unimportant. • By the New- Jersey Revised Bills, as reported by the reviser in 1834, it was proposed, that a naked authority by will to executors to sell land, should give them the same interest and power over the estate for the purposes of the sale, and the same remedy by entry and action, as if the lands had been devised to them to be sold. This provision does not appear to have been enacted, but a provision in the same words exists in Pennsylvania. Purdon's Dig. 392. 1" Goodtitle v. Pettoe, Fitzg. 299. « Oilbert on Uses, by Bugden, 90, 91. Sugden on Pmcers, 191. ^ Sugden on Powers, 129 — 133. Mi'. Butler was of opinion, that uses created by will were executed by the statute of wills, and not by the statute of uses. The Lee. LXIL] OF REAL PROPERTY. 339 and is matter of mere speculation, as Mr. Butler, and after him, Mr. Sugden, equally admit. A devise to uses, without a seisin to serve the uses, is good ; and if an estate be devised to A. for the benefit of B., the courts will execute the use in A. or B., as the testator's intention shall clearly indicate ; for the intention controls every such question. The seisin must be co-extensive with the estate authorized to be created under the power ; and, therefore, if a life estate be conveyed to A., to such uses as B. should appoint, he can- not appoint any greater interest than that conveyed to A.^ It is upon the same principle that no estate can be limited through the medium of a power which would not have been valid if inserted in the deed creating *the power ; *324: and the estate, valid by means of a power, would have been so if limited by way of use in the original deed. When the object of the power is to create a perpetuity, it is simply void ;'' and when the power is void, or when no appointment is made under it, the estates limited in the instrument creating the power, take effect in the same manner as if the power had not been inserted."^ While upon this subject, it is proper to notice the question, which has been greatly discussed in the English com-ts, whether the estates limited in default of ap- pointment are to be considered as vested or contingent dm-ing the continuance of the power. The question was most learn- edly discussed in three successive arguments in the K. B., in Doe V. Martin,'^ and settled upon great consideration, that the estates so limited were vested, subject, nevertheless, to be divested by the execution of the power. The plain reason is, that there is no estate limited under the power until the ap- pointment be made. Lord Hardwicke had decided in the same way, on the same question, in Cunningham v. Moody,^ queation was, whethei' a devise to A. in fee, to the use of B. in fee, took effect by virtue of the statute of uses, or the statute of -wills. The opinion of that great conveyancer, Mr. Booth, whose opinions are often cited as quite oracular, was vi- bratory on the question. Butlers note, 231, to Co. Litt. 3. 5. lib. 3. Sugden on Powers, 130, note. ' Gilbert on Uses, 12'7. Sugden on Powers, 135. >■ Duke ofMarlborough v. Earl Godolphin, 1 Men's Rep. 404. " Sugden on Powers, 141. 4 4 Term Rep. 39. « 1 Vesey, 174. 340 OF REAL PROPERTY. [Part VI. and the doctrine is now definitely settled, and it applies equally to personal estates.^ III. Of the execution of powers. (1.) WTio may execute. Every person capable of disposing of an estate actually vested in himself, may exercise a power, or direct a convey- ance of the land. The rule goes further, and even allows an infant to execute a power simply collateral, and that only ; and a feme covert may execute any kind of power, whether simply collateral, appendant, or in gross, and it is im- *325 material whether it was given to her while sole *or married. The concurrence of the husband is in no case necessary.'" By the New- YorTc Revised Statutes,'^ though a power may be vested in any person capable in law of holding, it cannot be exercised by any person not capable of aliening lands, ex- cept in the case of a married woman. She may execute a power during her marriage, by grant or devise, according to the power, without the concurrence of her husband ; but she cannot exercise it during her infancy. If she be entitled to an estate in fee, she may be authorized by a power to dispose of it during her marriage, and create any estate which she might create if unmarried. "^ > Sugden on Powers, 144 •■ Sugden, uh. s!«/)..148— 155. Thompson v. MuiTay,2 Hill's S. G. Oh. Rep. 214. S. P. I have deemed it sufficient, on this particular subject, to refer to Sir Edward Sugden's very authoritative work, for principles that ai-e clearly settled, without overloading the pages with references to the adjudged cases. Mr. Sugden cites upwards of fifty cases to the point of the general competency of a feme covert, and the limited capacity of an infant, to execute a power. He says he has anxiously consulted the report of every case referred to in his volume. I have examined all his leading authorities, and have found them as he stated them. The work is admii'ably digested, and distinguished for perspicuity, accm'acy and plain good sense. » Vol i. 135, sec. 109, 110, 111. Ibid. vol. i. IST, sec. 130. i See supra, vol. ii. 1*71, 172. S. P. In Jackson v. Edwai-ds, 1 Paige, 386, where there was a conveyance to a feme covert, to hold for her separate use, during the ioiut hves of herself and her husband, and to such uses as she should by deed or writing appoint, and in default of such appointment, then to herself in fee, in case she survived her husband, and if not, and in default as aforesaid, then to such uses as she should by will appoint, and in default thereof, to the use of her childi-en, or I^c LXir.] OF REAL PROPERTY. 341 (2.) When powers survive. A naked authority, without interest, given to several per- sons, does not survive ; and it was a rule of the common law, that if the testator, by his will, directed his executors by name to sell, and one of them died, the others could not sell, because the words of the testator could not be satisfied. » There are, however, some material qualifications to the rule. The stat- ute of 21 Henry VIII., c. 4, declared, that the executors who accepted their trust might sell, though one or more of the exe- cutors should refuse to act.'' This statute has probably been generally adopted in this country, and it has been re- enacted in the successive *revisions of the statute law *326 of New-York. The provision is continued by the Wew- Yorh Revised Statutes j'^ but in other cases of powers granted issue living at her death, and in default of such issue, to her right heirs. It was held, that in default of appointment, the deed gave the "wife an absolute estate for life only, and a vested remainder in fee after her husband's death, subject to be divested in favour of children by her death in the lifetime of her husband ; and that, under the New-Tork Revised Statutes, vol. i. 732, sec. 80 — 85, the power to dispose of (ie contingent remainder, limited to her children, was valid, and if duly executed, would convey an estate fee to the appointee. ' Co. Liu. 112, b. 113. a. 181, b. Sheppard's Touch, tit. Testament, 448, pi. 9. Bro. tit. Devise, pL 31. Di/er, 111. Osgood v. Franklin, 2 Johns. Ch. Rep. 19. Peter v. Beverly, 10 Peters' XJ. S. Rep. 533. '' A power to sell land, confeired by will upon several executors, must be execut- ed by all who proved the will. (1) Wasson v. King, 2 Dm>. & Rattle, 262. But if one executor only acts, his sale under a power in the will is good. If the others do not assume the trust, the presumption will be, that they have renounced or re- fused to join in the sale. The delinquents need not renounce before the ordinary to render the acts of the other valid. A refusal in pais to act is sufficient. Per- Mns, sec. 545. Bonafault v. Greenfield, Oro. IE. 80. Geddy v, Butler, 3 Munf. 345. Wood V. Sparks, 1 Dev. tb Rattle, 389. Ross v. Close, 3 Dana's Ken. Rep. 195. If the will gives no direction to the executors to sell, but refers the power to sell to the judgment and discretion of the executors, all must join in the sale. Moor, 61, pi. 172. Lord Eldon, in Cole v. Wade, 16 Ves. 27. 45, 46, 47. "Walter V. Munde, 19 ibid. 424. Clay v. Hart, 7 Dana's Ken. Rep. 8, 9.(2) ' Vol. ii. 109, sec. 55. See, also, the Statute Laws of Connecticut, 1784, pi. 119 ; and of 1821, p. 304. Revised Code of Illinois, edit. 1833, p. 641. Statute of Kentucky, 1797. (1) Bnt it does not seem to be necessary that all should qualify or act in New-York, though the power of the executors be discretionary. Taylor v. Morris, 1 Comst. E.Zil. (2) Meakings v. Cromwell, 2 8andf. {Law) E. 512. It was held, in Miller t- Meotch, 8 Sarr's B. 41T, that a direction to executors to sell and distribnte among testator's children might be exercised by a surviving executor, and that the sale might take place after the time fix ed in the will ; it being in the nature of a trust. 342 OF REAL PROPERTY. [Part \X to more than one person, it is provided, that " where a power IS vested in several persons, all must unite in its execution ; though, if previous to such execution, one or more of them should die, the power may be executed by the survivors or 8urvivor."a The result of the English cases is, that where a power is given to two or more persons by their proper names, and they are not executors, or where it is given to them nomi- natim as executors, and the word executors is used as a mere descrvptio persona/rum, the power'does not survive without express words ; but where it is given to several persons by their name of trust, as, to my executors or trustees, or to several persons generally, as, to my sons, it will survive so long as the plural number remains.'' If the executors having the power to sell, are vested with any interest, legal or equitable, in the estate, or are charged with a trust relative to the estate, and depending on the power to sell, in these cases also the power survives." (1) If the will directs the estate to be sold, without naming a donee of the power, it naturally, and by implication, devolves upon the executors, provided they are charged with » Ibid. vol. i. 735, sec. 112. This ia no more than a declaration of the general rule of the common law, that all the persons named must join in the execution of a power; but the powers refen-ed to in the New-YorTc Revised Statutes, yoL i. "731 — 735, relate exclusively to lands. ^ Bro. tit. Devise, pi. 50. Perkins, sea 650, 551. Jerikins, 43, case 83. Co. Litt. 112, b. Dyer, 177, a. Sugden on Powers, 159. If power be given by will to the executors to sell land, the power survives, though they be named individual- ly, for the authority is given to them in theii- chai'acter of executors, lessee of Zebach v. Smith, 3 Binnejfs Rep. 69. Peter v. Beverly, 10 Peters' U. 8. Rep.5ZZ. 565. ° Co. lAtt. 112, b. Hearle v. Greenbank, 3 Ath. Rep. 714. Eyre v. Countess of Shaftesbuiy, 2 P. Wms. 102. Garfoot v. Garfoot, 1 Ch. Ga. 35. Barnes' case, Sir Wm. Jones, 852. Oro. G. 382. Osgood v. FranWin, 2 Johns. Ch. Rep. 20, 21. Muldi-ow v. Fox, 2 Dcma's Ken. Rep. 79. Peter v. Beverly, 10 Peters' U. S. Rep. 532. 564. Where the power to sell is coupled with an interest, or with an express trast, it may survive to one alone. Ibid. I apprehend that, by the statute law of the states generally, the sui'vivor and sm-vivors of several executors, with a devise to them of lands to sell, or a naked power to sell, and also the acting executor or executors, when one or more resigns or refuses to act, or is superseded, have the same interest and power in and over the estate, for the purpose of sale, as all might have bad. Purdon't Penn. Dig. 392. Mmei' s N. J. Dig. 698, 699. New-Yorh Revised Statutes, supra, p. 326, and note c. (1) WiUiamB V. Otey, 8 Humph. B. E Lee. LXII.] OF REAL PROPERTY. 343 the distribution of the fund.a(l) The power to sell *caimot be executed by attorney, when personal trust *32'r and confidence are implied, for discretion cannot be delegated.^ But if the power be given to the donee and Ms assigns, it will pass by assignment, if the power be annexed to an interest in the donee ;« and if it be limited to such uses ' Blatch V. Wilder, 1 Atk. Rep. 420. Davoue v. Fanning, 2 Johns. Oh. Rep. 254. See, also, 1 Yeates' Rep. 422. 3 Ibid. 163. Bogert v. Hertell, 4 Mil, N. Y. Bep. 492. Mr. Sugden, {Powers, 160 — 165,) mentions several ancient cases to the same effect. In South CaroUna, the executor's authority, to sell, under such cii'- cumstances, is denied ; and the course is to apply to chancery to glre validity to the sale. Drayton v. Drayton, 2 Dessauss. Rep. 250, note. But a decree in chancery, directing a person who has no power to sell, and has not the legal estate, to sell land, will not vest a legal estate in the vendee. The court, except in sales on ex- ecution from that court, or on partition, only directs those who have the legal es- tate, or who have a power to sell, to join in the sale. Ferbee T. Proctor, 2 Dev. & Batt. Sup. Court Rep. 439. 448, 449. New-York Revised Statutes, vol i. 734, sec. 101, would seem to have changed the law on this subject, and to have made it con- formable to the South Carolina practice, for it is declared, that where a power is created by will, and the testator has omitted to designate by whom the power is to be exercised, its execution shall devolve on the court of chancery. This is re- quu-ing a resort to chanceiy in every case where the executor, or other donee of the power, is not expressly named ; or where the power of sale by the executor is not impliedly included in the power given by the will to the executor over the produce of the sale. '' Combe's case, 9 Co. 75, b. Ingram v. Ingram, 2 Atk. Rep. 88. Cole v. Wade, 16 Vesey, 27. • How V. Whitfield, 1 Vent. 338, 339. The New-York Revised Statutes, vol. L 735, sec. 104, declai-e, that every beneficial power shall pass to the assignees of the estate and effects of the donee of the power, under an assignment in insolvent cases. In Virginia, if the executor renounces, the administrator with the will annexed may, under a statute authority, execute the power to sell. Brown v. Armistead, 6 Randolph's Rep. 594. It has been adjudged in New- York, where there is no statute authority iu the case, that a power to the executor to sell land, cannot after his death be executed by an administrator cum testamento annexo. The power is given to the executor as a personal trust. Conklin v. Egerton's adm. 21 Wendell, iSO. (2) Wills v. Cowper, 2 Hammond's Ohio Rep. 124. S. P. But in Kentucky a power given by wUl to executors t& sell land, devolves by operation of law, upon an administrator with the will annexed. Peebles v. Watts, 9 Dana's Rep. 102. Steele v. Moxley, ibid. 139. A statute of Kentucky of 1810, declares the rule. This is the case by statute in Worth Carolina. Revised Statutes, o. 46, sec. 34. (1) Meakings v. Cromwell, 2 Samd/. (.Lam) B. 612. (2) This case -was carried to the court of errors, and affirmed, but on another ground ; and much doubt is thrown on the decisiou of the supreme court. S. 0. 25 Wend, M. 224 See Gilchrist t. Eea, 9 Faige B. T2. 344: OF REAL PROPERTY. [Part VI. as A. shall appoint, it is equivaleDt to ownership in fee ; and, in such eases, the owner may limit it to such uses as another shall appoint.'i Should the appointment be to A., to the use of B., the statute would only execute the first use, and it would vest in A. under the original seisin ; and the use to B. would be void at law, though good in equity as a trust.*" (3.) Yalid execution of them. The appointee under the power derives his title, not from the person exercising the power, but from the instrument by which the power of appointment was created ; and it has been well observed in the New-Yorlc Remsed Statutes;'^ that no person can take nnder an appointment, who would not *328 have been capable of *taking under the instrument by which the power was granted. Every instrument of execution operates as a direction of the use ; and the appointee takes in the same manner as if the use had been limited to him in the original settlement creating the power. The use declared by the appointment under the power is fed (to use the mysterious language of the conveyancers) by the seisin of the trustees to uses in the original conveyance. The conse- quence of this principle is, that the uses declared in the execu- tion of the power must be such as would have been good if limited in the original deed ; and if they would have been void as being too remote, or tending to a perpetuity in the one case, they will be equally void in the other.'i A general power of appointment enables the party to appoint the estate » Combe's case, 9 Oo. 75, b. If an estate be giTen to A. for life, •with power of disposition by deed or will, he may execute the power and acquire an absolute interest. •> Sugden on Powers, 170. 181, 182. ' Vol. i. 737, sec. 129. ^ Badham v. Mee, 1 Mylne Siigden, 301. » Sugden, 321. J Ward V. Lenthal, 1 /Sa. iJep. 343. Hatcher v. Curtis, 2 if/sem. iJep. 61. Hele V. Bond, Free, in Ch. 474. Sugden on Powers, App. No. 2. S. C. YoL. IV. 23 364 OF REAL PROPERTY. [Part VI. anxiety to restrain thQ reservation of such powers of revoca- tion, and perhaps, from a desire to assimilate powers to con- ditions at common law ; and we are disposed to agree with Mr. Sugden, that there is no good reason why a general power of revocation in the original deed creating the power, should not embrace all future execution, since it is allowed to be affected repeatedly by new powers of revocation, *337 and since *a power of revocation in the original settle- ment, is tantamount to a power, not only of revocation, but of limitation of new uses; for he that has a power to revoke, has a power to limit.'' The New-Yorh Revised Statutes'^ have given due stability to powers that are beneficial, or in trust, by declaring that they are irrevocable, unless an autho- rity to revoke them be granted or reserved in the instrument creating the power. It is further declared, <= that where the grantor in any conveyance shall reserve to himself for his own benefit an absolute power of revocation, he shall be deemed the absolute owner of the estate, so far as the rights of creditors and purchasers are concerned. Under the check of this wise provision, preventing these latent and potent ca- pacities from being made instruments of fraud, the statute very safely allows^ the grantor, in any conveyance, to reserve to himself any power, beneficial or in trust, which he might lawfully grant to another. (7.) Relates tack to the insi/rumeni. An estate created by the execution of a power, takes effect in the same manner as if it had been created by the deed which raised the power. The party who takes under the ex- ecution of the power, takes under the authority, and under the grantor of the power, whether it applies to real or pei*- sonal property, in like manner as if the power, and the in- strument executing the power, had been incorporated in one » Anon. 1 Qh. Cas. 241. Colston v. Gardner, 2 ibid. 46. It may be doubted whether the case of Ward v. Lenthal, mentioned in the preceding note, be sufficient to -waiTant the doctrine, that a power of revocation in a deed executing a power, will not authorize the limitation of new uses. ' Vol. i. 735, sec. 108. • Ibid. Tol. i. 733, sec. 86. J Vol. i. 735, sec 105. Let. LXn.] OF REAL PHOPElRTT. B55 instrument.^ The principle that the appointee tates undet the original deed, was carried to the utmost extent *in Boach v. WadJiam^ a case which strikingly il- *338 lustrates the whole of this doctrine, and the singularly- subtle and artificial mechanism of the English settlement- law. An estate was conveyed to a trustee in fee to such uses as A. should by deed appoint, and in default of appointment to A. in fee. There was a fee-farm rent reserved in the con- veyance to the trustee, and A. covenanted to pay it. It was held, that A. took a vested fee, liable to be divested by the execution of his power of appointment. He sold and con- veyed tbe estate by lease and release, and, also, in the same conveyance, directed and appointed the estate and use to the purchaser. It was further held, that under this conveyance with a double aspect, the purchaser took the estate by the ap- pointment of A., and not by the conveyance from A. ; and, consequently, the purchaser was not subject to the covenant for the payment of rent, though it run with the land ; for he took as if the original conveyance had been made to himself, instead of being made to the trustee to uses. The rule that the estate, under the power, takes effect under the deed cre- ating the power, applies only to certain purposes, and as be- tween the parties ; and it will not be permitted to impair the intervening rights of strangers to the power. The deed un- der the power must be recorded, when deeds in general are required to be recorded, equally with any other deed." It does not take effect, by relation, from the date of the power, so as to interfere with intervening rights.^ The ancient doc- trine was, that a naked power could not be barred or extin- guished by disseisin, fine or feoffment.* It was held, that if a power to sell lands be given to executors, and the heir enters *and enfeoffs B., who dies seised, yet that *339 « lAtt. see. 169. Co. lAtt. 113, a. Cook v. Duckenfield, 2 Atk. Rep. 562—667. Marlborough v. Godolphin, 2 Ves. 78. Middleton v. Crafts, 2 Atk. Rep. 661. Bradish v. Gibbs, 3 Johns. Ch. Rep. B50. Doolittle T. Lewis, 7 ihid. 45. ■■ 6 Easts Rep. 289. • Scrafton v. Quincey, 2 Ves. 413. "■ Lord Hai-dwicke, io Marlborough v. Godolphin, 2 Yes. 78, and in Southby v. Stonehouse, ibid. 610. « 1 Co. 110. 173. Edwards v. Slater, Hard. 410. Willis v. Sherral, 1 Atk. Rep. 479. IB Hen. VIL, fo. 11. b. translated in App. No. 1. to Sugden on Powers. 356 OF REAL PROPERTY. [Part VI. the executors might sell, and the vendee would be in under the will, which was paramount to the descent, and that the power was not tolled by the descent. »• A dormant power, with such mysterious energy, founded on the doctrine of rela- tion, would operate too mischievously to be endured; and the doctrine to that extent has justly been questioned, and it would not now be permitted to destroy intervening rights, which had been created for a valuable consideration, and had duly attached upon the land without notice of the power. ij (8.) Defective execution aided. The beneficial interest which a person takes under the ex- ecution of a power, forms part of his estate, and is subject to his debts, like the rest of his property. The appointment cannot be made so as to protect the property from the debts of the appointee."^ A court of chancery goes further, and holds, that where a person has a general power of appoint- ment over property, and he actually exercises his power, whe- ther by deed or will, the property appointed shall form part of his assets, and be subject to the claims of creditors, in pre- ference to the claims of the appointee. The party must have executed the power, or done some act indicating an intention to execute it ; for it is perfectly well settled in the English law, that though equity will, in certain cases, aid a defective execution of a power, it will not supply the total want of any execution of it. The lord keeper, as early as the case *34:0 of Lassells *v. Cornwallis,^ declared, that where a person had a power to charge an estate for such uses ' Jenk. Cent. 184, pL 75. Bro. tit. Devise, pL 86. Parsons, Ch. J., 5 Mass. Rep. 242. The seisin remains undisturbed, in the case of an authority to executors to sell land, until the authority be exercised, and goes to the heir or devisee in the mean time subject to the power. i" Jackson v. Darenport, 20 Johns. Rep. 531. 550. 563. The law fixesfno defi- nite time within which an executor or administi'ator may apply to the testamentary court, and have real estate sold for the payment of debts. But if the application be not made within a reasonable time under the circumstances, it ought to be re- jected. Jackson v. Robinson, 4 WendelTs Rep. 436. Mooers v. White, 6 Johns. Ch. Rep. 360. 376—389. S. P. " Alexander t. Alexander, 2 Vesey, 640. The English insolvent acts, of 41 Geo. Ill, and 53 Geo. III., pass to the assignee all powers which the insolvent might have executed for his own advantage. i 2 Vern. Rep. 465. Free. in. Ch. 232. S. C. Lee. LXIL] OF REAL PROPERTY. 357 as lie sliould think fit, and he had by deed appointed it for the benefit of his children, the direction should be changed, and the fund applied for the payment of his debts. But if he wholly omitted to appoint, the court had not gone so far as to do it for him ; though he thought it would be very reason- able and agreeable to equity, when creditors were concerned. The same doctrine was afterwards repeatedly held by Lord Hardwicke.'' Property over which such a dominion was exercised by virtue of a general power, was considered an absolute property, so far as to be liable for debts ; but if it be a particular power to appoint for third persons designated in the power, and not for the benefit of the donee of the power, the conclusion would be difierent. Sir "William Grant, in Holmes v. Cogshill^ and Lord Erskine, afterwards in the same case, on appeal,^ were very clear and explicit in laying down the established distinction, that equity would aid the defective execution of a power, and refuse to interfere where there was no execution of it ; while, at the same time, they were free to admit, that there was no good reason or justice in the distinction, and that it was raised and sustained with some violation of principle. If the interest was to be vested in the appointor by an act to be done by himself, it ought, perhaps, to be considered his property for the benefit of his creditors ; and yet the above distinction had been settled and maintained from 1668 down to that time. The creditors have no right, according to the established doctrine, to have the money raised out of the estate of a third person when the power *was not *341 executed ; and a court of equity will not, by its own act, charge an estate, and supply the want of the execution of a power. This would be to destroy all distinction between a power and absolute property ; and though the money which the party possessing a power has a right to raise may be con- sidered his property, yet the party to be affected by the exe- cution of the power can only be charged in the manner and « Hinton v. Toye, 1 Aik. Rep. 465. Bainton v. Ward, 2 iUi. 172. Lord Town- send V. Windham, 2 Yesey, 9. Pack v. Bathurst, 3 Aik. Rep. 269. Troughton v. Troughton, ihid. 656. ^ 1 Vesey, 506. « 12 Vesey, 206. S58 OF REAL PEOPERTT. [PirtYl. to the extent specified a± the creation of th« power. The courts only assume to direct the application of the fund raised by virtue of the power, and to hold it to be assets for the pay- ment of debts. Lord Erskine intimated, that the difficulties ■which had embarrassed the subject were proper for legislative interference, and that it might as well be declared, that where a power was given to dispose of property by a certain act,, if the party died without doing the act, the property should still be assets-. (9.) Equity control over the execution cf^powerrs. The Ifew- York Itevised Statutes have wisely cleared away these difficulties, and given due and adequate relief to the creditor, by rendering the execution of the power imperative in certain cases, and making the jurisdiction in equity co- extensive with the requisite relief. Thus, every special and beneficial power is made liable in equity to the claims of cre- ditors, iQ the same manner as other interests that cannot be- reached by an execution at law, and the execution of the- power may be decreed for the benefit of the creditors enti- tled.a It is further declared, that every trust power (being a power in which persoos, other than the grantee of the power, are entitled to the benefits resulting from the execution of it) becomes an imperative duty on the grantee, unless its execu- tion be made to depend expressly on the will of the grantee, and the performance of it may be compelled in equity, for the benefit of the parties interested. ~Soy does it cease *342 to be imperative, *though the grantee has a right to select any, and exclude others of the persons designa- ted as the objects of the trust.'" And where a disposition under a power is directed to be made to, or among, or between several persons, without any specification of the share or sum to be allotted to each, all the persons designated shall be en- titled to an equal proportion. But if the manner or propor- tion of the distribution be left to the trustees,, they may allot the whole to any one or more of the persons, in exclusion of the others."' If the trustee of a power, with the right of se- » New-Tork Revised Stalutea, voL i 'lH. sec. 93. * Bud, toL i. 3ec. 96, 9^. ' Bad. voL i. sec. 9S^ 9a. Lee. LXII] OF REAL PROPERTY. 359 lection dies, leaving the power unexecuted, or if the execution of a power in trust be defective, in whole or in part, its execu- tion is to be decreed in equity for the benefit equally of all the persons designated as objects of the trust. The execution, in whole or in part, of any trust power, may also be decreed in equity for the benefit of creditors or assignees (if the inter- est was assignable) of any person entitled, as one of the ob- jects of the trust, to compel its execution.!!- So, purchasers for a valuable consideration, claiming under a defective exe- cution of a power, are entitled to the same relief in equity as purchasers in any other case. It is likewise added, for greater caution, that instruments in execution of a power are equally affected by fraud, as conveyances by owners and trustees. Every power is also made a lien or charge upon the lands which it embraces, as against creditors and purchasers in good faith, and without notice, of or from any person having an es- tate in such lands, from the time the instrument containing the power is recorded ; and as against all other persons from the time the instrument takes effect. •• Some part of these statute pi-ovisions would seem to have changed the English equity doctrine of illusory appoint- ments, *where there was an allotment of a nominal, *343 and not of a substantial interest. They have at least rescued the law from a good deal of uncertainty on the sub- ject, and relieved the courts of equity from that difficulty and distress of which the master of the rolls, in Vanderzee v. Aclom,'' and Lord Eldon, in Butcher v. Butcher,^ have so loudly complained, when they endeavoured to ascertain the proportion of inequality that would amount to an illusory ap- pointment. The rule at common law was, to require some allotment, however small, to each person, where the power was given to appoint to and among several persons ; but the rule in equity requires a real and substantial portion to each, and a mere nominal allotment to one is deemed illusory and fraudulent. Where the distribution is left to discretion, with- out any prescribed rule, as to such of the children as the trus- ' Nm-YorTe Revised Statutes, vol. i. sec. 100. 103. 131. *■ Ibid. vol. i. 135. mi, sec. 107. 125. 132. ' 4 Vesey, 784. ■• 1 Ves. & Bea. 79. 360 OF EEAL PROPERTY. [Part VI. tee should think proper, he may appoint to one only.'' But if the words be, amongst the children as he should think pro- per, each must have a share, and the doctrine of illusory ap- pointments-applies.'' (1) The distribution under the power of appointment, by the ISTew-York statute, must be equal in the one case ; and, in the other, the trustee has an entire discre- tion in the selection of the objects, as well as to the amount of the shares to be distribxited.<= In respect to the imperative duty of the grantee of a trust power to execute it, the New- York statute has only declared the antecedent law. Though it be an immutable rule, that the non-execution of a *344r naked power will *never be aided, ^ yet, if the power be one which it is the duty of the party to execute, he is a trustee for the exercise of the power, and has no discre- tion whether he will or will not exercise it. (2) Chancery adopts the principle as to trusts, and will not permit his neg- ligence, accident or other circumstances, to disappoint the interests of those persons for whose benefit he is called upon to execute it. This principle, according to Lord Eldon, per- vaded all the cases. « The equity jurisdiction, in relieving against the defective execution of powers, is exerted in the case of a meritorious consideration in the person applying for aid ; and here again the English law and the ISTew-York stat- ute are the same. The assistance is granted in favour of cre- • The Master of the Rolls, in Kemp v. Kemp, 5 Ves. 857. '' 4 Ves. V/l. Kemp v. Kemp, 5 ibid. 849. Crook's case, cited in Astry v. Astry, Free, in Ch. 256. Thomas v. Thomas, 2 Vern. Rep. 513. Madison v. An- drew, 1 Vesey, 67. •= The English statute of 1 Wm. IV., c. 46, entitled, "an act to alter and amend the law relating to illusoiy appointments," declares that no appointment shall be impeached in equity, on the ground that it is unsubstantial, illusoiy or nominal. This puts an end to the equity jurisdiction on the subject of illusory appointments , and it applies to real as well as personal estates. J 2 -P. Wms. 227, note. Tollett v. ToUett, ibid. 489. - Brown v. Higgs, 8 Ves. 574. Gibbs v. March, 2 MetcalfRep. 243. 261. 258. (1) Where there is a discretionary power of distribution which cannot he exercised, (as where the appointment was invalid, or not made at all,) equity does not assume the exercise of the discretion, but distributes the fund equally amongst all the objects of the power. Fordyce t. Bridge, 2 Phmipa' B. 497. (2) A power is always imperative when its subject, i. e. the property given, and its object, i. e. the persons to whom it is given, are certain. Domlnlck T. Sayre, JT. Y. legal Observer, Sept. 1851, p. 2T8. LecLXIL] OF REAL PROPERTT. 361 ditors, and iona fide purchasers, who rest their claim upon a valuable consideration, and in favour of domestic relatives, whose claims as appointees are founded upon the meritorious considerations of marriage or blood, or where the non-execu- tion arises from fraud. The numerous cases which regulate and prescribe the interference of chancery in aiding and cor- recting the defective execution of powers, and also in afford- ing relief against the actual execution, or fraudulent operation of powers, cover a vast field of discussion ; but the subject would lead us too far into detail, and I must content myself with referring the student to the clear and ample digest of them in Sir Edward Sugden's elaborate treatise on the sub- ject.a We shall conclude this head of incLuiry with a brief view of a few other leading points respecting the execution of powers, and which are necessary to be noticed, in order not to leave the examination of the doctrine far too unfin- ished. A power will enable the donee to dispose of a fee, though it contained no words of inheritance, as in the case of a power given by a testator to sell or dispose of lands ; and this con- struction is adopted in favour of the testator's inten- tion.'' *So, a power to charge an estate, with nothing *345 to restrain the amount, will, in equity, authorize a charge to the utmost value ; and, as equivalent to it, a dispo- sition of the estate itself, in trust to sell and divide amongst the objects.'' And, on the other hand, a power to grant or appoint the land, will authorize a charge upon it ; and a * Sugden on Powers, 841 — 421. In a decision in equity since the edition of Sugden referred to, it was held, that equity relieves against the defective execution of a power, only when the defect consists in the want of some circumstances re- quired in the manner of execution, as the want of a seal, or of a sufficient number of witnesses, or where it has been executed by a deed instead of a will. Equity win reform a deed, which, by mistake of the drawer, does not effectuate the inten- tion of the parties. Cockrell v. Cholmelly, 1 Russ. Goodright v. Cater, Doug. Rep. itt. « 15 Hen. VII. fo. 11, b. translated in App. No. 1 to Sugden on Powers, 0&. Liu. 23'/, a.. 265, b. Digge'a case, 1 Co. lib, a. Willis v. SheiTal, 1 Atk. Reg^ 414. Sugden on Powers, 50. 67. West v. Barney, 1 Russell 7 Vesey, 667. " Sir Edwai-d Clare's case, 6 Co. 17, b. Peacock v. Monk, 2 Vesey, 567. Lord Eldon, on appeal, in the case of Maundrell v. Maundrell, Sugden on Powers, 79 — 93. Sir Edward Sugden discusses the question upon the conflicting authorities with his usual acuteness. Vide supra, pp. 51, 52. d Vol. I 733, sec. 83. 85. « Sugden on Powers, 96. la Benson v. Whitman, 5 Simons, 22, the vice-chan- cellor held, that a bequest of dividends of stock to B., to enable him to assist such 366 OF REAL PROPERTY. [Part VL ment, and, •' in reason and good sense," as the revisers said when the bill was proposed, " there is no distinction between the absolute power of disposition, and the absolute ownership. The distinction is dangerous to the rights of creditors and purchasers ; and it is an affront to common sense to say, that a man has no property in that which he may sell when he chooses, and dispose of the proceeds at his pleasure." I have now finished a laborious (though, I fear, much too inadequate) examination of the doctrine of uses, trusts and powers. They are the foundation of those voluminous settle- ments to which we, in this country, are comparatively stran- gers, and which, in practice, run very much into details, embarrassing by the variety and complexity of their provisions. The groundwork of the operation of a family settlement, is the conveyance of the fee to a grantee or releasee to uses, who is usually a stranger, and whose functions and interests are generally merely nominal. Then follow the various modified interests in the shape of future uses, which constitute the essential part of the settlement. They are usually limited to the father or husband for life, then to the wife for life, then to the eldest and other sons in succession in tail, with remainder to the daughters, and, on failure of issue, to the right heirs *350 of the settler. The*estate is subject to a variety of charges for family purposes, and acts of ownership be- come necessary in relation to the estate, and to the objects of the settlement. This requires the introduction of powers of leasing, selling, exchanging and charging the lands, and with the re- servation of a power to alter and modify the dispositions in the settlement, as exigencies may require. It is done by a general power of appointment in the first instance, or by adding to the limitations a power of revocation and new appointment. Powers are the main spring of this machinery.* of the children of C as he might fitid deserving of encouragement, was not a mere power of appoiDtment, and that no trast was created for the children of C. » We have one of these settlements in the case of Hales v. Risley ; and Lord Ch. J. PoUexfen, in that case, gives another sample of one, and says that they are almost all in that manner. Follex. Rep. 250. In Clements v. Paske, 3 Doug. Rep: 384 the devise of estates in trust was for the use of the nephew for life, then to Lis eldest son, and in default of such issue, to the second, third, and every other son of Lis nephew successively, in remainder, one after the other, and the heirs male of the bodies of such second, third and other sons, as they should be in seni- Lee LXII.] OF REAL PROPERTT. 367 The doctrine of settlements has thus become, in England, an abstruse science, which is, in a great degree, monopolized by a select body of conveyancers, who, by means of their technical and verbose provisions, reaching to distinct contin- gencies, have rendered themselves almost inaccessible to the skill and curiosity of the profession at large. Some of the distinguished property lawyers bave acknowledged, that the law of entails, in its present mitigated state, and great com- parative simplicity, was even preferable to these executory limitations upon estates in fee. Settlements, with their shift- ing and springing uses, "obeying at a remote period, the original impulse, and vai-ying their phases with the change of persons and circumstances," and, with the magic wand of powers, have proved to be very complicated contrivances; and sometimes, from the want of due skill in the artist, they have become potent engines of mischief, planted in the heart of great landed estates. These domestic codes of legislation are usually applied to estates, which necessarily require, under the English law of descents, very extended and complex ar- rangements, and which can well bear the weight of them. They seem to be indispensable in opulent commimities, to *the convenient and safe distribution of large masses *351 of property, and to the discreet discharge of the various duties flowing from the domestic ties ; and the evils are, pro- bably, after all, greatly exaggerated by the zeal and philippics of the English political and legal reformers.'"- The Eevised Statutes of ITew-Tork have made great altera- tions in the law, and some valuable improvements, which we have already noticed under the articles of estates in expec- tancy, uses, trusts and powers ; and I presume I need not apologize to the American student for attracting his attention so frequently to the statute law of a particular state. The re- ority of age and priority of birth ; and in default of such male issue, then to the eldest sou of another nephew, and so on with like remainders; and in default, Vol. i. 723, sec. 12. * See supra, pp. 10. 12. » 2 Com. 175. Leo. LXIIL] OF REAL PROPERTY. 371 practice of hiring land for a limited time, and paying rent to the owner of the soil, (and which is one of the usual incidents to a reversion,) was not only known to the Eoman law, but it was regulated in the code of the ancient Hindoos." The reversion arises by the operation of law and not by deed or will ; and it is a vested interest or estate, inasmuch as the person entitled to it has a fixed right of future enjoy- ment. It is an incorporeal hereditament, and may be con- veyed either in whole or in part, by grant, without livery of seisin.b A grant of the reversion of an estate, absolutely or by way of mortgage, passes the rights to rents that subse- quently become due as incident to the reversion, but not the rents then in arrear." Reversions expectant on the determina- tion of estates for years, are immediate assets in the hands of the heir ;'i but the reversion expectant on the determination of an estate for life, is not immediate assets during the con- tinuance of the life estate, and the creditor takes judgment for assets infuturo.'^ If the reversion be expectant on an es- tate tail, it is not assets during the continuance of the estate tail ; and the reason assigned is, that the reversion is of little or no value, since it is in the power of the tenant in tail to destroy it when he pleases.^ But in Kinarton v. Ola/rlce^s Lord Hardwicke considered it inaccurate to say that such *a reversion was not assets ; for there was a pos- *355 sibility of its becoming an estate in possession, and the creditor might take judgment against the heir, on that possi- bility, for assets, quando acoiderint, and which would operate whenever the heir obtained seisin of the reversion. In the mean time, as it was admitted, the reversion could not be • Gentoo Code, by Halhead, 153. •i Litt. sec. 567, 568. Oo. Litt. ibid. Co. Litt. 49, a. Doe v. Cole, 1 Barnw. & Cress. 243. Mr. Preston says, it is more usual to pass a reversion by lease and release, or bargain and sale. Preston on Abstracts, vol. ii. 85. ° Cruises Dig. tit. 28, c. 1, sec. 65. Birch v. Wright, 1 Term Rep. 378. Burden V. Thayer, 3 Metcalf Rep. 76. ^ Smith V. AngeU, 1 Salic. Rep. 354. Villers v. Handley, 2 Wils. Rep. 49. • Holt, Ch. J., in Kellow v. Rowden, Carth. Rep. 126. Rook v. Clealand, 1 Ld. Raym. 53. ' 1 Rol.Abr. 269, A. pi. 2. Kellow v. Rowden, Carth. Rep. 126. Mod. Rep. 253. S. 0. ^ 2 Atlc. Rep. 204. Forrest, MS. cited in Cruise's Dig. tit. Reversion, sec. 26. 872 OF REAL PROPERTY. [Pai-t VI. sold, nor the heir compelled to sell it ; and when it comes to the possession of the heir, he takes it cum onere, subject to all leases and covenants made by the tenant in tail where he had the estate.'' The reversioner, having a vested interest in the reversion, is entitled to his action of case for an injury done to the in- heritance.'' He is entitled to an action on the case, in the nature of waste against a stranger, while the estate is in the possession of the tenant. The ijijury must be of such a per- manent nature as to effect the reversionary right." The usual incidents to the reversion, under the English law, are fealty and rent. The former, in the feudal sense, does not exist any longer in this country ; but the latter, which is a very *356 ^important incident, passes with a grant or assignment of the reversion. It is not inseparable, and may be severed from the reversion, and excepted out of the grant, by special words.*! * Symonds v. Oudmore, 4 Mod. Rep. 1. Shelburae t. Biddulpb, 4 Bro. P. C. 694. ^ Jeaser v. Giflford, 4 Burr Rep. 2141. Vide supra, lee. 55, and New-Yorh Re- vised Statutes, vol. i. 150, sec. 8. A person seised of an estate in reversion or re- mainder, may have an action of waste or trespass for any injuiy done to the in- heritance, notwithstanding any intervening estate for life or years. A reversioner or remainder-man may also be admitted to defend as a party to suits against the tenant of the parti'cular estate. New-Yorh Revised Statutes, vol. ii. 339, sec. 1, 2. No recovery or judgment unduly had against the tenant of a particular estate, bars the right of the reversioner or remainder-man to restitution. Ibid. vol. ii. 340, sec. 6, 7. ' Jackson v. Pesked, 1 Maule db Selw. 234. Randall v. Cleveland, 6 Conn. Rep. 328. A stranger doing an injuiy to the premises may be prosecuted, either by the tenant or reversioner. 1 Saund. Rep. 312, note 5. An action on the case for an injury to the land may be brought by the tenant in respect of his possession, and by the reversioner in respect of his inheritance. Jesser v. Gifford, 4 Burr, 2141. Ripka V. Serjeant, 1 Watts & Sergeant, 1. But if the person who does the injury acts under the authority of the tenant, the reversioner cannot sustain an action of trespass. Livingston v. Mott, 2 Wendell's Rep. 605. ^ Co JAtt. Ui, a. 151, a, b. LECTURE LXiy. OF A JOINT INTEEKST IN ESTATES. A JOINT interest may bo had either in the title or possession of land. Two or more persons may have an interest in con- nection in the title to the same land, either as joint tenants or coparceners, or in the possession of the same as tenants in common. I. Joint tenants are persons who own lands by a joint title, created expressly by one and the same deed or will. They hold uniformly by purchase.'' It is laid down in the text books as a general proposition, that the estate holdcn in joint tenancy must be of the same duration or nature, and quantity of interest, whether the estates of the several joint tenants be in fee, or in tail, or for life, or for years. i" But the proposi- tion must be taken with some explanations. Two persons may have a joint estate for life, with remainder to one of them in fee, and if ho who hath the fee first dies, the survivor takes the whole estate for his life." So, they may have an estate in joint tenancy for their lives, with several inheritances.> 2 BlackH. Com. 181. 2 Wood. Leo. 12t. » Litt. sec. 286. ■• lliid. sec. 283. • Co. Litt. 188, a. ' Wiaoot's ciiso, 2 Co. 80. Lilt. sec. 285. 374 OF REAL PROPERTY. [Pai-t VI good jointure. They are, in such a case, joint tenants of a life estate, with a remainder in fee to one of them. It is another general rale, that the estates of the joint tenants must be created at one and the same time, as well as by one and the same title.»- But this rule has its exceptions, and it does not apply to the learning of uses and executory devises. If a person makes a feoffment in fee to the use of himself for life, and of such wife as he should afterwards marry for their joint lives, he, and the wife whom he should afterwards marry, are joint tenants, though they come to their estates at several times. The estate of the wife is in abeyance until the mar- riage, and then it has relation back, and takes effect from the original time of creation.^ So, if there be a devise, or limita- tion, to the use of the children of A., the estate may vest in joint tenancy in one, and afterwards in other children, as they progressively are born.o *359 *rrom this thorough and intimate connection be- tween joint tenants results the principle, that the bene- ficial acts of one of them respecting the estate, will enure equally to the advantage of all.'^ One joint tenant may dis- train for rent, and appoint a bailiff for that purpose, unless the other expressly dissents.^ Each of them may enter upon the land, and exercise at his pleasure every reasonable act of ownership ^ yet one joint tenant is liable to his companion for • a Blacks. Oom. ISl. "Woodgate t. Unwin, 4 Simons, 129. "> Co. Zitt. 188, a. 1 Co. 101. 2 maclcs. Com. 182. ° Preston on Abstracts, YoLii. 61. Mr. Hargrave, in note 13 to Co. Zitt. 188, a, intimates, that the creation of an estate in joint tenancy, in several tenants, to commence at diffM-ent times, can only be in cases of limitations by way of use, in ■which the estate is vested in the feoffee, till the future use comes in esse. But the uses may be raised by common law conveyances, as fine or feofiment, and the limi- tation may be declared by devise, thougt it be not by way of use. The distinction was taken in Samme's case, (13 Go. 54,) between a, conveyance at common law, and' one to uses ; and it was said, that joint tenants must be seised to a use wheQ they come to the estate at several times. See, also, Aylor v. Chep, Cro. J. 259. Saaaex Y.T&mple,! Lord Rai/m. 310. Gates v. Jackson, Sfc 1172. Stratton v. Bfest. 2 £ro. 233. Lord Thurlow, in the last case, would seem to have discai-ded this very technical distinction ; for he declaimed, that whether the settlement before him was. to be considered as the conveyance of a legal estate, or a deed to uses, made no. difference, and the estate would be a joint tenancy, though vested at different times^ ^ 2 Blacks. Com. 182. ■> Robinson v. Hoffman, 4 Bingham's Rep^ 562^ Lee. LXIV.l OF REAL PROPERTT. 3T5 any waste committed upon the estate, and they are severally accountable to each other for the rents and profits of the joint estate.'' Under these regulations, joint tenants are regarded as having one entire and connected right ; and they must join, and be joined, in all actions respecting the estate.'' Joint tenants are said to be seised per my et per tout, and each has the entire possession, as well of every parcel as of the whole. They have each (if there be two of them for in- stance) an undivided moiety of the whole." A joint tenant, in respect to his companion, is seised of the whole ; but for the purposes of alienation, and to forfeit, *and *360 to lose by default in a prmcipe, he is seised only of his undivided part or proportion.^ The doctrine of survivorship, or jus accrescendi, is the dis- tinguishing 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, and so on to the last survivor, who took an estate of inheritance. The * The statutes of Westm. 2, c. 22, and4 Anne, c. 16, on this subject, have doubt- less been adopted in this countiy, wherever the English doctiine of joint tenancy exists. Tucker sBlaelestone, voL ii. 184, note. Laws of New-York, aem. 10, c. 6,se8S. 11, c. 4. Revised Statutes of Missouri, 1836, p. 37. Lomax's Digest of the Laws concerning Real Property in the United States, vol. I 481. Revised Statutes of New-Jersey, 1847, p. 46. The New-York Revised Statutes, vol. i. 750, sec. 9, have given not only an action of account, according to the statute of 4 Anne, but an ac- tion for money had and received, as between joint tenants and tenants in common. So, in Massachusetts, assumpsit, as well as account, will he, if one joint tenant, or tenant in common, receives more than his share of the profits. Brigham v. Eve- jeth, 9 Mass. Rep. 538. Miller v. Miller, 7 Pick. Rep. 133. In McMurray v. Raw- son, 3 Hill, 59, an action of account was brought as between partners in trade, but it was regarded as an obsolete action, difficult and dilatory, and so many impedi- ments lay in its way, that the experiment of reviving this action will probably never again be made. Baron Alderson, in 13 Meesond: W. 20, said that the action of account was so inconvenient, that it has long been discontinued, and a com't of equity preferred. '■ Litt. sec. 311, » Litt. sec. 288. Co. Litt. 186, a. ^ Co. Liu. 186, a. According to Mi-. Ram, in his Outlines of Tenure and I'e- nancy, 149, 150, 151, the only reasonable explanation of the common phrase that a joint tenant is seised per my et per tout, or by the moiety or half, and by all, is that given in the text ; and he says it is the only way in which it ought to be un- derstood. Mr. Preston says to the same effect, that joint tenants have the whole for the purpose of tenm-e and survivorship, while each has only a particular part for the purpose of alienation. Preston on Estates, vol. i. 136. 376 OF REAL PROPERTY. [Part VI. whole estate or interest held in joint tenancy, whether it was an estate in fee, or for life, or for years, or was a personal chattel, passed to the last survivor, and vested in him abso- lutely. It passed to him free, and exempt from all charges made by the deceased co-tenant.* - The consequence of this doctrine is, that a joint tenant cannot devise his interest in the land ; for the devise does not take effect until after the death of the devisor ; and the claim of the surviving tenant arises in the same instant with that of the devisee, and is pre- ferred.'' If a joint tenant makes a will, and he then becomes solely seised by survivorship, the will does not operate upon the title so acquired without the solemnity of republication." The same instantaneous transit of the estate to the survivor, "bars all claim of dower on behalf of the widow of the de- ceased joint tenant.^ But the charges made by a joint *361 tenant, *and judgments against him, will bind his assignee, and him as survivor." The common law favoured title by joint tenancy, by reason of this very right of survivorship. Its policy was averse to the division of tenures, because it tended to multiply the feu- dal services, and weaken the efBcacy of that connection.*" But in Uawes v. Hawes^s Lord Hardwicke observed, that the reason of that policy had ceased with the abolition of tenures ; and he thought, that even the courts of law were no longer inclined to favour them ; and at any rate, they were not fa- voured in equity, for they were a kind of estates that made no provision for posterity. As an instance of the equity view of the subject, we find that the rule of survivorship is not ap- plied to the case of money loaned by two or more creditors on a joint mortgage.!" The right of survivorship is also re- * Liu. sec. 280, 281. 286. Go. Litt. ibid. >> Co. Uit. 185, b. 1 Blaoks. Rep. 476. « Swift V. Robei-ts, 3 Burr Rep. 1488. ^ See supra, p. 38. la Ohio, it is held, that the^'«s accrescendi does Dot exist, to the exclusion of the right of dower in the widow of the joint tenant first dying, and the law is the same in Virginia. 1 Revised Code, c. 98. ^ Preston on Abstracts, vol. ii. 65. ' Holt, Ch. J., in Fisher v. Wigg, 1 Salh Rep. 391. e 1 Wils. Rep. 165. " Lord Hardwicke, in Rigden v. Vallier, 2 Ves. 258. 3 Atk. Rep. 731. Randall V. Phillips, 3 Mason's Rep. 378. Leo LXIV.] OF REAL PROPERTY. SYY jected in all cases of partnerships, for it would operate very unjustly in such cases." In this country, the title by joint te- nancy is very much reduced in extent, and the incident of survivorship, is still more extensively destroyed, except where it is proper and necessary, as in the case of titles held by trustees. In New-York, as early as 1786, 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. The New- Yorh Revised Statutes^ have re-enacted the provision, and with the further declara- tion, that every estate vested in executors or trustees, as such, shall be held in joint tenancy. The doctrine of survivorship incident to joint tenancy, (excepting, I presume, es- tates held in trust,) is *abolished, in the states of Con- *362 necticut, Pennsylvania,^ Yirginia, Kentucky, Indiana, Missouri, Mississippi, Tennessee, North Carolina and Ala- \>&xaa,A In the states of Maine, New-Hampshire, Massachu- setts, Ehode Island, Yermont, New-Jersey, Michigan, 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 incidents belonging to that tenancy follow. The English law of joint tenancy does not exist at all in Ohio and Louisiana, and it exists in full force in Georgia, Mississippi and Maryland.® * Lake t. Craddock, 3 P. Wms. 158. >> Vol. i. 72*7, sec. 41. ' The act of Pennsylvania, of 3l8t March, 1812, and the Revised Statutes of Vermont, 1839, expreasly except trust estates ; and the act of Georgia, of 1784, ex- pressly excepts the case of paiinera in trade. ^ In South Carolina the right of surviTOrship in joint tenancy is not abolished. The acts of 1734, 1748, and 1791, recognise and regulate it. But the act of 1734 allowed joint tenants to devise their estates, and in that way destroy survivorship. It is understood that sui-vivorship in cases of joint tenancy has since been abolished. " Oriffith's Law Register, h.t. 1 North Carolina Revised Statutes, 258. Ter- ritorial Act of Michigan, March 2d, 1821. Revised Laws of Illinois, edit. 1833, p. 130. Serjeant v. Steinberger, 2 Ohio Rep. 305. Massachusetts Statute of 1785, c. 62. Mass. Revised Statutes, 1835, part 2, tit. 1, c. 59, sec. 10, 11. In the Ply- mouth colony, in 1643, it was enacted by the general court, that survivorship should not apply to joint tenants, but the heirs of the joint tenant dying should take his proportion of the estate. Baylie's Historical Memoir, vol. ii. 111. PlymotUh Co- 378 OF REAL PROPERTY. [Part VL The destruction of joint tenancies, to the extent which has been stated, does not apply to conveyances to husband and wife, which, in legal construction, by reason of the unity of husband and wife, are not strictly joint tenancies, but convey- ances to one person. They cannot take by moieties, but they are both seised of the entirety, and the survivor takes the whole ;■ and, during their joint lives, neither of them can alien so as to bind the other.^ If the husband be attainted, his attainder does not affect the right of the wife, if she *363 survive him ;'' nor is such an estate, so held *by the husband and wife, affected by the statutes of partition." If an estate be conveyed expressly in joint tenancy, to a hus- band and wife, and to a stranger, the latter takes a moiety, and the husband and wife, as one person, the other moiety.^ (1) But if the husband aad wife had been seised of the lands as joint tenants before their marriage, they would continue joint tenants afterwards, as to that land, and the consequences of joint tenancy, such as severance, partition and the jus accres- cendi, would apply.e It is said, however, to be now under- stood, that husband and wife may, by express words, be made tenants in common by a gift to them during coverture.^ lony Lam, edit 1836, p. 75. This is probably the earliest legislative interference on record with the doctrine of sui-vivorship. * 2 BlacTcs. Com. 182. Doe v. Parratt, 5 Term Rep. 652. RossT. Ganison, 1 Dana's Kentucky Rep. 37. Rogers v. Grider, ibid. 242. Taul v Campbell, 7 Yer- ger, 319. See mpra, vol. ii. 132. >> Co. Liu. 187, b. •= Thornton v. Thornton, 3 Randolph's Rep. 179. Mr. Ram, in his Outline of Te- nure and Tenancy, (pp. 170 — 174,) differs from all the gi-eat propei-ty lawyers, and undertakes to establish, by able and subtle arguments, that husband and wife are joint tenants; for their tenancy by entireties is a species of joint tenancy. They are seised per tout, but not per my. In the former sense, their persons are several, and in the latter one only. They are joint tenants, and tenants by entireties, because each is seised ^er tout ; and they are called tenants by entii-eties to distinguish them from the joint tenants seised^er my and per tout. This ingenious writer has pushed the subject into unprofitable refinements. i Litt. sec. 291. Co. Litt. 187, b. Lord Kenyon, 5 Term Rep. 654. Shaw v. Hearsey, 5 i/ass. iEep. 521. Jackson v. Stevens, 16 J"o/ms.iSep. 110. Thornton v. Thornton, 3 Randolph's Rep. 179. Denv. Hardenburgh, 5Salsted's Rep.i2. See vol. il lee. 28, sec. 1. = Co. Litt. 187, b. Moody v. Moody, Amb. Rep. 649. f Preston on Abstracts, vol. iL 41. Ibid, on Estates,vo\. i. 132. (1) Same rule as to bequest. Gordon v. Whieldon, 12 Jurist Bep. 1848, p. 984. Lee. LXIV.] OP REAL PROPERTY. 379 Joint tenancy may be destroyed by destroying any of its constituent unities except that of time. If A. and B. be joint tenants, and A. conveys his joint interest, being his moiety of the estate, to C, the joint tenancy is severed, and turned into a tenancy in common, as between B. and C, for they hold under diiferent conveyances. So, if A., B. and C. were joint tenants, and A. conveyed his joint interest to D., the latter would be a tenant in common of one-third, and B. and 0. continue joint tenants of the other *two-thirds.°' *364 The same consequence would follow, if one of three joint tenants was to release his share to one of his compan- ions ; there would be a tenancy in common as to that share, and the jointure would continue as to the other two parts.*" The proper conveyance between joint tenants is a release ; and each has the power of alienation over his aliquot share, and of charging it with his individual debts." Joint tenants may also sever the tenancy voluntarily by deed, or they may com- pel a partition by writ of partition, or by bill in equity. (1) It is to be presumed that the English statutes of 31 and 32 Hen. VILL., have been generally re-enacted or adopted in this country, and, probably, with increased facilities for partition. They were re-enacted in ISTew-Jersey, in 1797, and in Virginia in their revised code,'i and in New- York, the 6th February, 1788 ; and the New- York Revised Statutes^, have made further and more specific and detailed provisions for the partition of lands, held either in joint tenancy, or in common, and when one or more of the parties shall have estates of inheritance, or for life or lives, or for years ; and they have given equal juris- diction over the subject to the courts of law, and of equity. The proceeding is commenced at law by partition, and in chancery by petition or bill.f In Massachusetts and Maine, • Liu. sec. 292. 294. *■ lAlt. sec. 304. A sole demise of one joint tenant in ejectment, severs the joint tenancy, and entitles tlie lessor to a recovery for his proportion. Bowyer v. Judge, 11 JS'asi's 5cp. 288. '■ Remington v. Cady, 10 Conn. Rep, 44. ^ Vol. i. c. 98. " Vol. ii. 315—332. ' In Connecticut joint tenants, tenants in common or coparceners, may be com- (1) Husband and wife cannot be adverse parties to such a proceeding. Howe v. ElEtnden, 21 Yermant B. 315. 380 OF REAL PROPERTT. [Pai-tVl the writ of partition at the common law is not only given, but partition may be effected by petition without writ> pelled to partition by writ ; Stat 1838, p. 392 ; and in New-Jersey by writ as at common law, and by bill in chancery, and by commissioners duly appointed. iJe- vised Statutes of New- Jersey, ISil. Under the New- York statute, the proceeding in partition cannot be instituted bufby a party who has an estate entitling him to immediate possession. Brownell v. Brownell, 19 Wendell, S6l. The wife must be made a party to bind her interest. Co.Zitt.11,A. Allinant on Part.Si. Either party is entitled as a matter of right to a partition, however inconvenient it may be. If a fair partition be impracticable by metes and bounds, the court may as- sign the use of the property to each tenant for alternate periods, or they may ap- point a receiver, and have the profits divided in just proportion, or they may direct a sale of the premises in their discretion, as being the most easy and practicable disposition of the right of the tenants. Smith v. Smith, 1 Hoffman's Ch. Rep. 506. • MuBsey v. Sanborn, 15 Mass. Hep. 155. Cook v. Allen, 2 ihid. 462. Act of Maine, 1821. The petition in Massachusetts may be addressed to the court of com- mon pleas, or the supreme judicial court. The probate court may also award par- tition as between heirs and devisees. The course of proceeding on petition is mi- nutely detailed. That mode cannot be maintained by one who has only a remain- dev or reversion, nor can a tenant for any term under thirty years, maintain the petition against a tenant of the freehold. After the return of the commissioners who make a partition is confirmed, the judgment is that the partition be efifectual for ever, and mortgages and other liens as against part owners fasten on their as- signed shares. Mass. Revised Statutes, 1835, part 3, tit. 3, e. 103. In Connecticut, New-Jersey, Ohio, Illinois and Georgia, and probably in most of the other states, partition of lands in joint tenancy, tenancy in cx)mmon or coparcenary, may be ef- fected by petition to the courts of law. And in Connecticut, the court of probate has jurisdiction to order partition in the case of minors, and to order a sale of the real estates of minors for reasonable cause. Statutes of Connecticut, 1838, p. 331. 392. Statutes of Ohio, 1831, p. 254. Revised Zaws of Illinois, 1833. Prince's Digest of the Statutes of Georgia, edit. 1837, p. 541. In Indiana, courts of law and equity have concuiTent jurisdiction in partition. Statute, 1831. This is proba- bly the case in all the states where courts of equity are established. A very easy mode of partition, by petition to the circuit court, is provided in MissourL Revised Statutes, 135. New-Jersey, m 1797, embodied the substance of the English sta- tutes of 31 and 32 Hen. VIII. It was the ancient doctrine under the statutes of Hen. VIIL, that no persons could be made parties to a writ of partition, or be affect- ed by it, but such as were entitled to the present possession of theii' shares in se- veralty' ; they must be joint tenants and tenants in common in their own or their wives' right, or tenants for life and years. This is still the law in New-Jersey. Stevens v. Enders, 1 Green, 271. But the statute provisions in some parts of this country make the operation of the partition more extensive. By the New- York statute, [New-York Revised Statutes, vol. ii. 318, 319. 322, sec. 5, 6. 15. 35,) teuants by the curtesy, tenants in dower, if the dower has not been admeasm-ed, and per- sons entitled to the reversion or remainder, after the termination of any particular estate, and every person, who, by any contingency contained in any devise, grant or otherwise, may be entitled to any beneficial interest therein, whether in posses- Leo. LXIV.] OF REAL PROPEETT. 381 The jurisdiction of chancery in awarding partition is well established in England, by a long series of decisions ; and it has been found, by experience, to be a jurisdiction of great public convenience."' But a court of equity does not interfere unless the title be clear, and never where the title is denied, or suspicious, until the party seeking a partition *has had an opportunity to try his title at law.'' The *365 same principle has been acted upon in the courts of equity in this country.^ The Neio- Yorh Revised Statutes^ have prescribed to the courts of law and the court of chancery, in respect to partition, that whenever there shall be a denial of co-tenancy, an issue shall be formed, and submitted to a jury to try the fact ; and the respective rights of the parties are to be ascertained and settled, before partition be made or a sale directed. A final judgment or decree, upon partition at law, under the Wew- York Revised Statutes, binds all parties named in the proceedings, and having at the time any interest in the premises divided, as owners in fee, or as tenants for years ; or as entitled to the reversion, remainder or inheritance, after the termination of any particular estate ; or as having a con- tingent interest therein, or an interest in any undivided share sion or otherwise, may be made parties to the partition. In Maine, the owner of an equity of redemption in possession, and one interested in the estate, and having a right of entiy, though out of possession, may have a writ of partition. Call v. 'Baxker,?! Fairfield, 320. So, iuthehiWre^oxt^dhj ^ihe Revisersof the Pennsylvania Code, in January, 1835, eveiy remainder-man or reversioner may be made a co-de- fendant with the tenant of the particular estate. The statute provisions on the subject in this countiy, are distinguished for the extent and minuteness of their regulation. • IJarg. note 23, to Co. lAtt.Mh. 3. Calmady v. Calmady, 2 Ves.jr., 570. Agar V. Fairfax, 17 Ves. 533. Baling v. Nash, 1 Ves. & Beame, 551. In England, by statute of 3 and 4 Wm. IV. c. 27, the writ of partition is abolished, and the only mode of enforcing a partition is by bill in equity. ^ Bishop of Ely v. Kenrick, Bumh. Rep. 322. Cartwright v. Pultney, 2 Atlc. Rep. 380. Blimau v. Brown, 2 Vern. Rep. 232. » "Wilkin T. "Wilkin, 1 Johns. Cli. Rep. 111. Phelps v. Green, 3 ibid. 302. 4 Randolph's Rep. 493. Martin v. Smith, State Eq. Rep. S. C. 106. In proceedings by petition for a partition of lands held in common, the application must show a seisin and actual possession. A disseisin, or an adverse possession, destroys the common possession, and bars a suit for a partition, so long as the ouster continues. Clapp V. Bromagham, 9 Cowen's Rep. 530. i Vol. ii. 320, sec. 18. Ibid. 329, sec. 79. 382 OP REAL PROPERTY. [Part VI. of the premises, as tenants for years, for life, by the curtesy, or in dower. =• But the judgment does not affect persons having claims as tenants in dower, by the curtesy, or life, in the whole of the premises subject to the partition.'' It is like- wise provided, in respect to the exercise of equity jurisdiction, in the case of partition, that if it should appear that equal partition cannot be made without prejudice to the rights and interests of some of the parties, the court may decree compen- sation to be made by one party to the other, for equality *366 of partition, *according to the equity of the case.^ • A judgment in partition establishes the title and concludes the parties. Clapp v. Bi'omagham, 9 Cowen, 569. MiUs v. Witherington, 2 Dev. & Battle, 434. There may be a partition of a mere equitable estate. Hitchcock v. Skinner, 1 Hoffman's Ch. Rep. 21. ^ New-York Revised Statutes, vol. ii. 322. sec. 35, 36. Ibid. 330. sec. 84. In cases of actual partition, and if the husband be alive, the wife need not be a party to the suit in partition, and her inchoate right of dower will attach upon that part of the premises which shall be set off to him in severalty. Her light of dower cannot in any case be baiTed by a decree in a pai-tition suit to which she was not a party, but if she be a party, the dower may be assigned to her in severalty, and if a sale of the premises be decreed, it would seem to be the opinion of Chancellor Walworth, tiat her contingent right of dower would be, baired by the sale, and the pur- chaser will obtain a perfect title discharged of the claim of the dower. Wilkinson V. Palish, 3 Paige, 653. I presume, however, that in such a case some provision would be made out of the proceeds of the sale for the eventual consummation of her dower. If her contingent right of dower be thus barred by a sale without her consent, it must arise from the operation of the proceedings in partition as authorised by the Nevi- Torh Revised Statutes, vol. ii. 218, sec. 5, 6. Ibid. 323, sec. 38, 39. Ibid. 325, 326, sec. 50—54. In Jackson v. Edwards, Y Paige, 386. S. C. 22 Wendell, 498, it was held that in proceeding in partition, the wife's inchoate right of dower, whether she be an infant or adult, in the undivided shai'e of her husband, would (she being a party to the proceeding) be divested by a sale under a judgment or decree, so as to protect the purchaser under the sale. AH future estates, vested or contingent, may be sold under a judgment or decree in partition, and the Qourt will ascertain and protect the value of the dower or other futm-e and contingent estates thus af- fected by the judgment or decree, and order itto be deducted from the proceeds of the sales. And if some of the tenants have made improvements on the common lands, they are entitled to their full shares of the land as it would be estimated without them. In Jackson v. Edwards, above cited, it was left a doubtful question in the court of eiTors, whether the inchoate light of dower in lands sold under a decree in partition, would be ban'ed in law by the sale. If practicable, the shares allotted to them should include their improvements, and if not, and the improve- ments in whole or in part are allotted to others, allowance ought to be made for them. Bovar v. Archers, 1 Dana's Ken. Rep. 111. Hitchcock v. Skinner, 1 Hoffman's Ch. Rep. 21. ' New-York Revised Statutes, vol ii. 330, sec. 83. Leo. LXrV.] OF REAL PROPERTT. 383 This is the rule in equity, independent of any statute pro- vision, when equality of partition cannot otherwise be made.'' n. An estate in coparcenary always arises from descent. At common law, it took place when a man died seised of an estate of inheritance, and left no male issue, but two or more daughters, or other female representatives in a remoter degree. In this case, they all inherited equally as co-heirs in the same degree, or in unequal proportions, as co-heirs in different de- grees.^ They have distinct estates, with a right to the posses- sion in common, and each has a power of alienation over her particular share. Coparceners, in like manner as joint tenants, may release to each other, and if one of them conveys to a third person, the alienee and the other coparceners, will be tenants in common, though the remaining coparceners, as between themselves, will continue to hold in coparcenary.<= Coparceners resemble joint tenants in having the same unities of title, interest and possession."! The seisin of one coparcener is generally the seisin of the others ; and the pos- session of one is the possession of all, except in cases of actual ouster. But they differ from joint tenants in other respects in a most material degree. They are said to be seised like joint tenants ^er my etper tout ; and yet each parcener has a divisible interest ; and the doctrine of survivorship does not apply to them. The shares of the partners descend severally to their respective heirs. They may sever their possession, and dissolve the estate in coparcenaiy, by consent or by writ of partition at common law. The common law learning of par- • Clarendon v. Hornby, 1 P. Wms. 446. la Pennsylvania, on partition of an in- testate's estate under a decree of the orphan's court, the eldest son and his alienee are entitled to the fii'st choice of the estate at a Taluation, when it cannot be ad- vantageously divided among the heirs. A right of choice is given to the sons suc- cessively, and their lineal descendants, by statute of 1832. Ragan's Estate, 7 Watts, 438. !• Liu. sec. 241, 242. « Preston on Estates, vol. i. 138. ' Parceners have the same remedy in equity for an account as against each other for their share of rents and profits, aa joint tenants and tenants in common, though they are not mentioned in the statute of 3 and 4 Anne. This results from the equity cases prior to the statute, and the manifest reason of the thing. 1 Eq. Cas. Abr. tit. Account, A. 1, note. Di-my v. Druiy, 1 Rep. in Chan. 26. O'Bannon v. Roberts, 2 Dana's Ken. Rep. 64. 384 OF REAL PROPERTY. [Part VI. titioD, in respect to parceners, is displayed at large by Lord Cote.^ He calls it a " cunning learning ;" and it is *S67 replete witli *subtle distinctions, and antiquated eru- dition. The statute of 8 and 9 Westm. 3, c. 31, pre- scribed an easier method of carrying on the proceedings on a writ of partition than that which was used at common law ; and this, or a still simpler method, without the expense of a writ of partition, has been generally adopted in this country. By the JVew- York Hevised StabuUs^ persons who take by descent under the statute, if there be more than one person entitled, take as tenants in common, in proportion to their respective rights ; and it is only in very remote cases, which can scarcely ever arise, that the rules of the common law doc- trine of descent can apply. As estates descend in every state to all the children equally, there is no substantial difference left between coparceners and tenants in common. The title inherited by more persons than one, is, in some of the states, expressly declared to be tenancy in common, as in If ew-Tork and JSTew-Jersey ; and where it is not so declared the effect is the same ; and the technical distinction between coparcenary and estates in common, may be considered as essentially ex- tinguished in the United States." III. Tenants in common are persons who hold by unity of possession ; and they may hold by several and distinct titles, or by title derived at the same time, by the same deed or descent. In this respect the American law differs from the English common law. This tenancy, according to the com- mon law, is created by deed or will, or by change of title from joint tenancy or coparcenary, or it arises in many cases by construction of law."! In this country, it may be created by descent, as well as by deed or will ; and whether the estate be created by act of the party, or by descent, in either *368 case tenants in common are deemed to *have several and distinct freeholds ; for that circumstance is a lead- " Co. Liu. tit. Parceners, 168 — 1'15. •' Vol. i. 153, sec. 11. ' In Virginia the statute of descents calls all the heii-s, male as well as female, parceners. ^ lAtt. sec. 292. 294. 298. 302. 3 Blacks. Com. 192. Preston on Abstracts, vol. ii. 16, 16. I;cc. LXIV.] OF REAL PROPERTY. 385 ing characteristic of tenancy in common. Each tenant is considered to be solely or severally seised of liis share. As es- tates in joint tenancy are so mnch discouraged by the statute laws of this country, and the doctrine of survivorship, in so many of the states, exploded, even where joint tenancy, with its other unimportant incidents, may continue to exist, the many questions in the books, arising upon the construc- tion of the words of a deed or will, operating to create the one or the other tenancy, becomes comparatively unimpor- tant. The conveyance of the undivided share of an estate in com- mon, is made in like manner as if the tenant in common was seised of the entirety.'^ But one joint tenant, or tenant in common, cannot convey a distinct portion of the estate by metes and bounds, so as to prejudice his co-tenants or their assignees, even though it may bind him by way of estoppel. As against the co-tenants, such a deed is inoperative and void.'' If tenants in common join in a lease, it is, in judg- ment of law, the distinct lease of each of them ; for they are separately seised, and there is no privity of estate between them. They may enfeoff or convey to each other, the same as if they dealt with a stranger." They are deemed to be seised jyer my, but not per tout ; and, consequently, they must sue separately in actions that savour of the realty. But they join in actions relating to some entire and indi- visible thing, and in actions of trespass *relating to *369 the possession, and in debt for rent, though not in an » Preston on Abstracts, vol. ii. 27*7. '> Bavtlett v.'Harlo-w, 12 3[ass. Rep. 348. Peabody t. Miaot, 24 Pick. Rep. 329. Dnncan v. Sylvester, 24 Maine Rep. 482. Mitchell v. Hazen, 4 Oonn. Rep. 495. Giiswolcl T. Johnson, 5 ibid. 363. Jewett v. Stockton, 3 Yerger's Rep. 492. In Lessee of White v. Sayre, (2 Ohio Rep. 110,) the majority of the court held, that a tenant in common could lawfully convey a part of hia undivided estate by spe- cific bounds ; but it was admitted that the point was attended with considerable difficulty, by reason of the injmious consequences of such a sale to the co-tenant ; and Judge Bui-net, who dissented, went at large into the question. The decision in Duncan v. Sylvester dhectly overrules this case. So, again, in E. Prentiss' case, 7 Ohio Rep. part 2, p. 129, the law was considered to be settled in Ohio, that a tenant in common could convey a part of his undivided interest in the whole land, or his whole undivided interest in a pai't of the land. "= Bro. tit. Feoffment, pi. 45. Heatherley v. Weston, 3 Wils. Rep. 232. YoL. lY. 25 386 OF REAL PEOPERTT- ]P&rt VI, avowry for rent.* The ancient law raised this very artificial distinction, that tenants in common might deliyer seisin to each other, but they could not convey to each other by release. A joint tenant could not enfeoff his companion, because they were both actually seised, but for that very reason they might release to each other ; whereas, on the one hand, tenants in common might enfeoff each other, but they could not release to each other because they were not jointly seised.'' Nothing contributes more to perplex and obscure the law of real pro- perty than such idle and unprofitable refinements. The incidents to an estate in common are similar to those applicable to joint estates. The owners can compel each other, by the like process of law, to a partition, and they are liable to each other for waste, and they are bound to account to each other for a due share of the profits of the estate in common. <■■ (1) The mere occupation of the premises by one joint tenant, or tenant in common, would not, of itself, at common law, have entitled his co-tenant to call him to an account. He must have stood in the light of a bailiff or re- ceiver, in order to be rendered responsible."* But the statute of 4 Anne, c. 16, rendered joint tenants, and tenants in com- mon, liable in account as bailiffs for receiving more than » Litt. sec. 311. 314. Co. lAtt. ibid. Rehoboth v. Hunt, 1 Pick. Rep. 224. Decker v. Livingston, 15 Johns. Rep. 4*79. ^ Bro. tit. Feoffment, pi. 45. Butler's note 8G to <7o. Litt. 193, a. 'The action of waste was given as between joint tenants and tenants in common, by the statute of West. 2, c. 22, and this is the statute law in New- York, {New- York Revised Statutes, voL iL 334,) and is doubtless either the statut-e or the received common law in every part of the United States. A court of equity will likewise interfere by injunction, to prevent destractive or malicious waste by either party. Twort v. Twort, 16 Veset/, 128. As a general rule, one co-tenant is not responsible to another for permissive waste, except in the special cases of contribution for re- pairs. But if one tenant in common suffers the common property to be destroyed by his negligence, he is answerable to his co-tenants for their proportions of the loss. Chelsey v. Thompson, 3 N. B. Rep. 9. Tenants in common may make par- tition by parol, if accompanied with livery of seisin. Anders v. Anders, 2 Dev, N. G. Rep. 532. Jackson v. Harder, 4 Johns. Rep. 202. Folger v. Mitchell, 3 Pick. Rep. 399. i Co. Xi«. 200, b. (1) One tenant in common has no equity to compel the mortgagee of the common property to resort to his co-tenant for one-half of the joint debt secured. Frost t. Frost, 3 Sand/. Ch, It. 188. Lee. LXIV.] OF REAL PROPERTY. 387 their just share ; and this provision was re-enacted in New- York, in 1788, and is now incorporated into the Eevised Statutes.'' It is to be presumed, from the reasonableness of the provision, that it has been introduced, in substance, into the general law of this country.'' *The possession of one tenant in common is the pos- *370 session of the others, and the taking of the whole profits by one, does not amount to an ouster of his companions. But if one actually ousts the other, or affords, by his acts, suffi- cient ground for a jury to presume an ouster, the one that is ousted will be driven to his action of ejectment." So, one tenant in common cannot bring an action of trespass against another for entry upon, and enjoyment of, the common pro- perty, nor sue him to recover the documents relative to the joint estate. If, however, one tenant occupies a particular part of the premises by agreement, and his co-tenant disturbs him in his occupation, he becomes a trespasser."! The grow- ing crop put in by one tenant in common, who took possession exclusively without contract, on partition made while the crop is growing, goes in severalty, as the property of each." One joint tenant, or tenant in common, can compel the others to unite in the expense of necessary reparations to a house or mill belonging to them ; though the rule is limited to those parts of common property, and does not apply to the case of fences enclosing wood or arable lands. The writ de reparatione facienda lay, at common law, in such cases, when ■ Vol. i. '750, sec. 9. *> See Jonea y. Harraden, 9 Mass. Rep. 544. Brigham v. Eveleth, ibid. 538. Revised Statutes of Missouri, 1835, p. 37. Elmer's N. J. Digest, 4. ' Co. Litt. 199, b. Fail-claim v. Shackleton, 5 Burr Rep. 2604. Doe v. Prosser, Oowp. Rep. ill. Peaceable v. Reed, 1 East's Rep. 568. Doe v. Bird, 11 East, 49. If one tenant in possession retains the -whole and denies the title of his co-tenant to any part of the land, it amounts to an ouster. * Keay v. Good-win, 16 Mass. Rep. 1. Clo-wes v. Ha-wley, 12 Johns. Rep. 484. So, if one tenant in common sells trees growing on the land, and receives payment, he may be sued in assumpsit by his co-tenant. Miller v. Miller, 1 Pick. Rep. 133.(1) ' Calhoun v. Curtis, 4 Metcalf Rep. 413. (1) In Maine, by statute, one tenant in common, or joint tenant, may maintain an action against the other to recover his share of profits received by the other, Acts of Maine, 1848, ch. 61. 388 OF REAL PROPERTY. [Part VI. one tenant was willing to repair, and the others would not.=i In Massachusetts, it is doubted whether this rule applies in that state to mills ; and it is, at least, so far equitably modi- fled by statute, that if one part owner of a mill repairs against the consent of his partners, he must look to the profits for his indemnity. b To sustain the action, there must be a request to join in the reparation, and a refusal, and the expen- *3Y1 ditures must *have been previously made.'= The doc- trine of contribution, in such cases, rests on the princi- ■" F. N. B. 127, a. 162, b. Co. Litt. 54, b. 200, b. Bowles' case, 11 Co. 82, b. Anderson v. Greble, 1 Ashmead, 136. Caorver v. Miller, 4 Mass. Rep. 559. It bas been suggested by a very respectable writer on this subject, that one tenant in com- mon might, iu an action of assumpsit for money laid out and expended, sue bis co- tenant who bad received his share of the profits, for bis share of expenditures in necessaiy repairs on the implied contract to refund. Gibbons on tlie Law of Di- lapidations, p. 101. (1) In South Carolina, it was held, in Thompson v. Bostick, 1 McMullan, 75, and in Hancock v. Day, ibid. 69. 298, and in Holt v. Robertson, ibid. 475, that a co-tenant in common is only chargeable to his associate for the rent which the premises were capable of producing at the time he took possession, and not for the enhanced rent which the land was capable of producing by his im- provements, for the improvements are made by him at his own expense, and are not chargeable upon his co-tenan t except under special circumstances. In Loring v. Bacon, 4 Mass. Rep. 576, the question was learnedly discussed, whether A., who owned a chamber in a house, and repaired the roof, could compel B., who owned the cellar, to contribute, and the court held that he could not, as the parties had distinct dwelling- houses. Cheesborough v. Green, 10 Conn. Rep. 318. S. P. The French code is very special in its regulations on this subject. Each proprietor of his own room is bound to keep it in repair, and the main walls and the roof are kept in repair- at the joint and ratable expense of all the proprietors. Code Civil, art. 664. ^ Carver v. Miller, 4 Mass. Rep. 559. By the Massachusetts Revised Statutes, 1836, p. 682, 683, the greater part of the proprietors in interest of mills, or dams, which Deed reparation, may cause the same to be done, at the expense of all, in proportion to their respective interests, after a call, on due notice, of a meeting of all of them. Every moi-tgagee in possession, and tenant in tail, of any part of a mill, are deemed proprietors, and the guardian may represent the interest of his ward, iind the husband that of bis wife, and the appoi-tloument of the expense as be- tween tenant and reversioner, is to be in a ratio to the value of theii' respective interests. » Jackson, J., in Doane v. Badger, 12 Mass. Rep. 70. Mumford v. Brown, 6 Cowen's Rep. 475. And if the mill be destroyed by the negligence of one tenant in common, the others may have their indemnity by a special action on the case. Chesley v. Thompson, 3 iV. I{. Rep. 9. In Pennsylvania, the commissioners appointed to re- vise the civil code, made provision in a bill by them reported iu January, 1835, for (1) It has been held that one tenant in common cannot charge the other for improvements, or for buildings placed upon their land. Thurston v. Diclcinson, 2 Ziich. Eq. B. 817. Lee. L5IV.] OF REAL PROPERTY. 389 pie, that where parties stand in mqyiali Jure, equality of bur- then becomes equity.^ But the necessity of the rule does not l^ress with the like overbearing force that it does in many other cases arising out of the law of vicinage ; for the co-ten- ant who wishes to repair beyond the inclination or ability of his companion, has his easy and prompt remedy, by procu- ring a partition or sale of the common property.^" enforcing contribution in specified cases, and particularly in proceedings for the purpose of repairing, maintaining or preserving any common property, when the court shall be satisfied of the necessity thereof. Contribution rests on the princi- ple that payment by A. has removed a common bm'then from him and B., and that by the payment a common benefit has been received. Screven v. Joyner, 1 Sill's S. 0. Ch. Rep. 260. In New-Hampshire it is providedby statute that joint tenants, and tenants in common of mills, may be compelled to contribute, in proportion to their interests therein, to necessaiy repairs to the mill, mill-dam and flume, and a rebuilding may, under some cii-cumstauces, be considered a repau-. Bellows v. Dewey, 9 N. H. Rep. 278. » Sir William Herbert's case, 3 Co. 11. Bro. Abr. tit. Suite and Contribution. Eyre, Ch. B., in Bering v. Earl of Winchelsea, 2 Bos. & Pull. 270. S. C. 1 Cox, 318. Dig. 17. 2. 62. 10. Voet ad Pand. h.t sec. 13. Campbell v. Mesier, 4 Johns. Ch. Rep. 334. Fletcher v. Grover, 11 N. H. Rep. 369. ^ The rule in Louisiana is, that joint owners must contribute ratably to useful expenses incurred on the property, by a joint owner having the management of it, when no opposition on their pai't has been made to such expenses. Percy v. Mil- laudon, 18 Martin's Louis. Rep. 616. One tenant in common, before pai-tition, cannot purchase in an outstanding title or incumbrance on the joint estate for his exclusive benefit, and use it against his co-tenant. The purchase enures in equity to the common benefit, and the pm-chaser is entitled to contribution. So, also, one surety, having a counter eecmity, is bound to apply it to the benefit of his co-surety, equally with himself. Field v. Pelot, 1 McMullan's S. C. Rep. 370. The principle rests on the privity between the parties, and the fidehty and good faith which the connection implies. Van Home v. Fonda, 5 Johns. Ch. Rep. 407. Lee & Graham v. Fox, 6 Dana's Ken. Rep. 176. Sneed v. Atherton, iJjJ. 278. 281. It is adjudg- ed that a co-sui'ety is not bound to go into equity for contribution. He has his remedy by assumpsit, and he may recover according to the number of the sureties, without reference to the number of the principals. Kemp v. Fmden, 12 Meeson & Welsby, 421. Bachelder v. Fiske, 17 Mass. Rep. 464. The case of Venable v. Beauchamp, 3 ihid. 325. 328, adopts and applies the principle to the tenants after the partition, on account of the warranty, express or implied, annexed to the parti- tion as between the parties in relation to the title, and each party is thereby estop- ped from asserting any adverse claim to any parcel of the land allotted to another. There appears to be great force and justice in this latter decision. But the princi- ple does not apply, after the tenants in common have been evicted under an adverse title, and each of them are then at liberty to buy the lost land for his own exclusive benefit. Coleman v. Coleman, 3 Dana's Ken. Rep. 403. Mr. Justice Stoiy, in Flagg v. Mann, 2 Sumner, 520 — 524, adopts and enforces the principles 390 OF EEAl PROPERTY. [Part VI. contained in Van Home r. Fonda, above mentioned, and he says it stands approved of equally by the Roman law, the general recognition of continental Europe, and the actual jurisprudence of England and America. Persons placed in a situation of trust and confidence with respect to the subject of a purchase, cannot retain the purchase for their own benefit, but they hold it in trust. This rule of equity is not limited in its application to such persons as tras- tees, guardians, executors or solicitors, but it is one of universal application, afifectlng all persons who come within the principle, which is that no party can be permitted to purchase an interest, where he had a duty to perform inconsistent with the cha- racter of a purchaser. Lord Manners, in Nesbit v. Tredenick, 1 Ball dk B. 46. Greenlaw v. King, by Lord Cottenham, 1841. Van Epps v. Van Epps, 9 Paige, 297, by Chancellor Walwoi-th. Tanner v. Elwoiihy, by Lord Langdale, Master of the RoUs, 4 Bevan, 487. Dickinson v. Codwise, by Assistant V. Ch., in 1 SandforcCs Ch. Rep. 214. The above principle is indubitably established by those learned chancellors, and is founded on the clearest and most refined equity and justice. LECTUEE LXV'. OF TITLE BY DESCENT. "We have already considered the nature of real property, the different quantities of interest which may be had in it, the conditions on which it is held, and the character and va- riety of joint ownership in land. I now proceed to treat of title to real property, and of the several ways in which that title may be acquired and transferred. To constitute a perfect title, there must be the union of ac- tual possession, the right of possession, and the right of pro- perty. ^ These several constituent parts of title may be divi- ded and distributed among several persons, so that one of them may have the possession, another the right of possession, and the third the right of property. Unless they all be united in one and the same party, there cannot be that consolidated right, that jus duplicatum, or the droit droit, or the jus pro- 'prietatis et possessionis, which, according to the ancient Eng- lish law, formed a complete title.'' All the modes of acquiring title to land, are reducible to title by descent and by purchase, or, according to the better distribution of Mr. Hargrave, into title by act or operation of law, and title by purchase, or by the act or agreement of the parties. = Whether the agreement be founded upon > 2 Blacks. Com. 199. •i Bracton, lib. 2, (o. 32, b. lib. 5, fo. 3'72, b. Co. Litl. 266, a. The ancient doc- trine of remitter applies when a person has the jus proprietas in lands, but is out of possession, and the freehold is cast upon Mm by some subsequent and defective title during infancy or coverture, or by descent, and he enters under that title. In that case he is remitted, by operation of law, to his better title, and the defeasible estate is annulled. 3 Blacks. Com. 19. 190. Littleton has a -whole chapter on this title, and Coke has added a copious commentary. Co. Litt. 348. " Titles by curtesy and in dower, arising by operation of law upon the death of the wife or husband, as the case may be, seem to fall properly under the head of 392 OF REAL PROPERTY. [Part VI. *3T4 *a valuable consideration, or be the result of a free and voluntary gift, the property thereby acquired is still, in the eye of the law, a purchase.'^ I shall treat of each of these sources of title in their order ; and it will be the ob- ject of the present lectnre to examine the doctrine of descents, •which has always formed a prominent and very interesting title in every code of civil jurisprudence. Descent, or hereditary possession, is the title whereby a person, on the death of his ancestor, acquires his estate by right of representation as his heir.'' The English law of de- scent is governed by a number of rules, or canons of inherit- ance, which have been established for ages, and have regula- ted the transmission of the estate from the ancestor to the heir, in so clear and decided a manner, as to preclude all uncer- tainty as to the course which the descent is to take. But, in the United States, the English common law of descents, in its most essential features, has been universally rejected, and each state has established a law of descent for itself. The laws of the in- dividual states may agree in their great outlines, but they differ exceedingly in the details. There is no entire, though there is an essential uniformity on this subject ; and the observation of a gi'eat master of this title in American law« is rather too strong, when he says, that "this nation may be said to have no general law of descents, which probably has not fallen to the lot of any other civilized country."^ I shall not attempt title by descent. See Go. Lilt. 18, b. and d. 106. Theleai'ined author of the article Alienage m the American Law Miigazine for October, 1843, has referred to author- ities in favour of the proposition, and particularly to the strong case of Pemberton V. Hicks, 1 Binney, 1. • Oo. Lilt. 18, a, b. Earg. ibid. n. 106. ' 2 Blacks. Com. 201. « Reeve^s Treatise on the Law of Ztescents, pref. ■^ The law of descent in the provinces of France, before the revolution of 1789, was exceedingly various, and far exceeded that in the several American states. In the southern provinces, {Pays de droit ecrit,) the succession to intestates was generally according to the 118th novel of Justinian, to all the children male and female equally. But in the other provinces, {pays coutumiers,) there was much difference, even in the lineal line. In the nouveau coutmnier de France, et des Pro- vinces, connues sous le nous des Gaules, it was stated that the customs amounted to five hundred and forty-seven. In some the eldest son took the entire estate. In most of the provinces he was allowed advantages more or less considerable. In some the married daughters were excluded ; in others unmarried daughters, as lee. LXV.] OF REAL PROPERTY. 393 to define and explain all the variations and shades of differ- ences between the regulations of descent in the different states. This has been already done to our hand, with great fulness of illustration, in the work of Chief Justice Eeeve, to M'liich I have alluded ; and it will be sufficient for the purpose of the present essay, to state those leading principles of the law of descent in the United States, which are of the most general application. *I. The first rule of inheritance is, that if a person *3'r5 owning real estate dies seised, or as owner, without devising the same, the estate shall descend to his lawful de- scendants in the direct line of lineal descent ; and if there be but one person, then to him or her alone, and if more than one person, and all of equal degree of consanguinity to the an- cestor, then the inheritance shall descend to the several per- sons as tenants in common, in equal parts, however remote from the intestate the common degree of consanguinity may be. This rule is in favour of the equal claims of the descending line, in the same degree, without distinction of sex, and to the exclusion of all other claimants. Thus, if A. dies, owning real estate, and leaves, for instance, two sons and a daughter, or, instead of children, leaves only two or more grandchildren, or two or more great-grandchildren, these persons being his lineal descendants, and all of equal degree of consanguinity to the common ancestor, that is, being all of them either his children, or grandchildren or great-grandchildren, they will partake equally of the inheritance as tenants in common. This rule of descent was prescribed by the statute of ISTew- against male cliildren. In the collateral line, the modifications and diversities of succession were infinite. The decrees of the constituent assembly of the 15th March, 1190, and 8th of April, 1 "1 91, first abolished the rights of primogenitm-e and preference of males ; and, after a disti'essing series of changes, retrospective decrees, confusion and injustice, the French law of succession was permanently regulated by the Napoleon code. Prior to this consummation of their civil code, A. 0. Guichard published a gi-avc and sensible treatise, and one that was historical, analytical and ciitical, on the revolutionary law of successions. See his Dissertation sur le Regime actuel des Successions, published at Paiis, according to the republican calendar, Nivose An. 5. So, also, in the third year of the Republic, 0. Venniel, published at Paris, under the title of Code des Successions, a, collection of Decrees, Sur les Successions, Testamens, Donations, Substitutions, Fartages et auires actes civiles qui y ont rapport. 394 OF REAL PROPERTY. [Part VI. York, of the 23d February, 1786 ; and it has been adopted by the New- Yorh Revised Statutes.^ It prevails in all the United States, with this variation, that in South Carolina the widow takes one-third of the estate in fee, and in Georgia she takes a child's share in fee, if there be any children, and if none, she then takes a moiety of the estate. In Massa- chusetts, the statute law of descents applies only to estates whereof the ancestor died seised in fee simple or for the life of another, and the descent of estates tail (which are left as they stood at common law) is limited to the eldest male heir.'' In Ehode Island, New-Jersey,'' North and South Carolina, Tennessee and Louisiana, the claimants take, in all cases, jjot stirpes, though standing in the same degree. In Alabama, the descendants of children also take per stirpes, and in Ten- nessee the male issue is preferred to the female in the descent of real property."^ * Vol. i. "751, sec. 1, 2. Ibid. 753, sec. 11. Ibid. 15i, sec. 19. <> Statute, lYQl, c. 60. Revised Statutes, 1835, p. 413. Corbin v. Healy, 20 Pick. 514. "= The act of Kew-Jersey of ISl*?, is not clearly expressed in respect to the rights of the lineal descendants, but I have assumed the construction to be that representation prevails after children, or in the second class of descendants. ^ Statute Laws of Tennessee, edit. 1836, pp.247, 248. Lewis v. Claiborne, 5 Yerger, 869. Toulmin's Big. 885. Act of Georgia, of December 26, 1826. MassacMteetts Revised Statutes, 1835. North Carolina Revised Statutes, 1837, tit. Descents. Aikin's Alabama Dig. 2d edit. p. 128. The Massachusetts Revised Statutes, of 1835, have this further provision, that if any surviving child dies under age, and not having been married, his estate, so i»Aerife(/, shall descend to the other children of the same parent, and the issue of any of them dead, by light of repre- sentation ; if all the other children be dead, then to their issue equally ; if of the same degree, otherwise by representation. The Ordinance of Congress, of 13th July, 1787, for the government of the northwestern territory, provided, that the estates within the territoiy, of persons dying intestate, should go to the children and the descendants of a deceased child in equal parts ; the descendants of a de- ceased child or gi-andchildren to take the parent's share in equal paiis ; and when there were no children or descendants, then the estates should go in equal parts to the next of kin in equal degree ; and among collaterals, the children of a deceased brother or sister of the intestate should have, in equal parts among them, their deceased parent's sliai'e ; and that there should in no case be a distinction between kindred of the whole and half blood ; saving, in all cases, to the widow of the intes- tate, her third part of the real estate for life. But this law relative to descents was to be subject to future legislative alteration, though it is presumed to be still the general law of descent in all those states and districts comprising what, in 1787, was the territory of the United States northwest of the river Ohio, except m the instances Lee. LXV.] OF REAL PROPEBTT. 395 *The transmission of property by hereditary descent, *376 from the parent to his children, is the dictate of the natural affections ; and Doctor Taylor holds it to be the gene- ral direction of Providence. It encourages paternal improve- ments, cherishes filial loyalty, cements domestic society ; and nature and policy have equally concurred to introduce and maintain this primary rule of inheritance, in the laws and usages of all civilized nations. But the distribution among the children has varied greatly in different countries ; and no two nations seem to have agreed in the same precise course of hereditary descent ; and they have very rarely concurred, as we have done, in establishing the natural equality that seems to belong to lineal descendants standing in equal de- gree. A good deal of importance was attached to the claims of primogeniture in the patriarchal ages ; and the first born, son was the earliest companion of his father, and the natural substitute for the want of a paternal guardian to the younger children. The law of Moses gave the eldest son a double portion, and excluded the daughters entirely from the inherit- hereinafter mentioned. See, further, Reeve's Law of Descents, passim. Griffith's Law Register, No. 6, under the head of each state. Civil Code of Louisiana, Nos. 891. 898. Act of Rhode Island concerning Descents, passed January, 1822. Stent V. M'Leod, 2 M'Cord's Ch. Rep. 354. In several of the colonies, before the revo- lution, the English law of primogeniture prevailed. It prevailed in Rhode Island until the year 1*770 ; and in New- York, New-Jersey, Vii-ginia, the two Carolinas and Georgia, until the revolution ; and in Maryland until 1715. In Massachusetts) Connecticut and Delaware, the eldest son had only a double portion, and this con- tinued in Connecticut until 1792, when the law giving the eldest son a double portion was repealed. In Pennsylvania, by the law of 1683, the law of primo- geniture was. abolished, but the act still gave the eldest son a double portion. Chalmer's Annals, 649, and so the law in Pennsylvania continued until 1794. The act of Massachusetts, in 1692, did the same. 2 Hutchinson's Hist. 66. In the Abstract of the Laws of New-England, a code digested by the Rev. Mr. Cotton, and published in 1655, it was ordered that inheritances, as well as personal estates, should descend to the next of kin, assigning a double portion to the eldest son. Hutchinson's State Papers, 168. The old New-England laws spoke of this double portion as being " according to the law of nature, and the dignity of birthright." Mass. Hist. Collections, vol. v. 178. So, in the province of New-Brunswick, under the colonial statute of 26 Geo. III., the heir at law of the intestate takes a double portion, and the remainder of the estate is distributed equally among the other children of the intestate or their representatives, including children of the half blood. The double portion is not confined to the lineal heir, but extends to the heir at law among collatei-ale, as to a brother. Thompson v. AUanshaw, Kerr N. B. Rep. 84. 396 OF REAL PROPERTY. [Part VI. an«e, so long as there were sons, and descendants of sons ; and when the inheritance went to the daughters in equal por- tions, in default of sons, they were obliged to marry in *377 the *family of their father's tribe, in order to keep the inheritance within: it.^ In the Gentoo code, all the sons were admitted, with an extra portion to the eldest, under certain circumstances, and no attention was paid to the daughters, according to the usual and barbarous policy of the Asiatics.** The institutions' of the Arabs excluded females from the right of succession ; but Mahomed abolished this law, and ordained that females should have a determined part of what their parents and kinsmen left, allowing a double por- tion to the males." The law of succession, at Athens, re- sembled, in some respects, that of the Jews ; but the male issue took equally, and were preferred to females ; and if there were no sons, then the estate went to the husbands of the daughters. "^ IvTothing can be conceived more cruel, says Sir William Jones,^ than the state of vassalage in which women were kept by the polished Athenians. The husband who took the estate from the wife, might bequeath the wife herself, like part of his estate, to any man whom he chose for his successor. At Eome, the law of succession underwent frequent vicissitudes. The law of the twelve tables *3Y8 admitted equally male and female children to *the * Nwnh. u. 2*7, and c. 36. Beut. c. 21. T. 17. Selden, De Success, ad leges Ebr. in bona defunct, c. 12. Jone^ Com. on Isceus, 111. Hale's Hist. Com. Law. vol. ii. 76. By the Jewish institutions, lands sold, with the exception of houses within the walled cities, were, on the return of every fiftieth year, to revert to the seller, or his representatives. The yeai' of jubilee served to reintegrate families and their possessions ; and the policy was calculated to give equality and stability to family influence. Lev. c. 25. '' Gentoo Code, by Halhead, Ii. Jone^ Institutes of Hindu Law, c. 9. art. 17. • Jones' Com. on Is See Code Civil, Nos. 739, 740. 745, as to the doctrine of representation in the descending line ; and see ibid. Nos. 774. 793 — 802, as to the duties and privileges of the heii'. See, also, Nouveau Style des Notaires de Paris, cited by Ch. J. Parker, in 5 Pick. Rep. 74, as a practical exposition of the code in relation to suc- cessions. M. TowUier (Droit Civil Franfaiae, tome iv. 62, note) says, that the compilers of the Fi-ench code upon successions, have principally followed Pothier, and availed themselves greatly of his sage reflections. Toullier has written an entire volume upon the copious theme of the law of descent ; and he has been greatly indebted, as he admits, to the treatise of M. Chabot, -whom he speaks of in the highest terms, as a learned author, employed by the government to make a re- port upon the law of successions. The treatise of Le Brun, on successions, is also fi-equently cited ; and the cxtraordinaiy extent of research, and minuteness and accuracy of detail of the French lawyers, on this as well as on other subjects of property, cannot but excite, in the breast of every lover of the science of jurispru- dence, the highest respect and admiration. They write like practical men, with remarkable simplicity, sound judgment and pure morals, and with cultivated and elegant taste. 400 OF REAL PROPERTY. [Part VI- the heir.=i The equal partition which prevailed in the Eoman law among all the children, prevails also in the law of Scot- land, in the succession of movables ; but the feudal policy of primogeniture has been introduced as to land. The heir is the exclusive successor to the land, and the other nearest of kin the exclusive successoi's to the movables. A great privi- lege is, however, conferred by the Scotch law upon the heir at law of an intestate estate, being also one of the next of kin, of allowing him to throw the heritable estate into a com- mon stock with the movables, and to demand, as one of the next of kin, his share, on an equal partition of the joint, real and movable estate with his brothers and sisters. This is termed his right to collate the succession; and it applies, though the real estate to which the heir succeeds be situated in another country, provided he claims his share of the *382 personal estate *under the law of Scotland.*" In Den- mark, by an ordinance, in 1169, primogeniture gave a title to a moiety of the estate, and no more ; and the other moiety was to be distributed equally among the other chil- dren and their descendants. In Spain, lands are equally dis- tributed among" the children of the deceased proprietor, ex- cepting the cases in which they are fettered by an entail. As this is uniformly the case with the possessions of the grandees, who, before the Spanish revolution, in 1808, engrossed more than half the landed property of the kingdom ; and as the lands of the clergy are inalienable, the law of equal partition is comparatively of very little consequence. The preference of males to females, and the right of pri- mogeniture among the males, is the established and ancient rule of descent in the English common law." The right of • Van Leeuwen's Ccm.. on the Roman Dutch Law, b. 8. c. 10, 11, 12. Institutes of the Laws of Holland, by Vander Linden, translated by J. Henry, Esq., 1828, pp. 150, 151. 158. i" BelVs Com. on the Laics of Scotland, vol. i. 100, 101. 103, £eirs Frinciples of the Law of Scotland, sec. 1910 — 1913. In Balfour v. Scott, (cited in 5 Vesey "ZSO, 2 Ves. & Bea. 131, and Eobertson on Personal Succession, 203,) it -was held, that where the intestate, domiciled in England, left real estate in Scotland, the heii', being one of the next of tin, was entitled to his share of the personal estate, without being obliged to collate the real estate, or bring it into a mass, according to the law of Scotland. That was not the English law. « Bracton, lib. 2. fo. 69. a. b Lee. LXV.] OP REAL PROPERTY. 401 primogeniture was derived from the martial policy of the feudal system, after it had attained solidity and maturity. It is supposed to have been unknown, or not in use, among the ancient Germans, or the Anglo-Saxons, prior to the Norman conquest. They admitted all the sons equally to the inherit- ance ; but the weight of authority is, that females were most generally excluded, even in the primitive ages of the feudal law.^' "When the feudal system became firmly established, it was an important object to preserve the feud entire, and the feudal services undivided, and to keep up a succession of ten- ants who were competent by their age and sex, to ren- der the military *services annexed to their grants. *383 The eldest son was the one that first became able to perform the duties of the tenure, and he was, consequently, preferred in the order of succession. Females were totally excluded, not only from their inability to perform the feudal engagements, but because they might, by marriage, transfer the possession of the feud to strangers and enemies.'' But these common law doctrines of descent are considered to be incompatible with that equality of right, and that uni- versal participation in civil privileges, which it is the consti- tutional policy of this country to preserve and inculcate. The reasons which led to the introduction of the law of primogeni- ' Tacitus, de Mor. Ger. c. 20. Feud. lib. 1. tit. 8. Siquis igitur deeesserit, Jiliis etfiliabus superstilihus, succedunt tantumjilii cequaliter. Hale's Hist, of the Common Law, vol, ii. 94, 95. 98. Sullivan on Feudal Law, sec. 14 Dalrymple's Essay on Feiidal Property, 165. Wright on Tenures, 31. Mr. Spence, in hia Inquiry into the Origin of the Laws and Political Institutions of Modern Murope, 393, 394, shows, by reference to the laws of the barbarian nations of German origin, and particularly to the laws of the Thuringians, Ripuarians and Salic Franks, that males excluded females from the succession. There were, however, exceptions to the general rule in some of the barbarian codes, and females were not universally excluded from partaking of the inheritance. '' Feud. lib. 1. tit. 8. Ve Successione Feudi. Wright on Tenures, 114. 178. Dalrymple, 163 — 166. 2 Blacks. Com. 215. Sullivan on Feudal Law, sec. 14. Mr. Reeve, in his History of the English Law, vol. i. 40, 41, says, that the right of primogenitm-e was quite feeble even so low down as the reign of Hen. L, and it was not solidly fixed until the reign of Hen. II. But it was not even then fixed as to lands held in free socage, according to Glanville, b. 7. c. 3, provided the lands had been antiquitus divisa. Wilkins, in his Leges Anglo-Saxonicce, ed. 1721, p. 226, states, that the first notice which we have of the English law of primogeni- ture, is in the laws of Hen. I. Prima patris feudum primogenitus filius habeat. Vol. IV. 26 402 OF REAL PROPERTY. [Part VI. ture, and preference of males, ceased to operate upon the de- cline and fall of the feudal system ; and those stern features of aristocracy are now vindicated by English statesmen upon totally different principles. They are not only deemed essen- tial to the stability of the hereditary orders, but they are zealously defended in an economical point of view, as being favourable to the agriculture, wealth and prosperity of the nation, by preventing the evils of an interminable subdivision of landed estates. It is contended, that the breaking up of farms into small parcels, and the gradual subdivision of these parcels into smaller, and still smaller patches, on the descent to every succeeding generation, introduces a redundant and starving population, destitute alike of the means and of the enterprise requisite to better their condition. The appeal is boldly and constantly made to the wretched condition *384: *of the agriculture and agricultural improvement of France, and particularly of the province of iN'ormandy, under the action of the new system of equal partition. It is declared to be an enemy to all enterprising and permanent improvements in the cultivation of the soil, and employment of machinery ; to all social comfort and independence, as well as to the costly erections of art, and embellishments of taste.'' On the other hand. Dr. Smith, the author of the * See Edinburgh Review, vol. xL 360 — 315, which refers to the agricultural toni's of Arthur Touiig, James P. Cobbett and Mr. Bu-kbeck. Such has been the rapid progress of the French law of descent, that, in 1837, France was parcelled out among more than ten millions of landed proprietors. M. de Tocqueville alludes to its wonderful, if not portentous effects in France. The law of equal distribution of land, he obsei-ves, stiikes at the root of landed property, and rapidly disperses families and fortunes. It overthrows in its course the walls of our dwellings, and the landmarks of our fields. JDe la Democratie en Amerigue, t. I. pp. 81, 82. Arthur TouDg had travelled over France before the French revolution, and he then made strong and striking objections to the minute division of little farms among all the children in those provinces where feudal tenm-es did not abound. The conse- quence was, excessive population, beggary and miseiy. Young's Travels in France, in 1787 and 1788, vol. ii. c. 12. He supposed that more than one-third of the ■kingdom was occupied by very small fanns, cultivated by the owner ; and the facts, observations and reflections, contained in his various travels in France, England and Ii-eland, went veiy strongly to prove, that lai'ge lai-ms, and sufficient capital to manage them, were most conducive to general improvement, independence, pros- perity and happiness. On the other hand, we have the authority of Van-o and Pliny, that large tracts of land in the hands of overgrown slave proprietors, and left uncultivated, for purposes of luxury, or wretchedly cultivated by slave labour, Lee. LXV.] OP REAL PROPERTY. 403 Wealth of Nations^ severally condemns the policy of pri- mogeniture, as being contrary to the real interests of a nu- merous family, though very fit to support the pride of family distinctions.'' The Marquis Garnier, the French translator of that work, is also a decided advocate for the justice and policy of the principle of equal partition ; and the Baron De Stael Holstein is of the same opinion, even in an economical point of view. He considers the equal division of estates much more favourable to the wealth and happiness of society than the opposite system.^ There are very great evils, undoubtedly, in the subdivision of estates, when it is carried to extremes, and property di- vided into portions not large enough for the comfortable sup- port of a family. The policy of the measure will depend upon circumstances, and is to be considered in reference to the state of society, the genius of the government, *the character of the people, the amount of cultivated *385 land, the extent of territory, and the means and the in- ducements to emigrate from one part of the country to an- other. Without undertaking to form an opinion as to the policy of primogeniture under the monarchical governments, and crowded population of England, teland and France, it would be very unfounded to suppose that the evils of the equal partition of estates have been seriously felt in the Uni- ted States, or that they have borne any proportion to the great advantages of the policy, or that such evils are to be antici- pated for generations to come. The extraordinary extent of our unsettled territories, the abundance of uncultivated land in the market, and the constant stream of emigration from the Atlantic to the interior states, operates sufficiently to keep paternal inheritances unbroken. The tendency of these causes, as experience in the eastern states would seem to con- firm, is rather to enlarge than to abridge them ; and if the inheritance will not bear partition without injury to the par- ties in interest, the eldest son, in some of the states, is allowed to elect to take the whole estate to himself, on paying to the destroyed the prosperity and strength of ancient Italy. Latifundia perdidere Italiam. « Wealth of Nations, voL i. 382. •■ See N. A. Review, vol. xxvL art. 8. 40 i OF REAL PROPERTY. [Part VI. other heirs an equivalent to their shares in money, and on his refusal, the same privilege is allowed to the other sons suc- cessively."- By the common law, the ancestor from whom the inherit- ance was taken by descent, must have had actual seisin, or seisin in deed, of the lands, either by his own entry, or by the possession of his or his ancestor's lessee for years, or by being in the receipt of rent from the lessee of the freehold, in order to transmit it to his heir. The' heir, to be entitled to take in that character, must be the nearest male heir of the whole blood, to the person who was last actually seised of the free- hold. This maxim of the law of England has subsisted from the earliest ages, and appears in Bracton, Britton and Fleta. It is this seisin which makes a person the stirps or *386 stock, *from which all future inheritance by right of blood is derived. The maxim of the common law was, that nonjus sed seisinafacit stipitem. If, therefore, the heir, on whom the inheritance had been cast by descent, dies before he has acquired the requisite seisin, his ancestor, and not himself, becomes the person last seised of the inheritance, and to whom the claimants must make themselves heirs.* The rule was derived from the doctrine of the feudal law, which required that whoever claimed by descent should make himself to be the heir of the first purchaser ; and the seisin of the last possessor from whom he claimed as his heir of the whole blood, was considered as presumptive evidence of his being of the blood of the first purchaser. It supplied the dif- « Borsei/s Laws of Maryland, vol. i. 749. See 6 ffar. & Johns. Rep. 156. 258. Statutes of Connecticut, 1838, p. 2S5. Statute of Pennsylvania, 1832. Revixed Statutes of Vermont, 1839, p. 296. Civil Code of Louisiana, of 1808, directed a sale of iniientaDces -which could not be conveniently divided among the heii-s. 1 8 Louis. Rep. 354. In an able essay on the division of estates by M. Passy, in the Revue de Legislation et de Jurisprudence, noticed in the American Jurist for Oc- tober, 1841, it is observed, that the la-ws of succession have no po-wer to confine individual properties -within uniform limits ; and that inequality of property is crea- ted and maintained by the constant operation of causes, not in the power of legis- lative provisions to destroy. ^ Litt. sec.S. Go.Litt.ll,h. Hale's Hist. Com. Law, is. 11. 2 Bla<:hi. Com. 209. Goodtitle v. Ne-wman, 3 Wi!s. Rep. 516. 1 Simons (k Stewart, 260. Seisin in deedia actual possession of the freehold, and seisin in lam is a legal right to such possession. A constructive seisin in deed is said to be, for all legal purposes, equi- valent to an actual seisin. Green v. Liter, 8 Cranch, 244 — 249. Lee. LXV.] OF REAL PROPERTY. 405 ficulty of investigating a descent from a distant stock, through a line of succession, become dim by the lapse of ages."^ There are reasonable qualifications in the English law to the universality of this rule. If the ancestor acquired the estate by purchase, he might, in some cases, transmit it to his heirs without having had actual seisin ; or if, upon an ex- change of lands, one party had entered, and the other had not, and died before entry, his heir would still take by de- scent, for he could not take in any other capacity. ^ It is like- wise the rule in equity, that if a person be entitled to a real estate by contract, and dies before it be conveyed, his equi- table title descends to his heir.<= The possession of a tenant for years is the possession of the person entitled to the free- hold ;•' so that one who has a reversion or remainder in fee expectant upon the determination of a term for years, is in the actual seisin of his estate, for the possession of the termor is in law that of the remainder-man or reversioner. There may also be a seisin of a remainder, or reversion expectant upon a freehold estate.'^ The seisin or possession of one par- cener, or tenant in common, is the seisin and possession of the other. So, also, the possession of a guardian in socage is the possession of his infant ward, and sufficient to consti- » Reeve's Hist, of the English Law, vol. ii. 318. By the English statute of 3 and 4 Wm. IV. c. 106, descent is to be traced from the purchaser, and the person last en- titled to the lands is to be considered the purchaser, unless it be proved that he inherited the same, in which case the person from whom he inherited the same shall be considered the purchaser, unless it be proved that he also inherited the same. The last person from whom the lands were inherited shall in every case be considered the purchaser, unless it be proved that he inherited the same. ' Shelley's case, 1 Co. 98, a, b, by Coke, who argued for the defendant, in whose favour judgment was rendered. " Potter V. Potter, 1 Vesey, 437. J Co. Litt. 15, a. " Cook V. Hammond, i Mason, 489. Plowden, 191. Vanderheydeu v. Crandall, 2 Denio Rep. 23. But the reversion or remainder in fee, expectant on a present freehold estate, will not, during the continuance of such freehold estate, pass by descent from a person to whom the title thereto had vested by descent, as a new stock of inheritance, unless some act of ownership had been exercised by the owner over such expectant estate, and which the law would regard as equivalent to an actual seisin of a present estate of inheritance, though it would be otherwise if the future estate was acquired by purchase. Vanderheyden v. Crandall, 2 Denio Rep. 24, 25. 406 OF REAL PROPERTT. [Part VI. *387 tute *the technical possessio frai/ris, and transmit the inheritance to the sister of the whole blood. '^ If the estate he out in a freehold lease when the father dies, then there is not such a possession in the son as to create the possessio fral/ris. The tenancy for life in a third person sus- pends the descent, unless the son enters in his lifetime, or re- ceives rent after the expiration of the life estate. It is a well settled rule of the common law, that if the person owning the remainder or reversion expectant upon the determination of a freehold estate, dies during the continuance of the particular estate, the remainder or reversion does not descend to his heir, because he never had a seisin to render him the stoct or terminus of an inheritance. The intervention of the estate of freehold between the possession and the absolute fee, pre- vents the owner of the fee from becoming the stock of in- heritance, if he dies during the continuance of the life estate. The estate will descend to the person who is heir to him who created the freehold estate, provided the remainder or rever- version descends from him; or if the expectant estate had been purchased, then he must make himself heir to the first purchaser of such remainder or reversion at the time when it comes into possession. The purchaser becomes a new stock of descent, and on his death the estate passes directly to his heir at law. He takes the inheritance, though he may be a stranger to all the mesne reversionei*s and remainder-men, through whom the inheritance had devolved.*" This severe rule of the common law is so strictly enforced, that it will, in some cases, admit the half, to the exclusion of the whole blood." Should the person entitled in remainder or reversion exercise an act of ownership over it, as by conveying it for his own life, it would be an alteration of the estate *388 sufiicient to create in him a new stock, *or root of in » lAit. sec. 8. Co. Lift. 15, a. Goodtitle v. Ifewman, S Wils. Rep. 516. Doe V. Keen, 7 Term Rep. 386. In Doe v. Thomas, 4 Scott N. R. 449, it was held that if an infant devisee in fee died before entiy, or actual seisin or possession, she bad still such a, seisin in law as enabled her heir to take the devised premises from her by descent. This was quite a relaxation of the old rule of the common law. 1' Co. Litt. 15. a. Doe v. Button, 3 Bos. & Pull. 643. 655. Ratcliffe's case. 3 Co. 41. b. 42. a. Kellow v. Rowden, 3 Mod. Rep. 253. • Co. Litt. 15. a. Lee LXV.] OF REAL PROPERTY. 407 heritance. It would be deemed equal to an entry upon a descent. =^ The rule of the common law existed in New- York, under the statute of descents of 1786 ; and the heir was to deduce his title from the person dying seised. It had been repeatedly held, that during the existence of a life estate, the heir on whom the reversion or remainder was cast, subject to the life estate, was not so seised as to constitute him the possessio fratris or stirps of descent, if he died pending the life estate ; and the person claiming as heir must claim from a previous ancestor last actually seised.^ If the estate in fee had been acquired 5y descent, it was necessary that there should have been an entry to gain a seisin in deed, to enable the owner to transmit it to his heir ; and, therefore, if the heir, on whom the inheritance had been cast by descent, died before entry, his ancestor, and not himself, became the person last seised, and from whom the title as heir was to be deduced. If, how- ever, the ancestor acquired the estate iy purchase, he was, in many cases, allowed to transmit the estate to his heirs, though he had not had actual seisin in himself. But the JVew- YorTc Revised Statutes,'^ have wisely altered the pre-existing law on this subject ; and they have extended the title by descent ge- nerally to all the real estate owned by the ancestor at his death ; and they include in the descent every interest and right, legal and equitable, in lands, tenements and heredita- ments, either seised or possessed by the intestate, or to which he was in any Tnanner entitled, with the exception of leases for years, and estates for the life of another person. The Massachusetts, Virginia, ISTorth Carolina and the Tennessee law of descent reach equally to every interest in fee in real estate. The Massachusetts statute extends to every such in- terest for the life of another, and the North Carolina and Tennessee statutes to every right, title or interest in the es- tate.'' This completely abolishes the English maxim, that » Co. Zitt. 15. a. Ibid. 191. b. Sb-iiiger v. Nevr, 9 Mod. Rep. 363. *■ Jackson v. Hendricks, 3 Johns. Cas. 214. Bates v. Schroeder, 13 Johns. Rep. 260. Jackson v. Hilton, 16 ibid. 96. « ToL i 1i\. sec. 1. Ibid. loi. sec. 27. ^ Massachusetts Revised Statutes, 1835. Acts of North Carolina and of Ten- nessee, of 1784. c. 22. Guion v. Buxton, 1 Meigs, 565. Act of Virginia, October, 408 OF EEAL PROPERTT. [Part TI. seisinafacit stipitem. So, likewise, in Ehode Island, Connec- ticut, New-Jersey, Pennsylvania, Delaware, South Carolina, Georgia and Oliio, and probably in other states, the real and personal estates of intestates are distributed among the heirs, without any reference or regard to the actual seisin of the an- cestor. Reversions and remainders vested by descent in an intestate, pass to his heirs in like manner as if he had been seised in possession ; and no distinction is admitted in *389 descents between estates in possession and *in rever- sion.^ In the states of Maryland and l^orth Carolina, the doctrine of the possessio fratris would seem still to exist.i" Though posthumous descendants inherit equally as if they had been bom in the lifetime of the intestate, and had sur- vived him, yet the inheritance descends in the mean time, to the heir m esse at the death of the intestate. It was declared, by Lord Ch. J. De Grey, in the case of Goodtitle v. J^ew- man^'^ on the authority of a case in the Tear Books, of 9 Henry YL, 25, a, that the posthumous heir was not entitled to the profits of the estate before his birth, because the entry of the presumptive heir was lawful. This rule does not apply to post- humous children who take remainders, under the statute of 10 and 11 "Wm. m. They must take the intermediate profits, says Lord Hardwicke, for they are to take in the same man- If 85. Judge Iiomax considers the common law rule eei^na faeit sHpitem as abrogated in Virginia by that statute. See his Digest of tlie Laws of Real Pre- perty, toL i. 594. This work is in three Tolumes, and it applies as well to the laws respecting real property in the United States as in Virginia. The work is upon the model of Cruise's Digest, and it may well be recommended as a "valu- able addition to the lawyer's library. * Reeve on Descents, 377—379. 1 BilTs S. C. Ck. Rep. 269. Cooke t. Ham- mond, 4 Mason's Rep. 467. Hillhouse v. Chester, 3 Days Rep. 166. Gardner T. Collins, 2 PeterS XT. S. Rep. 69. Tucket's Blacks. Cam. voL ii. Appendix, note B. The doctrine of the common law was fully, ably and learnedly discussed by counsel in the three last cases above mentioned. '' 2 Peter^ U. S. Rep. 625. Chiffith's Law Register, tit N. C. 'So. 6. Reeve on Dexcents, Sll. The English real property commissioners, in their first report to parliament, in May, 1829, objected to the rule that seisina facit stipilem; aud they recommended an alteration of the rule, so far as that the inheritance should pass to the heir of the person last seised of, or eixtitled to the estate or interest, to be taken by inheritance. By the statute of 3 ife 4 "Wm. IV. c. 27, no descent cast or discontinuance tolls or defeats any right of entry for the recovery of and. « 3 Wils. Rep. 516. Lee LXV.] OF REAL PBOPERTT. 409 ner as if born in the lifetime of the father."' This construction of Lord Hardwicke applies to the New- York Revised Sta- tutes ; for it is declared, that posthumous descendants shall, in all cases, inherit in the same manner as if born in the lifetime of the intestate. The provision in the laws of some of the other states, such as Ehode Island, New-Jersey, Pennsylvania *and Missouri, would seem to be to the *390 same effect, and admit of the same construction. •• II. The second rule of descent is, that if a person dying seised, or as owner of land, leaves lawful issue of different degrees of consanguinity, the inheritance shall descend to the children and grandchildren of the ancestor, if any be living, and to the issue of such children or grandchildren as shall be dead, and so on to the remotest degree, as tenants in common. But such grandchildren, and their descendants, shall inherit only such share as their parents respectively would have in- herited if living. The rule is thus declared in the JSFew-YorJc Revised Sta- tutes, and it probably is to be found in the laws of eveiy state in the Union.^ The rule applies to every case where the descendants of the intestate, entitled to share in the in- heritance, shall be of unequal degrees of consanguinity to the intestate. Those who are in the nearest degree take the shares which would have descended to them, had the de- scendants in the same degree, who are dead, leaving issue, been living ; and the issue of the descendants who are dead, respectively, take the share which their parents, if living, would have received. It may be illustrated by the following example : A. dies seised of land, and leaves B., a son, living, and D. and E., two grandsons, of C, a son who is dead. Here B., the son, and D. and E., the two grandsons, stand in differ- ent degrees of consanguinity ; and B. will, therefore, under this second rule, be entitled to one-half of the estate, and D. and E. to the other half, as tenants in common. Or suppose » Basset v. Basset, 3 Ath Rep, 203. I" New-York Revised Statutes, vol. i. '764. sec. 18. Griffith's Law Register under the head of each state, No. 6. " New-York Revised Statutes, vol. i. 751. sec. 3, 4. Mass. Revised Statutes, 1835. GriffilKs Law Register, passim. Ordinance of Congress, of 13th July, 11S1- Kentucky Statutes, 1186. ll^l. 410 OF REAL PROPERTY. [Pait TL A. should leave not only B., a son, living, and D. and E., two grandsons, by C, who is dead, but also F. and G., two great- grandsons, by H., a daughter of C, who is also dead. *391 Here would be descendants, living in three dijQferent *de- grees of consanguinity, viz., a son, two grandsons, and two great-grandsons. The consequence would be, that B., the son, would take one-half of the estate ; D. and E., the grand- sons, would take two-thirds of the other half; andE. and 6., the great-grandsons, would take the remainingthird of one-half, and all would possess as tenants in common. Had they all been in equal degree, that is, had all of them been either sons, grand- sons, or great-grandsons, they would, under the first rule, have inherited the estate in equal portions, which is termed in- heriting ^er capita. So that, when heirs are all in equal de- gree, they inhevitper capita, or equal portions, and when they are in diiferent degrees, they inherit ^e?" stirpes, or such por- tion only as their immediate ancestor would have inherited if living. Inheritance per stirpes is admitted when representa- tion, becomes necessary to prevent the exclusion of persons in a remoter degree ; as, for instance, when there is left a son, and children of a deceased son, and a brother, and children of a deceased brother. But when they are ia equal degree, as all, for instance, being grandsons, representation is not ne- cessary, and would occasion an unequal distribution of the estate ; and they accordingly inherit per capita. This is the rule which prevails throughout the United States, with the exceptions, already noticed, of Rhode Island, New-Jersey, North Carolina, South Carolina, Alabama and Louisiana ; and it agrees with the general rule of law in the distribution of personal property, a The law of descent, in respect to real and personal property, bears, in this respect, a striking re- semblance to the civil law, as contained in the 118th novel of the Emperor Justinian.'' The rule of inheritance per stirpes is rigidly adhered to in » See vol. iL 425, of this work. The rule is comprehensively and clearly stated in the Virginia law of descents, of 1792. Revised Code of Virginia, vol. i. 237. i" The distinctive character of succession per stirpes, and per capita, and the grounds on which they severally rest, is exceedingly well explained by Vinnius, in his Commentary upon the Institutes, lib. 3. tit. 1. u. 6. Leo. LXV.] OF REAL PROPERTY. 411 the English law of descent of real estates. Parceners, *in one single instance, do inherit joe?' capita^ but this *392 is where the claimants stand not only in equal degree, but are entitled in their own right, as daughters or sisters of the common ancestor. They never take ])er capita, when they claim thel&nd jwerepresentationis j and, therefore, if a man hath two daughters, and they both die in his lifetime, the eldest leaving three, and the youngest one daughter, these four grand-daughters, though in equal degree, yet claiming by right of representation, they inherit per stirpes, and the one of them takes as large a portion as the other three.^ The civil law, in this, as well as in other cases, respecting the suc- cession to the property of intestates, went upon more equita- ble principles, but still it went not to the extent that our law has proceeded. Like the English law, it rigidly adhered to the doctrine of inheritance per stirpes, that is, representation took place in infinituTn in the right line descending ; but, with respect to collaterals, it permitted it, as we have done, only when necessary to prevent the exclusion of claimants in a remoter degree.^ Thus, for example, by the civil law, as well as by the general American law of descents, and of dis- tributions, already mentioned, a brother and a nephew took per stirpes, but nephews alone took per capita.'^ III. A third canon of inheritance, which prevails to a con- siderable extent in this country, is, that if the owner of *lands dies without lawful descendants, leaving *393 parents, the inheritance shall ascend to them, either first to the father and next to the mother, or jointly, under certain qualifications. • 2 Wood. Lee. 115. ^ Imt. 3. 1. 6. Nouel, 118. 2 Blacks. Cmn. 217. ' Louisiana is here, also, an exception to the general rule in this countiy ; and representation applies, in the collateral line, to brothers and sisters, and their de- scendants, whether they stand in equal or unequal degi'ees. Civil Code of Louisi- ana, 'So. 893. The Code Napoleon, from whence the law of descents of Louisiana, in the descending and collateral lines, was taken, adheres, in this case, (see ISo . '742,) to the rule of representation ; and I apprehend the doctiine of representation is also preserved in these collateral cases in North and South Carolina, Alabama and Rhode Island, notwithstanding the descendants in the collateral line may stand in equal degi-ees. 412 OF REAL PROPERTY. [Part VI. (1.) Of the father. The estate goes to the father, in such a case, unless it came to the intestate on the part of the mother, and then it passes to her, or the maternal kindred ; and this is according to the rule in the states of Maine, New-Hampshire, Ehode Island, New-York, a Kentucky and Yirginia. In Vermont the widow, in default of issue, takes one-half of the estate, and the father the other half* In Massachusetts" and in Arkansas, the es- tate descends in all cases to the father, if the intestate leaves no lawful descendants. In Georgia, the widow of the intes- tate takes a moiety, if there be no children ; and the other moiety, or the whole, if there be no widow, goes to the father only, as one of the next of kin with the brothers and sisters, for the statute makes them equal of kin for the purpose of inherit- ance.-i In Maryland, if the estate was acquired by descent, it goes to the parent or kindred in the paternal or maternal line from which it descended. If otherwise, it goes to the father only in default of issue, and of brothers and sisters of the whole, and of the half blood. In JSTew-Jersey, brothers and sisters of the whole blood, and their children, take the inheritance in de- fault of lineal heirs, in preference to the parents, or either of them. But in default of such brothers and sisters, and their is- sue, the estate descends to the father in fee-simple, and if no fa' ther, to the mother for life, and after her death, to the brothers and sisters of the half blood.« The rule in Mississippi is essen- tially the same, except that the mother in the above case takes a fee, and the half blood take equally with the whole blood, ' Nmi-YorTc Revised Statutes, vol. i. 161. sec. 5. Ibid. 153. sec. 12. The rule in New- York, according to the 5th section of the Revised Statutes above cited, and the amendment thereto, by statute of the 20th April, 1830, is, that if the intestate dies, without lawful descendants, leaving a father, the inheritance descends to him, unless it came to the intestate on the part of his mother, and she be living. But if she be dead, the estate so descending on her part shall go to the father for life, and then to the brothers and sisters of the intestate, and their descendants, according to the law of inheritance by collateral relatives ; if there be no such brothers or sisters, or their descendants, living, the inheritance descends to the father in fee. '' Revised Statutes of Vermont, 1839, p. 293. ' Massachusetts Revised Statutes, 1835. ^ Botchkiss's Codification of the Statute Law of Georgia, 1845. • Elmer's Digest, 130, 131. R. S. of New-Jersey, 1847, tit. 10, c. 2, lee. LXV.] OV REAL PROPERTY. 413 unless they be kindred in the same degree, and then the whole blood are preferred.'' In Louisiana, the father and mother succeed equally as next of kin to a moiety of the es- tate of the child dying intestate, and without issue. The other moiety goes to the brothers and sisters and their de- scendants. If only one of the parents *survives, that *394: parent takes one-fourth ; and it seems that such parent is a forced heir for the one-fom'th of the estate, and that the child cannot dispose of it by will.'' The rule in Indiana re- sembles very much that in Louisiana ; for, in default of issue, the father, or if he be dead, the mother, takes one-half of the estate, and the other half is equally divided among the brothers and sisters, or their descendants. If no parents, the brothers and sisters, or their descendants, take the whole ; if none of them, and the parents be living, then the whole estate goes to the father, or if dead, to the mother.<= In Illinois, in default of issue and their descendants, the estate goes as follows : the whole personal estate and one-half of the real estate to the widow, and the residue, or the whole, if there be no widow, to the parents, brothers and sisters, and their descendants, in equal parts, and if only one of the parents be living, that pa- rent takes as survivor a double portion. If there be no widow, or parent, or brothers, or sisters, or their descendants, then the estate descends in equal parts to the next of kin in equal degree, computing by the rules of the civil \a,wA In Mary- land, if the intestate dies without issue, the father succeeds, and if no father, then the estate goes to the brothers and sis- ters of the blood of the father and their representatives, and if none, then to the grandfather and his descendants ; and if that line fails, then in like manner to the mother and her descen- dants and maternal ancestors. The delineations are specific and minute.<= In Pennsylvania, the father and mother take jointly for life, and for the life of the survivor, and if thei-e be no issue, or brothers, or sisters, or descendants of the whole blood, the father and mother, if both be living, and if not, the * Revised Code of Mississippi, 1824, p. 41. •■ Civil Code of Louisiana, Wos. 899. 907. Cole v. Cole, 19 Martin, 414. ' Revised Statutes of Indiana, 1838, p. 23'7. * Revised Laws of Illinois, edit. 1833, p. 625. * Dorsei/s Laws of Maryland, toI. i. 746. 414 OF REAL PROPERTY. [Pai-t VI. survivor takes an estate in fee.^ In Missouri, the parents take equally with the brothers and sisters of the intestate. In South Caroliua, by the act of 1791, in default of issue, or widow (who takes a third, or moiety, or two-third parts of the estate, as the case may be,) the father, or if dead, the mother, takes the estate, real and personal, in conjunction with the brothers and sisters in equal shares.'' In Connecticut, Ohio, Worth Caroliaa, Tennessee, Mississippi and Alabama, the father takes only in default of foothers and sisters." In Dela- ware, the parents are postponed to the brothers and sisters, and their descendants ; and in default of brothers and sisters, the estate is distributed equally " to every of the next of kindred of the intestate, who are in equal degree." I do not know what construction has been given to the statute on this sub- ject in Delaware ; but the next of Tcind/red to the intestate, I presume, must be the parents, if living. They are nearer of kin than brothers and sisters ; but the statute having given brothers and sisters the preference, and then, in default of them, to the next of kindred to the intestate, it would seem. • Act of Apiil 8th, 1833. Purdon's Dig. 650, 551. i- "Watson V. Hill, 1 M'Gord's Rep. 161. But by the sUtute of Vm, (vide supra, p. 29,) the /iMsJamii surviving his wife, takes under the statute of distributions of South Carolina, the same share of her real estate that she would have taken of his estate if she had sumved. » In Alabama, the widow takes a moiety in dower, if there be no lineal descendants. Aikin's Dig. 2d edit. p. 1 29. She takes, in Missouri, in that case, one-half of the real and personal estate absolutely. In Ohio, in default of lineal descendants, the estate passes to the brothers and sisters of the intestate of the whole blood, and theii- repre- sentatives ; and in default of the whole blood, the estate passes to the brothers and sis- ters, and their descendants, of the half blood. Statute Daws of Ohio, 1831, p. 263. If there be no brothers or sisters of the half blood, or their representatives, the estate as- cends to the father, and if he be dead, to the mother. Ibid. In Connecticut, the parents are preferred to the half blood in the above case. Revised Statutes of Connecticut, 1821, p. 207. Ibid. 1838, p. 236. In Tennessee, under the statutes of 1784, the estate, in default of issue, and brothers and sisters, and their issue, vests in fee in the parent from whom derived ; or if the estate was acquired by the intestate, then it vests in the father in fee if living, and if not, then it descends to the mother for life, and then to the heirs of the intestate on the part of the father, and in default thereof, to the heirs on the part of the mother. Lands acquired by descent from the father, do not even vest in the mother for life, but go to the colla- teral relations on the father's side. 2 Yerger, 115. Roberts v. Jackson, 4 Yerger, 308. Hoover v. Gregoiy, 10 ibid. 444. Statute Daws of Tennessee, edit. 1836, p. 249. Lee. IXV.] OF REAL PBOPERTY. 415 that the claim of the parents as next of kin re-assumes its force, and that both father and mother jointly must be enti- tled to the inheritance. In K"orth Carolina, the parents, or the survivor of them, take for life only, in default of issue, and of brothers and sisters ; and in New-Jersey, if there be no lawful issue, nor a brother or sister of the whole blood, or their lawful issue, the father takes the inheritance in fee ; un- less it came to the person last seised from the mother by de- scent, devise or gift, in which case it descends as if the per- son dying seised had survived his father. =• *The admission of the father to the inheritance of *395 his children dying intestate, and without lineal de- scendants, is an innovation, and a very great improvement upon the English common law doctrine of descents. The total exclusion of parents, and all lineal ancestors, in such a case, is said to be peculiar to the English law, and to the laws of other nations, which have been deduced from the feudal policy.'' Sir Martin "Wright has laboured to vindicate the Eng- lish rule on the feudal theory, by a train of artificial and tech- nical reasoning, which has no manner of foundation in the principles of justice. So far as the feud was presumed to be cmtiquum aut paternum, it was deemed to have passed al- ready through the father, and, therefore, he could not succeed. It would be repugnant to the fiction ; and the rights of the father, as it seems, must be sacrificed to sustain it. The heir was also bound to show himself entitled by a regular course of descent from the first feudatory or purchaser ; and the best evidence of that which the case afforded, was to prove that • Griffith's Lam Register. Elmer's N. J. Dig. \%> Revised Statutes of Vermont, 1839, p. 292. 420 OF REAL PROPERTY. [Part VI tie father's side, with a uniform preference of males ; and it did not descend to the kindred on the mother's side, until the relations in the paternal line, to the degree of second cousins, had failed. The mother, at Athens, as well as at Jerusalem, was excluded from the inheritance of her son. This appears from the speech of IsEeus on the estate of Hagnias. Among the Jews, in default of issue, the father succeeded to the es- tate of the son, excluding the mother and collaterals.* *400 The decemviral law at itome, and *which seems, in this instance, says Sir "William Jones, to have been bor- rowed from that of Solon, excluded mothers from the right of succession to their children. This rigour was sometimes miti- gated by the lenity of the praetors. Relief was promoted by the Senatus consvUwm TertulUcmuTn, in the time of Hadrian, and completed, with some restrictions, by the Justinianean code.'> The gi-eat diversity of opinion and policy among different nations, as to the succession of parents, and which appears so strongly in our American codes, is very strikingly illustrated in the jurisprudence of Holland. In South Holland, the in- heritance, in default of issue, ascends to the parents, in case they are ioth alive. But if only one of them survives, (and it is immaterial which of them,) the survivor is wholly ex- cluded, because there is a separation of the bed. On the other hand, in North Holland, the surviving parent divides the es- tate with the brothers and sisters of the deceased, whether they be of the full or half blood ; and if there be no brother or sister, the surviving parent takes the whole.'= rV. If the intestate dies without issue or parents, the es- tate goes to his brothers and sisters, and their representatives. If there be several such relatives, and all of equal degree of consanguinity to the intestate, the inheritance descends to them in equal parts, however remote from the intestate the » Mater et cognaiio matema a successione exclusa penitus. Seldert, de Success, ad leges Ebrce. in bona defunct, c. 12. Lord Ch. J. Holt, in Blackborough v. Davis, 1 P. Wms. 52, says, that thia was according to the construction of the Jewish doc- tors upon the 2'7th chapter of Numbers ; and it is so stated in Selden, ibid. c. 12. See, also, Antiquities of tJie Jewish Republic, by Thomas Lemis, voL iii. 324. I" Jonei Isoeus, Pref. Discourse. TTia Commentary on Isceus, 183, dtc. Novel, 118, c, 2. ' Vander Linden's Institutes of the Laws of Holland, by J. Henry, Esq, 1S9. Lee. LXV.] OF REAL PROPERTY. 421 common degree of consanguinity may be. If they all be brothers and sisters, or nephews and nieces, they inherit equally ; but if some be dead leaving issue, and others living, then those who are living take the share they would have taken if all had been living, and the descendants of those who are dead inherit only the share which their parents would have received if living. The rule applies to other direct lineal descendants of brothers and sisters, and *the taking ^ar capita when they stand in equal de- *401 gree, and taking per stirpes when they stand in differ- ent degrees of consanguinity, to the common ancestor, pre- vails as to collaterals, to the remotest degree, equally as in the descent to lineal heirs. * The succession of collaterals, in default of lineal heirs, in the descending and ascending lines, has existed among all na- tions who had any pretensions to civility and science, though under different modifications, and with diversified extent. In this fourth rule, (and which is the rule in ITew-Tork,'') the as- cending line, after parents, is postponed to the collateral line of brothers and sisters. The rule I have stated is perhaps universally the rule in this country, that brothers and sisters are preferred, in the order of succession, to grandparents, though the latter stand in an equal degree of kindred.<= This is by analogy to the rule of distribution of the personal estate of intestates, as settled in the civil and in the English law. But there are very considerable differences in the laws of the several states, when the next of kin, in this collateral line, are nephews and nieces, and the claims of uncles and aunts to share with them are interposed. The direct lineal line of de- ■ Pond T. Ber^h, 10 Faige, 140. •i Nem-York Revised Statutes, vol. i. '?52, sec. 1, 8, 9, 10. The law of descent, in New-York, is on this point altered and improved ; for it appears that by the law of I'ZSS, nephews and nieces took per stirpes in all cases. Jaokson v. Thurman, 6 Johns. Rep. 322. " By the Civil Code of JLouisiana, art. 908, and in Ai-kansas, if a person dies leaving no descendants, nor father nor mother, his brothers and sisters, or their de- scendants, inherit the whole succession, to the exelusion of the ascendants, and other collaterals. The old Civil Code of Louisiana was different ; since, according to that code, before collateral relations could set up a claim to the inheiitance, they must have shown that the relations in the ascending line had ceased to exist. Hooter's Heii-3 V. Tippet, 12 Martin's Rep. 390. Beniardiue v. L'Espinasse, 18 ibid. 94. 422 OF REAL PROPERTY. [Part VI. scendants from brothers and sisters, however remote they may be, take exclusively and by representation, under the rule in New-York, so long as any of that line exist. But this is not the case in many of the United States ; and the rule is, *402 therefore, *to be received with this qualification, that in most of the states, nephews and nieces, and their descendants, take as there stated, but they do not take exclu- sively. In Massachusetts, if there be no lineal descendants, nor father, the estate descends *in equal shares to the brothers and sisters and mother, and to the children of any deceased brother or sister by right of representation ; but if there be no brother or sister living, the estate descends to the mother in exclusion of the issue, if any, of deceased brothers or sisters." Uncles and aunts take equally with the nephews and nieces, as being of equal kin, in the states of New-Hampshire, Yer- mont and North Carolina. But nephews and nieces take in exclusion of them, though they be all of equal consanguinity to the intestate, in the states of Maine, Massachusetts, Rhode Island, Connecticut, New-York, New-Jersey, Pennsylvania, Delaware, Maryland, Ohio, Indiana, Dlinois, Kentucky, Vir- ginia,'' Tennessee, South Carolina, Georgia, Alabama, Louis- iana, Mississippi and Missouri. I draw this conclusion, be- cause the inheritance appears to be given, in those states, to the brothers and sisters, and thei/r descendants, or children, before recurrence is had to a distinct branch of the grandpa- rents' stock. The principle on which the rule is founded, is, that collateral kindred, claiming through the nearest ancestor, are to be preferred to the collateral kindred, claiming through a common ancestor more remote. The claim of the nephew is through the intestate's father, and of the uncle, through the intestate's grandfather. In several of the states, as in Maine, New-Hampshire, Ver- mont, Ehode Island, Connecticut, Pennsylvania, Maryland, Georgia and Mississippi, there is no representation among » Massachusetts Hevised Statutes, 1836. •> Davis V. Rowe, 6 Randolph's Rep. 355. In this case, the Virginia act of de- scents, of 1*785, and its analogy to the piinciples and rules of tlie English statute of distribution of the personal estate of intestates, and the rules of the civil law from whence it was boiTowed, are examined with great industry aod legal erudition. Lee. LXV.] OF REAL PROPERTT. 423 collaterals, after brothers' and sisters' children ;» nor in Dela- ware, after brothers' and sisters' grandchildren ; nor in Ala- bama and Mississippi after the descendants of brothers and sisters; and in some of the states, as in New-Jersey, there does not appear to be any positive provision for the case. In Louisiana, representation is admitted in the collateral line, in favour of the children and descendants of the brothers and sisters of the deceased.'" In North Carolina, the claim- ants take *per stirpes, in every case, even though the *4:03 claimants all stand in equal degree of consanguinity to the common ancestor, and so do the descendants of brothers and sisters by the law of descent in Alabama. The distinction between the claims of the whole and of the half blood, becomes of constant application in cases of a col- lateral succession to real estates; and there is a wide differ- ence in the laws of the several states in relation to that dis- tinction. The half blood was, until lately, entirely excluded by the English law, on the very artificial rule of evidence, that the person who is of the whole blood to the person last seised, affords the best presumptive proof that he is of the blood of the first feudatory or purchaser.<= Our American law of de- • This was also formerly the ease in New- York, under the statute of descents of I'ISe. In Maine, the intestate died without leaving issue or parents, but leaving a child of a deceased brother, and the grandchildren of another brother deceased, and it was held that the child took the estate, and the grandchildren were not en- titled to a distributive share of the estate, because the statute in that state was equivalent in its effects to the legal provision in the English statute of distribution, that there should be no representation among collaterals beyond brothers' and sis- ters' children. Quinby v. Higgins, 14 Maine Rep. 309. •> Civil Code, art. 893. But representation, for the pui'pose of inheritance, does not extend to the children of first cousins of the deceased. Ratcliff v. Ratcliff, 19 Martin's Rep. 335. " 2 Blacks. Com. 228 — 231. The rule of the English common law is, that the heir claiming by collateral descent must be the nearest collateral heir of the whole blood of the person last sebed on the part of the ancestor through whom the estate descended. Leach, V. C, in Hawkins v. Shewen, 1 Bim. & Stu. 260. And the descent between two brothers was held to an immediate descent, and therefore title might be made by one brother or his representative to or through another, without mentioning their common ancestor. 2 BlackK. Com. 226. But, in 1833, by the statute of 3 and 4 Wm. IV. u. 106, the distinction between the whole and the half blood in the descent of real property and between brothers, is in a great mea- sure abolished. The half blood are to succeed to the inheritance next after any relation in the sam« degi-ee of the whole blood and his issue, where the common an- 424 OF REAL PEOPERTT. [Part V I. scent would seem to be founded on more reasonable princi'- pies. The English rule of evidence may be well fitted to the ease to which it is applied ; but the necessity or policy of searching out the first purchaser is to be questioned, so long as the last owner of the estate, and the proximity of blood to him, are ascertained. In Maine, New-Hampshire, Vermont, (1) Massachusetts,^ Ehode Island,!" New- York," Illinois, North Carolina, He was well acquaint- ed with the Roman law of distribution of real and personal estates, which we, in this country, have closely followed ; and yet he singles out the law of descent, and couples it with trial by jury, as being two titles, equally showing by their excel- lence, a very visible superiority of the laws of England above all other laws. So natural and so powerful is the impression • 2 Blacks. Cam. a 14. ^ Hal^s History of the Common Law, vol. ii. 74. lee LXV.] OF REAL PROPERTY. 435 of education and habit, in favour of the long established insti- tutions of one's own country."- There are some other rules and regulations on the subject of descents, of which it would be proper to make mention be- fore we close our examination of this title. I. Posthumous children, as has been already mentioned, inherit, in all cases, in like manner as if they were born in the lifetime of the intestate, and had survived him. This is the universal rule in this country. ^ It is equally the acknowl- edged principle in the English law ; and, for all the beneficial purposes of heirship, a child in ventre sa mere is considered as absolutely bora.<= II. In the mode of computing the degrees of consanguinity, the civil law, which is generally followed in this country upon that point, begins with the intestate, and ascends from him to a common ancestor, and descends from that ancestor to " The English la-w of inheritance underwent some amendments by the statute of 3 and 4 William IV., c. 106. It declared that descent should alTvays be traced from the purchaser, and the person last entitled should be considered the purchaser, unless he acquired the land by descent, and then the person from -whom he inherited was to be considered the purchaser. And if land be devised to the heir, he shall take as devisee and not by descent ; and when a person takes by purchase under a limitation by deed to the heirs of the ancestor, or under a similar limitation by will the descent shall be traced as if such ancestor was the purchaser ; brother or sister shall trace descent through their parents ; lineal ancestor may be heir to his issue, in preference to collateral persons claiming through him, that is, for instance, the father before the brother ; no maternal ancestors, or their descendants, to inherit until all the paternal ancestors and their descendants have failed ; male paternal and maternal ancestors and descendants to be preferred to female ; persons related by the half blood may inherit, and the place of a relation by the half blood in order of inheritance, to be next after the relation in the same degree of the whole blood and his issue, where the common ancestor is a male, and next after the common an- cestor, where a female. *• New-York Revised Statutes, vol. i. 754, sec. 18. New-Jersey Revised Statutes, 184Y, p. 340. So, if a future estate be limited to heirs, issue or children, posthu- mous children take, in the same manner, as if living at the death of their parent. Ibid. 725, sec. 30. Griffith's Register, h. t, and the statute laws of the several states. Mass. Revised Statutes of 18P5. This was not the law in Virginia until 1840, and then, by statute, posthumous children were restored to their full right of inheritance as children. Lomax's Digest, vol. i. 600, 601. In Tennessee and New- Jersey, if a posthumous child be neither provided for nor disinherited by will, but only pretermitted, he takes his share of the estate. Statute of Tennessee, 1836, p. 250. Revised Statutes, New-Jersey, 1847. " Statute 9 and 10 William III., c. 16. Doe v. Clark, 2 H. Blacks. Rep. 299. 436 OF EEAL PBOPEETT. [Part VL *413 the next heir, reckoning a degree for *each person, as well in the ascending as descending lines. According to this rule of computation, the father of the intestate stands in the first degree, his brother in the second, and his brother's children in the third. Or, the grandfather stands in the se- cond degree, the uncle in the third, the cousins in the fourth, and so on in a series in genealogical order. In the canon law, which is also the rule of the common law, in tracing title by descent, the common ancestor is the terminus a quo. The several degrees of kindred are deduced from him. By this method of computation, the brother of A. is related to him in the first degree instead of being in the second, according to the civil law ; for he is but one degree removed from the com- mon ancestor. The uncle is related to A. in the second de- gree ; for though the uncle be but one degree from the com- mon ancestor, yet A. is removed two degrees from the grand- father, who is the common ancestor.'' III. Under the English law, illegitimate childi'en cannot take by descent, for they have not, in contemplation of law, inheritable blood.'' Nor can they transmit by descent, except to their own ofispring, for they have no other heirs. The N'ew- York Revised Statutes'^ have continued the rule of the English law, denying to children and relatives wjio are ille- gitimate the capacity to take by descent. But the estate of an illegitimate intestate may descend to his mother ; and if she be dead, to his relatives on the part of the mother, the same as if he had been legitimate.^ This introduction of a provision into the law of descents in ISTew-York, in favour of the mother of bastards, falls short of the extent of the provision in relation to them in some of the other states. In the states of Maine,« New-Hampshire, » Blaclcs. Com. 206. 224. 504. •i The heir must be bom after actual marriage of Ids father and mother, in or- der to enable him to ioherit real estate in England as heii'. Though a person born in Scotland before maniage becomes by the law of Scotland legitimate upon the subsequent mai-riage of his parents, he still cannot take real estate in England as heir. Doe v. Vardill, 6 Bingham, N. C. 385. • Vol. i. "/SS, sec. 14. Ibid. 754, sec. 19. ■1 By the act of New- York of May 13, 1845, if the illegitimate has left a mother and no child, descendant or widow, the mother takes tibe whole estate. By statute in Maine, in 1838, ch. 338, an illegitimate child is deemed heii- to I-ec. LXV.] OF REAL PROPERTY. 437 Massachusetts,* New-Jersey, Pennsylvania, Delaware, South Carolinia, Georgia, Alabama *and Mississippi, *4:14 bastards are placed generally under the disabilities of the English common law; though, in several of these states, as we noticed in a former volume,!" bastards may be rendered legiti- mate by the subsequent marriage of their parents. In the states of Vermont, Ehode Island, Virginia, Kentucky,^ Ohio, Indiana and Missouri, bastards can inherit from, and trans- mit to, their mothers, real and personal estates."* The princi- ple prevails, also, in Connecticut, Illinois, Maryland, North Carolina, Tennessee and Louisiana, with some modifications. Thus, it has been adjudged in Connecticut, that illegitimates are to be deemed children within the purview of the statute of distributions, and consequently, that they can take their share of the mother's real and personal estate, equally as if they were legitimate. ^ It is not said, in the Connecticut case, the person adjudged to be the putative father, or who in writing acknowledges himself to be such, and he is in all cases an heir to his mother. * Cooley V. Dewey, i Pick. Rep. 93. But, in 1828, the law in Massachusetts was so far altered as to allow an illegitimate child to inherit immediately from the mother. He is now the lawful heir to his mother, but he cannot claim, as repre- senting her, any part of the estate of her kindred, lineal or collateral. If he dies intestate without lawful issue, his estate descends to his mother. And if the parents intermany, and have other children, and the father acknowledges him as his child, the Revised Statutes of 1835 declai'e that such child shall be considered as legitimate to all intents and purposes, except that he shall not be allowed to claim, as i-epresenting either of his parents, any part of the estate of any of their kindred, either lineal or collateral. Massachusetts Eevised Statutes of 1835, p. 414. t Vol. ii. 209. ' In Virginia, Kentucky and Missouri, by statute, bastards can take real estate by descent from or through the mother, and transmit the same to their line as de- scendants, in like manner as if they were legitimates. But the statute gives them no capacity to take an inheritance from, or transmit one to, their collateral kindred- In Georgia, illegitimate children may inherit from theii' mother and from one an- other. In Vermont, by statute, {Revised Statutes of Fs/moni, 1839, p. 292,) bas- tards are capable of inheriting and transmitting inheritances on the part of the mother ; and under this statute it is held, that one illegitimate child can inherit to another illegitimate child by the same mother, equally as if it were a legitimate child. Town of Burlington v. Fosby, 6 Vermont Rep. 83. ^ The Indiana statute does not say that the mother can inherit from her bastard son ; it only says he inherits from her as a legitimate child, and that if the putative father marries the mother, and acknowledges himself to be father of the child, it is then to be deemed legitimate. Revised Statutes of Indiana, 1838, p. 238. • Heath v. White, 5 Conn. Rep. 228. This decision is not relished in the case of Cooley v. Dewey, 4 PicJe. Rep. 493, because it extends the word children, in the 438 OF REAL PROPERTY. [Part VI. that bastards can transmit an estate by descent beyond the permission in the English law ; and in the absence of any positive provision in the case, it is to be presumed they can- not. They can, however, be heirs to each other through the mother, jv/re r&presentaiionis.'^ In Maryland, -by the act of 1825, ch. 156, illegitimate children, and their issue, are de- clared capable in law to take and inherit real and personal estate from their mother, and from each other, and from the descendants of each other, in like manner as if bom in lawful wedlocli.'' In North Carolina, bastards inherit to their moth- ers, if there be no legitimate child ; and bastards brothers and sisters inherit to each other, if one of them dies intestate and without issue. The mother is excluded.'^ The rule in Illinois and Tennessee goes as far as that in North Carolina in respect to the capacity of the bastard to inherit to their mother-i^ *415 *In Louisiana, the recognition of the rights of natural or illegitimate children, is (with the exception of those whose father is unknown, or the offspring of adulterous or inces- tuous connections,) carried beyond any other example in the statute of distributions, beyond its settled meaniog in tte English statute, and iii those American statutes -which are a transcript of that part of it. In respect to wills, the rule of construction is, that prima /a«e illegitimate children do not take Hnder the description of children ; and there must be evidence to be collected from the will itself, or extrinsically, to show affirmatively, that the testator intended that his illegitimate children should take, or they will not be included. Wilkinson T. Adams, \ Ves. & Bea. 422. Swaine v. Ketmerley, ibid. 469. Beachcroft v^ Beacheroftf 1 Madd. Rep. 234. PhiL edit. Sherman v. Angell, 1 Bailey's. Eq. Rep. S51. Collins V. Hoxie, 9 Paige Rep. 88. In Bagley v. Mollard, 1 Russell & Mylne, 581, the Master of the Rolls declared, that illegitimate ebildren cannot take under the general desciiption in a will of cAJW/sn, provided there be^ legitimate children to be included. This was laying down the rule with unqualified rigour, and going beyond the more just and liberal construction declared by some of the common law judges, in the case of Wilkinson v. Adams, and by the Vice-Chancellor, in Beachcroft v. Beachcroft. » Brown v. Dye, 2 Roots Rep. 280. '' See Brewer y. Blougher, 14 Peters, 178, on the construction of the Maiyland statute. « Flintham v. Holder, 1 Bad. d; Dev. Equity Cases, 345, statute of 1129. North Carolina Revised Statutes, IBS'?, p. 23*7. "I Bastards are enabled, in H"orth Carolina, to inherit the real estate whereof th^ putative father might die seised, provided he petitioned a court of justice for the- purpose, and showed that lie had intermarried with the mother, or that she was. dead, and obtained an order for the legitimation of the child. 1 North Carolina Remsed Statutes, ISS"!, p. 92. Lee. LXV.] OF REAL PROPERTT. 439 Untied States. If they have been duly aoknowledged, they in- herit from the mother, if she has no lawful issue ; they inherit from the father, likewise, if he leaves no wife or lawful heir. The father and mother inherit equally from their illegitimate offspring ; and in default of parents, and ascendants and de- scendants, the estate goes to the natural brothers and sisters of the bastard, and to their descendants. "• The laws of different nations have been as various and as changeable as those in the United States, on this painful but interesting subject. By the Koman law, as declared by Jus- tinian, the mother succeeded to the estate of her illegitimate children ; and those children could take by descent from her ; and they also took a certain portion of their father's estate. There was a distinction between natural children who were the offspring of a concubine, and the spurious brood of a com- mon prostitute ; and while the law granted to the latter the necessaries of life only, the former were entitled to succeed to a sixth part of the inheritance of the father.'' The French law, before the revolution, was in many parts of the kingdom, as austere as that of the English common law ; and the bas- tard could neither take nor transmit by inheritance, except to his own lawful children." In June, 1793, in the midst of a total ^revolution in government, morals and law, *4:16 bastards, duly recognised, were admitted to all the rights of lawful children. But the Napoleon code checked this extreme innovation, and natural children were declared not to be heirs, strictly speaking; but they were admitted, when duly acknowledged, to succeed to the entire estate of both the parents who died without lawful heirs, and to ratable * Civil Code of Louisiana, art 912 — 9 IT. Laclotte's Heirs v. Labaii'e, 11 Louis. Rep. 179. •> Inst. 3. 3. "7. Ibid. 3, 4. 3. Code, 6. 57. 6. Novel, 18. 5. B. Gibbon's Sist- vol. viii. 67, 68. " Domat, vol. i. tit. Successions, part 2, sec. 12. Ibid. h. 1, tit. 1, sec. 8. Jbid. b. 2, tit. 2, sec. 11. D'Aguesseau, Dissert, sur les Bastards, (Euvres, torn. vii. 381. Pothier, Traite des Successions, art. 3, aec. 3. This was not, however, the uoiver- sal rule, for in some of the provinces of France, they followed the more indulgent provisions of the Roman law. Repertoire de Jurisprudence, par Merlin, tit Bas- tards. Bastards, as we have already seen, (see supra, vol. ii. 208,) were legiti- mated, under the civil law, by the subsequent marriage of the parents; and this was the ancient law of the Duchy of Normandy. Chand Costumier, c. 27. 440 OF REAL PROPERTY. [Part YI. portions of the estate, even if there were such heirs. If the child dies without issue, his estate devolves to the father and mother who have acknowledged him.=i The French law, in imitation of the Roman, distinguishes between two classes of bastards ; and while it allows to the child of an adiilterous and incestuous intercourse, only a bare subsistence, the other, and more fortunate class of illegitimates, are entitled to the succession, to the qualified extent which is stated. The new dispositions in the code are so imperfect, that M. Toullier says they have led to a great many controversies and jarring de- cisions in tribunals.!' In Holland, bastards inherit from the mother; and they can transmit by descent to their own children, and, in default of them, to the next of kin on the mother's side.'' *417 *'When the statute law of ITew-Tork was recently revised, and the law of succession on this point altered, it might have been as weU to have rendered illegitimate children capable of succeeding to the estate of the mother in default of lawful issue. The alteration only goes to enable the mother, and her relations, to succeed to the child's intestate estate. If a discrimination was to be made, and the right of descent granted to one party only, then surely the provision * Code Napoleon, art. "723. 756, 757, 758. 765. ^ Toullier's Droit Civil Franfais, torn. iv. sec. 248 — 270. He gives detail of some of those controTerted points. ' Institutes of the Laws of Holland, by Vander Linden, translated by Henry, 165. Commentaries of Van Leenwen, 34. 287, edit. Lond. 1820. It is stated by Yan Leeuwen, that, anciently, illegitimate children were reputed, in Holland and Germany, to be so disgraced as to be excluded from all honom-able oiBce, and even to be incompetent witnesses against persons of legitimate birth. Heineccius wrote a dissertation entitled, De Levis Nola Macula, and he has treated the subject with his usual exuberance of learning. He agi'ees with Thomasius, in opposition to Gothofredus, that natural children were not branded at Rome, even with light dis- grace, nee levi nola insigniti ; but he admits that the rule is diiferent in Germany. They are excluded from the inheritance, and beai- the mark of disgrace ; semper levi nola adspersi fiiisse videnlur. Heineccius then enters into an eulogium on this branch of Germanic jmispi-udence, and, with the zeal of a patriot, undertakes to show, even from Tacitus downwards, that no nation surpassed the Gennans in the value which they set upon the vu-tue of chastity. Heineecii Opera, torn. ii. Exer- citatio 7, sec. 32. 34. In 1771, the King of Denmark declared, by ordinance, that illegitimate biith should no longer be considered a dishonour, and bastards were placed on an equality with children born in wedlock, in regard to ecclesiastical rights and employments in the church. Dodsley's Ann. Beg. for 1771, p. 125. Lee. LXV.] OF REAL PROPERTY. 441 should have been directly the reverse, on the plain principle that the child is innocent, and the mother guilty of the dis- grace attached to its birth. The parents are chargeable with the disabilities and discredit which they communicate to their offspring; and the doctrine has extensively prevailed, that the law ought not to confer upon such parents, by its active assistance, the benefits of their child's estate. The claim for the intei-position of the law in favour of the mother and her kindred, and especially in favour of the putative father, is held, by high authority, to be destitute of any foundation in public policy.^ lY. There is generally, in the statute laws of the several states, a provision relative to real and personal estates, simi- lar to that which exists in the English statute of distri- bution, *concerning an advancement to a child. If *418 any child of the intestate has been advanced by him by settlement, either out of the real or personal estate, or both, equal or superior to the amount in value of the share of such child which would be due from the real and personal estate, if no such advancement had been made, then such child, and his descendants, are excluded from any share in the real or personal estate of the intestate. But if such ad- vancement be not equal, then the child, and his descendants, are entitled to receive, from the leal and personal estate, suf- ficient to make up the deficiency, and no more. The main- tenance and education of a child, or the gift of money, with- out a view to a portion or settlement in life, is not deemed an advancement. An advancement of money or property to a child is prima facie an advancement, though it may be shown that it was intended as a gift, and not an advance- ment.'' This is the provision as declared in the Wew- Yorlc Revised Statnites,'^ and it agrees, in substance, with that in the statute * See the remarks of Ch. J. Parker, in 4 Pick. Rep. 95. Lord C. B. Gilbert places the exclusion of bastards from the feudal succession on high and lofty principles of honour and morality. " The lords would not be served by any persons that had that stain on theii' legitimation, nor suffer such immoralities in theii* several clans." Oilbert on Tenures, 1*7. "> The Distributees of Mitchell v. Mitchell, Alabama Rep. N. 8., vol. viii. 414. • Vol. i. 754, sec. 23, 24, 25, 26. Ibid. vol. ii. 97, sec. "76, 71, 78. 442 OF REAL PROPERTY. [Part VI. laws of the other states.=^ The basis of the whole, is the pro- vision in the statute of distribution of 22 and 23 Charles II. ; though there are a few shades of difference in the local regu- lations on the subject.^ The statutes in Maine, Vermont and Massachusetts have mentioned the requisite evidence of the advancement; and it is to consist of a declaration to that ef- fect in the gift or grant of the parent, or of a charge in writing to that effect by the intestate, or of an acknowledgment in writing hy the child. The provision in those states, and in Kentucky, applies equally to grandchildren ; whereas the lan- guage of the provision is, generally, in the other states, like that in the statute of distribution, confined to an advancement to the child of -the parent.^ It is declared in New- York, that every estate or interest given by a parent to a descendant, by virtue of a beneficial power, or of a power in trust, with a right of selection, shall be deemed an advancement.^ In New-Jersey, the statute uses the word issue, which is *419 a word of *more extensive import than the word child ; though children, as well as issue, may stand, in a col- lective sense, for grandchildren, when the justice or reason of the case requires it.« It would have been better, however, if the statutes on this subject had been explicit, and not have imposed upon courts the necessity of extending, by construc- tion and equity, the meaning of the word child, so as to ex- clude a grandchild who should come unreasonably to claim » Mass. Revised Statutes, 1835, part 2, tit. 2, c. 61. Purdon's Penn. Dig. 552. Elmer's N. J. Big. 130. North Carolina Revised Statutes, ISSl, vol. i. 236. Re- vised Statutes of Vermont, 1839, p. 293. Alabama Statute, Clay's Digest, 191. 25. I- Edwavda v. Freeman, 2 P. Wms. 485. Wayland v. Wayland, i J tk. 635. Barber v. Tayloi-'a Heirs, 9 Dana Kentuclcy Rep. 85. " Iq Pennaylvania, as the question of advancetaent depends upon the intention of the parent, it is held, that the declarations of the parent at the time, or the ad- missions of the child, at the time or afterwards, ai'e evidence of it. Daniel JS^ing's Estate, 6 Wharton, SlO. J New-York Revised Statutes, vol. i. 1S1, sec. 12^7. In Ohio, the provision ap- plies when any child or its issue has been thus advanced. Statutes of Ohio, 1831. ° Wydth v. Blackman, 1 Ves. sen. 196. Royle v. Hamilton, 4 Ves.jim.4S1. Dickinson v. Lee, 4 Watts' Rep. 82. The Statute of North Carolina, of 1'784, speaks of son or daughter having such advances. And in Vermont, by statute, the word issue, as applied to the descent of estates, includes all the lawful, lineal de- scendants of the ancestor. Revised Statutes of Vermont, 1839, p. 53. Lee. LXV.] OF REAL PROPERTY. 443 his distributive share, when he had already been sufficiently settled by advancement.'^ In some of the states, as in Virginia, Kentucky, Alabama and Missouri, there is a special provision, that the child who has received his advancement in real or personal estate, may elect to throw the amount of the advancement into the com- mon stock, and take his share of the estate descended, or his distributive share of the personal estate, as the case may be ; and this is said to be bringing the advancement into hotch- pot^ and it is a proceeding which resembles the collatio ho- norum'^ in the civil law. I do not find this privilege of elec- tion conceded by the laws of the other states, to the child who has been advanced ; and there is nothing which would appear to render the privilege of any consequence. V. An estate by descent renders the heir liable for the debts of his ancestor, to the value of the property descended, " In England, provision as to advancements and portions, applies only to an ac- tual intestacy of the parent. 'So collation takes place, if there be a -will, although there be a surplus undispo.sed of by such will. Walton v. Walton, 14 Vesey, 323. It seems doubtful Trhether that be the operation of the Revised Statutes in New- York, in consequence of a variation in the language of the statute. In speaking of advancements, in relation to the distribution of personal estates, the word de- ceased is substituted for intestate, whereas, in speaking of it in relation to the de- scent of the real estate, the word intestate is retained. New-York Revised Statutes vol. i. 754. Vol. ii. 97, ub. sup. Hawley & King v. James and others, decided by Oh. Walworth, July, 1835. In Thompson v. Ex'rs of Carmichael, 4 N. Y. Legal Observer, p. 134, the Assistant V. Oh. decreed that advancement into hotchpot re- lated to a total intestacy only, and did not apply where there was a will disposing of a part of the property of the intestate, either real or personal, *■ Statutes of Virginia, 1785, and of Kentucky, in 1796, 1797, 1830. Barber v. Taylor's Heirs, 9 Dana Rep. 85. Nelson v. Bush, ibid. 106. Aikin's Alabama Big. 2d edit. p. 155. ' Dig. 37. 6. 1. In Louisiana, this return of property to the mass of the succes- sion is termed collation, and it takes place unless the advancement was declared not to be subject to collation.' The application and exercise of this right of col- lation foiTus the subject of minute regulation. Civil Code of Louisiana, art 1305. 1367. Destrehan v. Destrehan, 16 Martin's Rep. 557. The whole doctrine of collation is founded principally on the equality which the law requires in the dis- tribution of estates among heirs. In Virginia, by statute, in 1785, real estate was to be brought into hotchpot only with real estate, and personal estate only with personal ; but the law was changed in that respect, by statute, ia 1819. 3 Ran- dolpKs Rep. 559. In Alabama, if the child refuses to bring his advancement into hotchpot, he thereby relinquishes all interest in the estate as a distributee. 4 Ala- bama R. N. S. 123. This is, no doubt, the general rule on the subjects 444- OF REAL PROPERTY. [Pait VI. and he holds the lands subject to the payment of the ances- tor's debts.* By the hard and unjust rule of the com- *420 mon law, land *descended, or devised, was not liable to simple contract debts of the ancestor or testator ; nor was the heir bound even by a specialty, unless he was ex- pressly named.'' But in New-York and in other states," the rule has been altered ; and by a provision in the ISTew- Tork act of 1786, and continued in the subsequent revisions, heirs are rendered liable for the debts of the ancestor by sim- ple contract, as well as by specialty, and whether specially named or not, to the extent of the assets descended, on con- dition that the personal estate of the ancestor shall be insuffi- cient, and shall have been previously exhausted. This con- dition does not apply, when the debt is, by the will of the ancestor, charged expressly and exclusively upon the real estate descended to the heirs, or directed to be paid out of the real estate descended, before resorting to the personal estate.'^ It is further provided that whenever any real estate, subject to a mortgage executed by the ancestor or testator, shall de- scend to the heirs, or pass to a devisee, the mortgage shall be satisfied out of such estate, without resorting to the executor or administrator, unless there be an express direction in the will to the contrary.^ (1) • "Watkins t. Holman, 16 Peters' Rep. 25. >■ 3 Blacks. Com. 430. Go. Litt. 209, a. ' The New-Jersey statute of I'/OT, and in that of 1847, has the same improve- ment as that of New- York. Elmer's Dig. 232. B. S. N. Jersey, 1847, p. 83. ^ New-York Revised Statutes, vol. ii. 452. sec. 32, 33, 34, 35. The judgment against an heir or devisee is a bar to a suit against the executor or administi'ator for the same debt or demand, unless an execution against the heir or devisee be returned unsatisfied, or there be no sufficient lands descended or devised. And if there be a judgment against the heir or devisee for a debt or legacy expressly chai'ged on the estate descended or devised, it is an absolute bar to any subsequent suit against the executor or administrator, for the same debt or legacy. New- York Revised Statutes, vol ii. 114, sec. 1, 8. In Pierce v. Alsop, decided by the V. Ch. of the 3d cii'cuit, Jan. 1846, it was adjudged that the equitable right of the creditor of the ancestor to enforce his claim against lands descended to the heir, must be in sti'ict conformity to the provisions of the Revised Statutes. New-York Legal Ob- server, January, 1846. « New- York Revised Statutes, vol. i. 749, sec. 4. In England, by the statute of (1) Johnson v. Corbett, 11 Paige, 265. LecLXV.] OF EEAL PROPERTY. 445 The general rule of the English and American law is, that the personal estate is the primary fund for the discharge of the debts, and is to be first applied and exhausted, even to the payment of debts with which the real estate is charged by mortgage ; for the mortgage is understood to be merely a collateral security *for the personal obliga- *421 tion.=^ The order of marshalling assets in equity to- wards the payment of debts, is to apply, 1. The general per- sonal estate : 2. Estates specially devised for the payment of debts : 3. Estates descended : 4. Estates devised, though ge- nerally charged with the payment of debts. It requires ex- press words, or the manifest intent of a testator, to disturb this order. b On the other hand, there is a material distinc- tion between debts originally contracted by the testator, or intestate, and those contracted by another ; and, therefore, if 3 and 4 William IV., c. 105, freehold estates, not charged by will, are now made assets in equity for the payment of simple contract and specialty debts ; and the heir or devisee is made liable as in the case of specialty debts ; but the creditors by specialty are to have priority. » Harg. & ButU'i's Co. Zitt. 208. b. note 106. Howel v. Price, 1 P. Wms. 291, and the learned note of Mr. Cox. King v. King, 3 ibid. 358. 3 Johns. Ch. Rep. 25'7. 9 Serg. tb Rawle, IS. Garnet v. Macon, 6 CaH, 608. Massachusetts Revised Statutes, 1835, part 2, tit. 3, c. 62, s. 16. The mere charge by will of a secondary fund with the payment of debts, does not exempt the primaiy fund, unless it plainly appears to have been the testatoi-'s intention to exonerate it for the benefit of some legatee. Lowndes on Legacies, 329. Even if the testator's intent to exonerate the residuary fund for the benefit of a legatee be manifest, yet, by the lapse of a residuary bequest, or when it cannot take effect from any other cause, the residuaiy fund is restored to its primary liability for the payment of debts. Waring v. Waiing, 6 Vesey, 670. Noel v. Lord Henley, 1 Price, 241. Hawley & King v. James and others, 5 Paige's New- York Gh. Rep. But if the personal fund has passed into other hands than the personal representatives, the creditor may not be bound to pursue it fm'ther in difficult cases, or wait the result of controversies, and the court of chanceiy will proceed to dea-ee directly against the land. Corbet T. Johnson, 1 Brochenborough, 11. Murdock v. Hunter, ibid. 135. ■■ Stephenson v. Heathcote, 1 Eden's Rep. 38. Lord Inchiquin v. French, 1 Cox's Oases, 1. Webb v. Jones, ibid. 245. Bootle v. Blundell, 1 Meriv. Rep. 193. Barnwell v. Lord Cawdor, 3 Madd. Rep. 453. Watson v. Brickwood, 9 Vesey, 447. Livingston v. Wewkii-k, 3 Johns. Ch,. Rep. 312. Livingston v. Livingston, ibid, 148. Stroud v. Bamett, 3 Dana's Ken, Rep. 394. Ram on Assets, i;. 30. p. 247, Philad. edition. Warley v. Warley, 1 Bailey's Eq, Rep. 397. New-Yorh Revised Statutes, vol ii. 452, sec. 33. 465, sec. 56. Schei-merhom v. Barhydt, 9 Paige Rep. 29. 49. Chase v. Lockerman, 11 Gill & Johnson, 185. The bequest of personal estate does not exempt it from its liability to exonerate the real estate, unless a clear intention to that effect appears on the face of the will 1 2 Price, 324. iiQ OF EEAL PROPERTY. [Part VI. a person purchases an estate subject to a mortgage, and dies, his personal estate, as between him and his personal represen- tatives, shall not be applied to the exoneration of the land, unless there be strong and decided proof, that in taking the incumbered estate, he meant to take upon himself the mort- gage debt as a personal debt of his own.^ The provision mentioned in the preceding page from the JVew-Yorlc He- vised Statutes, was an alteration of the antecedent rule, and makes a mortgage debt fall primarily upon the real estate.!" I assume that the rule prevails generally in the United States, that the lands descended to the heirs are liable to the debts of the ancestor equally, in all cases, with the *422 *personal estate.'' In Massachusetts, the personal estate is first to be applied, and the land resorted to upon a deficiency of personal assets. ■! This is probably the case in • Cumberland v. Cumberland, 3 Johns. Oh. Rep. 229. ^ It is not easy to perceive the necessity or policy of thus interfering with, and reversing the rule of equity as to moi-tgage debts, -which had been known and settled for ages ; and especially as the Revised Statutes, as to all other debts, retain and enforce the rule that the personal estate is the primary fund. The symmetiy of the lav?, on this point, is thus destroyed ; and a reason suggested by the revisers, in their report of the bill, was, that the existing " rule of law was unknown to the generality of our citizens." If there arises a question under the law of different countries, as to particular debts, whether they are properly payable out of the personal estate, or are chargeable upon the real estate of the deceased, the rule is, that the law of the domicil of the deceased will govern in cases of intestacy ; and, in cases of testacy, the intention of the testator. Anon., 9 Mod. 66. Story on the Conflict of .Laws, 442. " It has been stated, that the common law rule prevails still in Virginia, and perhaps in Kentucky ; but everywhere else in the United States the equitable rule seems to have been adopted, that, on failm'e of personal assets, the real estate in the hands of heirs and devisees is hable for debts as extensively as the personal. The common law rule has been altered by statute. Griffith's Register, passim. Mass. Revised Statutes, 1835. In Massachusetts to sustain a suit against the heir, it must appear that administration had been taken out on the estate of the de- ceased, and that the demand was not due, and no cause of action accrued until the term of four years had expired from the grant of administration, and that the suit was brought within one year after the cause of action accrued. Stat. 1788, ch. 66. Revised Statutes, 448, sec. 14. Hall v. Burnstead, 20 Pick.l. In New- York no suit lies against heirs or devisees of any real estate, to charge them with a debt of the testator or intestate, within three years from the time of granting letters tes- tamentary or of administration upon the estate. NevyYorle Revised Statutes, vol. ii. 109, sec. 53. "I 3 Mass. Rep. 52'7. 536. 4 ibid. 358. Mass. Revised Statutes, 1835. Lee. LXV.] OF REAL PROPERTT. M7 other states, in which the real and personal estate is placed as assets under the control of the personal representatives. In Pennsylvania, the lands are treated as personal assets ; and the creditor who sues the executor, may sell the land in the hands of the heirs, without making them parties. This is complained of by high authority in that state, as contrary to the plainest principles of justice. ^ In New-PIampshire, the heir is not liable on the covenant of his ancestor, while a remedy remains against the personal representatives, inas- much as all the estate, real and personal, of the ancestor, in the hands of the executor or administrator, is liable for his debts.*" * Gibson, Ch. J., 13 8erg. Ch. J. Swift, in his Digest of the Laws of Connecticut ; and Mr. Dane, in his Abridgment of American Law. ' Wright on Tenures, 115 — 117. 2 Blacks. Com. 244, 245. i 1 Wm. Blacks. Rep. 123. S. C. 1 Eden, XHI. Vol. IY. 29 450 OF REAL PROPERTY. [Pai-t VL out heirs, the lands did not escheat to the crown, but the trustee, being in esse and in the legal seisin of the land, took the land discharged of the trust, and bound as owner for the feudal services. But, as the feudal tenures do not exist in this country, there are no private persons who succeed to the inheritance by escheat ; and the state steps in the place of the feudal lord, by virtue of its sovereignty, as the original and ultimate proprietor of all the lands within its jurisdiction. It is a general principle in the American law, and which, I pre- sume, is everywhere declared and asserted, that when the title to land fails from defect of the heirs or devisees, it neces- sarily reverts or escheats to the people, as forming part of the common stock to which the whole community is entitled.^ "Whenever the owner dies intestate, without leaving any in- heritable blood, or if the relations whom he leaves are aliens, there is a failure of competent heirs, and the lands vest im- « New-York Revised Statutes, vol i. 282, tit. 12. Ibid. 718, sec. 1, 2, 3. Swift'e Digest, vol. i. 156. Rhode Island Statutes of ITCS and 1822. Tucker's Blackstone, vol. ii. 244, 245, note. Statute of Pennsylvania, 29th September, 1787. 5 Bin- ney's Rep. 375. Danis Ahr. vol. iii. 140, sec. 24. Ibid. vol. iv. 638. Mass. Re- vised Statutes of 1835. Statute Laws of Ohio, 1831, p. 263 ; of Alabama, 1811, 1818, p. 288 ; of Illinois, edit. 1883 ; of Georgia, Princes Dig. 2d edit. 198 ; of New-Jersey, 1828, Elmer's Digest ; of Mississippi, Revised Code of 1824. Revised Statutes of Missouri, 1836. The law of Alabama says that the real and personal estates of persons dying intestate, and leaving no lawful heirs within the limits of the United States, shall escheat. The -words, as they stand, want explanation to render their operation just or liberaL Mr. Dane says, tbeA the New-England colo- nies of Massachusetts and Plymouth very early passed laws for vesting in the colony all lands escheating for want of heirs, on the ground that the colony was the sovereign who made the original grant. In Mai-yland, before the revolution, lands were liable to escheat to the lord proprietaiy of the province ; and since that era, the state, as to lands of the proprietai-y, stands in his place under an act of confiscation, and the lands remaining, of course, subject to escheat, and the state takes the land, whether the owner dying without heii's had the legal or only the equitable estate as cestui que trust. See Harr. & M'Eenry's Rep. Index, tit. Escheat, passim. Ringgold v. Mallott, 1 Harr. & Johns. 299. Matthews v. Ward, 10 Gill & Johnson, 443. By the Napoleon Code, Nos. 723. 765, in default of law- ful heirs, the property passes to the natural children ; and for want of them, to the surviving husband or wife ; and for want of them, to the state ; and kindred beyond the twelfth degree do not succeed. The statute of North Cai'olina resembles the Napoleon Code in this respect, that if the husband dies intestate and without leav- ing any person to claim as heir, the widow takes the estate as heir. North Caro- lina Revised Statutes, \%yi,yo\.i. Til. Similar provision in Mass. Sup. Rev. St. 1849, ch. 87. Lee. LXVI] OF REAL PEOPERTT. 451 mediately in the state by operation of law.* No inquest of office is requisite in such cases i'' and by the New- York Revised Statutes^'^ the *attorney-general is re- *425 quired to bring an action of ejectment, whenever he shall have reason to suspect that the people have title to lands by escheat. (1) In the Roman law, there was an officer appointed in the character of escheator, whose duty it was to assert the right of the emperor to the hmreditas jacens, or caduca, when the owner left no heirs or legatee to take it."* That property should, in such cases, vest in the public, and be at the dis- posal of the government, is the universal law of civilized so- ciety.e It was, as early as the age of Bracton, regarded as a part of the^ws gentium — ubi non appa/rent dominus rei, quce olim fuerunt invetitoris, de jure naturali, jam efficiuntur principis de jure gentiumS It is a principle which lies at the foundations of the right of property, that if the ownership becomes vacant, the right .must necessarily subside into the whole community, in whom it was originally vested when society first assumed the elements of order and subordina- tion.? In Ifew-Tork, all escheated lands, when held by the state or its grantee, are declared to be subject to the same trusts, incumbrances, charges, rents and services to which » The People t. Oonklin, 2 Hill Rep. 67. •> i Co. 58, a. Comyiis Digest, tit. Prerogative, D. 70. " Vol. i. 3d edit. 323. << Code, 10. 10. 1. Iq Pennsylvania and Mississippi, there is an oflBeer appointed to take charge of escheated estates, termed escheator-generaL Purdon's Digest, 342. Revised Code of Mississippi, 1824. There are similar oflScers charged with escheats in the other states. « Domat, vol. i. 592, sec. 6. 616, sec. 4. Vander Linden's Institutes, by Henry, 165. Code Napoleon, sec. 723. ' Braeton, lib. 1, c. 12, sec. 10. E This was the case with the ancient Germans, when theii- institutions were studied by Caesar and Tacitus. They had not then any private property in land ; it was vested in the community or tribe. Cmsar de Bell. Oall. lib. 4, c. 1. Tacit, de Mor. Germ. c. 26. (1) As to when a person in New-Tork dies seised of lands, so ag to authorize the commission- ers of the land-office to release the escheat, see Englishbe v. Helmuth, 3 Comst. R. 294. The 6th article of the treaty of 1783 not only barred the escheat of land held by British sub- jects, but gave them capacity to transmit them by descent to a citizen. Brown v. Spragne, 5 Dmio't R. 645. 452 OF REAL PROPERTY. [Part VI tliey would have been subject had they descended.* This pro- vision was intended to guard against a very inequitable rule of the common law, that if the king took lands by escheat, he was not subject to the trusts to which the escheated lands were previously liable. ^ The statutes of 39 and 40 Geo. III., c. 88, 4:1 Geo. III., c. 24, 59 Geo. III., c. 94, mitigated the rule, by the division which enabled the king, by warrant or *426 grant, to direct the execution of the trust. In the *case of Si?' George Sands," Hale, Ch. B., and Turner B., held, that there could be no escheat of a trust ; and in case of the death of the cestui que trust without heirs, the trustee would hold, discharged of the trust. The opinion in Eng- land is understood to be, that upon the escheat of the legal estate, the lord will hold the estate free from the claims of the cestui que trust. The statutes I have referred to are calculated to check the operation of such an unreasonable principle.* II. Of title iy forfeiture. The English writers carefully distinguish between escheat to the ch:ef lord of the fee, and forfeiture to the crown. The one was a consequence of the feudal connection, the other was anterior to it, and inflicted upon a principle of public policy. « But while the chief lord of the fee is none other • JKsM- Yorh Revised Statutes, Sd edit. vol. ii. sec. 2. Farmer's Loan and Trust Co. v. The People, 1 Sandford's Cli. Rep. 139. But at common law the king took the lands escheated by reason of alienage free from all incumbrances. Assistant V. Ch. Sandford, 1 Sandford's Rep. 141. •> ifarff. Co. Liu. 13, n. 1. Pimb's case, Moore, 196. « 3 Oh. Rep. 19. ^ The statute of 4 and 5 Wm. IV. c. 23, went further, and declared that when a trustee of lands died without an heir, the court of chanceiy may appoint a tnis- tee to act for the party beneficially interested. The New- York Revised Statutes, 3d edit., Tol. ii. p. 2, has a like provision, and no interest in lands or chattels. Tested in trust or by way of mortgage, and not beneficially in the trustee or mortgagee, shall escheat or be foi'feited by the attainder of the trustee or moi-tgagee. The escheats spoken of in the text relate exclusively to land, movables never escheated in the technical sense ; and if the owner died intestate and left no lawful represen- tatives, the personal estate in England remained at the disposition of the crown. In this country it must vest in the state, and so the statute law in some of the states has specially provided. This subject is well discussed in the case of the Commonwealth v. Blanton's Executors, 2 B. Monroe's Rep. 393. « W'right on Tenures, 111, 118. Lee. LXVL] OF REAL PROPERTY. 453 than the same community which has been injured by the crime, there is no essential distinction between escheat for treason and forfeiture for treason. The law of forfeiture went, indeed, upon feudal principles, beyond the law of escheat. It extinguished, and blotted out for ever, all the inheritable quality of the vassal's blood, so that the sons could not in- herit, either to him, or to any ancestor, through their attainted father. He was rendered incapable, not only of inheriting or transmitting his own property by descent, but he obstructed the descent of lands to his posterity, in all cases in which they were obliged to derive their title through him from any more remote ancestor. The forfeiture of the estate is very much reduced in this country, and the cori'uption of blood is universally abolished.* In New-York, forfeiture of property for crimes is confined to the case of a conviction for trea- son ; and, by a law of the colony of Massachusetts, *as early as 1641, escheats and forfeitures upOn the *427 death of the ancestor, "natural, unnatural, casual or judicial,^'' were abolished for ever.'' It is a rule of law, that the state, on taking lands by es- cheat, and even by forfeiture, takes the title which the party had, and none other. It is taken in the plight and extent by which he held it; and the estate of a remainder-man is not destroyed or divested by the forfeiture of the particular estate."^ Besides the forfeiture of property to the state, for the con- viction of crimes, estates less than a fee may be forfeited to the party entitled to the residuary interest by a breach of duty in the owner of the particular estate. If a tenant for life or years, by feoffment, fine or recovery, conveys a greater estate than he is by law entitled to do, he then, under the English law, forfeits his estate to the person next entitled in remainder or reversion ; for he puts an end to his original ' New-YorTc Revised Statutes, vol. i. 284, aec. 1. Ibid. vol. ii. 101, sec. 22. ^ Dane's Abr. vol. v. 4 Mr. Dane says, that forfeiture of estates for crimes is scarcely known in our American laws. Ibid. 11. " Case of Captain Gordon, Foster s Crown Law, 95. Borland v. Dean, 4 Mason' » Rep. 174. Dalrymple on Feudal Property, c. 4, pp. 145 — 154, gives an interesting history of the law of forfeiture in Scotland, and the gradual conformity, on the point in the text, between the Scotch and English law. 454 OF REAL PROPERTY. [Part VI. interest ; and the act tends, in its nature, to divest the expect- ant estate in remainder or reversion. The same consequences followed, whenever the vassal, by any act whatever, was, in the eye of the feudal law, guilty of an act of disloyalty, and a renunciation of the feudal connection.* But a conveyance by deed, of things lying in grant, or conveyances by release, and bargain and sale, under the statute of uses, do not work a forfeiture ; for they convey^ no greater interest than what the party lawfully owns, and is entitled to convey. Such for- feitures by the tenants of particular estates, have be- *428 come obsolete in this country ; and the *just and ra- tional principle prevails, that the conveyance by the tenant operates only upon the interest which he possessed, and does not affect the persons seised of ulterior interests. An act of assembly in Pennsylvania gave to all deeds and conveyances of lands, proved or acknowledged, and recorded, the same force and effect^ as to possession, seisin and title, as deeds qf feoffment with livery ; and yet it has been held,!" that such a deed worked no forfeiture, on the common law doctrine of alienation by tenants for life or years. In Massachusetts, it has, however, been decided, that a conveyance in fee by a tenant for life, by bargain and sale, was a forfeiture of his estate to those in remainder or reversion." But though the correctness of the decision might be questioned, the case has now become unimportant, for the statute law of Massachu- setts, as well as of other states, gives to the conveyance of a tenant for life or years, no greater operation than what his interest entitled him to give WA And it was a well estab- lished principle of the common law, that if a condition on which an estate for life or years depended, be broken for non- payment, yet the lessor might waive the forfeiture by the • Wright on Tenures, l.'iZ. Co. Zitt. 251, a, h. ' M'Kee v. Prout, 3 Dcdl. Rep. 486. » Commonwealth v. Welcome, cited iu 5 Dane's Abr. 13, sec. 1. The extraor- dinary industry and great experience of the author of the Abridgment and Digest of American Law, (vol. v., x., xi.,) was not able to lead him to any case in our American courts, in which there had been a forfeiture of the estate of a tenant for hfe or years, by reason of a breach of duty as tenant by way of plea, or default upon record. ^ Vide supra, p. 83. Lee. LXVL] OF REAL PROPERTY. 455 subsequent acceptance of rent, or by bringing an assize, or making a distress to recover it.^ There are other causes of forfeiture, as for waste, and for breaches of conditions in leases, grants and conveyances, which have been sufficiently considered in the former part of this volume. 1 shall, therefore, proceed to treat : III. Of title ly execution. This species of title owes its introduction to modern stat- utes, and it was unknown to the common law. The remedy given to the judgment creditor by the English law, was a se- questration of the profits of the land by writ of levari .facias, or the possession of a moiety of the lands by *the *429 writ of elegit, and, in certain cases, of the whole of it by extent. In all these cases, the creditor holds the land in trust until the debt is discharged by the receipt of the rents and profits. This limited remedy against the real estate of the debtor, was not deemed sufficient security to British cre- ditors, in its application to the American colonies ; and the statute of 5 Geo. II., c. 7, was passed, in the year 1Y32, for their relief. It made lands, hereditaments and real estate, within the English colonies, chargeable with debts, and sub- ject to the like process of execution as personal estate. Lands were dealt with on execution, precisely as personal property ; and it was, consequently, the practice in some of the states, and particularly in !N"ew-Tork, before, and even since the American revolution, down to the year 1786, to consider lands as assets in the hands of executors and administrators, and to sell them as such. This was also the practice in Penn- sylvania, Maryland, Georgia, Ifew-Jersey, ISTew-Hampshire and Massachusetts, and probably in the other New-England states.^ In the case of Wilson v. Watson," it was declared. " Co. Liu. 211, b. Pennant's case, 3 Co. 74. Goodright T. DaYia, Oowp. Rep. 803. ^ Shippen, President, in Grafif v. Smith, 1 Dallas' Rep. 483. 8 Gill and no deed is executed, for the title rests upon matter of re- cord. In jSTew-York, every judgment and final decree are a lien on the real estate of the debtor from the docketing of the same, and affect equally *his after-acquired *435 lands, with the exception of mortgages taken at the time of purchasing the after acquired lands, for the security of the purchase money.'' But judgments and decrees cease to be a charge on the lands as against purchases in good faith, and as against subsequent incumbrances, from and after ten years from the docketing of the same,^ and all judg- worth, Ch., in 16 Wendell, 577. Jackson y. Hobaon, 4 Scammon's Hep. 412. A purchaser of land at a sheriffs sale, must show a, judgment as well as execution to waiTant it. Hinman v. Pope, 1 Oilman's III. Rep. 131. * Simouds v. Catlin, 2 Gained Rep. 60. Jackson v. Catlin, 2 Johns. Rep, 248. S. G. 8 Ibid. 520. Barney v. Patterson, 6 Ilarr. By the Bevised StaiMtes of Illinois^ pub- lished in 1833, a judgment is declared to be a lien on real estate for the period of seven years. In !N"orth Carolina, it has been held, that lands were bound from the judgment, provided the creditor sues out an elegit ; but they are only bound by execution if the creditor sells the land by fieo-i facias.'^ The judgment becomes a lien in the states of New- • 1 Revised Code, c. 134, sec. 10. *■ Em-ton V. Smith, 13 Peters, 464. » Jones V. Edmonds, 2 Murphy s Rep. iZ. The _/?./«. is now the uniform process to sell lands, and the elegit is abandoned. The case in Muiphy is shaken in Ricks V. Blount, 4 Dev. Rep. 133. It was admitted that at common law, or at least from the statute of West. 2, a. judgment was a lien on land so long as an elegit could be sued out, and the writ displaced all alienations posterior to the judgment, and all extents under junior judgments. But in Den t. Hill, 1 Eaywood^s N. C. Rep 12. 95, it was decided, that the purchaser under a junior judgment had preference, if he was the first pm'chaser, even over the elegit on the prior judgment. This seems to be now the established law, and was a consequence of the statute of 5 Geo. II. giving the^. fa. against lands. It was said again, in 1 Dev. & Battle, 562, as late as 1836, that the statute of 29 Charles II, ch. 2, sec. 16, was never in force in North Carolina, and that executions were governed by the common law, and bound property from the test, until the statute of 1828 made executions from a justice's court, bind only from the levy. This was intended to protect the inter- mediate purchaser, but if the defendant, after the test and before the levy, died, the goods were bound in the hands of the executor or administrator, and the oflScer might go on and levy. It is fmiher held, in that state, (Dobson v. Murphy, 1 Dev. & Battle, 586,) that a pm-chaser on execution must show a judgment warranting the execution, or no title will pass, though it was understood that under the English law, the purchaser, if a stranger, was not obliged to show a judgment, but only the execution. I apprehend that in New- York, also, the purchaser on execution does not acquire a valid title, if there be no judgment to warrant it. Revised Stat- utes, vol ii. 3'75. But it has been often decided that a bona fide pm-chaser under a decree or judgment, may, if the com-t had jurisdiction, hold the property so pur- chased, notwithstanding a subsequent reversal for error, of the judgment or decree. Goodyear v. Inoe, Cro. J. 246, Yelv. iTg. S. C, and the note thereto of Mr. Met- calf, the learned editor of the American edition. Dater v. Ti-oy, T. &. R. B. Co. 2 Hilts Rep. 629. Robertson, Ch. J., Clary v. Marshal, 4 Dana's Ken. Rep. 98. Shackleford v. Hunt, 4 B. Monroe, 263. But this would not be the case if the judgment or decree was not merely erroneous but void. The distinction taken in Ohio is, that on a sale of lands on execution to a stranger to the judgment, the Lac. LXVL] OF REAL PROPERTY. 471 Jersey," Delaware, Maryland, Indiana,!' Ohio,'= Mis- souri, Tennessee,'^ South Carolina, *Georgia, Alaba- *43'r owner, on reversal of the judgment, must pursue the fruits of the sale in the hands of his antagonist; but where the mortgagee is the purchaser under a judicial de- cree, afterwards reversed, and continues owner until such reversal, the mortgagor is entitled to redeem the land. Hubbel v. Broadwell, 8 Ohio Rep. 120. In "Vir- ginia, the lien, as in England, is a consequence of a right to sue out an elegit. There is no statute which expressly makes a judgment a lien upon the lands of the debtor ; but during the existence of a right to sue out an elegit, the lien is univer- sally acknowledged. It is not suspended by suing out a fieri facias, but it contin- ues pending the proceedings on such a writ, and it has relation to the first day of the term, iu equity as well as at law. Coutts v. Walker, 2 Leigh, 268. Cole- man V. Cooke, 6 Randolph's Rep. 618. United States v. MoiTison, i Peters' XI. 8. Rep. 124. ' In New-Jersey, the judgment operates as a lien upon the real estate from the time of the actual entry of it on the minutes or records of the court. But if there be two or more judgments against the same defendant, a junior judgment creditor will gain the preference, and be entitled to be first satisfied, by causing an execu- tion upon it to be first delivered to the sheriff. Reeves v. Johnson, 1 Halsted, 29. On a sale on execution, the sheriff executes at once a deed to the purchaser. 1 Green's New-Jersey Reports, 185. "i Judgments cease to be liens on real estate, in Indiana, after ten years, unless revived by scire facias. Statutes of 1825. » In Ohio, judgments have always been a lien on real estate, and lands have been liable to be sold on execution, under certain restrictions. The purchaser takes the title as held by the debtor, subject to prior existing liens. Riddle v. Bryan, 5 Hammond's Ohio Rep. 55. But by statute, in 1824, it was provided, that if exe- cution was not sued out on the judgment, and levied within a year, without due excuse, the judgment should not operate as a lien to the prejudice of any other bona fide judgment creditor. M'Cormick v. Alexander, 2 Ohio Rep. 65. Earnfit V. Winans, 3 ibid. 135. The same provision was re-enacted in 1831, and is iu force to this time. As between the judgment creditor and the judgment debtor, the lien is perpetual. Norton v. Beaver, 5 Ohio Rep. 1'78. The lien relates back to the first day of the term in which the judgment is entered. Urbana Bank v. Ba,ldwin, 3 ibid, 65. But the judgment does not bind an equitable interest in the land. See a learned note of the reporter, Mr. Wilcox, in 10 Ohio Rep. p. 74, in which all the distinctions relative to judgment liens in Ohio are fully stated. In Shuee v. Ferguson, 3 Ohio Rep. 136, it was decided, that to take the prior hen out of the sta- tute, the levy must have been made within the year on the property in question. See, also, Thompson v. Atherton, 6 Ohio Rep. 30. If not, then all the judgments stand on an equal footing, and the first levy thereafter will have the preference . The lien of a judgment in Ohio does not attach to after-acquired lands, so as to affect the rights of a bona fide pm'chaser. Roads v. Symmes, 1 Ohio Rep. 313. Stiles, ex dem. Miller v. Murphy, 4 ibid. 92. Judgments standing five years with- out execution become dormant, and the lien ceases. The lien on lands within the county where the judgment was rendered, exists from the first day of the term, and on all other lands within the state from the levy on them. Statutes of Ohio, 1831. ^ The lien of the judgment may be lost, in Tennessee, by the act of the judg- 4-72 0¥ REAL PROPERTY. [Part VI. ma and Louisiana. "■ The lien, after all, amounts only to a security against subsequent purchasers and incumbrancers ; for, as the Master of the Eolls, said, in Brace v. Duchess of MarWorough^ it was neither jus in re, nor jus ad rem ; the judgment creditor gets no estate in the land, and though he should release all his right to the land, he might afterwards extend it by execution."^ ment creditor, so as to let in a younger judgment creditor. The lien in that state is only raised by constraction of law ; and if the plaintiff, by contract ■with the debtor, delays execution for six months, for instance, he loses his lien as against a junior creditor. Porter v. Cocke, 1 Peeh's Term. Rep. 30. The lien operates from the date of the judgment, if the lauds be sold within a year thereafter, and if there be no levy made within a year after the judgment rendered, the lien ceases as to sub- quent purchasers. Statute Laws of Tennessee, 1836, p. 419. Miller v. Estill, 8 Yerger, 452. Greenway v. Cannon, 3 Humphrey Hep. I'll. See further, as to judgment liens in Tennessee, the learned discussion of Chancellor Haywood, 1 Peck, App. 1 — 11. In Murfree v. Carmack, in Tennessee, 4 Terger's Tenn. Rep. 270, it was adjudged, that the judgment was a lien on the land from the day and precise time it was rendered, and in absence of proof of that precise time, a mort- gage by the defendant, executed on the same day in which the judgment was ren- dered, being an equal title, would have a priority. It was shown in that case, by the able and learned argument of M'Carmack, that judgment liens on lands did not exist at common law, nor until the statute of West. 2, 13 Ed. I, which gave the elegit, and subjected real estate to the payment of debts ; and as judgments were entered generally of the term, and as the term was considered in law as one day, and by intendment, (Holt, Ch. J., 3 Salk. 212. 1 Wils. 39, arg.) judgments related to the commencement of the term, the lien which the courts deduced from the sta- tute giving the elegit, necessarily attached on the first day of the teim. So the law continued until the statute of 29 Charles II., directed a date to be given to the judgment when signed, and the lien was shifted and fixed to that date. That stii- tute would seem not to have been adopted in Tennessee, as we have seen in a pi'e- ceding note, that it was not in Iforth Carolina, and executions bind personal prop- erty from then- teste. Coffee v. Wray, 8 Yerger, 464. In England judgments re- late to the fii'st day of the teim ae against volunteers and persons taking with no- tice, though that fiction is taken away by statute as to hona fide purchasers. • In South Carolina a decree in equity for the payment of money constitutes a lien on land similar to that of a judgment at law ; and under a statute in Vi%t, the real and pergonal estate of the defendant under such a decree is hable to be sold on execution by a writ in the nature of a fi. fa. Blake v. Heyward, 1 Bailejfs Eq. Rep. 208. In Georgia, the judgment creates a lien on all the property of the debtor, and it is constructive notice to all the world, and it is indefinite in dm'a- tion until satisfied, or lost, or displaced by the act of the party. Forsyth v. Mar- bury, -R. M. Charlton's Rep. 324. 326, 327. "> 2 P. Wms. 491. • Story, J., in Conard v. Atlantic Ins. Company, 1 Peters' TT. S. Rep. 453. S. P. The principle upon which the court of chancery interferes to enforce a lien, in respect to real estate, is that there is a judgment creating a lien on the estate recognised in Lee. LXVI.] OF REAL PROPERTY. 473 In ]!Tew-Tork, the interest of a person holding a contract for the purchase of land, is not bound by a judgment or de- cree, and is not to be sold on execution. The remedy by the creditor against such an equitable interest residing in his debtor, is by a bill in chancery ; and the interest may be sold under a decree for that purpose, or transferred to the creditor in such manner, and upon such terms, as to the court shall seem just, and most conducive to the interest of the parties." So the creditor who holds a debt secured by mortgage, can- equity, and in respect to personal estate tbat there were a previous judgment and execution satisfied. BnnckerhoSy.Bro-miyi Johns. Ch. Rep. 611. Perry v. Nixon, 1 Hill's S. 0. Rep. 335. M'Naiiy v. Eastland, 10 Yerger, 310. A judgment is binding upon trust and equitable estates, as well as on legal estates, and the lien maybe as- serted in chancery, except as against bona fide pm'chasers, without notice. Freston on Estates, part 3d, 826. Sugden on Vendors, 9th edit. 616. Chapron v, Casaaday, 3 Mump. Tenn. Rep. 661. The judgments in the federal courts, within the district of New-York, are liens upon real property, in the like manner as judgments of the state courts, and to the extent of the local jurisdiction of the court. See supra, vol. L 248, note. Ibid. 342, note. The lien exists in Pennsylvania district, (1 Peters' Cir. Rep. 386,) and in Mai-yland, (5 Peters' U. S. Rep. 358,) and probably iu other states, to the extent of state judgments. By the Jfew-York Revised Statutes, voL iL 65Y, sec. 38 — 46, judgments in the federal com-ts within the state are to be transcribed and docketed by the clerks of the supreme comt of the state, in books to be provided for the purpose, for the public inspection and security. In Pennsylvania, a judicial sale divests all liens, definite and certain in their amount, whether general or specific, except in pecuHar cases, and with the exception of prior moi-tgages ; and the proceeds are to be fairly and faithfully applied to the discharge of liens, according to priority. By the sale, the money is substituted for the land. This is also the case in Delaware ; a sheriff's sale discharges all prior judgment liens, and the proceeds are applied to judgments in the order of their preference. Farmers' Bank v. "Wallace, 3 JIarr. Rep. 370. Finney v. Pennsylvania, 1 Renn. Rep. 240. M'Graw v. M'Lanahan, ibid. 44. M'Lanahan v. "Wyant, ibid. 96. Ibid. 113. Milhken v. Kendig, 2 ibid. ill. Willard v. Morris, 2 Rawle, 56. Miller v. Musselman, 6 WJiarton, 351. Bantheon v. Smith, 2 Binney, 146. Reed V. Reed, 1 Watts & Serg. 235. Custer v. Dekerer, 3 ibid. 28. Presbyterian Cor- poration V. Wallace, 3 Rawle, 109. In this last case, the rule in Pennsylvania is applied, as well to a prior incumbrance by mortgage as to a prior incumbrance by judgment See, also, Leib v. Bean, 1 Ashmead, 20Y, and Mode's Appeal, 6 Watts Mooers v. White, 6 Johns. Ch. Rep. 381 — 389. Hays v. JacksoD, 6 Mass. Rep. 149. Scott T. Hancock, 13 ihid. 162. Wanick v. Hunt, 6 Balsteds Rep, 1. In Tennessee, by the statute of 1827, when the personal estate is exhausted, the ad- ministrator, or any creditor for himself and others, may file a bill to subject the real estate to the payment of the debts, and the proceeds of the sale ■will be rata- bly distributed, and all creditors ai'e entitled to come in, and equity will enjoin in the mean time all but judgment creditors from proceeding at law. DaUey t. Read, 6 Yerger, 53. The doctrine in the case of Thompson v. Brown, 4 Johns. Ch. Rep. 619, is to the same effect, and so is the English law. Moms v. The Bank of Eng- land, Cases temp. Talbot, 218. 4 Rro. P. O. 287. Clark v. Earl of Oi-monde, 1 Jacob, 108. « Sales of land by public officers for taxes, depend upon local statutes, and the specific directions must be strictly pursued. Thus, for instance, a sale of land for taxes, in Ohio, is not valid, unless the record of the adveiiasement of the list of delinquents for fom- weeks, between 1st of October and 1st of December, be re- corded in the auditor's office, as the law requires. Kellogg v. M'Laughlin, 8 Ohio Rep. 114. LECTUEE LXTII. OF TITLE BY DEED. A PURCHASE, in the ordinaiy and popular acceptation of the term, is the transmission of property from one person to another, by their voluntary act and agreement, founded on a valuable consideration. But, in judgment of law, it is the acquisition of land by any lawful act of the party, in contra- distinction to acquisition by operation of law ; and it includes title by deed, title by matter of record, and title by devise.'^ I. Of the history of the la/w of alienation. The alienation of property is among the earliest suggestions flowing from its existence. The capacity to dispose of it be- comes material to the purposes of social life, as soon as pro- perty is rendered secure and valuable, in the progress of na- tions, from a state of turbulence and rudeness, to order and refinement. The power of alienation is a necessary conse- quence of ownership, and it is founded on natural right.'' It • Liu. sec. 12. Co. Litt. Hid. Neither tenancy by curtesy or in dower are titles by pm-chase, for they are estates arising by act of law. See supra, p. 373. Dr. Clarke says, that the pui'chase of the Cave of Machpelah by the patriarch Abraham, as recorded in Genesis, c. xxiii. v. 16, is the earliest account on record of the pm-chase of land. ■> Inst. 2. 1. 40. Grotius, de Jure Belli et Facts, lib. 2, c. 6, u. 1. It may be here obsei-ved, in entering upon this important title, that it is a settled rule of 1.t,w, that not only the capacity of persons to convey or devise real estate and the right to inherit, but, also, the foi-ms and solemnities requisite to pass the title, must be in conformity with the local law of the countiy in which the land is situated Vide supra, vol. ii. 6Y. 429, and infra, vol. iv. 513. See, also, Coffin v. Coffin, 2 P. Wins. 293. Eobinson v. Bland, 2 Burr. lO'Zg. Abbott, Ch. J., in Doe v. Vardill, 5 Barnw. & Oress. 438. Dundas v. Dundas, 2 Dow. dt Clark, 349. Scott v. Al- nutt, 2 ibid. 409. Cutler v. Davenport, 1 Pick 86. United States v. Crosby, 1 4:80 OF REAL PROPERTY. [Pai-t VI. is stated, by very respectable authorities, tbat in the time of the Anglo-Saxons, lands were alienable either by deed or by will. "When conveyed by charter or deed, they were distinguished by the name of loo or looMand, and the other kind of land ca!i\%Afolcla/nd, was held and conveyed without writ- *44:2 ing.a But this notion of the *free disposition of the land among the Saxons, must be understood in a very qualified sense ; and the jus disjponendi, even at that day, was subject, as it is and ought to be in every coitntry and in every stage of society, to the restraints and modifications sug- gested by convenience, and dictated by civil institutions.'' It was reserved, however, to the feudal policy, to impose re- straints upon the enjoyment and circulation of landed proper- ty, to an extent then unprecedented in the annals of Europe. There were checks (though they were comparatively inconsi- derable) in favour of the heir, upon the alienation of land, among the Jews," Greeks and Eomans. The feudal restric- tions were vastly heavier, and founded on different policy. They arose partly in favour of the heir of the tenant ; for the law of feuds would not allow the vassal to alien the paternal C'rancli, 115. Kerr v. Moon, 9 Wheaton, 5. M'Cortflick v. Sullivan, 10 ibid. 192. 202. Ml-. Justice Story, in his Commentaries on the Coiifiict of Lams, p. 364 — 390, has examined at length the various and contradictory opinions, and idle discussions and difficulties of the foreign jurists, on the subject of the capacity and incapacity of persona to convey real property situated in a country in -which the owner had not his domicil. His conclusions on the subject are just and accurate, and aa to the general principle stated in this note, he has sustained it by a reference to the sound- est authorities, both foreign and domestic. • Wright ore Tenures, 154, note. Reeve's Hist, of the English Law, vol. i. 5. 10, 11. Spelman on Feuds, c. 6. Ibid, on Deeds and Charters,}). 1,c.l. 2 Blades. Com. 375. ^ The alienation of bocland was prohibited by a law of Alfred, if it descended from one's ancestors, and the ancestor had imposed that condition. L. L. Alfred, c. S"?. Lombard's Arch. 31. Sir Hemy Spelman says, that bocland yfnB heredit- ary, and could not be conveyed from the heir without his consent, though that re- striction was finally removed ; nor could it be devised by will. It was the folcland that was alienable and devisable, and was in the nature of allodial property. Spcl- man's Glossary, voce BooTcland and Folcland. Mi-. Spence {Equitable Jurisdic- tion of the Court of Chancery, vol. i. pp. 8, 9,) says that folcland -was left by the Saxons without specific appropriation and subject to future appropriations, and that it might be considered as fiscal domains. He says it was the bocland in the Saxon times that was allodial, and might be freely disposed by gift, sale or will. Id. pp. 20, 21. • See supra, pp. Sll, S'iS, and the notes, ibid. Leo. LXVn.] OF REAL PROPERTY. 481 feud, even with the consent of the lord, without the consent of the heirs of the paternal line.=^ But the restraint arose principally from favour to the lord of the fee. He was con- sidered as having a strong interest in the abilities and fidelity of his vassal ; and it was deemed to be a great hardship, and repugnant to the entire genius of the feudal system, to allow the land which the chieftain had given to one family, to pass, without his consent, into the possession of another, and to be transferred, perhaps, to an enemy, or at least to a person not well qualified to perform the feudal engagements. The re- strictions were perfectly in accordance with the doctrine of feuds, and proper and expedient in reference to that system, and to that system only. The whole feudal establish- ment proved itself eventually to be *inconsistent with *4:43 a civilized and pacific state of society ; and wherever freedom, commerce and the arts, penetrated and shed their benign influence, the feudal fabric was gradually undermined, and all its proud and stately columns were successively pros- trated in the dust. The history of the gradual decline of the feudal restraints in England, upon alienation, from the reign of Henry I., when the earliest innovations were made upon them, down to the final recovery of the full and free exercise of the right of dis- position, forms an interesting view of the progress of society. Some notice of this subject was taken in a former volume ;•> and though the feudal restrictions upon alienations never fol- lowed the emigration of our ancestors across the Atlantic, we may well pause a moment upon this ancient learning. Our sympathies are naturally excited, in a review of the subtle contrivances, the resolute struggles, the undiverted perseve- rance, and final and complete success, which accompanied; the eiforts of the English nation, in the early periods of their history, to break down the stern policy of feudal despotism,, and to regain the use and control of their own property, as being one of the inherent rights of mankind. The first step taken in mitigation of the rigours of the law of feuds, and in favour of voluntary alienations, was the coun- tenance given to the practice of subinfeudations. They were » Feud. lib. 2, tit. 39. "• Vol. iii. lee. 53. YoL. IV. 31 482 OF REAL PROPEETT. [Part VI calculated to elude the restraint upon alienation, and consist- ed in carving out portions of the fief to be held of the vassal by the same tenure with which he held of the chief lord of the fee. The alienation prohibited by the feudal law, all over Europe, was the substitution of a new feudatory in the place of the old one ; but subinfeudation was a feoffment by the tenant to hold of himself. The purchaser became his vassal, and the vendor still continued liable to the chief lord for all the feudal obligations. Subinfeudations were encouraged by the subordinate feudatories, because they contributed *444 to their own *power and independence ; but they were found to be injurious to the fruits of tenure, such as re- liefs, marriage and wardships, belonging to the paramount lords. Alienation first became prevalent in cities and bo- roughs, where the title to lands and houses was chiefly allo- dial, and where the genius of commerce dictated and impelled a more free and liberal circulation of property. The crusades had an indirect, but powerful influence upon alienation of land ; as those who engaged in that wild and romantic enter- prise, ceased to place any value upon the inheritances which they were obliged io leave behind them. A law of Henry I. relaxed the restraint as to purchased lands, while it retained it as to those which were ancestral."* In the time of Glan- ville,*' considerable relaxations as to the disposition of real property acquired by purchase, were tolerated. Conditional fees had been introduced by the policy of individuals, to im- pose further restraints upon alienation ; but the tendency of public opinion in its favour, induced the courts of justice, which had partaken of the same spirit, to give to conditional fees a construction inconsistent with their original intention. This led the feudal aristocracy to procure from parliament the statute de donis, of 13 Edw. I., which was intended to check the judicial construction, that had, in a great degree, dis- charged the conditional fee from the limitation imposed by the grant. Under that statute, fees conditional were changed into estates tail ; and the contrivance which was afterwards resorted to, and adopted by the courts, to elude the entail- ment, and defeat the policy of the statute, by means of the Lomiard's Arch. 203. ' Lib. 1, c, 1. Uc LXVII] OF REAL PBOPERTT. 483 fiction of a common recovery, has been already alluded to in a formef part of the present volume. The statute of Quia Emptores, 18 Edw. I., finally and per- manently established the free right of alienation by the sub- vassal, without the lord's consent; but it broke down subin- feudations, which had already been checked by magna *charta ; and it declared, that the grantee should not *445 hold the land of his immediate feoffor, but of the chief lord of the fee, of whom the grantor himself held it. The im- portance of that provision to the feudal lord, was the cause of its being enacted ad instantium magnatwm regni, as the stat- ute itself admits. The power of involuntary alienation, by rendering the land answerable by attachment for debt, was created by the statute of "Westm. 2, 13 Edw. I., c. 18., which granted the elegit ; and by the statutes merchant or staple, of 13 Edw. I., and 27 Edw. in., which gave the extent. These provisions were called for by the growing commercial spirit of the nation. To these we may add the statute of 1 Edw. m., taking away the forfeiture or alienation by the king's tenants in oa^te, and substituting a reasonable fine in its place ; (and which Lord Coke says,^ was only an exposition of magna charta ;) and' this gives us a condensed view of the progress of the common law right of alienation from a state of servitude to freedom.*" ■ 2 Imt. 66. i" These successive periods in the progress of the law of alienation, may be found fully and distinctly stated in detached parts of Reeves History of the English Law ; but a more entire and better view of the history of the English law of alienation, is to be seen in Sullivan's Historical Treatise on the Feudal Lain, sec. 15, 16, and in Dalrymple's Essays on Feudal Property, c. 3. The latter unites with it a his- tory of the recovery of the right of aUeflation in Scotland. " Of old, " says Lord Stair, " alienations of land for money were very rare in Scotland, or the contracting of considerable debts ; there was then known no legal execution for debt against lands or heritable rights, but only against movatles by the brief of distress or poinding; but after the statute of the year 1469, if the debtor had not movable ijoods, but lands, the sheriff was to sell tlie land to the avail of the debt, and pay the creditor, and to be redeemable within seven years ; and if he could not find a buyer he was to appraise the lands by thirteen persons of the best and worthiest in the shire, and assign to the creditor lands to the avail of the sum." Lord Stair's Institutions, by More, vol. ii. 404, 405. There were other provisions, and subsequently modified, and which it is not necessaiy here to pursue. The subject of alienation of land is also sketched by Sir William Blackstone, in his 484 OF REAL PROPEKTT. [Pait VI. *446 *II. Of the purchase of 'pretended titles. Every citizen of the United States is capable of taking and holding lands by descent, devise or purchase ; and every person capable of holding lands, except idiots, persons of un- sound mind, and infants, and seised of, or entitled to any es- tate or interest in land, may alien the same at his pleasure, under the regulations prescribed by law. This is a principle declared in the New- YorTc Revised Statutes,^ and I presume it is the general doctrine throughout the United States. In no other part of the civilized world is land made such an article of commerce, and of such incessant circulation ; though it is said, that, in England, houses and lands have now be- come common means of investment, and circulate from owner to owner with unusual and startling rapidity. There is one check to the power of alienation of a right or interest in land, taken from the statute of 32 Hen. VIII., c. 9., against selling pretended titles ; and a pretended title, within the purview of the common law, is where one person lays claim to land, of which another is in possession, holding adversely to the claim.b Every grant of land, except as a release, is void as an act of maintenance, if at the time the lands are in the actual possession of another person, claiming under a title ad- verse to that of the grantor." This principle, it is believed and assumed, prevails very generally in the jurisprudence of this country, and it has always been received as a settled law in New-York, and it has been incorporated into the Revised Statutes.^ But even in such a case, the claimant is allowed, Commentaries, (vol. ii. 287 — 290,) -with hia usual felicity of execution ; and it is lightly touched in Miliaria Historical View of the English Government, a work of great sagacity and justness of reflection, but destitute of tme precision and accu- racy in detail Thus, on the very point before us, he only says, in relation to the Anglo-Saxon times, that " no person was understood to hare a right of squandei'- ing his fortune to the prejudice of his nearest relations." This is loose in the ex- treme ; and yet for this passage he refers to a law of Alfred, which gives us the exact, and a far different regulation, and which law was mentioned in a preceding note, p. 442, n. b. ■ Vol i. 119, sec. 8, 9, 10. i> Montague, Ch. J., in Partridge v. Strange, 1 Plowd. Rep. 88, a. Lilt. sec. 34'7. i Vol. i. 739, sec. 147, 148. To constitute a possession adverse, so far as to bar a recovery, or to avoid a deed subsequently executed by the true owner, the pai'ty setting up the adverse possession must, in making his entry upon the laud, have acted Lee LXVII.] OF REAL PROPERTT. 485 by the statutef to execute a valid mortgage of the lands, which has preference, from the time of recording it, over subsequent judgments and mortgages, and binds the lands from the time of recovering possession.* *The ancient policy, which prohibited the sale of *4:47 pretended titles, and held the conveyance to a third person of lands held adversely at the time to be an act of maintenance, was founded upon a state of society which does not exist in this country. A right of entry was not assigna- ble at common law, because, said Lord Coke,'' "under colour thereof, pretended titles might be granted to great men, » whereby right might be trodden down, and the weak op- pressed."'' The repeated statutes which were passed, in the reigns of Edw. I., and Edw. HI., against champerty and maintenance, arose from the embarrassments which attended the administration of justice in those turbident times, from dangerous influence and oppression of men in power.^ The bona fide. Livingston v. Peni Ii-on Company, 9 Wendell, 611. Adverse posses- sion requisite to constitute a bar to the assertion of a legal title by the owner, must be " an actual, continued, visible, notorious, distinct and hostile possession" Mi\ Justice Duncan, in Hawk v. Senseman, 6 Serg. & Rawle, 21. This definition, says Mr. Wallace, in his note to the case of Taylor v. Horde, in Smith's leading cases , Law Library, N". S. vol. xxviii., is conceived with singular completeness and accu- racy. See, to the same point, Coburn v. Hollie, Metcalf Rep. 125. Kent, Cb. J., in Jackson v. Schoonmaker, 2 Johns. Rep. 230. Tilton v. Hunter, 24 Maine Rep. 32. The possession of tenant for life is not adverse to the remainder-man, and the latter may sell Grant v. Townsend, 2 Hill's Rep. 654. •■ The sheriff's sale onexecution of lands of the defendant held adversely is valid, for judicial or official sales are not within the policy of the cliamperty law; but the purchaser under the execution cannot sell while the lands are so held, for it would be an act of champerty. Frizzle T. Veach, 1 Dana's Ken. Rep. 216. ViolettT, Violett, 2 ibid. 325. Jarrett v. Tomlinson, 3 Waits & Serg. 114. '' Oo. Litt. 21.i, a. So, a contract by an attorney, to carry on a suit, on the prin- ciple of no purchase, no pay, or for part of the things medfor, has been held not to be valid in law. Livingston v. Cornell, 2 Martin's Louis. Rep. 281. " Bights of entry were made alienable by deed, 8 & 9 Vict, u. 106. ^ Champerty is a bargain between the plaintiff or defendant and a third person, to divide the land or matter in dispute between them if they prevail, and the champertor to carry on the suit at his own expense. Maintenance is a kindred of- fence, and is an officious intermeddling in a suit that does not belong to one, by assisting either party to prosecute or defend it. 4 Blacks. Com. 134. 20 Johnson's Rep. 392. Those statutes are founded upon a principle common to the laws of all well governed countries, that no encouragement should be given to litigation, by the introduction of parties to enforce those rights which others are not disposed to enforce. OF REAL PROPERTT. [Part VI- statute of 33 Hen. YIII. imposed a forfeiture uf>on the seller of the whole value of the lands sold, and the same penalty upon the buyer also, if he purchased knowingly. This severe statute was re-enacted literally in E'ew-York, in 1T88 ; and in Virginia, in 1186, and in North Carolina, in their Bemsed Stai/utes, 1837 ;* but the penal provisions are altered by the Wew- York Remised Statutes,^ which have abolished the for- feiture, and made it a misdemeanor for any person to buy or sell, or make or take a promise or covenant to convey, unless the grantor, or those by whom he claims, shall have been in possession of the land, or of the reversion or remainder there- of, or of the rents and profits, for the space of a year preced- ing. The provision does not apply to a mortgage of the lands, nor to a release of the same to the person in lawful posses- sion." It seems to be unnecessarily harsh ; but it is to be ob- served, that it was a principle conformable to the whole genius and policy of the common law, that the grantor, in a conveyance of land, (unless in the case of a mere release to the party in possession,) should have in him, at the *448 time, a *right of possession. A feoffment was void without livery of seisin ; and without possession a man eould not make livery of seisin."^ This principle is not pecu- liar to the English law ; it was a fundamental doctrine of the law of feuds on the continent of Europe. No feud could be created or transferred withoiit investiture, or putting the tenant into possession ; and delivery of possession is still requisite, in Holland and Germany, to the transfer of real property.^ * Vol. i. 260. •■ Vol, ii. 691, 8,cc. 6, t. In Ohio, knowingly seUing and conveying land without having any legal or equitable title, founded oq a wvitten contract, device, descent or deed, with intent to defraud the pm-ehaser, ia a fraud, and the party doing it is liable to imprisonment in the penitentiaiy at hard labour. Statutes of Ohio, 1831, p. W2.. " It has been held in Kentucky, that though a person enters on land tortiously, and while in possession, obtains a release of the outstanding title, it is not an offence against the champerty act, if there was po collusion with the grantee. Adams t, Buford, 6 Dana, 406. ^ Perkins, sec. 2,20. • Feudum sine investitura nullo mOdo constitui potest; investitura proprie dicitur possessio. Feudorum. lib. 1, tit. 25, lib. 2, tit. 2. Voet. Com. ad. Pand. lib, 41, tit. 1, sec. 3S. Lee. LXVII] OF REAL PROPERTY. 48Y It seems to be the general sense and usage of mankind, that the transfer of real proj)erty should not be valid, unless the grantor hath the capacity, as well as the intention, to deliver possession. Sir William Blackstone says,"' that it prevails in the codes of " all well governed nations ;" for possession is an essential part of title and dominion over property. As the conveyance in such a case is a mere nullity, and has no ope- ration, the title continues in the grantor, so as to enable him to maintain an ejectment upon it; and the void deed cannot be set up by a third person to the prejudice of his title.'' But as between the parties to the deed, it might operate by way of estoppel, and bar the grantor. The deed is good, and passes the title as between the grantor and grantee." This is the language of the old authorities, even as to a deed founded on champerty or maintenance.^ The doctrine, that a conveyance by a party out of pos- session, and with an adverse possession against him, is void, prevails equally in Connecticut, Massachusetts, Vermont, Maryland, Virginia, Korth Carolina,^ Tennessee,*" Kentucky, Mississippi, Alabama, Indiana, and probably in most of the other states.? *In some states, such as New- *4:49 ' Com. vol. ii. 311. ' Williams y. Jackson, 5 Johns. Rep. 489. Wolcott v. Knight, 6 Mass. Rep. 418. Brinley v. Whiting, 5 Pick. Rep. 348. " Livingston v. Proseus, 2 Hill's Rep. 526. ■• Bro. tit. Febffments, pi. 19. Fitzherbert, J., in 21 Hen. VIIL, fo. 23. b. 24, a. Co. lAtt. S69. Beaumond, J., in Oro. E. 445. Hawk. b. 1. 1;. 86, sec. 3. Jackson V. Dement, 9 Johns. Rep. 55. S. P. 9 Wendell, 616. ' Hoppiss V. Eskiidge, 2 Iredell's N. C. Eq. Rep. 64. Revised Statutes of North Carolina, vol. i. 260. ' Statute Laws of Tennessee, 1821, ch. 66, and 1836, p. 143. E In Michigan, the purchaser of land in possession of a third person, with know- ledge of that fact, takes it subject to all equities between the vendor and the pos- sessor. Rood V. Chapin, 1 Walker's Ch. Rep. 19, and if there exists an adverse possession, no title passes. Godfrey v. Disbrow, 1 Walker's Mich. Ch. Rep. 260. In Connecticut, by the colony act of 1727, the seller forfeits half the value of the land; and by the Revised Statutes of 1821, and of 1838, the foi-feiture is continued, and applies as well to the buyer as to the seller. In Kentucky, by the champerty actof 1824, eveiy conveyance or contract for the sale of land held adversely, unless in consummation of a previous bona fide lawful sale ,or executory contract of sale, is void, and the pre-existing title of the vendor is not impaii-ed. Wash v. M'Bi'ayer, 1 Dana's Rep. 566. Redman v. Sanders, 2 ibid. 68. Cardwell v. Sprigg, "7 ibid. 86. Oardwell v. Sprigg, 1 B. Munroe, 371. In Massachusetts, the penalty in the statute of 32 Henry YIII., has never been adopted, though the principle of the 488 OF REAL PROPERTY. [Part VI. Hampshire, Pennsylvania, Ohio, Illinois, Missouri and Louisiana, the doctrine does not exist; and a conveyance by a disseisee would seem to be good, and pass to the third per- son all his right of possession, and of property, whatever it might be.^ It is the settled doctrine in England and in ^STew-Tort, and probably in most of the other states, that the purchase of land, pending a suit concerning it, is champerty; and the purchase is void, if made with a knowledge of the suit, and not in consummation of a previous bargain.^ The statutes of common law is assumed that such a conveyance is Toid. 5 Piclc. Rep. 348. In Indiana, such a conveyance is held void at common law. Fite v. Doe, 1 Black- fords' Rep. 127 ; yet the statute of Hen. VIII. is held to be in affirmance of the common law. 2 SI'Lean's Rep. 380. Vide supra, p. 438, as to sales of litigious rights in Louisiana. Revised Laws of Illinois, 1833, p. 130. Revised Statutes of Missouri, 1835. Bledsoe v. Doe, 4 Howards Miss. Rep. 13. Dexter v. Wilson, 6 Alabama R. N. S. 68. ■ Haddiick v. Wilmarth, 5 N. If. Rep. 181. Whittemore v. Bean, 6 ibid. 50. Stoever v. Whitman, 6 Rinney's Rep. 420. Cressen v. Miller, 2 Watts, 272. Lessee of Hall v. Ashley, 9 Ohio Rep. 96. Willis v. Watson, 4 Scammon's Rep. 64. Willai-d V. Twichell, IN.R. Rep. 111. The act of Tennessee of 1805 allowed the person having right or title, to convey lands held adversely at the time ; but the act of 1821, c. 66, re-enacted the champerty statute of 32 Hen. VIII, so far as to declare all such conveyances void. Whiteside v. Martin, 7 Yerger, 384. It was hel'd, in Kentucky, in M'Connell v. Brown, 6 Mon. 478. S. C. 4, /. /. Marsh. 112, that the lands of a defendant were not liable to execution, under the act of 1798, whilst in the adverse possession of another. Then came the act of 1828, and after- wards the case of Frizzle v. Veach, 1 Dana's Ken. Rep. 211, in which it was held, that under the last act, the lands of the defendant, though in the adverse posses- sion of another, were subject to levy and sale on execution, and that the champerty doctiine, and champerty act of 1824 did not apply. The Kentucky act of 1824, against maintenance and champerty, (and the latter is held to be the most odious species of maintenance, and void at common law,) declaimed that all contracts to •mdertake to cany on any suit, or to recover any right or title to landheld adversely, id consideration of having part or profit out of the thing in contest, was unlawful and the parties thereto forfeited all claim and right to the land, so far as to protec the occupant. Smith v. Paxton, 4 Dana's Ken. Rep. 393, 394. A conveyance of land by one not in possession, and held adversely at the time, is void by the act of 1824 against champerty. Baley v. Deakins, 5 B. Munroe, 141. The statute against buying and selling pretended titles, does not prohibit the sale and purchase of equitable titles. It does not apply to trast estates. It means legal, and not equita- ble titles. Lord Eldon, in Wood v. Griffith, 1 Swanst. Rep. 55, 56. Allen v. Smith, 1 Leigh's Virg. Rep. 231. Baker v. Whiting, 3 Sumner, 476. ■i M. 8 Edw. IV., 13. 6. 50^s«. pi. 2. Fitz.^t Champerty, ^\.\5. Mowsev. Weaver, Moore, 655. Hawk. P. O. b. 1, c. 84, tit. Champerty. 2 Co. Inst. 563, 564. Jackson v. Ketchum,-8 Johns. Rep. 479. Louisiana Code, art. 2428. In Lee. LXVn.] OF REAL PROPERTY. 489 Westm. 1, c. 25, "Westm. 2, c. 49, and particularly the statute of 28 Edw. I., c. 11, established that doctrine, which became Sims T. Cross, 10 Yerger, 460, it was held, that the champerty act of that state (and the same rule of consti'uotion applies to the same statute provision elsewhere) did not apply to a conveyance in fulfilment of a bona fide contract made prior to any adverse possession. Mr. Dane says, there is no statute on the subject in Mas- sachusetts, but that champerty is an offence in that state at common law. Dane's .46r.vol.vi. 741, sec. 41. Theold common law offence of champerty, itis Baid,never existed in Delaware. See S Sarrvngtori s Rep. 139, Bayard v. M'Lane, where the doctrine of champerty and maintenance is laboriously and learnedly discussed. But in Ohio, though there be no statute against champerty or maintenance, they are held to be offences at common law, and the contracts void. Weakly v. Hall, 13 Ohio Rep, 16*7. The old cases on maintenance, said Lord Ch. B. Abinger, are ex- ploded. Parties may lawfully enter into an agreement to maintain and defend each other, in a matter in which they believe then- interests to be identical. Main- tenance now means where a man improperly, and for the puipose of stirring up litigation and strife, encourages others either to bring actions or to make defences, which they have no right to make. Findon v. Parker, 11 Meeson & Wehby, 6*79. 682. If a person has an equitable interest in the title in dispute, as where the se- cond mortgagee brings in the fii-st mortgage pending the suit, it is not champerty in the modern mitigated sense of it. Hunter v. Daniell, 2 N. Y. Legal Observer, 296. Though exceptions to the eai-lier doctrine against champerty have greatly multiplied, and the severity of the old rule liberally considered and mitigated, yet it is still an offence suspiciously to intermeddle with another's Utigation without any personal interest or affinity to the parties. Lathrop v. Amherst Bank, 9 Metealf, 489. Pur- chasing an interest in the thing in dispute, with the object of maintaining and taking part in the litigation, is still champerty, and an offence. Tindall, Ch. J., in Stanley v. Jones, "7 ^in^'Aawi, 369. Persons having any legal or eqiutable interest in the matter in dispute, or standing in the relationship of father and son, ancestor and heir apparent, husband and wife, and brothers, are exceptions to the law of main- tenance, and may maintain each other's suits. So, persons having a common inter- est in the same thing by the same title, may unite for their common defence of it, and agi'ee to pay ratably the costs of suit. The ancient English statutes under Edw. L, reached attorneys as well as others. They reached equally officers and in- dividuals ; nvUe ministre de roi, ne nul autre, were permitted to take upon him any business in suit in any court, or to have part of the thing in plea or demand. Eveiy agreement relating thereto was declared void. The statute in Tennessee of 1821, c. 66, is to the same effect. "Weedon v. Wallace, 1 Meigs, 286. Lord Loughborough considered the offence of maintenance as malum in se, and all agree- ments tainted with it, even as between attorney and client, are void in equity as well as at common law. They cannot stipulate beyond just professional allowances. Kenney v. Browne, 3 Ridgw. P. C. 462. Wallis v. Duke of Portland, 8 Vesey, 494. Powell V. Knowler, 2 Atk. 224. Stevens v. Bagwell, 15 Vesey, 139. Wood v. Downes, 18 ibid. 120. Arden v. Patterson, 6 Johns. Ch. Rep. 48,49. 1 Greenleaf, 292. Key v. Vathier, 1 Hammond's Ohio Rep. 132. The courts of equity, upon general principles of policy, will not permit an attorney to accept any thing from his client, pending the suit, except his demand. A solicitor or counsellor cannot contract with his client for a pai't of the matter in htigation as a compensation for 4:QQ OP REAL PROPEETT. [Part VI. incorporated into the common law. The substance of those statutes was made part of the statute law of New-Tork in 1Y88 ; and by the JVew- YorTc Revised StaMtes,'^ to take a con- veyance of land, or of any interest therein, from a person not in possession, while the land is the subject of controversy by suit, and with knowledge of the suit, and that the grantor was not in possession, is declared to be a misdemeanor. *4:50 The same principle that *would render the purchase of a pretended title void, would apply, with much greater force, to a purchase while the title to the land was in actual litigation.!' {\^ m. Of the due exeouUon of a deed. A deed is a writing sealed and delivered, and to be duly executed, must be written on paper or parchment." his eei-vicea. Wallis T. Loubat, 2 Denio, 601. There would be no bounds, said Lord Thurlow, (Welles v. Mddleton, 1 Cox, 125,) to the crushing influence of hie power, if it was not so. Newman v. Paine, 3 Vesey, 203. Rose v. Mynett, 1 Yer- ger, 30. S. P. Menitt t. Lambert, 10 Paige, S52. The case of Berrien v. Mc- Lane, 1 HoffmarHs Gh. Mep. 421, contains a strong declai-ationthat eveiy agree- ment made, pending a litigation, to pay counsel or the attorney a pai^t of the propei-ty to be recovered, is absolutely void. Not only every contract, but the actual tians- fei' of pait of the property in litigation is illegal, on the gi'ound of the relation of the pai-fies, and of the doctrine of champerty. Numerous authorities are cited, but suffi- cient aje aheady mentioned in the preceding pai-t of this note. But it is not mainten- ance for a person to assign his interest in a debt, pending a suit for its recoveiy; but if it be purchased to answer a private end, it is maintenance ; as where a party agi-ees to give a stranger the benefit of a suit, on condition that he prosecute it. 2 Boll. Abr. 113. Hanington v. JJong, 2 Mylne & Keene, 590. If the purchaser gives an indemnity against all costs that have or may be incurred by the seller, in tiie prosecution of the suit, that act amounts to maintenance. Ibid. * Vol. ii. 691. sec. 5. ■• The statute law of New-York is understood to confine unlawful maintenance to the two cases of buying and selling pretended titles to land, and falsely moving and maintaining suits. Mott v. Small, 20 Wendell, 212. S. C. 22 Wendell, 403. And by reason of an alteration of the old statute of champerty, by the New- York Revised Statutes, vol. ii. ^91, sec. 6, the taking of a conveyance from a party in possession of land, the subject of controversy by suit in court is no longer forbid- den. Webb V. Bindon, 21 Wendell, ^^. In other respects the old law remains un- altered. « Co. Litt. 36, b. (1) If a disseisee, who has a right of entry, peaceably enters upon the land, and there de- livers a deed thereof, the deed will pass his title, thongh the grantee knows that the title was in controversy. Warner v. Bull, 13 Met. S. 1. Lee. LXVII] OF EEAL PROPERTY. 491 (I.) The deed musi he m writing, and signed and sealed. The law requires more form and solemnity in the convey- ance of land, than in that of chattels. This arises from the greater dignity of the freehold in the eye of the ancient law, and from the light and transitory natm-e of personal property, which enters much more into commerce, and requires the utmost facility in its incessant circulation . In the early periods of English history, the conveyance of land was usually without writing, but it was accompanied with overt acts, equivalent, in point of formality and certainty, to deeds. As knowledge increased, conveyance by writing became more prevalent; and, finally, by the statute of frauds and perjuries, of 29 Charles 11., ch. 3, sec. 1, 2, all estates and interests in lands, (except leases not exceeding three years,) created, granted or assigned, by livery and seisin only, or by parol, and not in writing, and signed by the party, were declared to have no greater force or effect than estates at will only. And by the 4th section, no person could be charged upon any " contract or sale of lands, or any interest in or concerning the same," unless the agreement or some memorandum or note thereof, was in writing, and signed by the party to be charged there- with, or some other person by him lawfully authorized. This statute provision has been either expressly adopted, or assum- ed as law, thi'oughout the United States." In New-York, it has been enacted, in every successive revision of the statutes ; and in the last revision it is made to apply, not only to every estate and interest in lands, but to every trust or power con- cerning the same ; and the exception as to leases is confined to leases for a term not exceeding one year. Eut the provision does not apply to trusts by implication, or operation of law.*" • The Ciml Oode of Louisiana, art. 2415, -without adopting in terms the provi- 8ion in the statute of frauds, declares generally, that all verbal sales of immovable property, or slaves, shall be void. The Tennessee statute omits the words in the English statute of frauds, or any interest in or concerning them. ^ New-Tork Revised Statutes, vol. ii. 134. sec. 6, t, 8. Ibid. 137, sec. 2. The words of the Neio- York Revised Statutes are, that " no estate or interest in lands, other than leases for a term not exdeeding one year, nor any trust or power, over or concerning lands, or in any manner relating thereto, shall hereafter be created, gi'anted, assigned, surrendered or declaimed, unless by act or operation of law, or by a deed or conveyance in writing, subscribed by the party creating, granting, assigning, sun-endeiing or declaring the same, or by his lawful assent, thereunto 492 OF REAL PKOPERTT. [Part VI. Nor is a parol promise to pay for the improvements made up- on land within the statute of frauds. They are not an *451 interest in land, but only another name *for work and labour bestowed upon it.^- There is some difficulty in deducing, with precision, from the conflict of cases, the true test of what is, and what is not " a contract or sale of lands, or any interest in or concerning them," within the true con- struction of the ith section of the statute of frauds. Mr. Jus- tice Littledale, in Evcms v. Rdb&rts^ was of opinion that the annual produce of land which was proceeding to a state of ma- turity, and which,''when taken at maturity, would be severed from the ground, and would become movable goods, was not an interest in land within that section of the statute, and that the statute seemed to mean land taken as mere land, and not the annual growing productions. Mr. Justice Spencer, in Frear v. Hardenbergh," seems to have adopted the same prin- ciple of construction, (though what he said was many years prior to the other case,) for he observed that the statute had in view some interest to be acquired in the land itself, by the contract, and not such as was collateral, and by which no kind of interest was to be gained in the \&aA.A authorized by Tniting." So, again, " eveiy contract for the sale of any lands, or any interest in lands, shall be void, unless the contract, or some note or memoran- dum thereof expressing the consideration, be in writing, and subscribed by 'whom the sale is to be made, or by his agent lawfully authorized." (1) But in the case of a parol contract for the sale of lands, if afterwards carried into effect by a conveyance, the deed will relate bact to the date of the contract, and overreach an intermediate sale to a stranger, unless he was a bona fide purchaser without notice, and with a deed duly recorded. Clavy v. Marshall, 5 B. Munroe, 266. ' Frear v. Hardenbergh, 5 Johns. Rep. 272. Lower v. "Winter, 1 Ooweti's Rep. 263. ^ 5 Barnw. & Cress. 820. ' 5 Johns. Rep. 2'76. ^ The English cases have made very refined distinctions on the sifbject, and such as are difficult to be reconciled. The sale of a quantity of timber or wood, grow- ing, and to be cut and deHvered, has been held not to be within the 4th section of the statute. I Lord Raym. 182, anon. Smith v. Surman, 9 Barnw. & Cress. 561. Yale V. Seely, 15 Vermont Rep. 221 ; but on this point, the case of Teal v. Awty, (1) See The National F. I. Co. v. Loomis, 11 Paige's B. 433, where Chancellor Walworth is of opinion that the contract need not be signed by the purchaser, but by the vendor only. Sand- ford, Ass. V. 0., seems to hold a different opinion. Cammeyer v. United German L. C, 2 Sandf. Oh. R. 188. Lee. LXVII.] OP REAL PROPERTY. 493 Part performance of an agreement by parol, and without writing, to sell land, will, in certain cases, in the judgment of a court of equity, take the agreement out of the operation of the statute of frauds, and authorize the court to deeree a spe- cijio performance of the contract. Such a resort to equity is addressed to the sound judicial discretion of the court; and its extraordinary jurisdiction in this case is not to be exer- cised when the complainant has so conducted as to destroy 2 Brod. & Bing. 99, is otherwise. The case of Claflin v. Carpenter, 4 Metcalf's Rep. 580, agrees with the decision in 1 Lord Raym.,, and restores it to the character of a sound authority. The sale of a crop of grass growing, has been held not to be a chattel, but within the 4th section of the statute. Crosby v. Wadsworth, 6 Easts Rep. 602. Bayley, J., in Evans v. Roberts, 5 Barmo. & Cress. 829. A sale of corn or potatoes growing in the field, held not to be within the statute, for the growing crops were mere chattels. Jones v. Flint, 2 Perry <& Davison, 594. 10 Adolph. Ellis, 753. Jainsbury v. Matthews, 4 Meeson & Welshy, 343. A sale of the herbage in land passes a right in the land and possession thereof, and tres- pass q. V. fregit will lie against an intruder'. But a sale of the products of land annually produced by labour {fructns industriales) is a sale of a chattel interest. Brittain v. McKay and Bates, 1 Iredell N. 0. Rep. 266. See, also, Stewart v. Doughty, 9 Johnson, 113. A sale of hops and of turnips growing, is held to be within the statute. Waddington v. Bristow, 2 Bos. ' and Kentucky, requires the same thing as to all estates or interests in land exceeding a term of five years ; and the statute law in Ehode Island, as to estates exceeding a term for one year. There are probably similar statute provisions in other states ; and where there are not, the general rule of the common law, that the conveyance of land must be by deed, is adopted and fol- lowed, with the exception of Louisiana, where sales of land are made by writing only, and must be registered in the office of a notary." It had been adjudged in New-York, in 1814,^ that a conveyance of a freehold estate must be by deed, or a writing under seal ; and the decision was founded upon the doctrine of the English common law. The Revised *4:52 Statutes^ have adopted this rule, by declaring, *that every grant in fee, or of a freehold estate, must be sub- ■ London Waterworks v. Bailey, i Bingham's Rep. 283. •i Revised Code of Virginia, vol L 218, Act of 1792. ' Civil Code of Louisiana, art. 2415. 2417. In Connecticut the statute declares, that all grants, bargains and mortgages of land, shall be in ■writing, subscribed by the gi-antor, and attested by t-wo witnesses, and duly acknowledged and recorded ; {Statutes of Connecticut, 1821. Jhid. 1838, p. 390,) and I should infer, that a bar- gain and sale of land, made according to the provisions of the statute, would be valid without a seal, and yet statutes have been passed in 1824, 1836 and 1838, confirming conveyances of real estate previously executed without seal. Statutes of Connecticut, 1838, pp. 393, 394. In Massachusetts, conveyances of land are by deed. Revised Statutes of 1835. ^ Jackson v. Wood, 12 Johns. Rep. 73. » Vol. i. 738, sec 137. In Georgia, the ancient English statute laws, respecting the rights of persons and property, are followed and adopted with remai-kable pre- cision, all conveyances of land must be by deed of bargain and sale, or by deed of lease and release, or by deed of feoffment, enrolled or registered in the clerk's office, signed and sealed by the party conveying, before two or more witnesses. But a LecLXTir.] OP EEAL PROPERTT. 497 scribed and sealed by the grantor, or his lawful agent, and either duly acknowledged previous to its delivery, or be attest- ed by at least one witness.* Nov will the mere cancelling of the deed, under which one holds title to real estate, divest the title from the grantee, and revest it in the grantor.'' (1) The case of a satisfied mortgage deed rests on different grounds, as we have had occasion already to consider. <= As a seal is requisite to a deed, the definition and the cha- racter of it are well settled.* The common law intended, by a seal, an impression upon wax or wafer, or some other tena- cious substance capable of being impressed. According to Lord Coke, a seal is wax, with an impression ; sigillum est cera impressa, quia cera sine impressione non est sigillum.^ writing with a scroll or other representation of a seal annexed, shall be sufficient for a seal of wafer or wax. JBotchkiss' Codification of the Statute Law of Georgia, 1843, pp. 406. 408. * The place of signing in the instrument is immaterial, and even a printed instead of a written name has been said to be sufficient, lord Eldon, in 2 5. New-Tor Jc Revised Statutes, vol. ii. 134. •= If a vendee be guilty of actual fraud in procuiing a title to land, no title passes to him, whether the sale be private or judicial. The sale is absolutely null and void to all intents and purposes. Sands v. Codwise, 4 Johns. Rep. 536. 698. Gilbert v. Hoifinan, 2 Watts, 66. The Connecticut statute of fraud is short and comprehensive, and declares void all fraudulent conveyances of lands or chattels, and all bonds, suits, judgments or contracts, with intent to avoid any debt or duty, as against the party injured. Statutes of Oonnectieut, 1838, ch. 300. ^ New-Yorlc Revised Statutes, vol. ii. 690, sec. 3. Lee. LXVII.] OF REAL PROPERTY. 513 deemed fraudulent, as against creditors or purchasers, solely on the ground that it was not founded on a valuable consider- ation.a(l) It is now the settled American doctrine, that a ho7m fide purchaser for valuable consideration, is protected under the statutes of 13 and 27 Eliz., as adopted in this country, whether he purchases from a fraudulent grantor, or a fraudu- lent grantee ; and that there is no difference in this respect between a deed to defraud subsequent creditors, and one to defraud subsequent purchasers. They are voidable only and not absolutely void.'' The consideration of a deed must be good or valuable, and not partaking of any thing immoral, illegal or fraudulent. It * New-Torh Revised Statutes, vol. ii. IST, sec 4. '' Anderson v. Roberts, 18 Johns, Rep. 215. Bean v. Smith, 2 Mason, 252. Bridge v. Eggleston, 14 Mass, Rep. 245. Martin v. Ccwles, 1 Dev. & Battle, 29. Somes V. Brower, 2 Pick. 184 Thompson t. M'Lean, 1 Ashmead, 129. Violett v. Violett, 2 Sands Ken. Rep. 324. Price v. JenMn, 4 Watts, 85. Blanchard v. Castille, 19 .Louis. Rep. 362. Oriental Bank v. Harkins, 3 Metcalf's Rep. 332. The bona fide pm'chase for a valuable consideration from a fraudulent grantee, opei'ates, say the courts, to purge the fraudulent grant of the fraud. If the grantee, however, knows when he takes his deed, that the object of the grantor is to defraud others, the deed is void, though he may give a full consideration. Edgall v. Lowell, 4 Vermont Rep. 405. Trotter v. Watson, 6 Humphrey's Tenn. Rep. 509. By the English statute of 3 and 4 William TV., c. 2*7, sec. 26, property is not recoverable on account of fraud from a hona fide purchaser for a valuable consideration who has not assisted in such fraud, and had no notice of it. But though a purchaser gives a full and fair price, and takes possession, yet if it be done for the purpose of defeating creditors or theii" pending execution, it is an act fraudulent and void. Lord Mans- field, in Worseley v. De Mattos, 1 Burr, 4*74, 4*76. In Jones v. Powles, 3 Mylne (b Keen, 581, the master «f the rolls held, that the rule that a purchaser for valuable consideration, without notice, was protected by the legal estate, extended to cases where the title waa impeached by secret acts of vendor, or by false assertions of vendor, provided the pui-chased title was clothed with possession, and the falsehood could not be detected by reasonable dih'gence. The position that a bona fide pur- chaser from a fraudulent grantee acquired no title against the creditors of the fraudulent grantor, though supported by the cases of Preston v. Croful, 1 Day's Conn. Rep. N. S. 527, and Roberts v. Anderson, 3 Johnson's Ch, Rep, 371, was gainsaid and ovcrraled by the case of AndAson v. Roberts, 18 Johnson, 515. Bean v. Smith, 2 Mason's Rep, 252. Oriental Bank v. Haskins, 3 Metcalf's Rep, 332. (2.) (1) See "Williams v. Mayor of Baltimore, JI, S, Lww Mag, for April, 1850, p. 840. (2) In Georgia it is held, that actual notice of a prior voluntary deed is necessary to defeat a subsequent ionaflde purchaser, and that registration is not sufBcient. Fleming v. Towns, 6 Georgia S, 108. YoL. lY. 33 514 OF REAL PSOPERTT. [Pai-t VI. is a universal rule, that it is unlawful to contract to do that which it is unlawful to do ; and every deed and every con- tract are equally void, whether they be made in violation of a law which is malum in se, or only malum prohihitwm.'^ A good consideration is founded upon natural love and affec- tion between near relations by blood ;*> but a valucMe one is founded on something deemed valuable in a pecu- *465 niary sense, *a8 money, goods, services ; and to these must be added, though *depending on a different idea, marriage. There are some deeds, to the validity of which a consideration need not have been stated. It was not required at common law, in feoffments, fines and leases in considera- tion of the fealty and homage incident to every such convey- ance. The law raised a consideration from the tenure itself, and the solemnity of the act of conveyance. The necessity of a consideration came from the courts of equity, where it was held requisite to raise a use ; and when uses were intro- duced at law, the courts of law adopted the same idea, and held, that a consideration was necessary to the validity of a deed of bargain and sale. It has been long the settled law, that a consideration expressed or proved, was necessary to give effect to a modern conveyance to uses." The considera- tion need not be expressed in the deed, but it must exist. (1) The mention of the consideration in a deed was to prevent a resulting trust, but it is only prima facie evidence of the amount, and may be varied by parol proof."! It is not evi- dence against existing creditors that a consideration has been paid.e No use will be raised in a covenant to stand seised, or by bargain and sale upon a general consideration, as by the words " for divers good considerations," but in such cases • Aubert V. Maze, 2 Bos. & Full. 371. Ribbans v. Crickett, ibid. 264. "Watts V. Brooks, 3 Ves. 612. Bank of the United States v. Owens, 2 Peters' U.S. Rep. 527. ' The relation of grandfather and grand-daughter is within the requisite relatioa Stovall T. Barnett, 4 lAt. Ken. Rep. 207. ' Lloyd V. Spillet, 2 Atle. Rep. 148. Jackson v. Alexander, 3 Johns. Rep. 491. Preston on Abstracts, vol. iii. 13, 14. * Meeker v. Meeker, 16 Conn. Rep. 383. •- Kimball v. Fenner, 62 iV. S. Rep. 248. (1) Frink v. Green, 5 Barb. S. C. Eep. 4S5. LecLXVn.] OF REAL PROPERTY. 516 a sufficient consideration may be averred. " It is sufficient if the deed purports to be for money received or value received, without mentioning the certainty of the sum ; and if any sum is mentioned, the smallest in amount or value will be suffi- cient to raise the use.'' The consideration has become a mat- ter of form, in respect to the validity of the deed in the first instance, in a court of law; and if the deed be brought in question, the consideration may be averred in pleading, and supported by proof. If a consideration be expressed in the deed, the grantor is estopped, and cannot be permitted to aver against it, unless there be fraud or illegality in it ; and then he may show it.^ The receipt of the consideration money is usually mentioned in the deed ; and Mr. Preston 8ays,d that if the receipt of it be not endorsed upon the deed, it *wiU, in transactions of a modern date, be pre- *466 siimptive evidence that the purchase money has not been paid, and impose upon a future purchaser the necessity of proving payment, in order to rebut the presumption of an equitable lien in favour of the seller for his purchase mo- ney. I have no idea that the courts of justice in this country would tolerate any such presumption in the first instance, from the mere circumstance of the omission to endorse on the deed the receipt of payment, for that ceremony is not now the American practice. (4.) The desoription of the estate. In the description of the land conveyed, the rule is, that known and fixed monuments control courses and distances. • Mildmay's case, 1 Co. 175, a. Stevens v. Griffiths, 3 Vermont HepAiS. ^ Fisher v. Smith, Moor's Hep. 569. Jackson f. Schoonmaker, 2 Johns. Hep. 230. Jackson t. Alexander, 3 ibid. 491. Cheney v. Watkins, 1 Uarr. dk Johns. 527. Okinson T. Patterson, 1 Watts d; Serr/. Hep. 395. Goodell v. Pierce, 2 ffiZi's Hep. 659. '. Collins V. Blantem, 2 Wils. Sil. Paxton v. Popham, 9 I^ast, 408. But the gi'antor is not estopped to prove that there were other considerations than the one expressed. Emmons v. Littlefield, 3 Maine Hep. 238. Parol evidence may be given to vaiy the consideration. 14 Johnson, 210. 20 Id. 338. 16 Wend. 460. n Mass. 249. 257. 8 Conn. 314. (1) ^ Abstracts.Yo}. i. 72. 299. Ibid. vol iii. 15. (1) Bingham v. Weidcrwax, 1 Comst. E. B09. 516 OF REAL PROPERTT. [Part VI. So, the certainty of metes and bounds will include and pass all the lands within them, though they vary from the given quantity expressed in the deed. The least certain and mate- rial parts of the description must yield to those which are the most certain and material, if they cannot be reconciled ; though, in construing deeds, the courts will give effect to every part of the description, if practicable. "Where natural and ascer- tained objects are wanting, and the course and distance can- not be reconciled, the one or the other may be preferred, ac- cording to circumstances. » (1) If there be nothing to control the course and distance, the line is run by the needle.'' The mention of quantity of acres, after a certain description of the subject by metes and bounds, or by other known specification, is but matter of description, and does not amount to any covenant, or afford ground for the breach of any of the usual covenants, though the quantity of acres should fall short *467 of the given *amount.'= (2) Whenever it appears by • Landmai-ks or fixed monuments to designate boundaries, are so important in distinguishing landed property, that to remove or destroy them was deemed a high offence by the ancient Jewish laws ; and in New- York to remove, deface or alter them maliciously, is an indictable offence. New-York Revised Statutes, vol. ii. .695, sec. 32. ' Jackson v. Staats, 2 Johns. Cos. 350. Trammell v. Nelson, 2 Harr. & M'Henry, i. Pernam v. Weed, 6 Mass. Rep. 131. Howe v. Bass, 2 Mass. Rep.ZSO. Higley V. Bidwell, 9 Oonn. Rep. 4A1. Benedict v. Gaylord, 11 ibid. 335. Doe v. Porter, 3 Arkansas Rep. 18. 51. White v. Gay, 9 iV. ff. Rep. 126. M'lver v. Walker, 9 Cranch's Rep. 173. Preston v. Bawmar, 6 WTieat. Rep. 580. Colclough v. Rich- ardson, 1 M'Oords Rep. 161. Welch v. Philips, ibid. 215. Brooks v. Tyler, 2 Vermont Rep. 348. Clai'k v. Wethey, 19 Wendell, 320. Lessee of Wyckoff v. Stephenson, 14 OhioRep. 13. 15. 17. The rules of law as to the location of lands by description in deeds, and as to the resort to the secondaiy evidence of the de- clarations and acts of the parties, when the piimary evidence fails, are clearly stated in this last case. A grant from one terminus to another means a direct line ; but if the line is to run along a river or creek from one terminus to another, it must fol- low the river or creek, however sinuous or indu-ect it may be ; and if that descrip- tion will not reach the terminus, it must be pm-sued so far aa it conducts towards the terminus, and then relinquished for a direct line to the terminus. Shultz v. Toung, 3 IredelVsN. C. Rep. 385. = Mann v. Pearson, 2 Johns. Rep. 27. Smith v. Evans, 6 Binney's Rep. 102. (1) Seaman v. Hogeboom, 3 Sart. S. 0. Bep. 215. (2) Eoat V. Puff, 8 £ari. S. O. Bep. 868. In this case, the deed contained the language— " There being in the lot, conveyed 185 acres, strict measwe," &c., yet it was held there was no covenant to make up the deficiency. LecLXVII.] OP REAL PROPERTY. 517 definite boundaries, or by words of qualification, as " more or less," or as "containing by estimation," or the like, that the statement of the qiiantity of acres in the deed is mere matter of description, and not of the essence of the contract, the buyer takes the risk of the quantity, if there be no inter- mixture of fraud in the case."- So, according to the maxim of Lord Bacon, falsa demonsbratio non nooet, when the thing it- self is certainly described; as in the instance of the farm called A., now in the occupation of B. ; here the farm is designated correctly as farm A. ; but the demonstration would be false if C, and not B., was the occupier, and yet it would not vitiate the grant.!" (1) Some things will pass by the conveyance of laud as incidents appendant or appurtenant thereto." This is the case with a right of way or other easement appurtenant to landA So, also, if the owner of a mill and dam, and certain Powell V. Clai-k, 5 Mass. Rep. 355. And see 1 AibetCs Rep. 325, to the same point. Jackson v. Moore, 6 Cowen's Rep. 106. Allison v. Allison, 1 Yerger's Tenn. Rep. 16. » Stebbins v. Eddy, 4 Mason's Rep. Hi. li land be sold by certain bounds, or for so much for the entii'e parcel, or by the lump, which is per aversionem, in the language of the civilians, as for a field inclosed, or an island in a river, which is a distinct and entire object, any sui-plus of land over the quantity given belongs to the vendee, and the price cannot be increased or diminished on account of disagi'ee- ment in measure or quantity. Innis v. M'Crummin, 12 Martin's Louis. Rep. 425. Lesassier v. Dashiell, 13 Louis. Rep. 151. Phelps v. Wilson, 16 ibid. 185. Louis. Code, art. 24'71. The Morris Canal Company v. Emmett, 9 Paige's Rep. 168. Pothier, Traiti du Oont. de Vente, No. 255. A veiy great diiierence (as thirty-thi-ee per cent for instance) between the actual and the estimated quantity of acres of land sold in the gross, would entitle a party to relief in chanceiy, on the ground of ffross mistake. Queenel v. Woodlief, 2 Hen. cfc Munf. 173, note. Nelson v. Mat- thews, 2 ibid. 164. Harrison v. Talbott, 2 Sana's Ken. Rep. 258. In the last case, the series of Kentucky decisions on the subject are ably reviewed. ' Blague V. Gould, Cro. 0. iil. 473. Jackson v. Clai-k, 1 Johns. Rep, 271. Howell V. Saule, 6 Mason's Rep. 410. Com. Dig. Fait. E. 4. = Co. Litt. 56. 121, b. 152. 307, a. Comyn's Dig. Grant, E. 11. Incorporeal hereditaments, appendant or appurtenant to land, as common of piscary and of pasture and right of way, pass by a conveyance of the land to which they are an- nexed, without even mention of the appurtenances. Co. Litt. 121, b. <• Kent V. Waite, 10 Piek. 138. Stoiy v. Odin, 12 Mass. Rep. 167. See, also, Bayley, J., in Canham v. Fisk, 2 Tijrwhit's Rep. 153. 157, and supra, vol. iii. 420. (1) Under the New-Tork statute it has been held, that a comptroller's deed of lands sold for taxes, is void, if the lot be designated by a wrong number, though witliotit the number the description would be adequate. Dike v. Lewis, 4 Denials li. 287. 618 OP EEAL PROPERTY. [Part VX. lands overflowed by the dam, sells the mill with all its privi- leges and appurtenances, the purchaser may continue the dam with the same head of water.^ (1) And if a house or store be conveyed, every thing passed which belongs to, and is i^^use for it, as an incident or appurtenance.'' A conduit, conveying water to the lands sold from another part of the lands of the grantor, will pass as being necessary or quasi appendant thereto." So, a race-way, conducting water from a mill to another part of the grantor's land, has been held to pass by a conveyance of land with the mill thereon.'i Upon a conveyance of land and delivery of possession, it has been adjudged that the growing grain does not pass to the vendee, for it is deemed to be personal estate." A contrary *468 rule was, *however, previously declared in Foote v. Oolvin;^ and was likewise admitted in Kittredge v. Woods.s If the land be sold without any reservation of the crops in the ground, the law is strict as between vendor and vendee; and I apprehend the weight of authority to be in favour of the existence of the rule that the conveyance of the fee carries with it whatever is attached to the soil, be it grain • Blaine's Lessee v. Chambers, 1 Serg. & Rawle, 169. Pickering v. Staples, 5 ibid. wn. Tilghman, Ch. J., Strickler v. Todd, 10 ibid. 63. Oaldey v. Stanley, & Wendell, 523. Hathorn v. Stinson, 1 Fairfield, 224. '' United States v. Appleton, 1 Sumner's Rep. 492. When the use of a thing is granted, every thing is granted by which the grantee may have and enjoy the use. Twisden, J., in Pomfret v. Ricroft, 1 Saund. 321. 323 ; and this is according to the sound maxim of the common law, that aliquis quod coneedit, conoedere videtuy et id, sine quo res ipsa esse non potuit. ' Nicholas V. Chamberlain, Cro. J. 121. ^ N. Ips. Factoi-y v. Batchelder, 3 JV. H. Rep. 190. The term appurtenances signifies something appertaining to another thing as principal, and which passes as incident to the principal thing, and which is of a different but congruous nature. Land cannot be appurtenant to land. Harris v. Elliott, 10 Peters' XI. & Rep. 25. United States v. Harris, 1 Sumner, Si. Mistakes of facts in recital of deeds, given by official men who sell imder judi- cial authority, may be explained. Glover v. Ruffin, 6 Ohio Rep. 25S. • Smith V. Johnson, 1 Penn. Rep. 471. ' 3 Johns. Rep. 216. s Z N.H. Rep. 603. (I) Under a reservation in a grant of lands and water privileges, of sufdclent water to propel certain specifled machinery, the grantor is entitled to use the water for any purpose not requiring a greater quantity than is reserved. Cromwell v. Selden, 8 Comet. li, 2D3. Lee. LXVIL] OF REAL PROPERTT. 619 growing, or any thing else ; and that it leaves exceptions to the rule to rest upon reservations to be made by the vendor. The rule was so understood and declared in Crews v. Pendle- ton.^ A reservation is a clause in a deed, whereby the grantor reserves some new thing to himself issuing out of the thing granted, and not in esse before -^ but an exception is always of a part of the thing granted, or out of the general words and description in the grant. It is repugnant to the deed, and void, if the reservation be as large as the grant itself. So it is if the excepted part was specifically granted, as if a person grants two acres, excepting one of them.* The exception is good when the granting part of the deed is in general terms, as in the grant of a messuage and houses, excepting the barn or dove-house ; or in the grant of a piece of land, excepting the trees or woods ; or in the grant of a manor, excepting a close, ex verio generali aliquid excipitur. If the exception be valid, the thing excepted remains with the grantor, with the like force and effect, as if no grant had been made."^ (5.) Of the habendum. This part of the deed was originally used to determine the interest granted, or to lessen, enlarge, explain or qualify the premises. But it cannot perform the office of divesting the estate already vested by the deed ; for it is void if it be re- • 1 Leigh's Virg. Rep. 29*7. Bank of Pennsylvania v. Wise, 3 TraHs, 394. Wilkins t. Vashbinder, 7 ihid. 378. S. P., and the case of Smithy. Johnson, alluded to in the text, is oveiTuled. '> An incident to a gi'ant may be the subject of a i-eservation, as the reservation of a rent, or of a mill-site, and the right to erect mill-dams, and the use of streams of water ; but the reservation is inoperative until the grantor exercises his right. Thompson v. Gregory, 4 Johns. Rep. 81. Provost v. Colder, 2 Wendell, 51. Dygest V. Matthews, 1 1 ibid. 35. « Co. Litt.in, u. 412. Flowd. 153, a. Case v. Haight, 3 Wend. 635. ■■ Ive v. Sams, Cro. R 521. 2 Roll. Abr. 455. S. Touch. 11. The exception required by the New- York Statutes (Act of 25th February, 1789, u. 32, and of 28th February, 1789, c. 44. New-York Revised Statutes, vol i. 198,) in patents of all gold and silver mines, is an instance of a valid exception within the rules of the common law. The doctrine of exceptions in a deed is fully stated in Shepards Touch, by Preston, 78 ; and see, also. Lord Ch. J. Denman's exposition of the dis- tinction between a reservation and an exception. Doe v. Lock, 4 Neville & Man- ning, 807. 520 OF REAL PROPERTY. [Part VI. pugnant to the estate granted.^- It has degenerated into a mere useless form ; and the premises now contain the specifi- cation of the estate granted, and the deed becomes effectual without any habendum. If, however, the premises should be merely descriptive, and no estate be mentioned, then the habendinn becomes efficient to declare the intention ; and it will rebut any implication arising from the silence of the pre- mises.*> (6.) Of the usual covenants in a deed. The ancient warranty was a covenant real, or one concern- ing the realty, whereby the grantor of an estate of freehold^ and his heirs, were bound to warrant the title ; and *469 either upon voucher, or by judgment *in a writ of vya/rrantia chwrtc^, to yield other lands to the value of those from which there had been an eviction by a paramount title." The heir of the warrantor was bound only on condition that he had, as assets, other lands of equal value by descent. lA/neoH warranty was where the heir derived title to the land warranted ; either from or through the ancestor who made the warranty ; and collateral warranty was where the heir's title was not derived from the warranting ancestor; and yet it barred the heir from claiming the land by any collateral title,, upon the presumption that he might thereafter have assets by descent from or through the ancestor ; and it imposed upon him the obligation of giving the warrantee other lands in case of eviction, provided he had asset8. If -words of inheritaDce be tyanting in the premises and habendum pai-t of a deed, a life estate cannot be enlai'ged into a fee, by the use of those words in the covenants of warranty, for a warranty cannot enlarge the estate, Seymour's case, 10 Co. 419, Thomas & Eraser's edit. ' Co. Litt. 365, a. ^ 2 Blacks. Com. 301, 302. In the case of a conveyance of land with wan-anty, and assets descend to the heir of the gi'antor of greater value than the land, and that heir be a female who marries, her husband is rebutted, on the piinciple of avoiding circuity of action, from claiming the land under a title paramount to that of the grantor ; for in case of his recovery the purchaser would have an action on the warranty against him and his wife. Bates v. Norcross, 17 Pick. Rep. 14. lee. LXVII.] OF REAL PROPERTY. 521 efforts to be relieved from them, the statute of 4 Anne, c. 16, made void not only all warranties by any tenant for life, as against any person in reversion or remainder, but, as against the heir, aU collateral warranties, by any ancestor who had no estate of inheritance in possession.=i The statute of Anne was re-enacted in INew-Tork in 1788, and adopted in Rhode Island as early as 1749 ;!• but the New- York Revised Statutes'' have made a more thorough reformation, for they have abo- lished both lineal and collateral warranties, with all their in- cidents, and made heirs and devisees answerable upon the covenant or agreement of the ancestor or testator, to the ex- tent of the lands descended or devised.* The settled rule of the common law is, that an express covenant will restrain or destroy a general implied covenant -,6 but the New- York stat- utes have further declared,*' that no covenants shall be implied in any conveyance of real estate, whether such convey- ance contain special covenants *or not.?(l) These *4V0 * The covenant real, together with almost all other real actions, was abolished in England by the statute of 3 and 4 Wm. IV., u. 2Y. But if the decedent has an estate of inheritance in possession, and binds himself and his heu's by a general wan-anty, the heii-s are barred with or without assets, and whether the wan-anty be lineal or collateral. Flynn v. Williams, 1 IredelVs N. G. Rep. 509. I" See 1 Sumner's Sep. 358 — 263. In Virginia, according to the construction of the act of 1785, (1 Bev. Code, c 13, p. 24,) all wan-anties, lineal or collateral, which descend without assets, are void as to the heii-s, but all wairanties, whether com- menced by disseisin or otherwise, are valid against the heirs of the w.arrantors, so far as assets descend from the warrantors. 2 Tuckei's Black. 303, note 8. Lomax's Digest, vol. ii. 24'7. ■= Vol. i. T39, sec. 141. ^ The statute of Anne does not appear to have been generally or foi-mally re- enacted in our American statute laws, because the law of lineal and collateral war- ranties never has been generally adopted in our American jmisprudence. '■ Note's cas 4 Go. 80. Deering v. Fanington, 1 Mod. Rep. 113. Menill v. Frame, 4 Taunt. Rep. 329. Frost v. Baymond, 2 Gaines, 188. Weiser v. Weiser, 5 Watts, 279. Line v. Stephenson, 4 Bingham's N. G. Rep. 678. S. C. 5 ibid. 183. ' New-Yorh Revised Statutes, vol. i. 738, sec. 140. s The maxim caveat emptor is inapplicable to a purchaser from a trustee, and he may set up a want of consideration or of title, as a defence to an action for the piu-- chase money. Adams v. Humes. 9 Watls' Rep. 305. But in a sale under a chan- (1) These provisions do not extend to an implied covenant of quiet enjoyment in a lease of a term of years. Such a lease is held not to be a conveyance of lands. Tone v. Brace, 11 Paige B. B66. 522 OF REAL PROPERTT. [Pai-t VL provisions leave the indemnity of the purchaser for fail- ure of title, in cases free from fraud, to rest upon the express covenants in the deed ; and they have wisely reduced the law on this head to certainty and precision, and dismissed all the learning of warranties, which abounds in the old books, and was distinguished for its abstruseness and subtle distinctions. It occupies a very large space in the Commentaries of Lord Coke, and in the notes of Mr. Butler ; and there was no part of the English law to which the ancient writers had more fre- quent recourse, to explain and illustrate their legal doctrines. Lord Coke declared " the learning of warranties to be one of the most curious and cunning learnings of the law ;" but it is now admitted by Mr. Butler to have become, even in Eng- land, in most respects, a matter of speculation rather than of use. The ancient remedy on the wa/rrantia chartce had, how- ever, this valuable incident; when the warrantor was vouched, and judgment passed against the tenant, the latter obtained judgment simultaneously against the warrantor, to recover other lands of equal value. This was the consolidation of the original action with the remedy over, without the expense and delay of a cross suit.^ The remedy by the ancient warranty never had, as I pre- sume, any practical existence in any part of the United States, and personal covenants have superseded the old warranty ; and they do not run with the land, but affect only the cove- nantor, and the assets in the hands of his representatives after his death.i" The remedy is by an action of covenant against ceiy decree, it has been held, that after distribution of the purchase money, the purchaser, though aftei-wards evicted by a superior title, cannot have the sale re- scinded by the coui't. He must submit to his loss. Glenn v. Clap, 11 Gill <& John- son, 1. Nor does a sale by a trustee in breach of trust conclude the cestui que trust. Blackston v. Hemsworth Hospital, Duke on Charitable Uses, 644. » By the civil law, and also by that of France, and by the Louisianian code, if the buyer, who is sued, fails to cite his vendor in warranty, the latter is not liable for the costs and damages resulting from defending the action. The vendor called in warranty may either defend the suit, or abandon the defence, if he deems it hope- less. The Spanish law went to a severe extent, and by it the buyer, who failed to cite his vendor in warranty, lost all recourse on him. Delacroix v. Cenas, 20 Mar- tin's Louis, Rep. S56. ' It has been doubted, in Vii'ginia, whether a pui'e warrantia chartce would lie in that state, since voucher was done away by statute. The technical words of a warranty were Ego et heredes mei warrantizahimus in perpetuum. But it was held lee LXVIL] OF REAL PROPERTY. 633 the grantor, or his real or personal representatives, to recover a compensation in damages for the land *lost *471 upon eviction for failure of title. »■ Upon eviction of the freehold, no personal action of covenant lay at common law upon the warranty. The party had only a writ of war- rcmtia cha/rtm upon his warranty, to recover a recompense in value to the extent of his freehold. But if the eviction did not defeat the freehold, and only interrupted the possession for a term, as by lease for years, in that case the party evicted might have covenant.'' The introduction of the personal cove- nants in lieu of the ancient warranty, has done away the value of this distinction ; and the usual personal covenants inserted in a conveyance of the fee, are, 1. That the grantor is lawful- ly seised ; 2. That he has good right to convey ; 3. That the land is free from incumbrances; 4. That the grantee shall quietly enjoy ; 5. That the grantor will warrant and defend the title against all lawful claims. The covenants of seisin, and of a right to convey, and that the land is free from in- that the covenant, ia a deed of bargain and sale, that the grantor would warrant and for ever defend, was a personal covenant, and the bargainee was not driven to his ancient writ of warrantia chartce: Tabb v. Binford, 4 Leiyh, 132. The cove- nant of warranty, says Mr. Justice Story, in Stoddard v. Gibbs, 1 Sumner's Hep. 263, is in this country deemed a personal covenant, and may not authorize a re- coveiy over of the value from the heir, if he has assets, in a warrantia chartas, but only in an action of covenant ; yet that does not prevent the covenant of warranty from operating as a bai" to the title of the heir by way of rebutter, when it de- scends upon him fi'om the warrautbg ancestor. * If land be talien by statute for public purposes, upon compensation being made, such an eviction is not by reason of defect of title, and is not within the meaning of the covenant for quiet enjoyment. Frost v. Ernest, 4 Wharton, 86. If an entii'e failui-e of title be shown, the purchaser may recover back the price paid without eviction. Laurens v. Gamier, 10 Robinson, Louis. Rep. 425. '' Pincomb v. Rudge, Hobart'a Rep. 3. Yelv. 139. S. C. If the grantee accepts a deed without covenants, and the case be free from fraud, he cannot recover back the consideration money, though the title fails. Frost v. Raymond, 2 Gained Rep. 188. Yeates, J., in \ Serg. & Rawle, ii^ . Commonwealth v. Clanachan, 4 Ran- dolph, 482. Abbott v. Allen, 2 Johns. Ch. Rep. 523. Emerson v. County of W., 9 Greenleaf 88. Lighty v. Shorb, 3 Penn. Rep. 462. Kj-ause v. Reigel, 2 ^VImr- ton, 385. Caveat emptor is a fixed maxim in such cases, equally applicable to the transfer of lands and chattels. Maney v. Porter, 3 Hump. 2'enn. Rep. 347. If laud be sold in the absence of fraud, or of any particular agreement in favour of the title, the purchaser takes the title at his own risk, and a failure of title cannot be set up as a defence to the note given for the purchase. Owings v. Thompson, S Scammon Rep. 502. 524: OF REAL PROPERTY. [PartTI. cumbrances, are personal covenants, not running with the land, or passing to the assignee ; for, if not true, there is a breach of them as soon as the deed is executed, and they be- come choses in action, which are not technically assign- able.'' (1) But the covenant of warranty, and the covenant for quiet enjoyment, are prospective, and an actual ouster or eviction is necessary to constitute a breach of them.^ They are, therefore, in the nature of real covenants, and they run with the land conveyed, and descend to heirs, and vest in as- signees or the purchaser. (2) The distinction taken in the • Bradshaw's case, 9 Co. 60. Muscot v. Ballet, CVo. 7.369. Glinieter t. Audley, T. Raym. 14. Hamilton v. Wilson, 4 Johns. Mep. 12. Logan v. Moulder, 1 Arkansas Hep. 323. Zomaa^s Dig. vol. ii. 271. Clark v. Swift, 3 Metcalf, 390. Greenby V. Wilcox, 2 Johns. Rep. 1. Keer v. Slia-w, 13 ibid. 236. Booth v. Stark, 1 Conn. Rep. 244. Mitchell v. Warner, 5 ibid. 597. Withy t. Mumford, 5 Cowen's Rep. 137. Bimey t. Hann, 3 Marshals Rep. 224. Innis v. Agnew, 1 Ohio Rep. 389. Parsons, Oh. J., in Marston v. Hobbs, 2 Mass. Rep. 439. Bickford v. Page, ibid. 455. Chapman v. Holmes, 5 Halsteds Rep, 20. Gai-field v. Williams, 2 Vermont Rep. 327. Ch. J., in Thayer v. Clemence, 22 Pick. 493. The covenant of vran-anty is not broken without eviction by paramount title, and many circumstances have have been held to be tantamount to an ouster in some of the states and denied in others. See the cases pro and con cited by Mi-. Wilcox, in his leai-ned note to 10 Ohio Rep. 317 — 335. In Wew-Hampshii-e, Massachusetts and Ohio, a seisin in fact, and whether by right or wrong, has been held to satisfy the covenant of seisin. 1 N. H. Rep. 175. 2 Mass. Rep. 439. 3 Ohio Rep. 220. 307. But this construction of the covenant of seisin does not do it justice, and it does not prevail in other states. ^ Emerson v. Proprietors in Minot, 1 Mass. Rep. 464. Kelly v. Dutch Church, 2 Hill's Rep. 105. If the ouster be lawful, the tenant may yield to a dispossession, and have his remedy on his covenant without involving himself in a law suit to defend a bad title. Hamilton v. Cutts, 4 Mass. Rep. 349. Mi". Justice Wilde, in Sprague v. Baker, 17 Mass. Rep. 589, was inclined strongly to the opinion that if an incumbrance be enforced and discharged after an assignment by the covenantee, the assignee ought to be able to sue on it as principally concerned in it (1) If the grantor covenant that he has seisin, but has none, and the grantee is evicted, though under a mortgage -which he had assumed, but neglected to pay, this will be no defence by the grantor to an action on the breach of the covenant of seisin, feingham v. "Weiderwax, 1 CoTtist. Ii. 509. So, a covenant of seisin is broken, if the grantor, at the time of the conveyance, do not own such things ailixed to the freehold as would pass by a conveyance of the land, as a quantity of rails erected into fence. Mott v. Palmer, 1 Com^. JR. 564. A covenant to give a deed of lauds, with the usual covenants of warranty, &c., is not per- formed by merely giving such a deed where the grantor has no title ; the deed must be good in substance as well as form. Little v. Paddleford, 13 If. Ham^p. R. 167. Everson v. Kirtland, 4 Paige B. 628. (3) A covenant in a lease that the tenant shall quietly enjoy the premises free from molesta- tion from or by any person, is not brolicu by a forcible disturbance by a mob, against the will of the covenantor. Surget v. Arighi, 11 3, d; Jfarsli. Ji. ST. See, also, Eantin v. Eobertson, 2 Stroih. It. 866. Lee LXVII.] OP REAL PROPERTY. 525 American cases is supported by the general current of Eng- lish authorities, which assume the principle that cove- nant does not *lie by an assignee, for a breach done ^*i72 before his time.* On the other had, it was decided by the K. E., in Kingdon v. Nottle^ that a covenant of seisin ■ Lewis V. Ridge, Gro. K 863. C (1) Da-vis V. Smith, 5 Geo. R. 274. Eingtam v. ■Weiderwax, 1 Camat. E. 509. Cathcart v. Bowman, 5 Barr'a B. 317. Lee LXVIL] OF REAL PROPERTY. 531 the subsisting incumbrances absorb the value of the land, and the quiet enjoyment be disturbed by eviction by paramount title, the measure of damages is the same as under the cove- nants of seisin and of warranty. The uniform rule is, to allow the consideration money, with interests and costs, and no more. If the incumbrance has not been extinguished by the purchaser, and there has been no eviction under it, he will re- cover only nominal damages, inasmuch as it is uncertain whether he would ever be disturbed.'' If, however, the grantor had notice to remove the incumbrance, and refused, equity would undoubtedly compel him to raise it, and decree a general performance of a covenant of indemnity, though it sounds only in damages.'' The ultimate extent of the vendor's responsibility, *under all or any of the usual *477 covenants in his deed, is the purchase money, with interest ; and this I presume to be the prevalent rule through- out the United States." Tenn. Sep. 447. Lowther v. The Commonwealth, 1 Sarr. & Munf. 202. Crea- shaw v. Smith, 5 Munf. Rep. 415. Stout T. Jackson, 2 Rand. Rep. 132. Stewart V. Drake, 4 Hahted^s Rep. 189. Bennett T. Jenkins, 13 Johns. Rep. 60. Phillips v. Smith, North Carolina Law Repository, 475. Cox v. Strode, 2 Bihb's Rep. 272. Brooker v. Bell, S ibid. 175. The rule in Virginia has heen fluctuating. In Mills V. Bell, 3 CalVs Rep. 326, it was the value at the time of eviction. In iTelson v. Matthews, 2 Harr. do Munf. 164, it was the value at the time of the contract; and the discussions and decisions in Stout v. Jackson, liave settled the rule in that state, that the proper measure of damages is the value of the land at the time of the waiTanty ; and the purchaser does not recover of the vendor the value of his im- provements. See, also, to the S. P. in Vu-ginia, Threlkeld v. Fitzhugh, 2 Leigh, 451. The party evicted, recovers on his warranty, the purchase money, with interest from the eviction, and the coats and damages thereon. See, also, in support of the general rule, Blackwell v. The Justices of Lawrence County, 1 Blackford's Ind. Rep. 266, note. Sheets v. Andrews, 2 ibid. 274. Admr. of Backus v. M'Coy, 3 Ohio Rep. 221. The just measure of damages for breach of covenant to convey land, is the value of the land at the time the conveyance was to be made. M'Kee v. Brandon, 2 Scammon's III. Rep. 339. ■ Prescott V. Trueman,4 Mass. Rep. 627. Delavergne v. Korris, 7 Johns. Rep. S5S. •i Funk V. Voneida, 11 Ser//. d Rawle, 109, where the authorities are collected aud enforced in the learaed opinion of Mr. Justice Duncan ; and where he shows the ancient rule, under the writ of warrantia charice qui timet implicari. ' Pitcher v. Livingston, 4 Johns. Rep. 1. Caswell v. Wendell, 4 Mass. Rep. 108, Bickford v. Page, 2 ibid. 455. Sumner v. Williams, 8 Mass. Rep. 162. 221. Nich- ols V. Walter, 8 Mass. Rep. 243. Logan v. Moulder, 1 Arkansas Rep. 323. If the vendor has title, and refuses to convey according to contract, or disables himself 532 OF REAL PROPERTY. [Part VI. If the eviction be only of a part of the land purchased, the damages to be recovered under the covenant of seisin are a ratable part of the original price ; and they are to bear the same ratio to the whole consideration that the value of the land, to vrhich the title has failed, bears to the value of the whole tract. The contract is not rescinded, so as to entitle the vendee to recover back the whole consideration money, but only to the amount of the relative value of the part lost.'' The Freinch coda adopts the same rule of compensation on eviction of part only of the subject ; but it allows the whole sale to be vacated, if the eviction be of such consequence, relatively to the whole purchase, that the purchase would not have been made without the part lost. This has the ap- pearance of refined justice ; but the prosecution of such an inquiry must, in many cases, be very difficult and delusive ; and this part of the provision, allowing the contract to be rescinded, has been dropped in Louisiana.'' The measure of compensation for a deficiency in the quantity of land, in the case of a sale by the acre, unattended by special circum- stances, has been assumed, in some cases, to be the average, and not the relative value.*^ But in cases of eviction of a spe- cific part, justice evidently requires that the relative, *4:78 instead of *the average value, be taken as the rule of computation ; for though the part lost may not be one-tenth part of the quantity of land purchased, it may be from conveying by selling to a stranger, the rule of damages is the value of the land when the conveyance ought to have been made. Dustin v. Newcomer, 8 Ohio Rep. 49. Hopkins v. Lee, 6 Wheaton, 109. Hopkins v. Yowell, 5 Verger's Rep. 305. Upon a covenant against Incumbrances, the rule of damages is the amount paid to extinguish the incumbrance, provided the same does not exceed the consi- deration money and interest. Foote v. Burnett, 10 Ohio Rep. 317. Where the conduct of the vendor is fraudulent, the vendee is not limited to the rule of dama- ges, viz., the purchase money with interest, but his claim will be permitted to reach the value of the land at the time of the breach, with interest. Wilson v. Spencer, 11 LeigKs Rep. 2G1. » Morris V. Phelps, 5 Johns. Rep. 49. Guthrie v. Pugeleys, 12 ibid. 126. Dim- mick V. Lockwood, 10 WendeU,\i% See, also, Beauchamp v. Damory, Year Book, 29 Edw. ni., 4, and 13 Edw. IV., 3. Gray v. Briscoe, Koy's Rep. 142. Dig. 21. 2. 1. 13. Ibid. 1. 64, sec. 3. Pothier, Traite du Cont. de Vente, Ifos. 99. 139 142, all which cases are cited in Morris v. Phelps. >> Code Napoleon, sa-t 1636, 163*1. Civil Code of Louisiana, No. 2i90. = 2 Barr. & Munf. 178. 4 Munf. 332. Lee. LXVIl] OF REAL PROPERTY. 533 nine-tenths of the value of the whole ; or it may be one-half part of the land sold, and yet it may be the rocky or the bar- ren part of the farm, and not one-hundredth part of the value of the remaining moiety. The French law, prior to the revolution, gave to the buyer a compensation for improvements, and the increased value of the land, in addition to the restitution of the price, with inter- ests and costs. It was founded on the Eoman law ; but the pro- vision was destitute of fixedness and precision.'' The Code Ifapoleon^ has rescued the rule from the guidance of loose and arbiti-ary discretion, and reduced it to certainty. It allows the purchaser, on eviction, to recover the price, and the mesne profits which he is obliged, to pay to the owner, and his costs and expenses, and the increased value of the lands, independ- ent of the acts of the purchaser, and also the beneficial im- provements which he may have made. The rule in the French law does not operate with equality and justice. The vendor is bound to pay for the increased value of the land ; and yet if it happens to be diminished in value at the time of eviction, the vendor is not less bound to refund the purchase money. The Civil Code of Louisiana"^ has closely copied the general provisions of the French code on the subject ; but it has omitted this inequality of regulation ; and it likewise con- fines the recovery to the price, mesne profits, costs and spe- cial damages, (if any,) and beneficial improvements. Both the French and Louisianian codes make the seller pay even for the embellishments of luxury expended on the premises, if he sold in bad faith, knowing his title to be unsound. *The rule of the common law, and the one most pre- *4:T9 valent in this country, appears to be moderate, just and safe. The French rule in the code is manifestly unjust. I * Pothier, I'raitedu Oont.de Vente,'Sos. 132 — 141. Inst. Droit Franfois, -pax Argou, torn. iL liv. 3, c. 23. It was declaimed in EdiFards v. Martin's Heirs, 19 Louis. Rep. 284, on a learned discussion of the Roman law, that by that law the purchaser jQ a case of warranty must be indemnified to the extent of the interest he had in not being evicted, but the damages were not to exceed the value of the subject- matter of the contract, or the highest damages within the contemplation of the parties at the time of the conti'act. >■ Art. 1630—1641. » Art 2482—2490. 534: OF EEAL PROPERTY. [Part VI cannot invent a case, said Lord Kames,!^ where the maxim cujus commodum ejus debet esse incommodum is more directly applicable. If the price at the time of the eviction be the standard for the buyer, it ought to be equally so for the seller. The hardship of the doctrine, that the seller must respond, in every case, for the value of the land at the time of eviction, and for useful improvements, consists in this, that no man could ever know the extent of his obligation. He could not venture to sell to a wealthy or enterprising purchaser, or in the vicinity of a growing town, without the chance of absolute ruin.'' The want of title, in cases of good faith, is a matter of mutual error ; for the buyer investigates the title when he buys ; and the English rule would appear to be the most prac- ticable, certain and benign in its application. The manner of assigning breaches on these various cove- nants, depends upon the character of the covenant. In the covenant of seisin, and in the covenant that the covenantor has good right to convey, it is sufficient to allege the breach by negativing the words of the covenant. "= But the covenants for quiet enjoyment, and of general warranty, require the assignment of a breach by a specific ouster or eviction by a pax-amount legal titlci^ So, in the case of the covenant against incumbrances, the incumbrance must be specifically stated. These are some of the general and universally acknowledged rules, that apply to the subject ; and it has been held not to be necessary to allege an ouster, or eviction, on a breach of a » Principles of Equity, Tol. i, 289. ' Principles of Equity, vol. i. 288 — S02. ° It haa been held in some of the states, that the covenant of seisin was satisfied if the grantor was seised in fact claiming a fee. Manton v. Hobbs, 2 3{ass. Rep. 433. Twambly v. Hinkey, 4 ibid. 441. Prescott v. Trueman, ibid. 627. Willard T. Twitchell, 1 N. H. Eep. 111. But other decisions hold that there must be a legal seisin in fee to answer the coTCnant. Lockwood v. Sturdevant, S Conn.. Rep. 305. Richardson v. Dorr, 5 Vermont Rep. 1 ; and these latter decisions con- tain, it is apprehended, the true rule of the common law. ^ Kortz T. Carpenter, 5 Johns. Rep. 120. Forman v. Wells, IT Wendell, 160.. Mitchell V. "Warner, 5 Conn. Rep. 497. 522. Beddoe v. Wadsworth, 21 Wendell^ 120. But a judgment of CTiction, or a decree divesting the grantee of his right, is sufficient to sustain the action upon the warranty, without showing an actual re- moval from the land. Hanson v. Buckner, 4 Dana's Ken. Rep. 254. (1) (1) Fowler v. Polang, G BarT). S. C. Jiep. 165. Lee LXVII.] OF REAL PROPERTY". 535 covenant against incumbrances, but only that it is a valid and subsisting incumbrance. A paramount title in a third per- son, or a public highway over the land, are held to be incum- brances within the meaning of the covenant ;=• though the existence *of such a public highway would not be *480 a breach of the covenant of seisin.'' 5. Of the several species of conveyances. Sir "William Blackstone'' divides conveyances into two kinds, viz., conveyances at common law, and conveyances which receive their force and efficacy from the statute of uses. The first class is again subdivided into original or primary, and derivative or secondary conveyances. As some of those conveyances have grown obsolete, and as the principles which constitute and govern all of them have been already discussed, it will not be requisite to do more than take a cursory view of those which are the most in practice, and of the incidental learning connected with the subject. "i (1.) Of feoffment. Feoffment was the mode of conveyance in the earliest pe- riods of the common law. It signified, originally, the grant of a feud or fee ; but it came, in time, to signify the grant of • Prescott V. Trueman, 4 Mass. Rep. 62*7. Kellogg v. Ingersoll, 2 ibid. 97. Pi-ichard ¥. Atkinson, 3 N. B. Rep. 335. ^ Whitbeck t. Cook, 15 Johns. Rep. 483. In a note to 10 Ohio Rep. pp. 317 — 335, the editor, Mr. Wilcox, has given a condensed and accurate view of the ancient law of warranty ,.and of the modern covenants as a substitute. Mr. Sedgwick, in bis very learned Treatise on the Measure of Damages, has laboriously and fully col- lected the decisions in the several states on the local rule of damages in actions for breach of real covenants, (eh. 6, pp. 150 — 204,) and to that treatise I must refer, for it would be quite foreign from this work to notice, analyze and criticize the numei'ous diverse decisions on the subject. I have noticed many of them as mi- nutely as the plan of these Commentaries would pei-mit. ' Com. vol. ii. 309. and the ancient doctrine, as it ex- isted when Bracton wrote, has been continued to modern times, giving to the feoffment its primitive operation. Dis- seisins by election are those acts which are no disseisins unless the party chooses to consider them to be such, and which are not in themselves disseisins. The disseisin which is produced by a feoffment, answers every description of an actual dis- seisin. Whether the feoffment was made by a person seised of an estate of freehold, or by a person having only the pos- session as a tenant for years, at will or by sufferance, the effect was the same. The disseisin gave to the feoffee, against every person but the disseisee, an intermediate estate of free- hold, with its rights and incidents ; so that the wife of the feoffee became entitled to dower, and the husband to his cur- tesy ; and the descent to the heir of the feoffee tolled the entry of the disseisee. The tenant was expelled from his fee, and the feoffee usurped his feudal place and relation ; and he be- came a good tenant to the prmcipe of every demandant ; though the true owner's right of entry upon him was not taken away. The uniform language of the books which treat of disseisins by feoffments, describes the feoffee as having an immediate estate of freehold, and as having acquired a seisin in fee as against strangers. The disseisin produced by a feoffment, meant, according to Mr. Butler and Mr. Preston, an actual disseisin, and not one at the election of the party ; and the feoffee continued vested with the freehold until the disseisee, by entry or action, regained his possession ; and of that right of entry, or of action he might be barred in process of time. The character and effect of a feoffment and disseisin, ac- cording to the ancient and strict notion of them, were ably illustrated and supported by Mr. Knowler, in his argu- • Bracton, lib. 2, c. 5, sec. 3, 4. ^ Oo. Liu. 48, b. 49. a. 2 InUAl'i, 413. Bullock v. Dibler, Popham's Rep. 38. PerMns, sec. 212. lee. LXVII.] OF RKAL PROPERTY. 541 ment *in Taylor v. Horded- The doctrine of the court, *4:86 in that case, was somewhat different from the view which Mr. Butler has given of the operation of a feoffment. The opinion of Lord Mansfield has been much questioned by him and others, who deny that the efiScacy of the feoffment is lost ; and they insist that it does stiU vest an actual estate of freehold by disseisin. According to Mr. Preston,"" whenever a person entei's into land without title, and claims a fee, he is a disseisor, and acquires a seisin in fee. So, if a termor makes a feoffment, he gains a freehold by disseisin. The great strug- gle which commenced with Lord Mansfield, between the courts at Westminster, and the adherents of the ancient con- sequences of a feoffment, is, that the latter are tenacious of holding the feoffment to its primitive operation, by which it passed a fee, by wrong as well as by right, and disseised the true owner ; whilst the former are disposed to check, as much as possible, the application of the unreasonable and noxious qualities of the feoffment, and confine its operation within the bounds of truth and justice. The doctrine in Taylor v. Horde was, that if a tenant for life or years should make a feoffment, the lessor might still elect whether he would consider himself disseised ; and that, except in the special instance of a fine with proclamations, there was no case in which the true own- er might not elect to be deemed not disseised, provided his entry was not taken away. In Jerritt v. Weare,'^ the court of exchequer were disposed to follow the spirit of the case of Taylor v. Horde, and disarm the doctrine of disseisin of much of its ancient severity, and formidable application. They adopted the doctrine in Bliinden v. Baugh,^ that whether there was an actual disseisin or not *depend- *487 ed upon the character and intention of the act. A lease for years to a stranger, by a tenant at will rendering rent, was held, in the case from CroTce, to be a disseisin only at the election of the owner ; and, in the exchequer case, a lease by a stranger, and entry under it by the lessee, was put upon the • 1 Burr Rep. 60. Mr. Preston says that the argument of Mr. Knowler, and not the docb-ine of Lord Mansfield, states the law most correctly. '' Preston on Abstracts, vol. ii. 390. 392. « 3 Price's Ex. Hep. 576. ^ Cro. 0. 302. 642 OF REAL PROPERTY. [Part VI. same ground. Every disseisin is a trespass, but erery tres- pass is not a disseisin. A manifest intention to oust the real owner must clearly appear, in order to raise an act which may be only a trespass to the bad eminence of disseisin. In Oood/right v. Forester^^ the court censured and condemn- ed the ancient doctrine of estates arising by disseisin, as they did also in Jerritt r. Weave. The opinion of Lord Mansfield received still more decided confirmation by the unanimous decision of the K. B., in Doe v. Lynes> It was there held, that a feoffment did not operate to destroy a term for years, when made without the consent of those who had the term. Lord Tenterden declared, that there was so much good sense in the doctrine of Lord Mansfield, that he should be sorry to find any ground for saying it could not be supported. A feoffment by a stranger would be void, if there was a lessee for years in possession, who did not assent to it. To attempt to turn a term into a wrongful fee with all its inequitable conse- quences, by the old exploded notion of the transcendant ope- ration of a feoffment, was pointedly condemned. The nature of a feoffment and disseisin were said to be materially altered since Littleton wrote. The good sense and liberal views which dictated the decision in Taylor v. Horde., seem to have finally prevailed in Westminster Hall, notwithstanding the strong opposition whiqh that case met with from the profession. The courts will no longer endure the old and exploded theoiy of disseisin. They now require something more than mere feoff- ments and leases, to work, in every case, the absolute *488 and perilous consequences of a '-disseisin in fact. Those acts are a disseisin only at the election of the real owner, and are not, in all cases, absolutely and inevitably 60. It will depend upon the intention of the party, or it will require overt acts that leave no room to inquire about inten- tion, and which amount to actual ouster in sjjite of the real owner. , Mr. Preston, in his discussion of titles imder seisin and disseisin, <= adheres to the strict doctrines of the old com- mon law ; and he severely condemns the judgment in Taylor • 1 Taunt Jiep. B'iS. >■ 3 Barnw. & Cross. 388. « Preston on Abstracts, vol. ii. 2V9 — 296. Lee. LXVII] OF REAL PROPERTY. 543 V. Horde, as "confounding the principles of law, and produ- cing a system of error." Mr. Butler, also, though more tem- perately and more ably, attacks its conclusions, while he ad- mits the case was decided with much consideration and infi- nite ability. These writers serve, at least, to show the spirit of fi'ee inquiry and of uncompromising hostility to innovation, which animates the English property lawyers, and impels them to stand watchful and intrepid sentinels over the ancient jurisprudence. While we admire their independence and patriotism, we think it would be deeply to be lamented, if we were obliged, at this day, to call into practice the extrava- gant consequences of disseisin, after feudal tenures, and the assurance by feoffment itself, and the reasons which gave such tremendous effects to disseisins, had all become lost and buried in oblivion. ^^ *In this country, the decision of Lord Mansfield has *489 not met with entire approbation ; and the late and learned Chief Justice Parsons declared, that his lordship had not gone to the bottom of the matter, and had puzzled himself unnecessarily. I cannot acquiesce in the accuracy of this cen- sure ; and it appears to me that Lord Mansfield gave to a ' I presume Mr. Preston to be the same counsel who argued the cause of Good- right V. Forester, in the exchequer- chamber, in 1809. 1 Taunt. Rep. 678. In that case, Sir James Mansfield, in delivering the judgment of the court, observed, that if the doctrine of estates arising by disseisin "was such as had been stated by Mr. Preston, he should lament that the law was such. " Our ancestors," he ob- served, " got into very odd notions on these subjects, and were induced, by partic- ular cases, to make estates gi-ow Lord Coke says, that the word grant {eoncessi) may amount to a grant, a feoff- ment, a gift, a lease, a release, a confirmation, a suiTendei', Ac. ; and it is in the election of a party to use it to which of these purposes he will. Co. Litt. 301, b. The word convey, or the word assign, or the word transfer, would probably be sufficient. It is made the duty of the courts, in the consb-uction of every instru- ment conreying an estate, " to carry into effect the intent of the parties ; " and that intent may as certainly appear by these words as by any other. ' Mr. Humphreys, in his Outlines of a Code, proposed that the name of all deeds should be conveyance, and the operative word convey. Leo. LXVII.] OF REAL PROPERTY. 547 It will be unnecessary to enlarge upon conveyances of a special or secondary character, as exchange, partition, con- firmation, surrender, assignment and defeasance ; and with- out dwelling upon them, I shall proceed at once to the consi- deration of conveyances, which owe their introduction, and universal practice, to the statute of uses. (3.) Of the covenant to stand seised to uses. By this conveyance, a person seised of lands, covenants that he will stand seised of them to the use of another. On exe- cuting the covenant, the other party becomes seised of the use of the land, according to the terms of the use ; and the statute of uses immediately operates, and annexes *the *493 possession to the use. This conveyance has the same force and effect as a common deed of bargain and sale ; but the great distinction between them is, that the foi'mer can only be made use of among near domestic relations, for it must be founded on the consideration of blood or marriage. No use can be raised for any purpose by this conveyance, in favour of a person not within the influence of the domestic considera- tion ; and it makes no difference whether the grantee, if he be a stranger to the consideration, is to take on his own account, or as a mere trustee for some of the family connections. He is equally incompetent to take.^ The existence of another consideration, in addition to that of blood or marriage, will not impede the operation of the deed. Covenants to stand seised are a species of conveyance said to be no longer in use in England,!' as no use would vest in a stranger, to whom the consideration of blood did not extend.'^ They owe their efficacy to the statute of uses ; and, in New- York, the statute of uses is abolished, and no mention is made of this conveyance. But if the covenant to stand seised be founded on the requisite consideration, it would be good as a grant, for there could be ■ Lord Paget'a ease, 1 Leon Rep. 196. 1 Co. 154, a. Wiseman's case, 2 Co. 15. Smith T. Ridley, Oro. 0. 529. Hore v. Dix, 1 Sid. Rep. 25. Jackson v. Sebring, 16 Johns. Rep. 615. ■> 2 Saunders on Uses and Trusts, 82. But this species of conveyance is not un- known in practice in this countiy. Jackson v. Sebring, supra. French v. French, 3 N. H. Rep. 239. • Cross T. Faustenditch, Cro. j; 181. 5i8 OF REAL PROPERTT. [Part VI, no dispute about the intention ; and it is admitted, that in a covenant to stand seised, any words will do, that sufficiently indicate the intention. ^^ (1) It is a principle of law, that if the form of the conveyance be an inadequate mode of giving effect to the intention, according to the letter of the instrument, it is to be construed under the assumption of another character, so as to give it effect. Cum quod ago non valet ut ago, valeai quantum valere potest. The qualification to this rule is, that the instrument must partake of the essential qualities of the *494: deed assumed ; and, therefore, no instrument can *ope- rate as a feoffment without livery, either shown or pre- sumed ; nor as a grant, unless the subject lies in grant ; (as it now does in JSTew-Tork in all cases of the freehold,) nor as a covenant to stand seised, without the consideration of blood or marriage ; nor as a bargain and sale, without a valuable consideration. (2) If there be no lease to make the deed good as a release, and no livery to make it good as a feoffment, it may operate as a bargain and sale, or if a release cannot ope- rate because it attempts to convey a freehold in futuro, it will be available as a covenant to stand seised, provided there be the requisite consideration.'' (4.) Of lease and release. This was the usual mode of conveyance in England down to the year 1841, because it did not require the trouble of enrolment. It was contrived by Sergeant Moore, at the request of Lord ISTorris, for a particular case, and to avoid the unpleasant notoriety of livery or attornment. It was the » Doe T. Salkeld, Willes' Rep. 673. Roe v. TranmaiT, id. 682. Hayes v. Ker- sha-w, 1 Sandford Ch. Rep. 258. In this last case, in -whicli the learned Assistant Vice Chancellor, in his able judgment in support of a conveyance as a covenant to stand seised to uses, considered it to be settled that collateral consanguinity wa.* not a meritorious consideration. ^ Doe V. Salkeld, Willes' Rep. 673. Preston on Abstracts, vol. i. "Zl. 312. Roe V. Tranmarr, Willes' Rep. 682, with the notes annexed to the case, as reported in Smith's Leading Cases, vol. ii. Ibid. vol. iji. 23, 24. Cheney v. Watkin.s, 1 Harr. be valid conveyances in the North Oatolina Revised Statutes, 1737, toL i. 201. Lee. LXVII] OF REAL PROPERTY, 563 solemn and public mode of conveyance, with such a short bar bj non-claim, was resorted to in special cases, where title had become complex, and the property was of great value, and cost- ly improvements were in immediate contemplation. Doctor Tucker recommended a resort to it, in Yirginia, on this very account.^ In our large cities, where land is exceedingly valu- able, and very expensive erections are constantly making, it may be desirable that the certainty of the title should be established within a shorter period than twenty years. This is the only objec- tion that could possibly be made to the abolition of the convey- ance by fine ; for, as to the notoriety of the transfer, it is by no means equal to the record of a deed in the county where the lands are situated, and where all persons are accustomed to resort, as being the only place for information. In point of fact, the levying a fine, with us, may be considered to partake of secrecy, for it never attracts public observation. But when we come to consider the state and condition of real property in England, where conveyances are not, in general, required to be recorded, a formal proposition to abolish fines was not to have been anticipated. The circumstances of the two countries are totally different. I should suppose that there must be great veneration justly due to a system of transfer by record, which has exhausted so much cultivation, which has been transmitted down, in constant *activity, *499 from distant ages, and on whose foundations the best part of English real property reposes. In Sergeant "Wilson's Essay on Fines, they are said to be " the strength of almost every man's inheritance." Such a great innovation may have an unpropitious influence upon the character, policy and sta- bility of the English jurisprudence. It will, however, favourably abi'idge the labours of students, and make great havoc in an English law library. Yolume after volume, filled with essays and adjudications upon fines and recoveries, will be consigned to oblivion.'' " Tucker's Blacks, vol. ii. 355, note. '' Besides the extended view of the law of fines and recoveries, in all the abridg- ments of the law, and in Sheppard's Touchstone, there are the treatises of Pigott, Wilson, Cruise, Preston, Bayley and Hands, on fines and recoveries. The English put more to hazard, in meddling with their jurisprudence, than any other European nation ; and they ought to be more jealous than any other, of the spirit of innova- 654 OF REAL PROPERTY. [Part VI. tion and codification wLich is abroad in the land. Wlien a free people have their constitution and system of laws well established, construed and understood ; when their- usages and habits of business have accommodated themselves to then- institu- tions, and especially when they are secure in theii' persons and property, under an able and impartial administration of justice, they ought, above all things, to beware of theoiy, for " in that way madness lies." Since the above note was penned, the statute of 3 Dig. 28. 1. 1. Vinnius thinks, however, that it would be a more perfect defi- nition, to say, Testamentum est suprema contestatio in id solenniter facta, ut qicem volvmus, post mortem nostrum habeamus hceredem. Vinn. Com, in Inst. lib. 2, tit. 10. Ftym. sec. 2. (1) An instrament may operate as a deed in one part, and as a will in another. Eobinson v, Schly, 6 Georgia It. 515. 556 OF REAL PROPERTY. [Pai-tVI. our nature, by placing us under the irresistible influence of the domestic affections, has sufficiently guarded against any great abuse of the power of testamentary disposition, by con- necting our hopes and wishes with the fortunes of our pos- terity. In the primitive age of many nations, wills were un- known. This was the case with the ancient Germans, and with the laws of Lycurgus, and with the Athenians before the age of Solon. ^ But family convenience, and a sense of the absolute right of property, intrt)duced the use of testaments, in the more advanced progress of nations. The Attic laws of Solon allowed the Athenians to devise their estates, provided they had no legitimate children, and were competent in mind, and not labouring under any personal disability. If they had children, the power to devise was qualified ; and it allowed the parent to devise if the sons died under the age of sixteen ; or, in the case of daughters, with the condition that the devi- sees should take them in marriage ; and no devisee was allowed to take possession of the estate, except under the adjudication of a court of justice. The introduction of the law of devising, by Solon, was accompanied with great fraud and litigation ; though his laws are said, by Sir William Jones, to have had the merit of conciseness and simplicity. •> * Successores sui cuigue liberi, et nullum testamentum. Tacit. M. G. c. 20. Tay- lor's JSlem. of the Civil Law, 522. 524. Jones' Com. on Iscmis. According to Vin- nius, in his Com. on the Institutes, lib. 2, tit. 2. Etym. sec. 4, tlie restraint upon the devise of real estate existed, in his day, "with the Poles, Swedes, Danes and some parts of Germany. Among the Jews, the father could not devise the inheritance from the regular line of succession. Antiquities of the Jewish Mepui- Kc,hj Th. Leuois, vol. iii. 324, 325. >* Plutarch's Life of Solon, hj J. (b W. Langhorne. Jones' Isaus, pref. Dis. on the Attic Laws. The speeches of Isebus related chiefly to the abuses of the law of wills. The claims of heirship and of blood, were urged with vehement elo- quence, against the frauds suggested in procuring wills, or the bad passions which dictated them, or the perfidy which suppressed the revocation of them. Most of the speeches involve the discussion of the allegation of a forged will ; and they ai-e replete with the bitterest personal reproaches. In one of them, the mode of pro- curing certain and infallible evidence, by the tortui'e of slaves, is commended. These specimens of forensic discussion are the most ancient monuments extant of the kind ; but they do no honour to the morals and manners of the Athenians. Cicero [Oral. pro. L. Flacco, sec. 4, 5,) speaks most contemptuously of the charac- ter of the Greeks for probity and truth. The writings of the Greek historians, philosophers and orators, Thucydides, Xenophon, Plato, Aristotle, Iseeus and Lysias ; the striking details in the profound and searching history of Mitford, and the testimony Lee. IXVIIL] OP REAL PROPERTY. 567 Prior to the time of the decemvirs, no Eoman citizen could break in, by will, upon the order of succession, unless the act was done and permitted in the assembly of the people. But wills were allowed at Kome by the twelve tables, and they gave the power to an unlimited extent, which was afterwards qualified by the interpretation and authority of the tribunals. They were executed with great ceremony, before five citizens, who were to represent the people ; and the transaction was in the form of a pui'chase of the inheritance. They were, at last, by the law of the prsetors, placed under the burdensome check of seven witnesses, who were required to afiix their seals and signatures.'^ The power of devise was checked by the Emperor Justinian ; and unless a fourth part of the in- heritance was reserved for the children, they were allowed to set aside the testament as inofficious, under the presumptive evidence of mental imbecility.'' It seems to be the better opinion, that lands were devisable, to a qualified extent, with the Anglo-Saxons. The folhland was held in independent right, and devisable by will.<= But upon the establishment of the feudal system, *at *504: the JSTorman conquest, lands held in tenure ceased to be devisable, in consequence of the feudal doctrine of non- alienation without the consent of the lord ; for the power of devising would have essentially aifected many of his rights and piivileges. There were exceptions to the feudal restraint on wills existing as to burgage tenures, and gavelkind lands.'' of St. Paul, afford abundant and sad proofs of the corruption of ancient morals. How, indeed, could sound morality and pure practice be expected among a people who had no due sense of the existence and presence of the Father of Liijhts.from. wh om Cometh down every good and every perfect gift ? « See Inst. 2. 10. 2, 3. Dig. 50. 16. 120. iVoM?, 115. 8 Gibbon's Eist. IS. Esprit des Loix, liv. 27. ■" Inst. 2. 18. pr. Ibid. sec. 1, 2, 3. Vide supra, vol. ii. 32'7. The French civil code declares, that all persons may dispose by will, excepting those whom the law declares incapable. Code Civil, sec. 902. " Spelman 071 Feuds, c. 5. Wright on Tenures, I'll. Socland was granta] by charter, and was synonymous with inheritance ; and Sir Francia Palgrave says, that testamentary dispositiona were unknown to the Teutons or Teutonic nations, and he is of the highest authority as to all Anglo-Saxon and German antiquities. "1 Launder v. Brooks, Oro. G. 561. Go. Zitt. Ill, b. In Wild's case, 6 Go. 16, it was declared, that at common law, lands were not devisable, except by custom, and in ancient cities and boroughs, of houses and small things. In the reign of 658 OF REAL PEOPERTT. [Part VI. The restraint upon the power of devising did not give way to the demands of family and public convenience, so early as the restraint upon alienation in the lifetime of the owner. The power was covertly conferred by means of the applica- tion of uses ; for a devise of the use was not considered a devise of the land. The mode of doing this was by a feoff- ment to the use of the feoffor's last will, and the feoffor being considered as seised of the use, not of the land, could devise it.a The devise of the use was supported by the courts of equity, as a disposition binding in conscience ; and that equi- table jurisdiction continued, until the use became, by statute, the legal estate. The statute of uses of 2T Hen. VIII., like the introduction of feuds, again destroyed the privilege of de- vising; but the disability was removed within five years thereafter, by the statute of wills of 32 Hen. VHI. That statute applied the power of devising to socage estates, and to two-thirds of the lands held by knight service ; and this last and lingering check was removed, with the abolition of the military tenures, in the beginning of the reign of Charles II., so as to render the disposition of real property by will absolute.'' The English law of devise was imported into this country by our ancestors, and incorporated into our colonial juris- prudence, under such modifications, in some instances, as were deemed expedient. Lands may be devised by *505 *will in all the United States ; and the statute regula- tions on the subject are substantially the same, and they have been taken from the English statutes of 32 Hen. Henry II., only one-third pai-t of the personal estate was deYisahle. The other parts went to the wife and children. Glanville, lib. '7, c. B. BlacTestone, who gives a clear and snccinct histoi-y of the law of bequests of personal property, {Oomvi. vol. ii. 491 — i93,) says that we cannot trace the precise time when the old common law restrictions were abolished; and the free disposition of chattels allowed. « HofEman, Ass. V. Ch. in 1 Hoffman's Cli. Rep.[1hZ. ^ The statute of wills, or a substitute for it, has been adopted throughout the United States ; hut not its preamble, either in letter or sphit. That preamble is a curiosity, as being a sample of the most degi'ading and contemptible servility and flattery that ever were heaped by slaves vpon ,a,master. In Scotland, down to a very recent period, almost all a man's, heritage, and a great part of his estate ac- quired by purchase, could not be devised from the lineal heii-. Lee LXVIIl] OF REAL PEOPERTY, 559 Vni. and 29 Charles 11.^ In order to gi\'e a distinct view of the outlines or elements of the law on the subject of devises, I shall proceed to consider the competency of the parties to a devise ; the things that are devisable ; the solemnities re- quisite to a due execution of the will ; and, lastly, some of the leading rules applicable to the construction of devises. II. Of the parties to a devise. The general rule is, that all persons of sound mind are com- petent to devise real estate, with the exception of infants and married women. (1) This was the provision in the English statute of wills, and, I presume, the exceptions equally exist in this country.'' But a fe-me covert, by deed of settlement ' In Louisiana, the power of disposition of property by ■will is limited to two- thirds of the testator's estate, if he leaves, at hia decease, a legitimate child ; and to one-half, if he leaves two children ; and to one-third if he leaves three, or a greater number of childi'en ; and to two-thirds, if, having no children, the testator leaves a father, mother, or both. Under the name of children are included descendants, of whatever degi-ee they be. The heirs, whose portions of the estate is thus reserved to them by law, are called^^ajetfteVs, because they cannot be disinherited, except in cases where the testator has just cause to disinherit them, and which cases ai-e defined. Civil Code, art. 1480, 1481, 1482. 1609—1617. There is much good feeling aud sympathy, and tliere is nothing unreasonable, in these very temperate checks upon the unlimited power of devise. The law of Louisiana on this subject, was borrowed essentially from the French Civil Code, art. 913, 914, 915. ^ Stat. 34 aud 35 Hen. VIII., c. 5. New-York Revised Statutes, vol. ii. 56, sec. 1. Massaehusetts Revised Statutes, 1836, pp. 416, 417. In Vu-ginia, the will of a blind man was admitted to probate. Boyd v. Cook, 3 Leigh, 32. A married woman is considered to be incapable of making a vahdwill of lands, even with the consent of her husband, and without any statute prohibition to that efiect. Osgood V. Breed, 12 Mass. Rep. 225. Marston v. Norton, 5 N. H. Rep. 205. West v. West, 10 Serg. & Rawle, 445. In Ohio, (Allen v. Little, 5 Hammond^s Ohio Rep. 65,) Illinois and Mississippi, {Revised Code of Mississippi, 1824, p. 32,) females are competent to make a will of real and personal estate at the age of eighteen ; and, in Louisiana, the wife, who has veiy extensive privileges, may make a will without the authority of her husband. In Connecticut, married women may dispose of their estates, real and personal, by will, in the same manner as other persons. Statutes of Connecticut, 1838, p. 226. In Lowe v. Williamson, 1 Green's N. J. Cli. Rep. 82, the competency of an aged testator to make a will was ably discussed. He was deemed competent if he had a mind and memory sufiiciently sound to be of a (1) Where the Chancellor is satisfied that the person against whom an inquLsition of lunacy has been found, has so far recovered as to be capable of making a will, he may permit him to make a will under the superintendence of a proper officer, without in other respects discharging the proceedings. In the Matter of Burr, 2 Sarli. Oli. B. 208. 560 OF REAL PROPERTY. [Pai-t VI. made prior to her marriage, and vesting her estate in trustees, may be clothed with a testamentary disposition of her lands ; and a court of chancery will enforce such a power made dur- ing coverture, under the name of an appointment, or *606 declaration of trust. She may devise *by way of ex- ecution of a power. =>• But the will that she makes, in such a case, must be executed with the same solemnities as if she had executed the deed while sole.'' An infant cannot, in any case, be enabled to devise through the medium of a power ; and the New- York statute specially excludes the ex- ercise of a power by a mamed woman during her infancy." Testaments of chattels might, at common law, be made by infants of the age of fourteen, if males, and twelve, if females. This was the English rule until the statute of 1 Victoria, and the testamentary power of infants is now abolished.^ The laws of the several states are not uniform on this point. In Virginia no person under eighteen years of age can make a will of chattels ;e and by the New-Yorh Revised Statutes,^ disposing miad and memory, and competent to know and understand the business in wliich he was engaged at the time he executed the "will. The interesting head of the disabilities of testators is well digested in Jarman on Wills, Boston edit 1845, vol. i. ch. 13, and I take this occasion to observe that the notes added to the edition in two volumes, by /. 0. Perkins, Esq., have given increased value to that full and excellent work, and which appears to be the most methodical and thorough treatise which we have on the subject. " See vol. ii. of this work, 1^1, aaA Neio-Yorkllcmscd StaUites, yoX.i.'Jui, sec. 110. ^ Casson v. Dode, 1 Bro. 99. ° New-York Revised Statutes, vol. i. 735, sec. 111. ^ 2 Blacks. Com. 497. Arnold v. Earle, 2 Rep. iem. Lee, by Phillimore, vol. ii. 529. The statute of 1 Victoria, ch. 26, declares that no will made by a person under age, or by a married woman, shall be valid, except such a will as might have been made by a married woman before the passing of the act ; consequently a married woman in England may still make a will of personal estate with her hus- band's consent, and a will of real or personal estate to which she may be entitled for her separate use, and she may also make an appointment by will, in pursuance of a power to be executed, notwithstanding the coverture. The statute law in Massachusetts, Vermont, Pennsylvania, also require the testator of wills, of personal as "Well as real estate, not to be under twenty-one years of age. " Revised Code of Virginia, 22i. ' Vol. ii. 60. The early statute law of Connecticut required the infant of either sex, to be seventeen to be competent to dispose of personal estate by will. This is still the law of Connecticut. Statutes, 1821. The act of 1831, in Ohio, relating to wills, does not include married women among the persons incompetent to make a will, and she is presumed to have that power. Lee. LXVIII.] OF REAL PROPERTY. 561 the age to make a will of personal estate is raised up to eighteen in males, and sixteen in females. Nor can a married woman make a testament of chattels, any more than of lands, except under a power, or marriage contract, or by her hus- band's license.^ But infants, /ernes covert, and persons of non-sane memory, and aliens, may be devisees ; for the devise is without con- sideration. *> A devise to the heir at law is void, if it gives precisely the same estate that the heir would take by descent if the particular devise to him was omitted out of the will. The title by descent has, in that case, precedence to the title by devise." The test of the rule, says Mr. Crosley, is to strike out of the will the particular devise *to the *o07 heir, and then, if without that he would take by de- scent exactly the same estate which the devise purports to give him, he is in by descent, and not by purchase."! Even if the lands be devised to the heir charged with debts, he still takes by descent ; for the charge does not operate as an alte- ration of the estate." Corporations are excepted out of the English statute of wills ; and the object of the law was to prevent property from being locked up in perpetuity, and also to prevent languishing and dying persons from being imposed • 2 Blacks. Com. 498. Steadman v. Po'well, 1 AMarris Rep. 58. Hood v. Ar- cher, 1 M'Cord!s Rep. 225. Newlin v. Freeman, 1 Iredell's N. 0. Law Rep. 614- Man-ied women would seem to be prohibited in New-York from making a will of personal estate in any case, for the statute declares that every male person of eighteen years of age, and every female, not being a married woman, of the age of sixteen, and no others, may make a will of personal estate. Nem-York Revised Statutes, vol. ii. 60. By the Revised Statutes of Connecticut, 1821, and of Illinois, published in 1829, a married woman may dispose of her separate estate, both real and personal, by will, in the same manner as other persons. '' Though an alien may be a devisee, as well as purchaser, he takes a defeasible estate. See toI. ii. 61. The New-York Revised Statutes, vol. ii. 57, sec. 4, have judiciously declared such devises void, if to persons who are aliens at the death of the testator. " Hurst V. Earl of Winchelsea, 1 Wm. Blacks. Rep, 187. But see ante, p. 412, the rule altered in England by statute. ^ Crosletjs Treatise on Wills, edit. London, 1828, p. 101. • Allan V. Heber, Sir. Rep. 1270. Hurst v. Earl of "Winchelsea, 1 Wm. Blacks. Rep. 187. The statute of 3 A 4 Wm. IV., ch. 106, altered the English law in this respect, and declared that on a devise of lands by the testator to his heii- at law, he should be considered as taking as devisee, and not by descent. Yide supra,-p. 412, note. YoL. lY. 36 562 OF REAL PROPERTY. [Part XI. upon by false notions of merit or duty, to give away their estates from their families. In times of popery, said Lord Hardwicke, the clergy got nearly half the real property of the kingdom into their hands, and he wondered they had not got the whole.* But under the statute of 43 Eliz., commonly called the statute of charitable uses, a devise to a coi-poration for a charitable use is valid,'' The JVew- York Hevised Stat- utes'^ have turned the simple exception in the English, and in the former statute of New-York, into an express prohibition, by declaring, that no devise to a corporation shall be valid, unless the corporation be expressly authorized to take by de- vise.d (1) There was, however, the same construction of the pre-existing statutes ;« and though the English stat- *508 ute of charitable *uBes has not been re-enacted either in New-York, New-Jersey, Pennsylvania or Mary- land, nor probably in any of the United States,^ the better opinion, in point of authority, would, however, seem to be, that a devise of a charity, not directly to a corporation, but » Lord Hardwicke, 1 Veaey, 223. ^ This was so held in Flood's case, Hob. Rep. 136; and the court, in that case, admitted that the devise was Toid in la-w, because contrai-y to the statute of wills, but that such a devise in mortmain was clearly within the relief of the statute of Elizabeth. Mi'. Crosley, in his leai-ned and able Treatise on Wills, 116, 11 7, con- demns this decision, as a strained constniction, and a repeal of the exception in the statute of wills. The statute of 9 Geo. II., c. 36, has since coirected this construc- tion and rendered all devises for charitable uses void, except to the two universities, and certain colleges. The statute of 9 Geo. II. was not in any sense a mortmain act, for it neither prohibited nor authorized alienation in mortmain, or to a corpora- tion. It only avoided all devises to chaiitable uses ; for at common law it was lawful to devise to individuals to chaiitable uses, and the statute allows the ap- plication of property by deed to charitable purposes. Its sole object was to protect persons in extremis from imposition. The Master of the Rolls, in Corbyn v. French, 4 Vesey, 427. MeUick v. The Asylum, 1 Jacob's Rep. 180. * Vol. ii. 57, sec. 3. i This prohibition extends to a devise of any estate and interest in real property descendible to heii-s, as well as real estate itself. Wright v. Trustees of Methodi.«t Episcopal Church, 1 Hoffman's Oh. Rep. 225. • Jackson v. Hammond, 2 Caines' Cases in Error, 337. f It has not been repealed, but subsists in full force in Kentucky. Vide supra, vol. ii. 285. (t) It has been decided, that -where a devise, made directly to a. corporation not authorized lo take by devise, is accompanied with a trust, it is void as to the trust, as ■well as the legal estate. Ayres v. Trustees, &«., SeK-Torh Legal Observer, January, 1850, p. IT. Lee. LXVIIL] , OF REAL PROPERTY. 563 in triKt for a charitable corporation, would be good. This is on the principle that a court of equity, independent of statute, and upon the doctrine of the common law, has jurisdiction over bequests and devises to charitable uses ; and will enforce them, provided the objects be sufSciently definite, so as to shut out all arbitrary discretion resting upon the doctrine of cy^ress.'^ ' Orphan Asylum Society v. irCartee, 9 Oawen's Hep. 437. Witman v. Lex, 11 Serff. & Rawle, 88. Lord Redeadale, in Attorney-General v. Mayor of Dublin, 1 Bligh's Rep. 34Y. Moore v. Moore, 4 Dana's Ken. Rep. 357. The case of Dashiell V. Attorney-General, 5 Harr. tfc Johns. 392, is a strong authority in opposition to the doctrine of the other American cases 'which are mentioned ; but in that case there was no provision by the will for designating the poor who were to be re- lieved. The object was too indefinite. See the additional authorities, cited supra, vol. ii. pp. 285 — 288, where this point is also mentioned and discussed. In the case of Inglis V. The Trustees of the Sailors' Snug Harbom-, 3 Peters' U. S. Rep. 99, it was admitted that a subsequent act of the legislature would give full validity and effect to a devise for charitable uses, where the designated object or trustees were not otherwise sufficient or competent. So in the case of the Trustees of the Mcln- tyre Poor School v. The Zanesville C. > 8tr. Rep. 1253. « 2 Com. 3'7'7. ■■ New-York Revised Statutes, vol ii. St, sec. 6. Ibid. 65, sec. 50, 51. The sta- tute (p. 58, sec. 12,) reqnii-es all the witnesses to the wiU, who are living in the state, and of sound mind, to be produced and examined, on proof of the will before the surrogate ; and yet the provision b, that the beneficial devise, legacy or inte- rest, to a witness, is void, in case " such will cannot be proved without the testimo- ny of such witness." There seems to be no room for the application of this excep- tion, if all the witnesses must be produced and examined. But if such a witness would have been entitled to a share of the estate, if the will had not been made, so much of such share is saved to him as will not exceed the value of the devise to him ; and he shall recover that share of the devisees or legatees. This last is a very equitable qualification of the general rule ; and it has been assumed in the Revised Statutes of Illinois, published in 1829. The English statutes of 1 Victoria, ch. 26, declares, that wills are not to be inva- lid on account of the incompetency of attesting witnesses, but beneficial devises or gifts to an attesting witness were declared void. If real or personal estates be charged with debts, the creditor, whose debt is so charged, is declared to be a com- petent witness, and an executor may be admitted to prove the will. The statute of 25 Geo. II., ch. 6, is repealed. The word credible as to the witness is dropped. By the English statute of 6 A 7 Vict. c. 85, 22 August, 1843, the objection of incom- petency to a witness in any case as far as interest and infancy go, is abolished. But the provision does not extend to the case of a party to the record ; or to the husband or wife of the same. The insanity of the testator is a question of fact to be passed upon by the sur- rogate, in respect to a will of personal estate. But his decision does not conclude 566 OF REAL PEOPEETT. [Pai-t VI. competency of subscribing witnesses, by declaring their bene- ficial interest under the will void, put an end to a *510 greatly litigated question, which *arose in the time the question eo far as the ■will contains a devise of real estate. That can only be set at rest by an issue from chancery, or a trial at law. Bogardna v. Clarke, 1 Mdw. Ch. Rep. 266. The question of insanity in a testator, ■when partial, and going to defeat the will, is po^werfully and elaborately discussed by Sir John NichoU, in the Prerogative Court of Canterbuiy, in the case of Deer v. Clarke, 3 Addam!s,H9. He considers delusion to be the true critenon of insanity, ■which is ■when the patient once conceives something extravagant to exist, ■which has still no existence ■what- ever, but in liis o^wn heated imagination, and ■wherever, at the same time, having once so conceived, he is incapable of being, or at least, of 'bdn^ permanently rea- soned out of that conception ; such a patient is said to be under a delusion, and de- lusion in that sense, and insanity are almost, if not altogether, convertible terms. The opinion of all the judges ■was taken in the House of Lords in June, 1847, as to the proper questions for the jury on ti-ials in ci-iminal cases, under the defence of insanity. See 2 N. Y. Legal Observer, 241, and WTiarton's American Criminal Law, edit. Philadelphia, 1846, p. 12. The last ■workis ably executed. The Eng- lish judges, in the opinions referred to, stated that if the party charged ■with a crime ■was not, at the time the act ■was committed, conscious of right and "wi'ong, or did not kno^w right from ■wrong, and that be clearly and satisfactorily proved, he ■was not guilty. See, also, Eegina v. Higginson, 1 Carr. & Kirwan, 130. The same vai-ied com-se of decision, and danger of contiadictory decisions respecting the ■will of the personal and real estates, exist in England. Montgomeiy v. Clark, 2 Atk- Rep.SIS. C\m'kr.T)ew,lE-ussell(i-Mylne,TiOa. 3 Addams' KRep. 19. Hume V. Burton, 1 Ridg. P. C. 211. A testator must be of sound and disposing mind and memoi-y, but the necessai-y degree of mental capacity requisite, has opened a ■wide field for discussion in the courts. In the cases of Tan Alst v. Hunter, 5 Johns. Ch. Rep. 148, and Sloan v. Maxwell, 1 Oreen iV. J. Ch. Rep. 563, the requisite sanity of a testator was much considered. Age will not disqualify from making a will, provided the testator has acompetent possession of his mental faculties. Code, 6.22. 3 — 8.24. 16. Voet, 21, 86. The failure of memoi-y is not sufficient to ci-eate the incapacity, unless it be quite total, or extended to his immediate family and property. Den v. Van Clove, cited in 1 Green's Rep. 606. The Eoman law applied the incapacity to extreme failure of memory, as for a man to forget his own name — fattius prcesumitur que in propio nomine crrat. Code, 6. 24. 14, and n. 55. The want of recollection of names is one of the earHest symptoms of a decay of the memory, but this failure may exist to a very great degi-ee, and yet " the solid power of understanding '' re- main. The iTile on the subject is, that sanity is to be presumed, and he who seeks to avoid a will on the ground of mental imbecility, must show it Jackson v. Van- duzer, 5 Johnson's Rep. 138. On the trial of Earl Ferrers for murder, before the House of Lords, the defence was insanity, and Lord Camden said in that case, " had the noble prisoner at the bar a power of distinguishing, as a moral agent, between right and wrong, or was he ignorant in the opinion of the ti'iers, that murder was an offence to God as well as man." The remarks of the Solicitor General, Sir- Charles Torke, were still more striking, and show the caution with which the plea of insa- nity should be received. Campbell's Lives of the Lord Chancellors, vol. v. Lee. LXVIIl] OP REAL PROPERTY. 567 of Lord Mansfield. The question was, whether a witness was competent to prove a will, w'ho was interested when he subscribed his name, and whose interest had been discharged when he was called on to testify. Lord Mansfield'' held it to be sufficient that the competency, or disinterested character of the witness, existed when called as a witness. This decision was opposed with great ingenuity and eloquence by Lord Cam- den,b though the majority of the court over which he presided followed the decision of the K. B. III. Of things devisable. It is the settled rule of the English law, that the testator must be seised of the lands devised at the time of making the will. He must have a legal or equitable title in the land de- vised. = The devise is in the nature of a conveyance, or an appointment of a particular estate ; and therefore lands pur- chased after the execution of the will, do not pass by it.^ The testator must likewise continue seised at the time of his death." • Windham v. Cbetwynd, 1 Burr Rep. 464. •> Doe V. Kersey, 0. B. Easter Term, Vt&h. Powell on Devises, 131. 1 Ba'^s Conn. Rep. 41, note. This veiy point arose in Hawes v. Humphrey, 9 Piclc. Rep. 350, and the com-t held, that a witness to a -will must have been competent at the time of attestation ; and they toot that side of the question as appearing to be most reasonable, and most conformable to the statute. The Mass. Revised Statutes of 1835, have declared that the witnesses must be competent at the time of attesta- tion, and this was so declared by statute in England, and the opinion of Lord Cam- den has finally prevailed. But in Alabama a deposition taken de bene esse cannot be read at the trial, if the witness would be incompetent, if then present, though he was competent .when the deposition was taken. Jones v. Scott, 2 Ala. Rep. N. S. 58. • Langford v. Pitt, 2 P. Wms. 629. Greenhill v. GreenKll, Prec. in Ch. 320. Potter V. Potter, 1 Vesey, 43*7. M'Kinnon v. Thompson, 3 Johns. Gh. Rep. 301. ^ Lord Mansfield, in Pistol v. Riocardson, 3 Douolas, 361, admitted the rule to be settled, and on the ground that the will in that respect resembled a conveyance. By the Roman law, after-purcbased lands passed, and the rule, be said, might as well have been declared the other way, but the doctiine could not be shaken. If legacies be bequeathed to heirs, and the lands devised to B., not an heir, the heirs may claim and recover, in the character of heirs, after-acquired lands, without be- ing obliged to elect between the lands and the legacies. This was decided in the case of The City of Philadelphia v. Davis, 1 Wharton, 490, after a very elaborate discussion, and contrary to the case of Thellusson v. Woodford, 13 Veset/, 209. " £ro. Abr. tit. Devise, pi. 15. Butler v. Baker, 3 Go. 26, a. Bunker v. Coke, I Salic. Rep. 23T. 1 Bro. P. C. 199. S. C. Ai-thur v. Brookenham, 11 Mod. Rep. ii%. This rule wa,8 strictly maintained in Pennsylvania, in the case of Gei-ai'd v,. 308 OF REAL PROPERTY. [Part VI. In Ooodright v. Forester,^ it was held, that a right of entry was not devisable. It was not a right assignable,at common law, and it did not fall within the words of the statute of wills of 32 Hen. VIII. This decision was affirmed in the exchequer chamber, but upon other grounds ; and Chief Justice Mans- field intimated, that a right that was descendible by inherit- ance ought to be devisable. It had been previously decided, and on much more enlarged and liberal grounds, in *511 Jones v. Hoe,^ *that executory devises, and all possi- The City of Philadelphia, notwithstandiog the ■will was intended by the testator to apply to lands ■which might be thereafter pui'chaaed. 4 Rawle, 323. The la^w i» no-w altered in Pennsylvania, by act of 8th April, 1833. When it clearly appears that the testator intended that his will should cover after-acquired lands, the rule in equity would seem to be that the heii' cannot taie both as heir and as legatee, and a court of equity will put him to his election to take under the will or as heir, and he wUl not be allowed to take in both capacities, as heir and as legatee. Thel- lusson V. Woodford, 13 Vesey, 220, 221. Churchman v, L-eland, 1 Russell & Mylne, 250. S. C. 4 Simons, 520. The rule in the English chancery is, that a republica- tion of a will by a codicil makes a will speak as of the date of the codicil, and it ■will, as a republication, take in lands purchased up to the date of the codicil. A clear intent will, however, prevent the application of the rule, as if the codicil should say, " I am now dealing with the property I have given by the will, and with none other." Moneypenny v. Bristow, 2 Russell & Mylne, \\1. Miles v. Boyden, 3 Pick. 213. Kip v. Van Cortland, t Hill, N. T. Rep. 346. The English real property commissioners, in their report iu April, 1833, recom- mended an alteration in the law to the effect that a will should pass property of any description comprised in its terms, where a testator may be entitled to at the time of his death, unless an intention to the contrary should appear upon the will. And the English parliament, by statute of 1 Victoria, ch. 26, passed for the amend- ment of the law with respect to wills, declared that every person might dispose by will of his real and personal estate, legal or equitable, which would othenvise go to his heir or executor. The power was extended to contingent, executory and future interests, in any real or personal estates, that would devolve if not devised, upon the heir, and to rights of entiy, and to real and personal estate acquired after the exe- cution of the will, and to which the testator is entitled at his death. The statute declares, that every will in i-eference to the real and personal estate comprised in it, shall be construed to speak and take effect as if it had been executed immediately before the death of the testator. (1) Again, by the act of 7 Wm IV., and 1 Vic, c. 26, it is declared that a general devise of real estate shall be deemed to include any real estate which the testator may have power to appoint, in any manner he may think proper, and shall operate as an execution of such power, unless a con trary intention shall appear by the will. > 8 Easts Rep. 552. 1 Taunt. Rep. 578. S. C. ^ 3 Term Rep. 88. 1 H. Blacks. Rep. SO. S. C. (1) Such is the statute le.yf of Maryland. Laws o/lSSO, ch. 259. Lee. LXVIIL] OF REAL PROPERTY. 569 bilities coupled with an interest, were devisable."- But a right to enter for a condition broken, or under the warranty annexed to an exchange, is not devisable ; nor is the benefit of a condition, unless it be annexed to a reversion.'' The in- terest under a contingent remainder or executory devise, or future or springing use, is devisable. All contingent possible estates are devisable, for there is an interest. But the mere possibility of an expectant heir is not devisable, for that is not within the principle. So, if a settlement be made on the sur- vivor of A., B. and C, neither of them can devise the possi- bility. The person who is to take is not ascertained." The comprehensive views of the right of testamentary dis- position, contained in the case of Jones v. JRoe, have, I pre- sume, been generally adopted in this country. The statute of ISTew-York, of 1787, gave the power of devise to persons seised of estates of inheritance in lands, rents and other heredita- ments in possession, remainder or reversion. The subsequent provisions of the statute law dropped the word seised, and gave the power of devising to persons homing estates of in- heritance ; and in Jackson v. Yarioh^^ it was held, after much discussion, that a right of entry in land was devisable, though at the time of the devise, and of the testator's death, the land was held adversely. Such a right would pass by descent ; and there were no reasons of policy to create a distinction in this respect between descent and devise ; and, though there was no substantial difference between the ISTew-York and the Eng- " By the New- York Revised Statutes, a possibility coupled with an interest is devisable, if the person in whom the interest is to vest can be ascertained. Every interest which is descendible may be devised, and this embraces all contingent in- terests. 2 R. S. 51, sec. 2. Pond v. Bergh, 10 Paige, 141. 153. ■■ Lord Hardwicke, in Avelyn v. "Ward, 1 Vesey, 423. Goodright v. Forester, 8 Bast's Rep. 552. Preston on Abstracts, vol. ii. 204. Mr. Preston doubts whether a mere possibility of reverter be devisable ; but there seems to be no reason for doubt, since the decision in Jones v. Roe. The English law is now settled by the act of '7 Wm. IK, and 1 Vict. u. 26, that rights of entry for condition broken, and all other rights of entiy, are devisable. In Deas v. Horry, 2 Hill's S. O. Oh. Rep. 248, Mr. Justice Harper was of opinion, that a possibility of reverter was not de- visable, for it was not a jjossibility coupled with an interest, but a mere naked possibility. ' Doe V. Tompkinson, 2 Maide c& Selw. 165. See supra, p. 311, note, as to the devise of trust estates, and pp. 334, 335, as to the execution of a power by will. ^ 1 Cowen's Rep. 238. S C. 2 Wendell's Rep. 166. 5 TO OF REAL PROPERTY. [Pai-tVL lish statutes of wills, the former was rather more compre- hensive in terms. The English rule, requiring the testator to be actually *512 *seised of the lands devised at the time of making the will, and to continue seised at the time of his death, continued to be the law of DSTew-York, down to the recent revision of the statute law.'' The general rule of the English law has been admitted to be existing in Maine, Connecticut, l^orth Carolina and Alabama.'*' The devise under the Eng- lish law is a species of conveyance ; and that is the reason that the devise operates only upon such real estate as the tes- tator owned and was seised of at the time of making the will.'= An auxiliary consideration may be founded on the interest which the law always takes in heirs ; and the rule was, until recently, received in Massachusetts as an explicit and inflexi- ble rule of law.'^ The New- Yorh Revised Statutes have al- tered the language of the law, and put all debatable questions to rest, and made the devises prospective, by declaring that every estate and interest descendible to heirs may be devised ; and that every will made in express terms, of all real estate, or in any other terms denoting the testator's iptent to devise all his real property, shall be construed to pass all the real estate which he was entitled to devise at the time of his death.** The law in Massachusetts, Vermont, Pennsylvania and Yir- ginia, is the same as that now in New- York. In Virginia, seisin is not requisite to a devise, and a right of entry is de- visable.f Eights of entry are devisable, even though there be an adverse possession or disseisin ; and the will will extend ' Minuse v. Cox, 5 Johns. Gh. Eep. 441. •> Carter v. Thomas, 4 GreenUaf's Rep. 341. Meador v. Sorsby, 2 Ala. Rep. N. S. 712. Brewster v. McCall, 15 Conn. Rep. 274. Foster v. Craige, 3 Iredell, 536. But in WMttemore v. Bean, & N. S. Rep. 47, the court seemed to think the English rnle was unreasonable, and that a mere right of entry was devisable. " 2 Blacks. Oom. 378. ^ Parker, Ch. J., 5 PieTc. Rep. 114. 10 Mass. Rep. 131. 17 ihid. 68. » New-York Revised Statutes, vol. ii. 57, sec. 2. 5. But a devise of lands in a particular place, unless the intention be otherwise and apparent, will be confined to lands in that place owned by the testator, at the time of the will. Pond v. Bergh, 10 Paige, 140. An estate per auter me, though personal assets, may be devised under the term lands, and a power to sell lands may be devised. 1 Hoff- man's Oh. Rep. 204. 225. f Lomax's Dig. vol. iii. p. 20. Watts v. Cole, 2 Leigh, 664. Lea LXVIII.] OP REAL PROPERTY. 671 prospectively, and carry all the testator's lands existing at his death, if so evidently intended.^ This is also understood to be the law in Kentucky, Maine, Alabama, Connecticut, North Carolina, Illinois and Ohio, and in the latter state the statute declares that every description of property may be devised.'' We have, therefore, in many parts, at least, of the United *States, this settled test of a devisable interest, *513 that it is every interest in land that is descendible. In England, the more recent test is a possibility coupled with an interest;" and under either rule the law of devise is of a sufficiently comprehensive operation over the real estate. It is probable that devises receive a construction in every part of the United States as extended as that in England. A joint-tenant has not an interest which is devisable. The reason given by Lord Coke is, that the surviving joint-tenant has an interest, which first attaches at the death of the joint- tenant making the will ; and he insists, that there is a priority of time in an instant ; and Mr. Butler refers to another case in which that subtlety was applied,.^ A better reason than this refinement is, that the old law favoured joint-tenancy ; and the survivor claims under the first feoffor, which is a title paramount to that of the devisee ; and a devisee is not per- mitted to sever the joint-tenancy. • Turpia v. Turpin, 1 Wash. Rep. 15. Hyer v. Shobe, 2 Mimf. Rep. 200. Stoever v. Lessee of Whitman, 6 Binney, 416. Tilghman, Ch. J., 4 Serg. & Rawle, 435. 2 Leigh's Rep. 664. Pennsylvania Statute of Wills of 1105, and the Re- vised Act relating to Wills, April 8, 1833, sec. 10. Massachusetts Revised Statutes, 1835. Revised Statutes of Vermont, 1839, p. 254. Willis v. Watson, 4 Scammon Rep. 64. ^ Griffith's Law Register, tit. Kentucky. Lessee of Smith v. Jones, 4 Ohio Rep. 115. Statutes of Ohio, 1831. Jarman on Wills, vol. i. 43, notes, Boston edition. In Tennessee, devisees cannot come in for a share of the real estate, acquired after mating the will, without bringing into hotchpot the land devised to them. Vance v. Huling, 2 Yerger, 135. Sturdevant v. G-oodi-ich, 3 ibid. 95. The English statute of distributions, of 29 Charles II., used the words " settled in his lifetime," and did not apply to a settlement or advancement by will. The Tennessee rule resembles the English law of hotchpot, as applicable to estates in copai'cenaiy. ' But see ante, p. 510, note b. ^ Litt. sec. 28Y. Co. Litt. 185, b. FerJcins, sec. 500. Butler's note, 68, to Co. Litt. lib. 3. 572 OF REAL PROPERTY. [Pai-t VL TV. The execution of the will. The general provision on this subject is, that the will of real estate must be in writing, and subscribed by the testator, or acknowledged by him in the presence of at least two wit- nesses, who are to subscribe their names as witnesses.* The regulations in the several states differ in some un- essential points; but generally they have adopted the di- rections given by the English statute of frauds, of 29 Charles II. The general doctrine of 'international law is, that wills concerning land must be executed according to the prescribed formalities of the state in which the land is situated ; but wills of chattels, executed according to the laws of the place of the testator's domicil, will pass personal property in all other countries, though not executed according to their laws. The status, or capacity of the testator to dispose of his per- sonal estate by will, depends upon the law of his domicil. Mohilia personam sequuntur, immoMlia situm.^ By *514: the *New- York Revised 8tatutes,<^ the testator is to subscribe the will at the end of it, in the presence of at least two witnesses, who are to write their places of residence opposite their names, under the penalty of fifty dollars, if they omit so to write ; but the omission to do it will not affect the validity and efficiency of their attestation. (1) Three wit- * In ordinaiy cases, it is not necessaiy to prove that the will was read over to the testator, or that he knew the contents of it ; all this fact will be presumed, if the prescribed foi-malities of execution are followed. But the presumption may be repelled, and positive and satisfactory proof required, if a doubt be thrown over the case. Billinghurst v. Vickers, 1 PMUimore Eccl. Rep. 18Y. Day v. Day, 1 Green Oh. Rep. 549. '' Huberus, de Gonflictu Legum, sec. 15. VaUel,'\ib. 2, c. 8, sec. 103. Coppin v. Coppin, 2 P. Wms. 291. Robinson v. Bland, 2 Burr Rep. 1079. Abbott, Ch. J., in Doe v. VardiU, 2 Barnw. & Cress. 438. The Master of the Rolls, in Brodie v. Barry, 2 Ves. S Bea. 131. Ken- v. Moon, 9 Wheat. Rep. 665. United States v. Crosby, 1 Cranch's Rep. 115. M'Cormick v. Sullivant, 10 Wheat. Rep. 202. Dar- bey V. Mayer, ibid. 469. Cutler v. Davenport, 1 Pick. Rep. 81. Hosford v. Nichols, 1 Paige's Rep. 226. See, also, supra, vol. ii. 429, and Story's Com. on the Confiictof Laws, iSQ— 301. 359— S62. 391.398—403. In the matter of Robert's will, 3 Paige, 446. 525. Countess de Z. Ferraris v. Marquis of Hertford, 3 Cur- teis, 468. • Vol. ii. 63, sec. 40, 41. (1) The sufficiency of the attestation of wills in New-Tork, is much considered in Butler v. Benson, 1 Barb. S. O. Rep. 526. Nelson v. McGiffert, 3 Barl>. Cli. S. 158. If one of the "witnesses be otherwise competent, he is not rendered incompetent because, he was judge of probate, at the attestation of the will and at the time of the approval Patten v. TaJlman, 27 Maine B. IT. lee. LXVIIL] OP REAL PROPERTY. 573 nesses, as in the English statute of frauds, ai-e required in Vermont, New-Hampshire, Maine, Massachusetts, Khode Island, Connecticut, New-Jersey, Maryland, South Carolina, Georgia, Alabama, Mississippi. Two witnesses only are re- quisite in New-York, Pennsylvania, Delaware, Virginia, Ohio, Illinois, Indiana,'^ Missouri, Tennessee, North Carolina and Kentucky. In some of the states, the provision as to at- testation is more special. In Pennsylvania, a devise of lands in writing will be good, without any subscribing witnesses, provided the authenticity of it can be proved by two wit- nesses ; and if the will be subscribed by witnesses, proof of it may be made by others.'' (1) The English statute of frauds required the will to be signed by the devisor, and to be attested and subscribed by the wit- nesses, in Ms presence ; and this direction has been exten- sively followed in the statute laws of this country, and parti- cularly in New-York, down to the recent revision of its stat- ute law." The Revised Statutes have so far altered the former law, as to require the signature of the *testator, *515 • The Ordinance of Congress of July, I'ZSY, for the government of the northwest territory, now composing the states of Ohio, Indiana, Illinois, Ac, required three witnesses to a will devising real estates. •> Slight V. Wilson, 1 Dallas, 94. Huston, J., 1 Watts, 463. " In England, under the statute of frauds of 29 Charles II., u. 3, sec. 5, 6, the attestation of a will by a witness making hia mark is sufficient. Harrison v. Har- rison, 8 Vesey, 185. Addy v. Grix, ibid. 504. Baker v. Deniiig, 8 Adolph. & Ellis, 94. The law in South Carolina and Louisiana is the same. Adams v. Chaplin, 1 HilVs Ch. Rep. 266. 9 Louis. Rep. 512. 11 ibid. 251. The words of the English sta- tute are, that the will shall be attested and subscribed by the witnesses. The STew- York Revised Statute is a, little sti'ouger, and may not admit of the same loose constraction, for it says that each attesting witness shall subscribe his name. Making his mark has however been held sufficient. George v. Surrey, 1 Mood, ifc Malk. 516. Chafifee v. Baptist M. C. 10 Paige, 85. So, writing with a pencil is sufficient. Geary v. Physic, 5 Barnw. Shires v. Glascock, 2 Salk. Rep. 688. Davy v. Smith, 3 ibid. 395. Longford T. Eyre, 1 P. Wms. 140. Casson v. Dade, 1 Bro. 99. Todd v. Earl of Winchelsea, 2 Carr & Paine, 488. Russell v. Falls, 3 Harr. & M'Henry, 451. Edeleu v. Hardy, 7 Ifarr. & Johns. 61. Neil v. Neil, 1 Leigh's Rep. 6. In this late case, the English decisions were carefully reviewed, and it was decided, that the attestation of a will of lands in Virginia, under their statute, which was the same as the statute of 29 Cai-. II., c. 3, was ^rima facie a good attestation, if made in the same room with the testator; and that it vias prima facie not an attestation in his presence, if not made in the same room. ^ Stonehouse v. Evelyn, 3 P. Wms. 264. Grayson v. Atkinson, 2 Vesey, 454. Ellis V. Smith, 1 Vesey, jr., 11. White v. British Museum, 6 Bingham's Rep. 310. « Bond v. Seawell, 3 Burr Rep. \11Z. i Doug. Rep. 241. (1) In New-Tork, it is not indispensable that eaoli witness sliould be able to swear to all the requisites of the statute. The court may form its conclusion from all the evidence in the case. Jauncey v. Thome, 2 Barb. Ch. It. 40. 8 id. 158. 576 OP REAL PROPERTY. [Part VL and, therefore, it is not required. They may attest separately, and at different times.^' It is to be presumed, that the English rules of construction of the statute of frauds, in the execution of the will, apply in those states which have followed the language of the statute ; but in New- York the alterations which have been mentioned have rendered some of these de- cisions inapplicable. !> At common law, a will of chattels was good without writ- ing." In ignorant ages, there was no other way of making a will but by words or signs. But, by the time of Henry VIII., and especially in the ages of Elizabeth and James, letters had become so generally cultivated, and reading and writing so widely diffused, that verbal, unwritten or nuncupa- *517 tive wills, were confined to extreme cases, -'and held to be justified only on the plea of neces8ity. But to prevent the admission of loose and un- certain testimony, countervailing the operation of an instru- ment made with the formalities prescribed, it is provided that the revocation must be by another instrument executed in the same manner ; or else by burning, cancelling, *tearing or obliterating the same, by the testator him- *521 self, or in his presence, and by his direction. This is the language of the English statute of frauds, and of the sta- tute law in every part of the United States." A will may be revoked by implication, or inference of law ; and these revocations are not within the purview of the stat- ute ; and they have given rise to some of the most difficult and interesting discussions existing on the subject of wills. They are founded upon the reasonable presumption of an al- teration of the testator's mind, arising from circumstances since the making of the will, producing a change in his pre- vious obligations and duties. The case stated by Cicero,"! is often alluded to, in which a father, on the report of the death of his son, who was then abroad, altered his , testament, and " tTnder the rule of equity, that what ought to be done is sometimes considered as done, the execution of a will may be controlled by equitable views of the sub- ject. Thus land, which has been agreed or directed to be sold, is considered as money ; money which has been agreed or dii-ected to be laid out in the purchase of land, is considered as land ; and, therefore, in equity, money directed to be laid out in land will not pass by will, unless executed as if the property were land ; but land directed to be converted into money, will pass by a will competent to pass money. ^ Vinyor's case, S Co. 81, b. • See the New- York Revised Statutes, voL ii. 64, sec. 42. Oriffilh's Law Regis- ter. OoUection of Statutes, by /. Anthon, Esq. 1 Revised Code of Virginia, c. 104, sec. 3. Massachusetts, New-Jersey, and other Revised Statute codes. The Enghsh statute of frauds did not require the will to be signed in the presence of the witnesses, but it required the instrument of revocation to be signed in their pres- ence. The Revised Statutes of New-Torlc, Massachusetts, Virginia, 1 Ld. Raym. 441. Salk. Rep. 592. ■« 5 Term Rep. 61, note. •1 1 Eq. Cas. Abr. 413, pi. 15. 1 P. Wms. M4, note by Mi-. Cox. • Parsons v. lanoe, 1 Vesey, 189. Amb. S&l. Jackson v. Hurlock, 2 Eden'a Rep. 263. •■ Wellington v. Wellington, 4 Burr Rep. 2165. s Sicken's Rep. 445. ' Doe T. Lancashire, 5 Term Rep. 49. ■• Doug. Rep. 31. J Lord Alvanley, 4 Vesey, 848. '' 2 Hasfs Rep. 530. (1) Bnt see Israel v. Eodon, 2 Moore's Pricy Couneil Sep, SI, 584: OF EEAL PROPERTY. [Pai-t YI. of a will, when the wife and children vjere wholly unprovided for, and there was an entire disposition of the whole estate. But whether the revocation could be rebutted by parol proof of subsequent declarations of the testator, or other extrinsic circumstances, though there was no provision in the will for those near relatives, was a question on which the court gave no opinion. If the wife and children be provided for by a settlement, it is now understood to be the rule, that marriage and a child will not revoke a"will ; and this case forms an exception to the general rule.* The English law on this subject was reviewed in New-Tort, in the case ot Brush v. Wilkins ;^ and it was adjudged to be the law in New- York, founded on those decisions, that subse- quent marriage and a child were an implied revocation of a will, either of real or personal estate, and that such presump- tive revocation might be rebutted by circumstances. The better opinion is, that under the English law there must be the concurrence of a subsequent marriage and a subsequent child, to work a revocation of a will ; and that the mere sub- sequent birth of children, imaccompanied by other circum- stances, would not amount to a presumed revocation. *524: This was the rule laid down *by Sir George Hay, in Shepherd v. Shepherd,'' and by the Court of K. E., in White V. BarfordA Sir John NichoU, in Johnston v. John- ston,^ pressed very far, and very forcibly, the more relaxed doctrine, that it was not an essential ingredient in these im- plied revocations, that marriage and a child should both occur to create them ; and he held, that a birth of a child, when aGoompcmied with other ci/raiomstanees, leaving no doubt of the testator's intention, would be sufficient to revoke the will of a married man. The case in which he pressed the rule to this extent, was one that contained so much justice and per- ' Ex parte the Earl of Iloheater, "7 Vesei/, 348. In Pox v. Marston, in the Pre- rogative Court of Canterbuiy, before Sir Herbert Jenner, (1 Curteis, 494,) parol declarations of testator were admitted to rebut the implied revocation of a will of personal estate from marriage and the bii-th of a child, '■ 4 Johns. Ch. Rep. 506. '■ 5 Term Rep. 51, note. ^ 4 Maule d) Selvi. 10. » 1 Fhillimore's Rep. 441. Lee. LXVIIL] OP REAL PROPERTY. 585 suasive equity in favour of the revocation, that it must have been difficult for any court, with just and lively moral percep- tions, to resist his conclusion. He placed the doctrine of implied revocation, not where Lord Kenyon had placed it, on any tacit condition annexed to the will, but on the higher and firmer ground, whei-e Lord Mansfield, and, indeed, the civil law, had placed it — on a presumed alteration of intention, arising from the occurrence of new moral duties, which, in every age, and in almost every breast, have swayed the hu- man afi^ections and conduct. It was doubted, however, in the case of Brush v. WilMns, whether Sir John Nicholl had not carried this point of revocation further than the English law would warrant, and which had never adopted the notion of the inofficiosum testamentuin of the civil law. In a sub- sequent case,^ Sir John NichoU seems to have regained the former track of the law ; and he lays down the general doc- trine, that a will is presumptively revoked by marriage and issue, and that the presumption may be rebutted by unequiv- ocal evidence of an intention that the will should operate, notwithstanding those subsequent events. Thus, it has been held, in pursuance of this principle, that marriage and issue are not a revocation of a will, when there are children of a former marriage, and there is a provision for a second wife and her issue. •> In this country, we have much statute regulation on the subject. There is no doubt that the testator may, if he pleases, devise all his estate to strangers,^ and disinherit his children. This is the English law, and the law in all the states, with the exception of Louisiana. Children are deemed to have sufficient security in the natural affection of parents, • Gibbons v. Cross, 2 AddanCs Rep. 455. See, also, Talbot v. Talbot, 1 Hagg. Eccle. Rep. 705, to the same point. ^ Johnson v. Wells, 2 Hagg. Eccle. Rep. 561. The English law as it stood prior to the statutes of 7 Wm. IV., and 1 Vict, c. 26, (and for which, vide infra, p. 533,) was declared in Marston v. Roe, 8 Adolph. & Ellis, 14, in the Exch. Chamber, to be, that if au unmarried man, without any child by a former wife, devised his estate, and left no provision for any child by a future marriage, notwithstanding he might have made provision therein for a future wife, the law annexed a tacit con- dition to such a will, that if he afterwards married, and had a child, the will should be revoked, and evidence was not admissible to rebut that presumption or destroy that condition. 586 OF REAL PROPERTY. [Part VI. *626 that this unlimited power of disposition will *not he abused. If, however, the testator has not given the estate to a competent devisee, the heir takes, notwithstanding ,the testator may have clearly declared his intention to disin- herit him. The estate must descend to the heirs, if it be not legally vested elsewhere.* This is in conformity to the long established rule, that in devises to take place at some distant time, and no particular estate is expressly created in the mean time, the fee descends to the Beir. But by the statute laws of the states of Maine, Vermont, ^New-Hampshire, Massachu- setts,'' Connecticut, DSTew-Tork," ISTew-Jersey, Pennsylvania, Delaware, Ohio and Alabama, a posthumous child, and, in all of those states except Delaware and Alabama, children bom after the making of the will, and in the lifetime of the father, will inherit in like manner as if he had died intestate, unless some provision be made for them in the will, or other- wise, or they be particularly noticed in the will.'^ The rea- sonable operation of this rule is only to disturb and revoke the will^ra tanto, or as far as duty requires. The stat- *526 ute law in Maine, *]Srew-Hampshire, Massachusetts and Rhode Island, goes further, and applies the same relief to all children, and their legal representatives, who have no provision made for them by will, and who have not had their advancement in their parent's life, unless the omis- sion in the will should appear to have been intentional. In • Denn v. Gaskin, Cowp. Rep. BST. Jackson v. Schauber, 7 CowerCs Rep. 187. S. C. 2 WendeWs Rep. 1. *> Massac/mseits Revised Statutes, 1835, part 2, tit. 3, c. 62, sec. 8. ' New-YorJc Revised Statutes, vol. ii. 65, sec. 49. ^ In Pennsylvania and Delaware, maniage, or an after-child not provided for, is ii revocation pro tanto only. In Pennsylvania, under the construction given to their act of 1794, the subsequent bu'th of issue is, in itself, a revocation of a pre- vious -will, so far only as regards such issue, on the ground that it produces a change in the obligations and duties of the testator. Tomlinson v. Tomhnson, 1 Ashmead, 224. (1) This appears to be the sound doctrine on the subject. In Ohio, Indiana, Illinois and Connecticut, the biith of a child avoids the will in toio. Sta- tutes of Ohio, 1331, p. 243. Statutes of Connecticut, 1821, p. 200. Statutes of Illinois, 1829, and of Indiana, 1831. This is the case in which no provision is made by the will for such a contingency. (1) See Coates v. Hughes, 3 Biimei/s H. 498. Res. St. Mich. 1838, p. 273. Reaj. St. MU. 1635, p. 620. Lee. LXVIIL] OF REAL PROPERTY. 587 South Carolina, the interference with the will applies to post- humous children ; and it is likewise the law, that marriage and a child work a revocation of the will. In Virginia and Kentucky, a child born after the will, if the testator had no children before, is a revocation, unless such child dies unmar- ried, or an infant. (1) If he had children before, after-born children, unprovided for, work a revocation pro tanto. In the states of Maine, Massachusetts, Ehode Island, Connecti- cut, New-York, Maryland, and probably in other states, if the devisee or legatee dies in the lifetime of the testator, his lineal descendants are entitled to his share, unless the will anticipates and provides for the case. This is confined, in Connecticut, to a child or grandchild; in Massachusetts, Ehode Island and Maine, to them, or their relations ; and in New- York, to children or other descendants. The rule in Maryland goes further, and by statute, no devise or bequest fails by reason of the death of the devisee or legatee before the testator ; and it takes effect in like manner as if they had survived the testator.^ *By the New-Yorh Revised Statutes^ if the will *527 disposes of the whole estate, and the testator after- wards marries, and has issue born in his lifetime, or after his death, and the wife or issue be living at his death," the will is deemed to be revoked ; unless the issue be provided for by the will, or by a settlement, or unless the will shows an in- tention not to make any provision. No other evidence to rebut the presumption of such revocation is to be received. This provision is a declaration of the law of New- York, as declared in Brush v. WiUcins, with the additional provision of prescribing the exact extent of the proof which is to rebut » Laws of the several States in Mr. Anthon's collection. GriffitKs Lavs Register, h. t. Digest of Rhode Island Statutes, l*l9i,^. HI. 6 ffarr. db Johns. 5i. New- YorJc Revised Statutes, vol. ii. 66, sec. 62. Mass. Revised Statutes, 1835, part 2, tit. 3, c. 62. >> Vol. ii. 64, sec. 43. • The statute must mean here to refer equally to the posthumous issue. (1) A will ia also revoked in Virginia by marriage, except the will be made in the exercise of certain powers of appointment. Eev. Stat, 1849, tit. 83, oh. 122, see. 4. OF REAL PROPERTT. [Part VI. the presumption of a revocation, and thereby relieving the courts from all difficulty on that embarrassing point.^ The will of a feme sole is revoked by her marriage. This is an old and settled rule of law ; and the reason of it is, that the marriage destroys the ambulatory nature of the wiU, and leaves it no longer subject to the wife's control. It is against the nature of a will, to be absolute during the testator's life, and therefore it is revoked in judgment of law by the mar- riage.'' If the wife survives her husband, the wUl, according to the opinion of Sergeant Manwood," revives, and takes effect equally as if she had continued a feme sole. But the strong language of the judges in the modern cases, in which they declare that the will becomes revoked and void by the marriagejii would seem to bar the conclusion of the learned sergeant ; and Mr. Eoper, in his laborious and accurate treat- ise on the Lanjo of Property, m relation to husband and *528 wife," assigns *very good reasons why the will cannot be deemed to have revived by the death of the husband. The provision in the Ifew- Yorh Mevised Statutes,^ declaring that the will of a married woman shall be deemed revoked by a subsequent marriage, effectually puts an end to the ques- tion under that statute. A second will is a revocation of a former one, provided it contains words expressly revoking it, or makes a different and incompatible disposition of the property. Unless it can be found to have contained one or the other, it is no revocation of a former will.g Any altera- tion of the estate or interest of the testator in the lands de- ' In Havens v. Vanderbergh, 1 Denio, 2*7, it was adjudged that marriage and the bii-th of a child, were an implied revocation of a previous will, if there be no provision in or out of the will for such new relations, though the presumption of a revocation may be repelled by cii-cumstances showing that the testator intended the will to stand, notwithstanding the change iu his family. I" Forse and Hembling's case, 4 Co. 60, b. « Plowd. Rep. 34,3, a. ^ Hodaden v. Lloyd, 2 Bro. 534. Doe v. Staple, 2 Term Hep. 684. Long v. Aldred, 3 Addams, 48. But the will of a, feme covert, made during marriage under a power is not revoked by her sm'viving her husband. Monvan v. Thompson, 3 ffacrff. &cle. Rep. 239. » Vol. ii. 69. ' Vol. ii. 64, sec. 44. This is also the English law, 2 Curteis, 326, Phil. edit. E Hitchins v. Basset, 3 Mod. Rep. 203. Goodright v. Hai-wood, Oowp. Rep. 86i Lee LXVni.] OF REAL PROPERTY. 589 vised, by the act of the testator, is held to be an implied revocation of the will, on the ground, principally, of its being evidence of an alteration of the testator's mind. A sale of the estate devised operates, of course, as a revocation ; for the testator must die while owner of the land, or the will'can- not have effect upon it. A valid agreement, or covenant to convey lands, which equity will specifically enforce, will also operate in equity as a revocation of a previous devise of the same. It is as much a revocation of the will in equity, as a legal conveyance of the land would be at law ; for the estate, from the time of the contract, is considered as the real estate of the vendee.^ Not only contracts to convey, but inoperative conveyances, will amount to a revocation of a devise, to the extent of the property intended to be affected, if there be evidence of an intention to convey, and thereby to revoke the will.'' A bar- gain and sale without enrolment, feoffment without liv- ery of seisin, a conveyance upon a consideration *which *529 happened to fail, or a disability in the grantee to take, have all been admitted to amount to a revocation, because so intended. If, however, the testator substitutes a new dispo- sition of the land, and intends to revoke the will by means of that substitution, in that case, if the instrument cannot have that effect, and the substitution fails, there is no revocation. Montague v. Jeflfreys, 1 Roll. Abr. 615. " Roper T. Radcliffe, 10 Mod. Rep. 230. Lord Hardwicke and Lord Eldon, 3 Atk. Rep. "748. 803. 1 Vesey, 273. 2 Swanst. Rep. 288. 4 Lord Eldon, 7 Vesey, 373. 4 East's Rep. 419. 4 Russell's Rep. 452, 453. S. P. • Diater v. Dister, 3 Lev. Rep. 108. Darley y. Darley, 3 Wils. Rep. 6. If the testator be disseised, and die before re-entiy, it is at common law a revocation of the will. 1 Roll. Abr. 616, tit. Denise, S. 590 OP REAL PROPERTY. [Part VI. The law requires that the same interest which the testator had when he made the will should continue to be the same interest, and remain unaltered to his death. The least alte- ration in that interest is a rcTOcation. If the testator levies a fine, 'or enfeoffs a stranger to his own use, it is a revocation, though the testator be in of his old use.* Lord Hardwicke, in Parsons v. Freeman^ admitted that these were prodi- giously strong instances of the severity of the rule ; and Lord Mansfield observed, that the Earl of lArhcoMs case, decided upon the same principle, was shocking; and that some overstrained resolutions of the courts upon constructive revocations contrary to the real intention of the testator, had brought scandal upon the law.'' The unreasonableness *530 of the rule, holding an act to be a revocation, *which was not so intended, and even when the intention was directly the contrary, has been often complained of ; and the English courts have latterly shown a strong disposition not to assume the doctrine, unless there was some express au- thority for it.'' The doctrine, hard and uni'easonable as it appears in some of its excrescences on this subject, and notwithstanding it has been repeatedly assailed by great weight of argument, has, nevertheless, stood its ground immovably, on the strength of authority, as if it had been one of the essential landmarks of property. The cases havfe been investigated and discussed with the utmost research and ability, by the courts of law and equity, and the principle again and again recognised and con- firmed, that by a conveyance of the estate devised, the will was revoked, because the estate was altered, though the testator took it back by the same instrument, or by a declara- tion of uses.o The revocation is upon the technical ground, that the estate has been altered, or new modelled, since the execution of the wiU. The rule has been carried so far, that • Trevor, CIi. J., in Arthur t. Bockenham, Fitzgib. Hep. 240. >> S Ailc. Rep. 14S. « 3 Burr Rep. 1491. Douff. Rep. "722. i Charman v. Charman, 14 Vesey, 584. Vawser v. Jeffiey, 2 Harms, ck Aid. 463. « GoodtiUe v. Otway, 1 Bos. tk Pull. 576. 1 Term Rep. 399. S. 0. 3 Vesey, 650. Kean'swiU, 9 Dana's KenhwJcy Rep. 25. Lee. LXVIIL] OF REAL PROPERTY. 59I if the testator suffered a recovery, for tlie very purpose of confinning the will, it veas still a revocation, for there was not a continuance of the same unaltered interest. There is an exception to the rule in the case of mortgages, and charges on the estate, which are only a revocation in equity ^to tanto, or quoad the special purpose ; and they are taken out of the general rule on the fact of being securities only.'i These doctrines of the English cases have been reviewed in this country, and assumed to be binding, as part of the set- tled *jurisprudence of the land. It was decided that *531 a contract for a sale of the land was a revocation of the devise, even though the contract should afterwards be rescind- ed, and the testator restored to his former title. Legal and equitable estates, as to these implied revocations, were deemed to stand on the same ground.'' It has also been held,<= that if the testator after devising a mortgage, forecloses it, or takes a release of the equity of redemption, it is a revocation of the devise. It is equally a revocation, if he cancelled the mort- gage, and took an absolute deed ; for it was an alteration of the interest, and a new purchase. Some of the excesses to which the English doctrine has been carried, have not been acquiesced in, but the essential rules have been taken to be law. A codicil is an addition, or supplement to a will, and must be executed with the same solemnity.^ It is no revocation of a will, except in the precise degree in which it is inconsistent with it, unless there be words of revocation.": If the first will • SpaiTow V. Hardcastle, 3 Aih Rep. "igS. S. C. 1 Term Rep. 416, note. Bridges v. The Duchesa of Chaados, 2 Veseyjr., 417. Cave v. Holford, S Vesey, 360. 7 Term Rep. 399. 1 Sos. & Pull. 576. S. C. Harmood v. Oglander, 6 Vesey, 221. In the above case of Cave v. Holford, the doctrine of these implied revocations was elaborately discussed and sustained ; but Lord Ch. J. Eyre, in a learned opinion, endeavoured, though unsuccessfully, to restrict the application of tlie precedents. i- Walton V. Walton, 7 Johns. Ch. Rep. 258. « Ballard v. Carter, 5 Pich. Rep. 112. * New- Yorh Revised Statutes, vol. ii. 64, sec. 42. » Brant v. Wilson, 8 Coioen's Rep. 56. If a testator intends to revoke a ■will by an instrument making new dispositions, this is only a conditional intention to revoke the first will, and if he leaves the second will incomplete, the first will remains good, for there is wanting the requisite evidences of revocation. Winsor v. Pratt, 2 Brod. & Bing. 652. Bethell v. Moore, 2 Dev. & Battle, 311. 592 OF REAL PEOPEETT. [Pai-t VL be not actually cancelled, or destroyed or expressly revoked, on making a second, and the second will be afterwards can- celled, the first will is said to be revived.* But the first will is not revived, if the testator makes a second, and actually cancels the first by an absolute act rendering it void, and then cancels the second will ; it will, in such a case, require a re- publication to restore the first will.'' The mere act of *532 cancelling a will does not amount *to any thing, unless it be done animo revotandi. The intention is an in- ference to be drawn from circumstances ; and the fact of can- celling may be, in many cases, an equivocal act. If, however, the will be found cancelled, the law infers an intentional revocation ; for it is ^'itna facie evidence of it, and the infer- ence stands good until it be rebutted.'^ The inference is the same, and it would require strong proof to rebut it, if a will " Goodi-ight V. Glazier, 4 Burr Rep. 2612. It is, howevei-, not quite settled whether the revocation of a second will revives a former uncancelled will ; and ench an effect will depend on circumstances. Kii'kardbright v. Kirkardbright, 1 Hagg. Eccle. Rep. 325. In Helyar v. Helyar, (Reports in the time of Sir Geo. Lee, by Phillimore, vol. i. 474,) decided by Sir Geo. Lee, in the Prerogative Court, in 1'754, it was held, that the execution of a second will of a different purport was, by law, a revocation of the fii-st, though the second does not now appear. ^ Buiionshaw v. Gilbert, Cowp. Rep. 49. Semmes v. Semmes, 7 Earr. & Johns. 388. Major v. Williams, 3 (Turteis, 432. There are contradictoiy opinions of Lord Mansfield, as given in Cowp. Rep. 53 and 92, on the point whether, if the first will be not cancelled, in point of fact, but be revoked by the tenns of the second will, and the second will be cancelled, the first will be thereby restored, without repub- lication. Lord Hardwicke held, in Martin v. Savage, cited in 1 Vesej/, 440, that parol evidence was inadmissible under the statute of frauds, to sustain a republica- tion of a devise of lands. But constructive republications, Mi'. Powell, in his Treatise on Devises, p. 666, considers as out of the statute, and may, under circum- stances, be good. In Pennsylvania, it ia held that a wiU may be republished by parol. Jones v. Hartley, 2 Wliarton, 103. Contra, Majorv. Williams, 3 Curteis, 432. ' Onions v. Tyrrer, 1 F. Wms. 343. Burtonshaw v. Gilbert, Cowp. Rep. 49. Jackson v. Holloway, Y Johns. Rep. 394. Sir John Nichols, in Eogers v. Pittis, 1 Addam's Rep. 30. BetlieU v. Moore, 2 Dev. & Battle, 311. In Colvia v. Fraser, 2 IJagg. Ecflc. Rep. 266, a wUlwas executed in India in duplicate : onepai't remained in India, and the other was brought to England by the testator ; and it was never traced out of his possession, and was not found at his death. It was held, upon a very elaborate discussion, to be a prima facie presumption, that the testator had destroyed the duplicate in his possession, and that he thereby intended to revoke the one not in Us possession ; and that it lay with the party setting up the will to negative these presumptions. Boughey v. Moreton, 3 Hagg. Eccle. Rep. 191, note, S. P. Lee. LXVIIL] OF REAL PROPERTY. 693 be traced to the party's possession, and be not forthcoming at his death. a Cancelling, in the^ slightest degree, with a de- clared intent, will be a sufficient revocation ; and, therefore, throwing a will on the fire, with an intent to bum it, though it be only slightly singed, and escape destruction, is sufficient evidence of the intention to revoke.'' (1) An obliteration of part of a will is only a revocation ^to tanto.'^ The Ifew- Yorlc Revised Statutes^ have dispensed with all refinements on this point. In no case does the destruction or revocation of a second will revive the first, unless the inten- tion to revive it be declared at the time as part and parcel of the act of destruction or revocation of the second will. Those statutes have essentially changed the law on the subject of these constructive revocations, and rescued it from the hard operation of those technical rules of which we have com- plained, and placed it on juster and more rational grounds. It is declared that no bond, agreement or covenant, made by a testator, for a valuable consideration, to convey any property previously devised or bequeathed, shall be deemed a *revocation of the will, either in law or in equity ; but *533 the property passes by the will, subject to the same remedies for a specific performance, against the devisee or legatee, as might be had against the heir or next of kin, if the property had descended. So, a charge or incumbrance upon any estate, for securing the payment of money, or the per- formance of covenants, shall not be deemed a revocation of any will previously executed ; but the devise or legacy takes efi'ect subject to the charge or incumbrance. JSTor shall any conveyance, settlement, deed or other act of the testator, by which his estate or interest in property previously devised or bequeathed shall be altered, but not wholly divested, be deemed a revocation ; and the same estate or interest shall « tillie V. Lillie, 3 Hogg. Ecde. Rep. 184. ' Bibb V. Thomas, 2 Blacks. Rep. 1043. « Sutton V. SuttoD, Crmp. Rep. 812. LaiHas y. Larkina, 3 Bos. cfc Pull. 16. Short V. Smith, 4 East's Rep. 419. J Vol. iL 66, sec. 63. (1) Where a "will was destroyed by a testator in a fit of insanity, it was held that the wiU could be set np by proo^ andjthat the two witnesses were not necessary. Ford t. Ford, 7 Uwmph. R.m,. Vol. IV. 38 594 OP REAL PROPERTY. [Part VI. pass by the will ; -which would otherwise descend, unless, in the instrument making the alteration, the intention thereby to revoke shall be declared. If, however, the provisions of the instrument by which such alteration is made, be wholly incon- sistent with the terms and nature of the previous will, the instrument shall operate as a revocation, unless the provisions therein depend on a condition or contingency, and the same has failed.^- The simplicity and good sense of these amendments recom- mend them strongly to our judgment ; and they relieve the law from a number of technical rules, which are overwhelmed * New- York Revised Statutes, vol. ii. 64, sec. 45 — 48. A sale of lands devised, and taking back a bond and moilgage for the pm'chase money, is a revocation, un- der the New- York Revised Statutes, of the devise of the specific lands, and the bond and mortgage pass with the personal estate. Adams v. Winne, 1 Paige, 91. The English real property commissioners, in their report, in April, 1833, recom- mended alterations in the law respecting the revocations of wills, so as to rescue it from complicated and incongi-uons rules, and reducing it on this point to more sim- plicity. They proposed four modes, and four modes only, of revocation. (1.) By another inconsistent will or wiiting, executed in the same manner as the original will : (2.) By cancellation, or any act of the same nature : (3.) By the disposition of the property by the testator in his lifetime : (4.) By maniage, in the case of a woman. By the fii-st and thu'd of these modes, the will may be revoked, either entirely or in part ; by the second and last, the revocation would be complete. The statute of 1 Victoria, c. 26, so far followed the report, as to declare that all wills made by a man or woman are revoked by man'iage, except when made in exercise of a power, where the property appointed would not, in default of such appoint- ment, pass to the heir, executor or next of kin. No will was to be revoked by pre- sumption of an intention from an alteration of cii-cumstances. No will to be revoked othei'wise than by another will or codicil, or by writing executed like a will, or by destruction with intention to revoke ; and no alteration made after execution to have any effect unless executed as a will. No will in any manner revoked to be revived otherwise than by re-execution, or a codicil to revive it ; and if a part has been re- voked, and aftei-wai'ds the whole, such part shall not be revived by a revocation of the whole, unless an intention to revive that part be shown. No conveyance made or act done subsequently to the execution of a will, except it amount to a revoca- tion, shall prevent the operation of the will with respect to such estate as the tes- tator has power to dispose of at the time of his death. And a will shall be con- sti-ued to speak and take effect from the death of the t9stator. Thus in Dingley v. Dingley, 5 Mass. Rep. 536, the devise was of a remainder to the sons of A. who had three sons when the will was made, and five at the testator's death, and it was held that the devise was to the five sons. See King v. Bennet, 4 Meeson & TT. 35, to S. P. These English statutory provisions seem to have followed essentially the altera- tions made by the New- York Revised Statutes, and they cut up a vast field of estab- lished judicial legislation. Uc. LXVm.] OF REAL PROPERTT. 595 ill a labyrinth of cases ; and when detected and defined, they are not entirely free from the imputation of harshness and absurdity. An estate vests, under a devise, on the death of the testator, before entry. =■ But a devisee is not bound to accept of a de- vise to him nolens volens ; and he may renounce the gift, by which act the estate will descend to the heir, or pass in some other direction under the will. The disclaimer and renuncia- tion must be by some imequivocal act ; and it is left undecided whether a verbal disclaimer *will be suffi- *534 cient. A disclaimer by deed is sufficient ; and some judges have held that it may be by a verbal renunciation. Perhaps the case will be governed by circumstances.'' Y. Of the construction of wills. It will not be consistent with the plan of this work to do more than state the leading principles which have been established and applied to the construction of wills. The attempt to ex- amine cases at large on this subject would be impracticable, from the incalculable number of them ; and though we are not to disregard the authority of decisions, even as to the in- terpretation of wills, yet it is certain, that the construction of them is so much governed by the language, arrangement and circumstances of each particular instrument, which is usually very unskilfully and very incoherently drawn, that adjudged cases become of less authority, and are of more hazardous application, than decisions upon any other branch of the law.'= • Co. Liu. Ill, a. ^ TowDsoa T. Tickel, 2 Barnw. & Aid. 31. Doe v. Smyth, 6 Barnw. efc Cress. 112. "Webster v. Oilman, 1 Story's Rep. 499. To give the devise effect, as against the heir, the New-York Revised Statutes, (vol. i. 748, sec. 3,) require the will to be duly proved and recorded in the suiTogate's office, within four yeai-s after the tes- tatoi-'s death, with the usual exception in case the devisee be under disabilities. The manner of proving a will containing a devise of real estate, before the surro- gate, on the application of an executor, or devisee, or other person interested in the estate, is particularly pointed out by the New-York Revised Statutes, vol. ii. 5Y — 69. The proceedings on admission of wills of personal estate to probate, and the mode of relief by appeal from the admission or refusal of a will of real or personal estate, are detailed in the New-York Revised Statutes, vol. ii. 60 — 62 ; ihid. 66 — 68, and the act of 20th April, 1830, amending the same. » Wills are frequently di'awu in such a rude and perplexed composition, as to be ahnost impossible to be reduced to a consistent and intelligible meaning ; a remark- 596 OF KEAL PROPERTY. [Part VI. The intention of the testator is the first and great object of inqniry ; and to this object technical rules are, to a certain extent, made subservient. The intention of the testator, to be collected from the whole will, is to govern, provided it be not unlawful, or inconsistent with the rules of *535 *]aw.a (1) The control which is given to the intention by the rules of law, is to be understood to apply, not to the construction of words, but to the nature of the estate — to such general regulations in respect to the estate as the law will not permit ; as, for instance, to create an estate tail, to estabhsh a perpetuity, to endow a corporation with real estate, to limit chattels as inheritances, to alter the character of real estate, by directing that it shall be considered as personal, or to annex a condition that the devisee in fee shall not alien. To allow the testator to interfere with the established rules of law, would be to permit every man to make a law for himself, and disturb the metes and bounds of property. 'i able instance of this occurs in the case of Doe v. Pen-att, (16 Manning & Gran- ger, 314,) which was carried to the House of Loi'ds in 1843, in which the twelve judges were nearly equally divided on the questions whether a remainder vested in A. or B., and when, or was void for uncertainty ; and whether the words " fc'st male heir of the branch of D.'s family," were to be considered as used by the tes- tator in a technical or in a popular sense. These questions led to veiy elaborate dis- cussions, and there can be no provision which will avoid such questions, so long as a freedom of devising is allowed. They are beyond the reach of the ingenuity of codifiers. ' Pinlay T. King, 3 Peters' TT. S. Hep. 346. The testator may make his own glos- saiy in the will itself, and define the terms he employs. Where the latter part of a will is inconsistent with a prior part, the latter part will prevail. This rule is as ancient as the time of Lord Coke, (Co. lAtt. 112, b,) and was thoroughly examined and declared by Lord Brougham, ia Sherratt v. Bentley, 2 Mylne <& Keene, 149. Fraser v. Boone, 1 Hill's S. 0. Ck Rep. 367. S. P. (2) ^ Lord Hardwicke in Bagshaw v. Spencer, 2 Atk. Rep. 680. M'Kean, Ch. J., in Ruston v. Ruston, 2 Dallas, 244. State v. Nicols, 10 Gill & Johns. Rep. 1,1. In the case of Inglis v. The Trustees of the Sailors' Snug Harbour, 3 Peieri U. 8. Rep. 117, 118, the English rules of the constnietion of wills are declared and en- forced, to the extent that the intention of the testator is to be sustained if it can be done lawfully and consistently ; and that a general intent in a will is to be car- (1) Cromer v. Pinokncy, 8 Sari. Ch. B. 466. (2) Morrall v. Sutton, 1 PliUlvps' OJi. E. 583. This case contains a fiill and valuable discus- sion as to what amount of Internal evidence is required to establish such a repugnancy as to require prior provision to be set aside in favour of the latter. It must clearly appear that the provisions are incompatible. Such is not the case where the language of the latter clause can take effect as a qualification of the former, and not defeat lis intended eflect. Sweet v. Chase, 2 Oomst. B. 73. Lee LXVIII.] OF REAL PROPERTY. 597 It does not require the word heirs to convey a fee ; but other words denoting an intention to pass the whole interest ried into effect at the expense of any paiiicular intent, provided such general intent be consistent with the rules of law ; for when there are conflicting intents, that which is the naost important must prevaU. Chase v. Lockerman, 11 Gill Hogan v. Jackson, Cowp. Rep. 299. ' Jackson v. Bull, 10 Johns. Rep. 148. Jackson v. Martin, 18 ibid. 35. Spraker T. Van Alstyne, 18 Wendell, 200. Hai-ris v. Hy, 7 Paige, 421. ITLeUan v. Tur- ner, 15 Maine Rep. 436. Gibson t. Hoi-ton, 5 Earr. Preston oh Estates, vol. ii. 188. 192. 206. Beall v. Holmes, 6 Harr. i: Johns. 205, where this point is thoroughly exammed. See, also, Finlay v. King, 3 Peteri U. 8. Rep. 346. • Bro. tit. i>«)ise, pL 52. Willis v. Lucas, 1 P. Wms. ill. Frogmorton v. Holy- day, 3 Burr Rep. 1618. Doe t Cundall, 9 East's Rep. 400. 1 Sim. & Stu. 547. 550. Preston on Estates, vol. ii. 252. Cassell v. Cooke, 8 Berg. & Rawle, 290. But this rale that a gift by will to A. after the death of B. is a gift to B. for life by implication, is said to be confined to estates of inheritance, and is not applied to personal estates. White v. Green, 1 Battle Eg. Oases, 50. The heir at law may be disinherited by imphcation, according to the doctrine of Lord Eldon, in Kerrs v. Wauchope, 1 Bligh, 25, 26. If the testator gives his estate to A., and the estate of A. to B. ; in that case A. cannot be permitted to take the estate under the will, unless he performs the implied condition annexed to his devise, of giving his estate to B. He is put to his election. If he refuses to comply with the will, equity raises another implied condition out of the will, and gives to B., out of the estate de- vised to A., by way of compensation, the value of the estate intended for B.. But an imphcation may be rebutted by a contraiy implication equally strong ; for de- vises by implication are sustained only upon the principle of carrying the testator's intention into effect. Rathbone v. Dyckman, 3 Paige, 1. In Bampfield v. Popham, 2 Vern. 449, it was declared that an express estate for life could not be enlai-ged by implication. (1) A testator ordered a certain piece of land to be purchased, and gare tlie residue of his property to a charity, the owner of the land refused to sell ; it was held that tlie whole of the property went to the charity. 12 Sng. Jurist Bep. 1818, p. 19T. 606 OF REAL PROPERTY. [Pai-t VI- legacy of personal estate, and a lapsed devise of real estate ; and wMle the former falls into the residuary estate, and passes by the residuary clause, if any there be, and if not, passes to the next of kin, the latter does not pass to the resi- duary devisee, but the devise becoming void, the estate de- scends to the heir at law.^^ The reason given is, that a bequest of personal property refers to the state of the property at the testator's death, whereas a devise operates only upon land whereof the testator was seised when he made his will ; and it is not presumed that he intended to devise, by the residuary clause, a contingency which he could not have fore- *542 seen, or to embrace in it lands contained in the *lapsed devise.b There is a further distinction between a lapsed and a void devise. In the former case, the devisee dies in the intermediate time between the making of the will and the death of the testator ; but, in the latter case, the de- vise is void from the beginning, as if the devisee be dead when the will was made. The heir takes in the case of lapsed devise, but the residuary devisee may take in the latter case, if the terms of the residuary clause be sufficiently clear and comprehensive.'^ This distinction appears to be founded ■ Brown v. Higgs, 15 Vescy, "JOO. Roberts v. Cooke, 16 ibid. 451. Leake T. Robinson, 2 Merivale, 393. Humberstone v. Stanton, 1 Ves. & Beame, 388. Wool- mer's estate, 3 Wharton, 411. Denman, Ch. J., in Doe v. Edlin, 4 Adolph. <& Ellis, 582 Jones v. Peny, 4 Iredell, Eq. Oases, 200. By statute in Georgia legacies do not lapse, if any issue of the legatee be living when testator dies. JPrince's Dig. 256. So in Pennsylvania, Purdoris Dig. 6th edit. 972, and the legacy in favour of a child or lineal descendant of the testator, descends to the issue of the legatee dying in the lifetime of the testator. The law is the same in South Carolina, Yii'ginia, Ma- ryland, Massachusetts, and probably most of the other states. Mass. Mevised Sta- tutes, 419, sec. 24. 1 Revised Code of Virginia, 376. Young v. Robinson, 11 Oill lb Johnson, 32S. See Revised StatiUes of Connecticut, Vermont, New-Jersey and ■> Doe T. TJnderdown, Wines' Rep. 293. Lord Hardwicke in Durom- v. Motteux, 1 Ves. 325. Jones v. Mitchell, 1 Sim. & Stu. 290. The Court of Appeals in Ken- tucky, in Gore v. Stevens, 1 Dana's Ken. Rep. 207, adhered to the English distinc- tion as stated in the text. See, also, to S. P. 8 F«sey, 25. 15 ibid. Hi, 4:15. Cruise V. Barley, 3 P. TTms. 20. lF«5«y,140. 10 Vcsey, jr., 500. James v. James, 4 Pair's, 115. "Warner v. Swearingen, 6 Dana's Ken. Rep. 195. But in the case of a devise to A. and the heirs of his body, and in default of issue to B. in tail, and A. dies in the lifetime of the testator, though the devise to A. had lapsed, yet the remainder to B. vested immediately on the testatoi^'a death. White v. Wai-ner, 3 Doug. Rep. 4. - Doe V. Sheffield, 13 East's Rep. 626. Doe v. Scott, 3 Maule d Selw. 300. LecLXVIII] OF REAL PROPERTY. 607 on a presumption (though it would seem to be rather over- strained) of a difference in the views and intention of the testator between the two cases. The subject has been I'e- cently discussed in the courts in this country. In Green v. Dennis^^ the devise was held void, because the devisee was incompetent to take ; and yet, though the devise was void from the beginning, the heir was preferred to the residuary devisee, on the ground that the testator never intended that the specific devise, which was void, should fall into the resi- duum. The residuary devise was of " the rest and residue of the estate not therein disposed of" But where the devise was upon a condition subsequent, and a contingent interest depending upon the failure of that condition, the residuary devise was held, in Hayden v. Stougliton^ to be entitled to Lessee of Ferguson v. Hedges, 1 Harrington's Del. Rep. 524. In Van Kleek v. The Reformed Datch Church, 6 Paige, 600, Chancellor Walworth examined the subject at large and with a review of all the English cases ; and he concludes that the case of Doe v. Sheffield was contrary to the strong current of decisions iu fa- vour of the claims of the heir at law in such cases, which had existed for nearly a century, and that its effect was entirely destroyed by a decision in the House of Lords, the other way, three or four years afterwards. It was a solitary opinion without reference to a single adjudged case previously existing to support it. He concluded that a residuary devise of all the testator's real estate not before disposed of by his will, did not embrace real estate which was in terms absolutely devised to others, although such real estate was not legally and effectually devised, either from the incapacity of the devisee to take real estate by devise, or by reason of his death in the lifetime of the testator. The weight of English and American au- thority would appear to be in favour of this conclusion, and that the heir at law takes in such a case, and not the residuary devisee. This decree was affirmed on appeal to the Court of Errors, in December, 1838. See 29 Wendell's Rep. 451. • 6 Conn. Rep. 292. Lingan v. Carrol, 3 Harr. & M' Henry, 333. S. P. In Con- necticut, if the devisee or legatee, being a child or grandchild of the testator, dies before him, and no provision be made for such a contingency, the issue of such de- visee or legatee take as if he had survived the testator. But if there be no such issue, the estate so disposed of by that devise or legacy is to be treated as intestate es- tate. Statutes of Connecticut, 1839, p. 227. Sec, also. Statute of New- Jersey, 182-4, Elmer's Dig. 601, Revised Statutes of Vermont, 1839, p. 25Y, and Revised Code of Mississippi, 1824, p. 32, to the same effect. So, also, by the statutes of 19th March, 1810, in Pennsylvania, if a child or other lineal descendant of testator dies before him, leaving issue, the devise or legacy does not lapse, but remains good in favour of the issue. The general rule of the English law is, that a bequest of per- sonal property fails, if the donee dies in the lifetime of the testator. The rule is otherwise in Scotland. ' 5 Ficlc. Rep. 628. 608 OF REAL PROPERTY. • [Part VI. the estate in preference to the heir, because the contingent interest had not been specifically devised, and it was carried along by the residuary devise. The alteration of the law in New-Tork, Yirginia and those other states, making the devise operate upon all the real estate owned by the testator at his death, may produce the effect of destroying the application of some of these distinctions, and give greater consistency and harmony to the testamentary disposition of real and per- sonal estates.'' The title by devise closes the view of the law of real pro- perty, and with it the present work, which has insensibly extended far beyond my original intention. The *54:3 *system of our municipal law is so vast in its outlines, and so infinite in its details, that I have passed by many interesting subjects, to which I have not been able to extend my inquiries. The course of lectures in Columbia College included an examination of the remedies provided for ■ By the English statute of wills, of 1 Victoria, c. 26, unless a contrary intention appeal's, a residuai-y devise includes estates comprised in lapsed and void devises. So, a general devise or bequest includes estates or personal property over -which the testator had a general power of appointment. The Law of Legacieshas grown into a copious system, and has been well digested by Mr. Roper ; but with much more force, precision and aceui-acy by Mr. Preston. It is too full of detail, and too practical to admit of much greater compression than Mr. Preston has given it ; and I have been obliged, in the present extended state of this work, to desist from the attempt. Some provisions, as to the payment of legacies, are inserted in the Ncw-Yorh Revised Statutes, vol. iii. 90, sec. 43 — 51. They are not to be paid until after a year from the gi-anting of letters testamentary, or of administration ; and payment may be enforced by the suiTogatc. When a legacy, subject to a contingency, becomes payable and is paid, it has been held to be ab- solutely vested, and not liable to be hung up and divested by a contingency hap- pening subsequently. Coehoun v. Thompson, 2 Molloy's Hep. 281. If the lega- tee be a minor, legacies under the value of $60, may be paid to the father ; and of the value of ?50, or more, to the general guardian of the minor on approved secu- rity. The foimer rule was, that the father, guasi father, was not entitled to receive the legacies due to his minor children. Genet v. TaJlmadge, 1 Joifms. Ch. Hep. 3. Miles V. Boy den, 3 Pich Rep. 213. So, after the expiration of a year from the gi-anting of letters testamentary, or of administration, the executor or administra- tor may be sued for a legacy, or distributive share, if there be sufficient assets, and a demand previously made, and a bond, with approved surety given, to reftind in case of need. Nem-York Revised Statutes, vol. ii. 114, sec. 9 — 17. In Pennsyl- vania, by the act of 1810, no devise or legacy to lineal descendants lapses by rea- son of the death of the devisee or legatee in the lifetime of the testator, if such devisee or legatee leave issue sui'viving the testator. Lee. LXVIII.] OF REAL PROPERTT. 609 the recovery of property, and redress of injuries ; and I had prepared and delivered lectures on the history of a suit at law, according to the English model, including the doctrine of special pleading. But that subject has been laid aside ; for, to extend such a discussion beyond the courts of New- York, was not in my power ; and the object of the work is professedly national, and not local. I have not the means at my command to give any thing approaching to a full and coiTect view of the practice of the courts in *the *544: several states ; nor woiild the value of such a work be worth the effort. The remedies, in every case, have been alluded to, and the principles on which they were founded stated, when we were upon the subject of rights ; but the practice in the state courts is exceedingly diversified, and is undergoing constant changes. That of New-York, in particu- lar, was essentially altered by the revision of the statute law in 1830 ; and the science of special pleading (curious, logical and masterly as it is) has fallen into very considerable disuse and neglect in almost every part of the country, without the prospect, or perhaps the hope of revival.* The general prin- ■ Lord Tentei'den, in 3 Barnw. & Adolph. 16, observed, that special pleading was founded upon and adapted to the trial by jury ; for the object of the scieuce was to reduce the case before trial to a simple question of fact, whereby the du- ties of the jury might be more easily and conveniently discharged. And to those students who would wish to study the subject thoroughly, I would recommend Stephens' Treatise on the Principles of Pleading, as being the best book that ever was written in explanation of the science. The legislature of Maine, in 1831, enacted, that in all civil actions the general issue shall be pleaded, and the defend- ant is not entitled to plead any other plea to the merits than the general issue, and he may give the special matter in evidence under that plea. So, also, the legisla- ture of Massachusetts, by statute of 16th April, 1836, enacted, that " in every civil action thereafter to be tried in the Supreme Judicial Court, or Court of Ccmmon Pleas, all matters of law or of fact, in defence of such action, might be given in evidence under the general issue, and no other plea in bar of such action should be pleaded." In New- York the statute is not imperative, but merely allows the de- fendant to plead the general issue, and give any special matter in evidence, which, if pleaded would be a bar, on giving notice of the special matter. But the courts Consider the statute as very remedial, and construe the notices most liberally. Chamberlain v. Gorham, 20 Johns. Rep. 746. Fuller v. Rood, 3 Hill, 258. The enactment in Massachusetts is a thorough innovation upon the settled and orderly course of eommou law proceedings in the administration of justice. The danger is that like other sudden and extreme refomis in the established law, it may prove to be injudicious and inconvenient, and operate as an oppressive check to the invest!- Vol. lY. 39 610 OF REAL PROPERTY. [Part VI. ciples of equity have also been stated in the course of the work, so far as they were applicable to the various subjects which came successively under review ; but, for the reasons already mentioned, in reference to suits at law, I have not undertaken to meddle with the remedial branch of equity jurisprudence. The law of crimes and punishments is, no doubt, a very important part of our legal system ; but this is a code that rests, in each state, upon an exact knowledge of local law ; and, since the institution of the penitentiary sys- tem, and the almost total abolition of corporal punishment, it has become quite simple in its principles, and concise and uniform in its details. Our criminal codes bear no kind of comparison with the complex and appalling catalogue of crimes and punishments, which, in England, constitutes the basis of the system of the pleas of the crown. I trust I have already sufficiently discharged my engage- ments with the public ; and I now respectfully submit these volumes to the candour of the profession, though not without being conscious of th6 imperfection of the plan, and still more so of its imperfect execution. gation of truth and the application of la-w. The English goverament, on the other hand, have, aa late as the fourth year of the reign of Wilham IV., in their ■wisdom and experience, very much restricted the use of the general issue in pleading, and increased in a tenfold degree the necessity of special pleading, as more conducive to truth, to certainty and to justice. See the American Jurist, No. 32, art. B. INDEX. Tho Roman numerals refer to the volume ; the figures to the pages of this edition. A Abaiutonment, of easements, from non- user, iii. 548 — 563. of injured goods to ship-owner, iii. 286. (See Insurance^ iii. 393. offreight, iii. 408-9-10. Abeyance, fee in, iv. 265, 266, 267. Abjuration, of allegiance, ii. 26. of the realm, ii. 1 39. Abridgments, of the law, i. 658. Absconding and absent debtors, ii. 496. 498. Absent seamen, iii. 255. Absolute rig/Us, i. 599. of personal safety, i. 610. of personal character, i. 619. of personal liberty, i. 631. of religious liberty, i. 644. Acceptance, (see Delivery,) ii. 494, 496. 502-3. 545. when required under statute of frauds, ii. 635. to keep safely, ii. 125. of bills of exchange, iii. 98. of forged drafts, iii. 103, 104. n. Accommodation bill, what rules govern- ing, iii. 103, 104, 105. 150. partners may not make, iii. 105. Acknowledgment, of deeds, iv. 605. Actions, who has a right to bring, on promise, ii. 606. 608. (See Covenant.) real, iv. 11. Acts of Congress and of Legislature, (see Statutes.) Accession, title by, ii. 426. 430. Account, action of, iv. 375. Accumulation, of profits of personal property, i. 416. of profits of real estate, iv. 289. 297. if void, other parts of will good, iv. 363. Adjudications, force of, i. 525. 530. Adjustment, of loss on fii-e policies, iii. 453. Adjustment, of general average, iii. 306-7. (See Average.) of pai-tial loss, (see Insurance,) iii. 410. 414. distinguished from general ave- rage, iii. 412-13. Admeasurement, of pasture, iii. 534. Administration, at common law, ii. 499. m Ifew-Tork, ii. 500 — 504. who is entitled to, ii. 503, 504. letters of, may be revoked, ii. 505. 508. order of payment of debts, ii. 508—516. under foreign letters, (fee, ii. 632 —643. distribution among next of kin, ii. 616. 542. of goods in other jurisdictions, ii. 632—643. foreign subsidiary, ii. 537—539. foreign, of remission under, ii. 638, 639. Administrators, their duty, ii. 506 516. (See Executors.) their hability, ii. 508 — 510. public, in New- York, ii. 501. rights to sue under foreign let- ters, ii. 533 — 537. nature of their title, ii. 534. Admiralty Courts, when proceed in rem as to prize, i. 389. criminal jurisdiction of, i. 390 — 396, 397. 400. nature of proceedings in criminal cases, i. 397. have jurisdiction of cases of for- feiture and seizure, i. 410. as instance courts, i. 414—418. as ijrize courts, i 387 — 414. (See Admiralty Jurisdiction.) foi-m of writs and other process, in, i. 418. Admiralty jurisdiction, (see Admiralty Courts.) in prize cases, i. 387. 612 INDEX. Admiralty jurisdiction, as to prize made on shore, i. 388. ■when lost as to prize, i. 389. in criminal cases, i. 390 — 396. 407. when it attaches, i. 391. 394. 398. marine torts, ii. 396. how distinguished from common law, i. 398. 406. 409. of maritime causes and contracts, i. 401 — 414. 416. history of, traced, i. 401 — 403. in cases of general average and4' salvage, i. 403, note, 405, 406. none to enforce specific perform- ance of contracts, i. 405, note, of charter-parties, i. 405, 406. what are civil cases of, i. 410. is exclusive, i. 412, 413. in cases of mortgage of ships, i. 406, note, as to matters partly on sea and partly on land, i. 414. of maritime hypothecations, i. 414. within ebb and flow of tide, i. 398. 400. 414. 416. as to salvors and seamen, i. 41 6. in personam and in rem, i. 415, 416, 417. Adoption, of acts of agent, ii. 786. Adultery, (see Divorce and Dower.) Advances, future, mortgage for, iv. 184. to achild, ii. 518. iv. 441. Adverse possession, lands held by, may not be purchased, iv. 484—6-7. of chattels, ii. 608. Affreightment, iii. 269. 315. (See Charter-party.) general ship and chartered ship, iii. 260. on default of hirer or owner, re- medy, iii. 262. owner responsible, as common car- rier, iii. 264. 275. cargo, how to be stowed, iii. id. goods embarked, without owner's knowledge, iii. id. (See Bill of Lading) duty of in sailing vessel, and car- rying goods, iii. 267. deviation in voyage, effect of, iii. 268. duty of master on disaster, iii. 270-1. " " " " capture, iii. id. hire of another vessel, when re- quired, iii. 271. cargo, how delivered, iii. 273. when responsibility for ceases, iii. id. extent of ship-owner's responsi- bility as carrier, iii. 275. | Affreightment, act of congress as to lia- bility of carrier, iii. 276, n. duty of freighter or charterer, iii. 279. contract dissolved by war, iii. 313. temporaiy impediment does not dissolve, iii. 314. Agency, what, ii. 784, (see Principal, Agent.) general principles of law of stated, ii. 830—832. Agent, (see Factor, Broker, Attorney, Wharfinger, Warehousetnan, Com- mon Carrier.) proof of authority of, ii. 785. 789 — 813, (see Principal) general, how far adopt acts of sub- agent, ii. 786. when authority of may be in- fen-ed, ii. 787. general power and duty of, ii. 789 —813. power to sue, arbitrate or com- mute claims, ii. 7 89, note, must obey instructions, ii. 790. acts bind as far as his authority reaches, il 792, 793. general, ii. 793. special, are dealt with at peril, ii. 793, 794. " false representations by, iL 794. who have general authority for a particular business, ii. 795. authority to make negotiable notes, ii. 796, note. when authority presumed, ii. 796, 796. when sell on credit, ii. 796 — 799. when deemed owner, <&c., ii. 803, 804. contract with, when contract with principal, ii. 804—813. when personally bound, ii. 805 — 809. 830. notice to, when notice to principal, ii. 805. effect of taking note of, ii. 807, note. of foreign principals, who bound by acts of, ii. 807, 808. exceeding his power, liability of, ii. 809. public, liability of, ii. 786. 810, 811.832. not responsible to third persons for neglect of duty, ii. 81), note (1.) but is for positive wrongs, ii. 811. power to employ sub-agent, ii. 812. lien of, ii. 813—824, (see Lien.) may not transfer his trust, ii. 825. authority of, how determined, ii. 824—829. INDEX. 613 Agent, when alone liable, ii. 830. ■when both principal and agent liable, ii. 831. when neither principal nor agent liable on the contract, ii. 832. (See Servants.) liable for negligeace in collecting notes, iii. 116. of state, may be sued in federal courts, i. S81. corporations liable for acts of, ii. 318, note, 332— 335. 346. authority of, may be revoked, ii. 826. compensated by share of profits, not a partner, iii. 22. 32. may not purchase ti'ust property, iv. iii. Agreement, specific performance of, ii. 597—605. iv. 493. (See Contract.) agisters of cattle, ii. 4*74. iv. 124, note. Air, right to, acquired by uses, iii. 547- 8-9. Alienation, by deed, iv. 479. (See Deed) history of, iv. 479. ■who may alien, iv. 484. Alienations, of land, iii. 618. iv. 479. restraints on, void, iv. 135. may be suspended for two lives, iv. 279. A liens, and natives, ii. 1 — 38. when naturalized, to abjure foreign allegiance, ii. 1 1, note, defined, ii. 12. children of, at common law, ii. 12. " and widow of, under laws of United States, ii. 13 — 15. not acquire property by descent or operation of law, ii. 15, 16 — 18. 33. by domicil, i. 81. distinction of ante-nati and post- nati, ii. 19—22. under French laws, ii. 31. may be divested of real estate, ii. 23. can hold and transmit personal property, ii. 24. may take mortgage of real estate, ii. 25. right to sue and be sued, ii. 26. allegiance due from, ii. 26. how naturalized, ii. 26. 29. oath by, of intention to renounce foreign allegiance, ii. 26. estate of deceased, how distribu- ted, ii. 29—32. privileges conferred upon by states, ii. 32 — 35. Aliens, disabilities of, as to uses and trusts, ij. 24. enemies, rights of, to sue, il 25. rights to no privileges not confer- red by treaty, ii. 85. under Constitution of United States, ii. 35. what may be naturalized, ii. 36. condition ou breaking out of hos- tilities, i, 64. protected in the use of trade- marks, ii. 446. entitled to benefit of attachment laws, ii. 488, note (1.) where sue for a tort, i. 333. widow of, entitled to dower, iv. 35. rights to sue in federal courts, i. 374. Alimony, allowed to wife, ii. 69. Allegiance, what, and how lost, ii. 2 — 12. not defeasible in England, ii. 4, 5. doctrine of, in this country, ii. 6 — 12. common law of, how fai- changed, ii. 10, 11. natural, what, ii. 4. when it attaches in this countiy, ii. 2. not lost by foreign domicil, ii. 11. requires a return iu case of war, ii. 12. origin of oath of, iii. 622. 624. oath of intention to renounce, ii. 26. to whom due, ii. 6. how far due from aliens, ii. 26. Alliance, offensive and defensive, force of, i. 58. effect on licenses, i. 177. Allodial estates, in the middle ages, iii. 607—612. how extinguished, iii. 611. their revival, iii. 624. what estates are, iv. 2, 3. Allowance, of one-third new for old, in insurance, iii. 415. Alluvion, what, iii. 519. doctrine of, iii. 519-20. islands, formed in sea or rivers, iii. 519. Ally, co-operating, liable to confiscation of property, i. 78. not to trade with enemy, i. 77. included in treaties of peace, i. 77. Alteration, of deeds, effect of, iv. 497. Amalphitan Table, iii. 8. Ambassadors, fj^ee from arrest, i. 15. immunity of, established, i. 185. when suspended, i. 45. grades of, i. 47. binding acts of, i. 48. Ambiguity, what, ii. 720, note, 721, note. 614 INDEX. Amotion, defined, ii. 343. Ancestral estates, iv. 425. Ancestor, debts of, -when heir liable for, iv. 443. Ancient lights, doctrine of, iii. 647-8-9. denied to exist in New-Tork, iii. 649. Animals, feviB naturjE, ii. 409. Animus manendi, i. 84. Annexation of territory by Congress, i. 277. Annuity, defined, iii. 568. no courtesy nor dower in, iii. 668. personal property, sub modo, iii. 568. when not reached by creditoi''s bill, iv. 327. to childi'en, when inalienable, iv. 327. when apportioned, iii. 681. Antenaii, (see Aliens) Antenuptial, contracts, ii. 161. Antichresis, iv. 140, note. Anticipation, clause against, ii. 151. 158. Appeal, in criminal cases, i. 383. Appellate Jurisdiction, of Sup. Court of U. S. i. 324. 326. 346—349. (See Jurisdiction.) Appointment, (see Power.) Apportionment, of rents, iii. 678. (See Rents) of annuities, iii. 680. of wages, iii. 580. of freight, iii. 408. of premium, iii. 417. of representation in congi-ess, i. 240. Appraisement, of lands seized on execu- tion, iv. 461. Apprenticeship, contract of, must be in writing, ii. 284, note (1.) refusing to work, may be impri- soned, ii. 286. of orphan children, ii. 286. right of master to assign, iL 229. 288. Apprentices, defined, ii. 283. law of New-Tork relative to ii. 284, 285. right of master to assign, ii. 229. 288. earnings of, belong to master, ii- 288, 289. recent legislation as to hours of labour by, ii. 289. (See Guardian and Ward, Mas- ter and Servant) Appurtenances, to lands sold, iv. 6 1 6, 5 1 7. Aquatic rights, iii. 514. Arbitration, one partner cannot submit to, iii. 53. Armed neutrality, the, i. 131. 155. ^rms, of the sea, i. 28. 32. Articles, shipping, (see Seamen) iii. 229 —239. of confederation, i. 215. Assent to trust deeds, ii. 691. iv. 319. by grantee of deed, iv. 500. Assessments, principles upon which to be made, ii. 394. Assets, what go to the executors, ii. 507. 509. in futuro, iv. 371. (See Distribution and Adminis- tration) how marshalled, iv. 445 — 448. Assignee, of lessee and mortgagee, lia- bility of, iv. 100. bound by covenant to pay assess- ments, iv. 100. of covenants, iv. 524. right of, to sue in federal courts, i. 379, 380. of reversion, right of, to sue, iv. 126, note, in bankruptcy, authority of a joint, iv. 320. Assignment, what is subject of, ii. 483 — 486. under insolvent laws, ii. 479. 483—486. 495. goods not delivered, after, evi- dence of fraud, ii. 684, (see Fraud, Mortgage) right of giving preferences, ii. 689—692. when assent of creditors to be given or presumed, ii. 691, 692. must not coerce creditors, ii. 693. must not reserve any benefits to assignor, ii. 694 — 696. does not pass franchise, ii. 364. (See Apprenticeship) general, cannot be made by one partner, iii, 47. by pai'tner of private property, for partnerslu'p debts, iii. 78. of stock, how afli?cted,ii. 741, 742, of stock, by way of security, ii. 741. voluntary, by insolvents, ii. 480. 688. of part of a debt, ii. 688. of reversions, iv. 126. of policy, iii. 328. of dower, iv. 60. of breaches in covenants, iv. 525. of possibilities, iv. 269, 270. in trust, without assent of cestui que trust, ii. 689. iv. 320. of interest in land, to be in wri- ting, iv. 491. of lessee, for years, iv. 99. foreign, effect of, ii. 493—498. Athenians, their maritime laws, iii. 2. Attachment, law relative to, in New- York, ii. 486. INDEX. 615 Attacfiment, foreign, ii. 489. 492. how affected by foreign bankrupt laws, ii. 493—498. in rem, i. 280, note, on mesne process, iv. 468. local laws relating to, 468. lien by, i. 262. proceedings by, m rem, binding, i. 281. Attendant terms, iv. 88. 9B. Attorne;/, authority of, ii. 789. 793. General of United States, i. 337. power of, when revocable, ii. 825 —829. " when agent conceals re- vocation of, ii. 826. Attorneys, iargains with clients, validity of, iv. 489, 490. lien of, ii. 821. may commit maintenance, iv. 488, liability of, who exceeds his pow- er, iL 809- Attornments, defined, iv. 545. when necessary, iv. 545. to mortgagee, after forfeiture, valid, iv. 172. Auction, sales at, ii. 697 — 702. bidding at, when reti'acted, ii. 698. puffers at, ii. 699. eales at, as affected hy statute of frauds, ii. 701. goods to be sold at, when duties not paid, ii. 710. Auctioneer, no authority to rescind sale, ii. 699. has lien on goods for- advances, ii. 801. may become pawnbroliei-, ii. 802. Average, general, iil 295. particular, iiL 295. and primage, iii. 295. general, on jettison, iii. 296. no contribution if ship be lost, what damages or expenses sub- jects of, iii. 298-9. 300-1. bond from consigaee, iii. 3-08. wages of seamen, when subject to contribution, iii. 300. vessel lost by voluntary stranding, and cargo saved, KL 302-3. ivhat goods contribute, iii. 304-6. adjustment of, iii. 306-7. on bottomry, iii. 434. value of goods, ship, Ac, how es- timated, iii. 306-7. foreign adjustment binding, iii. 307. payment of, how made, iii. 308. particular, adjustment of, iii. 413. Aversianem periculi, iii. 331. vt. 517. B Bacon, Lord, his definiiion of war, i. 56. his writings, i. 555. Baggage, check for and loss of, iL 770. owner may swear to value of, ii. 770.772. Bail, in the Eoman law, i. 572. Bailee, bound to restore property, ii. 729—732. liability ot, in case of deposit, ii. 723—728. liabihty of depositor for neglect, iL 723. liability o^ in case of mandate, ii. 732—787. liability of, in case of commodate, iL 738—740. liability of, in case of pledge, ii. 742—746. liability of, in case of pledge, if stolen, ii. 744, 745. may not retain pledge for other debts, ii. 749. has special property, and may sue, iL 729. 731. 737. 742, 743. 760. liability of, in cases of hiring, ii. 761-753. liability of; when he mortgages the thing bailed, ii. 752. when property in thing bailed passes to, iL 763 — 768. liability of, as carrier, iL 764 — 783. (See Oorrvmon Carriers.) in case of pledge, may sell, ii. 745 — 747. when compelled to perform ser- vices gratuitously assumed, iv. 320, note (1.) Bailments, iL 722 — 783, (see Bailee and Bailor.) defined, ii. 722. different species o^ iL 722. when property passes by, ii. 754 —767. by Deposiium, defined, ii. 723. 728. liability of depositary, ii. 723—728. when liable for ordinary neglect, ii. 727. duty of depositary to re- store property, ii. 729-732. by Mandatum, defined, ii. 732. liability, ii. 732—737. by Oommodatiim, defined, ii. 737. liability, ii. 738—740. where expense is incurred, ii. 740. by pledging, defined, iL 741. share of stock, ii. 741, 742. liability, iL 742—746. 616 INDEX. Bailments, by pledging, deliveiy essential to, ii. 745. corers interest, ii. 748. not retain for other debt, ii. 749. by locatum or hiring, defined, ii. 760. various kinds of, ii. 751. locaiio rei,n. 761 — 753. locatio operis faciendi, ii. 753 — 758. liability, ii. 757. innkeepers, ii. 758, (see Inn- of locatio operis mercium ve/ien^ darum, ii. 764, (see Common Car- riers.) Bailors, ■when bound to refund money expended by bailee, ii. 740. pledgor may assign or sell, ii. 743 —747. Baltic, maritime code, i. 131. Bank hills, when goods, ii. 781. Banks, liable for negligence in collecting notes, ill. 116. Bank, national, not to be taxed by states, i. 468. authority of congress to create, i. 266—272. authority of congress to create under confederation, i. 272. of U. S., right of to sue in the federal courts, i. 378. 382. 399. not taxable, i. 468. checks, when to be presented for payment, iii. 99, 100. 107. 132. distinguishable from bills, iii. 132. drawer's want of funds, excuses presentment, iii. 145. Banks of rivers, (see Riparian owners.) Bankers, lien of, ii. 798. 820. Banking companies, (see Joint Stock Companies.) Bankruptcy, distinct from insolvency, ii. 469, 470. right of states relative to, ii. 471 —475. laws, when conflicting with insol- vent laws, ii. 494. return of goods after, ii. 664, note. Bankrupt laws, i. 420. ii. 468—480. Barbary States, i. 191. Bargain and sale, whether contingent use can be i-aised on, iv. 252. consideration necessary to, iv. 550. Barratry, defined, iii. S79. Bastards, descent of property to, iv. 436 —441. (See Legitimacy and Children.) putative father, ii. 222. rule relaxed in many states, ii. 219—221. iv. 436—441. Batture, (see Alluvion,) iii. 519. Batture, doctrine in Louisiana, iii. 519. Bays, (see Anns of the sea.) Belligerents, rights of, with I'espect to each other, i. 96. Benefices, originals of feudal tenants by grant, iii. 607. when they became hereditary, iii. 608. Bequests, to unincorporated companies, when good, ii. 323. when void, for uncertainty, ii. 326, note (1,) 320. •■ when void, as against public poli- cy, ii. 329, note. Bets, not ground of contract, iii. 345. (See Devise.) Betterment, law, ii. 387. (See Improve- ments.) Biddings, at mortgage sales,when opened, iv. 203. (See Auction.) Bigamy, ii. 43—45. 689—697. Bills of Exchange, iii. 83—171. history of, iii. 83. inland and foreign, iii. 118. 1. Definition and essential qualities of bills, iii. 86. parties to, iii. 86. must be, for payment of money, iii. 88. payment must not be contingent, iu. 89. negotiable, when, iii. 90. effect of words "value received" in, iii. 91. signature, iii. 91. fictitious payee, ui. 92. 2. Rights of holder, iii. 92. Bona fide holder, when his title is protected, iii. 92. ■when bills are void to bona fide holder, iii. 94. consideration, when inquired into, iii. 95, 96. transfer not in course of trade, effect of, iii. 96, 97. burden of proof, when imposed on holder, iii. 97. 3. Acceptance, iii. 98. how made, iii. 100. when wi-itten acceptance required, iii. 100. promise to accept, before bill drawn, when valid, iii. 100, 101, 102. sight bills, when to be presented for, iii. 98, 99. general or special, iii. 100. implied, iii. 103. legal effect of, iii. 103, 104, 105. 149, 160. acceptance, supra protest, iii. 106, 107. INDEX. 61T Bills of Exchange, bank cheoks.when to be presented, 99, 100. lO"?. 132. 4. 0/ the Endorsement, iii. 108. • feme covert, payee, partners, iu- kat, iii. 108, 109. 5. Protest, iii. 115. of foreign bills, iii. 115. of inland bills, iii. 110, 117. negligence in protesting, conse- quence of, iii. 116, note, 119. 6. Demand of Payment, iii. 119, 120. 131. ■what is sufficient, iii. 120. when excused, iii. 120. ■when to be made at particular ■place, iii. 120. 122. 125, u. due diligence to find acceptor, ■what, iii. 120. days of grace, iii. 126, 12T, 128. ■when bill falls due ou Sunday, iii. 129. ■when to be made on time, or sight bills, iii. 129, 130, 131. at what time of day to be made, iii. 128. 1, Steps to fix Drawer and Endorser, iii. 131. reasonable notice of demand re- quired, iii. 131, 132, 133. notice, by whom to be given, iii. 131, 132.135. 141, notice, ■within what time, iii. 134, 135. notice, ■when to be personal, iii. 137. notice, to ■what place directed, iii. 138, 139. notice, want of, excused, how and when, iii. 139. 141. 143. notice, contents of, iii. 141. notice, waiver of, iii. 142. notice, no effects, with drawee ex- cuses, iii. 143, 144, 145. giving time to accept, effect of, iii. 145, 146, 147. subsequent promise, effect of, iii. 147. 8. Damages, measure of, iii. 151. general law-merchant, as to, iii. 151. rule in American States, iii. 153 —159. (See Guaranty.) Bills of Lading, what is, iii. 265. by whom given, iii. 265, 266. extent of engagement of, iii. 265. different sets of; iii. 266. endorsement of, iii. 266. rights of bona fide endorsee, iii. 266. endorsee of, when liable for freight, iii. 282-3. Bills of Lading, endorsee of, may bring action in his own name, ii. 712. deposit of, creates a lien, ii. 713. effect of endorsement of, ii. 710 — 715. ■when master signs for goods not on board, ii. 712, note. ■when possession of, gives title, (see Possession.) Bill of sale, effect of, ii. 638. 651. effect of one, without possession, ii. 66,5—688. gi'and, of ships, (see Ships,) iii. 173—176. recital of registry in, iii. 188. Bills of Credit, what, i. 448, (see State.) Bills and Notes, treatises and writers on, iii. 168—171. given by partners, iii. 43. 46. Bill of Bights, history of, i. 599. English bill of rights, i. 606. 610, 611. " petition of rights, 606. " Magna Charta, 606. Connecticut colony, declaration, 1639, i. 601. New- York colony, declaration, 1691, 1708, i. 601. vaiious American declarations of, i. 600. 610. Blacks, (see Persons of Colour.) Blackslone, i. 552. Blank Endorsement, iii. 109. Blockade, law of, i. 145, definition of, i. 146, 147, note, suspension of, i. 147. ending of, i. 148. presence of adequate force, i. 146. precludes egress and ingress, i. 148. of port of discharge, iii. 284. notice of, essentia), i. 149. notice of constructive, i. 149. intent to violate, effect of, i. 150, 151. breach, penalty of, i. 152. Bocland, iv. 480. Book of Fiefs, iii. 609. Bona fide purchaser, of land, protected, iv. 513. of chattels, when protected, ii. 673—688. (See Possession) Bottomry, by master of vessel, iii. 218, 219. bond, iii. 429. Boundaries, on water, iii. 514-15. on waters above tide, iii. 616-17. 520—23. stream used as boundary, iii. 518. ditch or wall, ownership of, iii. 520. construction of boundaries, iii 622. 618 INDEX. Boundaries on highways, effect of, iii. 625. on street, iii. 526. may be restricted by express words, iii. 628. Bounds and Landmarks, iv. 515. Braxton, i. 551. Bridges, over navigable waters, right of state to erect, iii. 523. Broker, ii. 622. iii. 327. Burlemaqui, i. 18. Bynkershoeck, on marine jurisdiction, i. 30. Calendar month, iv. 98, note. Ganal boats, ii. 777. Oancelling a deed, iv. 298. iv. 497. Capture, raarilime law of, i. 78. English decisions, ii. 78. rights to vest in the sovereign, i. 108. when title to complete, i. 109. after peace concluded, i. 173. jurisdiction, i. 384. where it gives title to property, i. 116, 117. Cargo, deliveiy of, iii. 273. when responsibility of owner ceases on, iii. 273. substitute, covered by policy, iii. 386. on deck, iii. 267. 303. Carriers, (see Common Carriers^ Cartel ship, i. 77. Case, within the constitution, i. 354. Casus foederis, i. 58. Cesser, iv. 91. 108. Cestui que trust, an alien, ii. 26. in equity, iv. 315 — 321. Cestui que use, iv. 307 — 310. Cattle, trespass by, iii. 535. Causa proxima spectatur, rule in insu- rance, iii. 374. Caveat emptor, ii. 608. 610 — 616. 623. does not apply to contract of in- surance, ii. 627. Ceded territories, (see Congress, and ter- ritories ceded, Joe., and cession of territory.) jurisdiction over, (see State and Congress.) Cessio bonorum, what, i. 466. Cession of territory,!. 180. possession necessary to complete, i. 180. laws, municipal, how affected by, i. 180. 525. state not bound to iudcninify for loss by, i. 181. in places ceded to U. S., I 423. Champerty, what, iv. 5. 8, 9. 484. Chancery, powers how exercised in dif- ferent states, iv. 168, note, process on execution, iv. 457, note, remedial assistance on executions, iv. 472-3. jurisdiction over foreign suits, i. 464. ii. 100. jurisdiction over lands abroad, ii. 681. juiisdiction to decree sales, iv. 343. repoi-ts in, i. 643. Charge of a legacy on land, iv. 604. Charitable establishments among the an- cients, i. 234, note. Cliaritable use, right of corporations to hold to, ii. 321—329. defective, when aided, ii. 324. statute of, (see Statute.) devises to, when valid, iv. 563. (See Uses) Charily, when public, ii. 306. , Charterer, his duties, iiL 261. (See Charter-Party.) (See Freight.) Charter-party, may be made by master, iii. 208. definition of, iii. 259. contents of, iii. 259. duty of owner as to ship, iii. 261. 263. liability of owner as to defects, iii. 263. Chattels, defined, ii. 401. 402. remainder, limited upon, ii. 413. 417, 418. right of owner to enter upon an- other's land to take possession, iv. 122. real, il 401. qualified property in, ii. 409. personal, ii. 400. gifts and settlements of, ii. 547. interest in tlie herbage and fruits of land, iv. 493, note. Checks, for baggage, ii. 770. bank, iii. 88. 107. 112. 131. 145. (See Bills of Exchange.) Cherokee Indians' right, iii. 465. Children, when they may be bound as appreutices by parents, ii. 287. may be disinherited, ii. 208, iv. 556. 585. when naturalized, (see Aliens.) may not alien annuity, in New- York, iv. 327. appointment to, iv. 369. when inclusive of grandchildren, iv. 362, note, wbeninterestof posthumous vests, iv. 291, note, 296, note. INDEX. 619 Children, posthumous, \ari7 of descent, as to, iv. 435. illegitimate, law of descent as to, iv. 436. advancements to, iv. 441 — 443. of insolvent decedent, how sup- ported, ii. 607, note (1.) recent legislation as to hours of labour by, ii. 289, note, illegitimate, ii. 215 — 224. ■what are legitimate, ii. 215 — 219. bastard, not inheritable blood, ii. 219. bastards, severity of common law relative to, relaxed, ii. 220. bastards, support and adoption of by parents, ii. 222 — 224. when custody of taken, from pa- rents, ii. 226, note, 227. (See Infants and Necessaries.) : ,(.See Parent) "separate estate of, not taken to maintain, ii. 182, note (2.) when bound to maintain parents, ii. 183. may contract for themselves when left with mother, ii. 185, note, whether father or mother en- titled to custody of, ii. 186, 187. 211. 222. remarks on education of, ii. 187 — 208. provisions, (in late Statutes,) re- lative of hours of labour by, ii. 187, note, clergymen not to interfere with parents' education of, ii. 209. authority of school-master over, ii. 212. when mother becomes guardian for, ii. 213. duties of, ii. 213—215. Cltivalry, its influence, i. 11. Chose in actiori., what and when assigna- ble, ii. 413, note (1.) dower is, before assignment, iv. 61, note (1.) husband acquires by marriage, ii. 113—126. reached hj fi.fa., ii. 552. iv. 456. must reduce to possession, ii. 114—118. may acquire by administration, ii. 115. by what title husband takes, ii. 116. husband's right to, as affected by bankruptcy and insolvency, ii. 118—120. assignment of by husband, ii. 119, 120. when husband and wife sue joint- ly for, ii. 124. (See Gift) Churchyard and grave, iii. 589, note. Circuit Courts, organization and power of, i. 329, 330. jurisdiction of, i, 330, 331, 332. jurisdiction of, not lost by change of domicil, i. 380. Citizenship, what, ii. 1 , note. CitizeHS, who are, ii. 36, 37. domiciled abroad, i. 82. may not engage in foreign war, i. 107. effect of war upon, i. 102. 104. their rights in the several states, ii. 35. (See Persons of colour and Domi- cil.) rights of defence, i. 102. who are, ii. 274—278, note, not to cruise against friendly powers, i. 107. may not sue a state in courts of U. S,, i. 320. not to cruise without commis- sion, i. 103. not to cruise against their own country, i. 193. Civil law, the, i. 565. early Roman law, i. 566. twelve tables, i. 571. praatorian law, i. 579. responsa prudentum, i. 580. Cicero, i. 581-2-3. age of Augustus, i 582. Papinian, Ulpian, Paulus, Z^. til. right of owner of land to, iii. 637. limit of his right, exclusive of gi-aut, iii. 637. duty of owner to adjacent lands, iu. 537. 540. water power of riparian owner defined, iii. 537. subterranean water, right to, iii. 537. water-course not extinguished by unity of possession, iii. 553. 4. Acquired or lost by prescription, iii. 641. 550. right to streams gained by twenty years' user, iii. 641. nature of the user, iiL 543. 545. extent of first occupant's rights, iii. 546. (See Prescription.) an- and light, right to, iiL 547. ancient lights, iii. 648-9. 5. Lost by abandonment, iii. 626. 548, u. when land reverts to the owner, iii. 626. non-user for twenty years, with other facts, iii. 651. acts indicative of abandonment, iii. 353, 552. unity of possession extinguishes, iii. 568. 6. Lost by dedication, iii. 554. facts constituting dedication, iii. 554. what length of user sufficient, iii. 554. Education, (see Children.) Egyptian deed, iv. 609. Ejectment, by mortgagee, when it lies, iv. 151—166. 184. action of, iv. 71, note. 630 INDEX. Eldon, Lord, i. 546. Election, right, -when may be implied, iL 339. of officers in corporations, how and -when, ii. 339, 340. between inconsistent rights, iv. 57, note. Electors of president, i. 295. Elegit, iii. 619. iv. 462. 466, 467. Elementary writers on common law, i. 550. Bracton, Littleton, Coke, Hale, &c., i. 551. 554. 556. 561. Blackstone's Commentaiies, i. 562. Elopement, a. 129. Emancipation, (see Slave.) of children by parents, ii. 185, note. Embargo, risk of, insurable, iii. 364. effect on charter-parties, iii. 313. hostile, when laid, i. 68. preliminary to war.i. 68. Embassadors, rank of, i. 47. rights of, L 44, 45. may be refused, i. 48. how far their acts bind, i. 48. Embezzlements, by seamen, iii. 249. liability of ship-owners for, ii. Emblements, iv. 74. 196. right of tenant for yeai"s to, iv. 112. 114. Emerigon, iii. 424. Emigration, right of, i. 643. ii. 5 — 10. Eminent domain, exercise or franchise, iii. 567. right of state to interfere with franchises, iii. 567. rights of, ii. 391—398. rights of congress in making inter- nal improvements, i. 287, note. Endorsement of bill of lading, effect of, ii. 710—715. does not pass the contract itself, ii. 712. negotiable paper, ii. 576. blank, in. 109, 110. 112. special, iii. 110. by joint payees, iii. 109. legal effect of, iii. 110. of bills over due, iii. 112. of bills on demand, out of time, iii. lis. equities of defence, when and how far admitted, iii. 114. admits preceding signatures, iii, 149. when not guaranty, iii. 162. 164. Enem-i/s property, how affected by state of war, i. 64. despatches, not to be carried, i. 143. Enemy's, confiscation of ship, penalty, i. 143. Enemy, trade with, unlawful, i. 74. commerce with alien, unlawful, iii. 320. as to commerce, i. 81. by owning the soil, i. 82. by residence, i. 83 — 87. by sailing under hie flag, i. 92. old laws as to, i. 96. colonial trade of, i. 88. property on board a neutral, i. ♦ _ 89. English decisions, their weight, i. 78. (See Adjudications.) Enlistment, against friendly powers, un- lawful, i. 127, 128. Enrolment of ships, iii. 175. 189. Entails, policy of, iv. 17. 21. Entire contracts, ii. 656, 657, 658. contracts, doctrine of, ii. 616, note (1.) Entirety, tenants by, iv. 378. Entry, right of, iv. 407. 465. 537. when necessary, to bring trespass, iv. 123. forcible, action after, by landlord against tenant, iv. 122. 124. right of owner of chattels to make, upon lands, to take pos- session, iv. 122. on lands of another, to take one's own property, ii. 732, note. Equity of redemption, contracts for pur- chase of, iv. 147. (See Mortgage.) contract not to redeem, iv. 163. sale of, under power in a mort- gage, iv. 202. when not vendible under execu- tion, iv. 165. 473. when barred by time, iv. 198. Equitable interest, reached by execution, iii 552. iv. 322. conversion, ii. 605, note, 239. assets, iv. 447. mortgage, iv. 154. Equity powers, in the different states, iv. 167—170. over lands abroad, ii. 581. of the federal courts, i. 371. Error, in contracts, ii. 606. Escheat, iv. 449 — 452. derived from feudal tenures, iv. 449. principle of, in American law, iv . 450. exception as to British subjects, by treaty, 1783, iv. 451. trust estate, how affected by, iv. 452. (See Forfeiture.) Escrow, deliveiy of deed in, iv. 499. INDEX. 631 S!stcelee in fee, iv. 1 — 21. defined, iv. 2, 3, 4. simple, iv. 4. general divjsioa of, iv. 4. heirs, io ci'eating, iv. 5 — 8. qualified, iv. 8 — 10. coaditioned, iv. 10. 15. i're tail, iv. 11. IS — 19. far life, iv. 22—86. freehold, defined, iv. 22. division of, and at conamon law, iv. 23. how created, iv. 24. OQ contingeDOy, iv. 25. •by curtesy, iv. 27, (see Curtesy.) by dower, iv. 33 — li, (see Sower.) general rights and duties of ten- aots of, (see Tenaiti.) forfeiture of, iv. 85. pur autre vie, iv. 24. for yean, ir. 87 — 114. defined, iv. 87. .history of, iv. 87—96. tei-ms iu relation to, (see Terms.) may commence in future, iv. 96. ■in land let on shares, iv. 98. defeated by merger, iv. 103. 106, (see Merger.) ■defeated by cesser or conditian, iv. 108, (see Condition) how forfeited, iv. 109, (eee For- feiture.) not to be granted for longer pe- riod than estate of lessor, iv. 1 09. .at will, iv. 120 — 124. when terminated, iv. 14. 115. when exist, iv. 115. as affected by reseiwation of an- nual rents, iv. 117. when possession is taken under license, iv. 118. turned into, from year to year, iv. 119. .at sufferance, iv. 120 — 124. upon condition, iv. 125 — 137, (see Condition.) .in reversion, (see Reversion) in joint tenancy, and in tenancy in common,, (see Tenants) by mortgage, iv. 138. looatingent, when coctiogent re- mainder, iv. 281, note (1.) (See Remainder) SJetaCe taiLia ijersonal property, iv. 295. ii. 416. as to real property undei- devise, iv. 288,289. Sstoppel, defined, iv. 267-8. by matter of record, iv. 268. by matter in pais, iv. 268. definition of, iv. 257,268. OThen deed of feme covert an, .iv. 27.Q. Estoppel of wife in suit for dower, iv. 37. wliei'e one knowingly allows his own goods sold, ii. 619, an ease of user of easement, iiL 543, where lease is, iv. 101, 102. in pais, not bar title to real es- tate, IV. 102, as to the wife, ji. 155. iv. 270. Estovers, eommon of, iii. 490. iv. 74. right of temant to, iv. 114. Estray, ii. 423. Estrepemeni, iv. 79. Eviction, (see Rents) iii. 572. from want of title, iv. 629. suspends rent, iii. 573. Evidence, in libel, i. 622—630. opinion of experts admissible le dnsurance, iii. 353, Exceptio vei Judicafce, ii. 96. Exception, in deed, what, iv. 519. Excess, in the execution of powers, iv, 111. 362. Exchange, pai- of, iii. 153, 154. of land, iv. 476. Exchequer bills negotiable, iii. 88. Executive department, nature and unity of, I 291, 292. responsible, a. 350. Execution, against equitable interest, ii. 5S2, 658. iv. 322, note, exemption of goods from, iii. 391 —393. 691—693. will reach personal property sold in order to defeat it, iv. 554. staid by stop laws, iv. 460^-466. of corporate franchises, iL 318, note, will reach resulting trusts, iv. 473. will not reach unearned salaiy, iv, 458. staid at law, io marshal assets, iv. 447, mterest of mortgagee, not to be sold on, iv. 172, note, ■in chancei'y, iv, 457, note, of powers aided, iv. 360. purchaser under, must show a judgment, iv. 466, sheriff need not show judgment, dv.467. as to equities of redemption, iv. 164. .as to chattela, ii. 552. iii. 691. iv. 456, asserted in equity, ii. 552. iv. 457. delivery of possession to purcha- ser, iv. 462, note, when it divests liens, iv. 473, note, title by, iv. 456 — 478. by eligit or extent, iv. 46.5. 466. colonial laws respecting, iv. 465-C_ 632 INDEX. Execution on personal property first re- sorted to, iv. 456. chancery process of, iv. 46Y, note, mode and effect of sale under, Iv. 45'7-8-9, 460. redemption of land by debtor and ereifitor, iv. 469. iiTeguIarity of sale by, how far effeetive,iVv459. Taluation of lands sold, when al- lowed, iv. 461-2-3-4. what interests ai-e bound by, iv. 458. 461. 48'7-8. 473. sheiiff may not forcibly enter dwelling-house, iv. 461. laws, stopping unconstitutional, iv., 465. sale under, within statute of &auds, iv. 466. lien of judgments, iv.467. 470-1. interference of chancery to en- force, iv. 472-3. eG[uitable interest not to be sold under, iv. 473. against partners, iii. 73. 77. aioi-^agor's interest before cntiy not liable to, iv. 164. one yeai''s rent first payable, iii. 595. Executors, (see Administrator and Ad- ministralion.) de son tovt,u. 508 liability of, u. 508, 509. 512. liability for co-executor, ii. 510. whether bound to plead statute of limitations, u. 510. 613. idghts and duties, on rendering accounts, iii 616 — 518. method of distribution by, ii. 420 — 543, (see Distribution.} nature of their title, ii. 534. payments of, in their own, wrong, iv. 448. rights and duties as to property in other states, ii. 532 — 537. by local laws, may sell real estate to pay debts, iv. 477. when to join in executing powers, iv. 841, note, 342. S4& when bound by dii'ections in will, iv. 336. 338, 341. 359, 380. power to sell land, iv. 341 — 343. 350. 476, note, sales by, in New-York, iv. 350. liable for devastavits, ii. 610. their commisBions, ii.. 516. lesponsibility for money invested by them, ii 508. may be required to give secu- rity, iL 506. time to pay legacies,. ii. 512. Executory mterest assignable, iv. 28S>- 296. interest devisable, iv. 296. interest checks on accumulation of, iv. 297—300. conti'acta under statute of fi-auds,. ik 661, note, trusts, iv. 316. devises, (see Devises.) Exemption of goods feom execution, iii. 691—593- Exereitor defined, iii. 216. Mx parte paterna et materna, iv. 425. Expatriation, (see Allegiance.) Expectant estates preserved, iv. 259, 260. now contingent remainders in Sew-York, iv. 282: Expectancies, iL 604. iv. 270. Expeditions in neutral territory agaiusti friendly powers, i. 127, 128. Ex pest facto laws, what, L 450, (see State.'^ Extinguishment of rights, iii. 651,562. of powers, iv. 363. Factor, when sell on credit, ii 796—799. his chai'acter defined, ii. 796. must sell for money, S. 797. notes taken by, whose, ii. 797,. 798. his powers, b. 789. 813. payment may be made to, iii 798. hBduties,ii. 796— 813. dM credere, commission by, ii- 799. has no authority to pledge, ii. 800—802. owner of goods shipped in his- name,