(Jnrttf II Kiam StIjodI ICihrary Cornell University Library KF 570.R33T7 A treatise on special subjects of the la 3 1924 018 826 580 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018826580 A TREATISE ON SPECIAL SUBJECTS OF THE LAW OF REAL PROPERTY. Containing an Outline of all Real-Pkoperty Law, and more elaborate treatment of the subjects of fixtures, Incorporeal Hereditaments, Tenures and Alodial Holdings, Uses, Trusts, and Powers, Qualified Estates, Mortgages, Future Estates and Interests, Perpetuities, and Accumulations. BY ALFRED G.^RBEVES, A.M., LL.B. PROFESSOR OF LAW IN THE NEW YORK LAW SCHOOL; EDITOR OF " reeves' LEADING CASES ON WILLS." BOSTON: LITTLE, BROWN, AND COMPANY. 1904. "Copyright, 190^, By Alfked G. Reeves. THE UNIVEBSITT PKK3S, OAUBKIDQE, U.S.A. PREFACE. No reasonable effort has been spared, in the preparation of this volume, to make it as complete as possible upon the sub- jects discussed. It is published at the present time, both to accommodate the law-school students to whom the author lec- tures, and to offer to students and practitioners generally, several years before the entire contemplated work can be done, any assistance that this discussion of the most technical and diffi- cult portions of real-property law may be able to supply. The writer hopes so to add to it, within the next three or four years, as to finish a treatise, in two volumes, on all the topics ordinarily comprised within the law of real property. The plan and outline thus far pursued, and to be continuously fol- lowed, are fully explained in the fourth chapter of this book. And a reference to that chapter, and to the table of contents, will show that three leading subjects are yet to be discussed in detail, namely : estates considered with reference to their quantity, from the fee simple down to and including tenancies at sufferance ; estates considered with reference to the number and connection of their owners, — estates joint, in common, by entirety, etc., — and the entire subject of titles to real property. The introductory portion of the present volume explains, with some particularity, the subject of fixtures, and the most im- portant other kinds of property which have caused questions to arise as to whether they are realty or personalty ; it also presents a complete outline of real-property law, and divides it into its four natural departments, to each of which a separate "Book" is to be devoted. "Book I.," which is here finished, deals with the kinds of real property, — lands, tene- ments, and hereditaments, — discusses fully the four American incorporeal hereditaments, — rents, franchises, easements and servitudes, and profit d prendre, — and adds a chapter on the IV PREFACE. cognate topic of licenses. " Book II.," which is also complete, explains the tenures and alodial holdings of real propei-ty, and especially seeks to trace from their feudal sources, and so to elucidate, many of the leading principles of the land law of to-day. " Book III.," which treats of estates in real property and is to have five parts when finished, now presents three of those parts complete. The first of them, dealing with estates with reference to the courts that have recognized them, and dividing them accordingly into " legal " and " equitable," dis- cusses the subjects of uses, trusts, and equities of redemption, — the three forms of so-called equitable estates. The second and third of those parts are yet to be written. The fourth is finished, and explains estates qualified, — on condition, on limi- tation, and on conditional limitation, — and the entire subject of mortgages. And the fifth part, which is also complete, deals with all the future estates and interests in realty, — reversions ; remainders ; contingent, springing, and shifting uses ; powers ; executory devises, and statutory future estates, — and adds a chapter, somewhat detailed, on the rules against perpetuities and accumulations. Arising from experience with the difficulties encountered by students of the law of real property, three ideals have prompted and controlled the writing of these pages. They are the pres- entation of that law, first, in the perfect light of its own history ; second, divested as far as possible of technicalities ; and third, practically complete within the sphere which the discussion purports to include. The book itself must fall far short of such ideals. But a few words as to each of them may briefly explain what has been attempted. The philosophy of English and American history is mani- fested in few concrete forms or systems, in which it is so thor- oughly legible as in the common law of real property. There is a clear reason, in the development of the Anglo-Saxon race, for every important principle of that splendid, logical system. Therefore, the so-called modern law of real property can be appreciated only superficially, when studied alone. And an attempt to learn it, without taking note of the civil and juristic struggles through which it has been evolved, is as unfortunate for the student as would be a mere study of those struggles. PREFACE. V regardless of the resulting rules and theories that are control- ling the practical men of to-day. The latest adjudications of the best courts, and the reasons for them, drawn from the profound, though sometimes technical, arguments of the ages, are what constitute the common law of realty for the thorough practitioner. An humble effort is made to present in this book both of those components of that law, and to insist that they shall not be separated in the labors of the learner. Simplicity and terse clearness of illustration are primary desiderata in dealing with a subject which has been much affected by scholastic logic and methods of reasoning now dis- carded and obsolete. The doctrine of scintilla juris, for exam- ple, the principle of descent-cast, or the practice of fines and common recoveries, can not be wholly brushed -aside and ig- nored ; but they call for brief explanations in the forms of language and modes of thought of the present time. Without anticipating any knowledge yet to be acquired by the reader, it is earnestly sought in this work so to state these and the more important principles of the subject, and so to illustrate them, with recent authorities whenever possible, that an ordi- narily careful reading can not fail to make them understood. The illustrations of each point or rule are not numerous, in most instances only one is given, and much care has been bestowed on all of them to make them as lucid as possible. Nothing short of a voluminous digest can state all the modi- fications which recent English and American statutes have engrafted on the common law of real property. But that com- mon law, as it is to-day, developed with the aid of the old land- marks of legislation into a system of rounded symmetry and logical beauty, together with the accompanying typical code of one important State, may be set forth in a work of convenient size for students and lawyers. Such a work is one of the ideals that have caused the writing of these pages. New York's codi- fication has been selected as the local system, both because of its own importance, and because it has been a model for so much legislation of other States. The special statutes of that one State and their constructions are added, in separate full- measure notes, at the proper places throughout the book. And thus it is sought to make a practically complete treatise on New VI PREFACE. York real-property law, yet without materially encumbering the text or other notes with anything that is purely local or special. It is hoped, moreover, that the text and general anno- tations, aiming as they do to explain the past and present common law of the land, may be found sufficiently clear and comprehensive to be of practical service to students and the profession, even where New York's code has had little or no influence. In referring to authorities, care has been taken to cite more on doubtful points than on those that may be regarded as settled. Recent cases have been preferred to older ones, wherever they were otherwise equally valuable. The book is not to be adver- tised for its citation of many cases. It must rather embody, in this particular, the results of careful selection from the pon- derous masses of adjudications. And reference to a standai'd text-book, on the special topic of the page, often closes a note containing citations of only two or three illustrative and decisive cases. Mr. Digby's scholarly treatise on the " History of the Law of Real Property " and the profound work of Professors Pollock and Maitland on the " History of English Law " are very often cited and quoted. The names of standard writers on the subject, such as Cruise, Williams, Leake, Washburn and Challis, adorn many pages. And, throughout the book, care has been taken to refer to special treatises, such as " Ewell on Fixtures," " Jones on Easements," " Bispham's Principles of Equity," " Perry on Trusts," " Thomas on Mortgages," " Fow- ler's Real-Property Law of the State of New York," " Gray's Rule against Perpetuities," " Chaplin on Suspension of the Power of Alienation," and many others, to which the author is gratefully indebted. If what is here written prove in some degree a help to those who are endeavoring to master all or some portion of this sub- ject, which is too often spoken of as dry and technical, or an aid in causing students to look on the study of real-property law as neither irksome nor unpleasant, at least one of its chief objects will have been accomplished. A. G. E. New York, February, 1904. CONTENTS. Page Table of Cases xi INTRODUCTION AND OUTLINE. Chapj'er I. Property Explained and Classified 1 II. Fixtures 11 III. Property, Other than Fixtures, that is Sometimes Real and Sometimes Personal 49 IV. Outline of Real Property Law 72 Table of Re9,l Property Law 110 BOOK I. KINDS OF REAL PROPERTY. PART I. — Lands. PART 11. — Tenements. V. Lauds and Tenements 113 PART III. — Hereditaments. 1. Corporeal. 2. Incorporeal. VI. 1. Hereditaments Explained and Classified — Corporeal Hereditaments 115 2. Incorporeal Hereditaments. Vll. (1) Rents 117 VIII. (2) Franchises 142 (3) Easements and Servitudes. IX. Easements. Kinds. How Created 149 X. Servitudes that are not Common-Law Easements .... 213 XI. Incidents of Easements and Servitudes — Their Termina- tion and Suspension — Remedies 241 XII. Special Features of Important Kinds of Easements and Ser- vitudes 270 XIIL (4) Profit k Prendre 807 XIV. Licenses 320 VIU CONTENTS. BOOK II. HOLDINGS OF REAL PROPERTY. PART I. — Alodial Holding. PART 11. — Tenure — Feudal System. Chapter Page XV. Outline of Book II. — Anglo-Saxon Holdings .... 333 XVI. The Feudal System and its Fruits 338 XVII. Holdings of Real Property in the United States .... 386 BOOK III. ESTATES IN REAL PROPERTY. XVIII. Estates — Explained and Classified 399 PART I. estates classified with reference to the courts that recognize them. 1. Legal. 2. Equitable. 2. Equitable Estates. XIX. (1) Uses 402 (2) Trusts. XX. Kinds of Trusts 427 XXI. a. Express Trusts — Their Creation, Revocation, Requi- sites and Forms — Powers in Trust 434 6. Implied Trusts. XXII. (a) Resulting Trusts 504 XXIII. (b) Constructive Trusts 529 XXIV. (3) Equity of Redemption 583 PART IV. estates classified with reference to their conditional OR qualified nature. 1. Absolute. 2. Qualified. XXV. 2. Qualified FIstates 5g5 (1) Estates on Condition 587 (2) Estates on Limitation 598 (3) Estates on Conditional Limitation 602 CONTENTS. IX Chaptek Page (i) Mortgages. XXVI. History, General Nature, and Kinds of Mortgages . . 606 XXVII. Mortgages — Interests, Eights, and Duties of the Parties 631 XXVIII. Mortgages — Special Equities Associated with them — Priorities and Record — Discharging and Extinguishing Mortgages 681 XXIX. Mortgages — Enforcing Satisfaction of Mortgage Debt — Foreclosure of Mortgages 689 PART V. ESTATES CLASSIFIED WITH EEPEHENCB TO THE TIME FOR THEIR ENJOYMENT TO BEGIN. 1. Present. 2. Future. XXX. Estates Present and Future — Classes of Future Estates 712 XXXI. (1) Reversions 717 (2) Remainders XXXII. Remainders — Explained and Classified 726 XXXIII. a. Vested Remainders 737 XXXIV. b. Contingent Remainders 744 XXXV. How Remainders may be made — Successive Remain- ders — Their Acceleration 769 (3) Executory Estates XXXVI. Kinds of Executory Estates — How Created .... 776 XXXVII. a. Springing Uses — b. Shifting Uses 780 XXXVIII. c. Powers 786 XXXIX. d. Executory Devises 824 XL. The Rules against Perpetuities and Accumulations . . 838 INDEX ■ 871 TABLE OF CASES CITED. [ReferenceB are to pageB.] Abbiss V. Burney 770 Abbot V. Weekly 220 Abbott V. Butler 245 V. Holway 779 V. Stewartstown 180, 182 Abend v. End Fund Commission 492 Abendroth v. Manhattan R. Co. 231 Aborn v. Searles 659 Acker v. Phoenix 446 Ackerman v. Gorton 796 V. Shelp 221 Ackerman's Adm'r v. Vreeland's Ex'rs 767 Ackers v. Phipps 829 Ackroyd v. Smith 215, 242, 243, 244, 271 V. Smithson 623 Acquackauonck Water Co. v. Wat- son 214, 240, 298, 299 Acton V. Blundell 240, 302 V. Waddington 617, 618, 619 V. Woodgate 449 Adams v. Adams 445, 533, 755 V. Beadle 65 V. Bigelow 647 V. Collier 513 V. Cowen 431, 530, 537, 546, 547, 648, 649 u. Freeman 321 V. Irving Nat. Bk. 545 V. Lopdell 452 V. Marshall 282, 286 V. Perry 494 V. Ross 741 V. Say re 644 V. Tenants of Savage 770 V. Van Alstyne 295 Adams Female Academy v. Adams 488, 490 Addis V. Campbell 539 Addison v. Hack 330 Addyston Pipe & Steel Co. v. United States 641 Adlington v. Cann 435, 439, 441 JEtna Life Ins. Co. v. Middleport 663 Aguilar v, Aguilar 663 Ahearns v. Hogan 557 Ahem v. McCarthy 620 Ahrend u. Odiorne 616 Ahrens v. Jones 530, 631, 532 Aiken v. Gale 652 Aikin v. Smith 462 Aiman v. Stout 543 Albany Co. Sav. Bk. «. McCarthy 563 Albert v. Albert 862 V. Uhrich 34, 45 Albin V. Riegel 61 Albright v. Oyster 605 Albro V. Blume 704 Alden v. St. Peter's Parish 478, 492 Aldin V. Latimer Clark 274 Aldine Mfg. Co. v. Barnard 16, 17, 22 Aldrioh v. Aldrich 451, 452, 453, 454 D. Husband 20, 30 Alexander v. Alexander 594, 806 V. Hodges 594 V. Tolleston Club 243 V. Warrance 613 Aleyn v. Belchier 568, 569 Alkire v. Alkire 566 Allaire v. Allaire 532 Allan V. Gomme 163, 266 AUeard v. Skinner 547 Allen V. Allen 498, 852, 858, 861 V. Caylor 609 V. Fiske 329 V. Gillett 651 V. Howe 692 V. Jackson 591 V. Joy 228 V. Leominster Sav. Bk. 677 V. Mayfleld 731 V. McPherson 882 V. Mooney 23 V. Pegram 51 V. San Jose L. & W. Co. 250, 251 V. Stevens 482, 483, 486, 491, 602, 761, 852 V. Taylor 274 I/. Weber 57 V. Wood 699 Alley V. Carletou 179, 180 Allore V. Jewell 639, 544 Almstardt v. Bendick 862 Almy V. Jones 477, 479, 493 xu TABLE OF CASES CITED. [References are to pages.] Alspaugh V. Adams 518 Ambrose v. Ambrose 437 Ambs V. Hill 40 Amerden v. Deane 191 Amer. Bank Note Co. v. N. Y. El. K. Co. 199, 230, 246 American Life & F. Ins. Co. u. Rj'erson 699 American Note to Chesterfield v. Jansen 540 American Press Ass'n v. Blanting- liam 623 American Sugar Refining Co. v. Fancher 517, 619, 578 Amer. Surety Co. v. Pauly 573 Ames V. Blunt 5^1 Ames Iron Worlcs u. Kalamazoo Pulley Co. 578 Amherst !). Lytton 771 Amherst College v. Rich 483, 536, 548 Amidon v. Harris 216 Amory v. Atty.-Gen. 487 Amsterdam Knitting Co. v. Dean 303 Ancaster (Duke of) v. Mayer 679 Anderson v. Anderson 533 u. Blood 521, 522, 659, 674, 575, 668 «. Henderson 301 V. Matlier 466 V. Sharp 636 Anding v. Davis 440 Andrar v. Haseltine 292 Andrews v. Andrews 429, 492 V. Day Button Co. 18, 19, 20, 27, 39 V. Hailes 208 V. Lincoln 842, 847 V. Nat. Sugar Kef. Co. 164 V. Royce 831 V. Senter 594 V. Stelle 701 Andrus u. Vreelan 686 Angler v. Stannard 462 Angus V. Clifford 530, 533, 534 V. Dalton 194, 202, 206, 209, 210, 211, 239, 247, 280, 281 Ankeney v. Hannon 472 Anstice v. Brown 612 Anthony v. Lapham 299 Antisdel v. Williamson 682 Antomarchi v. Russell 293 Apple V. Allen 473 Appletnn v. Fullerton 245 Apreece v. Apreece 457 Arbens o. Wheeling & H. R. Co. 232 Arbuckle v. Ward 193, 204, 205 Archer v. Archer V. Hudson Archibald v. N. Y. C. & H. R. Ards V. Watkins Arents v. L. I. R. Co. Arkwright v. Gell Armstrong v. Kearns Arnison v. Smith 162, 214 567 R. Co. 382 128, 131 882 306 821 534 Arnold v. Arnold V. Fee V. Ruggles V. Smith V. Stevens Arnoux v. Phyfe Arthur v. Cole 591, Ashcroft V. Eastern R. Co. Asheville Woodworking Co. v. South- wick Ashley v. Ashley 206, V. Ryan V. Warner Ashurst V. Potter Assay v. Hoover Astley V. Micklethwait Aston V. Nolan Astor v. Wells Athey v. Knotts Atkins V. Boardman V. Bordman Atkinson v. Atkinson V. Bordman V. Dowling V. Walton Atlanta Mills v. Mason 263, Atty.-Gen. v. Abbott V. Baliol CoU. 476, V. Baxter V, Bishop V. Bowyer V. Brereton V. Briggs 487, 488, V. Bushby V. C. R. Co. V. Cock V. Comber V. Dean of Windsor V. Doughty V. Downing V. Garrison V. Gladstone ■i). Glasgow Coll. u. Glyn 476, V. Guise V. Haberdashers' Co. V. Heelis V. Hickman V. Hurst V. Ironmongers' Co. 476, V. Jacobs-Smith V. Kell V. Moore t. Moore's Ex'rs V. Morris V. Morris, etc. R. Co. V. Newman V. Pearson V. Revere Rubber Co. «. St. John's Hospital V Sands V. Soule V. Stepney 453 245 61 623 203 804 600 166 748 142 600 .50 819 770 282 573 562 245 247 452 246 821 667 264 225 488 478 245 479 475 490 480 145 478 479 491 278 492 485 478 488 488 488 481 480 478 488 488 567. 479 474 491 223 225 475 478 195 414 408 481 478 TABLE OP CASES CITED. [References are to pages.] Xlll Atty.-6en. u. Vint 479 Baker v. Potts 682 v. Wax Chandlers' Co. 491 V. Sutton 480 V. William and Mary's Coll. 478 V. Updike 616 ,618 V. Williams 239 V. Vining 609 ,510 V. Windsor 523 u. Whiting 551 Atwater v. Bodfish 246 V Woman's Christian Tem. V. Perkins 804 Un. 692 V. Russell 439 Baldwin v. Boston & M. R. Co. 246 Atwood V. Fricot 316 V. Breed 30 u. Moore 628 V. Calkins 199 u. Small 533 534, 635 V. Howell 629 Aurora u. Fox 280 V. Humphrey 4,16 Austen v. Taylor 429 430, 460 V. Van Vorst 667 Austin V. Aliearne 385, 646 Baley v. Umatilla Co. 479 V. Cambridgeport 594, 696 Ball V. Sliafter 620 V. Hatch 680 Ballacorkisk Mining Co. u Harri- V. H. R. R. Co. 280 son 303 V. Oakes 808 812, 818 Ballard v. Demnion 180 208 209 Aveling v. Knipe 508 V. Dyson 199 Avelyn v. Ward 595 Bancroft v. Consen 518 Averill «. Taylor 650 V. Otis 547, 548 553 ,556 Avern u. Lloyd 844 Banghart v. Flummerfelt 157 Aylesford o. Morris 540 Bank v. Foster 554 Ayling v. Kramer 161 V. James 472 Aylward v. O'Brien 68,69 V. King 518 Aynsley v. Glover 275 V. Looney 680 Ayres v. M. E. Church 498 u. Miller 216 . Tiernan 274 Clerkson v. Bowyer 633 Cleveland v. Ware 196 Cleveland Trust Co. v. Lander 51 Clifford V. Morrell 799 Clinton v. Myers 304 V. Westbrook 634 Clipper M. Co. v. Eli M. & L. Co. 318 Clowes V. Dickenson 665 Clyde V. Simpson 580 Cobb V. Davenport 309 Coburn v. Anderson 523 Cochran v. O'Hern 426 Cochrane v. Schell 867 Cockell V. Taylor 538, 539 Cockles V. Foley 125 Cockrum v. West 663 Codman v. Jenkins 125 V. Winslow 51 Coe u. C. P. & I. R. Co. 57 V. McBrown 56 V. Washington Mills 484 V. Winnipiseogee Mfg. Co. 269 Coffey V. Sullivan 52 i Coffin V. Parker (j5:i TABLE OF CASES CITED. [References are to pages.] XXI Co'gan V. Cogan 763 Commonwealth v. Beaver Borough 222 Coggeshall v. Pelton 475, 480 498 V. Charleston 387 Cohen v. Berlin & Jones Envelope V. Contner 124 Co. 541 V. Contor 119 V. Ratkowski 704 V. Coupe 222 225 V. Simmons 283 V. Kelly 218 Cohoes V. D. & H. Canal Co. 217 I . Matthews 225 Colby V. Duncan 7.88 V. McAllister 520 Colchester v. Roberts 245 V. Newbury 223 Cole V. Bradbury 200, 202, 243 V. Railroad Co. 217, 222 225 V. Cole 518, 521 V. Upton 212, 300 V. Getzinger 573 Commonwealth Bk. of Pa. v.A rm- t!. Gilson 541 strong 517 519 V. Littlefield 454 Commonwealth Title Ins Co V. V. O'Neil 566 Ellis 616 V. Sewell 760, 840, 841, 843, 844, Company of Pewterers v. Christ's 855 Hospital 492 u. Stokes 546 Comstock V. Sharp 252 Colegrave v. Dias Santos 31 Conabeer v. N. Y. C. & H. R. Co. 62, Coleman v. Beach 809 256 V. Chadwiok 303 Concord R. R. v. Greeley 228 V. Lewis 54 Condon v. Maynard 658 V. Parran 509 Conger v. Duryee 594 V. Van Rensselaer 627 Congregational Soo. of Dubuque v. Coleman & B. Co. u. Rice 686 Fleming r , 22 Coles V. Coles 647 Congregational Unitarian Soc . V. V. Trecothick 530 538 546 Hlle 603 Colgate's Executor v. Colgate 550 Conklin r. Egerton 801 CoUamer v. Langdon 635 637 V. Parsons 17 Collier V. Jenks 67 Conkling v. Davies 450 V. Miller 671 V. Weatherwax 622 680 V. Pierce 265 275 Connecticut Mut. L. Ins. Co. v. Tal- Collins V. Carson 508 559 bot 636 V. Carsons 559 Connecticut Trust and Safe De- V. Case 558 posit Co. V. Hollister 845 i;. Collins 741 Connel v. Kibbe 285 V. Ewing 144 Connelly v. O'Brien 7.88 V. Moore 646 Conner v. Coffin 39 V. Prentice 177 V. Whitmore 635 V. Riggs 652 Connery v. Brooks 247 V. St. Peter's 256 268 Connolly v. Keating 514 V. Smith 830 Connor v. Sullivan 202 206 ?). Wickwire 789 ,795 V. Watson 812 Collins Co. V. Marcy 324 Conover v. Hoffman 817 818 Collinson v. Jeffery 651 V. Stothoff 580 0. Patrick 443 Conrad v. Saginaw Mining Co. 39 CoUister v. Fassitt 451, 452 453 ConsoUdated Nat. Bk. of San CoUyer v. Collyer 125 Diego V. Hayes 700 Colonial City Traction Co. V. Kings- Constant v. Univ. of Rochester 573 ton City R. Co. 235 Converse v. Sickles 617 519 Colriok V. Swinburne 298 Conway v. Alexander 612 Colson V. Colson 757 V. Taylor 144 Colthirst V. Bejushin 728 Cooch V. Gerry 635 Coltness Iron Co. v. Black 118 Cook V. Barr 438 439 Colton V. Colton 433 452 454 V. Brightly 138 140 V. Ross 533 V. Chicago, B. & Q. R . Co. 321 Colvin V. Burnet 204 o. Cook 558 Comer v. Sheehan 646 V. Duckenfield 813 Commercial Bk. v. Sherwood 563 564 V. Eaton 626 Commissioners v. Pemsel 474 476 480 V. Hammond- 380 719 721 V. Walker 414 V. Harris 224 Commonwealth v. Alger 387 u. Hutchinson 522 V. Allen 231 I/. Johnson 562 TABLE OF CASES CITED. [References are to pages.] Cook V. Lowry 498 867 V. Mancius 574 V. Prigden 826 V. Stearns 324, 327 328 V. Whiting 16, 17,65 Cooke V. Bucklin 835 V. County of Kings 799 V. Crawford 656 V. Lamotte 450 V. Piatt 495 497 V. Stationers' Co. 525 Cookson V. Rieliardson 539 Cool 0. B. & L. Co. 64 V. Peters B. & L. Co. 322 Cooley B. Harris 638 Coolidge V. Hagar 243 V. Learned 193 Coombe's Ex'r v. Cartliew 546 Cooper V. Heatherton 846 V. Louanstein 167 V. Reilly 538 Cope V. Wheeler 698 Copehart v. Foster 52 Copp V. Swift 16 Coppage V. Barnett 510 Corbet i\ Stone 762 Corbin v. Baker 543 550 Corle V. Monkhouse 577 Corley v. McElmeel 532 Corlies v. Rowland 616 Corliss V. McLagin 31 Corn V. Bass 294 Cornell v. Hall 614 0. Lamb 118, 124, 134, 135, 393, 394 V. Maltby 521, 574, 575 Corning v. Gould 258, 260 V. Head 217 V. Troy I. & N. Factory 269 Cornog V. Cornog 630, 635 Cornwell v. Orton 425 V. Wulffl 832 CoTpman v. Baccastow 625 Correll v. Lauterbach 802 Corse V. Chapman 738, 861 Cortelyou s). Van Brunt 211 (^ory V. Cory 543 Cory Universalist Soc. u. Beatty 478 Cosgriff V. Foss 31 Coster V. Mayor of Albany 229 Cotter !!. Layer 807 Cottman v. Grace 485, 499, 500 Cotton V. McKee 625 Coudert v. Sayre 160, 161, 167 Coulson I'. Alpaugh 456 Cournan v. Harrison 456 Courier v. Stagg 591 Covert V. Cranfbrd 299 Covington v. Geyler 294 Cowee V. Cornell 547 Co well V. Colorado Springs Co. 593 V. Springs Co. 858 V. Thayer 199, 251 Cowles V. Kidder 321 Cowles V. Marble 683 Cowling V. Higginson 246 Cowperthwaite v. Bank 535 Cox V. Forrest 197 V. Miller 575 Coxe V. State of New York 297 Cozine v. Graham 440 Crabb v. Crabb 441 Craft V. Latourette 619 ii. Schlag 565 Craig V. Butler 133 V. First Presby. Church 70 Crane v. Brighara 23 V. Powell 436, 4.38 Crane's Gulch M. Co. o. Scherrer 317 Cranston v. Crane 698 Crawford v. Simon 678 V. Thompson 591 Crawson v. Primrose 193 Creesy v. Willis 679 Crest V. Jack 30, 55 Crippen v. Morse 156 Crocheron v. Jaques 458 Crocker v. Cotting ' 159, 245, 246 D.Mann 124 Crocket v. Boston 224 Croft V. Booster 638 Cromie v. Hoover 4.3, 47 Crone v. Crone 551, 552 Cronkhite v. Cronkhite 157, 158, 321, 324, 325 Cronon v. Cotting 432 Crooke v. County of Kings 605, 859 Crop V. Norton 508, 510 Crosby v. Bessey 198 V, Loop 128 Crosdale v. Lanigan 159, 253, 324, 325, 326, 327, 328, 329 Crosland v. Rogers 174, 176 Cross V. Tome 119 V. United States 125 V. U. S. Trust Co. 458, 483, 863 Crossley v. Lightowler 258 Crothers v. Crothers 656 Grouse V. Weraple 203 Croxall V. Shererd 422, 425, 461, 738 Crozier v. Bray 766 Cruger v. McLaury 140, 392, 394 Cruikshank v. Home for the Friend- less 524, 858 Crum V. Hill 16 Crurarine v. Crumrine 519 Cruwys v. Colman 457 Cubbins v. Ayres 38 Cubitt V. Mapse 224 V. Porter 286, 287, 292 Culbertson ?'. Witbeck 444 Cullen V. Carey 620 Culrose v. Gibbons 460 Cumberland (Buke of) v. Coding- ton 679 Cumberland Union Baking Co. v. Hematite Co. 33 TABLE OP CASES CITED. [References are to pageB.] XXIU Cumraings v. Newell 61 Darling v. Rogers 497 Cuuniiigham v. Cureton 16, 18, 20 Darlington v. Painter 250 u. Cavenport 442 Darrah v. Baird 44 V. Freeborn 449 Darrow v. Calkins 209,518 V. Parker 588, 503 Dartmouth College v Wood ward Cunyngharae v. Thurlow 821 145, 212 Curd V. Brown 511 Dauenhauer v. Devine 289, 292 Ciirran v. Houston 657 Dauler v. Hartley 541 Currant v. Jago 512 Daury v. Inhab. of Natick 479 Currie v. Misa 577 Davenport v. Lamson 184, 245 Curtis V. Angler 205, 206 V. Keg. 594 u. Ganiner 166 Davidson v. Little 540 u. Hoyt 55 Davies v. Humphries 662 u. Keisler 211 u. Sear 183 V. Leavitt 142 V. Speed 836 !i. Moore 640 641 685 V. Thomas 616 Curtlss V. Ayrault 169 172 0. Williams 267 Cusliing V. Ayer 665 Davis V. Bigler 560 . . Blake 430 t. Brigham 199, 206 V. Danforth 559 V. Coblens 101 Cushman v. Coleman 429 V. Davis 616 (.'usliney v. Henry 458 V. Eastham 41 Cuson V. Blazer , 59 1-. Fuller 298 Cuthbert v. Cliauvet 463 V. Gray 595 Cutler I,-. Tuttle 509, 512 o. Inhabitanta 480 Cutting V. Cutting 792 796 797 V. Jones V. Lansdale V. Marlborough 24 711 539 D. V. Mason V. Moss 8:10 43 l)a Coste V. De Pas 478 u. Schwartz 562 ])aeus V. Streety 635 0. Spaulding 240 Daily v. State 233 V. Stambaugh 439, 440 Dale V. Bartley 773 V. Strange 547 V. Hamilton 439 V. Thomas 612 Dalton V. Angus 194, 196, 273, 278, V. Ward 579 285 Davoue v. Fanning 530, 542, 546, 548, Daly V. Wise 535 549, 793 Dame v. Dame 54,55 Dawson v. Clarke 523, 525 Daramert v. Osborn 483, 486, 500, 502, V. Kemper 289 863 i!. Massey 554, 555 Damper v. Bassett 263 V. Quinnerly 756 Dararen v. Amer. L. &P. Co. 128 V. Waltemeyer 564 Dana i>. Burke • 29 Day V. Allender 225 o. Dana 505 519 521 V. Perkins 25 u. Murray 747, 748, 773; 792, 805, Kj. Roth 518 848 850 856 858 V. Savadge 157 V. Valentine 197 V. Walden 263 Dance v. Dance 617 Dayton v. Drainage Comm'rs 302 Dand v. Kingscote 249 Dean v. Ann Arbor St. Ry. Co 233 Daniel i: Felt 815 V. Dean 440, 827 V. North 207 V. Walker 680 V. Whartenby 755 Deane v. Hutchinson 54 V. Wliartenly 758 Dearing v. McKinnon, etc. Co. 562, 563 V. Wood 67 De Barante v. Gott 445 Daniels v. Eldredge 768 De Baun v. Moore 289 V. Mowry 695 Debow V. Colfax ' 62 Danziger v. Silberthan 720 De Camp v. Dix 239 Daper o, Mann 690 V. Thompson 179 D'Arcy v. Blake 426 De Caters o. Le Ray De Chau- Darcy v. Kelley 481 488 490 mont 548 Dark v. Johnston 321, 323 325 De Cells v. Porter 548 Darling !>. Potts 550 Decker v. Decker 622 XXIT TABLE OP CASES CITED. [References are to pages.] Decker v. Morton 133 Dedser v, Leonard 625 Dee V. King 196 Deegan v. Wade 796, 797, 846, 852 Deeker v. Boies 671 Deen w. Millikin 537 Deerfield v. Conn. Rir. R. Co. 196 Deering v. Reilly 382 Degman v. Degman 812 De Graw v. Classon 496 De Haro v. United States 320 De Hierapolis v. Reilly 564 Deigleman v. N. Y. L. E. & W. R. Co. 302 Delafield v. Shipman 869 De Lancey v. Finnegan 655 Delancey v. Ganong 126 V. Fiepgras 78, 123, 134, 136, 146, 298, 386, 387, 391, 394, 395, 396 Delaney v. Boston 305 V. Fox 123, 722 V. McCormack 792 V. MeCormick 811 V. Valentine 565 Delaware, etc, R. Co. v. Oxford Iron Co. 21 Del. & Rar. Canal Co. «. Wright 52 Demarest v. Berry 642 V. Williard 128 V. Wynkoop 676, 611, 633 Demby v. Parse 45 Dempsej' v. Kipp 158 V. Tayler 814 V. Tylee 858 Dempster v. Cleghorn 220 Demuth v. Amweg 202, 268 Den. d. Micheau v. Crawford 750 Southerland v. Cox 831 Wilson V. Small 834 Denham v. County Comm'rs 228 Dening v. Ware 447 Dennett v. Hopkinson 61 V. Pass 139 Dennis v. Wilson 216, 244 Dennison v. Goehring 447 Dent V. Auction Mort. Co. 277 Denton v. Davis 439 V. Leddell 264 V. Ontario Co. Nat. Bk. 573, 695 Denzler v. O'Keefe 686 De Peyster v. Michael 389, 390, 891, 394, 395 Derby v. Ailing 224 V. Derby 485 Derry v. Peek 530, 533, 535 Desloge v. Pearce 315, 325 Des Moines v. Hall 226 De Themmines v. De Bonneval 478 Detroit ;;. Detroit M. R. Co. 225 Detroit City Railway v. Mills 229, 230 De Vaughn v. Hutchinson 756, 758 Derereaux v. Fairbanks 693, 694 Devin v. Dougherty 88 Devinel v. Barnard 223 Devinney v. Norris 554 Devlin v. Collier 637 Devoy v. Devoy 513 Dewey v. Bellows 260 Dexter v. Arnold 651 V. Beard 161 V. Evans 452, 453 V. Stewart 570 Dey V. Dunham 0:^5 D'Eyncourt v. Gregory 15, 45 Diamond Match Co. o. Ontonagon 223 t'. Roeber 541 Dick V. Harby 467 Dickenson v. Codwise 518 Dickerson v. Grand Junction Canal Co. 250 V. Northern R. Co. 636 Dickey v. Thompson 665 Dill V. Camden Board of Educa- tion 230, 258, 261 Dillaye v. Greenough 446 Dillin V. Coppin 447 Dillon V. Barnard 36 V. Coppin 448 Dingley v. Bank of Ventura 617 V. Bon 575 V. Dingley I'iS Dinn v. Grant 571 District of Col. v. Robinson 195, 217 Dixon V. Niccolls 62, 128 w. Winch 638 Doak V. Wiswell 45 Doane v. Badger 248, 249 V. Hutchinson 53 Dobbins v. Stevens 554 Dobie V. Armstrong 532 Dodd V. Burchell 172, 179 V. Holme 281, 282 Dodge V. Cole 518 V. Emerson 618 V. MeClintock 323, 327 V. McKeclinie 564 V. Stevens 548, 699 Dodkin v. Brunt 458 Dodson V. Ball 755 V. Sevars 832 Doe V. Cafe 430 u. Cook 463 V. Hawthorn 478 V. James 561 V. Routlidge 577 V. Sybourn 462 V. Wriglite 463 Doe d. Allender v. Sussan 884 Douglas V. Lock 165 Comberbach v. Perryn 738 Georges v. Webb 748 Herbert v. Selby 750 Long V. Prigg 738, 740 Morris v. Underdown 739 Mussell V. Morgan 827 Tanner v. Dowell 748 TABLE OF CASES CITED. [References are to pages.] XXV Doherty v. Matsell 382 Dolan V. N. Y. & H. R. Co. 2.30, 231, 282, 269 Dollifi V. Boston & M. R. Co. 172 DoUiver v. DoUiver 544 V. Ela 28 Dolton V. Sickel 129 Dominicjk v. Michael 801 0. Sayre 809, 810 Donalds v. Plumb 466 Donaldson v. Donaldson 444 V. Farwell 678 Donep;an v. Mentz 618 Donnell v. Humphreys 164 Donnelly v. Eastes 589 Donnica v. Coy 527 Donolioe v. Chicago Cricket Club 553 Doolev V. Potter 652 Doolit'tle V. Lewis 799, 813 Dooly Block v. Rapid Tr. Co. 233 Doran v. MoConlogue 450 Dority V. Dunning 163, 243, 244, 264 Dorman u. Bates Mfg. Co. 224 Dorr V. Johnson 836 Dorrity d. Rapp 280, 281, 283, 285, 294 Dorsey v. Habersack 289 Doty V. Gorham 66 Dougan v. McPherson 546, 648 Dougherty v. Thomson 735 Douglas V. Coonley 183, 262, 263 V. Cruger 463 Douglass V. Kendal 308 Dow V. Doyle 747, 748 V. Jewell 513 Downer v. Church 523, 525 Downes v. D. & F. Co. 162 V. Grazebrook 648 V. Jennings 567 Downey v. Tharp 638 Downing v. Marshall 460, 494, 495, 499, 500, 503, 788, 809 V. Townsend 448 Dowse V. Gorton 663 Doyle V. Lord 274, 275, 276 V. Sleeper 511 V. Whalen 428, 488, 490 Doyley v. Atty.-Gen. 467 Drake v. Brown 742 V. Drake 812 v. Paige 668 Dresser v. Norwood 673 Drewett v. Sheard 261 Driggs V. Phillips 205 Drucker v. Manhattan R. Co. 230, 231 Druley v. Adam 240 Drybutter v. Bartholomew 51 Dubois V. Beaver 66, 199 V. Hull 617 V. Kelley 66 V. Kelly 42 Du Bois V. Ray 741 Dubuque Nat. Bk. v. Weed 625 Dudley v. Bachelder 609 Dudley v. Congregation of St. Francis 691 V. Dudley 509, 559 V. Hurst 22, 55 V. Warde 45 Dufllers v. Bangs 18 Duffus V. Howard Furnace Co. 34 Dutey !;. McGuiness 686 V. N. Y. & H. R. Co. 295 Duggan V. Slocum 492 Duke of Marlborough v. Earl Godolphin 857 Duke of Portland v. Topham 568, 669 Duke of Sutherland v. Heathcote 324 Dulton V. Warschauer 628 Duncan v. Louch 249 V. Rodecker 257, 290 Duncklee v. Butler 850 Dundee Chem. Works v. Connor 644 Dunham v. Pitkin 181 V. Presby 427 V. Reilly 9 Dunklee v. Wilton R. Co. 265 Dunkles v. Wilton R. Co. 174 Dunn V. Flood 858 V. Wheeler 462 Dunning v. Ocean Nat. Bk. 50 Dunscomb «. Randolph 289 Dunton v. Outhouse 618 Du Prat V. James 318 Durand v. Marcks 629 Durando v. Durando 720 Durant v. Smith 453, 466 Durel V. Boisblanc 155 Durfee v. Pavitt 616 Durgin v. Lowell 227 Durham & S. R. Co. v. Walker 166 Durling v. Hammar , 518 Durnherr v. Raw 648 Dusie V. Ford 608 Dutcher v. Culver 119 Dutton V. Poole 536 Duval V. Becker 265 V. Wellman 541 Dwenger v. Geary 70 Dwight Printing Co. v. Boston 299 Dyer v. Cranston Print-Works Co. 300 V. Dyer 507, 508, 611, 613, 526 V. St. Paul 279 V. Sandford 166 V. Sanford 252, 253, 256 Dyett V. Central Trust Co. 472, 496, 581, 788 V. Pendleton 129 Dynevor v. Tennant 263 E. Eadie v. Slimmon 644, 545 Eagle Fire Ins. Co. v. Cammet 702 Earl De La Warr v. Miles 197 Earl of Aylesford v. Morris 639 XXVI TABLE OP CASES CITED. [References are to pages.] Earl of Darlington v. Pulteney 802 East Jersey Iron Co. v. Wright 312, 330 Easterly v. Keney 425, 470 Kastham v. Koundtree 518 Eastis V. Montgomery 547 Eastman v. Aniierson 118, 119, 120, 242 Eiistou V. Isted 203 Eaton V. Green 612 V. McCall 694, 705 V. Simonds 686 V. Straw 837 V. Swansea Water Works Co. 201, 206 V. Watts 451 u. Whiting 656 Eaves v. Estis 18, 33 Eberhardt v. Perolin 451, 452, 453 Ebner v. Stiukter 326 Ebrand v. Dancer 512 Eckerson v. Crippen 325 V. Village of Haverstraw 222 Eckleman v. Miller 291 Eddy V. Chace 258, 259 Eden v. Burtiss 836 Edge V. Worthington 615 Edgerly v. Barker 862 Edgerton v, Brownlaw 429 V. Page • 129 Edgett V. Douglas 248, 249 Edington v. Fitzmaurice 534 Edson V. Bartow 483, 523, 536 V. Munsell 218 ■V. Parsons 536 Edwards v. Bibb 837 V. Charlotte, etc. R. Co. 301 V. Culbertson 527 .^.Edwards 510,611 V. Farmers F. I. & L. Co. 653 V, Jenkins 219 V. Jones 443 t. Meyrick 563 u. Sleater 789, 790 V. Trumbull 616 Eels V. Amer. T. & T. Co. 233 Ege V. Ege 127 Egerton v. Brownlow 781 V. Earl Brownlow 780 F.hmen i'. Gutlienberg 226 Ehrman v. Mayer 131, 139 Eidlitz V. Lancaster 659 Eidmiller Co. v. Guthrie 68 Eipper v. Benner 439 Elder v. Rouse 627 Eldred v. Meek 845 Electro-Magnetic Co.i>. Van Auken 316 Elfeit V. Stillwater R. Co. 218 Elgin V. Eaton 280 Elizabethtown & P. R. Co. u. Thompson 232 EUcock V. Mapp 526 Ellerson v. Weseott 536 Ellesmere Brewery Co. v. Cooper 662 Elliot V. Merrymau 580 Elliott V. Bishop 12 V. N. E. K. Co. 284 V. Khett 263 u. Swartwout 544 V. Wood 655 Ellis V. Bassett 160, 171, 178, 181 V. Davis 533 V. Maxwell 864 V. Nimmo 447 V. Paige 43 V. Rowbotham 125 r. Selhy 481 V. Tone 268 Ellison V. Daniels 628, 634, 637 V. Ellison 444, 447, 560 Ellsworth V. Janssen 820 Elson V. Comstock 226 Elsworth V. Grand Rapids 223 Elting V. Palen 66 Elwes V. Maw, 23, 27, 29, 37, 38, 39, 40, 45,47 Ely V. Edison Elec. Ilium. Co. 153 Emans v. Trumbull 308 Emanuel College v. Evans 609 Embrey v. Jemison 541 V. Owen 298 Embury v. Sheldon 605 Emerson v. Fisk 321 V. Galloupe 439, 559 V. McWhirter 317 V. Mooney 166 V. Shores 328 Emmerson v. Heelis 62 Emmett v. Pcnoyer 620 Eneminger v. The People 297 Enfield v. Jordan 574 Engel V. Ayer 216 England v. Downs 566, 567 p. Reynolds 449 V. Slade 462 English V. McClure 616 Ennor v. Hodson 519, 520 Eno V. Del. Vecchio 286, 291, 292 293 Ensley v. Ballentine 519 Ensminger v. The People 239 Episcopal Academy v. Phila. 479 Equitable Life Assurance Society of U. S. V. Brennan, 155, 161, 184, 186, 187, 189 Erb V. Brown 256 Erdman v. Moore 16 Erhardt v. Boaro 316 Erickson v. Mich. L. & T. Co. 283 V. Smith 617 Erlanger w. New Sombrero Phos- phate Co. 558 Ermentrout v. Stitzel 256 Erskine v. Townsend 607, 608, 628 Erwin v. Cent. U. Tel. Co. 233 V. Hurd 68 V. Parham 538 Esham v. Lamar 539 TABLE OP CASES CITED. [References are to pages.] XXVJl Esling V. Williams 196, 204 Essex Co. Bank v. Harrison 574 Evangelical Lutheran St. J. & 0. Home V. Buffalo Hydraulic Ass'n 250 Evangelical L. S. Orplians' Home V. Buffalo Hydraulic Assoc. 144 Evans v. Biuknell 531, 532 V. Evans 756, 758 V. Jayne 290 a. Saunders 819 V. Smith 832 V. Welch 623 Evansville v. Page 226 Evelyn i'. Templar 447,448,561 Everett v. Carr 485, 486 0. Edwards 291, 292 u. Everett 515 u. Peyton 471 V. Kemington 186, 188 Everly v. Harrison 559 Evers v. Cliallis 848, 862 Evertson v. Booth 664 Ewe II V. Hubbard 686 Ewing V. Barnes 835 0. Burnett 382 V. Wilson 450 Ex. Mission Land & Water Co. v. Flasli 558 Ex'or of Condict v. King 836 Eyre v. Potter 538 V. Shaftesbury 476 Eyton V. Eyton 536 Factor's, etc. Ins. Co. v. Murphy 686 Fahn v. Bleckley 6p8 Fairbanks v. Lamson 478 V. Snow 544 Fairchild v. Edson 500, 536 V. Fairchild 515, 516 Fairis v. Walker 24 Fall V. Sutter Co. 146 Falmouth v. Thomas 61 Fanning u. Gregoire 146 Fargo V. Squiers 796, 813, 848, 858 Farleigh w. Cadmann 450 Farley v. Craig 123, 128, 134, 139, 140 Farmer v. Dean 650 V. Farmer 554 V. Pitt 674 Farmers' and Mechanics' Bk. v. King 517, 519 Farmers' Loan & Trust Co. b. Penn. Plate Glass Co. 659 Farnham v. Clements 508 Farquhar i\ Darling 476, 478, 480 481, 482 Farrar v. Farrar 548 Farrell v. Lloyd 513 V. Noel 710 r. Parlier 611 Farrington v. Forrester 665 V. Putnam 523 Farwell v. Kloman 521 Faukboner v. Corder 218 Faulcon v. Johnston 62 Faust's Adm'r v. Birner 836 Featherstonaugh v. Fenwick 552 Feder v. Van Winkle 12 Feeder v. Van Winkle 23,25 Fellows V. Greenleaf 449 V. Lee 386 V. Loomis 652 y..New Haven 280 Felton V. Simpson 203 Felts y. Martin 710 Fentiman t- Smith 327 Ferchen v. Aradt 521 Ferebee v. Pritchard 566 Ferguson v. Witsell 205 Ferrel v. Woodward 148 Ferson v. Sanger 535 Festorazzi u. St. Joseph's Catholic Church 479, 484, 490 Fetters v. Humphreys 174 Fettretch v. Leamy 288, 289 Fidler v. John 568 V. Lash 820 Field V. Brown 202 V. Manchester 224 V. Pierce 51 Fields V. Dremen 616 Fietsam v. Hay 142 Fife V. Miller 760 Fillebrown v. Hoar 129 Fincke v. Fincke 466 Finegau v. Eckerson 280 Finlay v. King 592 V. King's Lessee 5H0 Finlayson v. Crooks 668 Finley v. Hunter 478 V. Isett 439 First Baptist Church of Hartford v. Wetherell 68 First Bapt. Soc. v. Grant 68 First Nat. Bk. v. Connecticut M. Life Ins. Co. 668 V. Michigan Trust Co. 805 V. Miller 563, 604 V. National Broadway Bank 410, 581, 805 V. Shuler 702 V. Villegra 281 First Nat. Ins. Co. v. Salisbury 633 First Parish v. Jones 19 First Univ. Soc. of N. Adams !>. Boland 599, 600, 601, 746 Firth V. Rowe 38 Fischbeck v. GroSS 531, 536 Fish V. French 6o8 V. Howland 618 Fisher v. Dixon 29 V. Fair 242 V. Fiege 300 XXVIU TABLE OF CASES CITED. [Beferences are to pages.] Fislier v. Fields 441 V. Hall 494 V. N. Y. & N. E. R. Co. 205 V. Reach 681 V. Wister 829, 831, 832 Fisk V. Fisk 632 V. Sarber 551 V. Stewart 626 Fiske V. Tolraan 680 Fitch V. Fitch 640 V. McDowell 636 V. Rawling 157, 192, 219 Fitzgerald v. Anderson 47 V. Beckwith 636 V. Fitzgerald 527 Fitzpatrick d. B & M. R. Co. 251 Flack V. Green Island 222 Flagg 0. Mann 575, 625 Flaherty v. Moran 277 Flegg V. Mann 614 Fleischnmn v. Toplitz 133 Fleming v. Burnham 801 Fleniington Nat. Bk. v. Jones 636 Fletclier v. Asliburner 50 V. Ashley 567 u. Barber 703 V. Bartlett 548 V. Bass Riv. Sav. Bk. 644 V. Herring 66 V. Holmes 628, 634 V. McKeon 646 V. McMillan 38 V. Peck 576 V. Smith 299 Fliekinger v. Shaw 326 Flint «. Bacon 173 Flora V. Carbean 196, 203 Florence v. Zeigler 579 Florida S. R. Co. o. Brown 232 Floyd V. Barker 524 V. Carow 718, 722 Fluok K. Rea 543 Flye V. Berry 628, 633, 677 Flynn ;;. Flynn 50 Fobes V. Rome, W. & O. R. Co. 232, 272 Fogal V. Pirro 652 Foley V, Godchaux 301 FoUansbe v. Kilbreth 507 Folmsbee v. City of Amsterdam 230, 280 Fonda o. Sage 693 Fontain v. Ravenel 477, 488, 490 Foose V. Whitmore 463, 456 Foot I'. New Haven & North Co. 324, 327 Foote V. Bryant 615 0. Elevated Railroad 256, 256 V. New Haven & North Co. 330 Forbell v. City of New York 284 Forbes v. Balenseifer 321 I). Gracey 314, 315, S19 V. Moffatt 685, 686 Forbes v. Shattuck 60 Force v. City of Elizabeth 532 Ford V- Cobb 19, 30, 33 V. Ford 482 V. Lewis ^^2 V. Livingston 50, 52 V. Met. R. Co. 175 V. New Haven & North Co. 253 V. Tynte 70 Fordyce v. Willis 435 Forster v. Hale 436, 439 f, Winfleld 495 Fort Plain Bridge Co. u. Smith 146 Fortescue i'. Barnett 443 Forth V. Chapman 834 V. Norfolk 649 Fosdick V. Schall 35 V. Town of Hempstead 477, 480, 499, 600 Foster v. Bowles 680 V. Browning 324 V. Carson 640 V. Day 580 V. Durant 514 V Dwinel 6.32 V. Foster 470 V. Perkins 633 Fothergill v. Fothergill 807 Fourth Presbyterian Church v. Steiner 190, 192 Fowle V. N. H. & N. R. Co. 52 Fowler v. Depau 848 V. Wood 620 Fox V. Clarke 281 V. Fox 850 V. Macreth 543, 546 V. Mackreth 548, 559 V. Peoples 607, 659 V. Rumery 772 V. Wharton 635 Foxworth V. Brown 674 Francis v. Wilkinson 656 Francks v. Whitaker 750 Frank v. Davis 691 Franklin Sav. Bk. v. Cochrane 681 V. Cockrane 682 Franz v. Mendonca 207 Fratt V. Whittier 52 Frazier v. Brown 299 !). Frazier 810 Frear v. Sweet 641, 671 Freeman v. Laing 672 V. Schroeder 628 Freemont v. Dedire 622 Freiberg v. Stoddard 621 Freidlander v. Ryder 24, 47 Freligh v. Piatt 68, 69 French v. Freeman 66, 67 /). Marstin 184, 204, 246, 246 u. Morris 242 V. Pittsburg Vehicle Co. 648 V. The Old South Society 67,68, 69 Freshour u. Hihn 218 TABLE OP CASES CITED. [References are to pages.] Fries v. N. Y. & H. R. Co. 230, 232 Frink v, Adams 625 Frisbie v. Frisbie 650 Frith V. Cartlaud 620 Fritsch v. Klausing 819 Fritz V. Seeley 180 V. Tompkins 180, 244, 266 Frost V. Yonkers Sav. Bk. 638 Fruit Co. V. Buck 666 Fry V. Lane 536, 539, 640, 644 V. Miller 62 Fryer v. Kockefeller 635 Fuller V. Chamier 756 V. Jenkins 620 V. Tabor 20 FuUerton v. McCurdy 612 Fulton V. Andrews 647 u. Jansen 510 V. Mehrenfleld 226 V. S. R. T. Co. 232 V. "Whitney 548, 549, 550 Furber v. Page 507 Furnas v. Durgin 696 Furner v. Seabury 245 Furnish v. Rogers 749 Furniss v. Ferguson 639 Furnold v. Bank of Missouri 664 Fursaker v. Robinson 448 Fusselman v. Worthington 126 G. Gabbert v. Schwartze 634 Gable v. Columbus Cigar Co. 563 Gadberry v. Sheppard 693 Gaffield v. Hapgood 39, 47 Gage V. Gage 515, 516 V. Steinkrauss 69 Gaines v. Hennen 536 Gainsford v. Dunn 812 Galbraith v. McLaughlin 538 Gale V. Harby 517 V. Morris 616 Gale's Ex'rs v. Morris 621 Galin v. Neimcewicz's Ex'rs 663 Gallagher v. Shipley 67 Galle V. Tode 563, 564, 665 Gallego's Ex'rs v. Atty.-Gen. 490 Gait V. Chicago & N. W. R. Co. 231, 232 G. C. & S. F. R. Co. V. Eddins 232 Galway v. Met. Eleo. R. Co. 720 Ganz V. Lancaster 688 Gardiner u. Guild 742 V. Tisdale 220 Gardner v. McClure 616 V. Watson 623 Garforth v. Bradley 690 Garland v. Smith 533 Garmire v. Willy 290 Garnsey v. Mundy V. Rogers Garrard v. Lord Lauderdale Garrett v. Jackson V. Kan. City Coal Min. Co Garrison !). Rudd Garritt v. Sharp Gartside v. Outley Garvey u. McDevltt XXIX 449, 450 681 449 210 538 215 266, 267 646, 947 792, 793, 822, 857 555 663 799 649 161 179,180,211 177, 182, 203 618 429 614 174 36 853 637 479, 480 163, 245 625 665, 660 44 160 44 69 Garvin v, Williams Gaskill V. Wales's Ex'rs Gates V. Dudgeon Gatewood v. Gatewood Gawtry v. Leland Gayetty v. Bethurae Gayford v. Moffatt Gaylord u. Knapp V. La Fayette Gee V. Thrailkill Geible v. Smith Gen. Electric Co. v. Transit Equip. Co. Genet v. Hunt George v. Baker V. Braddock V. Cox V. Grose V. Wood George Bauernschmidt B. Co. McColgan Gerard v. Cooke Gerbert v. Sons of Abraham German Ref. Church v. Seibert German Sav. & Loan Soc. v. Weber 35 Gerrard v. Cooke 248, 249 Gerrish v. Shattuck 245 Getchell v. Benedict 223 Ghormley v. Smith 471 Gibbons v. Gibbons 741 V. Hoag 629 Gibbs V. Estey 20 V. N. Y. L. Ins. Co. 647 Gibert v. Peteler 166, 278, 695 Gibson v. Bailey 633 V. Barbour 548 V. Crehore 644, 661 V. Foote 508 V. Hammersmith Railway Co. 37 V. Holden 288, 290 V. Jeyes 539 V. Kirk 125 V. Rees 449 V. Toole 508 V. United States 297 GifCen v. Olathe 226 V. Taylor 527 Gifford V. First Presby. Soc. of Syracuse 69 V. Thorn 537, 638 Gilbert v. Chapin 463, 456 V. Gilbert 515 XXX TABLE OP CASES CITED. [References are to pages.] Gilbert v. Overton 443 V. Peteler 160, 588 V. Witty 748 Gilbertson v. Richards 844 Gidersleeve v. Hammond 280, 281 Giles V. Anslow 455 V. Dugro 294 V. Little 591 V. Simonds 322 Gilford u.Winnepiseogee Lake Co. 196 Gillespie v. Allison 738 V. Weinberg 245 Gilman v. Bell 789 V. Reddington 869 Gilmore v. Armstrong 325 V. DriscoU 239, 268, 279, 280, 282, 286 Gilpatrick v. Glidden 533 Gilpin V. Hollingsworth 752 Girard v. Philadelphia 491 Girard Trust Co. v. Mellor 442, 443 Glacier Mt. S. M. Co. v. Willis 315 Glacius V. Fogel 680 Glass V. Ellison 634 V. Hulbert 574 Glaze V. Western, etc. R. Co. 205 V. Western & Atlantic R. Co. 212 Gleeson v. Martin White M. Co. 316 Glenorchy v. Bosville 429 Glidden v. Bennett 28, 46 V. Blodgett 743 Glidewell v. Spaugh 514, 515 Globe Co. V. Quinn 39 Globe Marble Mills Co. u. Quinn 33,34 Gloucester v. Wood 522 Gloucester G. & Q. Co. v. Russia Co. 672 Glover V. Condell 467, 810 V. Manhattan R. Co. 231 V. Stillson 747, 800 Goddard v. Bolster 22 V. Hall 125 V. Snow 567 Godman v. Simmons 767 Goebel v. Wolf 742, 866 Goelet V. Asseler 8 Going V. Emery 478 Goldman v. Smith 564 Goldsmitli v. Goldsmith 527, 546 Gombault v. Public Adm'r 643 Gomez V. Gomez , 768 Good V. Fichthorn 453 Goodale v. Mooney 481 Goodall y. Godfrey 160, 169, 171, 179, 180 Goode V. Gaines . 722 V. Riley 536 Goodhart v. Hyett , 268 Goodman v. City of Saltash 219 V. Hannibal & St. J. R. Co. 42 V. White 628, 701 Goodrich v. Burbank 308, 309 u. Jones 17, 22, 66 V. Tenney 541 V. Milwaukee 461 Goodright v. Cornish 762, 772, 773 V. Davids 594 V. Wells 412 Goodtitle v. Billington 770, 783 V. Tombs 37 Goodwin v. Coddington 29 r. Keney 684 V. Mass. Loan Co. 578 V. Mass. L. & T. Co. 578 Gordon v. Johnson 617 V. Smith 650 Gore V. Gibson 543, 544 V. Gore 826 Gorham v. Daniels 779 V. Eastchester Electric Co. 233 Goring V. Bickerstaffe 839 Goss V. Tracy 533 Gott V. Cook 498, 772, 866, 869 Gough V. Wood 35 Gould V. Booth 301 V. Boston Duck Co. 300 V. Glass 225 V. Marsh 636 V. Newman 635 V. Petit 410 u. Winthrop 679 Gouverneur v. Nat. Ice Co. 58, 113 Govin V. De Miranda 444, 445, 465 Gowen v. Philadelphia Exchange Co. 221, 227, 322 Gower w. Mainwaring 467,810 Gowland ;;. De Faria 539 Grace w. Wade 669 Grace M. E. Church v. Dobbins 171, 203, 306 Grady v. Moulton 144 Graeflfu. De Turk 812 Grafi V. Rohrer 527 Graham v. Connellsville R. Co. 55 V. Graham 567 o. Houghtalin 738 V. Long 4.39 V. Newman 636 V. Selbie 515 G. C. & S. F. R. Co. V. Eddins 233 Grand R. & L R. Co. v. Butler 113 V. Heisel 232 Grand Rapids St. R. Co. v. West Side St. R. Co. 230 Grandona v. Lovdal 65 Grandville v. Jenison 224 Granger v. Crouch 636 Grant v. Chase 265 V. Doane 650, 651 Grattan v. Wiggins 634 Graves v. Berdan 285 V. Braden 628 V. Conant 617 V. Deterling 588 TABLE OF CASES CITED. [References are to pages.] XXXI Graves v. Graves 457, 526 Groves v. Groves 512 V. Smith 288, 292 V. Sentell 664, 666 V. Waterman 646 Grubb V. Bayard 312 Gray v. Gillespie 633, 641 V. Grubb 307 308 V. Johnson 123 Grumley «. Webb 568 Graydon's Ex'rs v. Graydon 591 Grymes v. Boweren 39 Greason v. Keteltas 497 Gucker v. Met. Elec. R. Co. 51 Great Falls Mfg. Co. u Worster 469 Guernsey v. Wilson 54 642 Greatrex v. Hayward 306 Guest V. Farley 461 Green v. Allen 484 Guilleaume v. Rowe 514 i;. Armstrong 6S Gulf, C. & S. Ry. Co. v. Settegast 595 V. Berge 279 Gulick V. Griswold 802 V. Canaan 224, 225 Gunster v. Scranton I. H. & P. C 0. V. Geiger 693 573 V. Goodall 567 Gustavson ;;. Hamm 232 V. Green 554, 756 Guthrie v. Jones 23, 38, 39, 52 . Delorme 197 Hapgood V. Brown 305 Harher v. Evans 289, 293 Hardaker v. Moorhouse 821 Hardin v. Shedd 239, 297 Harding v. Glyn 454 Hardiety v. Richardson 56 Hare v. Horton 19, 28 Hargrave v. Cook 248 Barker v. Reilly 623 Harkness v. Burton 325 V. Sears 41, 46 Harlan v. Logansport Co. 158 Harrington v. Erie Co. Savings Bk. 649 V. Fortner 621 Harris ;;. Arnold 574 u. Barnes 826 V. l)e Pinna 274, 277 V. Dougherty 515 V. Elliott 164, 272 a. Frink 62 V. Gillingham 55 V. Hooper 701 V. Mackintosh 269 V. Ryding 284, 285, V. Scovel 17 V. Taylor 659 Harrisburg Bk. v. Tyler 518 Harrisburg Electric Light Co. v. Goodman 16, 53 Harrison v. Brophy 479, 484 V. Foreman 741 V. Glucose Co. 541 V. Guest 538 V. Harrison 453, 473 V. Manson 550 V. Ricks 124 V. Trustees of Phillips Academy 655 Harrison County v. Seal 226 Harrold v. Lane 508 Hart V. Chase 649 V. Connor 181 V. Farmer's Bk. 573 V. Sansom 469 V. Seymour 421 Hartigan v. Smith 669 Hartopp V. Hartopp 556 Hartshorn v. Chaddock 299 Harty «. Doyle 811 Harvey v. Hobray 686 V. Merrill 641 V. Mount 557 V. Varney 565 V. Walters 306 Harwood v. Benton 174 V. Tompkins 278 Hascall v. King 497, 498, 866, 867, 868, 869 Haskins v. Hawkes 633 V. Kendall 623 Haslem v. Lockwood 67 TABLE OP CASES CITED. [References are to pages.] XXXlll Haslett V. Shepard Hassam v. Barrett V. Hazen Hastings v. Livermore Hatch 0. Hatch V. National Bk. Hatchett v. Hatehett 251 626 816 268 555 518 812 Hatfield v. Sneden 587, 599, 601, 603, 605, 729, 746, 781, 826 Haug V. Schumacher 740, 854, 855, 861, 862 Haughwout V. Murphy 572, 579 Hauselt v. Patterson 680 Haven v. Emery 56 V. Germania Fire Ins. Co. 20 V. Gr. Junction R. R. 633 Havens v. West Side Elec. L. Co. 53 Hawes V. Williams 613 Hawkins v. Hersey 34 V. Kemp 802 Hawley v. James 137, 426, 495, 497, 847 860, 856, 857, 859 Hay (,'. Cohoes Co. 239, 279 V. Earl of Coventry 761 V. Knauth 162 Hayden v. Conn. Hospital 488, 490 V. Dutcher 274, 275, 276 V. Stone 222, 224 V. Stoughton 524 Haydock v. Haydock 547 Hayes !'. Foorde 755 V. Kershaw 446, 448 V. Kingdome 522, 526 y. Pratt 480, 485 V. Ward 663 Hayford v. Spokesfleld 257 Haynes v. King 275 u. Sherman 841, 847, 848, 858 Hay^ V. Doane 29 V. Quay 442 Hayward v. Miller 188 Hazard v. Robinson 195 Hazle 0. Bondy 639 Hazleton v. Putnam 323, 330 Healey v. Babbitt 273 Heaps V. Dunham 544 Heard v. Read 805, 820 Heartt v. Kruger 262, 291, 294 Heath v. Page 565 Hedderich v. Smith 44 Hedges v. Dixon Co. 425 V. West Shore R. Co. 240, 296 Heeney v. St. Peter's Church 69 Heermans v. Burt 495, 497 V. Robertson 494, 495 Heffner v. Lewis 39 Hegnoy v. Head 547 Heidenheimer v. Bauman 491, 523 Heimberger v. Boyd 651 Heirkamp v. La Motte Granite Co. 27 Heischler v. McKendrick 318 HeiskeU v. Trout 519, 521, 523 Heister v. Green Heitli (I. Horner Heitzfeld v. Bailey Helbrey v. Schumann Helck I'. Reinheimer Hemingway v. Coleman Hemphill v. Boston 616 617 578 544 730 538 227 Henderson v. Central Park R. Co. 257 V. Davenport 814 V. Henderson 497, 846 V. Hunter 600, 729 V. N. Y. Cent. E. Co. 281, 235 V. Ownby 54 Hendricks v. Robinson 562 V. Stark 294 Hennessy v. Murdock 258 V. Patterson 729, 731, 735, 750, 767, 768 Henning v. Burnet 163 Henry v. Allen 573 V. Koch 172, 291 V. Raiman 554 Henschel v. Mamero 532 Henshaw v. Clark 315 Herd v. Catron 591 Herhold v. Chicago 223 Herman v. Roberts 248, 249 Herr v. Payson 553 Herrick v. Marshall 161 V. Teachout 620 Herriott v. Prime 800 Hersberg v. Metzgar 61, 62 Hersee v. Simpson 738 Hershey v. Meeker County Bank 822 Hertell v. Bogert 637 Hesperia Land & Water Co. v. Rogers 197 Hestonville, M. & F. Pass. E. Co. <,. Phila. 258 Hetfield v. Cent. R. Co. 327 Heth V. Cocke 629 Hetzel V. Barber 805, 819, 823 Hewett V. Hewett 810 Hewitt V. Crane 557 V. Gen. Electric Co. 39 Hewline v. Shippam 329 Hey V. Coleman 210 Hickey v. Morrell 5.34, 535 Hickox V. Chicago & C. S, Ry. Co. 267 Hicks V. Silliman 269 V. Swift Creek Mill Co. 328 Hidden v. Jordan 508 Hieatt v. Morris 291 Hier v. Mill Haven Co. 325 Higgins i'. Eagleton 571 ;;. Flemington W. Co. 300 V. Kusterer 58 V. Reynolds 272 Highberger v. StifHer 544 Hill V. Bishop of Exeter 561 V. Bishop of London 522, 525 V. Chicago, St. L. & N. 0. R. Co. 232 XXXIV TABLE OF CASES CITED. [References are to pages,] Hill V. De Rochemont 66 V. Gray 535 V. Hill 70, 322, 323, 327, 433, 452, 454, 551, 837 u. Lord 151, 166, 211, 221, 308, 309 V. Mundy 24 V. Sewald 18 V. Wentworth 22, 23 Hillary v. Waller 258, 462 Hillen V. Iselin 500, 805, 806, 808, 811, 814, 850, 858 Hiller v. Jones 565 Hilliard r. Gal. Coal Co. 275 Hills -■. Eliot 627 D. Simonds 862 Hilton V. Milburn's Ex'rs 767 Hirnnielniann r. Fitzpatrick 683 Hinckel v. Stevens 309 Hinds V. Ballou 648 Hindson v. Weatherill 653 Hines v. Haniburgher 182 Hinkle v. Landis 566 Hinkson v. Lees 741, 742 Hirsh (.. Auer 436, 468 Hoag V. Hoag 465 V. Place 159 Hoblyn v. Hoblyn 556 Hoboken v. Pa. E. Co. 296 Hoboken Land Co. i^. Hoboken 224, 225 Ilobson V. Gorringe 15, 19, 35, 36 V. Roles 637 Hockenbury v. Carlisle 554 Hpdge V. Amerman 574 V. Sloan 188 Hodges V. S. E. Co. 232 V. Verner 508 Hodgkin v. Farrington 292 Hodgkins v. Farrington 202, 287, 321, 330 Hodgkinson v. Enner 305 Hodgson V. Farrell 538 Hoeffer !•. Clogan 478, 484 Hoeveler v. Flemming 129 Hoffman v. Armstrong 65, 199 u. Carrow 519 V. Kuhn 262, 263, 288, 294 V. Savage 262 Hogan V. Barry 161, 273 V. Cent. Pac. R. Co. 232 V. Curtin 591 V. Kavanogh 463 Hoge ('. Hoge 536 Hogiiton V. Hoghton 542, 547 Hogsett V. Ellis 647 Holbrook v. Chamberlin 23 Holdom V. Ancient Order of U. W. 537 Holland v. Alcock 475, 478, 479, 483, 484, 498, 499, 500, 809 V. Brown 574 V. Long 208 V. Peck 484 HoUeuback v. Rogers 513 HoUenbeck v. McDonald 265 HoUiday v. Overton 430 Hollis V. Drew Theological Seminary 483 HoUmann v. Platteville 70 HoUoway v. Headington 448 Holly V. Hirsch 495 Holman v. Loynes 553 Holmes v. Oilman 4, 517, 520 V. Goring 178, 180 V. Loynes 543 V. Mead 491, 499, 500 0. Penney 563 u. Seashore Electric By. Co. 690 V. Seely 180, 181 V. Seller 160, 166 V. Treniper 39, 40 Holt V. Fleischman 190 Holzman v. Donglas 200 Home Mut. L. Ins. Co. u. Marshall 472 Hood V. Oglander 455, 456, 457 Hood-Barrs v. Heriot 472 Hooker v. Cunimings 308, 596 V. Hooker 765 V. Utica, etc. Turnpike Co. 723 Hoole V. Atty.-Gen. 225 Hooper v. Feigner 462 Hoopes V. Bailey 614 Hoosier Stone Co. v. Malott 215, 242, 271 Hope V. Brewer 48.3, 863 Hopewell Mills v. Taunton Sav. Bk. 16 Hopkins v. Grimshaw 428, 429, 477, 482, 487, 490, 492, 525, 844, 851, 859 V. Hopkins 423, 424, 829 V. Kent 461, 462, 465, 494 V. Randolph 564 Hopper V. Barnes 216 V. Hopper 650 Horn V. Baker 23, 47 V. Indianapolis Nat. Bk. 644 Hornbeck v. Westbrook 166 Hornbeck's Ex'r v. American Bible Soc. 498 Horndorf v. Horndorf 860 Home V. Ingraliam 437 Horner u. Dellinger 139 V. Still well 199, 268, 261 Horsey v. Hough 538 Horwitz V. Norris 805, 806 Hosford V. Ballard 127, 394 Hotclikin v. Third Nat. Bk. of Malone 534 Hothorn v. Louis 657 Houghton V. Chicago R. Co. 59 V. Mendenhall 291 V. Richardson 535 Houlton V. Dunn 541 Houpes V. Alderson 247 HourmeUn v. Sheldon 414 House V. House 29, SO V. Jackson 735, 759, 768, 830 V. Lockwood 694 Houseman v. Grossman 565 TABLE OP CASES CITED. (Bet erenoee are to pages, ] XXXV Houston V. Laffee 32.3 V. Thornton 534 Hovey v. Blanchard 573 How V. Weldon 539 Howard v. Amer. Peace Soo. 490 V. Edgell 538 V. Haley 666 V. Howard 450, 538 V. Robbins 663 V. State 217 Howard Ins. Co. v. Halsey 575 Howe V. Bachelder 61, 62, 63 V. Hodge 632 V. Howe 544 V, Stevens 69 V. West End St. R. Co. 230 Howe's Ex'rs v. Van Schaick 857 Howell V. Estes 172, 264 V. King 184, 245 V. Leavitt 209 V. Schenck 61 d. Western R. Co 657 Howells V. Hettrick 626 Howland v. Blake 510 V. Coffin 124 Howse V. Chapman 480 Howton V. Freason 177 Howze V. Dew 629 Hoxie V. Carr 510 Hoyle V. N. Y. & N. E. R. Co. 204 V. Plattsburgh & M. R. Co. 21, 22,57 Hoyt V. Hoyt 633, 802 V. Ketcham 596 V. Kimball 588, 593 V. Latham 549 V. Swift 677 Hubbard v. Gilbert 615 V. Goodwin 512 V. Housley 795 V. Hubbard 594 V. Town 276 Hubbell V. Hendrickaon 616, 617, 618 V. Moulson 627, 642 V. Sibley 641 V. Warren 188 Hubschman v. McHenry 54 Huck V. Elentye 291, 293, 294 Huckins v. Straw 628 Huddersfleld Banking Co. i<. Lister 31 Hudson R. Tel. Co. v. Watervliet Turn. & R. Co. 230 Huff V. MeAuley 158 V. McCauley 151, 307, 324 Hufeman v. Hall 223 Huggins V. Yates 522 Hughes 0. Edwards 592 V. Harlan 609, 654 V. Mackin 809 V. Tabb 580 V. White 510, 518 Hugnly Mfg. Co. v. Galeton Mills 643 Huguenin v. Baseley 654, 657 Huguenin v. Beasley 536 Hulbert v. Clark 626 Hull V. Cronk 685 V. Hull 866 V. MoCall 651 HuUey v. Security Trust Co. 276 Hulme V. Tenant 472 Humbertson v. Humbertson 432 Humble v. Curtis 638 Hume V. Randall 792, 797 V. United States 538 Humphreys v. Blaisingame 261 Humphries v. Brogden 279, 283, 284, 285 Hunford v. Thayer 238 Hunt V. Bay State Iron Co. 31, 34, 56 V. Matthews 566 V. Moore 512 u. Rousraanier 322, 656, 817 V. Suayze 669 Hunter v. Anderson 801 V. Dennis 651 u. Hunter 136, 137 V. Osterhaudt 594 Huntington v. Asher 58, 151, 163, 248, 249, 308 Huntley v. Huntley 446 V. Kingman 564 Hurdman v. Nor. East R. Co. 302 Huse V. Den 70 Huson V. Young 247 HuBsey v. Castle 567 V. HufEerman 53 Hutchins v. Hey wood 411 V. King 63, 607 V. Lee 436 V. Van Vechten 436, 438, 439 Hutchinson v. Copestake 266 V. Hutchinson 527 Huttemeier v. Albro 160, 171, 265 Hutto V. Tindall 225 Hutton V. Benkard 817 Huyck V. Andrews 152 Hyer v. Little 543 Hyman v. HaufE 675 Hyndman v. Hyndman 552, 654 Ide V. Ide 834 Illinois Cent. R. Co. v. Illinois 59, 147, 240, 297, 298 V. Miller 302 Illinois Starch Co. v. Ottawa Hy- draulic Co. 695 Imlay v. Union B. R. Co. 232 Incliiquin v. French 441 Indian Head Bank v. Clark 573 Indiana, etc. R. Co. u. Swannell 580 Ingalls V. Morgan 664 XXXTl TABLE OF CASES CITED. [References are to pages.] Ingalls V, Plamondon Ingeraoll v. Sergeant 170, 172, 291 123, 130, 134, 388 Inglis I'. Sailors' Snug Harbor 485, 492 Ingram v. Fraley 456 Inhabitants, etc. v. County Comm'ra 228 Inhab. of Palmyra v. Pa. R. Co. 146 Inliab. of Sudbury v. Jones 63 Inlow V. Christy 548 Investment Co. v. 0. & N. E. Co. 164 Iowa L. & T. Co. V. King 702 Ireland v. Gerahty 485 Iron S. M. Co. v. Chusman 316 Ironmongers' Co. v. Atty.-Gen. 490 Irvine v. Sullivan 523, 525 Irving V. DeKay 497 Irvings v. Thomas 535 Irwin V. Dixon 218 Iselin V. Starin 214 Iseman v. Mayers 499 Isett V. Lucas 636 Itliaca Church v. Bigelow 68 Ives V. Ashley 548, 549 Ivory V. Burns 439, 441 Izod ti. Izod 467 Jackman v. Arlington Mills 299 Jackson v, Allen 594 u. Babcock 323 V. Blodgett 636 V. Cadwell ' 561 V. Carv 461 0. Collins 126 V. Crysler 594 V. Dubois 668 V. Edwards 793, 796 V. Feller 512 V. Gamsey 561 V. Hartwell 414 V. Hathaway 164, 243 V. KnifEen 752 V. Lynch 654 V. Matsdorf 613 V. McClellan 126 V. Middleton 768 V. Moore 463, 510 ^. Phillips 428, 474, 477, 479, 480 481, 487, 490 V. Roby 316 V. Rounseville 68 V. Seward 565 0. Topping 595 V. Turrell 642 V. Walsh 659 V. Willard 649 Jackson & S. Co. v, Phila. W. & B. R. Co. 324 Jackson Co. v. Phila. W. & E. Co. 158 Jackson d. Gratz v. Catlin 417 Jackson d. Nicholl v. Brown 760, 761 Van Buren v. Meyers 665 Varick v. Waldron 830 Jackson ex dem. Trowbridge v. Dunsbagh 781 Jacksonville Bank v. Beesley 507, 508, 510 Jacobs V. Ludemann 657 V. Mickle 703 V. Morrison 563, 575, 621 Jamaica Pond Aqueduct Co. v. Chandler 166, 216, 257 James v. Kerr 539, 540 V. Morey 466 V. Morgan 538 V. Plant 263 V. Smith 507, 559 V. Stevenson 261 Jamieson v. Millemann 323, 330 Jamison v. McWhorter 756 Janes v. Talk 444 V. Jenkins 170, 274 Jaques v. Hall 437 Jaqui V. Johnson 250 Jaquith v. Mass. Bap. Convention 613 Jarboe v. Hey 470 Jarman v. Wiswall 703 Jarrah T. & W. P. Corp. v. Samuel 609, 654 Jarvis v. Dean 225 Jay V. Michael 179 Jaycox V. Smith 711 Jeffery v. Hursh 625 JefCries v. Jeffries 186, 187 Jeffrys v. Jefferys 448 Jemmit v. Varrel 480 Jemmott v. Cooley 137 Jenkins v. Eldridge 437, 535 V. Good C. & M. Co. 663 V. Jenkins 523 V. Pye 556 Jenkyn v. Vaughan 664 Jenner v. Morgan 131, 132 Jennings v. Broughton 635 V. Conboy 796, 823 V. Moore 636 u. Selleck 522 V. Tisbury 217 Jennison v. Walker 260 Jeremiah v. Pitcher 514, 516 Jewett V. Hussey 204, 205 John Hancock Mut. L. Ins. Co. v. Patterson 173 Johns V. James 449 V. Wilson 681 Johnson v. Barg 129 V. Brasington 769 V. Camp 62 V. Clarkson 523 V. Corbett 67 V. Fesemeyer 553 I). Hunt 16 TABLE OP CASES CITED. [References are to pages.] XXX Vll Johnson v. Johnson 490 u. Jordan 160, 170, 171, 266 V. Kinnicut 247 V. Mcintosh 386 V. Mehaffey 16 V. Mellicott 644 V. Oppenheim 28.3 0. Prosperity Loan Ass'n 620 V. Shelter Island G. & C. M. Assoc. 188 V. Skillmaa 326 V. Smith 446 V. Whiton 752 V. Zink 638 Johnston v. Houston 630 V. Hyde 250 V. Knight 816 V. Smith 118 V. Spioer 425, 445 V. Swanu 480 Joliet First Nat. Bk. v. Adams 31 Joliffe V. Baker 5.30 Jones V. Adams 243, 268 V. A. & V. R. Co. 544 V. Carter 593 V. Clarke 646, 647 V. Durrer 595 V. Elkins 518. 520 V. Jones 101, 591 u. Light 566 V. McNarrin 623 V. Morgan 430 V. Palmer 481 II. Parker 648 V. Percival 246, 249 V. Philipps 218 V. Reilly 126 V. Koe 719, 824 V. Rush 616 V. Simpson 564 V. Tapling 266 V. Thomas 61 V. Thompson 544 V. Towne 69 V. Van Bochove 257 V. Van Uoren 668 V. Van Dosen 572 V. Varick 498 V. Wagner 284 V. Westcomb 772 V. Williams 475, 480 V. Windwood 821 Jordan v. Adams 758 V. Cheney 636 V. Sayre 628 Jordeson v. S. S. & D. Gas Co. 208 Joseph V. Ager 248 Jourdan v. Dean 472 Joy V. St. Louis 160 Joyce V. Conlin 267 Judy V. Thompson 678 Jul! V. Jacobs 772 Jupiter M. Co. v. Bodie Const. M. Co. 316, 817, 818 Juvenal v. Jackson 579 K. 548, 322, 275, 276, 277, 628, 551, Kahn v. Chapin Kain w. Fisher Kaler v. Beaman V. Campbell Kalisch v. Kallsch Kamena v. Huebig Kamphouse v. Gaffner Kane v. Bolton V. N. y. El. R. Co. 231, 232, Kansas City M . & B. R. Co. v. Lackey Kansas City Milling Co. v. Riley Kansas N. & D. R. Co. v. Cuy- kendall KarmuUer v. Krotz Katz V. Kaiser Kay V. Pa. R. Co. V. Scales Kean v. Calumet Canal Co. Keany v. Morse Keates v. Cadogan Keating v. Cincinnati V. Springer 273, 275, Keating I. & M. Co. v. Marshall Elec. L. & P. Co Keats V. Hugo Keech v. Hall V. Sandford Keeler v. Keeler Keeling v. Hoyt Kegerreis v. Lutz Keiper v. Klein Keith V. Miller Kekewich v. Manning Kelland v. Fulford Kelley v. Goodwin V. Saltmarshj II. Whitney Kellogg V. Ames Kells V. Helm Kelly V. Dunning V. Kelly V. Nichols Kelsey v. King Kemp V. Bradford Kendall v. Case V. Mann Keneage v. Elliott Kennard v. Miller's Ex'rs Kennedy v. De TafEord 551, 552, V. Fury V. Hoy u. Kennedy V. McCloskey 510, Kennell v. Abbott Kenner v. Amer. Contract Co. 596, 174, 470, 482, 488, 549 61 249 299 739 635 3-26 206 272 302 225 232 167 170 322 421 297 471 535 279 276 53 306 646 552 52 561 508 275 440 443 50 62 251 639 035 291 302 510 490 231 741 833 507 118 477 643 413 862 557 518 533 725 XXXVIU TABLE OP CASES CITED. [References are to pages.] Kennett v. Plummer 628 Kinimel v. Smith 507 Kenney v. Tucker 540 Kinna v. Smith 632 Kensit v. Gt. Eastern E. Co. 299 Kinne v. Webb 567 Kent V. Dean 558 Kinsell v. Billings 27,29 V. Dunham 481 Kinsey v. Bailey 36 V. Gerhard 618 V. Feller 666 V. Morrison 804 833 Kintner v. Jones 618 v. Eiley 564 Kip V. Hirsh 465 V. Waite 163 206 Kippner v. Laverty 834 Kenyon v. Kenyon 720 Kirby v. Talmadge 574 V. See 766 767 768 Kircher v. Schalk 635 Keogh V. Daniell 43 Kirk V. Kirk 458, 500 Kerlin v. Campbell 622 Kirkliam v. Sharp 244 Kern v. Howell 511 Kirkwood v. Finegan 277 Kerr v. Day 458 Kirsch v. Tozier 650, 574, 581 V. Kingsbury 44,56 Kirslieedy v. Union D ime Sav Inst. V. Verner 748 701 Kerrigan v. Tabb 484 Kischman v. Scott 547 Kessler v. Letts 277 Kissam v. Barclay 38,41 Ketchum v. Newman 283 V. Dierkes 801 802 804, 820 Keteltas v. Penfold 290 Kites V. Church 119 Kettlewell v. Watson 573 574 Kittredge v. Woods 61, 63, 65, 66 Keuren v. Corkins 640 Kleeman v. Frisbie 639 Kew V. Trainor 594 Kline v. Jacobs 125 Keyes v. Wood 639 V. Kline 566 Kibler v. Miller 817 V. McDonnell 508 Kiefel V. Keppler 795 V. McGuckin 649 Kieffer v. Imhoff 264 V. Ragland 511, 513 Kiersted v. 0. & A. E. Co. 125 Knabe v. Sevelle 274 Kilburn v. Adams 205 Knapp V. Crane 687 Kilford V. Blaney 622 V. St. L. T. R. Co , 232 Kilgour V. Ashcom 160 Kneeken v. Voltz 244 V. Gockley j 636 Knight V. Boughton 461 452 456, 457 Killmore v. Hewlett 64 V. Heaton 222 Kilpatriek v. Barron 805 857 V. Knight 433, 451, 452, 832 V. Johnson 866 V. Maroney 591 V. Peshine 161 V. Simmons 161 Kimball v. Ladd 202 ti. Weatherwax 494 V. Lockwood 646 Knoch V. Van Bermu h 581 V. Sattley 60 KnoUenberg v. Nixon 683 Kimmel v. McRight 512 Knowles v. Dow 219, 221 Kine v. Farrell 536 Knowlton v. Atkins 439, 496 King V. Dennisou 522 523 525 Knox V. Jones 495 V. Donnelly 458 Koch V. Roth 578, 617 V. Hamlet 540 Koehle v. N. Y. El. R Co. 269 a. King 50' Koehler & Co. v. Brady 695 V. Leake 224 225 Konvalinka v. Schlegel 795 V. Mitchell 522 523 Kopp V. Gunther 440 V. Newman 612 Korbe v. Barbour 55,66 V. Thompson 55 Kortright v. Cady 607 608 641, 649 „. Tiffany 251 683 V. Townshend 465 Kountze v. Kennedy 538, 634 V. Whaley 465 Kraemer v. Adelsberger 625, 626, 627, V. Whiton 805 655 V. Wight 290 Kramer v. Carter 187 Kingdon v. Bridges 512 Kranz v. Oedelhofen 628 Kingman v. Sinclair 678 Kripp V. Curtis 177 179, 181 Kingsbury v. Burnside 508 Kruger v. Le Blanc 31 Kingsley i^. Goldsborough Land Krupp V. Scholl 567 Imp. Co. 179 Kuecken v. Voltz 167 V. Holbrook 63 Kulin V. Newman 461 V. McFarland 28 KuUman v. Cox 549, 550 Kingston-upon-HuU v. Horner 248 Kulp V. March 445 TABLE OF CASES CITED. [References are to pagea.] XXXIX Kurshee^y "• Union Dime Sav. Inst. 647, 648 Kurtz V. Hoke 246 Kutter V. Smith 43 Kyle V. Hamilton 626 628, 160, 798, 206, Lacey v. Amett V. Woodward Lackas v. Bahl Lackey v. Holbrook Ladd V. Boston V. Chase V. Ladd V. Putnam V. Stevenson Lade v. Shepherd Ladue v. Detroit & M. R. Co. Ladyman v. Grave Ladywell Mining Co. v. Brookes Lahey v. Kortright 702, Lahr v. Met. El. R. Co. 229, 231, V. Met. R. Co. Laidlaw v. Organ Lake Erie R. Co. o, Kennedy Lake Superior etc. Co. v. Cunning- ham 588, 689, Lakey v. Scott Lamb v. Jeffrey V. Montague Lamberton v. Dunham Lambes v. Eames Lamm v. Chicago, St. P. M. & 0. R. Co. 229, L'Amoreaux v. Van Rensselaer Lamplugh v. Lamplugh Lampinan v. Milks 166, 169, 174, 176, 281, Lamson v. Sutherland Lancaster v. Dolan V. Eve Landon v. Hutton 448, Lane v. Capsey V. Duchac V. Eaton V. Ewing V. King V. Lamke V. Page V. Shears Lanford v. Poppe Langdon v, Blackburn V. Simson Langford v. Selmes Langley v. Chapin V. Langley V. Sneyd Lanier v. Booth Lansing v. Capron 158 318 23 641 273 815 803 696 623 221 675 208 558 799 273 280 535 159, 324 740 722 638 652 634 462 231 498 512 170, 291 674 561 8 562 267 636 480 444 646 272 668 626 201 533 847 134 688 817 462 210 Lansing !). Goelet 611,693 Lansing I. & E. Works v. Walker 33 Lansingburgh Bk. v. Crary 63 Lapere v. Luekey 275 Lapham v. Norton 28, 55 Lariverre v. Rains 741 Lamed v. Donovan 637 Larnon v. Knight 527 Larrabee v. Hascall 439 V. Larrabee 539 Larsen v. Peterson 173, 175 Larson v. Met. St. R. Co. 281 Lasala v. Holbrook 239, 279, 280, 282, 285 The Late Corp. of the Church of Jesus Christ of Latter Day Saints v. United States 486, 487, 488, 489, 490 Latham v. Atwood Cro. Car. 60 Lathrop c. Eisner 160, 215, 244, 258 V. Elsmer 215 V. Gilbert 518 Latter Day Corp. etc V. United States 489 Lattimer v. Livermore 186 Laumier v. Francis 157 Law V. Douglass 832 Lawrence v. Cooke 453, 456 V. Fox 681 V. French 129 V. Kemp 39 1). Lawrence 562 D. Springer 263, 324, 326, 327, 328 V. Stratton ■635 Lawrence R. Co. u. Williams 232 Lawton v. Lawton 27, 39, 46 0. Rivers 179, 250 0. Salmon 18, 24, 25, 27, 45 V. Ward 184, 245 Laybourn v. Gridley 113 Leach v. Hastings 243 Leake v. Leake 413 V. Robinson 523 Leavenworth Lodge v. Byers 281 Leavitte v. Beirne 470 u. Pell 798 Ledyard v. Phillips 61 Lee V. Fernie 568 V. Kirby 538 V. Lake 223 I'. McLeod 168, 326, 329 u. Sandy Hill 223 i;. Simpson 815 V. Stone 674 Leech v. Schwedar 273 Leeper v. Taylor 447, 448 Lees 11. Fislier fill Le Fevre v. Le Fevre 325, 326 Legg V. Horn 158, 195, 204 Leggett V. Doremus 821 xl TABLE OF CASES CITED. [References are to pages,] Leggett V. Firth 766, 833 V. Hunter 801 V. Perkins 495, 498 Lehigli Val. R. Co. v. McFarlan 201, 202,209,210,211 Lehigh Zinc & Iron Co. v. Bamford 534 Leidlein v. Meyer ' 306 Leigh V. Hewitt 66 V. Taylor 39, 45 Leland v. Gassett 31, 54 Le Lievre v. Gould 533 Lemaitt-e v. Davis 281, 282, 286 Leman v. Best 44 V. Wliitley 527 Lemmon v. Webb 65, 113, 199 Le Neve v. Le Neve 5V2, 673, 574, 668 Lenox v. Lenox 771 Lent V. Howard 463 Lentz V. Martin 625 V. Victor 316 Leonard v. Burr 599, 600, 740, 859 V. Clough 28, 5.3, 54 V. Leonard 179, 200 V. Medford 64 V. White 164 Leonard's Lessee v. Diamond 462 Leopold V. Hallheimer 658 Leslie v. Leslie 439, 440 V. Marshall 826 Lessard v. Stram 301 Lesser v. Lesser 804 LethieuUier v. Tracy 772 Letts V. Kessler 277 Levick V. Brotherline 534 Levy V. Brothers 275, 277 V. Brush 516 V. Bush 559 V. Evans 508 V. Levy 498, 499, 500, 733 V. McCarter 498 Lewis V. Carstairs 163 V. Doane 697 V. Farrell 636 V. Ford 622 V. GoUner 292 V. Henderson 617 V. Jones 67 V. Lyman 66 V. McNatt 60 V. N. Y. & H. E. Co. 52, 196, 246, 382 V. N. T. L. E. & W. R. Co. 218 V. Ocean Nav. & P. Co. 38, 42, 43, 47 V. Portland 218 V. Shearer 616 V. Small 626 V. Waters 770 Libby v. Tufts 666 Liddard v. Liddard 451 Liefe v. Saltingstone 795 Liggins V. Inge 263 Liles V. Terry 553 Lilly V. Dunn 649 Lincoln v. Chadbourne 300 V. Davis 59, 239, 297 Lincoln & K. Bk. v. Drummond 694 Lincoln Rapid Transit Co. i/. Rundle 230 Lindeman v. Lindsay 158 Lindley v. O'Reilly 459 Lines v. Darden 454, 812 Linn v. Davis 471 Linsley v. Sinclair 516 Lintoji V. Hart 131 Lippencott v. Allander 143 V. Davis 759 «. Mitchell 472 Lippincott v. Wikoff 800 Liptrot V. Holmes 462 List u. Hornbrook 286, 293 Little V. Birdwell 591 V. Chadwick 518, 519, 621 Little Ex'or v. Bennett 806 Little M. R. Co. v. Hambleton 233 Littlefield v. Maxwell 309 Livesey v. Jones 481, 485, 491 Livett V. Wilson 201, 202, 210 Livingston v. Haywood 720 V. Livingston 446 ' V. McDonald 301 V. Miller 394 V. Moingona Coal Co. 284 V. Ten Broeck 307 Lloyd V. Gould 447 V. Hart 60 V. Hough 125 V. Johnson 702 V. Lloyd 628 V. Fassingham 422 V. Spillett 506 Lloyds Bk. Limited v. Bullock 560 Lobdell V. Hayes 426 Locke V. F. L. & T. Co. 460 V. Moulton 620 Lockman v. Eeilly 60 Lockwood V. Mildeberger 816, 817 V. Wood 157, 211 Lockwood Co. V. Lawrence 299 Loder v. Whelpley 547 Loebenthal v. Raleigh 805 Logan «. Eva 576 V. Simmons 567 V. Smith 636 V. Stogsdale 178, 237 Lomax v. Bird 651 London v. Garway 623 "■ Riggs 182, 184 London & S. W. R. Co. o. Gomm 842 London Loan Co. v. Drake 46 Long i\ King 511 Long Is. R. Co. V. Garvey 235 Longdale Iron Co. v. Swift's Iron Works 578 Longendyke v. Anderson 156 Longfellow v. Longfellow 123 TABLE OP CASES CITED. [Refereuces are to pages.] xli Longmore v. Broom 810 Look V. Norton 381 Lord V. Crowell 649 V. Meadville "Water Co. 240, 298 V. Wardle 70 V. Wilcox 618, 619 Lord Batterson v. Comm'rs, etc. of London 275 Lord Braybrooke v. Atly.-Gen. 813 Lord Dudley v. Lord Warde 45 Lord Thurlow of Gwynne v. Heaton 538 Lorie v. North Chicago City R. Co. 2,30 Loring v. Brodie 805 V. Eliot 752 Lorings v. Marsh 477, 488, 490 Los Angeles Cemetery Co. v. Los Angeles 225 Losey v. Stanley 412, 496, 735, 779 Louglieed v. The Dykeman's Bap- tist Church 739 Loughran v. Boss 43 Louisiana Nat. Bank v. Knapp 617 Louisville & N. R. Co. v. Koelle 242 Louisville Ferry Co. v. Kentucky 142 Lounsbury v. Norton , 612 V. Purdy 508, 515 Love V. Bell 283 Lovesey v. Smith 567 Lovett V. Gillender 591 V. Taylor 527 Lowe V. Emerson 722 Lowell V. Boston 300 V. Cragin 636 Lowenberg v. Brown 161 Lowman v. Lowman 686 Lowndes v. Lane 535 Lozear v. Shields 543 Lucas V. Brandeth 430 Luco V. De Toro 441 Luddington v. Kime 749, 756 Luhrz V. Hancock 387 Lukens v. Lasker 292 Lum V. McEwen 541 Lumberville D. B. Co. v. Assessors 142 Lumsden v. Manson 638 Lund V. Lund 625 Lundy v. Lundy 537 Lunt V. Lunt 637 Lurman v. Hubner 836 Lusk V. Lewis 523 Lyie V. Palmer 25 Lyman v. Arnold 245 V. Gedney 685 V. Hale 65 Lynch v. Rosenthal 541 Lynn v. Turner 248 Lyon V. McDonald 278 u. McLaughlin 269, 299 Lyons v. Ostrander 742 Lytle V. Beveridge 759 M. Maberly v. Lorton 467 Mabett v. Mabett 638 Macauley v. Smith 620, 627 Maccubbin v. Cromwell 440 Macdonough v. Starbird S8, 63 MacGreal v. Taylor 554 Machir v. Funk 816 Mack V. Anderson 687 V. Austin 627 V. Prang 639 Mackall v. Mackall 547 Mackay v. Martin 558 Mackey v. Harmon 294 MacKinnon v. Sewell 772 Mackreth v. Symmons 616 Maeomber v. Godfrey 214 V. Nichols 232 Macon v. Mullahy 574 Mactier v. Osborn 595 Madden v. Madden 801 Maddison v. Alderson 658 V. Andrews 511 Madigan v. McCarthy 19, 41, 64 Madison v. Larmon 840, 8J2, 853 Maggini v. Pezzoni 544 Magie V. Reynolds 636 Magill V. Brown 477, 479 Magniac v. Tliomson 425 Magnolia v. Marshall 297 Mahan v. Mahan 447, 448 Mahoning County v. Young 588 Main w. Davis 394 V. Schwartzwelder 25 Maitland v. Irving 557 Majestic Hotel v. Eyre 133 Malcolm v. Allen 657 V. Benford-Hancock 819 Malin v. Malin 458 Mallory v. Hitchcock 686 Malloy V. Malloy 507, 510 Malone v. Roy 644 Malroy v. Sloans 528 Manderback v. Orphan's Home 243 Manhattan Real Estate Ass'n v. Cudlipp 735 Manice v. Manioc 428, 432, 496, 498, 844, 847, 862, 863, 365, 806. 869 Mann i'. Betterley 539, 543 V. Lacoma Land Co. 296 V. Willey 2H9 Mannel v. WulfF 319 Manning v. Beck 563 u. Smith 265 V. Wasdale 220, 300, 307, 308 Mansfield v. Mansfield 600 V. Mayor, etc. of New York 663 Manuel v. Wulff 314, 319 Manwarins v. Jenison 36 Maples V. Millon 65 Marden «. Dorthy 574 Marion v. Johnson 288 xlii TABLE OP CASES CITED. [References are to pages.] Mark v. Village of West Troy 223, 227, 297 Marks v. Halligan 735 V. Marks 826 V. Ryan 44 Maroney v. Boyle 618 Marquess of Northampton v. Pol- lock 654 Marr v. Gillian 462 Marsellis v. Thalhimer 763 Marsh v. Fairbury 226 V. Lee 672 V. McNider 58 V. Wheeler 523 Marshall v. Carson 550 V. Green 64, 322 u. Moseley 132 V. Peters 57 V. Roll 566 Martin v. Baird 436, 439, 510 V. Ballon 691 V. Bower 668 V. Funk 445, 446 V. Houghton 321 u. Martin 515 V. Roe 43 V. Rowe 47 V. Tobin 130 u. Turnbaugh 684 V. Waddell 386 Martling v. Martling 758 Marvin v. Brewster I. M. Co. 283 u. Brewster 314 V. Brooks 508 V. Marvin 515 V. Smith 496, 818 Marx V. McGlynn 414, 496 Masch V. Graner 563 Mason v. Chicago 226 V. Davison 201 V. Fenn 42 V. Horton 160, 171, 261, 262 V. Limbury 461 V. Mason's Ex'rs 866 V. Shrewsbury & S. R. Co. 163 Massachusetts H. L. Ins. Co. v. Wilson 647 Mass. Nat. Bk. v. Shinn 43, 137 Mass. Soc. for Prevention of Cruelty to Animals v. Boston 481 Massey v. Goyder 281 V. Huntington 443 Masters v. Pollie 65 Matt V. Hawkins 292 Matteson v. Falser 663 Matthews v. Dixey 292 V. Hoagland 446 V. Sheehan 913 V. Ward 388, 426 Matzon v. GriflSn 629 Maundrell v. Maundrell 790, 795, 823 Maundy v. Maundy 533 May V. Gillis 133 Mayburry v. Brien 426 Mayo V. Newhofi 19, 20, 164, 183 Mayor v. Chadwick 306 V. Sheffield 227 V. Sonneborn 125 V. Twenty-third St. E. Co. 146 V. Williams 561, 572 Mayor of Beverly v. Atty.-Gen. 491 Mayor of Hull «. Homer 193 Mayor of Lyons v. Advocate General of Bengal 490 McAlister v. Burgess 478 McAllaster v. Niagara Fire Ins. Co., 54, 55 Mc Alpine v. Eesch 574 McArthur v. Gordon 438, 516 u. Robinson 518, 580 V. Scott 741, 844, 845 McCahill V. McCahill 515 McCamant Ex'or v. Nickolls 812 McCandless v. Engle 544 McCarren v. Coogan 698, 695 MeCarron v. O'Connell 319 McCartee v. Orphan Asy. Soc. 458 V. Orphan Asylum 498 McCartney v. Bostwick 413, 613, 515 McCarty v. Kitchenman 265 McClean v. Wade 482 McCleary v. Boston & M. E. Co. 218 McClellan v. Coffin 683 V. Grant 667 McClintic v. Wise 617 McClintoek v. Bryden 316 McClung V. Missouri Trust Co. 683 McClure v. Raben 639, 640 McConnell v. Blood 24, 31 McCormick v. Grogan 452 V. Kansas City, etc. E. ,Co. 301 V. Knox 647 McCormick H. M. Co. v. Griffin 436 McCoy V. Rhodes 669 McCracken v. Flanagan 667 McCreary v. Bomberger 815 V. McCreary 514 McCuUough V. Irvine 46 V. Irvine's Executors 41 McCune v. Baker 459 McCutchen v. Dittman 573 McDaniel c. Walker 216 McDonald v. Bear River Co. 266 V. Mass. Hospital 479 V. O'Hara 820 McDonogh's Ex'rs v. Murdock 405, 492 McElroy v. McElroy 623, 525 V. McLeary 172 McFadden v. Allen 27, 28, 33, 34, 629 McFarland v. McFariand 622 McFarlane v. Williams 119 McFarlin v. Essex Co. 200 MoGee v. Walker 61 TABLE OP CASES CITED. [Beferencea are to pages.} xliii McGettigan v. Potts 289, 279, 280 McGilUs V. MoGillis 735, 752 McGinnis v. Egbert 318 V. Jacobs 510 McGourkey v. Toledo & Ohio Cent. R. Co. 558 McGowan v. MoGowan 509, 536, 859 McGregor v. Brown 63 V. Corastock 384 V. The Board of Education 646 V. Wait 208 MoGuckin v. Milbank 702 MoGuire v. Devlin 551 V. Grant 239, 279, 280 u. McGuire 846 V. Ramsey 610 McHan v. Ordway 467, 552 McHugh V. McCole 479, 484, 491 V. O'Connor 448 Mclllister v. Devane 264 Mcllver v. Estabrook 42 Mclntire v. Hughes 448 V. Pry or 573 McKay v. Hyde Park 222 McKeage v. Hanover F. Ins. Co. 23, 52 McKee v. Del. & H. Canal Co. 240, 302 V. Griggs 557 V. Lamon 405 McKelway v. Seymour 594 McKenzie v. McKenzie 283 McKeon v. Bisbee 319 V. Whitney 124 McKibbe «. Darracott 695 McKiernan v. Hesse 23 McKinley Creek M. Co. v Alaska U. M. Co. 317, 318 McKinney v. Pinkard 539 McKircher v. Hawley 647 McKonkey v. Cockey 555 McLarren v. Brewer 518, 520 McLauchlin v. C. & S. C. B. Co. 232 McLaughlin v. Durr 691 McLean v. Towle 638 McMath V. Levy 40 McMillan v. Cronin 248, 249 V. Richards 634 McMullen v. Hoffman 541 McMurpliy v. Minot 138 McNabb v. Pond 67 McNeilledge v. Galbrath 810 McRea v. Cent. Nat. Bk. 12 McRee's Adm'rs v. Means 454 McSorley v. Larissa 644 McVay v. McVay 440 McVey v. Durkin 288, 289, 292 M' Donald v. Lindall 179 Meacham v. Steele 652 Mead v. Brockner 705 Meagher v, Hayes 34 Means v. Dowd 537 0. Wells 381 Mebane v. Patrick 203 Mechanics' Bank v. Weill 685, 638 Mechanics' Nat. Bk. v. Stanton Medinah T. Co. v. Currey Meek v. Breckenridge V. Kettlewell 443, Meeker v. Puyallup Meiners v. St. Louis Meldon v. Devlin 811, Mellen v. Mellen Melvin v. Whiting 200, Memphis E. Co. v. R. E. Com'rs Mence v. Mence Mendell v. Delano 167, Mendenhall v. Klinck Merced M. Co. v. Fremont Merchants' & Manuf. Bk. v. Cum- 455, 240, 412, 531, mings Meredith v. Heneage Meriam v. Brown Merithew v. Andrews Merkle v. Beidelman Merrell v. Bishoff Merrifield v. Cobleigh V. Worcester Merrill v. Hayden V. Peaslee Merritt v. Bartholick V. Harris V. Judd V. Lambert V. Parker Merselis v. Van Riper Mershon v. Duer Merwin v. Wheeler Mestaer v. Gillespie Metcalf V. Central Brook Park Ass'n V. Crystal Brook Park Ass'n V. Hart V. Moses 663, Metcalfe v. Pluvertoft Methodist Church v. Jaques Metropolitan Ass'n v. Petch Metropolitan Bk. v. St. Louis Dis- patch Co. Meyer v. Johnston V. Whitaker Meyers v. Becker u. Gemrael V. Schenip Micliigan Life Ins. Co. v. Cronk Michigan Trust Co. v. Lansing Lum- ber Co. Mickle V. Douglas V. Miles 118, Mickles v. Dillaye Middlebrook v. Corwin Middlebury Bank v. Edgerton Middleford o. Church Mills Knit- ting Co. Middleton v. Middleton 531, 535, Middletown v. Newport Hospital Midland F. Co. «. Wilson Midland Gt. West R. Co. v. Johnson Miles V. Harford 56 594 158 447 480 225 812 805 208 144 523 266 321 319 663 522 54 620 638 700 593 298 524 446 637 596 .39 609 250 662 426 309 535 166 216 322 564 577 518 268 57 57 292 274 56 28 629 283 120 644 66 143 248 536 161 144 536 861 xliv TABLE OP CASES CITED. [References are to pages.] Mill River W. Mfg. Co. V. Smith 59 Mitchell V. Reed 551 Millard v. Hathaway 628 V. Seipel 160, 171 V. Truax 644 V. Stetson 53 Miller v. Albright 617 Mitford V. Mitford 578 V. Atkinson 479, 486 V. Reynolds 476 V. Baker 65 Mittnacht v. Slevin 292, 293 V. Black Rock Spring Co. .302 Moakes & Co. v. Rice 609 V. Brown 291 Moellering v. Evans 279 u. Cook 664 MoflFatt V. Smith 128, 722 V. Eames 766 Moffet V. Elmendorf 817 V. Emans 725, 830 Moggridge v. Thackwell 486 , 489, 624 V. Lapham 265, 305 Molir V. Parmelee 294 V. Laubaoh 801 Molineaux v. Reynolds 624 V. Levi 599 Moll V. MoCauley 156 .,. Miller 719, 721 Mollan V. Griffith 679 V. Pearce 636 Monarch C. & M. Co. v. Hand 666 V. Prescott 694 Monarque v. Monarque 702 V. Rowan 481 Moncrief v. Ross 794 V. Rutland, etc. B. Co. 636 Mondey v. Mondey 611 u. The State 322 Mong V. Roush ^ 490 V. Wright 466 Monroe v. Bowen 589 Miller's Ex'rs v. Commonwealth 479 V. Hall 591 Millett V. Ford 756 V. Luke 381 Millican v. Millioan 566 Monroe Cattle Co. o. Becker 618 Milliken v. Graham 575 Montefiore v. Browne 798 V. Ham 508 Montesquieu v. Sandys 653 Mills V. Bliss 617 Montgomery v. S. A. W. B. Co 232 V. Davison 429, 492 Montignani v. Blade 846 !). Husson 468, 471, 819 Moodle V. Garnance 131 V. Johnston 459 Moody V. Garnon 131 V. Mills 642, 852 V. McClelland 279, 281 V. Rundlett 16 Mooney v. Byrne 612, 618, 653, 654 V. Van Voorhies 648, 701 Moor V. Gary 309 Milnes v. Branch 138 Moore v. Amer. L. & T. Co. 581 Milroy v. Lord 444 V. Appleby 741 Milwaukee Cold Storage Co . V. V. Banking Co. 23 Decker 558 V. Cable 643 Miner v. Beekman 611 V. Cleghorn 430 Minneapolis Mill Co. u. Minn. & St. V. Crawford 571 Louis R. Co. 324, 326 V. Crofton 447, 448 Minnesota Co. v. St. Paul Co. 56 V. Crose 215, 243 Minor v. Hill 636 V. Esty 632 Minot V. Baker 487 V. Hamerstay 618 V. Minot 736 0. Hegeman 498 V. Mitchell 569 V. Holcombe 578 V. Tappan 768 V. Levert 295 Minshall v. Lloyd 24, 39, 47, 53 V. Littel 734, 735, 741, 759 Minturn v. Seymour 446 V. Lyons 738, 860 Mirick v. Hoppin 646 V. Moore 446, 485, 508, 611, 542, Missionary Society i . Humphreys 861 548, 549 Mississippi Mills Co. V. Smith 299 V. Murphy 192 Missouri K. & T. Co. V. Union Trust V. Parker 755 Co. 651 V. Pitts 594 Missouri K. & T. Trust Co b. V. Kake 719 Krumseig 640 V. Rawson 259, 329 Missouri V. L. Co. v. Borwick 62 V. Rayner 287 Mitehel v. Reynolds 541 V. Raynor 292 V. Seipel 175 V. Smith 39 Mitchell V. Bain 298 «. Stinson 473 V. Bunch 469 V. Williams 516 V. Franklin 124 V. Wingfleld 842 844,859 V. Mayor 282 Moorman v. Gibbs 668 ' V. Met. El. B. Co 52,231 Moran v. Hays 437 TABLE OP CASES CITED. [Befereuces are to pages.] xlv Moran v. Moran 479, 484 V. Munhall 6-20 More V. Bennett 428 Morehouse v. Cotheal 834, 836 Morey ;'. Herrick 610 V. Hoyt 47 Morgan v. Boyes 267 V. Gronow 856 V. Malleson 443, 447 V. Minot 543, 553 V. Morgan 426, 642, 830, 865 V. Smith 662 Moriee v. Bishop of Durham 455, 458 476, 480, 522 Morley v. Loughman 547 Morrill v. Morrill 621 Morris v. Bacon 636 V. Clare 512 V. Commander 199 V. Edgington 179, 180, 181 V. French 20, 54 Morris C. & B. Co. v. Brown 600 Morrison v. King 183 u. Marquardt 273, 274 Morse v. Benson 184 V. Copelaud 324, 329 V. Hill 530, 548, 549 V. Martin 807 V. Williams 203 Mortimer r. Manhattan R. Co. 61 Morton v. Funk 829 Morund r. McCIintock 218 Moses V. Loomis 594 V. Pittsburg, etc. E. Co. 226 V. Sanford 325 Mosher v. Funk 522 Moshier v. Meek 619 V. Norton 644 Mosley v. Mosley 661 Moss V. Gallimore 645, 646 V. Moss 507 Motes iJ. Bates 321 Mott V. Ackerman 494, 779, 801, 817, 856 V. Harrington 553 V. Mott 546 V. Palmer 33, 40, 53 Motz V. Mitchell 544 Moulton V. Cornish 611, 641, 695, 701 705 V. Newburyport W. Co. 300 V. Robinson 118 Mounsey v. Ismay 157, 220 Mowry v. City of Providence 480 )'. Sanborn 698 Moxon y. Wilkinson 317 M'Tavish v. Carroll 182 Mudge V. Hammill 756 V. Salisbury 159 Mueller v. C. M. & St. P. E. Co. 42 Muhlker v. N. Y. & H. R. Co. 229, 230 231, 232, 269 Mullen V. Doyle 551 V. Strieker 275, 276 Muller V. Wadlington 636 Mulock V. Byrnes 432 Mulvane v. Rude Ex'or 833 Mumtbrd v. Whitney 320, 828 Mundy v. Duke of Rutland 284 Munford v. McVeigh 540 Munn V. Burges 698 Munsion v. Reid 172 Murdock v. Bridges 481 V. Clarke 642 u. GifEord 24, 30 V. Waterman 687 Murless v. Franklin 511 Murley v. Ennis 316 Murly V. McDermott 292 Murphy v. Briggs 563 !,■. Carlin 452, 453 V. Cook 461, 468 V. Kelley 240, 301 V. Lincoln 178 Murray v. Albertson 133 V. Ballou 574, 577, 579, 623 V. Harway 595 V. Marshall 682 c. Murray 566 V. Porter 635 V. Wilson 637 Muskett V. Hill 321 Muskgrave v. Sherwood 293 Mussey v. Union Wharf 244, 262 Mussoorie Bank v. Raynor 452, 455 Mutoscope & B. Co. v. Homer 124 Mutual Life Ins. Co. v, Armstrong 586, 537 V. Everett 467, 807 V, Kirchoff (i.52 V. Shipman 815, 816, 817 Myers v. Bell Telephone Co. 165 V. Dunn 182, 183 V. Gemmel 275 i\ Jackson 527 ,}. Myers 440 V. Safe Dep. & Trust Co. 806 N. Nab V. Nab 440 Nairn v. Prowse 618 Nance v. Nance 667 Napper v. Sanders 733, 770, 772 Nash V. Minnesota Title Co. 534 V. Morley 480 V. N. E. Ins. Co. 247, 269 Nashville Trust Co. v. Lammon 527 National Bk. v. Ins. Co. 517 u. Levy 31, 629, 646 V. North 20 National Bk. & Loan Co. v. Spencer 564 National Bank of Catasauqua v. North 62 National Bk. of Cora. v. Smith 580 National Com. Bank v. Gray 288, 289 xlvi TABLE OF CASES CITED. [References are to pages.] National Exch. Bk. v. Cunningham National Oil Ref. Co. v. Bush National Kevere Bk. v. Morse Nattingly v. Nye Nauman v. Weidman Neal V, Black V. City of Rochester V. Clark Neale v. Seeley Nebraska Nat. Bk. v. Johnson Neel V. Beach Negus V. Becker 288, 292, Neilson v. 1. E. R. Co. V. McDonald Nellis V. Nellis Nelson v. Brown 648, 701, V. Davis V. Loder V. Pomeroy V. Rogers V. Russell Neresheimer v. Smith Nesbit V. Lockman Nestal V. Schmidt Nettleton o. Siker !;. Sykes Neuberger v. Keim Neves v. Scott Neville v. Wilkinson Nevins v. Gourley New V. Hunting Newall V. Wright Newcomb v. Bonham Newcomb v. Boston Protect. Dep't. Newcomen v. Coulson Newhall v. Lynn Sav. Bk. Newliam v. May Newhoff V. Mayo New Ipswich Factory v New Jersey Zinc Co. Franklinite Co. Newman v. Anderton V. Nellis V. Payne Newstead v. Searles Newton v. Porter New York C. & H. R. R. Co Aldridge New York Co. Nat. Bk. i Surety Co. New York Dry Dock Co. u. Stillman 547, 563, 449, 609, Bachelder N. J. 163, 543, 240, Amer. New York El. E. Co. v. Fifth Av. Nat. Bk. V. Fiftli Nat. Bk. 231, New York H. & N. E. Co. v. Boston & Maine R. Co. New York Life Ins. Co. o. Milnor New York Life Ins. & T. Co. v. Livingston V. Milnor New York R, E. & B. I. Co. v. Motley 183 125 578 564 482 450 59 432 306 536 799 294 57 543 731 703 430 683 739 680 738 566 553 559 822 64 565 429 532 589 450 633 654 476 249 698 532 167 167 283 120 243 653 567 619 296 563 466 52 146 180 817 184 133 New York Rubber Co. u. Rothery 299, 300 New York Steam Co. v. Stern 465 Neyland v. Benby Nicholas v. Chamberlain NichoUs V. Butcher Nichols V. Aylor V. Baxter V. Chamberlain i;. Eaton i;. Gladden V. Levy V. Luce V. Nichols I,. Park V. Ridley V. Wentworth Nicholson v. Halsey NicoU V. Mumtord u. N. Y. & E. R. Co. 171, 511 172, 248 4 202 643 264 470 758 428, 768 178, 180, 181 566 426 672 204 723 449 596, 767, 466, 598, 726, 827, 835, 836 800 Nightingale v. Burrell Niles V. Stevens Nimmo v. Davis 540 Niver v. Crane 515 Nix V. Bradley 472 Noakes v. Rice 654 Noble V. Bosworth 53 K. Sylvester 18 Nonotuck Silk Co. v. Flanders 521 Norcross v. Norcross 628 Nordenfclt r. The Maxim, etc. 541 Norfleet v. Cromwell 160 Normille v. Gill 288, 289, 293 Norris v. Baker 199 V. Marsliall 638 V. Thompson 481 North Eastern R. Co. v. Elliott 281 North Noonday M. Co. v. Orient M. Co. 315, 316, 317, 318 North Salem v. Eagle Co. 300 Nor. Cent. R. Co. v. Canton Co. 43 Northern Co. Ins. Co. v. Whipp 615 Northern Pacific Rj'. c. Townsend 636 Norton v. Craig 66 V. Dashwood 23, 27, 29 V. Palmer 636, 694 Norwood V. De Hart 682 Note to Chesterfield v. Janssen 540 Noyes v. Anderson 595, 657 V. Henipliill 268 V. Mantle 314 Nudd V. Hobbs 221 Nugent V. Riley 625 Nunn V. O'Brien 453, 466 Nunnelly v. Southern Iron Co. 321 Nutt V. Cuming 661, 711 Oak V. Dustin 543 Cakes v. Chalfont 782 TABLE OP CASES CITED. [References are to pages.] xlvii Oakland Cem. Co. v. Bancroft 25 O'Beirne v. Allegheny, etc. K. Co. 636 Oberly v. Lerch 50 Obermeyer «. Liebman 668 Obert V. Bordine 462 V. Dunn 281 O'Brien v. Goodrich 196 V. Lewis 553 V. Philadelphia 280 V. Smith 129 Ocean Grove Camp M. Ass'n. v. Sanders 119 O'Connor v. Felix 671 u. Gifeord 522, 523 V. Irvine 507 V. Pittsburgh 280 Odd Fellows v. Hegele 288, 293 Oddie V. Brown 865 Odell V. Montross 610, 655 O'Donnell v. Mclntyre 885, 646 V. White 509 O'Donoghue v. Boies 554, 655 Ogden V. Grove 177 V. Jennings 178 V. Stock 28 O'Hara v. Dilworth 507 O'Hear v. De Goesbriand 68 Ohio Ins. Co. v. Ross 574 Okeson v. Patterson 193, 200 Olcott V. Bynum 509 V. Thompson 250, 251 Oldham v. Litchford 535 Oliffe V. Wells 536 Oliphant u. Leversidge 511 V. Burns 629 Oliver v. Hook 203 V. Piatt 518 V. Pitman 179 Olmstead v. Camp 228 V. Latimer 677, 680 Olney v. Fenner 204, 209 V. Gardiner 206 V. Wharf 232 Omaha & N. P. R. Co. v. anecek 232 Omaha & K. V. R. Co. u. Rickards 246 Ombony v. Jones 38, 41 Ommanney v. Butcher 481 Onderdonk v. Onderdonk 524 O'Neil V. Van Tassel 262, 294 O'Neill V. Breese 275 Onset R. Co. v. County Comm'rs 230 231 Onthank v. L. S. & M. C. R. Co. ' 250 Orlebar v. Fletcher 571 Orman v. Day 294 Ormsby v. Pinkerton 174 O'Horke v. Bolingbroke 539, 540 V. Smith 169, 172, 173, 179 V. Sherwin 800 Orr Ewing v. Colquhoun 58 Orth V. Orth 453 Osborn v. Robbins 545 Osborne v. Butcher 268 Osborne v. Gordon 467 Osgood V. Abbott i 593 V. Dewey 125 V. Eaton 508 V. Franklin 537, 538, 799 V, Osgood 613 Osmond v. Fitzroy 543 Osten V. Jerome 302 Oswald V. Wolf 216 Otis V. Otis 410, 413 Ottawa V. Yentzer 223 Ottinger v. N. Y. Eleo. R. Co. 720, 830 Ottumvva Lodge v. Lewis 285 Ould V. Washington Hospital 474, 475 Oursler v. B. & O. R. Co. 2B8 Outerbridge v. Phelps 167, 174 Outhank v. L. S. & M. S. R. Co. 159 Overman v. Sasser 16, 45, 62 Owen V. Evans 639 V. Field 242, 258, 307, 600 Owens I). Lewis 62 V. Miss. Soc. M. E. Church 600 V. Owens 537 V. Williams 4-36 Ownes V. Ownes 446 Oyster v. Albright 510 Pace V. Bartles 613 Pacific Nat. Bk. v. Windram 471 Pacific P. Tel. Co. u. Irvine 233 Pack V. Shanklin 480 Packard v. Ames 781 V. Old Colony R. R. 441 Packer v. Rochester, etc. R. Co. 634 Paddock v. Strobridge 634 Page V. Edwards 35 V. Page 511 V. Palmer 593 Paget V. Melcher 465, 736, 742 Paice V. Canterbury 486 Paige V. Paige 518 Paine v. Barnes 793 V. Chandler 169, 172, 175, 179, 289, 306 V. Jones 682 V. McDowell 35 V. Woods 57, 68, 59 Palk V. Clinton 662 Palmer v. Des Couriers 616 V. Fletcher 273 V. Forbes 66 V. Monison 50 V. Palmer 177, 178, 180, 181, 182 u. Wetmore 274 V. Young 552 Palmer's Adm'rs v. Mead 694 Palmetto Lumber Co. v. Risley 618 Papillon V. Voice 756 Paradine v. Jane 133, 592 Pardee v. Aldridge 636 xlviii TABLE OP CASES CITED. [ReferenceB are to pages.] Paris V. Hiilett 694 Parish v. Baird 156 V. Kaspare 202, 243, 321, 324 i>. Rogers 137 Parl^er v. Beasley 688 V. Broolce 472 0. Conner 575, 576 V. Poote 194, 204, 211, 274, 275, 276, 277, 278 V. Pramingham 207 V. Hayes 534, 535 V. May 485 13. Nightingale 188, 189 V. Parlcer 591, 831 V. Strickland 61 Parlcer Adm'r v. Ross 772 Parkes v. White 548 Parkist v. Alexander 551 Parkman v. "Welch 666 Parks V. Bishop 245, 246 V. iforris Ax & T. Co. 639 Parnall v. Parnall 452 Parrett v. Avery 70 Parsell o. Stryker 137 Parsons v. Camp 322 V. Copeland 30 V. Johnson 173, 174, 244, 264, 265 V. Phelan 519 Partridge v. Gibert 255, 262 V. Gilbert 288, 291, 292, 293, 294 V. Havens 511 V. Lyon 294 V. Scott 280 Paschal v. Acklin 479 Paterson R. Co. v. Grundy 230 Paton V. Murray 700 Patterson v. Ellis's Bx'or 834, 836 V. Hitchcock 316 V. Leming 550 V. Mills 686 Pattison v. Gilford 268 V. Hull 636 Patton V. Chamberlain 440 !.■. Moore 579 Paul tir Fulton 579 V. Mockley 216 Pawlett V. Atty.-Gen. 414 Payne v. Burnham 640 V. Johnson's Executors 816 V. "Wilson 617, 621, 636 Payton v. Burns 318 Peabody v. Tarbell 511 Pearce v. Gamble 549 V. McClenaghan 264 V. Savage 731 Pearne v. Cold Creek M. & M. Co. 177 Pearsall u. Post 220 V. "Westcott 287, 288, 289 Pearson o. Hartman 242, 271 V. Spencer 177, 182 Pease v. Egan 663 V. "Warren 635 Peck 0. Batchelder 16 Peck V. Conway 160, 167 187 V. Goodberlett 240 301 V. Herrington 301 V. Ormsby 691 V. Peck 558 V. Roe 277 Peers v. Lucy 308 Pegram v. N. Y. El. R. Co. 269 Peirce v. Hubbard 756 Pell V. Mercer 475 Pells V. Brown 839 Pemberton v. Barnes 601 Penhallow v. Dwight 61 Penn's Hospital v. Delaware 479 Penne v. Peacock 821 Pennington v. Brinsop Hall Coal Co. 299 V. Martin 617 Pennock v. Lyons 595 Pennsylvania v. Lord Baltimore 459 Pennsylvania Coal Co. v. Sanderson 299, 306 Pennsylvania R. Co. v. Borough of Preeport 212, 258 u. Duncan 231, 269 n. Montgomery County P. R. Co. 227 r. St. L. A. & T. H. R. Co. 125 Pentland v. Keep 724 Penton v. Robart 42 V. Roberts 60 Penzel v. Brookmire 636 People V. Adirondack Park Ass'n 235 V. Canal Appraisers 59 V. City Bk. of Rochester 520 V. Cogswell 478, 479 V. Dreher 223 V. Foss 272 V. Kellogg 223 V. Kerr 231, 232 V. North Riv. Sug. Ref . Co. 428, 541 V. O'Brien 146 V. Open Board o£ Stock Bro- kers' Building Co. 543, 548, 549 V. Peckens 633 V. Powers 481, 499, 500, 502, 809 V. Simonson 761 V. Smith 229 0. Underbill 218, 222, 224 V. "V^an Rensselaer 389, 394 V. "Woodruff 621 People, etc. y. Com. of Taxes 57 People ex. rel. Cunningham v. Os- born 204 People ex. rel. Eleo. R. Co. v. Com. of Texas 56 People ex. rel. Frost v. N. T. C. & H. R. Co. 192 People ex. rel. Int. Nav. Co. v. Bar- ker 38 People ex. rel. Met. St. R. Co. v. Tax Com'rs 143, 144 People ex. rel. Stevfart v. R. Comm'rs 235 TABLE OF CASES CITED. [Beferences are to pages,] xlix People ex rel. "W. G. Co. v Deehan 146 Pickering v. Shotwell 478 People's Bk. v. Loeffert 662 Pickett V. Jones 637, 656 People's Gas. Co. v. Tyne 67, V. Loggon 539 240 Pidcoek v. Bishop 534 V. Tyner 803 Pierce v. Brown 692 People's Ice Co. v. Davenport 69 V. Cleland 183 Percival o. Hughes 294 u. Cloud 209 Perdue v. Bell 614 0. Dyer 262, 285, 294 Peril! V. Carey 475 V. Emery 56 Perkins v. Swank 40 V. Fernald 207 Perley v. Langley 211 , 219, 309 V. George 25, 34 Pernam v. Wead 178 V. Hower 518 Perrin v. Blake 763 y. Keator 243, 244, 3U9 Perry v. Carr 66 ti. Pierce 547, 557 V. Tynen 802 V. Selleck 180 Perry-Herriok v. Attwood 560 V. Spear 668 Pertwee v. Townsend 136 V. Waring 555 Peter v. Beverly 799, 800 Pierre v. Fernald 276, 724 V. Kendal 143, 144 Pierrepont v. Barnard 322 Peters v. Little 201 Pile V. Pedrick 291 y. Mortimer 541 Pillars V. McConnell 510 Peterson v. Boswell 519 Pillot V. Landon 426, 430 V. De Baun 735 Pillsbury v. Alexander 226 Petrie v. Badenoch 551 Pingree w. Comstock 449 Pettee i>. Hawes 164 Pinkum v. Eau Claire 216 Pettijfrew v. Evansville 269 Pinney v. Fellows 439, 511, 626 Pettingill v. Porter 163, 179 Pinnnck v. Clough 437 Peugli V. Davis 642, 654 Pitman v. Pitman 430 Peyser v. Mayor 545 V. Poor 326 Peyton v. London 286 Pitts V. Hendrix 61 PfaEE V. Golden 128 V. Maier 612 Pfliiger V. Carmichael 18,19 «. Parker 617 Pilaris V. Muldooa 818 Pitzzman v. Boyce 324 Phelan v. Brady 574 Place V. Hayward 554 V. Olney 636 Piatt V. Squire 650 Phelps V. Nolen 304 V. Vattier 458 V. Phelps 426, 515, 516 Pledge V. Carr 673 Phelps' Executor v. Pond 457 V. White 674 Pheysey v. Vicary 179 Plessy V. Ferguson 4 Philadelphia v. Fox 428 Pleydell v. Pleydell 834 V. Girard's Heirs 477 Plimpton V. Converse 201, 209, V. Keystone Battery A 480 264 V. Overseers 479 Plucker w. Teller 649 V. Spring Garden 298 Plumb V. Tubbs 394, 593 Philbrick v. Ewing 244 Plumer v. Plumer 30 Philbrook v. Delano 526, 616 Plymouth v. Hickman 439 Phillips V. Brown 815 Podleck V. Phelan 42 V. Ferguson 590, 591 Podmore v. Gunning 536 V. Haliday 67 Pollard V. Barnes 197, 201 V. Overfield 518 V. Gare 175, 273 V. Phillips 172, 203, 452, 453, 457, Polley V. Johnson 62 667 Pollock V. Farmers' L. &T. Co. 118 «. PuUen 638 Polly V. Bessey 198 V. Winslow 56 V. M'Call 198 Phipps V. State 308 Pomeroy v. Mills 217 V. West Md. R. Co. 232 Pomfret v. Ricroft 177, 248, 249 Phoenix Ins. Co. b. Continental Ins. | Pool V. Alger 295 Co. 164 V. Harrison 523 Phoenix I. "W. Co. v. N. Y. Security | Poole V. Huskinson 223 Co. 86 V. Needliam 699 Pickerell v. Carson 13 Poor V. Hazelton 640 Pickering v. Moore 67 f. Oakman 28,64 o. Rudd 199 V, Woodburn 578 TABLE OF CASES CITED. [Beferences are to pages,] Pope V. Dapray 514, 516 V. Durarit 658 I/. Devereux 201, 256 V. Jackson 24 V. O'Hara 253, 329 V. Sliinkle 19 Popplewell V. Modkinson 284, 300 Porche v. Bodin 61 Porter v. Bk. of Rutland 441 V. Bradley 834 V. Hubbard 649 u. Merrill 595 V. Pittsburg Bessemer Steel Co. 35 V. Turner 807 Portland v. Keep 207 Post V. Pearsall 220, 221, 225, 242, 243, 271, 307, 308, 309 V. Rohrbaeh 492 Postlethwaite v. Payne 201, 210 Potter V. Couch 470, 851 ^. Cromwell 12, 16, 18, 19, 23, 629 V, Gardner 622 V. Jacobs 530 V. North 211 V. Pittsburg Bessemer Steel Co. 45 V. White 291 Pottle V. Lowe 805 Poull V. Mockley 242, 272 Powell .w.Bagg 201,202 V. McAshan 39 V. Monson Mfg. Co. 24 V. Sims 274 Power V. Cassidy 500, 501 V. Golden Lumber Co. 650 Powerscourt v. Powerscourt 478 Prafeie State Bk. v. United States 663 Pratt V. Baker 31 V. Ogden 327 V. Paine 599 , w. Philbrook 634,535 V. Pratt 629 V. Sladden 523 V. Sweetser 259 V. Trustees 453 Pray v. Hegeman 498, 864, 866, 807 Preble v. Reed 172 Prentice v. Geiger 299 V. Janssen 814 Presby v. Benjamin 129 Presby. Ch. in Newark v. Andruss 68 Prescott V. Phillips 258 V. Wills 13 Preston v.- Bosworth 594 V. Briggs 42 0. Hall 240 u. Hawley 125 . Hull 801 0. Preston 439, 505, 517 V. Ryan 60 Price V. Brayton 60, 65 V. Breckinridge 224 V. Brown 619 Price V. Plainfield 222 V. Price 51, 143, 448 V. Reeves 510 V. Sisson 425, 430, 461 V. Weehawken Ferry Co. 53 Priester «. Hohloch 118 Prince v. Case 321, 323, 327 Pringle v. Vesta Coal Co. 283, 284, 285 Pritchard v. Bailey 472 Proctor t). Bishop of Bath 861 o. Gilson 67 V. Hodgson 178 Proprietors of Mills v. Braintree Water Supply Co. 269 Proseus v. Mclntyre 512 Providence Ins. for Savings v. Car- penter 442 Providence Tool Co. v. Corliss Steam Engine Co. 172 Provost of Dumfries v. Abercrom- bie 400 Pugh V. Acton 43 V. Hayes 421 w. Pugh 518 Pulitzer v. Livingston 851 Pulpress V. African Church 485 Pulsford V. Richards 534 Purdy V. Coar 648, 680 V. Hayt 730, 747, 748, 761, 772, 773, 850 u. Huntington 625, 685 V. Purdy 510 Purefoy v. Rogers 764 Pusey V. Desbouvrie 536 V. Pusey 70 Putnam v. Story 752, 767 Putzel V. Drovers & Mec. Nat. Bk. 294 Pyer v. Carter 172 Pylant v. Reeves 617 Quackenbush v. Leonard 510 Quade v. Bertsch 742 Quicksall v. Philadelphia 222 Quigley v. Gridley 581, 569 Quimby v. Manhattan Cloth Co. 25 V. Straw 178 Quincy v. Jones 280 Quinn v. Morse 286, 293 Quintard u. Bishop 267 R. Raby v. Reeves - 120 Radcliff !•• Mayor 229, 279, 280 Radcliff's Executors v. Mayor of Brooklyn 229 Radley v. Kuhn 867 Rafferty v. Central Traction Co. 230 Railroad Co. u. Bingham 232 TABLE OF CASES CITED. [BefereuceB are to pages.] Railroad Co. v. Georgia 146 Reilly v. Man. El. R. Co. 231 V. Maine 146 Reimer v. Stuber 208,218 V. Malott 166 Reining v. R. Co. 230 V. Robinson 235 V. N. Y. L. E. & W. R. Co. 232, 272 V. Sciiurmeier 226 Reisert v. City of New York 284 Ralston v. Turpin 643 544 Reitz w. Reitz 515 Ramsay v. De Remer 494 Remington v. Higgins 621 Ramthiin v. Half man 225 Renshaw v. Bean 266 Randall v. Bookey 522 Renz V. Stoll 439 V. Josselyn 831 Reorganized Church u. Church of V. Latham 166 Christ 559 V. Marble 590 591 Rep. Chemical Co. v. Victor Co. 564 V. MoLaughlin 160 Rerick v. Kern 158, 326 V. Morgan 4.36 Rex V. Hudson 221 V. Rigby 138 D. Newman 479 V. Sanderson 275 Reyman v. Henderson Nat. Bk 24 Ranken v. James 771 Reynolds v. Bristow 482 Rapps V. Gottleib 639 640 V. Denslow 495 Rathbone v. Dyckman 834 V. Fargo 293 Raw V. Von Zedlitz 544 0. Hennessy 698 Rawden v. Shadwell 541 V. I. S. M. Co. 317 Rawstron v. Taylor 303 V. Morris 509 Raymond u. Holboru 703 V. Schuler 39,43 Raynor v. Selmes | 701 705 Rhoads «. Davidheiser 301 Read v. Robinson 449 Rhodes v. McCormick 285 V. Williams 495, 811 Rioard v. Williams 193, 195 Readdy v. Pendergast 656 Bice V. Barrett 428 Reade v. Livingston 565 V. Boston & W. R. Corp. 596 Reading v. Althouse 306 V. Norfolk 301, 302 V. Waterman 628 V. Roberts 291 Ready v. Kearsley 461 468 Rich V. Black 543, 548 Reagle v. Reagle 574 Richards i;. Attleborough Branch Rector v. Gibbon 518 520 R. R. 180, 253 Rector, etc. Christ P. E. Church v. i>. County Commissioners ■^25 Mack 711 .). Rose 176, 281, 285, 286, Redgrave v. Hurd 534 535 291 Redman v. Forman 303 Richardson v. Bigelow 268 Reech v. Kennegal 536 V. Clements 250 Reed v. Gannon 575 u. Crandall 541 V. Lukens 530 571 V. Green 557 V. Painter 510 V. Linney 555 V. Reed 509 643 V. McNulty 258 V. Whitney 426 V. Pond 245 246, 247 Reeder v. Sayre 63 t. Seevers 512 Reese v. De Bemardy 540 544 ti. Stodder 472 Reeve v. Atty.-Gen. 485 V. Tobey 160 V. Lisle 655 V. Vermont Cent. R. Co. 279 V. Long 763 Ricliart r. Scott 282 Reeves v. Abercrombie 620 Richmond R. Co. v. Durham & N. R. V. Baker 452 456 Co. 322 V. Evans 412 Rlcker v. Lee 499 Reg. V. County Court Judge 142 Riddle v. Whitehouse 517 V. Westbrook 118 Rider v. Smith 248 Regina v. l^ratt 245 Ridgely v. Cross 815 Reichenbach v. Quln 478 Ridgeway Stone Co. v. Way 34 Reichert v. St. L. & S. F. R. Co. 232 Ridout V. Dowding 522 V. Stilwell 691 699 Rigden «, Walker 510 Reid V. Board of Education 226 Riggs V. Palmer 537 V. Fitch 518 V. Pursell 593, 629 V. Gordon 422 Rightsell V. Hale 265 V. Kirk 54 Rigler v. Cloud 426 V. Weissner Brewing Co. 595 Riley v. Riley 526 Reidy v. Small 450 Rindge v. Baker 291 lii TABLE OF CASES CITED. [References are to pages.] Ring V. McCoun Ringgold V. Bryan Rinkenberger v. Meyer Ripley v. Gelston V. Page Ritch V. Talbot Ritger v. Parker Rivis V. Watson Roach V. "Wadham Roake v. American Tel. Co. 465 578 815 544 16 50 307 131, 140 813 233 Roanoke Inrestment Co. v. Kansas City S. E. R. Co. 257 Roath V. DriscoU 302, 303 Robarts v. Haley 518 Bobbins v. Bates 559 ^. Kimball 508, 559 V. Robbins 515 Robert v. Corning 850, 852, 853, 858 Roberts v. Anderson 561 V. Carr 223 V. Cary 822 V. Dixwell 426 V. Lewis 792, 793, 796, 797, 832 V. Lloyd 443 V. MuUinder 444 V. Nor. Pac. R. Co. 530, 570, 571 V. Richards 626 V. Roberts 249, 250, 251 V. Stevens 470 V. Washburne 144, 146 u. Wynne 532 Robertson v. Coal Co. 283, 284 V. Sully 677 V. Wilson 767 Robinson v. Adams 495 V. Allison 804 V. Appleton 617 «. Clapp [66, 199, 274 V. Litton 830 V. K Y. El. R. Co. 231, 269 u. Palmer 738, 742 V. Robinson 518 V. Ryan 641 V. Wheelright 473 Robles V. Clark 612 Roby V. Colehour 563 V. N. Y. C. & H. R. R. Co. 257, 269 Roca V. Byrne 518, 619 Rochefoucauld v. Boustead 510, 627 Rochester & C. Turnpike Co. v. Parriour 410 Rockland Canal Co. v. Radcliffe 212 Rockland W. Co. v. Tillson 249 Rockwell V. Bradley 628 V. Hobby 616 Rodgers v. Bonner 578 V. Peck ham 640 Rod well V. Phillips 60 Roe V. Vingut 431, 862 Roe d. Perry t>. Jones 766 Roffey V. Henderson 39 Rogers v. Abbott 668 V. Brokaw 16, 20, 24, 31, 36 V. Crow 52 V. Higgins 534, 543 V. Humphreys 648 V. Marshall 663 V. New York & Texas Land Co. 527 V. Rogers 522 V. Sinsheimer 172, 287, 291 V. Smith 665 Roll V. Rea 668 Rome Exchange Bk. v. Eames 735 Romog V. Gillett 641 Roosa V. Harrington 731, 735, 746, 766, 768 Root V. Commonwealth 217, 322 V. Wadhams 324 Rorke v. Abraham 467 Rosche V. Kosmowskl 657 Rose V. Bunn 221, 306, 307 V. City of Farmingham 203 V. Hatch 457, 500 V. Hawley 593, 740 Rosenthal v. Ires 315 Rosevelt v. Fulton 537 Rosewell v. Pryor 273 Ross V. Conway 547 u. Thompson 205, 224 V. Watson 619 Rossmiller «. State 59 Roteh V. Emerson 481 Rothschild v. Goldenberg 486, 502 Roundel v. Currier 592 Rowan v. Lytle 123 V. Sharps' Rifle Mfg. Co. 674 Rowbotham v. Wilson 283 Rowe V. St. P. M. & M. R. Co. 301 Rowell B. Doggett 180 Rowland v. Miller 187, 192 V. West 33 Rowley v. Rowley 569 Royee v. Adams 801 Ruch V. Rock Island 596 Ruckman v. Cutwater 66 Rudd V. Cornell 742, 749 Ruddiman v. Taylor 222, 226 Rugby V. Merryweather 221 Ruggles V. First Nat. Bk. of Centrc- ville 711 Rumill V. Robbins 181, 182 Rumph V. Abercrombie 539 Rumsey v. N. Y. & N. E. R. Co. 231, 240, 296 Runyan v. Mersereau 641 Rush V. Vough 535 Rush County v. Stubbs 28 Russel V. Fuel Gas Co. 558 V. Russel 615, 616 Russell V. Allen 616 V. Farley 532 V. Heublelu 216 V. Hilton 468, 497 TABLE OP CASES CITED. [Beferences are to pagee.] liii Russell V. Jackson V. Russell V. Southard V. Watts 623 792 655 160, 169, 171, 176, 273 Rust V. Low 295 Rutgers v. Kingsland 676 Ruyter v. Reid 703 Ryan v. Browa 59, 297 V. Dox 558 V. N. V. & S. I. R. Co. 246 Ryder v. Loomis 608 Rye V. George 572 Ryer v. Gass 686 Rverson v. Quackenbush 124, 127 Ryle V. Ryle 530, 546 Sack vllle- West v. Holmesdale Saddler v. Lee Sadler v. Pratt Sager v. Tupper Sainsbury v. Matthews St. Anthony F. W. Co. v. Minne- apolis St. Anthony F. W. P. v. Minne- apolis St. George v. Wake St. John V. Dann St. Louis Nat. Stock Yards Wiggins Ferry Co. St. Louis Radiator Mfg. Co v. Carroll St. Louis Transfer Co. v. L. M. B. Co. St. Paul's Church v. Atty.-G^n. 481 303 806 683 62 248 299 567 832 324, 328 St. Paul's Ch. V. Ford St. Regis Paper Co. v. Santa Clara Lumber Co. 63, 64 St. Vincent Asylum v. Troy Sale V. Moore V. Pratt I'. Thornberry Salisbury v. Clarke Salley v. Robinson Salmon v. Stuyvesant Saltmarsh v. Barrett Saltonstall v. Sanders 62 232 492, 623 68 Salusbury v. Denton Sampson v. Bumside V. Camperdown Cotton Mills V. Camperdown Mills r. Hoddinott 308 203 452 308 453 439, 511, 513 55 814 625 473, 480, 481, 485 467, 810 324, 327 42 53 306 San Antonio Brewing Assn. v. Ice Co. 19, 33 Sand V. Church 126, 207, 724 Sanderlin v. Baxter 172 Sanders v. Cassidy 636 293 299 647 492 700 665 656 507, 510 637 301 44 668 4o0 200 679 245, 267 617 R. 147 250 9 209 410 649 635 779 294 639 635 731, 738, 841, 844, 853, 854, 855, 856, 863 535 807 507, 609, 516 555 647 772, 840, 843, 855 Schaefer v. Blumenthal 294 Scheffermeyer v. Schaper 536 Scheick v. Donohue 683 Schenck v. Barnes 471 Sehenk v. EUingwood 807 Schenley v. Commonwealth 207, 208 Schermerhorn v. Cotting 852, 859, 862, Sanders v. Martin Sanderson v. Pa. Coal Co. V. Price !). White Sandford v. Bulkley Sanford v. Hill V. Kane Sanfoss v. Jones Sanger v. Bancroft Sanguinetti v. Peck Sanitary Dist. v. Cook Sappington v. Oeschli Sargent v. Baldwin V. Ballard V. Eureka S. P. Co. V. Hubbard Sarter v. Clarkson Saunders „. N. Y. C. & H. R. Co. V. Newman V. Reilly V. Simpson Saundress v. Gaynesford Savage v. Dooley I). Jackson o. Lee V. Mason Savannah, etc., R. Co. o. Shiels Savery v. King Savings Bank v. Holt Sawyer v. Cubby V. Prickett Sayer v. Sayer Sayre v. Townsend Says V. Barnes Scattergood v. Kirk SCatterwood v. Edge Schettler v. Scheurer v. Schierloh v. Smith Brown Schierloh Schile r. Brokhahus 750, 773 6.39 509, 516, 520, 559 268, 287, 292, 294 Sehlaefer v. Corson 618 Schlemmer v. North 41 Schlereth v. Schlereth 847, 862 Schlesinger v. Kansas City R. Co. 593 Schlieter v. Phillipy 301 Schloss V. Feltus 578 Schmidt v. Lewis 291 V. Quinn 177, 178, 179, 181 Schmitzins v. Bailey 269 Schmucker's Est. o. Reed 622, 623 liv TABLE OF CASES CITED. [References are to pagea. ] SchoUe V. Scholle 543, 549, 550 Scliool District v. Lindsay 158 V. Lynch 202 Scliroeder v. Gurney 668 Schulenberg v. Zimmerman 195 Schultz V. Byers 279, 280, 281 Schultze V. Mayor 515, 516 Scliumaker v. Matlier 533 Scliurmeir v. St. P. & P. K. Co. 233 Scliwerdtli v. Placer Co. 217, 218 S. V. R. Co. «. Lawrence 233 Scobell V. Block 16 Scobey v. Kiningham 626 Scott V. Beecher 679 V. Bentel 175 u. Brown 541 ti. Bryon 815 V. Edgar 618 V. Gallagher 574 V. Lunt 138 V. Tyler 541, 590, 591, 600 u. Urabarger 548 V. West 735 ScoTill V. McMahon 588 Scranton v. Wheeler 297 Scriver v. Smith 152, 214, 240 Sears v. Chapman 485 V. Russell 848 V. Shafer 557 SeatofE i\ Anderson 28 Seaver v. Fitzgerald 849 Sebald v. Mulholland 293 Second etc. Church v. Desbrow 457 Security Co. v. Snow 809 Security Co. Of Hartford y. Cone 741 Seeger w. Pettit 39 Seeley v. Bishop 180 Seidelhach v. Knaggs 465 Seidensparger v. Spear 324 Selah V. Selah 543, 544 Selby V. Alston 412 Selden v. Del. Canal Co. 327 V. Keen 591 u. Vermilya 793 Sell V. West 512 Sellers v. Union L. Co. 142 Selraan v. Lee 577 Senhouse v. Christian 249 Serff V. Acton Local Board 182 Sergeson v. Sealey 807 Sevier v. Greenway 620 Servis v. Nelson 427 Sewall V. Wilmer 813 Sewell V. Augerstein 52 Sexton V. Breese 62, 628, 634 V. Wheaton 564 Seymour v. Delancy 538 V. Freer 50 V. Lewis ■'69, 177 V. McDonald 186 V. .McKinstry 616 !■. Wilson 56.^ Shaeiier v. Chambers 644 Shafer v. Wilson 268, 281 Shaffstall v. McDaniel 677 Shampless v. Welch 441 Shannon v. Pentz 739 Sharon Iron Co. v. City of Erie 595 Sharp V. Ropes 186 V. Sharp 4 Sharpe v. Hancock 266 Shaw V. Beveridge 67, 68 V. Hoffman 599 V. Norfolk Co. 633 «. Spencer 523 Sheffield v. Parker 442 Sheffield Society v. Aixlewood 557 Sheldon v. Edwards 16, 19, 54 V. Stockbridge 479 Shellar v. Shivers 38, 42 Shelley v. Shelley 70 Shenk v. Shenk 622 Shepard v. Manhattan E. Co. 51 V. Man. El. R. Co. 231 Shepardson v. Perkins 306 Shepherd v. May 680 V White 613 Sheridan v. Briggs 573 Sherk v. Endress 445 Sherman v. Baker 478, 484 V. Dodge 462 V. Skuse 471 V. Willett 61 Sherras v. Craig 675 Sherred v. Cisco 291, 293 Sherwood v. Amer. Bible Soc. 457 V. Burr 195 V. Cent. Mich. Sav. Bk. 520 V. Seaman 283 Shick V. Carroll Co. Comm'rs 217 Shields v. Arndt 261 V. Lozear 609, 630, 634, 635, 641, 677, 683 V. Russell 612 V. Titus 243 Shipman v. Beers 274 V. Rollins 503 Shirley v. Crabb 252, 262, 263 V. Shirley 472, 473 Shively v. Bowlby 58, 59, 239, 240, 297 298 Shoemaker v. Smith 510 V. Walker 426 Shoonmaker v. Sheely 756 Short V. Bacon 496 V. Currier 636 Shotwell Executor u. Mott 498 Shoup V. De Long 769 Shriver v. Shriver 578, 641, 653 Shrunk v. Schuylkill Nav. Co. 59 Sibley v. Ellis 211 V. Ross 620 Siddons v. Short 281 Sidney v. Shelley 523 Siedler v. Syms 851 Siemon v. Schurck 515, 579 TABLE OP CASES CITED. [References are to pages.] Iv Siggers v. Evans 449 Silliman v. Haas 611 Silsby V. Trotter 312 Silva V. Hopkinson 766, 758 Silver Spring B. & D. Co. v. Wans- cuck 299 Silvers v. Potter 519, 521 Silvester v. Wilson 755 Simar v. Canaday 687 Simis V. McElroy 101 Simmons v. Cloonan 169, 172, 306 Simpson v. Boston & M. E. Co. 195 V. Dix 633 V. First Nat. Bk. 613 Simpson Brick Press Co. v. Wormley 35 Sims V. Gay 600 Sinclair v. Jackson 800, 806 V. Learned 651 Singerland v. International Const. Co. 297 Sisson V. Hibbard 19, 20, 33, 34 Sites V. Eldridge 799, 809, 823 Skellenberger v. Ransom 637 Skett V. Whitmore 436 Skinner v. Shepherd 186 V. Wilder 65, 66 Skirm v. Rubber Co. 664 Skrymsher v. Northcote 523 Skull V. Glenister 163, 184 Slater v. Maxwell 638 V. Oriental Mills 521 V. Raw son 381 Slatterly v. Winne 238 Slattery v. Schwannecke 673 Slee u.' Manhattan Co. 643 Slegel V. Lauer 601 Slicer v. Bank of Pittsburg 610 Slide & Spur Gold Mines v. Sey- mour 616, 618 Sloan V. Campbell 617 Sloane v. Stevens 756 Sloat V. McDougall 172, 175 Slocombe v. Glubb 567 Slocum V. Seymour 63 Smiles v. Hastings 181 Smith V. Abbott 625 f. Agawam Canal Co. 300 V. Ashton 807 V. Attersoll 441 V. Balcom 515, 516 V. Bell 826 V. Benson 18 V. Bo wen 793 V. Bowes 807 V. Brotherline 553 u. Chesebrough 846 V. City of Rochester 58, 59, 297 V. Clark 590, 704 V. Commonwealth 52 V. Cooke 623 V. Death 821 V. Drake 646 Smith V. Dyer 632, 633 V. Edwards 749 u. Eleischman 691 u. Flora 225 V. Floyd 307, 466, 467, 810, 811 V. Fyler 119 V. Gardner 647 V. Gatewood 157, 211 V. Goulding 327, 328 V. Griffin 179 V. Hastings 758 u. Hiles-Carver 616 ... Hodsdon 628 V. Hughes 205 V. Hunter 831 V. Kay 534, 556 V. Kelley 636 u. Kerr 479 t,. KimbeU 834, 836 V. Ladd 165 V. Langewald 261 V. Lee 181, 182 V. Malings 129 V. Mason 615 V. McGregor 70 V. Miller 202, 20.3, 204, 210 V. Monmouth Mut. F. Ins. 625 V. New York 142 V. Osage 223 u. Owen 278 V. Packard 696 V. Packhurst 765 V. Parsons 498. 866, 868 V. Price 61 V. Raleigh 129 ,,. Rector, etc. St. P. Ch. 595 V. Reid 574 V. Roberts 684, 703 V. Scholtz 741 V. Secor 498, 853 V. Smith 557, 6i7 0. Somes 568, 790, 821 V. State 217, 225 V. Tarbox 178 V. Thackerah 280 V. Townshend 546 V. Whitney 38, 39 V. Willard 513 V. Worn 159 Smithsonian Institution v. Meech 611, 513 Smith wick v. Ellison 66 Smyles v. Hastings 268, 259, 261 Smytlie v. Smythe 541, 590 Snedeker v. Waring 16, 20, 26, 27, 81, 36 Snell V. D wight 427, 641 V. Levitt 256 Snerigan v. St. Louis 69 Snively v. Hitechew 674 Snow V. Boycott 686 V. Perkins 67 V. Pressey 625 Ivi TABLE OF CASES CITED. [References are to pages.] Snow V. Pulitzer 170, 172, 176, 281 Soar V. Foster 512 Soberanes v. Soberanes 547 Sohier ;;. Eldredge 132 V. Trinity Church 68, 69, 70 Soliler V. Sohier 532, 559 Solomon v. Vintner's Co. 206, 282, 286, 291 Soraea v. Skinner 555 Sorrell v. Carpenter 574 South Branch R. Co. v. Parker 246 South Carolina R. Co. u. Steiner 232 South Metr. Cemetery v. Eden 163 S. W. Mo. Light Co. v. Joplin 146 Southard v. Benner 566 V. Cent, R. Co. 596 Southbridge Sav. Bk. v. Mason 16 Southern Construction Co. v. Silva 535 Southport Banking Co. v. Thompson 31 Southwestern R. Co. o. Thomason 51 Souverbye v. Arden 445 Sowden v. Craig 20, 36 Sowerby v. Coleman 220 Sowles V. Butler 625 Sparman v. Keim 554 Sparrow v. Kingman 384, 714 V. Pond 60, 63 Spaulding v. Abbot 244 Speir V. Utrecht 218 V. Town of New Utrech 204 Spencer v. Kilmer 170, 172, 243, 265 V. Spencer 627 Spensley v. Valentine 244, 308 Spero V. Shultz 287, 292 Spicer v. Ayers 527 Spirett V. Willows 527 Sporrer !'. Eifler 540 Sprague v. Cochran 50, 621 Spring V. Randall 471 V. Short 667 Spring Val. W. Works v. Sehottler 142 Springer v. Springer 159 Springfield Water Works v, Jenkins 303 Sprow V. B. & A. R. Co. 217 Spruck V. McRoberts 54, 55 Squire v. Whitton 535 Stackpole v. Beaumont 541 1). Curtis 199 V. Healy 272 Stafford v. Coyney 227 Stafford, etc. Canal v. Birmingham Canal 212 Staggers v. Matthews 473 Stall V. Wilbur 61, 62 Standard Bank v. Stokes 292, 294 Standish v. Babcock 517, 518 Stanley v. Colt 688 V. Kempton 635, 656 Staple V. Heydon 243 Staples V. Emery 66 Starkey v. Brooks 622 Starr v. Stevenson 578 State V. Birmingham 202 V. Elliott 22 V. Fisher 224 V. Ga. Med. Soc. 143 V. Green 223 u. Griffith 480, 483 V. Leverick 227 V. Minn. Threshing Mfg. Co. 143, 144 V Minneapolis & M. R. Co. 226 u. Mitchell 225 (;. Moore 60, 319 V. Nor. R. Co. 56 V. Pottmeyer 58 u. Rondebush 436 V. South Amboy 224 V. Suttle 261, 262 V. Trask 227 i<. Trinity Church 68 V. Wilson 220 State Nat. Bk. v. Smith 18 State Treas. v. S. & E. R. Co. 57 Stead V. Mellor 454 Stearns v. Gage 575 y. Harris 596, 725 V. Janes 204 V. Richmond 279 Stedfast ex dem. NicoU v. Nicoll 763 Stedman v. Gassett 646 V. Southbridge 217 Steed V. Hinson 128 Steel V. Steel 577, 620 u. Walter 686 Steere v. Steere 436, 439 V. Tiffany 258 Steinhardt v. Cunningham 495, 497 Steinke v. Bentley 174 Steinway v. Steinway 738, 846, 859 Stephens v. Bridges 130, 632, 723 0. Ely 43 V. Hockemeyer 160 V. Reynolds 137 V. Stephens 844 V Waldron 669 V. Weldon 668 Stephenson v. McClintock 509 V. Short 482 Stepp V. Frampton 544 Sterling v. Warden 321 Sternbach v. Friedman 664 Sternberg v. O'Brien 541, 590 Sterry v. Arden 561, 565 Stetson V. Curtis 161 Stevens r. Cooper 666 V. Melcher 31 V. Met. El. R. Co. 214 u. Nashua 217 v. N. Y. El. R. Co. 152,217 V. Orr 175 V. Patterson & Newark R. Co. 240, 296 V. Reynolds 562 TABLE OP CASES CITED, [References are to pages.] Ivii Stevens v. Shippen 479 V. Theatres 711 V. Underbill 622 Stevenson v. Black 636 V. Crapnell 527 V. Lesley 741 V. "Wallace 282 V. Wiggin 216, 243 Stevenson Brewing Co, o, Iba 639 Stewart v. Barrow 628 V. Doughty 62 V. Exch. Bank 563 V. Fellows 550 V. Frink 218 V. Hartman 177, 178, 237 V. Stevens 324 V. "White 204 Stickland v. Aldridge 439 Stillman v. "White Rock Mfg. Co. 201, 202 Stillwater "Water Co. v. Farmer 300, 805 Stillwell V. Foster 160 Stilwell V. Melrose 699 Stimmel v. Brown 282 Stiner v. Stiner 543 Stivers v. Gardner 453 Stockbridge Iron Co. v. Cone Iron "Works 696 V. Hudson Iron Co. 312 Stockton V. Dundee Mfg. Co. 711 Stockwell V. Phelps 62 Stoddard v. Hart 616, 628 V. Rotton 626 Stokes V. Singers 239, 275 V. "Weston 738 Stokoe V. Singers 239, 257, 276 V. Upton 42 Stone V. Hackett 444 V. State > 299 V. Stone 513 Storrs' Agr. School v. "Whitney 493 Story V. N. Y. El. E. Co. 4, 153, 160, 222, 2.30, 231, 232, 269 Stout V. Stout 842 Stover V. Chasse 128, 822 V. Eycleshimer 767 Stow f. Tiffl; 648 Stowell V. Lincoln 299 Stowers v. Postal T. C. Co. 233 Strain v. Sweeny 781 Strathmore v. Bowes 566 Stratton u. Dialogue 607 V, Physio-Medical College 484 Strauss v. Bendheim 556 Strobe i: Downer 703 Strobel v. Kerr Salt Co. 298 Strong V. Doyle 66, 67 V. Gordon 514 V. Strong 534 Stronghill v. Anstey 680 Stroup V. Stroup 426 Strickland v. Parker 25, 56 Strickler u. Todd 158,195,211 Stuart V. Easton 474, 475, 480, 588, 599 V. Kissara 472 V. Palmer 235 Stults V. Brown 619 Sturges V. Bridgman 194, 212 Sturr V. Beck 298 Sturtevant v. Jaques 523 Stutphen V. Therpelson 274, 276 Stuyvesant v. Mayor 187 Stuyvestant v. "Woodruff 178, 179 Sucy V. Pigot 264 Sudbury Parish v. Jones 54 Sudenberg v. Ely 659 Suffeld V. Brown 172, 175 Sullivan r. Carberry 42, 47 V. Graffort 289, 293 V. Iron, Silver Mining Co. 4 i>. I. S. M. Co. 314, 319 V. Ryan 169, 173, 175 V. Zeiner 261, 282 Sully V. Schmitt . 129 Sumner v. Darnell 588, 593 V. Stevens 205 Surdam v. Cornell 735 Susman v. Whyard 613 Sutphen v. Therkelson 277 Suydam v. "\roorhees 622 Swaine v. Perine 662 Swan V. Wiswall 701 V. Taple 637 Swansborough v. Coventry 160, 273 Swarthout v. Ranier 766, 796, 823, 833 Swartz V. Swartz 158 Swasey v. Emerson 574 Sweeney v. "Warren 788, 806 Sweet ;;. Henry 576 V. Parker 654 Sweetapple v. Bindon 431 Sweetzer v. Jones 666 Swerigen v. St. Louis 297 Swift V. Beneficial Soc. 482 V. Goodrich 299 Swinburne v. Swinburne 611 Swindon "Water Works v. "Wilts Canal 299 Sword V. Low 16 Symmes v. Drew 180 Synge v. Synge 567 Synnott v. Simpson 449 Syracuse Sav. Bk. v. Holden 466, 494 T. Tabatt v. Grant 164 Taber v. "Willetts 799 Tabernacle Church v. Fifth Ar. Church 468 Tabor v. Bradley 173 V. Fox 639 V. Robinson 25, 38 Taft V. Dimond 439 Iviii TABLE OF CASES CITED. [References are to pages.] Taft V. Stekin 18 Taggart v. Murray 796 Talbot V. Cruger 38, 42, 43 V. Hudson 228, 229 Tallmadge v. East River Bank 155, 161, 186, 188, 189 Tanner v. Valentine 326 Tauney v. Tanney 552 Tapling v. Jones 250, 266, 275 Tappan v. Deblois 474, 477 Taralduon v. Lime Springs 237 Tarbell v. West 646 Tarbox l: Grant 448, 562 Tate V. Blackburne 16, 20 V. Fratt 288, 289, 292 Tatge II. Tatge 439 Tatham i: Vernon 850 Taussig V. Reel 805 Taylor v. Atwood 538 V. Bay City St. R. Co. 232 V. Benham 50 V, Boardman 559 V. Boulware 167 V. Bryn Mawr 479 V. Calvert 543, 548 V. Chieago, M. & St. P. R. Co. 232 V. Garrish 204 V. Gerrish 157 V. Guest 634 V. Hartwell 425 V. Harwell 470 V. Mason 591 V. Meade 472 V. Millard 199, 308, 309 V. Mitchell 482 V. Morris 801 V. Russell 576 V. Short's Adm'r 666 V. Sutton 692 V. Taylor 542, 547, 556, 749, 831, V. Warnaky f. Waters V. Whitehead Taylor d. Smith v. Biddal Teal V. Walker Teele v. Bishop of Derby 478, 178 327 Teller v. Boyle Temple v. Hawley Tenant v. Goldwin V. Stoney Teneiok v. Flagg Ten Eiek v. Simpson Ten Eyck v. Craig V. Whitbeck V. Witbeck Tenn. Coal & I. R. v. Hamilton Terrell «. Allison Territory v. Lee Terry v. Rodahan V. Rosell 625, 647 484, 488 490 138 798 273 449 569 571 642 547 661, 572, 675, 676, 667 299 701 315 816 628 Terwilliger v. Ontario C. & S. R. Co. 817 Tewart v. Lawson 865 Thaekrah v. Haas 644 Thames ;;. Caldwell 619 Thatcher v. Omans 461 0. St. Andrew's Church 858 Thaxter v. Turner 222 Thayer v. Finnegan 622 V. McGee 859 V. Wellington 439 Thebaud v. Hoi lister 684 Thellusson v. Woodford 824, 845, 864 Thoenike v. Fiedler 321, 324 Thomas v. Davis 12, 16 V. Evans 681 V. Ford 217 I'. Inglis 18 V. Junction City Irrigation Co. 325 V. Marshfleld 206 V. McCormick 526 V. Scutt 620 V. Sorrell 321, 322 V. Thomas 264 Thomason v. Lewis 33 Thompson v. Bird 666 V. Ela 695, 696 0. Gregory 323, 324 V. Hart 50 V. Hartline 560 V. Kenyon 695 V. Maddux 639 V. Man. R. Co. 269 V. Marshall 634 V. McElarney 158, 328 V. Miner 179, 183 V. Webster 564 Thompson's Ex'rs v. Norris 491 Thomsen v. McCormick 273 Thomson v. Ludington 742, 746 D. Waterlow 174 Thorg V. Seibrecht 566 Thorington v. Hall 805 V. 'Thorington 738 Thorn v. Sutherland 42 V. Wilson 252 Thornborough v. Baker 633 Thome v. Cann 684 V. Newby 703 Thousand Is. Pk. Ass'n y. Tucker 221, 222 Thresher v. East London Water Works 44 Thropp V. Field 694 Thunder v. Belcher 646 Thursby v. Plant 125 Thurston v. Hancock 280 Thynn v. Thynn 536 Tibbets v. Home 19, 36, 36 Tice V. Annin 610 Tierman v. Poor Tierney v. Wood Tiffany v. Tiffany 621 443 614 TABLE OP CASES CITED. [References are to pages.] lix Tifft V. Horton 19, 33, 34 TeflEt V. Munson 629 Tilden v. Green 467, 477, 485, 486, 500, 501, 788, 809, 814, 830, 859 Tillaux !;. Tillaux 527 Tillinglmst v. Coggeshall 429 Tilon V. Keynolds 345 Tilton V. Cofield 623 Timberlake v. Parish Ex'rs 772 Tindall o. Miller 758 Tingley v. Harris 758 Tinicum Fishing Co. v. Carter 211, 215, 242, 243, 308, 309 Tinker v. Forbes 161, 277 Tinsman v. Belvidere, etc. E. Co. 268 Tippets V. Walker 51 Titcomb v. Wood 578 Tobey v. Moore 184, 859 Tobias v. Ketcham 495 Todd V. Nelson 664 Todhunter v. D. M. I. & M. K. Co. 849 ToUemache v. Earl of Coventry 70 ToUes V. Winton 24, 26 Toilet V. Toilet 807 Tomkins v. Sandys 809 Tompkins v. Wiltberger 665 Toms V. Williams 847 Toney v. Wondling 515 Toothe V. Bryce 169, 170, 172, 175, 248 Torrey v. Bank of Orleans 550 V. Burnett 42 Totel V. Bonnefoy 201 Toulumme C. M. Co. v. Maier 816 Tourville v. Naish 579 Towerson v. Jackson 647 Towle V. Nesmith 479 Towler v. Towler 467, 788, 809 Towles V. Fischer 816 Town V. Hazen Town of Brighton v. Doyle Town of Shapleigh v. Pilshury Town of Suffield v. Hathaway Towne v, Fiske Townley v. Bedwell Townsend v. McDonald V. Westcott Townshend v. Frommer 322 644 781 272 52 480 261 564 460, 461, 494, 496, 702, 788 Towson !). Moore 656 Tracy v. Atherton 178, 200, 208, 211 V. Tracy 515 Transportation Co. v. Chicago 279, 280 Traphagen v. Burt 516, 558 Trask v. Little 42 V. Sturges 806 Traute v. White 288, 289, 290 Treadwell v. Inslee 198 Trenton Potteries v. Oliphant 641 Trimm !). Marsh 628,629,684,643,649 Tripe v. Marcy 628 Tripp V. Armitaga 16 i: Hasseig 61 Tripp V. Ide 698 Tritt V. Crotzer 468 Trotter v. Smith 653 Trout V. McDonald 303 Troxell v. Silverhorn 553 Truax v. Gregory 159 Trumbull v. Eivers 179 V. Trumbull 758, 759 Trustees v. Hoboken 223 V. Jackson Square Church 490 Trustees, etc. v. Haven 226 V. Merryweather 222 Trustees of Baptist Church v. Hart's Executors 475 Trustees of Columbia College v. Lynch 160, 161, 187, 189,, 190 V. Lynch & Thacher 190, 191 V. Thacher 187 V. Thacher & Lynch 161 Trustees of N. Y. Protestant Epis- copal School V. Davis 499 Trustees of Phillips Academy u. King 414 Trustees of Smith Charities v. Connolly 90 Trustees of Union College v. City of New York 589 592, 593 V. Wheeler 639 Tuckahoe Canal Co. V. Tuckahoe R. R. Co. 146 Tucker v. Andrews 566 V. Bennett 460 V. Burrow 612 V. Howard 245, 247 V. Phipps 536 V. Shaw 573 Tullett V. Armstrong 473 Tunstall v. Christian 276, 277, 280, 281, 282 Turner v. Haupt 674, 623 V. Hebron 308 V. Howard 190 V. Hoyle 680 V. New York 101 !). Petigrew 518 V. Sawyer 517, 519 520, 552 V. Smith 686 V. Thompson 274, 275 V, Wentworth 16 Turpie v. Lowe 664 Tusch V. German Sav Bk. 439 Tuthill V. Morris 678, 683 Tuttle V. Robinson 29 Tyler v. Beacher 228 V. Black 531 632, 535 V. Cooper 199 V. Hammond 264 V. Heidom 394 V. Tyler 666 V. Wilkinson 193, 204 Tyrell v. Painton 547 Tyrrell v. The Bank of London 563 Tyson v. Smith 219 Ix TABLE OP CASES CITED. [References are to pages.] u. Uhlefelder v. City of Mt. Vernon 221 Underbill v. Horwood 538 V. Saratoga R. Co. 590 Underwood v. Carney 163 V. Curtis 857 Union College v. Wheeler 510 Union L. Co. v. London 178 Union M. & M. Co. v. Leitch 317 Union Mut. L. Ins. Co. v. Hanford 682 Union Nat. Bk. v. Goetz 518 Union Pac. R. Co. v. Artist 475, 484 V. C. R. I. & P. R. Co. 125 V. Chicago, etc. R. R. Co. 670, 571 V. Harris 542 Union Stock Yards Bk. v. Gillespie 517 Union T. Co. v. W. & S. F. R. Co. 39 Union Water Co. v. Crary 210 United States v. Appleton 172, 243 V. Bait. & Ohio R. Co. 158, 322 V. Chavez 101 V. Coffin 653 w. B.C. Knight Co. 428 V. Freel 677 0. Freight Ass'n 541, 590 V. Grande Irrigation Co. 298 V. Illinois Cent. R. Co. 226 V. I. S. M. Co. 817 V. Joint Traffic Ass'n 428, 541 V. Loughrey 593 V. New Orleans R. Co. 35 V. Repentigny 387 V. Rio Grande Irrigation Co. 298, 300 V. Tenn. & C. R. Co. 688, 589, 593 / V. Trans-Missouri Freight Ass'n 428 United States Security Co. v. Cent. Nat. Bk. 573 Univ. of London v. Yarrow 480 Upington v. Corrigan 74, 392, 894, 396, 593, 596, 697, 698, 725, 766, 831, 859 Upton V. Larkin 315 V. Vail V. Foster 618 V. Long I. R. Co. 596 Valentine v. Schreiber 156, 211, 216 V. Wetherill 721 Vallette v. Tedens 508 Valley Falls Co. u. Dolan 178 Vanatta v. Jones 222 Van Axte !>. Fisher 735, 798 Van Baalte v. Harrington 564 Van Brunt v. Van Brunt 861 Van Buskirk v. Van Buskirk 659 Vance v. Nogle 472 Van Cott 0. Prentice 450, 496 Vanderheyden v. Crandall 719, 765 Vanderpoel v. Loew 861 Vanderpoel v. Van Allen 24 Vander Volgen v. Yates 503, 626 Vanderzee v. Slingerland 735 Van Deusen v. Young 729 Van Duyne v. Thayre 632 V. Van Duyne 457 Van Grutten v. Foxwell 755, 757 Van Hattan v. SchoU 701 Van Home v. Campbell 760, 766, 829, 830, 831, 832 V. Dorrance 589 V. Fonda 552 Van HoQten v. First Ref. Dutch Church 69 Van Joel v. Hornvey 275 Van Kleecli v. Dutch Reformed Church 524 Van Ness v. Hyatt 649 V. Paeard 39, 40, 41 V. Packard 12 Van Pelt v. McGraw 642 Van Rensselaer v. Albany & S. R. Co. 160 V. Ball 393, 394, 695 V. Barringer 394 V. Bonesteel 894 V. Bouton 394 ti. Chadwick 123, 134, 139, 140 V. Dennison 137, 188, 894 D. Gallup 128, 394 V. Hays 123, 186, 390, 392, 393, 394, 395 V. Jewett 394 V. Jones , 394 V. Mould 68 V. Slingerland 394 V. Synder 394 V. Platner 137 V. Radcliff S07, 812 V. Read 118, 136, 138, 892, 394 Van Rensselaer's Executors v. Gal- lup 394 Van Vechten v. Eealor 680 Van Vronker v. Eastman 644 Van Wagner v. Brown 635 Varick v. Edwards 539 V. Jackson 884 Vaughan v. Barclay 459 V. Dowden 651 V. Hancock 61 Veasey v. Doton 536 Veghte V. Raritan, etc. Co. 158, 253, 264, 258, 330 Vermont Village v. Miller 224, 226 Vernon v. Vernon 451 Ver-Planck v. Godfrey 668 Verplanck v. Sterry 561 Verzier v. Convard 461 Viall V. Carpenter 178, 180 Vidal V. Girard's Executors 474, 475 477, 479 Vinton V. Greene 251, 257 Virginia Coal Co. v. Kelly 518 Vogel V. Webber Vogler V. Geiss Von Hesse v. MacKaye Voorhees v. McGinnis V. Presby. Church Voorliis V. Freeman Vossen v. Dautel TABLE OF CASES CITED. [References are to pages.] 811 266 450 • 16, 23 68,69 21,25 179 Ixi W. "Wadd V. Hazleton 442, 444, 445, 447, 448, 562 Wade V. Paget 412, 466 Wads worth v. Tillotson 299 Wafer v. Mocato 595 Wager v. Link 681 Wagner v. Hanna 242 V. Mallory 303 Wagstaff V. Read 577 Wainford v. Heyl 472 Wainwright v. Sawyer 767 V. Talcott 568 Wait V. Baldwin 62 Wake V. Hall 23, 39, 53 Wakefield v. Newell 240, 301 Walker v. Clifford 175 V. Cronin 304 V. Dalt 542 V. Farmer's Bank 630 V. Fletcher 208 V. Pierce 249 V. Sherman 22, 30 V. So. Pac. R. Co. 240, 301, 302 V. Stetson 293 V. Townsend 223 Wall V. Hinds 39, 55 V. Lee 68 V. Pittsburgh Harbor Co. 296 Wallace v. Fletcher 207, 218 V. Harnstad 134, 388 II. Johnstone 612 Wallach v. Van Riswick 381, 714 Wallack V. Gallon 611 Waller v. Armistead 555 Wallgrave v. Tebbs 536 Walsh V. Breman 620 V. Erwin 817 V. Lonsdale 119 !-■. McBride 508 V. Siuhles 42 Wal.ston V. Smith 511 Walter v. Post 327 V. Tompkins 805 W.nlters v. Denfenbaugh 628 Walton V. Lowry 63 V. Walton 522 Walwyn v. Coutts 449 Walz V. Walz 166 Wappett V. Robinson 368 Ward V. Cooke 675 V. Lenthal 819 V. Met. Eleo. B. Co. 51, 52, 256 Ward V. People 58 V. Ward 512, 516 V. Warren 196, 204 V. Webber 536 Warden i>. Adams 635 Wardle v. Brocklehurst 172 Wardwell v. Hale 739 Ware v. Chew 275 Warfel u. Knott 291 Warfield v. Ross 639 Waring v. Crow 258 Warner v. Conn. Mut. L. Ins. Co. 815 u. Fleetwood 24 V. Kenning 19 V. MeMuUin 411 V. Rice 470 V. Snyder 470 u. Southworth 287, 202 V. Tanner 699 Warnock v. De Witt 317 V. Harlow 668 Warren v. Blake 160, 169, 171, 175, 177 V. Leland 63 V. Liddell ' 33 V. Tynan 440, 510 u. Union Bank 517, 519 V. Wagner 129 V. Westbrook Mfg. Co. 298 V. Wilder 579 Warriner v. Rogers 447 Washbon v. Cope 837 Washburn v. Burnham 619, 620 Washington Ice Co. v. Shortall 57, 58, 59 Wason V. Davis 618 Water Power Co. v. Water Com- m'rs 59, 239, 297 Waterman v. Morgan 448 V. Soper 66 V. Webster 666 Waters v. Hubbard 694 V. Lilley 221, 308, 309 u. Randall 613 V. Tazewell 472 Watertown Steam Engine Co. «. Davis 34 Watkins v. Goessler 639 ». Peck 200, 203, 208, 210, 218 V. Weston 430 Watriss v. Cambridge First Nat. Bk. 43, 44 Watson V. Bioren 163 V. Gray 286, 292 V. Penn 132 V. Wyraan 639 Watt ;;. Trapp 197 V. Watt 615 Watters v. Bredin 589 V. Cummins 535 Watts V. Julien 701, 705 V. Kelson 172, 173, 179 Ixii TABLE OP CASES CITED. [References are to pages.] Watuppa Reservoir Co. v. City of Fall River 147, 298 Weale v. Lower 751, 781 Weatherall v. Tiiornburgh 864 Weatlierby v. St. Giorgio 580 Weaver v. Barden 579 V. Jones 126 Webb V. Bird 277 V. Haeffer 698 V. Hoselton 639 V. Plunimer 66 V. Woola 456 Webber v. Chapman 209, 218 V. Gage 269 Weber v. Bridgman 788 Webster V. Calden 633 V. Morris 492 u. Potter 54 ('. Stevens 163, 286 V. Wiggins 480 Weed V. Pierce 562 Weelcley v. Weelcley 51 Weeton v. Woodcoclt 42 Weigmann v. Jones 273, 289 Weill V. Baiter 287, 292 Weioaar i: Fath 800 Weis V. Meyer 262 Weiss V. Heitcamp 526 V. South Bethlehem 217 Welby V. Thornagh 633 Welch V. McGrath 550 V. Wadsworth 101 Weld V. Nicliola 294 0. Sabin 647 Welles V. Castles 462 V. Garbutt 629 Wellesley v. Mornington 568 Wellford v. Chancellor 551 Welling V. Ryerson 638 Wells V. Cowles 51 V. Garbutt 169, 175, 289 V. Miller 662 ^. Tolman 247 V. Van Dyke 644 V. Waterhouse 534 V. Wells 700 Welsh y. Phillips 637 V. Taylor 211, 258, 261, 262 Wendt V. Walsh 424, 460, 461, 466, 494 Wentworth v. Poor 251 Werfelman v. Manhattan R. Co. 231 Werner v. Padula 133 V. Tuch 683 V. Zierfuss 563 Wertheimer v. Hosmer 955 Wesoott V. Binford 758 West V. Berney 820, 821 V. Knight 475 V, Lassels 131 V. Moore 62 V. Stewart 54, 55 West Cemetery v. P. P. & C. R. Co. 235 West. Co. V. Lea 564 West Point Iron Co. v. Reymert 166 Westerly Sav. Bk. v. Stillman Mfg. Co. 621 Western R. Co. v. Ala. G. T. R. Co. 232 West. U. Tel. Co. v. Shepard 231 V. Williams 233 Westgate v. Wixon 28 Westinghouse v. German Nat. Bk. 574 Westlake v. Wheat 443, 445 Westmoreland & C. Nat. Gas Co. V. De Witt 57, 240, 303 Weston V. Arnold 293 V. Foster 589 u. Sampson 308 V. Weston 17 Wetherbee v. Ellison 66 Wetmore ii- Bruce 160 u. Fisk 248 V. Parker 499 V. Wetmore 471 Weyh 0. Boylan 640 Weyl V. S. V. R. Co. 232 Weyman v. Ringold 287, 292 Whalen u. Manchester Land Co. 170 Whaley v. Stevens 215 Wharf V. Htjwell 613 Wharton v. Masterman 865 Wheatfield v. Grundmann 217, 222 Wheatley v. Chrisman 158 Wheaton w. Maple 207 Wheeldon v. Burrows 170 Wheeler v. Clark 205 V. Kirkland 50 II. Kirtland 508, 509 V. Reynolds 158 V. West 321 Whelen v. Phillips 540 Whicker v. Hume 477, 479 Whipple V. Fairchild 767 V. Foote 62 Whitaker v. Brown 165 V. Hawley 120 White V. Arndt 45 V. Bradley 227, 274, 275, 276 V. Carpenter 508 II. Chapin 306 V. Ditson 480 V. Dresser 239, 247, 268 V. Fish 484 V. Foster 63, 64 V. Hicks 815, 817 V. Howard 500, 503 0. Kauffman 622 •J. Manhattan R. Co. 253, 266, 258, 324, 828 i>. Nassau Trust Co. 214, 247, 280, 281 V. N. Y. & N. K. R. Co. 165 V. Nuptial Benefit Union 541 TABLE OP CASES CITED. [Refereuces are to pages.] Ixiii White V. Rittenmeyer 627, 649 Williams v. Dakin 594 V. Ross 440 V. Fitzbough 540 u. Story 178 V. Haddock 50, 530, 569, 570, „. Wl.ite 414, 477 488, 490 571 t,. Wiley 216 V. Hay 283, 284 V. Williams 617 !). Hilton 694 White's Bank v. Nichols 256, 257, 259, V. James 246 273 v. Jewett 29 J Whitehead t'. Kennedy 553 V, Jones 522 771, 772 Wliitehouse v. Bolster 536 V. Kershaw 481, 523 V. Oummings 180, 181 V. Knight 768 V. Whitehouse 446 V. Morris 3^2 Whiteside r. Cooper 742, 827 V. Nelson 200 Whiting V. Brastow 46 V. N. Y. Cent. R. Co. 231 V. Burke 662 V. Pearson 485 V. Dyer 507 V. Teacliey b;-;7 V. Edmonds 123 V. Thorne 471 V. Gay lord 286, 287 0. Van Geison 682 Whitlock V. Washburn 788 ij. Vreeland 532 Whitman v. Lex 477 V. Williams 456 474, 475, 477, Whitmarsh v. Cutting 63 498 512 576, 8611 V. Walker 63, 322 V. Wingo 146, 147 Whitney v. Foster 621 Williamson v. Brown 574. 575 V. Lee 163 V. N. J. So. R. Co. 21, 57; 629 V. Union R. Co. 167 Williaraston &c. R. Co. v. Battle 158 Whittenton Mfg. Co. v. Staples 248 Willington v. Gale 649 Whittier v. Coclieco Mfg. Co. 199, Willis V. Eastern Trust & Banking 250 Co. 632 V. Winkley 182, 183 V. Erie T. & T. Co. 233 Whitworth v. MeComb 222 u. Moore 61 Whyte V. Builders' League 171 V. Willis 513 Wick V. Bredin 16, 18 Willison V. Watkins 126 V. MuGinnis 10 Willoughby v. Horridge , 148 Wickersham v. Crittenden 557 Wills V. Cooper 466 ... Orr 158, 291, 329 Wilmurt v. McGrane 274 V. Savage 806 Wilson V. Allen 462 Wickham v. Hawker 808, .309 V. Anderson 450 Wiggw. Villers 784 V. Cluer 643 Wiggin V. Heywood 649 V. Forbes 59 Wiggins Ferry Co. v. Ohio & V. Lyon 616, 618 M. R. R. Co. 15, 20, 39, 56 u. Marion 575 Wilber v. Wilber 738, 849, 854 V. New Bedford 302 Wilcocks V. Hannyngton 443 V. Odell 866 Wilcoxson V. Miller 669 V. Parshall 620, 621 Wild V. lieig 237 V. Troup 697, 790, 791 Wilde V. Smith 456 V. Vanstone 655, 686 Wilder v. Ranney 799 .;. Waddell 284 V. St. Paul 221, 223, 258 0. Wightman 170 V. Wheeler 242 V. Wilson 592 Wiley V. Hunter 300 Wiltshear v. Cottrell 23 Wilhelm v. Lee 6.33 Wiltshire v. Sidford 286 Wilkins v. McGehee 656 Wimbleton & Putney Comm 3ns Wilkinson v. Buist 799 Conservators u. Dixon 246 u. Leland 229 Wimer v. Simmons 261 V. Wilkinson 541 Wimple V. Fonda 742 Wilks V. Burns 802 Windt V. German Ref. Church 70 Willard v. Denise 573 Winfield v. Hennesy 185, 187 Willeta V. Willets 453, 458 Wing V. Cooper 620 Willetts V, Brown 617 V. Gray 40 Williams v. Angell 764 V. Raplee 635 V. Bayley 544 Winham v. McGuire 325 V. Carle 566 Winn V. Abeles 280 V. Cowden 591 Winne v. Ulster Co. Sav. Inst. 330 Ixiv TABLE OF CASES CITED. [References are to pages.] Winnepesaukee C. IJ. Ass'n <-■. Gordon 594 Winnepiseogee Lake Co. v. Young 197 Winslow V. Bait. & 0. K. Co. 798 V. Merchants' Ins. Co. 24 V. Tighe 552 "Winsor v. Mills 840, 842, 851, 853 Winston v. Johnson 165 Winter v. Brockwell 253, 329 V. N. Y. & N. J. Tel. Co. 233 Wintermute v. Light 61 Winthrop v. Fairbanks 165, 167 Wiseman v. Lucksinger 157, 158, 204, 205, 325, 326 Wissler v. Hershey 180 Witham v. Bland 623 Withers ;;. Yeadon 810 Woerz V. Rademacher 494, 497, 515, 516, 804 Wolf V. Theresa Village Fire Ins. Co. 613 Wolfe V. Frost 293, 320, 324, 327, 330 V. Van Nostrand 763 Women's Church Ass'n u. Camp- bell 487, 488 Wood V. Abrey 539 V. Boyd 165 V. Burnham 426, 429 V. Copper Miner's Co. 266 V. Cox 441, 522 V. Craft 538 i,'. Downes 553 V. Drew 849 V. Fowler 59 V. Goodwin 651 V. Griffin 720, 853 u. Hammond 793 V. Harper V. Hewitt V. Irwin V. Kelley V. Leadbitter 56 551 197 322, 324, 325. .327, 330 V. Manley 322 V. U. A. L. E. Co. S24 V. Mich. Air Line 328 0. Panie 480 V. Partridge 132 V. Kabe 515, 516 V. Robinson 579 w. Trask 628 V. Veal 207 V. Wand 306 Woodbury v. Parsley 327 Woodgate v. Fleet 719, 859 Woodhaven Junction Land Co. v. Solly 186, 192 Woodin V. Wentworth 300 Woodlee v. Burch 642 Woodman v. Pease 16 «. Pitman 59 Woodruff ij. Adair 615 509, 412, 68, 588, 177, 195, 201, 202, Woodruff V. Cook 730, V. Morristown Sav. Inst. 638, V. Paddock Woodside v. Adams V. He well Woodward ;;. James V. Jewell V. Seeley Woodworth v. Payne V. Raymond Woolsey v. Funke V. N. Y. El. B. Co. Woonsocket Sav. lust. u. Ballou Wooster v. Cooper Worcester v. Georgia V. Green Workman v. Curran Worrill v. Wright Worthington v. Cooke V. Gimson Wotten V. Shirt Wragg V. Comptroller-Gen. Wright V. Cartwright V. Denn V. Du Bignon V. Holford V. Killiam V. Macdonnell u. Moore V. Pearson V. Proud V. Smith V. Tallmadge t). Vanderplank V. Wakeford V. White V. Williams V. Wright 441, 539, Wright ex dem. Plowden u. Cart- wright Wrigley v. Swainson Wrotesley v. Adams Wyatt V. Harrison Wylie V. Charlton Wyman v. Woodbury Wynn v. Sarer Wynne v. Alston Wythes v. Lee 429, 430, 553, 802, 773 639 261 630 510 600 580 323 593 178 19 231 622 819 386 307 206 836 131 206 140 616 782 622 40 748 S18 44 199 441 555 546 798 547 803 r38 306 ,540 777 566 718 280 444 456 518 616 571 Yandes v. Wright 288 Yankee Jim's Water Co. v. Crary 261 Yater v. Mullen 54 Yates V. Compton 794 u. Van De Bogert 382 <^. Yates 498 Yates Co. Nat. Bk. v. Baldwin 635 Yeackle v. Litchfield 543, 548, 549 Yeakle v. Nace 261 Yea rely v. Yearely 623 Yelverton v. Yelverton 414 Tonge V. Hooper Young V. Bankier Distillery Co. V. Baxter V. CommissionerB V. Dake V. Easley V. Martin V. Miller V. Young 442, 446, 447 Young Women's Christian Home v. French 588 Youngman v. E. & W. R. Co. 5B V. Elmira, etc. E. Co. 628 Youngs t). Garten 561 V. Youngs 624 Yount V. Yonnt 544 TABLE OF CASES CITED. [References are to pages.] 546 Ixv 488 762, 779 470 451 6.S6 Zeininger v. Schnetzler 288 Zeisweiss v. James 479 488 Zell I'. First XJniversalist Soc. 163 Zerbe v. Miller 563 Zimmerman v. Barber 511 612 V. Streeper 445 Zipp V. Barker 191 Zoeller v. Riley 668 Zouch V. Woolston 821 Zundell v. Gess 512 THE LAW OF REAL PROPERTY. INTRODUCTION AND OUTLINE. CHAPTER I. PROPERTY EXPLAINED AND CLASSIFIED. Plan of this treatise. Property defined. Exclusive appropriation. Divisions of property — Civil §1- §2. §3. §4. law. § 5. Divisions of property — Early common law — Movable and immovable. § 6. Divisions of property — Goods and chattels — Lands, tene- ments, and hereditaments. § 7. Divisions of property — Real and personal. §8. Leading distinctions be- tween real property and personal property. § 9. Property which is sometimes real and sometimes personal. § 1. Plan of this Treatise. — The " everlasting hills " are not more ancient than many of the legal principles that reg- ulate their ownership and use. The geology of jurisprudence discovers and explains those principles, fixed or operating in human institutions. As any conception of the earth is neces- sarily imperfect, which ignores the teachings of its strata, rocks, and fossils, so any discussion of law — and especially of the law of real property — which fails to deal with the splen- did history and development of its subject, must be not only incomplete, but also to some extent erroneous. It is for this reason that much space is devoted in the following pages to the unfolding of modern elements of the law of realty from ancient practice, thoughts, and theories. In no other way can they be thoroughly understood. Therefore the simple plan of this treatise, after explaining its general subject-matter and dividing it into its four natural departments, — I. Lands, tene- 2 INTEODUCTION AND ODTLINB. ments, and hereditaments ; II. Holdings of these ; III. Estates in them ; and IV. Titles to them, — is to endeavor, as to each of these divisions and its subdivisions, first to make clear its meaning and nature as they appear from history and present usage, and then to unfold and explain the rules and prin- ciples of law that have grown up around it through the centuries. § 2. Property defined. — The idea of exclusiveness is the essential feature of all adequate definitions of property that have been formulated by jurists or philosophers. The state- ment, therefore, that property is something- which one owns, to the exclusion of every other person, may be sufficient to con- vey a definite and practical conception of its meaning. But since the time when the word came into frequent use in the common law, which was probably not earlier than the begin- ning of the eighteenth century ,i it has been employed by the best writers in many different senses. Among these various meanings there are three most frequent and prominent, which are especially the most important in connection with the sub- ject-matter of this treatise. (1) The term " property " is often used to denote the object or thing to which a right of ownership may attach. Such is its signification when it is said that a certain book, or horse, or farm is the property of a designated person; that one's property is situated in a specified county or city ; or that all property has been divided into things movable and things im- movable.* (2) Again, it is employed to indicate the right or interest which one has in a thing to the exclusion of all other individuals. Thus a man is said to have property in mills, or mines, or land ; and when an article is bailed, the general property in it remains in the bailor, while the possession passes 1 " As to property, though through- kinde of properties ; a general prop- out the middle ages the French and ertie, which every absolute owner hath ; Latin forms of the word occasionally and a special propertie'), bnt in the occur, and the use of it is insured by the Year Books it is by no means com- writ de proprietate probanda, we believe mon." 2 Pollock & Maitland, Hist. Eng. that until the last century it was far Law (2d ed., 1899), p. 153. leas frequent than would be supposed ^ Standard Diet., " Property," 1. by those who have not looked for it in This is the sense in which the word the statute book. Instead of property must be used in the discussion of es- in the vaguer of the two senses which fates in real property. The property, or it now bears, men used possessions and object of ownership, is then thought of estate. In a narrower sense property as one thing, and the interest or estate was used as an equivalent for best right in it, as another. See this distinction (e. g. Co. Lit. 145 b ; ' But there be two more fully explained, § 292, infra. PROPERTY EXPLAINED AND CLASSIFIED. 3 to the bailee.^ (3) The word is very frequently used to em- brace anything and everything that may be owned by one per- son to the exclusion of others, — the external objects themselves and the rights and interests which may exist in connection with them. This last sense includes the other two, and is the broadest and loosest, though perhaps at the present time the most commonly employed, meaning of the term. When a man speaks of all his property, he is usually employing the word with this sweeping signification'. He may thus include, for example, a house and lot which he owns absolutely and all his right and interest in the same, a life estate in an adjoining acre of land the residue of which is owned by some other per- son, a perpetual right to cross a neighbor's field, the furniture in his dwelling-house, the cattle upon his farm, shares of stock in a corporation, and a chose in action arising from contract or tort.2 The second of these three classes of definitions is logically and theoretically correct. Tliere is, of course, an ownership, an exclusive appropriation Qproprletas) of a thing, a dominion over it, as distinguished from the thing itself. It would have conduced to clearness and precision of thought if legislators, judges, and jurists had always agreed in confining their use of the word property to this etymologically and philosophically correct meaning, and in employing some other term or expres- sion to denote the external objects to which such right, interest, ownership, or dominion might attach. But the history of the common law shows that they have been far from agreeing upon any such limitations.^ Therefore, in treating of one of its most important divisions, the term " property " must frequently be employed in the broadest and most general sense here stated ; while in many instances, as the context will ordinarily make clear, it must be so restricted as to embrace only the objects or things that may be owned, as distinguished from the interests or estates which may exist in them. Care will be taken in this work to explain the sense in which the word is em- ployed, in all instances in which ambiguity might otherwise result. 1 Bouvier's Law Diet., " Property ; " (4tli ed.) 371, 804; N. Y. L. 1896, ch. Standard Diet., "Property," 2; Co. 547, § 1. Lit. 145 b; 2 Blaekst. Com, pp. *452, ^ " The word ' property ' is used in so *453. many senses as to be nearly useless for 2 See Wms. R. P. (17th ed.) p. 4; junstie purposes." Digby, Hist. Law 2 Blaekst. Com. p. *2; Austin's Juris. R. P. (5th ed.) p. 302. 4 INTRODUCTION AND OUTLINE. § 3. Ezclusive Appropriation. — But, whatever may be the signification of the word in the context in which it is found, it must always be borne in mind that nothing can be property which is not exclusively appropriated to individual ownership.^ An undiscovered pearl at the bottom of the deep sea is not propertj', nor is there in it any property right in any sense of the word ; and the same is true of any unknown island or other land outside of the geographical limits of governmental ownership.2 The emancipation proclamation of 1863 took away all property in slaves, by forbidding exclusive appropria- tion of the labor of negroes.^ The right of a wife to take out insurance upon the life of her husband, since other persons may have the same right and their exercise of it, does not affect hers, is not property, but at most a status.^ So, we have no property in the air or sunlight, as we ordinarily enjoy them, since they are not thus appropriated to our own exclu- sive use or control.^ '. § 4. Divisions of Property — Civil Law. — Starting with the generic word res, as denoting objects of ownership, the Romans divided the things thereby indicated into res mancipi and res nee mancipi. While the former of these classes doubtless included at first all things which could be touched and handled, it was subsequently restricted to tangible articles in the sale of which certain formalities were prescribed ; and the latter class then embraced all other tangible things and all those that were intangible and incorporeal. Articles that could be touched and handled were also divided into things movable and things immovable ; and this distinction is still preserved in some civil-law jurisdictions.^ - § 5. Divisions of Property — - Early Common Law — Movable and Immovable. — In the early and cruder stages of the com- mon law, the division, which the civilians applied to tangible 1 Definitions above quoted; Brae- become valuable property. Such are ton, ch. xii. § 5. the rights to light and air which the 2 Com. Dig., Biens; Rutherforth, owner of land may have over streets, Inst. 20; NichoUs v. Butcher, 18 Ves. squares, or other open places. Story r. 193 ; Sharp v. Sharp, 6 Bing. 630. N. Y. El. K. Co., 90 N. Y. 122. See 2 2 Nicolay & Hay, Lincoln, p. 73 ; Sullivan v. Iron, Silver Mining Co., 143 2 Morse's Lincoln, p. 130. U. S. 431; Pothier, des Choses; 18 ^ Holmes v. Oilman, 138 N. Y. 369, Viner, Abr. 63. 379 ; Plessy v. Ferguson, ] 63 U. S. 537, « Maine, Anc. L. ch. viii. ; Mac- 549. kenzie's Roman Law, 166-1 90; Hadley'a * But, of course, a right to enjoy Lectures, 86. these may become so appropriated as to PROPERTY EXPLAINED AND CLASSIFIED. 5 objects only, into things movable and things immovable, was adopted and extended roughly to all kinds of property.^ The method of holding and enjoying the soil of the earth, houses, trees, and other things, which could not ordinarily be carried from place to place, gave emphasis and durability to this classi- fication.^ Soon after the conquest of England by William the Conqueror (probably about the twentieth year of his reign there), all absolute ownership of such things by private indi- viduals was done away with by the introduction of the feudal system. ^ The theory upon which that system was established and maintained was that all property of a permanent and immovable character belonged primarily and ultimately to the king ; that he, as such absolute owner, had distributed it in large parcels amongst his chief followers, vassals, or tenants to hold of himself ; that they, in turn, had in like manner sub- parcelled it out to their own vassals or tenants ; that these latter had done the same as to the portions which they them- selves received ; and so on, down to those who took actual possession of the property, enjoyed it and made the avail or proceeds therefrom. Such holding one of another, under that system, is called tenure. He who thus holds is called a vassal or tenant; he of whom the property is held is the lord. The king, being the chief lord, above all others, is denominated lord paramount, and the others mesne lords ; while he who is tenant or vassal only, and has no one holding of himself, but by his own labor enjoys the property and obtains the proceeds from it, is tenant paravail. Thus, each holder of the property between the king and the tenants para- vail is the vassal or tenant of the one above himself, from whom he has received it and of whom he holds it, and the mesne lord of those to whom he in turn has parcelled it out. The purposes for which the system was invented and employed were chiefly military. As a condition to his right to hold his property, each vassal was compelled to serve in the wars with his lord, and also to render to him certain services and pecu- niary returns. These duties and burdens became more and more oppressive with the growth and spread of the system, 1 Glanvill, a. 6; Bracton, f. 61b; with an ease which their successors may Maine, Anc. L. ch. viii. envy." 2 Poll. & Mait. Hist. Eng. L. 2 " Glanvill and Bracton — at the (2d ed.) p. 2. suggestion, it may be, of foreign juris- ^ See fuller discussion of that sja- prudence — can pass from movables to tem. Book II. ch. ii., infra. immovables and then back to movables b INTRODUCTION AND OUTLINE. until the legislative power intervened (in the twelfth year of Charles 11.^) and swept most of them away by statute.^ It is manifest at a glance that such a system, cumbersome and technical as it was, could not well be applied to articles that are temporary, movable, and easily destroyed. Cattle, carriages, household furniture, and the like are too perishable and insignificant to be subject to any feudal rights or duties. Absolute ownership by private individuals was accordingly recognized in such articles; and thus the distinction became very emphatic and important between those things which are movable and which one might own absolutely and those that are immovable^ the only way of holding which by any one except the king was by tenure, under a superior lord and subject to all the burdens and incidents of feudal tenancy or vassalage.^ ^ § 6. Divisions of Property — Ooods and Chattels — Lands, Tenements, and Hereditaments. — Property of a tangible and movable character readily came also to be designated as goods or chattels, or, by the combination of the two words, goods and chattels.* Comparatively little is said of such articles by the law records and reports of feudal times.^ But upon immov- able things the skill and subtlety of the legal profession were energetically bestowed ; and statutes, reports, and learned treatises have preserved the results. In process of time such things were spoken of as tenements,^ because they were subject to tenure, i. e. were holden one of another ; and as hereditaments,'' because on the death of the tenant or vassal they might pass to his heir, to be held by him of the lord in the same manner in which they had been held by the ancestor and subject to the same feudal rights and obligations. The word lands,^ also, 1 12 Car. II. ch. 24. 56 & 57 Vict. ch. 71 j also cases in " 2 Blackst. Com. ch. iv. English probate reports ; Bouvier's Law ' Doubtless movable articles were Diet., " Goods and Chattels." much associated with things of a per- 5 This is not so much because they manent nature, so as to pass with them ; were few and valueless, as because the and in this manner they came under procedure affecting them was ordinarily the operation of the feudal system. iu the lower courts, and being simple See 2 Poll. & Mait. Hist. Eng. L. and expeditious, was not brought to (2d ed.) p. 149. the attention of jurists as forcibly as that * These words are constantly used concerning realty. See 2 PoU. & Mait. interchangeably, or together, to include Hist. Eng. L. (2d ed.) p. 150 et seg. aU forms of property that we now call 6 Digby, Hist. Law K. P. (5th ed.) personalty. The etymological distinc- p. 72, n. 5; § 98, m/ra. tion between them is probably more 7 2 Poll. & Mait. Hist. Eng. L. (2d commonly observed in England than in ed.) p. 181 ; § 99 infra. this country. See Sale of Goods Act, 8 See § 60, infra. PBOPERTT EXPLAIKKD AND CLASSIFIED. 7 as denoting those tangible, substantial things which have per- manency as to time and fixedness as to space, came readily into use ; and so, during the vigorous sway of the feudal system, the property with which it dealt was constantly referred to as embracing lands, tenements, and hereditaments. This division of property into goods and chattels on the one hand, and lands, tenements, and hereditaments on the other, still retains its hold upon the common law ; but it is not so generally employed, in this country at least, as the more familiar classification into real property and personal property, which is to be next considered.^ § 7. Divisions of Property — Real and Personal. — The statute 12 Car. II. ch. 24, which was regarded by Blackstone as a greater acquisition to the civil liberty of England than even Magna Charta itself, took away most of the burdensome incidents of feudal tenure ; and, while it left the theory of the feudal system still operative there, it broke down the chief dis- tinction between different kinds of property, to which distinc- tion that system had given emphasis. Although in England he who has an acre of land still holds it theoretically of the king, yet for most practical purposes he may now own it as fully and absolutely as he may his horse or his watch.^ After the enactment of that statute, therefore, property naturally became classified upon a new basis or principle. An obvious and logi- cal division of actions at law for wrongfully taking or detain- ing property had existed for a long time. When the only remedy was an action against the person who had done the wrong, and the judgment recoverable was simply for pecuniary damages and not for the return of the specific thing abstracted, it was called a personal action ; while, if it could result in a judgment for the return of the article taken or detained, — the recovery of the real thing, — it was denominated a real action.^ It was natural that, after the overshadowing influence of the feudal system had been removed, the subject-matter affected by such actions should be divided in the same way as the ac- tions themselves, and that property should be classified as (1) Real Property, or such as can be recovered specifically when it has been wrongfully taken or detained from its. owner; and (2) Personal Property, or that for the wrongful abstraction, or 1 2 Blackst. Com. ch. ii. » Co. Lit. 118 b, 285 a, 288 b ; Bract. » Co. Lit. 65 a, 93 a; 3 Blackst. Com. 101b; 3 Black.st. Com. p. *117; Ste- p. *167etsej.; Wms. R. P. (17th ed.) 7. phen on Pleading, ch. i. 8 INTRODUCTION AND OUTLINE. detention of which the specific common-law action is for dam- ages against the wrongdoer.^ This classification of the kinds of property into real and personal, with its historic foundation upon the different forms of common-law actions, is the most complete and satisfactory and the one universally recognized at tlie present time. It must be confessed, however, that the abolition in most common-law jurisdictions of those ancient forms of actions,^ together with many of the distinctions which rested upon them, the establishment and use of new kinds of remedies and methods of procedure, the immense increase in the bulk of personalty in very modern times, the invention and production of various new forms of property of both classes and the multitude of novel uses and purposes to which things have been applied have made it difficult, in many in- stances, to determine whether given articles are real property or personalty. Some of the leading distinctions between them, in this respect, may be summarized as follows : — ^§ 8. Leading Distinctions between Real Property and Per- sonal Property. — (1) From an historical standpoint, as above shown, real property is such as, when wrongfully taken or retained from its owner, could have been recovered by a common-law real action; personal property is that for the wrongful abstraction or detention of which the specific com- mon-law action was one for damages against the person of the wrongdoer.2 (2) Generally speaking, real property is fixed and immovable as to space and permanent as to time ; per- sonal property is temporary and perishable as to time and mov- able as to space.* This is simply a general distinction, which in many cases is wholly inapplicable. For example, a door key, though carried around in one's pocket and liable to be lost or destroyed at any time, may be real property ; ^ while a house, though very heavy and difficult to move, may, under some circumstances (as when it is built by a tenant upon leased premises for purposes of trade or manufacture), be taken a way from the land as personal property.® (3) Real prop- erty may descend to the heirs of an owner thereof, who dies 1 Co. Lit. 118b; Bract. 101, 102; ° Ibid. ; Digby, Hist. Law R. P. (5th Wms. R. P. (17th ed.) p. 23; Digby, ed.) p. 71, n. 2; Wms. R. P. (17th ed.) Hist. Law R. P., Appendix, § 1 ; 4 Law p. 23. Quart. ReT. 394. * 2 Blackst. Com. p. * 16 ; Digby, 2 See 3 & 4 Wm. IV. ch. 27, §36; Hist. Law R. P. (5th ed.) p. 303. Chase's Blackst. pp. 716-734; Goelet v. * See " Fixtures," § 10, infra. Asseler, 22 N. Y. 225, 228. « See §§ 32, 46, infra. PROPERTY EXPLAINED AND CLASSIFIED. 9 intestate as to it ; ^ personal property passes to the executors or administrators of its deceased owner, to be used so far as necessary for the payment of his debts, and the residue either to be disposed of according to the provisions of his will, or, if it be not disposed of by a will, to be divided amongst his distributees^ as ascertained by common-law principles or the ruling statutes of distributions.^ (4) The ancient common law did not permit real property to be taken on execution for the payment of debts ; but it did allow personal property to be so taken.* This distinction has been materially modified by modern statutes, creditors being now generally able to reach their debtors' real property, or some interest therein, for the payment of their debts ; but the prevailing rule requires the personalty to be exhausted before the real property can be taken.^ (a) Many other distinguishing features might be mentioned. Thus, the law which affects real property is that of the place where it is located, that which governs personalty is usually the law of the place of its owner's domicil ; a conveyance of real property is now uniformly required to be made by a writr ing, while personal property may generally be transferred by delivery and acceptance. The two classes of property are governed by different rules as to the levying and collecting of taxes upon them and the methods of making, filing, recording, and satisfying of mortgages and other liens and encumbrances. These distinctions and many others, the knowledge of which is (a) Thus, it is required in New York that an execution " must, except in a case where special provision is otherwise made by law, substantially require the sheriff to satisfy the judgment out of the personal property of the judgment debtor; and, if sufficient personal property cannot be found, out of the real property belonging to him at the time when the judgment was docketed in the clerk's office of the county, or at any time thereafter." N. Y. Code Civ. Pro. § 1369 ; Saunders v. Reilly, 105 N. Y. 12, 21 ; Dunham V. Reilly, 110 N. Y. 366. 1 By the canons and s'tatutes of de- blood relatives who may so share — scent. N. Y. L. 1896, ch. 547, art. ix. ; and a surviving husband or wife. Stimson, Amer. Stat. L. §§ 3100-3169; 8 22 & 23 Car. II. ch. 10; 29 Car. Title by Descent, § 91 , infra. II. ch. 30 ; N. Y. Code Civ. Pro. §§ 2732- 2 This word is employed as the most 2734 ; Stimson, Amer. Stat. L. ch. iv. convenient and accurate (though it is * 2 Blackst. Cora. pp. * 160, * 161 ; 2 not generally used as much as might Woeruer, Adm'n, p. 1093, be) to describe those persons who are ^ Digby, Hist. Law R. P. (5th ed.) entitled by law to share in the person- pp. 281-284 j 2 Woerner, Adm'n, p. alty of an intestate decedent. It in- 1093. dudes the " next of kin " — i. e. the 10 INTRODUCTION AND OUTLINE. necessary to a clear apprehension of the law of real property, will be explained in the following pages. § 9. Property which is sometimes Real and sometimes Per- sonal. — At any particular instant of time every piece of prop- erty in the world is either real or personal. There is no third or intermediate class. Yet some things that are personalty to-day may be realty to-morrow ; and others that are now real in character may be personal a year hence. To articles which readily or frequently change in this manner the terra " mixed property " has been occasionally applied.^ It is not a desirable expression, however ; and, when employed, must never be taken as intimating the existence of any distinct class or division. Illustrations of things, which because of their varying conditions may raise important questions regard- ing their nature as realty or personalty at any given time, are ice, crops, trees, buildings, etc., and fixtures. A brief discus- sion of such articles as these is important, in order to ascer- tain the exact limits of the subject-matter dealt with by the law of real property. Such discussion naturally divides itself into two parts; namely, (1) An investigation of that somewhat extensive class of articles called fixtures; and (2) An inquiry into the nature of such other things as may readily change from the one species of property to the other, but are not embraced by the term " fixtures." 1 2Blackst. Com. p.*428; Dudley «. Ward, Ambler, 113. CHAPTER II. FIXTURES. 1 §12. tent. §13. §14- §15. Fraud - §16. tent. § 10. Fixtures — History and defi- nitions. § 11. Criteria for determining whether realty or personalty. Intent as a Criterion. Reasonably presumable in- Intent directly expressed. Intent shown by contract. Estoppel to deny intent — - Public policy. Other tests subsidiary to in- 2. Annexation as a Criterion. § 17. Constructive annexation. § 18. Actual annexation. § 19. Weight, size, etc., of fix- ture. § 20. Adaptability to premises. § 21. Conclusion as to annexa- tion. 3. Relation between the Parties as a Criterion. § 22. Classes of parties. § 23. Affixed hy permanent owner of land. § 24. Fixtures as between vendor and vendee. § 25. Between parties under con- tract to buy and to sell. § 26. Between heir or devisee and personal representative of deceased landowner. § 27. Between co-owners of the land. § 28. Between mortgagor and mortgagee of the land. § 29. Between unpaid vendor, etc., of the fixture, and lienor of land. § 30. Affixed by temporary owner of land. § 31. Fixtures annexed by tenant for years. § 32. Trade fixtures. § 33. Domestic fixtures. § 34. Agricultural fixtures. § 35. Summary of exceptions in favor of tenants for years. § 36. Time when tenant for years may remove fixtures. § 37. Effect of renewal of lease on right to fixtures. § 38. Fixtures annexed by life- tenant. § 39. Fixtures annexed by other temporary owners. § 40. Conclusion, as to fixtures. § 10. Fixtures — History and Definitions. — Until times com- paratively recent, the common law as we know it gave but scant attention to personal property. Doubtful questions as to the nature of an article were, before the time of Henry VI., con- 12 INTEODUCTION AND OUTLINE, stantly solved by treating it as a part of what is now called realty. It was thus brought within the favored class, and under the operation of the well-known legal principles which had de- veloped with the Anglo-Saxon race.^ In support of this ten- dency, the maxim qtoicquid plantatur solo, solo cedit — whatever is affixed to the soil (or freehold) is a part of it and passes with it — became of much importance.^ The result was that, when- ever one who had possession of land attached personal articles to it, or used them as things accessory to its enjoyment, they became, in contemplation of law, a part of the land and a por- tion of the real property of its owner. Such things, being thus attached or affixed to the land, either actually, or constructively from tlie manner of their use in connection with it, were called fixtures. And the definition was accordingly framed, that fix- tures are things in their inherent nature chattels, which have been so annexed to real property as to be deemed a part of it.^ This meaning still largely adheres to the word. Many judges and text-writers commonly employ it with such a signification.* As personal property grew in amount and importance be- fore the law,^ and the spread of commerce and business enter- prise increased and diversified the purposes for which real property could be employed, numerous exceptions were en- 1 3 Reeves' Hist. Eng. L. 15, 369; * See, for a few illustrations, Potter 2 Blackst. Com. pp. *384, *385; 2 v. Cromwell, 40 N. Y. 287; Mcltea c.. Kent's Com. p. * 341 ; Minshall v. Cent. Nat. Bk., 66 N. Y. 489 ; Feder v. Lloyd, 2 M. & W. 450, 459; Elliott "Van Winkle, 53 N. J. Eq. 370; Har- V. Bishop, 10 Exch. 496, 507, 508. mony i.'. Berger, 99 Pa. St. 320; Capeu 2 Broom's Legal Maxims, pp. *40J- v. Peckham, 35 Conn. 88, 94 ; Thomas *431. V. Davis, 76 Mo. 72; Capital City Ins. * See definitions of this kind in Co. v. Caldwell, 95 Ala. 77 ; Tyler on Worcester's Diet.; Webster's Diet.; Fixtures, pp. 36, 37. Ewell on Fixtures, p. 6 ; Hill on Fix- ^ n would be incorrect to follow the tures, § 1 ; Minshall v. Lloyd, 2 M. & writers of a century or more ago and W. 450, 459 ; Story, J., in Van Ness v. to state that there was very little per- Packard, 27 U. S. (2 Pet.) 137, 147. sonal property during feudal times. 2 In the early treatises on the common Poll. & Mait. Hist. Eng. L. (2d ed.) p. law the terra " fixtures " does not ap- 149 et seq. But it was the growth of pear as a distinct heading. The sub- this kind of property in importance ject is discussed, however, frequently before the law, especially before the under the topic " waste," and to some higher courts whose records and reports extent under that of "executors and we have, and in particular for the administrators " in connectiou with the tenant for years when his right became question as to what may be " assets " in fixed as an estate, that caused a relaxa- their hands. See Brown on Fixtures, tion of the ancient preference for call- §2; N. Y. Code Civ. Pro. §2712, ing such things realty, subd. 4. FIXTUEES. 13 grafted upon the maxim quicquid plantatur solo, solo cedit} In cases in which the relation between the owner of the land and the person who places such things upon it is that of landlord and tenant, those exceptions have now become so important as practically to constitute the rule.^ In most instances, the ten- ant for life or for a term of years may remove from the land, before he surrenders it back to the landlord, the personal chat- tels which he has annexed thereto or used in connection there- with.^ The existence of so many exceptions to the maxim has caused some modern writers to go to the other extreme in fraili- ing their definitions of fixtures. They accordingly define them as personal chattels annexed to or used in association with land and removable by the person who so annexed or uses them.* Neither of the definitions above given accurately describes fixtures. The bricks in the wall of an ordinary building were at one time personalty ; and they have been annexed to the land in such a manner as to form a part of it. They are in- cluded by the first of these definitions. Yet they are not fix- tures, and are never treated as such by the law. On the other hand, a tenant's tables, chairs, carpets, and other articles of household furniture, used by him in connection with the land, and perhaps to some extent fastened to the dwelling- house, are personal chattels which he may take away. They are fully within the second definition ; and yet they are never treated by the law as fixtures. It follows that there are some chattels which, although annexed to or used in association with realty, may unquestionably be removed by their owners. They are not fixtures, but simply personal property. Other things of a personal character, when annexed to the land, become un- questionably a part of the real property. These likewise are not fixtures ; and this is because they can make no question arise as to whose property they are. There are yet other arti- cles of a personal character which have been annexed to real property, or are used in association with or as accessory to it, and they are of such a nature, and such use or enjoyment is had of them in connection with the land, that it can not be de- termined until certain tests are applied and certain questions answered whether they are real or personal. They are so 1 Broom's Legal Maxims, pp. • 417- Law Diet. ; Burrill's Law Diet. ; Ewell *431. on Fixtures, p. 4 et seq.; Hallen v. » See §§ 32-34, infra. Eunder, 1 C. M. & R. 266 ; Pickerel! " Ibid. V. Carson, 8 Iowa, 644; Prescott v, * Ferard's Fixtures, p. 11 ; Bouyier'a Wells, 3 Ner. 82. 14 INTRODUCTION AND OUTLINE. situated or used, moreover, that, as the property changes hands and different interests and rights therein succeed one another, the question as to their removability may arise again and again. Such things are fixtures. Hence tlie following definition, as framed by a careful writer, appears to be substantially accurate and complete ; namely, fixtures are " things associated with or more or less incidental to the occupation of lands and houses or either thereof, and with regard to which the question most frequently arising is that of their removability by the person claiming to remove them." ^ It is conceived that such a definition as that last quoted is the only one that can give any logical or satisfactory idea of the term under discussion. It is its liability to raise a question between adverse claimants that marks as a fixture an article used in connection with real property. The question thus raised is to be answered, as above indicated, by the applica- tion of certain tests or criteria, which are deduced from the decisions and will be hereafter explained. By this application of the criteria some fixtures may be shown to be real and others personal ; while an article, which remains all the time in the same position and condition, may turn out to be real property as between some claimants, and, as between others, personalty. While connected or associated with the houses or lands, it remains all the time a fixture. The criteria are ap- plied to deterniine whether for the purpose in hand the fixture is realty or personalty .^ The word " fixtures " will be used in this treatise with the meaning indicated by the last definition above stated. The reader must constantly remember, however, that courts and text-writers frequently employ it in some one of the other senses above explained. It perhaps most commonly denotes simply those articles which have been so annexed to or used in association with realty as to become a part thereof. In the reading of any statute, text-book, or judicial opinion, which makes use of the word, the context is to be carefully examined to ascertain its meaning as there employed. 1 Brown's Law of Fixtures (4th ed.), and changes in the circumstances and pp. 1-3. When a fixture is thus under- relations of the parties, be realty to-day stood — taken at the point at which it between A and B, and personalty to- may readily cause disputes — the ex- morrow between C and D. See 32 pressions "real fixture" and " personal Cent. Law Jour. 202. fixture " become intelligible. Remain- 2 gee the excellent discussion in ing all the time in the same position, it Brown on Fixtures (4th ed.), p. 1 et may, by virtue of different contracts seq. FIXTURES. 15 § 11. Fixtures — Criteria for determining w^hether Realty or Personalty. — So long as one and the same person remains the absolute and unrestricted owner of land and the things placed upon it, little thought is often given to the question whether such things are real or personal in character. But when the rights of other persons begin to attach to the property, as by the death intestate of its owner, or by his devising, selling, leasing, mortgaging, or otherwise encumbering or disposing of the land, the question as to what shall pass or be retained as part of the realty frequently becomes very material. Back of that question, as applied to any specific article, is the inquiry, what was the nature of that article while it was there upon the land before the question of ownership was mooted ? And this last inquiry naturally suggests the further question, wJiat is the probable or reasonably presumable intent with which it was affixed to or used in connection with the land ? Do the circum- stances of its annexation and use indicate that it was meant to remain personalty or to become a part of the realty ? This is the primary and most important matter for investigation, and that to which the other criteria are largely subsidiary. One of the other tests is the nature of the annexation. This involves also an examination into the effects which the removal of the article in question would have upon the realty. And the third chief inquiry is concerning the parties between whom the question of ownership arises, — their relations to each other and to any other person who may have affixed the article, the part, if any, which each took in its annexation, and their re- spective interests in the land to which it is annexed or with which it is associated. These three criteria will be discussed in the order in which they have been stated. 1. Intent as a Criterion. § 12. Reasonably Presumable Intent. — Assuming that a personal chattel has been attached actually or constructively to realty, or u§ed in association therewith so as to cause a question to arise as to its character, the most important inquiry is as to the probable or reasonably presumable inten- tion with which it was so affixed or used.^ Intention alone 1 For a few of the many authorities ory, L. R. 3 Eq. 382 ; Hobson v. which properly lay great stress upon Gorringe (1897), 1 Ch. 192; Wiggins this criterion, see D'Eyncourt v. Greg- Ferry Co. v. 0. & M. R. Co., U2 U. S. 16 INTRODUCTION AND OUTLINE. can not change an article from personalty into realty. There must be also some annexation of the thing to the land, or some use or enjoyment of it in association with the land. Thus, a large stone, brought into a door-yard and intended to be used in the future for a stoop, was held to be personalty before it had been actually so used ; ^ and the rolls purchased for a roll- ing-mill, paid for and brought into it but never adjusted to it nor used with it, do not become a part of the realty, although they are brought there for the purpose of being at some future time fastened to the mill and used in connection therewith. ^ It is equally true that a mere unexpressed intention to treat a fixture as personalty will not, as a rule, change it from realty into a chattel. A vendor of a house and lot, for example, will not be allowed, before the deed passes, to remove valuable fixtures, simply because, after making the contract of sale, he declares that it was his secret intention to remove them.^ The law can not take cognizance of such undisclosed thoughts of him who fastens an article to the land ; but it can and does regard the reasonably presumable intent, to be gathered from all the facts and circumstances of the case.* § 13. How Intent may be shown — Directly expressed. — It frequently happens, of course, that such reasonably presum- able intent is the same as the actual purpose with which the chattel was annexed, and that the direct testimony of him who affixed or used it is controlling as to its character.^ In ."ige, 415; Potter v. Cromwell, 40 N. T. c. Batchelder, 40 Vt. 233; Tripp v. Ar- 287 ; Voorhees w. McGinnia, 48 N. Y. raitage, 4 M. & W. 687. 278; Wick v. Bredin, 189 Pa. St. 83; » Snedeker w. Waring, 12 N. Y. 170; Aldine Mfg. Co. ;;. Barnard, 84 Mich. Rogers u. Brokaw, 25 N. J. Eq. 496 ; 632 ; Hopewell Mills v. Taunton Sav. Catasauqua Nat. Bk. v. North, 160 Pa. Bk., 150 Mass. 519; Erdman u. Moore, St. 303; Crnm v. Hill, 40 Iowa, 506; 58 N. J. L. 445 ; Sword v. Low, 122 111. Thomas o. Davis, 76 Mo. 72 ; Tate v. 487 ; Cunningham v. Cureton, 96 Ga. Blackburne, 48 Miss. 1. 489; Overman v. Sasser, 10 Lawyers' * The question is a mixed one of Rep. Ann. 723, note; Tyler on Fix- law and fact, and, when a jury is sit- tures, eh. vii. ; Ewell on Fixtures, eh. i. ting, is to be submitted to it under §iv. ; 13 Amer. & Eng. Ency. of L. proper instructions from the court. (2d ed.) p. 597. Turner v. Wentworth, 119 Mass. 459; 1 Woodman v. Pease, 17 N. H. 282 ; Southbridge Sav. Bk. v. Mason, 147 Cook u. Whiting, 16 111. 480; Ripley u. Mass. 500; Scobell t'. Block, 82 Hun Page, 12 Vt. 353. (N. Y.), 223 ; Harrisburg Electric Light ■■i Johnson v. Mehaffey, 43 Pa. St. Coi. v. Goodman, 129 Pa. St. 206. 308 ; Cook v. Whiting, 16 111. 480 ; Ex 5 Erdman v. Moore, 58 N. J. L. 445 ; parte Astbury, L. R. 4 Ch. App. 630 ; Sheldon w. Edwards, 35 N. Y. 279 ; Mills 1). Rundlett, 23 N. H. 271 ; John- Copp v. Swift, 26 S. W. Rep, 438 (Tex. son I'. Hunt, U Wend. (N.Y.) 135 ; Peck Civ. App.) ; Tyler on Fixtures, p. 115. FIXTURES. 17 one case, a church society had torn down the edifice in which it had formerly worshipped, and removed the bell and its framework. The latter were placed at the front of a lot on which the society was building a new structure. An execu- tion against the church society having been put into the hands of the sheriff, that officer attempted to levy upon the bell, thus located, as personal property. The church society having proved that its intention was to place the bell in the new belfry when completed, it was held that the sheriff's attempted levy was a nullity. The intention to put it back upon the land of the church and into the new building for use there, being clearly shown, caused the bell thus located to remain realty.^ So, where the owner of a farm had taken down a fence and piled the rails in a heap, intending to build with them another fence upon the same farm, it was held that they remained a part of his real property.^ And where .rails were cut from the timber upon a farm and placed along the line of an intended fence upon the same premises, it was decided that they were thus made a part of the realty.^ If the church society had intended to sell or otherwise to dispose of the bell instead of putting it into its new edifice, or if the rails in either of the two cases last cited had been placed in piles for the purpose of being taken to market and sold, the result in each case would have been different and the fixtures involved would have been personalty. Accordingly, where the owner 1 CoDgre. Soc. of Dubuque v. Flem- that they did not pass under the deed, ing, 1 1 Iowa, 533 ; Weston v, Weston, but remained the personal property of 102 Mass. 514, 518, 519; Hadman i>. the vendor. The distinction between Eingwood, Cro. Eliz. 145; Ewell on this case and Conklin w. Parsons (sapi'a) Fixtures, p. 354. grows out of the facts that in the latter 2 Goodrich v. Jones, 2 Hill (N. Y.), case the trees were cut from the same 142 ; Aldine Mfg. Co. v. Barnard, 84 land upon which they were to be used as Mich. 632 ; Harris v. Scovel, 85 Mich. raits in building the fence, while in the 32. former they were cut from other land ' Conklin v. Parsons, 1 Chandler than that upon which they were to be used. (Wis.), 240. In Cook . Home, 65 N. H. 242; Burrill v. v. Stouffer, 127 Pa. St. 336; Cayuga S. N. W. Lumber Co., 65 Mich. 571. R. Co. v. Niles, 13 Hun (N. Y.), 170. 2 Potter V. Cromwell, 40 N. Y. 287 ; ^ "li there be many things of the Ford V. Cobb, 20 N. Y. 344 ; Campbell same class or kind, the expression of V. Roddy, 44 N. J. Eq. 244 ; Warner v. one or more of them in a conveyance Kenning, 25 Minn. 173; San Antonio implies the exclusion of all not ex- Brewing Assn. V. Ice Co., 81 Tex. 99. pressed, although the law would have Of course, after the fixture is firmly implied all if none had been enumer- annexed and would otherwise be realty, ated. (2 Pars, on Cont. [8th ed.] 516; the agreement must be in writing, to Hare v. Horton, 5 B. & Ad. 715.)"' comply with the requirements of the Matter of Eureka Mower Co., 86 Hun statute of frauds. (N. Y.), 309, 315 ; Andrews v. Day But- 3 Matter of Eureka Mowing Co., 86 ton Co., 132 N. Y. 348 ; First Parish v. Hun (N. Y.), 309; Pfluger ^. Carmi- Jones, 8 Cush. (Mass.) 184; Pope u. chael, 54 N. Y. App. Div. 153 ; Woolsey Skinkle, 45 N. J. L. 39. 20 INTEODUCTION AND OUTLINE. remove fixtures. A vendor transfers by estoppel the articles which he has placed upon the land, or allowed to remain there, in such a manner as to induce the vendee to believe that they are realty and thus to conclude the purchase.^ And a landlord who causes his tenant to make valuable annexa- tions to the property by expressly or impliedly representing that they may be removed by the tenant, will not be heard to claim them as his own.^ Under such circumstances the law fixes the reasonably presumable intent, without regard to what may have been the actual intent.^ So, to prevent fraud or the violation of right rules of public policy, articles will often be treated as one kind of property which were secretly intended when annexed to be regarded as the other.* § 16. other Tests are largely subsidiary to Question of Intent. — In endeavoring to ascertain the reasonably presumable intention with which a fixture has been annexed to land or used in association with it, it frequently happens that no direct declaration of such intention can be found by the court, or if found it is not conclusive ; also that no contract either express or implied relating to the character of the article as realty or personalty can be proved, and that no estoppel or principle of public policy operates against any of the adverse claimants. It then becomes necessary to apply the other tests or criteria above enumerated. One of these is an inquiry into the nature of the annexation, including an examination of the effects which the removal of the article in question would have upon the realty ; and the other concerns itself with the parties between whom the question of ownership arises, their rela- tions to each other and to any other person who may have affixed the article, the part, if any, which each took in its annexation and their respective interests in the land to which it is fastened or with which it is associated. While these 1 Snedekeru. Waring, 12 N.Y. 170; Gray (Mass.), 587. But, at least as to Eogers V. Brokaw, 25 N. J. Eq. 496; fixtures removable without injury to Tate V. Blackbnrne, 48 Miss. 1; Nat. therealty.thegreat weight of authority Bk. u. North, 160 Pa. St. 303. is the other way. Fuller v. Tabor, 39 '' Andrews v. Day Button Co., 132 Me. 519, 522; Morris v. French, 106 N. Y. 348 ; Wiggins Ferry Co. r. Ohio Mass. 326 ; Sowden v. Craig, 26 Iowa, & M. R. R. Co., 142 U. S. 396 ; Aldrich 156; Mayo v. NewhoflE, 47 N. J. Eq! V. Husband, 131 Mass. 480. 31, 48 N. J. Eq. 619. 8 It has been said in some cases that * Havens v. Germania Fire Ins. Co. the agreement or act, which is thus to 123 Mo. 403; Sisson v. Hibbard, 75 determine the nature of an article, must N. Y. 542. See Nat. Bk. u. North 160 be made or done before its annexation Pa. St. 303 ; Cunningham o. Cureton to the realty. See Gibbs v. Estey, 15 96 Ga. 489. FIXTURES. 21 are often dealt with as matters for investigation separate and distinct from that already considered, yet they will ordinarily be found, in the last analysis, to have been used by the courts as subsidiary criteria to arrive at the reasonably presumable intent of the use or annexation. Their great importance for that purpose is directly or indirectly emphasized by nearly every decision upon the law of fixtures. It will conduce to clearness of thought to regard and' treat them in that light. 2. Annexation as a Criterion. § 17. Fixtures — Annexation, Use, or Enjoyment, as deter- mining whether they are Realty or Personalty. — Constructive Annexation. — The annexation of a fixture to realty may be either actual or constructive. It is actual when the article is physically attached to or united with the land ; constructive, when no such real annexation exists, but the article is com-t- monly used as appurtenant to the real property, appropriated and adapted to it and made accessory or reasonably necessary to its beneficial use and enjoyment.^ The maxim quicquid 'plantatur solo solo cedit was formulated with primary reference to things firmly attached to the land. Actual, physical an- nexation was at first necessary to convert a chattel into real property.^ But as soon as the courts began to give more heed to the matter of intent, they discovered many things which, although not actually united to the realty, were to be treated as a part of it, under the law of fixtures. It was accordingly held, as early as the fourteenth year of Henry VIII., that a millstone, which had been removed from the mill to be picked and was intended to be restored to its original position, was passed by a deed convoying the mill.^ Since that time the doctrine of constructive annexation of fixtures has been fully recognized.* Other illustrations of things so annexed are 1 Wystow's Case, 4 Man. & Ry. 280, ' Broom's Legal Maxims, p. 401 et note (g) ; Liford's Case, U Coke, 46 b, seg. 50 b; Voorhis v. Freeman, 2 Watts & " Wystow's Case, 14 Hen. VIII. 25 b, S. (Pa.) 116; Williamson v. N.J. So. which will be found translated in 4 R. Co., 29 N. J. Eq. 311,330. " In re- Man. & Ry. 280, note (. Baker, 92 ^ Ibid.; McConnell v. Blood, 123 Hun (N. Y.), 331; Leland v. Gassett, Mass. 47. 32 INTEODUCTION AND OUTLINE. but each of them presents the case of two innocent claimants of a fixture which is on the land of some third partj-, generally a wrongdoer. Thus, suppose that A purchases of B on credit an engine and heavy machinery, the agreement being that the title to them shall not pass to A until he has fully paid for them, then A fastens them firmly upon his land, upon which C already holds a mortgage or upon which A subsequently gives a mortgage to C, and A does not pay for the fixtures thus annexed to the freehold nor satisfy C's mortgage; the question may arise as to whether B, as an unpaid vendor of the engine and machinery, shall be first entitled to them, or whether C, as mortgagee of the property to which they are attached, shall have a prior claim to them as part of the secur- ity for his mortgage debt. So if A, having already annexed fixtures to his land, treat them as chattels and secure a loan to himself from B by a chattel mortgage upon them, and subsequently as security for another loan to himself from C giveto C a mortgage purporting to cover the fixtures as well as the land, and neither loan be paid, the question may arise between B and C as to which of their claims upon the fixtures shall have preference. Again, one of the adverse claimants may be a chattel mortgagee of the fixture and the other a mechanic's lienor upon the land ; or one may be a conditional vendor of the fixture, while the other is a vendee of the real property to which it is annexed. In short, such questions may be presented whenever a fixture is claimed by two parties, either of whom would be entitled to it as between himself and a third person, and that third person is the one who so dealt with the article as to give it the character of a fixture. The solution of such questions depends largely upon the extent to which the expressed intention of the owner of the land, at the time when he so annexed or dealt with the chattel, is to be given effect by the courts. Some courts make this expression of intention the chief controlling element, others give it less weight, while, still others refuse to give it any material force in arriving at their decisions. There result three distinct rules for the solution of such controversies. Where treated as Personalty. — In those states in which the greater stress is laid on the landowner's expression of intention at the time when he dealt with the fixture as such, the person who by virtue of such dealing holds a chattel mortgage against it, or any other right by a contract treating FIXTURES. 33 it as personalty, is usually given the preference, and may have full satisfaction of his claim before the other party can have the benefit of any interest in the article as realty. Such is the law of New York, Alabama, Indiana, Kansas, Michigan, Texas, and perhaps some other states.^ This preference is clear when the real-property mortgagee or lienor acquired his interest before the fixture was annexed. But the highest courts in some of theSe states, and notably in New York and Alabama, have declared that the same rule prevails against him, although he paid a valuable consideration and obtained his lien or interest in the land after the article was affixed thereto, without notice of the existing rights of the other claimant and possibly in the belief, induced by the appearance of the property, that the fixture was a part of his real-estate security.^ The fact that the owner of the land intended that the article should remain personalty, and at the time of annexing it expressed such intention in his contract with its vendor or chattel mortgagee, is, in the absence of fraud and bad faith on the part of the latter, conclusive, in his favor, in determining it to be that kind of property. ^ If the claimant 1 Tifft V. Horton, 53 N. T. 377 ; Globe Marble Mills Co. v. Quinn, 76 N. Y. 23, 26; Sisson o. Hibbard, 75 N. Y. 542 ; Rowland v. West, 62 Hun (N. Y.), 583; Brand u. McMahon, 15 N. Y. Supp. 39 ; Warren v. Liddell, 110 Ala. 232 ; Thomason v. Lewis, 103 Ala. 426; Binkley v. Forkner, 117 Ind. 182 ; Eaves v. Estis, 10 Kan. 314 ; BurriU u. S. N. Wilcox Lumber Co., 65 Mich. 571 ; Lansing I. & E. Works u. Walker, 91 Mich. 409 ; San Antonio -Brewing Ass'n V. Ice Co., 81 Tex. 99 ; Cumber- land Union Baking Co. v. Hematite Co. (1892), 1 Ch. 415; Ewell on Fixtures, p. 282 et seq. ■ The fact that the chattel mortgage has or has not been filed be- fore the real-estate mortgage is made seems to make no difference in such cases. He who is lending money on real-property security, or purchasing the land, need not examine the chattel- mortgage files, and, it seems, is not affected in any way by such filing or the absence of the same. Ibid.; espe- cially Brand v. McMahon, 15 N. Y. Supp. 39. a Mott V. Palmer, 1 N. Y. 564; Ford i(. Cobb, 20 N. Y. 344 ; Tifft v. Horton, 53 N. Y. 377, 381 ; Warren u. Liddell, 110 Ala. 232. See McFadden V. Allen, 134 N. Y. 483. 8 Tifft . Robinson, 36 Barb. (N. Y.) ably not later than the year 1458. 1 483, 485; Guthrie v. Jones, 108 Mass. Wash. R. P. p. *291, note (6th ed., 191; Hanrahau v. O'Reilly, 102 Mass. § 608); 2 Poll. & Mait. Hist. Eng. 201; Ombony v. Jones, 19 N. Y. 234; L. (2d ed.) p. 106 et seq. Asheville Woodworking Co. u. South- '^ 1 Salk. 368. See Elwes v. Maw, wick, 119 N. C. 611; Cubbins v. Ayres, 3 East, 38, and notes. 4 Lea (Tenn.), 329 ; Berger v. Hoerner, s Kissam v. Barclay, 17 Abb. Pr. 36 111. App. 360 ; Eelcher v. McMillan, (N. Y.) 360; Devin v. Dougherty, 27 103 Mich. 494; Tyler on Fixtures, p. How. Pr. (N. Y.) 455; Lewis u. Ocean 230 et seg. FIXTURES. 39 foi- distilling,^ engines and machinery,^ and the like have been allowed to be removed by the tenant, if they could be detached without injury to the building or land.^ The expression "trade fixtures" is commonly employed to include all such articles as are embraced within this exception.* And the word "'trade" is given a wide meaning in this connection, and includes practically everything annexed to land for the pecuniary advantage of the tenant and not entirely for agri- cultural purposes.* § 33. (b) Domestic Fixtures. — The second exception, which the common law recognized in favor of the tenant for years, relates to articles placed by him upon the land for domestic use and convenience and the necessary enjoyment of the premises. This class of articles is usually denominated domestic fixtures. It includes things employed for ornament or utility or both.^ Thus, stoves,^ portable bath-tubs, ranges and heaters,^ orna- mental chimney-pieces, pier glasses and hangings, and wain- scot fixed only by screws^ are illustrations of such fixtures. i" 1 Reynolds v. Shuler, 5 Cow. (N. T.) 323 ; Holmes v. Treniper, 20 Johns. (N. Y.) 29; Moore u. Smith, 24 111 512. 2 Minshall v. Lloyd, 2 M. & W. 450 : Globe Co. V. Quinn, 76 N. Y. 23: Andrews v. Day Button Co., 132 N. Y, 348 ; Heffner v. Lewis, 73 Pa. St. 302 : Smith V. Whitney, 147 IWass. 479 ; Con- rad 0. Saginaw Mining Co., 54 Mich. 249; Hewitt v. General Electric Co., 61 111. App. 168; Merritt v. Judd, 14 Cal. 59 ; Brown v. Reno Electric Co., 55 Fed. Rep. 229. 8 Ibid. ; also Wake v. Hall, L. R. 7 Q. B. Div. 295 ; Wiggins Ferry Co. v. Ohio, etc. R. Co., 142 U. S. 396 ;" Wall v. Hinds, 4 Gray (Mass.), 256, 271 ; Con- ner V. CoiBn, 22 N. Y. 538 ; Powell v. McAshan, 28 Mo. 70 ; Seeger !>. Pettit, 77 Pa. St. 437 ; Tyler on Fixtures, pp. 148-158 ; Ewell ouFixtures, pp. 80-110. « Ibid. 6 Van Ness t'. Pacard, 27 U. S. {2 Pet.) 137; Holmes i^. Tremper, 20 Johns. ( N. Y. ) 29 ; Wall v. Hinds, 4 Gray (Mass.), 256 ; Elwes v. Maw, 3 East, 38 ; Union T. Co. v. W. & S. F. R. Co., 116 Iowa, 392 ; Ewell on Fixtures, pp. 80-110. 8 Elwes V. Maw, 3 East, 38, 53; Bishop 0. Elliott, 11 Ex. 113; Law- rence V. Kemp, 1 Uuer (N. Y.), 363. ' Roffey V. Henderson, 17 Q. B. 574, 575 ; Lawrence v. Kemp, 1 Duer (N. Y.), 363. 8 Guthrie v. Jones, 108 Mass. 191 ; Lawton v. Lawton, 3 Atk. 1.3 ; Lawton u. Salmon, 1 H. Bl. 259, 260, note a. ^ Ex parte Quincy, 1 Atk. 477 ; Law- ton 1^. Lawton, 3 Atk. 13 ; Beck o. Rebow, 1 P. Wms. 94 ; Grymes v. Bow- eren, 6 Bing. 437 ; Leigli v. Taylor (1902), App. Cas. 157; Wall v. Hinds, 4 Gray (Mass.), 256; Gaffield v. Hap- good, 17 Pick. (Mass.) 192. 1° Some cases, as early as those which recognized trade fixtures as belonging to the tenant, had recognized orna- mental fixtures as also the tenant's property. But the authority of these was denied in other decisions. In 1743, Lord Hardwicke regarded the question as settled in favor of the tenant (Law- ton V. Lawton, 3 Atk. 13, 16), and in the leading English case of Elwes v. Maw (3 East, 38, 53), decided in 1803, Lord EUenborough, after speaking of the ex- ception of trade fixtures in the tenant's favor, says: "The indulgence in favor of the tenant for years during the term has been carried still further, and be 40 INTRODUCTION AND OUTLINE. The cases under this head are not very numerous ; but they make clear the law that such things may be removed by the tenant, if the severance from the realty will not materially injure it nor destroy the essential character of the fixtures as articles of personalty. ^ § 34. (c) Agricultural Fixtures. — A 'third exception, gen- erally recognized in favor of the tenant for years by the common law of the United States, but not by that of England, relates to articles placed by him upon the land for agricultural fmyoses. Illustrations of such fixtures are nursery trees, ^ hop-poles,^ fences,* and buildings erected for purposes of husbandry. ^ The ancient common law, which so strongly favored the landlord as against his so-called tenant, — his mere bailiff or agent, — was formulated in this respect chiefly upon questions of waste committed by farmer tenants in removing agricultural appliances from the land. It was attempted in England, in the principal case of Elwes v. Maw,^ to break through the rule of stare, decisis, and to extend to agricultural fixtures the same liberal principle in the tenant's favor which had been accorded him in regard to trade fixtures. But the court refused to allow such an extension, and held, on the principle of stare decisis, and also because to hold otherwise would be "to introduce a dangerous innovation into the relative state of rights and interests holden to subsist between landlords and tenants,"" that fixtures placed upon the land for purposes of agriculture should be presumed to be the property of the has been allowed to carry away matters McMath v. Levy, 74 Miss. 450 ; Holmes of ornament, as ornamental marble k. Tremper, 20 Johns. (N. Y.) 29; Tyler chimney-pieces^ pier glasses, hangings, on Fixtures, pp. 271-317; Ewell on wainscot fixed only by screws, and the Fixtures, pp. 110-127. like." See Tyler on Fixtures, pp. 357- ^ 3 East, 38. 369 ; Ewell on Fixtures, pp. 127-137 ; ' Per Ld. Ellenboroogh, 2 Smith's 2 Taylor, Landl. & T. (8th ed.) p. 153 ; L. C. p. * 188. And he adds : " But the 2 Smith's L. C. p. * 198 et seq. danger or probable mischief is not so 1 Ibid.; Hanrahan v. O'Reilly, 102 properly a consideration for a court of Mass. 201 ; Ambs v. Hill, 13 Mo. App. law, as whether the adoption of such a 585; Wright v. Du Biguon, 114 Ga. doctrine would be an innovation a« aW; 765. and, being of opinion that it would be 2 Brooks V. Galster, 51 Barb. (N. Y.) so, and contrary to the uniform current 196. of legal authorities on the subject, we 3 Wing V. Gray, 36 Vt. 261. feel ourselves, in conformity to and in * Mott V. Palmer, 1 N. Y. 564, 572. support of those authorities! obliged to s Elwes (■. Maw, 3 East, 38 ; Van pronounce that the defendant had no Ness V. Pacard, 27 TJ. S. (2 Pet.) 137, right to take away the erections stated 145 ; Perkins . Stewart, 7 Pa. St. 122. 2 See last two preceding notes. ^ Henderson v. Ownby, 56 Te.x. 647. 3 Coleman v, Lewis, 27 Pa. St. 291 ; See Madigan i;. McCarthy, 108 Mass. Morris (/. French, 106 Mass. 326, 329 ; 376 ; Hubschman v. McHenry, 29 Wis. Dame v. Dame, 38 N. H. 429 ; Yater v. 655. Mullen, 24 Ind. 277 ; Sheldon v. Ed- « Bo1,„ „_ Hatch, 133 N. Y. 64 ; wards, 35 N. Y. 279 ; Leonard v. Clough, Sudbury Parish v. Jones, 8 Cush. 133 N. Y. 292, 297. (Mass.) 184; Webster u. Potter, 105 * Poor V. Oakman, 104 Mass. 309, Mass. 414 ; Guernsey v. Wilson, 134 317; Meriam v. Brown, 128 Mass. 391 ; Mass. 482, 486; Leland v. Gasset, 17 Bonney i;. Foss, 62 Me. 248 ; Spruck v. Vt. 403 ; Eeid v. Kirk, 12 Rich. L. E. PROPERTY, REAL OR PERSONAL. 55 When a structure thus passes to the owner of the land because it is placed thereon without his consent, a court of law will nut compel him to make any compensation, to the person who built it, for the materials or labor employed in its erection; and a court of equity ordinarily follows the same rule.^ He takes the risk of such loss when he builds upon land which he does not certainly know to be his own. It seems, however, that he may move a court of equity to grant him compensation from the landowner for the labor and materials employed, if he who erected the building show that in doing so he acted upon the belief that he had title to the land, which belief had some probable basis, and that the real owner of the property, knowing of such acts and belief, suffered him to go on without notice of the true state of the title. ^ § 48. Buildings erected on One's Land Tvith his Consent. — When one person builds on the land of another with the latter's consent, the former may retain the structure as his personal property. When the purpose for which he was per- mitted to build has been accomplished, or during the tempo- rary holding which he may have of the land, he may remove the structure as his own.^ The consent of the owner of the freehold may be either express or implied. It is usually express when the builder is not given any interest or estate in the land, but simply a license or easement to erect and maintain the building.* It is more commonly implied when he who builds the structure has some temporary interest or (S. C.) 54 ; Campbell v. Roddy, 44 in cash and once in the value of the N. .J. Eq. 244 ; Crest v. Jack, 3 Watts house so rebuilt. (Pa.), 238; West!). Stewart, 7 Pa. St. ^ Bohn w. Hatch, 133 N. Y. 64, 68; 122 ; Graham v. Connellsville R. Co., Spruck v. McRoberts, 139 N. Y. 193 ; 36 Ind. 463; 2 Kent's Com. pp. * 334, Hardisty v. Richardson, 44 Md. 617; *335. King v. Thompson, 34 U. S. (9 Pet.) 1 Last three preceding notes. In 204; 1 Pom. Eq. Juris. § 1241. McAUaster v. Niagara Fire Ins. Co., 8 Curtis v. Hoyt, 19 Conn. 154; 156 N. Y. 80, the defendant, which had Dudley v. Hurst, 67 Md. 44 ; Korbe v. replaced a burned building by a similar Barbour, 130 Mass. 255 ; Lapham v. one on the land of the insured but after Norton, 71 Me. 83 ; Salley v. Robinson, its proper time to elect to do so under 96 Me. 474; Dame v. Dame, 38 N. H. its policy had expired, was compelled 429 ; Dubois v. Kelly, 10 Barb. (N. Y.) to pay the amount of the policy in cash, 496 ; Central Branch R. Co. ^. Fritz, 20 although the house thus erected by it Kan. 430. became at once the property of the in- * Wall i^. Hinds, 4 Gray (Mass.), sured. Thus, as the result of its wrong- 256 ; Dame v. Dame, 38 N. H. 429 ; fully building on another's land, the Harris v. Gillingham, 6 N. H. 9 ; Ham company was practically required to pay i.. Kendall, HI Mass. 297. twice the amount of the policy, — once 56 INTRODUCTION AND OUTLINE. estate in the land, such as an estate for years, from year to year, or for life.^ In such latter instances the buildings are practically within the domain of fixtures, and their character as realty or personalty is to be determined by the tests appli- cable to fixtures, as above explained. It follows that when they are erected by a tenant for trade, agricultural (in the United States), or domestic purposes, and are not so con- structed that their removal would injure the freehold, he may remove, sell, mortgage, or otherwise encumber them as per- sonal property.^ Such rights of those who erect buildings upon the land of others with the landowners' consent, prevail only between the parties to the consent and against those who take interest in the lands with notice of such rights. They are inoperative against innocent purchasers or encumbrancers of the land, without notice, actual or constructive, of the rights of the builders; and as to such purchasers "artid encumbrancers the erections are real property.^ § 49. Rolling-stock of Railroads. — It is settled that the depots, station-houses, water-tanks, masonry, foundations, columns, substructures, and superstructures of railroads, either surface, underground, or elevated, are real property.^ The rails and ties are also commonly treated as realty; but it is held that where they are put down upon a specified part of the roadbed pursuant to a contract that they shall remain personalty in that position until paid for, they do not become real property until payment is made.^ As to the character of the rolling-stock of a railroad, there is direct conflict of authority. It is held to be real property by the Supreme Court of the United States and the courts of Kentucky, Illinois, Maine, Maryland, Pennsylvania, and several other states;® while in New York, New Jersey, Iowa, Ohio, Wis- consin, and probably a majority of the states of this country, 1 Wood V. Hewitt, 8 Q. B. 913 ; » Ibid. ; Haven v. Emery, 33 N. H. Wiggins Ferry Co. v. 0. & M. E. Co., 66 ; Pierce v. Emerv, 32 N. H. 484. 142 U. S. 396 ; Doty v. Gorham, 5 Pick. e Miun. Co. v. St" Paul Co., 60 U. S. (Mass.) 487; Korbe u. Barbour, 130 (2 Wall.) 609; Hammock v. Loan & Mass. 255; Meclianics' Nat. Bk. u. Trust Co., 105 U. S. 77; Pliillips Stanton, 5.^ Minn. 211. d, Wiuslow, 18 B. Mon. (Ky.) 431; 2 §§ 31-35, supra. Palmer t>. Forbes, 23 111. 301 ; Strick- 8 Kerr v. Kingsbury, 39 Mich. 150 ; land v. Parker, 54 Jle. 263 ; State v. Meyers v. Schemp, 67 111. 469; Brown Nor. R. Co., 18 Md. 193; Youngman u. Roland, 92 Tex. 54; 2 Bract. 18. v. E. & W. R. Co., 65 Pa. St. 278- * People ex rel. El. R. Co. v. Com. Coe v. McBrown, 22 Ind. 252. of Taxes, 101 N. Y. 322 ; Hunt v. Bay State Iron Co., 97 Masa. 279. PROPERTY, REAL OR PERSONAL. 57 it is treated as personalty. ^ The questions have most fre- quently arisen as to whether it should be taxed as realty or personalty, and in connection with the question as to the effect of failure to file as a chattel mortgage a railroad trust deed or mortgage given upon all the property of the corpora- tion. ^ In answering such questions the better logical reasons appear to be in favor of treating the rolling-stock of a railroad as personal property.^ § 50. Water and Ice. — The water of a stream, lake, or pond forms, while there, a part of the land over which it lies ; but, because of its mobile and evanescent character, it can not be dealt with by itself as real property. Thus, a deed of a designated body of water would pass nothing to the grantee. But a deed of a described tract of land covered with water would pass the land and the water on it at the time.* When the water becomes congealed, the ice, as it rests in its natural condition upon the surface, is still a part of the land over which it is formed.^ Since, however, it is more stable 1 lloi'Ie V. Plattsburgh & M. E. Co., 54 N. Y. 314; People, etc. v. Com. of Taxes, 101 N. Y. 322 ; State Treas. v. S. & E. E. Co., 28 N. J. L. 21 ; Wil- liamson V. N. J. & S. E. Co., 29 N. J. Eq. 311; Neilson v. I. E. R. Co., 51 Iowa, 184 ; Coe o. C. P. & I. E. Co., 10 Ohio St. 372 ; Chicago & N. W. R. Co. u. Bor. of Ft. Howard, 21 Wis. 44; Meyer v. Johnston, 53 Ala. 231, 237 ; Boston, C. & M. E. Co. u. Gilmore, 37 N. H. 410. '^ Last two preceding notes. ' Ibid. In some states, such as Il- linois, Missouri, Arkansas, Nebraska, West Virginia, and Texas, constitu- tional provisions declare that rolling- stock of a railroad shall be personal property, and liable to execution and sale in the same manner as the per- sonalty of individuals. Jones on Rail- road Securities, § 171. * Co. Lit. 4 a, b; 2 Blackst. Com. p *18; Shep. Touchst. 91. When water, oil, or natural gas is bottled, barrelled, or otherwise separated and retained from the land, it is, of course, personal property. When percolating naturally through the soil, or lying or flowing in bulk upon or within it, these substances are part of the land upon which they are found for the time being But when tliey escape and pass into or upon other land, the former owner's title to them ceases ; and they become while there a part of the real property of the owner of the land to which they have passed. Because of the analogy, thus suggested, to the move- ments and ownership of wild animals, these three substances have been spoken of by the Supreme Court of Pennsylva- nia as " minerals Jei-ce naturce." West- moreland & C. Nat. Gas Co. v. De Witt, 130 Pa. St. 235. See 5 Lawy. Rep. Ann. 731 ; People's Gas Co. v. Tyne, 131 Ind. 277, 408. It is doubtful, how- ever, whether water can be at all prop- erly classified as a mineral ; and it is quite certain that the rules and decisions as to mining rights, which bear so directly upon property in oil and natu- ral gas, have no direct application to water, either standing, running, or per- colating. 6 Allen V. Weber, 80 Wis. 531 ; Marshall v. Peters, 12 How. Pr, (N. Y.) ■ 218 ; Myer o. Whitaker, 5 Abb. N. C. (N. Y.) 172; Paine w. Woods, 108 Mass. 160; Washington Ice Co. u. Shortall, 101 111. 46 ; Bigelow v. Shaw, 65 Mich. 341. 58 INTRODUCTION AND OUTLINE. than water, the landowner may treat it in this condition as personal property, and may sell, mortgage, or otherwise deal with it as such. He may dispose of the soil and ice together as real property, and a transfer of the land without mention- ing the ice will have that effect; or he may dispose of the land and reserve the ice as personalty, either in the deed or by an oral reservation; or he may, it seems, dispose of the ice while in its natural condition on the surface as personal property.^ After the ice has been cut and severed from the water, it is personalty, and can be dealt with only as such.^ In all of these respects ice partakes of the nature of an annual crop formed upon the surface of the water. It is prima facie a portion of the land over which it is made, but, either before or after it is cut, it may be dealt with by its owner as personalty ; and it must be so treated after it has been severed from the land.* As between the state and the individual owners of land along the banks of streams, lakes, or ponds, the question of the ownership of the water and ice is ordinarily answered by determining who owns the land under the water. Along a non-navigable stream each riparian proprietor owns to the thread of the stream, while the bed, ice, and water of navi- gable streams belong to the state.* This follows the uniform criterion; but, as to what streams are navigable in contem- plation of law and what are not, the common law is not so well settled in this country, with its large rivers actually navigable far above tide-water, as it is in England, with its short streams navigable only so far as the tide ebbs and flows. In England, a stream in which the tide does not ebb and flow is uniformly treated as non-navigable, and the riparian pro- prietors own to the Jilum aquce.^ In some of the United States, such as Iowa, Kansas, Missouri, Michigan, Pennsyl- 1 Huntington v. Asher, 96 N. Y. * Shively «. Bowlby, 152 U. S. 1, 31 ; 604 ; Van Rensselaer v. Mould, 48 Hun Smith v. City of Rochester, 92 N. Y. (N. Y.), 396; Higgins u. Kusterer, 41 463; Gouverneur „. Nat. Ice Co., 134 Mich. 318; Eidmiller Co. u. Guthrie, 42 N. Y. 355 ; Paine u. Woods, 108 Mass. Neb. 238; 21 Amer. Law Reg. n. s. 160, 172; Bigelow r. Shaw, 65 Mich. 320; 32 Amer. Law Reg. N. s. 66; 48 341 ; Marsh v. McNider, 88 Iowa, 390. Alb. Law J. 504. ^ Bickett v. Morris, L. R. 1 Sc. App. 2 Ward V. People, 3 Hill (N. Y.), 47; Orr Ewing r. Colquhoun, L. R.' 395, 6 Hill (N. Y.), 144. See Wash- 2 App. Cas. 839 ; Barney t>. Keokuk, 94 ingtou Ice Co. o. Shortall, 101 111. 46; U. S. 324, 337 ; Shively" ii. Bowlby, 152 State V. Pottmeyer, 33 Ind. 402. U. S. 1, 31. * Last three preceding notes. PROPERTY, REAL OR PERSONAL 59 vania, North Carolina, and several other states, the soil under the large rivers, which are in fact navigable but not subjected to the ebb and flow of the tide, is held to belong to the state ;i and the Supreme Court of the United States has decided that those rivers which form boundaries between states, and are used or maybe used for purposes of commerce,, are navigable rivers of the United States, and this, too, with- out regard to the consideration whether or not the tide ebbs and flows within them.^ The states around the Great Lakes, and not the individual riparian owners, have title to their bods and water. ^ In New York it is held that, except as to streams regulated by statute, the English' common-law crite- rion is applicable to streams in general, but that the Hudson and Mohawk rivers, are governed by the rule of the civil law, according to which the riparian owners do not hold the bed of the stream even where there is no tide.* Ice formed upon a stream, lake, or pond the bed of which belongs to the state is the property of the public in general, and may be cut and removed by the one who first appropriates it and cuts, or surveys and fences it off as his.^ But, when one has taken possession of a portion and appropriated it to himself, the rights of others are excluded. ^ (a) 8 51. Vegetable Products of the Earth — Fructus Industrialea — Fructus Naturaies. — Things which belong to the vegetable kingdom are either fructus naturales, the natural, sponta- (a) It is provided by statute in New York that each riparian owner along the Hudson River may cut and remove the ice opposite his land, as far as the Jilum aquce, provided he erect safeguards to prevent accidents to travellers and teams as required by the statute. N. Y. L. 1895, ch. 953. 1 Houghton V. Chicago R. Co., 47 ers, 33 K Y. 461 ; Neal v. City of Iowa, 370; Wood v. Fowler, 26 Kan. Rochester, 156 N. Y. 213; Lincoln v. 682 ; Benson v. Morrow, 61 Mo. 345 ; Davis, 53 Mich. 375. Ryan v. Brown, 18 Mich. 196, Shrunk ^ ibid. ; Paine ». Woods, 108 Mass. V. Schuylkill Nav. Co., 14 Serg. & R. 160; Gage v. Steinkrauss, 131 Mass. (Pa ) 71 ; Cuson v. Blazer, 2 Binn. 222 ; People's lee Co. v. Davenport, 149 (Pa.) 475, 477; Wilson v. Forbes, 2 Mass. 322; Barrett 17. Rockport Ice Co., Dev. L. (N. C.) 30; Shively v. Bowlby, 84 Me. 155; Wood v. Fowler, 26 Kan. 152 U. S. 1, 31. 682 ; Rossmiller v. State, 114 Wis. 169 ; " Shively «. Bowlby, 152 U. S. 1,58; Woodman v. Pitman, 79 Mo. 456; Water Power Co. v. Water Comm'rs, Brookville & M. H. Co. v. Butler, 91 168 TJ. S. 349; Swerigan v. St. Louis, Ind. 134; Becker v. Hall, 88 N. W. 185 tJ. S. 38. Rep. 324 (Iowa) ; Bigelow v. Shaw, 65 * Lincoln v. Davis, 53 Mich. 375 ; 111. Mich. 341. See Washington Ice Co. v. Cent. R. Co. v. Illinois, 146 U. S. 387. Shortall, 101 111. 46; Mill River W. » Smith t>. City of Rochester, 92 N.Y. Mfg. Co. v. Smith, 34 Conn. 462. 463, 473 ; People v. Canal Apprais- ' Ibid. 60 INTRODUCTION AND OUTLINE. neous productions of the earth which do not require an- nual cultivation; or fructus industriales, fruits which are the result of yearly culture. Since the former are the more closely and permanently connected with the soil and appear more really to be a part of it, they are more frequently treated as real property than are the latter. ^ Each of these classes requires brief consideration. § 52. Fructus Industriales. — These include not only those crops which require the yearly sowing of seed, such as corn, potatoes, beans, peas, and the like, but also those which are produced by vines or shrubs springing up anew each year from old roots but needing training and culture in order to the production of valuable fruit. ^ Types of the latter kinds of products are hops, requiring as they do that the vines shall be trained upon poles or other supports and cultivated in order that a crop may result,^ and turpentine, which, though taken from trees, yet requires annual care and culture for its production.* Nursery trees also are practically fructus in- dustriales, since care and training by man ai-e necessary to their production in a form suitable for market.^ It is some- times difficult in individual cases to decide what products of the soil are fructus industriales ; but it may be stated in gen- eral that they include all fruits and crops which need annual sowing, or cultivation, or training, or care by man, in order to the production of any substantial, valuable result. Things are not to be placed in this class simply because by cultiva- tion a better crop will be produced. Thus, blackberries and strawberries are not fructus industriales; for the vines or bushes will produce valuable crops from year to year without man's care, although training and culture may cause them to bring forth larger and better fruits.^ The common law treats these annual products of the soil (fructus industriales^ as part of the realty, unless they are so dealt with by the owner of the land or the character of the 1 Matter of Chamberlain, 140 N. Y. s Latham v. Atwood, Cro. Car. 515 ; 390 ; Sparrow v. Pond, 49 Minn. 412 ; Rodwell v. Phillips, 9 M. & W. 501 ; 2 Brittaiu u. McKay, 1 Ired. L. (N. C.) Blackst. Com. p. * 122. 265 ; Preston o. Ryan, 45 Mich. 174. * Lewis v. McNatt, 65 N. C. 63. 2 Co. Lit. 55 b, n., 364 ; Williams, " Pentou v. Robert, 2 East, 88 ; Price on Exr's, 597 • Lewis v. McNatt, 65 v. Brayton, 19 Iowa, 309. N. C. 63; State u. Moore, 11 Ired. L. « Sparrow v. Pond, 49 Minn, 412; (N C.) 70 ; Penton v. Robert, 2 East, Matter of Chamberlain, 140 N. Y. 390; 88 ; Forbes v. Shattuck, 22 Barb. (N. Y.) Kimball v. Sattley, 55 Vt. 285. 568 ; Chaplin, Landl. & T. ch. xxi. PROPERTY, REAL OR PERSONAL. 61 ownership is such as to indicate that they are personal prop- erty.^ Hence, if the landowner grant or devise it without mentioning the crops that are growing upon it, they pass to the grantee or devisee. ^ And when an ancestor dies intestate, although the annual crops standing upon his land wlicther then ready for harvest or not belong primarily to bis personal representatives, this is only for the purpose of paying his debts; and if not needed to satisfy his creditors they pass with the land to his heirs, unless it is otherwise provided by statute.^ (a) Even though the crops are mature, but have not yet been severed from the land, they are generally treated as prima facie a pai't of the real property.* But in this condi- tion the courts have more readily regarded them as person- alty, against the claim of the heirs, and in some instances against that of devisees.^ While a few early cases held that a conveyance of the land upon which stood annual crops necessarily included (a) In a number of the American states this is regulated by statute. The law of New York is as follows: " The following shall be deemed assets and go to the executors and ailministrators, to be applied and dis- tributed as part of the personal property of the testator or intestate, and be included in the inventory; . . 5. The crops growing on the land of the deceased at the time of his death. 6. Every kind of produce raised annually by labor and cultivation, except growing grass and fruit ungath- ered." N. Y. Code Civ. Pro. § 2712; Batterman j;. Albright, 122 :N. Y. 484 ; Matter of Chamberlain, 140 N. Y. 390. 1 Last preceding note ; Branton u. * Thus a crop of corn standing un- GrifBts, L. K. 1 C. P. Div. 349 ; Bradner harvested in tlie field in December was V. Faulkner, 34 N. Y. 347; Howell u. held to have passed to the grantee of Schenck, 24 N. J. L. 89 ; Smith d. Price, the land. Tripp o. Hasseig, 20 Mich. 39 111.28. 254,261. See Parker u. Strickland, 11 2 Falmouth u. Thomas, 1 Cr. & M. East, 362 ; Kittredge i: Woods, 3 N, H. 89 ; Vaughan v. Hancock, 3 0. B. 766 ; 503. A crop growing on land when it is Batterman v. Albrig-ht, 122 N. Y. 484, sold on execution passes with the land. 488; Bauta D. Merchant, 173 N.Y. 292; Hersberg v. Metzgar, 90 Pa. St. 217; "Wiutermute v. Light,' 46 Barb. (N. Y.) Pitts v. Hendrix, 6 Ga. 452 ; Porche v. 278, 283 ; Bradner v. Faulkner, 34 N. Y. Bodin, 28 La. An. 761. And the same 347 ; Dennett v. Hopkinson, 63 Me. 350 ; is true as to a sale on foreclosure or in Bull V. Griswold, 19 111. 631 ; Cummings partition. Ledyard v. Phillips, 47 Mich, v. Newell, 86 Minn. 130; Willis y. Moore, 305; Jones w. Thomas, 8 Blackf (Ind.) 59 Tex. 628. 428. But see Albin v. Riegel, 40 Ohio 8 Kain v. Fisher, 6 N. Y. 597 ; Bat- St. 339. terman v. Albright, 122 N. Y. 484, 488 ; ^ Last three preceding notes ; Pen- Stall V. Wilbur, 77 N. Y. 158 ; Howe v. hallow v. Dwight, 7 Mass. 34; Sherman Bachelder, 49 N. H. 204 ; Penhallow w. v. Willett, 42 N. Y. 146; Howe u. Dwight, 7 Mass. 34 ; Patti.son's Appeal, Bachelder, 49 N. H. 204; McGee i*. 61 Pa. St. 294 ; Broom's Legal Maxims, Walker, 106 Mich. 521. p. *.305 ; 2 Woerner Adm. § 282. 62 INTRODUCTION AND OUTLINE. them unless they were expressly excepted in the deed,^ yet the great weight of authority is now in favor of permitting an oral reservation of the crops, without violating the statutes of frauds. The owner may treat them, even before they are severed from the soil as personal property, and may orally reserve them to himself or transfer them to another by any method which complies with the requirements of the section of the statute of frauds relating to personalty. ^ So they may be taken on execution as personal property; and a mortgage of them as chattels generally gives to the mortgagee an ownership of them superior to the rights of subsequent pur- chasers or encumbrancers of the land.^ After the crop is severed from the soil, even though not yet removed from the land on which it grew, it is uniformly treated as personal property, and does not pass with a conveyance of the land unless the grantor act in such a manner as to preclude him- self from denying the vendee's right to the crop.* Again, the character of the ownership of the land by him who claims the annual crops may be such as to cause them to be treated as part of his personal property. This is true of such products raised by a tenant for years, at will, or for life, while the tenancy continues;^ and where the holding is for an uncertain period, such as that of a life tenant or tenant at will, the right to cultivate and harvest the crops which are the result of his annual labor ordinarily belongs to the tenant as to such crops which are growing upon the land when -the 1 See Emmerson v. Heelis, 2 Taunt. ' Whipple t' Foote, 2 Johns. (N. Y.) 38 ; Sainsbury w. Mattliews, 4 M. & "W. 418 ; Fry v. Miller, 45 Pa. St. 441 ; Wait 343; West v. Moore, 8 East, 339. v. Baldwin, 60 Jlich. 622. 2 Sexton V. Breese, 13.'5 N. Y. 357, * Dixon v. Niccolls, 39 111. 372; 391; Stall !). Wilbur, 77 N. Y. 158 ; Pat- Hersberg . est v. Willard, 8 Cow. (N. Y.) 206; EUett, 86 U. S. (19 Wall.) 544, .547 ; Beal v. Boston Spring Car Co., 125 Van Ren.sselaer v. Gallup, 5 Deuio Mass. 157; Danireu o. Amer. L. & P. (N. Y.), 454 ; Stover v. Chasse, 6 N. Y. Co., 91 Me. 334 ; Crosby v. Loop, 13 111. Misc. 394 ; Farley /'. Craig, 11 N. J. L. 625 ; Co. Lit. 143 a. 262; Dixon v. NiccoUa, 39 111. 372; 5 Lit. § 225; Co. Lit. 151; 2 Miu. Steed V. Hinson, 76 Ala. 298. Inst. 40; Farley i;. Craig, 15 N. J. L. 8 Ards V. Watkins, Cro. Eliz. 637 ; 192 ; Demarest v. Willard, 8 Cow. Childs V. Clark, 3 Barb. Ch. (N. Y.) 52 ; (N. Y.) 206, 209. Bennett v. Austin, 81 N. Y. 308; PfafE V. Golden, 126 Mass. 402. RENTS. 129 § 107. Discharge, Suspension, and Apportionment of Rent- service. — • Rent-service has always been favored by the com- mon law, both because it was a natural and ordinary incident of tenure between lord and vassal or landlord and tenant and because, by bringing new tenants upon the land, it afforded additional strength and protection to the kingdom. Hence, if any change occur in the number or relation of the parties interested in the land, the rent may be readily extinguished or suspended, in whole or in pg,rt, or apportioned among those who are fairly entitled to participate in its fruits. The causes for its discharge or suspension will be first examined and then its apportionment, both as to persons and as to time, will be considered. § 108. Discharge of Rent-service. — When the tenant has been evicted from all the leased property, that is when he has been put out of possession either by the act of the land- lord or by some one claiming under the landlord or by the owner of a paramount title, the rent is discharged.^ When he has been evicted from a portion only of the property let to him and has retained possession of the residue, the rent is often discharged only pro tanto, while it continues for the part, if any, which he retains. In this case, however, if the partial eviction be due to the wrong or negligence of the land- lord or of those claiming through him, the tenant may stand upon the principle of entirety of contract and insist on a sus- pension of the entire rent so long as he is thus deprived of any portion of the premises.^ In all cases of eviction, the tenant is liable to the payment of the arrears of rent which became due before the eviction, for the obligation continues as long as the consideration.^ ^ Ascoui^h's Case, 9 Co. Rep. 134, evicted, he need not retake pos-session, 135; Smith v. Raleigh, 3 Camp. 513; though it become possible for him to Lawrence i>. French, 25 Wend. (N. Y.) do so. He may, and generally does, let 443 ; Dyett v. Pendleton, 8 Cow. the eviction extinguish the rent. Ibid. (N. Y.) 727; Presby v. Benjamin, 169 2 Smith v. Malings, Cro. Jac. 160; N. Y. 377; Sully v. Schmitt, 147 N. Y. Blair v. Claxton, 18 N. Y. 529 ; Chris- 248 ; Brown v. Holyoke W. P. Co., 152 topher v. Austin, 11 N. Y. 216 ; Edger- Mass. 463 ; Hoeveler v. Flemming, 91 ton v. Page, 20 N. Y. 281 ; Fillebrown Pa. St. 322 ; Cheairs i-. Coats, 77 Miss. v. Hoar, 124 Mass 580 ; Dolton v. Sickel, 846; Warren v. Wagner, 75 Ala. 188; 49 Atl. Rep. 679 (N. J. Snp.) ; Warren Gilbert, Rents, 145. Sometimes this is v. Wagner, 75 Ala. 188; 2 Taylor, spoken of as a suspension of the rent, Landl. & T. 649. because, if the tenant regain his posses- ' Ibid. ; Greenl. Cruise Dig. tit. sion during the term, the rent revives xxviii. ch. iii. § 2 ; O'Brien v. Smith, from that time. But, being once wholly 13 N. Y. Supp. 408; Johnson v. Barg, 130 KINDS OP REAL PEOPEKTT. Again, the landlord may release the rent-service to the tenant, or purchase the term, and thus do away with the rent; or, by purchasing the property out of which the rent issues, the tenant may unite the two ownerships and thus cause the rent to cease. Whenever the rent and the property out of which it proceeds thus come into the same hands, at the same time and in the same right, the rent is said to be extin- guished; ^ and sometimes this result is loosely but inaccurately styled a merger of the rent.^ § 109. Suspension of Rent-service. — Whenever the com- ing together of the rent and the property which produces it is not absolute, but either conditional or for a portion of the estate only, the rent may be merely suspended for a time and not discharged or extinguished. Thus, if the landlord purchase the tenant's interest on condition and the condi- tion be broken so that the term returns to the tenant, or if having leased the land for ten years the landlord buy it back for five years, while he so holds it the rent is suspended but revives again upon the return of the land to the tenant. ^ § 110. Apportionment of Rent-service. — The Common law has always favored the apportionment of rent-service among the different ^ersoms who were at the same time fairly entitled to its proceeds. But it never permitted such division of any instalment of its proceeds between two successive owners of the land from which the rent issued.* Accordingly, when the owner of the reversion of a piece of land, from which rent is issuing as against the tenant, sells it in distinct parcels to two or more persons, each purchaser thereby becomes 8 N. Y. Misc. 307. The effects on rent- acre and thus causes the latter to be service, produced by the different forms merged or swallowed up by the former, of eviction, will be more fully discussed Extinguishment is the absorption of in dealing with the law of landlord and one kind of property by another, and tenant. is illustrated by the destruction of rent 1 Greenl. Cruise Dig. tit. xxviii. ch. in this way when the owner of the rent iii. §§ 5, 6 ; 3 Preston, Conv. 201 ; purchase the land or by the extin- Stephens v. Bridges, 6 Madd. 66 ; Car- guishment of a mortgage when the roll V. Ballance, 26 111. 9. But not, if mortgagee buys np the mortgaged only part of one interest pass to the premises. Bouvier's Law Diet., " Ex- other owner. Martia v. Tobin, 123 tinguishment." Mass. 85. ^ Gilbert, Rents, 1 50 ; Greenl. Cruise - Technically and accurately speak- Dig. tit. xxviii. ch. iii. § 2, n. ; 2 Leake, ing, merger applies only to the absorp- 407; Ingersoll v. Sergeant, 1 Wliart. tion of one estate by another in the (Pa.) 337; Martin v. Tobin, 123 Mass. same property ; as when the owner of 85. an estate in fee simple in au acre of * Greenl. Cruise Dig. tit. xxviii. ch. land buys np a life estate in the same iii. §§ 28-43. RENTS. 131 entitled to a share of the rent proportionate to the piece of land that he buys ; ^ and, if the owner of leased property devise it to several persons, or upon his death intestate it descend to two or more individuals as his heirs, each becomes in like manner the owner of his 'pro rata share of the rent.^ So, when the tenant purchases a part of the land from his land- lord, or otherwise acquires it, or the landlord buys back for his own use a part of the land which he has leased, or such part descends upon or is devised or otherwise passed to him, the rent is in like manner divided and continues to issue ratably only out of that portion of the property which still remains leased.^ A single exception to this principle arises when the services or proceeds of the rent are indivisible, as when, for example, for the use of the land the tenant is to deliver a horse to his landlord on the first day of each and every month. In that case, if the landlord buy back a por- tion of the leased property or distribute his reversion, or let it be distributed by operation of law, among several persons, the rent ceases ; while if the tenant sell and assign separate portions of the land to strangers, the rent is multiplied and the landlord may obtain as many horses each month as he thus has tenants.* These anomalous results may, of course, be prevented by express agreements or arrangements among the parties. On the other hand, rent-service is never apportioned as to time, by the common law; i. e. , it is never divided between successive owners of the reversion so that each can claim a share of an entire payment to be made by the tenant.^ There- fore, when one who owns a rent-service for his life dies dur- ing the period for which the rent is running, as during the quarter, month, or week, and before the instalment of income for that period becomes due and payable, the proceeds are 1 Moodle ». Garnance, 3 Bulst. 153; Bliss v. CoIUds, 8 Barn. & Aid. 876; West V. Lassels, Cro. Eliz, 851 ; Bliss Worthington v. Cooke, 56 Md. 51. V. Collins, 5 Barn. & Aid. 876; Rivis k. * Lit. §222; 1 Inst. 149 a, b; Gil- Watson, 5 M. & W. 255; Ehrmau v. bert, Bents, 165-167; Talbot's Case, Mayer, 57 Md. 612 ; Greenl. Cruise Dig. 8 Co. Rep. 102 b, 104. tit. xxviii. ch. iii. §§ 28-31. See Church ^ Jenner v. Morgan, 1 P. Wms. r. Seeley, 110 N. Y. 457. 392; Clun's Case, 10 Co. Rep. 127 a. 2 Ards 0, Watkins, Cro. Eliz. 637, Unlike interest, such rent is not re- 651 ; Campbell's Case, 1 Roll. Ahr. garded as accruing from day to day, 237; Moody v. Garnon, 3 Bulst. 153; but it all accrues and becomes due on Linton m. Hart, 25 Pa. St. 193. the day fixed for payment. s Lit. § 222; Gilbert, Rents, 125; 132 KINDS OP REAL PROPERTY. never apportioned by the common law for that period; and neither his heirs nor his personal representatives are entitled to any part thereof.-' If under such circumstances the rent cease at his death — ^as when the owner of land for life leases it and dies during the time designated for the lease to run, thus terminating both the lease and the rent — the common law does not permit any one to recover the proceeds for any portion of the period then unexpired and the tenant is accord- ingly released to that extent i'"* while, if the rent continue notwithstanding the life-tenant's death — as when the lease was granted by the owner in fee who subsequently conveyed the reversion to such life-tenant for the latter's life — the instalments of proceeds for the period which was running and unexpired when such life-tenant died, is all given by the common law to the succeeding owner of the rent. ^ This defect in the common law has been removed by statutes in England,* and generally in the United States;^ so that now rent-service is apportionable, both as to persons and as to time ; and, on the death of a life-owner of a reversion, his personal repre- sentatives are thus made entitled to such proportion of the payment for the period in which he died as the time during which he lived in that period bears to that entire period, (a) (a) In New York, the statute 2 Geo. II. ch. 19, § 1.5 was practically copied and enacted in 1788 (2 Jones & Var. 241, § 27), and passed into the Re- vised Laws of 1813 (1 R. L. 143) and into the Revised Statutes of 1830 (1 R. S. 747, § 22). That act, as it is finally worded in the Revision of 1896 (L. 1896, ch. 547, § 192), provides that: "Where a tenant for life, who shall have demised the real property, dies before the first rent day, or between two rent days, his executor or administrator may recover the proportion of rent which accrued to him before his death." It having been held in Marshall v. Moseley, 21 N. Y. 280, that this act, like that of 2 Geo. II. ch. 19, § 15 from which it came, did not correct the difficulty in cases where the leases had been made by persons other than the life- owners, the statute, ch. 542, L. 1875, which is now in substance Code Civ. 1 Last preceding note; Marshall u. sum, and not until the prescribed day Moseley, 21 N. Y. 280 ; Watson v. Penn, of payment, the common law gives it " 108 Ind. 21, 23; Sohier v. Eldredge, (the income) " to him who is the rever- 103 Mass. 345. eioner at the time, and no case can be 2 Jenuer !>. Morgan, 1 P. Wms. 392 ; found where a court of equity has JiT parte Cook, 2 P. Wms. 501 ; Wood adopted a different rule." Marshall v. 0. Partridge, H Mass. 488, 493; Mar- Moseley, 21 N. Y. 280, 282. shall V. Moseley, 21 N. Y. 280, 281. * 2 Geo. XL ch. 19, § 15 ; 4 Wm. IV. 3 Ibid. ; Ex parte Smyth, 1 Swanst. ch. 22 ; 33 & 34 Vict. ch. 35. 337 ; Greenl Cruise Dig. tit. xxviii. ch. ' 1 Stim. Amer. Stat. L. §§ 2027, iii, § 44; Woodfall, Landl. & T. 248. 2028. " Being recoverable only in a single RENTS. 133 § 111. Effects of Destruction of Buildings, or Injury to them. — A destruction of the leased premises or an injury to them, by any cause not traceable to wrong or neglect on the part of the landlord, does not, at common law, have any effect on rent-service.^ This also has been remedied in many states, by statutes ■which enable the tenant to terminate the rent and lease by removing from the premises after the build- ing or buildings have been destroyed without any fault on his part.^ (a) b, c. Bent-charge, Bent-seek. § 112. Rent-charge — Rent-seek — Definitions and Distinc- tions. — It has always been found convenient, as in the rais- Pro. § 2720, swept away all the objectionable features of the common law and made rents wholly apportionable as to time. See also L. 1896, ch. 547, §§ 191, 193. (a) In New York the statute, which was first enacted as L. 1860, ch, 345, and is now L. 1896, ch. 547, § 197, provides that: "Where any building, which is leased or occupied, is destroyed or so injured by the elements, or any other cause as to be untenantable, and unfit for occupancy, and no express agreement to the contrary has been made in writing, the lessee or occupant may, if the destruction or injury occurred without his fault or neglect, quit and surrender possession of the lea.sehold premises, and of the land so leased or occupied ; and he is not liable to pay to the lessor or owner rent for the time subsequent to the surrender." The tenancy ceases with such destruction of the premises, unless the tenant elect to remain and retain possession. Such election may be shown by a continued retention of any part of the pi-emises. Decker v. Morton, 31 App. Div. 469. But merely retaining possession for a short time, in order to remove debris and the carcasses of burned animals, as required by the board of health, will not show an election to remain as tenant. Fleisch- man v. Toplitz, 134 N. Y. 349 ; N. Y. R. E. & B. I. Co. v. Motley, 143 N. Y. 156. See Craig v. Butler, 83 Hun, 286. The landlord can recover all rent due at the time of such destruction. Craig v. Butler, 156 N. Y. 672, affirming 83 Hun, 286 ; Werner v. Padnla, 49 App. Div. 135. The statute means physical destruction, and does not include such unfitness for occu- pancy as is caused by small-pox in the house. Majestic Hotel v. Eyre, 53 App. Div. 273. See also May v. Gillis, 53 N. Y. App. Div. 393. The tenant may waive this statute, by express terms in the lease ; but unless there is a clear waiver the statute will operate. May v. Gillis, 169 N. Y. 330. See Werner v. Padula, 49 N. Y. App. Div. 135."l38, aff'd 167 N. Y. 611. 1 Paradine v. Jane, Aleyn, 26; Gillis, 169 N. Y. 330. And thus also Teller o. Boyle, 132 Pa. St. 56 ; Mur- the tenant is enabled to recover back ray v. Albertson, 50 N. J. L. 167; any part of payments in advance due Greenl. Cruise Dig. tit. xxviii. ch. iii. and made before the destruction of the § 9 ; 1 Taylor, Landl. & T. § 372. building. Werner v. Padula, 49 N. Y. 2 1 Stim. Amer. Stat. L. § 2062; App. Div. 135, 138, aff"d 167 N. Y. Green v. Redding, 92 Cal. 548; May v. 611. 134 KINDS OP EEAL PEOPEBTT. ing of marriage portions and other settlements, for the owner of real property to grant out of it and charge upon it the right to certain periodical payments, while he himself retained his entire original estate in the land upon which such right was charged. The species of incorporeal property thus created resembled rent-service in many respects, and in process of time came to be also denominated rents. They have been called improper rents, by a careful writer, because they are not in return for any land that passes.^ Such charges of regular payments or returns upon realty may be made, how- ever, either by retaining the land and granting the rent, or by granting the land and creating against it and specifically charging upon it a rent in favor of the grantor.^ But such rent, whether made in conveying the land or on retaining it, is created as a distinct and separate entity and is not incident to any reversion. Rent which is incident to a reversion must be rent-service ; and when rent is owned independent of any reversionary interest — held as a distinct thing, not connected with any other right or ownership in the land out of which it issues — it is not rent-service.* When rent is thus specifically charged upon land and not made incident to a reversion, there is never any distress an- nexed to it by the law as of common . right. ^ And, therefore, if the parties desire to have the right to distrain as incident to such rent, they must specifically create and reserve that ^ "The important discrimination to ^ Therefore, in this country, wher- be here made is between rents proper — ever the statute of quia employes is iu that is, rents reserved — on the one force the grantor of an estate in fee side, and rents improper — that is, rents sinrple can not now reserve a rent-sei> granted — on the other. Rents proper, vice to himself, because he can keep no or rents reserved, are rents reserved reversionary interest to which it can be upon a grant of lands. ... A rent incident ; but where that statute has not improper, or rent granted, is where a been adopted such a grantor may retain certain sura is granted, payable period- for himself a rent-service out of the ically, issuing out of the grantor's lands. land. Van Rensselaer v. Chadwick, 22 . . This distinction between rents re- N. Y. 32 ; Delancey v. Piepgras, 138 served and rents granted is incompar- N. Y. 26, 39 ; IngersoU v. Sergeant, 1 ably the most important connected with "Whart. (Pa.) 337; Wallace v. Harn- the subject, and affords a clue which, in stad, 44 Pa. St. 492. See also § 102, general, suffices to guide the student supra. through whatever intricacies ^belong to * Lit. §§ 218, 225-228; 2 Blackst. it." 2 Minn. Inst. 35. Com. p. *42; Cornell v. Lamb, 2 Cow. 2 Langford v. Selmes, 3 Kay & J. (N. Y.) 652, 659; Farley v. Craig, 15 220, 229 ; v. Cooper, 2 Wils. N. J. L. 192. 375 ; Greenl. Cruise Dig. tit. xxviii. eh. i- §§ 6, 7. RENTS. 135 right by their own contract or convention.^ When this is done, the rent so charged on the land is a rent-charge ; other- wise it is a rent-seek."^ Since only corporeal hereditaments can be distrained upon, it is apparent also that rent-charge must be made to issue out of land. Hence, a rent-charge may be defined as the right to a certain profit issuing periodically out of lands (or tenements corporeal), which is not incident to any reversion and to secure which, usually by the terms of the grant and never as of common right, the land is specially charged with a right of distress. And a rent-seek may be described as aright to a certain profit issuing periodically out of lauds or tenements, which is not incident to any reversion and to secure which there is no right of distress. Since these tvvo classes of rents are so nearly identical — differiug only in respect to one kind of remedy, distress — they will be here treated of together. In states like New York, Minnesota, and Wisconsin, where all distress for rent of every kind has been abolished,^ there is no difference whatever between them; or, more accurately speaking, rent-charge no longer exists in such states, and only rent-seek and rent-service remain. These two species of rent are sometimes spoken of together as fee-farm rents. They are substantially such, when made to continue in perpetuity. But the term fee-farm rent was used in a somewhat different sense in the early common law (to denote a rent-service reserved on a conveyance in fee) ; and it is also essentially misleading as intended to embrace all rents-charge and rents-seek, for in these rents interests less than fees may be readily created.* § 113. General Characteristics of Rent-charge and Rent-seek. — These rents are never incident to any reversion. They stand out distinct from the lands or tenements out of which they issue and may be dealt with as separate entities. Hence the statute of quia emptores did not in any way interfere with the granting or reserving of them in fee simple. They do not 1 Last preceding note. Bythestatute ^ 1 Stim. Amer. Stat. L. § 2031; 4 Geo. II. ch. 28, § .'), the right of dis- § 104, supra. tre.ss was given in England for all rents. * " A non-tenorial rent often comes See § 104, supra. into being by virtue of a grant. The 2 2 Blackst. Com. p *42; Cornell «. holder of land imposes such a rent upon Lamb, 2 Cow. (N. Y.) 652, 659. Rent- his land in favor of some other person, seek means dry rent, redditus siccus — It may be a rent for life or a rent in not having the sap of distress. fee." 2 Poll. & Mait. Hist. Eng. L. {2^ ed.) p. 130. 136 KINDS OP REAL PEOPERTY. presuppose any tenure or fealty between the owner of the land and the owner of the rent; and so they may exist in the same forms and with the same effects where the feudal system has been abolished as in those countries where the theory or prac- tice of that system still remains. ^ (a) They and all their incidents are, in fine, the result of express contract or cove- nant between the parties ; and, except in so far as statutes have interfered with them, they always have been and still are just what the parties to the covenants have made them by the words which they have employed. Rents of this character are not verj common in the United States ; but the reasons which have caused them to be extensively used in England,^ (a) The operation of the feudal system on the manor lands of New York and the general way in which rent was reserved and retained in connection ■with the manors are explained hereafter. Note at end of Ch. XVII. There has been much discussion, as to the nature of the rents which that manorial system employed, and as to the remedies and rights connected with those rents. The lands were let out in fee, by the owners (many of whom were called patroons) who held under the king, and perpetual rents were reserved to such owners. These were rents-service; because, although the statute of quia emptores has always operated in New York, yet it was impliedly waived by the king in favor of these perpetual leases. Van Rensselaer V. Hayes, 19 N. Y. 68, 71 ; Delancey v. Piepgras, 138 N. Y. 26, 39. The abolition of all tenure (in 1830) made such rents in snbstance rents-charge (at least as to all such rents subsequently created); and when distress was taken away (in 184G) they became rents-seek. But it has been clearly held, at first by virtue of the statute, L. 1805, ch. 98, and, after the repeal of that act in so far as it affected such leases in fee (L. 1860, ch. 396), as a principle which had always existed independent of statute, that these per- petual rents run with the land and bind the heirs and assigns of the orig- inal covenantors and can be enforced against them in substantially the same manner as other rents. Van Rensselaer v. Read, 26 N. Y. 558, 564: ; Cent. Bk. v. Heydorn, 48 N. Y. 260; Hunter v Hunter, 17 Barb. 25; Delancey v. Piepgras, 138 N. Y. 26; note at end of Ch. XYII., tn/ra. The non-payment of rent under any such lease, for twenty years, is now made presumptive evidence of a release of the rents and reversions to the owner of the fee. See L. 1900, ch. 227, which also provides for a procedure for the establishment of such a release. 1 They are " non-tenorial." " The nou-tenorial rent can be exacted by dis- tenorial rent was a redditus: to use a tress, it is a rent-charge ; if not, it is a term which comes into use somewhat rent-seek, redditus siccus, or drv rent." late in the' day, it was 'rent-service.' 2 Poll. & Mait. Hist. Eng. L. {2d ed.) But tliere were other rents; we may p. 129. call them ' nou-tenorial,' there being no " For recent instances of them in technical term which covers them all, England, see Pertwee v, Townseiid These non-tenorial rents fell into two (1896), 2 Q. B, 129; Charity Cora'rs v. classes, for each of which in course of Green (1896), 2 Ch. 811; Blackburne time lawyers invent a name. If th^ u. Hope-Edwardes (1901), 1 Ch. 419. RENTS. 137 such as marriage settlements, settlements in lieu of dower and the raising of portions for children, may operate here; and, with the exception of some restrictions upon the forms of remedy, there is nothing in our law inconsistent with their more general use. (a) § 114. Remedies for enforcing Hent-charge and Rent-seek and recovering their Fruits or Proceeds. — ■ Since the Common law connects no distress, as of common right, with these rents, if the owner desire to have this remedy he must ex- pressly reserve it by his contract; and, as has been before said, if he do so, the rent is thereby made rent-charge. In England, this remedy as matter of right, has been extended by several statutes to what were formerly rents-seek and also to rents-charge.^ The same has been done in some of the states of this country ; while in others, as was above pointed out, all distress for rent of every kind has been abolished. ^ Whether any right of distress exist or not, he to whom the payment of the profits is due may have an action at law to recover the same from the holder of the property out of which they are payable. He may also generally, by virtue of the contract itself, enter upon the premises and either defeat the title of the holder thereof as for breach of condition, or hold the property until its income pays the amount due.^ The latter is the remedy most commonly provided for in the con- tract.* The form of action, when one is brought, and the (a) The Constitution of New York (1894), Art. I. § 13, provides that, " No lease or grant of agricultural land, for a longer period than twelve years, in which shall be reserved any rent or services of any kind, shall be valid." See Mass. Nat. Bk. v. Shinn, 163 N. Y. 360; Stephens v. Rey- nolds, 6 N. Y. 454; Parsell u. Stryker, 41 N. Y. 430; Clark v. Barnes, 76 N. Y. 301; Parish v. Rogers, 20 N. Y. App. Div. 279. But there is no prohibition against the making of a perpetual rent-seek, issuing out of other kinds of real property. Hawley v. James, 19 Wend. 61, 154 ; Hunter V. Hunter, 17 Barb. 25; Van Rensselaer v. Platner, 2 Johns. Cas. 24; Van Rensiselaer v. Dennisson, 35 N. Y. 393; Cent. Bk. v. Heydorn, 48 N. Y. 260; Bradt v. Church, 110 N. Y. 537; Church v. Shultes, 4 N. Y. App. Div. 378; Church v. Wright, 4 N. Y. App. Div. 312. 1 .32 Hen. VIII. eh. 37 ; 8 Ann. ch. §§ 70-72. If he be unable to enter 14; 4 Geo. II. ch. 28; 11 Geo. II. ch. 19; peaceably, he may have ejectment. 57 Geo. III. ch. .'i2. See Blackburne w. * Ibid. In some of the United States, Hcpe-Edwardes (1901), 1 Ch. 419. the right of re-entry for-non-paynieut of 2 § 104, supra. rent is given by statute, and so exists s Jemmott i;. Cooley, 1 Lev. 170; independent of any agreement by the Greenl. Cruise Dig. tit. xxviii. ch. i. parties. 1 Stim. Amer. Stat. L. § 2054. 138 KINDS OP REAL PEOPERTT. extent of the right of entry and its effects depend upon the terms of the instrument by which the rent was created, and may also be much affected by the forms of procedure pre- scribed by the codes of the states in which the lands are situ- ated. And the methods of procedure are generally made by the codes substantially the same for all kinds of rent.^ § 115. Reservation of Heat-charge and Rent -seek — Assign- ment of them, and Transfer of the Property out of -which they issue. —The reservation of either of these forms of rent must be to one of the parties to the contract by which it is created, and not to a stranger. The payments of the proceeds are to be either to the person designated in the contract as entitled to them or to his assignee. For such rent may be freely assigned, either in whole or in part, as a distinct and inde- pendent form of property; and if the land out of which it issues be sold the purchaser takes it subject to the rent.^ A distinction has been attempted here between a rent re- served and one granted, to the effect that in case of the latter the grantee of the land out of which it was granted should not be charged with the covenant to pay the rent.^ But, in the leading case of Van Rensselaer v. Hayes,* Denio, J. insists that the law was never so and quotes with approval the following statement of Sir Edward Sugden: "Covenants ought to be held to run in both directions, with the rent or interest carved out of or charged upon it," (the land) "in the hands of the assignee, so as to enable him to sue upon them, and with the land itself in the hands of the assignee, so as to render him liable to be sued upon them." And Judge Denio continues: "There seems to be no distinction favorable to the defendant between a perpetual rent-charge granted by the owner of the estate and a like rent reserved in fee by inden- ture, where the grantee covenants for himself and his assigns to pay it." And the law may now safely be said to be that, whether the rent-charge or rent-seek be granted or reserved, the assignee of the rent may recover its proceeds in a proper 1 See these explained, § 104, supra. the English authorities are the other 2 Scott V. Lunt, 32 U. S. (7 Pet ) way. See Milues v. Branch, 5 M. & S. 596; Van liensselaer v. Read, 26 N. Y. 411 ; Brewster v. Kidgill, 12 Mod. 166; 558 ; Van Rensselaer v. Dennisou, 35 Randall v. Rigby, 4 M. & W. 130 ; N. Y. 393 ; Cooli u. Brightly, 46 Pa. St. Spencer's Case, 1 Smith's L. C. p. * 68, 439 ; Hannen c. Ewalt," 18 Pa. St. 9 ; notes. McMurphy v. Minot, 4 N. H. 251 ; Sug- 8 Brewster v. Kitchin, 1 Ld. Raym. den, Vend. & P. {13th ed.) p. 483; 1 317,322. Taylor, Landl. & T. § 261. Some of * 19 N. Y. 68, 90, 91. RENTS. 139 action, and the grantee of the land becomes bound to pay them.^ § 116. Discharge, Suspension, and Apportionment of Rent- charge and Rent-seek. — - Changes in the relations or interests of the parties concerned are much more apt to cause the dis- charge or extinguishment of rents-charge and rents-seek, than to result merely in their suspension or apportionment. This is because such rents were "against common right," and were looked upon with disfavor by the common law.^ § 117. Discharge of Rent-charge and Rent-seek. — It is accordingly settled that, if the owner of either of these rents purchase the whole or any fart of the land or tenement out of which it issues, the rent is entirely extinguished. It is regarded as an entire thing, issuing out of every part of the land, and so is not apportioned.^ So, if the owner of the rent release any fart of the land from its burden, the whole rent is extinct.* But these results may be prevented by express or necessarily implied agreements of the parties, entered into at the time of the conveyance or release. Thus, when the owner of the rent purchases a portion of the land, it may be validly stipulated in the deed that the rent shall remain upon the residue ; and, when he releases a part of the land from the burden, the rest may be expressly charged in the deed of release.^ Such new contracts are usually treated, however, as creating new rents, after the discharge of the old, rather than as preserving any of the old or former rents. And the result is that the new burdens thus imposed upon the property are subordinate to all existing encumbrances which have attached to it since the creation of the original rents. ^ 1 Last three preceiiing notes ; Wil- service, which is freely apportionable liams's App., 47 Pa. St. 283, 290; 2 as to persons, or amount. See § 110, Wash. R. P. (6th ed) §§ 1200-1211. su-pra. In England, the statute 22 & 2.3 2 Greeul. Cruise Dig. tit. xxviii. eh. Vict. ch. 3.5, § 10, now makes all of these i §§ 6. -^i ch. iii, §§ 16-19. rents apportionable when the owner of i* Dennett v. Pass, 1 Biug. N. C. 388 ; the rent releases a part of the land. Van Rensselaer v. Chadwick, 22 N. Y. 5 And the owner of the land may so 32, 33; Horner v. Dellinger, 18 Fed. deal with the other parties as impliedly Rep. 495 ; Ehrman v. Mayer, 57 Md. to show his acquiescence in the appor- 612; 1 Co. Inst. 147 b; Gilbert, Rents, tionment. Church y. Seeley, 110 N. Y. 152. 457; Farley v. Craig, 15 N. J. L. 192, * Van Rensselaer v. Cliadwick, 22 262; 1 Co. Inst. 147 b. N. Y. 32.34; 1 Co. Inst. 148 a; 18Vi'n. 6 i Co. Inst. 147 b; Greenl. Cruise Abr. 504; 3 Vin. Abr. 10, 11. Notice Dig. tit. xxviii. ch. iii §§ 20, 21 ; Van the radical difference, in these respects, Rensselaer . & F. Co., 75 * See Hay v. Knauth, 36 N. Y. App. N. Y. App. Div. 513 ; Matter of Mayor Div. 612. (Leggett Ave.), 80 N. Y. App. Div. 618, 620. EASEMENTS. KINDS. HOW CREATED. 163 § 134. Express Grant of Easements as Appurtenances to Land. — When an easement has become appurtenant to a parcel of land, it usually passes with a conveyance of that lanrl, whether mentioned in any covenant or condition or other part of the deed or not, and whether or not it is necessary to the enjoyment of the corporeal property by the grantee.^ If, then, in transferring the land, it be desired to separate and reserve from it an easement which has once become appurte- nant thereto, this must be done by the use of explicit and unmistakable terms. Where one owning a lot fronting on a public street bought other land in the rear adjoining that which he already possessed, which land so purchased had appurtenant to it a right of way over a private alley, he was not bound to relieve the alley from the easement existing on it and impose the burden upon the land already owned by him in the front. ^ When a way is appurtenant to land a part of which is conveyed to another, the right of way will exist in favor of each of the parts into which the original parcel is thus divided.^ But, although this is the broad form in which the law is usually stated, the principle must be taken with the modification that the burden on the servient tenement shall not be thereby made any greater than was originally intended. If, for example, the owner of a large field used for agricultural purposes should grant a small piece of it to another and reserve a right of way over the piece so granted, for the benefit of his remaining field, he could not then sell the field off into building lots and thus burden the way so reserved so that the owners of all the lots should be entitled to its enjoyment.* Only incorporeal hereditaments can pass as appurtenant to land. "A thing corporeal can not properly be appurtenant to a thing corporeal, nor a thing incorporeal to a thing in- 1 Newman v. Nellis, 97 N. Y. 285 ; demise, the way goes with the land. Webster ;;. Stevens, 5 Duer (N. Y.), 682 ; Skull v. Glenister, 16 C. B. N. s. 81, 90. Huntington v. Asher, 96 N. Y. 604 ; Kent ' Underwood v. Carney, 1 Cush. V. Waite, 10 Pick. (Mass.) 138; Under- (Mass.) 285, 290; Watson c. Bioren, wood V. Carney, 1 Cush. (Mass.) 285 ; 1 S. & R. (Pa.) 227 ; Whitney v. Lee, George v. Cox, lU Mass. 382 ; Dority 1 Allen (Mass.), 198. V. Dunning, 78 Me. 381 ; Pettingill v. * Allan v. Gomme, 11 Ad. & E. Porter, 8 Allen (Mass.), 1. 759 ; South Metr. Cemetery v. Eden, 16 2 Zell V. First Universalist Society, C. B. 42 ; Henning v. Burnet, 8 Exch. 119 Pa. St. 390. When a right of 187. See Lewis t). Carstairs, 6 Whart. way is appurtenant to a piece of land (Pa.) 193. which is passed to a lessee by an oral 164 KINDS OP EEAL PEOPBRTT. corporeal. "1 Whenever one piece of land passes in con- nection with the grant of another, it may be said to pass as ^'■parcel" but never by the use of the word "appurtenance;" and it is equally true that land can not pass as appurtenant to an incorporeal right, nor one incorporeal hereditament as appurtenant to another. ^ b. Easements created lij Reservation in Deeds of Land. § 135. Reservation. — In the deed by which land is con- veyed, an easement may be created and reserved for the bene- fit of the grantor. This is illustrated by a case in which a grantor of land, bounded upon a stream of water, reserved to himself, by his deed, a privilege in the stream, for the benefit of his mill and the land under and around it which he re- tained.^ And where one, conveying a portion of his land, stated in the deed that he retained for himself a bridle path in front of his house and across the piece transferred, this was held to create an easement of a right of way by reservation.^ § 136. Reservation distinguished from Exception. — A reser- vation of an easement or other servitude by deed always results in the creation of something new, — i. e. something which did not before exist as an easement or servitude, — and in retaining it as an item of property belonging to the grantor. Being thus brought into existence, as property, by the deed itself, it must always be incorporeal. Thus, if A sell the westerly half of his farm to B, and in the deed reserve to himself over that half a right to pass from a highway to the easterly half of the farm, which A retains for himself, the way is a new piece of property, made by A's deed and owned by him as an easement created by reservation; for while, as owner of the entire farm, A had possessed the right to go over the westerly half as he pleased, yet he did not own that right as an easement until such westerly half became the 1 Co. Lit. 121 b. " Pettee v. Haives, 13 Pick. (Mass.) 2 Co. Lit. 121b, 122 a; Harris u. 323; Phoeuix Ins. Co. v-. Continental Elliott, 10 Pet. (U. S.) 25, 54; Invest- Ins. Co., 87 N. Y. 400. ment Co. u. 0. & N. R. Co., 41 Fed. * Beau v. French, 140 Mass. 229 ; Rep. 378 ; Griifiths v. Morrison, 106 Mayo v. Newhoff, 47 N. J. Eq. 31 ; Tab- N. Y. 165; Jackson v. Hathaw.ay, 15 batt v. Grant, 94 Me. 371 ; Andrews u. Johns. (N. Y.) 447 ; Leonard v. Wliite, Nat. Sug,ar Eef. Co., 72 N. Y. App. 7 Mass. 6 ; Donnell u. Humphreys, 1 Div. 551. Mont. 518, 525. EASEMENTS. KINDS. HOW CREATED. 165 property of B, because a man can not have an easement over his own land. On the other hand, an exception — or thing excepted — in a deed is something, whether corporeal or incorporeal, not created by the terms of the deed, but already in existence and expressly kept out from the operation of the grant and not allowed to pass under the deed. For example, if an owner of a farm convey it all, except the house thereon and the land under it and around it as a garden, or except a right of way, or right of flowage owned by him and appurtenant to the land transferred, such property retained is a proper exception and not a reservation. ^ It follows, as a matter of course, that easements may be created by reservations, but never by exceptions, since excep- tions properly so called deal only with property rights already in existence. But the courts look at the substance and inten- tion of a deed, rather than at its mere form; and so, fre- quently, the words employed are construed as creating an easement by reservation, although the property is spoken of as an exception, because it appears that the intention of the parties is to create something new and retain it for the grantor; while the word "reserving" or "reservation" is often held to refer only to a thing in existence, and not to be intended to raise incorporeal rights by reservation, because from an examination of the entire deed and the surrounding circumstances such appears to be its fair construction. ^ Accordingly, where the grantor of a tract of land stated in the deed that he reserved for himself "the wood and underground produce of the estate," his statement was held to refer to an exception rather than to a reservation.^ And a deed which conveyed a city lot by metes and bounds, ^^ excepting and reserving therefrom a strip of land ten feet wide . . . across the rear or inner end . . . for an alley," was construed as passing to the grantee all the corporeal property mentioned, and reserving to the grantor an easement of an alleyway over the strip.* 1 Boist V. Empie, 5 N. Y. 3.3 ; 464 ; Chicago, Rock Isl. & P. R. Co. c. Myers v. Bell Telephone Co., 83 N. Y. D. & R. G. R. Co., 143 0. S. 596. App. Div. 623 ; Winthrop i\ Fairbanks, ^ Doe d. Douglas v. Lock, 4 Nev. & 41 Me. 307 ; Smith v. Ladd, 41 Me. 314. M. 807, where the distinctions between 2 Wood i. Boyd, 145 Mass. 176 ; exceptions and reservations are ex- White u. N. Y. & N. E. R. Co., 156 amined at length by Lord Chief Justice Mass. 181 ; Whitaker ;>. Brown, 46 Pa. Denman. St. 197 ; Haggerty «. Lee, 50 N. J. Eq. * Winston v. Johnson, 42 Minn. 398. 166 KINDS OF REAL PROPERTY. § 137. Requisites of Reservations of Easements. — A reser- vation of an easement must always be to the grantor, and not to a stranger. If, for example, the grantor of an estate to A reserve a right of way over the land for B, a third person who is not a party to the deed, this gives nothing to B which he did not own before. If B already owned a way over the land, the effect of such a statement in the deed would be simply to save the grantor from any liability which might arise upon the covenants in his deed because of the existence of such easement. 1 Again, as a general rule, the reservation must be out of the estate granted, and not out of other property. But " in some peculiar cases such a reservation may operate in the nature of a grant from the grantee, to charge upon other premises the burden of contributing the means of enjoying what is thus reserved."^ When, however, the grantee makes such a charge upon another estate, — and that other estate must evidently be other property of his own, — he is simply, in the one deed between him and the grantor, conveying something to the grantor, not strictly by way of reservation, since it is not reserved out of that with which the grantor parts, but as a separate and distinct covenant or contract incorporated into the deed by which the grantor conveys to him the land.^ Lastly, a reservation being equivalent to a grant, and in fact a form of grant, the strict rule of law requires that there shall be proper words of limitation and inheritance — the use of the word " heirs " in some collocation — if the grantor intend the right to extend beyond his own life.* This is simply an application of the common-law principle, which, with a few exceptions, requires the use of the word "heirs " in order to the creation or conveyance of an estate in fee 1 Hill V. Lord, 48 Me. 83, 95 ; Q. B. n. 9. 940, 967 ; Claflin v. B. & A. Bridger «. Pierson, 45 N. Y. 601, 603; R. Co. 157 Mass. 489; Ashcroft v. West Point Iron Co. v. Reymert, 45 Eastern R. Co., 126 Mass. 196 ; Bean u. N. Y. 703. ' French, 140 Mass. 229 ; Jamaica Pond 2 3 Wash. R. P. p. * 646. Aqueduct Co. v. Chandler, 9 Allen Holms V. Seller, 3 Lev. 305 ; Gi- (Mass.), 1 59 ; Curtis u. Gardner, 13 bert V. Peteler, 38 Barb. (N. Y.) 488, Met. (Mass.) 457 ; Hornbeck u. West- 514; Dyer v. Sandford, 9 Met. (Mass.) brook, 9 Johns. (N. Y.) 73. See Baker 395 ; Randall v. Latham, 36 Conn. 48, v. Mott, 78 Hun (N. Y.), 141 ; Railroad 53; Emerson «. Mooney, 50 N. H. 315 ; Co. v. Malott, 135 Ind. U3; Walz u. Haggarty v. Lee, 54 N. J. L. 580. Walz, 101 Mich. 167. * Durham & S. R. Co. v. Walker, 2 EASEMENTS. KINDS. HOW CREATED. 167 simple by deed. But, with regard to easements and servi- tudes created by reservation, the modern cases on both sides of the Atlantic have relaxed this strict, technical rule, and now seek to determine the extent of the right by getting at the intention of the parties to the instrument. In doing this, a clear distinction is drawn between the reservation of a com- mon-law easement and that of the form of servitude which is called an easement in gross. The latter, being personal in its nature and not connected with any lands belonging to its owner, is conclusively presumed to have been intended to last for his life only, unless it is reserved to him and his heirs. But when the right retained is a common-law easement, and therefore appurtenant to land of the grantor, the presumption, in the absence of words or circumstances to show the con- trary, is that it is meant to be a permanent accession and benefit to that land.^ As is explained above,^ the question whether the privilege reserved is an easement in gross, — a mere personal right, — or is to be construed as appurtenant to some other estate, "must be determined by the fair inter- pretation of the grant or reservation creating the easement, aided, if necessary, by the situation of the property and the surrounding circumstances." ^ c. Easements created hy Implied Grant or Reservation. § 138. Implied Grant or Reservation — Illustrations — Forms. — The subject of easements arising by implication of law presents a broad field of inquiry. Whenever such rights are called into existence, in favor of either grantor or grantee, in the absence of words which can be construed as directly creating them, but for the purpose of enabling the owner of land properly to use and enjoy that which has been conveyed to him, or retained by him when he conveyed other land, they are easements created by implied grant ;^ and in many in- 1 Coudert «. Sayre, 46 N. J. Eq. 386, (Mass.), 359, 365; Kueckeu v. Voltz, 395 ; Hagerty v. Lee, 54 N. J. L. 580 Cooper V. Louansteia, 37 N. J. Eq. 284 Newhofe V. Mayo, 48 N. J. Eq. 619 Bowen v. Conner, 6 Cush. (Mass.) 132 Mendell v. Delano, 7 Met. (Mass.) 176 Winthrop v. Fairbanks, 41 Me. 307 Karmuller u. Krotz, 18 Iowa, 352 110 111. 264. 2 § 128, supra. ' Peck V. Conway, 119 Mass. 546 549. * New Ipswich Factory v. Bachelder, 3 N. H. 190 ; Outerbridge v. Phelps, 13 Abb. N. C. (N. Y.) 117, 125; Taylor v. Whitney v. Union R. Co., 1 1 Gray Boulware, 35 La. An. 469 ; Jones, Ease. § 141. 168 KINDS OF REAL PROPERTY. stances such rights and duties are brought into existence and enforced so as to work out justice between parties between whom the relation of grantor and grantee does not exist, or as to whom there is no privity, ^ nor any other contractual relation. When, for example, a person has erected a mill, and for its use cut an artificial raceway through his own land, and then sells the mill, retaining the land through which the raceway passes, the right to use such waterway in connection with the mill granted continues annexed by implication to the mill as necessary to its beneficial use and enjoyment. Again, if the owner of a tract of land sell a portion of it entirely surrounded by that which he keeps, or a portion which entirely surrounds the part retained by himself, a way of necessity is at once implied in favor of the piece of land which is so enclosed. And purchasei-s of neighboring city lots, all from the same source of title, who take their deeds with uniform restrictive covenants therein restraining them from using their land in ways in which they might otherwise employ it, ordinarily have in a court of equity, raised by implication for the purpose of working out justice among them, the right to enjoin and prevent one another from breaking or violating such restrictive covenants. Numerous as are the cases such as these which the reports present, they may be grouped into three general classes, which are typified by the three illustra- tions just given. These three modes of creating easements by implied grant or reservation are : (a) By severance of an entire fiete of property and conveyance of a part thereof, of which method the first of the above illustrations is an in- stance; (b) By creating ways of necessity, of which the second illustration is an example; and (c) By raising equi- talle easements, or servitudes, which are typified by the last of the above illustrations. By each of these modes of implied grant or reservation are brought into existence many varieties of easements, which are next to be examined in the order here indicated. § 139. (a) Basements arising by Implication from the Sev- erance of an Entire Piece of Property and Conveyance of a Part thereof. — Accurately speaking, a person can not have an ease- ment over his own land. If he burden a portion or tract of 1 Privity is " mutual or successive grantee, ancestor and heir, or ownere in relationship to the same rights of prop- common of land ; but not, of course, erty." 1 Greenl. Ev. §§ 180,523. There between mere neighbors, is such relationship between grantor and EASEMENTS. KINDS. HOW CREATED. 169 it in favor of another tract or portion, as by draining one piece over the other, or by building a house upon one part in such a manner that it is supported by the other part, he creates what would he an easement if the owner of one parcel of land had a right to enjoy it over the land of another ; but it is at most only what some writers call a qiMsi easement so long as both tenements belong to the same proprietor.^ If, with things in this condition, the two parts come into the hands of different persons, either by the owner's selling or otherwise transferring the piece which enjoys the right and retaining that upon which- the burden rests, or by his con- veying the servient parcel and keeping the dominant, an easement may be brought into existence, and such will usually be the result. One leading principle, upon which rests the creation of easements in this manner, is that the parties to the transfer are presumed to act with reference to the actual, visible, and known condition of the properties at the time, and to intend that the benefits and burdens manifestly be- longing to each part of the entire tract shall remain un- changed.2 And the other principle, which has caused a wide distinction to be made in this connection between implied grants and implied reservations of easements, is that a grant is to be construed most strongly against the grantor and in favor of the grantee.^ It is this last principle that compels us to consider the class of easement now before us under two subheads ; namely, those created by implied grant and those created by implied reservation. § 140. Easements created by Implied GBANT, upon Severance of Entire Tract of Land. — The law is uniform, in England and throughout the United States, that, upon a severance of 1 Such an adaptation of his property v. Cloonan, 81 N. Y. 557 ; O'Rorlie u. or properties by the same owner, so Smith, 11 E. 1.259; Brazier v. Glass- that one part shall enjoy a right or pool (1901), W. N. Cas. 237. privilege to the detriment or burdening When the incidents or quasi ease- of another, corresponds to what in the ments are open and visible, knowledge French law is called destination du pere of their existence is inferred as to defamille. Pardessus, Traite des Servi- both grantor and grantee. Simmons v. tudes, 430, 431 ; Code Nap. art. 642 ; Cloonan, 81 N. Y. 557 ; United States La. Civ. Code, art. 763; Seymour v. v. Appleton, 1 Sumn. (U, S.) 492. Lewis, 13 N. J. Eq. 439, 443. See Gale ^ Russell v. Watts, L. R. 25 Ch. Div. & What. Ease. 50-52 ; Goodall v. God- 559, 572 ; Wells v. Garbutt, 132 N. Y. frey, 53 Vt. 219. 430; Sullivan v. Ryan, 130 Mass. 116 2 Lampman v. Milks, 21 N. Y. 505 ; Toothe v. Bryce, 50 N. J. Eq. 589 Paine v. Chandler, 134 N. Y. 385 ; Cur- Warren v. Blake, 54 Me. 276, 289 tiss V. Ayrault, 47 N. Y. 73 ; Simmons Burns v. Gallagher, 62 Md. 462. 170 KINDS OP REAL PROPERTY. an entire tract of land by its owner and the transfer of the dominant portion, an easement arises in favor of the grantee in all those apparent and reasonably necessary appendages with which the land retained by the grantor has been encum- bered in favor of that conveyed.^ Or, as stated by the New York Court of Appeals, per O'Brien, J., " When the owner of a tract of land conveys a distinct part of it to another, he impliedly grants all those apparent and visible easements which at the time of the grant were in use by the owner for the benefit of the part so granted, and which are essential to a reasonable use and enjoyment of the estate conveyed. The rule is not limited to continuous easements or to cases where the use is absolutely necessary to the enjoyment of the thing granted. It applies to those artificial arrangements which openly exist at the time of the sale, and materially affect the value of the thing granted. " ^ Nor is it necessary that that which is thus claimed as an easement shall be in actual use at the time when the grant is made. It is sufficient that it is open, visible, and reasonably necessary, and that the grantor has knowledge of its existence. The grantee is then pre- sumed to contract with reference to it and to intend to acquire it as a part of his purchase. In the case of Spencer V. Kilmer,^ from which the above-quoted language of the New York Court of Appeals is taken, the lessor of a parcel of land, upon which, pursuant to the requirements of the lease, the lessee had built fish ponds and then had laid conduits from the ponds to springs on adjoining land of the lessor not em- braced in the lease, sold the property upon which the fish ponds were thus constructed for him " with the appurten- ances," and retained title to the property where were the springs. At the time of the sale, some of the conduits were not in actual use ; but all of them were there visible and ready to be used at any time, and the springs on the land of the grantor were the only reasonably available source of supply of water for the fish ponds. It was held that the right to 1 Wheeldon v. Burrows, L. R. 12 Minot, 158 Mass. 577 ; Janes r. Jenkins, Ch. Div. 31 ; Brazier v. Glasspool (1901), 34 Md. 1 ; Ingals v. Plamondon, 75 111. W. N. Cas. 237; Lampman v. Milks, 118. 21 N. Y. 505; Spencer v. Kilmer, 151 ^ Spencer v. Kilmer, 151 N. Y. 390, N. Y. 390. Also Katz v. Kaiser, 154 398. Also Snow v. Pulitzer, 142 N. Y. N. Y. 294, 298 ; Wilson v. Wiglitman, 263 ; Whalen v. Manchester Land Co., 36 N. Y. App. Div. 41 ; Toothe v. 65 N. J. L. 206. Bryce, 50 N. J. Eq. 589 ; Jolinson s 151 N. Y. 390. u. Jordan, 2 Met. (Mass.) 234; Case o. EASEMENTS. KINDS. HOW CREATED. 171 conduct the water from the springs to the ponds, through the pipes thus laid, passed with the deed to the grantee. The ponds having been built for the grantor and with his knowl- edge, he was bound by the same rule as if he had placed them there himself. O'Brien, J., said further: "The thing which the defendant [the grantor] granted was the lot with the fish pond then in use, constituting a very important element in the value of the property. The principal appliances for maintaining it by supplying the water were open and visible, and the defendant knew that there was no reasonable way to maintain it without them. " So, where the owner of two lots of land built on one of them a house, the cornice of which projected over the other lot, and then sold the house and the land on which it stood, it was held that neither he nor those who succeeded to his title to the vacant lot could prevent the grantee of the house from maintaining the cornice as thus constructed.^ Such easements are not implied, however, when co-owners of land partition it by conveying at the same time separate pieces to each other, ^ nor when one owner of land divides it into separate parcels which he sells to different purchasers by one and the same transaction, unless it appear from the circumstances that such rights already in existence were intended to continue as easements.^ In these cases the courts more readily presume that each owner was intended to take his parcel in severalty, free and clear of any rights in the others; and, therefore, if easements are to arise from such a severance of an entire estate, they must be expressly granted or reserved, or their continuance must be a strict necessity, or the intent to bring them into existence must be otherwise clearly manifested.* 1 Grace M. E. Church v. Dobbins, Cotton said : " It really is not a reserva- 153 Pa. St. 294. See Nichols v. Cham- tion, but in order to malce all those berlain, Cro. Jac. 121. grants which are looked upon as one 2 Whyte V. Builders' League, 164 transaction available and effectual, it is N. Y. 429. considered that each of the grantees is ^ Kussell V, Watts, L. K. 25 Ch. Div. to be looked upon as taking from the 559 ; Johnson v. Jordan, 2 Met. (Mass.) grantor, while he has still the power to 234 ; Warren v. Blake, 54 Me. 276 ; give it, what it is right that he should Huttemeier v. Albro, 18 N. Y. 48, 51 ; get; so that there is an implicit grant Ellis V. Bassett, 128 lud. 118; Goodall against all the other grantees of those V. Godfrey, 53 Vt. 219; Mason v. Hor- easements which will be reasonably ton, 67 Vt. 266; Burwell v. Hobson, 12 necessary for tlie property which is con- Gratt. (Va.) 322. veyed." Eussell v. Watts, L.R. 25 Ch. * Referring to an easement created Div. 559, 573. Also Blakely v. Sharp, by the simultaneous sales of several 10 N. J. Eq. 206; Mitchell u. Seipel, 53 lota by the same grantor, Lord Justice Md. 251. 172 KINDS OP EEAL PROPERTY. In order that an easement may arise by implied grant, it must be of value to the estate conveyed, and the grantee must be presumed to have taken it into consideration and paid for it in connection with his purchase. ^ It must also be ^'■rea- sonably " ^ (though not absolutely) " necessary " to the use and enjoyment of that which is expressly granted. By this is said to be meant that, "if without alteration involving labor and expense, the convenience is fit and proper for the use of the property as it exists at the time of the conveyance, or so necessary in that sense, the easement passes."^ "The law gives a reasonable intendment in all such cases to the grant, and passes with the property all those easements and privi- leges which at the time belong to it and are in use as appur- tenances. " * It must, moreover, be open and a])'parent, i. e. there must be some visible sign or mark, by which a person who was examining the entire property with reasonable care could discover that one portion of it was burdened in favor of another.^ Such are party-wall rights,^ an open ditch or canal, ^ visible pipes used for conduits or aqueducts,^ and the like. 9 1 Paine v. Chandler, 134 N. Y. 385; Curtiss V. Ayrault, 47 N. Y. 73 ; Sim- mons V. Cloonan, 81 N. Y. 557, 566; O'Rorke v. Smith, 11 R. I. 259; Henry v. Koch, 80 N. Y. 391. "On the other hand, the presumption that the parties contract with reference to the visible condition of the property at the time may be repelled by actual knowledge on the part of the contract- ing parties of facts, which negative any deduction to be drawn from the appar- ent condition." Jones, Ease. § 126 ; Simmons u. Cloonan, 81 N. Y. 557 ; United States v. Appletou, I Sumn. (U. S.) 492. 2 Not absolutely necessary, but rea- sonably requisite. McElroy a, Mc- Leary, 71 Vt. 396. 8 Howell V. Estes, 71 Tex. 690, 694; Preble v. Reed, 17 Me. 169; Sloat v. McDougall, 30 N. Y. St. Rep. 912; Snow V. Pulitzer, 142 N. Y. 263 ; Spen- cer V. Kilmer, 151 N./Y. 390. * United States v. Appleton, I Sumn. (U. S.) 492, 500. 6 Suffield V. Brown, 4 De G. J. & S. 185 ; United States v. Appleton, 1 Sumn. (U. S.) 492; Butterworth v. Crawford, 46 N. Y. 349; Phillips u. Phillips, 48 Pa. St. 178; Ingalls ,/. Plamondon, 75 111. 118; Providence Tool Co. V. Corliss Steam Engine Co., 9 R. I. 564; Sanderlin v. Baxter, 76 Va. 299. ' Rogers v. Sinsheimer, 50 N. Y. 646; Griffiths v. Morrison, 106 N. Y. 165 ; Western Nat. Bank's Appeal, 102 Pa. St. 171. ' Dodd V. Burchell, 1 Hurl. & C. 113; Hair v. Downing, 96 N. C. 172; Munsion v. Reid, 46 Hun (N. Y.), 399. 8 Nicholas v. Chamberlain, Cro. Jac. 121 ; Wardle o. Brocklehurst, 1 El. & El. 1058 ; Butterworth u. Crawford, 46 N. Y. 349; DollifE l: Boston & M. K. Co., 68 Me. 173. ^ The fact that a pipe, aqueduct, etc., is concealed from casual vision does not prevent it from being apparent within the requirement of this rule. If by or- dinary inspection it would be discovered through marks, objects, or indications of any kind, this is sufficient to make it apparent. Nicholas u. Chamberlain, Cro. Jac. 121; Pyer v. Carter, 1 H. & N. 916; "Watts ». Kelson, L. R. 6 Ch. App. 166; Tootlie v. Bryce, 50 N. J. EASEMENTS. KINDS. HOW CREATED. 173 It was formerly declared, also, that no such right or privi- lege could pass by implication, unless, when acquired as an easement, it would be continuous in its nature, i. e. would be enjoyed without the necessity of any act of man. This requirement is prominently dwelt on in the leading case of Lampman v. Milks, ^ and is mentioned as a prerequisite in many of the text-books and decided cases. ^ But most of the authorities which dwell on this requirement employ the word " continuous " in the sense of permanent, and not with its technical signification, to denote a continuous easement as above defined ;2 and all that is actually required in this respect is that, from the visible and apparent disposition and arrangement of the parts of his property before the severance, it must appear that it was the purpose of the owner to create a permanent and common use and enjoyment of the one part for the benefit of the other.* In the above quotation from the opinion of the New York Court of Appeals in Spencer v. Kilmer^ we find these words: "The rule is not limited to continuous easements or to cases where the use is absolutely necessary to the enjoyment of the thing granted. It applies to those artificial arrangements which openly exist at the time of the sale, and materially affect the value of the thing granted." While this utterance is only a dictum, the ease- ment involved in that case being continuous in the strict, technical sense, yet it seems to be most fully in harmony with the reasons which give rise to easements by impli'ed grant, and to have the support of the most carefully consid- ered decisions with regard to such easements as are discon- tinuous but at the same time open and visible and apparently meant to be permanent.^ Eq. 589. Aud an easement or servi- cially in favor of easements of air and tnde is apparent if the parties have ac- light, lateral sapport, partition walls, tual knowledge of its existence, or drains, aqueducts, conduits, and water- knowledge of facts which should put pipes or spouts, all these being continu- them as reasonable persons upon in- ous easements technically so called, — quiry. Larsen v. Peterson, 53 N. J. Eq. that is to say, easements which are enjoyed 88. And see Tabor v. Bradley, 18 without any active intervention of the N. Y. 109. party entitled to enjoy them." O'Eorke 1 21 N. Y. 505 ; Jones, Ease. §§ 143- v. Smith, U R. I. 259, 263. 147. 8 § 129, sitpra. 2 See Watts o. Kelson, L. R. 6 Ch. ^ John Hancock Mut. L. Ins. Co. v. App. 166 ; Sullivan i: Ryan, 130 Mass. Patterson, 103 Ind. 582 ; Francie's Ap- 116; Bolton u. Bolton, L. R. 11 Ch. peal, 96 Pa. St. 200; Flint u. Bacon, Div. 968 ; Parsons v. Johnson, 68 N. Y. 13 Hun (N. Y.), 454. 62, 66. The Supreme Court of Rhode ^ \f,\ n. Y. 380, 391. Island says: "The rule applies espe- ^ Cases cited above in connection 174 KINDS OF REAL PROPERTY. § 141. Easements created by Implied KESERVATION upon Severance of Entire Tract of Land. — ■ There are some weighty opinions and decisions, especially among the earlier cases, to the effect that an easement will as readily arise by implied reservation as by implied grant, — that if the owner of an entire tract of land, one piece of which enjoys a right or qiMsi ease- ment over the other, convey the servient part and retain the dominant, an easement will be implied in his favor as freely and fully as it would have been implied against him if he had sold the portion which enjoyed the privilege and retained that which sustained the burden. The leading decision in support of this doctrine is the much-discussed and criticised case of Pyer v. Carter,^ decided in 1857. In that case, the owner of two houses constructed a visible drain under both of them; and then sold, first the lower house, under which the other was drained, to one purchaser, and then the higher house to another purchaser. The vendee of the lower house stopped the drain. In an action against him by the second vendee, judgment was rendered in favor of the latter, although it was not shown that the vendee of the lower house had any actual knowledge of the drain at the time of his purchase. The court said that the defendant took his piece of the property subject to all the existing, apparent signs of servitude, and that by "apparent signs was to be understood not only those which must necessarily be seen, but those which may be seen or known on a careful inspection by a person ordinarily con- versant with the subject."^ The purchaser of the upper house bought it with the right to the drain existing as an easement appurtenant. The principle thus enunciated has been adhered to in some of the United States, such as New Hampshire, Vermont, Pennsylvania, Illinois, North and South Carolina, and perhaps some others;^ and it was followed by the earlier decisions in New York and New Jersey.* with this section ; Brazier v. Glasspool Geible v. Smith, 146 Pa. St. 276 ; Cihak (1901), W. N. Cas. 237; Barltshire v. v. Klelcr, 117 111. 64.3; Hair v. Down- Grubb, L. R. 18 Ch. Div. 616 ; Thorn- ing, 96 N. C. 172; Crosland v. Rogers, son V. Waterlow, 6 Eq. 36 ; Bolton v. 32 S. C. 130 ; Steinke y. Bentlev, 6 Ind. Bolton, L. R. 11 Ch. Div. 958; Par- App. 663. sons V. Johnson, 68 N. Y. 62, 66 ; Jones, * Larapman v. Milks, 21 N. Y. 505 ; Ease. § 195. Outerbridge v. Phelps, 13 Abb. N. C. 1 1 H. & N. 916. (N. Y.) 117 ; Kelly v. Dunning, 43 N. J. 2 1 H. & N. 916, 922. Eq. 62 ; Fetters v. Humphreys, 18 N.J. 8 Dunkles u. Wilton R. Co., 24 N. H. Eq. 260. See La. Rev. Civ. Code, art. 489; Harwood v. Benton, 32 Vt. 724; 769. Ormsby v. Pinkerton, 159 Pa. St. 458 ; EASEMENTS. KINDS. HOW CREATED. 175 But the case of Pyer v. Carter has been so thoroughly dis- approved in England that it is practically overruled ; ^ and in this country the decisions of many of the best courts deny that an easement can be as readily reserved for the grantor as implied in favor of the grantee.^ This is upon the principle that a deed is to be most strictly construed against the grantor, and, further, that a grantor shall not be permitted to derogate from his own grant. The purchaser may have the benefit of all fair implications and intendments; and so the severance of an entire tract may impliedly confer upon him an easement, if it be reasonably necessary to the enjoyment of his property. But, say these later cases, the general rule is that the vendor can not have the ben- efit of any such presumptions, to the impairment of that which he has expressly granted; and, when he is to have an easement over land that he has absolutely conveyed, he must be able to establish it by express contract or reservation. Such is now the settled law of New York,^ termed an implied grant, as distin- guished from an implied reservation, without, however, mentioning the dis- tinction, have used language apparently applicable to all easemeuts existing by implication, when, in fact, intended to be limited to those existing in favor of a grantee. Others, in deciding that an easement was impliedly created by a grant and conveyed to the grantee, have gone farther in their discussion than the point involved required and have broadly declared the rule to be reciprocal and applicable alike to bene- fits conferred and burdens imposed, provided the marks of either were open and visible. Such was the case of Lampman !>. Milks, 21 N. Y. 505, where the discussion outran the decision, for, while it was decided that, on the facts then appearing, an easement should be implied in favor of the grantee, against the grantor and his remaining lands, it was asserted tliac under like circum- stances an easement would be implied in favor of the grantor, against the grantee and his lands. The latter proposition was involved neither in the case decided, nor in any of those called upon to support it, except such as have since been overruled, either expressly or impliedly." 1 Suliield v. Brown, 4 De G. J. & S. 185, 196 (1864) ; Brown v. Alabas- ter, L. R. 37 Ch. Div. 490; Russell u. Watts, L. R. 25 Ch. Div. 559 ; Ford v. Met. R. Co., L. R. 17 Q. B. Div. 12, 27 ; Pollard V. Gare (1901), 1 Ch. 834. 2 Wells V. Garbutt, 132 N. Y. 430 ; Sloat V. McDougall, 30 N. Y. St. Rep. 912, 9 N. Y. Supp. 631; Sullivan v. Ryan, 130 Mass. 116 ; Carbrey v. Willis, 7 Allen (Mass.), 364 ; Warren v. Blake, 54 Me. 276; Stevens v. Orr, 69 Me. 323 ; Toothe v. Bryce, 50 N. J. Eq. 589 r Larsen v. Peterson, 53 N. J. Eq. 88 ; Burns v. Gallagher, 62 Md. 462; Mitchel V. Seipel, 53 Md. 251 ; Scott o. Beutel, 23 Gratt. (Va.) 1, 7; Walker r. Clifford, 29 So. Rep. 588 (Ala.). « Wells V. Garbutt, 132 N. Y. 430 ; Paine v. Chandler, 134 N. Y. 385 ; Sloat V. McDougall, 30 N. Y. St. Rep. 912. In Wells V. Garbutt, Vann, J., said, at p. 435 ; " As a grantor cannot derogate from his own grant, while a grantee may take the language of the deed most strongly in his favor, the law will imply an easement in favor of a grantee more readily than it will in favor of a grantor, and this distinction explains many of the apparent inconsistencies in the reported cases. Some learned judges, in considering what may be 176 KINDS OP REAL PROPEETT. New Jersey, Massachusetts, Maine, Maryland, Virginia, and Mississippi.^ While such is the general rule as to creation of easements by implied reservation, there are some important exceptions to it, which are recognized by all courts and which are next to be examined. § 142. Claasea of Sasements which may be created by Implied Reservation. — The general principle is that a grantor can not derogate from his own grant. Yet, even in those jurisdictions where this maxim is most rigidly enforced, there are two well-recognized classes of cases in which the grantor must be accorded an easement over the property conveyed, although his deed is silent upon the matter. One of these is where there are mutual easements or servitudes required by both parties to the contract; as where the owner of two houses which mutually support each other, or both of which rest upon a wall, — as a party wall, — sells one and retains title to the other. Here, just as an easement in the right to support passes by implication to the grantee, so, as a matter of logical necessity, a similar easement is impliedly reserved to the grantor.^ The other class embraces those rights and privi- leges which are absolutely or for all practical purposes neces- sary to the enjoyment by the grantor of the property retained by him, as where a man continues to own a lot of land entirely surrounded by other land which he sells. He then has a right of way of necessity, although the deed by which he transfers the surrounding property make no mention of any such right. ^ § 143. (b) Ways of Necessity — Hovsr they arise. — The creation of easements by implied grant or reservation as thus far discussed, where an entire tract or estate is divided and a portion of it conveyed, ordinarily results from the fact that, before such division, one part of the property was encumbered in favor of the other with a distinct and well-defined ease, burden, or servitude, and the separation of the two pieces caused this to become a complete easement. Thus, if one who has established a drain from his house over his adjacent lot sell the former and retain the latter, the right to the 1 Last note but one; also Crosland » The right of way of necessity, V. Rogers, 32 S. C. 130, 133; Bonelli v. which is the illustration of this class, is Blakemore, 66 Miss. 136. more fully explained in the following 2 Richards v. Rose, 9 Exch. 218 ; sections. Snow V. Pulitzer, 142 N. Y. 263. EASEMENTS. KINDS. HOW CREATED. 177 drain as then existing and reasonably necessary becomes an easement belonging to the purchaser. A way of necessity differs from cases such as this, in that, while it always springs from an implied grant or reservation resulting from some division of land into at least two distinct pieces, it does not require that any defined and known way as such shall have previously existed over the one parcel and in favor of the other. The fact alone that the purchaser of a thing can not use it for any beneficial purpose, without the enjoyment of some right or privilege in connection with other property of the vendor, causes the law to presume that the parties intended that right or privilege to pass with the grant, though it did not before distinctively exist; and in like manner the fact alone that the vendor can not use for any beneficial purpose that which remains to him, unless he enjoy some right or privilege over what he has conveyed, causes the law to pre- sume a reservation of such right or privilege.^ Hence, when a conveyance is made of a lot of land entirely surrounded by other land of the vendor, or surrounded partly by his land and partly by that of other persons through which no available way exists for the grantee; or when, under like conditions, the grantor retains the lot so enclosed and conveys the other portion of his property, a way of necessity is thereby brought into existence for the benefit of the owner of the parcel thus surrounded. 2 The circumstances may be such as to cause this way to be located over a road already in existence ; but if there be no such road or none that is suitable, the owner of the servient tenement has the right to designate where one shall exist, provided he makes it reasonably convenient for the enjoyment of the dominant property.^ In accordance with the general principle, however, that no implication runs against the state, a legislative grant or other conveyance by the state has been held not to pass with it a way of necessity.* 1 Warren v. Blake, 54 Me. 276. King, 73 Vt. 375 ; Stewart v. Hartman, 2 Pomfreti».Ricroft,lSaund.pp.*320, 46 Ind. 331. * 323, No. 6 ; Clark v. Cogge, Cro. Jae. » Pearson v. Spencer, 1 B. & S. 571 ; 170; Howton t. Frearson, 8 T. R. 50; Palmer v. Palmer,. 150 N. Y. 139; Gayford o. Moffatt, L. R. 4 Ch. App. Schmidt w.Quinn, 136 Mass. 575; Bolton 133 ; Palmer v. Palmer, 150 N. Y. 139 ; <,-. Bolton, L. R. 11 Ch. Div. 968 ; Kripp Bass u. Edwards, 126 Mass. 445; Sey- t. Curtis, 71 Cal. 62 ; Cheney u. O'Brien, mour u. Lewis, 13 N. J. L. 439,444; 69 Cal. 199; Capers u. Wilson, 3 McCord Ogdeu V. Grove, 38 Pa. St. 487 ; Collins (S. C), 170. V. Prentice, 15 Conn. 39; Woodworth * Pearne w. Cold Creek M. &M. Co., V. Raymond, 51 Conn. 70, 75; Dee v. 90 Tenn. 619. 12 178 KINDS OF REAL PROPERTY. It is not the necessity alone, but the implied grant or reservation that gives rise to a way of this kind. " Such a way is not created by mere necessity, but always originates in some grant or change of ownership, to which it is attached, by construction as a necessary incident, presumed to have been intended by the parties. " ^ Therefore it can not arise over the property of one who is a stranger to the transaction by which land is conveyed and acquired.^ To bring it into existence one of the parcels or tracts involved must be con- veyed, or its ownership must be changed by operation of law. Such direct transfer, by act of the parties, may be made by deed, or devise, or by a partition among co-owners ; ^ and a sale of land on execution, or pursuant to the judgment of a competent court, is an illustration of its passing by operation of law.* When a way has sprung up through any such trans- action, it endures, as the property of the owner of the domi- nant estate and the successors to his title, as long as the necessity continues.® § 144. Founded on Necessity. — There must be a necessity for its use in connection with the enclosed parcel of land, in order that such a way may come into existence. The fact that it is very convenient, or more convenient than some other means of access, will not suffice.® Thus, where the 1 Woodworth v. Raymond, 51 Conn. ley Falls Co. v. Dolan, 9 R. I. 489. 70, 75 ; Stewart v. Hartman, 46 Ind. But where land was taken by condemna- 331 ; Tracy v. Atherton, 35 Vt. 52. tion proceedings for a school, and no 2 BuUard v. Harrison, 4 M. & S. 387 ; attempt was made to condemn any way Proctor 0. Hodgson, 10 Exch. 824 ; to it, although it wa.s land-locked, Woodworth u. Raymond, 51 Conn. 70. no way of necessity existed — none " If a man can be supposed to hold land could be implied under such conditions, without any right of access to it, a. grant Banks o. School Directors, 194 III. 274. of it would not convey to the grantee * Logan v. Stogsdale, 123 Ind. 372 ; any right to pass over the adjoining Taylor v. Warnaky, 55 Cal, 350. land, however necessary it might be to ^ Proctor v. Hodgson, 10 Exch. 824 ; the enjoyment of the thing granted. Holmes v. Goring, 2 Bing. 76 ; London He would acquire nothing more than v. Rigga, L. R. 13 Ch. Div. 798 ; Union the grantor held." Nichols v. Luce, 24 L. Co. v. London G. B. Co. (1902), 2 Pick. (Mass.) 102, 104. Ch. 557; Palmer v. Palmer, 150 N. Y. 8 Palmer v. Palmer, 150 N. Y. 139 ; 139 ; Ogden v. Jennings, 62 N. Y. 526 ; Viall V. Carpenter, 14 Gray (Mass), Bascom v. Cannon, 158 Pa. St. 225; 126; Murphy v. Lincoln, 63 Vt. 278; Stuyvesant w. Woodruff, 21 N.J. L. 133 ; Ellis V. Bassett, 128 Ind. 118; Blum o. Quimby v. Straw, 71 N. H. 160 ; Dee v. Weston, 102 Cal. 362. King, 73 Vt. 375. There are some early * Pernam h. Wead, 2 Mass. 203 ; dicta to the effect that the way will Schmidt V. Quinn, 136 Mass. 575; arise If it be reasonably convenient Smith V. Tarbox, 31 Conn. 585 ; White though not strictly necessary. In one V. Story, 2 Hill (N. Y.), 543, 549; Val- case, Lord Mansfield said:' "I know EASEMENTS. KINDS. HOW CREATED. 179 purchased propei'ty is surrounded on three sides by land of the vendor and on the other one by the ocean or other navigable body of water, while the approach by land might be much the easier and shortei-, yet, since the vendee can reach his lot by using a boat, he has no right by implication to pass over his grantor's adjacent premises.^ So, if the grantee can reach his property over a public highway, though it be long and round about,^ or if he have a steep, narrow, and inconvenient road across land of a third party,^ no way of necessity arises in his favor. And the fact that it is much cheaper to float logs from the lot granted, down a non-navigable stream which flows over land of the grantor, does not give a way of necessity down that stream, when there is another way out by railroad.* The older books and cases use language to the effect that the necessity must be absolute, — i. e. that there must be no other means whatever of getting to the land, — in order that a way of necessity shall be brought into existence. But the better statement of the rule, which is sustained by the latest and best decisions, seems to be that such a way will arise when, without it, there could be no practical use of the en- closed property, or it could not be used in the manner or for the purpose manifestly intended by the parties to the convey- ance.* If, for example, the consideration for the enclosed parcel were five thousand dollars, and it would cost five hun- dred thousand dollars to construct any approach to it, other than one over the vendor's adjacent land, a way of necessity would be implied.*" not how it has beea expounded, but it Gayetty v. Bethune, 1 4 Mass. 49 ; Stuy- would not be a great stretch to call that vesant v. Woodruff, 21 N. J. L. 133. anecessary way without which the most ^ Dodd v. Burchell, 1 Hurl. & C. convenient and reasonable mode of en- 113 ; Carey v. Kae, .58 Cal. 159 ; Kripp' joying the premises could not be had." v. Curtis, 71 Cal. 62 ; M'Donald v. Lin- Morris V. Edgington, 3 Taunt. 24,31. dall, 3 Eawle (Pa.), 492; Leonard v. See also Pheysey v. Vicary, 16 M. & W. Leonard, 2 Allen (Mass.), 543. 484; Lawtonf. Rivers, 2 McCord (S.C), ' De Camp v. Thompson, 16 N. Y. 445; Alley v. Carleton, 29 Tex. 74; App. Div. 528, 531. Watts V. Kelson, L. R. 6 Ch. App. 166, ^ Schmidt v. Quinn, 136 Mass. 575 ; 175. Paine u. Chandler, 134 N. Y. 385; 1 Kingsley v. Goldsborongh Land O'Rorke v. Smith, 11 R. I. 259 ; Thomp- Imp. Co., 86 Me. 279; TurnbuU u. sou u. Miner, 30 Iowa, 386. Rivers, 3 McCord (S. C), 131 ; Lawton « Pettingill v. Porter, 8 Allen (Mass.), V. Rivers, 2 McCord (S. C), 445 ; Bur- 1, 6 ; Paine v. Chandler, 134 N. Y. 385 ; lew V. Hunter, 41 N. Y. App. Div. 148, Smith v. Griffin, 14 Colo. 429 ; Oliver 151. But see Jay v. Michael, 92 Md. v. Pitman, 98 Mass. 46, 50; Goodall w. 198. Godfrey, 53 Vt. 219. 2 Vossen u. Dautel, 116 Mo. 379; 180 KINDS OP REAL PROPERTY. § 145. Termination of Ways of Necessity — Their Suspension. — All the ordinary methods of destroying and suspending easements (which methods ate fully examined hereafter) i apply generally to a way of necessity. By clear, express contract, for example, a man may release and do away with such a privilege, even though the effect be to shut him off from all access to his own land.^ But, dependent as it is upon necessity, this sort of a way has, as its own, peculiar, additional cause for ceasing to exist, the ending of the neces- sity. When the necessity no longer continues, the way ter- minates.^ This may be brought about by the opening of a public highway through or along the dominant tenement,* or by the owner of that tenement acquiring another road or path over other land,^ or by his purchase of more land, thus en- abling himself to reach an existing thoroughfare,® or by the coming of the dominant and servient estates into the same hands at the same time and in the same right, ^ or by any other transaction by which is brought to an end the necessity for the way which was impliedly granted.^ While a way of necessity is extinguished by the coming together of the dominant and servient estates in the same hands, at the same time and in the same right — it being often said in such a case that the right is merged, though the technically accurate expression is that it is extinguished — yet it may readily be brought again into existence and pass with the dominant estate upon the subsequent conveyance of that tenement alone to another person.^ So the way of necessity may be suspended for a time, as by the leasing of one tene- ment for a term of years or for life by the owner of the other 1 §§ 187-195, in/ra. Ch. (N. Y.) 353; Viall v. Carpenter, 2 Richards v. Attleborough Branch 14 Gray (Mass.), 126. E. R., 153 Mass. 120. See Symmea v. ^ Ballard v. Beramon, 156 Mass. Drew, 21 Pick. (Mass.) 278 ; Goodall v. 449 ; Baker v. Crosby, 9 Gray (Mass.), Godfrey, 53 Vt. 219. 421 ; Carbonic Acid Gas Co. v. Geysers " Palmer v. Palmer, 150 N. Y. 139 Holmes v. Seeley, 19 Wend. (N. Y.) 507 Fritz V. Tompkins, 41 N. Y. Supp. 985 Rowell V. Doggett, 143 Mass. 483, 489 Whitehoiise v. Cummiugs, 83 Me. 91 Gas Co., 72 N. Y. App. l)iv. 304. ' Brown v. Berry, 6 Cold. (Tenn.) 98. * Morris v. Edgington, 3 Taunt. 24 Pierce u. Selleck, 18 Conn. 321 Seeley v. Bishop, 19 Conn. 128; Wissler Nichols v. Luce, 24 Pick. (Mass.) 102 V. Hershey, 23 Pa. St. 333. Gayetty v. Bethune, 14 Mass. 49 * Palmer v. Palmer, 71 Hun, 30, Alley v. Carleton, 29 Tex. 74 ; Woodr. aff'd 150 N. Y. 139 ; Abbott t. Stew- Ways, 72. artstown, 47 N. H. 228. ^ Brown u. Berry, 6 Cold. (Tenn.) 5 Holmes v. Goring, 2 Bing. 76 ; 98. N. Y. Life Ins. Co. v. Milnor, 1 Barb. EASEMENTS. KINDS. HOW CREATED. 181 tenement; and it will revive when the lease ends and the two parcels of land pass again into the possession of their different owners. 1 § 146. Location and Change of Ways of Necessity. — The kind of easement now under discussion is usually, at the out- set, undefined as to place. If before the conveyance of the land a convenient way had been in use for the benefit of the dominant tenement, it would ordinarily be understood that the same should be continued.^ Otherwise, the parties may agree on the location of the way and may change it as often as both concur. 3 But, when, as is ordinarily the case, it is to be designated anew and the parties to the purchase and sale have not agreed as to its location, the right to determine where the route shall lie rests with him over whose lands it is to be, provided that, upon request, he place it so that it shall be reasonably convenient to him by whom it is to be enjoyed.* If, upon being asked to do so, the owner of the servient tenement fail to designate a suitable place for the way, the owner of the dominant tenement may locate it ; but in doing so he must have due regard to the convenience and interests of the servient proprietor.^ As a rule, there can be only one way of necessity. And, therefore, where the grantor had been accustomed to use two different roads to the parcel of land conveyed and they both lay over other property of his own, he had the right to close one of them and leave only the other for the use of the grantee.® 1 Such a right is not lost, extin- Mass. 575 ; Dunham v. Pitkin, 53 Mich, gnished, nor suspended by mere non- 504; Kripp v. Curtis, 71 Cal. 62; Hart user ; but, if the servient owner v. Connor, 25 Conn. 331 ; 2 RoUe Abr. adversely obstruct it for the period of pi. 17. twenty years, it may be thereby de- "> Palmer u. Palmer, 150 N. Y. 139; stroyed. Smiles v. Hastings, 24 Barb. Burlew v. Hunter, 41 N. Y. App. Div. 44, 22 N. Y. 217. See how easements 148, 151 ; Nichols v. Luce, 24 Pick, may be lost, destroyed, or suspended, (Mass.) 102, 104 ; Morris v. Edgington, §§ 187-195, infra. 3 Taunt. 24 ; Holmes v. Seely, 19 Wend. 2 Barnard o. Lloyd, 85 Cal. 131 ; (N. Y.) 507. Whitehouse v. Cummings, 83 Me. 91 ; ^ Bolton v Bolton, L. R. 11 Ch. Div. Ellis u. Bassett, 128 Ind. 118; Chase r. 968. But of course distinct parcels Hall, 41 Mo. App. 15. See Bass v. conveyed by the same grant may each Edwards, 126 Mass. 445. give rise to a separate way of necessity. s Smith V. Lee, 14 Gray (Mass.), See Kichols v. Luce, 24 Pick. (Mass.) 473; Rumill ». Robbins, 77 Me. 193. 102. In Bolton v. Bolton it is said * Bolton V. Bolton, L. R. 11 Ch. Div. that the grantor, if he keep the land- 968 ; Capers v. Wilson, 3 McCord locked piece, — the dominant tenement, (S. C), 170; Palmer v. Palmer, 150 — may select the way. N. Y. 139; Schmidt v. Quiun, 136 182 KINDS OP REAL PROPERTY. After a way of necessity has been once designated by express agreement of the parties, or located by one and used by the other in such a manner as to imply his acquiescence, it can not be changed by either without the other's consent. The fact that the owner of such a right uses, for a consider- able length of time without protest, the road or path fixed upon by the other party is usually sufficient to prove his acceptance of that particular way.^ § 147. To -what Extent Ways of Necessity may be used. — When a way of necessity manifestly arises for some particular purpose only, the use of it is restricted to the accomplishment of that purpose. Thus, in a case where the land-locked property conveyed was a mill-dam and race, and the only reason for the existence of a way was to enable the grantee to make repairs to them, he was restricted to a reasonable use of the grantor's land for that one purpose, and could not prevent the latter from cultivating the soil over which the right existed, so long as this did not interfere with such enjoyment of the way.^ When, however, there is no such restriction on the extent to which the owner of such ease- ment may employ it, the law of England and of all the states of this country permits it to be used for all the purposes for which it may be required in order that there may be a full enjoyment of the dominant tenement as it is at the time of the conveyance.^ The parties contract with reference to the enclosed piece of land as it is situated when their agreement is made ; and the condition of that piece at that point of time, or its condition as then clearly contemplated by them, will determine the minimum use to be made of the way of neces- sity to which the transfer gives rise. When, for example, the enclosed parcel is used for the carrying on of a particular kind of business, or is purchased with a view on the part of the grantee of conducting such business thereon, which fact is known by the grantor or reasonably presumed to be known by him, an adequate way for that purpose is implied.* And, on the sale of land to one who has notice that the vendor is 1 Pearson v. Spencer, 1 B. & S. 571 ; 798 ; Serff r. Acton Local Board, L. I?. Palmer u. Palmer, 150 N.Y. 139 ; Hines 31 Ch. Div. 679; Gayforii v. Mofiatt, V. Hamburger, 14 N. Y. App. Div. 577 ; L. R. 4 Ch. App. 133 ; Myers v. Dunn, Smith i,. Lee, 14 Gray (IVIass.), 473. 49 Conn. 71 ; Whittier n. Winkley, 6:2 See Runiill v. Robbiiis, 77 Me. 193 ; N. H. 338. Abbott !i. Stewartson, 47 N. H. 228. * Serff v. Acton Local Board, L. R. 2 M'Tavish v. Carroll, 7 Md. 352. 31 Ch. Div. 679. " London v. Riggs, L. R. 13 Ch. Div. EASEMENTS. KINDS. HOW CREATED. 183 going to divide up adjoining property into building lots in such a manner as to make a road over the property purchased practically indispensable, such road becomes a way of neces- sity reserved for the grantor. ^ When the law upon this topic is stated as above, the limit placed by the English courts upon the implication of the right to use ways of necessity is practically reached. But the pre- vailing principle in the United States is that the owner of the dominant tenement may enjoy such an easement, not only to the extent and for the purposes demanded by the situation of his property at the time of the grant, or in the way then con- templated by the parties to the transaction, but also in such manner as is requisite to the use of his land at any time for lawful bbjects.^ "If," says the Supreme Court of New Hamp- shire, "the parties supposed a way passed as a necessary incident of the grant, how can it be inferred that they in- tended only a way for a particular purpose, when they knew the land was capable of being used for many purposes ? " ^ It is, accordingly, held that the proprietor of such a right, who employs his land for the erection thereon of a dwelling-house, may use the way to walk over, drive over, and haul such articles over as are required for the convenient enjoyment of the property by himself and his family. So the owner of an upper story of a building, the lower part of which belongs to another person, may use the stairways and halls through the parts below him, so far as is required for the proper enjoy- ment of his property, whether or not such use was contem- plated at the time when the portions of the house passed into the hands of the different proprietors.* A way of necessity, having been once located, can not be subsequently prolonged and increased by its owner, so as to 1 Davies v. Sear, 7 Eq. 427. less the two owners concurred in re- ■■^ Myers v. Dunn, 49 Conn. 71 ; storing it to the same condition in Camp V. Whitman, 51 N. J. Eq. 467. which it had previously existed. Such 3 Whittier v. Winkley, 62 N. H. 338. destruction would do away with all the * Thompson v. Miner, 30 Iowa, 386 ; interest in the house of the owner of Morrison v. King, 62 III. 30 ; Benedict the upper part. But, if the owner of V. Barling, 79 Wis. 551 ; Mayo w. New- the lower part co-operated in restor- hoff, 47 N. J. Eq. 31 ; Pierce v. Cleland, ingthe building to its original condition, 133 Pa. St. 189; Nat. Exch. Bk. v. this would restore his corporeal prop- Cunningham, 46 Ohio St. 575. It may erty to the former owner of the upper be noted here, however, that such a way portion, and with it the way through through the lower stories of a house the lower stories. Douglas v. Coonley, would terminate upon the destruction 156 N. Y. 521. of the houae hy accident or decay, un- 184 KINDS OF REAL PROPERTY. become more burdensome. Thus, if a highway to which it at first leads be closed, it can not be extended over land of the grantor to another highway.^ Nor can it be used for the benefit of land other than that for which it was originally created. If, for example, its owner purchase from a third party a lot of land adjoining that in favor of which the right exists, he must not go over the way for the purpose of reach- ing the newly acquired parcel, even though he attempt to do so by going first upon the land to which the way belongs. ^ When he passes from the latter piece to the former, the ques- tion as to whether or not he went over the way to enable him to do so is one of fact for the jury. "Did he use the way to get to the dominant estate, or was the use of it merely color- able to get to the lot beyond. " If the latter, he was guilty of trespass.^ § lis. (c) Equitable Basements — defined and illustrated. — From covenants or conditions in deeds, and even from oral agreements or representations, equity frequently raises or implies easements which are not recognized in a court of law. These are always negative in character. Hence, they are often designated as negative equitable easements. They are brought into existence and enforced by courts of equity, for the purpose of working out justice between owners of neigh- boring lands, and in disregard of the existence or non-exist- ence of privity, or contractual or conventional relationship of any kind between such neighbors.* Their most prominent and frequent illustration is presented by the owner of a tract of land selling it off in separate lots or parcels to different pur- chasers and inserting in the deeds, or otherwise imposing upon the vendees, stipulations as to the kinds of buildings which may be erected upon the property, or the trades or sorts of business which may be there carried on, or the uses iil other respects to which it may be put." When such agreements evince a 1 The remedy of the landowner, rych on Ways, p. *34. See § 198, whose access to his property is thus cut infra. off, is against the public for the dam- s gknH „ Glenister, 16 C. B. n. s. ages caused by the closing of the liigh- 81 , 102. See London v. Riggs, L. R. way. Morse v. Benson, 151 Mass. 440. 13 Ch. Div. 798 ; N. Y. L. Ins. & T. Co. 2 Howell V. King, 1 Mod. 190 ; Law- „. Milnor, 1 Barb. Ch. (N. Y.) 353. ton V. Ward, 1 Ld. Eaym. 75 ; Davea- * See definition and illustrations of port V. Lamson, 21 Pick. (Mass.) 72 ; privity, p. 168, note 1, supra. Greene v. Canny, 137 Mass. 64, 69 ; 6 Equitable Life Assur. See. of U. S. French v. Marstin, 32 N. H. 316 ; Wool- v. Brennan, 148 N. Y. 661 ; Tobey i'. Moore, 130 Mass. 448. BASEMENTS. KINDS. HOW CREATED. 185 uniform, general plan with respect to the manner of improve- ment and occupation of the land, and are not exclusively for the benefit of the grantor, but arc meant to be for the advan- tage generally of the entire tract, equity will enjoin the breach of them by any of the grantees, upon the suit of any of the other lot owners.^ Equitable easements may, accord- ingly, be defined as those rights, which a court of equity alone accords to landowners, to restrain neighboring proprietors from using their land in ways in which it might be freely employed but for the existence of restrictive covenants, condi- tions, or stipulations affecting beneficially and in substantially the same manner all the parcels involved. Thus, where the owner of several lots of land sold them to different purchasers, and it was stipulated in the deeds that no house to be- built thereon should be set within ten feet of the line of the street, it was held that there were thereby created, in respect to the various pieces, mutual easements and servitudes, which equity would enforce, by enjoining the violation of their terms, among the grantees and their successors in interest.^ So, in a case in which the covenants in the deeds were that the grantees would not erect or permit to be erected, on the property con- veyed, any livery-stable, slaughter-house, etc. (enumerating various trades " offensive to the neighboring inhabitants "), each purchaser had an easement against all the other lots, to prevent their owners from establishing or maintaining any of those trades upon them.^ § 149. Requisites of Equitable Easements. — It is to be noticed that equitable easements are mutual or reciprocal rights, which the landowners have, the one against the other. Bach lot is a dominant tenement, as to all the others involved in the general plan, and a servient tenement in favor of each of those others. In order that such rights and duties shall spring into existence, it is necessary, in the first place, that the restrictions placed upon all the parcels involved in the general scheme shall be substantially the same. A lot affected by one 1 Last preceding note. implied in equity, and, although not ^ Winfield v. Hennesy, 6 C. E. Green strictly legal grants since law takes no (N. J.), 188, 190; Tallmadge o. The cognizance of them, yet they are, so to East Rirer Bank, 26 N. Y. 105. speak, equitably implied grants arising ' Barrow v. Richard, 8 Paige (N. Y.), from the severance of an entire tract, 351. It is, in a sense, illogical to dis- and are so similar to grants implied by cuss equitable easements under the head law that they are best treated of in the of implied grant ; but they are rights present connection. 186 KINDS OF REAL PROPERTY. kind of covenant or stipulation can not enjoy an equitable easement over another, the only restrictions on which are materially different. ^ For example, where the owner of an entire block of land in New York'*City conveyed the lots in the westerly half of it, by deeds in all of which he inserted practically the same stringent covenant against nuisances, and then sold the lots in the easterly half to purchasers, in whose deeds he put different and less exacting restrictions, it was decided that the grantees of the westerly lots had no remedy against those of the easterly ones for breach of any of the covenants or conditions. ^ Secondly, there must appear, either in the express terms of the agreement or by necessary implication from all the cir- cumstances, a clear intention to establish the restriction for the benefit of the land of the person suing. In Badger v. Boardman,^ the first deed, which was of a house and lot, con- tained a covenant that no shed or outbuilding at the rear of the house should ever be built any higher than the one then existing. Subsequently the same vendor sold his other and adjoining lot to another purchaser, who sought to restrain the first vendee from increasing the height of the shed. But the court of equity refused to grant the relief asked for, because there was nothing in the deeds or circumstances of the case to show that the restriction as to the defendant's building was intended to inure to the benefit of the plaintiff or his land.* " If the covenant is silent ; " says the New York Court of Appeals "if there is no mutual agreement or understanding between the various owners creating an easement; if there is nothing in the surrounding circumstances from which mutual rights can be fairly inferred, then no action can be maintained. " ^ Thirdly, those against whose property the equitable ease- ment is sought to be enforced must have notice that the re- 1 Equitable Life Assur. Soc. of U. S. Land Co. v. Solly, 148 N. Y. 42 ; Sharp V. Brennan, 148 N. Y. 661 ; Everett v. v. Ropes, 110 Mass. 381. Remington (1892), .3 Ch. 148; Badger ^ Equitable Life Assur. Soc. of U. S. V. Boardman, 16 Gray (Mass.), 5.')9 ; v. Brennan, 148 N. Y. 661, 672. See Jeffries i>. Jeffries, 117 Mass. 184 ; Skin- Barrow v. Richards, 8 Paige (N. Y.), ner v. Shepherd, 130 Mass. 180 j Beale 351 ; Brouwer v. Jones, 23 Barb. (N. Y.) u. Case, 138 Mass. 138. 153 ; Seymour v. McDonald, 4 Sand. 2 Equitable Life Assur. Soc. of U.S. Ch. (N. Y.) 502; Lattimer w. Liver-' . Brennan, 148 N. Y. 661, 671. more, 72 N. Y. 174; Skinner v. Shep- ' 16 Gray (Mass.), 559. herd, 130 Mass. 180. ■* See also Woodhaven Junction EASEMENTS. KINDS. HOW CREATED. 187 striction was intended for the benefit of the land of him who is endeavoring to assert the right. " It is not necessary in order to sustain the action that there should be privity either of estate or of contract; nor is it essential that an action at law should be maintainable on the covenant ; but there must be found somewhere the clear intent to establish the restric- tion for the benefit of the party suing or his grantor, of which right the defendant must have either actual or constructive notice. " ^ And the record of the deed is sufficient notice of the existence of that right. ^ § 150. Forma of Contract from -rc-hich Equitable Easements arise. — The. most common forms of agreement from which easements are implied by courts of equity are covenants by vendees in deeds of conveyance, i. e. stipulations whereby the purchasers undertake that the property shall or shall not be used in specified ways or for designated purposes. Illustra- tions of these have already been given in those cases in which stand-back covenants, so-called, require any house built upon the land to be a certain distance from the street line,^ and in those restrictions against nuisances, which are so often found in deeds and which prohibit the carrying on, upon the prop- erty, of certain trades or kinds of business.* When the con- tract takes simply the form of a covenant, and no conditional element is annexed, then, upon its breach, the grantor may either sue the grantee at law for damages or enjoin him in equity from any further violation of his agreement; but the mere infraction of a covenant by the purchaser gives no right to the vendor or those who succeed to his interests to re-enter and take back the property.^ Whenever, then, the stipula- tions in the deeds are covenants, each grantee has an equit- able easement against his neighbors who are restricted in substantially the same manner as himself in conveyances from the same grantor. In the few cases in which the question has been presented to the courts, it has been also held that neighboring land- 1 Equitable Life Aasur. Soc. of U. S. " Winfield v. Hennesy, 6 C. E. Gree^ <,•■ Brennan, 148 N. Y. 661, 671. (N. J.), 188, 190 ; § 148, supra. 2 Peck V. Conway, 119 Mass. 546. * Barrowt). Richard, 8 Paige (N. Y.), A covenant against encumbrances iu 351 ; Trustees of Columbia College v. a deed of conveyance is broken by Lynch, 70 N. Y. 440 ; Trustees of Col- the existence of an equitable easement urabia College u.Thacher, 87 N. Y. 311 ; against the property conveyed. Kramer Rowland w. Miller, 139 N.Y. 93. V. Carter, 136 Mass. 504; Jeffries v. ^ Stuyvesant ». Mayor, etc., 1 1 Paige Jeffries, 117 Mass. 184. (N. Y.), 414, 427. 188 KINDS OP REAL PEOPERTT. owners, who claim under the same grantor and through his deeds containing similar restrictive conditions — i. e. stipula- tions upon the violation of which the grantor or his heirs may re-enter and take back the property — are entitled to equitable easements against one another and may prevent, by injunction, the breach of the conditions.^ The principle, upon which rests the class of easements now under discussion, is that, where adjoining and neighbor- ing lot owners are permanently bound in conscience and good morals to abstain from employing their properties in certain ways, equity will compel any one or more of them, at the suit of any other, to abstain from violating such obligation ; and this without regard to any privity either of contract or of estate between the litigating parties. In applying this doctrine, the courts have gone to the full extent of holding that, although the restriction be not entered into in the form of covenant or condition, and even though it be a mere oral contract or representation, it may, nevertheless, create an equitable ease- ment and impose a burden or servitude, provided it appear that the parties meant to establish a permanent restraint upon the use or mode of occupation of the land.^ This is forcibly illustrated by the case of Lewis v. GoUner,^ in which the New York Court of Appeals held that an injunction was properly decreed against the erection, in a fine residential section of Brooklyn, of a tenement house, by one who had notice that her grantor had orally agreed with the neighboring lot owners, for a valuable consideration, not to erect any apartment or tenement house in that vicinity. The only limitations upon this principle, so broadly and liberally applied by courts of equity, are that the intention of the parties, however expressed, shall be clear and explicit,* that that intention shall be to impose a permanent uniform restriction upon the use or method of occupation or enjoyment of the respective parcels of land, and that he against whom 1 Parker w. Nightingale, 6 Allen 8 129N.Y. 227. (Mass.), 341 ; Clark v. Martin, 49 Pa. * It was the fact that the intention St. 289, 290. of the parties to restrict the rectangular 2 Tallmadge v. East Kiver Bank, 26 piece of land to its use for a chapel was K Y. 105; Huhbell f. Warren, 8 Allen not sufficiently clear that caused the (Mass.), 173; Hodge t). Sloan, 107 N. Y. court to refuse the injunction prayed 244, 260 ; Hayward v. Miller, 6 N. Y. for in Johnson v. Shelter Island G. & C. Misc. 254; Everett u. Remington (1892), M. Assoc, 122 N. Y. 330, the facts of 3 Ch. 148. which are stated in § 133, sup7-a. EASEMENTS. KINDS. HOW CREATED. 189 such restriction is sought to be enforced shall have had notice of the same at the time of his purchase. § 151. By and against whom Equitable Easements may be enforced. — " There are many cases in this country and Eng- land," says the New York Court of Appeals, "which uphold the doctrine laid down in Tallmadge v. The East River Bank (26 N. Y. 105) to the effect that although the legal title be absolute and unrestricted, yet the owner may, by parol con- tract with the purchasers of successive parcels in respect to the manner of its improvement and occupation, affect the remaining parcels with an equity requiring them also to be occupied in conformity to the general plan which is binding upon a subsequent purchaser with notice." ^ This dictum expresses the limitations of the principle upon which is ascertained who may be bound by equitable easements and by whom they may be enforced. All persons who purchase lots from a common grantor with substantially the same cove- nants, conditions, or other restrictions in their deeds, all grantees who are affected by stipulations or representations (even though made orally) as to the use to which their land shall be put, and all those who purchase from any such owners with notice of the limitations affecting the property, are bound by such easements and may enforce them against one another. A grantor, moreover, who has conveyed parcels of land subject to uniform restrictions, which are meant to be for the benefit of an entire tract or neighborhood, impresses an equitable easement or servitude upon his remaining property, so that his vendees within any reasonable distance may restrain him from occupying or improving that which he retains otherwise than in conformity to the general plan. And this equity is binding upon all subsequent purchasers of the remaining portions, who have notice of the prior agreements, even though their legal titles be unrestricted by any express cove- nants or conditions.^ Thus, where the vendor of a large tract of land inserted in the deeds to the purchasers of a number of the lots first sold a covenant restraining them from building any frame houses upon the land, it was held that the same restriction affected in equity the parcels which he retained, and ran with them against all who subsequently bought with 1 Equitable Life Assur. Soc. of U. S. bia College v. Lynch, 70 N. Y. 440, V. Brennan, 148 N. Y. 661, 672. 447; Clark v. Martin, 49 Pa. St. 289, 2 Tallmadge v. The East River 290; Parker v. Nightingale, 6 Allen Bank, 26 IST. Y. 105 ; Trustees of Colum- (Mass.), 341 ; Pom. Eq. Jur. § 1295. 190 KINDS OP REAL PROPBRTT. notice of the facts. ^ And where one conveyed a house lot and inserted in the deed a condition that the grantee should not erect upon the back part of the premises any building above a designated height, the grantor then owning the adjoining lot, and the respective parcels subsequently came into the hands of new owners by grants from the parties to the first deed; it was held that, although there was no express cove- nant on the part of the original grantor not to build higher than he had restrained his first purchaser from building, yet, since the condition was manifestly for the benefit of both pieces, his land was also affected by it, and the owner of either lot might have a bill in equity to restrain the erection upon the other of a building above the prescribed height.^ The basis of such rights is equitable estoppel ; it is held in equity to be unaffected by the statutes of frauds, and the extent to which the principle will be carried and the amount of territory which will be brought within its operation in any case depend upon the sound discretion of that court." § 152. 'When Equitable Easements terminate. — Equitable easements may be released, abandoned, or otherwise extin- guished, in the same manner as other easements. They are sometimes destroyed, also, by a change in the neighborhood in which the land affected by them is situated. They are creatures of equity, brought into existence for the purpose of working out justice among the various parties who are bound by them and may enforce them. And, therefore, when a change in the character of the surrounding properties, or in the uses to which they are put, is such that it would no longer be right and just to enforce negative restrictive stipu- lations in favor of those to whom they have not been directly made, they cease to operate except for those who may main- tain actions at law upon them. In other words, they cease to cause equitable easements to exist when it would no longer be equitable to imply such easements.^ A covenant, for example, which restrains all the lot owners in a certain prescribed section of a city from erecting upon their lands 1 Binison u. Bulttnan, 3 N. Y. App. « Trustees of Columbia College o. Div. 198; Turner v. Howard, 10 N. Y. Lynch and Thacher, 70 N. Y. 440, 87 App. Uiv. 555; Trustees of Columbia N. Y.311; Fourth Presbyterian Church College V. Lynch, 70 N. Y. 440, 447; v. Steiner, 79 Huu (N. Y.), 314; B. E. Pom. Eq. Jur. § 1295. & C. R. Co. <;. N. Y. L. E. & W. R. Co., 2 Clark V. Martin, 49 Pa. St. 289, 290. 123 N. Y. 316 ; Holt w. Fleischman, 75 ' Birason ti. Bultman, 3 N. Y. App. N. Y. App. Div. 593. Div. 198. EASEMENTS. KINDS. HOW CREATED. 191 any building except three story, brown stone front, private residences, may be enforced by all those for the benefit of whose land it was created, so long as that style of dwelling is suitable and in keeping with the locality. But when manu- facturing or business establishments have so encroached upon this section that it would be a detriment to the property to still insist on the observance of the covenant, then equity will not grant an injunction against its breach, on the ground that any easement or servitude is to be implied. ^ A change in the character of the neighborhood, however, will not do away with equitable easements while they are still useful and important to the various lot owners, though in different ways and for different purposes from those originally intended.^ And it is also to be carefully noted that no alteration in the buildings or occupations in the locality, or other change in the character of the neighborhood, will destroy the right of a grantor and those who succeed to his interest to sue at law for the breach of an express covenant in his deed, or to re- enter and defeat the estate of the grantee for violation of a condition therein expressed. Thus, if A convey land to B by a deed in which B covenants that certain trades or kinds of business shall not be carried on upon the premises, A and all those who succeed to his rights may always maintain an action at law against B and those in privity with him for any violation of such agreement; and this regardless of any changes that may occur in the neighborhood. Among those who succeed to A's rights under such circumstances have been classed subsequent purchasers of lots adjoining B's or reasonably close to the same ; for in favor of such proprietors it has been held at law that the negative easements were directly created. But contiguous owners, who bought their parcels of A before the sale to B, and those whose lots are so situated in relation to B's that it can not be said as a matter of law that the covenant was directly made for their benefit, can have no remedy against B except in so far as equity affords one because it raises equitable easements ; and such easements will cease to be when the working out of justice among the respective lot owners no longer requires their existence.^ 1 Trustees of Columbia College v. '^ Zipp v. Barker, 40 N. Y. App. Lynch and Thacher, 70 N. Y. 440, 87 Div. 1. N. Y. 311. ' Amerden v. Deane, 132 N. Y. 355; 192 KINDS OF REAL PROPERTY. It follows, moreover, from the above-stated principles, and has also been expressly decided, that if he who seeks to enjoin the breach of an equitable easement be shown to have broken the stipulation upon which it rests, or to have know- ingly acquiesced in frequent violations of it by his neighbors, equity will refuse him the relief for which he prays when he asks for an injunction against its breach by others.^ d. Easements created hy Prescription. § 153. Prescription defined and explained. — Prescription is a mode of acquiring the ownership of incorporeal heredita- ments by long-continued ilser or enjoyment. It originated in the desire of the courts to quiet titles, and to put an end to long and expensive litigation in cases in which the evidence adduced would be vague and unsatisfactory because of the antiquity of the facts and events with which it must attempt to deal. This judicial tendency has been the primary cause of the growth of three methods of obtaining property, which are now well established in our law, namely, by custom, by adverse possession, and by prescription. Custom is distin- guished from prescription in that the former is a mere local usage, not annexed to any particular person, but belonging to the community rather than to its individuals, while the latter is a personal usage or enjoyment confined to the claimant and his ancestors or those whose estate he has acquired.^ Thus, a privilege for the inhabitants of a certain town or parish to dance and play games on a particular piece of land may grow out of a custom immemorially continued;^ but if the owner of a lot of land has a right of way over his neighbor's field because he, or he and his grantors, have walked across it for many years, he is the owner of an easement founded on Rowland 1). Miller, 139 N. Y. 93, 104; must obtain releases from all the neigli- People ex rel. Frost v. N. Y. C. & H. boring proprietors who have a right to E. Co., 168 N. Y. 187, 194; Fourth enforce the easements, and also from the Presbyterian Church v. Steiner, 79 Hun grantor (or his successors in interest) in (N. Y.), 314. See Woodhaven June. connection with whose deed or transfer L. Co. V. Solly, 148 N. Y. 42. the restrictive stipulations originated. It follows from these principles that, i Moore v. Murphy, 89 Hun (N. Y.), when the owner of a lot of land which 175. See Woodhaven June. L. Co. v. is encumbered by equitable easements Solly, 148 N. Y. 42. desires to do anything thereon in viola- ^ Blackat. Com. p. *263. tion of the restrictions, in order in doing ^ Fitch v. Kawling, 2 H. Blackst. so to become secure against subsequent 393. See § 170, infra. attacks both at law and in equity, he EASEMENTS. KINDS. HOW CREATED. 193 prescription. Adverse possession differs from both custom and prescription in that it is, properly spealcing, a means of acquiring title to corporeal hereditaments only, and is usually the direct result of statutes of limitations;^ while they are the outgrowth of common-law principles, with but little aid from the legislature, and, properly speaking, have to do with the acquisition of no kind of property except incorporeal hereditaments.''* § 154. History and Development of Prescription. — In the ancient common law, prescription meant the acquisition of an incorporeal hereditament by enjoying it for so long a time that there was no evidence as to when it began to be used. He who rested his claim to a right upon prescription must show immemorial enjoyment of it by himself or by those under whom he claimed — an exercise of it so long continued that "the memory of man runneth not to the contrary. "^ After the troublous times of Richard I., because of the great difficulty in tracing titles back beyond that period, it became less and less customary to attempt to do so ; and, by the year 1275, the law was settled that a right might be established by prescription if its continued and uninterrupted adverse user could be shown to extend backward as far as the beginning of his reign (1189).* But as this period became unreasonably long, in the lapse of years, the time necessary to raise a strict prescription was limited by a statute in the 32nd year of Hen. Vin. (1541), at sixty years ;^ and, subsequently, the courts, finding the necessity for proving even that length of user to be inconvenient and burdensome, looked about them for some principle upon which it might be further shortened. This they obtained by inventing the fiction of a grant made and lost in modern times. And when they sought to fix a period, after the lapse of which a grant should be presumed, they found a ready analogy in the twenty years prescribed by 1 The passing of corporeal heredita- or enjoyment. Merlin, Repertoire de menta by adverse possession is discussed Jurisprudence, title Prescription, sect, in dealing with title to real property. 1 ; 11 Law Mag. & Rev. 109. 2 See Boyce v. Mis. Pac. R. Co., 186 « Jones, Ease. § 158. Mo. 583. ' Coolidgey. Learned, 8 Pick. (Mass.) « Lomax.Dig. 614,6ir); Lit. § 170; 503, 508 ; Ricard o. Williams, 7 VVlieat. Co. Lit. 115 a; Termes de la Ley, title (U. S.) 59 ; Tyler o. Willdnson, 4 Mass. Prescription; Mayor of Hull u. Homer, 402; 2 Greenl. Ev. § 539. See Ar- Cowp. 102, 109. buclsle V. Ward, 29 Vt. 43 ; Okeson v. The civil law also uses the word Patterson, 29 Pa. St. 22; (^rawson v. prescription to denote the means of ac- Primrose, 4 Del. Ch. 643. quiring intangible rights by long user 13 194 KINDS OF EEAL PROPERTY. the statute of Limitations (21 Jas. I. ch. 16, a. d. 1623) as the time within which one might acquire the title to corporeal hereditaments by adverse enjoyment. This length of enjoy- ment was accordingly settled upon in England as suflScient to establish a prescriptive right. It was adopted as a period adequate to raise a presumption of a grant which had been lost and therefore could not be produced as evidence ; or, as the most modern theory is, to raise a conclusive presumption of a grant, or some other legal origin, at least twenty years old. And such is the English doctrine of to-day, according to which prescriptive easements may be created by twenty years adverse user or enjoyment of the way, drain, water-flow, or other incorporeal thing. ^ In summary, then, the ancient English doctrine, upon this topic, was the resting of title by prescription upon immemorial usage ; while the modern one is based upon the conclusive presumption of a grant or other legal origin, after twenty years of uninterrupted adverse enjoyment.2 The statute 2 & 3 Will. IV. ch. 71 (1832), which is known as the Prescription Act, has settled a number of questions, about which the English courts found difficulties because of the differences between the ancient theory and the modern one. That statute fixes the exact time of prescrip- tion, for certain classes of easements (the prevailing period being twenty years), and particularly prescribes what must be proved in order to establish the right to them.^ In the United States, the modern English doctrine of a 1 Angus V. Dalton, L. K. 4 Q. B. Div. ag a fact, whether there were any evi- 162 ; Bright v. Walker, 1 Cr. M. & R. dence to that effect or not, that there 211 ; Bass v. Gregory, L. R. 25 Q. B. had been a grant given and lost. But Div. 481. this method of apparently making the ^ Angus V. Dalton, L. R. 4 Q. B. Div. question purely one of fact to be deter- 162; Bass v. Gregory, L. R. 25 Q. B. mined by the jury was found to be too Div. 481 ; Parker c. Foote, 19 Wend. great a strain on the consciences of (N. Y.) 309. For a series of years, jurors, and was therefore abandoned in during the progress of the changes de- favor of the legal fiction of a grant pre- scribed in the text, judges were in the snmed by the court. Bass t'. Gregory, habit of leaving it to juries to presume L. R. 25 Q. B. Div. 481, 484. The mod- a grant, as a matter of fact, from a long ern theory of conclusively presuming exercise of an incorporeal right ; and a grant, or some other legal origin, is they usually adopted the period of discussed more at length, § 163, infra. twenty years by analogy to the statute ^ Bright v. Walker, 1 Cr. M. & R. of limitations. If one jury failed to find 211, 217; Sturges v. Bridgman, L. 11. a grant, as a matter of fact, from such 11 Ch. Div. 852; Dalton v. Angus, period of user, it was dismissed and L. R. 6 App. Cas. 740 ; 1 Greenl. Ev. another empanneled; and this process § 17, note 1 ; Tud. Lead. Cas. 14. was continued until some jury concladed EASEMENTS. KINDS. HOW CHEATED. 195 presumed grantor other legal origin is generally adopted; but the length of time, which must elapse before such presump- tion will be indulged, varies in the different states with the variations in the periods prescribed by the statutes of limita- tions. Thus, in Connecticut it is fifteen years, in analogy to its statute of limitations ; ^ in Pennsylvania, as the result of a like analogy, it is twenty-one years ;^ while in New York, for a similar reason, it was formerly twenty-five years and is now twenty.^ But in some cases, in this country, the fiction of an implied grant has been repudiated and the prescriptive period made the same as that fixed by the statute of limita- tions, by direct analogy and without regard to any presump- tion as to the origin of the right.* And in a few states there are special statutes dealing with the subject of the acquisition of easements by prescription.^ The nature of the presumption of a grant, or other legal origin, will be more fully discussed after the requisites of prescriptive easements have been examined.^ § li55. Nature of the User requisite to create Easements by Prescription. — The user during the twenty years (or other period determined as is above explained from the statute of limitations of the state in which lies the land affected) is required by the law, in order to give rise to a prescrip- tive easement, to have been (a) open, visible, and notorious, (b) continuous and uniform, (c) peaceable and uninterrupted, (d) with an adverse claim of right, and (e) with the acquies- cence of the owner of the land, (f) who was seised in fee and (g) who, at the time of the beginning of such enjoyment, was 1 Sherwood v. Burr, 4 Day (Conn.), mont, and Virginia it is fifteen years; 244, 249 ; Legg v. Horn, 45 Conn. 409, in Oliio and Pennsylvania it is tweuty- 415. one years, and in the other states 2 Strickler v. Todd, 10 S. & R. it is twenty years. Jones, Ease. § 160, (Pa.) 63, 69. note and statutes and cases cited. 3 Gerard on Titles to Real Estate * Krier's Private Road, 73 Pa. St. (4th ed.), p. 759 ; N. Y. Code Civ. Pro. 109. See Workman v. Curran, 89 Pa. §§ 365, 366. In Arizona Territory, St. 226 ; Atty.-Gen. v. Revere Ruhber California, Idaho, and Nevada the Co., 152 Mass. 444 ; Schulenberg v. period is five years ; in Arkansas, Zimmerman, 86 Minn. 70. Florida, and Tennessee it is seven ' See Ricard v. Williams, 20 U. S. years; in Alabama, Iowa, Mississippi, (7 Wheat.) 59, 110; Hazard v. Robin- Missouri, Montana, Nebraska, New son,3 Mason (U. S. Cir. Ct,), 272. Dis- Mexico, Oregon, Texas, Washington, trict of Col. v. Robinson, 180 U. S. 92 ; West Virginia, and Wyoming it is ten Simpson v. Boston & M. R. Co., 176 years; in Connecticut, Indiana, Kansas, Mass. 359. Kentucky, Michigan, Oklahoma, Ver- ^ § 163, infra. 196 KINDS OF REAL PROPERTT. free from disability to resist its imposition upon his property. Each of these requisites is to be briefly explained. § 156. (a) The User must be Open, Visible, and Notorious. — By this is meant that it must be of such a nature and fre- quency that the owner of the servient land knows, or must be reasonably presumed to know, of its existence. If, for example, the right had been claimed only once or twice dur- ing the twenty years, or the use had occurred only in the middle of the night or in some other secret manner, this ■would not be likely to have given any notice to the owner of the land affected, and would not be sufficient for the establish- ment of an easement. 1 But if the enjoyment were such that the landowner could reasonably have known of its existence, even though he had no actual knowledge thereof, that would be all in this respect that the law requires.^ § 157. (b) The User must be Continuous and Uniform. — In some of the books and cases, the form of expression is that the enjoyment must have been "continuous and uninterrupted," that is, that it must neither have been stopped or suspended by the claimant of the right in such a manner as to indicate an abandonment, nor interfered with by the owner of the land over which the right is exercised so that the substantial coutinuity of the prescriptive period was broken.^ The inter- ference by the owner of the servient land is discussed in the following section; and simply the acts and omissions of the claimant of the right, which may interrupt the running of the period of adverse user, are to be here considered. This involves inquiries as to: first, what is to be regarded as con- tinuous enjoyment; second, how far uniform or similar in character the acts of enjoyment must be; and, third, how far the acts of one person may be united with those of another so as to make a continuity for the period of time required. 1 Gilford V. Winnepiseogee Lake andtheownerof the adjoining land may Co., 52 N. H. 262 ; Deerfield o. Conn. be said to have lost the full benefit of Eiv. R. Co., 144 Masa. 325; Tread- riglits through his ladies, it may be a well V. Inslee, 120 N. Y. 458 ; Flora v. fair test of whether the enjoyment was Carbean, 38 N. Y. Ill ; Esling v. Wil- open or not to ask whether it was such liams, 10 Pa. St. 126; Cleveland v. tliat the owner of the adjoiuiug laud. Ware, 98 Mass. 409; Dee v. King, 73 but for his laches, must have known Vt. 375. what the enjoyment was and how far it 2 O'Brien t). Goodrich, 177 Mass. 32; went." Lord Blackburn, in Daltou t. Lewis V. N. Y. & H. R. Co., 162 N. Y. Angus, L. R. 6 App. Cas. 740, 827. See 202; Boyce v. Mis. Pac. R. Co., 168 Ward u. Warren, 82 N. Y, 265. Mo. 583. " And in cases where the en- " Wash. Ease. (4th ed.) p. 167, p. joyment was in the begiuuiug wrongful, * 101 . EASEMENTS. KINDS. HOW CREATED. 197 First. Generally speaking, a voluntary breach of the continuity of user involves such conduct on the part of the claimant of the right as to indicate an abandonment — a giv- ing up of the use for a time with intent not to resume the same.i If, because of some accident, or for the benefit or convenience of the claimant of the right, it be not exercised for some time, perhaps even for some of the years during the twenty, this would not defeat the acquisition of the easement, unless it was reasonable to presume from all the circum- stances attending the cessation of the user that it was for the time being intended to be relinquished.^ Whether or not such .intention is to be presumed will depend, to a large extent, upon the character of the right claimed. There must, for example, be a degree of continuity in the use of a mere passageway different from that of flowing land with water, or .enjoying light and air over the property of another; and the failure to employ the former for a considerable length of time would be less indicative of an intention to relinquish it than would the stopping of the latter for a much shorter period.^ In one case, the easement claimed was the right to carry on in the claimant's building a trade offensive to his neighbors; and it was held that the suspension of its exercise for two years, there having been no interference by others, was not such an interruption as to affect the right.* This decision is mentioned as a border-line case. It is criticised in Carlisle V. Cooper,^ by the New Jersey court, as allowing too great a voluntary interruption of the enjoyment. And it is certainly in accordance with the weight of authority to state that from long-continued non-user alone, before the prescriptive period is complete, the courts may presume an intent to abandon the claim. Thus, where the person who claimed a right of way had passed over the land in 1819, and then again in 1824, and from then on without further intermission until 1843, it was held not to be a continuous use except from 1824.^ And in 1 Pollard 0. Barnes, 2 Cush. (Mass.) (N. J.), 256, 261 ; Winnepiseogee Lake 191. Co. f. Young, 40 N. H. 420. 2 Earl De La Warr v. Miles, L. R. ^ Bodfish v. Bodfish, 10.5 Mass. 317; 17 Ch. Uiv. 535 ; Carr v. Foster, 3 Q. B. Cox ;;, Forrest, 60 Md. 74. 581 ; Hall v. Augsbury, 46 N. Y. 622 ; * Dana u. Valentine, 5 Met. (Mass.) Hesperia Land & Water Co. o. Rogers, 8, 13. 83 Cal. 10 ; Dana v. Valentine, 5 Met. ^ 4 c. E. Green (N. J.), 256, 261. (Mass.) 8; Wood u. Kelley, 30 Me. 47 ; « Watt u. Trapp, 2 Rich. (S C.) Haog V. Delorme, 30 Wis. ,591. But 136. see Carlisle v. Cooper, 4 C. E. Green 198 KINDS OF REAL PROPERTY. the leading case of Pollard v. Barnes,^ where the right con- tended for was to pile lumber upon another's land, and this had been enjoyed from 18:22 to 1846, except between the years 1829 and 1834 when no lumber had been piled there, it was held that there had been a voluntary abandonment of the right which destroyed the continuity of its enjoyment, and that the time in favor of the claimant being limited to that from 1834 to 1843 did not constitute the requisite prescriptive period. The conclusion, to be drawn from the somewhat conflicting decisions, appears to be that all the circumstances of each case are to be investigated to ascertain the cause of the cessa- tion of the use, and that the continuity of the enjoyment is to be regarded as broken when it is reasonable to presume, either from the length of the non-user alone, or from that element in connection with the other facts, that there was an intention to abandon the claim. ^ It is to be added that the time, from, which the running of the period is to be reckoned in deter- mining whether or not there has been a sufficient length of continuous enjoyment, is when the injury or invasion of the servient owner's right begins, and not the time when the party producing such injury begins the acts which bring about that result. Thus if one claim a prescriptive right to flow the land of another with a mill-pond, he must show, in order to sustain his contention, that the requisite period has elapsed since the dam was so far completed as to cause the fiowage upon that land to begin ; and he can not have the benefit of the time required for the construction of the dam, during which time the water was not raised upon his neighbor's property.^ Second. The nature and character of the acts of enjoy- ment must be substantially uniform and the place where they are performed must be practically the same throughout the entire twenty years, or other prescriptive period. " While the law does not require the use to be, in all respects, identical ' 2 Gush. (Mass.) 191. for twenty years or more under a claiiu - " A ready illustration would pre- of right, it would be suiBcieut, it is be- sent itself to the mind where, from lieved, to acquire thereby an easemeut analoc;y to the above cases, there would of way for that purpose. Nor would seem to be no want of continuity, al- tliis right be affected by the long inter- though the easemeut was but rarely vals between the times of the user." used. Suppose a man had been accus- Wash. Ease. (4th ed.) p, 169, p.* 102, tomed to go across another's land to a citing Carr v. Foster, 3 Q. B. .581. meadow, once a year, for the purpose * Branch u. Uoane, 17' Conn. 402, ul' cutting and bringing away the grass IS Coun. 233; Crosby v. Bessey, 49 growing thereon, and had continued this Me. 543 ; Polly i'. M'Call, 37 Ala. 20. EASEMENTS. KINDS. HOW CREATED. 199 and the same, both in manner and extent, in order to gain an easement; any material change in these respects, while the right is being gained by prescription, may defeat the same. If it shall have been actually gained, a mere failure to use it to the extent to which the right has been acquired will not affect such right. " ^ It was, accordingly, decided that the New York Elevated Railroad Company had not gained a right, against the owners of lots fronting on the street over which the servitude was claimed, to continue to operate its road upon that street, by virtue of the fact that it had maintained thereon a tentative, experimental structure for eleven years, and had then taken it down and built in a different position and operated in a different manner for nine years its perma- nent elevated road.^ So, in a case in which one flowed his neighbor's land for ten years by using a dam of a certain height, and then increased the height of the dam so that more land was covered by the water, and continued this for ten years longer, it was held that he had thereby acquired an easement over only so much of his neighbor's property as was flowed during the first ten and entire twenty years. ^ It is chiefly upon this principle that the law forbids the gaining of an easement by prescription to have the boughs of a tree overhang another's land, or its roots remain imbedded therein. The growth of the tree produces a constant change in the burden and inconvenience which it imposes.* But if a right be asserted and enjoyed during the entire prescriptive period, with only slight or immaterial alterations, an easement may emerge as the result.^ All that the law requires is that the 1 Ballard u. DyBon, 1 Taunt. 279 ; son v. Clapp, 6.5 Conn. 365. The owner Cowell o. Thayer, 5 Met. (Mass.) 253 ; of the land, into which the roots extend Homer v. Stillwell, 35 N. J. L. 307 ; and over which the branches hang, may Wash. Ease. (4th ed.) p. 171, p. *104. lop them off, although they have been 2 Araer. Bank Note Co. v. N. Y. El. there for twenty years ; and he may do R. Co., 129 N. Y. 252; Homer v. Still- this without the necessity for giving any well, 35 N. J. L. 307. notice to his neighbor, the owner of the ' Baldwin v. Calkins, 10 Wend. tree. Hoffman v. Armstrong, 48 N. Y. (N. Y.) 167 ; Whittier «. Cocheco Mfg. 201 ; Dubois v. Beaver, 25 N. Y. 123; Co., 9 N. H. 454 ; Morris v. Commander, Lemmon v. Webb (1894), 3 Ch. 1, 17 ; 3 Ired. (N. C.) 510 ; Wright v. Moore, Pickerings. Rudd, 4Camp. 219, 1 Stack. 38 Ala. 593, 598. This is an application 56; Gale, Ease. (6th ed.) p. 461 ; Jones, of the principle that the extent of the Ease. § 177. easement is fixed by the user. Tyler v. ^ Belknap v. Trimble, 3 Paige (N. Y.), Cooper, 47 Hun, 94, aff'd 124 N. Y. 577 ; Davis v. Brigham. 29 Me. 391 ; 026 ; Taylor v. Millard, 118 N. Y. 244. Stackpole v. Curtis, 32 Me. 383 ; Whit- * Lemmon v. Webb (1894), 3 Ch. 1 ; tier v. Cocheco Mfg. Co., 9 N. H. 454. Norris v. Baker, 1 Rolle, 393; Robin- 200 KINDS OP REAL PROPERTY. adverse user shall impose substantially the same burden upon the same land during the whole of the requisite time.^ Third. It is not necessary to the acquisition of a prescrip- tive easement that the user shall be by the same person during the entire period, provided the possession and enjoyment of the right have been legally continued from one owner of the dominant estate to the other. ^ If, for example, an ancestor use a way over his neighbor's field for twelve years, and, after his death, the heir who inherits his land continue the user for eight years more, the prescription will be complete.^ The same will be true when the successive owners of the land in favor of which the right is claimed are vendor and vendee, devisor and devisee, or otherwise related in privity of estate to each other, so that the title of one is legally derived from the other. And, in like manner, there may be three or more persons, upon each of whom in succession the title to the dominant estate devolves by some legal process, and the sum total of whose periods of enjoying the right contended for is the time necessary to cause an easement to arise.* But when a succeeding holder does not claim in any way through his predecessor, as if, for example, one has disseised the other, or the first occupant has abandoned the land and the enjoy- ment of the right contended for, and the other has then entered and possessed both, the time of the user by one can not be tacked on to that of the other for the purpose of completing the prescriptive period.^ § 158. (c) The User must be Peaceable and Uninterrupted. — Since the creation of an easement by prescription rests upon the presumption of a grant which has been lost and therefore can not be produced as evidence, no easement can arise in that way, if, during the time needed for its acquisi- tion, the owner of the servient estate has interrupted the use or successfully protested against its continuance. An inter- ruption by him consists in his cutting oft' and preventing the 1 BelknapiJ. Trimble, 3 Paige (N.Y.), Leonard t/. Leonard, 7 Allen (Mass.)> 577 ; BuUen v. Runnels, 2 N. H. 255 ; 277. Luttrel's Case, 4 Rep. 87; Wash. Ease. * Cole v. Bradbury, 86 Me. 380. (4th ed.) p. 172, p. * 105. 5 Holzman :;. Douglas, 168 U. S. 2 Leonard v. Leonard, 7 Allen 278 ; Watkins v. Peck, 13 N. H. 360 ; (iVIass.), 277; Sargent v. Ballard, 9 Melviu !•, Whiting, 13 Pick. (Mass.) Pick. (Mass.) 251 ; Williams v. Nelson, 184; McFarliu v. Essex Co., 10 Gush. 23 Pick. (Mass ) 141 ; Cole w. Bradbury, (Mass.) 304; Okeson v. Patterson, 29 86 Me. 380. Pa. St. 22 ; Tracy ./. Athertou, 36 Vt. 5 Cole u. Bradbury, 86 Me. 380; 503. EASEMENTS. KINDS. HOW CREATED. 201 enjoyment for a time. However brief such an interference may be, it will stop the running of the prescriptive period. Thus, the purchaser of a mill property, which was conveyed to him by metes and bounds but at the end of which was an unfenced strip belonging to his grantor, had been accustomed for twenty years to pass regularly over a path across that strip, as the most convenient way of reaching the mill ; but his grantor had occasionally piled boards and other lumber upon the path and thus closed the passageway. It was held that the owner of the mill had not obtained a right of way by prescription.'' So when it has been necessary to employ force in order to continue the enjoyment,^ or when one path or route has been exchanged for another and neither has loeen used for the entire requisite period,^ no easement is thereby brought into existence.* The requirement that the enjoyment shall ■ be peaceable means that it must be without any forcible resistance, or legal proceedings against it, on the part of him over whose land the right is claimed; and, in some jurisdictions, that it must be without his verbal protest or remonstrance. His com- mencing an action at law to recover damages for the past user, or a suit in equity to enjoin its continuation, is recog- nized by all the bourts as an effectual interruption of the enjoyment.^ In some states, moreover, if he remonstrate with the claimant of the right, or forbid him to come upon the land, and do nothing more, it is held in well considered cases that this is sufficient to break the continuity of the prescriptive period. ^ But, in the majority of the states of this 1 Plimpton V. Converse, 42 Vt. 712. 441 ; Pollard v. Barnes, 2 Cush. (Mass.) 2 Eaton V. Swansea Water Works 191. Co, 17 Q. B. 267, 275; Livett v. Wil- ^ Eaton v. Swansea Water Works son, 3 Bing. 115; Stillman v. White Co., 17 Q. B. 267 ; Workman u. Curran, Rock Mfg. Co., 3 Woodb. & M. (tJ. S. 89 Pa. St. 226 ; Postlethwalte v. Payne, Cir. Ct.) 538, 549 ; Powell v. Bagg,' 8 8 Ind. 104 ; and see Lanford v. Poppe, Gray (Mass.), 441 ; Lehigh Val. R. Co. 56 Cal. 73. V. McFarlan, 30 N. J. Eq. 180, 43 N. J. « In Powell v. Bagg, 8 Gray (Mass.), L. 605. 441, 443, which was an action against The enjoyment must be per patien- one who claimed, by virtue of twenty tia?n veri domini qui seivit et non pro- years' use, the right to an aqueduct over hibuit, sed pprmisit de consensu tactio. his neighbor's land, although within PoweUy.Bagg, 8 Gray (Mass.), 441,443. that time he had been denied the right 8 Totel V. Bonnefoy, 123 111. 653; by such neighbor and ordered off the Peter.s v. Little, 95 Ga. 151; Pope v. premises, — Bigelow, J., said : "It was Devereux, 5 Gray (Mass.), 409; Mason not necessary for the plaintiff tocommit u. Davison, 27 Nova Scotia, 84. an assault and battery on the defendant * Powell o. Bagg, 8 Gray (Mass.), or his servants, or to use actual force to 202 KINDS OP EEAL PROPERTY. country and the latest decisions both here and in England, such a method of interrupting the right and causing the run- ning of the requisite time to begin de novo is denied; and it is held that this can be done only by some overt act of inter- ference, other than mere words whether written or spoken. ^ In some of the states, such as Indiana, Iowa, Maine, and Massachusetts, statutes provide for notices which, when given as required by the acts, shall have the effect of interrupting or preventing the acquisition of easements by continuous enjoyment.^ § 159. (d) The User must be with an Adverse Claim of Right. — It must be in opposition, express or implied, con- scious or unconscious, to the owner of the land over which the right is claimed. The attitude of him who is acquiring an easement by prescription must be such that, if he were eject them from the premises in order to disturb and break tiie coutiuuity of possession or use, and prevent it from ripening into a title by lapse of time." Also Stillman c. White Rock Mfg. Co., 3 Woodb. & M. 538 ; Livett v. Wil- son, 3 Biiig. 115 ; Smith V. Miller, 11 Gray (Mass.), 145 ; Workman v. Curran, 89 Pa. St. 226 ; Chicago & N. W. R. Co. u. Hoag, 90 111. 339 ; Nichols u. Aylor, 7 Leigh (Va), 5-16; Field u. Brown, 24 Gratt. (Va.) 74. ^ Angus V. Dalton, L. R. 6 App. Cas. 740 ; Kimball v. Ladd, 42 Vt. 747 ; School District v. Lynch, 33 Conn. 330, 334; Demiith v. Amweg, 90 Pa. St. 181; Lehigh Val. R. Co. v. McFar- lan, 43 N. J. L. 605. In Kimball v. Ladd, the decision of Powell t. Bagg, supra, is distinguished ; and in Lehigh Val. R. Co. V. McFarlan, the argument upon this side of the controversy is well put by Depue, J., in a passage in which he says : " If the easement has been interrupted by any act which places tlie owner of it in a position to sue and settle his right, if he chooses to postpone its vindication until witnesses are dead or the facts have faded from recollection, he has only his own folly and supiueness to which to lay the blame. But if by mere protests and denials by his adversary, his right might be defeated, he would be placed at an unconscionable disadvantage. He could neither sue and establish his right, nor could he have the advantage usually derived from long enjoyment in quiet- ing titles. Protests and remonstrances by the owner of the servient tenement against the use of the easement rather add to the strength of the claim of a prescriptive right; for a holding in defiance of such expostulations is de- monstrative proof that the enjoyment is under a claim of right, hostile and adverse ; and if they be not accompanied by acts amounting to a disturbance of the right in a legal sense, they are no interruptions or obstructions of the en- joyment." Where verbal denials of the right are supported by some acts on the part of the landowner, it should or- dinarily be left to the jury to decide whetlier or not they are sufficient to amount to an interruption and prove a want of acquiescence in the user. Connor v. Sullivan, 40 Conn. 26 ; Wash. Ease. (4th ed.) p. 184, p. * 113. 2 Ind. 1 R. S. (1894) §§ 5746-5749; Parish r. K.aspere, 109 Ind. 586; Car- gar V. Fee, 140 Ind. 572; Iowa, R. S. (188S) §§ 3206-3210; State u. Birming- ham, 74 Iowa, 407 ; Maine, R. S. (1883) ch. 105, §§ 1, 13, 14; Cole v. Bradbury, 86 Me. 380 ; Mass. Pub. St. (1882) ch. 196, § 1 ; Hodgkius v. Far- rington, 150 Mass. 19; Jones, Ease. § 160, note. EASEMENTS. KINDS. HOW CREATED. 203 asked why he was so acting, his coi-rect answer would be that he was doing so against, or at least Without, the license or consent of the owner of the servient estate.^ When it appears that the eajoyment has been bj permission asked for, or for a rent paid, or for some other equivalent rendered,^ or when there is such a legal relation between the parties that the consent of the one to the acts of the other is to be presumed — as when the relation is that of landlord and tenant, or life-tenant and remainderman or reversioner ^ — ■ this ordinarily rebuts the presumption of a grant and thus destroys the foundation for a prescriptive easement. The criterion, upon which the American courts uniformly depend for determining whether or not the user has been adverse and under a claim of right, is well stated by the Supreme Court of South Carolina, as follows: "There must be an adverse possession or assertion of right, so as to expose the party to an action, unless he had a grant; for it is the fact of his being thus exposed to an action, and the neglect of the opposite party to bring suit, that is seized upon as the ground for presuming a grant in favor of long possession and enjoyment, upon the idea that this adverse state of things would not have been submitted to if there had not been a grant. " * When the acts of the one party are thus an invasion of the right of the other, they may lay the foundation for a prescriptive easement, even though they are performed in ignorance of the fact that they constitute in effect a trespass. Thus, if the owner of a parcel of land erect a house upon it in such a manner that the cornice extends over his neighbor's lot, and maintain it thus for the prescriptive period without any permission from the neighbor, he may obtain the right to have it continue in that position, even though he believed that he was building it entirely upon his own land.5 The actual invasion of the neighbor's right, and the absence of license or permission express or implied, 1 Easton v. Isted (1903), 1 Ch. 405 ; Arnold v. Stevens, 24 Pick. (Mass.) 106 ; Flora u. Carbean, 38 N. Y. Ill; Bur- Smith v. Miller, U Gray (Mass.), 145. bank v. Fay, 65 N. Y. 57 ; Morse u. s Gayford v. Moffatt, L. R, 4 Ch. Williams, 62 Me. 445; Blauchard v. App. 133, 135; I'hillips c. Phillips, 48 Moulton, 63 Me. 434; Oliver v. Hook, Pa. St. 178, 184. 47 Md. 301 ; Rose v. City of Farming- ■> Felton v. Simpson, 11 Ired. (N. C.) ham, 196 111. 226. 84 ; Mebane v. Patrick, 1 Jones {N. C), '^ St. Vincent Asylum o. Troy, 76 23; Jones, Ease. § 165, note 3; § 163, N. Y. 108 ; Grouse v. Wemple. 29 N. Y. infra. 540; Boyce f. Brown, 7 Barb. (N. Y.) = Grace M. E. Church c. "Dobbins, 80; Watkins <-•. Peck, 13 N. H. 360; 153 Pa. St. 294. 204 KINDS OF REAL PROPERTY. together constitute an enjoyment with an adverse claim of right. It follows that the claimant of a prescriptive right is not ordinarily required to prove a negative by directly producing evidence to the effect -that his holding was without license. The fact that he has enjoyed it during the entire requisite period is in itself sufficient to raise the presumption that it was adverse.^ If, on the other hand, his enjoyment be shown to have originated in a license, or to have been exercised at any time with the permission of the owner of the servient estate, it will be conclusively presumed to have been con- tinued under such authority until the time at which the claimant unequivocally shows that he abandoned his license and used the right adversely.^ "It is well known that a single lisp of acknowledgment by a defendant that he claims no title fastens a character upon his possession which makes it unavailable for ages. "^ So, where A gave to B permission to construct and use a drain though A's soil, it was held that B's use of the same for twenty years, without more being said or indicated concerning the matter, did not create an ease- ment in B's favor.* Bat where it was shown that the license to construct a drain was intended to be merely temporary, and that, after the expiration of the time for which it was meant to be given by the licensor, the licensee continued to use the drain for the prescriptive period, it was held that an easement was thereby acquired.^ When a grant of an easement by deed is shown, there is, of course, no room for any question as to prescription.^ It is also held that when by parol agreement one party is authorized to enjoy as his own a right over the land of another, and does 1 Afld the burden rests upon him v. Horn, 45 Conn. 409, 415; Taylor r. who alleges that the use has been by Garrish, 59 N. H. 560, 570; Speir v. virtue ot a liceuse or permission, to Town of New Utrecht, 121 N. Y. 420; prove that fact by afSrmative evidence. People ex rel. Cunuingham v. Osboru, Tyler v. Wilkinson, 4 Mason (U. S. Cir. 84 Hun (N. Y.), 441, 443. Ct.), 397; Parlier v. Foote, 19 Wend. 3 Colvin «. Burnet, 17 Wend. (N. Y.) (N. Y.)309; Nicholsu. Wentworth, 100 564, 568; Stewart w. White, 128 Ala. N. Y. 455 ; Ward v. Warren, 82 N. Y. 202. 265, affirming 15 Hun, 600; Esling u. * Smith u. Miller, 11 Gray (Mass.), Williams, 10 Pa. St. 126; Steams u. 145. Janes, 12 Allen (Mass.), 582; Olney ^ Wiseman v. Lucksinger, 84 N. Y. V. Feniier, 2 R I. 211 ; French u.Mars- 31. tin, 24 N. H. 440; Jones, Ease. § 186. 8 Chamber Collier Co. o. Hopwood, 2 Jewett V. Hussey, 70 Me. 433 ; L. R. 32 Ch. Div. 549 ; Hoyle c. N. Y. & Arbuckle u. Ward, 29 Vt. 43; Legg N. E. R. Co., 60 Conn. 28.' EASEMENTS. KINDS. HOW CREATED. 205 SO, this makes the user adverse, and its continuation for the proper time may create an easement.^ The user by virtue of a mere license, so that it may be said to be the enjoyment of the right of the licensor with his permission, will not lay the foundation for a prescriptive easement; but the enjoyment of the right as Ms own by the claimant of the easement will be available to support his claim, even though it originated in an oral contract with the owner of the servient estate. ^ The requirement that the user shall be with an adverse claim of right involves an element sometimes stated as a distinct and independent requisite, namely, that it shall also be exclusive. By this is to be understood that the right must not depend for its exercise upon a similar privilege existing in others, but the claimant must enjoy it, not only adversely to the owner of the servient estate, but also independently of all other persons.^ Therefore a person can not acquire by pre- scription a right of way as an easement over a public high- way.* And when a space around a building is left open so that people generally cross it when convenient, and a neigh- boring proprietor uses it more frequently for that purpose than do other persons, he can not thereby obtain a prescriptive easement, unless he lays out or indicates in some manner a distinct path appropriated to the beneficial use of his own laud.^ By the principle under discussion is not meant that a clear right of way or other private easement is to be defeated 1 Ashley v. Ashley, 4 Gray (Mass.), p. 155, p. *89. See also Jones, Ease. 197; Wiseman v. Lueksinger, 84 N. Y. § 179. 31 ; Jewett v. Hussey, 70 Me. 433, 443 ; s Wheeler v. Clark, 58 N. Y. 267 ; Arbuckle v. Ward, 29 Vt. 43, 52 ; Sum- Kilbaru v. Adams, 7 Met. (Mass ) 33 ; ner v. Stevens, 6 Met. (Mass.) 337. Thomas v. Marshfield, 13 Pick. (Mass.) 3 "The doctrine of Ashley v. Ash- 240; Ross v. Thompson, 78 Ind. 90. ley" (4 Gray (Mass.), 197) "has been * Hamilton v. White, 1 Seld. (N. Y.) much discussed. The rule seems to be, 9; Driggs u. Phillips, 103 N. Y. 77; that when the oral agreement which is Glaze v. Western, etc. R. Co., 67 Ga. 761; followed by user amounts to a grant of Eoss (,■. Thompson, 78 Ind. 90. The the easement claimed and the grantee rights which an individual has over a thereafter uses the easernent, claiming public highway are not strictly speaking it as his own, for the period of prescrip- easements, but servitudes enjoyed by tion, such user will give a prescriptive him in common with the rest of the right to the easement ; but if the parol public. But an easement may be gained agreement amounts merely to a license across a railroad track by twenty years' or permission to use the easement, the enjoyment. Fisher v. N. Y. & N. E. period of prescription does not begin to R. Co., 135 Mass 107, 108. run till the licensee does some act which ^ Kilburn v. Adams, 7 Met. (Mass ) unequivocally shows that he abandons 33. See Smith r>. Hughes, 12 Vt. 113; his license and is using the easement Curtis v. Angier, 4 Gray (Mass ), 547. adversely." Wash. Ease. (4tli ed.) 206 KINDS OP REAL PROPERTY. merely because others have used the same road cr enjoyed a similar right; two or more persons may each acquire, by adverse enjoyment, an independent right in the same thing : ^ but it is meant that the user must be distinct and independent, disassociated from the rights of other people and standing out by itself adverse to the rest of the world. ^ Thus, tenants in common of a parcel of land ma]/ acquire, in connection with its use, an easement over another lot belonging to one of them in severalty; but in such a case the proof on which the jury, is to find the adverse character of the enjoyment must be very clear and conclusive.^ It need hardly be added that, since one can not use a thing adversely to himself, there can be no creation of an easement by prescription while both tenements are wholly possessed by the same person.* § 160. (e) The User must be Twith the Acquiescence of the Owner of the Land over which the Right is claimed. — This re- quirement, though frequently stated as distinct, is in reality a mere combination of two of those above discussed ; namely, the enjoyment must be open, visible, and notorious, so that the landowner either knows of its existence or could reasonably do so, — so that the law treats him as having knowledge of it, — and it must be peaceable and uninterrupted. He is proved to have acquiesced when knowledge of the invasion of his right and the absence of effectual resistance of such invasion are established against him." And this is done when it is shown that the user was " ita quod, nee per vim,, nee elam, nee precario."^ As is above stated, the most recent cases both in England and in this country hold that effectual resistance is not made by mere verbal remonstrances or denials of the right, but requires either forcible opposition or proceedings in law or equity against him who is seeking to acquire the easement.'^ 1 Bolivar Mfg. Co. v. Neponset Mfg. Worthington v. Gimson, 2 El. & El. Co., 16 Pick. (Mass.) 241 ; Kent v. 618, 624. Waite, 10 Pick. (Mass.) 138; Davis v. ^ Wash. Ease. (4th ed.) pp. 180-184, Brigham, 29 Me. 391. pp. * 111-* 113. 2 Davis V. Brigham, 29 Me. 391 ; <> Bract, fol. 222, D. 39, 3, 23: Co. Curtis D. Angier, 4 Gray (Mass.), 547; Lit. 114 a; Eaton v. Swansea Water Borden v. Vincent, 24 Pick. (Mass.) Works Co., 17 Q. B. 267 ; Solomon v. 301. Vintner's Co., 4 H. & N. 602 ; Angus 8 Bradley Fish Co. v. Dudley, 37 v. Dalton, L. E. 6 App. Cas. 740 ; Con- Conn. 136. nor u. Sullivan, 40 Conn. 26 ; Kane v. * Olney v. Gardiner, 4 M, & W. 496 ; Bolton, 36 N. J. Eq. 21 ; Workman r. Clayton v. Corby, 2 Q. B. 813 ; Lady- Curran, 89 Pa. St, 226. man v. Grave, L. R. 6 Ch. App. 763; 7 § 158, supra. EASEMENTS. KINDS. HOW CREATED. 207 § 161. (f) The Adverse User must be against a Lando'wner who is seised in Fee Simple. — Prescription operates only against one who is "capable of making a grant. "^ And since a tenant for years or for life can not grant away the interest of the remainderman or reversioner, it is uniformly iield that adverse enjoyment of a right over land in possession of such a temporary holder does not create an easement that can prevail against the succeeding owner. ^ Where, for example, a right of way was asserted because of adverse use and enjoyment for time out of mind, over land possessed for most of the time by a tenant for ninety-nine years, whose lease had recently expired, it was held that the claim was not effectual against the owner of the inheritance.^ It is not settled by the authorities whether or not an easement may be obtained by use against a lessee or other temporary holder, while the land is in his possession. He may undoubtedly grant such a right to last during the con- tinuance of his own estate;* and it would seem that adverse enjoyment against him for twenty years ought to give rise to an easement that would continue during the residue of his term. Likewise, if the servient estate be in the possession of one who has a conditional or determinable fee therein, it is reasonable to assume that an easement might be acquired by prescription that would avail against him so long as his estate lasted, and terminate with his interest in the land.^ In Wallace v. Fletcher,^ it is said by Bell, J., that "the tenant for life or years may grant easements, or permit them to he acquired by user, and they will be valid against himself and those who hold his estate during its continuance, and perhaps not afterwards, where the reversioner had previously neither cause nor right to complain." But in Bright v. Walker it was decided that the adverse use of a way, with a claim of right, for a period of more than twenty years, over land in the possession of a tenant or lessee for life, gave no right in 1 Barker c^. Eichardson, 4 Barn. & ley v. Commonwealth, 36 Pa. St. 29 ; Aid. .579. Portland v. Keep, 41 Wis. 490. 2 Bradbury v. Grimsel, 2 Sannd. ^ Wood v. Veal, 5 Barn. & Aid. 454. 175 d; Daniel v. North, 11 East, 372; * Wheatou v. Maple (1893), 3 Ch. Blanchard v. Bridges, 4 Adol. & El. 176 ; 48, 63 ; Wallace v. Fletcher, 30 N. H. Rand v. Church, 152 N, Y. 174; Parker 453. V. Framingham, 8 Met. (Mass.) 260; ' Toullier, Droit Civil Franfais, 419. Pierce v. Fernald, 26 Me. 436 ; Schen- ' 30 N. H. 4.i3. See F'ranz i-. Meu- douca, 131 Cal. 205. 208 KINDS OP REAL PROPERTT. the nature of an easement against either the lessor or the lessee.^ § 162. (g) The Adverse User must be against an Owner of the Land ■who, at the Time of the Beginning of such Enjoyment, ■wras free from Disability to resist its Imposition upon his Prop- erty. — A grant can not be presumed to have been made by a person who was legally incapable of making it. If, therefore, the adverse enjoyment begin against one who is at the time insane, or an infant, or otherwise incapacitated to sue in his own name alone for the infraction of his right, the prescrij^tive period will not begin to run while such disability continues and he remains the owner of the land.^ By the weight of authority it is held that no incapacity to sue, except that which existed when the adverse enjoyment commenced, will interfere with the acquisition of an easement by prescription; that the prescriptive period will begin to run as soon as that incapacity is removed or the servient estate passes into the hands of another owner in fee, and that no subsequently accruing or superimposed disability will have any effect.^ Thus, if A be an infant when B begins to use a path over his lot, a right of way may be obtained by B across the land in the time of prescription after A becomes of age, though A 1 1 Cr. M. & R. 211. words, when speaking of prescription " On the other hand, tliough it is under the statute of 2 & 3 William IV. clear that a tenant for life of a domi- eh. 71 : ' Semble, the owner in fee of nant estate may acquire an easement in land demised for a term of years is a servient one by adverse enjoyment, it subject to any right of access and use does not seem to be settled whether it of light over his land which may be would, wlien acquired, inure in favor of acquired by the owner of an adjoining him who has the inheritance by way of house during the demise,' " (citing Lady- reversion." (Citing Holland v. Long, man v. Grave, L. R. 6 Ch. App. 763). 7 Gray, 487.) "But though in the Wash. Ease. (-Ith ed.) p. 186, pp. * 115, above-cited case the court avoid the * 1 1 6. question, it would seem that, if the ten- '■' McGregor i>. Wait, 10 Gray (Mass.), ant held by lease from the tenant of 72, 74 ; Melvin v. Whiting, 13 Pick. the fee of the dominant estate, an ease- (Mass.) 184 ; Watkins v. Peck, 13 N. H. ment gained by such a holding by the 360 ; Schenley v. Commonwealth, etc., tenant would inure to the landlord's 36 Pa. St. 29 ; Reimer u. Stuber, 20 henefit, in analogy with the doctrine of Pa. St. 458 ; City of Austin v. Hall, a class of cases which hold that, if a 93 Tex. 591. tenant by disseisin extends his holding ^ Ballard u. Demmon, 156 Mass, 449; over a neighboring parcel of land till a Tracy v. Atherton, 36 Vt. 503 ; Walker prescriptive title is gained, it will inure ». Fletcher, 30 N. H. 434 ; Melvin v. to the benefit of his landlord" (citing Whiting, 13 Pick. (Mass.) 184; Reimer Andrews ti. Hailes, 2 Ellis & B. 349, and v. Stuber, 20 Pa St. 458; Jordeson «. cases therein cited). " And the head- S. S. &, D. Gas Co. (1899) 2 Ch. 217. note of I.adyman v. Grave is in these EASEMENTS. KINDS. HOW CREATED. 209 should be imprisoned after tlie adverse user began, and either before or after he became of age, and should become insane before his release from prison. And if A should die at any time after B began the walking over his property, and the title to the land should thus descend to A's heir or otherwise pass to another owner in fee (he being under no disability), the prescriptive period would at once begin in B's favor.i(a) Some courts insist, however, that no easement can arise by prescription unless he who claims it proves affirmatively that, during the whole of the requisite period, the owners of the ser- vient estate were competent to convey a clear title thereto and to sue in their own names for any violation of their rights.^ § 163. Presumption of a Grant or other Legal Origin arising from Proof of the Requisite User. — There has been much dis- cussion, and some conflict of opinion, as to the nature of the presumption, or principle, upon which rest most of the modern decisions concerning prescriptive easements. Is it a presump- tion of law or of fact ? Is it conclusive or disputable ? Is it confined to the presumption of a grant? The summary of most of the answers of to-day on both sides of the Atlantic is that, when all the requisites of adverse user or enjoyment as described in the preceding sections have been proved, there arises a conclusive presumption of law that the claimant of the easement had at one time a right by grant, or in some other lawful form, over the servient property.^ (a) In New York the statute of limitations expressly provides, in cases of adverse possession of corporeal property, as follows: "A person can not avail himself of a disability unless it existed when his right of action or of entry accrued." " Where two or more disabilities coexist, when the right of action or of entry accrues, the limitation does not attach until all are removed." N. Y. Code Civ. Pro. §§ 408, 409. The forms of disability which stay the running of the statutory period are infancy, insanity, and imprisonment for a, term less than for life. N. Y. Code Civ. Pro. § 375; Howell u. Leavitt, 95 N, Y. 617 ; Darrow v. Calkins, lo4 N. Y. 503, 512. 1 Ballard v. Demmon, 156 Mass. 449 2 Saunders v. Simpson, 37 S. W. Rep. 195 (Tenu.). * Angus ■'. Dalton, L. R. 6 App, Cas. 740 ; Campbell v. Wilson, 3 Bast, 294; Lehigh Val. R. Co. o. McFar- liin, 43 N. J. L. 605 ; Pierce v. Cloud 42 Pa. St. 1 02 ; Pli mpton v. Converse; 42 Vt. 712 ; Webber v. Chapman, 42 N. U. 326 ; Olney v. Fenner., 2 K. I. 211 Boyce >:. Mis. Pac. R. Co., 168 Mo. 583. " In this country the prevailing doctrine is, that an exclusive and un- interrupted enjoyment for twenty years creates a. presumption, juris et de jure, and is conclusive of title whenever, by possibility, a right may be acquired by grant." Depue, J., in Lehigh Val. R. Co. u. McParlan, 43 N. J. L. 605. 14 210 KINDS OF REAL PROPERTT. Just as the statutes of limitations were at first treated as rules of disputable presumption, and were subsequently- decided to be statutes of repose; so, after the ancient theory of immemorial enjoyment was discarded and the shorter period of prescription adopted, the courts at first made the proper adverse user for such time merely prima facie evidence of a grant, it being regarded by some as a presumption of fact and by others as a disputable presumption of law ; and after- wards the most of them came to deal with it aa a conclusive presumption of law.i It is held, however, in some of the United States, as California, Indiana, and Mississippi, that it is a rebuttable presumption, even after all the requisite facts as to the adverse enjoyment have been established.^ The inquiries in any case as to the length of the enjoy- ment, its nature as adverse, open, peaceable, and uninterrupted or otherwise, and whether or not the owner of the servient land acquiesced in it, or was laboring under any disability to defend his rights, all involve questions of fact, which are usually for the jury. And not until these matters have all been decided in favor of the claimant of the right is tlie foun- dation laid for a presumption of any kind.-^ But when the law of a state has once settled upon any number of years — say twenty — as the prescriptive period, and in a given case in that state all those questions of fact involved in the estab- lishment of the requisites of the adverse use have been settled ^ Last preceding note. the evidence thereby resulting in fa- ^ Union Water Co. v. Crary, 25 Cal. vor of a title to incorporeal heredita- 504 ; Po.stlethwaite v. Payne, 8 Ind. ments, may be reconciled, if we bear in 104; Lanier v. Booth, 50 Miss. 410; mind that, to constitute such a. use or Watlcins v. Peck, 13 N. H. 360. See enjoyment as raises such presumption HainmondtJ. Zehner, 21 N. Y. 118; Hey of a grant, requires, in addition to the V. Coleman, 78 N. Y. App. Div. 584, requisite length of time, that it should 586. , have certain qualities and characteris- ' Angus V. Dalton, L. R. 6 App. Cas. tics, such as being adverse, continuous, 740 ; Lehigh Val. R. Co. v. McFarlan, uninterrupted, and by the acquiescence 43 N. J. L. 605; Smith v. MiUer, 11 of tlie owner of the inheritance out of Gray (Mass.), 145, 148; Garrett v. or over which the easement is claimed. Jackson, 20 Pa. St. 331 ; Livett v. Wil- And if we assume that these have been son, 3 King. 115; 1 Greenl. Ev. § 17. established by sufficient proof, it would, Mr. Washburn, in his work on Ease- doubtless, in such a case and after such ments, argues well upon this question. a use and enjoyment, be held to create He says : " Any seeming discrepancy as conclusive a presumption in favor of between the ancient doctrine of pre- him who makes the claim, as if it had scription and the modern notion of a been established by prescription in its presumed grant where the deed has ancient sense." Wash. Ease. (4th ed.) been lost, as to the conclusiveness of p. 129, p. * 70. EASEMENTS. KINDS. HOW CREATED. 211 in the claimant's favor, it is not only in harmony with the results of the most thoroughly considered modern cases, but also in accordance with the reasonable policy which gave rise to prescriptive titles, to insist that a conclusive presumption of the rightfulness of the enjoyment shall at once arise, and that evidence shall not thereafter be admitted to overthrow such conclusion or to prevent the establishment of a prescrip- tive easement.^ A proper way, therefore, in which to sum up the best modern judicial thought as to the basis of prescriptive rights, seems to be to assert that it rests upon the presump- tion of a lost grant, or of some otk-er legal origin. The ques- tions as to the existence, duration, and nature of the user having all been decided in the claimant's favor, the presump- tion that it is founded on right is conclusive — Juris et de Jure. ^ § 164. No Prescriptive Easement ■wrhere no Grant can be presumed. — Out of the narrower theory, however, that a pre- scriptive title must rest upon a presumed grant, has sprung the well-settled negative rule of law, that no easement which could not be the subject of a grant can be acquired by pre- scription.^ Since, therefore, a common-law grant can transfer incorporeal hereditaments only,^ the title to land or any interest in it can not be acquired by prescription.^ Any ad- verse possession or user, which is to pass title to corporeal hereditaments, must ordinarily find its power to do so in some statute. So, in a case in which Parliament had given 1 The questions as to the existence, also Welsh u. Taylor, 1 34 N. Y. 450 ; daration, and nature of the user are, of Valentine v. Schreiber, 3 N. Y. App. course, for the jury. The logical posi- Div. 235. tion is that these are to be settled be- ' Lockwood v. Wood, 6 Q. B. 31, 50, fore any presumption of any sort, as to 64 ; Smith a. Gatewood, Cro. Jac. 152; the origin of the easement, is to be Grimstead v. Marlowe, 4 T. R. 717; indulged. But, these being settled in Curtis v. Keesler, 14 Barb. (N. Y.) favor of the claimant, the presumption 511 ; Perley v. Langley, 7 N. H. 233; of his right should then be conclusive. Lit. § 170; Co. Lit. 113 b. Lehigh Val. R. Co. v. McFarlan, 43 * 2 Blackst. Com. p. *317. N. J. L. 605, 608 ; Sibley v. Ellis, 11 ^ Luttrel's Case, 4 Co. 87 ; Potter v. Grav (Mass.), 417; Parker «. Foote, 19 North, 1 Ventr. 383, 387; Carlyon v. Wend. (N. Y.) 309 ; Strieker v. Todd, Lovering, 1 Hurl. & N. 784 ; Strickler 10 Serg. & R. (Pa.) 63, 69; Tracy v. v. Todd, 10 S. & R. (Pa.) 63, 69; Cor- Atherton, 36 Vt. 503; Angus w. Dalton, telyou v. Van Brunt, 2 Johns. (N. Y.) L. R. 6 App. Cas, 740. 357 ; Gayetty v. Bethune, 14 Mass. 49, ^ See this exemplified in the discus- 53; Tinicum Pishing Co. v. Carter, 61 sion of servitudes acquired by "public Pa. St. 21 ; Hill v. Lord, 48 Me. 83, 96. prescription," §§ 168, 169, injra. See 212 KINDS OP REAL PROPERTY. to a corporation the right to construct and operate a canal for public use, and an individual who for over twenty years had drawn water from the canal to run a steam-engine placed by him upon its bankg pleaded a prescriptive right when sued by the company, it was held that his plea was bad, since the corporation had no power to do anything concerning the water except to use it for a canal. ^ It follows also, from the doctrine of an assumed grant or other legal origin, that an easement can not be acquired from the state by adverse enjoyment, for no presumption can run against the state. ^ But such rights may be gained against cities, towns, and other public or quasi corporations.^ ^ Rockland Canal Co. v. Eadcliffe, Sturges v. Bridgman, L. R. 1 1 Ch. Div. 18 Q. B. 287; Stafford, etc. Canal v. 852, 855; Wood on Nuisances, pp. 40, Birmingham Canal, L. R. 1 Eng. & Ir. 105. App. 254, 268, 278 ; Burhauk v. Fay, 65 2 pa. R. Co. v. Borough of Free- N. Y. 57. A prescriptive right can port, 138 Pa. St. 91 ; Glaze v. Western not be obtained to commit '^ nuisance. & Atlantic R. Co., 67 Ga. 761 ; Dart- Campbell V. Seaman, 2 N. Y. Super. mouth College v. Woodward, 4 Wheat. Ct. 231, af£'d 63 N. Y. 568; Common- (U. S ) 518. wealth V. Upton, 6 Gray (Mass.), 473; ^ Ibid. CHAPTER X. SERVITUDES THAT ARE NOT COMMON-LAW EASEMENTS. §165. quired. Servitudes How ac- a. Servitudes arising from Grant. § 166. Directly created by grant. § 167. Easements in gross. b. Servitudes arising from Prescription. § 168. Public prescription. § 169. Requisites of public pre- scription. c. Servitudes arising from Custom. § 170. Creation and nature of such servitudes. d. Servitudes created by Dedication. § 171. General requisites of dedi- cation. § 172. Offer by landowner. § 173. Revocation of landown- er's offer. § 174. Acceptance of offer by public. § 175. Statutory dedication. § 176. Effects of dedication. e. Servitudes created by Operation of Law. § 177. Such servitudes explained and distinguished. § 178. Requisites — Public na- ture. § 179. Requisites — Compensa- tion. § 180. Kinds of servitudes so created. f . Servitudes existing by Nature. §181. Natural servitudes — Kinds. § 165. Servitudes — How acquired. — It was explained in the last chapter that real or prwdial servitudes, when the term is employed in the broad sense of the early common-law writers, embrace all common-law easements; all those nat- ural, legal, and customary rights in or over land which are not franchises nor common-law easements, and which do not carry with them the privilege of taking anything from the servient land ; and all forms of profit h prendre, or rights to take something from the servient land.^ The preceding chapter was devoted to the acquisition and leading character- istics of the first of those groups, — the common-law easement, 127-129, supra. 214 KINDS OF REAL PROPERTY. which was defined as a privilege without profit (without profit tc prendre), created by grant or prescription, wliich the owner of one piece of land called the dominant tenement has over another piece of land called the servient tenement.^ The present chapter deals with the creation and chief characteristics of the second group of rights above named, which for thj sake of clearness and for want of a better dis- tinctive term are here designated simply as servitudes. While commonly called easements even by the highest courts, they are clearly distinguished from common-law easements, prop- erly so called, by the facts that they may come into existence by means other than grant or prescription, and that they do not require the existence of two distinct tenements, the one dominant and the other servient. ^ Illustrations of them are found in the rights enjoyed by the public in streets and high- ways,^ in the reciprocal privileges and duties belonging to the owners of adjacent riparian lands,* and in the natural right of every owner of land to have it laterally supported by the soil of his neighbor.^ There are six methods by which such servi- tudes may exist or be brought into being; namely: a. By grant, in some of its forms; I. By prescription — public pre- scription; c. By custom; d. By dedication; e. By operation of law; and /. By nature. These methods are to he dis- cussed in the order here named, and in connection with such discussion the nature and prominent features of the servitudes to which they may respectively give rise are to be examined. a. Servitudes arising from Grant. § 166. Servitudes directly created by Grant. — In favor of a competent grantee, the owner of a parcel of land may impose 1 § 126, supra. easement by grant or prescription for ^ See § 128, supra, and especially its flow over the laud of riparian owners Stevens v. Met. El. R. Co., 130 N. Y. for many miles to its mouth." Earl, J., 95; Bly v. Edison Electric Ilium. Co., in Scriber v. Smith, 100 N.Y. 479. Aud 172 N. Y. 1. "Such rights have some see Archer v. Archer, 84 Hun (N. Y.), semblance to easements, and no harm 297, 298. or inconvenience can probably come ^ Jgelin v- Stariu, 144 N. Y. 453. from classifying tliem as such for some * Brown v. Bowen, 30 N. Y. 519 ; purposes. But they are not in fact real Acqnackanonck Water Co. v. Watson, easements. Every easement is supposed 29 N. J. Eq. 366 ; Macomber v. God- to have its origin in grant, or prescrip- frey, 108 Mass. 219. tion wliicli presupposes a grant ; and it ^ White v. Nassau Trust Co., 168 is quite absurd to suppose tliat the owner N. Y. 149, 155. of land, at the head of a stream, has an SERVITUDES THAT ARE NOT COMMON-LAW BASEMENTS. 215 upon it any legal burden that he may choose to create. In order to make an easement in this way, he must evince a clear intent to make one lot of land subservient to another; but, when by grant a servitude which is not an easement is to arise, it is simply required that the one piece of land shall be encumbered with a burden for the benefit of some designated grantee.^ This may be accomplished by a direct conveyance by the landowner of some right or privilege over his property, or by a direct reservation in a deed of the servient estate, or by a covenant or condition contained in the instrument of conveyance. The contract, however, must usually be express, when a servitude is to come into existence by virtue of a grant alone. When either law or equity fixes by implied grant a burden or obligation upon land, it does so in favor of some other land, to which the right is appurtenant; and thus a common-law easement is brought into existence.^ § 167. Easements in Gross. — The form of servitude (out- side of common-law easements) most commonly made by express grant is the so-called " easement in gross, " which, as above explained, though generally called an easement, is in reality a form of servitude, but not strictly an easement, since it requires the existence of only one tenement.^ Thus, if a person who owns no land in the neighborhood be granted a right to walk over a certain lot, or a drover be deeded a per- manent privilege of driving his cattle across a strip of land connecting two highways and this purely for his convenience in taking them to market and without regard to any owner- ship of real property by him, a servitude of this character is created.* An easement in gross is so purely personal in its nature that it is not ordinarily assignable, devisable, or inheritable, and the grantee can not even permit another to enjoy it with him against the will of the grantor. In most jurisdictions it can not be made inheritable, devisable, or assignable, by any words in the deed by which it is created.^ But, in New York, Massachusetts, Wisconsin, and perhaps one or two 1 § 1 65, supra. ^ Boatman v. Lasley, 23 Ohio St. 2 §§ 138-152, swpro. 614; Moove v. Grose, 43 Ind. 30; ' §§ 127, 128, supra. Hoosier Stone Co. n. Malott, 130 Ind. * Ackroyd o. Smith, 10 C. B. 164; 21, 24; Tinicum Fishing Co. u. Carter, Lathropi'. Elsmer, 93 Mich. 599; Gar- 61 Pa. St. 21; Whaley v. Stevens, 21 rison v. Rudd, 19 111. 558 ; City of New S. C. 221. York V. Law, 125 N. Y. 380. 216 KINDS OF REAL PROPERTY. other states, it may be made transferable in these ways, by apt words used in the deed of grant. ^ Easements in gross are not favored by the law; and a grant of a right over land is presumed to be appurtenant to other land, unless the contrary is shown directly, or by necessary implication from the words of the instrument, or from the surrounding circumstances.^ When it is clearly an easement in gross, if there be no explicit declaration as to how long it is to continue, it will be con- strued as lasting only during the life of the grantee, or for such other period as will be sufficient to carry out the pur- poses of the grant. 3 Thus, where the right was reserved simply for the benefit of the grantor's lessee, it was held that it would end when the lease terminated.* But in those states in which such rights are inheritable they may be made to last in perpetuity, if such an intention be clearly expressed.^ b. Servitudes arising from Prescription. § 168. Public Prescriptioii. — In discussing the subject of acquiring easements by prescription, it was shown that the most modern theory upon which the courts rest the creation of incorporeal hereditaments through long-continued adverse user or enjoyment is the conclusive presumption of a grant or other legal origin.^ Since there can be no logical presumption of a grant to such an iudefinite and constantly changing thing as the general public, the principle at the foundation of "public prescription" for streets and highways must be simply the indisputable assumption, after such rights have been enjoyed in the requisite manner for the necessary period, 1 City of New York v. Law, 125 N. Y. Brook Park Ass'n, 63 N. Y. App. Div. 380, 392; Bowen v. Conner, 6 Cnsh. 445. (Mass.) 132, 137; Hankey v. Clark, 110 * Russell v. Heublein, 66 Conn. 486; Mass. 262 ; Engel v. Aver, 85 Me. 448 ; Jamaica Pond Aqueduct Co. v. Cliand- Paul V. Mockley, 33 Wis. 482; Steven- ler, 9 Allen (Mass.), 159, 170. son V. Wiggin, 56 N. H. 308; Wash. ^ pjukum i/. Eau Claire, 81 Wis. Ease. (4th ed.) p. 12. See White i'. 301; Amidon t>. Harris, 113 Mass. 59; Wiley, 36 N. Y. St. Rep. 102. Bank u. Miller, 6 Fed. Rep. 545, 550. 2 Cadwalader v. Bailey, 17 R. I. It is not technically accurate in such 495; Dennis v. Wilson, 107 Mass. 591 ; cases to say that the easement in gross Oswald u. Wolf, 126 111. 542; Valentine is granted in fee, "because an ease- V. Schreiber, 3 N. Y. App. Div. 235, ment in fee must be appurtenant to 240; Hopper v. Barnes, 113 Cal. 636. land held in fee." Jones, Ease. § 43; 8 McDaniel v. Walker, 24 S. E. Pinkum v. Eau Claire, 81 Wis. 301. Rep. 378 (S. C); Metcalf v. Crystal See Hankey n. Clark, 110 Mass. 262. « § 163, supra. SERVITUDES THAT ARE NOT COMMON-LAW EASEMENTS. 217 that they had a "■legal origin " of some kind. They may have commenced as dedicated servitudes, or as rights taken by eminent domain, or otherwise. The precise nature of the origin is immaterial. The fiction is that it was a legal beginning of some sort, and practically all the states of this country recognize and protect the resultant highway rights and privileges.^ Most of the cases in which servitudes have been recognized as established in this manner have dealt with streets, roads, or public ways ; but in a few instances prescriptive titles to other rights of convenience or utility to the public have been upheld. ^ The burdens so imposed upon land are servitudes ; but they are not easements, since they are enjoyed by the general public, who have no dominant estate.^ § 1 69. Requisites of Public Prescription. — A prescri ptive highway, or right to some special use of a street or road, may be established by proof that the enjoyment of it by the general public, for the requisite length of time, has been open and notorious, continuous and uniform, peaceable and uninter- rupted, with an adverse claim of right, and with the acquies- cence of an owner of the land who was seised in fee and who, at the time of the beginning of such enjoyment, was free from disability to resist its imposition upon his property. These essentials are stated in the sa.me form as that in which they were above enumerated in dealing with easements by prescrip- tion. When they are all established, a right is ordinarily as fully and conclusively proved in the one class of cases as in the other.* So, if it be shown that the public use was with 1 Colioes V. D, & H. Canal Co., 134 Tvarrant a presumption of laying ont, N. Y. 397; Corning v. Head, 86 Hun dedication, or appropriation, by parties (N. Y.), 12 ; Smith v. State, 23 N. J. L. having authority so to lay out, or a right 130; Weiss u. South Bethlehem, 136 to so appropriate, like that of prescrip- Pa. St. 294; Commonwealth v. Rail- tiou or non-appearing grant in case of road Co., 135 Pa. St. 256 ; Sprow r. individuals. It stands upon the same B. & A. R. Co., 163 M.iss. 330; Pome- legal grounds, a presumption that what- roy V. Mills, 3 Vt. 279 ; Hiimpsou t-. ever was necessary to give the legal Taylor, 15 R. I. 83; Stevens v. Nashua, effect and operation was rightly done, 46 N. H. 192; Campau v. Detroit, 104 though no evidence of it can be pro- Mich. 560; Wheatfield o. Grundmann, duced except the actual enjoyment of 164 111. 250; Shick v. Carroll Co. the benefits conferred by it." Jennings Comm'rs, 106 Ind. 573; Schwerdth v. i>. Tisbary, 5 Gray (Mass.), 73, 74. Also Placer Co., 108 Cal. 589. District of Columbia i-. Robinson, 180 2 Stedman v. Southbridge, 17 Pick. U. S. 92,98; Wlieatfieldw. Grundmann, (Mass.) 162. 164 111. 250; Root v. Commonwealth, 8 Stevens v. N. Y. El. E. Co., 130 98 Pa. St. 170; Thomas, w. Pord, 63 N. Y. 95 ; § 165, supra. Md. 346 ; Brownell v. Palmer, 22 Conn. * " In general, it must be such as to 107 ; Howard o. State, 47 Ark. 431. 218 KINDS OF REAL PROPERTY. the license or permission of the landowner, or that it was not under a claim of right, or that it was desultory or not con- tinued in the same manner and to the same extent through- out the entire prescriptive period, or according to the weight of authority if during part of such period the landowner were under a legal disability which existed when the adverse enjoy- ment began, the servitude will not be proved to have arisen.^ But in a few states it has been held that, since prescriptive privileges in favor of the general public are not founded upon the presumption of a grant, the mere disability of the owner of the servient estate to make a grant does not stand in the way of the acquisition of such a right.^ In a few of the United States, as New York, Indiana, and California, there are statutory provisions regarding such ac- quisition of highways.^ These generally require that the way or street shall be specifically used as a highway ; and, if the positive provisions of "the statute be complied with, it is then generally not fatal to the acquisition of the right that the user was not wholly adverse, or that the landowner was under some legal disability to sue.* (a) (a) The New York statute (General Laws, ch. 19, being L. 1890, ch. 568, § 100) provides that "All lands which have been used by the public as a highway for the period of twenty years or more shall be a highway, with the same force and effect as if it had been duly laid out and recorded as a highway, and the commissioners of highways shall order the overseers of highways to open all such highways to the width of at least two rods." Dealing with a case arising under this act, the Court of Appeals, per Earl, J., says : " The mere fact that a portion of the public travels over a road for twenty years cannot make it a highway ; and the burden of making high- ways and sustaining bridges cannot be imposed upon the public in that way. There must be more. The use must be like that of a highway gen- erally. The road must not only be travelled upon, but it must be kept in 1 Irwin t'. Dixon, 9 How. (U. S.) 10; Elliott on Roads, 138. And see Speir Borough of Verona f. A1 R. R. Co., i,. New Utrecht, 121 N. Y. 420; Freshour 152 Pa. St. 368; Lewis v. N. Y. L. E. & „. Hihn, 99 Cal. 443. W. R. Co., 123 N. Y. 496; McCleary i>. » N. Y. Highway Law (General Boston & M. R. Co, 153 Mass. 300; Laws, ch. 19), § 100; Strong v. Ma- Morund ii. McClintock, 150 111. 129; keever, 102 Ind. 578; Freshour r. Hihn, Jones V. Phillips, 59 Ark. 35 ; Lewis v. 99 Cal. 443 ; Stewart v. Frink, 94 N. C, Portland, 25 Greg. 133; Edaon r. Mnn- 487; Commonwealth v. Kelly, 8 Gratt. sell, 10 Allen (Mass.), 557; Watkins (Va.) 632. V. Peck, 13 N. H. 360; Faukboner v. * Ibid.; Speir v. New Utrecht, 121 Corder, 127lMd. 164; Reimerv. Stuber, N. Y. 420; People v. Underbill, 144 20Pa. St. 458. N. Y. 316; Schwerdth .-. Placer Co., 2 Webber i>. Chapman, 42 N. H. 108 Cal. 589; Elfeit v. Stillwater R. 326; Wallace v. Fletcher, 30 N. H. 434; Co., 53 Minn. 68, SERVITDDES THAT ARE NOT COMMON-LAW EASEMENTS. 219 c. Servitudes arising from Custom. § 170. Creation and Nature of such Servitudes. — It was stated above that "custom is distinguished from prescription in that the former is a mere local usage, not annexed to any particular person but belonging to the community rather than to its individuals, while the latter is a personal usage or en- joyment confined to the claimant and his ancestors or those whose estate he has acquired, "i Custom, moreover, is an outcome of immemorial usage, and will not ordinarily result from proof of twenty years of adverse enjoyment.'' There have been presented to the courts very few cases in which title to incorporeal hereditaments has been held to rest on custom alone. In the rare instances in which it has given rise to servitudes, it has been shown to have continued for time out of mind in favor of a practically definite class of families or persons constituting a town, village, or other com- munity, and to have been reasonable in purpose and scope, so as not to preclude the ordinary use of the land by its owner. ^ Thus, in Fitch v. Eawling* it was held that a custom for the inhabitants oE a certain parish to enter upon a designated piece of land, at reasonable times in each and every year, and repair or taken in charge and adopted by the public authorities. ... A private way opened by the owners of the land through which it passes for their own use does not become a public highway merely because the public are also permitted for many years to travel over it." Speir v. New Utrecht, 121 N. Y. 420, 429. See also Lewis v. N. Y. L. E. & W. R. Co., 123 N. Y. 496; People v. Underbill, 144 N. Y. 316; People v. Osborn, 84 Hun, 441 ; Harriman v. Howe, 78 Hun, 280; Buffalo v. D. L. & W. R. Co., 39 N. Y. Supp. 4 ; Davenpeck v. Lambert, 44 Barb. 596. 1 § 153, supra. they are holden as a custom; if the 2 Goodman v. City of Saltash, L. E. same are limited to an individual and 7 App. Gas. 633 ; Edwards v. Jenkins his descendants, to a body politic and (1896), 1 Ch. 308; Co. Lit. 110 b. its successors, or are attached to a par- " Tbe same rights and privileges which ticular estate, and are only exercised by may be claimed as a custom may also those who have the ownership of such be claimed as a prescription. An ease- estate, they are holden as a prescrip- meut upon another man's land, such as tion, which prescription is either per- a right of way, a right to turn a plough sonal in its character, or is a prescription upon another man's land, or for a fish- in a que estate." Perley v. Langley, ermau to mend his nets there, a right 7 N. H. 233, 235 ; Knowles v. Dow, 22 to have a gateway, or to pass- quit of N. H. 387. toll, may be sustained as a custom, or ^ Fitch v. Rawling, 2 H. Blaekst. as a prescription. If these rights are 393 ; Tyson o. Smith, 9 Adol. & EL common to any manor, hundred, dis- 406 ; Gray on Perpetuities, ch. xvii. trict, parish, or county, as a local right, * 2 H. Blaekst. 393. 220 KINDS OF REAL PROPERTY. play at cricket and other games was good, and could be estab- lished against the landowner by showing that they and their ancestors had enjoyed this privilege for time whereof the memory of man ran not to the contrary. But it was declared that it could not be claimed as a good custom for all the people of England to do this, nor in favor of strangers or other persons, hot residents of the parish, who happened to be there at the times when the games were played.^ A custom for all the inhabitants of a town to go upon a certain close on a specified day in each year, for the purpose of horse-racing, was decided to be valid. ^ But the residents of a village could not thus obtain the right to go upon a piece of land, at their pleasure, to exercise horses^ or to play golf,* since this would be unreasonable ; nor could they, in this way, gain the privi- lege of walking or riding over a field at times in the year when the owner had corn or other annual crops growing or standing thereon, because this would tend to destroy alto- gether the profits of his land.^ Emphasis is to be laid upon the fact that a customary ser- vitude must be confined to the inhabitants of a local district, town, or parish. Thus, it was decided in New York that the general public could not obtain a right to deposit manure, wood, and other substances on a public landing-place on the bank of a navigable stream.^ And in that case Chancellor Walworth says: "The law is well settled that a customary accommodation in the lands of another, to be good, must be confined to the inhabitants of a local district, and cannot be extended to the whole community or people of the State. "^ In a country like this, where towns and villages are newer and change more rapidly than in England, while the theory of the creation of servitudes by custom may prevail, yet the circumstances which give rise to the above-enumerated requi- 1 Alao Abbot «. Weekly, 1 Lev. 176; which last is called prescribing in a Bland u. Lipscombe, 4 El. & B. 713, que estate." Chase's Blackst. p. 418. 714, note. "If one claims a prescriptive right to 2 Mounsey v. Ismay, 3 H. & C. 486. an easement in another's land, by reason ^ Sowerby v. Coleman, 2 Ex. 96, 99. of owning or occupying land to which * Dempster v. Cleghorn, 2 Dow, 40, such right is appurtenant, he ia said to 49, 62. claim in a que estate." Wash. Ease. ^ Bell V. Wardwell, Willes, 202. (4th ed.) p. 18, p. * 10. 6 Pearsall w. Post, 20 Wend. (N. Y.) ' Post v. Pearsall, 22 Wend. (N. Y.) Ill, 118. "All prescription must be 425, 432; State v. Wilson, 42 Me. 9; either in a man and his ancestors, or in Gardiner v. Tisdale, 2 Wis. 153; Man- a man and those whose estate he hath : ning v. Wasdale, 5 Adol. & El. 758. SERVITUDES THAT ARE NOT COMMON-LAW EASEMENTS. 221 sites rarely concur; and in many of the United States such rights have never been held to have been called into exist- ence. ^ In a few states, as above shown, custonaary servitudes have been clearly sustained.^ d. Servitudes created by Dedication. § 171. General Requisites of Dedication. — Dedication is a means by which title to real property may pass from a per- son to the general public (or some part thereof) through an offer made by the former and accepted by the latter. Its most common operation is to impose a servitude upon land, as, for example, to make the soil subject to use for a highway, street, square, park, landing, or wharf. ^ It is founded wholly on the doctrine of estoppel in pais; a representation being made by the offer of the landowner such as it is reasonable to presume was intended to be acted on by the public, and the latter reasonably acting accordingly in such a manner that injury would result to it if the representation were denied and the offer withdrawn.* The discussion of servitudes created by dedication, therefore, divides itself naturally into two parts — Jirst, the offer of a right over his land, made by the owner thereof to the public, and second, the acceptance of the offer by the public. § 172. The Offer by the Landowner. — First. The offer or representation may be made in any proper manner which indicates a clear intent or willingness on the part of the owner of the land to have it used by the public. A deed of the right to the public authorities, a parol declaration that 1 Post V. Pearsall, 22 Wend. (N. Y.) Eex v. Hudson " (2 Strange, 909), "and 425 ; Rose v. Bunn, 21 N. Y. 275 ; Acker- was next applied in Lade v. Shepherd, man v. Shelp, 8 N. J. L. 125: Wash. in 1735" {2 Strange, 1004). "It then Ease. (4th ed.) pp. 140-144, pp. * 77-*80. slept until 1790, in the case of Rugby v. 2 Knowles v. Dow, 22 N. H. 387; Merryweather " (11 East, 375). Wash. Nudd V. Hobbs, 17 N. H. 524. See Ease. (4th ed.) p. 207, p.* 131. Since Hill V. Lord, 48 Me. 83; Waters u. the last-named date, a great many Lilley, 4 Pick. (Mass.) 145. cases have been decided upon its prin- 3 The doctrine of the dedication of ciples ; and it is now a settled doctrine servitudes to the public is of com- in both England and America, paratively modern date. "Thus it is * Wilder y. St. Paul, 12 Minn. 192, stated by Gibson, C. J., in Gowen u. 200; Thousand Is. Pk. Ass'u i'. Tucker, Philadelphia Exchange Co.," 5 Watts 173 N. Y. 203, 209; Uhlefelder v. City & S. (Pa.) 141 "that the doctrine of of Mt. Vernon, 76 N. Y. App. Div. dedication to the public, without the 349. intervention of trustees, began in 1732, 222 KINDS OF REAL PROPERTY. the property is designed for public use, or acts, or circum- stances, though nothing but silent acquiescence, are sufficient if unequivocal in character to perform that part of the process of dedication which is for the landowner. ^ The cases are numerous, for example, in which lots have been sold with reference to a map or plan, showing them to be bounded on strips of land designed for public streets, highways, squares, or other open places; and it has been held that the offer was thus made to dedicate the land so indicated. ^ "It is every day's practice to presume a dedication of land to the public use from an acquiescence of the owner in such use. " ^ The requirement must be emphasized that the overt act or tacit permission must be such that, from it, the design to make the offer to the public can be clearly and fully spelled out or presumed. It was, accordingly, decided that there was no dedication of a way, in a case in which the landowner laid out a street through his premises and graded and paved it, but erected at both ends of it gates, which were, however, 1 Trustees, etc. v. Merryweather, 1 1 East, 375; McKay v. Hyde Park, 134 TJ. S. 84 ; Flack v. Green Island, 122 N. Y. 107 ; Matter of 160th Street, 48 Hiin (N. Y.), 488; Commonwealth v. Eailroad Co., 135 Pa. St. 256; Hayden V. Stone, 112 Mass. 346 ; Commonwealth V. Coupe, 128 Mass. 63; Wheatfield v. Grandmann, 164 111. 250. 2 Haight V. Littlefield, 147 N. Y. 338; People f. Underbill, 144 N. Y. 316; Eckerson i'. Village of HaTcrstraw, 6 N. Y. App. I)iv. 102 ; Price v. Plain- field, 40 N. J. L. 608 ; Clark a. Eliza- beth, 40 N. J. L. 172; Quicksall v. Philadelphia, 177 Pa. St. 301; Ruddi- man i. Taylor, 95 Mich. 547 ; Thaxter V. Turner, 17 R. I. 799. But the mak- ing of a plan or map of one's land, on which streets or other open places are indicated, not followed hy any dealing with the land with reference to such places, does not evince an intent to dedicate them. Whitworth v. McComb, 69 Miss. 882 ; Vanatta v. Jones, 42 N. J. L. 561 ; Birmingham, etc. R. Co. I,'. Bessemer, 98 Ala. 274. When an owner of land thus sells it off in lots, with reference to a plan or map show- ing squares, streets, etc., by or along which the parcels are bounded, all the purchasers who buy with reference to such map or plan are held to have the right to have the spaces kept open as indicated, even though the offer or rep- resentation may not be made in such a manner as to lay the foundation for a dedication to the public. Bissell r. N. Y. C. R. Co., 23 N. Y. 61 ; Bridges V. Wyckofe, 67 N. Y. 139 ; Matter of Eleventh Ave., 81 N. Y. 436 ; Story f. N. Y. El. R. Co., 90 N. Y. 122 ; Thou- sand Is. Pk. Ass'n V. Tucker, 173 N. Y. 203; Commonwealths. Beaver Borough, 171 Pa. St. 542. But this last-named right is the result of an implied grant to such purchasers of an easement over such streets or places ; and it is to be care- fully distinguished from servitudes upon such places arising from dedication, in favor of the public. The latter rests upon estoppel, the former upon implied grant ; the former requires the exist- ence of two distinct tenements — the lot sold as dominant and the land over which the right exists as servient — while the latter is a burden on the one tenement only — the land over which the public have the right. See §§ 139, 140, supra, 8 Knight V. Heaton, 22 Vt. 480, 483. SERVITUDES THAT ARE NOT COMMON-LAW EASEMENTS. 223 removed for a time while the road was being finished.^ The existence of the gates negatived all presumption of an offer to the public, and their removal for a time was explained by the fact that it was done for the purpose of completing the roadway. Thus, very slight acts on the part of him over whose property the right is claimed, such as putting a fence, post, or rock in the road, or by a sign-board forbidding pass- age through it, will readily do away with any assumption that he meant a dedication to ensue. ^ And mere acquiescence by the owner of land in its occasional and varying use for travel by the public is insufficient to establish an intent to dedicate it for a street.^ Yet, since the doctrine upon which rest the principles of dedication of servitudes is estoppel in pais, it is to be added, as of course, that if the landowner so act as to lead the public to believe that he meant to offer it the use of his property, even though in reality he had no such intention, he will be precluded from denying the existence of a dedi- cated right, to the prejudice of those who have in good faith acted upon the representation so made.* § 173. Revocation of Landowner's 0£fer. — The owner of land, who has offered the use of it to the public, may with- draw the offer at any time before its acceptance, and thus prevent a dedication from ever being effectuated.^ His death before the public has accepted the proffered servitude is in itself a revocation.^ The offer, moreover, is deemed to be 1 Carpenter o. Gwynn, 35 Barb. that a dedication has actually occurred. (N. Y.) 395, 406. Ottawa v. Yentzer, 1 60 111. 509 ; Getchell 2 "A single act of interruption by v. Benedict, 57 Iowa, 121 ; Elswortb v. the owner is of much more weight upon Grand Rapids, 27 Mich. 250 ; Busch- the question of intention than many man i'. St. Louis, 121 Mo. 523; Smith acts of enjoyment on the part of the v. Osage, 80 Iowa, 84. public; the use without the intention ^ Borough of Verona k. A. R. R. to dedicate it as a public way not being Co., 152 Pa. St. 368. a dedication." Wash. Ease. (4th ed.) * Wilder v. St. Paul, 12 Minn. 192. p. 212, p *135; Poole v. Huskinson, 11 See Lee v. Lake, 14 Mich. 12, 18. M. & W. 827 ; Roberts v. Carr, 1 Campb. ^ Bridges v. Wyckoff, 67 N. Y. 139 ; 262 ; Barraclough v. Johnson, 8 Adol. & Lee v. Sandy Hill, 40 N. Y. 442; Mark El. 99; Dwinel I). Barnard, 28 Me. 554; v. West Troy, 57 N. Y. St. Rep. 323; Commonwealth v. Newbury, 2 Pick. Chicago w. Drexel, 141 HI. 89; Diamond (Mass.) 51 ; Huffman v. Hall, 102 Cal. Match Co. v. Ontonagon, 72 Mich. 249; 26; Herhold t. Chicago, 108 111. 467; People !•. Dreher, 101 Cal. 271 ; Becker Hall 1. Baltimore, 56 Md. 187; State f. St. Charles, 37 Mo. 13. See Trustees V. Green, 41 Iowa, 693 ; Bauman v. v. Hoboken, 33 N. J. L. 13 ; Atty.- Boeckeler, 119 Mo. 189. So the pay- Gen. o. Morris, etc. R. Co., 4 C. E. ment of taxes on the land, as private Green (N. J.), 386, 391. property, militates against a presumed ^ People v. Kellogg, 67 Hnn (N. Y.), intent to offer it to the public ; but this 546 ; Bridges v. Wyckoff, 67 N. Y. 130 ; may be readily rebutted by other proof Walker v. Townsend, 43 Ohio St. 5J7. 224 KINDS OP REAL PROPERTY. kept open only a reasonable time; and, after that has elapsed without anything having been done on the part of the public to complete the dedication, the landowner may treat his proposi- tion as in effect rejected, and employ his property accordingly, without the necessity for any formal revocation of his offer. i § 174. Acceptance of the Offer by the Public. — Second. When the offer, still in force, is accepted by the public, the dedication becomes complete ; and until that time it is merely incipient. 2 As is stated above, the acceptance must be made within a reasonable time after the offer, or the offer will be deemed revoked.^ All that is required to constitute the acceptance is that the public shall, in some unmistakable manner, indicate an intention to avail itself of the right ten- dered by the owner of the land.* This is frequently done in an express contract entered into by the duly authorized public authorities and the proprietor of the servient estate. But it may also be readily accomplished by any direct dealing by such authorities with the locus in quo, such as grading and paving or sewering the street, fencing in the square, or otherwise improving the place in question, so as to evince the exercise of control over it for the designated object.* And, while in a few cases it has been held that acceptance requires some overt act other than mere user.^ yet the weight of authority, in this country at least, is to the effect that mere enjoyment by the public in the manner indicated by the offer of the servitude and so that its discontinuance would be detrimental to the public, or even enjoyment alone for a con- 1 Cook V, Harris, 61 N. Y. 448 ; sometimes impose an onerous burden Derby v. Ailing, 40 Conn. 410 ; Crocket upon ttie public without its consent. o. Boston, 5 Cush. (Mass.) 182; Bartlett 3 § 173^ supra. V. Bangor, 67 IVIe. 460 ; Baker i-. Johns- * People v. Underhill, 144 N. Y. 316. ton, 21 Mich. 319. What constitutes a ^ King i). Leake, 5 Barn. & Ad. 469; reasonable time is to be determined by Matter of Hunter, 164 N. Y. 365; Ham- the particular circumstances of each ilton v, Chicago, B. & C. R. Co., 124 case. See Vermont Village v. Miller, 111.235; Ross r. Thompson, 78 lud. 90; 161 III 210; Graudville 1;. Jeni.son, 84 Price v. Breckinridge, 92 Mo. 378; Mich. 54; Bell u. Burlington, 68 Iowa, Hall v. Meriden, 48 Conn. 416; State c. 296. Fisher, 117 N. C. 733. 2 Cubitt V. Mapse, 8 C. P. 704; « See Green y. Canaan, 29 Conn. 157, People V. Underhill, 144 N. Y. 316; 163; Guthrie v. New Haven, 31 Conn. State !;. South Amboy, 57 N. J. L. 252; 308, 321; Hoboken Land Co. v. IIo- Hayden v. Stone, 112 Mass. 346; Dor- boken, 36 N. J. L. 540. Thus, in Iowa, man v. Bates Mfg. Co, 82 Me. 438; it is expressly provided by statute that Pield V. Manchester, 32 Mich. 279. If a public way shall not be established the act of the landowner alone could by user alone. 1 Iowa, It. S. (1888) cause the servitude to exist, he might § 3206. SERVITUDES THAT ARE NOT COMMON-LAW EASEMENTS. 225 siderable length of time, finishes the dedication and makes the right and burden complete.^ When the right is in itself essential to the public convenience, the user alone, without regard to its length, is ordinarily sufficient; but otherwise mere enjoyment is simply an item of evidence of acceptance, which may be easily overcome by counter-proof, unless it has been continued so long and under such circumstances as to make it clear that the public convenience and rights would be materially affected by its cessation.^ Under such conditions it has been held that proof of user, in one case for five years,^ and in another for four years,* was sufficient evidence of acceptance of the servitude. When the public would not be in any way inconvenienced by the termination of the use, then, in order to establish the right by proof of the enjoyment alone, it must be shown that it has continued for at least twenty years, or during the prescriptive period.^ But in such a case the servitude is in reality created by prescription and not by dedication.^ 1 King V. Leake, 5 Barn. & Ad. 469 ; Greeny. Canaan, 29 Conn. 157; Atty.- jen. B. Abbott, 1 54 Mass. 323 ; Bau- oau B. Boeckeler, 119 Mo. 189 ; Smith 1. Flora, 64 111. 93; Los Angeles Cemetery Co. v. Los Angeles, 32 Pac. . Eep. (Cal.) 240 ; Buchanan v. Cnrtis, 25 Wis. 99 ; Kansas City Milling Co. k. Eiley, 133 Mo. 574. " Even in case an acceptance by formal adoption by the public authorities be essential, as it is in some states, in order to impose on the public the duty of maintaining and keeping in repair, yet if in fact there has been a dedication, and in the esti- mation of the authorities the want and convenience of the public require the land to be used for the purpose of a highway, they may use it for that pur- pose and thus cut off the owner from retraction." Jones, Ease. § 450, citing Hoboken Land Co. v. Hoboken, 36 N. J. L. 540 ; Harrison County v. Seal, 66 Misa. 129. 2 Matter of Beach Avenue, 70 Hun (N. Y.), 351 ; Commonwealth v. Rail- road Co., 135 Pa. St. 256 ; Detroit v. Detroit & M. R. Co., 23 Mich. 173; Ramthun v. Halfman, 58 Tex. 551 ; Meiners v. St. Louis, 130 Mo. 274. ' Jarvis v. Dean, 3 Bing. 447. See Post B. Pearsall, 22 Wend. (N. Y.) 425. * Los Angeles Cemetery Co. v. Los Angeles, 32 Pac. Eep. (Cal.) 240. 6 Gould V. Glass, 19 Barb. (N. Y.) 179; Smith v. State, 23 N. J. L. 130; Atty.-Gen. v. Morris, etc. R. Co., 4 C. E. Green (N. Y.), 386, 391 ; Hoole b. Atty.- Gen., 22 Ala. 190 ; Day v. Allender, 22 Md. 511, 526 ; Hutto w. Tindall, 6 Eich. (S. C.) 396. ° " Ways by prescription and ways by dedication rest upon entirely differ- ent principles. The first is established upon evidence of user by the public, adverse and continuous for a period of twenty years or more, from which use arises a presumption of a reservation or grant and the acceptance thereof, or that it has been laid out by the proper authorities, of which no record exists. The second is created by the permission or gift of the owner, and upon the acceptance of such gift by the public authorities it becomes a way, and the owner cannot withdraw his dedication." Commonwealth v. Coupe, 128 Mass. 63; Commonwealth r. Matthews, 122 Mass. 60 ; Eichards v. County Commissioners, 120 Mass. 401 ; State v. Mitchell, 58 Iowa, 567. 15 226 KINDS OP REAL PROPERTY. § 175. statutory Dedication. — In a number of the United States, most of which are in the West, there are statutes regulating the dedication of property by private persons to the public. 1 Some of them are confined to the creation of incorporeal hereditaments in this manner, while others are made broad enough to effect the transfer of corporeal prop- erty.2 The prominent idea in them all is that the making, acknowledging, and filing by the landowner, of a plat or plan, upon which are shown streets, squares, parks, or other open places designed for public use, shall constitute a dedication of those places without further acts or formalities.^ Formal acceptance by the public is, under most of such statutes, not necessary to complete the dedication ; but, of course, the right always exists in the local authorities to reject a proffered servitude or other property which would not be for the public convenience or utility. By some of the statutes, moreover, the method of accepting by the public is specifically outlined.* In states where such means of dedication are prescribed, such, for example, as Ohio, Indiana, Illinois, Michigan, Minnesota, and California, it is uniformly held that, if the statute be not properly complied with, but all the requisites of a common-law dedication be shown to exist, a servitude may be thus establshed.^ Such special acts, therefore, do not exclude the other methods of acquiring easements and servitudes. § 176. Effects of Dedication. — In the absence of statutory modification, the ordinary results of the dedication of a servi- tude are that the title to the land remains as before, the right over it passes as a servitude, in favor of the public, for the ' Railroad Co', r. Schurmeier, 7 Wall. " United States v. Illinois Cent. R. (U. S ) 272 ; Vermont Village i'. Miller, Co., l.'>4 U. S. 225 ; Elson v. Comstock, 161 111. 210; Marsh v. Village of Fair- 150 111. 303 ; Carpentaria School Dist. bury, 163 111. 401 ; Fulton v. Mehreu- u. Heath, 56 Cal. 478. field, 8 Ohio St. 440 ; Ruddiman o. * Reid r. Board of Education, 73 Mo. Taylor, 95 Mich. 547 ; State r. Minne- 295 ; Fulton v. Mehrenfield, 8 Ohio St. apolis & M. R. Co., 62 Minn. 450 ; 440 ; Ehmen v. Gutheuberg, 50 Neb. Pillsbury v. Alexander, 40 Neb. 242; 715; Elson !>. Comstock, 150 111.303. Giffen v. Olatlie, 44 Kan. 342 ; Car- ^ Banks v. Ogden, 2 Wall. (U. S.) pentaria School District v. Heath, 56 57 ; Evansville !•. Page, 23 Ind. 525, Cal. 478; Evansville v. Page, 23 Ind. 527; Marsh v. Fairbury, 163 111. 401; 525, 527; Callaway Co. v. Nolley, 31 Mason u. Chicago, 163 111. 351 ; Stater. Mo. 393 ; Elliott, Roads & Streets, § 1 14. Minneapolis & M. E. Co., 62 Minn. 450 ; 2 Trustees, etc. u. Haven, 11 111. 554 ; Burton v. Marx, 38 Mich. 761 ; Carpen- Moses V, Pittsburg, etc. R. Co., 21 111. taria School Dist. v. Heath, 56 Cal. 516 ; Des Moines v. Hall, 24 Iowa, 234, 478. 244. SERVITUDES THAT ARE NOT COMMON-LAW EASEMENTS. 227 purposes and to the extent indicated by both the offer and the acceptance, 1 and the local public authorities thereupon become responsible for the proper care and improvement of the way, square, or other place, and liable in damages to any one rightfully there who may be injured because of its being out of repair.^ The right and burden, moreover, will keep pace with any extensions or necessary changes in the land. Thus, if it be a way across a piece of land to navigable waters, it will continue to lead to those waters, though the land be extended much farther out into them either by natural causes or by the voluntary act of the owner of the soil.^ e. Servitudes created hy Operation of Law. § 177. Such Servitudes explained and distinguished. — Rights that the public have in streets, parks, wharves, canals, natural streams, and the like, are very largely the results of statutes ; and, when they arise in that way, they are servitudes created by operation of law. The privileges and immunities, which legislative enactments confer upon members of the public in general and, to a limited extent, upon individuals and corporations for special purposes, are as numerous and varied as the requirements and opinions of different communities. But the servitudes to which they give rise are all affected by the constitutional inhibitions against the taking of private property for public purposes without just compensation, and against the taking of such property in opposition to the will of its owner for any pur- poses other than those of a public nature. It is the fact, moreover, that they spring from the exercise of the right of eminent domain, either by the state generally or by some municipality or corporation upon which that right has been conferred, that distinguishes them from all other servitudes and that is to be specially noted as indicating the line of 1 Thus the dedicatiou may be re- N. J. L. 201 ; Pa. R. Co. v. Montgomery strictive, as for a foot-path, or for all County V. R. Co., 167 Pa. St. 62 ; O'Neil purposes except to carry coals, etc., and v. Sherman, 77 Tex. 182 ; Woods, Ways, the public must then confine its use to 13. the purposes and within the limits so ^ Mayor v. Sheffield, 4 Wall. (U. S.) indicated. Stafford v. Coyney, 7 Barn. 189 ; Savannah, etc. R. Co. v. Shiels, 33 & C. 257 ; White v. Bradley, 66 Me. Ga. ."199, 619. See Durgin v. Lowell, 3 254 ; Gowen v. Phila. Exchange Co., 5 Alien (Mass.), 398. Watts & S. (Pa.) 141; Hemphill v. s Mark y. Village of West Troy, 151 Boston, 8 Cush. (Mass.) 195; State u. N. Y. 453. Trask, 6 Vt. 355 ; State v. Leverick, 34 228 KINDS OP EEAL PROPERTY. demarkation between them and servitudes ,created by dedica- tion. The latter are the outcome of an offer, voluntarily and intentionally made by the landowner,^ while servitudes arising by operation of law are taken in invitum from the proprietor of the servient land.^ § 178. Requisites of Servitudes created by Operation of Lavr - — Public Nature. — - The primary requisite of servitudes of this kind is that the use, for which the right is taken and the burden imposed upon the land, shall be public in its nature. By this is not meant that the enjoyment and benefit must be universal, or even extend throughout the entire state : but it is sufficient if they be such as to contribute in some measure to the progress or general welfare of the community or dis- trict in which the privilege is exercised.^ Such a use is involved, for example, in the employing of land for a high- way, or a railroad, or a public park, though the chief or only benefit therefrom accrue to the residents of the town in which it is located.* It is the nature, of the use, rather than the extent to which it is applied, that determines its character; and when it is manifestly open to all, though designed pri- marily for the convenience of only a few individuals, or to accommodate one person more specially than others, it com- plies with the requirement now under discussion.^ It is to be added that, in some rare instances, constitutional provisions authorize the creation of such rights, against the will of the owner of the land, for private uses alone, as in New York for 1 § 172, supra. away the use to whicli it is to be appro- 2 Matter of Townsend, 39 N. Y. 171 ; priated is a public one, seems to be a Matter of Union El. R. Co., 112 N. Y. question of law for the courts to deter- 61 : In re City of Brooklyn, 143 N. Y. mine. But whether the extent to which 596; Denham v. County Comm'rs, 108 it is to be applied is suflBcient to render it Mass. 202, 205. reasonably necessary as well as conven- ^ Beekraan v. Saratoga, etc. R. Co., ient to the public, is for the legislature, 3 Paige (N. Y.), 45, 73; Matter of or their authorized agents or officers Townsend, 39 N. Y. 171, 174 ; Concord representing the public, to determiue." R. R. V. Greeley, 17 N. H. 47, 61; Wash. Ease. (4th ed.) p. 454, p. *327 ; cit- Cooley, Const, Lira. 532. ing Talbot v. Hudson, 16 Gray (Mass.), ■• Beekman v. Saratoga, etc. R. Co., 417,421 ; Beekman v. Saratoga, etc. R. 3 Paige (N. Y.), 45, 73 ; Boston Water Co., 3 Paige (N. Y.), -IS, 73; Inhabi- Power V. B. & W. R. Co., 23 Pick. tants, etc. v. Couuty Comm'rs, 2 Met. (Mass.) 360, 399; Talbot v. Hudson, 16 (Mass.) 185, 188; Tyler v. Beacher, 44 Gray (Mass.), 417, 421; Olmstead <•. Vt, 648 ; Matter of Townsend, 39 N. Y. Camp, 33 Conn. 532; Bankhead u. 171, 174 ; Allen y. Joy, 60 Me. 124, 139; Brown, 25 Iowa, 540, 549. Bankhead v. Brown, 25 Iowa, 540, 545 ; ^ Denham ■;. County Comm'rs, 108 In re Fowler, 53 iJ. Y. 60, 62, Mass. 202, 205. " Whether in laying oat SERVITUDES THAT ARE NOT COMMON-LAW EASEMENTS. 229 private roads ;^ but in England and most of the United States such an invasion of individual rights is not permitted.^ § 179. Requisites of Servitudes created by Operation of Law — Compensation, — The othei' distinctive requisite of servi- tudes created by operation of law is that just compensation shall be made to the owner of the land upon which the burden is imposed. This is to be sufficient to pay him for the value of the servitude taken, including damages for the direct injury which he suffers because of its creation and existence. The general principle is that compensation can not be recovered for indirect and consequential injuries which may be inflicted upon a piece of land by the invasion or taking of other private property for public purposes. Thus, when a state, or city, or town, in changing the grade of a street by proper authority, raises it above or sinks it below the level of the land of a private owner and so depreciates the value of his property, but does not specifically take any of it from him, he has ordinarily no right of action for the resulting injury. ^ But the precise limitations of this principle are not easily ascer- tainable. There has been much divergence of opinions and decisions concerning them, especially in relation to street rights, in the different states of this country. An abutting owner has property rights in the use of the street, which his land adjoins, for ingress and egress and for the receiving of light and air. Whether he owns any of the soil of the street or not, he is entitled to compensation in damages for any direct interference with these rights, unless it is occasioned by such uses of the street as were originally contemplated, or are necessary, appropriate, and usual for the 1 See discussion of private roads laid send, 39 N. Y. 171; Lahr v. Met. El. out by operation of law, § 180, infra. R. Co., 104 N. Y. 268, 292; Mnhlkerw. N. Y. Highway Law (L. 1890, ch. 568, N. Y. & H. R. Co., 173 N. Y. 549; being Gen. L. ch. 19), §§ 106-123. Lamm v. Chicago, St. P. M. & 0. R. 2 Wilkinson u. Leland, 2 Pet. (U.S.) Co., 45 Minn. 71; Detroit City Eail- 626, 658; Talbot v. Hudson, 16 Gray way u. Mills, 85 Mich. 634. "In every (Mass.), 417, 421 ; Bankhead v. Brown, civilized community controlled by gov- 25 Iowa, 540, 548. Such was the rule, ernmeutal or municipal laws or regula- also, under the constitution of New York tions, there are many cases where the prior to 1846. Beekman v. Saratoga, individual must be subjected to remote etc. R. Co., 3 Paige (N. Y.), 45, 73 ; or consequential damage or loss, to Matter of Townsend, 39 N. Y. 171, 174. which he must submit without other 8 Radcliff's Executors v. Mayor of compensation than the benefit he de- Brooklyn, 4 N. Y. 195 ; Coster «. Mayor rives from the social compact." Muhl- of Albany, 43 N. Y. 399 ; People <.-. ker v. N. Y. & H. K. Co., 173 N. Y. 549, Smith, 21 N. Y. 595 ; Matter of Town- 555. 230 KINDS OP EEAL PROPERTY. proper enjoyment thereof by the public. ^ New uses of the street, coming within such contemplation or usage, may be authorized by legislation for the benefit of the public, without the necessity for providing for any remuneration to the abut- ting proprietors. " Such are the cases in respect to changes of grade ; the use of a street for a surface horse railroad ; the laying of sewer, gas, and water pipes beneath the soil ; the erection of street lamps and hitching posts, and of poles for electric lights used for street lighting."^ So the uses of a street for a surface, cable, or electric railway, provided they do not interfere with its enjoyment for ordinary street purposes, do not usually create nor take servitudes so as to bestow upon adjoining owners any right to compensation.^ But, "while the public authorities may raise the grade of a street for a street use, or may authorize the construction of a surface railroad on the street, in either case without liability to the abutters, they cannot raise the grade of a street for the exclu- sive use of a railroad without compensating an abutter for the injury inflicted."* Therefore, the erection and operation of an elevated railroad on a city street, not being an improve- ment of the street for the benefit of the public, but rather an additional use by virtue of a right granted to a corporation, is the taking and appropriation of rights of abutting owners in such a way as to render the railroad company liable to them in damages. And the same is true of buildings erected for like purposes on streets by railroad companies, even by order of the state, so as to deprive abutters of light, air, and access. Such interference with the street rights of an adja- cent owner is a taking of those rights pro tanto, and the value 1 Story V. N. Y. El. R. Co., 90 N. Y. Co., 147 Pa. St. 579 ; Lorie v. North 122 ; Drucker v. Manhattan R. Co., 106 Chicago City R. Co., 32 Fed. Rep. 270; N. Y. 157; American Bank Note Co. Howe u. West End St. R. Co., 167 Mass. V. N. Y. El. R. Co., 129 N. Y. 252 ; Fries 46 ; Halsey v. Rapid Transit R. Co., 47 r. N. Y. & H. R. Co., 169 N. Y. 270; N. J. Eq. 380; Hudson R. Tel. Co. v. Paterson R. Co. v. Grundy, 51 N.J. Eq. Watervliet Turn. & R. Co., 135 N. Y. 213; Bill V. Camden Board of Educa- 394,397; Grand Rapids St. R. Co. v. tion, 47 N.J, Eq. 441 ; Onset St. R. Co. West Side St. R. Co., 48 Mich. 433; V. County Comm'rs, 154 Mass. 395 ; Detroit City Railway v. Mills, 85 Mich. Lincoln Rapid Transit Co. v. Rundle, 634, 658. See note (a) as to New Y'ork, 34 Neh. 559. p 232, infra. 2 Lahr r. Met, R. Co., 104 N. Y. * Quoted from Reining ,-. R. Co. 268, 292 ; Folensbee !). City of Amster- (128 N, Y. 157), and approved, by dam, 142 N. Y. 118, Parker, Ch, J., in Muhlker v. N. Y. & 3 Matter of Third Ave. R. Co., 121 H. R. Co., i73N. 1^ 549, 555. SeeDolan N. Y. 536 ; R,afferty v. Central Traction v. N. Y. & H. R. Co., 175 N. Y. 367. SERVITUDES THAT ARE NOT COMMON-LAW EASEMENTS. 231 of what is so taken, since it is not taken solely for public improvement, must be paid for ; and, in connection with this, compensation must be made for the damage done to his lahd adjoining the street, which is the one great injury. He is paid, not for an indirect or consequential injury, but for a direct taking of property rights — servitudes^ — from him.^ But owners of land not abutting on the street on which is the road can not recover compensation for any injury (for such injury is indirect) occasioned to their properties by its erec- tion, existence, or operation.^ No servitudes are thereby taken from them. There is a conflict in the decisions as to the right of adjacent owners to recover damages for injury occasioned by steam railroads on the surface of streets. In the majority of the United States, it is held that the construc- tion and operation of such roads upon streets and highways, of which the ownership of the soil is in the abutting proprietors, is a perversion of them to a use not ordinary nor originally contemplated, and that, accordingly, such owners may have compensation for the servitudes thus taken and the consequent loss in the value of their property.^ But a few of the courts have maintained that such an employment of a highway is 1 Bohn i\ Met. El. R. Co., 129 N. Y. an action for the continued injury to his 576 ; Kane v. N. Y. El. R. Co., 125 N. Y. rights caused by its operation after his 164 ; Abendroth i). Manhattan R. Co., purchase. Werfelman v. Manhattan 122 N. Y. 1 ; Lahr v. Met. El. R. Co., R. Co., 11 N". Y. Supp. 66, 32 N. Y. St. 104 N. Y. 268 ; Druclier v. Manhattau R. Rep. 682 ; Glover v. Manhattan R. Co., Co., 106 N. Y. 157 ; Story y. N. Y. El. 19 J. & S. (N. Y.) 1 ; Mitchell v. Met. R. Co., 90 N. Y. 122 ; Muhlker v. N. Y. El. R. Co., 9 N. Y. Supp. 829, 31 N. Y. & H. R, Co., 1 73 N. Y. 549, 556 ; Dolan St. Rep. 625 ; Beach v. W. & W. R. Co., t). N. Y. &H, R. Co., 175N. Y. 367, 370; 120 N. C. 498. But he has no right of Pa. R. Co. u. Duncan, 111 Pa. St. 352. action for the construction of the road The damages, in such cases, include and its operation before hia purchase, the amount by which the value of the Such cause of action does not run with abutting property is decreased by the the land. Gait v. Chicago & N. W. R. construction and operation of the road, Co., 157 111. 125. See Shepard v. Man. because of the loss to it of access, light, El. R. Co., 169 N. Y. 160 ; W. U. Tel. and air and the injury caused to it by Co. v. Shepard, 169 N. Y. 170. noise, loss of privacy, etc. Woolsey v. " Ibid. Especially Story v. N. Y. El. N. Y. El. R.Co., 134'n. Y. 323; Rumsey R. Co., 90 N. Y. 122; Reilly v. Man. V. N. Y. & N. E. R. Co., 133 N. Y. 79, El. R. Co., 43 N. Y. App. Div. 80. 136 N. Y. 543 ; Buffalo v. K Y. El. R. ' Williams v. N. Y. Cent. R. Co., 16 Co., 138 N. Y. 257 ; Bookman v. N. Y. N. Y. 97 ; Henderson v. N. Y. Cent. R. El R. Co., 137 N. Y. 302, 147 N. Y. 298 ; Co., 78 N. Y. 423 ; People v. Kerr, 27 Robinson v. N. Y. El. R. Co., 175 N. Y. N. Y. 188 ; Kelsey v. King, 33 How. 219; N. Y. EI. R. Co. «. Fifth Nat. Bk., Pr. (N. Y.) 39; Chamberlain v. Eliza- 135 U. S. 432 ; Lamm v. Chicago, etc. bethport, S. C. Co., 41 N. J. Eq. 43 ; R. Co., 45 Minn. 71. A purchaser in Commonwealth r. Allen, 148 Pa. St. fee of the abutting property, after the 358 ; Onset 11. Co. v. County Comm'rs, construction of the road, may maintain 154 Mass. 395 ; Western K. Co. v. Ala. 232 KINDS OP REAL PROPERTY. ordinary and reasonable and does not give rise to any cause of action for damages. ^ The courts of New York, Michigan, Illinois, Tennessee, and a few other states have decided that a steam railroad may be authorized upon the surface of streets, the soil of which the city owns, without the necessity of making compensation to the abutting owners, provided the grade of the street is not changed, and it is left substantially free and unobstructed for the purposes of ordinary travel.^ (a) In some (a) The New York courts have decided, as to both steam and horse raih-oads on the surface of a street, that they constitute an additional burden (and in that sense talre property) for which compensation must be made to the abutter, if he own the soil of the street. But if he do not own that soil, the damages are only consequential and call for no compensation, unless the appropriation and use of the street become so great and annoy- ing as to degenerate into a nuisance. The elevated railroad cases, begin- ning with Story v. N. Y. El. R. Co., 90 N. Y. 122, do not run counter to this distinction ; but add an element to it, by holding that the elevated structures, being for the benefit of the railroad companies and not erected "to improve the street for the benefit of the public," result in direct taking of servitudes of light, air, and access, for which compensation must be made to the abutters, even though they own none of the soil of the street. Fobes V. K. W. & O. R. Co., 121 N. Y. 505 ; Reining o. N. Y. L. E. & W. R. Co., 128 N. Y. 157 ; Kane v. N. Y. El. R. Co., 125 N. Y. 164; Fries v. N. Y. & H. R. Co., 169 N. Y. 276 ; Muhlker v. N. Y. & H. R. Co., 173 N. Y. 549 ; Dolau V. N. Y. & H. R. Co., 175 N. Y. 367. G. T. R. Co., 96 Ala. 272; Reichert B. T. Co., 85 Ky. 640; Hill v. Chicago, V. St. L. & S. F. R, Co., .'il Ark. 491 ; St. L. & N. 0. R. Co., 38 La Ann. 599 ; "Weyl u. S. V. R. Co., 96 Cal. 202 ; Arbenz v. W. & H. R. Co., 33 W. Va. Imlay v. Union B. R. Co., 26 Conn. 249 ; 1 ; McLaucWiu v. C. & S. C. R. Co., F. S. R. Co. u. Brown, 23 Fla. 104 ; S. 5 Rich. L. (S. C.) 583. See Macomber Car. R. Co. u. Steiner, 44 Ga. 546 ; o. Nichols, 34 Mich. 212 ; Montgomery Gait V. Chicago & N. W. R. Co., 157 v. S. A. W. R. Co., 104 Cal. 186, 192; 111. 125; Burkam v. 0. & M. R. Co., Knapp v. St. L. T. R. Co., 126 Mo. 26. 122 lud. 344 ; Barb Wire Co. u. C. B. & ^ This question has arisen most Q. R. Co., 70 Iowa, 105; Chicago K. prominently in reference to the City & W. R. Co. V. "Woodward, 47 Kan. of New York, which owns in fee simple 191 ; Phipps V. West Md. R. Co., 66 the soil of many of its streets on Man- Md. 319; Taylor v. Bay City St. R. hattan Island. Fobes v. Rome, W. & Co., 101 Mich. 140 ; Gustavson v. 0. R. Co., 121 N. Y. 505 ; Reining v. Hamm, 56 Minn. 334 ; St. Louis Trans- N. Y. L. & W. R. Co., 128 N. Y. 157 ; fer Co. «. L. M. B. Co., Ill Mo. 666; Bloodgood i'. Mohawk & H. R. Co., 18 Omaha & N. P. R. Co. i. Janecek, 30 Wend. (N. Y.) 9; People v. Kerr, 27 Neb. 276 ; Lawrence R. Co. v. Wil- N. Y. 188 ; Kane u. N. Y. El. R. Co., liams, 35 Ohio St. 168; Railroad Co. v. 125 N. Y. 164; G. R. & I. R. Co. v. Bingham, 87 Teun. 522 ; G. C. & S. F. Heisel, 38 Mich. 62 ; Olney v. Wharf, R. Co. V. Eddins.eo Tex. 656 ; Hodges 115 111. 519 ; Railroad Co. v. Bingham, V. S. R. Co., 88 Va. 653 ; Taylor a. 87 Tenn. 522 ; C. N. & S. W. R. Co. o. Chicago, M. & St. P. R. Co., 83 Wis. Mayor, 36 Iowa, 299 ; Hogau v. Cent. 636. Pac. R. Co., 71 Cal. 83 ; K. N. & D. R. 1 Elizabethtown & P. R. Co. v. Co. v. Cuykendall, 42 Kan. 234 ; Arbens Thompson, 79 Ky. 52 ; Fulton v. S. R. u. Wheeling & H. R. Co., 33 W. Va. 1. * SERVITUDES THAT ARE NOT COMMON-LAW EASEMENTS. 233 of the states, however, such as Minnesota, Ohio, and Texas, the owners of the adjacent lands are given the same remedies for injury to their properties because of such a railroad, whether or not the city owns the soil of the highway on which it is located.^ There is a similar conflict of authority as to the effect of the placing of telegraph and telephone poles and wires upon streets and highways; it being insisted in some states, such as New York and Illinois, that compensation for such use of the way need not be made to abutting proprietors unless their properties are unnecessarily injured,^ while in other jurisdictions, of which New Jersey and Michigan are illustrations, the existence of such poles and wires per se affords ground for the recovery of damages.^ § 180. Kinds of Servitudes created by Operation of LaTV. — While the kinds of servitudes which arise by operation of law are numerous and varied, the most important and frequently employed of these are roads and ways acquired by corpora- tions, such as turnpike, canal, and railroad companies ; public highways; private roads laid out by public authority; public rights in non-navigable streams and waters, and special pro- visions as to buildings and walls in large cities. Incorporated companies, such as railroad and turnpike corporations which need the use of large tracts of land for the carrying on of their business, are ordinarily given, by either general or special legislation, the power to exercise the right of eminent domain ; and under that authority they acquire roads and ways, in a g««si-public capacity and for uses of a public nature.* They take, as a rule, not the ownership of the soil and corporeal hereditaments, but simply servitudes in the form of road and street rights and privileges. The 1 Carli i: V. D. Co., 32 Minn. 101 ; nett, 107 111. 507 ; "West XJ. Tel. Co. v. Schurmeir v. St. P. & P. R. Co., 10 Williams, 86 Va. 696 ; Stower.'! v. Pos- Minn. 82 ; L. M. R. Co. v. Hambleton, tal T. C. Co., 68 Miss. 559 ; Willis v. Erie 40 Ohio St. 496 ; S. V. R. Co. o. Law- T. & T. Co., 37 Minn. 347 ; Gorham v. rence, 38 Ohio St. 41 ; Cincinnati, etc. Eastchester Electric Co.. 80 Hun (N.Y.), R. Co. V. Cummiusville, 14 Ohio St. 290; Dailv u. State, 51 Ohio St. 348. " 523, 541 ; G. C. & S. F. R. Co. v. Eddins, 3 Dean v. Ann Arbor St. Ry Co., 93 60 Tex. 656 ; B. & M. R. Co. v. Rein- Mich. 330 ; Erwin v. Cent. U. Tel. Co., hackle, 15 Neb. 279; Dooly Block v. 148 Ind. 365. In New Jersey, a statute Rapid Tr. Co., 9 Utah, 31. requires compensation to be made in 2 Eels V. Amer. T. & T. Co., 143 such cases. Winter i . N. Y. & N. J. N. T. 133 ; Bla.'ihfield v. Empire St. T. Tel. Co., 51 N. J. L. S3 ; Broome !■ & T. Co., 18 N. Y. Supp. 250 ; Pacific N. Y. & N ,T. Tel Co., 49 N. J. L. 624 ; P. Tel. Cable Co. v. Irvine, 49 Fed. Rep. Roake v. Amer. Tel. Co., 41 N. .T. Eq. 35. 113; Board of Trade Tel. Co. u. Bar- * Stim. Amer. Stat. L. § 1141. 234 KINDS OF REAL PROPERTY. proceedings for this purpose usually consist of an application to the court, upon due notice to all persons interested in the land to be affected, which, if successful, results in a judgment or decree to the effect that, upon making just compensation to such persons, thd corporation shall take the property for the uses and purposes mentioned in its application. Commis- sioners are then appointed by the court, who view the land, receive evidence as to its value, and determine upon the amount of compensation to be paid; and, upon having their report confirmed, and making or providing for the payments thereby required, the applicant becomes entitled to the enjoy- ment of the land.i (a) (a) The general provisions of the New York statutes as to the coiidem- natioQ and taking of private property for public purposes are found in the N. Y. Code of Civil Procedure, §§ 3357-3384, which may be sum- marized as follows : The proceeding must be commenced by verified peti- tion to the Supreme Court, presented by the person, corporation, officer, or institution entitled to take the property, who is called the plaintiff. The petition must describe the plaintiff; give a description, by metes and bounds, with reasonable certainty, of the property to be taken and state its value ; give the names and places of residence of the owners of the prop- erty, who are styled the defendants ; state the public use for which the property is required and give a concise statement of the facts showing the necessity for its acquisition for such use ; aver that the plaintiff has been unable to agree with the owner of the property for its purchase and the reason of such inability ; that it is the intention of the plaintiff, in good faith, to complete the work or improvement for which the property is to be taken, and that the preliminary steps required by law have been taken to entitle him to institute the proceedings, and demand that it be adjudged, that the public use requires the property to be so taken, that the plaintiff is entitled to so take it upon making compensation therefor, and that com- missioners be appointed to appraise and ascertain the amount of such compensation to be paid. There must be annexed to the petition a notice stating the time and place at which the petition will be presented to a Special Term of the Supreme Com-t held in the judicial district where the property or some portion of it is situated. At least eight days before its presentation to the court, n copy of the petition and notice must be served upon each of the defendants, in the same manner in which a summons is required by the Code to be served. At the time of making such service, or at any time thereafter and before entry of the final order in the proceed- ing:, the plaintiff may file in the office of the clerk of each county where any part of the property is situated a notice of the pendency of the pro- ceeding, giving the names of the parties, the object of the proceeding, and a description of the property; and, after this is properly recorded and inde.xed, it is notice of the proceeding to all subsequent purchasers and 1 Stim. Amer. Stat. L. §§ 1142-1149; Lewis, Eminent Domain, §§ 489-493, 584-587. SERVITUDES THAT ARE NOT COMMON-LAW EASEMENTS. 235 Highways and roads belonging to the public at large, when they are not dedicated nor gained by grant or public prescription, are an outcome of the exercise of the right of eminent domain by or in connection with public officials such as highway commissioners, overseers of highways, street or enourabranoers of the propertj'. The defendants may appear and answer, in the same manner as in an action in the Supreme Court, incapacitated parties appearing by their guardians existing or to be appointed by the court. An answer must be verified; and it may deny any of the allegations of the petition, or set up new matter constituting a defence. When an answer is interposed and issues are thus raised, they may be tried either by the court or by a referee ; and the decision or report must be filed or handed to the attorney for the successful party within twenty days after the final submission of the case. If the decision or report be in favor of the defend- ants, the proceeding is to be dismissed. When it is in favor of the plaintiff, or when there has been no trial, judgment is to be entered, adjudging that the property is to be taken for the public purpose specified, a:id that the plaintiff is entitled to take it for that purpose upon making just compensation. After such judgment is entered, the court must appoint three commissioners to take evidence and fix the amount of com- pensation. If a trial has been had, this appointment is made after eight days' notice to all the defendants who have appeared. The commissioners must give eight days' notice of their meetings, except when they meet pur- suant to order of the court or an adjournment. They must view the property and examine such witnesses as the parties desire, decide upon the amount of compensation to be made, and report to the court. They are not to make any deductions because of increase in value of other property caused by the improvement. Upon the filing of their report, either party may move, upon notice to the others, for its confirmation; and, if it be confirmed, a final order is entered directing that compensation shall be made accordingly, and that the plaintiff shall be entitled to enter upon the property for the purposes specified. There are also provisions for a writ of assistance, if needed, to enable the plaintiff to obtain po.ssession, for entry of judgment against him for the amount of the compensation fixed upon by the commissioners, for new appraisals when deemed proper by the court, for appeals from the judgment or order, and for the taxing of the costs of the proceeding. See Matter of Rochester Water Comm'rs, 60 N. Y. 413 ; Matter of Marsh, 71 N. Y. 315; Matter of N. Y. Cable Co., 101 N. Y. 1, 43 ; Re Statin Is. R. T. Co , 103 N. Y. 251 ; Stuart v. Palmer, 74 N. Y. 183; Matter of Brooklyn, etc. R. Co., 72 N. Y. 215; Matter of 31th St. R. Co., 102 N. Y. 348; Colonial City Traction Co v. Kingston City R. Co., 153 N. Y. 540; Henderson v. N. Y C. R. Co., 78 N. Y. 423 ; Matter of Mayor, etc. of N. Y., 99 N. Y. 570; Matter of C. & R. R. Co., 67 N. Y. 242; Matter of St. L. & A. R. Co., 133 N". Y. 271; West Ceme- tery V. P. P. & C. R. Co., 68 N. Y. 591 ; Matter of Trustees N. Y. & B'klyn Bridge, 137 N. Y. 95 ; Long Is. R. Co. v. Garvey, 159 N. Y. 334; People v. Adirondack Park Ass'n, 160 N. Y. 225 ; Matter of City of B'klyn, 148 N. Y. 107 ; Railroad Co. v. Robinson, 133 N. Y. 271 ; People ex rel. Stewart v. R. Comm'rs, 160 N. Y. 202. 236 KINDS OP REAL PROPERTY. park boards, etc., the names being different in the different states. Under the statutory provisions enacted for this pur- pose, application is usually required to be made to a court for the appointment of commissioners to ascertain whether or not the proposed way is necessary and to assess the damages to be paid to the persons interested in the lands over which they may decide that it should pass. After the confirmation by the court of their report or decision in favor of the road, it becomes the duty of the highway officials of the town or locality to lay out and open the way accordingly.^ (a) The (a) When public streets, highways, or other public places are to be laid out and opened in a city or village of New York, a particular mode of pro- cedure is usually outlined, either in the charter of the city or village, or in some special law enacted for that locality. A sample of such special legis- lation is found in the provisions of the charter of the City of New York, relative to streets and parks. N. Y. L. 18S7, ch. 378, §§ 970-1011. And for closing such streets, see L. 1895, ch. 1006. It is provided by the N. Y. Constitution, Art. III. § 18, that, "The legislature .shall not pass a private or local bill . . . laying out, opening, altering, working, or discontinuing roads, highways, or alleys, or for draining swamps or other low lands." But it is held that this is not applicable to city streets or avenues. Matter of Woolsey, 95 N. Y. 135. Outside of such local enactments, the making of streets is controlled by tlie general provisions of the Highway Law (N. Y. Gen. L. ch. 19, Art. IV. being L. 1890, ch. 568, §§ 80-105), which are in substance as follows : — Any person or corporation assessable for highway labor may make writ- ten application to the commissioners of highways of the town in which he or it resides or is assessable, to alter or discontinue a highway or to lay out a new one. Within thirty days thereafter, upon five days' notice to the commissioners of highways and such notice to interested parties as the county court shall order, he or it must apply, by verified petition, to the County Court for the appointment of commissioners to determine upon the necessity of the work proposed and assess the damages which will result. Thereupon the court appoints as such commissioners three disin- terested freeholders, who must not be named by any person interested in the proceedings and who must be residents of the county, but not of the town, where the highway is or is to be located. They take the constitu- tional oath of office and fix upon a time and place at which they shall meet to hear the highway commissioners of the town where the highway is or is to be located and other interested parties. The applicant must cause at least eight days' previous notice of such meeting to be posted in at least three conspicuous places in the town, and also served upon the interested parties, or mail it to them if they do not reside in the same town or service can not be made upon them there. The commissioners appointed by the court examine the highway or property and, at their meeting (which they may adjourn from time to time), receive such evidence and reasons as may 1 1 Stim. Amer. Stat. L. §§ 1140-1149; Lewis, Eminent Domain, §§ 173, 176, 489-493. SERVITUDES THAT ARE NOT COMMON-LAW EASEMENTS. 237 street rights and burdens above discussed, such as those imposed by railways, telegraph and telephone poles and wires, gas or electric light appliances, etc., are simply additional servitudes placed upon streets and highways and more or less affecting as such servitudes the rights and interests of the proprietors of adjoining lands.' In a few states, including New York, Pennsylvania, Iowa, and Missouri, private roads, when necessary, may be created and laid out by operation of law.^ Where the right to do this exists, it must be derived from a specific constitutional pro- vision; for, since the proceeding consists in the seizure of the property of one private individual for the benefit of another, it is contrary to the fundamental law of the land, except in so far as that law has been directly modified by the people of any state. ^ The proceedings for the laying out of such a way are ordinarily required to be before a jury of freeholders of the town, by whom the questions as to the necessity for the road and the compensation to be paid for it are determined. It is generally provided that the compensation, as thus fixed, shall be paid to the owner or owners of the land over which be adduced, and, having made a decision and assessed the damages, if any, file one copy of the decision in the office of the town clerk and another in that of the county clerk. Within thirty days after their decision is filed with the town clerk, any party interested may apply to the county court for an order confirming, vacating, or modifying such decision. The pro- ceedings thereon are the same as an ordinary, special proceeding before the court. If no such application be made within the thirty days, the decision of the commissioners becomes final. The decision, when it becomes thus final or confirmed, must be carried out by the commissioners of highways of the town, the same as if they had made an order to that effect. The statute contains, also, minute provisions as to laying out roads which may interfere with orchards, gardens, burying-grounds, etc., the making of highways thi-ough two or more towns and along division lines, new hearings when necessary and the costs of the proceedings. The order of the County Court or judge confirming the report of the commissioners is not appealable. Matter of De Camp, 77 Hun, 478 ; nor will certiorari lie to review the decision of the commissioners, N. Y. Code Civ. Pro. §2122; Hanford v. Thayer, 88 Hun, 136. See N. Y. Const, art. 1, § 7; Gerard on Titles- to R. E. oh. ii. ' See § 179, supra. 8 IbH, ■ Logan v. Stogdale, 123 Ind. 2 N. Y. Const, art. 1, § 7; Gen, L. 372; Blackman v. Halves, 72 Ind. 515; ch. 19, §§ 106-123; Palmer's Private Wild !;. Deig, 43 Ind. 455; Stewart t. Road, 16 Pa. Co. Ct. 340; Belk .;. Hartman, 46 Ind. 331. Hamilton, 130 Mo. 292 ; Taraldson v. Lime Springs, 92 Iowa, 187. 238 KINDS OP REAL PROPERTY. the private road is to exist before it can be actually laid out and used.i (a) (a) This New York provision for laying out private roads by operation of ]aw, substantially in its present form, was enacted by L. 1848, ch. 71 ; and see provisions affecting it in L. 1853, ch. 174; L. 1859, ch. 373; L. 1860, ch. 468. It is now found in §§106-123 of the highway law (L. 1890, ch. 5U8, being Gen. L. ch. 19), which rest upon the following constitutional provision (Const, art. 1, § 7) : "Private roads may be opened in the manner to be prescribed by law; but in every case the necessity of the road and the amount of all damage to be sustained by the opening thereof shall be first determined by a jury of freeholders, and such amount, together with the expenses of the proceeding, shall be paid by the person to be benefited." The sections of the highway law above cited provide in substance as follows: The proceedings begin with a written application to the commis- sioners of highways ot the town in which the road is proposed to be located, specifying its width and location, courses and distances, and the names of the owners and occupants of the land through which it is sought to have it laid out. One or more of the commissioners then appoints a day, as early as the convenience of the parties interested will allow, when, at a place designated in the town, a jury will be selected to decide upon the necessity of such road and assess any resulting damages. The commissioners deliver to the applicant a copy of his application, to which is attached a notice addressed to the owners and occupants of the land, stating when and where the jury is to be selected. The applicant, on the same day or the next day (excluding Sundays and holidays), must serve copies of these on the owners or occupants, or mail them to them if they do not reside in the town or can not be served there. At the time and place thus fixed a jury is selected, and the time and place determined at which they are to meet and hear evidence and arguments. The jury view the premises, and, at their meeting so determined upon, hear the allegations of the parties and examine such witnesses and other evidence as may be produced, and, if they determine that the proposed road is necessary, assess the damages to the person or persons thiough whose land it is to pass, and deliver their verdict in writing to the commissioners of highways. The commissioners annex to such verdict the application and their certificate that the road is laid out, and the same are filed and recorded in the town clerk's oflice. Within thirty days thereafter, any owner of the land may apply to the County Court for an order confirming, vacating, or modifying the verdict, and the proceedings thereon are ordinary special proceedings. If no such application be made, the verdict is deemed finah Before the road is opened, the damages assessed by the jury must be paid by the applicant; but if the jury certify that the private road was made necessary by the alteration or discontinuance of a public highway, the damages are to be refunded to the applicant by the town. See Satterly v. Winne, 101 N. Y. 218; Matter of De Camp, 79 Hun, 478 ; Hunford v. Thayer, 88 Hun, 136 ; Matter of Carpenter, 11 Misc. 690 ; Beveridge v. Schultz, 32 Misc. 444; 2 L. R. (1813) 276; note 2, p. 229, svpra. 1 Last two preceding notes. SERVITUDES THAT ARE NOT COMMON-LAW BASEMENTS. 239 A state may declare streams and other bodies of water that are not navigable to be public highways; and this is frequently done by statute.^ Such streams or waters thus become burdened with servitudes created by operation of law. So, in large cities, rights, privileges, and burdens in connec- tion with partition walls and other structures, methods of building and supporting houses, regulations as to drains, etc., are more or less determined by statutes; and servitudes are thus brought into existence by operation of law.^ Some of the most important of these rights and burdens are more fully examined hereafter in the discussion of particular claeses of easements and servitudes.^ f. Servitudes existing by Nature. § 181. Natural Servitudes — Kinds. — The maxim sic utere tuo ut alienum non Icedas has its most important illustrations in the operation of those natural rights and burdens which are attached in some degree to all corporeal hereditaments, and which must be here mentioned in order to complete our examination of the methods of acquiring easements and servi- tudes. Such privileges and obligations as nature establishes over lands are servitudes, but not common-law easements.* They are always strongly appurtenant to the land; and adhere to and pass with it in its transfer, unless they are prevented from doing so by some positive law or agreement of the parties. Examples of them are found in the servitudes of lateral and subjacent support, which are the rights of a landowner to have his soil supported in its natural condition by that of the other proprietors of lands adjoining his own on the sides of it, and beneath it if any ; ^ in proper means of access from riparian 1 Shively v. Bowlby, 152 U. S. 1; ILima, 178 Mass. 330; Jones, Ease. Water Power Co. i'. Water Comm'rs, §§ 586, 634-640. 168 U. S. 349; Hardin v. Shedd, 190 s Ch, Xlt, infra. U. S. 508 ; Smith v. City of Rochester, * Stokes v. Singers, 8 E. & B. 31, 36 ; 92 N. Y. 463, 473; Lincoln v. Davis, McGuire v. Grant, 25 N. J. L. 356; 2 53 Mich. 375 ; Ensmiuger v. The Peo- Fournel, Traite de Voisinage, 400 ; pie, 47 111. 384. The word " highway," § 165, supra, and note, as used in a grant, does not mean a ^ Angus v. Dalton, L. R. 6 App. waterway of any kind, unless such is Cas. 740; Lasala u. Holbrook, 4 Paige clearly shown to be the intent of the (N. Y.), 169 ; Hay c-. Cohoes Co., 2 parties. De Camp y. Dix, 159 N. Y. 436. N. Y. 159; Gilmore v. Driscoll, 122 ^ N. Y. L. 1892, ch. 275, § 9 ; N. Y. L. Mass. 199 ; White ;;. Dresser, 135 Mass. 1888, ch. 533, § 59 ; N. Y. L. 1897, ch. l.'iO; McGettigan v. Potts, 149 Pa. St. 378, §§ 1608-1620 ; Atty.-Gen. v. Wil- 155 ; McGuire v. Grant, 25 N. J. L. 356. 240 KINDS OP REAL PROPERTY. lands to natural bodies of navigable waters;^ in the reciprocal privileges and burdens of owners of lands aloflg the banks of natural streams whether on the surface or underground, such as the right and obligation to have the waters thereof flow over their accustomed bed unpolluted and substantially undimin- ished;^ and in the rights to use, ward off, or intercept surface waters flowing in undefined courses,^ or percolating under- ground water, oil, or natural gas.* Each of these forms of natural servitudes has given rise to many important questions and some conflict- of opinion. A separate and somewhat detailed discussion of each of them is therefore required, and will be given in the following chapters, and so no further examination of them here is needed.^ ' Eumsey v. N. Y. & N. E. R. Co., 133 N. Y. 79 ; N. Y. C. & H. R. R. Co. V. Aldridge, 135 N. y, 83 ; Illinois Cent. R. Co. V. Illinois, 146 U. S. 387 ; Shively V. Bowlby, 152 U. S. 1 ; Stevens i-. Patter- son & N. R. Co., 34 N. J. L. 532; Hedges v. West Shore R. Co., 150 N. Y. 150. 2 Brown u. Bowen, 30 N. Y. 519 ; Scriver u. Smith, 100 N. Y. 471 ; Ac- quackanonck Water Co. o. Watson, 29 N. J. Eq. 366 ; Shively v. Bowlbj', 152 tX. S. 1; Merrifield v. Worcester, 110 Mass. 216; Druley v. Adam, 102 III. 177; Lord v. Meadville Water Co., 135 Pa. St. 122. 5 Barkley v. Wilcox, 86 N. Y. 140; Peck V. Goodberlett, 109 N. Y. 180; Bowlsby r. Speer, 31 N. J. L. 351 ; Cas- sidy f. Old Colony R. Co., 141 Mass. 174; Murphy v. Kelley, 68 Me. 521; Wakefield v. Newell, 12 R. I. 75; Pres- ton V. Hall, 77 Iowa, 309. *■ Acton V. Blimdell, 12 M. & W. 324 ; Bradford v. Pickles (1895), App. Cas. 587; Bloodgood v. Ayers, lOS N. Y. 400; Davis u. Spaulding, 157 Mass. 431 ; People's Gas Co. v. Tyne, 131 Ind. 277, 408 ; Westmoreland Gas Co. v. Be Witt, 130 Pa. St. 235 ; McKee v. Del. & H. Canal Co., 125 N. Y. 353; Walker v. So. Pac. R. Co., 165 U. S. 593. 5 See §§ 206-210, 220-225, infra. CHAPTER XL INCIDENTS OP EASEMENTS AND -SERVITUDES — THEIE TERMINATION AND SUSPENSION — REMEDIES. § 189. (a) Release. § 190. (b) Disclaimer, or abaa- donment and estoppel. § 191. (c) Non-user. § 192. (d) Adverse obstruction, or prescription. § 193. (e) Destruction of that on which the right depends. § 194. ( f ) Union of tenements. § 195. (g) Excessive claim or user. § 196. Remedies for obstructions or injuries to easements and ser- vitudes. § 182. Topics of this chapter. a. Incidents of Easements and Servitudes. § 183. Transfer of them. § 184. Use and enjoyment of them. § 185. Repairs of them. § 186. Alterations of them. b. Termination, Destruction, and Sus- pension of Easements and Servi- tudes. § 187. Natural termination. § 188. Methods of destroying and suspending them. § 182. Topics of this Chapter. — The acquisition and gen- eral nature of common-law easements and those of servitudes which are not easements have been separately discussed in the last two preceding chapters. In regard to their important incidents, such as their transfer, use, repairs, and alterations, all of these rights may now be most conveniently and intel- ligibly examined together. Those incidents, the methods by which easements and servitudes may be terminated or sus- pended and the remedies for their obstruction or injury are the topics of this chapter. Some special features of particu- lar, important species of these incorporeal hereditaments will be separately examined in the next succeeding chapter. a. Incidents of Easements and Servitudes, including their Transfer, Use, Bepairs, and Alterations. § 183. Transfer of Easements and Servitudes. — The pre- vailing rule as to easements in gross, in both England and 16 242 KINDS OP REAL PROPERTY. America, is that they are not assignable nor inheritable, and can not be made so by any form of words in the deeds or contracts by which they are brought into being. They are attached to the persons to whom they are granted, and can not exist in any other way.' So, the other forms of servitudes above discussed, which do not require the existence of any dominant estate, such, for example, as the rights of the public in a street or highway, are commonly of such a character that they must remain the property of the town, parish, or other political body which acquired them, or must cease to exist.^ In a few of the United States, however, such as Massachusetts and Wisconsin, it is held that easements in gross may be so created as to be readily passed from hand to hand in the same ways in which other species of real property are transferred.^ And there are some forms of the other servitudes having no dominant tenements, such as rights of way acquired by rail- road or turnpike companies, of which valid transfers may unquestionably be made so long as the purposes and ends to which they are applied are not materially changed.* These rights and privileges over land which belong to individuals or corporations as such, and are not appurtenant to other land, may be said, in summary, to be ordinarily independent, proper objects of such agreements, assignments, and transfers as the interested parties choose to make ; with the two quali- fications, however, that the public interests shall not be injuriously affected by such conveyances or agreements, and 1 Ackroyd v. Smith, 10 C. B. 164; rights, not strictly servitudes in fee Louisville & N. R. Co. v. Koelle, 104 since a fee must be appurtenant to land, 111. 455 ; Tinicura Fishing Co. v. Carter, but contract rights in perpetuity which 61 Pa. St. 21 ; Pearson v. Hartman, may be legally transferred from hand 100 Pa. St. 84 ; Cadwalader v. Bailey, to hand. See also Wilder v. Wheeler, 17 R. I. 495; Wagner «. Hanna, 38 60 N. H. 351. Cal. Ill ; Boatman v. Lasley, 23 Ohio ' The intention that the right shall St. 614; Post V. Pearsall, 22 Wend. be enjoyed by the grantee, his heirs and (N. Y.) 425, 432; Hall v. Armstrong, assigns, must be clearly manifested. 53 Conn. 554 ; Hoosier Stone Co. v. Mar Bowen v. Conner, 6 Cush. (Mass.) 132; lott, 130 Ind. 21, 24; Fisher v. Fair, 34 French v. Morris, 101 Mass. 68; Owen S. C. 203 ; Wilder v. Wheeler, 60 N. H. u. Field, 102 Mass. 90 ; Hankey v. Clark, 351; Wash.Ease. (4thed.)p. 13, p.*9. 110 Mass. 262; PouU v. Mockley, 33 2 Post u. Pearsall, 22 Wend. (N. Y.) Wis. 482. 425,432. A servitude conveyed to a city, * This occurs, for example, when a "its successors and assigns," has been railroad franchise and all itsways.rights, held to be capable of being assigned, and privileges are sold or leased. See however; and it seems to be clear that, Eastman t>. Anderson, 119 Mass. 526; if the parties use such express words to Barney t. Keokuk, 94 tJ S. 324, 340; that effect, they may thus make these 12 Amer. & Eng. Ency. of L. 660. INCIDENTS OF EASEMENTS AND SERVITUDES. 243 that, in most jurisdictions, mere easements in gross are of a purely personal character and are not capable of passing from hand to hand.^ On the other hand, an easement or servitude which is appurtenant to a dominant tenement adheres to that tenement and passes with it in its transfer by descent, devise, or act inter vivos.^ It is not even necessary that the right or privi- lege shall be mentioned in the deed of the land to which it is appurtenant; though in practice the statement that the instru- ment is meant to convey the lot particularly described, with all its appurtenances, is the form of the express contract by which such incorporeal hereditaments are ordinarily granted.^ An appurtenant easement, moreover, can not be conveyed by its owner separate from the land. It can not be converted into an easement or right in gross. It inheres in the corpo- real, dominant property, and can not exist in any other form.* In order that it shall be thus appurtenant and adhere thus closely to the land, passing with it and not being severable from it, the easement must be of some benefit to the corporeal property, a valuable adjunct to it, appropriate and reasonably 1 The distinction must be again care- fully noted between an easement and a profit a prendre. The latter means the right to take something from the servi- ent estate, while the former never in- .Tolves that right. While . Riokards, 38 Mass. 146. Neb. 847. INCIDENTS OP EASEMENTS AND SERVITUDES. 247 the way ceases when the necessity terminates.^ Rights which exist in the natural order of things, such as the right to the lateral support of soil, or that to the usual flow of a natural stream, are servitudes which may be enjoyed and must be endured to the extent which the ordinary uses of the land in its natural condition requires, but do not ordinarily ex- tend to the benefit of artificial erections or improvements. A right, for example, to have one's soil laterally supported by that of his neighbor does not exist naturally in favor of buildings, nor does it include any soil or its products in other than their natural condition.^ The waters of a natural stream may be used by the owner of the land over which it flows, in any manner and to any extent that he may desire, so long as he does not change the place at which they pass into his neighbor's property, nor pollute them, nor substantially diminish their volume.* The owner of the servient estate may employ his land for such purposes as he pleases^ consistent with the reasonable and proper use of the easement or servitude.^ If, for ex- ample, the right be a private way, the servient owner may, as a general rule, maintain a gate or bars across it, provided that this is not contrary to the contract of the parties and does not materially interfere with the use of the way.^ But he must not so place obstructions in the way, nor so remove or destroy the accessories to its use, as to restrict essentially the reasonable enjoyment of the right. Therefore, where the easement consisted of a carriage road, the proprietor of the land over which it existed was enjoined from depositing stones in the way, and from hauling heavy loads over it in ' §§ 145, 14", supra. feet wide, it was held that the servient 2 Angus V. Dalton, L. R. 6 App. Cas. tenant might place ohstructions within 740 ; White v. Dresser, 135 Mass. 150 ; that space, so long as he did not shut out White V. Nassau Trust Co., 168 N. Y. a convenient way. Johnson w. Kinni- 149, 155 ; §§ 207, 208, infra. cutt, 2 Cush. (Mass.) 153, 156. But the 8 Brewster v. Rogers Co., 169 N. Y. express grant or reservation of a well- 73 ; § 222, infra. defined width entitles the grantee to the * Bakeman v. Talbot, 31 N. Y. 366, entire space unobstructed. Tucker v. 371. Howard, 122 Mass. 529, 128 Mass. 361 ; 6 Huson V. Young, 4 Lans. (N. Y.) Nash v. N. E. Ins. Co., 127 Mass. 91 ; 63; Bean v. Coleman, 44 N. H. 539; Bissell w. Grant, 35 Conn. 288, 295. So, Houpes V. Alderson, 22 Iowa, 160, 163 ; the landowner may cultivate the soil, Connery v. Brooks, 73 Pa. St. 80 ; At- over which the road exists, in such a kins V. BOrdman, 2 Met, (Mass.) 457; manner as not to interfere with the use Richardson v. Pond, 15 Gray (Mass.), of the privilege according to the terms 387, 389. In one case, where the right of the grant or reservation. Wells v. of way was granted over a space twenty Tolman, 156 N. Y. 636. 248 KINDS OF REAL PROPERTY. such a manner as to cut it up and make it unsuitable for light carriages.^ In a word, the owner of the easement or servitude shall have the right to use it and all things accessory to its enjoy- ment in the manner contemplated and implied in its original creation or existence ; and the owner of the land shall have the enjoyment of his property in all methods not inconsistent with such use and enjoyment of the incorporeal right or privilege. § 185. Repairs of Easements and Servitudes. — The owner of the servient tenement may be bound, by grant, reservation, or prescription, to make such repairs as may be necessary to the proper enjoyment of the easement or servitude by its owner.* But, as a general rule, this obligation does not rest upon him; and the dominant tenant can insist on no repairs or improvements other than those which he himself makes or causes, even though they may be necessary to the enjoyment of his right. ^ The authority, however, to amend, repair, or improve the property, to the extent which may be fairly requisite to the utility to its owner of the right or privilege as reasonably contemplated by the parties, goes with it as an incident to its ownership. Such incidental rights have been described as "secondary easements."* Thus, the grant of a way includes the right of its owner to keep it in good condi- tion for the purposes for which it was created. And the right to use a house or any part of it for a particular purpose carries with it the right to repair it to the extent which that purpose requires.^ While the owner of the dominant tenement has authority 1 Herman v. Roberts, 119 N. Y. 37. Liford's Case, 11 Rep. 46 b, 52 a; "Wet- ' Whittenton Mfg. Co. v. Staples, more !'. Fisk, 15 R. I. 354; Herman v. 164 Mass. 319, 330; Middleford v. Roberts, 119 N. Y. 37; Huntington o. Church Mills Knitting Co., 160 Mass. Asher, 96 N. Y. 604 ; Edgett u. Douglas, 267; Bronson v. Coffin, 108 Mass. 175; 144 Pa. St. 95. Nor do words in tlie Lynn D. Tamer, Cowper, 86 ; Kingston- deed of conveyance of a way, declar- upon-Hull 1'. Horner, Lofft, 576. ing that no easement shall pass by im- 8 Gerrard v. Cooke, 5 B. & P. 109, plication, nor long user of the way 115; Pomfret w. Ricroft, 1 Saund. 321, without actually making any repairs, 323, n. 3 ; Rider v. Smith, 3 T. R. 766 ; deprive the owner of a way of the right Doane v. Badger, 12 Mass. 65 ; Joseph to make repairs when necessary. " The i;. Ager, 108 Cal. 517; Hargrave v. very existence of a right of way pre- Cook, 108 Cal. 72. eludes the idea that tlie party who li;\s * Nicholas v. Chamberlain, Cro. Jac. the right ran not repair or keep the way 121 ; Toothe v. Bryce, 50 N. J. Eq. 589, in order." McMillan r. Cronin, 75 609. N. Y. 474, 477 ; St. Anthony F. W. Co. ' Benham v. Minor, 38 Conn. 252 ; r. Minneapolis, 41 Minn, 270, 274. INCIDENTS OF EASEMENTS AND SERVITUDES. 249 to make such repairs as the proper uses of his right demand, yet, as between him and the servient tenant, he is under no obligation to repair, unless required to do so by contract or prescription. 1 He may let the way, drain, wall, or other subject of the right become useless if he please ; and, except in cases in which this is a violation of his duty to the public or to his neighbor to keep his property in a safe condition, he is not answerable therefor to any one.^ The privilege of making necessary and reasonable repairs includes, of course, the right to go upon and use the servient property to the requisite extent. The owner of a dam and right of flowage may enter upon the soil and take as much of it as is needed to keep the dam in good condition, doing as little injury as possible to the servient land ; and he who has a right of way is entitled to have such use of the adjacent land as is required to make and keep a good road.^ But when the means of enjoying his right are out of repair, he must not pass over or appropriate other portions of the ser- vient tenement, unless the owner of the latter is bound to repair, or has wilfully and wrongfully obstructed or interfered with the proper use of the easement or servitude. The owner of such a privilege can not, by his own act or neglect, let the means of utilizing it become defective, and, in consequence thereof, impose a heavier or different burden upon the servi- ent property.* If, however, the proprietor of the latter, by intentional wrong, impair the means of enjoying the right, the dominant owner may use the adjacent land as long as the unwarrantable interference continues.^ § 186. Alterations of Easements and Servitudes. — The very existence of an easement or servitude, placing as it does the enjoyment of one man's land to some extent in the hands of another, calls for careful, exact, and quite stringent regula- 1 Taylor u. Whitehead, Doug. 744; Roberts, 119 N.Y. 37 ; Doane k. Badger, McMillan i-. Cronin, 75 N. Y. 474 ; 12 Mass. 65 ; Newcomen v. Coulson, Jones V. Percival, 5 Pick. (Mass.) 485, L. R. 5 Ch. T)iv. 133; Seuhouae t. 487 i Walker v. Pierce, 38 Vt. 94 Christian, 1 T. R. 560 ; Dand .■. Kiugs- 2 Pomfret iv Ricroft. 1 Wms. Saund. cote, 6 M. & W. 174. 321; Duncan v. Louch, 6 Q. B, 904; * Rockland W. Co. t>. Tillson, 75 Roberts v. Roberts, 55 N. Y. 275; Me. 170; Capers v. McKee, 1 Strobh. Kaler v. Beaman, 49 Me. 207; Doane (S. C.) 164; McMillan v. Cronin, 75 u. Badger, 12 Mass. 65. N. Y. 474. ^ Edgett I'. Douglas, 144 Pa. St. 95; ^ Tavlor )', Whitehead. Dong 744; Gorrard ?;. Cooke, 5 R. & P. 109; Dun- Bullnrd't-. Harrison, 4 M. & S. 387; canw. Louch, 6 Q. B. 904; Huntington Hamilton v. White, 5 N. Y, » ; Wash, a. Ashor, 96 N. Y. 604; Herman u. Ease. (4th ed.) p, 293, p. » 196. 250 KINDS OP REAL PROPERTY. tions of their reciprocal rights and duties. The property of each must be so used as not to cause any injury to the other, with which it is so intimately associated; yet the restrictions must ordinarily be no more severe than such as are required by this principal. "The right of the easement owner and the right of the landowner are not absolute, irrelative, and uncontrolled, but are so limited, each by the other, that there may be a due and reasonable enjoyment of both." ^ It is accordingly held that the owner of the right may make such improvements and alterations as do not substan- tially change its character. ^ But he may be enjoined from adding anything to it, or taking anything from it, or employ- ing it in a manner or place, which may result in his enjoy- ment upon the servient land of something materially different from that to which he is strictly entitled ; and this though the change or improvement might be of no immediate detriment to the servient estate, or might be to it in some sense a bene- fit.^ Thus, a slight alteration in a road, made by the owner of the right of way for the purpose of straightening it and rendering it more convenient to all parties, will be permitted.* And a change in the method of using water as it runs over one's own land, whether the stream be natural or artificial, gives no right of action to his neighbors, provided it does not materially affect the character of the water nor the manner in which it flows over their lands.^ But an open drain can not be changed to a drain through a pipe, or vice versa, against the will of the owner of the land through which it passes.^ Nor will the proprietor of a mill run by water power be per- 1 Olcott V. Thompson, 59 N. H. 154, A benefit bestowed upon it against his 156. will is a legal injury to liim. Ibid. » Roberts v. Roberts, 55 N. Y. 275. * Lawton v. Rivers, 2 M'Cord (S. C), ' Lutrel's Case, 4 Rep. 84 b ; T^p- 445. And see Burris v. People's Ditch ling V. Jones, 11 H. L. Cas. 290; Dick- Co., 104 Cal. 248; Richardson i: Clem- erson v. Grand Junction Canal Co., 15 ents, 89 Pa. St. 503 ; Blaine i'. Kay, 61 Bear. 260 ; Onthank v. L. S. & M. C. R. Vt. 566. Co., 71 N.Y. 194 ; Evangelical Lutheran ^ Luttrel's Case, 4 Rep 84 b; Saun- St. J. & 0. Home v. Buffalo Hydraulic ders v. Newman, 1 Barn. & Aid. 258, Ass'n, 64 N.Y. 561; Merritt y. Parker, 262; Whittier ^. Cocheco Mfg. Co., 9 1 N. J. L. 460 ; Johnston v. Hyde, 32 N. H. 454 ; Blanchard v. Baker, 8 Me. N. J. Eq. 446; Allen v. San Jose L. & 253; Buddington v. Bradley, 10 Conn. W. Co., 92 Cal. 138; Dewey «. Bellows, 213. 9 N. H. 282 ; Darlington v. Painter, 7 6 Allen v. San Jose L. & W. Co., 92 Pa. St. 473; Jennison v. Walker, 11 Cal. 138; Dickerson r. Grand Junction Gray (Mass.), 423. The owner of land Canal Co., 15 Bear. 260; Jaqui v. has an arbitrary right to determine Johnson, 27 N, J. Eq. 526. whether or not it shall be improved. INCIDENTS OF BASEMENTS AND SERVITUDES. 251 mitted to alter the machinery therein or its workings in such a manner as to interfere essentially with the operation of other mills below his own.^ On the other hand, the owner of the servient tenement must do nothing to alter materially the servitude to which his land is subjected. Even though the act might result in an improvement of the easement or servitude and increase its usefulness to its owner, the latter may have an injunction against the working of any substantial change in his right or in the mode of its enjoyment.^ Subject to this limitation, the servient tenant may work and improve his land and put it to any legal use which he may desire. The owner of an ease- ment in the use of an aqueduct, for example, can not restrain the landowner from putting a more ornamental covering over the reservoir and otherwise improving his property, in such a manner as not to materially interfere with the enjoyment of the right.^ The owner of land over which a way of necessity is to exist may locate it in the first instance, if he make it reasonably convenient; but, after it is once fixed, he can not change it without the other's consent.* In case, however, of the material alteration of any easement or servi- tude by the servient tenant, if it be used in its changed con- dition for so long a time as to show an acquiescence on the part of its owner, he can not thereafter have it restored to its original form without the consent of the servient owner. ^ b. Termination, Destruction, and Suspension of Easements and Servitudes. § 187. Natural Termination. — Incorporeal rights and ob- ligations, of course, may be so limited at the time of their creation that they can not perpetually endure, but must come to a natural end in the lapse of time. Thus, a grant to one of a right of way over his neighbor's field, "for and during his natural life," will terminate at the death of the grantee. 1 Wentworth o. Poor, 38 Me. 243 ; Haslett v. Sheperd, 85 Mich. 165 ; Cowell !.'. Thayer, 5 Met. (Mass.) 253; Kelley v. Saltmarsh, 146 Mass. 585. King V. Tiffany, 9 Conn. 162. 8 Qlcott v. Thompson, 59 N. H. 154. 2 Vinton v. Greene, 158 Maaa. 426 ; * § 146, supra. Koberts v. Roberts, 55 N. Y. 275 ; Allen « Betts v. Badger, 12 Johna. (N. Y.) V. San Jose L. & W. Co., 92 Cal. 138 ; 223 ; Fitzpatrick v. B. & M. R. Co., 84 Me. 33. 252 KINDS OP REAL PROPERTY. So a privilege of using another's land may be expressly made to continue only for some definite period of time, as a stated number of years or months; or to last until some contingent event does or does not occur, or until some designated purpose shall be accomplished. In such cases, it is hardly necessary to say, the easement or servitude terminates naturally when the time for which it was made has elapsed, or the purposes of its creation have been fulfilled. ^ Aside from such natural ending, these rights and burdens, whether created for some temporary purpose or to continue perpetually, may be terminated or suspended in the various ways which are next to be investigated. § 188. Methods of destroying and suspending Easements and Servitudes. — The means of destroying, and sometimes suspending, these rights are by (a) release, (b) disclaimer, or abandonment and estoppel, (c) non-user, (d) adverse obstruc- tion, or prescription, (e) destruction of that upon which the right depends, (f) union of the dominant and servient estates, and (g) excessive claim or user. In most instances, any of these methods of dealing with the incorporeal right destroys it altogether; but under some conditions, which will be here- after explained, the easement or servitude is only suspended for a time, and revives when such operating cause of its ces- sation is removed. Each of these ways of terminating ease- ments and servitudes, or causing them to cease to operate for a season, will be separately examined. § 189. (a) Release of Easements and Servitudes. — Tech- nical Release under Seal. — Anything of an incorporeal nature may be terminated and destroyed by an express release under seal, from the owner of the right to the owner of the servient property.' It may also be temporarily suspended, to operate again in the future, or partly done away with, set aside, or altered in any manner agreed upon by the parties to the contract. So long as the rights of third persons are not interfered with, those who are interested in the land and the rights and burdens upon or over it may regulate or terminate the latter in any way that is clearly indicated by their deed. It has accordingly been held that an express release of a right of way ends it, although the effect is to cut off the releasor's 1 Hahnt>. Baker Lodge, 21 Oreg. 30; = Dyer v. Sanford, 9 Met. (Mass.) Shirley;,'. Crabb, 138 Iiid. 200; Thorn 395; Comstock v. Sharp, 106 Mich. V. Wilson, 110 lud. 325. 176. INCIDENTS OP EASEMENTS AND SERVITUDES. 253 means of access to his land because it is entirely surrounded by land of the releasee and that of other persons/ Such express contracts, by which interests in real property are affected, are generally required by the statutes of frauds to be in writing ; and, in order to be a common-law release, the writing must be under seal. Melease in Form of License. ■ — ■ Using the word " release " for a moment, however, in its broad, general sense, to denote a voluntary relinquishment of a thing in any manner, it may be stated as a well-established principle that by a mere license, which is a permission given orally or by a writing not under seal, the owner of an easement may effectually release it to the servient tenant. Tliis is done by an authority to the owner of the servient land to do something upon it which will ob- struct the enjoyment of the easement; as when he is expressly permitted to erect upon it a house or wall, in such a way as to shut out from the windows of his neighbor, the licensor, the light and air in the enjoyment of which the latter had in some manner acquired an adverse right.^ While an casement can not be created by parol agreement; yet, when an oral license is thus given to do an act on the land of the licensee, and the effect thereof is to destroy or impair an easement appurtenant to land of the licensor, the latter will not be permitted to revoke the license so as to stop or interfere with any changes, additions, or improvements that have been begun or made upon the servient land in consequence of the authority so given. ^ But a parol license to do an act on the licensor's land can not have such an operation. The licensor may revoke it at any time, and compel the licensee to restore tlie property to its original condition.* Both of the rules of law above stated — that an easement may be destroyed by a license to do an act on the licensee's land, but that irrevocable privileges can not fiow from a license to do an act on the licensor's land — are well illustrated by the decision in Morse v. Copeland.^ The plaintiff in that case 1 Richards v. Attloborough Branch Ford o. New Haven & North Co., 23 E. Co., 153 Mass. 120. Coun. 214, 223; § 243, infra. 2 Liggins V. Inge, 7 Bing 682 ; Win- * Ligffins v. Inge, 7 Bing. 682 ; Dyer ter V. Brockwell, 8 East, 308 ; Elliott v. v. Sanford, 9 Met. (Mass.) 39.5 ; Crosdale Ehett. 5 Rich. (S. C.) 405, 418, 419; i'. Lanigan, 129 N. Y. 604; White o. Dver (I. Sanford, 5 Met. (Mass.) 39.5. Man. R. Co., 139 N. Y. 19; Lawrence " 3 Winter v. Brockwell, 8 East, 308 ; v. Springer, 49 N. J. Eq. 289 ; §§ 240, JPope V. O'Hara, 48 N. Y. 446 ; Veghte 242, infra. v. Earitan Co., 19 N. J. Eq. 142, 153; 6 2 Gray (Mass.), 302. 254 KINDS OF REAL PROPERTY. owned a right of flowage over land of the defendant. He gave to the latter oral permission to erect a dam upon that land, in such a position as to prevent the water from flowing over a part of it which had formerly been covered by the water; and also an oral license to dig and maintain a drain, from the land thus taken from the pond, through a portion of plain- tiff's land to a stream. A few years thereafter, the plaintiff attempted to revoke these licenses and compel the defendant to remove the dam, and to cease to use and to fill up the ditch which he had constructed for the drain. It was held that he could not compel the removal of the dam, since that was upon the licensee's land; but that he might revoke the license for the ditch upon his own land, and have his property restored to its original condition. The distinction here made is, in substance, that, if the effect of the oral license be to destroy or impair an easement, it can not be revoked by the licensor after the erection or change which it authorizes has been made or commenced ; but if the effect be to create or enlarge an easement, it may be revoked by the licensor at any time. It follows that natural servitudes, such as the right to the natural flow of a stream, or to have one's soil supported by that of his neighbor, can not be done away with or affected by oral permission to do something upon the land of the licensee, since this would be, in effect, the creation of an easement over the licensor's prop- erty. If, for example. A, the owner of lower land, give to B, the owner of higher adjoining land, the right to divert upon B's land a stream which flows through both properties, or to use up all or most of its waters, this is the creation of a nega- tive easement over the land of A, the licensor; and the statutes of frauds require such a contract to be in writing. ^ § 190. (b) Disclaimer, or Abandonment and Estoppel. — In addition to an express release, which may terminate any easement or servitude, an abandonment of such rights, or the ceasing to use them under circumstances which indicate an intent not to resume their enjoyment and without any formal or direct contract, may also do away with them. It is " a settled doctrine of the law," says the New York Court of Appeals, "that the landowner's right in an easement may be destroyed by his abandonment of it, and that whether there has been an abandonment is a question of intention depending 1 Veghte !'. Earitan Co., 19 N. J. Eq. 142, 154. INCIDENTS OP EASEMENTS AND SERVITUDES. 255 upon the facts of the particular case."^ A careful examina- tion of the facts of the cases, in which incorporeal rights have been held to have been abandoned by methods other than express release, will show that practically all of such deci- sions rest upon the doctrine of estoppel in pais; and that, when that principle is not involved, the loss of the right is in reality due to some cause other than mere abandonment, such, for example, as adverse user or prescription. In the leading case of Corning v. Gould,^ there was an alley-way between the land of the plaintiff and that of the defendant; and the centre line of the alley was the dividing line between their two properties. The plaintiff built upon a part of this way and ran a fence along the middle line of it, thus leaving the other half of "the alley within the enclosure of his neighbor's land. In that condition the last-named land was sold to the defendant, who then occupied exclusively that portion of the alley which was inside of said dividing fence and next to his own lot. The action having been brought for damages for the obstruction of the way, it was held that, since the plaintiff had built in such a manner as to evince an intent to give up the right, and his neighbor had acted accordingly in using the lan'd, and the property had been sold under those circumstances, the easement was at an end. In the case of Taylor v. Hampton,^ so frequently cited in connection with this topic, the easement was a right to flow water upon another's land for the raising of a mill pond. The owner of the mill removed it further up the stream, and established it in a new place, in such a manner as to indicate that he meant to keep it there permanently. The owner of the land, which had been flowed but was now left bare by the change in the location of the mill, converted it into a rice-field, cultivated it, and subsequently sold it in that condition. It was held that the owner of the mill, after retaining it in its new posi- tion for nine years, could not restore it to its former site and again flow the land thus used for the raising of rice. In each of these cases, the owner of the right had so acted as to rep- resent, or be reasonably presumed to have represented, that he did not intend to use it again ; he had done this in such a way as reasonably to induce the other to act upon the repre- 1 Foote V. Elevated Eailroad, 147 ^ je Wend. (N. Y.) 531. See also. N. Y. 367, 371. Partridge v. Gibert, 15 N. Y. 601. 8 4 McCord (S. C), 96. 256 KINDS OP REAL PROPERTY. sentation, and that other had justifiedly so acted, and would suHci- injury in consequence if the representation were denied. The former owner of tlie easement was accordinglj- estopped to reclaim its enjoyment. So, where one who owned an ease- ment over a street believed that he owned also the soil in fee and wrongfully enclosed it, it was held that he had not thereby abandoned his easement; but it was declared that an abandon- ment would have resulted, if by his conduct others had been induced to act on the belief that the right was extinguished. ^ There are probably no well-considered cases in which it has been decided that the mere failure to enjoy an easement or ser- vitude for less than the prescriptive period, however emphatic may have appeared the intention to relinquish it, constituted a destruction of the right, unless the party favorably affected thereby had changed his position, or might at least reasonably be presumed to have changed it, on the faith of the represen- tation thus made.^ In Moore v. Rawson,^ which has been called the leading case upon this topic, it was held that the plaintiff, after taking down a wall containing windows for which he had an easement in the light and air over his neigh- bor's lot and building a solid blank wall in its place, could not recover against the adjoining owner for an obstruction to the light and air of windows which he subsequently opened in 1 White's Bank v. Nichols, 6-t N. Y. H. R. R. Co., 156 N. Y. 474, 485, citing 65 ; also White i'. M. R. Co. 1.39 N. Y. the above cases and Ward v. Met. El. 19; Siiell V. Levitt, 110 N. Y. 595. In R. Co., 152 N. Y. 39. commenting upon the last two cases ^ Mr. Washburn reaches this same cited the New York Court of Appeals conclusiou as to title to corporeal here- says : "The peculiar features in the ditaments. After summarizing the eases. White and Snell cases, which have he concludes : " It is probably, therefore, been referred to, were, in the one an not too strong a conclusion to assert, that express authorization to build the ele- in no case can a man lose his title to a vated railroad, and, in the other, an ex- freehold in land by any act or oral decla- press relinquishment of an easement to ration of abandonment, unless it conies conduct water ; upon both of which agree- within the category of estoppel, or is mentsthe parlies favorahlij affected thereby followed by such a possession by the had acted." Foote v. El. R., 147 N. Y. person claiming title thereto in his 367, 371. And again the same court stead as brings the case within the stat- says : " This court has several times lield ute of limitations." 3 Wasli. R. P. (■'5th that a release or abandonment of the ed.) p. 72, p. *457, par. 5 (see 6th ed. easement of light, air, and access which § 1888). See also Vogler v. Geiss, 51 are appurtenant to property abutting Md. 407,411; Pope w. Devereux, 5 Gray upon a public street may be established (Mass.), 409 ; Erb f. Brown, 69 Pa. St. by any evidence which clearly indicates 216; Collins i. St. Peters, 65 Vt. 618; an intention upon the part of an abut- Ermentrout v. Stitzel, 170 Pa. St. 540; ting owner to abandon the right, at Dyer t. Sanford, 9 Met. (Mass.) 395, least where it has been acted upon b;/ the 402. oiher party." Conabeer v. N. Y. C. & * 3 Barn. & C. 332 INCIDENTS OP EASEMENTS AND SERVITUDES. 257 the new wall. And the decision was placed upon the ground that " By building the blank wall he may have inductd another person to become the purchaser of the adjoining ground for building purposes, and it would be most unjust that he should afterwards prevent such person from carrying those purposes into effect."^ This is as far as either reason or authority appears to carry the principle. And the fol- lowing statement of Lord Campbell, C. J., in speaking of the intention to abandon and the communication of that intention to the servient owner, appears to be in accord with the weight of authority, both ancient and modern. He says : " I doubt whether the communication of that intention destroys the right until the communication is acted upon. Then it cer- tainly does. " ^ It follows that mere use of an easement for a purpose not authorized, its excessive use or misuse, or the failure to employ it for a brief time, is not in itself sufficient to constitute an abandonment. These acts do not of them- selves make such representations as, when acted on by the other party, preclude the owner of the right from subsequently insisting on its enjoyment.^ When the giving up of the right is in favor of the public, and the offer so made is accepted by the public, an aban- donment by dedication results. In the case of Regina v. Chorley,* where the defendant owned a private right of way to his malt house over the plaintiff's land, the court said that if he had removed the house and walled up the entrance and acquiesced in the use of the road by the public, this would have been an abandonment of the easement. So, when a railroad company removes its tracks from a public street in a way which indicates a relinquishment of its rights therein, or a telegraph or telephone company takes down its poles and wires so as to leave the public highway unobstructed, an abandonment of such rights results from the fact that there is a dedication to the public of the unobstructed street or road.^ In the last analysis, these methods also are abandonments 1 Wash. Ease. (4th ed.) p. 712, v. Cook, 39 N. J. Eq. 396; Duncan v. p.* 547. Eodecker, 90 Wis. 1. 2 Stokoe V. Singers, 8 E. & B. 31,39. * 12 Q. B. 515. « Roby V. N. Y. C. & H. R. R. Co., ^ Jones v. Van Bochove, 103 Mich. 142 N. Y. 176, 181; White's Bank v. 98; Hendersons. Central Park R. Co., Nichols, 64 N. Y. 65 ; Hayford w. Spokes- 21 Eed. Rep. 358 ; Hickox v. Chicago & field, 100 Mass. 491; Jamaica Pond C. S. Ey. Co., 78 Mich. 615; Roanoke Aqueduct Co. v. Cliandler, 121 Mass, 3 ; Investment Co, v. Kansas City & S. E. R. Vinton v. Greene, 158 Mass. 426 ; Chew Co., 108 Mo. 50. 17 258 KINDS OF REAL PROPERTY. resulting from estoppel in pais ; since it is the act of the public, upon the faith of the representation made by the owner of the right, which completes the destruction of the easement or servitude. If, therefore, the public have not acted on the assumption of the relinquishment of an easement, its owner may restore it and use it again. ^ There are a few cases in which incorporeal rights have been said to have been abandoned, where the owners have simply ceased to use them during the entire prescriptive period, or they have been adversely obstructed by the servient tenant during that length of time.^ While it is, of course, true, in the broad sense of the term, that one does abandon such property by giving it up for so long a time as to preclude himself from subsequently claiming it, it is equally apparent that the destruction of easements and servitudes in such ways is logically to be discussed under the topics non-user and adverse obstruction or prescription. These methods of losing such rights are to be next examined. The burden of proving an abandonment, thus resting upon the doctrine of estoppel i7i pais, is upon him who asserts that the easement or servitude has been so extinguished; and he must support his contention by clear and unequivocal evidence.^ § 191. (c) Non-user. — Mere non-user for any length of time of an easement or servitude arising by any method other than prescription does not of itself work an extinguishment* The fact that the right has not been enjoyed for a long period is an item of evidence, to aid in proving an abandonment; but, in order to make such proof complete, an intention to 1 Hestonville M. & F. Pass. B. Co. Beaver Brook Reservoir Co. v. St. Vrain V. Phila., 89 Pa. St. 210. Reservoir Co., 6 Colo. App. 130. 2 Crossley i;. Lightowler, L. R. 2 * Crossley v. Lightowler, 3 Eq. 279 ; Ch. App. 478, 482 ; Veghte v. Raritan, Carr v. Foster, 3 Q. B. 581 ; Canabeer etc. ,Co., 19 N. J. Eq. 142, 156; Pres- v. N. Y. C. & H. R. R. Co., 156 N. Y. cottv. Phillips, cited 6 East, 213; Hil- 474; Hennessy v. Murdock, 137 N. Y. lary v. Waller, 12 Ves. 239, 265. See 317; Welsh i'. Taylor, 134 N. Y. 450; Smyles v. Hastings, 22 N. Y. 217, 224; White v. Manhattan R. Co., 139 N. Y. Steere v. Tiffany, 13 R. I. 568 ; Wilder 19 ; Horner v. Stillwell, 35 N. J. L.'307 ; V. St. Paul, 12 Minn. 192, 208; Hall a. Dill v. Camden Board of Education, 47 McCaughey, 51 Pa. St. 43; Owen v. N. J. Eq. 441; Butterfield v. Reed, 160 Field, 102 Mass. 90, 114; Corning Mass. 361; Eddy v. Chace, 140 Mass. V Gould, 16 Wend. (N. Y.) 531, 535. 471 ; Steere v. Tiffany, 13 R. I. 568; 8 Hennessy v. Murdock, 137 N. Y. Lathrop v. Eisner, 93 Mich. 599 ; Pa. K. 317, 325; Richardson v. McNulty, 24 Co. n. Borough of Freeport, 138 Pa. St. Cal. 339 ; Waring v. Crow, 11 Cal. 366 ; 91. INCIDENTS OP EASEMENTS AND SERVITUDES. 259 relinquish and an estoppel in pais must be established by all the evidence, and this is not accomplished by showing non- user alone.-' The owner of the privilege is under no obliga- tion of any kind to use it, unless he has voluntarily assumed such obligation; and, therefore, while he merely fails to enjoy it, he is to be considered as still retaining his claim until the contrary is clearly shown against him. The same reasoning may appear to apply to an easement or servitude acquired by prescription. But there are numer- ous dicta, by the best courts, to the effect that rights which have been obtained in that manner may be extinguished simply by the subsequent failure of their owners to make use of them during the prescriptive period. Thus, it has been said by the New York Court of Appeals that "A right ac- quired by prescription may be lost by non-user ; but it cannot be lost or extinguished by mere non-user, when it has been acquired by deed."^ Bracton declared that "incorporeal rights acquired by use may be equally lost by disuse. " ^ The same statement was made by Lord Erskine in Hillary v. Waller,* and by Judge Story in Hazard v. Robinson;^ and in Corning v. Gould,® after stating that Mr. Evans and Chancellor Kent inclined, with the civil law, to the rule that something more than mere non-user for the prescriptive term is necessary to work a legal destruction of such a right. Judge Cowen says : " The doctrine in the English and Amer- ican cases cited is otherwise, and, in 1823, the court of appeals, in Maryland, expressly recognized the effect of simple non-user." In many cases, moreover, the judges are careful to state that easements " created hy grant " can not be de- stroyed by non-user alone, thus implying the opinion that they might be so done away with if they arose by prescription.' On the other hand, there are several judges and writers who have discarded this distinction. In Veghte v. Raritan Water Power Co.,^ for example. Chancellor Zabriskie said: "I do not find any decisions founded on this distinction, and it 1 Moore v. Eawaon, 3 Barn. & C. 332 ; " Bract. Lib. 4 ; 3 Kent Comm. p. Eddy V. Chace, 140 Mass. 471 ; Roby v. •448, note. N. Y. C. & H. K. R. Co., 142 N. Y. 176 ; * 12 Ves. 239, 265. White's Bank «. Nichols, 64 N. Y. 65, 74 ; *3 Uason {U. S. Cir. Ct), 272, Pratt V. Sweetser, 68 Me. 344. 276. 2 Smyles v. Hastings, 22 N. Y. 217, « 16 Wend. (N. Y.) 531, 536. 223. ^ First two notes to this section. 8 19 N. J. Eq. 142, 156. 260 KINDS OF EEAL PROPERTY. would seem to be unfounded, as prescription is based upon the presumption of a grant." The most satisfactory theory upon which are based pre- scriptive rights is the presumption of a grant or some other legal origin.'^ If such a presumption can arise from a pre- scribed period of user, it is logical and just to assume, from an equal period of non-user, that the right never in fact existed, or that it has been in some legal way extinguished.^ For the purpose of quieting titles and preventing litigation over stale claims, the servient tenant should be allowed to overcome the effect of proof of use for twenty years by counter proof of subsequent failure to enjoy for twenty years. But the only instances in which mere non-user should produce such a result are those in which the owners of the rights have voluntarily failed to employ them during the prescriptive period. A continuous easement — such, for example, as the right to have water flow from a stream upon one's land for irrigation purposes — should not be lost because its usefulness was interrupted for a long time by natural causes ; as, in the case supposed, by the natural failure of the stream for many years to rise to a sufficient height to supply the irrigating waters. Discontinuous easements gained by prescription and con- tinuous rights so acquired, which are intentionally shut off aiid relinquished by their owners, should be extinguished by their non-user during the prescriptive period. While there is a scarcity of actual adjudications in favor of this proposition, yet, as shown above, it has many strong dicta for its support and is not opposed by any decided cases. In some of the western states and territories of this country, and in Louisiana, it is expressly provided by statute that easements obtained by prescription may be lost by the subsequent failure of their owners to enjoy them during the prescriptive period.^ § 192. (d) Adverse Obstruction, or Prescription. — It has been shown that the cessation of the user of a prescriptive easement or servitude, for the period of time requisite to gain title by prescription, is regarded by some courts as sufficient 1 § 163, supra. Dak. Rev. Code (1895), §§ 3351-3361 ; ■' Coniiugy. Gould, 16 Wend. (N.Y.) S. Dak. Comp. Laws (1887), §§2760- r)31, 535. 2770; La. Code, §§ 790-804; 1 Stim. 3 Cal. Civ. Code, §§ 801-81 1 ; Mont. Amer. Stat. L. §§ 2157, 2290. Civ. Code (1895), §§ 1250-1260; N. INCIDENTS OP BASEMENTS AND SERVITUDES. 261 of itself to extinguish the right. ^ It has also been explained how non-user for any considerable length of time, accom- panied by acts or representations on the part of the dominant owner, which may be assumed to be meant to induce the servi- ent tenant to act upon them, and which have that effect and so work an estoppel in pais, results in a destruction of ease- ments and servitudes by abandonment.^ The owner of the privilege or claim is, in both of these cases, the one who causes its destruction. When, on the other hand, the ser- vient proprietor adversely shuts off in some way the enjoy- ment of the incorporeal right, and this continues during the entire prescriptive period, the termination of the easement or servitude is caused by adverse obstruction, or prescription. ^ If, for example, one have the right to flow the land of another for the purpose of raising a mill pond, the continued, peace- able, and uninterrupted occupation of the land by its owner for twenty years or more, under a claim adverse to the right of flowage, extinguishes the easement* And if the servient tenant build a wall, fence, or house across a way which is owned by his neighbor, and thus for twenty years prevent the enjoyment of the road or path, the easement is thereby done away with.^ In order thus to extinguish such an incorporeal right, the adverse obstruction or denial of the right must have the same requisites as those heretofore summed up as necessary to the acquisition of easements by prescription.^ And this means, in brief, that the acts or conduct of him who is so destroying the right must be of such a nature as to expose him to an action at law or in equity brought by the owner of the ease- ment or servitude at any time before the period of prescription is complete.' In the process of destroying this property right of the dominant owner, the hostile party is in reality ^ %l^l, supra. V. Nace, 2 Whart. (Pa.) 123, 125; 2 § 190, supra. Shields v. Arndt, 4 N. J. Eq. 234. 8 Woodruff 17. Paddock, 130 N. Y. ^ Smyles v Hastings, 22 N. Y. 217 ; 618; Townsend v. McDonald, 12 N. Y. Chandler v. Jamaica Pond Aqueduct 381 ; Dill V. Camden Board of Educa- Co , 125 Mass. 544 ; Horner v. Stillwell, tion, 47 N. J. Eq. 441 ; Smith v. Lange- 35 N. J. L. 307 ; James v. Stevenson wald, 140 Mass. 205; Wimer!). Simmons, (1893), App. Cas. 162; Mason v. Hor- 27 Oreg. 1 ; Yankee Jim's Water Co. u. ton, 67 Vt, 266. Crary, 25 Cal. 504. ' Cases cited in preceding note ; ^ Chandler v. Jamaica Pond Aque- also State v. Puttie, 115 N. C. 784; duct Co., 125 Mass. 544. Humphreys n. Blasingame, 104 Cal, 40; "■ Drewett v. Plipnrd, 7 C. & P. 465 ; Sullivan v. Zeiner, 98 Cal. 346 ; §§ 155- Welsh V. Taylor, 134 N. Y. 450; Yeakle 162, supra. 262 KINDS OF EEAL PROPERTY. acquiring an adverse right against him; and it must be shown tliat such adverse right was obtained in the manner required for the gaining of prescriptive titles.-' When the requisites thus demanded are established, the result may be the destruc- tion of any easement or servitude, no matter by what method it was acquired. '"* § 193. (e) Destruction of that upon ■which the Right de- pends. — ■ The partial destruction of the servient property does not extinguish an easement or servitude, provided enough of it remains to enable the owner of the right to continue its enjoyment.^ But, when that in, upon, or over which the right exists has been so substantially destroyed that it can not be used as it formerly was, the easement or servitude is done away with,* unless the parties have directly stipulated to the contrary,^ or subsequently act in such a manner as to show an intention to have the right continued.^ Thus, a right of way through the halls and stairways of a house, whether to reach the upper stories of the same build- ing or to enter other structures of the dominant owner, is ended by the destruction of the house ; and the owner of the easement can not compel its restoration by requiring that the house, or any part of it, shall be rebuilt.' So, where one house is supported by the wall of another, or both build- ings make use of a party wall erected upon the dividing line between them, the substantial destruction of the wall, even though its foundation may still remain, terminates the ease- ments enjoyed in it by the landowners.* Likewise, where the land, to which a right of way over adjoining property was appurtenant, was entirely taken away from its owner by a change in the bed of the Mississippi River, the easement was thereby destroyed.^ And a way granted to a widow, to enable her to enjoy her dower land, ceases when she dies and her dower interest is thereby terminated, i" 1 State V. Subtle, 1 15 N. C. 784. Pierce v. Dyer, 109 Mass. 374 ; Hoffman 2 Mason v. Horton, 67 Vt. 266 ; v. Kuhn, 57 Miss. 746 ; Bonney v. Green- Welsh V. Taylor, 134 N. Y. 450. wood, 96 Me. 335. But, by contract, 3 Bonney v. Greenwood, 96 Me. 335. the parties may make such a wall right « Shirley u. Crabb, 138 Ind. 200; permanent. O'Neil v. Van Tassel, 137 Heartt v. Krnger, 121 N. Y. 386 ; Pierce N. Y. 297. V. Dyer, 109 Mass. 374. 9 Weis v. Meyer, 55 Ark. 18. 5 O'Neilw.VanTaasel, 137N.Y. 297. lo Hoffman v. Savage, 15 Mass. 130; 6 Douglas V. Coonley, 156 N. Y. 521. also Central Wharf v. India Wharf, ' Shirley v. Crabb, 138 Ind. 200. 123 Mass. 561, 567; Mussey v. Union 8 Heartt o. Kruger, 121 N. Y. 386; Wharf, 41 Me. 34. Partridge u. Gibert, 15 N. Y. 601 ; INCIDENTS OF EASEMENTS AND SERVITUDES. 263 In like manner, if an easement exist as appurtenant simply to a certain dwelling-house, mill, or other structure, and the building to which it so belongs be destroyed, the right is thereby brought to an end. But -a distinction must be here carefully noted between such a privilege as appurtenant to the land generally, thpugh used for the benefit of a building upon it, and one simply appurtenant to the building as such. In the latter case, the destruction of the building terminates the easement ; while, in the former, the right continues in favor of similar structures erected in place of that for which it was at first enjoyed.^ So if the structure, in connection with which alone an easement exists, be destroyed and then within a reasonable time rebuilt in substantially the same form in which it was before, the right revives in favor of the domi- nant owner. The owner of a house and lot had a right to the use of the stairway of his neighbor's building, and thence through a dooi- in a party wall to his own rooms above. Both houses having burned, they were rebuilt in practically the same form in which they had previously existed. In an action to recover again the use of the stairway and door through the party wall, it was held that, while the owner of the servient property might have built differently or not at all, and thus might have wholly destroyed the easement which had been suspended, yet the building of the houses as they were before showed that their owners considered this as the best way to iise the properties ; and the easement accordingly revived. 2 § 194. (f) Extinguishment and Suspension by Union of the Bominant and Servient Estates. — Since the ownership of property carries with it the right to its general use and enjoyment, ordinarily no person can have an easement or servitude over his own land. He employs it as he may please, as his own, and not by virtue of any rights against any other person or property. Therefore the union of the dominant and servient estates, in the same person and in one and the same right, will usually extinguish an easement which has belonged to the former estate.^ Accordingly, where tlic 1 Day V. Walden, 46 Mich. 575, 586. Shirley v. Crabb, 138 Ind. 200 ; Hoft- The land of course remaining, the right man v. Kuhn, 57 Miss. 746. which is appurtenant to the land, ratlier s James v. Plant, 4 Add. & El. 749 ; than to the building, remains. That on Dynevor v. Tennant, L. R. 13 App. which it depends is not destroyed. Cas. 279; Damper v. Bassett (1901), 2 Douglas u. Coonley, 156 N. Y. 521 ; 2 Ch. 350 ; Atlanta Mills v. Mason, 12 264 KINDS OP REAL PROPERTY. absolute owner of a parcel of land, to which was appurtenant the right of drawing water through aqueduct pipes over adja- cent property, bought the servient tenement, the easement was at once extinct.^ And, when the owner of a right of way purchased the field over which the pathway ran, the easement as such was at an end.^ But, in order that an extinguishment may thus result, the person who acquires the two tenements must have at the same time the same estate of inheritance in both, "equal in valid- ity, quality, and all other circumstances of right. '' ^ And, if his title to one of them be defeated because it was not perfect, as he supposed, the union in him of the possession and seisin of the two pieces of land will not be held to have destroyed the easement previously existing.* It follows that, when the owner of only an undivided interest in one of the tenements, such as one of several joint-tenants or tenants in common thereof, acquires title to the other tenement, or when the owner in severalty of one of the pieces obtains an undivided interest in the other, the uniting of such titles in him does not extinguish an easement.^ It is also a consequence of the principle last stated that, when the same person is the absolute owner of one of the parcels of land (in fee), and of the other for life, or for a term of years however long or short it may be, this does not result in the destruction of any easement or servitude. It simply suspends any such rights during the continuance of the tem- porary estate; and they revive again when the possession and enjoyment of the two tenements are again separated, as by the death of the life tenant or the expiration of the estate for years.® Mass. 244 ; Parsons v. Johnson, 68 N. Y. * Tyler v. Hammond, 1 1 Pick. 62, 66 ; Denton v. Leddell, 23 N, J. Eq. (Mass.) 193. 64; Kieffer v. Imhoff, 26 Pa. St. 438; ^ Atlanta Mills v. Mason, 120 Mass. Dority v. Dunning, 78 Me. 381 ; Plimp- 244. The most that could ever result ton V. Converse, 42 Vt. 712 ; Mclllister from such a partial unity of ownerships V. Devane, 76 N. C. 57 ; Howell v. Estes, would be a temporary suspension of 71 Tex. 690. the riglit while the co-tenant of one 1 Nichols !'. Chamberlain, Cro. Jac. piece was the entire owner of the other; 121 ; Sucy v. Pigot, Poph. 166. and a complete revival and restoration ^ Parsons i'. Johnson, 68 N. Y. 62. of it when by sale or otherwise such par- 8 2 Wash. R. P. (6th ed.) § 1316, tial merger of the two estates was ter- p. * 85 ; Thomas v. Thomas, 2 Cr. M. & minated. Bradley Fish Co. v. Dudley, E. 34, 41 ; Dority v. Dunning, 78 Me. 37 Conn. 136, 144. 381; Tyler v. Hammond, II Pick. ^ 'pijomas u. Thomas, 2 Cr. M. & R. (Mass.) 193, 195; Atlanta Mills v. 34, 41 ; Pearce tj. McClenaghan, 5 Rich. Mason, 120 Mass. 244. (S. C.) 178; Dority i/. Dunning, 78 'INCIDENTS OP EASEMENTS AND SERVITUDES. 265 It is to be added that, even in cases where such rights have been wholly extinguished by the coming together of the two estates, if the ease or accommodation, which when the two parcels of land were separately owned constituted an ease- ment or servitude in or over one of them in favor of the other, remain as apparent and reasonably necessary to the enjoyment of that which had been the dominant tenement, then, upon the division of the two corporeal properties again by the convey- ance of one of them, it will again come into existence as an easement or servitude, although no express words to that effect are used in the instrument of conveyance.-' But it is not accurate to speak of such a result as the revival of a pre- existing right, which had been dormant or suspended for a season. It is the creation of a new right, similar to or identical with that which had existed before. When it is an easement, such as a right of way or a right of drainage, it is brought ii).to existence by implied grant upon the severance of an entire estate.^ When it is a mere servitude, such as the right to lateral support of soil or to the ordinary flow of a stream, it is a right which exists again as such by nature as soon as the two ownerships are distinct.^ When an easement is merely suspended by the temporary union of the two tenements, the possessor of them can not lawfully destroy the right, or prevent it from reviving when they are again separated.* But, when the permanent union of the two titles extinguishes an incorporeal hereditament, their owner is, of course, at liberty to so alter their condition as to prevent any such right from ever again springing into existence; or he may do this by an express denial of the right to his grantee in the conveyance of one of the parcels of land. 5 Me. 381 ; HoUenbeck v. McDonald, 112 2 §§ 139^ ]4o_ supra; Spencer v. Kil- Mass. 247; Brewster v. Hill, 1 N. H. mer, 151 N. Y. 390. 350; Chapman .<. Gray, 15 Mass. 439; ^ § isi, supra; Johnson r. Jordan, 2 Gay, Petitioner, 5 Mass. 419. Met. (Mass.) 234; Collier v. Pierce, 7 1 Fritz V. Tompkins, 168 N. Y. 524; Gray (Mass.), 18, 20. Grant v Chase, 17 Mass. 443; McCarty * Ibid. V. Kitchenman, 47 Pa. St. 239 ; In re ^ Manning 0. Smith, 6 Conn. 289 ; Bull, 15 R. I 534; Miller v. Lapham, Collier u. Pierce, 7 Gray (Mass.), 18, 44Vt. 416; Ferguson i-. Witsell, 5 Rich. 20; Johnson /■. Jordan, 2 Met.'(Mass.) (S. C.) 280 ; Rightsell v. Hale, 90 Tenn. 234, 239 ; Huttemeier v. Alhro, 1 8 N. Y. 556; Dunklee v. Wilton R. Co 24 48; Parsons v. Johnson, 68 N. Y. 62; N. H. 489. Duval v. Becker, 81 Md. 537. 266 KINDS OP REAL PEOPERTY. § 195. (g) Extinguishment by Excessive Claim or User. — The owner of an easement or servitude has no right, merely of his own volition, to increase its burden upon the servient property ; and, if he do so, it is settled that the owner of the latter may -recover damages at law for the injury or enjoin its continuance by a suit in equity.' It was, at one time, thought to be the law of England that, for such unauthorized excessive use or claim, the owner of the privilege might be compelled to relinquish it altogether and that the servient land should in consequence be relieved of the entire burden.^ But the rule now established, both there and in so far as the question has arisen in this country also, is that, if that which is wrongfully and excessively claimed or enjoyed can be distinguished and separated from that which is rightfully owned, this will be done and only the excessive amount will be taken away and prohibited.^ When, however, such sepa- ration and distinction can not be made, the prohibition of the excessive claim results in the destruction also of the entire original right.* Thus, in a number of cases in which the owner of a house enjoying an easement in light and air has enlarged the window and sought thus to impose an additional burden upon his neighbor's land, the question has arisen as to whether for that reason the entire window could be closed, or whether simply the excessive portions could be darkened; and it has been held that only the latter remedy could be enforced if the original window could be certainly located and restored.^ But where the owner of a stable, the boards on which had shrunk so that he could put small window-panes into the crevices, made diminutive windows in this way; and, after he had acquired a prescriptive right under the ^ Wood V. Copper Miner's Co., 14 Tapling v. Jones, 1,3 C. B. n. s. 876 : C. B. 428, 446; Sharpe v. Hancock, 7 Allan v. Gomme, 11 Adol. & El. 759; Mann. & G. 354; Chandler ii. Thomp- Renshaw v. Beau, 18 Adol. & El. n. s. son, 3 Camp. 80; Mendell v. Delano, 7 111 ; Mendell v. Delano, 7 Met. (Mass.) Met. (Mass.) 176. 176; McDonald v. Bear River Co., 1.3 '■i Garritt v. Sharp, 3 Adol. & El. 325 ; Cal. 220 ; Carlisle v. Cooper, 6 C. E. .Tones v. Tapling, II C. B. N. s. 283; Green (N. J.), 576, 595. Blanchard v. Bridges, 4 Adol. & El. * Blanchard v. Bridges, 4 Adol. & El. 176; Cherriugton I'. Abney Mill, 2 Vern. 176; Hutchinson v. Copestake, 9 C. B. 646; Hutchinson u. Copestake, 9 C. B. u. s. 863; Renshaw v. Bean, 18 Q. B. N. s. 863; Binckes u. Park, 11 C. B. 112. N. s. 324; Renshaw t). Bean, 18 Q. B. ^ Luttrel's Case, 4 Rep. 86, 89; 112. Chandler v. Thompson, 3 Camp. 80; !> Luttrel's Case, 4 Rep. 84 h, 86 ; Tapling v. Jones, 13 C. B. n. s. 876. Chandler v. Thompson, 3 Camp. 80; INCIDENTS OP EASEMENTS AND SERVITUDES. 267 Bnglisli doctrine of ancient light, gradually widened the openings and then placed in larger windows, it was decided that, since the rightful claim could not be restored to its original condition, the neighboring landowner might build in such a manner as entirely to shut out the light and air fi-om the windows.^ It is conceived that this distinction is sound; and that whether or not an excessive claim may result in extinguishing an easement or servitude is to be determined by the general principle of law that a right will not be lost or destroyed by its connection or association with a wrong, if the two things can be fairly and accurately separated. ^ § 196. Remedies for Obstructions or Injuries to Easements and Servitudes. — When the servient tenant does or permits anything which interferes with the enjoyment of an easement or servitude, its owner has one or more of three different remedies ; namely, abatement, an action at law for damages, and a proceeding in equity. When the use of the right is obstructed, as by a wall, or gate, or house, the party thereby injured may lawfully remove the obstacle, if he can do so without any breach of the peace. ^ And, when a public way or servitude is so interfered with, any citizen who is thereby inconvenienced may remove the obstruction. Such acts of removal are abatements of nui- sances. "And the reason why the law allows this private and summary method of doing one's self justice is because injuries of this kind, which obstruct or annoy sucli things as are of daily convenience and use, require an immediate remedy, and can not wait the slow progress of the ordinary forms of justice."* Or he whose right is thus interfered with may maintain an action at law — usually trespass on the case, or simply an action for damages under the codes — for each distinct act > Garritt v. Sharp, 3 Adol. & El, 325. right of way is established, the party ^ The principle appears, in the law entitled to it may assert the right at of personal property, in the rules appli- common law, and may, after notice cable to confusion of goods. 2 Blackst. and request to remove the obstructing Com. p. * 405. house, pull it down, although it is act- ' Sargent v. Hnbbard, 1 02 Mass. 380 ; ually inhabited ; and under such circum- Morgan v. Boyes, 65 Me. 124 ; Quintard stances a court of equity will graut leave V. Bishop, 29 Conn. 366; Joyce v. Con- to the party entitled to the way . to lin, 72 Wis. 607. pursue any remedies or to do any acts * Chase'sBlackst. p. 621. "Although he can lawfully take or do to abate the the court may have refused a mandatory obstruction." Jones, Ease. § 891, citing injunction for the removal of a house Lane v. Capsey (1891), 3 Ch. 411; which obstructed a right of way, if the Davies v. Williams, 16 Q. B. 546. 268 KINDS OP REAL PROPERTY. of injury to his easement or servitude. ^ When the plaintiff is in possession of land to which the right is appurtenant, he may have an action for any injury to such right. Thus, a tenant at will, or for years, a life tenant or an owner in fee simple may then maintain his action.^ A person not in posses- sion — z. reversioner or remainderman — has a right of action when the wrong done is of such a permanent character that his interest in the land is thereby injuriously affected.^ (o) Generally, when the owner of an easement or servitude has at law a complete and adequate remedy for an interruption of his right or an interference with it, equity will not entertain any application for relief.* But, when the court of law affords (a) In New York, the owner or possessor o£ what is claimed by another to be the sert'ient tenement of an easement or servitude may also liave an action for the determination of such claim. " Where a person has been, or he and those, whose estate he has, have been for one year in possession of real property, or of any undivided interest therein, claiming it in fee, or for life, or for a term of years not less than ten, he may maintain an action against any other person to compel the determination of any claim adverse to that of the plaintiff, which the defendant makes to any estate in that property, . . . including any claim in the nature of an easement therein, whether appurtenant to any other estate or lands or not." N. Y. Code Civ. Pro. § 1638. And the procedure in such an action is fully prescribed in the following sections of that code, §§ 1639-1650. 1 Osborne v. Butcher, 26 N. J. L. Hoffman, 79 Pa. St. 71. Actual loss to 308; Hancock «. McAvoy, 151 Pa. St. one's bushiess, occasioned by the nui- 460; Bowers v. Suffold Mfg. Co., 4 sauce, may be included; and when a Cush. (Mass.) 322; Child i^. Chappell, stream used for irrigation purposes is 9 N. Y. 246. diverted, the damages embrace the 2 Baxter v. Taylor, 4 Barn. & Ad. amount of injury accruing from con- 72; Hamilton u. Dennison, 56 Conn. sequent loss of crops. Shaferi'. Wilson, 359; Hastings v. Liverraore, 7 Gray 44 Md. 268, 280; Schile u. Brokhalms, (Mass.), 194; Noyes o. Hemphill, 58 80 N. Y. 614; Ellis c. Tone, 5S Cal. N. H. 536, 557 ; Com. Dig. Action on 289 ; Hanover Water Co. u. Ashland the Case for a Nuisance, B. Iron Co., 84 Pa. St. 279. See .ilso 3 Bell V. Midland E. Co., 10 C. B. White v. Dresser, 135 Mass. 150; Our- N. s. 287 ; Metropolitan Ass'n c Petch, sler v. B. & 0. R. Co., 60 Md. 358; 5 C. B. N. s. 504; Brown o. Boweu, 80 Demuth k. Amweg, 90 Pa. St. 181. N. Y. 519; Richardson u. Bigelow, 15 When no actual damages accrue, but the Gray (.Vlass.), 154; Tinsman v. Belvi- right is invaded by the defendant, the dere, etc. II. Co., 1 Dutch. (N. J.) 255. action at law lies, nevertheless, for The quantity of damages is to be meas- the obstruction; and nominal damases ured by the extent of the injury actually at least may be recovered. Collins u. done by the wrongful act. Gilmore c. St. Peters, 65 Vt. 618; Chase's Blaikst. DriscoU, 122 Mass. 199 ; Schile i'. Brok- p. 717 et seq. hahus, 80 N. Y. 614; Shafer v. Wilson, * Goodhart v. llyett, L. R. 25 Ch. 44 Md. 268,280. But it should never Div. 182; Patti.sou "c. Gilford, 18 Eq. include an estimated amount for future 259, 262; Jones u. Adams, 162 Mass. injury, for the defendant may stop the 224; Earley's Appeal, 121 Pa. St. 496. wrong-doing at any moment. Bare v. INCIDENTS OP EASEMENTS AND SERVITUDES. 269 no remedy, or only an inadequate one, then the court of equity will act, by way of injunction, to restrain irreparable mis- chief, or to suppress continued and oppressive litigation, or to prevent a multiplicity of suits. ^ Thus, relief will be intei-- posed by injunction to prevent the diversion of a natural stream and to restore it to its former condition when it has been wrongfully diverted; for a court of law could only give damages for the injury and could not otherwise stop or pre- vent it. Besides, if the party aggrieved must look to law alone for his redress, he must continue to bring successive actions for damages, and these are obviated by the injunction granted by equity.^ So, for the continuous pollution of a natural stream,^ or the interference with street rights by a permanent elevated railroad or other structure,* 'and generally for any lasting interruption or interference, equity will grant relief by means of an injunction.^ The injunction so issued is merely prohibitory, when its only object is to put a stop to the unauthorized and wrongful acts ; and it is mandatory when it aims to compel the removal of obstructions and the con- sequent restoration of the easement or servitude to its proper condition.^ That court also may, and frequently does, in the one proceeding, award damages in compensation for injuries already sustained because of past obstructions or interferences.^ 1 2 Story, Eq. Jur. §§ 925, 926 ; ia entered, the injunction does not be- Carliale v. Cooper, 6 C. E. Green (N. J.), come operative. Tliis has become the 576, 591 ; Coe v. Winnipiseogee Mfg. favorite and ordinary method of suing, Co., 37 N. H. 254 ; Webber r. Gage, 39 for the ultimate purpose of simply ob- N. H. 182. taining damages, in the elevated rail- 2 Corning v. Troy I. & N. Factory, road cases and similar injuries. See 40N. y. 191. also Muhlker ,). N. Y. &H. R. Co., 173 8 Harris v. Mackintosh, 133 Mass. N. Y. 549 ; Robinson ». N. Y, El. R. 228; Lyon v. McLaughlin, 32 Vt. 423, Co., 175 N. Y. 219; Dolan v. N. Y. & 425. H. R. Co., 175 N. Y. 367 ; N. Y. El. R. * Story V. N. Y. El. R. Co., 90 N. Y. Co. v. Fifth Nat. Bk., 135 U. S. 432. 122 ; Thompson v. Man. R. Co., 130 ^ Proprietors of Mills v. Braintree N. Y. 360 ; Pegram v. N. Y. El. R. Co., Water Supply Co., 149 Mass. 478 ; 147 N. Y. 135 ; Koehle v. N. Y. EI. R. Co., Brooks v. Cedar Brook Imp. Co., 82 159N.Y.218; Pa. R. Co. «. Duncan, 111 Me. 17; Schmitzins v. Bailey, 48 N.J. Pa. St. 352. These elevaited railroad Eq. 409; Pettigrew v. Evansville, 25 cases are a few of the many in which in- Wis. 223 ; Hicks u. Silliman, 93 111. 255. junctions have been obtained against the ^ Cases cited in last four preceding defendants, to take effect in case dam- notes; Boland v. St. John's School, 163 ages, also adjudged, were not duly paid Mass. 229 ; Nash ti. New Eng. Ins. Co., to the plaintiiffa. In such cases, the dam' 127 Mass. 91, 97. ages being paid or the matters otherwise ' Ibid. ; Pegram v. N. Y. El. R. Co., adjusted by the parties after judgment 147 N. Y. 135, 144. CHAPTER XII. SPECIAL FEATURES OP IMPORTANT KINDS OF EASEMENTS AND SERVITUDES. § 197. Specific easements and ser- vitudes. Rights of Way. § 198. Private ways. § 199. Highways. Rights to Light, Air, and Prospect. § 200. Special features to be ex- amined. § 201. Express grant of such rights. § 202. Implied grant of such rights. § 203. Ancient lights. § 204, Prescriptive right to air. § 205. Prospect or view. Rights to Lateral and Subjacent Support. § 206. Forms of these rights to be examined. § 207. Lateral support of land or soil. § 208. Lateral support of buildings. § 209. Subjacent support of land or soil. § 210. Subjacent support of build- ings. Party-wall Rights and Similar Ease- ments and Servitudes. § 211. Different kinds of wall rights. § 212. a. Independent wall. § 213. 6. Common wall. § 214. c. Right to wall support. § 215. d. Party wall — Definition — Nature. § 216. Creation of party-wall rights. § 217. Use of party walls. § 218. Repairing, removing, and re- building party walls. § 219. Division fences. Water Rights. § 220. Kinds of rights in water. § 221. a. Natural water rights. (a) Well-defined streams — Rights of access. § 222. Ownership and use of nat- ural streams. § 223. (b) Rights as to surface waters. § 224. (c) Rights as to percolating and subterranean waters. § 225. b. Artificial water rights. § 197. Specific Easements and Servitudes. — The foregoing discussion completes a general summary of the law of ease- ments and servitudes. It has dealt with their essential natures and forms, the ways in which they may be acquired, and the chief characteristics of the forms of such rights which may be gained by the different methods respectively; the IMPORTANT KINDS OP EASEMENTS AND SERVITUDES. 271 incident's of them in general as incorporeal hereditaments; how they may be lost, destroyed, or suspended, and the differ- ent remedies available to their owners for injuries to them and for the preservation of their rightful use and enjoyment. There yet remains an examination, one by one, of some of the most important specific kinds of easements and servitudes. The forms which will be thus specially considered, in the order here named, are rights of way; rights to light, air, and prospect; rights to lateral and subjacent support of soil and buildings; party-wall rights and similar privileges, and water rights. Rights of Way. § 198. Private 'WayB. — Ways, as private rights, are the most numerous and ordinary instances of common-law ease- ments. They include all cases in which an individual or class of individuals has a fixed right of passage, by an estab- lished route, over land of the servient owner to and from land of the dominant owner. They may be brought into existence by any of the four methods above discussed by which ease- ments may be acquired; namely, by express grant, by reserva- tion in a deed of the servient tenement, by implied grant, and by prescription. They have all the characteristics and inci- dents which apply to easements in general ; they may be lost, suspended, or destroyed by any of the methods above outlined, and the extent of the right to use them and the manner in whicli they may be enjoyed, altered, repaired, and improved have been already fully examined in the foregoing discussion of the general law of easements. ^ Private easements of way, therefore, are to be regarded as the typical form of such in- corporeal right, and the principles relating to them embrace practically the entire body of the law of easements. A right of way in gross, which, technically speaking, is not an ease- ment at all but a mere servitude, has been heretofore shown to be unassignable and uninheritable in most jurisdictions ;2 while in a few of the United States, such as Massachusetts and Wisconsin, it may be readily passed from hand to hand 1 See discussion, supra, as to ques- 111.455; Pearson u. Hartman, 100 Pa. St. tions relating to their characteristics 84; Hoosier Stone Co. v. Malott, 130 and principles. Ind. 21, 24; Post v. Pearsall, 22 Wend. 2 Ackroydr. Smith, 10 C. B. 104; (N. Y.) 425,432; §§ 126, \21, supra. Louisville & N. B. Co. v. Eoelle, 104 272 KINDS OP EEAL PROPERTY. by the same methods by which other species of real property are transferred.^ With this qualification, private rights of way, whether appurtenant or in gross, are all governed by substantially the same legal rules and principles. § 199. Highways. — Public ways, or highways, are in sub- stance easements in gross existing in favor of each member of the public. Their creation and chief characteristics and how they may be lost or destroyed have been explained in the last two preceding chapters, as f9,r as the limits of this work will permit. 2 When the state or municipality acquires not only the rights of way but also the land itself over which the roads or streets are made, as is the case, for example, with many of the streets of New York City,^ the ownership by the public is of corporeal property ; and the abutting owners then have special forms of servitudes over the highways in front of their lots. It has been already explained that compensation must be made to such abutters, when such rights are directly taken away or impaired.* In the cases, which are the most usual, in which the ownership of the land remains in the original proprietors or their successors in interest, and the public acquires only servitudes over it — by public prescription, dedication, or operation of law, as above explained^ — the soil may be used by its owners in any manner that is consistent with full and proper enjoyment of the way by the public. Subject to this restriction, they mny take minerals, trees or crops from it, cultivate it, or use it for any reasonable purpose in connec- tion with their adjacent lands. ^ The public servitude has its inception and limitations in the reasonable public require- ments, according to the nature of each case. And, when the uses thus called for are abandoned or otherwise terminated, the land remains for its original owners or their successors freed from the burdens which the public enjoyment had imposed." 1 Bowen v. Conner, 6 Cush. (Mass.) 6 §§ jeg, 169, 172-174, 178-180, 132; Hankey v. Clark, 110 Mass. 262; supra. PouU V. Mockley, 33 Wis. 482; § 127, « Higgins u Reynolds, 31 N. Y. 1.51 ; supra, and cases cited. Lane v. Lamke, 53 N. Y. App. Div. 39.5 ; 2 §§ 178-180, 189, 190, supra. Stackpole v. Healy, 16 Mass. 33 ; People 8 Kane v. N. Y. El. R. Co., 125 N. Y. v. Foss, 80 Mich. 559 ; Town of Suffield 165, 182; Fobes v. Rome, W. & 0. R. v. Hathaway, 44 Conn. 521 ; 1 Lewis, Co., 121 N. Y. 505; Reining i: N.Y. L. Em. Dom. § 132 et. .teq. E. & W. R. Co., 128 N. Y. 157. ' Harris v. Elliott, 10 Pet. (U. S.) 4 § 179, supra. - 25; Bissell v. N. Y. C. R. Co., 23 N. Y. IMPORTANT KINDS OP EASEMENTS AND SERVITUDES. 273 Bights to Light, Air, and Prospect. § 200. Special Features to be examined. — When an ease- ment in the continuous and uninterrupted flow of light, or air, or both, or in an unobstructed prospect, view, or outlook over another's land, is once shown to exist, it is a right or privi- lege wliich is subject to the same rules of law as those which govern other easements. The special discussion of these incorporeal hereditaments, therefore, relates to the particular methods hy which they may be acquired and held. These will be examined in their order, first with reference to light and air and then with reference to prospect or view. § 201. Express Grant or Reservation of Eight to Light and Air. — By express contract, either in the form of a direct grant, or by a reservation in a deed of the servient land, or by means of an explicit covenant, an easement in the enjoy- ment of light, or air, or both, may be brought into existence; and the extent and nature of the right will depend, of course, upon the proper construction of the words used in the instru- ment. ^ Such express stipulations ordinarily run with the land of both parties to the contract and bind all subsequent purchasers and encumbrances who take with notice of the easements.^ § 202. Implied Grant of Right to Light and Air. — It is a settled doctrine of the English courts that, upon the severance of an entire tract or parcel of land and a conveyance of one of the pieces, an easement in the form of a right to enjoy light and air over the portion which the grantor retains may be impliedly brought into existence.^ But those courts do not go to the extent of implying any reservation of light or air in favor of the grantor.* The principle upon which the ease- ments can be implied against the grantor — that he will not 61 ; Thomsen v. McCormicli, 136 111. 73; Lahr v. Met. El. R. Co., 104 N. Y. 135 ; Beuhain v. Potter, 52 Conn. 248 ; 287, 292. Healey v. Babbitt, 14 B. I. 533 ; Black- ^ Leech v. Schweder, L. E. 9 Ch. man v. Reilly, 138 N. Y. 318. App. 463,472; Swansborough v. Coven- 1 Dalton V. Angus, L. R. 6 App. Cas. try, 9 Bing. 305 ; Palmer v. Fletcher, 1 740; Keating «. Springer, 146 111.481; Lev. 122; Rosewell v. Pryor, 6 Mod. Lalir V. Met. El. R. Co., 104 N. Y. 116; Pollard v. Gare (1901), 1 Ch. 287; Ladd o. Boston, 151 Mass. 585; 834. "Weigmann v. Jones, 163 Pa. St. 330; * Enssell u. Watts, L. R. 10 App. Hagerty o. Lee, 45 N. J. Eq. 1, 15; Cas. 590,596; Pollard v. Gare (1901), Morrison v. Marquardt, 24 Iowa, 35. 1 Ch. 834 ; Tenant v. Goldwin, 2 Ld. ^ Hogan V. Barry, 143 Mass. 538; Raym. 1089, 1093. See Jones, Ease. "White's Bank v. Nichols, 64 N. Y. 65, §§ 563, 564. 18 274 KINDS OF REAL PROPERTY. be permitted to do anything in derogation of his own grant — is manifestly inapplicable as against the grantee under similar circumstances. It is held in England, however, that the principle does apply to simultaneous grants of both parcels from the same grantor to two different grantees ; and that, in such a case, he who purchases the house has by implication an easement in light and air for the windows which overlook the land of the other vendee. ^ In a few of the United States, such as New Jersey, Mary- land, Delaware, and Louisiana, the English doctrine in this respect is followed, with the qualification usually added that it must be shown that the easement contended for as the result of the severance of the two parcels of land is reasonably necessary to the enjoyment of the portion conveyed.^ And in Pennsylvania, Connecticut, Georgia, and possibly a few other states, such a right may be brought into existence in this manner when it is a positive, actual necessity to the reason- able enjoyment of the portion granted, but not when such an absolute necessity does not exist. ^ But, in the great majority of the states of this country, it is held that the conditions, under which property is rapidly improving and being trans- ferred from hand to hand, are such that no easement in light or air should be implied when a plot or tract of land is divided and a portion of it sold,* or when different parts of 1 Allen u. Taylor, L. R. 16 Ch. Div. v. Tiernan, 15 La. Ann. 316. The New 355. It is said in a few English cases Jersey courts go farther than those of that, while the principles above stated England, in this respect, and permit an are there fully recognized so far as the easement in light and air to be implied right to light is concerned, there are no as a reservation in favor of the grantor ; positive decisions applying them to the but they do not allow it to be gained by right to air also, although the dicta prescription. Greer v. Van Meter, 54 speak of the same rules as applicable N. J. Eq. 270; Sutphen c. Thcrkelson, to both. And it is at least safe to say 38 N. J. Eq. 318; Hayden ». Dutcher, that the courts of England will not 31 N. J. Eq. 217. restrain a mere obstruction to air unless ' Rennyson's App., 94 Pa. St. 147; the complainant can show that he has Robinson v. Clapp, 65 Conn. 365 ; been enjoying it through some definite Turner r. Thompson, 58 Ga. 268 ; Mor- chaunel or aperture, such as a window risen v. Marquardt, 24 Iowa, 35 ; White or chimney flue or other similar open- v. Bradley, 66 Me. 254 ; Powell v. Sims, ing. Aldin v. Latimer Clark (1894), 6 W. Va. 1. 2 Ch. 437 ; Bryant v. Lefever, L. R. * Parker v. Eoote, 19 Wend. (N. Y.) 4 C. P. Div. 172; Harris o. DePinna, 309, 315; Myers r. Gemmel, 10 B.arb. L. R. 33 Ch. Div. 238, 250. (N. Y.) 537 ; Knabe v. Levelle, 23 N. Y. 2 Sutphenu. Thcrkelson, 38 N.J. Eq. Supp. 818; Doyle v Lord, 64 N. Y. 318; Greer v. Van Meter, 54 N. J. Eq. 432, 439; Palmer ?.-. Wetmore, 2 Sand. 270; Janea !). Jenkins, 34 Md. 1; Claw- (N. Y.) 316; Wilmurt !■. McGrane, 16 son V. Primrose, 4 Del. Ch. 643; Cleria N. Y. App. Div. 412, 418; Shipman v. IMPORTANT KINDS OP EASEMENTS AND SERVITUDES. 275 it are conveyed at the same time to different purchasers.^ The rule is different here, however, when a portion of the premises, such as one story of a house or a building adjoining a vacant lot, is leased for a term of years and the residue is retained by the landlord or by those who subsequently succeed to his rights and interests. It has been uniformly held that the tenant for years can then restrain the owner of the remain- ing portions of the property from obstructing the light and air which are reasonably essential to the use and enjoyment of the demised property in the manner contemplated by the parties to the lease.^ § 203. Ancient Lights. — By the prescriptive act of Eng- land, it is provided that, "when the access and use of light to and for any dwelling-house, workshop or other building shall have been actually enjoyed therewith for the full period of twenty years without interruption, the right thereto shall be deemed absolute and indefeasible, any local usage or custom to the contrary notwithstanding, unless it shall appear that the same was enjoyed by some consent or agreement expressly made or given for that purpose by deed or writing. " ^ The substantial effect of that statute is to put into the form of written law the doctrine of " ancient lights, " which has always been recognized in that country and which is the rule that the right to the unobstructed flovF of light into windows or other openings may be acquired by prescription, in favor of a house, over the adjoining land of another owner.* This English doctrine has been repudiated in all of the United States except Delaware.^ And there are two reasons Beers, 2 Abb. N. C. (N. T.) 435 ; Christ Co., 41 Ohio St. 662 ; Lapere v. Luckey, Church V. Lavezzolo, 156 Mass. 89; 23 Kan. 534. See Keating u. Springer, Randall v. Sanderson, 111 Mass. 114; 146 111. 481; Keiper v. Klein, 51 ind. Keating v. Springer, 146 111. 481; 316; Haynes w. King (1893), 3 Oh. 439. Keiper o. Klein, 51 Ind. 316 ; Mullen v. " 2 & 3 Wm. IV. ch. 71. Strieker, 19 Ohio St. 135; White c. * Chastey u. Ackland (1895), 2 Ch. Bradley, 66 Me. 254. 389 ; Van Joel v. Hornvey (1895), 2 Ch. 1 Collier u. Pierce, 7 Gray (Mass.), 774; Lord Batterson v. Comm'rs, etc. 18; Keats v. Hugo, 115 Mass. 204; of London (1895), 2 Ch. 708; Tapling Turner u. Thompson, 58 Ga. 268. In v. Jones, 11 H. L. Cas. 290 ; Stokes v. some states, this matter is regulated by Singers, 8 El. & Bl. 31; Ayusley o. statute. 1 Stim. Amer. Stat. L. § 2254; Glover, 18 Eq. 544. 4 Shars. & B. Lead. Cas. R. P. 246. ^ Parker v. Foote, 19 Wend. (N. Y.) 2 Doyle w. Lord, 64 N.Y. 432; O'Neill 309; Myers u. Gemmel, 10 Barb. (N. Y.) V. Breese, 3 N. Y. Misc. 219; Case o. 537 ; Banks r. Amer. Tract Soc, 4 Sand. Minot, 158 Mass. 577, 584; Brande v. Ch. (N. Y.) 438, 467 ; Levy v. Brothers, Grace, 154 Mass. 210; Ware v. Chew. 4 N. Y. Misc. 48; Christ Church v. 43 N. J. Eq. 493; Milliard «. Gal. Coal Lavezzolo, 156 Mass. 89; Hayden v. 276 KINDS OF EEAL PROPERTY. laid down by our courts, either one of which is amply suffi- cient ground for their refusal to follow the lead of the English tribunals in this matter. One is that it is incompatible with the condition and needs of our country, which is undergoing such rapid changes in the progress of its growth and develop- ment. ^ And the other is that, the English doctrine of ancient lights is illogical and inconsistent with the principles upon which other p]-escriptive rights are founded, because there is no adverse character in the enjoyment of light through the windows of one's house over the land of his neighbor.^ "The actual enjoyment of the air and light by the owner of the house is on his own land only. He makes no tangible or visible use of the adjoining lands, nor, indeed, any use of them which can be made the subject of an action by their owner, or which in any way interferes with the latter's enjoyment with the light and air upon his own lands, or with any use of those lands in their existing condition."^ The outcome of the American theory and practice upon this subject is that owners of land, overlooking which win- dows have been built by others, are not required, as is the proprietor of land in England under similar conditions, to shut out the light by erections upon their own properties before there has been a twenty years' enjoyment of it through the windows, or take the risk of being deprived, at the end of the prescriptive period, of much of the utility and value of their vacant lots. It also follows, as a logical and generally recognized consequence in this country, that, in the absence of restrictive legislation, a landowner may at any time, by fences, houses, or other erections upon his own premises, darken his neighbor's house or other structure, no matter how long it has been enjoying the unobstructed light. And, in most cases, it has been held that the courts will not inter- Datcher, 31 N. J. Eq. 217 ; Eenny- Hulley v. Security Trust Co., 5 Del. son's Appeal, 94 Pa. St. 147 ; Keating Ch. .578. V. Springer, 146 111. 481; Mullen v. l Parker w. Foote, 19 Wend. (N. Y) Strieker, 19 Ohio St. 13,5; White v. 309; Doyle v. Lord, 64 N. Y. 432; Bradley, 66 Me. 254 ; Hubbard v. Town, Sutphen v. Therkelson, 38 N. J. Eq. 318, 33 Vt. 295 ; Tunstall v. Christian, 80 323 ; Pierre v. Fernald, 26 Me. 436. Va. 1. In Delaware it has been de- ^ Keats u. Hugo, 115 Mass. 204; clared that the doctrine of "ancient Parker y. Foote, 19 Wend. (N. Y.), 309; lights" was adopted as a part of the Hayden v. Dutcher, 31 N. J. Eq 217. common law. See Clawson v. Prim- ^ Keats v. Hugo, 115 Mass. 204, rose, 4 Del. Ch. 643, which is discussed 215. and questioned but not overruled by IMPORTANT KINDS OF EASEMENTS AND SERVITUDES. 277 fere with the exercise of this legal right, even though the motive in making the erection be purely malicious.^ § 204. Prescriptive Right to Air. — The uniform rule in the United States, with the exception of Delaware, is that a pre- scriptive right to the flow of air, whether generally or in a defined channel or flue, can no more be acquired than can such an easement in a continuous flow of light.- The reasons are the same as to both light and air; and the two are generally treated together, as governed by precisely the same principles.^ The English courts, however, while adhering broadly to their doctrine of "ancient lights," and now being held to it by the statute above quoted, refuse to sustain prescriptive easements in the access and flow of air, except in cases where its enjoy- ment has been continued for twenty years or more through a definite flue or channel. They have sustained such an ease- ment, for example, in the right of plaintiff to ventilate a cellar through a hole bored through the rock so as to connect with a well in defendant's land;* but have denied that a pre- scriptive right could be acquired to have the air flow generally into one's back yard,^ or over neighboring land so as to pre- vent a chimney from smoking,^ or for the purpose of running a windmill.' § 205. Prospect or View. — Although they differ so radi- cally in regard to the methods of creating easements in light and air, yet the courts on both sides of the Atlantic agree that the only way in which can be acquired merely the right to an unobstructed view or prospect, — being as it is only a matter of pleasure or delight as distinguished from the enjoy- ment of light, or air, or both, which are so often necessaries, 1 Tinker u. Forbes, 136 111. 221; 309 ;TuiistallD. Christian, 80 Va. 1 ; Sut- Levy V. Brothers, 4 N. T. Misc. 48 ; Letts phen v. Therkelson, 38 N. J. Eq. 318. V. Kessler, 7 Ohio Cir. Ct. 108. But ^ Parker u. Foote, 19 Wend. (N. Y.) it has been held, in a. few cases, that 309; Keats u. Hugo, 115 Mass. 204, where a high board fence or other 21.5. obstruction is erected solely from ma- * Bass v. Gregory, L. R 25, Q. B. licious motives, and with no purpose Div. 481 ; Dent v. Auction Mart Co., other than to injure one's neighbor, an 2 Eq. 238. injunction against it wUl be granted by ^ Chastey u. Ackland (1895), 2 Ch. a court of equity. Kirkwood v. Fine- 389; Harris v. DePinna, L. R. 33 Ch. gan, 95 Mich. 543; Peck v. Roe, 110 Div. 238. Mich. 52; Flaherty v. Moran, 81 Mich. ^ Bryant v. Lefever, L. R. 4 C. P. 52; Kessler I). Letts, 7 Ohio Cir. Ct. 108. Div. 172, 179, 181. 2 Keats i;. Hugo, 115 Mass, 204; • Webb u. Bird, 10 C. B. N. S. 268, Christ Church v. Lavezzolo, 156 Mass. 13 0. B. N. ». 841. 89; Parker v. Foote, 19 Wend. (N. Y.) 278 KINDS OF REAL PROPERTT. — is by express grant or covenant.-' It can not be gained by implied grant or prescription. It follows that, in the absence of such express contract to the contrary, one may build upon his own land, so as to obstruct his neighbor's view of a high- way, the sea, or a landscape ; or so as to partially shut off his signs or wares from public view.^ But when an express cove- nant prohibiting such an interference has been entered into in the deed between the vendor and vendee of a parcel of land, it will be enforced by injunction in equity in favor of him for whose benefit it was made, even though he was not a party to the contract.^ Eights to Lateral and Subjacent Support of Soil and Buildings. § 206. Forms of these Rights to be examined. — Those servi- tudes which exist by nature, and therefore do not require any act or convention of the parties for their creation, have been heretofore frequently illustrated by rights to the support of land in its natural condition and to the flow of water in its customary channels. Similar privileges are frequently created by agreement or conduct of the parties, and then usually come into being as common-law easements. Such are rights to lateral or subjacent support of buildings or walls, and to the constant or peculiar flow of artificial streams. These matters are also regulated, to quite an extent, by statutes; and thus servitudes of this character are brought into existence by operation of law. The rights, immunities, and duties pecu- liar to the support of lands and buildings are the first group of such easements and servitudes to be examined. And they will be discussed in the following order, namely: lateral sup- port of land or soil, lateral support of buildings (exclusive of special questions of wall rights which will be the subject of a subsequent section), subjacent support of land or soil, sub- jacent support of buildings. § 207. Lateral Support of Land or Soil. — Upon the prin- ciple sic utere tuo ut alienum non Icedas, there exists by nature 1 Aldred'sCase, 9Coke, 57 b; Atty.- Bowden v. Lewis, 13 R. I. 189; Tud. Gen. V. Doughty, 2 Ves. Sr. 453 ; Dal- Lead. Cas. R. P. 123. ton u. Angus, L. R. 6 App. Cas. 740, ^ Ibid. ; Butt v. Imperial Gas Co., 824; Parker u. 'Foote, 19 Wend. (N. Y.) L. R. 2 Ch. 158; Smith u. Owen, 35 309 ; Harwood v. Tompkins, 24 N. J. L. N. J. Eq. 317. 425 ; Lyon v. McDonald, 78 Tex. 71 ; 8 Qibert v. Peteler, 38 N. Y. 165. IMPORTANT KINDS OP EASEMENTS AND SERVITUDES. 279 the right of every landowner to have his soil supported lat- erally, in its natural state, by the soil or structure of the neighboring proprietor.^ When, therefore, one makes an excavation upon his own land, in such a manner that the sand, clay, or other material of the adjoining land will fall into the pit or be disturbed if not artiiicially supported, and there is no special contract or statute authorizing him to so dig, he must shore up or otherwise support the other's soil, so as to retain it in its natural condition ; or he will be liable in damages for the resulting injury.^ And this is true regard- less of the location, contour, or constituent materials of the neighboring land, in so far as these exist in a state of nature. Thus, the lower owner upon a hillside must support the soil of the upper owner, to as great an extent as is necessary to retain it in its natural and undisturbed condition. And, whether the properties be on a hill or a plain, the amount of such support required will depend, of course, upon the quality of the soil, — grading from nothing or almost nothing in rocky sections to a heavy burden in places where the soil is sandy or from any other cause readily movable. This right to the lateral support of natural soil is absolute, unless restricted by contract or statute ; and when it is interfered with, all that its owner needs to prove, in order to establish a cause of action, is that he has suffered damage because of such disturbance. He need not show that the excavation which caused his soil to cave in was done in any careless, negligent, or unskilful manner. ^ There is a conflict of authority as to whether or not this right to lateral support of soil exists against a city, town, or other municipality, in favor of land abutting upon a public street or highway. While in some of the United States it is held to exist against such public entities as well as against private owners,* yet in England, and probably by the weight 1 Humphries v. Brogden, 12 Q. B. ^ Transportation Company v, Chi- 739, 743 ; Lasala v. Holbrook, 4 I'aige cago, 99 U. S. 635 ; Gilmore v. Driscoll, (N. Y.), 169; Hay v. Cohoes, 2 N. Y. 122 Mass. 199; McGnire .., Grant, 25 159; Radcliff v. Mayor, 4 N. Y. 195; N. J. L. 356; Green v. Berge, 105 Cal. McGettigan o. Potts, 149 Pa. St. 155; 52; Richardson v. Vermont Cent. R. Schultz V. Byers, 53 N. J. L. 442; Gil- Co., 25 Vt, 465. more w. Driscoll, 122 Mass. 199; Moody * Dyer v. St. Panl, 27 Minn. 457; V. McClelland, 39 Ala. 45; Moellering Burr v. Leicester, 121 Mass. 241 ; Cabot V. Evans, 121 Ind. 195; Stearns v. u. Kingman, 166 Mass. 403 ; Stearns ti. Richmond, 88 Va. 992. Richmond, 8S Va. 992 ; Keating v. Ciu- 2 Ibid. ; Article in 1 Amer. Law cinnati, 38 Ohio St. 141. Rev. 1. 280 KINDS OP EEAL PEOPERTT. of authority in this country, the principle is maintained that a municipality, acting under proper legislative authority, is not liable to a landowner for the falling away of his soil caused solely by the grading or alteration of a street in a proper and careful manner, i § 208. Lateral Support of Buildings. — The natural right to lateral support does not extend to any buildings or artificial structures which may be erected on the land. And, there- fore, if one place his house upon the verge of his lot, he does not thereby have the right to insist that it also shall have the support of his neighbor's soil.^ If in digging upon his own property the adjacent proprietor do nothing that would inter- fere with the land in question in its natural state, i. e., if he excavate so that such land would remain intact if it were not loaded with the additional weight of the building, then any injury thus occasioned is ordinarily damnum absque injuria.^ The process of excavating must, of course, be carried on with sufficient care and skill so as not to injure the adjoining structure by the manner in which it is done, even though the mere existence of the hole thus dug would have occasioned no damage to the neighboring land in its natural state.* But this requirement emerges, not from the mere right of lateral support, but from the fact that negligent, unskilful, or im- proper digging or blasting may in itself result in a nuisance or a trespass upon the adjacent land. 1 Boulton B. Crowther, 2 B. & C. TJ. S. 635 ; Dorrity v. Rapp, 72 ]^. Y. 703; Transportation Company v. Clii- 307; White u. Nassau Trust Co., 16S cago, 99 U. S. 635 ; Radcliff v. Mayor, N. Y. 149 ; Finegan v. Eckerson, 32 N. Y. 4 N. Y. 195; Folmsbee v. City of App. Div. 233, 235; Schultz v. Byers, Amsterdam, U2 N. Y. 118; White c 53 N. J. L. 442; McGettigan v. Potts, Nassau Trust Co., 168 N. Y. 149 ; Cal- 149 Pa. St. 155 ; Gilmore v. Driscoll, 122 lender v. Marsh, 1 Pick. (Mass.) 418; Mass 199; Gildersleeve v. Hammond, Pellowes V. New Haven, 44 Conn. 240; 109 Mich. 408 ; Quincy v. Jones, 76 111. O'Connori). Pittsburgh, 18 Pa. St. 187 ; 231. Quincy K. Jones, 76 111.231; Aurora v. * Thurston v. Hancock, 12 Mass. Pox, 78 Ind. 1; § 179, supra. In 220; Gilmore v. Driscoll, 122 Mass. some of the United States there are 199; Lasala v. Holbrook, 4 Paiue statutes which require cities and other (N. Y.), 169; Austin v. H. E. R. Co., municipalities to make compensation for 25 N. Y. 334, 346 ; Smith r. Thackerah, injuries caused to abutting land by the 1 C. P. 564 ; Backhouse v. Bouomi, 9 grading, altering, or improving of H. L. Cas. 503. streets and highways. See O'Brien !>. * Austin v. H. R. R. Co., 25 N. Y. Philadelphia, 150 Pa. St. 589; Elgin w. 334, 346; Radcliff v. Mayor, 4 N. Y. Eaton, 83 111. 535. 195 ; McGuire v. Grant, 25 N, J. L. 356 ; 2 Angus V. IMton, L. R. 6 App. Gilmore u. Driscoll, 122 Mass. 199,201; Cas. 740 ; Partridge «. Scott, 3 M. & W. Tunstall v. Christian, 80 Va. 1 ; Ch'arless 220 ; Wyatt v. Harrison, 3 Barn. & Ad. v. Rankin, 22 Mo. 566 ; Wiun v. Abeles, 871 ; Transportation Co. v. Chicago, 99 35 Kan. 85. IMPORTANT KINDS OF EASEMENTS AND SERVITUDES. 281 It is now held by many courts, also, that the exercise of proper care and diligence, on the part of him who intends to dig in such a manner that a building on the land of another may be thereby damaged, requires him to notify the owner of such building, or to see to it that he has knowledge of the proposed excavation. ^ "It is more than a neighborly act," says a New Jersey court, "to give such notice, because it involves the right of one man to assert his right, regardless of the injury he may cause his neighbor without such warning."^ But some leading tribunals have denied that, in the absence of statutory requirement, there exists any such duty on the part of a careful excavator.^ And, as already indicated, it is nowhere required that formal notice be given to a neighbor- ing owner who already has knowledge or reasonable notice of the intended improvement.* A right to the lateral support of a house or other artificial structure may be acquired, as an easement, by any of the forms of grant.^ Tlius, it may be directly created and conveyed by deed, or reserved in the conveyance of the contiguous land. And when the owner of two houses so built together as to require mutual support conveys one of them, or otherwise separates the ownerships of them, the right of each house to continue to be supported by the otjier may readily arise by implied grant.^ It is thoroughly settled law in England that a properly con- structed ancient building, i. e., a building which has stood in the same position for twenty years or more, may acquire by pre- scription the right to continuous support by the land of the adja- cent proprietor in its natural condition, or if that be removed, an adequate lateral support supplied by such adjacent owner.' 1 Masaey v. Goyder, 4 Carr. & P. Dorrity v. Rapp, 72 N. Y. 307 ; Gilder- 161 ; Doddw. Holme, 1 Adol. & El. 493; sleeve i>. Hammond, 109 Mich. 408; Schultz V. Byers, 53 N. J. L. 442 ; Lar- Leavenworth Lodge v. Byers, S4 Kan. son V. Met. St. R. Co., 110 Mo. 234; 323; Moody y. McClelland, 39 Ala. 45. Shafer v. Wilson, 44 Md. 268 ; Clemens ^ North Eastern R. Co. v. Elliott, ).. Speed, 93 Ky. 284 ; First Natr Bk. v. 1 J. & H. 145 ; Siddons ■■. Short, Villegra, 92 Cal. 96. ' L. R. 2 C. P. Div. 572 ; Richards 2 Schultz o. Byer.s, 53 N. J. L. 442, v. Rose, 9 Exch. 218; Lampman v. 446. Milks, 21 N. Y. 505, 514; Tunstall .;. 8 See Dorritv v. Rapp, 72 N. Y. 307 ; Christian, 80 Va. 1. White !'. Nassau Trust Co., 168 N. Y. " Richards u. Rose, 9 Exch. 218; 149; Gildersleeve v. Hammond, 109 Lemaitre v. Davis, L. R 19 Ch. Div. Mich. 408 ; Obert w. Dunn 140 Mo. 476. 281 ; Fox '■. Clarke, 9 Q. B. 565. See * Dodd V. Holme, 1 Adol. & El. 493 ; Snow v. Pulitzer, 142 N. Y. 263. Schultz V. Byers, 53 N. J. L. 442; 7 Angus w. Dalton, 6 App. Gas. 740; 282 KINDS OF REAL PROPERTY. It is also held in that country that contiguous buildings belong- ing to different owners haye by prescription a right of support from each other, after twenty years of uninterrupted, adverse enjoyment.^ These rules exist there in analogy to the English doctrine of " ancient lights." There are some strong dicta in this country also, and a few early .decisions, which uphold the principle that rights of lateral support may be gained by prescription.^ Thus, in the early New York case of Lasala v. Holbrook,^ Chancellor Wal- worth said : " There is another class of cases, however, where the owner of a building on the adjacent lot is entitled to full protection against the consequences of any new excavation or alteration of the premises intended to be improved, by which he may be in any way prejudiced. These are ancient build- ings, or those which have been erected upon ancient founda- tions, and which, by prescription, are entitled to the special privilege of being exempted from the consequences of the spirit of reform operating upon the owners of the adjacent lots, and also those which have been granted in their present situation by the owners of such adjacent lots, or by those under whom they have derived their title." But, in harmony with tlie gen- eral American doctrine that a prescriptive title must rest upon an adverse user of such a nature as to give a cause of action in favor of the person against whom the acts of enjoyment are performed, in several important and carefully considered cases of more recent date the English rule upon this matter has been repudiated ; and it has been held that, when there is no actual adverse use or occupancy of any part of the land of the contig- uous owner, the right to lateral support of a building or other artificial erection can not be acquired by prescription.'* And it is safe to say that this is now the generally accepted rule on this side of the Atlantic.^ Dodd ?;. Holme, 1 Adol. & El. 493, 505 ; Watts (Pa.), 460; Aston v. Nolan, 63 Solomon v. Vintner's Co., 4 H. & N. Cal. 269 ; City of Quincy v. Jones, 76 585; Backhouse u. Bonomi, 9 H. L. 111.231. Cas, 503. 3 4 Pai^e, 169, 173. 1 Lcmaitre v. Davis, L. R. 19 Ch. * Gilmore v. Driscoll, 122 Mass. 199, Div. 281; Solomon c. Vintner's Co., 207; Tuustall v. Christian, 80 Va. 1; 4 H. & N. 585; Brown v. Windsor, Haudhan y. McManus, 42 Mo. App. 551, 1 Cr. & J. 20. See Adams t). Marsliall, affirmed in 100 Mo. 124; Sullivan v. 138 Mass. 228. Zeiner, 98 Cal. 346; Clemens <•. Speed, 2 Lasalaw. Holbrook, 4Pai!!;e(N. Y.), 93 Ky. 284; Richart v. Scott, 7 Watts 169, 173; Stimmel v. Brown, 7 Houst. (Pa,), 460; Mitchell u. Mayor, 49 Ga. 19. (Del.) 219; Stevenson v. Wallace, 27 ' In Gilmore v. Driscoll, 122 Mass. Gratt. (Va.) 77; Richart v. Scott, 7 199, 207, Chief Justice Gray said: "It IMPORTANT KINDS OF EASEMENTS AND SERVITUDES. 283 In some of tlio states of this country, positive statutes regu- late such rights and burdens as are above discussed in this section, especially in regard to houses and building operations in large cities.^ (a) § 209. Subjacent Support of Land or Soil. — Where differ- ent strata of earth or soil, one beneatli the other, are owned by different persons, and there is no contract nor statute which affects their interests, the owner of the upper stratum has an absolute right to have his land supported in its natural condi- tion by the stratum below. ^ And this right exists whether the (a) For those parts of the city of New York which before the consoli- dation of Jan. 1, 1898, constituted the cities of New York and Brooklyn, it is provided by statute that, when an excavation is to be carried more than ten feet below the curb, the party making it must support and main- tain uninjured, contiguous walls and buildings, if he be given the neces- sary license to enter upon the lands of their owners for that purpose ; but, when an excavation is not to be carried more than ten feet below the curb, the owners of adjoining walls and buildings must support and preserve them at their own expense. N. Y. Laws 1885, ch. 456 ; 1887, ch. 566, § 3 ; 1892, ch. 275, § 9 ; 1855, ch. 6 ; 1888, oh. 583. Under these statutes, when the excavation is to be made more than ten feet below the curb, the person making it must request permission from the neigli boring proprietors to enter upon their lands to an extent sufficient to enable him to shore up and protect their walls; and it is no defence, in an action against him for damages for injury occasioned by his excavation, that the plaintiff did not proffer such a license without being asked for the same. Dorrity v. Kapp, 72 N Y. 307 ; Cohen v. Simmons, 21 N. Y. Supp. 385. See also McKenzie V. McKenzie, 141 N. Y. 6; Ketchum v. Newman, 116 N. Y. 422. Unless full, explicit license to enter on the land is given when so requested, he who makes the excavation more than ten feet below the curb is not bound to protect the adjoining wall or building. Sherwood v. Seaman, 2 Bosw. 127 ; Johnson v. Oppenheim, 55 N. Y. 280. This statute does not apply to the foundations of a stoop ; and therefore questions of liability for injuries to stoops arising from such digging are governed by the rules of the common law. Berry ji. Todd, 14 Daly, 450. is difficult to see how the owner of a 739 ; Love v. Bell, L. R. 9 App, Cas. 286 ; house can acquire by prescription a Rowbotham v. Wilson, 8 H. L. Cas. 348 ; right to hare it supported by the ad- Pringle u. Vesta Coal Co., 172 Fa. St. joining land, inasmuch as he does noth- 438; Robertson v. Coal Co., 172 Pa. St. ing upon, and has no use of, that land 566 ; Williams v. Hay, 120 Pa. St. 485 ; which can be seen or known, or inter- Marvin v. Brewster 1. M. Co., 55 N. Y. rupted or sued for by the owner thereof, 538, 556 ; N. J. Zinc Co. v. N". J. Frank- and therefore no assent of the latter can Unite Co., 13 N. J. Eq. 322 ; Erickson c be presumed to the acquirement of any Mich. L. & T. Co., 50 Mich. 604 ; Burg- right in his land by the former." ner v. Humphrey, 41 Ohio St. 340 ; 1 1 Stim. Amer. Stat. L. §§ 1170, Mickle w. Douglas, 75 Iowa, 78 ; Yandes 2251. V. Wright, 66 Ind. 319. 2 Humphries v. Brogden, 12 Q. B. 284 KINDS OF REAL PROPERTY. lower property consists of rock, clay, minerals, or other stable substances, or of easily movable materials such as quicksand ;i and whether one of the strata is surface land, or both are some distance below the surface.^ The lower owner rdust not remove his soil, by digging it away, or even by pumping it out, as, for example, when it is quicksand, in such a Tjianner as to cause a subsidence of the land above.^ Questions relating to subjacent support of soil are most numerous and important in mining localities. The natural right to such support does not prevent the owner of subsurface mineral property from utilizing it by removing the minerals ; but it requires him, in the process of mining, to leave, or in some manner to supply and maintain, an adequate protection against the subsidence of the land of the upper proprietor.* When, therefore, the owner of the entire interest in a tract of land sells the lower mineral portion and keeps the surface, he impliedly retains also the natural servitude in the support of his surface soil ; and, when he conveys the upper stratum and retains the lower, he impliedly grants also the right against himself to have the upper stratum vertically supported in its natural state.^ The owner of the mineral property, while re- quired to endure this servitude of support, has a reciprocal right to a way through the upper strata to the surface. He may use the surface land, as by constructing and working shafts and roads, to as great an extent as is reasonably neces- sary for the proper enjoyment of his own property, provided he thereby injures the other proprietor as little as possible.® Such rights frequently arise in substantially the same manner and with practically the same incidents as ways of necessity. § 210. Subjacent Support of Buildings. — Beyond the rights and burdens already explained, as existing between different owners of different strata of soil, the common law does not 1 Cabot V. Kingman, 166 Mass. 403. App. Cas. 95; Backhouse t'. Bonomi, 9 2 Robertson «. Coal Co., 172 Pa. St. H. L. Cas. 503; Williams v. Hay, 120 566 ; Mundj- v. Duke of Rutland, L. R. Pa. St. 485 ; Carlin v. Cliappel, 101 Pa. 23 Ch. Div. 81, 89. St. 348; Jones v. Wagner, 66 Pa. St. 8 Ibid. ; Pringle v. Vesta Coal Co., 429. 172 Pa. St. 438. ^ee Forbell v. City of 6 Humphries v. Brogden, 12 Q. B. New York, 164 N. Y. 522-; Reisert «, 739, 746; Harris v. Ryding, 5 M. & W. City of New York, 174 N. Y. 196; 60; Pringle H.Vesta Coal Co., 172 Pa. Popplewell u. Modkinson, 4 Exch. 248, St. 438, 442 ; Livingston u. Moingona 251 ; Elliott V. N. E. R. Co., 10 H. L. Coal Co., 49 Iowa, 369. Cas. 333, 6 Pringle v. Vesta Coal Co., 172 Pa. ■l Humphries v. Brogden, 12 Q. B. St. 438. 739, 745; Wilson o. Waddell, L. R. 2 IMPORTANT KINDS OF EASEMENTS AND SERVITUDES. 285 ordinarily go in the creation of natural servitudes of vertical support. Other rights and privileges of a similar character arise if at all from express or implied grant or from prescrip- tion, and are technical common-law easements. Sucli is the right to burden the surface stratum with buildings and insist that the owner of the portion of earth lower down, such as the owner of mines below, shall sustain the weight of the building in addition to that of the upper soil in its natural condition. There is very little positive adjudication upon this branch of the law of subjacent support. But the above statements ai-e clear in principle, and harmonize with the cases actually de- cided and with the opinions and utterances of eminent judges and jurists.^ The ordinary statement of such writers, with regard to separate ownerships of higher and lower properties, is that the upper one has'a right by nature to be supported m its natural condition by the lower stratum? There is more positive adjudication as to the rights and duties of separate owners of different stories or flats of a house. And it is settled that neither can remove, destroy, or alter his portion in such a manner as to work an injury to any other owner ;3 that the owner of an upper story is enbitled to verti- cal support from the lower parts of the building and to share in such lateral support as the building may of right enjoy ; * but that ordinarily neither of such owners can compel any of the others to make repairs or to contribute towards the making of the same.^ Party -vjall Eights, and other Similar Easements and Servitudes. § 211. Different Kinds of Wall Rights. — The various forms of expressions employed to denote wall rights and privileges are frequently used, even by lawyers and judges, in loose and inac- curate senses ; and the term " party-wall right " has been made 1 Humphries v. Brogden, 12 Q. B. Dalton i;. Angus, L. R. 6 App. Cas. 740; 739, 745 ; Dalton v. Angus, L. U. 6 Graves v. Berdan, 26 N. Y. 498. App. Gas. 740; Pierce v. Dyer, 106 * Harris v. Kyding, 5 M. feW. 60; Mass. 374 ; Pringle v. Vesta Coal Co., Dalton u. Angus, L. R. 6 App. Cas. 172 Pa. St. 438; Dorrity v. Rapp, 72 740; Birmingham v. Allen, L. R. 6 Ch. N. y. 307. Div. 292 ; Richards v. Rose, 9 Exch. 218 ; 2 Dalton V. Angus, L. R. 6 App. Graves v. Berdan, 26 N. Y. 49S ; Con- Cas. 740; Lasala K. Holbrook, 4 Paige nel v. Kibbe, 33 111. 175; Rhodes i. (N. Y.), 169; Pierce v. Dyer, 109 Mass. McCormick, 4 Iowa, 368. 374. 5 Pierce v. Dyer, 109 Mass. 374, 376 ; 3 Harris u. Ryding, 5 M. & W. 60 ; Ottumvi-a Lodge v. Lewis, 34 Iowa, 67. 286 KINDS OP REAL PROPERTY. to describe all sorts of easements and servitudes found in con- nection with structures erected upon division lines. But, from the more recent and accurate use of words in this connection, we may observe four distinct, important species of wall rights. It is important carefully to distinguish these and observe the chief characteristics of each, especially as they come into play in erecting, altering, preserving, or destroying buildings in large cities. They are the rights which arise and exist in con- nection with, a, an independent wall, h, a common wall, c, a mere easement of support in a wall which belongs entirely to another, and d, a party wall.^ § 212. a. Independent "Wall. — An independent wall, as its name indicates, is owned separately and distinctly by the pro- prietor of the land on which it stands. Such are ordinarily the front and rear walls of houses, and the side walls which are erected wholly on the lot upon which the house stands and without any connection with any other structures. About the only form of easement incident to this kind of wall is that of support, which arises when a house is so constructed that its side wall, although in form entirely independent, has come to depend more or less on the wall of an adjacent building, or when two houses are so constructed that their adjoining dis- tinct walls mutually support each other.^ § 213. h. Common Wall. — By this is meant a wall of which the two adjoining owners are tenants in common (or possibly joint tenants), i. e., each owns an undivided interest in tlie entire structure ; and no part of it is owned independently and absolutely by either of them.^ This is the kind of structure which a wall erected partly on one man's land and partly on anotlier's may become when no statute, nor contract, nor pre- scriptive right makes its nature different.* Yet most walls so built are affected by some contract, express or implied, or gov- erned by positive statutory enactment. And the results are that they are generally not common walls, but erections of 1 See Watson u. Gray, L. R. 14 Ch. » Wiltshire v. Sidford, 1 Mann. & Div. 192, 194. Ry. 404; Cubitt v. Porter, 8 B. & C. 2 Richards v. Rose, 9 Exch. 218; 257, 165; Watson u. Gray, L. R. 14 Lemaitre v. Davis, L. R. 19 Ch. Div. Ch. Div. 192, 194. 281 ; Webster v. Stevens, 5 Duer (N.Y.), ^ Backliouse v. Bonomi, 9 H. L Cap. 553 ; Eno v. Del. Vecchio, 4 Duer 503 ; List v. Hornbrook, 2 W. Va. 340, (N. Y.), 53; Solomon I'. Vintner's Co., 345; Gilmore ;-. Driscoll, 122 Mass. 4 H. & N. 585. See Peyton v. London, 199, 207; Quinn v. Morse, 130 Mass. 9 B. & C. 725 ; Adams v. Marshall, 138 317 ; Whiting v. Gaylord, 66 Conn. 337. Mass. 228. IMPORTANT KINDS OF EASEMENTS AND SERVITUDES. 287 some other nature, and most frequently party walls. Indeed, in the absence of evidence to the contrary, a wall thus built upon two lots is ordinarily presumed to be a party wall, and is governed by the rules of law applicable to such a structure.^ Those rules, as hereafter explained, have necessarily to deal with easements and servitudes. But, in connection with a mere common wall, there are usually no such rights or bur- dens, except those which happen to be made by special con- tract between the owners. This last named form of wall is, therefore, described here simply for the sake of completeness. § 214. C. Right of Support in a Wall -mrhioh belongs entirely to Another. — This, may be a privilege of supporting a wall of a house, as above explained.^ But, in connection with building operations in cities, it is most frequently in the form of an easement in the support of the beams or joists of a house in the wall upon the adjoining lot. Thus, A, intending to erect a house upon his own lot and finding that B, the owner of the contiguous land, has already built up close to the dividing line between the two properties, frequently purchases from B the right to support the beams of his contemplated structure in the wall already existing upon B's lot. He then erects his building without constructing any new wall upon that side, and depends, for the security of his house, upon the validity of the contract which he has made with B. Such a right, being a common- law easement, may be acquired by any form of grant, or by prescription. But he who depends for the safety of his build- ing on a privilege of this nature has upon him, in any liti- gation concerning it, the burden of clearly establishing its existence.^ As a rule, it is the least satisfactory, for its owner, of all the kinds of wall easements and servitudes. § 215. d. Party Wall — Definition — General Nature. — A party wall is a division wall erected on or near the line be- tween two pieces of land belonging to different owners, and so constructed that each owns absolutely that portion of it which stands upon his own land and also a right of support in the 1 Cubitt V. Porter, 8 B. & C. 257 ; » Hodgkins w. Farrington, 150 Mass. Schile v. Brokhahus, 80 N. Y. 614; 19; Rogers j). Sinsheimer, 50 N. Y. 646 ; Campbell v. Me.sier, 4 Johns, Ch. (N. Y.) Pearsall v. Westcott, 30 N. Y. App. 334: Weyman a. Eingold, 1 Bradf. Div. 99, 102; Spero «. Sclmltz, 14 N. Y. (N. Y.) 40; Warner o. Southworth, 6 App. Div. 423; Moore i-. Rayner, 58 Conn. 471 ; Weill v. Baker, 39 La. Ann. Md. 411 ; Whiting v. Gaylord, 66 Conn. 1102. 337. 2 § 212, supra. 288 KINDS OP KEAL PROPERTY. entire wall. Thus, if A and B owning adjacent lots of land build a party wall twelve inches thick standing one-half on A's lot and one-half on B's, A owns all the corporeal sub- stance of the six inches of the wall on his land, the right to compel B to retain the other six inclies for its support and the right to make such use of the entire structure (as by sticking beams into it and resting joists upon it) as may be reasonably required in the proper construction and preservation of the house on A's property. And B has the ownership of tlie six inches on his lot and the same kinds of rights against A's half of the wall. While, then, there is no co-ownership of the tangible materials of which the wall is composed, there are cross easements or servitudes in the mutual rights to sup- port of each half of the wall by the other half and in the beam and building rights required for the respective houses.^ It is not necessary, however, that a party wall should stand with one-half of it upon each of the adjoining parcels of land. The greater portion, or even all of it, may be on one side of the dividing line ; or that line may run diagonally through the wall.2 The incorporeal rights and privileges are the same, in all such cases, and the only distinctions are as to the quantities of the corporeal substance which belong to each proprietor. Each one owns the bricks and mortar, or other substantial mate- rials, upon his side of the division line, even though they may include very little, or the most, or the whole of the wall. But he holds them subject to the support, beam, and building rights of his neighbor, as above explained. In some cases, it has been shown that the structure in question stood entirely on one man's land, and even some little distance away from the 1 "The adjoining owners are not v. Becker, 143 N. Y. 303; Nat. Cora, joint tenants or tenants in common of Blc. o. Gray, 71 Hun (N. Y.), 295; thie party wall. Eacli is possessed in Normille v. Gill, 159 Mass. 427 ; Traute severalty of his own soil up to the divid- c. White, 46 N. J. Eq. 437 ; Milne's ing line, and of that portion of the wall Appe!\l, 81 Pa. St. 54 ; Gibson v. Holden, which rests upon it; but the soil of 115 111. 199; Graves v. Smith, 87 Ala. each, with the wall belonging to him, is 450. > burdened with an easement or servitude ^ Pearsall v. Westcott, 30 N. Y. in favor of the other, to the end that it App. Div. 99, 102 ; Fettretchi). Leamy, may afford a support to the wall and 9 Bosw. (X. Y.) 510, 530 ; MoVoy v. buildings of such other." Bouvier's Durlcin, l36 Pa. St. 418 ; Tate c. Fratt, Law Diet. "Party Wall." Hoffman i'. 112 Cal. 613; Zeininger !'. Sohnitzler, Kuhn, 57 Miss. 746; Odd Fellows u. 48 Kan. 63; Barry u. Edlavitch, 84 .Md. Hegelo, 32 Pac. Rep. 681 (Oreg.); Par- 98; Marion o.. Johnson, 23 La. Ann. tridge ;.. Gilbert, 15 N. Y, 601, 614; 597. Brooks V. Curtis, 50 N. Y. 639 ; Negus IMPORTANT KINDS OF EASEMENTS AND SERVITUDES. 289 lot of the other ; and yet such other landowner has been held to have in it all the rights and privileges appertaining to a party wall.^ The expression "party waU" does not necessarily imply a solid structure.^ There is, for example, no rule of law which pre- vents one who is building such a wall, under an agreement with his neighbor tlaat the latter will pay for half of it, from leaving in it chimney flues. And when it is the general custom of the place to put flues in party walls, such custom may be invoked to show that the wall was built in accordance with the understanding and intention of the contracting parties.^ But the rights and privileges to which such a structure gives rise are limited in extent, and are ordinarily confined to the purposes of mutual support.^ Hence one lot owner can not, without the consent of the other, erect the wall with openings in it, such as windows or doors, nor place or maintain them in it after its erection,^ nor construct or use it for any purpose other than those of a division wall for the support and preser- vation of the two houses and as an external wall for each.^ § 216. Creation of Party-wall Rights. — In SOme states, party walls and their accompanying rights and duties are specially provided for by statutes. And, in all jurisdictions, they may 1 Pearsall c. Westcott, 30 N. Y. Graffort, 35 Iowa, 531 ; Dunscomb v. App. Div. 99; Tate ^. Fratt, 112 Cal. Eandolph, 107 Tenn. 89. 613; Dorsey o. Habersack, 84 Md. 98; * l)e Bauu c. Moore, 22 N. Y. App. McVey v. Durkin, 136 Pa. St. 418, T)iv. 485 ; also cases cited supra, last 2 Hammann r. .Jordan. 129 N. Y. 61 ; six notes, and especially Nat. Com. Bk. Fettretch v. Leamy, 9 Bosw. (N. Y.) u. Gray, 71 Hun (N. Y.), 295 ; Brooks w. 510, 525; Ingals i/. Plamoudon, 73 111. Curtis, 50 N. Y. 639; Normille v. Gill, 118. 159 Mass. 427; Wells o. Garbutt, 132 8 Hammann v. Jordan, 129 N. Y. N. Y. 430; I^aine v. Chandler, 134 61 ; De Baun i). Moore, 32 N. Y. App. N. Y. 385 ; Vollnier's Appeal, 61 Pa. St. Div. 397, 398; Batt i,. Kelly, 75 N. Y. 118 ; Traute v. White, 46 N. J. Eq. 437. App. Div. 321. 6 Normille v. Gill, 159 Mass. 427; * " Various reasons of inconvenience Wistar v. Amer. Bap. Soc, 2 W. N. C. or peril have been assigned for the (Pa.) 333; Dauenhauer v. Devine, 51 doctrine, but they are all referable, we Tex. 480 ; Dawson v. Kemper, 1 1 Ohio think, to the general doctrine that the Cir. Ct. 180,181. easement is only a limited one, and it is But, of course, a contract, expressly not to be extended so as to include made by the parties or implied from rights and privileges not belonging to their conduct, may vary these princi- the character of a wall which is to be pies, and enable one of the owners owned in common, [and in which the of a party wall to put windows in rights of each owner are equal." Nor- it or otherwise vary its form or use. mille U.Gill, 159 Mass. 427; Fettretch Hammann v. Jordan, 129 N. Y. 61; I). Learaiy, 9 Bosw. (N. Y.) 510; Harber Weigmann v. Jones, 163 Pa. St. 330; V. Evans, 101 Mo. 661 ; Sullivan v. Grimley v. Davidson, 35 111. App. 31 ; Barry v. Edlavitch, 84 Md. 95. 19 290 KINDS OF REAL PROPERTY. arise from express contract or covenant, including reservation of sucli rights in the conveyance of corporeal property, or from implied grant or contract, or from prescription. The general purport of statutes, which authorize the erection and maintenance of such walls, is that, in a city or town, one who builds a wall of brick or stone contiguous to the vacant lot of his neighbor may place one-half of it upon such neighbor's land, and that, when the latter uses the wall, which he may do at any time, he shall contribute one-half of the cost of its construction. Such enactments, varying considerably in de- tails, are found, and sustained by the courts as valid forms of exercise of the police power, in the District of Columbia, Iowa, Louisiana, Mississippi, Pennsylvania, and South Carolina.^ In other states, such as Massachusetts and New Jersey, such legislation has been declared to be unconstitutional and void, as an attempt to authorize an illegal taking of private property for private purposes.^ It would seem that, in the absence of positive constitutional authority, statutes of such a nature ought not to be sustained. One of the most common methods of bringing party walls into existence is as the result of express grant or covenant entered into by the owners of the two contiguous lots of land.* Many come into being, also, by virtue of contracts implied by the law from the conduct and transactions of the owners of the parcels of land affected. Probably the most preva- lent illustration of this latter method of creating them is found in that large class of cases in which one person has built two or more connected houses in a row, with single walls (ordinarily eight or twelve inches thick) between them, and has subsequently sold them and the lots of land on which they stand respectively to different purchasers, or has sold one or more and retained the adjacent ones. Unless 1 1 Stim. Amer. Stat. L. §§ 2170- the right to use it at the owner's free 2177; Jones, Ease. §§ 63.V640. will and pleasure, so that he does not 2 " It seems to me that where my injure his neighbor or the public." neighbor takes exclusive possession and Traute v. White, 46 N. J Eq. 437, 440 ; occupation of my land by covering it Williams v. Jewett, 139 Mass. 29. But with a solid wall of masonry many see Evans v. Jayne, 23 Pa. St. 34, 36. feet high, he ' takes ' it from me in the ' King v. Wight, 155 Mass. 444 j most thorough and effective manner, Garmire v. Willy, 36 Neb. 340 ; Brooks although the legal title lemaina in me. v. Curtis, 50 N. Y. 639; Keteltas v. I do not understand that the legal title Penfold, 4 E. D. Smith (N. Y.), 122; is at all involved in an unlawful 'tak- Gibson v. Holden, 115 111. 199; Duncan ing' of land, but that it is a question v, Eodecker, 90 Wis. 1. lather of practical dominion over, and IMPORTANT KINDS OF EASEMENTS AND SERVITUDES. 291 the deeds or other contracts between the parties expressly pro- vides otherwise, such walls thus become party walls by implica- tion of law, whether the dividing lines are described as running through the centres of such walls, or simply through such walls, or the descriptions of the lots are only by courses and distances or simply by designation of the buildings. ^ Bach purchaser is presumed to have contracted with reference to the actual condition of the properties at the time, and to have taken his house and lot with all the benefits and burdens which apparently belonged to them. So, if one build a wall of his house partly upon land of his neighbor, and this without the consent of such neighbor, the latter may, at his election, treat the structure as a party wall, and, without paying for any portion of it, may use it as such. The one who con- structed it is estopped by his location of it to deny that he intended to make it a party wall ; ^ but the otlier, if he so elect, may refuse to treat it in that manner and compel, its removal from his land.^ Again, when neighbors construct their houses at the same time and erect between them a single wall in and upon which each supports his building, it thereby becomes a party wall by implication.* And, in general, when- ever the owners of contiguous lots of land place a wall upon or near the boundary line between them and mutually use it for the support of the beams or joists or roofs of their build- ings, and whenever two persons become separate owners of distinct houses so constructed with reference to some wall, and there is no positive contract between them to the contrary, the law presumes that the wall is a party wall.^ 1 Richards v. Rose, 9 Exch. 218; ^ Sherred u. Cisco, 4 Sand. (N. T.) Solomon v. Vintner's Co., 4 H. & N. 480 ; Potter v. White, 6 Bosw. (N. Y.) .585, 586 ; Eno v. Del Vecchio, 4 Duer 644 ; Brown v. McKee, 57 N. Y. 684 ; (N.Y.), 53 ; Partridge v. Gilbert, 15 N. Y. Pile i: Pedrick, 167 Pa. St. 296 ; Hongh- 601 ; Brooks y. Curtis, 50 N. Y. 639, 642 ; ton w Mendenhall, 50 Minn. 40; Kells Heartt v. Kruger, 121 N. Y. 386; Car],- v. Helm, 56 Miss. 700. ton V. Blake, 152 Mass. 176; Everett w. * Rindge n. Baker, 57 N. Y. 209; Edwards, 149 Mass. 588 ; Warfel v. Huck u. Flentye, 80 111. 258 ; Miller o. Knott, 128Pa.St. 528; Ingalsu. Plamon- Brown, 33 Ohio St. 547; Eckleman v. don, 75 111. 118; Henry v. Koch, 80 Ky. Miller, 57 Ind, 88; Wickersham v. Orr, 391 ; Hieatt v. Morris, 10 Ohio St. 523. 9 Iowa, 253 ; Rice v. Roberts, 24 Wis. 2 Heartt u. Kruger, 121 N. Y. 386; 461; Hammond v. Schiff, 100 N. C. Rogers v. Sinsheimer, 50 N. Y. 646; 161. Lampman v. Milks, 21 N. Y. 505, 507 ; 5 « In the absence of evidence to the Henry v. Koch, 80 Ky. 391. But he is contrary a common wall between two not estopped to prevent the other from adjoining estates is presumptively a running the wall further back upon the party wall, either from an agreement lot. Schmidt v. Lewis, 63 N. J. Eq. 564. to that effect or from its being built 292 KINDS OP REAL PEOPEETT. Lastly, by prescription a division wall between buildings becomes a party wall after continuous adverse user as such for the full prescriptive period.^ The burden of proof to show all the elements of such user rests strongly upon him who claims the party-wall rights. He must show, not only the proper method of enjoyment by himself, or by himself and his predecessor in title, but also the negative fact that no disa- bility of the other party prevented the running of the full prescriptive period .^ § 217. Use of Party Walls. — The principle of law which regulates the enjoyment of these structures and the rights con- nected witli them is that they are for the common benefit and convenience of the adjoining properties ; and the only restric- tion ordinarily imposed upon the right of one party to use them is that such use shall not be detrimental to the other owner.^ Accordingly, one alone, in the absence of restraining contract, may make the foundation deeper and stronger, or build the wall up higher, and both of these things he may do to the full thiclfuess of the wall on botli sides of the line be- tween the adjoining lots ; * he may add thickness to it upon his side of that line, and so, by any or all of these means, he may make the wall suitable for a larger building, or for one differ- ent in other respects from that originally existing or contem- upon the lines of such estates for that Graves v. Smith, 87 Ala. 4.50 ; Brown purpose by the respective owners. Of u. Werner, 40 Md. 15. course, this presumption may be re- ^ Moore v. Raynor, 58 Md. 411; butted by evidence that the whole wall Spero v. Schultz, 14 N. Y. App. Div. belongs to the owner of one estate, or 423. by evidence that the owner of the two ^ Partridge v. Gilbert, 15 N. Y. 601 ; estates owns half of the wall in separate Mittnaeht v. Slevin, 142 N. Y. 638 ; ownersliip, subject to no easement in Myers v. Becker, 143 N. Y. 303 ; Carl- favor of the other." Jones, Ease. § 644, ton v. Blake, 152 Mass. 176 ; Lukens v. citing Cubitt v. Porter, 8 B. & C. 257 ; Lasker, 202 Pa. St. 327 ; Graves v. Matt V. Hawkins, 5 Taunt. 20; W.itson Smith, 87 Ala. 450 ; Tate t>. Fratt, 112 •/. Gray, L. R. 14 Ch Div. 192; Schile Gal. 613; Andrae v. Haseltine, 58 Wis. V. Brokhahus, 80 N. Y. 614 ; Campbell ?•. S95. Mesier, 4 Johns. Ch. (N. Y.) 334 ; Wey- * Standard Bank v. Stokes, L. R. 9 man it. Ringold, 1 Brad. (N. Y.) 40; Ch. Div. 68; Eno v. Del Vecchio, 4 Weill V. Baker, 39 La. Ann. 1102; Duer (N. Y.), 53 ; Brooks i'. Curtis, 50 Warner v. Southworth, 6 Conn. 471 ; N. Y. 639; Negus v. Becker, 143 N. Y. Murly V. McDermott, 8 Adol. & EL 303; Carlton v. Blake, 152 Mass. 176; 138. Everett r. Edwards, 149 Mass. 588; 1 Schile D, Brokhahus, SONY. 614; Matthews v. Dixey, 149 Mass. 595; Lewis V. Gollner, 129, N. Y. 227 ; Eno Barry v. Edlavitch, 84 Md. 95; Dauen- V. Del Vecchio, 4 Duer (N. Y.), 53; hauer i'. Devine, 51 Tex. 480; Haiber McVey v. Durkin, 136 Pa. St. 418; r. Evans, 101 Mo. 661. Eodgkin i^. Farrington, ISO Mass. 19; IMPORTANT KINDS OP EASEMENTS AND SERVITUDES. 293 plated.^ When one of the owners has thus made additions to a party wall, the other may use it in its changed condition, without paying anything for the benefit of the improvements, unless he has bound himself by contract to make compensation for such advantages.^ The substantial reason why one can not put windows, doors, or other openings in the wall against the will of the other is that this would injuriously restrict the practical uses to be made of it by the latter.^ § 218. Repairing, Removing, and Rebuilding Party Walls. — A party wall being for the benefit and convenience of the adjoin- ing proprietors, they are obliged to contribute ratably towards keeping it in suitable condition for the purposes for which it was erected or exists. If, therefore, it need repairing, one of them may do the work or have it done and hold the other responsible for one-half of the expense thereby reasonably incurred.* But this right extends only to repairs properly so called. And if they allow the wall to become so dilapidated and ruinous that the only practical way to restore it is to rebuild it from the foundation up, the party-wall rights as such cease to exist, and neither can compel the other to con- tribute towards the renewal of the wall ; nor will either of them, without the concurrence of the other, be justified in re- building it even entirely at his own expense.^ So, if any ordinary party wall be destroyed by inevitable accident, as by fire, wind, or flood, neither owner can compel the other to help to restore it, nor can either replace it without the consent of the other.8 1 Walker v. Stetson, 162 Mass. 86; Martin, 2 Lea (Tenn.), 213; 31 Amer. Wolfe 0. Frost, 4 Sandf. Ch. (N. Y.) Rep. 598. 72 ; Partridge v. Gilbert, 1.5 N. Y. 601 ; * § 215, supra ; Normille v. Gill, 159 Quinu 0. Morse, 130 Mass. 317 ; Mitt- Mass. 427 ; Weston u. Arnold, L. R. 8 naclit 0. Slevin, 142 N. Y. 638, 683 ; Mus- Ch, App. 1084 ; Milne's Appeal, 81 Pa. grave v. Sherwood, 54 How. Pr. (N. Y.) St. 54; Harber v. Evans, 101 Mo. 661 ; 338, 60 How. Pr. I N. Y.) 339 ; Sebald 1-. Sullivan v. Graffort, 35 Iowa, 531; MulhoUand, 155 N. Y. 455. Harmann v. Jordan, 129 N. Y. 61. 2 Wallier v. Stetson, 162 Mass. 86; * Campbell v. Mesier, 4 Johns. Ch. Eno V. Del Vecchio, 4 Duer (N. Y.), (N. Y.) 334; Huck v. Flentye, 80 111. 53. "There are decisions, however, to 258; Sherred v. Cisco, 4 Sand. (N. Y.) the effect that one who builds a party 480 ; Odd Fellows Ass'n v. Hegele, 24 wall higher for his own convenience is X)reg. 16. entitled to contribution from the other ^ Partridge v. Gilbert, 15 N. Y. 601, owner, who, without an agreement in 615; Antomarchi u. Russell, 63 Ala. relation to the wall, uses the additions, 356 ; Li.st v. Hornbrook, 2 W. Va. 340 ; to the extent of one-half of the value of Reynolds v. Fargo, 1 Sheld. (N. Y.) 531. the additions at the time they are used." ^ Sherred v. Cisco, 4 Sand. (N. Y.) Jones, Ease. § 703, citing Sanders v. 480, 487 ■ Partridge v. Gilbert, 15 N. Y. 294 KINDS OF REAL PEOPEETY. It is because of its characteristics, as above explained, that the existence of a party wall on a lot of land, and the ordi- nary covenants relating to it, do not constitute an encum- brance within the meaning of a covenant against encumbrances in a deed of the land or in a contract for its sale.^ But when to these is added a perpetual covenant, running with the land, to the effect that the adjoining owners and their heirs and assigns shall forever share equally the expense of repairing or rebuilding the wall, and that whenever rebuilt it shall be of the same size as before and of similar materials, the wall con- trolled by such a covenant constitutes an encumbrance upon the titles to both of the lots.^ So, a wall built entirely upon one piece of land, but subject to use for all purposes as a party wall by the owner of the adjacent lot, is an encumbrance upon the lot on which it stands.^ One owner of a party wall has no right to tear it down, or otherwise to do away with it, as long as it is safe and suitable for the adjoining owner.* But, in the process of building or repairing on his own property, one may take it down, or otherwise deal with it for his own convenience, provided he re- stores it for the use of the other proprietor and causes the latter no injury or inconvenience while such removal, restoration, or other changes are being effected.^ He who thus assumes to deal with a party wall for his own benefit does so at his own risk, and must, at his peril, save his neighbor harmless from loss or legal injury by virtue of such change or changes.'' § 219. Division Fences. — Somewhat similar to easements connected with walls are rights which sometimes exist in favor of landowners to compel their neighbors to build or 601 ; Heartt v. Kruger, 121 K Y. 386 Bonney v. Greenwood, 96 Me. 335 Pierce v. Dyer, 109 Mass. 374, 377 Mohr V. Parmelee, 11 J. & S. (N. Y.) 320. * Partridge v. Gilbert, 15 N. Y. 601 Huck V. Plentye, 80 111. 258 ; Orman Partridge v. Lyon, 67 Hun (N. Y), 29 V. Day, 5 Fla. 385 ; Hoffman v. Kuhn, Brondage v. Warner, 2 Hill (N. Y.), 145 57 Miss. 746. 6 Standard Bk. v. Stokes, L. R. 9 Ch 1 Hendricks v. Stark, 37 N. Y. 106 Schaefer v. Blumenthal, 169 N. Y. 221 Weld V. Nichols, 17 Pick. (Mass.) 538 Div. 68 ; Putzel v. Drorers & Mec. Nat. Bk., 78 Md. 349 ; Partridge v. Gil- bert, 15 N. Y. 601. Bertram «. Curtis, 31 Iowa, 46. « Bower v. Peate, L. R. 1 Q. B. BW. 2 O'Neil V. Van Tassel, 137 N. Y. 321 ; Percival c. Hughes, L. R. 9 Q. B. 297 ; Corn v. Bass, 43 N. Y. App. Div. Div. 441 ; Dorrity v. Rapp, 72 N. Y. 53; Savage v. Mason, 3 Cush. (Mass.) 307 ; Schile v. Brokhahns, 80 N. Y. 614. 500; Mackey u. Harmon, 34 Minn. But he is not liable for injuries caused ^^^- by the acts of an independent contractor. = Cecconi v. Rodden, 147 Mass. 164 ; Negu.s v. Becker. 143 N. Y. 303 ; Coving- Giles V. Dugro, 1 Duer (N. Y.), 331 ; ton v. Geyler, 93 Ky. 275. IMPORTANT KINDS OF EASEMENTS AND SERVITUDES. 295 help build and maintain division fences between the parcels of land. No such rights exist naturally at common law ; bat they sometimes arise by grant or prescription.^ And, in most states, statutes now provide more or less fully for the erection, repairing, and preservation of division fences. Generally, sucli statutes require each owner of the contiguous properties to erect one-half of the fence, or to contribute one-half of its cost, also to pay one-half of the cost of its repairs, or restora- tion if destroyed, and to abstain from doing anything to cause its destruction or injury. Pence-viewers are also provided for and authorized to fix the amounts to be paid by the land- owners, respectively, when the latter can not agree.^(a) Such fences may be placed one-half upon the land of each conter- minous owner, when there is no prescription or contract to the contrary.^ Such statutes, therefore, afford means of bringing fence servitudes into being and regulating them by operation of law. Water Bights. § 220. Kinds of Rights in Water. — In connection with real estate, property in water can only be predicated of its use, ■which serves in its enjoyment to give value to the corporeal hereditaments with "which its use is associated. Hence it is that the valuable legal incidents of water take the form of easements or servitudes. And most of them are not tech- nical common-law easements, but rather servitudes, since they exist by nature and do not have one estate wholly dominant and another distinctly servient. When, however, artificial ■water rights, privileges, and obligations arise, as they some- times do, by grant or prescription, they are common-law ease- ments in the strict, technical sense of that term. The logical classification, therefore, of these forms of incorporeal heredita- (a) In New York division fences in towns are now regulated by the Town Law, L. 1890, ch. 569, §§ 100-108, L. 1892, ch. 20, art. 5 ; and those between farms by 1 R. S. 353. See Gerard on Titles to R. E. (4th ed.) p. 779. 1 Boyle V. Tamlyn, 6 B. & C. 329 ; ' Daffy v. N. Y. & H. E. Co., 2 Hilt. Adams w. "Van Alstyne, 25 N. Y. 232; (N. Y.) 496; Bronson v. Coffin, 108 Rust !). Low, 6 Mass. 90, 97 ; Moore v. Mass. 1 75 ; Harlow . West Shore R. Co., 150 N. Y. v. Pa. R. Co., 124 U. S. 656, 688, 690, 150. 691 ; Maun v. Tacoma Land Co., 153 IMPORTANT KINDS OF EASEMENTS AND SERVITUDES. 297 uniform rule of the federal government and of the states alike that the rights of such owners must yield to the requirements of navigation and the improvements which it demands.^ The common-law test of navigability of streams — tide- waters only being navigable — while applying well in England, where no rivers are in fact navigable except so far as the tide ebbs and flows, is not wholly applicable to a country like this with its large and important inland water highways. In the different states, therefore, there is much divergence of opinion as to what kinds of streams are to be regarded as navigable in the technical sense, and as to how far the ownership of riparian proprietors extends. The tendency of the western states is to treat rivers as navigable in law when they are so in fact, though there is no tide within them.^ The eastern states adhere more closely to the common-law test, (a) The Supreme Court of the United States has decided that rivers, which form the bound- aries between states, and are used or may be used for pur- poses of commerce, are navigable rivers of the United States ; and this, too, without regard to the consideration whether the tide ebbs and flows within them. The same has been held as to the Great Lakes.^ (a) In New York, it is held that, except as to streams regulated by positive statute, the common-law criterion is applicable to streams in gen- eral, but that the Hudson and Mohawk, even above tide-water, are gov- erned by the civil law, according to which the riparian proprietors do not own the bed of the stream. Smith v. City of Rochester, 92 N. Y. 473 ; The Canal Appraisers, 33 N. Y. 46. See Lincoln v. Davis, 53 Mich. 375; § 50, supra. U. S. 273, 283, 287 ; Coxe v. State of 168 U. S. 349 ; Swerigen v. St. Louis, New York, 144 N. Y. 396 ; Mark u. 185 U. S. 38 ; Kean v. Calumet Canal West Troy, 151 N. Y. 453. Co., 190 U. S. 452 ; Hardiu v. Shedd, 1 Scrantonw.Wheeler, 179U.S. 141; 190D. S. 508; Illinois Cent. R. Co. ». Gibson V. United States, 166 U. S. 269; Illinois, 146 U. S. 387; The Montello, Slingerland v. International Const. Co., U Wall (U. S.) 411 ; The Daniel Ball, 169 N. Y. 60. In the case last cited, it 10 Wall. (U. S.) 557 ; § 50, supra. It was decided that, if tlie improvement is the law of many of our states that, permanently injured the riparian own- while the public has the right to navi- er's access to the navigable water, he gate the large streams, in which the might recover damages for the loss ; tide does not ebb and flow, but which but the proof of such loss and damage are in fact navigable, yet the title to must be very clear and convincing. the soil of such streams is vested in 2 Barney v. Keokuk, 94 U. S. 324 ; the riparian owners. Smith v. City of Swerigen v. St. Louis, 185 U. S. 38; Rochester, 92 N. Y. 473; Magnolia u. Chase's Blackst. p. 221. Marshall, 39 Miss. 119; Eneminger v. 3 Shively i). Bowlby. 152 U. S. 1-58 ; The People, 47 111. 366 ; Ryan v. Brown, Water Power Co. v. Water Comm'rs, 18 Mich. 196; Blanchard u. Porter, 11 298 KINDS OP REAL PEOPEETT. Below high-water mark of navigable waters, ia most juris- dictions, the state is the owner of the land, subject to the rights of the riparian proprietors, and the right of navigation in favor of such proprietors and the public generally.^ The state holds such lands in trust for the public ; and while it may make reasonable grants and concessions of the land under water, to individuals or corporations, it can not grant or give up so much as to make a practical abdication of its control over such waters or so as to prejudice the public right of navi- gation or the private rights of the riparian owners.^ When the stream or body of water is not navigable, the rights of the state, or of the public, are generally not involved, and the natural servitudes exist simply among the neighboring owners along the banks. § 222. Ownership and Use of Natural Streams. — The pro- prietors along the banks of a stream do not own the waters thereof as such ; and this is true though they own the bed of the stream, — it not being navigable, — and though for a por- tion or even all of its course one person may own all the soil over which it flows and the land on both sides.^ But each has a right to its reasonable use, as it flows past or over or through his property, whether it be on or below the surface of the soil ; and each one can require of his neighbors and of all the ripa- rian owners that it shall be permitted to flow upon and over or through his land in its natural bed, unpolluted and substan- tially undiminished in quantity by virtue of anything done by them.* In so far as it relates to the contamination of flowing Ohio, 138. A grant by the crown (or Water Co. i;. Watson, 29 N. J. Eq. 366 ; state) of the land along a navigable Lord v. Meadville Water Co., 135 Pa. sound and the islands therein does not St. 122; Merrifield v. Worcester, 110; include the land below high-water mark, Mass. 216; Davis w. Fuller, 12 Vt.l78; unless the intent that it shall do so is Mitchell v. Bain, 142 lud. 604. expressly declared in the grant. De- * Aqua currit et debet currere ut cur- lancey v. Piepgras, 138 N. Y. 26. reresolebat. United States k. Rio Grande 1 Shively v. Bowlby, 152 U. S. 1, aud Irrigation Co., 174 U. S. 690, 702 ; Phila. cases cited. v. Spring Garden, 7 Pa. St. 348 ; Clarlc v. 2 Illinois Cent. R. Co. v. Illinois, Pa. R. Co., 145 Pa. St. 438 ; Brewster 146 U. S. 387. See United States v. v. Rogers Co., 169 N. Y. 73 ; Strobel v. Rio Grande Irrigation Co., 174 U. S. Kerr Salt Co., 164N. Y.303; Watuppa 690. Reservoir Co. v. Fall River, 134 Mass. 8 Embrey v. Owen, 4 Exch. 353 ; 267 ; Clark v. Pa. R. Co., 145 Pa. St. Sturr V. Beck, 133 U. S. 541 ; Brown t. 438, 449 ; Warren v. Westbrook Mfg. Bowen, 30 N. Y. 519; Colrick i,. Swin- Co., 88 Me. 69, 71 ; Young v. Bankier burne, 105 N. Y. 503 ; Acquackanouck Distillery Co. (1893) App. Cas. 691. IMPORTANT KINDS OF EASEMENTS AND SERVITUDES. 299 waters, this rule is practically absolute.^ If there be such a thing, in any jurisdiction, as a legal riglit to foul the waters of a natural stream in any degree, it must be very closely re- stricted in its extent and must be founded on the obligation sometimes placed upon the individual by the demands of the arts or sciences, or of proper agriculture or manufacture, for the promotion or conservation of the greater good of the public in general.^ An illustration of such a requirement is found in the mining districts of Pennsylvania, where the courts permit the water from a mine lawfully worked to be poured into a natural stream even though the stream is thereby some- what polluted.^ The rule as to the diversion of a stream is also absolute, to the extent that it enables each owner to insist that the stream, however much it may be shifted around on land of others, shall flow upon and from his land in its natural channel.* As to the diminution of the quantity of the water, the circumstances of each case, such as its volume, the rapidity of its flow, and the character of the surrounding country must all be taken into consideration in determining the rights and duties of the riparian proprietors. Bach of them may use all that is neces- sary for drinking and domestic purposes,^ and all that is otherwise required for any objects that will not result in an unreasonable diminution of the quantity of water to the mate- ' Pennington v. Brinsop Hall Coal Vt. 49; Frazier v. Brown, 12 Ohio St. Co., L. K. 5 Ch. Div. 769 ; Jackman w. 294. And see Stone v. State, 138 N. Y. Arlington Mills, 137 Mass. 277 ; Dwight 124. Printing Co. «. Boston, 122 Mass. 583 ; * Stowell w. Lincoln, 11 Gray (Mass ), Prentice v. Geiger, 74 N. Y. 341 ; Mann 434 ; Fletcher o. Smith, L. B. 2 App. II. Willey, 51 N. Y. App. Div. 169 ; Cas. 781 ; Hartshorn v. Chaddock, 135 Acquackanonck Water Co. v. Watson, N. Y. 116; Covert v. Cranford, 141 29 N. J. Eq. 366 ; Lyon v. McLaughlin, N. Y. 521 ; N. Y. Rubber Co. v. Koth- 32 Vt. 423; Canfield «. Andrews, 54 Vt. ery, 132 N. Y. 293, 296; Kensit v. Gt. 1 ; Silver Spring B. & D. Co. v. Wan- Eastern R. Co., L. R. 27 Ch. Div. 122 ; Bcuok Co., 13 R. I. 611 ; Lockwood St. Anthony I". W. P. v. Minneapolis, Co. V. Lawrence, 77 Me. 297 ; Bar- 41 Minn. 270. rett V. Greenwood Cem. Ass'n, 159 111. ^ It is said that he may exhaust the 385. water, if necessary, for culinary and s Tenn. Coal. & I. R. v. Hamilton, other domestic purposes of his family, 100 Ala. 252, 260; Sanderson v. Pa. or for watering his cattle. Swindon Coal Co., 86 Pa. St. 401 , Miss. Mills Water Works v. Wilts Canal, 7 H. L. Co. V. Smith, 69 Miss. 299. Cas. 697 ; Wadsworth v. Tillotson, 15 ' Pa. Coal Co. u. Sanderson, 113 Pa. Conn. 366; Anthony v. Lapham, 5 St. 126. The discharge into a stream Pick. (Mass.) 175; Swift v. Goodrich, of the usual impurities from streets does 70 Cal. 103; ICaler <^. Campbell, 13 not give a cause of action against the Oreg. 596. city or town. Chatfield v. Wilson, 28 300 KINDS OF EEAL PROPERTY. rial detriment of the other owners along the stream. ^ Any abstraction of the water, which is unreasonable under the cir- cumstances, will give rise to a cause of action, whether it be done by directly pumping or dipping it from the stream or by indirectly removing it in some other manner. It was accord- ingly held, in Smith v. City of Brooklyn,^ that the city was liable in damages to the riparian owners, for greatly diminish- ing the volume of the flow of a natural stream by pumping large quantities of water from artesian wells sunk by it in its own lands at and near the sources of the water supply. But where the waters directly taken are only percolating to the stream and are not in a definite" channel, as was true in the Smith case in New York, the opposite rule remains clearly the law of England.^ These rights and obligations in natural streams may, of course, be modified by contracts express or implied, or by prescriptive titles or privileges.* In some of the United States, also, especially in those along the Pacific Coast and Rocky Mountains having important mining interests, prior appropria- tion of water facilities is made to give superior rights. ° And the so-called mill acts of several states give special facilities for milling operations to certain riparian owners, particularly to those who are the first to take advantage of the provisions of such statutes.^ The right of irrigation, moreover, in some instances even to the extent of practically exhausting such currents, is authorized by legislative enactments in some of the arid and hotter sections of this country.^ These rights, 1 Bailey & Co. v. Clark (1902), 1 Ch. « Manning v. Wasdale, 5 Adol. & El. 6-19 ; N. Y. Rubber Co. v. Kothery, 132 758 ; Wiley v. Hunter, 2 Eastern, 228. N. Y. 293 ; Clark v. Pa. R. Co., 145 Pa. No easement can be acquired as a right St. 438 ; Gould v. Boston Duck Co., 13 to pollute a stream against a statutory Gray (Mass.), 442; Dyer v. Cranston prohibition. Brookline v. Mackintosh, Print- Works Co., 22 R. I. 506; Woodin 133 Mass. 215. Nor by prescription to V. Wentworth, 57 Mich. 278 ; City of create a public nuisance. Common- Canton V. Shock, 66 Ohio St. 19 ; Fisher wealth v. Upton, 6 Gray (Mass.), 473 ; ■ u. Fiege, 137 Cal. 39. North Salem v. Eagle Co., 138 Mass. 8. 2 160 N. Y. 357. See also Stillwater * Stim. Amer. Stat. L. §§ 418, 1171. Water Co. v. Farmer, 97 N. W. Rep. « Angel Wat. Conr. § 483 ; Lincoln (Minn.) 907; Haupt'a Appeal, 125 Pa. ;>. Chadbourne, 56 Me. 197; Smith v. St. 211 ; Higginsw. Flemington W. Co., Agawam Canal Co., 2 Allen (Mass.), 36 N. J. Eq. 538 ; Monlton v. Newbury- 355 ; Lowell v. Boston, 111 Mass. 454, port W. Co., 137 Mass. 163. 467. s Popplewell !). Modkinson, 4 Exch. 'Stim. Amer. Stat. L. § 1179; 248 ; Bradford Corp. v. Ferrand (1902), United States v. Rio Grande Irrigation 2 Ch. 655; Chasemore v. Richards, 2 Co., 174 U. S. 690. H. & N. 168, 7 H. L. Cas. 349. IMPORTANT KINDS OP EASEMENTS AND SERVITUDES. 301 beyond what the common law permits, and their accompanying obligations depend on the special form of the statutes in each state where such an enactment exists. §223. (b) Rights as to Surface Waters. — The rule of the civil law is that every owner of land has a right against his neighbors to have surface water (i. e., not in a fixed stream) flow according to the natural contour of the sur- face of the land. The upper proprietor has a servitude to let the rain and other surface waters pass naturally from his property upon the field of the lower owner ; and the latter has a reciprocal servitude against the former to insist that they shall continue to flow in that manner.^ But the common-law principle, in this regard, is that surface water is a common enemy, which every one may get rid of as best he can, provided he does not directly use it for the injury of his neighbor. The owner of the higher land may retain it on his property, or let it flow to the lower level ; and the lower proprietor may either receive it upon his land, or ward it off, by filling in and malting his land higher, or by means ofem- bankments or other obstructions.^ A few of the states of this country, such as Illinois, Iowa, Louisiana and Pennsylvania, have adopted the civil-law doctrine upon this matter ; ^ while, in England and the rest of the United States, the rule of the common law prevails.* The common-law right of every landowner to ward off and 1 Walker v. So. Pac. R. Co., 165 Exch. 602, 614; Walker v. So. Pac. TJ. S. 593, 602 ; Foley v. Godchaux, 48 E. Co., 165 U. S. 593, 602 ; Gould v. La. Ann. 466 ; La. Code, Art. 656 ; Booth, 66 N. Y. 62 ; Peck v. Good- Ehoads I!. DaTidheiser, 133 Pa, St. 226. berlett, 109 N. Y. 180; Bowlsby v. 2 Broadbent v. Ramsbotbam, 11 Speer, 31 N. J. L. 351 ; Cassidy v. Old Exch. 602, 614; Walker v. So. Pac. R. Colony R. Co., 141 Mass. 174; Byrne Co., 165 U. S 593, 602; Barkley w. k. Farmington, 64 Conn. 367 ; Schlieter Wilcox, 86 N. Y. 140 ; Peck v. Good- v. Phillipy, 67 Ind. 201 ; Chicago K. & N. berlett, 109 N. Y. 180 ; Bowlsby v. Speer, W. R. Co. v. Steck, 51 Kan. 737 ; 31 N. J. L. 351 ; Cassidy v. Old Colony Murphy v. Kelley, 68 Me. 521 ; Eowe v. R. Co., 141 Mass. 174 ; City of Franklin St. P. M. & M. R. Co., 41 Minn. 384 ; K. Durgee, 71 N. H. 186; Sanguinetti w. McCormick d. Kansas City, etc. R. Peck, 136 Cal. 466. Co., 70 Mo. 359 ; Beatrice v. Leary, 45 3 Peck V. Herrington, 109 lU. 611 ; Neb. 149 ; City of Franklin v. Durgee, Anderson o. Henderson, 124 111. 164; 71 N. H. 186; Wakefield v. Newell, 12 Livingston v. McDonald, 21 Iowa, 160 ; R. I. 75 ; Rice v. Norfolk, 130 N. C. 375 ; Preston u. Hull, 77 Iowa, 309; La. Code, Edwards v. Charlotte, etc. R. Co., 39 Art. 656 ; Foley v. Godchaux, 48 La. S. C. 472 ; Gross v. Lamposas, 74 Tex. Ann. 466 ; Miller v. Laiibach, 47 Pa. St. 195 ; Beard v. Murphy, 37 Vt. 99 ; San- 154 ; Rhoads v. Davidheiser, 133 Pa. St. guinetti v. Peck, 136 Cal. 466 ; Cass v. 226. Dicks, 14 Wash. 75 ; Lessard u. Stram, * Broadbent v. Bamsbotham, II 62 Wis. 112. 302 KINDS OP REAL PROPERTY. get rid of, in the best way he can, the surface water which he does not want on his property, is qualified by tlie require- ment that he shall not converge it into a stream and pour it in a flood upon the land of the adjoining proprietor. And a fortiori this same requirement is insisted on by the civil law. The lower land may be filled up, or obstructions may be erected, and thus the natural flow of the water reversed; but to do this in such a manner as to create an artificial channel or current upon the adjacent land would be to impose upon it an unnecessary burden.^ And, therefore, if a railroad com- pany, in the construction of its road, erect a long embankment, through an aperture in which it allows rain water to pour from the higher ground on one side upon the lower land on the other, it is liable in damages to the owner of the lower property for the resulting injury.^ And, when one constructs a ditch or drain, by the water from which he digs a cliannel upon his neighbor's land, he is thereby guilty of a legel wrong against such neighbor.^ § 224. (c) Rights as to Percolating and Subterranean Waters. — Resting on the maxim cujus est solum ejus est usque ad ccelum et ad orcum, is the well-established rule of both the civil and the common law that one may take, use, and dispose at will of the waters that are in or percolating through his soil and are not in any natural stream.* The water mixed in with one's soil, and not flowing regularly or definitely, is, while there, a part of his land ; and he has ordinarily the same do- minion over it that he has over the sand, clay, or loam of which his soil is more permanently composed. The decision which established this principle in England was Acton i;. Blundell;^ and the rule itself is often named from that case. It has been 1 Hurdman v. Nor. East. R. Co., L. R. 261, See Bowlsby v. Speer, 31 K J. L. 3 C. P. Div. 168; Walker v. So. Pac. 351, 353, per Beasley, J., cited in Walker R. Co., 165 U. S. 593, 602; McKee v. v. So. Pac. R. R. Co., 165 U. S. 593, D. & H. Canal Co., 125 N. Y. 353; 602. Kelly t. Dunning, 39 N. J. Eq. 482; * Acton w.Blundell, 12 M. &W. 324; Bates u. Westborough, 151 Mass. 174; Chasemore v. Richards, 2 H. & N. 168; Osten V. Jerome, 93 Mich. 196; Dayton Wilson v. New Bedford, 108 Mass. 261 ; V. Drainage Comm'rs, 128 111. 271; Bloodgood v. Ayers, 108 N. Y. 400; Rice V. Norfolk, 130 N. C. 375. Bliss v. Greeley, 45 N.Y. 671, 674 ; Roath 2 Illinois Cent. R. Co. v. Miller, 68 v. DriscoU, 20 Conn. 533 ; Halderaau v. Miss. 760 ; Kansas City M, & B. R. Bruckhart, 45 Pa. St. 514 ; BufEum v. Co. V. Lackey, 72 Miss. 881. Harris, 5 R. I. 243 ; Miller e. Black ' Deigleman v. N. Y. L. E. & W. Rock Spring Co., 99 Va. 747. R. Co., 12 N. Y. Supp. 83 ; Bedell v. » 12 M. & W. 324. Village of Sea Cliff, 18 N. Y. App. Div. IMPORTANT KINDS OP EASEMENTS AND SERVITUDES. 303 followed by many adjudications in that country ; and by none more fully than by several ■well-considered recent decisions.-' In the United States the same principle was recognized and settled as law, even before the decision of Acton v. Blundell.^ It is here held to include, not only water, but also percolating oil and natural gas.^ Where the owner of a tract of land sold to A the right to draw water from a spring on it, and then sold the land to B, and B dug a well twenty feet from the spring, which cut off A's supply of water from the spring, it was held that A was without remedy.* And, in a case in which A dug in his own land a well for the obtaining of natural gas, and exploded therein nitro-glycerine and thus drew away all the supply of gas from a similar well on B's adjacent property, it was decided tliat this was damnum absque injuria against B and gave him no cause of action.* While there is some conflict of opinions and decisions as to the effects of a malicious intent in so operating in or upon one's own land as to deprive one's neighbors of water, oil, or gas, which they could otherwise enjoy, some states holding that this must not be maliciously done,^ yet the view of a majority of the best courts, as declared in the recent and most fully considered cases, is well expressed in Bradford v. Pickles ^ by Lord Halsbury, L. C, who says : " This is not a case in which the state of mind of the person doing the act can affect the right to do it. If it was a lawful act, however ill the motive might be, he had a right to do it. If it was an unlawful act, however good his motive might be, he would have no right to do it. Motives and intentions in such a question as is now before 1 Broadbent v. Ramsbotham, U ^ people's Gas Co. d. Tyner, 131 Ind. Exch. 602; Rawstron v. Taylor, 11 277, 280. In this case, it is said: Exch. 369 ; Bradford i: Pickles (1895), " Water, oil, and still more strongly App. Cas. 587 ; Bradford u. Perrand gas, may be classed by themselves, if (1902), 2 Ch. 655. the analogy be not too strong, as min- " Greenleaf v. Prancis, 18 Pick. evaXs feros naturm. . . . They belong to (Mass.) 117; Chatfielti u. Wilson, 28 the owner of the land, and are a part Vt. 49, 54 ; Saddler v. Lee, 66 Ga. 45. of it, so long as they are on or in it, 8 Westmoreland Gas Co. v. DeWitt, and are subject to his control ; but when 130 Pa. St. 235 ; People's Gas Co. v. they escape and go into another's land Tyner, 131 Ind. 277 ; Wagner i'. Mai- or come under another's control, the lory, 169 N. Y. 501, 505. See Amster- title of the former owner is gone." dam Knitting Co. v. Dean, 1 62 N. Y. 278. ' Chesley v. King, 74 Me. 1 64 ; Roath * Bliss V. Greeley, 45 N. Y. 671,674; t>. DriscoU, 20 Conn 533 ; Haldeman v. Ballacorkish Mining Co. u. Harrison, Bruckhart, 45 Pa. St. 514 ; Redman v. 5 P. C. 49 ; Trout u. McDonald, 83 Pa. Forman, 83 Ky 214 ; Springfield Water St. 144 ; Coleman v. Chadwick, 80 Pa. Works f. Jenkins, 62 Mo App. 74. St. 81. 7 (1895), App. Caa. 587. 304 KINDS OP REAL PROPERTY. your lordships seem to me to be absolutely irrelevant. " And it was held in that case that the defendant might bore many large wells in his own land, and thus draw the supply of water from plaintiff's wells which had long been used to obtain water for the use of a town, although defendant's motive in so acting was evidently to compel the plaintiff, if possible, to purchase his laud at a high price, and although the defendant was pump- ing the water for the 'purpose of taking it away from hoth prop- erties and selling it as merchandise.^ The motive — the mental attitude whether benevolent or malevolent — of him who takes percolating water from his own land is, then, as a rule, quite immaterial. But it it now settled in New York that he is liable in damages to his neighbor, whom he injures by so taking it and leading it away from the land for the purpose of disposing of it as merchandise, and so preventing it from returning to the soil. It was so decided in Porbell V. City of New York,^ in which the defendant, by pumping large quantities of water from artesian wells in its own land and taking it by pipes to supply the Borough of Brooklyn with water, greatly decreased the fertility of lands of other owners near the wells. The Court of Appeals Says in that case : " In the absence of contract or enactment, what- ever it is reasonable for the owner to do with his sub-surface water, regard being had to the definite rights of others, he may do. He may make the most of it that he reasonably can. It is not unreasonable, so far as it is now apparent to us, that he should dig wells and take therefrom all the water that he needs in order to the fullest enjoyment and usefulness of his land as land, either for purposes of pleasure, abode, productiveness of soil, trade, manufacture, or for whatever else the land as land may serve. He may consume it, but must not discharge it to the injury of others. But to fit it up with wells and pumps of such pervasive and potential reach that from their base the defendant can tap the water stored in the plaintiff's land, and in all the region thereabout, and lead it to his own land, and by merchandising it prevent its return, is, however reasonable it may appear to the defendant and its customers, unreasona- ble as to the plaintiff and the others whose lands are thus clandestinely sapped, and their value impaired." The reason- 1 See also Phelps v. Nolen, 72 N. Y. v. Cronin, 107 Mass. 555, 564; 14 Alb. 39; Clinton v. Myers, 46 N. Y. 511; L. Jour. 61 ; Cooley, Torts, 688, 691. Chatfleld v. Wilson, 28 Vt. 49 ; "Walker ^ 164 N. Y. 522. IMPORTANT KINDS OP EASEMENTS AND SERVITUDES. 305 ing of this case and also that of Smith v. City of Brooklyn, which held the city liable for reducing the flow of a natural stream by pumping water in the same manner and for the same purpose, are affirmed in the later adjudication of Reisert v. City of New York.^ And, similarly, the Supreme Court of Minnesota has held that a landowner must not collect from his own land, and waste, percolating waters, which would otherwise be used for the benefit of the public.^ A landowner must not foul or poison the water percolating through his property, so as to render such water dangerous or deleterious in quality when it reaches the land of a neighboring owner.^ § 225. 6. Artificial Water Rights. — The water rights and their attendant obligations thus far discussed are chiefly nat- ural servitudes. The privileges and immunities are reciprocal. They do not present one tenement as wholly dominant, and the other as distinctly and only servient ; but they afford cases in which each of the neighboring owners has riglits incident to the natural location of their lauds. If the owner of two par- cels of land, through which a natural stream flows, sell one of them, neither he nor his purchaser will have the right to stop or divert the waters of the stream, against the will of the other.* And, if one of them should change it on his own land and thus keep it flowing for twenty years in a different channel over the other's property, and the latter sliould during that time use it in its new location for the running of a mill, neither could again change it without the consent of the other .^ Since they are dealing with a natural stream, their rights and duties re- main reciprocal. A broad and important distinction exists be- tween rights and burdens such as these and the easements which may exist in connection with artificial streams and bodies of water, created for temporary purposes, although the latter may have been enjoyed for more than twenty years. The rights which one man may have against another, in con- nection with artificial ponds or streams, are, then, common-law easements, as distinguished from mere natural servitudes. One landowner has the right and the other must endure the bur- 1174 N. Y. 196, 200. See § 222, Miller i>. Lapham, 44 Vt. 416; Hapgood supra. V. Brown, 102 Mass. 451. 2 Stillwater Water Co. v. Farmer, ^ Belknap v. Trimble, 3 Paige 93 N. W. Eep. 907. (N. Y.), 577, 605; Delaneyi-. Boston, 2 " Hodgkinsout'.Enner, 4B. &S.229. Harr. (Del.) 489, 491. * Tud. Lead. Cas. B. P. HI; see 20 306 KINDS OP REAL PROPERTY. den; and there is no corresponding privilege or advantage operating in the other direction.^ Thus, if one pump or other- wise draw subterranean waters from his own land, or gather the surface waters into streams, and after malting use of them for mining, manufacturing, or other purposes, cause them to flow in a current unto his neighbor's land, he will thus com- mit a trespass upon that land, unless he has acquired by grant or prescription the privilege of so dealing with the waters. When, however, he has obtained such privilege by one of those methods, there arises thereby no corresponding right, in favor of the lower proprietor, to have the flow of the water continued, no matter how beneficial it may have become to him. He is simply the servient tenant, who must endure the burden of the artificial stream without thereby acquiring for himself any special correlative rights.^ Easements in artificially produced streams or bodies of water are ordinary forms of that species of incorporeal hereditaments, and are governed by the laws of easements generally, heretofore discussed in full. They may be acquired by either of the forms of grant, or by prescription. One of the most familiar illustra- tions of them is the easement of drainage, created by implied grant upon the severance of an entire tract of land and sale of one piece, when one of the lots is enjoying the ease or accom- modation of being drained over or through the other.^ An- other instance is the right of eaves' drip, where a houseowner has acquired the right to let rain water flow from his roof upon his neighbor's lot.* And still another is the easement which one who is mining in his own land may have to get rid of the waste waters by letting them run over the lands of contiguous owners.* 1 There are a few rare cases, in Wash. Ease. (4th ed.) 418-427; Tud. which this is denied. Thus, where one Lead. Cas. R. P. 1 20. acquired a right to pour water in an 3 Simmons v. Cloonan, 47 N. T. 3 ; artificial channel upon a lower owner's Paine v. Chandler, 134 N. Y. 38.";; land, it was held, in two cases, that the "Wright i^. Williams, 1 M. & W. 77 ; latter had thereby gained a right on his White v. Chapin, 12 AUeu (Mass.), part to have the stream continue to flow. 516; Leidlein v. Meyer, 95 Mich. 586; Shepardson «. Perkins, 58 N. H. 354 ; § 139, supra. Reading r. Althouse, 93 Pa. St. 400. * Harvey v. Walters, 8 C. P. 162 ; And see Bowne o. Deacon, 32 N. J. Eq. Keats v. Hugo, 115 Mass. 204,216; 459- Griice M. E. Church y. Dobbins, 153 " Arkwright v. Gell, 5 M. & W. 203 ; Pa. St. 294 ; Rose v. Bunn, 21 N. Y. 275 ; Wood V. Wand, 3 Exch. 748; Greatrex Neale v. Seeley, 47 Barb. (N. Y.) 314. V. Hayward, 8 Exch. 291 ; Mayor v. 6 Arkwright k. Gell, 5 M. &W. 203; Chadwick, 11 Adol. & El. 571 ; Samp- Pa. Coal Co. .,. Sanderson, 113 Pa. St. son V. Hoddinott, 1 C. B. n. b. 590; 126. CHAPTER XIII. (4) PROFIT 1 PRENDRE. § 226. Definition and illustra- tionis. § 227. Profit a prendre in gross, or as appurtenant to land. § 228. How a profit a prendre may be acquired. § 229. Kinds of projit a prendre. § 230. §231. country. § 232. §233. § 2.34. mines. Mining rights. Mining laws of this (a) Discovery of mines. (b) Location of mines. (c) Annual labor c § 226. Definition and Illustrations. — A profit a prendre is a right to take something of value from the land of another. It is an incorporeal hereditament, since it is a mere right ; and it differs from an easement, as was above pointed out, in the fact that the latter, which is also a mere right, does not authorize the taking of anything valuable from the servient tenement. The right to reach a highway from my land, by driving with my horse and carriage across" the land of my neighbor, is an easement. The right to let my horse pasture on my neigh- bor's field, and thus to take something from it, is a profit a prendre} The term servitude, in its civil-law sense and as ordinarily employed, includes both easement and profit a pren- dre. The latter is that special form of servitude, or right in alieno solo, which authorizes the taking of some part of an- other's soil or its contents, or some of its valuable products.^ Other illustrations of it are the right to take marl, loam, peat, gravel, coal, or other minerals ; ^ the privilege of fishing and 1 Rose V. Bann, 21 N. Y. 275 ; Smith 0. Floyd, 18 Barb. (N. Y.) 522 ; Living- stou V. Ten Broeck, 16 Johns. (N. Y.) 14; Van Rensselaer u. Radcliff, 10 Wend. (N. Y. ) 639 ; Worcester v. Green, 2 Pick. (Mass.) 425, 429. " Some authorities, however, define the word easement in a sense broad enough to include profit a prendre. Post V. Pearsall, 22 Wend. (N. Y.) 425 ; Owen V. Field, 102 Mass. 90, 103; Ritger v. Parker, 8 Cush. (Mass.) 145; Huff o. McCauley, 53 Pa. St. 206, 209. ' Manning v. Wasdale, 5 Adol. & El. 758 ; Chetham v. Williamson, 4 East, 469 ; Grubb v. Grubb, 74 Pa. St. 25 ; Worcester o. Green, 2 Pick. (Mass.) 425, 429. 308 KINDS OF EEAL PROPERTY. taking away the fish caught,^ or of shooting and talving away game;^ the right to cut and remove wood, and the authority to gather and appropriate the seaweed from the shore of an- other's land.^ But, since water in its natural conditions is so movable and wandering a thing, it is not treated in this con- nection as a part of the land or its products ; and an established right, which one man may have to take from the land of an- other either surface water or water percolating or flowing in a natural stream, is usually an easement or form of servitude that is not a p7-ofit a prendre.^ § 227. Profit k Prendre, in Gross or as an Appurtenance to Land. — This form of incorporeal hereditament may be, and frequently is, owned in connection with land (as a dominant estate) and as an appurtenance to the same ; or it may bo owned as a right in gross. It is probably most commonly found in the latter form. When it is an appurtenance to a dominant estate, it readily passes with a conveyance of the land ; and it can not ordinarily be used for any purpose, other than for the benefit or convenience of such land. It carries with it practically all the incidents of a common-law easement, with the addition of the right to take something from the ser- vient estate.^ 1 Peers v. Lucy, 4 Mod. 354, 366; v. Saleme, 15 Oreg. 208; Tinicnm Fish- Turner V. Hebron, 61 Conn. 175 ; Hooker ing Co. v. Carter, 61 Pa. St. 21, 37. V. Cummings, 20 Johnii. (N. Y.) 90; ^ Hill i;. Lord, 48 Me. S3 ; Emans u. Baylor v. Decker, 133 Pa. St. 168. Tlie TurnbuU, 2 Johns. (N. Y.) 314; Sale v. right to fish in navigable waters is com- Pratt, 19 Pick. (Mass.) 191; Church raon to all, unless some exclusive privi- v. Meeker, 34 Conn. 421. See St. Regis lege or franchise has been obtained by Paper Co. v. Santa Clara Lumber Co., grant or prescription. Carter n. Murcot, 173 N. Y. 149, 162. 4 Burr. 2162 ; Hooker v. Cummings, 20 ^ Manuiug v. Wa.sdale, 5 Adol. & El. Johns. (N. Y.) 90; "Weston v. Sampson, 758, 763; Wickham v. Hawker, 7 M. & 8 Cush. (Mass.)347; Chalker u. Dickiu- "W. 63; Borst o. Empie, 5 N. Y. 33; son, 1 Conn. 382; Phipps v. State, 22 Goodrich!;. Burbank, 12 Allen (Mass.), Md. 380. The right to fish in non- 459, 461; Hill v. Lord, 48 Me. 83; navigable waters belongs prima yaci'e to Spensley c. Valentine, 34 Wis. 154. the owner of the land under the water. But the right to take water from a But, if one own the water distinct from closed and retaining receptacle, suclr as the land beneath it, the right of taking a cistern, may be treated as a profit the fish is his, rather than the property a prendre. Hill v. Lord, 48 Me. 83, 99. of the owner of the l^nd. Turner v. 5 Douglass u. Kendal, Cro. Jac. 256; Hebron, 61 Conn. 175; Waters w.Lilley, Bailey v. Stephens, 12 C. B. N. s. 91, 4 Pick. (Mass.) 145; Hooker u. Cum- 109; Huntington v. Asher, 96 N. Y. mings, 20 Johns. (N. Y.) 90. 604 ; Taylor v. Millard, 118 N. Y. 244; 2 Wickham v. Hawker, 7 M. & W. Post d. Pearsall, 22 Wend. (N. Y.)425; 63; Year Uook, 12 Hen. VII. 25 ; Year Grubb v. Grubb, 74 Pa. St. 25, 33. Book, 13 Hen. VIL 13, pi. 2. Bingham PROFIT A. PEENDEE. 309 When on the otlier hand a. profit d prendre is in gross, it is a personal privilege which does not pass with the transfer of any land, but is in the nature of an individual interest or ownership in the land in which the right exists.^ As was explained above, an easement in gross is treated, in most jurisdictions, as a spe- cial, individual privilege, which belongs to the grantee alone and can not be assigned or transferred to another.''' But a profit a prendre in gross is a distinct, independent object of ownership, which is in its nature assignable, devisable, and in- heritable.^ If, for example, A, as an individual and not as the owner of any land, have the right to dig and take coal from the land of B, he does not thereby own any of the coal before he has dug it, but he has an incorporeal right to which attaches all the ordinary incidents of real-property ownership. § 228. How a Profit k Prendre may be acquired. — A profit d prendre may be brought into existence by any of the methods by which common-law easements may be acquired ; i. e., by ex- press grant, reservation in a deed of the servient land (which is in reality a form of express grant), implied grant, and pre- scription.* Such a right may also be dedicated or created by operation of law ; but it never exists by nature, nor arises by custom.^ When gained by prescription, it is most commonly, though not necessarily, not a right in gross, but an incident to land as a dominant estate ; ^ but, when acquired by any of the other methods, it is most frequently a profit d prendre in gross. § 229. Kinds of Profit k Prendre. — In discussing under the term " common " the chief forms of profit d prendre as they existed when he wrote, Blackstone says : ^ " And hence common is chiefly of four sorts ; common of pasture, of piscary, of turbary, and of estorers. ■■ Pierce D. Keator, 70 N. T. 419. ^ Gateward's Case, 6 Coke, 59 b 2 § 127, supra. Grimstead v. Marlowe, 4 T. R. 717 8 Palmer's Case, 5 Coke, 24 b; Wick- Post v. Pearsall, 22 Wend. (N. Y.) 425 ham V. Hawker, 7 M. & W. 63; Post v. Waters v. Lilley, 4 Pick. (Mass.) 145 Pearsall, 22 Wend. (N. Y.) 425, 432; Perley u. Langiey, 7 N. H. 233; Moor Taylor v. Millard, 118 N. Y. 244 ; Good- v. Gary, 42 Me. 29 ; Cobb v. Davenport, rich V. Burbank, 12 Allen (Mass.), 459, 33 N. J. L. 223. 461 ; Hill V. Lord, 48 Me. 83, 96. Tini- « Merwin v. Wheeler, 41 Conn. 14 ; cum Fishing Co. v. Carter, 61 Pa. St. Littleiield v. Maxwell, 31 Me. 134; 21, 39; Cadwalader v. Bailey, 17 R. I. Waters u. Lilley, 4 Pick. (Mass.) 145; 495, 500. Hinckel o. Stevens, 35 N. Y. App. * Merwin u. Wheeler, 41 Conn. 14, Div. 5. 25; Waters v. Lilley, 4 Pick. (Mass.) ' 2 Blackst. Com. pp. *32-*35. 145; Littlefieldi!. Maxwell, 31 Me. 134. 310 KINDS OP REAL PROPERTY. " 1. Common of pasture is a right of feeding one's beasts on anotlier's land : for in those waste grounds, which are usu- ally called commons, the property of the soil is generally in the lord of the manor ; as in common fields it is in the par- ticular tenants. This kind of common is either appendant, appurtenant, because of vicinage, or in gross. Common af- pendant is a right belonging to the owners or occupiers of arable land, to put commonable beasts upon the lord's waste, and upon the lands of other persons within the same manor. Commonable beasts are either beasts of the plough, or such as manure the gi'ound. . . . Common appurtenant arlseth from no connection of tenure, nor from any absolute necessity : but may be annexed to lands in other lordships, or extend to other beasts, besides such as are generally commonable ; as hogs, goats, or the like, which neither plough nor manure the ground. . . . Common because of vicinage, or neighborhood, is where the inhabitants of two townships, which lie contiguous to each other, have usually intercommoned with one another ; the beasts of the one straying mutually into the other's fields, without any molestation from either. . . . Common in gross, or at large, is such as is neither appendant nor appurtenant to land, but is annexed to a man's person ; being granted to him and his heirs by deed ; or it may be claimed by prescriptive right, as by a parson of a church, or the like corporation sole. This is a separate inheritance, entirely distinct from any landed property, and may be vested in one who has not a foot of ground in the manor. . . . " 2, 3. Common of piscary is a liberty of fishing in another man's water ; as common of turbary is a liberty of digging turf upon another's ground. There is also a common of digging for coals, minerals, stones, and the like. All these bear a resem- blance to common of pasture in many respects: though in one point they go much further; common of pasture being only a right of feeding on the herbage and vesture of the soil, which renews annually ; but common of turbary, and those aforemen- tioned, are a right of carrying away the very soil itself. " 4. Common of estovers or estouviers, that is, necessaries (from estoffer, to furnish), is a liberty of taking necessary wood, for the use of furniture or a house or farm, from off another's estate. The Saxon word, bote, is used by us as synonymous to the French estovers : and therefore house-bote is a sufficient allowance of wood, to repair, or to burn in, the PROFIT 1 PRENDRE. 311 house : which latter is sometimes called fire-bote : plough-bote and cart-bote are wood to be employed in making and repair- ing all instruments of husbandry ; and hay-bote, or hedge- bote, is wood for repairing of hay, hedges, or fences. These botes or estovers must be reasonable ones ; and such any ten- ant or lessee may take off the land let or devised to him, with- out waiting for any leave, assignment, or appointment of the lessor, unless he be restricted by special covenant to the contrary." " Of all these rights," says Digby, " by far the most impor- tant is the right of common of pasture." ^ But here the form of profit a prendre which Mr. Blackstone refers to in the words, " There is also a common of digging for coals, min- erals, stones, and the like," is that which needs special dis- cussion, as dealing with the important mining interests of this country. § 230. Mlaing Rights and Ownerships, in General. — Since the substances of which the earth is composed may be owned in layers, or strata, by different people, so that the property of one in its natural position may be vertically above that of an- other,^ it is often a difficult question whether the sale and con- veyance of a so-called mining right gives to the grantee the title to one of these strata — a corporeal hereditament — or only an incorporeal right to take minerals from the land of the grantor. When it is the latter, the grantee acquires simply a profit d prendre ; he does not own any of the coals or other minerals in their natural place in the ground, before he has dug and removed them ; and, when he has taken them by virtue of his right to do so, they are not realty, but personal property in his hands — t\\Q prooeeda of his profit a prendre;^ whereas, if by the contract he obtain title to a stratum 1 Digby, Hist. Law E. P. (5th ed.) or uncultivated land it3elf,which was still p. 192. Mr. Digby shows how the un- usually called common land, as if the cultivated land of the township, from commoners had rights of property in being the common property of all the common over the soil itself, instead of townsfolk, came, in the process of having simply rights tn a//eno so/o." See growth of manors, to be "regarded as also 1 Poll. & Mait. Hist. Eng. L. (2d the sole property of the lord of the manor ed. ) pp. 620-622 ; Williams, Eights of and was called the lord's waste, and the Common, 37 et seq. old customary rights of the villagers ^ § 209, supra. came, as notions of strict legal rights of ' Shep. Touchst. 96 ; Caldwell v. property were more exactly defined, to be Fulton, 31 Pa. St. 475, 478 ; Hanley v. regarded as rights of user on the lord's Wood, 2 Barn. & Aid. 724. See Vogel Boil — asjura inrealiena. Still thename u. Webber, 159 Pa. St. 235. remained, and attached ... to the waste 312 KINDS OP REAL PEOPERTT. of soil, he at once owns the minerals in it, as corporeal real property, while they are in their natural location in the ground.^ The solution of the question usually turns on the language of the instrument employed, the guiding principle of construction being that, if the words used import an exclu- sive right to take all the coal or other minerals in certain described land, it is a conveyance of the minerals themselves as corporeal real property in place, but otherwise it is merely a grant of an incorporeal hereditament — a profit a prendre in the form of a privilege of taking minerals from another's land.^ Thus, in Huntington and Mountjoy's Case, the grant was of a right to dig ore in the waste of a manor and to take turfs there sufficient to make alum and copperas ; and it was held to convey only an incorporeal hereditament.^ But, where the transfer was of the right to dig coal under the grantor's land, " to any extent," it conveyed the ownership of the coal before it was mined.* And a like result followed where the deed con- veyed the exclusive right to search for, dig, and carry away the iron ore and limestone in a certain described parcel of land.^ In accordance with the rule that a deed between individuals is to be construed most strongly against the grantor, the later cases, especially in this country, have tended to resolve close questions of this character in favor of the grantee and decide that the ownership of the unmined or unquarried minerals or other substances passes to him.^ Such corporeal property is susceptible of subdivision of its ownership; but a profit d prendre in minerals — the mere right to take them from the laud of another, and then own them as personal property — is at common law an entire, indivisible thing, and an attempt by its owner to convey only a part of it extinguishes it alto- gether.'' Some of the most important principles of these forms of profit a prendre, as mining rights in the United States, re- quire a further brief discussion. 1 Caldwell v. Fulton, 31 Pa. St. 475, ^ Stockbridge Iron Co. v. Hudson 478. Iron Co., 107 Mass. 290. 2 Shep. Touchst. 96 ; Hanley v. ^ Ibid. ; East Jersey Iron Co. «. Wood, 2 Barn. & Aid. 724 ; Caldwell v. Wright, 32 N. J. Eq. 248 ; Clement Fulton, 31 Pa. 47.5, 478 ; Clement u. „. Youugmau, 40 Pa. St. 341 ; Grubb Youngman, 40 Pa. St. 341 ; Stockbridge v. B.iyard, 2 Wall. Jr. (U.S. Cir. Ct.) Iron Co. V. Hudson Iron Co., 107 Mass. 81 ; Baiubridge on Mines, etc., 254, 255 290; Silsby u. Trotter, 29 N. J. Eq. 228. (4th ed.), 369. " Godbolt, 17. ' Huntington and Mountjoy's Case, ' Caldwell v. Fulton, 31 Pa. St. 475, Godb. 17 ; Van Rensselaer v. Eadcliff, 478. 10 Wend. (N. Y.) 639; Caldwell v. Fulton, 31 Pa. St. 475, 478. PROFIT k PRENDEB. 313 § 231. Mining Laws of this Country. — By the common law of England, all mines of gold and silver belong to the crown, as an incident or flower of the royal prerogative.' In New York, the people, as successors to the rights of the king of Great Britain, became the owners of such mines ; (a) and it may (ra) The New York statutes upon this topic have always been similar to those of England. See stat. Feb. 6, 1789 ; Sess. L. 12, ch. 18; R. S. pt. 1, ch. 9, tit. 11. They are now found in L. 1894, ch. 317, Ai-t. VI., as amended by L. 1894, ch. 745, and L. 1902, ch. 503. They declare that, " The fol- lowing mines are the property of the people of this state in their right of sovereignty : 1. All mines of gold and silver discovered, or hereafter to be discovered, within this state. 2. All mines of other metals, and of talc, mica or graphite, discovered, or hereafter to be discovered, upon any lands owned by persons not being citizens of the United States. 3. All mines of other metals, and of talc, mica or graphite, discovered, or hereafter to be discovered, upon lands owned by a citizen of the United States, the ore of which, on an average, shall contain less than two equal third parts in value of copper, tin, iron and lead, or any of those metals. 4. All mines and all minerals and fossils discovered, or hereafter to be discovered, upon any lands belonging to the people of this state. But all mines, of whatever description, other than mines of gold and silver, discovered upon any lands owned by a citizen of any of the United States, the ore of which upon an average, shall contain two equal third parts or more in value of copper, tin, iron and lead, or any of those metals, shall belong to the owner of such land." The act authorizes any citizen of the state, who discovers a valuable mine upon the state's land, to work the same for twenty-one years, after giving the proper notice to the Secretary of State, and upon paying a royalty to the state of two per cent of the value of the products when ready for market. It also provides for corporations to be foimed for mining purposes and to exercise the right of eminent domain in connection therewith ; and 1 Co. Lit. 4a; I Inst. 4 a; 2 Inst. or iron, the whole belonged to the crown, 572; Case of Mines, Plowd. 313. In because the nobler metal attracted to it the noted case last cited it was said : the less valuable ; and, since the king " The common law, which is founded could not hold property jointly with a upon reason, appropriates everything subject, he therefore took the whole, to the person whom it best suits ; as This latter doctrine, to which a minority common and trivial things to the com- of the judges including Plowden himself mon people ; things of more worth to dissented, was corrected by the statutes persons of a higher and superior class, 1 Wm. & Mary, ch. 30, and 5 "Wm. & and things most excellent to the person Mary, ch. 6, which, however, allowed the who excels all others : and because gold king to take the proceeds of such mines and silver are the most excellent things provided he reimbursed the landowner which the soil contains, the law has ap- at specified rates. Lord Coke says that pointed them, as in reason it ought, to the crown has no right, by virtue of its the person most excellent, and that is prerogative, to any other metals than the King." In that case, also, it was de- gold and silver, for those are the only cided, by a majority of the twelve judges, metals required for the coining of money tliat, if any admixture of gold or silver for the use of the subjects. 2 Inst. 577, were found in mines of copper, tin, lead^ 578. 314 KINDS OP REAL PROPERTY. be safely assumed, in the absence of controlling statutes in any state, that mines of gold and silver are the property of the state in its sovereign capacity.^ Tlie United States government, however, is the owner of mines of those metals, as well as of all other mines, in its own lands, even though such lands be within the boundaries of one or more of the states. The right to take minerals from this public domain is now fully regulated by the United States statutes, passed May 10, 1872.^ And the result of operating under those enactments is that the miner, be- fore obtaining a complete title to the land itself (which he is authorized to go on and do if he wish, but which in many if not most cases he does not do), has a so-called mining claim, which in its legal analysis consists of di, profit a prendre, including the right to exclusive possession and enjoyment of all the surface embraced within the lines of the land located by him as his claim.8 But, long before there was any national legislation on this subject, systems of local mming regulations, growing out of the necessities of the miners, had been established in the states and territories of the Rocky Mountains and the Pacific Slope, where discoveries of rich mineral deposits had brought together large bodies of prospectors. At a meeting of the miners themselves called for that purpose, the district rules and regulations were framed to fit the needs of each particular locality ; and these soon became recognized as a part of the law of the community for which they were made.* They were first it providea that property shall not be interfered with for this purpose, un- less so taken, or except by written consent of the owner, or of the commis- sioners of the laud office when the land belongs to the state. As to the rights in general of grantees of mining privileges, see Marvin v. Brewster Co., 55 N. Y. 538. 1 In most of the charters from the homa, and Wisconsin. U. S. R. S. British crown to the colonies, "all § 2345; 19 Stat. L. 529; 22 Stat. L. mines " were expressly included. In 487 ; 26 Stat. L. 1026. some of them, as in those of New Eng- ^ Manuel v. Wulff, 152 U. S. 505 ; land, there was a reservation of a fifth, Sullivan v. I. S. M. Co., 143 U. S. 431 ; or a fourth, of the gold and silver ore ; Noyes v. Mantle, 127 XJ. S. 348 ; Gwil- and, subject to this reservation, mines lim v. Donnellau, 115 U. S. 45; Belk were leased hy the colonial governors v. Meaglier, 104 U. S. 279; Forbes ». to those who discovered them. 3 Dane, Gracey, 94 U. S. 762. Abr. 137 ; 2 Wash. R. P. 5th ed. p. 407 * " The land department of the gov- (6th ed. § 1318), p. *87. ernment, and this court also, have al- 2 U. S. R. S. §§ 2318-2346 ; 23 Stat. ways acted upon the rule that all L. 24; 26 Stat. L. 321, 1095, But from mineral locations were to be governed the operation of these statutes are ex- by the local rules and customs in force pressly exempted Alabama, Kansas, at the time of the location, when such Missouri, Minnesota, Michigau, Okla- location was made prior to the passage PROFIT k PRENDRE. 315 developed in California ; and its system, which was itself largely borrowed from the Spanish law, furnished the model upon which the systems of other sections were chiefly based.^ In most of the states and territories, moreover, in which these public lands are situated, there are special legislative enactments, affecting to some extent their mining rights and interests. So that, in many mining districts, there are the provisions of the statutes of the United States, which as far as they go are paramount, the state or territorial legislation, which is second in order of authority, and the local rules and regu- lations enacted by the miners themselves, which are valid in so far as they are reasonable and do not conflict with the laws of congress, or of the state or territory .^ Many mining district organizations, with their special codes of rules, were in exist- ence at the time of the enactment of the national mining law of May 10, 1872, and that law expressly recognized them and authorized their continuance.^ The Federal law and the special miner's regulations apply only to operations for minerals on the public lands of the United States.* The ordinary rules of the common law and the statutes of the respective states and territories define and ascertain the rights and duties of the proprietors of mineral lands which belong to individuals or corporations as private property.^ Under the United States statutes, the right beyond the acquisition of which most miners do not go is that of exclusive possession and a profit d prendre to take and appropriate the minerals. In acquiring these, the steps are : (a) discovery, (b) location, and (c) the performance of annual labor, commonly called " assessment work." If he desire to acquire complete title to the land itself, the claimant may make entry and pur- chase of it and then procure a patent from the United States. But there is no requirement that he shall take this last step.^ A few words as to each of these steps will suffice. of any mineral law by congress." s u. S. R. S. § 2324; Min. Man. Glacier Mt. S. M. Co. v. Willis, 127 Clark, Heltman & Consaul, p. 19. U. S. 471. See Miner's Manual, by * U. S. R. S. § 2319; Henshaw v. Clark, Heltman & Consaul, pp. 18, 19; Clark, 14 Cal. 460, 464. Morrison's Mining Rights, pp. 1-9. ^ Henshaw v. Clark, 14 Cal. 460, 1 Henshaw W.Clark, 14 Cal. 460, 464; 464; 2 Wash. E. P. (6th ed. § 1319) Desloge v. Pearce, 38 Mo. 588. p. * 87. 2 North Noonday M. Co. v. Orient 6 u. S. R. S. §§ 2318-2346; Min. M. Co., 1 Fed. Rep. 522 ; Forbes v. Man. Clark, Heltman & Consaul, p. 14. Gracey, 94 U. S. 762 ; Upton v. Larkin, For summary of state requirements, 7 Mont. 449; Territory v. Lee, 2 Mont. see Morrison's Mining Rights (9th ed.), 124 ; Rosenthal v. Ires, 2 Idaho, 244. pp. 64-69. 316 KINDS OF REAL PROPERTY. § 232. (a) Discovery of Mines. — The statute of the United States requires that, before the location of a mining claim, a discovery of valuable minerals in the land shall be made.^ Many of the state and territorial enactments require the discoverer to sink a discovery shaft to indicate generally where his claim is to be located. And, if there be no posi- tive requirement by statute, he must then proceed within a reasonable time to complete the location.^ As a matter of practice, though the statutes are silent regarding it, the pro- spector should indicate his discovery by erecting a stake, or other convenient article, and posting a notice upon it, briefly describing his claim, demanding the time, if any, allowed by the state statute or the local mining rule for perfecting the location, and stating his name and the date.^ § 233. (b) Location of Mines. — There are two distinct species of mines, with the location and claiming of which the statutes deal. One of these is the ordinary lode mine. A lode, in the geological sense, is " a fissure in the earth's crust, an opening in its rocks and strata made by some force of nature, in which the mineral is deposited ; " but, as used by the acts of congress, the term " is applicable to any zone or belt of mineralized rock lying within boundaries clearly separat- ing it from the neighboring rock." * Tlie other form is 1 Jackson v. Roby, 109 TJ. S. 440 Jupiter M. Co. v. Bodie Const. M. Co. 11 Fed. Rep. 666; Toulumne C. M. Co. c. Maier, 134 Cal. 583 ; Bryan v. McCaig 10 Col. 309. " All valuable mineral de- posits in lauds belonging to the United States, both surveyed and unsurveyed, are hereby declared to be free and open to exploration and purchase, and the lands in which they are found to occu- pation and purchase, by citizens of the United States and those who have de- clared their intention to become such, under regulations prescribed by law, and according to the local customs or rules of miners in the several mining districts, so far as the same are appli- cable and not inconsistent with the laws of the United States." U. S. R. S. § 2319. Tlie miner has a right, under tliis statute, to enter and prospect on public land of the United States, even though it is claimed by another as agri- cultural property, provided the final agricultural entry has not been made and he does not interfere with it for legitimate agricultural purposes nor damage the improvements of such other claimant. Lentz v. Victor, 17 Cal. 271; Clarlc v. Duval, 15 Cal. 85; McClintock v. Bryden, 5 Cal, 97; At- wood V. Fricot, 17 Cal. 37, 43. 2 Electro-Magnetic Co. v. Van Auken, 11 Pac. Rep. 80; Erhardt c;. Boaro, 113 U. S. 527; Patterson v. Hitchcock, 3 Col. 533 ; Murley v. Ennis, 2 Col. 300 ; Gleeson v. Martin White M. Co., 13 Nev. 442. 2 Min. Man. Clark, Heltman & Con- saul, p. 27, q. v. This little book con- tains much practical and easily accessible information for miners. « I. S. M. Co. V. Cheesman, 116 U.S. 529 ; North Noonday M. Co. v. Orient M. Co., 1 Fed. Rep. 522 ; Buffalo Z. & C. Co. V. Crump, 70 Ark. 525 ; Bainbridge on Mines, p. 2. PROFIT A. PRENDRE. 317 the placer mine. By the term placer claim is meant " ground within defined boundaries which contains mineral in its earth, sand, or gravel ; ground that includes valuable de- posits not in place, that is, not fixed in rock but which are in a loose state, and may in some cases be collected by washing or amalgamation without milling ; " such as " superficial de- posits which occupy the beds of ancient rivers or valleys ; " also "deposits of valuable mineral, found in particles in alluvium or diluvium, or in the beds of streams." i When it is a lode (or vein) claim, the United States statutes permit each claimant to complete his location, when he is not limited by any prior, adverse rights, by staking off, or otherwise plainly marking out, a tract fifteen hundred feet long by six hundred feet wide.^ Any markings upon the ground claimed, by which the boundaries may be readily traced, are sufficient.^ Each locator of a placer claim is restricted, by the United States statutes, to a plot of land not exceeding twenty acres in area, with the qualification that an association may locate twenty acres for each individual therein and that the maximum area of any one location shall be one hundred and sixty acres ; and it is required that the lines of any placer claim shall correspond, as nearly as possible with the lines of tiie official government surveys, by which its public lands are laid out into townships and sections ; * and it is sufficiently definite to indicate the claim by describing it as some legal subdivision of such a section. In other respects (and, when the placer mine is not on land already surveyed, practically in all respects), the re- quirements as to locating both species of mines are the same.^ In locating either form of mine, a designation of more ground than is allowed by law is void only as to the excess.® § 234. (c) Annual Labor on Mines. — The United States statutes further provide that, on each claim located after May 1 United States v. I. S. M. Co., 128 510; Union M. & M. Co. d. Leitch, 24 U. S. 673 ; Reynolds v. I. S. M. Co., 116 Wash. 58.5 ; Min. Man. Clark, Heltman U. S.'687; Moxon B. Wilkinson, 2 Mont. & Consatil, p. 28. Summary of states' 421 ; Min. Man. Clark, Heltman & Con- requirements, Morrison's Mining Rights saul, p. 33. (9th ed.), pp. 64-69. 2 U. S. R. S. § 2320. 4 U. S. R. S. §§ 2329-2331. ' Jupiter M. Co. v. Bodie Const. M. ^ See McKinley Creek M. Co. ». Co., 11 Fed. Eep. 666; North Noonday Alaska U. M. Co., 183 U. S. 563; M. Co. V. Orient M. Co., 1 Fed. Rep. Crane's Gulch M. Co. v. Scherrer, 134 522; Walsh v. Erwin, 115 Fed. Rep. Cal. 3.50. 531; Warnock .;. DeWitt, 11 Utah, e Min. Man. Clark, Heltman & Con- 324; Emerson v. McWhirter, 133 Cal. saul, pp. 33-37, and cases cited. 318 KINDS OF REAL PROPERTY. 10, 1872, not less than cue hundred dollars' worth of labor shall be performed, or improvements made, during each year; and, on all claims located before that time, ten dollars' worth per year for each one hundred feet in length along the yein.^ Failure to perform such labor, or make such improvements, does not ^er se cause a forfeiture of the claim. But it makes it subject to relocation by others, if work be not resumed ; and, if such relocation be made, forfeiture of the mining rights of the former claimant then results. The construction of the statute, in this respect, is that the rights of one locator are not divested by his failure to comply with this requirement of the act, unless there is some other locator for whose bene- fit the forfeiture occurs.^ The statute also authorizes the record of the locator's claim and interest, but does not require it for the preservation of his rights.^ It requires the locator to be a citizen of the United States, or one who has duly declared his intention to become a citizen, and outlines in detail the manner of establishing citi- zenship.* When he has complied with all the requirements of the statute, and with the state and local laws and rules whose more minute provisions may be superadded, the locator of a min- ing claim has a profit d prendre in the privilege, and the exclu- sive right to the possession of the land. These rights combined, which constitute his claim, afford him more of the ordinary incidents of property than does the mere common-law privilege of taking minerals from the land of another, in that his mining claim is alienable, inheritable, devisable, and may be reached and taken from him by an execution. The title to the land remains in the United States, unless he takes the further steps which bring him a patent ; but his right and interest constitute " property in the fullest sense of the word," and have incident 1 U. S. R. S. § 2324. See Morrison's Elkhorn M. Co., 153 TJ. S. 445 ; Wright Mining Riglits (9th ed.), pp. 72-87. t,. Killiam, 132 Cal. 56. 2 Belle V. Meagher, 104 U. S. 279 ; s Buffalo Z. & C. Co. v. Crump, 70 Calhoun Gold M. Co. v. Ajax Gold M. Ark. 525 ; Payton v. Burns, 41 Oreg. Co., 182 U. S. 499; Clipper M. Co. v. 430. Eli M. & L. Co., 29 Col. 377; North * U. S. R. S. §§ 2319, 2324; Min. Noonday M. Co. v. Orient M. Co., 1 Fed. Man. Clark, Heltman & Consaul, pp. Rep. 522 ; Jupiter M- Co. r. Bodie Const. 29-32. But the fact that the locator is M. Co., 11 Fed. Rep, 666; Pharis v. an alien makes his claim not void, but Muldoon, 75 Cal. 284 ; DuPrat v. only voidable ; and no one but the gov- James, 65 Cal. 555 ; McGinnis «. Eg- erument can successfully attack it on bert, 8 Col. 41 ; Lacey v. Woodward, that ground. McKinley Creek M. Co. 25 Pac. Rep. 785 ; Heischler v. McKen- v. Alaska U. M. Co., 183 U. S. 563. dricks, 16 Mont. 211. See Black i;. PROFIT 1 PRENDRK. 319 to them all the ordinary rights and duties of property owner- ship.^ Thus, he may sue in ejectment or trespass, for a viola- tion of his privileges,^ and his interest requires a deed for its transfer.^ His rights carry with them the fullest and most important instance of a profit a prendre in this country. If the locator go on and purchase the land itself in which the mine is located, the mining rights, of course, usually become extinguished or merged in the ownership of the corporeal property. ' Mannel v. Wulff, 152 U. S. 505; 2 Merced M. Co. v. Fremont, 7 Cal. Sullivan v. I. S. M. Co., 143 U. S. 431 ; 317, 326. Forbes u. Gracey, 94 U. S. 762 ; State » McOarron r. O'Connell, 7 Cal. 152. V. Moore, 12 Cal. 56, 71 ; McKeon v. But see Black v. Elkhorn M. Co., 153 Bisbee, 9 Cal. 137. U. S. 445. CHAPTER XIV. LICENSES. § 235. Definition and distinctions. § 236. Express and implied li- censes. § 237. Licenses naked, and cou- pled witli an interest. § 238. Licenses executed, execu- toiy, continuously or repeatedly executed. § 239. u. Licenses wholly execu- tory — Revocation. § 240. h. Licenses wholly exe- cuted — Irrevocable. § 241. c. Licenses continuously or repeatedly executed. § 242. (a) On licensor's land. § 243. (b) On licensee's land. § 244. How licenses may be re- voked. § 235. Definition and Distinctions. — It has been shown how each of the incorporeal hereditaments discussed in the pre- ceding chapters is a species of real property — an intangible interest, connected or associated with land or corporeal here- ditaments. A license, on the other hand, is not property at all. It is a mere privilege or permission, which confers no interest in the land over which it exists. It is simply an excuse or justification for doing upon or in connection with another's land something which would otherwise constitute a trespass. Hence the ordinary definition of a license, in this sense, is " an authority to do a particular act or series of acts upon another's land, without possessing any estate therein." ^ " This distinction," says Chancellor Kent, " between a privilege or easement, carrying an interest in land, and requiring a writing within the statute of frauds to support it, and a license which may be by parol, is quite subtle, and it becomes difficult in some of the cases to discern a substantial difference between 1 Bouvier's L. Diet. " License " ; 3 Kent's Com. p. *452; De Haro v. United States, 5 Wall. (U. S.) 599 ; Wolfe c. Frost, 4 Sand. Ch. (N. Y.) 72; Mumford o. Whitney, 15 Wend. (N. Y. ) 380. A license is generally created by parol, but occasionally arises by deed. But a privilege in land, when made in the latter way, is more com- monly an easement, an euforcible right. To be a license, it mast ordi- narily be so formed that while executory •it may be freely revoked at the option of the licensor. LICENSES. 321 them." ^ The difficulty is in the application of a legal distinc- tion which is in itself clear and unmistakable. An easement, a profit a prendre, or a servitude of any kind is an interest, a property right, owned and enforcible against the land. " A license properly passeth no interest, nor alters or transfers property in anything, but only makes an action lawful which without it had been unlawful." ^ An ownership of a right of way over another's field is an easement ; and an enforcible right to dig and take away coal from his mine is a profit d prendre : but an oral permission to hunt on the land of one's neighbor, or to prospect upon it for gold, which permission may be revoked at any time, is a license which while unrevoked justifies the act of prospecting or hunting. A license is a privi- lege which -is personal to the licensee and can not be assigned.^ Not being property, its discussion here is logically out of place. But it is, at first sight, so similar to easements and servitudes, that it is generally treated of in connection with them. And the demand for completeness requires a brief examination of it at this point. § 236. Express and Implied Licenses. — One classification of licenses is into express and implied. The character and opera- tion of the former kind depend, of course, upon the language employed in their creation. Implied licenses to go upon the property of others frequently arise from business or social re- lationships. People generally have a license to enter a post- office or other public building.'* Familiar intercourse between families may establish an implied permission for members of the one to pass over the lands of the other.^ " The publican, 1 3 Kent's Com. p. *452. v. Fisk, 6 Me. 200; Cowlea v. Kidder, 2 Thomas v. Sorrell, Vaughan's Eep. 24 N. H. 364 ; Nuunelly v. Southern 351. For further discussions of the Iron Co., 94 Tenn. 397 ; Thoemke o. nature of a license, see Greenwood Lake Fiedler, 91 Wis. 386. It has been said & Port Jervis R. Co. v. N. Y. & G. L. that a license may be made assignable R. Co., 134 N. Y. 435 ; Cronkhite v. by express permission, as where it was Cronkhite, 94 N. Y. 323 ; Mendenhall expressly declared by the parties that a V. Klinck, 51 N. Y. 246 ; Hodgkins u. license to mine might be transferred by Farrington, 150 Mass. 19; Batchelder deed. Muskett v. Hill, 5 Bing. N. C. V. Hibbard, 58 N". H. 269 ; Motes o. 694. But such a right appears to have Bates, 74 Ala. 374; Forbes v. Balen- sufficient permanency to become in seifer, 74 111. 183; Parish u. Kaspare, lealitj a, profit it prendre. 109 Ind. 586 ; Cook v. Chicago, B. & Q. * Sterling v. Warden, 51 N. H. 217, E. Co., 40 Iowa, 451, 455 ; Wheeler v. 231. West, 71 Cal. 126. 6 Martin v. Houghton, 45 Barb. 8 Princey. Case, 10 Conn. 375; Dark (N. Y.) 258; Adams «. Freeman, 12 r. Johnston, 55 Pa. St. 164 ; Menden- Johna. (N. Y.) 408. hall t. Klinck, 51 N. Y. 246; Emerson 21 322 KINDS OP EEAL PROPERTY. the miller, the broker, the banker, the wharfinger, the artisan, or any professional man whatever licenses the public to enter his place of business, in order to attract custom ; but when the business is discontinued the license is at an end." ^ So, if any- one sell personal property upon his land to another, he im- pliedly licenses the latter to enter and remove that which he has bought.^ § 237. Liceasea naked, and coupled writh an Interest. — An- other and distinct classification of licenses is into those that are naked, or " me,re licenses" and those that are coupled with an interest, that is, coupled with an ownership of some interest in the land or of something that is in or on the land. The importance of this distinction arises from the fact that the latter kind of license, whether it be executory or executed, is irrevocable by the licensor alone ; while the former kind may often be revoked merely at his option.^ The following and chief portion of this chapter is devoted to a discussion of tlie revocability of naked licenses. But it is to be here emphasized that any license is irrevocable, except with the concurrence of the licensee, when it is annexed to a valid ownership of prop- erty on the land in connection with which it exists.* And a familiar illustration of this general rule emerges when one sells personal chattels on his own land, and the purchaser thereby acquires an enforcible license to enter upon it and remove them within a reasonable time after the sale.^ § 238. Licenses ■wholly executory, wiiolly executed, and con- tinuously or repeatedly executed. — The most prominent and important classification commonly made of licenses is into ex- ecutory and executed. In connection with the forms of them, 1 Goweu V. Phila. Exch. Co., 5 "Watts Co. w. Durham & N. R. Co., 104 N. G. & S. (Pa.) 141, U3 ; Root v. The Com- 658. mouwealth, 98 Pa. St. 170; Kay v. Pa. * Ibid. R. Co., 65 Pa. St. 273. ^ Whitmarsh u. "Walker, 1 Met. 2 Wood V. Leadbitter, 13 M. & W. (Mass.) 313, 316; Nettletou v. Siker, 838, 856 ; Whitemarsh u. "Walker, 1 Met. 8 Met. (Mass.) 34; Hill v Hill, 113 (Mass.) 313,316; Parsons u. Camp, 11 Mass. 103; Parsons v. Camp, U Coun. Conn. 525. 525 ; Thomas v. Sorrell, Vaughau, 330, 8 "Wood V. Leadbitter, 13 M. & "W. 351 ; MarshaU v. Green, L. R. 1 C. P. 838, 856 ; Wood v. Manley, 1 1 Adol. & Div. 35. See "Williams v. Morris, 8 El. 34 ; Hunt v. Rousraanier, 8 Wheat. M. & W. 488 ; Town v. Hazen, 51 N. H. (U. S.) 174, 203 ; United States v. Bait. 596 ; Giles v. Simonds, 15 Gray ( JIass.), &0. R. Co., 1 Hughes (Ky.), 138; Met- 441; Pierrepont v. Barnard, 6 N. Y. calf V. Hart, 3 Wyo. 513 ; Kamphouse 279 ; Cool u. Peters B. & L. Co 87 V. Gaffner, 73 111. 453, 461 ; Miller v. Ind. 531. The State, 39 lud. 267 ; Ricbmoud R. LICENSES. 323 ■which thus emerge, arise the most difficult questions as to their revocability by the licensor alone.-'^ It is apparent, also, upon a moment's reflection, that, when licenses are considered from this standpoint, an intermediate class must exist in which the controversies have arisen when the licenses were partly exe- cuted and partly executory. An illustration of this class is presented by the above-cited leading case of Wood v. Lead- bitter,^ in which permission to cut down and take away a designated number of trees was sought to be revoked by the licensor after a portion of them had been severed from the stumps and were lying where they fell and the residue still remained standing. Another illustration would be an orally given privilege of erecting and living in a house upon another's land.^ It will be found to conduce to clearness of thought and exposition to consider such instances as these as a group by themselves, and, accordingly, to discuss the revocability of licenses, a, wholly executory, J, wholly executed, and, c, con- tinuously or repeatedly executed. § 239. a. Licenses vrholly Executory — Revocation. — A license is wholly executory as long as nothing of that which it authorizes has been done upon or affecting the land with refer- ence to which it was given.* A license to cut certain trees is executory while none of them has been cut; and a license to flow a designated piece of land is executory until, pursuant to such authority, water has been actually flowed upon that specific land. And this is true although the licensee may have performed much labor elsewhere and expended large sums of money in preparing to act on the license ; as if, for example, he has erected a dam on his own adjoining property, for the purpose of flowing the water back upon the land of the licensor.^ The law is thoroughly settled everywhere, that a license of this kind, — wholly executory, — whether it authorize the act or acts to be performed upon the land of the licensor or upon that of the licensee, may be revoked at the pleasure of the licensor, if the licensee has not expended money nor otherwise mate- ^ The licensee alone may, at any * Hill k. Hill, 113 Mass. 103 ; Dodge time, release or abandon his privilege. t. McClintock, 47 N. H. 383 ; Houston Dark v. Johnston, 55 Pa. St. 164. v. Laffee, 46 N. H. 505. 2 13 M. & W. 838. See note on * Thompson v. Gregory, 4 Johns, licenses, 49 Lawy. Rep. Ann. 497. (N. Y.) 81 ; Hazleton v. Putnam, 4 ^ Jamieson v. Millemann, 3 Duer Chand. (Wis.) 117; Carleton i^. Red- (N. Y.), 255; Jackson v. Babcock, 4 ington, 21 N. H. 291, 293; Woodward Johns. (N. Y.) 418; Prince u. Case, 10 o. Seeley, 11 lU. 157, 165. Conn. 375, 378. 324 KINDS OP REAL PROPERTY. rially changed his position upon the faith of such license ; i. e., if its abolition will leave the licensee in statu quo} And a large majority of the best courts go far beyond this, and hold that such a license is freely revocable by the licensor alone, although the other party may have paid value for it, or, in reliance upon it, may have expended large sums of money or in other ways substantially altered his position.^ In the states in which this view prevails, both the courts of law and those of equity sustain it, and refuse to fasten any liability upon the licensor for his act of revocation, on the clear, just principle that to hold otherwise would be, as was said in New York, to allow a mere parol license or oral privilege to create a valid easement or other incorporeal hereditament, thus not only in effect repealing the statute of frauds, but also abolishing the rule of the common law that such an interest in or over land can only be conveyed by a deed.^ In the New Jersey Court of Errors and Appeals, the true and forcible argument for the rule was stated by Chief Justice Beasley as follows : " If a parol license, inefficacious by force of the apt, should be ren- dered efBcacious by reason of a losing performance on the side of the licensee, it would be difficult to refuse, on a like ground, to apply a similar quality to a sale of goods equally within the statutory condemnation. . . . The fact is, that a statute which renders legal the revocation of certain classes of contracts is founded on the theory that while, by its force, great losses will 1 Wood V. Leadbitter, 13 M. & W. Md. 20; Wood v. M. A. L. R. Co., 90 838; Sampson v. Bnrnside, 13 N. H. Mich. 334; Lake Erie R. R. v. Ken- 264; Huff u. McCauley, 53 Pa. St. 206 ; nersly, 132 Ind. 274; St. Louis Nat. Root V. Wadhams, 107 N. Y.384 ; Law- Stoclc Yards v. Wiggius Ferry Co., 112 rence c. Springer, 49 N. J. Eq. 289 ; 111. 384 ; Minneapolis Mill Co. v. Minn. Parish t). Kaspare, 109 Ind. 586. & St. Louis R. Co., 51 Minn. 304; 2 Foot V. New Haven & North Co., Pitzzmau ti. Boyee, 111 Mo. 387; 23 Conn. 214, 223 ; Thompson v. Greg- Thoemke v. Fiedler, 91 Wis. 386; Beck ory, 4 Johns. (N. Y.) 81 ; Babcock v. v. L. N. 0. & T. R. Co., 65 Miss. 172; Utter, 1 Abb. Ct. App. Dec. (N. Y.) 27, Stewart v. Stevens, 10 Colo. 440; Duke 60 ; Crosdale v. Lanigan, 129 N. Y 604 ; of Sutherland v. Heathcote (1892), 1 Ch. White V. Manhattan R. Co., 139 N. Y. 475. In some of these cases, the license 19; Lawrence v. Springer, 49 N. J. had been partly executed ; but the de- Eq. 289 ; Morse v. Copeland, 2 Gray cision was that, in so far as it was (Mass.), 302; Cook w. Stearns, 11 Mass. executori/ it was revocable, and hence 533 ; Seidensparger v. Spear, 17 Me. they are authority for the proposition 123; Foster v. Browning, 4 R. I. 47, for which they are cited. 53; Batchelder v. Hibbard, 58 N. H. » Wolfe w.Frost, 4 Sand. Ch. (N. Y.) 269 ; Prince v. Case, 10 Conn. 375 ; Col- 72, 90 ; White v. Manhattan R. Co., 139 lins Co. v. Marcy, 25 Conn. 239; Jack- N. Y. 19; Cronkhite •/. Croukhite, 94 son & S. Co. V. Phila. W. & B. R. Co., N. Y. 323. 4 Del. Ch. 180; Carter v. Harlan, 6 LICENSES. 325 many tJmes fall upon promisees, nevertheless such losses must be endured by such sufferers in order that the mass of the community shall be protected against worse disaster." ^ With the statute of frauds before him, it is the licensee's own folly that he performs labor or incurs expense on the strength of a parol agreement for a right or interest in the land of his neighbor* He is not justified, as a reasonable person, in rely- ing on such a contract ; and, therefore, he is not in legal con- templation defrauded when the permission is annulled by the other party .^ But, when the licensor has been guilty of con- duct such that the revocation of the license would otherwise act as a fraud on the promisee, as when he has made false statements or misrepresentations, other than the promise of the license, which have induced the licensee substantially to change his position, then all the courts are agreed that the license can not be revoked, or at least that it can not be done away with unless the licensee is fully reimbursed or placed in statu quo^ In other words, the principle of the revocability of executory licenses is a rule, not to shield fraud, but in favor of the statute of frauds.* It was early decided in Pennsylvania, however, and the principle has been steadily adhered to there and followed in a few other states, such as Georgia, Iowa, Nevada, Tennessee, and Texas, that an executory license becomes irrevocable and in effect transfers an interest in or over the land, by the fact that, in reliance upon the parol promise, the licensee has ex- pended money, or performed labor, and will suffer conse- quential injury if the license be abrogated.^ This is the extreme, so-called equitable view, which subordinates the re- quirements of the statute of frauds to the apparent demands of the individual case. It is defended by the argument that the 1 Lawrence v. Springer, 49 N. J. Eq. ^ Le Pevre v. Le Fevre, 4 Serg. & R. 289, 296. (Pa.) 241 , 267 ; Dark v. Johnston, 55 Pa. 2 "Wood V. Leadbitter, 13 M. & W- St. 164; Cleland's App., 133 Pa. St. 189 ; 838; Crosdale v. Lanigan, 129 N. Y. Wiuham i). McGuire, 51 Ga. 578; Hiers 604, 610; Desloge v. Pearce, 38 Mo. w. Mill Haven Co., 113 6a. 1002 ; Hark- 588, 599. ness v. Burton, 39 Icwa, 101 ; Lee v. 8 Minneapolis Mill Co. v. Minn. & St. McLeod, 12 Nev. 280 ; Moses v. Sanford, L. R. Co., 51 Minn. 304, 313; Eckerson 2 Lea (Tenn.), 655; Thomas v. Junc- V. Crippen, 110 N. T.585; Cronkhite v. tion City Irrigation Co., 80 Tex. 5.50; Cronkhite, 94 N. Y. 323, 327 ; Wiseman Clark v. Glldden, 60 Vt. 702 ; Gilmore v. Lucksinger, 84 N. Y. 31. v. Arm'strong, 48 Neb. 92; Plickinger * Crosdale v. Lanigan, 129 N. Y. u. Shaw, 87 Cal. 126. 604, 610; Lawrence v. Springer, 49 N. J. Eq. 289, 296. S26 KINDS OP REAL PROPERTY. licensee, by so changing his position, becomes practically a pur- chaser of the license for a valuable consideration, " and it would be against all conscience to annul it, as soon as the benefit expected from the expenditure is beginning to be per- ceived." ^ Thus, where the owner of a lot of land had made expensive improvements upon it, on the faith of a mutual un- derstanding that he might use an alley on his neighbor's lot, it was held that he had an irrevocable license for the enjoyment of a way over the alley .^ And where two owners had agreed in erecting their houses, on their respective lots, so that one could not reach the upper stories of his house except through a por- tion of the other's building, it was decided that an irrevocable right of access was thus created.^ In a few of the states this view is adopted by the courts of equity, while rejected by the common-law courts.^ But the New York Court of Appeals effectually answers the arguments in favor of making such licenses, merely as such, irrevocable, either in law or in equity, and sustains the opposite rule of England and most of the United States, as follows : " This is plainly the rule of the statute. It is also, we believe, the rule required by public policy. It prevents the burdening of lands with restrictions founded upon oral agreements easily misunderstood. It gives security and certainty to titles, which are most important to be preserved against defects and qualifications not founded upon solemn instruments. The jurisdiction of courts to enforce oral contracts for the sale of land is clearly defined and well under- stood, and is indisputable. But to change what commenced in a license into an irrevocable right, on the ground of equit- able estoppel, is another and quite a different matter." ^ § 240. b. Licenses wholly executed — Irrevocable. — The statute of frauds does not apply to a license which has been completely carried out and performed. Whether it was given by deed or by oral contract, the execution of it before it is revoked makes it an accomplished act, performed with the valid consent of both parties, to which no statutory prohibition 1 Kerick v. Kern, 14 Serg. & R. (Pa.) man v. Poor, 38 Me. 237 ; Cook !>. 267, 271 ; Le Fevre y. Le Fevre, 4 Serg. Prigden, 45 Ga. 331. See Babcock & R. (Pa.) 241. ... Utter, 1 Abb. Ct. App. Dec. (N. Y.) 2 Ebner v. Stickler, 19 Pa. St. 19. 27-60 ; Wiseman v. Lucksinger, 84 s Cleland's App., 133 Pa. St. 189. N. Y. 31. * Kamphoiise v. Gaffner, 73 111. 453, ^ Crosdale u. Lanigan, 129 N. Y. 461 ; Tanner !\ Valentine, 75 111. 624; 604, 610. Johnson v. Skillman, 29 Ind. 95; Pit- LICENSES. 327 can thereafter apply .^ It is, moreover, a complete excuse and justification to the licensee for what he has done by virtue of its authority. And that is what is meant by the settled rule of law that a wholly executed license is irrevocable ; having per- mitted the act or acts to be done without objection, the licensor can not annul or recall his parol permission so as to hold the licensee as a trespasser.^ Thus, if one by license of another, pull down an existing building on the latter's land, or dig and lay an aqueduct in his lot, or cut down and remove trees from his forest, no action will lie foi; such proceedings, no matter how much the licensor may have been injured thereby.^ § 241. c. Licenses continuously or repeatedly executed. — Many questions have been presented to the courts as to licenses partly executed and partly executory ; such, for example, as a permission to flow water unto another's land and to retain it there, or to build a house upon his property and to continue to live in it indefinitely. The same kind of question is presented also by an authority to do several distinct acts on land of another, when some of them have been performed and others are still unexecuted. Unfortunately, some of the highest courts and best writers have spoken of such licenses as these as " executed," * while others have dealt with them under the simple designation "executory."^ They are not entirely within either of those classes. They can be most intelligibly explained, as a class or group by themselves, as continuously or repeatedly executed licenses. Our discussion of them falls naturally and logically into two divisions, namely : (a), those continuously or repeatedly executed licenses the performance of which is to take place on the licensor's land, and (b) those continuously or repeatedly executed licenses the performance of which is to take place on the licensee's land. 1 Taylor v. Waters, 7 Tannt. 374; Kent, 18 Pick. (Mass.) 569; Fentiman Woodbury t). Parsley, 7 N. H. 237; Wal- v. Smith, 4 East, 107; Bridges v. Pur- ter V. Post, 6 Duer (N. Y.), 363. cell, 1 Dev. & B. (N. C.) 492, 496. 2 Selden v. Del. Canal Co., 29 N. Y. « Crosdale v. Lanigan, 129 N. Y. 634, 639; Pratt v. Ogden, 34 N. Y. 20; 604, 610; Wolfe o. Frost, 4 Sand. Oh. Cook ti. Steairns, 11 Mass. 533 ; Foot «. (N. Y.) 72, 90; Cleland's App., 133 New Haven & North Co., 23 Conn. 214 ; Pa. St. 189; 2 Wash. R. P. {5th ed.) Barnes v. Barnes, 6 Vt. 388 ; Sampson p. 667 (6th ed. § 844), p. *400; Jones, V. Burnside, 13 N. H. 264; Wood v. Ease. § 77, e« se?. Leadbitter, 13 M. & W. 838 ; Smith v. 6 Dodge v. McClintock, 47 N. H. Goulding, 6 Cush. (Mass.) 154. 383; Hill v. Hill, 113 Mass. 103; Het- 8 Prince v. Case, 10 Conn. 375, 378; field v. Cent. li. Co., 29 N. J. L. 571 ; Pratt V. Ogden, 34 N. Y. 20 ; Sampson Lawrence v. Springer, 49 N. J. Eq. 1). Burnside, 13 N. H. 264; Kent v. 289. 328 KINDS OF EEAL PEOPERTT. S 242 (a) Iiicenses to be continuously or repeatedly executed on the Licensor's Land. — The first of these — the license to be continuously or repeatedly executed on the licensor's land — may be easily and fully treated by being considered as in effect two licenses ; the one wholly executed, embracing that part which has been already performed and therefore governed by the principles discussed in section 239 above ; the other executory, embracing the other portion and governed by the principles discussed in section 240 above. It follows that such a license is a complete excuse and justification for what has been done pursuant to it before its revocation ; ^ that, by the great weight of authority the licensor who has not been guilty of fraud or unfair dealing respecting it may at any time revoke it as to the future and stop further operations under it, no matter how much injury such revocation may cause the licensee,^ and that, according to the Pennyslvania doctrine, it has become entirely irrevocable after the licensee has so altered his posi- tion upon the faith of it as not to be left substantially in statu quo upon the abrogation of the license.^ Thus, under the majority rule, it lias been held that a verbal license given to an adjacent proprietor to erect and use a retaining wall upon the licensor's land might be revoked after the wall was erected, and the licensee might be compelled to remove the wall.* But the latter was not liable in damages for having placed it there. And in another case, where the permission was to build a dam on the licensor's laud, it was decided that the landowner might at any time compel the removal of the dam from his property, and that its owner was not liable in damages for hav- ing built and retained it there nor for its affecting the land during the reasonable time required for its removal after the license was revoked.^ But, in applying the Pennsylvania doc- trine, it was adjudged that an oral authority to cast sawdust into a stream was wholly irrevocable after the licensee had been led thereby to build his mill in a location different from that which he had originally intended ; ^ and a license to sink 1 § 240, supra. 154. Also Cook v. Stearns, 11 Mass. 2 § 239, supra; Hicks w. Swift Creek 533; Mumford u. Wliitney, 15 Wend. Mill Co., 133 Ala. 411; Emerson v. (N. Y.) 380; White u. Manhattan R. Shores, 95 Me. 237. Co., 139 N. Y. 19 ; Lawrence v. Springer, 8 Ibid. 49 N. J. Eq. 289 ; Batchelder v. Hibbard, * Crosdale v. Lanigan, 129 N. Y. 58 N. H. 269 ; Wood v. Mich. Air Line 604 ; St. Louis Nat. Stock Yards u. K. Co., 90 Mich. 334. Wiggins Ferry Co., 112 111. 384. ^ Thompson v. McElarney, 82 Pa, ' Smith V. Goulding, 6 Cush. (Mass.) St. 174. LICENSES. 329 and retain a shaft for mines in the licensor's land was held to be irrevocable after the shaft had been made.^ It was in decid- ing a case similar to these last two, that the New York Court of Appeals said : " It is better, we think, that the law requiring interests in land to be evidenced by deed should be observed, than to leave it to the chanceller to construe an executed license " (the license was partly executed) " as a grant depend- ing upon what, in his view, may be equity in the special case."^ § 243. (b) Licenses to be continuously or repeatedly executed on the Licensee's Land. — A license to be executed upon the licensee's land can exist only in those cases in whicli its perform- ance will destroy or impair some right owned by the licensor over that land. For, in the absence of such an adverse right, one may do what he pleases on his property without the neces- sity for any license. Thus, if one have an easement to enjoy for his house light and air over the adjacent lot, such a license may arise in the form of a permission to his neighbor to so build as to shut out such light and air and retain his building in that position. As soon as a license of this nature is either wholly executed, or partly executed by a material change of position on the part of the licensee, it becomes entirely irrevo- cable.^ For the effect of enforcing it is not to create or convey 1 Beatty v. Gregory, 17 Iowa, 114. maintain the wall, for at least a reason- Also Wickersham v. Orr, 9 Iowa, 253, able time after it was finished ; for 260; Lee v. McLeod, 12 Nev. 280; otherwise it would be of no use to the § 239, supra. Under either of the op- licensee. It was this last named part, posing rules, a license may be revoked this distinctly implied part of the license, by the licensor after practically all the that was in reality revoked. The right beneficial purposes of its creation have to build was not revoked ; for, if that been enjoyed by the licensee. Allen v. could have been done, the licensor might Fiske, 42 Vt. 462 ; Clark v. Glidden, 60 have sued the licensee and recovered Vt. 702, 710. against him in an action for trespass. 2 Crosdale v. Lanigan, 129 N. Y. 604, The prioilege of keeping the wall there in 610. The word " executed," as used in the future, and that alone, was revoked, the passage quoted, is explained by the It was, in a sense, an " executed " context. It is not meant here to criti- license ; but there was a distinct part of cise the high tribunal from whose Ian- it that was executory, and the executory guage the quotation is taken ; but rather part alone was revocable. It is believed to make the text of this treatise plain. thatacorrect understanding of the sense The license, in that case, was an oral in which the courts have used the terms permission to build a retaining wall on " executed " aud " executory," in treat- another's land, and, before the license ing of the law of licenses, would clarify was attempted to be revoked, the wall many opinions and do away with many had been entirely erected. In a true apparent discrepancies. and literal sense, therefore, the license ^ Winter v. Brockwell, 8 East, 308 ; was executed. It is perfectly clear, Hewline v. Shippam, 5 B. & C. 221 ; however, that the parties to the agree- IVIoore v. Rawson, 3 B. & C. 3.'32 ; Morse ment meant it to include the right to v. Copeland, 2 Gray (Mass.), 302; Pope 330 KINDS OP REAL PROPERTY. any right or interest in real property, but to destroy an existing easement or servitude : and, therefore, the doctrine of equitable estoppel may be applied without in any way contravening the statute of frauds. Tlie impairment or destruction of incor- poreal hereditaments is not affected by the statute of frauds, nor by the common-law rule which requires certain interests in real property to be conveyed by deed.i § 24J:. How Licenses may be revoked. — A revocable license may be revoked and terminated by any act of the licensor whicli prevents, or is inconsistent with, its exercise.^ It is re- volved by his death, or by his conveyance of the land without excepting or preserving the right, or by the death of the licensee. 3 So an action by the landowner against the licensee, for the recovery of damages for its exercise, brings it to an end.* V. O'Hara, 48 N. Y. 446 ; Jamieson v. 32 N. J. Eq. 248 ; Winne v. Ulster Co Millimami, 3 Duer (N. Y.), 255 ; Veghte Sav. Inst., 37 Hun (N. Y.), 349. V. Raritan Co., 19 N. J. Eq. 142, 153; 3 Wood v. Leadbitter, 13 M. & W. Foot 0. New Haven & North Co., 23 838; De Haro v. United States, 5 Wall. Conn. 214, 223 ; Addison v. Hack, 2 Gill (U. S.) 599 ; Emerson r. Shores, 95 Me. (IMd.), 221; Hazleton c Putnam, 3 237 ; Eckert ii. Peters, 55 N. J. Eq. 379 ; Chand. (Wis.) 117, 124. Vandenburgh u. Van Burgen, 13 Johns. 1 Ibid. ; Wolfe v. Frost, 4 Sand. Ch. (N. Y.) 212. (N.Y.) 72, 90; Wood v. Leadhitter, 13 * Mumford v. Whitney, 15 Wend. M. & W. 838. (N. Y.) 380; Branch v. Doane, 17 Conn. ^ Hodgkins v. Farrington, 150 Mass. 412. 19, 21 ; East Jersey Iron Co. v. Wright, BOOK II. HOLDINGS OP REAL PROPERTY, Paet I. — Alodial Holding before Feudal System, and AFTER Revolution in United States. Part IL — Tenure — Feudal System. PART I. ALODIAL HOLDING. CHAPTER XV. OUTLINE OP THIS BOOK — -ANGLO-SAXON HOLDINGS. § 245. Introduction — Divisions. § 246. Anglo-Saxon and Ameri- can holdings. § 247. Forms holdings. § 248. Feudal Saxon law. of Anglo-Saxon germs in Anglo- § 245. Introduction — Divisions. — The forms or kinds of real property having been examined and explained, the next department of our subject is a discussion of the different methods by which they may be held or owned. This will in- volve historical matter, which is sometimes said to be of little or no importance to the American lawyer. But, in addition to its lending the satisfaction, and utility alike, which thor- oughness merely for its own sake brings with the work of every student, a knowledge of the ancient tenures and holdings affords a constant source of enlightenment and assistance in the study of the subsequent and more directly practical por- tions of real-property law. There are many statutes and forms of modern law that may be largely understood and often ap- plied by him who has no knowledge whence they came. Those who are to know them fully, however, and desire to be able to use them to the best advantage, must frequently go to their beginnings and trace them from their sources. To observe the salient elements of real-property law, as they arose and grew in England during the Anglo-Saxon period ; to investigate the important changes and additions, which came about as the result of the Norman Conquest and the vigorous sway of the feudal system ; to note the decline of that system, its re- jection in America and the restoration here of land holding 334 HOLDINGS OF REAL PROPERTY. to substantially its primitive form, and ultimately to find scattered along through it all the mainsprings of hundreds of leading principles, which are at the basis of this and other great departments of jurisprudence on both sides of the Atlantic, is not merely the work of an antiquarian ; it is an absolute neces- sity to tlie thorough equipment of a practical American lawyer. The effort is made in this book to present, in as terse a form as is compatible with clearness, the historical matter which explains our holdings of real property and shows the origin and nature of important rules and principles of other branches of the subject. This will be attempted in three chapters, the fird, or present one, of which deals with Anglo-Saxon holdings, the second with the feudal system, and the third with holdings in the United States. How the tenure of the county of Kent supplied a natural connection between the holdings to be discussed in the first and third of these chapters is hereafter explained.-' With that link — or rather chain five centuries long — -between them, those holdings are, nevertlieless, largely identical ; and the chapters which deal with them, though separated by that on the feudal system (which is Part II.), are logically to be thought of together as constituting Part I. of this Book. § 246. Anglo-Saxon and American Holdings. — There is very little actual knowledge, at the present time, of the system, if there were anything at all that could be called a system, under which land was held by the Teutonic invaders — the Angles, the Saxons, and the Jutes — who wrested England from the Celtic and British tribes and founded the kingdom of Great Britain. There is a similar lack of information as to many of their laws and institutions, which prevailed even down to the Norman Conquest. It is certain, however, that, during the Anglo-Saxon period of English history, much real property was owned and held alodially, that is, " held in absolute ownership, not in dependence upon any other body or person in whom the proprietary rights were supposed to reside, or to whom the possessor of the land was bound to render service."^ An ordi- nary kind of landed interest was that of such absolute domin- ion and control, each owner being the entire master of his property, independent of all obligations to render services or 1 § 246, infra. Kent's Com. p. *488; Freeman, Nor- 2 nishv. Hist. Law R. P. (5th ed.) man Conq. (2d ed.) i. 84. p. 12; 2"Blackst. Com. p. *105; 3 / ANGLO-SAXON HOLDINGS. 335 money payments to any one, except only the three requirements, the trinoda neoessitas, to which all lands were subject. These were the obligations to render military services for the king (expeditio), and to repair bridges, and fortresses {pontis arcisve constructio), and were of a political rather than of a proprietary nature. 1 After the Norman Conquest and the general burden- ing of lands in England with feudal requirements, the Kent- ishmen struggled persistently, and with a large amount of success (though their lands were brought under the feudal system), for the preservation of this alodial characteristic of their real-property holdings.^ And, in the royal charters to most of the American colonies, in after times, reference was made to the holding of lands in the county of Kent, and the same immunities that those lands enjoyed from many of the feudal burdens were assured for the realty here.^ Thus, the county of Kent formed, as it were, a bridge, over feudal eras, between the alodial holdings of our Anglo-Saxon ancestors and the same form of real-property ownership now almost uni- versally prevalent in the United States.* § 247. Forms of Anglo-Saxon Holdings. — The alodial lands of the Saxons were practically co-extensive with their book- lands (hoc-land'), or those which had originally been " booked," or granted, by the king and his council of wise men (witenage.- mot or witan), from the common property of the community, to individuals or religious bodies.^ The characteristics of such grants depended largely, of course, upon the terms of the charters, or " books," by which they were made ; but these lands were generally, not only held alodially, but also with the right of the owners to will them away, or transfer them to others by act inter vivos. They were also inheritable, and, in the absence of special local custom, passed, on the death of the owner intestate, to all of his sons in equal shares.^ Another 1 1 Stubb's Const. Hist. Eng. pp. 76, socage, and not in capite or by knight- 190; Digby, Hist. Law R. P. (5th ed.) service." p. 13 ; 1 Blackst. Com., p. * 263. » § 288, infra. 2 1 Poll. &Mait. Hist. Eng. Law (2d ^ Digby, Hist. Law R. P. (Sth ed.) ed.), p. 186 ; 1 Wash. R. P. p. * 17, 6th p. 12. ed., § 55. 6 Digby, Hist. Law R. P. (5th ed.) 3 1 Spence, Eq. Jur. 105, n. ; 1 Story, p, 26 ; 1 Poll. & Mait. Hist. Eng. Law Const. 159. An ordinary expression in (2ded.), p. 60, where it is also said : " It those charters, describing the tenure, is important to remember that hook-land was: "to be holden of our sovereign was a clerkly and exotic institution, and lord the king as of his manor of East that grants of it owe 'their existence Greenwich in the county of Kent in the directly or indirectly to royal favor, and realm of England, in free and common throw no light, save incidentally, on the old customary rules of land-holding." 336 HOLDINGS OF REAL PROPERTY. large portion of the land was caWed folk-land, which was held by virtue of the customary law of the realm, without any written title. It is probable that this kind of property, coming down as it did by custom from ancestor to heir, could not be aliened from the family (or folks) without much difficulty, and there seems to be no evidence that it could be disposed of by will.^ Large tracts of territory, called terra regis, were also held by the king individually. These came, in process of time, to be known as the king's folk-land ; and it was, without doubt, the great extent and importance of this domain, with the fre- quent additions to it from foi'feiture and other causes, that ultimately gave emphasis, if not origin, to the fundamental conception of the English feudal system, that all real property was originally vested in the crown.^ In the latter part of the Anglo-Saxon period, land was sometimes let out by the owner, to be held of him by anotlier ; and it was then styled laen-land. It is probable that this arrangement was most frequently made to continue during the life of the holder, though it may some- times have been for one or more years or even a sliorter period.^ Here was the precursor, if not the original, of the relation of landlord and tenant of subsequent centuries.* § 248. Feudal Germs in Anglo-Saxon Law. — It is said bj the most recent and careful historians that, toward the close of the Anglo-Saxon era, there are discernible in these forms of land holding tlie germs and some of the growth of that which was hastened, by the Norman Conquest into the fully developed feudal system. There was present the relation of lord and man (closely corresponding originally to the Roman princeps and comes), and this had in some instances developed into the relation of lord and tenant. Large districts of land were held by great men, such as the kings thegns, or by religions institu- tions, and divided, parcelled out, and controlled by a system similar to that which characterized the manors of the succeed- ing centuries.^ And, at the time of the arrival of William the Conqueror, there were many tillers of the soil, who owed and rendered to superior owners of the land services substantially the same as those which were afterwards incident to the rela- 1 1 Poll. & Mait. Hist. Eng. Law p. 310; Digby, Hist. Law R. P. (5th ed.) (2d ed.), pp. 61, 62. p. 16. 2 Digby, Hist. Law R. P. (5th ed.) * Digby, Hist. Law R. P. (5th ed.) pp. 17, 18. pp. 49, 50. 8 1 Poll. & Mait. Hist. Eng. Law (2d » Digby, Hist. Law R. P. (5th ed.) ed.), p. 61; 1 Kemble, Saxons in Eng. pp. 19-25. ANGLO-SAXON HOLDINGS. 337 tion of lord and vassal.^ " After the Norman Conquest book- land preserved its name for a time in some cases, but was finally merged in the feudal tenures in the course of the twelfth century. The relations of a grantee of book-land to those who held under liim were doubtless tending for some considerable time before the Conquest to be practically very like those of a feudal superior ; but Anglo-Saxon law had not reached the point of expressing the fact in any formal way. The Anglo- Saxon and the continental modes of conveyance and classifica- tion of tenures must have coalesced sooner or later. But the Conquest suddenly bridged a gap which at the time was still well marked. After its work is done we find several new lines of division introduced and some old ones obliterated, wliile all those that are recognized are deeper and stronger than before. The king's lordship and the hands that gather the king's dues are everywhere ; and where they have come the king's law will soon follow." ^ 1 1 Poll. & Mait. Hist. Eng. Law ^ 1 Poll. & Mait. Hist. Eng. Law (Qd (2d ed.), p. 61. ed.), pp. 62, 63. 22 PART 11. TENURE. CHAPTER XVI. THE FEUDAL SYSTEM AND ITS FRUITS. The Feudal System. § 249. Its rise and growth in England. § 250. Its nature. § 251. Creation of feudal rela- tionship — Terms used. § 252. Fealty — Homage — "War- ranty. Tenure. § 253. Definition of tenure — Classification. § 254. 1. Tenure by knight-ser- vice. § 255. Aids. § 256. Relief. § 257. Primer seisin. § 258. Wardship. § 259. Marriage. § 260. Fines for alienation. § 261. Escheat. § 262- Decline and destruction of tenure by knight-service. § 263. Grand serjeanty. § 264. Frankalmoin. § 265. Divine service. § 266. 2. Socage — Free and com- mon socage. § 267. Incidents of tenure by free and common socage. § 268. Petty serjeanty — Bur- gage — Gavelkind. § 269. a. Villein socage — Un- free tenures. § 270. Origin and incidents of tenure by villein socage. § 271. 4. Pure villeinage. §272. 5. Copyhold tenure — Its development and nature. § 273. Survival of copyhold ten- ures. § 274. Manors. Descent and Alienation of Realty, as affected by Feuds. § 275. Duration of vassal's hold- ing. § 276. (a) Descent of feuds. § 277. (b) Alienation by will. § 278. (c) Alienation by act inter vivos. § 279. Effects of Magna Charta on alienation inter vivos. §280. Effects of Statute Q^lia Emptores on alienation inter vivos. § 281. Statute Be Bonis. Sum- mary as to alienation inter vivos. § 282. Restrictions on alienation removed by Statute 12 Car. IL ch. 24 — Present results. THE FEUDAL SYSTEM AND ITS FRUITS. 339 Seisin. § 283. Seisin defined and classi- fied. § 284. Seisin not allowed to be in abeyance. § 285. Only one seisin at a time. § 286. Disseisin. § 287. Livery of seisin — Grant — Attornment. The Feudal System. § 249. Rise and G-rovB'th of the Feudal System in England. — Feudalism would have conquered England, even if the Normans had never come. With William I. both conquests were com- pleted quickly. In forms widely divergent in the different countries, the feudal system, which Maine says created a great interruption in the history of jurisprudence,^ had grown and matured upon the continent much earlier than in the British Isles, — probably because, in all of its phases, it resulted from a coalescence of Teutonic customs and Roman practices, which went on most rapidly where the more cultured and civilized peoples of the remnants of the Western Empire had the great- est influence upon their ruder but stronger northern conquer- ors.2 For at least a century before their taking of England in 1066, the Normans had practised the system of military tenure of lands and enjoyed the services of a body of trained lawyers, skilled in all the subtle reasoning and finesse of the feudal polity.^ These they naturally brought with them to their new dominion. And the full-grown system of the victorious race, converging with the then incipient feudal land tenure of the vanquished, rapidly produced the Anglo-feudalism which has played such a tremendous part in the development of the common law of real property. It would no doubt be erroneous to assume that feudal tenure and its numerous burdens were imposed at any one time upon all the land in England by the fiat of William the Conqueror, powerful ruler though he was, who would brook no imperium in imperio ; or that it was only by the combination of the two forms of landed proprietorship, existing apart before the battle of Hastings, that there was brought into being, in those troublous times, the English char- acteristics of the holdings of land from and under a superior owner or lord. Numerous forces, personal, economical, and 1 Maihe's Ancient Law (1st Amer. ed.), p. 15. 2 Maine's Anc. Law (1st Amer. ed.), PP ch. 286-294 ; Digby, Hist Law R. P. . §ii. (pp, 30,31). 8 Cruise Dig. ch. i. §S S-l?; i Poll & Mait. Hist. Eng. Law, cii. iii. 340 HOLDINGS OP REAL PEOPEETY. political, were there working to make history and institutions rapidly, yet with a permanency which shows tiie absence of haste. ^ Early in the twelftli century the task had been sub- stantially performed, and practically all the land of England was under the dominion of feudal masters and overlords.^ Even earlier than this, during the twentieth year of the reign of William I., he had succeeded in having the domains of many of the Saxon proprietors, who had escaped the sword and the forfeiture of their lands, surrendered to liim as feudal lord and then handed back to their owners to be held of him ; and when to these acquisitions were added the vast estates which had come to him as the direct result of conquest and the numerous forfeitures which had followed the allegiance of the Saxon noblemen to Harold and his cause, the infeudation of very much of the real property of the kingdom was com- plete.** The occasion of this large handing over of their laud to the Conqueror by the English landliolders was the meeting of the king and his barons and great men at Sarum, in the year 1086, soon after a threatened invasion of the country by the Danes had called for extensive warlike preparations and shown the necessity of a compact military organization ready for quick and compulsory service. The invasion did not take place. But, after the danger which had been imminent was over, it afforded a powerful argument by which William in- duced the great Saxon proprietors to bring their lands, in form at least (for at first it was probably only meant by them to be a form), under feudal bondage and obligations.* It was upon the heels of the compilation of the great survey of the ^ See 1 Poll. & Mait. Hist. Eng. come the ' man ' of the conqueror, and Law (2cl ed.), pp. 79, 80, where the should be bound to military service, various elements which produced Eng- Moreover, in those troubled times it lish feudalism are summarized. often became a necessity for the poor 2 Digby, Hist. Law R. P. (5th ed.) alodial holder to enter into the train of pp. 37-43 ; 1 Poll. & Mait. Hist. Eng. retainers of a powerful lord in order to Law (2d ed.), p. 62. obtaiu protection; hence the practice "2 Blackst. Com. pp. *49, *50. of 'commendation,' of becoming the " The principal agents by which alodial man or vassal of the lord, receiving in owners of land were turned into feudal return the protectiou without which the tenants were probably conquest, and need preservation of life and property was of protection. The lot of the conquered impossible. An element in this process is always hard, and doubtless the alodial was the surrendering of the alodial holder of land was glad to retain the lands, to be received back under the enjoyment of a portion of his property condition of rendering military or other on sucli terms as the conqueror chose to service." Digby, Hist. Law R. P. ch. i. impose, The usual conditions were § ii. (p. S2). that the old free proprietor should be- < 2 Blackst. Com. p. * 49. THE FEUDAL SYSTEM AND ITS FRUITS. 341 realm, called Domesday Book, that this meeting at Sarum was convened. " This," says Blaciistone, " may possibly have been the era of formally introducing the feudal tenures by law; and perhaps the very law thus made at the council of Sarum is that which is still extant, and couched in these remarkable words : ' Statuimus, ut onines, liheri homines foedere et sacramento affir- ment quod intra et ext7'a umve7-sum regnum Anglioe Wilhelmo regi domino siio fideles esse volunt ; terras et Jionores illius omne fidflitate uhique servare cum eo, et contra inimicos et alienigeyias defendere.' The terms of this law (as Sir Martin Wright has observed) are plainly feudal : for, first, it requires the oath of fealty, which made, in the sense of the feudists, every man that took it a tenant or vassal ; and, secondly, the tenants obliged themselves to defend their lord's territories and titles against all enemies foreign and domestic. But what clearly evinces the legal establishment of this system, is another law of the same collection, which exacts the performance of the military feudal services, as ordained by the general council. ' Omnes eomites, et iarones, et milites, et servientes, et universi liberi homines totius regni nostri prcedicti, habeant et teneant se semper bene in armis et in equis, ut decet et oporttt : et sint semper prompti et bene parati, ad servitium sumn integrum vobis ex- plendum et peragendum, cum opus fuerit : secundum quod nobis dehent de foedis et tenementis suis de jure facere, et sicut illis statuimus concilium totius regni nostri jyrcedicti.' " ^ Whether Blackstone be right or wrong in attaching so much importance to this meeting and the statutes which he quotes, it is certain that he was writing of a time when Norman customs and insti- tutions were being pushed with vigor to the front, that England as a nation was then feudal, and that, at least within a very few years thereafter, tenure was a practically universal law of the land. § 250. Nature of the Feudal System. — The primary object of the feudal system, as it was elaborated in England, was to have all of the king's subjects who could carry arms bound by ties of the strongest self-interest to be ready, at a moment's notice, to form or provide an army for any and all sorts of military service. It did this by making the landowner's hold- ing of his property dependent upon his obligation and readiness to render services to a superior lord. Its fundamental principle was that the king was the owner of all the lands within his 1 2 Blackst. Com. pp. * 49, * 50. 342 HOLDINGS OP REAL PROPERTY. realm. He parcelled out large tracts of this property to indi- viduals, or religious bodies, to hold as the vassals or ten- ants of the crown. These holders in their turn subparcelled, or subinfeudated, their respective portions to others below them- selves, to hold as their vassals or tenants ; and the latter, again, often brouglit in others as holders under themselves. And so the process of causing one man to be an owner in subordination to another, and the lower of these two to have a tenant under him, and so on down in a series, might be, and frequently was, carried on till between the king, who was the primary and only alodial owner of a tract of land, down to the person who actually held and cultivated or otherwise used it, tliere was a long chain of persons interested in it, each feudally bound by that interest to those above him and thus ultimately obligated to the crown. At the top of this series is the king, who is designated the lord paramount. Those who hold im- mediately of him, as his tenants, or vassals, are called tenants in capite, or in chief. Those at the bottom of the scale, who cultivate or otherwise make actual use of the land, hold in demesne as the tenants paravail, — the tenants who make the avail or profits out of the land itself. And those standing between these last and the king, or lord paramount, are the vassals of those above and the lords of those below themselves. Looked at in the latter light, they are mesne or intermediate lords. Thus, if A, the king, grant a piece of land to B, and B parcel out some of it to C who subinfeudates it to D, A is lord paramount ; B is his tenant in capite and he is also a mesne lord, being the immediate lord of C, and C is tenant of B and mesne lord of D, who, being as we suppose the cultivator of the land, is the tenant paravail. Or, to take an actual case, during the reign of Edward I., Roger of St. German made the proceeds of land at Paxton in Huntingtonshire which he held of Robert of Bedford ; the latter held it of Richard of Ilchester, who held of Alan of Chartres, who held of William Lc Boteler, who held of Gilbert Neville, who held of Devorguil Balliol, who held of the king of Scotland, who held of the king of England. Roger of St. German, who held the land in demesne as tenant paravail, looked up to Robert of Bedford as the lord to whom he was immediately responsible, and through him and the other m,esne lords to the king of England as lord paramount; wliile the king of Scotland, as tenant in capite, looked upward to the king of England, as his only lord, THE FEUDAL SYSTEM AND ITS FRUITS. 343 and downward to Devorguil BalKol as his tenant or vassal.^ Every such ladder of ownerships — and there was not an acre of land in the kingdom that did not have one of them, with at least two rungs, and often, as in the above illustration, with many more — had connected with it bonds of honor, self- interest, and even self-preservation, which bound the dif- ferent parts almost indissolubly together.^ For the vassal's retention of his land, and therefore in most cases the means of subsistence for himself and his family, depended on his loyalty to his lord and the faithful performance of the services incident to his tenure ; while the lord was obligated, by the strongest ties of honor, self-respect, and feudal custom, carefully to look out for the welfare of his tenants. When, therefore, it was determined that the nation should go to war, the king called upon his tenants in capite to bring their forces to his service. They made the same demand upon their vassals ; and the latter in turn did the same as to the immediate holders under themselves, until every knight and soldier had been reached by the call. Failure of a tenant to obey the summons meant consequent forfeiture of his land ; but he knew that faithful performance of that which was properly demanded would result in the continuation of his holding and such pro- tection for himself and his property as his lord could reason- ably give. It is readily apparent how such a system, which was the plan of military organization throughout Christendom during five or six of the darkest centuries of the world's his- tory, would provide just such a compact, quickly reached, and easily controlled body of warriors as was demanded in those troubled times for a nation's preservation and welfare. § 251. Creation of Feudal Relationship — Terms used. — The manner of conveying real property, to be thus held of a superior lord, was by words of pure donation, dediet concessi; and these are still retained as operative words of conveyance in many forms of modern deeds.^ In its original use, before feudalism properly so called had developed, the gift was to be held at the will of the donor, and as. found on the continent was called a precarium. In process of time, the grant came to be made for a certain and determined period, as for one or more years, and 1 This illustration is given in 1 Poll. ^ 1 Poll. & Mait. Hist. Eng.Law (2d & Mait. Hist. Eng. Law (2d ed.),p. 233, ed.), p. 233. citing Rot. Hund. ii. 673. See also » Blackst. Com. p. *53. 2 Blackat. Com. pp. * 59, * 60 ; 1 Spence Eq. Jur. 135. 344 HOLDINGS OF REAL PROPEETT. later on for the life of the grantor or grantee. In these forms it was ordinarily styled a beneficium, or benefice. But, after passing through these transitional stages, and still another period in which it was the well-recognized custom for the land to be granted after the death of the vassal to his son or sons, these interests became inheritable and were so created and transferred that, when the first taker died his heir siiould have the property in his stead, and upon the death of such heir it should pass to his heir, and so on ad infinitum. It then, with this descendible characteristic, came to be denominated a feud, feod, fief, or fee} It was through the weakness of Charlemagne's successors that the heneficium, which by his time had largely supplanted the precarium of the Romans, gradually transformed itself into the hereditary fief, or fee. The process was probably completed on the continent before the Normans invaded England.^ But it is safe to say that, in view of this growth of ownership from precarium to fee, stress was always laid upon the inheritable quality of the fee or feud ; and, therefore, in later centuries when the strength of feudalism was waning, the transition was natural to the meaning of the word fee which it still retains — an estate or interest which may descend from ancestor to heir. To own " in fee " is now to have real property in such manner that the law will cast the title upon the heir of the owner who dies intestate. The process of bestowing a feud or fee upon a vassal was called a feoffment. The physical act of putting him into pos- session and enjoyment of the property was frequently spoken of as an investiture, which was an open and notorious ceremony in the presence of the other vassals of the same lord as wit- nesses, consisting often of the lord's taking off his coat and putting it upon tiie incoming tenant as a symbol of placing on him the ownership of the land. The lord also, in this cere- mony, made livery of seisin to the feudatory, which was the act of handing him something connected with the laud, such as a stone, or twig, or clod of eartli, and stating that he gave it to him in the name of seisin. The other vassals were called upon to observe and take mental note of these performances : and thus " the evidence of property was reposed in the memory 1 Termes de la Ley, "Feud;" a. d. 1000, they begau to be granted in "Wright, Ten. 19, 4; Dalrymp. Feud, perpetuity, and then took the name of 199; 1 Spence, Eq. Jur. 34; 1 Poll. & "fueds"or "fees." Irving, Civ. Law, Mait, Hist. Eng. Law (2d ed), p. 67. 200 ; note to 1 Wash. R. P. (5th ed.j pp. ' It seems that, about the year 45, * 19. THE FEUDAL SYSTEM AND ITS FRUITS. 345 of the neighborhood ; who, in case of a disputed title, were afterwards called upon to decide the difference, not only ac- cording to external proofs adduced by the parties litigant, but also by the internal testimony of their own private knowledge." ^ § 252. Fealty — Homage — Warranty. — The feudal bond always carried witli it the duty of the vassal to take and live up to the oath of fealty (or fidelity, fidelitas') to his lord. This oath miglit be taken, in any ordinary form of solemn swearing, either before tbe lord in person or before his agent or bailiff.^ The tenant stood, with his hands on the Gospels, and said : " Hear this, my lord : I will bear faith to you of life and member, goods, chattels, and earthly worship, so help me God and these holy gospels of God." ^ The spirit of this oath pervaded all the relations of lord and vassal, and exerted a powerful in- fluence in the legal determination of their reciprocal rights and duties. A similar modern principle, though not a' formal asseveration and perhaps not a direct outgrowth of the ancient obligation, is the stringent doctrine, in the law of landlord and tenant, that the tenant is estopped to deny his landlord's title to the demised property.* Although the ancient writers do not so state, there was doubtless added to the form of oath above quoted a saving of the tenant's duty to the king. And^certain it is that we find a growing and finally dominant requirement that the king is to be treated as the only liege or primary lord, and the ultimate necessity that every male of the age of twelve years and upwards shall swear to him and his heirs, " to bear faith and loyalty of life and limb, of body and chattels and of earthly honor." ^ Thus arose the oath of ligeance or allegiance, which still may be required by the sovereign of every citizen and in theory is taken by all, and which, when thus finally evolved, differs from its progenitor, the oath of fealty, chiefly in the fact that the latter was only required to be taken by a tenant to his immediate lord.^ When the property granted to the vassal was a fee or feud 1 2 Blackst. Com. p. *53. See 2 (U. S.) 535, 548; Tilon ti. Reynolds, Poll. & Mait. Hist. Eng. Law, bk. ii. 108N. Y. 558; Bigelow, Estoppel (5th ch. iv, § 2. ed.), 506, 510 ; Smith, Landl. & Ten. 2 Wright, Ten. 35. Stnbbs, Const. 234 note a; 6 Amer. L. Rev. 1, et seq. Hist. § 462 n. 5 Britton, i. 185; Hale, P. C. i. 62- 8 1 Poll. & Mait. Hist. Eng. Law (2d 76 ; Co. Lit. 65 a. ed.), p. 298, quoting Bracton, f. 80 ; « 1 Blackst. Com. pp. * 366-* 368; Termes de la Ley, " Fealty." 1 Poll. & Mait. Hist. Eng. Law (2d ed.), * Blight V. Rochester, 7 Wheat. pp, 298-300. 346 HOLDINGS OF REAL PROPERTY. of inheritance, the more stringent oath of homage was also usually required. The vassal, kneeling on both knees, ungirt and with his head uncovered, placed his hands between those of tlie lord, who sat before him, and said : " I become your man " [devenio vester ho7no) " of the tenement that I hold of you, and faith to you will bear of life and member and earthly worship, and faith to you shall bear against all folk who can live and die, saving the faith that I owe to our lord the king." He then received a kiss from the lord.^ This solemn ceremony, called homagium, or manhood, as the oath states, made the vassal the " man " of his lord. It seems to have carried with it more of religious sanctity tlian did the oath of fealty. Homage was never taken, or " done," by any but free men; for the doing of it by a villein or unfree tenant might imply his enfranchisement.^ Homage was purely a feudal matter, which has no representative in American law. One of the most important duties, which the lord, from his position as such even without any formal declaration, owed to his vassal, was that of defending him in possession of the land " against all men who can live and die." ^ This protection was what, from the standpoint of tlie vassal, gave incentive and efficacy to the feudal relationship. It was the quid pro quo, which, in " commending " himself to a powerful earl or abbot, he received in exchange for his submission, fealty, homage, and services.* It carried with it the obligation of his superior to give him another tenement of equal value, if he were evicted from the property assigned to him. If a suit affecting the title to the land were brought against the vassal, he vouched in, or called in, his lord to defend ; the latter, if he did his duty, defended the action ; and, if he failed to do so or his efforts in the matter were unavailing, he must compensate the tenant by giving him other real property of equal value. Thus the 1 2 Blackst. Com. pp. * 53, * 54 ; for a certain service {per certum servi- Britton, ii. 37 ; Littleton, § 85. Hum), named and expressed in tlie gift 2 1 Poll. & Mait. Hist. Eng. Law (2d and vice imsa whereby thla tenant is ed.), pp. 296, 297, 305. ' reaUy ' bound {re obligatur) to keep 8 1 Poll. & Mait. Hist. Eng. Law (2d faith to his lord and do the due service; ed.), p. 306 ; 2 Blackst. Com. p. * 57 ; and such is the connection by homage ■Wright, Ten. 38. between lord and tenant that the lord ^ " Bracton defines homage thns : owes as much to the tenant as the ten- Homage is a bond of law {vinculum ant to the lord, save only revereuce." juris) by which one is holden and bound 1 Poll. & Mait. Hist. Eng. Law (2d ed.), to warrant, defend, and acquit the tenant p. 301. in his seisin against all men, in return THE FEUDAL SYSTEM AND ITS FRUITS. 347 lord tvarranted his vassals' title.^ The covenants express or implied, which bear the same name in our modern deeds of conveyance, are the representatives of the ancient warranty. It originated as an incident of feudalism and developed into a contractual obligation of a vendor to his purchaser.^ The other rights, obligations, and burdens, which attended the relationship of lord and vassal, are best understood in con- nection with the different forms of tenure discussed in the following pages. Tenure. § 253. Definition of Tenure — • Classification. — It has already been shown that, between the lord and his vassal, the feudal constitution prescribed a tenure of some kind for every acre of land in England. In its general sense, tenure may be defined as the holding and manner of holding of lands, tenements, or hereditaments by one person of another.^ It would be idle to attempt to describe all the minor forms of such holdings, which are mentioned by the different authorities, ancient and modern, and to endeavor to harmonize their statements as to the charac- teristics of the various species of tenure. The truth seems to be that the rights, privileges, duties, and burdens incident to feudalism changed so materially, from century to century and even from generation to generation, that a designated form of tenure often had essentially different characteristics in one age from those which it possessed in another; and the natural tendency of writers to generalize and systematize has often stood in the way of careful observance of these mutations. For examples, knight-service in the reign of Henry II. was materially different from knight-service in the time of Edward I. ; and the word socage, about the derivation of which there has been so much heated controversy, was employed during the dark ages to describe many and largely divergent forms of feudal tenure. It is, therefore, sufficient here to explain the fundamental characteristics of the chief classes of tenure of real property that have existed in England. A primary division to be made for this purpose is into free tenures and those that were not free. The former were such as demanded no services 1 Wright, Ten. 38 ; 2 Blackst. Com. 8 Wright, Ten. 19-21 ; 2 Blackst. p.* 57. Com. p.* 59. 2 Wright, Ten. 38 ; 1 Poll. & Mait. Hist. Eng. Law (2d ed.), p. 306. 348 HOLDINGS OF REAL PROPERTY. from the vassal except those which were honorable or worthy of a free man, as the obligation to serve the lord in war, or to pay him money or other things of value ; while the latter required menial labor, such as would be performed only by persons of servile rank, as to plough the lord's field, or to false care of his cattle. Another natural division had regard to the amount and character of tlie services demanded — whether tliey were certain or uncertain. Thus, in each kind of tenure, its incident services were either free or base and also either certain or uncertain. In the following discussion, it will more fully appear that these are the true bases of differentiation. Taking them as such, the five chief forms of tenure — chief in the order of their historic and economic importance — are: 1. Knight-service, in which the services were originally free and uncertain ; 2. Free and common socage, in wliich they are free and certain ; 3. Villein socage, in which they are base and certain ; 4. Pure villeinage, in which they are base and uncertain ; and 5. Copyhold, the outgrowth and modern suc- cessor of pure villeinage. The historical importance of some of the inferior or subsidiary forms of tenure and their simi- larity to or outgrowth from the others require them to be discussed in connection with the more important kinds to which they are most nearly related. Therefore, in this chapter, grand serjeanty, frankalmoin, and divine service tenure will be explained immediately after knight-service ; and petty ser- jeanty, burgage, and gavelkind will be discussed in connection witli free and common socage. § 254. 1. Tenure by Knight-service. — Tenure in chivalry, or by knight-service — -military tenure {per servitium militare) — was the oldest, noblest, most universal and most highly esteemed of all the free lay tenures. The services incident to it were military in character (and, therefore, in those times the most honorable of all forms of secular labor) ; and, while the number of days per year during which the tenant could be re- quired to perform the warlike duties for his lord soon became limited, the original and fundamental conception of such a holding was that the services were not only free in nature but also uncertain as to their extent.^ He who had property under this form of tenure, his liolding being as it was entirely military and the general outcome of the feudal establishment in Eng- land, was said to have a. proper feud {feoda propria). His in- 1 2 Blackst. Com. pp. « 61, » 62 ; I Poll. Mait. Hist. Eng. Law (2d ed.), pp. 252, 253. THE FEUDAL SYSTEM AND ITS FRUITS. 349 terest was thus distinguished from the kinds of improper feuds {feodce iviproprice)^ in which the services were of a peaceful character, such as cultivating the lord's private lands, render- ing to him an annual payment in money or in agricultural products, and the like.^ During the different eras of feudal supremacy, the extent of the required attendance by the vassal upon his lord in the wars varied considerably. Within a century after the conquest, moreover, the system of paying scutage to the lord, which was a pecuniary return made by the tenants to enable the lords to hire soldiers in the place of the tenants, became quite preva- lent, especially in favor of the king as lord paramount.^ But, in its most settled and stable form, tenure by military service called for a knight's fee, or twelve ploughlands,^ for each vas- sal's use, from the lord ; and, in return for the same the vassal's personal service upon the lord in military operations for not more than forty days in each year. The value of the land, which should constitute a knight's fee, and probably its terri- torial extent also, varied greatly from time to time. If any one tenant held more or less than the quantity, which was re- quired at the time to make such a fee, the number of days dur- ing which he could be called upon to render militaiy services for his lord was greater or less in proportion.* It was in the working out of the theory of tenure by knight- service in practical military operations, and in supplying the demand of the superiors for complete support and maintenance by their inferiors and dependants, that its inherent weakness and inadequacy, as it was viewed from the lord's standpoint, became apparent, and that stringent measures for the remedy- 1 Wright, Ten. 32, 33 ; 2 Blackst. amounts." 1 Poll. & Mait. Hist. Eng. Com. p. *58. Law (2d ed.), p. 252, 2 " Speaking roughly, we may say ^ ^ ploughland was probably un- that there is one century ( 1 066-1 1 66) certain in extent, being measured rather in which the military tenures are really ' by value than by quantity of territory, military, though as yet there is little Some, however, have contended that it law about them ; that there is another was a fixed nuijiber of acres, the amount century (1166-1266) during which these being placed by some as low as twenty tenures will supply an army, though acres, and by others as high as one hun- chiefly by supplying its pay ; and that dred and twenty acres. Co. Lit. 69 a. when Edward I. is on the throne, the Blackstone tells us that in the reigns military organization which we call of Edward I. and Edward II., the value feudal has already broken down and of a knight's fee was placed at £20 per will no longer provide either soldiers annum. 2 Blackst. Com. p. * 62. or money, save in very inadequate 4 Lit. § 95; 2 Blackst. Com. pp. * 62, *63. 350 HOLDINGS OP BEAL PROPERTY. ing of its defects appeared in the form of numerous exactions of pecuniary returns and services.^ Few wars could be carried to successful issues with soldiers who would not fight more than forty days in a year. Hence the system of demanding scutage, and its gradual increase to the exclusion of the original plan of the vassal's personal military attendance. No superior lord, who was conversant only with warlike affairs and whose time was wholly spent in matters of arms and chivalry, could in this way provide the necessaries and luxuries demanded by himself and his family. Hence the harsh and intricate laws, which imposed other pecuniary burdens upon the vassals, as incidental appendages and consequences of their holdings, graduall}"^ taking definite form and finally becoming inseparably connected with military tenure. These onerous fruits or inci- dents of knight-service were aids, relief, primer seisin, wardship, marriage, tines for alienation, and escheat. A few words are needed as to each of them. § 255. Aids. — The fealty and other feudal obligations always due from the vassal would require his purse, as well as his person, to be at the lord's service whenever necessary for the latter's safety or prosperity ; and the original conception of aids was simply that this duty of the inferior to the superior should be faithfully and conscientiously performed.^ But the unjust exactions, which the lords sought to make, upon the basis of this loose and vague principle, caused the number and forms of these pecuniary returns to be settled by numerous contests and finally to be definitely fixed by statutes. The aids thus determined were money contributions by the tenants for three purposes : (a) to ransom the lord's body if he were taken prisoner ; (b) to defray the expenses of conferring the order of knighthood upon his oldest son, and (c) to supply a suitable marriage portion or dowry for his oldest daughter. It was declared by Magna Charta that none but these three aids should be taken by any inferior lord, and that the king would demand no aids without the consent of parliament.^ But in the subsequent charters this provision was omitted. Aids for various other purposes were then exacted, such as to pay the lord's debts, to stock his farm, to enable him to pay a fine to the king,* etc. But the statute entitled Confirmatio Chartarum 1 1 Poll. & Mait. Hist. Eng. Law (2d = Magna Charta (1215), ch. 12. ed.),pp. 2,'J2-255. 4 1 jpou. & Mait. Hist. Eug. Law 2 Glaui'. ix. 8. (2d ed.), p. 350. THE FEUDAL SYSTEM AND ITS FRUITS. 351 (1297) again restricted them to the ancient three, and again required that the amount in each case should be reasonable.^ The statute 1 Westminster (1275) ^ liad already restricted the amount which each tenant should pay to any mesne lord, as a marriage portion for his oldest daughter or for the knighting of his oldest son, at twenty shillings ; and in 1342 the tenants w capite obtained the same statutory restriction against the king.* The amount of the third ordinary aid, that for the ransoming of the lord from, captivity, was left of necessity to be determined from the circumstances of each case. § 256. Relief. — The original conception of feudal relation- ship was that its continuance depended on the volition of both parties to the compact and that, therefore, it would termi- nate upon the death of either of them.* If the heir of the decedent desired it to be restored, the other party could dictate the terms upon which this might be done. It was also a well- settled custom, while fiefs or feuds were usually voluntary gifts, for the vassal, upon entering into possession of tlie land, to make a donation of some kind to his lord.^ From these sources sprang the relief, or return in money or products of the land, when the tenant of an inheritable fief died, and his heir succeeded as vassal to the position of his ancestor. Be- cause of his death, the property was regarded as falling away from the family of the tenant, and this payment was demanded in order to raise it up again (relevare — relief) to the possession and enjoyment of the heir. It was always justly regarded by English tenants as one of the most onerous and oppressive of feudal burdens.^ Numerous statutes were enacted to restrict the lords from demanding as a right too much of that which the vassals properly thought should be only a matter of bounty or gracious gift.^ And the amount of relief thus at length fixed upon, and generally although not always adhered to, was one hundred shillings for every knight's fee.^ This was re- 1 25 Edw. I. ; 2 Blackst. Com, p. * 64. to that of Henry II., such acts were re- " 3 Edw. I. ch. 36. peatedly passed and subsequently disre- ' 25 Edw. III. Stat. 5, ch. 11 ; 2 garded by the more powerful lords. Stubbs, Coast. Hist. 521. William Rufus refused to be bound by * 1 Poll. & Mait. Hist. Eng. Law such a statute of his father, and it was (2d ed.), .317. not until 27 Hen. IL that relief be- ^ 2 SuUiv. Lect. 1 24 ; 2 Blackst. Com. came definitely fixed and acquiesced in p. * 56; Wright, Ten. 15. by the tenants. 2 Blackst. Com. pp. *65, 6 1 Poll. & Mait. Hist. Eng. Law (2d * 66. ed.), 308 ; 2 Blackst. Com. p. *65. 8 2 Blackst. Com. p. *66. ' From the time of the Conqueror 352 HOLDINGS OF REAL PROPERTY. garded as equivalent to the first year's income, and was payable within that year, if, at the time of the death of the vassal, his heir were twenty-one years of age. § 257. Primer Seisin. — This was, in substance, an addi- tional relief which early in English feudal law became re- stricted to the tenants in capite. When such a tenant died leaving an heir who was then of age, the latter must pay to the lord paramount, for the privilege of taking up the inheritance, one year's income of the land, in addition to the ordinary relief, if the land were in possession of the heir, and if it were not, but the heir must wait for possession until the expiration of a preceding life-estate, then one-half a year's income in addition to relief.^ The history of the development of relief shows that theoretically the intermediate lords had as much right to primer seisin as had the king. It was all a matter of gradual adjust- ment, in the process of which the lord paramount succeeded in acquiring a source of income which the mes7ie lords were obliged to forego.^ § 258. Wardship. — If the feud descended, upon the death of the vassal, to an heir who was under twenty-one years of age if a male, or under fourteen years of age if a female, the lord had the custody of the person of such heir during his or her minority, and the control of and income from the land, without any duty to account for the income to any one.^ He must use the property reasonably, however, and not commit waste upon it ; and out of the proceeds thereof he must support and educate the heir, his ward, in accordance with his or her station in life.* The male heir became of age, and the wardship ceased, when he became twenty-one ; and he could then recover his land by paying one-half a year's income thereof to the lord. The female heir became of age, and had the same right to recover her land, when she was sixteen. No wardship of a female heir occurred, if she were fourteen or over when her ancestor died. But, if she were under that age at the time of her ancestor's death, the wardship then commenced, and continued until she was sixteen.^ Tlie principle on which this right of wardship reposed was that, during the time when the vassal could not in person render military services for the lord, the latter was ' Last preceding note. s 2 Dalrymp. Fend, 44, 45 ; 2 Blackst. ^ 1 Poll. & Mait. Hist. Eng. Law Com. p. * 67. (2d ed.), 307-318; 2 Blackst. Com. pp. « 2 Blackst. Com. pp. *68, *69. *66, »67. 6 2 Blackst. Com. p. *67; Wright, Ten. 90-92. THE FEUDAL SYSTEM AND ITS FRUITS. 353 entitled to the proceeds of the land with which to supply a substitute. The male tenant became fully capable of rendering those services at the age of twenty-one. The female tenant was capable of marrying at fourteen, and her husband could then perform the services due to the lord.^ § 259. Marriage. — Growing out of wardship and incident to it was the lord's right to select a proper spouse for his ward, whether male or female. This was designated the right of marriage (maritagium, as distinguished from matrimony'). It continued as long as the wardship, and practically authorized the lord to sell his infant vassal in marriage, with the single condition that there should be no disparagement in the match.^ If the ward refused to marry the person thus selected, he or she forfeited to the lord the value of the marriage, or what such selected person was willing to pay ; and, if the ward married without or against the lord's consent, the forfeiture was double such value.^ This incident of tenure was often a very fruitful source of income to the lords. It and the ward- ship to which it was incident were regarded by the English tenants as the most unjust and grievous of all the burdens of feudalism.* § 260. Pines for Alienation. — The primal theory of the feudal connection being that of personal obligation, it followed as a logical consequence that neither the lord nor the vassal, without the consent of the other, could alienate his interest and thus bring in a new party to the relation. In order to transfer his rights and duties to another, the lord must have the acquiescence, or attornment, of his tenant ; and the vassal should not substitute another in his placfe without the consent of the lord. Whether this theoretical view of the situation 1 I Poll. & Mait. Hist. Eng. Law ^ 2 Blackat. Com. p. * 70 ; Wright, (2d ed.), 318-329 ; Wright, Ten. 90- Ten. 97 ; I Poll. & Mait. Hist. Eng. 92; 2 Blackst. Corn. pp. *67-*70. Law (2d ed.), 318. Wardship was regarded by the feudal ^ 2 Blactst. Com. p. * 70 ; Wright, tenants as one of the greatest hardships Ten. 97. which they were obliged to endure. * 1 Poll. & Mait. Hist. Eng. Law It was an interest for the benefit of the (2d ed.), 318-328. In one case the Earl guardian, rather than a trust for the of Warwick obtained £10.000 for his protection and benefit of the ward. It consent to the marriage of his female was, therefore, assignable by the lord, ward ; and for the custody of the lands and on his death it might be transferred and person of the heir of Gilbert de to his personal representatives. (Co. Unfranville and his marriage, Simon Lit. 86, n. 11.) It remained, as an de Montford gave the king 10,000 incident of tenure, until abolished by marks. Snlliv. Lect. 248; Lord Little- the statute 12 Car. II. ch. 21. ton's Hist. Heu. II. 2 vol. 296. 23 354 HOLDINGS OP REAL PROPERTY, produced the results which finally emerged, as is thought by some, or whether feuds originally alienable gradually came to be clogged with restrictions in this respect growing out of the power and greed of the lords, as is thought by others, it is certain that the lord was rarely if ever called upon to pay his vassals for an attornment, and that, by the time of the reign of King John, the tenants were ordinarily required to make payments, called ^wes, to their lords for the privilege of alienat- ing their feuds. By one of the provisions of Magna Charta and by the important statute of Quia Umptores'^ (18 Bdw. I.), all tenants except tliose in capite were relieved of this burden ; but since neither of those enactments applied to the vassals who held immediately of the king, fines for the privilege of dispos- ing of their lands were still enforced against them. While, therefore, the lower tenants were thus permitted to alien the whole of their estates, to be held of the same lord of whom they themselves had lield, the king's tenants in capite must continue to pay fines for this privilege, or take the risk of an absolute forfeiture of their lands. The subsequent statute of 1 Edw. III. ch. 12, forbade forfeiture, even in such instances, and provided that, in case of his tenant's alienation of his feud, the king should only be entitled to a reasonable fine. The construction of this last statute settled it that, for a license to alien, the tenants in capite should pay one-third of the yearly value of the land ; and, if they presumed to alien without first procuring the king's license, the fine should be a full year's value. While fines, as such, remained as feudal burdens, these continued to be the rules by which they were assessed upon the king's tenant's, while the inferior vassals were permitted after 18 Edward I. to dispose of all their interests without making any such payments. The effects of fines in the gradual development of the right to freely dispose of real property will be noticed hereafter in the discussion of that general topic.^ § 261. Escheat. — Back of the ownership of the vassal was always that of his lord. If the former violated his obligation to the latter, the goods and chattels on his land might be distrained and held by the lord as a pledge for the proper rendering of services by the tenant, and the due performance of his feudal duties. By statutes in the first year of Edward I., the lord was also entitled to seize and hold the land until the 1 18 Edw. I. ch, i. 2 § 282, infra. THE FEUDAL SYSTEM AND ITS FRUITS. 355 tenant's breach of the feudal bond was repaired.^ And this superiority, which the lord always had over the land, might become a full and complete ownership at any time, if the tenant died without heirs, or if his blood were corrupted by outlawry or felony, so that no one could inherit from him. The land was then said to escheat {excadere), or fall back to the lord. If- the crime by which the inheritable quality of his blood was extinguislied were treason, the property was for- feited to tlie king ; but, when the tenant was only outlawed or convicted of felony, the king had the ancient right of wasting his lands for a year and a day, and, subject to this right, they escheated to the immediate lord of the felon or outlaw.^ Escheat is the feudal incident of real-property ownership which is most nearly reproduced in American law. Each of the United States retains the original and ultimate property of all lands within its jurisdiction, and takes back to itself all lands the title to which fails because of defect of heirs. While, however, such a passing of title back to the state is here called escheat, it is not a surviving element of an otherwise obsolete system; but it is a principle inherent in the state's right of sovereignty, which is similar to the feudal doctrine of the same name, and which has been established as a positive and prac- tically necessary part of modern jurisprudence.^ § 262. Decline and Destruction of Tenure by Knight-service. — As already explained, the theory upon which this ancient and honorable form of tenure was based was that each holder of land should personally attend and serve his lord in the wars, and be ready, at a moment's notice, to fight, and to continue fighting for at least forty days in each year for every knight's fee, and also to pay, when occasion properly required, the above described pecuniary returns which were incident to his tenure. There was thus to be formed " a national militia composed of barons, knights, and gentlemen, bound by their interest, their honor, and their oaths, to defend their king and country," and for this purpose to rally at the trumpet-call around their re- spective immediate lords.* But the practice rapidly diverged from the theory. There soon came to be many smaller tenants by knight-service, who did not each own a knight's fee, and 1 Statute of Gloucester, 6 Edw. I. ^ gee § 290, infra, and notes, ch. 4 ; Statute of Westm. II. eh. 21. * 2 Blackst Com. p. * 75. 2 2 Blackst. Com. p. *72; Glanv. vii. 17; Bract, f. 297, b. 356 HOLDINGS OP REAL PROPERTY. ■who were required to contribute ratably to a sum of money sufficient to hire a soldier or knight to represent in the army the entire knight's fee. There were other tenants who could not personally bear arms, such as females and aged or dis- abled males ; and the line between those who eould not fight and those who would not do so was often very hard to draw. The vassal who held an entire knight's fee, readily concluded that, if his neighbor who owned only one-fortieth of a fee went quit of personal service in the field by the payment of one shil- ling, he himself should avoid actual warfare by the payment of forty shillings ; and the able-bodied tenant, who could fight if he would, naturally considered that he had done his whole duty to his lord if he paid to him as much money as was paid by another holder of an amount of land equal to his own, who was aged or infirm.^ At first these payments, which were called scutage, or esouage, in the Norman French, (Latin, scutagiurn) , were fixed at such amounts as would actually supply a soldier for each knight's fee, the principle being that, instead of per- sonally supplying one to serve for him as he had formerly some- times done, the vassal enabled the lord himself to fill his place in the ranks. From this, the step was natural and easy to the mere levying of scutage, at a uniform rate for each levy, upon the vassals, and the taking of the product by the lord for the raising, equipping, and maintaining of such an army as he could , therewith procure. The vassal was then often said to hold hy scutage, to distinguish his tenui'e from the original form of knight-service ; but the only difference between him and the warrior-vassal consisted in their different methods of filling the ranks of the army of tlieir lord.^ It is doubtful if scutage could ever be legally levied by any but the king, or (if for a mesne lord), by aid of the king's writ ; and, after much friction and numerous pledges by the sovereign, and violations of the same, it was settled by statute 25 Edw. I. ch. 5, 6, as indeed it had also been provided by Magna Cliarta with but short-lived 1 1 Poll. & Mait. Hist. Eng, Law (2d happen to them, than to be compelled ed.),p. 272. to pay a scutage at the rate fixed ^ This is the meaning of Littleton's by royal decree, a sum much less than statement, to the effect that tenures by they would have spent had they hired homage, fealty, and esouage were ten- substitutes to fill their places. In short, ures by knight-service Lit. §§ 95-97. 'tenure by knights' service of a mesne "It would stem that the tenants as lord, became first in fact, and then in a body got the better in the struggle, law,' tenure by escuage." 1 Poll. & and established the rule that if they Mait. Hist. Eng. Law (2d ed.), p. 272. did not choose to serve, no worse could THE FEUDAL SYSTEM AND ITS FRUITS. 857 benefit, that the king should take no such payments without the consent of parliament. The scutage, or escuage, thus levied or permitted by the king, with the consent of parliament, was the ground-work of all succeeding subsidies, and of the land tax of later ages. But it differed from a mere pecuniary rent, in that it never was a settled, invariable sum, but depended for its amount and the occasions of its assessment on the exigencies of the times and the special consent of parliament to each levy. As soon as a vassal came to have his land by paying a determined yearly rent, he no longer held by knight- service, but became a socage tenant of some kind. The consequences of the gradual change of the original form of knight-service, with its close personal bond between lord and vassal, into the hard, unsocial holding by scutage with the other numerous pecuniary burdens, which tended always to increase rather than to diminish, proved to be far more detrimental to the tenant than to his lord. The onerous incidents of his holding were all preserved and often augmented against the vassal, while all the benefits of knightly standing and prestige were swept away. The result was continued and persistent clamor for abolishment or diminution of the burdens under which the landholders were made to groan. And, finally, after numerous palliatives and ineffectual measures, tenure by knight-service, with all its objectional incidents, was entirely abolished by the statute 12 Car. II. ch. 24. During the Commonwealth, all military tenures had been discontinued ; and, immediately after the Restoration, this enactment, which Blackstone declares was a greater acquisition to the civil property of the kingdom than even Magna Gharta itself, turned all tenures into free and common socage, " save only tenures in frankalmoign, copyholds, and the honorary services (without the slavish part) of grand serjeanty." It also did away entirely with scutage, aids, primer seisin, tenancy in capite, forfeitures and payments for marriage, and fines for alienation, and retained only those forms of wardship and relief which, as modified and ameliorated, ■ were applicable, as hereafter ex- plained, to tenure by free and common socage. The net result, then, of this sweeping destruction of tenures and their append- ages was the preservation of tenures by free and common socage, frankalmoin, copyhold, and grand serjeanty, with escheat and improved and beneficial forms of relief and ward- ship as their only feudal incidents. 358 HOLDINGS OF EEAL PROPERTY. § 263. Grand Serjeanty. — As histoTj adYanced, the servientes of Domesday Book — those who were connected with the land as personal servants of its owner — became the tenants by ser- jeanty in the completed feudal system. The services, which such vassals rendered to their lords, had their foundation in the idea of " servantship" to an immediate master.^ And, as the grades of the personal attendance came to diverge, some becoming occasional performance of high and honorable offices about the person of the king, and others degenerating into fixed and more humble duties to him personally, or to the person of a mesne lord, serjeanties were divided into grand ser- jeanty {magnum servitium) and petit serjeanty (parvum servi- tium')? Since the services of the latter class were fixed and certain, it was in substance a species of socage tenure, and will be more fully noticed hereafter.^ Tenure by grand serjeanty was the holding of land of the king (or possibly sometimes of a powerful intermediate lord), with the duty to render to him in person, whenever occasion might require, some special honorary service, as to carry his sword or banner in battle, to act as his special chamberlain, forester, or messenger, or to be the king's butler or champion at his coronation.* Such holdings were very similar to those by knight-service ; but, being of a closer personal nature, no scutage ever took the place of the actual services, the tenant could not alien, nor even subinfeudate his land without the lord's consent, and the pecuniary returns became fixed and determinate much less slowly and definitely than in the case of knight-service.^ One of the special forms of grand serjeanty, which is mentioned by Blackstone, was to warn the king's subjects, by winding a horn, when the Scots or other enemies entered the land. As shown above, the honorary services of grand serjeanty were retained by the statute 12 Car. II. ch. 24. § 264. Prankairaoiu. — Frankalmoin, as a species of free tenure, was one of the most ancient and long-lived of all of these methods of holding property.^ It was often spoken of as tenure 1 1 Poll. & Mait. Hist. Eng. Law 5 Bract, f. 84 b, f. 39.5 ; 1 Poll. & (2d ed.), pp. 288-290. Mait. Hist. Eng. Law (2d ed.), p. 290. 2 2 Blackst. Cora. pp. * 73, * 81 ; ^ " It was an old Saxon tenure, and 1 Poll. & Mait. Hist. Eng. Law (2ded.), continued under the Norman revolution, p. 290. tlirough the great respect that was ^ § 268, infra. shown to religion and religious men in * 2 Blackst. Com. p. * 73; 1 Poll. & ancient times." 2 Blackst. Com. , Mait. Hist. Eng. Law (2d ed.), p. 287. p. * 102. And, in the third report of THE FEUDAL SYSTEM AND ITS FRUITS. 359 in free alms (libera eleemosyna), and was the holding from and of a donor by an abbot, prior, church, or other religious corpora- tions, aggregate or sole, and their successors forever, under the obligation of mailing orisons, prayers, masses, and the like, for the soul of the donor and for the souls of his heirs, dead or alive.^ These religious ceremonies were indefinite in extent, and in no way enforcible except as the rules or discipline of the church might require their observance. They were of the most honorable and holy nature, and superseded and precluded all requirements for fealty or homage. Gifts in frankalmoin were regarded as made to God. They were, therefore, largely outside of the sphere of merely human justice.^ The tenants were bound by the trinoda necessitas of repelling invasions and repairing bridges and castles ; ^ but, if they failed to perform the religious services for the donor or his heirs, there was no remedy except a complaint to the ordinary, or to the visitor of the corporation, for the correction of the wrong. Hence the - feature of this sort of honorable tenure, which most attracted the notice of lawyers, was its negative characteristic, — the absence of all services that could be enforced by the secular courts.* § 265. Divine Service. — Frankalmoin tenure, then, may be' summarized by saying that the services which it implied were (a) spiritual and (b) indefinite ; and therefore they were unen- forcible except by the tribunals of the church. When, as in some instances it occurred, the religious personage or institu- tion as tenant was obligated to do some special and certain service of a spiritual nature, as to sing a specified number of masses, or to distribute in alms a designated sum of money, it was called a tenure by divine service. This was still a free hold- ing, but less honorable and dignified than frankalmoin. The lord might distrain, without any complaint to the visitor, if the tenant in divine service failed to duly perform the stipu- lated services.^ Prom the beginning of the feudal period to the time of Henry VIII. large quantities of the land of England were held the English Real Property Commission- * 1 Poll. & Mait. Hist. Eng. Law ers (1833), it and tenure by divine (2d ed.), pp. 240-244. service were said to be then still in ex- ^ 2 Blackst. Com. p. * 102 ; 1 Poll. & istence. Real Prop. Comm'rs, 3d Rep. 7. Mait. Hist. Eng. Law (2d ed.), p. 240. 1 Bract. 207 ; Lit. §§ 133-135 ; 2 Some instances of tenure by divine ser- Blaclist. Com. p. * 101. vice are mentioned in Domesday Book, 2 Bract, f. 12; 1 Poll. & Mait. Hist. e. g. ii. 133, 133 b; and it was said to Eng. Law (2d ed.), pp. 243, 244. be a still subsisting form of tenure in » 2 Blackst. Com. p. » 102. 1833. Real Prop. Comm'rs, 3d Bep. 7. 360 HOLDINGS OP EEAL PEOPERTT. by these religious tenures, and especially by the more dignified one of frankalmoin. § 266. 2. Socage — Free and Common Socage. — Thesokeraen {sockemanni) were a class of landholders who are mentioned in Domesday Book as rendering definite agricultural services (services of the plough) for the use of their lands. Their con- dition was probably described, in a general way, by the word socage. After the conquest, these holders, probably at first in large part because of their insignificance, were the most successful in retaining alodial incidents to their tenures, and preserving them most nearly exempt from feudal burdens. The negative characteristics of their tenures, the features which em- bodied this comparative freedom from feudal bondage, thus came gradually to give the meaning to the word socage. And hence that word was used to include all holdings, for fixed and certain returns, which were "not spiritual, not military, not servien- tial." 1 As a class, with these chiefly negative characteristics, they were the successors of the alodial proprietorships of Anglo- Saxon times. The fixedness of services, making the return to the lord in effect rent, and thus distinguishing it from the irregular exactions of scutage and the indefinite duties asso- ciated with spiritual holdings, constituted the most prominent feature of all these socage tenures.^ When this rent, or render, was of an honorable character, such as the paying of a fixed sum of money every year, or the annual giving of a determined quantity of the fruits and produce of the land, the tenure was hj free and common socage ; when the return to the lord was of a baser nature, as the ploughing of so much land each year, or the personal doing of some other prescribed servile labor, the holding was by villein socage, which was one of the unfree tenures.^ § 267. Incidents of Tenure by Free and Common Socage. — Free and common socage, or free socage merely, as it is often called, with its services to the lord fixed in amount and free and honorable in character, and on its prominent negative side excluding most of the oppressive and objectionable in- cidents of feuds, grew in favor and extent and, gradually at first, but quickly after the enactment of the statute 12 Car. II. oh. 24, absorbed or superseded almost every other species of 1 1 Poll. & Mait. Hist. Eng. Law " 2 Blackst. Cora. pp.*7.5, * 78,*79; (2d ed.), pp. 291-295. Digby, Hist. Law R. P. (.^th ed.) p. 45. 8 2 Blackst. Com. pp. * 79, * 98. THE FEUDAL SYSTEM AND ITS FRUITS. 361 tenure. Relieved of practically all tlie burdens of medieval feudalism, it exists to-day as the almost universal method of holding land in England. Before the statute 12 Car. 11. ch. 24, it was subject to. aids, primer seisin, and relief ; but was free from the oppressive incidents of feudal wardship and marriage, and probably from that of fines, except in cases of tenure in eapite?- The guardian in socage was the oldest male relative, who could not inherit the ward's land ; and he was accountable for its profits at the termination of the wardship.^ The oath of fealty was always attached to this species of tenure, and sometimes constituted tlie only service due (for the returns to the lord ranged from such as were merely nominal to such as constituted practically rack-rent), but the oath of homage could not always be required by the lord.^ The effects of the statute 12 Car. II. ch. 24, on this kind of holding were the leaving of the oath of fealty demand able at any time, preserving the fixed rents, escheat, and guardianship in socage as they had formerly existed, and sweeping away all other feudal incidents.* And such is substantially the form iu which tenure by free and common socage exists in England at the present time. § 268. Petit Serjeanty — Burgage — Gavelkind. — Within the sphere of free-socage tenure were included all methods of holding land by honorable and certain rents and duties ; among which petit serjeanty, burgage^ and gavelkind tenures are to be specially noted. The first of these resembled grand serjeanty, in assuming a close personal relationship to exist between lord and vassal, and making its return or renders to be done for the lord's use about his person ; but it became a form of free socage because these returns were a fixed rent, such as the periodical giving to the lord of a sword, a lance, an arrow, or some other implement of war. Such holdings were, as a rule, directly of the king, and were styled paroum servitium regis. ^ Tenure in burgage exists where the lands of an ancient borough are held by an established rent payable to the lord. Through all the mutations of feudalism, such holdings of borough houses and lands, being usually small and compar- 1 2 Blackst. Com. pp. * 86-* 89 ; » 1 Poll. & Malt. Hist. Eng. Law Digby, Hist. Law R. P. (5th ed.) p. 47. (2d ed.), p. 291. ^ Ibid. And such is the nature of * 2 Blackst. Com. pp. *86-*89. guardianship in socage, at the present ' 2 Blackst. Com. pp. *81,*82. time. 362 HOLDINGS OP REAL PEOPERTT. atively insignificant, continued to exist ; and they are still a feature of English tenure. Besides having the ordinary char- acteristics of socage holding, they were distinctly marked by their subjection to local customs, especially as to dower, the descent of lands, and the disposing of them by will. In some of the borouglis, for example, a widow was dowable of all her husband's tenements, and not merely of one-third of them ; and the legal title to most of these borough holdings could be devised by will, even before the Statute of Wills, in the 32d year of Henry VIII. made it possible for nearly all real prop- erty to be willed away.^ One of the most remarkable of these local customs was the inheritance of a father's laud by his youngest son, rather thau by his oldest.^ Gfavelkind tenure, as a species of free socage, was a con- spicuous remnant of Anglo-Saxon liberty, enjoyed chiefly in the country of Kent. The boast, that every child boru in Kent was born free, was probably made possible by the per- sistent early struggles for liberty on the part of its inhabitants, and by its subsequent unrivalled prosperity as a gateway of commerce, which naturally favored the owners and tillers of its soil. And the results of these struggles and influences were that the gavelkind holdings in Kent came the nearest of all tenures to alodial ownership.^ The name of this holding came from its Anglo-Saxon form, in which the payment of gafol, or rent, distinguished it from the military tenures. The special customs which belonged to it were that the lands, (a) descended equally to all the sons, (b) could usually be disposed of by will, even before the Statute of Wills, (c) did not escheat in 1 1 Poll. & Mait. Hist. Eng. Law parative independence of the Kentish (2d ed ), p. 295 ; Digby, Hist. Law men have been numerous and varied. R. P. {5th ed.) p. 47. But the suggestion in the text seems to ^ Lit. § 165. Littleton tells us that harmonize most nearly with their known the reason for this custom was be- characteristics and position, and with cause the youngest son, on account of the results of the most recent and tlior- his tender age, is not as capable of tak- ough historical research. See 2 Poll. & ing care of himself as are his brothers. Mait. Hist. Eng. Law, p. 272. " Possi- Other writers have ascribed it to the bly," says Digby, in summing up an- ancient right of concubinage by the other theory, " the very fact that the lord with his vassal's wife on her wed- hand of the conqueror fell so heavily ding night, and the consequent doubt as and at so early a date on the great men to the oldest child being the child of of the country operated to preserve the her husband. For a discussion of this old customs amongst the poorest free- custom, see Elton, Origins of English holders, whose insignificance was their History, ch viii. p. 183. best protection." Digby, Hist. Law 8 The attempts to explain the com- R. P. (5th ed.) p. 47, u. 2. THE FEUDAL SYSTEM AND ITS FRUITS. 363 case of attainder and execution for felony, the maxim being " the father to the bough, the son to the plough," and (dj could be aliened by the tenant at the age of fifteen.^ The first of these characteristics is still a feature of gavelkind lands, as distinguished from other tenures in England.^ § 269. 3. Villein Socage — TTnfree Tenures. — Many species of tenure, which were doubtless marked with sufficient clearness in the times when they flourished in full vigor, have greatly puzzled the lawyers of later ages. Of the different forms of unfree tenures, this is particularly noticeable. They were all included within the general term villeinage,^ and were readily distinguished from the military holdings, in that their services had nothing to do with warlike operations, but were always humble and base in character, such as personally ploughing the lord's land, doing his chores, or carrying out the dung from his stables. It seems safe to say, also, that the service or return of every unfree holding was uncertain in its nature, in the sense that it depended to some material extent upon the will of the lord. Custom, or contract, or both, might fix, — and usually did fix, — the amount of work which the vassal must perform ; but if when he went to bed at night he knew that he must spend the morrow in working for his lord, but did not know to what kind of work he might be put, his hold- ing was by villeinage of some kind.* When this uncertainty was so great that the holder of the soil was practically a slave, annexed to the land and passing with it, and having his services limited in amount by nothing but the customs of the manor, of which customs the lord himself was the ultimate though usually equitable arbiter, the holding was by pure villeinage. And when the services were thus uncertain from day to day, but of an amount beyond which the loM could be prevented from 1 2 Blackst. Com. p. * 84. men ; on the other hand, the villein ' Digby, Hist. Law R. P. (5th ed.) usually has a yillein tenement. Then p. 47, u. 2. As to the effects of Kent- again, the villanus gets his name from ish tenures ou holdings of land in the villa, and this may well lead us to America, see § 246, supra. expect that his condition cannot be ade- ' "The name 'villeinage' at once quately described if we isolate him tells us that we are approaching a region from his fellows; he is a member of in which the law of tenure is, as matter a community, a villein community," — a of fact, intertwined with the law of per- villa. 1 Poll. & Mait. Hist. Eng. Law sonal status ;' ' villeinage ' is a tenure, it (2d ed.), p. 3.58. is also a status. On the one hand the < Bract, lib. iv. cap. 28, fol. 208 ; tenant in villeinage is normally a villein ; 1 Poll. & Mait. Hist. Eng. Law (2d ed.), the unfree tenements are held by unfree pp. 369-375. 364 HOLDINGS OF REAL PEOPERTY. exacting, — and as to such holdings this was true only of lands which had been held of the king, in ancient demesne, so- called, since the Conquest, — the tenure was by privileged villeinage, or villein socage. The latter of these will be first more fully described. § 270. Origin and Incidents of Tenure by Villein Socage. — " There is also another kind of villein tenure, which has been held of our lord the king ever since the conquest of England. This is called villein socage, and it is a villein tenure but of a privileged kind. Thus the tenants of the demesne of our lord the king have this privilege, that they cannot be removed from the land as long as they are willing and able to render the services which they owe, and villein socmen of this kind are properly said to be bound to the land. Moreover, they render villein services, but the services are fixed and ascertained. Nor can they be compelled contrary to their desire to hold tenements of this kind, and therefore they are called free. Further, they cannot make a gift of their tenements, or transfer them to others by title of gift, any more than pure villeins can, and therefore if the tenements have to be transferred, the tenant surrenders them to the lord or his bailiff, and the lord transfers them to other persons to be held in villeinage." ^ Tenants of the character thus described by Bracton were those who held in ancient demesne, so called, tlie lands which were actually in the hands of the crown in the times of Edward the Confessor, or William the Conqueror,^ and possibly other lands which, subsequently being acquired by the king, were treated in the same way in dealing with this favored class of villein holders.^ It was a general principle of feuds that their sale or transfer from one lord to another should not affect the nature of the vassals' holdings. And, therefore, when the king parted with ancient demesne lands thus held of him by villein socage, the same kind of tenure continued under the new lord.* But it was only of such lands that this species of holding existed. If we repeat that, when Bracton says the services were fixed and ascertained, this is to be taken to mean simply that there was always a very reasonable limit to their 1 Bract, lib. iv. cap. 28, fol. 208. * 1 Poll. & Mait. Hist. Eng. Law (2d 2 2 Blackst. Com. p. * 99. ed.), p. 385. " 1 Poll. & Mait. Hist. Eng. Law (2d ed.), pp. 383, 384. THE FEUDAL SYSTEM AND ITS FKUITS. 365 amount, but the tenant must work at the lord's bidding up to that amount ; and if we emphasize the fact that such tenants were given a peculiar process, called the " little writ of right close," by which they could prevent the lord from removing them from the land against their will,i we summarize the most notable features which distinguished this tenure from that in pure villeinage. On the ancient demesne, then, there were freeholders, villein sokemen, and pure villeins ; while on all other lands the tenants were all embraced within the two general classes, freeholders and pure villeins. The tenure of the latter and its important development are to be next examined. § 271. 4. Pure ViUeinage. — The pure villein was a pure slave, except that, for land which he held, he was permitted, like other vassals, to take the oath of fealty, and the customs of the manor always regulated, to some extent, the quantity of services which the lord could require him, as such holder, to perform.^ But, if those customs were violated to his injury, the pure villein tenant had practically no remedy ; for the only court in which he could be heard was the manor court of his own lord, who had done or permitted the wrong.^ In the last analysis, therefore, his services were not only base in character, but also uncertain as to both time and quantity. It was a rare circum- stance, however, for the lord to break through the manorial customs and exact from his villein more burdensome services than they fairly required.* These lowest holders of land were in early ages either villeins regardant, that is, annexed to the land and passing with it, or villeins in gross or at large, that is, attached to the person of the lord and transferable by deed from him to another owner .^ They were, in a word, the lord's property, recoverable in an action at law if they ran away or were stolen, and unable to leave the land without his permission. Tiie villein's children (called nativi) belonged in like manner to the lord ; and if a 1 For a description of this peculiar ^ 1 Poll. & Mait. Hist. Eng. Law (2d writ, see 1 Poll. & Mait. Hist. Eng. Law ed.), p. 356, et seq. (2d ed.), p. 386. It was a quickly oper- ' 1 Poll. & Mait. Hist. Eng. Law (2tl ating writ ; and Britton tells us that the ed.), pp. 3,59, 360. reasons for its existence for the benefit * 2 Blackst. Com. p. *93; I Poll. & of villein sokemeu was that they were Mait. Hist. Eng. Law (2d ed.), pp. 361, the tillers of the king's soil, and dis- 362. putes about that soil should be settled ^ 2 Blackst. Com. p. * 93. by rapid and simple processes. Britton, U. p. 13. 366 HOLDINGS OP REAL PEOPEETY. female villein (who was called a neife) were married without his consent, he had the right to a fine from her father,^ and an action for damages against her husband for thus taking away his property.^ The lord might beat or chastise his villeins with impunity ; yet, as the king's subjects, they were given redress for atrocious injuries by him, such as mahem or rape ; and he was liable criminally for killing or violently injuring a villein.^ It sometimes happened, even with such servile vassals as these, that their services were all commuted for a fixed rent, while they still remained thus attached to the land.* This was usually among the first steps in the development of their hold- ings into copyhold tenure, — the species of tenure next and last to be examined. § 272. 5. Copyhold Tenure — Development and Nature. — When tenure in pure villeinage is said to be unfree, this must be understood as referring distinctively to the tenure, and not necessarily describing the personal status of the tenant. For, as a matter of fact, throughout all the feudal ages, villein tene- ments were frequently held, and the services for them were rendered or supplied, by men who were not villeins, but in their persons were free. In process of time, moreover, many of those who themselves had been villeins were emancipated ; and yet they and their descendants continued to hold the land in the same manner in which they had held it before obtaining their freedom.^ While all these vassals undoubtedly held at first merely at the will of the lord, yet, by the customs which gradually grew up around such holdings in the manors wliere those customs ultimately became matter of record upon the rolls of the various manor courts or courts baron, the will of 1 This obligation to pay for the prir- pear-tree growing in his court, he must ilege of giving his daughter in marriage not fell it, except for the repair of his was called merchet, and it affords an in- house, without the lord's leave. When Btructive instance of the practical slav- he dies, his widow shall pay a heriot of ery of the pure villein. Speaking of thirty shillings and be quit of work for this and similar burdens, Pollock and thirty days. These are common feat- Maitland say, in their history of Eng- ures, and the merchet is of peculiar im- lish law (2d ed.), vol. i. p. 368 : " Our portance, as will be seen hereafter." Stnkeley virgater pays 'merchet,' as 2 o Blackst. Com. p. *9.3. best he may, that is to say, if he wishes s 2 Blackst. Com. p. * 94 ; 1 Poll. & to give his daughter in marriage he Mait. Hist. Eng. Law (2d ed.), p. 412, must pay money to the lord, and the et sen. amount that he has to pay is not fixed. i \ Poll. & Mait. Hist. Eng. Law (2d If he has a foal or calf born of his mare ed.), p. 37.'). or cow, he must not sell it without the 6 2 Blackst. Com. pp. *94, *95. lord's leave. H he has an oak, ash, or THE FEUDAL SYSTEM AND ITS FRUITS. 367 the lords came to be largely controlled and regulated ; and, although there was for a long time no means of enforcing these customs by judicial action against the lord, yet they were deeply rooted in the usages and habits of the people, and any lord who ventured to set them aside and deprive the land- holder of their benefit must have been exceptionally grasping and regardless of public opinion.^ Gradually the king's courts of common law came to recognize and enforce these customs, which had thus grown up within the different manors and were evidenced by the entries on the rolls of the manor courts. And the tenant, who being now free could contend with his lord in any of the king's courts, became thereby enabled, by proving his right by means of a copy of the rolls of the manor court, to retain his land even against the will of his lord.^ The copy of those rolls was, therefore, his only muniment of title ; and he was accordingly said to have his land by copyhold tenure. In brief, then, a copyhold estate may be defined as one which, being originally held in pure villeinage at the will of the lord, came in process of time, by virtue of long con- tinued possession according to fixed customs, to be held by the tenant in spite of any determination of the lord's will, but upon the same services as before and in conformity to the established customs of the manor ; the customs being usually proved in the higher court by copy of the rolls of the respective courts baron (manor courts) in which they were entered.^ § 273. Survival of Copyhold Tenures. — Except as they were affected by their special local customs, copyhold tenures came by degrees to have the same characteristics as the free tenures. There is, at the present time, a large though gradually decreas- ing amount of land in England which is subject to tenure by copyhold. But, of course, villein socage and pure villeinage have long ago disappeared. " It might have been expected," says a recent writer,* " that so anomalous a class of rights as that which constitutes copyhold tenure would before the pres- 1 2 Blackst. Com. pp. *95-*98; Edw. IV. p. 19, that this was the ap- Digby, Hist. Law E. P. (5th ed.) p. 288, propriate remedy, and not a writ of et Sf.g. subpcena, i. e. an application to tlie 2 " The great step seems to have been jurisdiction of the chancellor." the recognition of the right of the ten- ' See Bouvier's Law Diet. " Copy- ant in villeinage to maintain an action of hold;" Burrill's Law Diet. "Copy- trespass against his lord." Digby, Hist. hold." Law P. R. (5th ed.) p. 291. AndDigby * Cigby, Hist. Law K. P. (5th ed.) adds, in a footnote : " It was held in p. 294, a case reported in the Year Book, 7 368 HOLDINGS OP REAL PROPEETT. ent time have been assimilated to the other forms of property in land. This, however, has not been done. Copyholds might at any period have been enfranchised (or converted into free- holds) by the conveyance of the freehold by the lord to the copyholder, or extinguished by surrender of the copyhold by the tenant to the lord.^ Various acts have in recent times created facilities for this process by providing means for the assessment and commutation of the lord's rights and other- wise ; and at the present day either lord or copyholder may compel enfranchisement by talcing the proper steps through the action of the Board of Agriculture." § 274. Manors. — The different forms of tenure have been above described as separate and distinct. And so they were in theory, and largely so in practice. But the finer distinctions between them varied much in different ages and are often hard to catch even at any given time. One vassal, moreover, might hold various pieces of land by different tenures and of different lords. He could have one parcel of A by free and common socage, another of B by knight-service, another of C by a form of serjeanty ; and, even as a free man, he might render or supply servile labor to one of these or to some other lord for land held by an unfree tenure.^ The system of feuds was thus more complicated than a discussion of the few forms of tenure which it produced might at first thought indicate. But it was largely saved from intricacy by the division of most of the land into manors, the orderly distribution of the domain within 1 It is to be again carefully noted Reading at a money rent ; he held lands that the enfranchisement here men- at Crofton in Buckinghamshire of Wil- tioned refers to the tenure and not to Ham de Say by some service that the jury the tenant. The tenants or holders of did not know ; he held a manor in Nor- to-day are all free men ; but their copy-. folk of the bishop of Norwich by the hold lands are held by a tenure which service of a sixth part of a knight's fee is designated unfree, because it is the and by castle-guard ; he held a manor representative of the base tenures of in Sussex of the Earl of Warenne by medieval times. To enfranchise it now the service of one knight ; he held a would be to make the holding of the manor in Hertfordshire of the king in land tenure by free and common socage. chief by the serjeanty of finding a foot- See Wappett V. Eobinson (1903), 1 Ch. soldier for forty days; he held tene- 135. ments in London of the king in chief by ^ Pollock & Maitland [Hist. Eng. socage, and could bequeath them as Law (2d ed.), p. 296] thus describe the chattels. So we must not think that holdings of Sir Roliert de Aguilon, at each man fills but one place in the legal the time of his death in 1287 : " He structare of feudalism. In a remote held lands in Greatham in Hampshire past this may have been so ; but it is of the king at a rent of ISs. ; he held not so in the age that defines the vari- lands at Hoo in Kent of the abbot of ous tenures." THE FEUDAL SYSTEM AND ITS FRUITS. 369 each of these among the various classes of tenants and the primitive yet systematic administration of their affairs by the manorial courts or courts baron. A manor was a large tract of land, originally granted by the king to a person of rank, portions of which (terrce tenementales) were let out by the grantee or mesne lord to his vassals. ^ No exact quantity of territory marked the extent of all manors : some were larger, some smaller, but all were extensive and important tracts ; each was a unit in the system of agriculture and the management of property, and in each its lord held a court which was called the court baron or manor court.^ A greater lord was often the proprietor of more than one of these tracts ; and, in addition to a court for each of his manors, he would sometimes have a central court for the principal free- holders of them all.^ Each manor was divided roughly into four parts, (a) The lord kept in his own hands as much land as was reasonably required for the use of himself and his family, his bailiffs and servants. This was his demesne land, and on it was located his house or homestead, (b) Another portion was assigned to the freeholders within the manor ; i. e. those who held by free tenure, such as knight-service, free socage, etc. (c) Still another part was held and cultivated by the unfree vassals; and, when the land was held by the lord in ancient demesne, some of such vassals were free sokemen, while others were pure villeins, (d) Lastly, there was uni- formly a fourth part of the manor which was left waste or uncultivated and used for public roads and pasture lands or commons for the lord and all his tenants.* Doubtless the various tenements of these four distinct legal portions lay inter- mingled, as convenience or order of distribution might dictate ; different portions of the manor would remain waste or unculti- vated in different years, and the tenure of a given piece of the land would sometimes change from one kind to another. But, at any point of time, the complete manor had these four clearly distinguished species of tehements.^ And, for settling property disputes among his tenants and for redressing misdemeanors and nuisances, the lord's court baron had jurisdiction througli- 1 Bonvier, Law Diet. " Manor." Lect. 62, 63 ; Wms. R. P. p. * 119 ; 1 Poll. 2 2 Blackst. Cora. p. *90. & Mait Hist. Eng. Law (2d ed.), p. 364. » 1 Poll. & Mait. Hist. Eng. Law (2d ^ i poii. & Mait. Hist. Eng. Law (2d ed), p. 597. ed.), p. 364. * 2 Blackst. Com. p. *90; 2 Sulliv. 24 370 HOLDINGS OF EEAL PROPERTY. out the manor. It is from the records of the manorial customs and rights, inscribed upon the rolls of this court, that the copy was obtained, which, as above shown, constitutes the only available evidence of his title for the copyhold owner of land.^ Not all the lands in England were thus included within manors ; but the manor constituted the property and jurisdic- tional unit of most of the holdings. Manors existed before the conquest. They were then, and for some time during feudal supremacy, largely coincident in extent with the vils {villas) ; and, as time advanced, a process is discernible by which some of them developed ultimately into boroughs of modern times.^ Descent and Alienation of Realty, as affected hy Feuds. § 275. Duration of the Vassal's Holding. — There can be little doubt that in Anglo-Saxon times, when the holdings of land were chiefly alodial, men generally owned them in such a way that they could at pleasure dispose of them by will, or by deed or other act inter vivos, and upon the death of their owner intestate they could descend to his heirs at law.* But the entire theory and structure of the feudal system were opposed to such absolute power of disposition. The lord selected his vassals with special reference to their personal characteristics. He wanted them to be always ready and able to fight for him in the wars, or promptly and faithfully to render the other ser- vices which were his due. He therefore naturally objected to the tenant's alienation of his land, without his consent, to a stranger ; and he hedged about the right of inheritance with such incidents as relief, primer seisin, wardship and marriage, as a compensation to himself for accepting as tenant a minor heir, who was a female or too young for warfare, in place of the deceased ancestor, who had been a brave and capable knight. 1 § 272, supra. The existence of consequences. In particular, it seems the manor court was, perhaps, the cru- to us that the men of the time would cial test of the actual existence of a generally have argued from the court manor. If there ceased, at any time, to to the manor, rather than from the he enough freeholders (at least two) to manor to the court, and would have hold this court, the manor ceased to he. said, 'A single court is held for it, 2 Blaclist. Com. p. * 90. " We are in- therefore it is a manor,' rather than dined to thinlc," say Pollock & Mait- 'It is a manor and therefore it has land [Hist. Eng. Law (2d ed.), p. 605], a court.' " " that the mere fact that a certain tract 2 ggg i poll. & Mait. Hist. Eng. Law, of land or a certain complex of rights ch. 3, §§ 7, 8. was a manorium had no immediate legal ^ § 247, supra. THE FEUDAL SYSTEM AND ITS PKUIT3. 371 Hence the completion of oui- outline of feudal holdings requires a brief discussion of their effects upon (a) the descent of real property from ancestor to heir, (b) its alienation by will, and (c) its alienation by deed or other act inter vivos. And, in connection with these, seisin and disseisin of real property must be explained. § 276. (a) Descent of Feuds. — Although we can not state the exact times when the changes occurred, yet it is certain that, from being in their original form mere precarious hold- ings (or lenefices) retained purely at the will of the lord,^ feudal lands came gradually to be let out for a short fixed period, as for a year at a time ; then by degrees they were given over to the tenants for life ; and finally, as stress was laid on the hardship of depriving children of that which their father had held as his own, feuds became hereditary and were ordinarily bestowed upon the vassals for themselves and their heirs.^ The transfer of tenements thus to a man " and his heirs," when first employed, was regarded as giving them to him while he lived and then to his heirs ; and the relief which the heir must pay upon taking up the land after the death of his ancestor was a natural and direct outgrowth of this theory.** But the later and permanent construction of those words was that they were simply the technical, legal means of indicating that the vassal himself, the first taker to whom the lord gave the land, was to have the perpetual ownership of it, so that, upon his death still owning it, it might descend by operation of law from him to his heirs.* This result emerged in England not long after the Conquest. And there quickly followed upon it the rule of primogeniture, by which in most parts of that country, even down to the present time, the oldest son is the sole heir; while, if there be daughters but no son, they share the property equally, as together constituting the heir of their father.^ § 277. (b) Alienation by Will. — The disposition of real property by will, in common-law jurisdictions, and the effects of feudalism upon it may be outlined in six distinct historical periods as follows : Anglo-Saxon Period. — Before the Norman Conquest, owners of lands could will them away at death ; and, although 1 § 251, supra. « See 2 Poll. & Mait. Hist. Eng. Law, 2 2 Blackst. Com. p. * 55. eh. 4, §§ 1, 2. 'l » §256, supra. 6 2 Blackst. Com. pp. *211-*216; 1 Digby, Hist. Law R. P. (5th ed.) p. 421. 372 HOLDINGS OF REAL PBOPEETY. there were doubtless some restrictions placed upon their right to do so, such for example as the payment of a heriot to the king for his consent, yet it is now quite well established, especially as to such owners who had large means and high rank, that they more often died testate than intestate as to their property both real and personal.^ Feudal Period. — Eveu after feuds came to be heritable, it was thought to be an injustice to the lord that the tenant should devise them to persons who might be wanting in those personal qualities for which he had been chosen as vassal. The heir, the blood relative of the deceased tenant, would probably have some or all of the same characteristics which had commended the tenant himself to the lord. But a devisee of the land might be an entire stranger, possibly an enemy of the lord, or one whom tor other reasons he would not willingly accept as vassal. The result was that, except in some favored localities, as in Kent with its gavelkind customs, feudalism soon destroyed the power of every one but the king to will away the complete legal title to lands in England.^ But, during the fourteenth century, the system, which was fos- tered and developed by the courts of equity, of having the legal title to lands and tenements held by one person for the use or benefit of another who thus got all the utility and enjoyment of the property, did away with the difficulties which otherwise would have arisen. Equity treated this owner of the use as the real owner of the land, and compelled the holder of the legal title to recognize the use in favor of him to whom it was given and any one to whom he might will it away. And, by the beginning of the fifteenth century, the system was complete whereby an owner of land, who desired to devise it, deeded it away to some one else to hold to his own use, or to the use of any one whom he might designate, and then willed away the use which he had thus put at his own dis- posal. It thus came about that, from the time of the complete introduction of feuds into England to the 27th year of Henry VIII. (1535), when the famous Statute of Uses (hereafter ex- plained) was enacted, the one important method of disposing of interests in real property by will was by the devising of ' See 2 Poll. & Mait. Hist. Eng. But an interest in real property for Law (2d ed.), pp. 320-322 ; Bigby, merely a term of years, such interest Hist. Law R. P. (.5th ed.) pp. 13, 15. being a chattel real, could still be dis- '^ Glanv. vii. 1 ; 2 Poll. & Mait. posed of by will the same as other per- Hist. Eng. Law (2d ed.), pp. 325-332. sonal property. THE FEUDAL SYSTEM AND ITS PETJITS. 373 uses in lands which were held for the benefit of the testators and their devisees. ^ Period under Statute of Uses. — The statute of uses, en- acted in 1535 (27 Hen. VIII. ch. 10), provided tliat the legal title should follow the use — that a grant or transfer to A for the use of B should give to B all the ownership includ- ing the legal title. And, since under the feudal theory this legal title could not ordinarily be the subject matter of a devise, and it must now follow the use, it was decided that this statute had destroyed all possibility of merely devising the use.^ There were practically no wills of realty in England for five years thereafter — until the enactment of the Statute of Wills in the thirty-second year of Henry VIII. Period under Statute of Wills. — By the statute 82 Hen. VIII. ch. 32, § 1, which was interpreted and explained by that of 34 and 35 Hen. VIII. ch. 5,^ all persons except married women, infants, idiots, and persons of unsound mind were enabled to devise, by will in writing, all their lands held by socage tenure and two-thirds of those held by knight-service. And, by virtue of those acts, testators disposed of such lands by wills — the only requisite of which was that they should be in writing — until the enactment of the Statute of Frauds, 29 Car. II. ch. 3 (1677). Period under Statute of Frauds. — By the last- mentioned act, it was made a necessary condition of a will of real prop- erty that it should be signed by the testator, or by some other person in his presence and with his knowledge and consent, and be attested and subscribed by at least three credible wit- nesses.* Under tliis famous statute, real-property wills were made in England and the various states of this country, until modern legislation in each jurisdiction respectively prescribed the requisites of such dispositions of realty. 1 2 Blackst. Com. pp. *374, *375 ; 2 title must follow the use, to devise the Poll. & Mait. Hist. Eng. Law (2d ed.), use was in effect to devise the legal title, pp. 233-239. and, since this latter was forbidden by 2 This was not a necessary decision the law of feuds, the statute had done (if it were even logical) from tlie word- away with all wills of interests in ing of the statute and its operation. realty. The courts might logically have held ^ The first act was loosely and in- that a testator's will of the use in itself artificially drawn, and needed the later passed nothing but the use, and that statute, which was full and explanatory, then the statute carried the legal title * The statute said " three or four to the devisee. But, as a matter of credible witnesses," which, of course, fact, they decided that, since the legal meant three or more. 374 HOLDINGS OP EEAL PROPERTY. Period under Modern Statutes. — The English statute which now regulates wills of property, both real and personal, went into operation January 1, 1838 (Act of 1 Vict. ch. 26, as modified and explained by 15 & 16 Vict. ch. 24). ^ That of New York took effect January 1, 1830. (a) And so in each state the modern wills legislation particularly prescribes the method by which real property may be devised. § 278. (c) Alienation by Act Inter Vivos. — It was explained above that, during the Anglo-Saxon period, book-lands were probably freely alienable by deed as well as by will, while the folk -lands were clogged with important restrictions in this respect. It was also shown that the book-lands, with their alodial characteristics, continued to be held as such for some little time after the Conquest ; and then came, like all other real property, under the absolute control of the feudal system.^ It is now impossible accurately to determine the restrictions which the feudal polity imposed upon the power of the tenants or vassals voluntarily to transfer their holdings and put other owners in the places which they themselves had occupied. But it is certain that, even after the heir's power to obstruct ■ his ancestor's disposition of land was lost,^ the lord could pre- vent direct alienation which would operate to his detriment* Being thus hampered in regard to so important an incident of property ownership — the right to dispose of it as they might wish — the vassals early resorted to subinfeudation of their (a) The requirements of the New York Statute as to the execution of ■wills are quoted p. 106, note (a), supra. 1 The priircipal requirements of this already to the heir; and the ancestor statute are that the will shall be in could not dispose of it. But -when it writing, signed at the end by the testa- became settled, as it did even before tor, or by some other person 'in his Magna Charta, that a conveyance to A presence and by his direction, that his "and his heirs" gave the entire and signature shall be acknowledged by the absolute ownership to A and nothing testator in the presence of two or more to his heirs, it followed that they could witnesses present at the same time, and not place any restrictions upon his that the witnesses shall attest and sub- alienation of every estate and interest scribe the will in the presence of the in the land. If he died without having; testator. disposed of it, they could inherit it from ^ §§ 247-249, supra. him ; but they could not insist on his ' As long as the transfer of real keeping It till he died, or for any other property to one "and his heirs" was period. Bracton, lib. ii. cap. 19, fol. regarded as in itself bestowing an inter- 45 ; Digby, Hist. Law R. P. (5th ed.) est upon the heirs, they could prevent p. 162. the ancestor from alienating against * 1 Poll. & Mait. Hist. Eng. Law . their will. The inheritance belonged (2d ed.), pp. 329-340. ■ THE FEUDAL SYSTEM AND ITS FRUITS. 375 tenements ; that is they handed them over to others to hold of themselves, while they retained the position of tenants to their original lords. Thus, if A were the lord and B the vassal, and B, desiring to sell his feud, met with objections or restrictions emanating from A, B transferred the property to C to hold of B ; and thus C became the vassal of B and not of A, while B, instead of ceasing to have any interest in the land as he would have done if he could have sold it outright, retained his posi- tion and obligations in regard to it as the vassal of A.^ B might treat his entire feud, or any portion or portions of it, in this manner.^ Even upon this method of subinfeudating, how- ever, there seem to have arisen by custom some restrictions in favor of the lord. And the statutes hereafter described, which curtailed and ultimately destroyed subinfeudation, at first merely defined and then amplified pre-existing restraints.^ § 279. Effects of Magna Charta on Alienation Inter Vivos. — The difficulty, whicli subinfeudation was constantly producing or tlireatening for the lords, was that, while it still left tliem against their own tenants the rights incident to tenure, sucli as aids, relief, marriage, wardship, and escheat, it miglit seriously diminish the value of those rights. If, for example, a tenant by knight-service subinfeudated the tenement to another to hold at a yearly rent of a pound of pepper, and then died leaving an infant heir, his lord, instead of being entitled to enjoy the land itself till such heir became of age, could merely recover from the sub-feudatory a pound of pepper annually during that time. And, if the vassal who had thus subinfeudated died without heirs, his lord, instead of obtaining by escheat the absolute use of the land, received only the rent paid by the subtenant.* The first attempt to obviate such difficulties by statute was made in the Magna Charta of 1217, which enacts that " No free man shall henceforth give or sell so much of his land as that out of the residue he may not sufficiently do to the lord of the fee the service which pertains to that fee." If the tenant presumed to convey more than was thus permitted, the excessive gift or sale could be avoided by his lord.^ 1 2 Blackst. Com. pp. * 91, * 92; . ' 1 Poll. & Mait. Hist. Eng. Law Digby, Hist. Law R. P. (5th ed.) pp. (2d ed.), p. 343. 234, 235. * 1 Poll. & Mait. Hist. Eng. Law 2 1 Poll. & Mait. Hist. Eng. Law (2d ed.), p. 330. (2d ed.), p. 330, ^ Charter 1217, ch. 39 ; Coke, 2d inst. 65. 376 HOLDINGS OP REAL PROPERTY. § 280. Efifecta of the Statute of Quia Emptores on Alienation Inter Vivos. — But this restriction of Magna Charta proving to be vague and unsatisfactory, the entire system of subinfeudation was swept away by the statute of Westminster III., or Quia Emptores [18 Edw. I. ch. 1 (1290)], which is a very important landmark of real-property law. It declared that every free man might sell at his own pleasure his lands and tenements, or any part of them, but so that the transferee should hold of the same lord and by the same services and customs, of whom and by which the transferor had held. The services were to be ratably apportioned if only a part of such lands or tenements was sold by the tenant.^ The statute applied only to the alienation of the entire fee simple — the entire interest or estate — of the land sold ; and did not prevent a tenant from creating a species of subtenure by letting out the land for life or any other period shorter than his own interest, retain- ing for himself the residue of interest, called the " reversion," and having the person to whom he thus sublet as his own tenant.^ Neither did the act apply to the tenants in capite ; but it, and the subsequent enactments called Prerogativa Regis [17 Edw. II. ch. 6 (1324), and 34 Edw. III. ch. 15 (1361) ], left it as a part of the king's prerogative to permit or prevent at will direct alienation or subinfeudation by those who held immediately of him.^ The net result was the effectual check- ing of all subinfeudation, except such as the king allowed his own tenants to make, and the enabling of all free landholders but those who held directly of the crown absolutely to alienate their entire estates and interests in all or any parts of the tenements which they held in fee simple. The king could still collect fines from his vassals for granting to them the privilege of selling ; but the mesne lords had no control over alienation of the fee simple by their tenants, except the power to require ^ See the statute in fall in Bigby, 1 Poll. & Mait. Hist. Eng. Law (2d ed.), Hist. Law E. P. (5th ed.) pp. 236-239. p. 337. "The statute is a compromise; the - The words of the statute are: "And great lords had to concede to their it is to wit that this statute extendeth tenants a full liberty of alienation by but only to lands holden in fee simple." way of substitution — substitution even See Digby, Hist. Law R. P. (,ith ed.) of many tenants for one tenant — and p. 238; 1 Leake, 19, 317 ; Challis, R. P. thus incur a danger of losing their ser- 18, 20, 30. vices by the process of apportionment ; 8 2 Blackst. Com. pp. •91,* 92; 1 on the other hand, subinfeudation with Poll. & Mait. Hist. Eng. Law (2d ed.), its consequent depreciation of escheats, p. 337. wardships and marriages was stopped." THE FEUDAL SYSTEM AND ITS FRUITS. 377 that when they sold they should sell outright. This meant that permanent new subtenures could not be made without the king's license : and consequently all manors existing in Eng- land at tlie present time, with the possible exception of a few expressly authorized by the crown, and all holdings in fee simple of any lord other than the king must have been created before the Statute of Quia Emptores went into operation.^ § 281. Statute De Donis — Summary as to Alienation Inter Vivos. — It is to be added that, five years before the enactment of the last-named statute, estates tail, i. e., interests in land conveyed to one and the heirs of his body as distinguished from his heirs generally, were rendered wholly inalienable by the Statute de Donis Oonditionalibus.^ The exact nature of such estates or interests in land, and the operation of the Statute de Donis Conditiohalihus upon them will be explained hereafter ; and how tliey have since become alienable will be described. But the general effect of that statute is here noted for the sake of completeness in dealing with the question of alienation of real property. And, if now we look at all possible interests in such property immediately after the Statute of Quia Emptores took effect, we arrive at the following summary ; namely, (1) subinfeudation of tenements held in fee simple was impossible, except by the king's tenants pursuant to his license ; (2) all tenements held in fee simple of any one but the king could be freely aliened outright; (3) estates tail could not be aliened at all ; (4) all lesser interests in real property, such as estates for life or for terms of years, could be clogged witli any reason- able restrictions as to alienation which the parties saw fit to impose. § 282. Restrictions on Alienation removed by Statute 12, Car. II. ch. 24 — Present Results. — Since the Statute of Quia Emptores became a law, and as one of the logical and necessary consequences flowing from it, it has been impossible in both England and America for any one (except the king), who con- veys real property in fee simple, to place any material restric- tion upon the power of the alienee himself to sell. Thus, the notion, so common to us, that we may dispose when and how we please of lands or tenements which are wholly and abso- 1 Blackst. Com. p. * 92 ; Wms. R. license from the crown since 1290. P. 119, 127; Digby, Hist. Law R. P. Challis, R. P. 19. (5th ed.) p. 235. There have been a ^ Statute of Westm. II. 13 Edw. I. few new manors created by special ch. 1 (1285), which see in full in Digby, Hist. Law R. P. (5th ed.) pp. 226-230. 378 HOLDINGS OP REAL PROPERTY. lutely ours, is not an inherent common-law principle that has always operated ; but it has its roots in that famous statute made practically necessary by the development of feudalism. J3y the death of intermediate lords without heirs, the occa- sional surrender of their ownership to their superiors, etc., the ladders of feudal tenures gradually lost their rungs and were thus shortened, after the Statute of Quia Emptores, until most of the holders of real property came to be the king's tenants in chief .1 That statute did not operate in favor of these latter ; and thus the difficulties of tenure, especially as to those who held by knight-service, were constantly affecting more and more vassals. As soon as he lost the mesne lord between him- self and the crown and so became a holder in capite, the tenant became subject to primer seisin, or fines for alienation, or both, in addition to all the other burdens incident to his ten- ure. Hence it was that the statute 12 Car. II. ch. 24 (1660), above explained more in detail,^ was enacted to abolish prac- tically all of those onerous appendages of the feudal holdings. Since that time alienation in fee simple, by all holders of land, has been substantially unrestricted, except as to the manner iu which it must be accomplished. And the uniform method of transfer to-day, in both England and America, as prescribed by the statutes of frauds [based on that of 29 Car. II. ch. 3 (1677)], is by a deed in writing.^ (a) Seisin. § 283. SeiBin defined and classified. — The feudal idea of seisin is so inwrought into the entire structure of the law of (a) In New York, the statute, which was formerly 2 R. S. 134, § 6, 135, § 7, and 137, § 2, and is now Real Prop. Law (L. 1896, ch. 547), § 207, provides that, " An estate or interest in real property, other than a lease for a term not exceeding one year, or any trust or power, over or concern- ing real property, or in any manner relating thereto, can not be created, granted, assigned, surrendered, or declared, unless by act or operation of law, or by a deed or conveyance in writing, subscribed by the person cre- ating, granting, assigning, surrendering, or declaring the same, or by his lawful agent, thereunto authorized by writing. But this section does not affect the power of a testator in the disposition of his real property by will ; nor prevent any trust from arising or being extinguished by implication or operation of law, nor any declaration of trust from being proved by a writing subscribed by the person declaring the same." 1 Digby, Hist. Law K. P. (5th ed.) » § 262, supra. p. 235. • 1 Stim. Amer. Stat. L. §§ 4140, 4143. THE FEUDAL SYSTEM AND ITS PEUITS. 379 real property that it is very difficult to understand and apply the reasoning of the courts, either ancient or modern, upon the subject, without a clear understanding of the unfolding and nature of that idea.-' When first used in the common law, seisin meant simply and only possession. Before the end of the thirteenth cen- tury, it applied to the possession of chattels as well as land. Subsequently "its meaning was restricted to the possession of lands and tenements. And finally, as its settled meaning, it came to involve the thought of a freehold interest in real prop- erty and either the possession or the riglit to the possession of the same.^ When estates in real property are hereafter discussed, the nature of a freehold interest, or "freehold estate," will be fully explained. It will suffice here to say that it is an interest in realty for life or of inheritance. If A have a piece of land to hold during his own life or during the life of B, or for him and his heirs forever, or for him and the heirs of his body, he has a freehold estate in the same. Now, no one can be seised of realty without having either the possession or the unobstructed right to the possession of land, together with the claim therein of a freehold estate. When it involves actual possession it is seisin in fact ; when there is no actual possession, but an unobstructed right to take pos- session exists, it is seisin m law. It is best, therefore, if a set definition be required, to say that seisin is a compound idea, involving seisin in fact and seisin in law : seisin in fact is the actual possession of real property together with the claim of a freehold estate in the same ; ^ seisin in law is the claim of a freehold estate in, and the present right to the possession of real property, which is not being held adversely by another.* Thus-, when one is actually occupying an acre of land, which he claims for his life or for himself and his heirs, he is seised in fact of that land. And when one owns an acre of land, the title to which has descended or been devised to him, 1 " In the history of our law there is ^ Lit. 324 ; Co. Lit. 200 b, 201 a ; no idea more cardinal than that of 2 Poll. & Mait. Hist. Eng. Law (2d ed.), seisin. Even in the law of the present pp. 29-39. day it plays a part which must be ° Co. Lit. 266 b, n. 217; Com. Dig. studied by every lawyer ; but in the Seisin, A ; 2 Poll. & Mait. Hist. Eng. past it was so important that we may Law (2d ed.), p. 40. almost say that the whole system of ^ Ibid. ; 1 Cruise Dig. tit. ii. ch. iil onr land law was law about seisin and § 34. its consequences." 2 Foil. & Mait. Hist. Eng. Law (2d ed.), p. 29. 380 HOLDINGS OF EEAL PROPERTY. and he claims a freehold estate in it, but he has not yet taken possession of it, and no one is in possession holding adversely to him, he is seised in law of that land. It is thus apparent that seisin is quite different from mere possession. A tres- passer, a licensee upon land, or a tenant for years or at will may have possession, and generally does so ; but as such a holder he is not seised. ^ The possession of a tenant for years or at will, however, is ordinarily for the benefit of his land- lord, the owner of the freehold estate ; so that then the latter has the seisin in fact, because he both claims a freehold estate in the property and has possession of it through his tenant.^ Incorporeal hereditaments, of course, can not be possessed, or manually held, in the same way as corporeal ones. But the right to receive the income, the rents and profits, from them is treated as equivalent to possession ; and he who has tliis right at present and claims a freehold estate in the easement, fran- chise, or other kind of incorporeal hereditament, has the seisin thereof.'' 1 " We may say that the animus rfc- quired of the person who is ' seised of free tenement ' is the intent to hold that land as though he were tenant for life or tenant in fee, holding by some free tenure." 2 Poll. & Mait. Hist. Eng. Law (2d ed.), p. 40. " Bract, book ii. ch. ix. fol. 27. 3 2 Poll. & Mait. Hist. Eng. Law (2d ed.), pp. 34, 39. It may be noted here that future interests in real property, such as remainders and reversions, are incorporeal in their nature, and that owners of them are sometimes said to be seised. There is no difficulty in understanding this when the preceding estate is only a term of years. Thus, if land be held by A for ton years, then to go to B for life or in fee, A takes possession for B ; B has, therefore, the possession and the freehold estate, and is seised in fact. But when the first estate is a freehold, there is apt to be ambiguity created by speaking of the owner of the next or future estate as being seised. For, when A owns a piece of land for life, and it is then to go to B and his heirs, if A have posses- sion, it is for himself, and he and not B has the seisin in fact. Yet B is often spoken of, under such circumstances, as being seised of his future estate in reversion or in remainder. When the word seisin is thus used, it must be understood as employed in a broad, general sense which is closely synony- mous with ownership. And such a use of the word must not be allowed to cause confusion as to its accurate and technical meaning above explained. Also, in dealing with estates and interests which were developed under the Statute of Uses, those who have legal estates, either in possession, or in remainder or reversion, provided no one has wrongfully taken the land from them and reduced their interest to a mere right of entry, are often said by the courts and writers to be seised of the property, even thongh they have no possession. This, again, is a broader and looser meaning of the word than that given in the text ; and this general use of it must not be allowed to cause confusion ; 2 Prest. Abr. 282 ; Co. Lit. 266 b; Cook v. Hammond, 4 Mason (U. S. Cir. Ct.), 467, 489 ; 12 Law Quart. Rev. 239, 247. It has proved in some respects unfortunate that these loose and general meanings have been applied by the best writers to the word seisin. But the student will ordinarily avoid THE FEUDAL SYSTEM AND ITS FRUITS. 381 § 284. Seisia not allowed to be in Abeyance. — The com- mon law, unaffected by statute, will never permit the seisin of real property to be lost or in abeyance, for an instant. There must always be some one in being, in whom the seisin resides.^ This is a very stringent rule, which has often defeated estates and interests that otherwise would have been valid. If, for example, land were conveyed by deed to A for ten years, and then to a child not in being and his heirs forever, the common law would not allow that any interest be thus created for the child : and the reason was that, since A had only an estate for years, he had no seisin ; there could be no seisin, of course, in a child not in being ; and, therefore, such an arrangement, if allowed to be good, would put the seisin in abeyance until the child came into being.^ § 285. Only One Seisin at a Time — Adverse Claimants. — There can be only one seisin at a time of a piece of real prop- erty. When two or more persons are in possession, holding it jointly or in common, the seisin is in all of them considered in law as a unit. When two or more are in possession, claiming freehold estates adversely to one another, the seisin resides in the one of them, if any, who has the right to the possession ; ^ and, if no one of them have any right, in the one who first ac- quired the possession.* When seisin by any person or class of uncertainty by regarding the word as upon whom this writ could be served, used in its strict, technical sense, unless the court would have lost jurisdiction the context shows that it is being of the land during that time. And the employed with a broader and more requirement that there should always general signification. It is such a fun- be such an owner and holder was tersely damental idea in real -property law that expressed by saying there must always it must be frequently employed ; and by be some one who was " seised to the most courts and text-writers it is gener- prcBcipe " of the land. 1 Prest. Est. ally used in its original and narrower pp. * 208, * 255; 1 Atk. Conv. 11. See sense. WaUach v. Van Riswick, 92 U. S. 202, 1 This was because there must 212. always be some one, who was a free- " This example illustrates one of holder, to render the services due to the important common-law rules relat- the lord ; and also because there must ing to contingent remainders, which always be a freeholder to answer in will be fully discussed hereafter. See any real action which might be brought also 1 Prest. Est. 255. for the recovery of the property. Such ^ Barr u. Gratz, 4 Wheat. (U. S.) an action had to be brought against the 213 ; Slater v. Rawson, 6 Met. (Mass.) ' immediate freehold owner of the land, 439; Means v. Wells. 12 Met. (Mass.) and the court writ served upon him 356 ; Look v. Norton, 55 Me. 103 ; was called the prascipe, this being the Monroe u. Luke, 1 Met. (Mass.) 459, first word of the mandatory part of the 466. Tvrit, — prcEcipe quod reddat, etc. If * But if a, person have possession there could have been any time during without title, an intent to assert a free- which there was no freehold owner hold estate in the laud must be proved, 382 HOLDINGS OF REAL PROPERTY. persons is once proved or admitted, it is presumed to continue till the contrary is shown. ^ And, by virtue of modern statutes in most jurisdictions, the rightful owner of land which is un- occupied is deemed to have the possession and seisin thereof, until it is proved that he has been deprived of them by the actual possession and adverse claim of another person.^ (a) § 286. Disseisin. — The act of ousting a person from land and depriving him of seisin is a disseisin. It involves not only dispossession, but also the claim (whether well founded or not) by the disseisor of a freehold estate in the land. It is the act which lays the foundation for the acquisition of title by adverse possession under modern statutes. In the common law, the disseisor, the wrongdoer, while he may be turned out by the rightful owner, either by actual re-entry by the latter or by process of law, has a defeasible title, and for many pur- poses acts done by him are as efPectual as if he were the ti'ue owner. The person wrongfully ousted, the disseisee, has only the right to regain his possession and make his title again com- plete by an action at law or by re-entry. And one of these remedies — that by re-entry, or regaining his possession — is lost by his failure to exercise it in the proper way and within the proper time, or before the seisin passes from the disseisor to his heir by descent, or to any other person by feoffment and livery of seisin.^ The last-named method of transfer will be (a) The New York statute says : " In an action to recover real property or the possession thereof, the person who establishes a legal title to the premises is presumed to have been possessed thereof, within the time re- quired by law ; and the occupation of the premises, by another person, is deemed to have heen under and in subordination to the legal title, unless the premises have been held and possessed adversely to the legal title, for twenty years before the commencement of the action." N. Y. Code Civ. Pro. § 368. See Deering v. Reillv, 167 N. Y. 184, 192; Lewis ». N Y. & H. R. Co., 162 N. Y. 220; Archibald v. N. Y. C. & H. R. R. Co., 157 N. Y. 574, 579; Arents v. L. I. R. Co., 156 N. Y. 1, 9; Doherty v. Matsell, 119 N. Y. 646 ; Yates v. Van De Bogert, 56 N. Y. 526, 532. in order to show that he has the seisin. 108-115. At common law, the disseisee Bradstreet v. Huntington, 5 Pet. (U. S.) could exercise his right of entry by 402 ; Ewing v. Burnett, 11 Pet. (U. S.) actually re-entering upon the land ; or, 41, 52. if he were prevented from doing this 1 Brown v. King, 5 Met. (Mass.) peaceably, by going yearly near the land 173. and asserting his claim. This latter 2 1 Stim. Amer. Stat. L. §§ 1400, was designated a "continual claim." Tf 1401. he failed to assert his right in either of 8 Lit. §§ 385, 414, 417, 422, 593; these ways, he might lose the power of Digby, Hist. Law E. P. (5th ed.) pp. doing so by the death of the disseisor in THE FEUDAL SYSTEM AND ITS FRUITS. 383 explained in the following section. But it is to be added here that the common-law rules and principles as to disseisin and its effects are now largely modified by statutes, which will be explained in treating of titles to real property.^ §287. Livery of Seisin — Grant — Attornment. — The com- mon-law voluntary transfer of seisin of land from one to another was effected by a formal proceeding called " livery of seisin." The parties went upon the land to be conveyed, and in the presence of the other freeholders (spares curice) of the manor or of the same lord, the transferor delivered to the transferee, " in the name of seisin of tlie land," a twig, stone, piece of turf, or other article taken from the land ; or sometimes he took off his coat and placed it upon the purchaser, as a symbol of a clothing of him (investiture) with the seisin and ownership of the property.^ If for any reason they could not go upon the land, they went within sight of it, and the owner gave the other authority to enter ; and this was effectual to pass the seisin and ownership, provided the transferee actually entered upon the land during the lifetime of the transferor.^ This latter method was designated " livery in law," while the former method, the proceeding upon the land itself, was " livery in fact." * Either ceremony was ordinarily accompanied by a deed or charter of " feoffment," as it was called, which attested the livery of possession or his alienation of his in- pp. *315, *316 ; Thoroughgood's Case, terest; and the disseisee would then be 9 Coke, 136 b. "Great importance was compelled to resort to legal proceedings attached to the notoriety of the trans- to regain a complete title. By the action. That all the neighbors might death of the disseisor in possession, and know that A was tenant to B, from the the taking of his place by his heir, there fact that open livery of seisin had been was said to be a " descent-cast," which made to him, was of the utmost inipor- " tolled" (or barred) "the entry" by tance to B in order to protect and to the rightful owner. These technical enable him to assert his right as lord, principles, which are explained in full For in case of dispute as to the title to in the 10th chapter of 3 Blackstone's the land.s, or the right to services, aids. Commentaries, gave rise to much litiga- or reliefs, the fact of this open and tion and subtle refinement. Most of notorious livery of. seisin enabled the them were abolished in England by the lord to appeal to the tribunal before statute 3 & 4 Wm. IV". ch. 27 ; and they which, since the reforms of Henry II., have been done away with or modified suits relating to land were commonly by statutes in this country, so that title decided, — the verdict of twelve legates is now regained from a disseisor either homines de vicineto, who would know byactually getting him out and retaking themselves or have heard from their complete possession in a peaceable man- fathers the truth of the matter." ner, or by the aid of the court through Dighy, Hist. LawR. P. (5th ed ) p. 147. an action of ejectment. ^2 Blackst. Com. p. *316; also ^ See preceding note. authorities cited in preceding note. 2 Bract, lib. ii. ch. xviii. fol 39 ; Lit. * 2 Blackst. Com. pp. * 315, * 316. § 59 ; Co. Lit. 48, 49 ; 2 Blackst. Com. 384 HOLDINGS OP REAL PROPERTY. seisin and stated the purpose, nature, and extent of the trans- fer. When a deed was thus employed, the entire transaction was known as a feoffment with livery of seisin.^ And such a transfer, though now almost wholly obsolete, would still be effectual in passing title, in any jurisdiction where it has not been abolished by statute.^ (a)' Since a feoffment with livery of seisin operated merely by transfer of possession, it might be wrongfully made by one who had rightful temporary pos- session in behalf of the permanent owner of the land. Hence it was that a tenant for life or for a term of years could dis- seise the landlord, or succeeding owner of the freehold, by so disposing of the property. His act was known as a tortious feoffment or alienation, which was (and, where statute has not affected it, still is) a cause of forfeiture of the wrongdoer's interest in the property.^ There can be no livery of seisin of things of which there can be no actual manual possession. Therefore incorporeal hereditaments and future mterests in corporeal property which the owner can not yet possess have always been incapable of transfer by feoffment and livery. A deed, which is called a " grant," has always been required for their conveyance. Hence the distinction, on which the common law laid much emphasis, between those things which " lie in livery " and those which " lie in grant." * (b) A grant, not involving livery of (a) In New York, feofiment with livery of seisin was abolished by the Revised Statutes, Jan. 1, 1830. 1 R. S. 73S, § 136, which is now Real Property Law (L. 1896, ch. 547), § 206. For an illustration of such a transfer here before that date, see McGregor v. Comstock, 17 N. Y. 162, 164, 171. See also Sparrow v. Kingman, 1 N. Y. 242, 250, 251; Varick v. Jackson, 2 Wend. 158, 203. (b) The New York statutes have made the grant the broad general form of deed for conveying both corporeal and incorporeal hereditaments ; and, where other kinds of instruments are authorized for the transfer of free- hold estates, it is declared that they shall be construed as grants. N. Y. Real Property Law (L. 1896, ch. 547), §§ 207-211. 1 2 Poll. & Mait. Hist. Eng. Law Touchst. 228 ; Digby, Hist. Law R. P. (2d ed.), pp. 83-90; Digby, Hist. Law (5th ed.) pp. 252-262. The grant of R. P. (5th ed.) pp. 144, 145. incorporeal hereditaments is a form of 2 In some of the United States, feoft- contract which was required to be in ment with livery of seisin is expressly writing even before any statute of abolished ; and in many of them it is frauds was enacted. The grant has declared by statute to be unnecessary. grown in favor in modern law, and, in 1 Stim. Amer. Stat. L. § 1470. many jurisdictions, has been made cap- ^ Lit. §§ 415, 416, 611; Co. Lit. able of transferring hereditaments, both 223 b, 330 b ; Ohallis, R. P. 68, 110. corporeal and incorporeal, without any * Co. Lit. 9 a, 49 a, 172 a; Shep. livery of seisin. THE FEUDAL SYSTEM AND ITS FRUITS. 385 seisin, could not affect any interest in the property except that of the grantor ; and, therefore, it could never take effect as a tortious conveyance.^ When it was a transfer of the grantor's future interest in land, moreover, it was ineffectual at common law without the consent of the tenant who had the present pos- session. Thus, if a life tenant, or a holder for a term of years, were in possession of the land, the landlord or owner of the subsequent interest must obtain his consent to a grant of the future or permanent interest in the land. This was called tech- nically an " attornment." ^ The necessity for it was done away with in England by the statutes 4 Anne, ch. 16, §§ 9, 10 (1706) and 2 Geo. II. ch. 19 (1729), and in most if not all of the states of this country it is likewise abolished by positive legislation.^ (a) (a) In New York, " An attornment to a grantee is not requisite to the validity of a conveyance of real property occupied by a tenant, or of the rents or profits thereof, or any other interest therein. But the payment of rent to a grantor, by his tenant, before notice of the conveyance, binds the grantee ; and the tenant is not liable to such grantee, before such notice, for the breach of any condition of the lease. . . . The attornment of a tenant to a stranger is absolutely void, and does not in any way affect the possession of the landlord unless made either : 1. With the consent of the landlord; or, 2. Pursuant to or in consequence of a judgment, order, or decree of a court of competent jurisdiction ; or, 3. To a mortgagee after the mortgage has become forfeited." N. Y. L. 1896, ch. 547, §§ 213, 294. And see O'Donnell v. Mclntyre, 118 N. Y. 156 ; Austin v. Ahearne, 61 N. Y. 6 ; Fowler's R. P. Law of State of N. Y., pp. 496, 458. 1 Lit. §§ 609, 610 ; 4 Kent Com. dispossession of the landlord, and there- p. * 490. fore often caused much difficulty. But 2 Lit. §§ 551, 567, 568 ; 2 Blackst. it is now uniformly provided by the Com. pp. * 71, * 72; 1 Poll. & Mait. abore-cited statute that such an attorn- Hist. Eng. Law (2ded,), pp. 346-349. ment shall be void, unless it is made 8 1 Stim. Amer. Stat. L. §§ 2008, with the express or implied consent of 2009. The attornment by a tenant to a the landlord or reversioner, stranger might result in a disseisin or 23 CHAPTER XVII. HOLDINGS OP REAL PROPERTY IN THE UJSIITED STATES. § 288. Tenure before the Revolu- tion. § 289. Alodial holdings since the Revolution. § 290. The state's rights. § 291. The Statute of Quia Emp- tores. § 288. Tenure before the Revolution. — Lands in this coun- try, which were granted by the crown of Great Britain, were held by feudal tenure before the Revolution. They were granted to the colonial proprietors to hold in free and com- mon socage ; ^ but, as stated above, in most of the charters reference was made to the tenure that prevailed in the county of Kent; and thus the military and slavish part of feudalism was prevented from ever affecting the lands of the thirteen colonies.^ (a) Little but the theory of that system ever oper- ated here. The services reserved consisted for the most part of merely nominal rents, and sometimes there was nothing but the incident of fealty to mark the feudal relation. The bur- dens of feudalism, therefore, never materially affected real property in America.^ (a) Thus, the habendum clause of such a grant in New York provided that, "the lands shall be held by Palmer, in free and common socage, as of the manor of East Greenwich, in the County of Kent," etc. Delancey V. Piepgras, 138 N. Y. 26, 35. 1 Story, Const. 159; SuUiv. Land. Tit. 35 ; 2 Sharsw. Blackst. Com. p. 77. 2 1 Spence, Eq. Jur. 105, n. See § 246, supra. ' 1 Story, Const. Law, § 172; 1 Gray'3 Cas. R. P. 407, note. There has been some discussion as to the nature of the king's title to lands which were in possession of the Indian tribes, and as to where the seisin resided before the extinguishment of their pos- sessory right. This has but little bear- ing, however, on the growth of our law ; for it was held that the Indians had no element of title save that of occupancy, and when that was divested the entire system of English tenure was left free to operate. See Clark v. Williams, 19 Pick. (Mass.) 499 ; Martin o. Waddell, 16 Pet. (U. S.) 367, 409; Fellows k. Lee, 5 Denio (N. Y.), 628; Johnson v. Mcintosh, 8 Wheat. (U. S.) 543 ; Wor- cester V. Georgia, 6 Pet. (U. S.J 515. HOLDINGS IN THE UNITED STATES. 387 § 289. Alodial Holdings in most States since the Revolution. — The effects which the Revolution and the consequent change of sovereignty from the crown to the people of the state pro- duced upon holdings of land have been the subject of much learned discussion. Professor Gray undoubtedly stated a cor- rect logical conclusion concerning this matter, when he wrote : " It does not seem that so fundamental an alteration in the theory of property as the abolition of tenure would be worked by a change of political sovereignty." ^ And it is certain that in three of the most conservative of the thirteen original states, — New Jersey, South Carolina, and Georgia, — at least the theory of tenure always was retained and still prevails.^ But it must be remembered that the feudal system mingled and confused property rights with political authority and responsi- bilities,^ and that the charters from the king to the colonial proprietors conveyed together, without making any very clear distinctions between them, both governmental jurisdiction and territorial proprietorship. Political sovereignty and over- lordship of all their lands were thus confused in the minds of the colonists. They made no clear distinction between the king as a feudal lord and the king as a hated despot. And when the despotism had been thrown off, it was natural for them to assume that the feudalism had been done away with. They had brought with them, it is true, and retained in their systems of jurisprudence, most of the common and statute law of the mother country ; but this they would inevitably modify as the nature of the times and the condition of the country re- quired.* And feudalism as a system was out of harmony with the American spirit. We should have expected, therefore, a priori, the result that followed, namely, that most of the old states and all of the new ones would declare by positive statute or 1 Gray, Perpetuities, § 22, citing all realty is held in this state is under Sharswood, Law Lect. viii. 207-232 ; the state as original owner. It is with- United States v. Eepentignv, 5 Wall. out service of any kind, and limited 211,267; 2 Blackst. Com. (Sharswood 's only by the right of eminent domain ed.) p. 77, note, etc. remaining in the state." 2 1 N. J. Gen. Stat. (1895) p. 879; ' Maine Anc. Law (1st Am. from Eev. Stat. S. C. (1873) p. 416 ; Georgia 5d London ed.), pp. 102, 103. Code (1895), § 3051. In New Jersey, * Commonwealth v. Charleston, 1 while by the above-cited statute tenure Pick. (Mass.) 180; Commonwealth v. is retained in theory as to most land, Alger, 7 Cush. (Mass.) 53-82; De yet grants from the state are declared Lancey v. Piepgras, 138 N. Y. 26, 36. to be alodial. The code of Georgia See Luhrz v. Hancock, 181 U. S. 567; (§ 3051) says : " The tenure by which 22 Lawy. Rep. Ann. 501. 888 HOLDINGS OF REAL PROPERTY. judicial determination, or would tacitly assume, that all lands within their jurisdictions should be held and owned alodially. In Connecticut, New York, (a) Virginia, West Virginia, Ken- tucky, Ohio, Minnesota, Wisconsin, and California, and probably in some other states, statutory enactments, some in the form of constitutional provisions and others as ordinary legislative acts, have done away with all feudal incidents and made the lands alodial.i In [Maryland and Pennsylvania the courts have declared, without the aid of statute, that no tenure exists.^ And it seems to be perfectly safe to assert that, in the other states and territories where no affirmative law upon the subject is to be found, it has been assumed, and will always be main- tained, that no real property within their jurisdiction is held under any feuda,l tenure or incidents.^ In a few of the states, however, where all traces of feu- dalism have long since disappeared, that system continued to (a) The first constitution of Xew York (1777), Art. I. § 35, adopted for this state all applicable English statutes and colonial enactments down to April 19, 1775, the date of the battle of Lexington. Const. 1846, Art. J. § 17, Const. 1894, .\rt. I. § 17. By statute passed Oct. 22, 1779, which was made to relate back to July 9, 1776, all rights formerly held by the king in lands in this state were declared to be vested in the people of the state. The act in relation to tenures, which was passed Feb. 20, 1787, and made to relate back generally to July 4, 1776, abolished all tenures by one citizen or subject of another, and thus left tenure possible only by a subject holding immediately of the state. And the Revised Statutes (Part II. ch. i. tit. 1, § 3) which took effect Jan. 1, 1830, did away with all feudal tenures and made all real property within the state alodial. The constitution of 1846 embodied the results of these enactments in Art. I. §§ 12, 13 ; and that of 1894, in Art. I. §§ 11, 12, as follows : " All feudal tenures of every description, with all their incidents, are declared to be abolished, saving, however, all rents and services certain which at any time heretofore have been lawfully created or reserved." " AH lands within this state are declared to be allodial, so that, subject only to the liability to escheat, the entire and absolute property is vested in the owners, according to the nature of their respective estates." See also note on New York manor lands, p. 389, note (a), infra. 1 Conn. Rev. Sts. tit. 18, ch. 6, pt. 1, (Md.) 44.3, 451 ; Wallace r. Harmstad, § 1 ; X. Y. Const. (1894) Art. I. §§ 10, 44 Pa. St. 492. See Ingersoll u. Ser- 11, 12; Va 10 Hen. St. 50, 64, 65; 1 geaut, 1 Whart. (Pa.) 3.37. Lomax, Dig. 539; Ohio, 1 Chase St. ' Matthews i^. Ward, 10 Gill. & J. 512, 528; Walker, Amer. Law, § 124; (Md ) 443, 451 ; 4 Kent's Com. pp. *24, Wis. Const. (1848) Art. I. §14; Minn. *25. But see Sharswood, Law Lect. viii. Const. (1857) Art. L § 15; fal. Civ. 207-232; 2 Blackst. Com. (Sharswood's Code. § 762 ; 1 Stim. Amer. Stat. L. ed.) p. 77, note ; Smith, Landl. & Ten. §§ 400, 401. (Amer. ed.) 6, note ; Gray, Perpetuities, 2 Matthews v. Ward, 10 Gill & J. § 22. HOLDINGS IN THE UNITED STATES. 389 afPect some of the real property until a number of years after independence. Tlius, in New York, large tracts of land were held as manors, by proprietors under tlie king, who became mesne lords by parcelling out the land as feudal holdings to inferior tenants. The state took the place of the king alter the Revolution ; but it was not until January 1, 1830, that the last vestige of feudalism was removed from those properties and their tenants or owners came to hold them alodially. (a) So, the (a) i\'e«' York Manor Lands. — Large tracts of land in New York, especially in the Hudson and Mohawk valleys, were formerly held as manors, subject to manorial rights and duties. Not only agricultural property, but also sections upon which cities and towns have been erected, were embraced within these tracts. Thus, the county of Albany was included within the manor of Eensselaerwyck, which had an area of over 1100 square miles. It is necessary for the examiner of titles in such dis- tricts to comprehend that part of the law of New York which has had to deal with these considerable portions of its territoiy. These manors were patented by the King of Great Britain, to propri- etors, to hold of him by perpetual rent in money or in kind, or they were acquired, to be so held ; by the king's confirmations of grants made by the States-Greneral of Holland, while the colony was under their control. Many of the patentees or proprietors were called patroons ; and for convenience they wiU all be described by that word in this note. They were tenants in capite, and had the ordinary manorial privileges, such as the right to hold a court, award fines, and have waifs, estrays, and deodands. The patroons subinfeudated their lands in fee simple ; and their tenants or vassals, to whom they had thus let the lands to hold of themselves, became the tenants paravail. For there is no record of any attempt at further subinfeudation by any of those who held under the patroons. A perpetual rent, in money or in kind, was reserved in these subleases in fee. The rents due from the patroons to the crown, and subsequently to its successor the state, have in general been commuted or released for a gross sum ; and the same is true of some of the rents due from the tenants par- avail to the mesne lords, or patroons. But others of the latter kind aie still in existence as charges upon the lands. This system of dealing with real property in New York was attacked, both on behalf of the state claiming title to the lands by escheat, and by those who sought to avoid the rents and services due to the patroons. The chief grounds upon which the attacks were made were that the king had no power to issue such grants, that they had never been confirmed by the colony or state, and that the subinfeudations by the patroons were forbidden and nullified by the Statute of Quia Emptores. The first two of these positions were decided to be untenable (People v. Van Kensselaer, 9 N. Y. -91); and, while the last objection was at first obviated by hold- ing that the Statute of Quia Emptores was never in force iu Xew York (De Peyster v. Michael, 6 N. Y. 467, 501), it was ultimately settled that that statute has always operated in this state, but that, since it was enacted for the king's benefit, he might waive it, and had in fact waived it i;i allow- 390 HOLDINGS OP EEAL PROPERTY. Virginia statute, which abolished feudal tenures, was not passed until 1779,1 and that of Connecticut was first enacted in 1793.^ ing the patroons to siibinfeudate. But the patroons, who were mesne lords, were bound by the statute ; and therefore their tenants did not and could not subinfeudate. Van Kensselaer i-. Hays, 19 N. Y. 68. The outcome, then, of a long line of cases upon these questions is the deter- mination that, before the Revolution, there were three valid interests or ownerships in these manor lands, namely, {1) that of the King of Great Britain, as lord paramount, {2) that of the patroons, as viesne lords, and (3) that of the tenants paravail, who held under the patroons. The first change in this sjstem was brought about by the Revolutionary War, which substituted the people of the state as lord paramount in the place of the king. This was expressly declared to be the result by the statute of Oct. 22, 1779, § 14, which was made to relate back to the ninth day of July, 1776. 1 Jones & Varick, 44; De Peyster v. Michael, 6 N. Y. 467, 503. The next change was that the Statute of Tenures, so called, which was enacted Feb. 20, 1787, abolished military tenures and all their incidents from August 30, 1664, changed all tenures of estates of inheritance into free and common socage from July 9, 1776, put an end to all feudal tenure between one citizen and another, and substituted in its place a tenure between each landholder and the people of the state in their sovereign capacity. This did away with the patroons, as mesne lords, and caused those who had been their tenants to hold immediately of the state. 1 Rev. Laws, 70; De Peyster v. Michael, 6 N. Y. 467, 503. And, finally, the Revised Statutes, which went into operation Jan. 1, 1830, took away the position of the state as lord paramount, abolished all man- orial rights as such, swept away all feudal tenures, and made every piece of land within the state alodial, " so that, subject only to the liability to escheat, the entire and absolute property is vested in the owners, according to the nature of their respective estates." Rev. Stat. Part II. ch. i. tit. 1, § 3; N. Y. Const. 1846, Art. I. § 13; N. Y. Const. 1894, Art. I. § 2. In summary, there was never any time in the history of New York when conveyances between individuals could create a tenure, except in this special case of grants, from the crown, of power to erect and maintain manors. As to such manor lands, the crown was superseded by the state on the ninth day of July, 1776, the intermediate lords as such disappeared on the twentieth day of February, 1787, and the state ceased to be the lord, and the lands that had been manorial and feudal became alodial on the first day of January, 1830. The grants in fee of these manor lands, by the patroons to their tenants, were ordinarily made on two kinds of conditions, namely, (V) restraints on alienation, which provided that the tenants should not sell their lauds without paying a fine, or a certain portion of the price, as one-quarter, one- tenth, etc., to the patroons, which latter were called quarter-sales, tenth-sales, etc., and (S) the reservation of perpetual rents, payable in money or in kind. For breach of either of these, the patroon, as grantor, or feoffor, usually reserved the right to re-enter and enforce a forfeiture. The first 1 Va. Stat. 1779, eh. 13. 2 Qo^n. Stat. Oct. 1793, Stat. 1821, tit. 56, ch. 1, § 1, note. HOLDINGS IN THE UNITED STATES. 391 § 290. The State's Rights. — The word " alodial " means free from temire ; but it does not imply exemption from govern- class, " (1)," of these forms of restrictions has been repeatedly held to have been invalid. And the constitutions of the state have explicitly declared that, " All fines, quarter-sales, or other like restraints upon alienation, re- served in any grant of laud hereafter to be made, shall be void." Const. 1846, Art. I. § 15; Const. 1894, Art. I. § 14; De Peyster v. Michael, 6 N. Y. 467, 504. But the second class, " (2)," of conditions — the reserva- tion of rents and services certain — was excepted from the operation of the statutes which destroyed the feudal tenures of the lands (being vested prop- erty interests, they must be so excepted under the United States Constitu- tion), and such perpetual rents and conditions, giving rights of re-entry and forfeiture for their non-payment, may still be legally created as to all lands which are not agricultural in character. They could also be legally made as to agricultural lands until 1846, when the constitution of that year pro- vided that, "No lease or grant of agricultural land, for a longer period than twelve years, hereafter made, in which shall be reserved any rent or service of any kind, shall be valid." Const. 1846, Art. I. § 14 ; Const. 1894, Art. I. § 13. A brief statement is here required, as to the nature of those perpetual rents. Such of the rents as were reserved by the crown in granting the manors to the patroous were rents-service. The king, becoming as he did the feudal lord, retained the possibility of re-acquiring the lands, if any of the conditions upon which they were granted were broken (this reversionary right in him being called technically a possibility of reverter), and the rents reserved by him became incident to this reversionary inter- est, and were therefore rents-service. See § 102, supra. The rights to dis- train and to re-enter and take back the property for non-payment, being both implied as incidents to rent-service, passed with these rents to the people of the state, when they acquired the rights and property of the crown on the ninth day of July, 1776. And, for default of payment, and by virtue of the rights so implied and acquired, some of the manor lands were subsequently taken away from their owners and disposed of by the state. Laws, 1819, oh. 222; Laws, 1824, ch. 225; Laws, 1825, ch. 251; De Laucey V. Piepgras, 138 N. Y. 26, 38-43. The rents which the patroous reserved, in granting lands in fee to their tenants, were, theoretically at least, of the same character as those reserved by the king — rent-service — if they were created before Feb. 20, 1787, i. e., before the time when the patroous could no longer subinfeudate or stand as mesne feudal lords to their tenants. The statute of that date made it impossible for one citizen or subject to reserve for himself any reversionary interest whatever when he conveyed real property in fee simple to another, and, therefore, upon such a conveyance, no rent-service could be reserved. But the rents and services certain, then in existence and owned by the patroous, and those which were subsequently created in conveyances of realty in fee were all recognized and preserved as charges upon the lands, and as practically rents-charge they have been sustained and made collectible and enforcible according to the terms of the cove- nants by which they were created. In a mere rent-charge, as distinguished from a rent-service, no right of distress, or of re-entry, is ever implied by 392 HOLDINGS OF REAL PROPERTY. mental rights and control. Every man holds his real property, however absolute his interest therein, subject to the state's the law. But, in all cases of the perpetual rents which were created by the patroons, and which have come before the courts, these rights were reserved by express covenants and conditions, if the rents should not be duly paid, or the services duly rendered. And, after some vacillation, the courts decided that such express stipulations were enforcible against the delinquent landowners by the patroons or by their heirs or assigns. There has been much discussion and difference of opinion as to whether the assignees of these rents — the devisees, purchases, etc., of the original owners — could enforce these covenants and conditions, especially the con- dition for re-entry upon the land in case the rents were not paid. The diffi- culty grew out of the ordinary common-law rule that a condition annexed to a conveyance in fee can not be enforced, nor can re-entry be made for its breach, by any one but the grantor or his heirs. Upington v. Corrigan, 151 N. Y. 143. It was also strenuou.sly contended that, even as covenants, stipulations for paying such rents, for distress, etc., could not run with the land or the rent, nor be available to the assignees of either, or enforcible by them. But it has been definitely and wisely decided that such rents, charged upon the land, are incorporeal hereditaments, issuing out of and binding the land, and that, without the aid of any statute, the covenants and conditions affecting them run in botli directions, — with the rent in the hands of the assignee, so as to enable him to sue on and enforce the cove- nants and conditions, and with the land itself in the hands of its pur- chaser, so as to render him liable to have them enforced against him. Van Rensselaer v. Hays, 19 N. Y. 68, 86 ; Van Rensselaer v. Read, 26 N. Y. 558, 570 ; Cruger i\ McLaury, 41 N. Y. 219 ; Upington v. Corrigan, 151 N. Y. 143, 150. All remedy by distress was abolished for the future by statute enacted May 13, 1846 (L. 1846, ch. 274); but the other remedies reserved by the terms of the grant of the rent still remain for the grantee and his heirs and assigns. This statute practically changed these per- petual rents into rents-seek. These results have been arrived at chiefly as common-law principles affecting the perpetual rents reserved in New York upon grants (or so-called leases) of lands in fee. Statutes have also had much to do with them. And, although it is now settled that legislation was not required for the benefit of the assignees of such rents, yet much law has clustered around these statutes, and they should be briefly examined. In 1774 (L. 1774, ch. 14), the colonial legislature passed an act making these rents, arrears of which liad not been paid for tliree years within the twenty years preced- ing, collectible as were rents reserved on leases for years. This act was a repetition of the English statute 4 Geo. II. ch. 28. By statute, ch. 7, Law of 1788, entitled, '• An act to enable grantees of reversions to take ad- vantage of conditions to be performed by lessees," which statute followed the terms of that of 32 Hen. VIII. ch. 34, it was provided that the grantees and assignees of either the lease or the reversion, when the lease was less than in fee, should have the same remedies, by entry, action, distress, or other- wise, as their grantors or lessors had or might have had. And, by ch. 98, Laws of 1805 (April 9, 1805), these provisions were extended as well to grants or leases in fee, reserving rent, as to leases for life or for years. HOLDINGS IN THE UNITED STATES. 393 right of eminent domain, and to the right of the government to regulate the use of it by such rules and limitations as the public This law of 1805 was repealed by Act of April 14, 1860 (L. 1860, ch. 396), .as to all conveyances or leases in fee made before April 9, 1805, or after April 14, 1860 ; but, since the rights of the assignee of a rent-charge did not really depend on that statute (though some early decisions rested upon it, i. e.jVan Rensselaer v. Ball, 19 N. Y. 100, and see Van Rensse- laer i>. Hays, 19 N. Y. 68 ; Cornell v. Lamb, 2 Cow. 652), but on the common law, the repeal of the statute did not affect those rights. And, even if it could have done so, they have been held to be preserved by section 3 of chapter 274, Laws of 1846, which expressly recognizes the assignees' interests in connection with such leases and rents. All of this legislation, affecting assignees of rents and of the lands out of which the rents accrue, is now summarized in § lOO of the New York real property law (ch. 547, L. 1896), which is as follows : " The grantee of leased real property, or of a reversion thereof, or of any rent, the devisee or assignee of the lessor of such a lease, or the heir or personal representative of either of them, has the same remedies, by entry, action, or otherwise, for the non-performance of any agreement contained in the assigned lease for the recovery of rent, for the doing of any waste, or for other cause of forfeiture, as his grantor or lessor had, or would have had, if the reversion had remained in him. A lessee of real property, his assignee or personal representative, has the same remedy against the lessor, his grantee or assignee, or the representative of either, for the breach of an agreement contained in the lease, that the lessee might have had against his immediate lessor, except a covenant against encumbrances or relating to the title or possession of the premises leased. This section applies as well to a grant or a lease in fee, reserving rent, as to a lease for life or for years ; but not to a deed of conveyance in fee, made before the ninth day of April, eighteen hun- dred and five, or after the fourteenth day of April, eighteen hundred and sixty." Since, as was above explained, it has been held that without the aid of this statute the assignees of both parties to pei'petual rents have all the rights and remedies of their assignors, the sentence of the statute which is here printed in italics was not required, and has in fact no operation ; and the last clause of that sentence does not interfere in any way with the reme- dies for the non-performance of the covenants or conditions affecting such rents. The remedies incident to such rents as these, including the recovery of their fruits or proceeds, are fully discussed in §§ 104, 114, supra, and the New York notes thereto. It simply needs to be added here that §§ 2231- 2265, N. Y. Code Civ. Pro., which provide summary proceedings for the removal of tenants for years, tenants at will, etc., for non-payment of rent, do not affect these perpetual rents, nor afford any remedy because of non- performance of their accompanying conditions or covenants. The general results, as to these perpetual rents, may be summarized as follows : As reserved ii) conveyances of the manor lands, they were valid as rents-service before Feb. 20, 1787, and after that date and until 1816 as rents-charge; the statute of 1846 (ch. 274), which removed the right to distrain for their proceeds, changed them into rents-seek; they may still be reserved as rents-seek in conveyances in fee of land which is not 394 HOLDINGS OP REAL PROPERTY. good may require ; and, if the owner of an inheritable interest die without heirs and without disposing of it, it passes by escheat to the state. Escheat here, however, has no feudal character, but is a right established in modern jurisprudence, which is similar to the feudal principle of the same name. Each state, hy virtue of its sovereignty, is deemed to have the original and ultimate property in all the lands within its juris- diction.^ (a) So the duty of allegiance to the state, which in feudal times was often confused with fealty, is obligatory upon every citizen ; but this has now no necessary connection with the ownership of land.'' § 291. The Statute of Quia Emptores. — While feudal ten- ures continued to exist in this country, the Statute of Quia Emptores, which forbade subinfeudation by any but the king's agricultural; they may be enforced and dealt with by and against the heirs and assignees of the original parties to the contracts or conventions by which they were created ; the remedies available to such parties and their heirs and assignees are fully regulated by statutes, which change and ameliorate the common-law rules relating to rent. The study of the decisions upon the manor lands of JS"ew York, and the rents and services associated with them, throws much light on the feudal system, especially in its operation upon the law of real property in this country. Some of such decisions are : People v. Van Rensselaer, 9 N. Y. 291; Van Rensselaer v. Hays, 19 N. Y. 68; Van Rensselaer v. Ball, 19 N. Y. 100; De Peyster v. Michael, 6 N. Y. 467; Van Rensselaer II. Dennison, 35 N. Y. 393; Van Rensselaer v. Jewett, 2 N. Y. 135, 141 ; Van Rensselaer v. Read, 26 N. Y. 558; Van Rensselaer v. Slingerland, 26 N. Y. 580; Van Rensselaer v. Snyder, 13 N. Y. 299; Van Rensselaer V. Barriuger, 39 N. Y. 9 ; Hosford v. Ballard, 39 N. Y. 147 ; Cruger v. McLaury, 41 N. Y. 219 ; Plumb v. Tubbs, 41 N. Y. 442 ; De Lancey v. Piepgras, 138 N. Y. 26; Upington v. Corrigan, 151 N. Y. 143; Livingston V. Miller, 11 N. Y. 80; Cornell u. Lamb, 2 Cow. 652; Van Rensselaer v. Jones, 5 Denio, 449 ; Van Rensselaer's Executors v. Gallup, 5 Denio, 454 ; Van Rensselaer v. Bouton, 3 Keyes, 260; Van Rensselaer c. Jones, 2 Barb. 643; Tyler v. Heidorn, 46 Barb. 439, 48 N. Y. 671 ; Cagger v. Lansing, 4 Hun, 812, 64 N. Y. 417; Main v. Davis, 32 Barb. 461 ; Van Rensselaer V. Bonesteel, 24 Barb. 365. («) The New York Constitution, Art. I. § 10 (Const, of 1894), declares that, " The people of this state, in their right of sovereignty, are deemed to possess the original and ultimate property in and to all the land within the jurisdiction of the state; and all lands, the title to which shall fail from a defect of heii's, shall revert or escheat to the people." In the former constitutions this was Art. I. § 11. 13 Kent's Com. pp. *512-*514; 1150; Chase's Blackst. pp. 286, 287, 1 Stim. Amer. Stat. L. §§ 400, 401, note. ^ 2 Kent's Com. pp. «44-*50. HOLDINGS IN THE UNITED STATES. 395 tenants in chief with his permission, was in operation in all the states except South Carolina and probably Pennsylvania. ^ The abolition of feudal tenures, of course, made feudal sub- infeudation an impossibility. And hence it has been cogently argued that it is idle to assert that that famous statute still operates in any state but the three in which the theory of feu- dalism is retained.^ So far as the mere letter of the statute and its direct destruction of subinfeudation are concerned, this is unquestionably correct. But, in allowing " every freeman to sell at his own pleasure his lands and tenements, or part of them," the statute, by necessary implication, removed practi- cally all power from a grantor of an estate in fee simple to restrain the right of alienation by his grantee. " The grantor's right to restrain alienation immediately ceased, when the statute put an end to the feudal relation between him and his grantee ; and no instance of the exercise of that right, in England, since the statute was passed, has been shown, or can be found, except in the case of the king, whose tenure was not affected by the statute, and to whom, therefore, it did not apply." ^ That landmark of legislation, thei-efore, must be understood to have put two leading negative principles into the law of real property, namely, (a) the forbidding of subinfeudation by any but the king's tenants, and (b) the prohibition of restraints upon alienation in conveyances in fee simple. While the former of these necessarily disappeared with feudal tenures, the latter has remained operative as a powerful factor in the development of American jurisprudence. In some of the states, it has been put into modern statutory form.* (a) In a word, then, in all of the states of this country except Pennsylvania and South Carolina, tlie Statute of Quia JSmptores has always been in force, restraining subinfeudation wliile feudalism continued, and continually maintaining freedom of alienation of estates in fee simple. But it is to be carefully noted here, that it does not affect in this manner any convey- (a) The Statute of Quia Emptores has always operated as a principle in New York, and is still a part of its law. Const. 1894, Art. I. § 14 ; Van Eensselaer v. Hays, 19 N. Y. 68; De Lancey v. Piepgras, 138 N. Y. 26, 39; note on Manor Lands of New York, p. 389, note a, supra. 1 Gray, Perpetuities, §§ 26-28. * N. Y. Const. (1894) Art. I. § 14; ^ Gray, Perpetuities, §§ 24, 25. 1 N. J. Gen. Stat. (1895) p. 879; Gray " De Peyster v. Michael, 6 N. Y. 467. Perpetuities, §§ 20-28. 500. 396 HOLDINGS OF REAL PROPERTT. ances but those in fee simple. He who owns an interest in realty, and carves out of it and conveys away a lesser estate than his own, as one for life or for years, has a reversion left in himself, and, as the owner of such reversion, may curtail or preclude the right of the alienee to dispose of the interest thus conveyed to him.^ 1 The Statute of Quia Emptores itself time coming." Digby, Hist. Law R. P. says: " And it is, to wit, that this statute (5th ed.) p. 238; De Lancey v. Piep- extendeth but only to lands holden in gras, 138 N. Y. 26 ; Upington v. Corri- fee simple, and that it extendeth to the gan, 151 N. T. 143. BOOK III. ESTATES IN REAL PROPERTY. Treated in Part I. — As to Courts. Part II. — As to Quantity. Part III. — As to Number and Connection of Owners. Part IV. — As to Qualified or Unqualified Nature. Part V. — As to Time for Enjoyment to Begin. CHAPTER XVIII. ESTATES. EXPLAINED AND CLASSIFIED. § 292. Estates defined and il- I § 293. Classification of estates, lustrated. 1 § 292. Estates defined anti illustrated. — The interest that one has in lands, tenements, or hereditaments is his estate therein. If we use the -word "property" here to denote the object of ownership, — the piece of corporeal or incorporeal realty, — the interests which one has in it is liis estate, his status, condition or circumstances in which he stands with regard to that property.^ The acre of land, the house and lot, the right of way, or the ferry right is the ultimate real thing, which may be the object of various different interests and ownerships ; and in this one tiling one man may have an estate for a term of years, another for life, and another in fee simple. It may be owned by a number of people, as joint tenants or tenants in common ; one person may have the right to present enjoyment of it, while the interest of another is such that he must wait for his enjoyment of it till some time in the future ; the estate of this owner may be certain and absolute, while 1 The development of "estates" is with regard to the land, and so had explained in Maine's Anct. L. ch. viii. acquired the power, which is still his, of In West's Symboliography, §31, it is regaining the possession of the specific said : " An estate, status, dominium, pro- land leased if he were evicted during prietas, is that right and power whereby the term, he was then, for the first time, we have the property or possession of said to have an estate for years in the things, that is, whereby we be owners land. He had become the owner of or possessors thereof." The right of something more than a mere contractual one who held land for a term of years right. He had become the owner of an gradually strengthened, in the common interest in the land itself, a dominium, a, law, from a mere possession, which the proprietas, which the law recognizes as landowner might legally terminate at such and enables him to retain. The any moment, to a fixed interest, which study of this matter may aid the student the termor could retain for the period in acquiring a precise idea of this term designated in the lease, even against " estate." See Digby, Hist. Law R. P. the will of the landlord. When the. (5th ed.) pp. 176-181. tenant had attained to this last position 400 ESTATES IN REAL PROPERTY. that of tlie other is conditional or defeasible ; one man may have in it an interest which is recognized and protected by a court of law, and the right or estate of another may be such that no cognizance or enforcement of it can be had save in a court of equity. These various interests or estates in the prop- erty are at once seen to be different from the holdings of it, and from the titles to it, or the modes by which it may be acquired. A man may be known as owning a certain farm for life, or for himself and his heirs, without regard'to how he obtained it, the validity of his title, or whether his holding is alodial or by tenure under a superior lord. His estate in the land is a dis- tinct thing, with which the law deals as such. And it is around estates that the greatest part of the law of real property has clustered.! The existence of estates in real property is the most im- portant distinguishing feature between it and personalty. While there may be created several separate and distinct interests in one chattel, whether personal or real, this is not commonly done, because the article is only temporary and in a short time will cease to exist. The owner of it is ordinarily thought of and treated as owning absolutely the article, such as his watch, or horse, or plough, and not merely as having an estate therein.^ But the law contemplates a parcel of land, or usually a rent-charge issuing out of it, as something which will continue in existence forever, and therefore recog- nizes the probability as well as the possibility of many and 1 Originally, and probably as late as of the word must be disregarded, in the middle of the thirteenth century, most instances, and its meaning must the word " estate " was used in England be confined to the interest which one has to describe the personal condition of the in lands, tenements, or hereditaments, feudal tenant — his status. But, under ^ Distinct and separate interests in the feudal system, tliis personal position a personal chattel are sometimes cre- was so closely connected with his pro- ated by a bailment of it ; and, by means prietary rights that the transition to the of subleases, the ownership of chattels use of the word to denote his interest in real is frequently divided into different real property was natural and easy. 2 parts for different owners. There is Poll. & Mait. Hist. Eng. Law (2d ed.), no leg;U prohibition against the crea- pp. 10-13; 2 Blackst, Com. p. *163. tion of many different estates in the The same word is often popularly em- same chattel of any kind. 1 Leake, 4 ; ployed to denote generally the property Gray, Perpetuities, §§ 71-97. But the which one owns. Thus, a deceased per- important fact for the lawyer is that, son is said to have left a " large estate," because of the temporary character of or a " complicated estate ; " and execu- personal property, this is not done to tors, administrators, and trustees are any large extent, and rarely causes any said to manage or settle the " estates " of the complicated questions which arise entrusted to them. But, in dealing with from the existence of numerous estates the law of real property, these meanings in real property. ESTATES. — EXPLAINED AND CLASSIFIED. ' 401 varied estates connected with it and belonging to different owners. Tiie subtle reasoning of feudal and scholastic ages, in dealing with these possibilities, brought into the law of real property manj' niceties and technical refinements which have never had any material influence upon personalty. The fine distinctions and technical results, however, which are involved in the present law of real property, are always logical ; and, as a result of modern statutes, most of them which remain are of practical importance and utility. § 293. Classifications of Estates. — The vast influence of courts of equity in the moulding of English jurisprudence is most conspicuously manifested in the new species of interests in real property which they have created and preserved. By the operation of the maxim, " Equity follows the law," these new and important interests have generally been made subject to the same incidents aud principles that govern the older estates of purely common-law cognizance. It is because those incidents and principles can be most satisfactorily studied as now generally applicable to all estates alike, whether legal or equitable, and because in dealing with the other classifications of estates the equitable interests must be frequently referred to, that it has been 'decided to depart, in this treatise, from the time-honored custom of discussing estates first witli reference to their quantity.^ Therefore they will be examined in Part I., of this book as divided, with regard to the courts in which they are dealt with, into 1. legal estates and 2. equitable estates. The second basis of classification (Part II.') will be with refer- ence to their quantity, or the extent of their owners' interest ; the third {Part III.), with regard to the number and connec- tion of their owners ; the fourth {Part IV.), with regard to their qualified or unqualified nature, and the fifth (Part V.), with regard to the time when their owners may begin to occupy and enjoy the property or object of ownership. It is believed that this order of discussion will both conduce to clearness and avoid the necessity for repetition to any material extent. 1 The suggestion is also ventured They can be intelligibly studied alone, that^ of all the different interests iu "without regard to the other forms or lands, tenements, aud hereditaments, classes of estates, the same as can a equitable estates, so called, come the rent, a franchise, or an easement in nearest to being a distinct species of gross; and a thorough knowledge of property, — the nearest to being in and them is of great assistance to the uuder- of themselves objects of ownership, as standing of the other interests in real distinguished from the ownership itself. property. 26 PART I. 1. LEGAL ESTATES. 2. EQUITABLE ESTATES. 2. EQUITABLE ESTATES. CHAPTER XIX. (1) USES. § 294. Legal estates distinguished § 299. Definition of use and trust, from equitable estates. § 300. The requisites of a use. § 295. Prototypes of the use. § 301. Characteristics of the use § 296. Growth of the use in the before the Statute of Uses, common law. § 302. The Statute of Uses. § 297. Development of the use § 303. How the Statute of Uses into an equitable estate. was interpreted and construed. § 298. Early distinctions between § 304. How the use was retained a use and a trust. under the name of a trust. § 294. Legal Estates distinguished frora Squitable Estates. — The earliest cognizance and control of estates in lands, tene- ments and hereditaments were, of course, in the courts of common law. Those courts first dealt with interests in realty in a plain, direct manner, suited to the simplicity of the times. And the legal estates, which they knew and protected, are, in the main, the strictly legal estates which are recognized by the courts of law of to-day. They were and are the ordinary, well- known interests in realty, for which the owners have, by and for themselves and without looking to any trustees or other holders for them, their remedies at law for any wrongful taking of or injury to the lands, tenements, or hereditaments. At first such estates answered all the requirements of business and commerce. Before the reign of Edward III., and possibly down to a somewhat later date, they were the only forma EQUITABLE ESTATES. — USES. 403 of estates in realty, which had been known to any system of law.i But the rigidity of procedure of the cominon-Iaw courts, their strict and inflexible adherence to precedents, the strin- gency of feudal exactions and the restraining force of a number of acts of parliament gradually impeded the full enjoyment of these legal estates, especially by restricting their alienability and thus impairing their utility as articles to be employed in the growing business of the realm. It was to get rid of these burdens, and in particular to enable the ecclesiastical corpora- tions to evade the Statutes of Mortmain, which forbade them to take title to land, that the system of uses and trusts grew into prominence and became the most important forms of equitable estates.^ And it was to mitigate the hardships, which the inelasticity of common-law procedure placed upon mort- gagors of real property, that the so-called equity of redemption was invented and enforced for their benefit, by the Court of Chancery, and grew into the other important form of equitable estates. Each of these species of equitable estates will be separately considered. It will thus appear that the equitable estates are (1) uses, (2) trusts, and (3) equities of redemption, Sind that all other estates — the more ordinary ones, which have not been developed by a court of equity, — are legal. § 295. Prototypes of the Use. — The origin of the use in real property has been the subject of much liistorical research and many learned discussions. Probably it can not be distinctively traced to any one system of early jurisprudence, nor precisely assimilated to any law or custom of any people or peoples other than the Anglo-Saxon race. Rooted in practices which are common to all civilized communities, it grew up in England as a product peculiar to that island. Those practices are the natural and almost necessary employment of agents, confidants, or fidu- ciary persons of some kind, in holding and managing property. And that product is the vast system of uses and trusts which now involves so important a part of English and American law. It is because every system of jurisprudence, as soon as it becomes at all complex, will employ agents, third parties and intermediaries of varying types and orders, that so many tilings 1] Leake, 7; Digby, Hist. Law Digby, Hist, Law R. P. (.5th ed ) p. 316 ; R. P. (5th ed.) pp. 43, 60, 315-326. 2 Foil & Mait. Hist. Eng. Law (2d ed.), 2 2 Blackst. Com. pp. * 268-* 272; pp. 228-239. 404 ESTATES IN REAL PEOPERTY. analogous to the English use are to be found in other bodies of law. A few of those things, which may have supplied sug- gestions for the originals of our uses and trusts may profitably be noted. One of them was the usus of the Roman law, from which it was long thought that the English use took its name. But it is now known that our word is derived from the Latin opus, which in old French is os or oes, and that the earliest transfers of this kind were to one person " ad opus " (to the use) of another.! The Roman usus was simply the right to the natural use of something, owned by another, which right belonged to some definite individual and his family and was as a rule not transferable. The owner held the article so that he who had the usus and his family personally might take only so much of the fruits or products as was necessary for their daily consumption. They had no title, either legal or equitable, but only this restricted privilege of enjoying the products of another's property.^ Another suggestion for the originators of the English use may have been found in the Roman idea of usus-fructus, which was a right broader than the mere usus in that it gave the right to the temporary enjoyment of a thing, without restricting the amount to daily needs, and could be sold or otherwise transferred to another. But the civil law never created any binding obligation in such a case, whereby the owner of the article could be compelled to hold it in trust for the benefit of the usufructuary; and so it did not produce the beneficial results which are caused by our uses and trusts. It made the relation between the parties more like that of a temporary owner — such for example as a life tenant — and the rever- sioner in fee. ^ Probably the most pertinent suggestion and closest analogy furnished by the civil law were found in its fidei-commissa . In that law there were many restrictions on successions and lega- cies. For example, a testator could not will property to one who was not a Roman citizen ; nor, after duly devising property to one person, could he ordinarily name another devisee to succeed the one first named ; i. e., the first beneficiary must take the absolute legal and beneficial ownership of the property and the testator could control it no further. To avoid such diificul- 1 2 Poll. & Mait. Hist. Eng. Law ^ ii);^. . Tompkins & Jenkyn's Mod- (2d ed.), p. 228. ern Roman Law, 173, 174:. ^ Just. Inst. Lib. ii. tit. iv and v. EQUITABLE ESTATES. — USES. 405 ties, tliere arose the practice, in the later period of the Repub- lic, of a testator "instituting an heir" and at the same time directing him to dispose of all or some of the property in a particular manner. The trust or confidence thus reposed in the designated heir was called fidei-commissum.^ For a long time there was no means of enforcing the performance of these commissions. In the early part of tlie reign of Augustus, how- ever, that monarch directed tlie consuls to compel the carrying out of the otherwise imperfect duties thus imposed ; and finally a praetor fidei-coinmi&sarius was appointed to take charge of such trusts and enforce the proper obligations which they had created.^ But this system of controlling property by will never resulted, as did the English use, in the creation and control of an equitable estate separate and distinct from the legal title and ownership. It was simply a means of compelling the transfer of the only known estate — the legal one — to the person to whom it justly belonged.^ It was a successful de- vice, however, for avoiding obstacles which the jus civile had interposed ; and as sucli it probably afforded an important hint to those who were called upon to surmount the difficulties whereby the common law and statutes impeded certain trans- fers of lands, tenements and hereditaments.* It is to be added that, in regard to their res mancipi, the Romans, before the time of Justinian, made a distinction be- tween legal and beneficial ownership. If such an article were sold, but the ceremony called mancipatio did not accompany the transfer, the purchaser obtained only the beneficial interest in it, while the legal title remained in the vendor.^ This dis- tinction never affected any interest in land, and it was abolished by Justinian ;^ but it may have been one of the analogies upon which our uses and trusts depend. By a method similar to the Roman fi,dei-commissum, the 1 Just. Inst. Lib. ii. tit. xxiii. erty to one person in trust to convey or 2 Gains, Lib. ii. § 278; Just. Inst. transfer to another. " Tliere can be no Lib. ii. tit. xxiii. §§ 1, 2. doubt of the general proposition that ^ The distinctions between thejirln- where money is placed in the hands of commissa of the civil law and the Uses one person to be delivered to another, a and trusts of the common law are clearly trust arises in favor of the latter, which pointed out in McDonough's Executors he may enforce by bill in equity, if not V. Murdoch, 15 How. (U. S ) 367, 407- by action at law." McKee v. Lamon, 409. 159 U. S. 317, 322. * Amos on the Science of .Jurispru- ^ Gaius, ii. 40. dence, 91. The form of our trusts, " Cod. Lib. vii. tit. 25, De nudo jure which has the closest resemblance to quiritium toUendo; Digby, Hist. Law the Jidei commissa ia the giving of prop- E. P. (5th ed.) pp. 316, 317. 406 ESTATES IN REAL PROPERTY. Franks of the lex salica, who were " one family of our legal ancestors," employed temporary trustees for the purpose of passing property to heirs who could not otherwise be appointed or adopted. The third party, to whom the title was thus passed, was called the " saleman ; " and it was his duty, tliough probably as an imperfect and unenforcible obligation, to hand it over to the purchaser or other rightful owner.^ But here again there is no evidence of any separation of the title or estate into two distinct parts, the one legal and the other equitable. There was only a means of compelling one holder of property to transfer its title to another person. In all of these schemes and arrangements, and in all others in which historians have sought for the prototype of the Eng- lish use, one or both of two characteristics of the latter in its final stage of development are lacking. Those characteristics are (a) that the owner of the use has an estate, an interest in the realty held for him, which is something more than a mere right against the person of the holder of the legal title, and which a court of equity will recognize and protect as a distinct and separate ownership ; and (b) that he has a complete and adequate means of compelling the exact fulfillment of all the duties and obligations which are imposed upon the holder of the legal title because of the existence of this equitable estate. Jf these two elements have ever co-existed in any species of real estate other than the English use and trust, it has been for so short a time or in so unitnportant a manner that history has lost sight of the fact. It is safe to conclude that uses and trusts, as we know them, are, in the main, original productions of the equity side of 5ur common law. How they were created and developed is next to be examined. § 296. G-ro-wth of the Use in the Common Laiv, — " A slight but unbroken thread of cases," say Pollock & Maitland,^ " beginning while the conquest is yet recent, shows us that a man will from time to time convey his land to anotlier 'to the use ' of a third. For example, he is going on a crusade and wishes that his land shall be held to the use of his children, or he wishes that his wife or his sister shall enjoy the land, but doubts, it may be, whether a woman can hold a military fee, or whether a husband can enfeoff his wife." And they proceed 1 Lex Salica, tit. i6, De adfathamire ! & Mait. Hist. Eng. Law (2d ed), p. Heusler, Institutionem, i. 215 ; 2 Poll. 230. 2 2 Hist. Eng. Law (2ded.), p. 231. EQUITABLE ESTATES. — USES. 407 to show how, to such private arrangements, were soon added cases in which lands were given to convents or other religious houses, for special purposes or uses, as " ' to the use ' of the library or ' to the use ' of the infirmary ; " and how, after the coming to England, in the early part of the thirteenth century, of the Franciscan friars, who could own nothing, much land, as well as other property, was conveyed to the borough com- munities for the use of the friars. And they add : " It is an old doctrine that the inventors of ' the use ' were 'the clergy ' or ' the monks.' We should be nearer the truth if we said that to all seeming the first persons who in England employed ' the use ' on a large scale, were not the clergy, nor the monks, but the friars of St. Francis." Thus the employment of an intermediary, to hold the legal title to realty for one who could not personally take and hold it as was desired, came gradually into our law as the require- ments for it arose. And when the statutes of mortmain, first as chapter 36 of Magna Charta (1217), and afterwards as the statute de religiosis, 7 Edw. I. (1279), and the statute 13 Edw. I. oh. 32 (1285 ),i had practically prohibited the taking of real property by the great religious houses, the lawyers who were employed by those institutions resorted naturally to this means of serving their clients, and had property conveyed to individ- uals " for the use " of the ecclesiastical institutions. The re- ligious bodies were thus enabled practically to evade the statutes, and to obtain all the enjoyment of and benefits from the land of which they could not take the legal title.^ Although the statute 15 Rich. II. ch. 5, which required all lands held " to the use of religious people or other spiritual persons " to be amortized by license from the king or to be disposed of for some other use, practically deprived tlie ecclesiastical houses of the benefit of this invention ; yet their dealings with it natur- ally led to its employment for many other purposes. Especially during the civil wars between the house of York and that of Lancaster, when the triumph of the wearers of the red rose was followed by attainder of the persons and confiscation of the estates of those who wore the white, and vice versa, the use, which was not forfeitable because of treason, became the most common form of property owned by the combatants, while the legal titles to their lands were carefully vested in 1 See also etat, 34 Edw. I. oh. 3; 2 2 Blackst. Com. pp. *271-«272; 2 Blackst. Com. pp. » 268-* 273. 1 Spence's Eq. Jur. 440. 408 ESTATES IN REAL PROPERTY. * other persons.^ And, after those wars were over, the use re- mained and continued to spread, as a favorite species of prop- erty, to avoid curtesy or dower, to evade creditors, to impair the remedies of the lord of the fee, etc., until the legal titles to and estates in practically all the real property in England were in one set of persons, while the uses or rights to the beneficial enjoyment of the same were in other individuals or institu- tions.^ Since it had such an origin, and since it was carefully fostered and preserved by the Court of Equity alone — the court of the chancellor who was the "keeper of the king's con- science " — it has been well said that the parents of the use " were fraud and fear, and a court of conscience was the nurse." ^ § 297. Development of the Use into an Equitable Estate. — When the use is first noticed in legal records, it appears as a mere personal confidence in the one who holds the legal estate and who is called the feoffee to use. The beneficiary, the person for whom the property is held and who is called the cestui que use, has no legal means of compelling him to carry out the merely conscientious obligation. If, therefore, A were en- feoffed of land, to the use of B, or in trust or confidence that B might occupy the property and receive the fruits and profits, no court of that time would prevent A from ignoring B's rights and appropriating all the land and its products to his own use and enjoyment. Without doubt, such obligations were special favorites of .the Church, and were frequently enforced by tlie authority of tlie Confessor ; but the cestui que use was without remedy in any other tribunal.* There was an ancient practice in England for persons aggrieved, when the wrongdoers were too powerful for them, or the common-law courts afforded them no redress or no ade- quate remedy, to appeal directly to the council or the king for relief.^ In the twenty-second year of Edward III., it was or- dered that all sucli applications, which were of grace, should be made directly to the chancellor, or to the keeper of the 1 1 Spence's Eq. Jur. 441. courts at one time enforced conseien- 2 Sand. Uses, 17; Burgess !). Wheate, tious obligations, entertaining suits de 1 Wm. Blackst. 123, 135. fidei tcesione, but this jurisdiction is said 8 Atty.-Gen. v. Sands, Hard. 488, to have been talcen away from thera in 491 ; Chudleigh's Case, 1 Rep. 114, 123 ; cases arising between laymen as to civil Bacon, Readings upon Statute of Uses, matters in the reign of Henry III." vol. xiv. pp. 301, 302 (Boston ed. 1861). Digby, Hist. Law R. P. (5th ed.) p. 315. * " It is true that the ecclesiastical ' 1 Spence's Eq. Jur. p. 335. EQUITABLE ESTATES. — USES. 409 privy seal.^ From the practice of receiving such petitions and making decrees upon them came the judicial functions of the chancellor, who theretofore had been only an exalted minis- terial officer ; and thus arose and grew the Court of Chancery, or Equity.^ Unhampered by the precedents and technicalities of the older tribunals, this court had power to compel the specific performance of a purely conscientious duty ; and it found the use ready for the exercise of that power. During the reign of Richard II., and " at some date later than 1393," it began to take cognizance of these interests in realty ;^ and, bringing tlie feoffees to uses before the court by means of its writ of subpcena, it compelled them to carry out the obligations resting upon their consciences, as by allowing the beneficiaries to hold and enjoy the land, conveying it to them, or doing or permitting such other acts as were expressly or impliedly re- quired by the terms of the creation of the uses* But when the court of equity thus came forward, as the tribunal in which the cestui que use could find redress, it at first refused to issue its subpoena, in such a case, against any one but the feoffee to uses personally.^ And, while it would intervene to prevent Mm from wrongfully selling the property, or otherwise disposing of it to the injury of the beneficiary, yet, if before such in- terposition of the court he sold the land, or gave it away, or it descended to his heir, the cestui que use, during this period in the development of his interest, could not follow the realty ; nor could he enforce his rights in any way against the third party into whose hands the legal estate had thus passed. The last step in the advancement of the use to an equitable estate was the enlarging of the operation of the subpcena, in such cases, so as to reach and control the heir or purchaser of the feoffee to uses and, generally, to compel the observance of the rights of the cestui que use and the performance of the obligations in conscience owed to him by the heir, donee, or purchaser of the feoffee to uses, and by all other persons into whose hands the legal estate might come, except those who were disseissors or other adverse holders (i. e., not in privity with the feoffee to uses), or innocent purchasers of the land without 1 Spence's Eq. Jur. p. 337. * 1 Spence, Eq. Jur. pp. 338, 369 ; 2 Select Cases in Chancery (Selden Digby, Hist. Law R. P. (5th ed.) p. Soc), pp. xvi. et seq. 325. 3 Select Cases in Chancery (Selden ^ Year Book, 8 Edw. IV. 6 ; Digby, Soc), p. 48. Hist. Law K. P. (5th ed.) p. 326. 410 ESTATES IN REAL PROPERTY. notice of the use.^ This change probably occurred during the reign of Edward IV., or possibly a little earlier. And it was this addition to his remedies that first gave to cestui que use an equitable estate in the land — a status or position with reference to the land itself, as distinguished from a mere personal confi- dence in the feoffee to use — the power to follow the property itself along from hand to hand and to enforce his rights against its legal holder for the time being, unless or until it comes into the possession and ownership of one who is an adverse holder or has purchased it for value and without notice of the use. But it was then decided, and has ever since that time been held, that a purchaser of the legal estate, for a valuable con- sideration and without notice of the use, holds the land free from the obligation to the cestui que use? In summary, when uses first appeared in England the cestui que use had nothing but a pei'sonal confidence in the feoffee to uses ; later he acquired the power by subpcena in equity to compel the feoffee personally while he kept the legal estate to live up to the requirements of that confidence ; finally he became enabled to follow the land itself and to compel any one into whose hands it came to live up to the requirements of that confidence, unless or until the legal estate was acquired by one who held it adversely (not in privity with the feoffee to uses) or purchased it in good faith for value and without notice of the use. The courts have uniformly called his in- terest thus finally evolved an equitable estate. § 298. Early Distinotiona between a Use and a Trust. — In the early times of which we have been speaking, there was a clear distinction i-ecognized between a "wse" and what was then designated a " trust." Both of these grew up at about the same time into equitable estates.^ The foundation prin- ciple was the same in each ; namely, that the legal title must be held by one person for the benefit of another who owned the equitable estate. When this holder of the legal title was nothing but a receptacle for it, and simply retained it generally 1 Gould V. Petit, temp. Hen. VI. National Bank v. National Broadway Chancery Calendar, ii. p. xxTiii ; Saun- Bank, 156 N. Y. 459, 468; Rochester dress v. Gaynesford, temp. Hen. VI. & C. Turnpike Co. v. Parriour, 162 Chancery Calendar, ii. p. xxxviii.; N. Y. 281 ; Otis v. Otis, 167 Mass. 245. Spence's Eq. Jur. pp. 445, et seq. ; 8 ^yt strictly in point of time the Bacon's I.,aw Tracts, .318; Burgess u. special "trust "seems to have first ap- Wheate, 1 Wm. Blackst. 12.3, 156. peared in English law. Sand. Uses, 7. 2 Year Book, 5 Edw. IV. 7 b ; First EQUITABLE ESTATES. — USES. 411 and permanently, so that the other might have all the control, manageraeut, and benefit of the property, the interest of the latter was called a use} But when the recipient of the legal title had some special duty to perform, as for example to care for and manage the property and pay the net proceeds to the beneficiary, the interest of the latter was denominated a trust? Thus the use was permanent and general, the trust temporary and special. Or, as Lord Bacon expressed it : " When a trust is not special nor transitory, but general and permanent, there it is a use." ^ The use, as tlms differentiated, was the most prevalent form of these interests, and the one most commonly spoken of and dealt with by the Court of Chancery before the enactment of the Statute of Uses in the twenty-seventh year of Henry VIII.* § 299. Definition of Use and Trust. — From the foregoing discussion it appears that a use or trust, as viewed from the standpoint of its owner — the owner of the equitable estate — is the right to the beneficial enjoyment of property of which the legal title and estate are in another person ; ^ and that, as regarded more especially from the standpoint of the holder of the legal title — the feoffee to uses or trustee — it is " an obligation upon a person arising out of a confidence reposed in him to apply property faithfully and according to such con- fidence." ^ Lord Coke defined it as, " a confidence reposed in some other, not issuing out of the land, but as a thing col- lateral, annexed in privity to the estate of the land, and to the person touching the land, for which cestui que trust has no remedy but by subpoena in chancery." ^ ' Bearing constantly in mind the fact that, as soon as the " remedy by subpcena in chancery " became available against all persons who took the legal title from, through, or under the original trustee or feoffee to uses with notice of the use or trust, or without paying a valuable consideration, the courts of 1 Sand. Uses, 3 ; Bacon, Law Tracts, ^' Bispham's Principles Eq. § 49 ; 303 ; Delamere's Case, Plowden, 346 ; Warner v. McMuUin, 131 Pa. St. 370, Co. Lit. 272 b. 381. 2 Sand. Uses, 6 ; Cornish, Uses, 14 ; ^ Stair's Institutions of the Laws of Tud. Lead. Cas. R. P. 255. Scotland, B. iv. tit. vi. § 2, p. 591, § 3, 3 Bacon's Essay on Uses, 9 ; 1 pp. 592-594. Spence, Eq. Jur. 448 ; 1 Lewin on ' Co. Lit. 272 b. Eor other defini- Trusts, p. * 7 ; Hutchins v. Heywood, tions of uses and trusts, and criticisms 50 N. H. 491, 497. of the same, see 1 Perry on Trusts, * As to this statute and its operation §§1,2; Underhill on Trusts and Trus- and efEects, see §§ 302-304, infra. tees (Am. ed.), pp. 1-6. 412 ESTATES IN REAL PROPERTY. equity called the interest of the beneficiary an equitalle estate, and have continuously done so ever since, the elements of this famous definition formulated by Coke may be profitably ex- amined, as revealing the essential characteristics of these forms of equitable interests. The expression, " a confidence reposed in some other,'^ means, in the light of modern adjudications, that the holder of the legal estate and the beneficiary can not be identical. A may hold land for the use of B, or for the use of A and B ; or A and B may hold it for tlie use of A or B. But if A undertake to hold it for the use of himself alone, the equitable estate is ordinarily merged in the legal.^ The phrase, " not issuing out of the land, but as a thing col- lateral," distinguishes the use and trust from such interests as mortgages, judgments, terms of years and other liens, claims, and rights, which issue out of the land itself, and are binding in law upon every person into whose hands it may come.^ This is furtlier explained by the statement, " annexed in privity to the estate in the land, and to the person touching the land" u e., to the person of the holder of the legal title because he is such holder. A mortgage, or other legal lien or claim, is at- tached to the land per se, regardless of who may be the owner. A use or trust is attaclied primarily to the legal owner of the land, and through him, collaterally, to tlie land.^ And, if the title leave him and pass to one who does not claim under him, or to one who purchases for value and without notice of the confidence, the use or trust is thereby destroyed.* So, if the trustee be disseised, or if he be turned out of possession by a person having a paramount title, the disseisor or adverse holder is not bound by the trust or confidence because there is no 1 Goodright v. Wells, Doug. 771 ; said by the New York Court of Ap- Selby V. Alstou, 3 Ves. 339 ; Harawood peals that " the appointment of the V. Oglander, 8 Ves 106, 127; Wade v. beneficiary as trustee by the court, on Paget, 1 Bro. Ch. 363 ; Woodward v. the death or resignation of the testar James, 115 N. Y. 346 ; Can- u. Uichard- mentary trustee, does not extinguish son, 156 Mass. 576; Greene r. Greene, the trust." Losey «. Stanley, 147 N.Y. 125 N. Y. 506 ; Merrill v. Hayden, 86 560, 568. Me. 133. It has been held in some ^ Lewin on Trusts, p. * 15. cases, and may safely be taken as gen- ' Finch's Case, 4 Inst. 85 ; Gilbert erally accepted law, that where one of on Uses, 429 ; Reeves v. Evans, 34 Atl. the beneficiaries is sole trustee — as Rep. 477 (N. J. Eq.). where A is tru.^tee for A and B, his * Fincli's Case, 4 Inst. 85 ; Bassett own beneficial interest merges in his «. Nosworthy, 2 Lead. Cas. Eq. 1 ; 1 legal ownership. BoUes v. State Trust Perry on Trusts, § 218, and cases cited; Co., 27 N. J. Eq. 308 ; Woodward u. § 247, supra. James, 1 15 N. Y. 346, 357. It has been EQUITABLE ESTATES. — USES. 413 privity of estate between him and the ousted trustee.^ In a word, the creation of a use or trust separates the title into two parts — legal and equitable — and gives to the owner of the equi- table estate thus formed the right to enforce his claim against the trustee, or feoffee to uses, and against all persons into whose hands the legal estate may come, except ads'crse or paramount owners and innocent purchasers for value with- out notice of the use or trust. Tlie last clause of Lord Coke's definition — " for which cestui que trust has no remedy but by subpcena in chancery " — was, at the time when it was written, an accurate statement of the means by which the owner of the use or trust could enforce his rights and protect his interest, and it clearly ex- presses the reason for calling such an interest an equitable estate ; but, as will be more fully explained hereafter, the result of statutes and of the tendency of all judicial tribunals to follow the correct lead of equity has been to give to other courts considerable cognizance of uses and trusts and impor- tant forms of remedies for the owners of these equitable estates.^ Having thus ascei'tained the nature of a use, as it arose and flourished in early English law, we have next to examine its requisites and chief characteristics, before it was affected by the Statute of Uses, 27 Hen. VHI. ch. 10, and the rules and constructions based on that famous enactment. § 300. The Three Requisites of a Use. — Three things were 1 1 Perry on Trusts, § 14; 1 Speuce, all branches of the High Court take Eq. Jur. 445. " All those persons who cognizance of equitable rights and rem- take under the trustee by operation of edies. A similar result is produced in law are privies, both in estate and in per- most of the states of this country by son, to the trustee. Thus those who take the amalgamation of the courts by the as heirs under the trustee, or as tenants codes of procedure. But, in England, in dower or curtesy, or by extent of an the Chancery Division is still the proper execution, or by an assignment in insol- branch of the court in which to enforce vency or bankruptcy, are bound by the express trusts ; and all of the amalga- trust. It has been thought that a lord, mated courts in the United States have who talces by an escheat, or by a title equity sides, or " terms," to which the paramount, would not be bound by the cognizance of uses and trusts more trust ; but the point has not been ad- especially belongs. See " Supreme judged." I Perry on Trusts, § 15, citing Court of Judicature Act," 36 & 37 Leake I'. Leake, 5 Ired. Eq. (N. C.) 361, Vict. ch. 66; 44 & 45 Vict. ch. 68; 366 ; Burgess o. Wheate, 1 Eden, 177, N. Y. Code Civ. Pro. §§ 217, 484, 2988, 203. See also Otis ,-. Otis, 167 Mass. 3339; McCartney v. Bostwick, 32 N. Y. 2+5 ; 1 Lewiu on Trusts, pp. * 15, * 16. 53, 57 ; Kennedy v. Fury, 1 Dall. (U. S.) ''The old court of chancery, as 72; 1 Perry on Trusts, § 17. such, no longer exists in England, and 414 ESTATES IN REAL PROPERTY. necessary to the existence of a use, namely, (a) a subject-matter, or as it was frequently styled a use, in being, (b) a feoffee to uses in being, and (c) a cestui que use in being. (a) Only real property, whether corporeal or incorporeal, which was in esse at the time and capable of having the seisin thereof, or what answered to the seisin, transferred at once to the feoffee to uses, could be the subject-matter held or con- veyed to use.^ Nothing could be so conveyed or held, whereof the use or enjoyment is inseparable from the possession, such as annuities, commons and ways in gross.^ And, while one who was seised of land might grant it to another for the use of a third person for a term of years, yet he who had no interest for himself other than a leasehold for years, since he had no seisin, could not so deal with the property.^ But all realty, of whicli one could have the present seisin whether in possession, reversion, or remainder, and which was not property quce ipso usu eonsumantur , could be made by him the subject- matter of a use.* (b) All natural persons, who could be feoffees of land at common law, could be feoffees to uses. Even infants and married women, being capable of taking and holding the legal title to realty, were compellable by chancery to hold it as feoffees to the use of other persons.^ Corporations aggregate were declared to be incapable of holding such a position, because there were no means of compelling them to recognize the rights of the beneficiary ; ^ and the king was also beyond the reach of such obligations, for " the arms of equity are very short against the prerogative."" But it is now uniformly held that any corporation may be seised to uses, provided that they and their objects are not foreign to the purposes of its own existence.^ (c) All persons, whether natural or artificial, who could ' Lord Willoughby's Case, W. Jo. 6 pjowd. 102; Bacon on Uses, 57; 127. Sugdeu, W. & P. p. 417. 2 2 Blackst. Com. p. *331; Beaudely ' Pawlett v. Atty.-Geu., Hard. 465, c. Brooks, Cro. Jac. 189. 467 ; Burgess v. Wheate, 1 Eden, 255; 8 Lord Willoughby's Case, W. Jo. Briggs k. Light-Boats, 11 Allen (Mass.), 127; Yelverton v. Yelverton, Cro. Eliz. 157. 401. 8 Atty.-Gen. v. St. John's Hospital, * Crabb, R. P. §§ 1610, 1611; 2 2 DeG. J. & Sm. 621; Trustees of Blackst. Com. p. *331;, 2 Wash. R. Phillips Academy o. King, 12 Mass. 546; P. p. *98 ; Bispham's Prin. Eq. § 52. Matter of Howe", 1 Paige (N. Y ), 214; 6 Bac. Read. 58; Crabh.R. V. § 1607 ; Jackson l,. Hartwell, 8 Johns. (N. Y.) Hill on Trustees, 48 ; Comm'rs v. Walker, 422 ; Perry on Trusts, §§ 42, 43. 6 How, (Miss.) 143, 146! EQUITABLE ESTATES. — USES. 415 hold property at common law, could be cestuis que use} But an alien was uniformly forbidden to become cestui que use of property of which he was not capable of holding the legal title.^ It frequently occurred that real property was conveyed to a feoffee " for the use " of one who was not in being or not yet ascertainable, as for the use of the oldest child of one who had no child, or to the use of the woman who might subsequently become the wife of a designated single man. In such a case, the feoffee took the legal title at once ; but, since one of the requisites of a use was wanting, no use existed until the desig- nated beneficiary was in being and definitely ascertained. When the cestui que use thus came in esse, the use sprang up in liis or her favor.^ § 301. Characteristics of the ITae before the Statute of Uses. — In those early times the cognizance and control of uses was solely in the Court of Chancery (or Equity). In dealing with them, that tribunal in some respects followed the rules of law, in others departed widely from them. And it was because of the many instances in which it refused to apply those rules to the use that that equitable estate came to be a species of valuable interest, divested of most of the burdens and responsibilities which ordinarily accompany the ownership of property. The maxim " Equity follows the law " was then not at all fully applied to these interests ; and, when it was applied this was done chiefly in holding them subject to the same prin- ciples as legal estates in regard to their duration and dev- olution. Thus, they were descendible in the same manner as legal interests.* And, if A were enfeoffed of a lot of land to the use of B and his heirs, B would thereby acquire an estate in fee simple in the use ; if it were to the use of B while he lived, he would take a life estate, and so of an estate for years etc., the words denoting the extent or duration of the interest being given prima facie the same effect when applied to a use which tliey had at law when applied to the legal estate.^ It 1 Sand. Uses, 370 ; 1 Lewin ou came into being, and the " shifting use," Trusts, p. * 43 ; 1 Perry on Trusts, which was similar to it, are explained § 60. hereafter as forms of future estates, 2 Tud. Lead. Cas. B. P. 254 ; Du * 2 Blaclist. Com. p. * 330 ; 1 Hourmelin v. Sheldon, 1 Beav. 79 ; 1 Spence, Eq. Jur. 454. Perry on Trusts, § 64. See Marx v. ^ Sugden's Gilbert on Uses, ch. 1, McGlynn, 88 N. Y. 357. § 2 ; Year Book, 5 Edw. IV. 7 b. s The "springing use," which thus 416 ESTATES IN REAL PROPERTY. was not necessary, however, that any technical words of in- heritance or limitation, such as " heirs," or " lieirs of his body," should be employed to create estates of inheritance in a use,^ although such words were required in a deed in order to create legal estates of inheritance. In dealing with the use, equity carried out the intention of the parties, when it was clearly expressed by any form of words which they chose to employ. And, while technical words would ordinarily be given their technical meaning, this would not be done if a different intent were clearly expressed by the parties to the transaction.^ Equity also allowed uses to be disposed of by will,^ although the feudal principles at that time (and until the Statute of Wills, 32 Hen. VIII. cli. 1) forbade devises of the legal estates. Thus, if A held land to the use of B and his heirs, while the legal title could not be willed away, yet at B's death B might devise the use to C, and thereafter A would be compelled by the Court of Chancery^to hold the land for the use of C or his grantees or devisees. It was by willing away uses in this manner that the prohibition imposed by the feudal system upon devises of real property was largely overcome.* By act inter vivos, also, the cestui que use could freely sell or otherwise dis- pose of the use ; and he might do this by deed, or writing not under seal, or mere oral instructions to the feoffee to uses.^ But, though often in possession of the land, the cestui que use could not alien the legal estate without the consent of the feoffee to uses, because he had no ownership thereof.^ In most other respects, the Court of Chancery departed 1 \ Cruise, Dig. tit. xi. ch. ii. §§ 26, power of disposing of their property by 27 ; Tud. Lead. Cas. R. P. 253 ; 1 will ; which enabled them to make a Spence, Eq. Jur. 452 ; Cornish, Uses, much better provision for their families 19. than they could otherwise have done." 2 2 Blackst. Com. p. *33I ; 1 Cruise, 1 Cruise, Dig. tit. xi. ch. ii, § 36 ; Sir Dig. tit. xi ch. ii. §§ 20, 21. Edward Clere's Case, 6 Rep. 17 b ; Tud. 3 Co. Lit. 271 b, Butler's note, 231; Lead. Cas. R. P. 268. Crabb, R. P. § 1616. 6 i Cruise, Dig. tit. xi. ch. ii. §§ 2.5- * Thus A, owning land of which he 27; Crabb, R. P. § 1614; Cornish, wished to dispose by will, would convey Uses, 19 ; 1 Spence, Eq. Jur. 454. It it to B to the use of A and to tlie use was not until the enactment of the also of such persons as A might name Statute of Frauds, 29 Car. II. ch. 3, in liis will as cestuis que use. Then A that a writing was required by law, in would will away the use, and after A's disposing of a use or trust inter vivos. death B would hold the legal title for By § 7 of that chapter, all declarations tlie devisees, " Lord Bacon observes of trusts or confidences in real property that one of the reasons why so much were required to be "manifested and land was conveyed to uses was, because prooed " by some writing, persons acquired by that means the ^ 2 Blackst. Com. p. * 331. EQUITABLE ESTATES. — USES. 417 f from the rules of law in dealing with uses. The use, being a mere impalpable abstraction, could not be affected by the common-law property incidents which grew out of the doc- trines of feudal seisin and tenure. Therefore a cestui que use could not be disseised or dispossessed of his use by an adverse claimant. 1 Therefore, also, there arose novel and important methods of creating and transferring uses, which will be ex- plained hereafter.2 So it was decided that there should be neither curtesy nor dower in a use.^ The lord was not en- titled to an escheat on failure of heirs of the cestui que use ; * nor, except for certain changes introduced by legislation, was the king entitled to any forfeiture of the use for crime,^ or the creditor of its owner to reach it for the payment of his debt.® Thus the use was divested of most of the plain and ordin- ary incidents of real property ; and, while it was owned sub- ject to the legal estate resting in the feoffee to uses and affected by legal incidents as against him,'' yet its owner could incur debts, commit crimes, secretly sell or encumber his property, or otherwise act in ways unfair or unjust towards others, with- out fear of any loss or diminution of his use, except by his own voluntary act or the crime, covin, or marriage of the feoffee to uses.^ Some of the results of this state of affairs, as ex- pressed by Lord Bacon, were that " A man, that had cause to sue for land, knew not against whom to bring his action, or who was the owner of it. The wife was defrauded of her thirds ; the husband of his curtesy ; the lord of his wardship, 1 2 Wash. E. p. p. * 106, par. 26. Lead. Cas. R. P. 253 ; Jackson d. Gratz 2 See Digby, Hist. Law R. P. (5th v. Catlin, 2 Johns. (N. Y.) 248, 261. ed.) pp. 328-343. ^ Cruise, Dig. tit. xi. ch. ii. § 35. ^ "And therefore it became custom- " For, being merely a creature of equity, ary, when most estates were put in use, the common law, which looked no to settle before marriage some joint further than to the person actually estate to the use of the husband and seised of the land, could award no pro- wife for their lives; which was the cess against it." 2 Blackst. Com. original of modern iointures," 2 Blackst. p. *331. Com. * p. 331. ' The use, in this period before' * 2 Blackst. Com. p. * 330 ; Sugden's the Statute of Uses, was subject to the Gilbert on Uses, ch. i, §§ 2, 5, 6. feudal duties and obligations of the 5 This was remedied by early legis- feoffee to uses, to the dower of his wife lation, such as the statute 21, Rich. II. (and to the curtesy of her husband if ch. 3, and the later statute 33 Hen. VIII. the feoffee were a married woman) and eh. 20, § 2, which made uses forfeitable to the danger of being forfeited for his upon attainder for treason. Cruise, treason or felony. Sand. Uses, 67 ; 1 Dig. tit. xi. ch. ii. §31; 3 Inst. 19; Spence, Eq. Jur. 445. Chndleigh's Case, 1 Rep. 114, 121 ; Tud. » Ibid. 27 418 ESTATES IN EEAL PEOPEETT. relief, heriot,^ and escheat ; the creditor of his extent for debt ; and the poor tenant of his lease." ^ Through a series of years, many attempts were made to cure or prevent by statute these mischiefs and hardships. Instances of such attempts were the statutes 50 Edw. III. ch. 6, 1 Rich. II. ch. 9, and 19 Hen. VII. ch. 15, which aimed to enable creditors to take lands held to the use of their debtors ; 4 Hen. Vll. ch. 17, which sought to restore to the lord his wardships and reliefs in respect to realty held by one for the use of another ; and 1 Rich. III. ch. 1, whereby the cestui que use was authorized to alien the legal estate in the land without the concurrence or consent of the feoffee to uses.^ But the subtlety of those who were endeavoring to perpetuate secret uses and their fruits was enabled to evade practically all of such enactments. The last one here mentioned — 1 Rich. III. ch. 1 — became of itself a fruitful source of perplexity and confusion. For it enabled the cestui que use to sell the legal estate, without depriving the feoffee to uses of the same power which the common law gave to him ; * and the result was that they both sometimes sold the land, at about the same time, one to one purchaser and the other to another, and both ven- dees apparently had perfect titles while claiming adversely to each other.^ Finally, such inconsistencies and evasions were sought to be done away with, and the objects of all the prior enactments merged, in the famous " Statute of Uses," 27 Hen. VIII. ch. 10, which will be next discussed. § 302. The Statute of Uses, 27 Hen. VIII. ch. 10 (l535). — After reciting the numerous evils which it was intended to abolish,^ the Statute of Uses enacted, in substance, that when- 1 A heriot was "a customary tribute ^ The preamble is long and recites a of goods and chattels, payable to the great variety of abases which resulted lord of the fee on the decease of the from secret uses, trusts and confidences, owner of the land." Bouvier, Law Especially it declares that the objects Diet. of the enactment were " for the extirp- 2 2 Blaekst. Com. pp. *331, *332. ing and extinguishment of all 'such These difficulties are stated in detail in subtle practiced feoffments, fines, re- the preamble to the Statute of Uses, 27 coveries, abuses, and errors heretofore Hen. VIII. ch. 10. used and accustomed iu this realm . . 3 See such acts as these more fully and to the intent that the king's high- set forth and explained in Cruise, Dig. ness, or any other his subject of this tit. xi. ch. ii. §§ 41-45. realm, shall not in any wise hereafter, * Digby, Hist. Law E. P. (5th ed.) by any means or inventions be deceived, p. 345, note. damaged, or hurt by reason of such ' See Bispham's Prin. Eq. Jur. trusts, uses and confidences." § 53. . EQUITABLE ESTATES. — USES. 419 ever any person should be seised of real property to the use of another, the ceshd que use should have the legal estate and pos- session in the same quality, manner, form and condition in which he had the use.^ Its object was to do away with uses, by unit- ing the legal and equitable estates in the cestui que use and thus merging the latter estate in the former. The feoffee to uses was made a mere figure-head, from whom the legal estate and possession should pass as soon as the use vested in another person.^ In the language of conveyancing, the statute was said to cxecide the use ; i. e., it destroyed the use by merging it in the legal estate brought over to its owner from the feoffee to uses.^ It did this when the feoffee to uses, or holder of the legal estate, had the seisin of the property. And this process of execution was the investing of the cestui que use with the legal estate, in the same quality, manner, form and condition in which he had the use. Thus, if A were seised of one piece of land for the use of B in fee simple, of a second piece for the use of C for his life, of a third for the use of D as long as he should live on the land, and of a fourth for the use of B for ten years provided he did not attempt to assign his interest, the statute would execute all of these uses, and thereby confer the legal estate in the one piece of land upon B in fee simple, in the second piece upon C for his life, in the third upon P as long as he should live on the land, and in the fourth upon E for ten years provided he did nol; attempt to assign his in- terest. The statute consisted of thirteen sections, dealt care- fully with several important interests much affected by uses, such as the jointure of a wife in lieu of her dower, and, among other consequences, wag^ held to have done away en- tirely with the power of disposing of interests in realty by will, which power had been theretofore one of the most important results of the employment of uses.* But the main and essen- 1 Sectiong 1-3 of the statute ; Dighy, ship, to make the ostensible tenant in Hist. Law R. P. (5th ed.) pp. .347-3.51 ; every case also the legal tenant, liable Cruise, Dig. tit. xi. ch. iii. § 4. to his lord for feudal dues and services 2 " The object of the statute was, by — wardship, marriage, and the rest." joining the possession or seisin to the Digby, Hist. Law R, P. (5th ed ) p. use and interest (or, in other words by 346 ; Bac. Law Tracts, 322 ; Sand, providing that all the estate which would Uses, 86, 87; Wms. R. P. p.* 159; by the common law have passed to the Chudleigh's Case, 1 Rep. 114, 124. grantee to uses should instantly be taken ^ 2 Blackst. Com. p. * 333 ; Bisp- out of him and vested in cestui que use), ham's Prin. Eq. § 53. to annihilate altogether the distinction * The courts held that, since under between the legal and beneficial owner- the statute the person to whom a use 420 ESTATES IN REAL PEOPERTT. tifil change, which it proposed and of which its other features were incidents or results, was the execution of uses as above explained. § 303. How the Statute of Uses ■was interpreted and con- strued. — "The Statute of Uses," said Lord Bacon, "is the most perfectly and exactly conceived and penned of any law in the books." ^ But it opposed the current of general opin- ion and popular demand as to the ownership of real property ; and the curious result was that its effects were directly the re- verse of its purpose as conceived by its framers and enactors.^ By means of it, unexpected forms of secret conveyances were introduced and have continued to be employed down to the present time. These will be hereafter discussed, in the por- tion of this work which deals with titles and conveyancing. By a strict and almost strained construction of the language of the statute, the old distinction between legal and equitable ownership and estates was also revived ; and the use continued to flourish, though under the new name of a trust.^ After the enactment of the statute, the courts of common law, following out its intent, began to take cognizance of uses. Its interpretation and construction were mainly the work of those courts.* Some of the results, at which they arrived, were undoubtedly correct and necessary. Thus, they held that, since the legal estate must leave the feoffee to use the instant he received it, the land could no longer escheat or be forfeited by his act or defect, nor be liable to dower or curtesy because of the seisin of such feoffee, nor be aliened by him discharged of the use. So the interest of the cestui que use, since it now included the legal estate, was held to be liable was devised would acquire the legal of uses. But it was not adopted ; and estate as soon as he acquired the use, the result was that there were no wills to will away the use was in effect to of realty in Bnglaud for five years — will away the legal estate. And, as a from the Statute of Uses, 27 Hen. VIII. disposition of the latter by will was for- eh. 10 (1.535), to the Statute of Wills, bidden by the feudal law, it was decided 32 Hen. VIII. ch. 1 (1540). This fact that the statute of uses wholly did away is said to have been among the causes with the possibility of devising realty, which led to the insurrection of 1536. It would have been equally as logical, 3 Freud's Hist. Eng. 91 ; Digby, Hist, if not more so, for the courts to have Law R. P. (5tli ed.) p, 346, u. argued that the will dealt with the use l Law Tracts, 324. only and the fact that the statute then ^ Digby, Hist. Law R. P. (5th ed.) annexed the legal estate to the use pp. 346, 347. was a result with which the will had ^ 1 Perry on Trusts, § 6. nothing to do. The latter course of < 2 Blackst. Com. p. * 333. reasoning would have retained devises EQUITABLE ESTATES. — USES. 421 to ordinary common-law incidents, such as curtesy, forfeiture for crime, escheat, etc.^ But the facts that the statute did not produce the results for which it was enacted and that uses continued to flourish, even with renewed vigor, were due to several strict and technical decisions of those same courts of law. Before discussing the three most important of those de- cisions — the three constructions which decided the destiny of uses and trusts — it is to be noted that it was held that the statute did not execute uses limited of copyhold lands,^ nor uses of mere chattels,^ nor contingent uses as long as tlie events had not happened upon which the vesting of the uses depended.* The first of the three most important decisions related to uses in estates for years. Since the statute was to operate only where one person was seised to the use of another, it was held by the courts of common law that it did not execute any use where the holder of the legal title had no greater interest than an estate for years." Thus, if land were conveyed to A for ten years, for the use of B for ten years, this use would not be executed, since A had no seisin and the case was clearly n(jt within the letter of the statute. But it is to be carefully noted that, when the conveyance was to A and his heirs for the use of B for ten years, or to A for life for the use of B for ten years, since in such cases A had the seisin, the statute did operate and transfer the legal estate to B, to continue during the same term of years for which he was given the use.^ Second. It was further determined, by the common-law courts, that, when the feoffee to uses was required to convey the land, or to receive the rents and profits and pay them over to the beneficiary, or to perform any other active duties in regard to the property, the use, or trust, was not executed by the statute.'^ Such a settlement made an active trust. And it has been uniformly and correctly held that such a trust was not within the spirit of the statute.^ To have concluded otherwise would often have resulted in taking the manage- ment of property from a competent trustee and placing it in ■■ Last preceding note. Cas. R. P. 265 ; Wms. K. P. pp. * 184- ■^ Gilbert, Ten. 170; Co. Lit. 272 a. *188. 8 1 Perry on Trusts, § 6. 1 2 Blackst. Com. p. *336; 1 Perry * Sanders, Uses, 240 et seq. on Trusts, § 6 ; Kay v. Scates, 37 I'a. St. 6 2 Blackst. Cora. p. *336; 1 Perry 31, 37; Hart v. Seymour, 147 111. 598, on Trusts, §6. 611. • 6 2 Prest. Conv. 219; Tud. Lead. 8 Pugh y. Hayes, 113 Mo. 424; X. Y. L. 1896, ch. 547,"§ 76. 422 ESTATES IN REAL PROPEETT. the hands of an infant, a lunatic, or some other incapacitated cestui que trust. Third. The farthest reaching and most strictly technical of these three important adjudications was the decision in TyrreVs Case, to the effect that the statute would not execute a use " limited on a use ; " i. e., if a use were created upon a use, the statute would execute only the first use, and would thus vest and retain the legal estate in the first named cestui que use} Thus, upon the conveyance of land to A, for the use of B, for the use of C (or in trust or confidence for C), it was decided in this case, hy the common-law court, that the statute would immediately transfer the legal estate from A to B and would then cease to operate upon it and leave it in B. And the same result must follow, no matter how many successive uaes were declared in the instrument of conveyance. Accord- ingly, if realty were granted to A for the use of B, for the use of C, in trust for D, in confidence for B, the statute would simply take the legal estate to B, the first-named beneficiary, and there it must remain so far as the statute was concerned. Having operated once, in executing the first use, the force of the statute upon that conveyance was declared to be wholly ex- pended ; and it could not affect the other uses or trusts declared. " About the time of passing the Statute of Uses," says Mr. Watkins, " some wise man, in the plenitude of legal learning, declared there could not be a use upon a use. This wise dec- ^ Dyer, 1.^5. Divested of its techni- away. It treated the abstract use as a calities, the effect of the conveyance of real thing, which must have injected the land, by .Jane Tyrrel in this case, into it a substantial seisin before it was that she was to have the legal estate, could be transformed into a legal estate, for the use of her son, for the use of And the argument was that, when herself during her life, and, upon her livery of seisin was made to A, for the death, for the use of her son and the use of B, for the use of C, there was no heirs of his body, but if he had no heirs seisin given to B by the act of the par- of his body then for the use of his heirs ties. Nothing but a use was given to generally. In au opinion of three lines, him. He held a use for C, but no the court declared that the statute exe- seisin. When the statute took the cuted the use in the son, that it then seisin and legal estate from A, it took ceased to affect the title, and that the them for B and not for C. This was legal estate would not be taken from the same kind of reasoning which led him by any further operation of the to the doctrine of scintilla jusis, here- statute. " Use ne poit estre engendre de after explained in connection with shift- use," etc. At no point does English ing uses. Also 36 Hen. VIII. B. N. C. law bear stronger traces of the realistic 284 ; Doe dem. Lloyd p. Passingham, doctrines of the Schoolmen than in 6 Barn. & Cres. 305 ; Reid v. Gordon, such decisions as that of Tyrrel's Case. 35 Md. 174, 183; Croxall v. Shererd, The mode of thought, which gave rise to 72 U. S. 268; Sanders, Uses, 276; 1 such adjudications, has entirely passed Perry on Trusts, § 6. EQUITABLE ESTATES. — USES. 423 laration, which must have surprised every one who was not sufficiently learned to have lost his common sense, was adopted and still is adopted, and upon it (at least chiefly) has been built up the present system of uses and trusts."^ For the courts of equity proceeded at once to declare that, in instances like those above stated, B was bound in good conscience to hold the property in trust for C, and C likewise must hold his equitable intei'est upon the further confidence or trust, if any, declared in the instrument of conveyance. And those courts proceeded by subpoena, as before the statute, to compel the owner of the legal estate (the one to whom the statute had transferred it — the first-named cestui que use — B, in the illus- trations above given) and all the other designated beneficiaries to recognize and perform the trusts, duties, and confidences imposed upon them by the terms of the conveyance or settle- ment.^ The use was thus restored, in full vigor, notwithstand- ing the Statute of Uses ; but, in order' to retain it, it was now usually necessary to convey the legal estate to one in whom it was not meant to remain, for the use of him in whom it was intended that it should remain, for the use of (or in trust for) the intended beneficiary. For example, if before the statute was enacted it were desired that A should hold a piece of land for the use of B, it was only necessary to convey it " to A for the use of B" and thereupon A would hold the legal estate and B the equitable. If it were desired to bring about the same result after the statute went into operation, and Tyrrel's Case had been decided, it could be done by conveying the property " to X for the use of A, for the use of B." The statute then instantly vested the legal estate in A, and equity compelled him, as before, to hold it for the use of B. The desired effect was directly produced, before the statute was enacted ; and afterwards it was produced indirectly by introducing a mere " dummy " as the first feoffee, and saying " to the use " twice. Hence the language of Lord Hardwicke as to the effects of the decision in Tyrrel's Case : " By this means, a statute made 1 Watkins, Conv. Introd. xx. "It use was iioid — tbat, if land were con- had been settled before the statute, as a Teyed to A for the use of B, for the use rule of property, that a use could not of C, C got no use, and therefore he be raised upon a, use." 1 Perry on had nothing to which the statute could Trusts, § 6. The fundamental princi- carry the legal title. See citations of pie, therefore, upon which was rested preceding note. the rule in Tyrrel's Case, was that a 2 Hopkins v. Hopkins, 1 Atk. 581 ; use could not exist upon a use, and if Wms. R. P. p.* 161; 1 Perry on Trusts, such a thing were attempted the second § 6. 424 ESTATES IN REAL PEOPERTT. upon great consideration, introduced in a solemn and pompous manner, by this strict construction, has had no other effect than to add, at most, three words to a conveyance."^ The doctrine of Tyrrel's Case is elementary law in those states of this coun- try in which it has not been changed by statute.^ (a) § 304. HoTW the Court of Chancery retained the Usej under the Name of a Trust. — By the above-explained constructions of the Statutes of Uses, — chiefly by that in Tyrrel's Case, — and by the advantage taken of them by the courts of equity, the use, as such, continued to exist. But if it had been retained with all its objectionable features, which had caused the enactment of the Statute of Uses, there can be no doubt but that legislation would ultimately have swept it entirely out of existence. Therefore it behooved the court of chancery, or equity, which was endeavoring to preserve the use, to so deal with it as to remove the incentives for the enactment of another and possibly a more stringent statute of uses. This was done by giving to the old use a new name, and new and more equitable incidents and characteristics. The original distinction between a use and a trust has been heretofore explained.^ After the decision iu Tyrrel's Case, and the consequent revival of the use, this distinction in nomenclat- (a) In New York, the rule of Tyrrel's Case has been abrogated since Jan. 1, 1830. The statute, which was formerly 1 E. S. 737, §§ 47, 48, is now § 72 of ch. 547, L. 1896 (Real Prop. Law), and reads as follows: "Every person who, by virtue of any grant, assignment, or devise, is entitled both to the actual possession of real property, and to the receipt of the rents and profits thereof, in law or equity, shall be deemed to have a legal estate therein, of the same quality and duration, and subject to the same condi- tions as his beneficial interest ; but this section does not divest the estate of the trustee in any trust existing on the first day of January, eighteen hundred and thirty, where the title of such trustee is not merely nominal, but is connected with some power of actual disposition or management in relation to the real property which is the subject of the trust." Wendt v. Walsh, 164 N. Y. 154. See also note on New York express trusts, at the end of Ch. XXI. infra. 1 Hopkins v. Hopkins, 1 Atk. 581. 2 In many of the United States, such " It appears that, by the time of Sir E. as Georgia, Michigan, New Jersey, New Coke, the uses upon uses which the York, and Wisconsin, the rule in Tyr- common-law courts refused to recog- rel's Case is abolished by statute ; and nize were enforced in Chancery. Thus where the holder of the legal estate is was restored the distinction between the not given any active duty to perform, equitable and the legal estate, which it that estate passes to the ultimate bene- had been the design of the Statute of ficiary named in the grant or devise. Uses to abolish." Digby, Hist. Law 1 Stim. Amer. Stat. L. §§ 1701, 1702. E. P. (5th ed.) p. 372. s § 298, supra. EQUITABLE ESTATES. — USES. 425 ure was discarded ; and both of these forms of equitable estates were called trusts} When, therefore, real property was con- veyed to A, for the use of B, for the use of C, B became trustee for C, and C, to whom the " second use " was given, was the cestui que trust. It then became necessary to make the . division, which is still retained, of all express trusts into two classes, namely, active and passive. The passive express trust of to-day is the old use with its new name ; and the active express trust is practically the trust so called before the Statute of Uses. The incidents and cliaracteristics of the use, now called a a passive express trust, were also materially changed, by the application to it of the maxim that " equity follows the law." ^ By this is meant that, as far as their inherent nature will per- mit, equity applies to these equitable estates those rules of law by which legal titles aud interests are regulated.^ Thus, they are descendible, devisable, and alienable in the same man- ner as legal estates.* They may be reached in equity by creditors for the satisfaction of debts ; ^ in England by virtue of statutes,^ and in this country by judicial decisions, they may escheat on the death of their owners without heirs who can inherit them,^ and they are forfeitable for treason.*^ In apply- ing the maxim that equity follows tlie law, it was soon decided, also, that a husband may have curtesy in the equitable estates owned by his wife, unless on there being conveyed to her for her sole and separate use his marital rights in them are expressly 1 Digby, Hist. Law R. P. (Sth ed.) por's Case, 1 Smith's Lead. Cas. 119, p. 372. Judge Hare's note ; Nichols v. Levy, 2 Burgess y.Wlieate.l Wm.Blackst. 5 Wall. (U. S.) 433, 441; Hallett ;;. 123, 155; Croxall K. Shererd, 72 XJ. S. Thompson, 5 Paige (N. Y.), 583; 268, 281. Blackstone Bank v. Davis, 21 Pick. 3 Bispha'.-n's I'rin. Eq. § 38. See (Mass.) 42; Easterly u. Keuey, 36 Conn. Magniac v. Thomson, 15 How. (U. S.) 18, 22; Taylor u. Hlarwell, 65 Ala. 1. 281 ; Hedges v. Dixon Co., 150 U. S. <^ i7 & 48 Vict. ch. 71, § 4. 182-192. ^ Jolinston v. Spicer, 107 N. Y. 185; * Burgess K. Wheate, 1 Wm Blackst. Matthews t/. Ward, 10 Gill & J. (Md.) 155, 161 ; Price u. Sia.son, 13 N. J. Eq. 443, 454. 168, 174; Cornwell v. Orton, 126 Mo. ' This is the result of statute in 355 ; Paries' Appeal, 23 Pa. St. 29 ; England. 33 Hen. VIIL ch. 20. Fearne, Cont. Rem. p. 284 ; 2 Lewin on Before this, in all cases of forfeiture, Trusts, p. * 823. the trustee took the property freed from ^ The cestui que trust can not hold the trust. Burgess r. Wheate, 1 Eden, aud enjoy the property freed from the 199. In this country, practically tlie duty of having it applied to the satis- only forfeiture of property is for trea- factiou of his debts. And this has been son, during the life of the person at- the rule of equity, practically ever since tainted, and this applies to all kinds of the decision in Tyrrel's Case. Dum- property alike. 426 ESTATES IN REAL PROPERTY. excluded.^ But, when the question arose as the wife's dower in property held in trust for her husband, it was decided that she should not be endowed of such estates, because presumably she was already provided for by a jointure or marriage settlement, and titles would be disarranged by giving her dower.^ And such was the law of England, until by the Dower Act of 1834 (3 & 4 Wm. IV. ch. 105) this anomaly was removed, and dower was added as an incident to equitable estates. In most of the states of this country, a widow has always been dowable out of equitable estates of her husband.^ It is to be added that, in dealing with executory trusts, which will be more fully explained hereafter,* and which are trusts in an inchoate con- dition, with their full quality or duration yet to be determined by the trustee, equity will often refuse to apply the strict rules by which legal estates are governed.^ In a general summary, it may be said that, after the deci- sion in Tyrrel's Case, the courts of equity retained the old use with the new appellation of a trust, and applied to it the same principles which courts of law apply to legal estates, except that, for a long time they recognized no dower in it, in many instances they refused to follow the law in dealing with execu- tory trusts, and they would not follow the law in cases in which such a course would be inconsistent with the nature of the equitable estate itself, as in the instance of the exclusion of curtesy from a trust for the sole and separate use of a mar- ried woman. By these methods, equity retained, moulded, and perfected the different forms of trusts, which now consti- tute so large and important a part of our real property, and which are next to be classified and discussed. i Roberts v. Dixwell, 1 Atk. 607; Ind. 179. See Phelps v. Phelps, U3 Morgan w. Morgan, 5 Madd. 408; Cocli- N. Y. 197; Nichols v. Park, 78 N. Y. ran ti. O'Hern, 4 W. & S. (Pa.) 9.'), 99; App. Div. 95. But in Maine and Rigler v. Cloud, 14 Pa. St. 361,363; Massachusetts a wife is not dowable of Lewin on Trusts, pp. * 11, * 221,* 733; her husband's equitable estates. Ham- 1 Perry on Trusts, § 323. lin v. Hamlin, 19 iMe. 141 ; Reed v. 2 Co. Lit. 208a (n.' 105); D'Arcy Whitney, 7 Gray (Mass.), 533; Lobdell V. Blake, 2 Sch. & Lef. 387 ; Mayburry u. Hayes, 4 Allen (JIass.), 187. V. Brien, 15 Pet. (U. S.) 21, 38; 1 * § 309, ni/ra. Perry on Trusts, § 323. ^ Wood v. Burnham, 6 Paige 8 Shoemaker v. Walker, 2 Serg. & (N. Y.),513; Pillot v. Landon,46 N J. R. (Pa.) 554; Hawley u. James, 5 Paige Eq. 310, 313; Bartlett v. Remington, (N. Y.), 318; Mershon v. Duer, 40 59 N. H. 364; 4 Kent's Com. p. * 219. N.J. Eq. 333; Stroup v. Stroup, 140 (2) TRUSTS. CHAPTER XX. KINDS OP TRUSTS. § 305. Classification of trusts. | § 309. Executed and executory § 3U6. Trusts, lawful and unlaw- ful. § 307. Trusts, active or special, and passive, simple, or genei'al. § 308. Trusts, private and public, or charitable. trusts. § 310. Trusts, a. Express [(a) Active, (b) passive], and b. Im- plied [(a) resulting, (b) construc- tive]. § 305. ciassiiications of Trusts. — The different methods of classifying trusts, which have been adopted by courts and text-writers, may often lead to confusion, unless the reader is constantly alert as to the meaning which is to be attached in each case to the terms employed. This is specially true as to the expression "implied trusts." It is, theref(n-e, necessary, in approaching the discussion of ti'usts, to explain carefully the meanings of the various kinds of them which are to be described and examined. The divisions and mean- ings here adopted are believed to be those which are most natural and most commonly accepted and used by the best judges and writers. § 306. Trusts, Lawful and Unlawful. — One division of all trusts, which practically defines itself, is into lawful and unlawful. Most trusts are, of course, lawful ; that is, they exist for some fair and honest purpose recognized and upheld by law. An illustration of an unlawful trust would be one for some vicious or immoral purpose, or otherwise in viola- tion of public policy or statutes ; as a trust to encourage crime, or to violate the excise laws, or the statutes of mort- main, or those in regard to aliens, ^ or the so-called " Sherman 1 Bacon on Use."!, 9 ; Servis i'. Nelson, Mass. 9 ; Dunham v. Presby, 120 Mass. 14 N. J. Eq. 94 SneU v. Dwight, 120 286. 428 ESTATES IN REAL PROPERTY. Anti -Trust Law" of the United States.^ Equity brought the trust into existence, as a new estate; but no court will uphold it for any illegal purpose. § 307. Trusts, Active or Special, and Passive, Simple, or General. — As already explained, an active or special trust is one in which something is required to be done by the trustee, in order to carry out the intention of the settler, as to keep the property in repair, to sell or mortgage it, to receive the rents and profits, and to pay them over to the cestui que trust, and the like; while a passive trust — or, as it is sometimes called, a simple or general trust — merely vests the legal title in the trustee as a kind of receptacle, but imposes no active duty upon him. ^ Most of the implied trusts Cas the word " implied " is used in this treatise) are passive ; while some express trusts are active and others passive. Therefore trusts as active and passive are more fully discussed hereafter, as subdivisions of express trusts. § 308. Trusts, Private and Public, or Charitable. — Private trusts are those in which the beneficial interests are vested in one or more individuals, or families, who are definitely as- certained, or may be so within a certain time. They must not only be for "the benefit of certain and determined indi- viduals; but they are also generally limited in their duration, being restricted in time, by the so-called rule against perpe- tuities, to a period of not more than a life or lives in being and twenty-one years, and the period of gestation of a child in addition.^ Public or charitable trusts are not thus restricted, but have three leading and distinguishing features, namely: first, their purpose must be some public utility, and, there- fore, they must exist for the benefit of the public generally, or of some considerable portion of it which answers to a par- ticular description;* second, their beneficiaries must be in- definite as to the individuals ^ and third, they are not restricted, as to time, by the rule against perpetuities, but 1 26 U. S. Stat, at Large, 209 ; United 2 § 998, supra. States r. E. C. Kuight Co., 156 U. S. 1 ; " Rice v. Barrett, 102 N. Y. 161; United States v. Trans-Missouri Freight Manice v. Maniee 43 N. Y. 303. Ass'n, 166 U. S. 290; United States u. * Doyle r Wlialeu, 87 Me. 414, 425; Joint Tratfic Ass'n, 171 U. S. 505. See Lewiu on Trusts, p. *20; 2 Perry on More V Bennett, 140 111. 69 ; People v. Trusts, § 697. North Eiv. Sug. Ref . Co., 1 21 N. Y. 582 ; » Philadelphia v. Fox 64 Pa. St. 1 69, Bath Gas Light Co. u. Claffy, 151 N. Y. 182; Jackson i'. Phillips, 14 Allen 24, 43; 1 Perry on Trusts (5th ed.), (Mass.), 539, 550; Hopkins u. Grim- § 21, note. shaw, 165 U. S. 342, 352. EQUITABLE ESTATES. KINDS OP TRUSTS. 429 may be made to continue indefinitely.^ Charitable trusts will be more fully discussed hereafter, as one of the forms of express trusts. § 309. Executed and Executory Trusts. — In a broad, gen- eral sense, all trusts are executory ; that is, there is some duty, either active or passive, for the trustee to perform, or execute. But such is not the meaning of the courts when they speak of an " executory trust. " The distinction between such a trust and one which is executed hiis to do rather with the completeness and perfection of their creation by the settler, than with the conduct of the trustee in performing the duties of his office.^ An executed trust is one so clear and definite, in the terms by which it is created, that the trustee has noth- ing to do but to carry out literally the requirements and pro- visions of the instrument.^ The settler, or creator, of such a trust has become "his own conveyancer;" and has made the trustee merely a medium for carrying out his purpose as ex- pressed in the making of the trust.* An executory trust, on the other hand, is one in which property is conveyed to a trustee, to be by him settled or conveyed upon other trusts, on the happening of designated events or contingencies; and those other trusts are only outlined, or imperfectly stated, so that the trustee is given a discretion in filling out the details and completing the scheme of the trust. The settler has not become his own conveyancer; but has left it to the trustee and the court to make out his intention from general expres- sions. It is called executory, not because the work of the trustee in carrying out the trust is to be performed in the future, but because the trust instrument is to be filled out and perfected in accordance with the general instructions of the settler.^ Thus, if land be conveyed to A, in trust to manage and pay the net income to B during his life, and at B's death to divide the corpus equally among his children then living, the trust is executed. But if real property be given to A, in trust to settle the same upon B and C and their issue, in case 1 "Hopkins v. Grimshaw, 165 U.S. Lead. Cas. Eq. 1, note; Gaylord c. 342; Andrews !). Andrews, 110 111. 223; La Fayette, 115 Ind. 423; Tillinghast Mills V. Davison, 54 N. J. Eq. 659. a. Coggeshall, 7 R. I. 383. 2 1 Perry on Trusts, § 359. 6 Austen v. Taylor, 1 Eden, 361, 8 "Wright 0. Pearson, 1 Eden, 119, 366; Neves v. Scott, 9 How. (U. S.) 125; 4 Kent's Com. p. * 220. 196, 211; Wood v. Bumliam, 6 Paige * Edgerton v. Brownlaw, 4 H. L. (N. Y.), 518, 26 Wend. (N. Y.) 9; Cuah- Cas. 1, 210 j Glenorchy v. BosviUe, 1 mau u. Coleman, 92 Ga. 772. 430 BSTATEf5 IN REAL PROPERTY. they intermarry, and nothing more be expressed as to the terms and conditions of such settlement, the trust is exec- utory.^ In both of these illustrations, the work of the trustee is to be done in the future. But, in the former, he has only to carry out the provisions of a fully declared trust; while, in the latter, he is to participate in moulding and perfecting the trust scheme itself. The most important practical distinction between executed trusts and those that are executory is that equity strictly follows the law in dealing with the former, but frequently fails to do so in carrying oiit the latter. ^ In the one, the rules of law prevail, even though the settler's intention may be thereby defeated ; in the other, his intention is sought to be effectuated, even though technical rules of law may be thereby sometimes disregarded.^ If, for example, a lot of land were deeded to A, in trust to manage for B during his life, and at B's death for his children equally, the children would obtain only life estates, since the ultimate gift was not to them and their heirs, and the technical rule of the common law requires the use of the word "heirs," in order to thus convey an interest greater than one for life.* But if the grant or devise were to A in trust to manage for B during his life, and at his death to settle upon his children, the terms of the settlement being left 'indefinite and not fully prescribed; when the formal instrument, by which this general scheme was to be carried out, came to be drawn, the ultimate settlement would be made upon B's children and their heirs, thus giving, them absolute estates in fee simple, if this could fairly be regarded as the intention of the grantor or testator.^ In dealing with an executory trust, a court of equity is constantly seeking to ascertain and carry out the intention of 1 Austen o. Taylor, 1 Eden, 361, settlement which will best give effect 366; Cashing v. Blake, 30 N. J. Eq. to the settler's intention, and for this 689 ; Carney v. Cain, 40 W. Va. 758. purpose may even disregard the con- 2 Wright V. Pearson, 1 Eden, 119; struction the instrument would receive Jones V. Morgan, 1 Brown, C. C. 206 ; at law." Pilot v. Landon, 46 N. J. Eq. Price V. Sisson, 13 N. J. Eq. 168; 310,313. Smith's Estate, 144 Pa. St. 428. 4 HoUiday v. Overton, UBeav. 467 ; 3 Ibid. " In practice the chief dis- Lucas v. Brandreth, 28 Beav. 274 ; tinction between an executed and .an Nelson w. Davis 35 Ind. 474. executory trust lies in the fact that the 6 Moore v. Cle^horn 10 Beav. 423 • former executes itself by converting its Watkins u. Weston, 32 Beav. 238 ; Doe limitations into the corresponding legal „. Cafe, 7 Exch, 675. See Pitman i>. estates, whereas in the latter, the court Pitman, 11 Lawy. Kep. Ann, 456, and may direct that form of conveyance or note. EQUITABLE ESTATES. KINDS OF TRUSTS. 431 the settler, even at the expense of hard and rigid principles of law. The evidence of intention is to be gathered, of course, primarily from the entire instrument by which the general scheme is outlined. When, for example, the scheme or gen- eral plan is contained in a will, the whole document — includ- ing the parts which do not bear directly upon the trust — ^is to be studied, in the light of the testator's condition and sur- roundings; and the trust is to be moulded in accordance with the clear intent thus ascertained.^ But, -in shaping an execu- tory trust outlined by a marriage settlement, the court is aided also by the presumption that the intention of the settler was to benefit the issue of the marriage.^ No such presumption exists in the construction of wills ; but the intent must plainly appear from the words of the testator. ^ There is, indeed, no difference between the rules of interpretation and construction of wills, and those which apply to marriage settlements ; the intention alone is sought in both ; but in dealing with the latter documents res ipsa loquitur, the occasions which give rise to them evince what may be presumed to have been the paramount object of the settlers.^ This presumption will readily yield, of course, to a contrary intent clearly expressed in the marriage articles. When it is said that equity in dealing with an executory trust may disregard technical rules of law, it must not be understood that that court may thereby produce any result that is in itself illegal. It simply chooses among possible legal constructions that which most nearly conforms to the expressed or presumed intention of the settler, rather than that which follows hard and fast principles of interpretation. This is apparent from the illustrations already given. And, it is to be added, that in striving to effectuate the wishes of the creator of the trust, even where he has outlined a scheme that is partly illegal, equity will construe the instrument cy pres, — as nearly as possible to, — his expressed intention, and will give effect to the legal parts of his plan, if they can ' Blackburn v. Stables, 2 Ves. & E. 4 H. L. 543, 565 ; 1 Perry on Trusts, Bea. 367, 369 ; Sweetapple v. Bindon, 2 §§ 360-366. Vern. 536; Roe v. Vingut, 117 N. Y. ■> Sweetapple v. Bindon, 2 Vern. 202, 204 ; Clark v. Cammann, 160 N. Y. 536 ; 1 Perry on Trusts, § 366, 315, 324 ; In re Hammer's Est., 158 Pa. * Sackville-West v. Holmesdale, L. R. St. 632 ; Adams v. Cowen, 177 U. S. 4 H, L. 543, 565 ; Bispham's Prin. Eq. 471. § 57. 2 Sackville-West v. Holmesdale, L. 432 ESTATES IN REAL PROPERTY. be properly and fairly separated from the portions which are illegal. 1 Thus, where a devise was made to a trustee, to settle the property upon A for life, and then to his first son for life, and then to that son's son for life, and so on for. many generations yet to come into being, it was held that the attempt thus to create life estates for persons not in being was void, because it violated the rule against perpetu- ities, but that the general scheme of the testator should be effectuated as nearly as possible, by giving trust interests for life to the sons in being, and the ultimate ownership abso- lutely or in fee simple to their children. ^ But, when the gift is such that it can not legally be carried out in any form approximating the intention of the settler without contra- vening some positive statute or rule of law, the entire trust, whether executed or executory, is void.^ § 310. Trusts : a. Express ; and b. Implied. — The most im- portant division of trusts is that made in reference to the mode of their creation, into «. Express and h. Implied. a. Express trusts are such as are created by the language of the parties. They may arise from explicit statements, whereby the relation of trustee and cestui que trust is plainly established, or from expressions of a less certain character, which the courts have uniformly construed as evincing an intent to create a trust. ^ Some writers, among whom Mr. Perry is prominent, call those trusts implied, which are not unequivocally expressed in direct terms, but are to be spelled out by the court "from the whole transaction and the words used. " ^ But this style of nomenclature is opposed by the best courts and the majority of careful writers.^ If the maker of the instrument declare the trust by any form of words, it should be called an express trust; and it will be so named in this treatise. Confusion is avoided and a system in harmony with the great weight of authority is produced by classifying as express all trusts which are declared by the words of the parties, whether in explicit terms, or by the employment of such language as will not reveal a trust unless it is carefully 1 Humbertson v. Humbertson, 2 * Bispham's Prin. Eq. § 63. Vern. 737 ; 1 Perry on Trusts, § 376. ^ i Perry on Trusts, § 112. '^ Humbertson <,-. Humbertson, 2 " Neal v. Clark, 95 U. S. 704, 709 ; Vern. 737; Bailey f. Bailey, 28 Hun Mulock ti. Byrnes, 127 N. Y. 23; Cronon (N. Y.), 603. V. Cotting, 104 Mass. 245 ; Bispham's " Blagrave v. Hancock, 16 Sim. 371 ; Prin. Eq. § 78. Manice v. Manice, 43 N. Y. 303. EQUITABLE ESTATES. — KINDS OF TRUSTS. 433 read in the light of established rules of interpretation and construction. As thus understood, express trusts include those which are precatory ; that is, those created, not by direct words of command, but by expressions of hope, request, ex- pectation, entreaty, and the like.i Charitable trusts, and several other special forms of these equitable estates are also to be examined as species of express trusts. An ex- press trust may be either "(a) active or (b) passive. h. Implied trusts, as the term is generally and more prop- erly employed, are those which arise by implication of equity, either for the purpose of carrying out the presumed intention of the parties, or to work out justice between them regardless of what their intention may have been. They rest, not upon the wording or construction of any contract or instrument, but upon the acts and transactions of the interested parties. Those which are implied for the purpose of carrying out the presumed intention of the parties are (a) resulting trusts. And those which are implied to work out justice, regardless of what the parties to the transactions may have intended, are (b) constructive trusts.^ The ultimate analysis of these various forms of trusts, classified with respect to the mode of their creation, leads to their discussion under two chief divisions and four sub- divisions, namely : a. Express trusts, which are, (a) active and (b) passive ; h. Implied trusts, which are, (a) resulting and (b) constructive. 1 Knight V. Knight, 3 Beav. 148, ^ Bispham's Prin. Bq. § 78; 1 Perry 17.3 ; Hill V. Hill (1897), 1 Q. B. 483 ; on Trusts, §§ 26, 27. Clay V. Wood, 153 N. Y. 134 ; Colton v. Col'ton, 127 U. S. 300. 23 CHAPTER XXI. a. EXPRESS TRUSTS. THEIR CREATION, REVOCATION, REQUISITES, AND FORMS. ■ — • POWERS IN TRUST. Creation of Express Trusts. § 311. Creation of express trusts at common law. § 312. Proof required by Statute of Frauds. § 313. The statute a rule of evi- dence. § 314. Forms and operation of the statute in the United States. § 315. The writing required. § 316. Language to be used in creating express trusts. Direct Words of Trust. § 317. Direct words of contract, command, or declaration. § 318. First. Trusts created on transfer of legal estate. § 319. Second. By settler mak- ing himself trustee. § 320. Third. Executory agree- ment or promise to settle property in trust. § 321. Revocation of trusts created by direct words. Precatory Words. § 322. Precatory trusts. § 323. Intention the chief expo- nent of precatory trusts. § 324. Certainty of beneficiaries. § 325. Certainty of subject- matter. § 326. Other tests as to preca- tory trusts. § 327. Requisites trusts generally. of express Kinds of Express Trusts and Trust Interests. § 328. Express trusts, active and passive. § 329. (a) Active express trusts. § 330. (b) Passive express trusts — or uses — when executed. § 331. Effects of active trusts be- coming passive. § 332. Powers in trust. § 338. Execution of powers in trust. Specific Kinds of Express Trusts. § 334. Purposes for which ex- press trusts may exist. § 335. Spendthrift trusts. § 336. Separate use trusts — for married women. § 337. Trusts for charities. § 338. Definitions and essentials of charitable trusts. § 339. First. They are for pub- lic utility — Purposes included. § 340. Religious purposes — Su- perstitious uses. § 341. Educational purposes. § 342. Eleemosynary purposes. § 343. Governmental purposes. § 344. Other charities. Criterion as to charitable purpose. EQUITABLE ESTATES. — EXPRESS TRUSTS. 435 § 345. Second. Indefinite bene- ficiai-ies of charitable trust. § 346. Degree of uncertainty. § 347. The cy pres doctrine — Judicial cy pres. §348. Prerogative c!/^res. § 349. Approval of judicial cy pres in this country. § 350. Third. Charitable trusts generally unaffected by rules against perpetuities and accumulations. Creation of Express Trusts. § 311. Creation of Express Trusts at Common Law. — At common law the most ordinary method of conveying corporeal hereditaments was by means of livery of seisin, frequently accompanied by a deed of feoffment. But the deed, all hough customarily used, was not necessary. The livery of seisin, in the presence of the witnesses, — the handing over, by the one party to the other, of a stone, twig, clod of earth, or other symbol, either on the land itself, or within sight of it, — was a sufficient ceremony to accompany the oral statement that this was done in the name of seisin and for the purpose of transferring the property.^ Practically, all authorities are now agreed that any property of which the legal estate could be thus conveyed could be settled to use or in trust by oral state- ment^ Technically, trusts were said to be "averrable;" that is, they could be declared and created by word of mouth. ^ But the better opinion is that, when a deed was needed for the conveyance of the legal estate, a deed was also requisite to the proper declaration of a trust. Thus, a transfer by covenant to stand seised to uses, which method of conveying the legal estate will be hereafter explained, required a deed for the raising of a use or trust. ^ And it seems to be safe to assert, though upon no direct authority, that a wntiirg. was necessary to the declaration of a trust in incorporeal heredit- aments, because the creation and transfer of legal estates them must be by deed of grant. And so the law remaine(5 until the Statute of Frauds went into operation, in 1677. § 312. Proof required by the Statute of Frauds. — By the seventh section of the English Statute of Frauds, it was enacted that " all declarations or creations of trusts, or confidences of any lands, tenements, or hereditaments, shall be manifested 1 2 Sand. Uses and Trusts, 1-8 ; § 287, ' Gilbert on Uses, 270 ; Adlington v. supra. Cann, 3 Atk. 141 ; Fordyce u. Willis, 3 = Fordyce v. Willis, 3 Bro. Ch. 577, Bro. Ch. 577, 587. 587 ; Adlington u. Cann, 3 Atk. 141 ; 1 Perry on Trusts, § 75. 436 ESTATES IN REAL PROPERTY. and proved by some writing signed by the party who is by law entitled to declare such trust, or by his last will in writing ; or else they shall be utterly void and of none effect." The eighth section excepted from the operation of the statute all trusts which arise or result by implication or construction of law ; that is, it left all implied trusts unaffected by the statute. And the ninth section provided that "all grants or assign- ments of any trust or confidence shall likewise be in writing, signed by the party granting or assigning the same, or by such last will or devise, or else shall likewise be utterly void and of none effect. "^ Those three sections of the act, then, were made to regulate the proof and transfer of express trusts of real property. All estates for years and leasehold interests, as well as freehold estates, are within the statute; but not mere personal interests or claims in land.^ The statute does not affect trusts of personalty ; ^ and where real property is transferred to a trustee under an oral trust in itself unenforc- ible because of the statute, if the terms of the agreement be so far performed that the property is converted into person- alty, the oral declaration of trust then becomes sufifcient, and the trustee can be compelled to carry out its provisions.* § 313. The Statute a Rule of Evidence. — The Statute of Frauds, in this seventh section, as well as in most of its other departments, prescribes a rule of evidence, rather than a re- quirement as to manipulating property.^ It does not demand that trusts of real property shall be created by a writing; but enacts that they "shall be manifested and proved by some writing." The evidence of the existence of the trust must be written, or the cest%d que trust is without remedy against the trustee. But, whatever may have been the actual mean- ing intended by its framers, the uniform construction of this section has been that it does not forbid the making of a real property trust by parol.® Such a trust may be brought into 1 29 Car. II. ch. 3, §§ 7, 8, 9. Iowa, 397 ; Owens v. Williams, 130 N. 2 Benbow v. Townsend, 1 Myl. & K. C. 165. 506; Slcett v. Whitmore, Freem. 280; * HutcMnsu. VanVechten, UON. Y. Hutchins v. Lee, 1 Atk. 447 ; Bellasis v. 115, 118; Craue v. Powell, 139 N Y. Compton, 2 Vern. 294. 379 ; Forster v. Hale, 3 Ves. 696, 707. 8 Hirsh V. Aner, 146 N. Y. 13, 19; « Forster w. Hale, 3 Ves. 696, 707; 1 Perry on Trusts, §86. Randall v. Morgan, 12 Ves. 67, 74; * Bork V. Martin, 132 N. Y. 280; Steere v. Steere, 5 .Johns. Ch. (N. Y.) 1; In re Simond's Est.ite, 201 Pa- St. 413 ; Barrell v. Joy, 16 Mass. 227 ; Hutchins w. State V. Kondebush, 114 Ind. 347; Van Vechten, 140 N. Y. 115; Martin k. McConnick H. M. Co. u. Griffin, 116 Baird, 175 Pa. St. 540; 1 Perry on Trusts, § 79. EQUITABLE ESTATES. — EXPRESS TRUSTS. 437 being by oral contract or settlement, and exist for a time as an unenforcible but otherwise valid arrangement; and a writ- ing may then be executed which will relate back and make the trust enforcible ah initio by the cestui que trust. Accord- ingly, in an early case, a testator was held capable of devis- ing by his will, which could not pass real property acquired by him after its execution, his interest as cest^li que trust in a tract of land, the trust in which was orally created in his f:i\or before the will was executed, although the wi-itten acknowl- edgment of the trust was not made until some time after the will.i § 314. Forms and Operation of the Statute in the United States. — In most of the United States, this seventh section of the old English Statute of Frauds has been re-enacted or tacitly adopted. Its phraseology has been changed in a few of the states, so as apparently to require that ti-usts of real property must be made, or brought into being, by a writing. Thus, in ilaine,^ Massachusetts,^ Vermont,* Indiana,^ and Wisconsin,^ the form of the statutes is, in substance, that such trusts shall be ^'created and declared" in writing; while in Illinois, '''' declaratioyis or creations of trusts must be mani- fested and proved" in writing.'^ But the view is now gen- erally accepted that such changes of words have not altered the general rule, as settled with reference to the Statute of 29 Car. II. ch. 3, and that, under all of these enactments, a writing will be sufficient to establish a trust in real prop- erty, although it is not executed until after the trust is orally created.^ The Court of Appeals of New York has declared, however, that, between 1829 and 1860 the statute of frauds of that state did not permit such a trust to "be created or estab- lished except by a deed or conveyance in writing." Before January 1, 1830, the form of the New York statute was sub- stantially the same as that of England; and by chapter 322 of 1 Ambrose v. Ambrose, 1 T>. Wms. * Pinnock v. Clough, 16 Vt. 500, 321 . " There is a distinction between an 508. agreement and a trust under the Statute ^ Hev. Stats. (1881) § 2969. of Frauds, and a trust need not, like an ^ Begole v. Hazzard, 81 Wis. 274. agreement, be constituted or created by '' Rev. Stats. (1877) § 9, p 522; writing." Kent, Ch. in Moran v. Hays, Home t>. Ingraham, 125 111. 198. 1 Johns Ch. (N. Y. ) 339, 342. 8 Sheet's Est. 52 Pa. St. 257 ; Jaqnes 2 Rev. Stats. (1857) ch. 73, § 11. v. Hall, 3 Gray (Mass.), 194; Browne, 8 Jenkins I'. Eldridge, 3 Story (U. S. Stat, of Frauds, § 109; 1 Perry on Cir. Ct.), 181, 294 ; Blodgett v. Hildreth, Trusts, § 81. 103 Mass. 484, 486. 438 ESTATES IN REAL PROPERTY. its laws of 1860, that form was practically restored in New York, and since that time has been continuously retained. ^ (n) § 315. The Writing required by the Statute. — The writing, required by the statute to " manifest and prove " a trust of real property, must clearly indicate the objects and nature of the trust, the parties to it, the relations which they sustain to one another, and the proportions in which they are to take, (a) The history of the statute in New York is as follows : " The English statute on this subject (29 Car. II. ch. 3), in its essential features was enacted in this state by the act of Feb. 26, 1787, the 12th section of which provides that ' all declarations or creations of trusts of any lauds shall be manifested and proved by some writing signed by the party en- titled by law to declare the trust.' Thus the law stood for about forty years, until the general revision of the statutes, when it was changed and made to read as follows : ' No estate or interest in lands, other than leases for a term not to exceed one year, nor any trust or power over or concern- ing lands, or in any manner relating thereto, shall hereafter be created, granted, assigned, surrendered, or declared, unless by act or operation of law, or by a deed or conveyance in writing subscribed by the party creating, granting, assigning, surrendering, or declaring the same, or by his lawful agent thereunto authorized by writing.' (2 R. S. 135, § 6.) After the revision, a trust of the character claimed by the plaintiff in this case," (an express trust of realty), " could not be created or established, except by a deed or conveyance in writing. But, by chapter 322 of the laws of 1860, the legislature restored the law to its original condition, by an amendment to the seventh section, substantially providing that a declar- ation of trust in lands might he proved by any writing subscribed by the party declaring the same. It is not now necessary to produce a deed or formal writing intended for the purpose, in order to prove the trust, but letters or informal memoranda signed by the party, and even admissions in a pleading in another action between other parties, if signed by the party with knowledge of its contents, will satisfy the requirements of the statute, if they contain enough to show the nature, character, and extent of the trust interest.'' O'Brien, J., in Hutchins v. Van Vechten, 140 N. Y. 115, 118. See also Crane v. Powell, 139 N. Y. 379 ; Bates v. Lidgerwood llfg. Co., 130 N. Y. 200; McArthur c. Gordon, 126 N. Y. 597. It was said in Cook v. Barr, 44 N. Y. 157, that the change in the wording of the statute between 1830 and 1860 did not change the meaning, and that it has always been sufficient in New York to manifest and prove a trust in writ- ing. But it is to be noted that both this statement and^mat quoted above from Hutchins v. Van Veohten are merely dicta, and that^ere is no actual adjudication upon the question in New York. But the diSium of Hutchins V. Veohten is to be taken as the stronger, as well as the later, and as prob- ably expressing the law to be hereafter followed. The statute, substantially in the form quoted by Judge O'Brien in the last-mentioned case, is now § 207 of the Real Property Law, L. 1896, ch. 547. 1 Hutchins v. Van Vechten, 140 N. T. 115. EQUITABLE ESTATES. — EXPRESS TRUSTS. 439 and, in general, all the material elements of the contract or settlement.! gyj; ^q particular form of the writing is re- quired. A mere memorandum, an affidavit,^ a note at the end of a deed,^ or even a letter, though addressed to some third party, if properly signed and adequately expressing what the trust is, will comply with the requirements of the statute.* When the writing consists of several distinct papers or sheets, and one is properly signed, or subscribed, as the statute may require, the generally adopted rale is that there must be in the signed sheet a reference sufficient to identify and connect with it the sheets or portions which are not signed.^ In cases in which certain formalities are requisite to the transfer of the legal estate, if a trust be declared by the same instrument, or in the same transaction, those formalities must also be observed in the writing by which the trust is mani- fested and proved. Thus, in those jurisdictions which require a married woman's deed of real property to be acknowledged separately and apart from her husband, her declaration of a trust in such property must be acknowledged in the same manner.^ And when it is sought to convey realty by will, to one person in trust for another, the trust thus originating in the will, the instrument must be executed as required by the Statute of Wills of the state in which the land is situated.^ But if the trust were created by contract or declaration out- side of the so-called will, so that the latter is simply employed '' Forster v. Hale, 3 Ves. 696, 708; 227; Larrabee v. Hascall, 88 Me. 511 ; Steere v. Steere, 5 Johns. Ch. (N. Y.) 1 ; Cathcart v. Nelson, 70 Vt. 317 ; Eipper rinley «. Isett, 154 U. S. 561; Cook u. d. Banner, 113 Mich. 75; 1 Perry on Barr, 44 N. Y. 157, 161; Hutchins v. Trusts, § 82. Van Veehten, 140 N. Y. 115, 118; ' Denton «. Davis, 18 Ves. 499, 503 Emerson i'. Galloupe, 158 Mass. 146; Champ v. MarshaUsay, 64 L. T. 13 Taft V. Dimoud, 16 R.I. 584; Leslie Knowlton v. Atkins, 134 N. Y. 313 V. Leslie, 53 N. J. Eq. 275; Martin ... McAuley's Est., 184 Pa. St. 124; Eipper Baird, 175 Pa. St. 540; Salisbury v. v. Benner, 113 Mich. 75; Hauning w. Clarke, 61 Vt. 453, 459 ; Renz v. Stoll, Mueller, 82 Wis. 235 ; Atwater v. Rus- 94 Mich. 377; 1 Perry on Trusts, § 83. sell, 49 Minn. 57. 2 Barkworth v. Young, 4 Drew, 1 ; ^ Graham v. Long, 65 Pa. St. 383, Pinney v. Fellows, 15 Vt. 525. 387 ; Tatge v. Tatge, 34 Minn. 272. 3 Ivory V. Burns, 56 Pa. St. 300. ' Adlingtou v. Cann, 3 Atk. 141 And see Preston v. Preston, 202 Pa. St. Stickland v. Aldridge, 9 Ves. 516 515. Champ v. MarshaUsay, 64 L. T. 13 * Plymouth v. Hickman, 2 Vern. Thayer u. Wellington, 9 Allen (Mass. ) 167; Dalet). Hamilton, 2 Phillips, 266; 283 ; Davis v. Stambangh, 163 111. 557 Hutchins v Van Veehten, 140 N. Y. Chase v. Stockett, 72 Md. 235 ; 1 Lewin 115; Tusch w. German Sav. Bk., 46 on Trusts, ch, v. § 3 ; 1 Perry on Trusts, N. Y. Supp. 422 ; Roberts's Appeal, 92 §§ 89, 90. Pa. St. 407; Barrell o. Joy, 16 Mass. 440 ESTATES IN REAL PROPERTY. as written proof of a trust already in existence, it may satisfy the requirements of the Statute of Frauds, althougli it fail to comply with all the formalities prescribed by the Statute of Wills. If, for example, A deed land to B, who orally agrees that he will hold it in trust for C, B may subsequently mani- fest and prove this trust by his declaration properly signed, in a writing which he calls his will, but which is invalid as a will, because not executed with the proper statutory formali- ties.^ But if A, by his will, attempt to devise land to B, in trust for C, thus seeking to create the trust in the will, the entire scheme must fail if the document be not executed in the manner required by the statute of the state in which the land lies.^ An answer in chancery may be a writing sufficient to comply with the statute.^ The courts at one time tended to hold that, if the defendant in a suit in chancery admitted by his answer the existence of the trust, he thereby supplied the statutory requisite, and thus became bound by his admis- sion, even though there was no other written evidence of the trust.* But it is now settled that he may have the benefit of the statute, if he choose to set it up in his answer. Being sued with regard to an alleged trust of which there is no suf- ficient declaration in writing, he may simply deny its ex- istence by his answer, and at the trial of the case prove his denial by showing that the agreement was by parol; or he may follow the truth of the matter in his answer, by admit- ting that the agreement or settlement was made, and then successfully claiming that he is not bound by it, because there is no writing which complies with the requirement of the Statute of Frauds.^ The construction of the seventh section of the statute has been controlling upon that of the ninth; and it is accordingly 1 Leslie v. Leslie, 53 N. J. Eq, 275, 111. 56 ; McVay v. McVay, 43 N. J. 281; Keith v. Miller, 174 111.64; Hill Eq. 47; Warren u. Tyraau, 54 N. J. on Trustees, 61 ; 1 Perry on Trusts, Eq. 402 ; Patton u. Chamberlain, 44 § 91. Mich. 5. 2 Anding v. Davis, 38 Misa. 574; « Story's Eq. Plead. §§ 765-768; Davis V. Stambaugh, 163 111. 557. And Hampton v. Spencer, 2 Vern. 288. see Kopp v. Gunther, 95 Cal. 63 ; Chase * Dean v. Dean, 9 N. J. Eq. 425 ; V. Stockett, 72 Md. 235; 1 Perry on Bank %i. Root, 3 Paige (N. Y.), 478; Trusts, §§ 91-94. Davis v. Stambaugh, 163 111. 557 ; Myers 8 Nab D. Nab, 10 Mod. 404; Cozine v. Myers, 167 111. 52; Billingslea v. w. Graham, 2 Paige (N. Y.), 177; Ward, 33 Md. 48,51 ; 1 Perry on Trusts, Maccuhbin o. Cromwell, 7 Gill & J. § 85. (Md.) 157, 164 3 White v. Eoss, 160 EQUITABLE ESTATES. — EXPRESS TRUSTS. 441 held that the same requirements as to writing apply to an assignment of his interest by the cestui que trust as those which govern the evidencing of the trust in the first instance. 1 § 316. Language to be used iu creating Express Trusts. — The important requirement as to the use of language in the creation of an express trust is that the intent shall be made plain.2 The words trust, trustee, etc., are not necessary.^ Neither are any technical words required. If the settler make his meaning clear, by the use of any form of expres- sion, he accomplishes his purpose. But, when technical words are employed, they are to be given their technical meaning, unless the contrary clearly appears from the con- text, or unless it is one of the cases of executory trusts here- tofore explained.* The declaration of trust may be contained in another instrument than that by which the legal estate is conveyed to the trustee;^ or the document by which such declaration is made may consist of several distinct papers, with proper internal reference from the one which is signed to the others.^ But the conveyance of the legal estate and the creation of the trust (whether or not the latter is then manifested and proved by a writing) must be simultaneous, or at least in the same transaction. For, if an absolute legal estate be conveyed to one upon whom no fiduciary obligation is imposed at the time, the grantor can not subsequently in- terfere with the beneficial interest of the grantee by impress- ing a trust upon the property.'' When it is said that any words which clearly indicate an intent to create a trust may be effective in so doing, it must nevertheless be understood that the expression employed must indicate a final, definite purpose, and not merely an inchoate 1 Wright V. Wright, 1 Vea. Sr. Ch. (N. Y.) 495 ; Seldon's Appeal, 31 409 ; Brydges v. Brydges, 3 Ves. 120 ; Conn. 548 ; Freedley's Appeal, 60 Pa. 1 Spence, Eq. Jur. 506 ; 2 Brest. Cony. St. 344. 368. * Wright u. Pearson, 1 Eden, 119, 2 Fisher v. Fields, 10 Johns. Ch. 125 ; § 309, supra. (N. Y.) 495; Carpenter v. Cushman, ^ Wood v. Cox, 2 Myl. & Cr. 684; 105 Mass. 417,419; Brown v. Combs, Inchiquin v. French, 1 Cox, 1; Smith 5 Dutch. (N. J.) 36 ; Porter v. Bk. of v. AttersoU, 1 Russ. 266. Rutland, 19 Vt. 410; McAuley's Est., 8 gee § 315, supra. 184 Pa. St. 124; Luco v. De Toro, 91 ' Adlington v. Caun, 3 Atk. 141, Cal. 405. 145 ; Crabb v. Crabb, 1 Myl. & K. 511 ; s Shampless v. Welch, 4 Dall. (U. S.) Ivory v. Burns, 56 Pa. St, 300, 303 ; 279 ; Packard v. Old Colony R. R., 168 Brown v. Brown, 12 Md. 87 ; 1 Perry Mass. 92, 96 ; Fisher v. Fields, 10 Johns. on Trusts, § 77. 442 ESTATES IN REAL PROPERTY. design, or only an expectation.^ A purpose or wish to give propertj^, or settle it in trust, in the future, may be very clearly expressed without creating any trust. Thus, where one, at the time when he purchased a parcel of land, made and executed an instrument in which he declared that the purchase was "intended " for another person, it was held that no trust was thereby brought into being. The expression was nothing but the declaration of an incomplete design. The intent was not carried out.^ A declaration of an intent to give is not an assertion that the owner holds in trust; but rather the contrary.. To raise a trust, he must intend now to hold in trust, or now to convey on a trust to begin at once or in the future.^ There are two chief methods, by which expressions of completed intent to raise trusts may be' made ; namely, by direct words of contract, command or declaration, and by precatory words. These will be discussed in the order named. And in the former is included the subject of vol- untary declarations of trusts. Direct Words of Trust. § 317. Trusts created by Direct 'Words of Contract, Command, or Declaration. — ■ By clear and explicit statement of intention, whatever may be the form of language employed, trusts may be brought into being, either by will, or by contract or dec- laration inter vivos. The cases of creation and attempted creation of them in this manner may be most readily and logically examined by considering, first, those in which the legal estate is fully transferred from the settler or creator of the trust to another person, second, those in which the settler makes himself trustee by an unequivocal declaration of trust, and third, those in which there is an imperfect or executory agreement or promise to transfer the property, or to hold it in future in trust for another. The last of these classes, includ- ing as it does the voluntary executory agreements to settle property in trust, has given rise to much divergence of de- cisions and opinions. 1 Cunningham n. Davenport, 147 ' Beaver v. Beaver, 137 N. Y. 59; N. Y. 43; Sheffield V.Parker, 158 Mass. 'Wadd o. Hazelton, 137 N. Y. 215; 330 ; Providence Inst, for Savings v. Young v. Young, 80 N. Y. 422 ; Girard Carpenter, 18 R. I. 287 ; Chaplin on Trust o. Mellor, Appellant, 156 Pa. St. Express Trusts and Powers, §§ 52, 106. 579, 590. 2 Hays V. Quay, 68 Pa. St. 263. EQUITABLE ESTATES. — EXPRESS TRUSTS. 443 § 318. First, Trusts Created on Transfer of Legal Estate. — When the owner of property, complying with all the requisites prescribed by common law and statutes, transfers the legal estate therein to another person to hold in trust for a third, the trust will be recognized and enforced by a court of equity, whether or not the grantor or settler received any considera- tion. The fact of the completed trOMsfer is sufficient. The instrument being duly executed and delivered and nothing further remaining to be done by the grantor, devisor, or other settler, the trust is created.^ The only material questions, which can thereafter arise, are such as relate to the nature and operation of the trust thus created. And such questions must be decided by application of the ordi- nary rules for the interpretation and construction of the language employed. When the legal estate is such that it can not be effectually transferred, as when it is a mere pos- sibility or reversionary interest, the same principle applies, according to the weight of the more recent important authori- ties ; and the trust is created when the owner has done all that he can do under the circumstances of the case, by perfect- ing the transaction of assigning as far as the law permits.^ So, if the assignor have only the equitable estate, the legal interest being vested in another who is holding it for him, if he fully assign his own interest in equity for the benefit of a designated beneficiary, a sub-trust is thereby brought into existence in favor of such beneficiary.^ But, in all instances in which the legal estate is not transferred, but the existence of the trust is intended to rest upon the passing over of some other interest, the author of the intended trust must have made as complete an assignment as possible under the cir- cumstances of the case.* Where, for example, the document might have assigned in equity the so-called settler's rever- 1 Massey v. Huntington, 118 111. 80; 226; Meek v. Hattlewell, 1 Hare, 464; Boardman v. WiUard, 73 Iowa, 20; Beech j;. Keep, 18 EeaT. 285 ; 1 Perry Westlake u. Wheat, 43 Hun (N. Y.), 77; on Trusts, § 101. 1 Perry on Trusts, § 99. ' Collinson v. Patrick, 2 Keen, 123; '^ Kekewich o. Manning, 1 DeG. M. Tierney v. Wood, 19 Beav. 330. & G. 176, 187 ; Fortescue v. Barnett, 3 ^ In re Earl of Luean, L. R. 45 Ch. Myl. & K. 36 ; Roberts v. Lloyd, 2 Bear. Div. 470 ; Kekewich v. Manning, 1 DeG. 376; Gilbert u. Overton, 33 L. J. Ch. M. & G. 176; Wilcocks ti. Hannyngton, 683; Appeal of Elliott's Ex'rs, 50 Pa. 5 Ir. Eq. (N. C.) 38, 45; Morgan v. St. 75; 1 Perry on Trusts, § 101; 1 Malleson, 10 Eq. 475 ; Girard Trust Co. Lewin on Trusts, 58. See earlier cases v. Mellor, 156 Pa. St. 579; Hill on contra, Edwards v. Jones, 1 Myl. & Or. Trustees, 140, 141. 444 ESTATES IN REAL PROPERTY. sionary interest, but it only purported to create a charge thereon, no trust was thereby brought into existence. ^ § 319. Second, Trust created by Settler making Himself Trustee. — When the settler takes his own property and makes himself trustee of it. by an uneCjuivoc^l declaration of trust, it is equally well settled that an express trust is thereby brought into being, whether or not he receives any consideration for his act.^ Such a transaction involves no transfer of the legal estate, except the theoretical transfer which the owner makes from himself as an individual to himself as a trustee. But the matter for careful inquiry here is as to the passing over of the equitable estate. Was an unequivocal declaration made and delivered for that pur- pose ? The intent of the declarant, in such a case, is again to be ascertained from a propernriterpretatibn and construc- tion of his languagq,^ The qitestion as to the delivery of the document, however, is often perplexing. ^ For example, A makes and duly executes a deed, in which he declares that he will thereafter hold a designated lot of land in trust for B. How and to whom must it be delivered, in order to become operative? "In no case," says the Supreme Court of New York, " has it ever been held as yet that a party may, by transferring his property from one pocket to another, make himself trustee. In every case where a trust has been estab- lished, the party creating it has placed the evidence thereof in the custody of another, and has thereby shown that it was intended to be a completed act."* This is certainly a cl^ar statement of the safer rule of practice — that the declarant must deliver the document, either to the cestui que trust him- self, or to some third party for him. But, as is suggested by a recent careful writer, it would seem to be a sufficient delivery for him to indicate, in any other clear manner, his intention to make the instrument become operative in his own hands, as by acknowledging it before a notary public, or by placing and retaining it among other valuable and frequently in- 1 In re Earl of Lncan, L. R. 45 Ch. 8 jf the instrument be not prop- Div. 470 i Bispham's Prin. Eq. § 67. erly delivered it can not be upheld as 2 Donaldson v. Donaldson, Kay, 711 ; a declaration of trust. Wadd v. Hazel- Milroy !.'. Lord, 4 DeG. F. & J. 264; ton, 137 N. Y. 215; Smith's Est., 144 Ellison u. Ellison, 6 Ves. 656, 662 ; Oul- Pa. St. 428; Soulard's Est., 141 Mo. bertsonu. Witbeck, 127U S.326; Stone 642; Wylie v. Charlton, 43 Neb. 840; r. Hnckett, 12 Gray (Mass.), 227 ; Janes Roberts v. Mullinder, 94 Ga. 493. V. Falk, 50 N. J. Eq. 468 ; Lane v. Ew- * Govin a. De Miranda, 76 Hun jng, 31 Mo. 75 ; 1 Perry on Trusts, § 98. (N. Y.), 414, 419 EQUITABLE ESTATES. EXPRESS TRUSTS. 445 spectcd papers, or by stating to witnesses that he had de- livered it from himself as an individual to himself as trustee, etc.^ ' And there is abundant authority to the effect that he need not part with possession of the instrument.^ § 320. Third, Executory Agreement or Promise to settle Property in Trust. — ■ In the third class of cases — those in which there is an imperfect or executory agreement or promise to transfer the property or to hold it in future in trust for another — the element of consideration becomes controlling. For when the promise rests upon a valuable consideration a contract arises, which will be enforced by the courts ; but when the declaration or promise is purely volun- tary — - not based on any valuable consideration — ■ and rests in fieri, there is ordinarily nothing to move a court of either law or equity to grant relief. Therefore, where the promise or stipulation is executory or incomplete, the two essentially different groups of cases are those in which valuable consid- erations exist and those in which such consideration is want- ing. The distinction here found, as it is applied to trusts or other equitable interests, is the same as that between gifts and executory contracts at common law. The gift must be perfected by delivei'y of possession of the subject-matter; while the contract, based on a promise to pay value, can be enforced though no such delivery has been made.^ The instances are, of course, plentiful in which the owner of property has entered into an agreement, in consideration of money or money's worth paid or promised, or of a mar- riage to be consummated,* to hold such property in trust for another, or to convey it to him in trust for a third party. And in no such a case has a court of equity refused, as be- tween the parties themselves, to declare and enforce a trust 1 Chaplin on Express Trusts aud Kulp w. March, 181 Pa. St. 627; West- Powers, § 78. See Covin v. De Mi- lake f. Wheat, 43 Hun (N. Y.), 77. randa, 140 N. Y. 474; Martin v. Funk,, * In speaking of marriage as a val- 75 N. Y. 134, 142; Wadd v. Hazelton, uable consideration, the distinction must 137 N. Y. 215. always be borne in mind between an e.x- 2 Clavering v. Clarering, 2 Vern. 473 ; isting married relation and the contract- Souverbye v. Arden, 1 Johns. Ch. (N. Y.) ing of a marriage as an inducement to 240, 256 ; Bunn v. Winthrop, 1 Johns. some other act or promise. The latter Ch. (N Y.) 329 ; Adams v. Adams, 21 is a valuable consideration, but not the Wall. (U.S.) 185; Johnson v. Smith, former. Johnston v. Spicer, 107 N. Y. 1 Ves. Sr 314. 185 ; De Barante v. Gott, 6 Barb. (N. Y.) ■ 3 2 Blackst. Com. p. * 441. See 492; Chilvers ,j. Race, 194 111. 71 ; 18 Sherk v. Endress, 3 W. & S. (Pa.) 255 ; Amer. Law Rev. 379. Zimmerman v. Streeper, 75 Pa. St. 147 ; 446 ESTATES IN REAL PEOPEETY. in favor of the promissee or designated beneficiary, upon application being properly made to it for that purpose.^ Be- tween the parties to the agreement, equitable interests flowing therefrom are as fully protected as are legal rights. But, as will more fully appear hereafter, creditors of the promissor and persons having in the property equitable interests, of which the other parties to the contract have notice, may sometimes prevent the carrying out of such an attempted trust. When an intended trust is not perfectly created, but the incomplete or defective instrument is delivered for value actually ad- vanced or promised, the court will enforce the trust, if enough appear from the document to show what are its terms and who are the parties to be benefited. ^ "In such cases, effect is given to the consideration to carry out the intention of the parties, though informally expressed."^ It is hardly necessary to add that the court will not move to carry out a trust, even where a valuable consideration appears, if its terms and conditions can not be ascertained with sufficient clearness, or the cestuis que trustent are not definitely indicated or known.* After some vacillation by the courts, it is now settled in most jurisdictions that an imperfect or executory conveyance or declaration of trust, v?hich is also purely voluntary, will never be aided or enforced in equity.^ " I take the distinction to be," said Lord Eldon, "that if you want the assistance of the court to constitute you cestui que trusty and the instrument is voluntary, you shall not have that assistance for the purpose of constituting you cestui qus trust ; ■ ■ . but if the party has completely transferred stock, etc., though it is voluntary, yet, the legal conveyance being effectually made, the equitable in- 1 Baldwin v. Humphrey, 44 N. Y. ^ I Perry on Trusts, § 95. 609 ; Young v. Young, 80 N. Y. 422, * Dillaye c. Greenough, 45 N. Y. 437 ; Merrill v. Peaslee, 146 Mass. 460 ; 4.38 ; Ham v. Van Orden, 84 N. Y. 257 ; Whitehouse v. Whitehouse, 90 Me. 468 ; Ownes v. Ownes, 23 N. J. Eq. 60. BenscottertJ. Green, 60 Md. 327; Taylor ^ Matter of James, 146 N. Y. 78; r. Pownal, 10 Leigh (Va.), 172, 183; Martin y. Funk, 75 N. Y. 1.34 ; Minturn 1 Perry on Trusts, §95. The consider- v. Seymour, 4 Johns. Ch. (N. Y.) 497, ation must be legal and the contract 498 ; Hayes v. Kershaw, 1 Sand. Ch. otherwise valid. Merrill u. Peaslee, 146 (N. Y.) 258 ; Acker w. Phoenix, 4 Paige Mass. 460. (N. Y.) ZO^ ; Matthews i;. Hoagland, 48 2 Livingston v. Livingston, 2 Johns. N. J. Eq. 455 ; Moore v. Moore, 43 L.J. Ch. (N. Y.) 537; Huntley v. Huntley, Ch. 617, 623; 1 Perry on Trusts, §97; 8 Ired. Eq. (N. C.) 250; Young v. Pomeroy, Eq. Jur. § 1148; Story, Eq. Young, 80 N. Y. 422, 437. Jur. § 987. EQUITABLE ESTATES. — EXPRESS TRUSTS. 447 terest will be enforced by this court." ^ That is, in a voluntary declaration or settlement in trust, if everything is not done, nothing is done. The court will not compel one, who has merely promised without consideration that he would give or settle property in trust, to go on and perform that promise against his will. To do so would be to take his property from him by force and give it to another.^ And, when a person has promised to settle property by his will in favor- of mere volunteers, but has died without making such a settlement, equity will afford no assistance to the promissees against the heirs or personal representatives of the deceased promissor.^ So, although the technical rule of law is that a seal imports a consideration, yet it is settled in England that the mere fact that an executory promise to convey property in trust is under seal will not alter the rule as here stated, if as a matter of fact there be no consideration for the promise.* And, while in some of the early cases in this country it was said that the courts would not execute a voluntary executory agreement " unless it is under seal" it is nevertheless safe to say that, at the present time, the rule of America in this regard is in har- mony with that of England.^ There has been considerable discussion of the question whether or not a contract or promise founded on the meritori- ous consideration of blood, or on that of an existing relation of marriage, is voluntary, so as to come within the above-stated rule of equity. While Sugden was Lord Chancellor of Ireland, he decided, in the case of Ellis v. Nimmo, that a blood relation- ship was sufficient to move a court of equity to enforce an exec- utory trust.s He subsequently allowed this decision to be overruled in England.'' And the doctrine is now firmly estab- 1 Ellison V. Ellison, 6 Ves. 656 ; its importance because of statutes, that Young V. Young, 80 N. Y. 422 ; Wadd it would be a construction out of har- V. Hazelton, 137 N. Y. 215. mony with the present tendency of " Young V. Young, 80 N. Y. 422, equity tribunals, which should carry 437. out a voluntary executory agreement ■* Warriner v. Rogers, L. R. 16 Eq. simply because it was under seal. But 340; Morgan v. Malleson, L. R. 10 Eq. see 1 Perry on Trusts, § 111 ; Dennisou 475. o. Goehring, 7 Barr (Pa.), 175 ; Cald- 4 Hale V. Lamb, 2 Eden, 292, 294; well o. Williams, 1 Bailey Eq. (S. 0.) Evelyn o. Templar, 2 Bro. Ch. 148; 175; Mahan d. Mahan, 7 B. Mon. (Ky.) Meek i:. Kettlewell, 1 Hare, 464; Dil- 579; Leeper ti. Taylor, 111 Mo. 312. lin V. Coppin, 4 Myl. & Cr. 647 ; Dening ^ Lloyd & Gould, 333. V. Ware, 22 Beav. ISA. ' Moore v. Crofton, 3 Jones & La T. 5 So little attention i.s now paid by 438, 442. But, even in this case, he our courts to mere formalities, and the still expressed his belief in the sound- formality of a seal has lost so much of ness of Ellis v. Nimmo. 448 ESTATES IN REAL PROPERTY. lislied in that country that not even in favor of a wife or child will the court carry out an executory agreement resting on no valuable consideration ; and this is true, whether the attempt be made to have it enforced against the settler himself, or against his heirs or devises, or against other volunteers who claim under an executed agreement with him.^ While the authorities in the United States are not entirely harmonious upon this point, yet the strongly prevailing view is in favor of the English rule.^ Thus, in New York, the Court of Appeals has recently said : " The general principle is established that in no case whatever will courts of equity interfere in favor of mere volunteers, whether it be upon a voluntary contract or a settlement, however meritorious may be the consideration, and although they stand in the relation of a wife or child." ^ In a few of the states, however, such as New Jersey,* South Caro- lina,^ Missouri,^ and Kentucky,'' the decisions are the other way. Yet, even in the few jurisdictions where a wife or child is thus favored, the rule is said to be confined to those two relationships ; and it will not extend its advantages to more remote relatives of the voluntary promissor, such as brothers, sisters, parents, or grandchildren,^ nor to illegitimate children.^ § 321. Revocation of Trusts, •which have been created by- Direct Words. — Much diversity of opinion has arisen as to the revocability of a voluntary trust by the settler, after it has once been completely declared or settled. When a valuable consid- eration exists, no such question can practically arise, because in such a case, a contract having been brought into existence 1 Moore v. Crofton, 3 Jones & La T. ^ Leeper v. Taylor, 111 Mo. 312. 438, 442; Price v. Price, 14 Beav, 598; ' Bright v. Bright, 8 B. Mon. (Ky.) HoUoway v. Headington, 8 Sim. 324; 194, 197; Mahan v. Mahan, 7 B. Mon. Jefferys v. Jefferys, 1 Cr. & Phil. 138 ; (Ky.) 579 ; Mclntire v. Hughes, 4 Bibb Evelyn u. Templar, 2 Bro. Ch. 148; (Ky.), 186. But in most of the cases, Dillon V. Coppin, 4 Myl. & Cr. 647. in Missouri, South Carolina, and Kea- 2 Matter of James, 146 N. Y. 78, 93 ; tucky, stress has also been laid on the Wadd V. Hazelton, 137 N. Y. 215; existence of a seal as indicating a con- Campbell's Est. 7 Pa. St. 100; Water- sideration. man v. Morgan, 114 Ind. 237 ; McHugh 8 Downing u. Townsend, Ainb. 592; V. O'Connor, 91 Ala. 243. See 1 Perry Buford's Heirs v. McKee, 1 Dana (Ky.), on Trusts, § 109 ; Pom. Eq. Jur. § 1148. 107 ; Tarbox i: Gr.ant, 56 N. .J. Eq. 199; s Matter of James, 146 N. Y. 78, 93. Hayes v. Kershaw, 1 Sand. Ch. (N. Y.) * Tarbox v. Grant, 56 N. J. Eq. 199 ; 258. Landon v. Hutton, 50 N. J. Eq. 500. 9 Fursaker v. Robinson, Pr. Ch. 475. These cases contain valuable discussions S6e Bunn v. Winthrop, 1 Jolins. Ch. of the question. (N. Y.) 329; Matter of James, 146 5 Caldwell V. Williams, 1 Bailey Eq, N. Y. 78. (S, C.) 175. EQUITABLE ESTATES. — EXPRESS TRUSTS. 449 by tlie meeting of at least two minds, it can not be done away with by the act of one of them alone. When a debtor has made a voluntary assignment of his property in trust for his creditors, a valuable consideration, although a past one, is supplied by the existence of the debts ; and, if the creditors have assented to such transfer thereby making it a contract, it has become irrevocable by the assignor.^ In this country, from the fact of the assignment alone, and in the absence of statutory regulation the assent of the creditors is presumed (unless the contrary is clearly proved^) and thus a contract is held to exist.** In England it is a question of the intent of the assignor to make a completed assignment. If the language used and circumstances of the case show that he intended the transfer to be final, or if it be proved that the creditors expressly or tacitly consented to the assignment, a contract emerges, irrevocable by the assignor.* When, on the other hand, an executed voluntary settlement in trust has been made, may the donor revoke it at pleasure, or in order to reserve that privilege must he have inserted in the settlement an express power of revocation ? The correct answer to this much mooted question appears to depend on the intention and motives which gave rise to the settlement. Tlie absence of an express power of revocation, in other words, is not conclusive, but only makes a prima facie case of a trust ir- revocable by its maker.^ When, from all the other circum- stances of the case, it does not appear that there was any intent to make an irrevocable settlement, and there was apparently 1 Siggerg v. Evans, 32 Eng. L. & Mer. 707 ; Harland v. Rinka, 15 Q. B. Eq. 139; Walwyn v. Coutts, 3 Sim. 14, 713 ; Acton v. Woodgate, 2 Myl. & K. 3 Mer. 707. 492, 495; New v. Hunting (1897), 1 2 See Gibson v. Rees, 50 III. 383. Q. B. 607, 615 ; Synnott v. Simpson, 5 3 NicoU V. Mumford, 4 Johns. Ch. H. L. Cas. 121, 133. It was said in (N. Y.) 522; Cunningham v. Freeborn, Garrard v. Lord Lauderdale, 3 Sim. 1, 11 Wend. (N. Y.) 240; Pingree w. Com- that, even after the assignment had stoclt, 18 Piclt. (Mass.) 46; Fellows v. been communicated to the creditors, it Greenleaf, 43 N. H. 421 ; Read v. Rob- might be revoked by the debtor. But inson, 6 Watts & S. (Pa.) 329; Ten- this is manifestly not now the law of nant v. Stoney, 1 Rich. Eq. (S. C.) 223 ; England. See also Bill v. Cureton, 2 England v. Reynolds, 38 Ala. 370, 1 Myl. & K. 503, 511; Johns v. James, Lead. Cas. Eq. 327. This presumption L. R. 8 Ch. Div. 744. may be rebutted by the fact that the * See this clearly explained in Gam- assignment is not for the benefit of the sey v. Mundy, 24 N. J. Eq. 243, 13 creditors, or is in an objectionable or Amer. Law Reg. (n. s.) 345, with note ; unusual form. See 2 Perry on Trusts, also in 1 Perry on Trusts, § 104 and § 593. note. 1 Walwyn v. Coutts, 3 Sim. 14, 3 29 450 ESTATES IN REAL PROPERTY. no motive for making such a binding arrangement, the court may permit the grantor to annul the trust, although no right to do so was expressly reserved.^ Whereas, if there existed a manifest design to dispose permanently and definitely of the property in trust, or if there appear a clear and sufficient reason for doing so, such, for example, as to provide for an indigent family or to guard against the effects of extravagance or in- temperance on the part of the settler, the arrangement will be declared complete and irrevocable, unless there exist an express power of revocation.^ In the former case, the absence of both motive and intent to make the trust permanent is -prima facie evidence of mistake in not reserving the power to revoke ; while in the latter no such evidence exists, (a) Precatory Words. § 322. Trusts created by Precatory Words — Precatory Trusts. — Precatory trusts are those created by words of prayer, entreaty, request, hope, desire, expectation, and the like, and not of direct command or explicit declaration. They occur almost exclusively in wills, because testators, in preparing their last wills and testaments, are apt to have in mind the times and circumstances under which the documents will be read and put into operation, and to soften their language, accordingly, from that of harsh command to that of request or expectation. Such forms of trusts may occur, however, and (a) In New York, when the settler reserves for his own benefit an abso- lute power to revoke the trust, he remains the absolute owner of the property, so far as the rights of his creditors and purchasers are concerned. Real Prop. Law (L. 1896 ch. 547), § 125; Conkling v. Davies, li Abb. N. C. 499, 501 ; Von Hesse v. MacKaye, 136 N. Y. 114; Van Cott v. Pren- tice, 104 N. Y. 45. 1 Garnsey v. Mundy, 24 N. J. Eq. Div. 1, 17 ; Von Hesse v. MacKaye, 136 243 ; Doran v. McConloKue, 150 Pa. St. N. Y. 1 14 ; Conkling v. Davies, 14 Abb. 98, 115; Barnard v. Gantz, 140 N. Y. N. C. (N. Y.) 499 ; Culrose ?;. Gibbons, 249, 255; Farleigh tf. Cadmann, 159 130 N. Y. 447, 452 ; Wilson !•. Anderson, N. Y. 169, 172; In re Thurston, 154 186 Pa. St. 531 ; Eeidy k. Small, 154 Pa. Mass. 596; Cooke v. Lamotte, 15 Beav. St. 505; Neal v. Black, 177 Pa. St. 83; 234; Brannin o. Shirley, 91 Ky. 450; New v. Hunting (1897), 2 Q. B. 19; Ewing V. Wilson, 19 Lawy. Rep. Ann. The maker of the trust may also ex- 767. But see Howard v. Howard, 60 pressly reserve a power to modify the Vt. 362; Sargent v. Baldwin, 60 Vt. same. Locke v. F. L. & T. Co., 140 17. N. Y. 146. 2 Tucker v. Bennett, L. R. 38 Ch. EQUITABLE ESTATES. — EXPRESS TRUSTS. 451 are occasionally found, in other instruments.^ The principle, upon which courts proceed in spelling out trusts from such Ian-* guage, is that, while the form of expression is modified and softened by the testator, his meaning is the same as if he used more explicit and unequivocal words in ordering and directing the disposition of his property.'^ In every day life, commands of the most emphatic nature are frequently issued in the form of requests. And it is natural that testators should often adopt the same method of giving instructions which are intended to be imperative. The finding by equity of precatory trusts in such instruments is, therefore, simply an application of the fundamental rule of constructioia of wills — the rule which re- quires the intention of the testator to be ascertained and carried out — whereby forms of express trusts are shown to be created by the testamentary language employed.^ For example, a tes- tator gives property to his wife, with a " request " that out of its proceeds she shall maintain his niece, who has been brought up by him and taught to depend upon him for support ; and a court of equit}- finds, from such language and circumstances, that a trust was meant to_ be impressed upon the property in the hands of the donee.* § 323. Intent the Chief Exponent of Precatory Trusts. — Some writers have laboriously collected long lists of expressions, which have been held in some cases to have created precatory trusts, and other lists of those which have been decided to be insufficient for that purpose.^ But, in the light of the most recent adjudications, these are of but little assistance. The question presented, in each case, is that of the interpretation and construction of a will, which is probably different in some respects from every other will. And this requires that the entire document shall be studied and the intention of the tes- tator ascertained, as expressed by the words he has used, ac- coi'ding to their ordinary and natural meaning, but possibly 1 See Liddard v. Liddard, 28 BeaT. Young v. Martin, 2 You. & Coll. 582 ; 266; Verzier v. Convard, 75 Conn. 1; Clay v. Wood, 153 N. Y. 134; Aldrich Bispham's Priu. Eq. § 76. v. Aldrich, 172 Mass. 101 ; Eberhardt v. 2 Knight V. Boughton, 11 CI. & Fin. Perolin, 49 N. J. Eq. 570; Boyle v. 513, 548; Knight v. Knight, 3 Beav. Boyle, 1,52 Pa. St. 108. 148,173; Mason v. Limbury, cited in * Collister v. Fassitt, 163 N. Y. 281. Vernon v. Vernon, Amb. 4; Hill on ^ See 1 Perry on Trusts, §§ 112, 113 ; Trustees (4th Amer. ed.), p. 73. 1 Ames, Cases on Trusts, p. 82 et seq. » Eaton !).Watts,L.E.+Eq.l51, 155; 452 ESTATES IN REAL PROPERTY. modified by the context and his situation and circumstances at the time when he used them.^ As a rule or principle of construction subsidiary to that which requires the testamentary intent to be sought, it was at one time held by the English courts, in conformity to the old Roman law, that precatory words in a will were to be taken as prima facie imperative, and would raise a trust, unless a contrary intent appeared from the context or circumstances.^ But this doctrine has been abolished by recent decisions in Eng- land ; and it is now firmly established there that such expressions alone do not import a command.^ In the case of Hill v. Hill,* decided in 1897, a summary of the rule of construction, which is now controlling, is thus stated by Lord Eslier, M.R. : " Words of request in their ordinary meaning convey a mere request, and do not convey a legal obligation of any kind either at law or in equity. But in any particular case there may be circum- stances which would oblige the court to say that such words have a meaning beyond their ordinary meaning and import a legal obligation." This is a clear expression of a principle for which some of the English judges had long contended,^ but which may be said to have been first thoroughly crystallized into law in the leading case of In re Adams & Kensington Vestry.^ In the United States, the best decisions of recent years are fully in harmony with the present English rule.^ In the Su- 1 Colton V. Colton, 127 U. S. 300, L. R. Ir. 311; Atkinson u. Atkinson, 312; Clay Stead v. Mellor, L. R. 5 Ch. Div. Colton, 127 U. S. 300; Clay v. Wood, 225, 227 ; Briggs v. Penny, 3 MacN. & 153 N. Y. 134 ; and Aldrich v. Aldrich, G. 546 ; Harding v. Glyn, 1 Atk. 469 ; 172 Mass. 101. And aU of these are in 2 Lead. Cas. Eq. 1833, and notes. harmony with the English rule. ' § 327, infra. ' Cases cited above, especially Hill EQUITABLE ESTATES. — EXPRESS TRUSTS. 455 yond question that the trustee is not to take beneficially, and the cestui que trust be not clearly pointed out, or, because of his death or inability to take, the primary objects of the settlement fail, the property is held for the benefit of the settler, or, if he be dead, of his heirs or pei'sonal representatives ; and a resulting trust is thus brought into existence.^ Whereas, in case of un- certainty of the beneficiary indicated by precatory words, the courts will more readily conclude that no trust whatever was intended, and permit the donee to take the property freed from all fiduciary obligation.^ Thus, suppose one lot of land is de- vised to A, " in trust nevertheless for such persons as are hereafter in this will designated," and no beneficiaries are clearly pointed out by the will ; and another lot is devised to A, " hoping and requesting, however, that he will use as much of the income as is necessary for the support of such of his rela- tives as may be hereinafter named," and no such relatives are definitely named in the will. If these testamentary statements be all the evidence available as to the intended dispositions of the two lots, A will take the former in trust for the heirs of the testator, but will own the latter absolutely for his own benefit. In the one case, it is clear that A is not to take bene- ficially, and so he is required to hold the property in trust ; in the other, the want of certainty is evidence indicating that the testator did not really intend to create any trust.^ The distinc- tion thus pointed out is the most important practical one be- tween a precatory trust and a trust made by direct words of command or declaration. In the former, in case of its failure, the donee of the legal estate is the more apt to acquire the property for his own benefit. But, of course, if the creator of 1 Resulting trusts are such as arise 528 ; Mussoorie Bank o. Raynor, L. R. by implication of law, in favor of the 7 App. Cas. 321 ; Giles v. Anslow, 128 grantor or his heirs, or the heirs of a 111. 187; Harper v. Phelps, 21 Conn, testator, when property has been con- 256. veyed to a trustee with the manifest 3 Cases cited in last note. In the intention that he shall not hold it bene- first of those cases, the Lord Chancel- ficially, and the purpose for which he lor said : " Wherever the subject to be is to hold is not fully expressed, or administered is trust property, and the for some reason can not be carried objects for whose benefit it is to be ad- out. Such trusts are implied to carry ministered are to be found in a will not out the presumed intent of the settler. expressly creating a trust, the indefinite See discussion of them hereafter, Ch. nature and quantum of the subject, and XXII. infra. the indefinite nature of the object are 2 Morice v. Bishop of Durham, 10 always used by the court as evidence Ves. 521, 536; Meredith u. Heneage, 1 that the mind of the testator was not Sim. 542 ; Harland v. Trigg, 1 Bro. C. C. to create a trust.'' H2; Hood V. Oglander, 34 L. J. Ch. 456 ESTATES IN REAL PROPERTY. a trust make it clear, even by the use of precatory words, that he wishes tlie trustee to hold the property for some one other than himself, and nut to have any beneficial interest therein, this design will in some way be carried out by the court, even though the primary purpose of the settlement fail, for want of certainty, or for other cause. ^ § 325. Certainty of Subject-Matter as indicative of Preca- tory Trusts. — Another matter for inquiry, in this connection, to aid in ascertaining the settler's intent, is the certainty with which the property or subject-matter is pointed out. When the identity or amount of this is left at all in doubt, and prec- atory language is employed, the conclusion most naturally and commonly drawn, in the absence of other evidence to the contrary, is that no trust was meant to be created.^ Cases of this sort arise, and no trust comes into existence, where the donee is authorized to select the particular piece of land, or the amount of it, and it is fair to conclude from the context that such choice is left entirely to his discretion ; ^ or where he is to use up as much of it as he may need or desire and any "surplus," or "residue," is requested to be held for others, or to be divided among them.* § 326. other Tests as to -whether or not Precatory Trusts exist. — A few other principles, upon which courts have laid stress as helping to determine whether or not a precatory trust was designed, may be briefly mentioned. Thus, when the gift is in the first instance absolute and apparently for the donee's own benefit, it will not be cut down to a trust by subsequent precatory words in the will ; and especially is this true when other provisions of the will intervene between the gift and the precatory language relating thereto.^ So the courts will not 1 Ingram v. Fraley, 29 Ga. 553 ; Hill * Knight v. Boughton, U CI. & Fin. on Trustees (4th Amer. ed,), 110, and 513; Clancarty v. Clancarty, 31 L. R. notes; Hawkins on Wills, 160. Ir. 530, 549; Pennoek's Est., 20 Pa. 2 Knight !'. Boughton, 11 CI. & Fin. St. 268; Willets v. Willets, 103 N. Y. 513; Cournant!. Harrison, 10 Hare, 234; 650, 656; Durant v. Smith, 159 Mass. Durant w. Smith, 159 Mass. 229; Coul- 229; Nunn v. O'Brien, 83 Md. 198; son V. Alpaugh, 163 111. 298; Nunn v. Conlson o. Alpaugh, 163 111. 298; 1 O'Brien, 83 Md. 198. Perry on Trusts, § 114, and note, and 8 Williams v. Williams, 1 Sim. N. s. § 116. 358; Reeves v. Baker, 18 Beav. 372; 6 Webh ti. Wools, 2 Sim. N. s. 267; Hood u. Oglander, 34 Beav. 513; Foose Bavdswell w. Bardswell, 9 Sim. 319; V. Whitmore, 82 N. Y. 405 ; Matter of Wilde v. Smith, 2 Dem. (N. Y.) 93 ; Keloman, 126 N. Y. 73; Wymau v. Lawrence v. Cooke, 104 N. Y..632; Woodbury, 86 Hun (N. Y.), 277, 282; Clarke !■• Leupp, 88 N. Y. 228; Brown Gilberts. Chapin, 19 Conn. 342. v. Perry, 51 N. Y. App. Div. 11, 12; EQUITABLE ESTATES. — EXPRESS TRUSTS. 457 raise such a trust for a purpose, the carrj-ing out of which they can not compel ; as where a devise was to the testator's wife, with a request that out of the proceeds of the property she sliould support his sister, as long as the two women would live together, the court declared it could not undertake to make them live together, and therefore would not hold that there was any trust. ^ Again, if the words used indicate merely a purpose or motive in mailing the gift, rather than a direction as to its use, there will not be any trust. Thus a gift of property to a person, " to purchase a ring," or " to enable him to maintain the children," does not bring into being a trust of any kind.^ There must be, as prerequisites to the existence of a preca- tory trust, a reasonably clear intent that definitely described property shall be held for the benefit of cestuis que trustent who are pointed out with common certainty. § 327. Requisites of Express Trusts generally. — It has been said that " Three things must concur to raise a trust, — suffi- cient words to create it, a definite subject, and a certain or ascertained object." ^ That is, there must be a sufficient declaration of the trust, in terms either precatory or directly mandatory, the subject-matter must be clearly indicated, and the object or beneficiary must be definitely pointed out. These things must coexist, in order that a trust may come into being. When it has once been created and exists as an inter- est in real property, its essential features are seen to be the same as those which were heretofore enumerated as belonging to a use ; namely, a trustee in being, a cestui que trust in being and ascertained, or so described as to be readily ascertainable, and a determined subject-matter in esse, to which the trust interest is attached.* The word '■'■certain" is very important, in regard to all of these requisites. While uncertainty as to the individuals who are to be the beneficiaries is one of the elements of a charitable Van Dayne f. Van Duyne, 14 N. J. Eq, 412; Burt v. Herron, 66 Pa. St. 400; 397; Second, etc. Church v. Desbrow, Barrett o. Marsh, 126 Mass. 213; 1 52 Pa. St. 219; 1 Perry on Trusts, Perry on Trusts, § 119. § 112, and note. s Knight v. Boughton, 11 CI. & Fin. 1 Graves v. Graves, 13 Ir. Ch. 182; .513; Cruwys v. Colman, 9 Ves. 319, Hood V. Oglander, 34 Beav. 513 ; Harper 323. V. Phelps, 21 Conn. 256. See Phillips * Phelps' Executor v. Pond, 23 N. Y. V. Phillips, 112 N. Y. 197, 204. 69, 77 ; Eose v. Hatch, 125 N. Y. 427, 2 Apreece v. Apreece, 1 Ves. & Bea. 431 ; Greene v Greene, 125 N. Y. 506, 364; Benson v. Whittam, 5 Sim. 22; 510; Sherwood r. Amer. Bible Soc, 4 Burke v. Valentine, 52 Barb. (N. Y.» Abb. Ct. App. Dec. (N. Y.) 227. 458 ESTATES IN REAL PEOPERTT. trust,^ yet if in any other form of express trust, as to any of its requisites, or if in a charitable trust as to any requisite except the objects, there be such uncertainty that the court can not surely know who or what is meant, the settlement attempted, or apparently attempted, can not be carried into effect. Either the entire scheme will fail, and there will be no trust at all,^ or, if the legal estate pass to one who clearly ought not to hold it for his own advantage, some form of implied trust will arise, either to comply with the presumed intent of the parties or to work out justice regardless of such intent.^ It has already been shown that trusts are more apt to exist by implication, or to result, when explicit mandatory statements are used by the settler but uncertainty arises as to the objects to be benefited, than in cases of like ambiguity where the expressions used to create the trusts are precatory.* Wiien doubt springs from the latter source, it frequently causes the court to hold, in its quest for the intent, that there is not enough evidence to raise a trust — or rather that the doubt is such as in itself to be evidence against the existence of any trust at all — and that the donee takes the property absolutely for his own benefit.^ It is a rule which has no exception that, if a trust be once properly created, equity will not allow it to fail for want of a trustee.^ When no trustee is properly named, or one who is duly appointed dies, is removed, or becomes incapacitated, the court either ascertains or appoints another, or regards itself as such and executes the trust.'' Therefore, a trust rarely fails on account of any difficulty as to the trustee. There is ordi- narily a trustee of some kind in esse. But, when the coming of the trust into existence depends on the appointment of a trustee, as is true of some forms of charitable trusts hereafter explained,^ then the failure to name one, or an attempted 1 See § 308, supra, and §§ 345, 346, Jaques, 3 Edw. Ch. (N. Y.) 207 ; Story, infra. Eq. Jur. §§ 98, 976. 2 Campbell v. Brown, 129 Mass. 23 ; ' Bennet v. Davis, 2 P. Wms. 316 Hill on Trustees (4th Amer. ed.), 73, 74. Cross v. U. S. Trust Co., 131 N. Y. 330, 3 See § 310, supra, and § 351, infra. 350; Kirk v. Kirk, 137 N. Y. 510, 515 * § 324, supra ; Morice v. Bishop o£ Cushney v. Henry, 4 Paige (N. Y,), 345 Durham, 10 Ves. 521, 536; Bispham's King o. Donnelly, 5 Paige (N. Y.), 46 Prin. Eq. §§ 75, 76. Malin ^. Malin, 1 Wend. (N. Y.) 625 5 § 324, supra. Piatt <,-. Vattier, 9 Pet. (U. S.) 405 15 Co. Lit. 290 b, 113 a; Dodkin v. Kerr v. Day, 14 Pa. St. 114; Treat' Brunt,L. R. 6Eq. 580; Bundy u. Bundy, Appeal, 30 Conn. 113. 28 N. Y. 410 ; McCartee ;;. Orphan Asy. » § 346, infra. Soc, 9 Cow. (N. Y.) 437 ; Crocheron v. EQUITABLE ESTATES. — EXPRESS TRUSTS. 459 nomination by words so ambiguous that the court can not ascertain certainly who is meant, will defeat the entire scheme. ^ The court will not let an existing trust terminate for want of a trustee ; nor will it bring into being a trust that would other- wise not exist, by creating a trustee, or identifying one from loose, ambiguous, or uncertain expressions. Any kind of valuable property may be the subject-matter of a trust.^ Real property of every sort is that dealt with by the trusts here discussed. The simple requirement is that it shall be definitely pointed out, so that it can be ascertained with certainty by the court. And when this is done, even though the -land itself is not within the jurisdiction of the court, a trust thereof can be taken cognizance of and administered, if the court have jurisdiction over the parties. " Equity acts in personam." ^ And therefore, in the absence of statutory restriction, if it have the parties properly before it, it may administer trusts and fiduciary matters as to property which is situated in a state or country outside of its own jurisdiction.* Kinds of Express Trusts and Trust Interests. § 328. Express Trusts, Active and Passive. — The distinction between (a) active (or special) and (b) passive (or simple) trusts has been already pointed out.^ When the trustee lias certain duties to perform, such, for example, as to manage the property for the benefit of other persons, which renders it necessary that the legal estate shall remain in him, the trust is active. Otherwise it is passive ; that is, the trustee is merely the receptacle of the legal title ; the cestui que trust has both the/ws habendi, or the right to possess and enjoy the property, and the jus disponendi, or the right, as he may direct, to compel the trustee to convey the legal estate.^ This division 1 Last preceding note ; Grimes v. * Penn v. Lord Baltimore, 1 Ves. Sr. Harmon, 35 Ind. 198 ; 2 Perry on Trusts, 44-t, 2 Lead. Cas. Eq. 767 ; Vaughan v. § 713. Barclay,6Whart. (Pa.) 392; Mitchell y. 2 1 Perry on Trusts, § 67. Bunch, 2 Paige (N. Y.), 606 ; Chase ^ The jurisdiction of the Court of v. Chase, 2 Allen (Mass.), 101 ; Lindley Chancery was acquired originally v. O'Reilly, 50 N. J. L. 636 ; Clad v. against the person; and an attachment Paist, 181 Pa. St. 148; 1 Perry on against the person has always been its Trusts, §§ 71, 72. ordinary method of proceeding. Great ' § 307, supra. Falls Mfg. Co. <.. Worster, 23 N. H. « MiUs u. Johnston (1894), 3 Ch. 462; Hart o. Sansom, 110 U. S. 151, 204; McCune w. Baker, 155 Pa. St. 503; 154. 1 Lewin on Trusts, p. * 18. 460 ESTATES IN REAL PROPERTY. of trusts into those that are active and those that are passive assumes its chief importance as a subdivision of express trusts, because implied trusts are uniformly passive. § 329. (a) Active Express Trusts. — The purposes for which active express trusts may exist at common law are many and varied, and are discussed hereafter. Such trusts simply need to be mentioned here as a class. And the material and often difiGcult question is next in order, when and under what con- ditions do trusts, which are created as active ones, cease to exist because of the fact that they become passive by a change of circumstances and are then executed by the Statute of Uses ? If, for example, land be devised to A as an active trustee to manage and pay the net income to B during his life and then to convey the land to C, D, and E, when if ever will the legal estate depart from A (althougli he* fail to convey it), and vest in the beneficiaries, C, D, and E ? Before the discussion of such questions, however, a few words are required as to trusts which are passive in their inception. § 330. (b) Passive Express Trusts — or Uses — When Ex- ecuted. — A passive express trust is simply and only the old use with a new name — the legal estate is vested in one who has nothing to do but to hold it, for another Avho has all the management and benefit of the property .^ When a trust is thus expressly created in the first instance as passive, and there is in its inception no resort to the principle in Tyrrel's Case — no making of it in the form of a use upon a use — in the absence of direct, modern statutory prohibition, it will ordinarily be at once executed by the Statute of Uses.^ The mere employment of tlie word " trust," instead of " use," will make no difference. It is the use such as existed in the times of and before the Statute of Uses ; and is dealt with as such. In many of the United States, as New York, Indiana, Delaware, Massachusetts, Pennsylvania, Maine, New Hamp- shire, Vermont, and Virginia, the rule in Tyrrel's Case has been entirely abrogated, either by positive statute or judicial determination.^ (a) Indeed, it has been doubted by high (a) For the New York statute abolishing the rule of Tyrrel's Case, see note (a) to § 331, infra. 1 §§ 303, 304, supra. 8 N. Y. Real Prop. Law (L. 1896, 2 Austen v. Taylor, 1 Eden, 361; ch. 547), §§ 72, 73; Downing v. Mar- Wendt V. Walsh, 164 N. Y. 154; 1 shall, 23 N. Y. 366, 379 ; Townshend y. Lewin on Trusts, p. *209. Frommer, 125 N. Y. 446, 456; Wendt EQUITABLE ESTATES. — EXPRESS TRUSTS. 461 authority whether that rule is in force at all in this country.^ And the general American principle may be stated to be that, whenever the legal estate is expressly given to a trustee, to whom no active duties ai'e assigned, it immediately goes past him and vests in the cestui que trust for whose benefit the settlement was ultimately intended. In Missouri, however, and possibly in a few other states, Tyrrel's Case has been adhered to ; and there, if a passive express trust be made in the form of a use upon a use, as to A in trust for B in trust for C, the legal estate will not be carried further than to the first-named beneficiary — in the example given, to B — and he will hold as a passive trustee for the other — for C.^ § 331. Effects of Active Ezpress Trusts becoming Passive. — The more difficult question, as above stated,* is usually pre- sented when a trust which has been once active becomes passive, or when by any means the trustee once active becomes the bolder of a mere dry legal estate. Does the trust then cease and the legal estate vest immediately in the beneficiary ? It does so in New York and in the few states, such as Wis- consin and Michigan, which have followed New York's ad- vanced form of legislation upon this subject.* In those states a passive express trust can not exist ; for, as soon as a trust becomes of that nature, the equitable estate of the ultimate beneficiary is merged in the legal estate which passes to him." The same position was at one time held by the courts of Pennsylvania, without the aid of any statute.^ But they subsequently abandoned that extreme ground, and placed them- selves again in line with the English courts and those of the majority of the states of this country.^ V. Walsh, 164 N. Y. 154; Ind. Retv. St. Kent, 145 N. Y. 363; "Wendt v. Walsh, (1843) ch. 28; Del. Kev. St. (1829) 164N. Y. 154; Wis. Eev. St. (1858) p. p. 89, § 1 ; Thatcher a. Oraans, 3 Pick. 529 ; Goodrick v. Milwaukee, 24 Wis. (Mass.) 521, 528; Tucker's Appeal, 75 422, 429; Backhaus v. Backhaus, 70 Pa. St. 354; Greenl. Cruise, Dig. tit. Wis. 518; 2 Mich. Comp. L. (1857) p. xii. ch. 1, § 4, note. 824; Eeady v. Kearsley, 14 Mich. 215, 1 Greenl. Cruise, Dig. tit. xii. ch. \ 228. See also Murphey v. Cook, 75 § 4, note. N. W. Rep. (S. D.) 387. 2 Guest V. Farley, 19 Mo. 147. And 6 ibid. see Croxall v. Shererd, 5 Wall. (U. S.) « Kuhn v. Newman, 26 Pa. St. 227 ; 268, 282 ; Price v. Sisson, 13 N. J. Eq. Bush's Appeal, 33 Pa. St. 85 ; Nagee's 168, 173; Jackson v. Cary, 16 Johns. Appeal, 33 Pa. St. 89. Ch. (N. Y.) 302. ' Bamett's Appeal, 46 Pa. St. 392; ' § 329, sufn-a. Bacon's Appeal, 57 Pa. St. 504 ; Tucker's « N. Y. Real Prop. Law (L. 1896, Appeal, 75 Pa. St. 354; Ogden's Appeal, ch. 547), §§ 72, 73 ; Townshend v. From- 70 Pa. St. 501. mer, 125 N. Y. 446, 456; Hopkins ». 462 ESTATES IN REAL PROPERTY. These latter tribunals likewise hold that the trust is ex- ecuted as soon as it becomes wholly passive, when the only reason for the existence of the trustee in the first place was that he might hold the property for the purpose of actively performing some prescribed duty in reference thereto, and no ultimate conveyance or transfer is expressly or impliedly directed.^ Thus, where land was conveyed to the grantor's wife, in trust to hold and manage for the benefit of their children until the youngest child should become twenty-one years of age, it was held that at the majority of such child the trust terminated and the legal estate vested absolutely in all the beneficiaries.2 But when the failure of the statute to execute the trust in the first instance is not due entirely to the active character of the trust, — as, for example, when the trustee is directly ordered to make a conveyance of the legal title after his work of managing for a period is accomplished, — then it is held by the courts of England and most of our states that the fact alone that the trust has ceased to be active does not cause it to be executed by the Statute of Uses.^ In such cases, how- ever, after his active labors are at an end, it is generally the duty of the trustee, upon demand of the cestui que trust, to convey the legal title to the latter, or to such person or persons as he shall appoint.* And, a sufficient reason therefore thus appearing, after a great lapse of time and long-continued pos- session by the equitable owner, and in favor of a just title, equity will presume that the trustee has performed his duty by making such a conveyance.^ Thus, where the trustee is ex- pressly ordered to convey upon the happening of a specified event, as when a minor becomes of age, and the beneficiary has been exclusively enjoying the property for a number of years after that time — in one case only about four years — the court presumes a conveyance, though there may be nothing to lead it to suppose that one was ever actually made.^ So, 1 1 Perry on Trusts, §§ 349-351. 381. And see Hopkins v. Kent, U5 N. Y. '' Sherman i-. Dodge, 28 Vt. 26, 30; 363 ; 1 Perry on Trusts, §§ 351-3.55. Leonard's Lessee v. Diamond, 31 Md. l Dunn v. Wheeler, 80 Mo. 238. 536, 541; Hill on Trustees (4th Amer. 6 England u. Slade, 4 T. E. 682; ed.), 316; 1 Perry on Trusts, § 351. Angier v. Stannard, 3 Myl. & K. 566, ' England v. Slade, 4 T. R. 682 ; 571 ; Langley v. Sneyd, 1 Sim. & St. 45. Obert ti. Bordine, 20 N. J. L. 394; « England v. Slade, 4 T. R. 682; Welles V. Castles, 3 Gray (Mass.), Wilson w. Allen, 1 Jac. & W. 591, 611 ; 323; Hooper v. Feigner, 80 Md. 262, HiUary v. Waller, 12 Ves. 239; Doe v. 271 ; Aikin u. Smith, 1 Sneed (Tenn.), Sybourn, 7 T. R. 2; Marr v. Gilliam, 304; Liptrot v. Holmes, 1 Kelley (Ga.), 1 Cold. (Tenu.) 488. EQUITABLE ESTATES. — EXPRESS TRUSTS. 463 where land was deeded to trustees, for the purpose of having them partition it and transfer separate pieces to the individual grantors, it was presumed, after long occupation of distinct parcels by the latter, that the trustees had duly made the con- templated conveyances.^ The three requisites to sucli a pre- sumption are : first, that it shall be supported by some sufficient reason — and long and exclusive possession by the beneficiary, when aided by any other slight circumstances, is one of the best and most common reasons ; second, that it was the duty of the trustee to make the conveyance ; and third, that the presumption is in favor of, and not against, a just and proper title.^ One can not have the benefit of such a presumption for gaining an unfair or inequitable advantage over an adverse claimant.^ It need hardly be added that, while the trust remains active, in whole or in part, the statute will not execute it, and the courts will ordinarily refuse to presume or order a conveyance from the trustee. Yet, even if some of the pur- poses of the trust have not been accomplished, or the trust may not have run its full prescribed course, if the cesiuis que trustent are all in being and under no legal disability, the court, with their consent, may order the trust to be terminated and the legal estate transferred to the rightful owner or owners.* This can not be done, however, in derogation of the wish or intent of the settler of the trust.^ The rules above stated, by which the English and most of the American courts determine whether or not a trust that has become passive is to be held to have terminated, or a convey- ance of the legal estate to the beneficiaries is to be presumed, are necessarily somewhat vague and indefinite. Tlie time involved in raising such presumptions of conveyances is not necessarily nor usually the same as that of the Statute of Limi- tations. Sometimes it is shorter, sometimes longer, according as there are or are not other important facts to aid in raising 1 Jackson v. Moore, 13 Johns. Ch. (Mass.), 339; Culbertson's Appeal, 76 (N. Y.)513,acasedecidedundertheNew Pa. St. 145, 148; Cuthbert v. Chaavet, York law before the present form of 136 N. Y. 326 ; Perry on Trusts, §§ 274, statute on this matter was adopted, — 922. before Jan. 1, 1830. 6 Hoganw. Kavanogh, 138N. Y. 417; 2 1 Perry on Trusts, §§ 351-355. Cuthbert v. Chauvet, 136 N. Y. 326 ; 5 Doe V. Wrighte, 2 Barn. & Al. 710 ; Lent «. Howard, 89 N. Y. 169 ; Douglas DoeB. Cook, 6 Blng. 174, 179; 1 Perry v. Cruger, 80 N. Y. 15; Chaplin on on Trusts, § 355. Express Trusts and Powers, § 526. * Bowditch V. Andrew, 8 Allen 464 ESTATES IN REAL PROPERTY. the presumption.! All the circumstances of each case are care- fully examined ; and, in the light of these and by the applica- tion of the rules above stated, the trusts are declared to have terminated when such conclusions are just and equitable and aid in the quieting and perfecting of titles. A statutory rule, like that of New York, which instantly terminates an express trust when it ceases to be active, is much more definite and satisfactory, (a) (a) The New York statute, which is now Real Prop. Law (L. 1896, ch. .547), §§ 70-7.3, is as follows : — "§70. Every estate which is now" (Jan. 1, 1830) "held as a use, executed under any former statute of the state, is confirmed as a legal estate." " § 71. Uses and trusts concerning real property, except as authorized or modified by this article, have been abolished ; every estate or interest in real property is deemed a legal right, cognizable as such in the courts, except as otherwise prescribed in this chapter." " § 72. Every person, who, by virtue of any grant, assignment, or devise, is entitled both to the actual possession of real property, and to the receipt of the rents and profits thereof, in law or equity, shall be deemed to have a legal estate therein, of the same quality and duration, and sub- ject to the same conditions, as his beneficial interest; but this section does not divest the estate of the trustee in any trust existing on the first day of January, eighteen hundred and thirty, where the title of such trustee is not merely nominal, but is connected with some power of actual dispcsi- tion or management in relation to the real property which is the subject of the trust." " § 73. Every disposition of real property, whether by deed or by devise, shall be made directly to the person in whom the right to the possession and profits is intended to be vested, and not to another to the use of, or in trust for, such person ; and if made to any person to the use of, or in trust for another, no estate or interest, legal or equitable, vests in the trustee. But neither this section nor the preceding section of this article shall extend to the trusts arising, or resulting by implication of law, nor pre- vent or affect the creation of such express trusts as are authorized and defined in this chapter." No express trusts, except such as are active, are "authorized and defined " in the chapter which contains these sections, or in any other law of New York. The sections here quoted are the present form of the same statute in substance, which went into operation as a part of the New York Revised Statutes, Jan. 1, 1830 (1 R. S. 727, §§ 46-50). See Fowler's R. P. Law, pp. 232-243. The results of these enactments are that (i) no passive express trust 1 1 Perry on Trusts, § 349. In some trust instrument, or is specially . pre- instances this time is regulated by special scribed by law, "shall cease at the e.x- statutesof limitation. Thus, in New York, piratiun of twenty-five years from tlie a trust for the benefit of creditors, except time when the trust was created." See where a different period is fixed by the last paragraph to note (a), p. 465, infra. EQUITABLE ESTATES. EXPRESS TRUSTS. 465 § 332. Powers in Trust. — In order that a trust may exist, the trustee must have the legal estate in the property. If tliere be no legal estate and title for a trustee, there can be no trust.^ Thus, if land be devised to A to hold and manage for the benefit of B, the legal estate vests in A ; and, if anything sub- sequently occur by which that interest is taken to B, the trust can exist in New York, but an attempt to create one, which is otherwise legal, vests the legal estate at once in the person who is designated as ultimate beneficiary, Hopkins i<. Kent, 145 N. Y. 363 ; Syracuse Sav. Bk. V. Holden, 105 N. Y. 415, 418; Wendt u. Walsh, 164 N. Y. 154; Seidel- bach V. Knaggs, 44 N. Y. App. Div. 169; Ring •>. McCoun, 10 N. Y. 268; and (;3) when a trust once active ceases to be so and becomes passive, the legal estate passes instantly to the beneficiary, or person entitled thereto, without any conveyance by the trustee ; and this is true whether or not the trustee was ordered by the trust instrument to make a conveyance, King i'. McCoun, 10 N. Y. 268; Matter of Brown, 154 N. Y. 318; Matter of Tompkins, 154 N. Y. 6.34. And see Matter of Baer, 147 N. Y. 848. If, for example, property be devised to A, in trust to manage and pay the net rents and profits to B, and on B's death to divide and convey the corpus among B's children, as soon as B is dead the children then living have the legal estate absolutely vested in them, without the necessity for any con- veyance by A. Matter of Brown, 154 N. Y. 813; Matter of Crane, 164 N. Y. 71; Paget v. Melcher, 156 N. Y. 899. And it seems to be clear in such a case that, since no conveyance by the trustee is necessary to per- fect the title, he can not be compelled to convey. Ring v. McCoun, 10 N. Y. 268. But see Anderson u. Mather, 44 2Sf. Y. 249 ; King v. AVhaley, 59 Barb. 71. These statutes do not vest an estate in the proposed beneficiary, how- ever, if he be incapable of taking a direct grant or devise of the legal title, as, e, g., if he be an alien who could not so take directly. Beekman v. Bonson, 23 N. Y. 298, 816. So these statutes do not apply to take the legal estate from the trustee, when he himself has a beneficial interest in the property, either alone or with others. King v. Townshend, 141 N. Y. 358, 364; New York Dry Dock Co. u. Stillman, 30 N. Y. 174. In connection with the matter of the termination of a New York express trust by virtue of statute, § 90 of the real property law (L. 1896, ch. 547) is also to be noted. It is as follows: "Where an estate or interest in real property has heretofore vested or shall hereafter vest in the assignee or other trustee for the benefit of creditors, it shall cease at the expiration of twenty-five years from the time when the trust was created, except where a different limitation is contained in the instrument creating the trust, or is especially prescribed by law. The estate or interest remain- ing in the trustee or trustees shall thereon revert to the assignor, his heirs, devisee, or assignee, as if the trust had not been created." Kip v. Hirsh, 103 N. Y. 565, 572 ; Hoag v. Hoag, 35 N. Y. 460 ; New York Steam Co. v. Stern, 46 Hun, 206. 1 Govin V. De Miranda, 140 N. Y. 474, N. Y. 1 46 ; Requisites of Trusts, § 327, 477; Locke v. F. L. & Y. Co., 140 supra. 30 466 ESTATES IN REAL PROPERTY. then instantly terminates.^ But it frequently happens that a power to dispose of property is given to one, to whom no estate or interest is transferred ; as, for example, when realty is con- veyed to A for his life and B is authorized and empowered to dispose of it after A's death. B has no estate in the land, but only a power or authority to dispose of or otherwise deal with it. The donee, or owner of such a right, may also have an estate in the property, either for his own benefit or as trustee for another, and so may own the two as separate and distinct things.^ This is illustrated by a conveyance of land to A, to hold during his life, either for himself or in trust for others, with power in him to dispose of it by will at his death." But the important distinction is that, as donee of a power he does not have to own the legal estate, although he may own both ; whereas to be trustee he viust have the legal estate. This is not the proper place for the complete discussion of powers over real property. They are most readily explained hereafter, in connection with future and executory interests in realty. But such powers as partake of the nature of trusts — those which place fiduciary obligations upon the donees, and are conse- quently called trust powers, or powers in trust — should be briefly noticed here, after our examination of the forms of express trusts. § 333. Executing, or carrying out the Requirements of, Powers in Trust. — -In the early leading case of Brown v. Higgs,* Lord Bldon said : " There are not only a mere trust and a mere power, but there is also known to this court a power which the party to whom it is given is entrusted and required to execute ; and with regard to that species of power the court considers it as partaking so much of the nature and qualities of a trust, that if the person who has that duty imposed upon him does not discharge it, the court will to a certain extent discharge the duty in his own room and place." That is, a power *in trust, in its essential nature, places upon the donee thereof a duty to execute it, and thereby to dispose of property, in favor of some person or persons other than himself. An illustration is found in a devise of land to the testator's son, during his 1 Wade V. Paget, 1 Bro. Ch. 363; ^ Belmont ti. O'Brien, 12 N. Y. 394, James y. Morey, 2 Cow. (N. Y.) 246 ; 404 ; Fincke o. Fincke, 53 N. Y. 528 ; Nicholson t). Halsey, 1 Johns. Ch. (N. Y.) Miller v. Wright, 109 N. Y. 194. 417, 422; Wills t>. Cooper, 1 Dutch. » Smith w. Floyd, 140 N. Y. 337. (N. J.) 137 ; Donalds v. Plumb, 8 Conn. * 8 Ves. 570, 5 Ves. 495. 446, 453 ; 1 Perry on Trusts, § 347. EQUITABLE ESTATES. — EXPRESS TRUSTS. 467 life, " with the right and privilege of disposing of the same by will or devise to his children, if any he should have." ^ Unless the creator of such a power liimself leaves it discretionary with the donee to execute it or not as he may choose, or, in other words, unless the duty is expressly created as an imperfect and unenforcible obligation, equity will compel the donee to per- form it, if possible ; ^ or, if he be dead or can not be reached, the court itself will execute the trust power.^ And when the latter course is pursued, if no special scheme of distribution be outlined by the donor, the court follows its maxim, that " equality is equity," and divides the property equally among tlie designated beneficiaries.* In the last analysis, then, a power in trust involves a form of express fiduciary obligation similar to that of an express trust. The same degree of certainty as to the subject-matter and beneficiaries is required, and equity usually enforces the performance of the obligations alike in botli cases.^ But the fact is to be again emphasized that the donee, as such, of a power in trust never has the legal estate, while there can be no trust, technically so called, without a legal estate vested in a trustee, (a) The purposes for which powers in trust may exist are prac- tically unrestricted, except by local statute, and by the require- ment that their execution shall not violate any rule of law or public policy. (a) The New York system of trusts and powers is such that many dispositions of property, which at common law would cause trusts to exist, produce mere powers in trust. See this explained in the note on New York express trusts, at the end of this chapter. 1 Smith V. Floyd, 140 N. Y. 337; Glover v. Condell, 163 111. 566. But Salusbury v. Denton, 3 Kay & J. 529 ; when a different practical scheme of Glover V. Condell, 163 111. 566. distribution is set forth by the donor, ^ In re Kirwan's Trusts, L. R. 25 the court will follow his wishes as far Ch. Div. 373 ; In re Burrage, 62 L. T. 752; Towler v. Towler, 142 N. Y. 371 Mut. L. Ins. Co. V. Everett, 40 N. J. Eq. 345; Osborne v. Gordon, 86 Wis. 92 Dick V. Harby, 48 S. C. 518; McHan v. as possible. Gower u. Mainwaring, 2 Ves. Sr. 87 ; Maberly v. Tortou, 14 Ves. 499 ; Bull v. Bull, 8 Conn. 47 ; I Perry on Trusts, § 255. 5 In re Weeke's Settlement (1897), Ordway, 82 Ala. 463. ] Ch. 289 ; In re Eddowes, 1 Drew. » Ibid. ; 1 Perry on Trusts, § 255. Sm. 395 ; Tilden v. Green, 130 N. Y. * Doyley v. Atty.-Gen., 2 Eq. Cas. 29; Towler v. Towler, 142 N. Y. 371; Ab. 195; Izod v. Izod, 32 Beav. 242; Mut. L. Ins. Co. w. Everett, 40 N. J. Eq. Salusbury v. Denton, 3 Kay & J. 529 ; 345 ; Osborne v. Gordon, 86 Wis. 92. Eorke u. Abraham (1895), 1 I. R. 334; 468 ESTATES IN REAL PROPERTT. Specific Kinds of Express Trusts. § 334. Purposes for -which Express Trusts may ezist. — At common law, the only practical restriction upon the purposes for which express trusts can be created and exist is that they shall not be of an illegal character.^ Illustrations of purposes for which they are very commonly made are ; to sell, and from the proceeds to pay creditors of the settler ; to sell, mortgage, or lease to pay legacies or charges ; to manage, receive the net income and pay it over to designated persons or apply it to their maintenance and support ; to receive the net income and accumulate it for a specified object ; to sell and pay the pro- ceeds to the settler ; to receive the income and raise therefrom a jointure or marriage portion ; to convey to specified persons ; to partition ; to mortgage or lease, and out of the proceeds to pay the settler's debts ; to hold for the sole and separate use of a married woman ; to hold and manage for the benefit of a charity, etc. In a few states, of which New York is promi- nent, the number of purposes for which .express trusts in real property are allowed has been materially reduced by statute, and powers in trust have been substituted for those forms which have been abolished.^ But this change has not been made with regard to personal property, (a) nor in England and most of the United States with regard to realty. Of the purposes above enumerated, the trusts for creditors are very important, as comprising assignments and transfers of property in bankruptcy proceedings and the ordinary insolvent and general assignments under state statutes. By the convey- ance of the land to the trustee or assignee in bankruptcy or (a) The five purposes for which express trusts in real property are now permitted in New York are explained in the note at the end of this chapter. There has been no attempt made, however, to define or restrict the purposes for which express trusts in personalty may be lawfully created Tabernacle Church v. Fifth Avenue Church, 60 N. Y. App. Div. 327, 334; Russell v. Hilton, 80 N. Y. App. Div. 178, 187. See Mills V. Husson, 140 N. Y. 99. 1 This is true as to both realty and ^ See note on New York express personalty, unless changed by statute. trusts, at the end of this chapter; Matter of Carpenter, 131 N. Y. 86; Backhans v. Backhaus, 70 Wis 518; Hirsh V. Auer, 146 N. Y. 13; Hagerty Ready v. Kearsley, 14 Mich. 215, 228; V. Hagerty, 9 Hun (N. Y.), 175; Tritt Murphy v. Cook, 11 S. D. 47. V. Crotzer, 13 Pa. St. 451 ; 1 Perry on Trusts, §21. EQUITABLE ESTATES. — EXPRESS TRUSTS. 469 insolvency, he acquires it as an active trustee to dispose of according to the statute under which he is acting and to dis- tribute the net proceeds ratably among the creditors of the insolvent or bankrupt.^ (a) Trusts to pay legacies, or charges on land such as mortgages, etc., and those to manage the property and to receive and dis- burse or accumulate income are very common and necessary forms, which are retained even under such restrictive statutes as those of New York.^ A few words as to one of the trusts for receiving and disl)nrsing income — the so-called spendthrilt trust — are added in the following section. Trusts for the sole and separate use of married women are not now as common as tliey were before modern legislation had given to femes covert the general ownership of their real property, and the complete con- trol of and power over it which they now enjoy in most places. But a brief summary of this kind of express trusts is needed in a subsequent section. Trusts for the benefit of charity have been briefly described already, and their distinctive character- istics stated.*^ They require further discussion in this chapter, as an important species of active express trusts. § 335. Spendthrift Trusts. — The settler of a trust to re- ceive and disburse income sometimes attempts to prevent the interest of the cestui que trust from being aliened by him or reached by his creditors. These arrangements, which have been styled " spendthrift trusts," have caused much discussion and contrariety of opinion and decision as to how far such objects can be legally accomplished. It is absolutely settled in England that neither the alienabil- ity of such an equitable estate or interest, nor its availability for the debts of its owner, except when she is a married woman, can in any manner be prevented or taken away. A condition precedent that the provision shall not vest for the beneficiary until his debts are paid, or a condition subsequent (a) The "General Assignment" Act of New York, the operation of which is, of course, largely superseded by the National Bankruptcy Law now in force, was passed in 1877 (L. 1877, ch. 466), and is now found in N. Y. R. S. (9th ed.) p. 24-29. Insolvent Assignments, Code Civ. Pro. §§ 2149- 2187. See Gerard, Titles R. E. (4th ed.) ch. 31, 32. 1 The statutes in full upon these ^ N. Y. Real Prop. Law (L. 1896, subjects should be consulted. See the ch. 547), § 76. National Bankruptcy Act of July 1, ' § 308, supm. 1898; N. J. L. 1899, ch. 54; 1 Stim. Amer. Stat. L. part iv., " Insolvency." 470 ESTATES IN REAL PROPERTY. that the trust interest shall be divested from him if he become insolvent or indebted and shall then pass over to another, is there valid ; and thus the creditors of the intended cestui que trust may be prevented from ever reaching the property, be- cause of his never acquiring it or its being taken from him to another. But the principle is unassailable that he can not take and retain the property exempt from the rights of his creditors or divested of his own power of disposal.-^ Uniformly in this country, also, conditions preventing the proposed beneficiary from acquiring and keeping the trust estate while he is insolvent, or passing it over to another if he become so, are sustained.^ And likewise the general rule throughout the United States, wherever the matter is not affected by statute, is the same as that of England, — the cestui que trust can not hold the property for his own enjoyment freed from the duty of applying it or having it applied to tlie pay- ment of his debts and obligations.^ But in a few of the states, of which Massachusetts, Maine, Connecticut, and Virginia are examples, and in the Federal Courts, even in the absence of any statutory regulation, property may be settled in trust by one person for the payment of income to another as beneficiary for his life or for a shorter period, so that his creditors can not reach it and he himself can not alien it by way of anticipation. The principle on which this result is based is that the rule of public policy, which requires a man's property to be subject to the payment of his debts, does not go to the extent of giving a creditor a right to complain because his debtor receives a gift from a donor, who, in exercising his absolute right of dis- position of tlie property, has chosen to keep it out of the reach of the creditors of the donee.* In some of the American states, such as New York and New Jersey, this matter is regulated by statute ; the favorite form of the enactment being to the effect that where property is given to a trustee by one person to pay tlie income to another for life, a judgment creditor of the latter may maintain an action in equity to recover the surplus income ' Brandon «. Robinson, 18 Ves. 429; < Poster t'. Foster, 133 Mass. 179; Dumpor's Case, 1 Sm. L. C. 119, note; Broadway Nat. Bk. v. Adams, 133 Mass. Wins. R. P. p.* 87. 170; Wanner v. Snyder, 177 Pa. St. ■2 Ibid.; Nichols v. Eaton, 91 U. S. 208; Seitzinger's Est., 170 Pa. St. 500; 716; Hallett v. Thompson, 5 Paige Roberts i' Stevens, 84 Me. 325 ; Leavitt (N. Y.), 583; Easterly v. Keney, 36 u. Beirne, 21 Conn. 8; Young w. Easley, Conn. 22; Taylor t). Harwell, 65 Ala. 1. 94 Va. 193; Jarboe v. Hey, 122 Mo. " Ihid. ; Warner y. Rice, 66 Md. 436 ; 341; Nichols v. Eaton, 91 U. S. 716; Perry on Trusts, §§ 386 a, 827 a. Potter v. Couch, 141 U. S. 296. EQUITABLE ESTATES. — EXPRESS TRUSTS. 471 (both accrued and to accrue in the future) beyond wliat is necessary for the suitable support and maintenance, according to his station in life, of the cestui ^ue trust and those who are dependent upon him.^ (a) It is safe to add that on neither side of the Atlantic does any court hold that the founder of a trust, by making himself the beneficiary, can remove the property from the reach of his creditors either present or future.^ In New York, for example, A may settle property in trust for B for life, so that B's cred- itors can not reach the income suitable for the support of B and those dependent upon him ; but if the settlement were by A in trust for himself for life, his creditors could take it all.^ § 336. Separate Use Trusts for Married Women. — Because of the great power and control of a husband over the property belonging to his wife, the method early came into use in Eng- land, and was favored and fostered by the Court of Chancery, of making settlements in trust " for the sole and separate use " of married women. This may be done, either by employing the words just quoted, which have come to be the technical form, or by using any equivalent expression, or by otherwise making the trust in such a manner as expressly or by neces- sary implication to sliow an intent to exclude the husband's (a) The New York statute, which was originally 1 R. S. 729, § 57, and is now Real Property Law (L. 1896, ch. 547), § 78, provides that "Where a trust is created to receive the rents and profits of real property, and no valid direction for accumulation is given, the surplus of such rents and profits, beyond the sum necessary for the education and support of the beneficiary, shall be liable to the claims of his creditors in the same manner as other personal property, which cannot be reached by execution." The "education and support " include.s not only that for himself according; to his station in life, but also that for the support of his wife, and the educa- tion and support of his children, and the maintenance generally of those properly dependent upon him. Code Civ. Pro. §§ 1871-1879 ; Wetmore v. Wetmore, 149 N. Y. 520; Everett u. Peyton, 107 N. Y. 117 ; Sherman v. Skuse, 16t) N. Y. 345. See the note on New York express trusts, at the end of this chapter. Also, when the debt is for necessaries sold, or domestic servants' wages, or for services for salary owing to an employee of the judgment debtor, the creditor may reach the income in excess of twenty dollars per week. Code Civ. Pro. § 1391. 1 See Spring v. Randall, 107 Mich. " Pac. Nat. Bk. v. Windram, 133 103; N. J. Gen. Stat. p. 1424, § 43; Mass. 175; Ghormlej u. Smith, 139 Pa. Linn t. Davii?, 58 N. J. L. 29. This St. 584; Schenck v. Barnes, 156 N. Y. New Jersey statute makes all the income 316,319. over $4,000 available for creditors of the ' Schenck u. Barnes, 156 N. Y. 316, cestui que trust. 321. 472 ESTATES IN REAL PROPEETT. marital rights as to that property.^ It is not necessary to name a trustee in such a case. The husband himself may be made trustee, and compelled to manage tlie property solely for the benefit of his wife ; and, when no trustee is named, equity will usually require him to occupy that position.^ After some vacillation, it was settled by the English courts that the wife miglit dispose of, encumber, or otherwise antici- pate a trust interest settled upon her for her sole and separate use.^ And the same view was adopted by most of the Ameri- can tribunals.* This was apt to restore the husband's bene- ficial control over the property, through the influence which he could ordinarily exercise over his wife. In order to obviate this difficulty and to make it possible to give property in trust for a married woman so that she could not use or dispose of it in any way for the benefit of her husband, though she might desire to do so, the clause against anticipation, so called, was framed by Lord Thurlow, added to the words of such settle- ments and decided by the courts in both countries to be effec- tive in preventing her disposition of the property so long as she is covert.* In making such a settlement, therefore, the land is disposed of in trust for her, " for lier sole and sepa- rate use " (or by words of like import), and the statement is added concerning the settlement that it is " not hy way of anticipation." With a trust thus made in her favor, she can not dispose of nor encumber her interest in any way during coverture ; but at any time when she is discovert, whether before she has married at all or while she is a widow, she 1 Parker v. Brooke, 9 Ves. 583 Jourdan u. Dean, 175 Pa. St. 599 Duffield's Appeal, 168 Pa. St. 171 Stuart V. Kissam, 2 Barb. (N. Y.) 494 Nix V. Bradley, 6 Rich. Eq. (S. C.) 48 Lippencott v. Mitchell, 94 U. S. 767 2 Perry on Trusts, §§ 646-649. 2 Bennet v. Davis, 2 P. Wms. 316 Eichardson c. Stodder, 100 Mass. 528 Barron v. Barron, 24 Vt. 375 ; Vance v Nogle, 70 Pa. St. 179 ; 2 Perry on Trusts, 1 Lead. Cas. Eq. (4th. Amer. ed.) 756 ; 2 Perry on Trusts, §§ 655-669. ° Hood-Barrs v. Heriot (1896), App. Cas. 174; Shirley v. Shirley, 9 Paige (N. Y.), 363 ; Waters v. Tazewell, 9 Md. 291; Bank v. James, 95 Tenn. 8; 2 Lewin on Trusts, p. * 781 ; 2 Perry on Trusts, §§ 670, 671. The question has been much debated as to the validity of such a clause, in view of the general rule against restraint on the alienation § 647. of real property. But in favor of pro- ' Taylor v. Meade, 4 DeG. J. & Sm. visions for married women the prohibi- 597 ; Wainford ti. Heyl, L. R. 20 Eq. 324. tiou against their alienation of separate * Ankeney I'. Hannon, 147 U.S. 118; use estates while covert is everywhere Dyett V. Central Trust Co., 140 N. Y. sustained. See Case v. Green, 78 Mich. 54 ; Home Mut. L. Ins. Co. v. Marshall, 540 ; Pritchard v. Bailey, 113 N. C. 521 ; 32 N. J. Eq. 103 ; Hulme v. Tenant, Bispham's Prin. Eq. § 107 ; Gray, Per- petuities, §§ 432-437. EQUITABLE ESTATES. — EXPRESS TRUSTS. 473 may sell, or alienate, or encumber her equitable estate at her pleasure. Whenever she is covert, the clause against antici- pation is operative ; and it is inoperative whenever she is discovert.^ In a few of the United States, however, of which Pennsyl- vania and Massachusetts are the leading ones, no such trust can be effectual, unless made for the benefit of a woman who is covert at the time or who is in " immediate contemplation of marriage ; " and in such states it ceases to be a separate use trust as soon as she becomes a widow, and never revives again though she remarry .^ As remarked above, in many states this form of express trust is not now so important as it was before modern legislation gave to married women complete or large control over their own property. § 337. Trusts for Charities. — "It is said that courts look with favor upon charitable gifts, and take special care to enforce them, to guard them from assault, and protect them from abuse. And certainly charity in thought, speech, and deed challenges the admiration and affection of mankind. Christianity teaches it as its crowning grace and glory ; and an inspired apostle exhausts his powerful eloquence in setting forth its beauty, and the nothingness of all things with- out it. Charitable bequests are said to xiome within that de- partment of human affairs wherein the maxim, ut res magis valeat quam pereat, has been, and should be applied." ^ Without speculating upon the unsettled question of the origin of trusts for charity, or " charitable uses," except to remark that the occasion for and principles of such gifts must arise and grow in every community with the advance of civili- zation and culture, it is to be first observed that, not only were charitable donations numerous in the medieval history of 1 TuUett V. Armstrong, 4 Myl. & Cr. Harrison u. Harrison, L. R. 4 Ch. Div. 377 ; Shirley v. Shirley, 9 Paige (N. Y.), 418 ; Robinson v. Wheelwright, 6 De G. 363 ; Beaufort v. Collier, 6 Humph. M. & G. 535. (Tenn.) 487 j Staggers v. Matthews, 2 Moore v. Stinson, 144 Mass. 594; 13 Rich. Eq. (S. C.) 154. The English Quin's Est., 144 Pa. St. 444, 449 ; Denis' Conveyancing and Property Act of Est., 201 Pa. St. 616; Apple v. Allen, 1881, § 39, empowers the Chancery Di- 3 Jones Eq. (N. C.) 120; Bisphara's vision to dispense with a restraint on Prin. Eq. § 106. alienation. But this is a discretionary ' 2 Perry on Trusts, § 687, citing power, which the court exercises with Saltonstall v. Sanders, 11 Allen (Mass.), caution. It does not belong to a court 446, 455. of equity, except as given by statute. 474 ESTATES IN REAL PEOPEETT. England, but also, as the Court of Chancery developed and assumed importance, no doubt finding precedents in the Roman law which had carefully fostered charitable devises and bequests from the time when it began to be influenced by Christian teaching,! that court quickly took cognizance of such donations, and perfected a scheme for their proper judicial care and ad- ministration.^ By the time of the beginning of the conflict between Henry VIII. and the pope for ecclesiastical suprem- acy in England, that scheme had been perfected, and quite a number of cases — records of probably as many as fifty are now extant — ■ had already been taken cognizance of and settled as charities.^ Henry VIIL, led by his determination to over- throw the papal influence, abolished many charitable institutions by statutes. It is said that even the great universities were obliged to petition the king, that they might not come within the general words " colleges and fraternities," as used in those statutes.* But after this struggle was over, and Elizabeth's claim to the throne was established, and the success of the Reformation was no longer in doubt, the demand for eleemosy- nary institutions and those for other public utility was soon again manifest. This led to a series of statutes for restoring and encouraging such foundations, which were passed between the first and forty-third years of the reign of Elizabeth.^ The last and most important of these is the act of 43 Eliz. ch. 4 (1601), which is known as the Statute of Charitable Uses. The purpose and operation of that enactment was to supply an enumeration and definition of what uses are to be regarded as charitable, to hunt up all existing charities, and to enforce 1 Domat, CiT. L. bk. 4, tit. 2, § 6 ; tion of equity did not originate in that White V. White, 1 Bro. Oh. 12; Jack- statute. Vidal v. Girard's Executors, son V. Phillips, 14 Allen (Mass.), 539. 2 How. (TJ. S.) 127. See also Tappau 2 This is shown by the reports of the v. Deblois, 45 Me. 122 ; Williams In re Douglas, L. R. 35 Ch. Div. Cole, 97 Wis. 166; Harrison Ji. Brophy, 472, 479; Vidal v. Girard's Ex'rs, 2 59 Kan. 1. How. (U. S.) 127; Penn's Hospital v. 2 Zeisweiss v. .James, 63 Pa. St. 465; Delaware, 169 Pa. St. 305; Clement v. 1 Ames on Trusts (2d ed.), 211. Hyde, 50 Vt. 716; Halsey v. Convent 8 § 345, infra. P. E. Cliurch, 75 Md. 275 ; Miller u. * Smith V. Kerr (1902), 1 Ch. 774. Atkinson, 63 N. C. 537 ; Paschal u. 5 RexK. Newman, 1 Lev. 294; Atty.- Acklin, 27 Tex. 173; Barkley w. Don- Gen. V. Bowyer, 3 Ve's. 714. nelly, 112 Mo. 561. 6 Jackson v. Phillips, 14 Allen » Atty.-Geu. v. Vint, 3 DeG. & Sm. (Mass.), 539, 552; George v. Brad- 704; Atty .-Gen. v. Kell, 2 Beav. 575; dock, 45 N. J. Eq. 757. McDonald v. Mass. Hospital, 120 Mass. ' Almy V. Jones, 17 R. I. 265 ; Peo- 432. pie V. Cogswell, 113 Cal. 129. '^ Atty.-Gen. v. Comber, 2 Sim. & St. 8 Whicker v. Hume, 7 H. L Cas. 93; Towle v. Nesmith, 69 N. H. 212; 124; Stevens w. Shippen, 28 N. J. Eq. Sheldon «. Stoekbridge, 67 Vt. 299; 487; Taylor K. Bryn Mawr, 34 N. J. Eq. Trim's Estate, 168 Pa. St. 395; Hof- 101. fen's Estate, 70 Wis. 522. 3 Danryw. Inhab. of Natick, 10 Allen i^ Magill u. Brown, Brightly (Pa.), (Mass.), 169; Episcopal Academy v 347. 480 ESTATES IN REAL PROPEBTT. vivisection ; ^ for taking care of domestic animals ; ^ to sup- press the manufacture and sale of intoxicating liquors,^ etc.* § 343. Gifts for Governmental Purposes. — Gifts for lessen- ing the burdens of government are charitable : as for erecting and maiutaiuiug public buildings or other institutions;^ laying out, making, and keeping in repair streets, parks, and docks ; ^ for " repairs of bridges, ports, havens, causeways, . . . sea- banks, and highways ; " ^ to discharge a tax on the commu- nity ; ^ to supply water to the inhabitants of a town,^ or to build for it a botanical garden.^" § 3i4. other Charities. Criterion as to Charitable Purpose. ■ — There are, in addition to these four classes, a few instances of donations which have been held to be charitable, but are difficult to classify. Illustrations are trusts " for charitable purposes ; " ^^ for such charities as the trustees shall think proper ;i^ for charitable and religious objects,^^ and similar provisions in which general public benefit is manifestly in- tended, but the more particular nature of the gift is not indicated.!* ^pj^g character of such a gift as charitable must be clear, or it will not be upheld.^^ Thus a trust for " philau- 1 In re Foyeaux Cross (1895), 2 Oh. 501. 2 In re Douglas, L. R. 35 Ch. Div. 472 ; Univ. of Loudon v. Yarrow, 1 DeG. & J. 72. 8 Haines !>. Allen, 78 Ind. 100. * See also Nash v, Morely, 5 Beav. 177; Davis u. Inliabitants, 154 Mass. 224; Hayes v. Pratt, 147 U. S. 557; Fosdiek v. Town of Hempstead, 125 N. Y. 581, 582, 126 N. Y. 651 ; Strong's Appeal, 68 Conn. 527 ; Beurhaus v. Cole, 94 Wis. 617; Wood t). Paine, 66 Fed. Rep. 807. * Coggeshall v. Pelton, 7 Johns. Ch. (N. Y.) 292; Jackson v. Phillips, 14 Allen (Mass.), 539, 556. « Atty.-Gen. v. Heelis, 2 Sim. & St. 67; Howse v. Chapman, 4 Ves. 542; Mowry v. City of Providence, 10 R. I. 52; Smith's Estate, 181 Pa. St. 109. ' Preamble to statute, 43 Eliz. ch. 4. 8 Atty.-Gen v. Bushby, 24 Beav. 299. ' -Jones V. Williams, Ambler, 651. 1" Townley v. Bedwell, 6 Ves. 194. Also, on the general topic of public improvement, see Johnston v. Swann, 3 Madd. 457 ; Beaumont v. Oliveira, L. R. 4 Ch. 309 ; In re Lord Stratheden (1894), 3 Ch. 265 ; Bartlett, Petitioner, 163 Mass. 509 ; Phila. v. Keystone Battery A, 169 Pa. St. 526; Hamden u. Rice, 24 Conn. 350 ; State v. Griffith, 2 Del. Ch. 392; Stuart o. Easton, 39 TJ. S. App. 238. 11 Schouler, Petitioner, 134 Mass. 426. 12 White V. Ditson, 140 Mass. 351; Jemmit v. Varrel, Ambler, 585. 13 Baker v. Sutton, 1 Keen, 224 ; Sal- tonstall V. Sanders, 11 Allen (Mass.), 446, 454 ; Treat's Appeal, 30 Conn, 113 ; Earquhar v. Darling (1896), 1 Ch, 50. 1* See Commissioners v. Pemsel (1891), App. Cas. 531,583; In re Crans- ton (1898), 1 Ir. R. 431; George v. Braddock, 45 N. J. Eq. 757, in which a gift was upheld for disseminating the doctrines of Henry George ; Web- ster V. Wiggins, 19 R. I. 73, a donation for erecting working-men's dwellings ; Lane v. Eaton, 69 Minn. 141 ; Pack v. Shanklin, 43 W. Va. 304; Meeker v. Puyallup, 5 Wash. St. 759 ; 24 Amer. Law Rev. 489 ; 30 Cent. Law Jour. 334 ; 38 Alb. Law Jour 369. 1" Morice v. Bishop of Durham, 9 Ves. EQUITABLE ESTATES. — EXPRESS TRUSTS. 481 thropic " purposes (which might or might not be for any public benefit), or for private benevolence is not charitable.^ There has been considerable divergence of opinion as to whether or not the word " benevolent " will be, under any circumstances, a proper description of a charitable purpose. '■^ The better view appears to be that it will be so, when there is nothing to the contrary in the context.^ A devise for " charitable and benev- olent " purposes has generally been sustained as charitable in this country ; * although the opposite conclusion has been reached in some cases in England.^ The true test, with regard to the purpose of the gift, is prob- ably that suggested by Sir Wm. Grant, in the case of Morice V. The Bishop of Durham,^ namely : whether or not, consist- ently with the apparent intention of the donor, the property can be applied to a purpose not charitable ; if it can, the trust will not be administered as a charity.'' Because of their fail- ure to conform to this criterion, such donations as the fol- lowing have been held to be not charitable : " to secure the passage of laws granting women the right to vote and hold office ; " ^ " for the political restoration of the Jews to Jerusa- lem ; " ^ for purchasing and pi'esenting a cup " to encourage yacht-racing ; " i" to keep a supply of corn in London for the market ; ^^ to '' support those of my children and their descend- ants who may be destitute ; " ^^ for chai'itable " or other " pur- poses.^^ So, if the arrangement be the outcome of a contract, 399, 404; Atty.-Gen. v. Soule, 28 Mich. Mass. 24; Chamberlain v. Stearna, 111 153, 156; Darcy v. Kelley, 153 Mass. Mass. 267. 433. ^ Williams v. Kershaw, 5 Law Jur. 1 In re Macduff (1896), 2 Ch 451 ; (n. s.) Ch. 84; Ommanney v. Butcher, Farquhar a. Darling (1896), 1 Ch. 50; 1 Turn. & Russ. 260. See Norris v. Ommanney u. Butcher, 1 Turn. & Russ. Thompson, 19 N, J. Eq 307; Salton- 260; Chamberlain !). Stearns, 111 Mass. stall i'. Sanders, 11 Allen (Mass.), 446, 267. 462 ; Boyle on Charities, pp. 286-290. 2 See 2 Perry on Trusts, § 712, and " 9 Ves. 404. note. ' Also Darcy v. Kelley, 153 Mass. 8 MiUer v. Rowan, 5 CI. & Fin. 99 ; 433 ; Rotch v. Emerson, 105 Mass. 431. Goodale D. Mooney, 60 N. H. 528, 535 ; 8 Jackson v. Phillips, 14 Allen People V. Powers, 147 N. Y. 104, 110; (Mass.), 539, 571; Bacon v. Ransom, Saltonstallii. Sanders, U Allen (Mass.), 139 Mass. 117, 119. 446, 468, 470 ; Livesey v. Jones, 55 N. J. ' Habershon v. Vardon, 7 Eng. L. & Eq. 204, 205, 56 N. J. Eq. 453 ; Murphy's Eq. 228. Estate, 184 Pa. St. 310. l" Jones v. Palmer (1895), 2 Ch. 649. ■1 Saltonstall v. Sanders, 11 Allen ^i Atty.-Gen. v. Haberdashers' Co., (Ma,ss.),446, 468; Murphy's Estate, 184 1 Myl. & K. 420. Pa. St. 310. See Murdock v. Bridges, i^ Kent v. Dunham, 142 Mass. 216. 91 Me. 124 ; Mass. Soc. for Prevention w Ellis v. Selby, 1 Myl. & Cr. 286, of Cruelty to Animals v. Boston, 142 299; Chamberlain v. Stearns, 111 Mass. 31 482 ESTATES IN REAL PROPERTY. or statute, or business enterprise, and not a gift, it can not pro- duce a charitable use or trust.' And, of course, a gift which violates the law of the land, or the principles of morality, can not be sustained because it purports to be charitable. Illustra- tions are found in attempted beneficences which violate local statutory restrictions as to the kind or amount of property which a testator may devote to charitable purposes.^ Thus, I in New York the general restriction is that one who dies leav- I ing husband, wife, parent, or child surviving shall not dis- pose of more than half of his or her property to charitable institutions, (a) (o) The general statute of New York, which applies to all societies, as- sociations, and corporations of the character therein named, is Laws of 1860, ch. 360, which provides as follows: " No person having a husband, wife, parent, or child, shall, by his or her last will and testament, devise or bequeath to any benevolent, charitable, literary, scientific, religious, or mis- sionary society, association, or corporation, in trust or otherwise, more than one-half of his or her estate, after the payment of his or her debts." In addition to this general act, there is a number of special statutes, each of which prescribes how kinds of corporations therein specified may be formed, and restricts the amount of a testator's property which a cor- poration so organized can take by his or her will, if he or she leave sur- viving a husband, wife, parent, or child, to one-quarter of his or her net estate ; and also requires, as a prerequisite to the taking of even that amount, that the will shall luive been made at least two months before the testa- tor's death. Such are L. 1848, ch. 319, § 6 ; L. 1865, ch. 366, § 6, ch. 207, § 7, and ch. 343, § 5; L. 1883, ch. 236, § 7; L. 1887, ch. 315, § 5, and ch. 317, § 7. See Stephenson v. Short, 92 N. Y. 433 ; Matter of Lamp.son, 33 N. Y. App. Uiv. 49. Thus, if property be devised for charitable purposes, and one of them be a social club incorporated under L. 1865, ch. 366, or a 2G7; Farquhar v. Darling (1896), 1 Ch. 42, 163, in which it was decided that a SO; 28 Amer. Law Reij. (n. s.) 18.t. A donation by Congress of money to have trust l'i)r prepariiig or maintaining a " Columbian " half-dollars coined for mouuineiit. tomb, vault, or burial ground benefit of the exposition was not cliari- i-: c.haritiilile, if it be in connection with table. a clinrch or religious society, or some ^ gee N. Y. L. 1860, ch. 360; Allen pulilie institution; but not if made v. Stevens, 161 N. Y. 122; In re Hoff- solely for the benefit of the donor or ner's Estate, 161 Pa. St. 331; McClean of a definite number of individuals or v. Wade, 41 Pa. St. 266 ; Taylor u. families. Hopkins i/. Grimshaw, 165 Mitchell, 57 Pa. St. 209; Reynolds v. U. S. 342, 352 ; Nauman v. Weidman, Bristow, 37 Ga. 283. For the English 182 Pa. St. 263; Bronson t'. Strouse, 57 statutes of mortmain restricting gifts Conn. 147; Kelly v. Nichols, 18 R. I. to religious corporations, see 2 Jarman 62; Ford u. Ford, 91 Ky. 572. on WUls, pp. 200-224; 2 Redfield on 1 Swift «. Beneficial Soc, 73 Pa. St. Wills (2d ed.), pp. 508-516; Tudor on 362; Brendle v. German Reformed Charities, 93, 101. Those statutes are Cong., 33 Pa. St. 415, 419; World's not in force in this country. Columbian Exposition, 18 U. S. App. EQUITABLE ESTATES. — EXPRESS TRUSTS. 483 § 345. Second. The Bene&ciaries of Charitable Trusts must be Indefinite as to the Individuals. — Indefiniteness in its ob- jects is the second distinctive feature of a charitable use. It is not sufficient here to say, as do some writers, that the cestuis que trustent may be uncertain. They must be uncertain and indefinite, or the trust will be private. No matter how numer- ous the recipients may be, an establishment for them as known and determinate individuals is private and not public.^ Thus, a trust to maintain a school, which is not free, but for the ben- efit of particular individuals and their families;^ or a fund political club incorporated under L. 1886, ch. 237, and the testator or tes- tatrix leave husband, wife, parent, or child surviving, not more than one- half of his or her property can thus pass to all of the charitable institu- tions, and not more than one-quarter of it to the social or political club; and if such club were the only beneficiary of a charitable character, it could take only one-quarter, while if there were gifts to two such clubs, each of them could take one-quarter, if there were no other charities as beneficiaries, and they would thus take all that could be given to cliarity by that will. If an attempt be made to give more than is permitted by the statutes to a number of charities, the gifts will not fail entirely ; but the amount which can be legally given will be distributed pro rata among them. Hollis v. Drew Theological Seminary, 95 N. Y. 160. L. 1860, ch. 3fi0, applies to secret gifts, as where on the face of the will the property is given to the executor absolutely, but he is told orally by the testator how to apply it to charity. Edson t;. Bartow, 154 N. Y. 199. Only the persons named in the statute — husband, wife, parent, or child — and those bene- fited through them can invoke its protection ; and the advantages under it may be waived or relinquished by those who are entitled thereto. Amherst College V. Rich, 151 N. Y. 282, 332. It was decided in Allen v. Stevens, 161 N. Y. 122, 148, that when the gift is " not to a ' society, association, or corporation in trust or otherwise,' but instead to trustees " for such institu- tion, it is not within the prohibition of the statute, L. 1860, ch. 360. In so far as they relate to personalty, these statutes apply only to domestic wills, i. e., wills made by persons domiciled in New York, the provisions of which wills are to be executed within that state. Dammert v. Osborn, 140 N. Y. 30, 40 ; Hope v. Brewer, 136 N. Y. 126 ; Cross v. U. S. Trust Co., 131 N. Y. 339. When a corporation has all the property that it is author- ized to hold, so that it can not hold any more, it can not take any more, even for the purpose of passing it at once to other beneficiaries. Matter of McGraw, 111 N. Y. 66, 136 U. S. 152. 1 Bullard v. Chandler, 149 Mass. 532, to be benefited mast be vague, uncer- 540; Holland «. Alcock, 108 N. Y. 312, tain, and indefinite, until they are 330; Bnrke a. Roper, 79 Ala. 138, 142 ; selected or appointed to be the par- State V. Griffith, 2 Del. Ch. 392. " In ticular beneficiaries of the trust for the order that there may be a good trust for time being." 2 Perry on Trusts, § 710. a charitable use, there must always be ^ Blandford v. Fackerell, 4 Bro. Ch. some public benefit open to an indefinite 394. and vague number ; that is, the persons 484 ESTATES IN REAL PROPERTY. raised by an association by payment of subscriptions or dues for the exclusive use of its own members, however many they may be, is not charitable in its nature.^ But a settlement of property for the perpetual use of a designated church, school, or hospital, is to be carried out as a public trust, because the members, scholars, or inmates, who are to be thereby assisted, are unascertainable as to who they are to be in the future.^ This is the fundamental and logical distinction, as applied to some extent in this country, between the cases which have sus- tained gifts for uses of the kind called superstitious in England, and those in which such gifts have been overthrown. For it is held by some, probably the majority of our courts, including those of New York, Massachusetts, Pennsylvania, and Illinois, that trusts for the purpose of having masses or prayers said for the souls of the dead, keeping ohit lamps burning, etc., are charitable, because they are to be regarded as beneficial to all who may take part in the ceremonies, or hear or see them ; ^ while in a few other states, among which Alabama is promi- nent, it is decided that such uses are private, being, it is there said, designed in substance for the benefit of the specified dead persons alone, and that, therefore, when they are attempted to be made to run on perpetually or for a time longer than that permitted by the rule against perpetuities, which a private trust can not legally do, they must be declared void.* § 346. Degree of the Uncertainty. — As to the degree of un- certainty which may legally characterize charitable uses, there is much confusion in the cases.^ But the principle deducible from the large majority and weightier of them, which is also supported by the better reasoning, is that, while the individual 1 Coe K. Washiagton Milla, 149 Mass. • Festorazzi v. St. Joseph's Catholic 543; Stratton u. Physio-Medical College, Church, 104 Ala. 327; McHugh v. Mc- 149 Mass. .505; Babb v. Reed, 5 Rawle Cole, 97 Wis. 166; Harrison v. Brophy, (Pa.), 151. Compare Union Pac. R. Co. 59 Kan. 1 ; Moran v. Moran, 104 Iowa, V. Artist, 60 Fed. Rep. 365. 216. 2 Last two preceding notes; 2 Perry 5 This will appear from the reading on Trusts, § 732. of a few such cases as White v. Fish, 22 8 Hoeffer v. Clogan, 171 III. 462; Conn. 31 ; Grimes!'. Harmond, 35 Ind. Holland v. Alcock, 108 N. Y. 312; In 198; Green v. Allen, 5 Humph. (Tenn.) re Zimmerman's Will, 50 N. Y. Supp. 170, and Holland v. Peck, 2 Ired. Ch. 395; Teele v. Bishop of Derry, 168 (N. C.) 255, which dealt with gifts to Mass. 341 ; Schouler, Petitioner, 134 known charities such as it would seem Mass. 426; Kerrigan v. Tabb, 39 Atl. ought to have lieeu sustained; but in Rep. 701 (N. J. Ch.) ; Sherman v. Baker, all of which it was held that the at- 40 Atl. Rep. 11 (R. I.); Seibert's Ap- tempted donations failed because of peal, 19 Pa. St. 49. yagueness and uncertainty. EQUITABLE ESTATES. — EXPRESS TRUSTS. 485 beneficiaries must be indefinite, either the institution or class to which they are to belong, either in being or to come into being, must be pointed out with sufficient certainty, so that it can come into court and move for the administration of the trust,^ or there must be a general charitable purpose mani- fested, and a trustee or trustees appointed, ready and willing to act and authorized to select the specific charitable object or objects to which the property shall be applied.^ Thus, it is everywhere settled that, if a donor give property in trust to establish and maintain a specified school or hospital, but ap- point no competent trustee, the settlement being in other respects valid, upon the application of the designated school or hospital the court will appoint a trustee and compel the employment of the property in the manner intended.^ So, by the weight of the better authorities, though here the cases diverge,* when property is conveyed to competent and willing trustees, simply " for charitable purposes," or for such char- itable purposes as they may select, and no institution is indi- dicated as the recipient and as the alma mater, refuge, or home of the indefinite individuals to be helped, the coui't of equity will take cognizance of such a use and see that it is properly administered.^ And it need hardly be added that when a willing and capable trustee is named, and also the specific church, school, or other institution is pointed out, the court will take cognizance of the trust.^ But when neither of these 1 Atty.-Gen. i;. Garrison, 101 Mass. Snug Harbor, 3 Pet. (U. S.) 99; 223 ; Burrill o. Boardman, 43 N. Y. 254 ; Williams l. Pearson, 38 Ala. 299. Tilden v. Green, 130 N. Y. 29 ; Parker v. * See next preceding note but one. May, 5 Cash. (Mass.) 326, 341 ; Cottman ^ Hayes v. Pratt, 147 U. S. 557, 567 ; V. Grace, 4t Hun (N. Y.), 345; Ireland Livesey v. Jones, 55 N. J. Eq. 204, 56 V. Gerahty, 1 1 Biss. (U. S. Cir. Ct.) 465 ; N. J. Eq, 453, in which a gift was sus- Lewin on Trusts, p. * 665 ; 2 Perry on tained, to " humanity's friend . . . B, Trusts, § 732. to use and expend the same for the 2 Saltonstall u. Sanders, 11 Allen promotion of the religious, moral, and (Mass.), 446; Hayes v. Pratt, 147 U. S. social welfare of the people in any lo- 557; Everett v. Carr, 59 Me. 325, 334; eality, whenever and wherever he may Derby y. Derby, 4 R. I. 414; Miller i-. think most needful and necessary;" Atkinson, 63 N. C. 537 ; 2 Perry on Pulpress v. African Church, 48 Pa. St. Trusts, § 720. 204; Saltonstall v. Sanders, 11 Allen ' Here the trust, already created (Mass.), 446 ; Everett v. Carr, 59 Me. and existing, is in all respects valid. 325. 334 ; Derby v. Derby, 4 R. I. 414 ; It does not need the appointment of a Treat's Appeal, 30 Conn. 113; Moore trustee to bring the trust into existence ; v. Moore, 4 Dana (Ky.), 354, 366. and equity will not allow the trust to ^ Authorities cited in connection with fail for want of a trustee. Sears y. Chap- preceding section, as to purposes of man, 158 Mass. 400; Reeve v, Atty.- charitable trusts; 2 Perry on Trusts, Gen., 3 Hare, 191; Inglis v. Sailors §§ 698-705. 486 ESTATES IN REAL PROPERTY. exists — no trustee, or none who is capable and willing to act, is appointed, and, while a charitable purpose is expressed, no specific organization or organizations are selected from the world of charity, — the attempted trust must fail, unless it can be supported by some local statute, or by some power which does not reside in any court as a judicial tribunal.^ In Eng- land the Chancery Court's prerogative cy pres jurisdiction, which does not exist in this country, and which is explained hereafter,^ may avail for the administration of this vague form of gift for charity generally. And it seems to be evident that chapter 701 of the Laws of 1893 of New York (now § 93 of Real Prop. Law, L. 1896, ch. 547), is an illustration, and prob- ably the only one, of a local statute by virtue of which it could be sustained and administered by equity.^ For that act pro- vides that no conveyance or device for such purpose, which is valid in other respects, is " to be deemed invalid by reason of the indefiniteness or uncertainty of the persons designated as the beneficiaries ; " and that, when no trustee is named, the attorney-general shall represent the beneficiaries and enforce the trusts by proper proceedings. This statute has not been fully construed, with reference to the degree of indefiniteness which it sanctions ; and there are perhaps intimations opposed to the view of it here expressed.* But when the act is looked at in the light of the litigation which led up to it, especially the contest over the Tilden will, the chief bequest of which failed because of the indefiniteness of its designated bene- ficiaries,^ the conclusion appears to be most logical and reason- able that the legislative intent was to do away entirely with all difficulties of that character in connection with charitable trusts.^ This New York statute is more fully examined here- after.^ It restored charitable uses in New York after they had been discarded for upwards of a century. § 347. The Cy Pres Doctrine. Judicial Cy Pres. — As an 1 Moggridge v. Thackwell, 7 Ves. 36 ; explained in the note on New York Paice V. Canterbury, 14 Ves. 370; The express trusts, at the end of this chapter. Late Corp. of the Church of Jesus * Dammert u. Osborn, 140 N. Y. Christ of Latter Day Saints v. United 30, 43. See Fowler, Charitable Uses, States, 136 U. S. 1 ; Everett v. Carr, 59 Trusts & Donations, pp. 104-106. Me. 325, 334 ; Boyle on Charities, 241 ; ^ Tilden v. Green, 130 N. Y. 29. Bispham's Prin. Eq. § 128. 6 Rothschild v. Goldenberg, 58 N. Y. 2 § 348, infra. App. Div. 499. The statute is very 8 The treatment of gifts for charity liberally construed in Allen v. Stevens, in New York has been unique. It is 161 N. Y. 122. ' Note at end of this chapter. EQUITABLE ESTATES. — EXPRESS TRUSTS. 487 emphatic illustration of the maxim, ut res magis valeat quam pereat, the peculiar principle known as the cy pres doctrine sometimes operates to aid in determining the class or classes of the beneficiaries of a charitable use. That doctrine, with the limitation placed upon it in this country, which makes it merely a rule of construction, is as follows: when a gilt is made for a charitable use, which is lawful and valid at the time of the execution of the instrument creating it, and, while indicating the general nature and purpose of the trust, , the donor has not expressed any intention to restrict it to any particular institution or object alone; and afterwards the scheme outlined by him becomes illegal or impracticable be- cause of a change of the law or circumstances, a court of equity, looking at his general charitable design, and seeking to ascertain and accomplish what he would have done had he lived to know of the change of law or circumstances, does not allow the trust to fail, or result to his heirs, but applies the property as nearly as possible (cy pres) in the manner and for the particular objects mentioned in the instrument. Such instruments are ordinarily wills; and the change of law or circumstances usually occurs after the death of the testator.^ For example, in Jackson v. Phillips,^ a case which did much to elucidate this doctrine and the principles generally of charitable uses, a gift was made by the will of Francis Jackson to trustees, for the purpose of having books and papers circulated, speeches and lectures delivered, and such other means employed "as in their judgment will create a public sentiment that will put an end to negro slavery in this country," and also for "the benefit of fugitive slaves escaping from the slave-holding states." Slavery in this country was abolished after the testator's death, but before the litigation over his will had terminated. The trust could not be carried out precisely as directed. But what the testator really wanted, under the changed condition of affairs, could be practically effectuated by the court; the people in 1 Jackson v. Phillips, 14 Allen v. Atty.-Gen., 179 Mass. 89; Women's (Mass.), 539, 586; The Late Corp. of Church Ass'n. y. Campbell, 147 Mo. 163; The Church of Jesus Christ of Latter Hannen i: Hillyer (1902), 1 Ch. 876; Day Saints v. United States, 136 U. S. N. Y. Laws, 1893, ch. 701, as amended 1, 140 U. S. 665, 150 U. S. 145; Hop- hy N. Y. Laws, 1901, ch. 291 ; Bispham's kins V. Grimshaw, 165 U. S. 342, 353; Prin. Eq. § 128. Minot 0. Baker, 147 Mass. 348 ; Atty.- " 14 Allen (Mass.), 539. Geu. I/. Briggs, 164 Mass. 561; Amory 488 ESTATES IN EEAL PROPERTY. America for whom his bounty was designed could still be thereby benefited. The matter was referred to a master in chancery to devise a scheme cy pres for the application of the property ; with the result that it was ultimately settled in trust for the New England Branch of the Freedmen's Union Com- mission. A similar case in England is that of the Attorney- General V. Ironmongers' Co.,^ which is generally mentioned as the "Ironmongers' Case." There the gift in question was to trustees to apply to the redemption of British slaves in Turkey and Barbary. After some years there ceased to be any British slaves in those countries to redeem. The fund having then accumulated for a long time, the court, upon the application of the attorney-general, ordered the income to be applied cy pres to a number of other charities as nearly as possible like those mentioned in the will. As stated above, the doctrine invoked in such cases is a rule of construction of wills, applied by courts of equity in favor of charitable dona- tions. The judgments are judicial acts, determining what is the intention or probable intention of the testator.^ There- fore, if, from the language employed, and all the circumstances of the case, it seem probable that the donor had no ulterior purpose in case of the failure of his directly expressed intent, the charity must fail if that intent can not be strictly carried out.^ "If the construction shows that the fund was to be em- ployed in the way pointed out forever, and in no other way, then all cy pres construction must fail. " * 1 2 Beav. 313, Cr. & Ph. 308. See Academy v. Adams, 65 N.H. 225 ; Hay- also the Baliol College Case, Atty.-Gen. den v. Conn. Hospital, 64 Conn. 320 ; V. Baliol Coll., 9 Mod. 407 ; Atty.-Gen. Kelly v. Nichols, 18 R. I. 62 ; Camp- V. Guise, 2 Vern. 266; Atty.-Gen. v. bell «. Kansas City, 102 Mo. 326; Wo- Glasgow Coll., 2 CoUyer, 665, 1 H. L. men's Church Ass'n v. Campbell, 147 Cas. 800; Atty.-Gen. v. Glyn, 12 Sim. Mo. 163; Duke on Uses, 624; 8 Har- 84. vard Law Rev. 69. 2 In re St. Stephens, L. R. 39 Ch. » Teele w. Bishop of Derby, 1 68 Mass. Div. 492 ; In re Villers- Willies, 72 L. T. 341 ; Atty.-Gen. i'. Hurst, 2 Cox, 364 ; Rep. 323; White v. White (1893), 2 Carter d. Balfour, 19 Ala. 814; 2 Perry Ch. 41 ; Lorings v. Marsh, 6 Wall. on Trusts, § 726. So if special con- (U. S.) 337; The Late Corp. of The fidence be placed in trustees named, Church of Jesus Christ of Latter Day and they die or become incapacitated Saints v. United States, 136 U. S. 1 ; without executing the trust, it must 140 U. S. 665; Young v. Commis- fail. Fontain v. Ravenel, 17 How. sioners, 51 Fed. Rep. 585; Barnard u. (U. S.) 369, 382; Zeisweiss u. James, 63 Adams, 58 Fed. Rep. 313 ; Darcy Pa. St. 465. V Kelley, 153 Mass. 433; Atty.-Gen. * Per Lord Brougham, in Atty.-Gen. V. Briggs, 164 Mass. 561 ; Doyle v. v. Ironmongers' Co., 2 Myl. & K. 576. Whalen, 87 Me. 414; Adams Female EQUITABLE ESTATES. — EXPRESS TRUSTS. 489 § 348. The Cy Pres Doctrine. Prerogative Cy Pres. — Ap- plied thus as merely a liberal rule of construction — and in this country such only is its application — the cy pres doctrine is a beneficent and commendable principle. It is well that equity thus sees to it " that property devoted to a charitable and worthy object, promotive of the public good, shall be applied to the purposes of its dedication, and protected from spoliation and from diversion to other objects. " ^ But a practice, which is unfortunately called by the same name and is at first sight similar to this, has prevailed in Eng- land in such a manner as to cause some adverse criticism of the cy pres doctrine on both sides of the Atlantic. That prac- tice is the application of what has been called the prerogative cy pres doctrine, to distinguish it from the judicial cy pres above described.^ Much of the prerogative power of the king, as parens patrice was delegated, under the sign manual of the crown, to the Court of Chancery; and included within this is the authority to regulate and administer a charitable use, even for a purpose entirely different from that contemplated by the settler, or when the attempted gift is in itself incomplete, impracticable, or even illegal. Under this sweeping author- ity, for example, the court took a gift declared to be for a Jews' synagogue, which u^ider the law of England was illegal, and applied it to the benefit of a foundling hospital.^ This was not an attempt to carry out testamentary intent, though it professed to be such, but an exercise of arbitrary administrative power such as no court in this country could ever possess. "From a few grotesque cases like this," says Mr. Perry, "discredit has been thrown upon the whole doc- trine of cy pres. " * The clear distinction, however, between the English prerogative cy pres, as an administrative power 1 Per Justice Bradley, in the Mor- conversed with many persons upon it," men Church Case, The Latter Day said Lord Eldon, "and I have found Corp., etc. u. United States, 136 U. S. great difficulty, in the mind of every 1, 51. person I have consulted; but the gen- 2 2 Perry on Trusts, §§ 718, 727 ; eral principle thought most reconcil- Story's Eq. Jur. § 1168 ; Bispham's able to the cases is, that when there is Prin. Eq. § 128. a general indefinite purpose uot fixing 8 Story's Eq. Jur. § 1168; I Amer. itself upon any object, the disposition is Law Reg. (n. s.) 400, 401. in the king by sign-manual; but where * 2 Perry on Trusts, § 728. The fact tlie execution is to be by a trustee with that both forms of cy pres were admin- general or some objects pointed out, istered by the same court — the Court then the court will take the admiuis- of Chancery — led to confusion, which tration of the trust." Moggridge v. it took some time to remove. " I have Thackwell, 7 Ves. 36. 490 ESTATES IN REAL PROPERTY. there delegated to the Court of Chancery, and the judicial cy pres, as a rule of construction applied by courts of equity both there and here, has come to be generally understood ; and the former criticisms of the latter kind of cy pres, which resulted chiefly from a failure to apprehend that distinction, have con- sequently lost most of their force. ^ When the gift, as origi- nally made, is legal and feasible, and no intent is manifested to restrict it to the one special charity named, and nothing but a subsequent change of circumstances or conditions prevents it fj'oiu being literally applied to that particular charity, it is well that our courts of equity can save the property for some kindred public beneficence. And this will be done, even when there is in the will a residuary clause which might otherwise include the property in question, unless the testator has made clear his wish that on failure of the par- ticular charity it shall fall into the residuum. ^ § 349. Approval of Judicial Cy Prea in this Country. — The judicial oy pres doctrine has met with general, though not universal, favor in the United States. It was at one time apparently repudiated by the Supreme Court of the United States,^ but is now adopted by that tribunal.* The courts of Massachusetts have upheld and most lucidly explained it;^ and those of the other New England states have generally fol- lowed in their lead.^ In Maryland, Virginia, West Virginia, South Carolina, Tennessee, Alabama, Texas, and Wisconsin, it has been expressly repudiated.^ Before 1893, it could not 1 Jackson v. Phillips, 14 Allen 433 ; Atty .-Gen. ». Briggs, 164 Mass. 561. (Mass.), 539 ; Mormon Church Case, Compare Teele v. Bishop of Derry, 168 136 U. S. 1 , 51 ; White v. White (1893), Mass. 341. 2 Ch. 41 ; 2 Perry on Trusts, §§723- <^ Doyle v. Whalen, 87 Me. 414; 728; Bispham's Priu. Eq. §§ 128, 129. Howard v. Amer. Peace Soc, 49 Me. 2 Mayor of Lyons v. Advocate Gen- 288, 302; Adams Female Academy v. eral of Bengal, L. R. 1 App. Cas. 91 ; Adams, 65 N. H. 225; Brown o. Con- Iroiimcingers' Co. v. Atty.-Gen., 10 CI. cord, 33 N. H. 285, 296 ; Burr v. Smith, & Pin. 908. 7 Vt. 241 ; Hayden v. Conn. Hospital, 3 Foiitain v. Eavenel, 17 How. 64 Conn. 320; Kelly u. Nichols, 18 (U. S.) 369. R. I. 62. * The Late Corp. of The Church of ■" Trustees v. Jackson Square Church, Jesus Christ of Latter Day Saints v. 84 Md. 173; Halsey v. Convent P. E. United States, 136 U. S. 1, 150 U. S. Church, 75 Md. 275: Provost of Dum- 145 ; Lorings u.. Marsh, 6 Wall. (U. S.), fries v. Abercrombie, 46 Md. 172 ; Bap- 337; Hopkins . 1 Perry on Trusts, § 135; Hill on ^ See following notes, to the discus- Trustees, 96 ; Sngden, V. & P. 703. sion of each of these requisites But there are a few decisions in which ' See § 360, infra. the opposite view has been taken upon * Botsford V. Burr, 2 Johns. Ch. this particular point. See Follansbe v. (N. Y.) 405, 408; Kinimel v. Smith, Kilbreth, 1 7 111. 522 ; Chastain «. Smith, 508 ESTATES IN REAL PROPERTY. So, when the owner of the money advances it as a loan to the other party, and does not deal with it as his own purchase money, no resulting trust can arise. ^ If in instances like those last mentioned any trust at all exist, it must arise as an express trust from the agreement of the parties ; and must, therefore, be manifested and proved in writing as required by the Statute of Frauds.^ § 355. Trust must result -when Purchase is made. — Such a resulting trust must arise, if at all, at the time when the purchase is made; and all of the consideration, upon the payment of which it is sought to be based, must have been advanced or secured at or before the time of such purchase.^ A payment made after the conveyance, and as a distinct trans- action, can not impliedly raise a trust. A purchaser's interest in real property, having once vested absolutely and free from any trust, can not be cut down, and he can not be placed in a fiduciary position in regard to it, merely by the subsequent payment of value to him.* 30 Ga. 96 ; Hidden v. Jordan, 21 Cal. 92; Vallette v. Tedens, 122 111. 607; Bryan v. McNaughton, 38 Kan. 98. 1 Bartlett v. Pickersgill, 1 Eden, 515, 1 Cox, 15; Crop v. Norton, 9 Mod. 233; Aveling o. Knipe, 19 Ves. 441, 445 ; White v. Carpenter, 2 Paige (N. Y.), 217; Wheeler v. Kirtland, 23 N. J. Eq. 13, 22 ; Kegerreis w. Lutz, 187 Pa. St. 252; Jacksonville Bank v. Beesley, 159 111. 120, 125; Milliken v. Ham, 36 Ind. 166; Beecher v. Wilson & Co., 84 Va. 813; Hodges v. Verner, 100 Ala. 612; Gibson ». Toole, 40 Miss. 788. " On the other hand, if one should advance the purchase money and take the title to himself, but should do this wholly on the account and credit of the other, he would hold the estate upon a resulting trust for the other. And if partly on the account and credit of another, he would hold as trustee pro tanto." 1 Perry on Trusts, & 133 and cases cited, especially Ave- ling k. Knipe, 19 Ves. 441 ; Lounsbury I'. Purdy, 18 N. Y. 515; Marvin v. Brooks, 94 N. Y. 71. But where a pur- chase is made on the credit of two per- sons, and the money is paid by only one of them, there is no resulting trust. Brooks V. Fowle, 14 N. H. 248 ; Walsh V. McBride, 72 Md. 45. See Butler o. Rutledge, 2 Cold. (Tenn.) 4. 2 Gibson v. Foote, 40 Miss. 788, 792 ; Kingsbury v. Burnside, 58 111. 310, 328 ; Farnham v. Clements, 51 Me. 426 ; Dyer v. Dyer, 1 Lead. Cas. Eq. pp. * 203, * 216. But see Harrold v. Lane, 53 Pa. St. 268; Hall u. Congdon, 56 N. H. 279 ; Brotherton v. Weathersby, 73 Tex. 471 ; Robbius v. Kimball, 55 Ark. 414. « Dusie V. Ford, 138 U. S. 587, 592 ; Ryder v. Loomis, 161 Mass. 161 ; Champlin v. Champlin, 136 111. 309 ; Osgood V. Eaton ; 62 N. H. 512 ; Collins V. Carson, 30 Atl. Rep. (N.J. Eq.) 862 ; Levy V. Evans, 57 Fed. Rep. 677 ; Moore V. Moore, 74 Miss 59 ; 1 Perry on Trusts, §133. * Cases cited in last note. But if the note of the purchaser be agreed on when the deed passe«, and be delivered the next day, or soon after, under such cir- cumstances that it can be treated as a part of the transaction of purchasing the land, it will be sufficient to raise a re- sulting trust. See Kliue v. McDonnell, 62 Hun (N. Y.), 177. EQUITABLE ESTATES. — RESULTING TRUSTS. 509 § 356. All, or Aliquot Part, of Purchase Price must be paid. — Again, the payment must be of the whole or some definite or aliquot part of the purchase price. And it must be paid as the price of the whole or of that particular part of the property purchased. ^ In a number of cases, the courts have declared that no trust will result from the payment of pur- chase money, unless the entire price is advanced by him who claims to be cestui que trust.^ But it seems to be clear that this means the entire price of that which he means to pur- chase, whether it be a whole tract of land or a distinctly specified but undivided portion of such tract. ^ Thus, if A pay $10,000 as the entire consideration for an acre of land which is deeded to B, and $5,000 as the entire consideration for one-half of another acre which is deeded to C upon his paying $5,000 for the other half, B takes the one acre wholly in trust for A, and C holds an undivided one-half of the other acre in trust for A.* But if A hand to B $5,000 with which to purchase for A a lot of land, whether specified or not, and B, purchase the land for $10,000, or any amount over $5,000, paying the additional consideration out of his own funds, then, according to the great weight of authority, no trust arises in favor of A.^ In the case last supposed, A may have a lien on the land for the $5,000 of his money which went into the purchase price ;^ but, since that sum was not advanced for the aliquot part of the land which it purchased, he is not a cestui que trust of any portion of the land. But in Pennsyl- vania, and possibly a few other jurisdictions, a trust may result in favor of any one whose funds pay for any aliquot 1 Sayre v. Townsend, 15 Wend. ing notes. Also McGowan u. McGowan, (N. Y.) 647; Burke v. Callanan, 160 14 Gray (Mass.), 119; Buck y. Warren, Mass. 195; Baker «. Vining, 30 Me. 14 Gray (Mass.), 122; Cutler u. Tuttle, 121,127; Dudley K. Baohelder, 53 Me. 19 N. J. Eq. 549, 561; 1 Perry on 403 ; O'Donnell v. White, 18 R. I. 659 ; Trusts, § 132. Wheeler v. Kirtland, 23 N. J. Eq. 13 ; * Cases cited in last three preceding 22 ; Reed v. Reed, 135 111. 482 ; Stephen- notes. son V. McClintock, 141 111. 604; Rey- ^ Schierloh .;. Schierloh, 148 N. Y. nolds 0. Morris, 17 Ohio St. 510; Olcott 103 ; Dudley v. Dudley, 176 Mass. 34 ; w.Bynum, 17 Wall. (U. S.) 44; Allen u. 1 Perry on Trusts, § 132, and cases Caylor, 120 Ala. 251. cited. 2 Dudley v. Dudley, 176 Mass. 34 Schierloh v. Schierloh, 148 N. Y. 103 Bryant v. Allen, 54 N. Y. App. Div. 500 6 Schierloh v. Schierloh, 148 N. Y. 103; Bryant v. Allen, 54 N. Y. App. Div. 500 ; Coleman v. Parran, 43 W. Va. Coleman i>. Parran, 43 W. Va. 737. See 737 ; Woodside v. Hewell, 109 Cal Woodsidew. Hewell, 109 Cal. 481. 481. ' See cases cited in last two preced- 510 ESTATES IN REAL PROPERTY. part of land, although they were not advanced for that part, or were used without his knowledge or consent. ^ It follows, from the principles already explained, that, when the purchase money is ratably contributed by several, and the title taken in the name of one of them, or to a stranger, a trust results to them in proportion to the amount advanced by each.^ And in some cases, where there was no clear proof of how much was paid by each, it has been presumed that their contributions were equal.^ So, if the payment be made by one, or ratably by two or more, and the title be taken by them and others, or entirely by others who pay nothing, trusts result proportionately for those who make the payments.* § 357. Proof of Such Trusts. — Trusts of this character may be established by any kind of competent evidence, oral or written.^ But the requisites here explained must be clearly proved as facts, or no such presumption will bo indulged. When the evidence is conflicting or uncertain, no trust will be declared.^ Therefore, while parol evidence is admissible even against the answer in chancery of the nominal pur- 1 Beringer v. Lutz, 188 Pa. St. 364 ; Kennedy v. McCloskey, 170 Pa. St. .534. And see Eouchefoucauld v. Boustead (1897), 1 Ch. 196, 206, which partly overrules Bartlett u. Pickersgill, 1 Eden, 515; Price v. Reeves, ,38 Cal. 457 ; Sanfoss i-. Jones, 35 Cal. 481 ; Malloy V. Malloy, 5 Bush (Ky.), 464. 2 Botsford V. Burr, 2 Johns. Ch. (N. y.) 405, 410; Union College c^. Wheeler, 59 Barb. (N. Y.) 585; War- ren V. Tynan, 54 N. J. Eq. 402 ; Morey V. Herrick, 18 Pa. St. 123, 129 ; Kelly i,-. Kelly, 126 111. 550; Hughes v. White, 117 Ind. 470; Case v. Cod- ding, 38 Cal. 191, 193 ; Fulton v. Jansen, 99 Cal. 587 ; 1 Perry on Trusts, § 132 ; Hill on Trustees, 149. But Lord Hard- wicke thought that probably the appli- cation of the rule was restricted to a single purchaser. Crop <,-. Norton, 9 Mod. 233. And such were the deci- sions of a few early cases. See Bernard y. Bougard, Harr. Ch. (Mich.) 130, 143 ; Coppage V. Barnett, 34 Miss. 621. * Shoemaker c. Smith, 11 Humph. (Tenn.) 81 ; Edwards v. Edwards, 39 Pa. St. 369, 386. 4 Rigden v. Walker, 3 Atk. 731, 735 ; Botsford 0. Burr, 2 Johns. Ch. (N. Y.) 405 ; Quackenbush v. Leonard, 9 Paige (N. Y.), 334; Jackson v. Moore, 6 Cow. (N. Y.) 706 ; Buck v. Swazey. 35 Me. 41 ; Purdy V. Purdy, 3 Md. Ch. 547 ; Hall u. Young, 37 N. H. 134 ; Clark v. Clark, 43 Vt. 685 ; Case v. Codding, 38 Cal. 191. ^ Such trusts are expressly excepted out of the Statute of Frauds, 29 Car. II. ch. 3, § 8. It is clear that this was sim- ply in affirmance of the general law; and, since the statutes of frauds of our states do not include implied trusts, they may be established by parol. See Judge Story's opinion in Hoxie v. Carr, 1 Sumn. (U. S. Cir. Ct.) 173, 187; Mc- Guire v. Ramsey, 4 Eng. (Ark.) 51 8, 525. 6 Oyster v. Albright, 140 U. S. 493, 515; Howland v. Blake, 97 U. S. 624; Boyd V. McLean, 1 Johns. Ch. (N. Y.) 582; Beringer v. Lutz, 179 Pa. St. 1; Martin w. Baird, 175 Pa. St. 540; Baker V. Vining, 30 Me. 121, 127 ; McGinnis v. Jacobs, 147 111. 24; Jacksonville Nat. Bk. !>. Beesley, 159 111. 120; Pillars u. McConnell, 141 Ind 670; Reedy. Pain- ter, 129 Mo. 674; Woodside v. Hewell, 109 Cal. 481 ; 1 Perry on Trusts, § 137. EQUITABLE ESTATES. — RESULTING TRUSTS. 511 chaser, or against the express statements of the deed to him, the testimony to raise a trust against him in such a case must be very clear and strong. ^ The presumption that the parties intended a trust to arise from the payment of pur- chase money is always rebuttable ; and circumstances which show that such was not their intention may also he established by oral testimony as well as by written evidence.^ Some of the most important of such circumstances remain to be discussed. § 358. Title taken in Name of Child or Wife. — When the one who pays the purchase price is the husband or father of the nominal purchaser, or stands in loco parentis to him, equity presumes that the payment is a gift to the wife, or an advance- ment to the child, as the case may be ; and therefore no trust ordinarily results from such a transaction.^ The relation between the parties precludes the presumption of a resulting trust, because it is a fair and proper inference that the hus- band or person standing in the position of parent intends by his purchase to perform the legal or moral obligation of sup- port and maintenance which arises from the relationship.* This clear exception to the general rule as to resulting trusts thus arises from and rests upon the obligation of hus- band or parent. Therefore, the general rule, and not the exception, applies when one brother, for example, pays for property conveyed to another; and a resulting trust arises,^ unless circumstances are proved to have placed him who so pays the consideration in substantially the position of a parent to care for and support his brother.^ So, if the father 1, Boyd V. Mcteaa, 1 .Tohns. Ch (N. Y.) 582 ; Page v. Page, 8 N. H 187 ; Moore «. Moore, 38 N. H. 382 Silliman v. Haas, 151 Pa. St. 52, 63 Curd u. Browu, 49 S. W. Rep. 990 Pinneyi;. Fellows, 15 Vt. 525; Peabody V. Tarbell, 2 Cush. (Mass.) 226, 232 Neyland v. Benby, 69 Tex. 711. 2 Zimmerman y. Barber, 176 Pa. St. 1 Swinburne v. Swinburne, 28 N. Y. 568 Blodget «. Hildreth, 103 Mass. 484, 487 ; Bush o. Stanley, 122 111. 406 Courtenay, 13 Beav. 96 ; Page v. Page, 8 N. H. 187 ; Partridge v. Havens, 10 Paige (N. Y.), 618; Kern v. Howell, 180 Pa. St. 315 ; Hallenbaek v. Rogers, 57 N. J. Eq. 199 ; Doyle v. Sleeper, 1 Dana (Ky.), 531, 536; Olipant u. Leversidge, 142 111. 160; 1 Perry on Trusts, §§ 143-149 ; Bispham's Prin. Eq. § 84 ; Hill on Trustees, 97. * Dyer v. Dyer, 2 Cox, 92 ; Long v. King, 117 Ala. 423; Smithsonian Insti- tution V. Meech, 169 U. S. 398 ; Walstou Salisbury v. Clarke, 61 Vt. 4.53 ; Kline v. Smith, 70 Vt. 19. V. Ragland, 47 Ark. Ill; Bispham's ^ Maddison «. Andrews, 1 Ves. Sr Prin. Eq. § 83. 57 ; Edwards u. Edwards, 39 Pa. St. 3 Murless v. Franklin, 1 Swanst. 13, 369. 17 ; Grey v. Grey, 2 Swanst. 594, 597 ; " Bosworth v. Hopkins, 85 Wis. 50. Dyer t. Dyer, 2 Cox, 93 ; Christy v. 512 ESTATES IN REAL PROPERTY. be living and able to support the child, a trust will result in favor of the mother who pays for property bought in the child's name. But when the father is dead, or for any other reason the support of the child has devolved upon the mother, her purchase of land for him is presumed to be an advancement.! 3y ^f^g weight of authority, also, a pur- chase in the name of an illegitimate child is "prima facie an advancement, and raises no trust. ^ And the prevailing view is now in favor of the same conclusion, when realty is bought by a parent in the joint names of himself and a child or children.^ § 359. Circumstances ■which may rebnt these Ordinary Pre- sumptions. — The relationships of husband and wife and parent and child supply most of the cases in which trusts do not arise from tlie purchase of property by one person in the name of another ; and such cases are commonly said to make the ex- ception to the general rule. But it must be remembered that all resulting trusts rest upon rebuttable presumption, and that therefore other circumstances may frequently be proved to show that no trust should exist. When, for example, the con- veyance is made to some one other than the real purchaser in order to hinder creditors, or to defeat their rights, or for any other illegal or unfair purpose, equity will decline to enforce for the wrong-doer the trust which would otherwise exist.* And when the parties expressly stipulate that the payment is a gift to the nominal purchaser,^ or a loan to him ; ^ or a differ- erent trust is expressly declared in writing,' or it is agreed 1 Currant v. Jago, 1 CoU. C. C. 261, 3 Ind. 558 ; Batstone v. Salter, L. R. 10 263 ; Lamplugh v. Lamplugh, 1 P. Wms. Ch. App. 431. Ill ; Jackson ii. Feller, 2 Wend. (N.Y.) < proseus v. Mclntyre, 5 Barb. 465 ; Robert's Appeal, 85 Pa. St. 84. (N. Y.) 424, 425 ; Ford u. Lewis, 10 2 Beckford a. Beckford, Loft. 490; B. Mon. (Ky.) 127; Sell b. West, 125 Soar V. Foster, 4 Kay & J. 152 ; Kimmel Mo. 621 ; Hubbard v. Goodwin, 3 Leigh r. McRiglit, 2 Barr (Pa.), 38. But not (Va.), 492; Zundell o. Gess, 73 Tex. to the illegitimate child of a legitimate 144 ; Cutler v. Tuttle, 19 N. J. Eq. 549, child. Tucker v. Burrow, 2 Hem. & M. 562. 515, 525. 6 Groves o. Groves, 3 Y. & J. 163, 8 Grey v. Grey, 2 Swanst. 594, 599 ; 172 ; Hunt v. Moore, 6 Cush. (Mass.) 1 ; Williams u. Williams, 32 Beav. 370; Robles u. Clark, 25 Cal. 317; Zimmer- Kingdon v. Bridges, 2 Vern. 67. See man «. Barber, 176 Pa. St. I ; Ward v. also, as to other relationships, wliere War(i, 59 Conn. 188; Morris u. Clare, one nevertheless has stood in locoparen- 132 Mo. 232, 236. iis to the other, Ebrand v. Dancer, ^ See § 354, si{pra, 1 Cas. in Chan. 26; Richardson v. ' Anstice u. Brown, 6 Paige (N. Y.), Seevers, 84 Va. 259 ; Baker v. Leathers, 448 ; Clark v. Burnham, 2 Story (U. S. EQUITABLE ESTATES. — RESULTING TRUSTS. 513 that he shall receive from the property something inconsistent with a trust,^ the court will of course refuse to raise any trust by implication.^ Similarly, the presumption of an advancement or a gift to wife or child may be readily overcome by clear evidence to show the court that a trust should exist.^ Thus, a convey- ance to a wife for the purpose of defrauding creditors of the husband, who pays the consideration, will raise a trust in favor of those creditors.* Payment for property taken by a child will not be an advancement, if it be understood that he shall hold it for the parent who makes the payment.^ And where a husband paid for land, which he caused to be conveyed to his wife upon her agreeing orally that at her death she would devise it to the Smithsonian Institution in Washington, it was held after her death intestate, and upon clear proof of the facts, that her heirs had the legal estate in the land in trust for that institution.^ § 360. statutory Abolition of this Resulting Trust. — In a few of the United States, where express trusts are much curtailed by statute, the perfecting of the general legislative scheme has required the abolition of the form of resulting trust now under consideration. For where, as for example in New York, a passive express trust in real property is no longer permitted, the policy of the statute could otherwise be evaded by having no trust whatever declared by the parties, but letting equity raise a resulting trust (which is passive in its nature) upon the purchase price being paid by the intended cestui que trust and the con- veyance being taken in the name of the intended trustee. Hence this form of trust, as a secret resulting trust, has been Cir. Ct.),l; Alexander ». Warrance, 1 7 Va. 352 ; 1 Perry on Trusts, §§ 145-147 ; Mo. 228, 230. Bispham's Prin. Eq. § 84. 1 Dow y. Jewell, 21 N. H. 470. * Belford v. Crane, 16 N. J. Eq. 265 ; ^ See also Willis v. Willis, 2 Atk. 7! ; Adams v. Collier, 122 U. S. 382, 391 ; Farrell v. Lloyd, 69 Pa. St. 239, 247 ; McCartney v. Bostwick, 32 N. Y. 53 j Salisbury v. Clarke, 61 Vt. 453 ; Bush Pierce v. Hower, 142 Ind. 626 ; Cleghorn V. Stanley, 122 III. 406 ; Kline v. Rag- v. Oberualte, 53 Neb. 687 ; Smith v. land, 47 Ark. Ill; 1 Perry on Trusts, Willard, 174 111. 538; 1 Perry on § 140. Trusts, § 149. ' Dyer v. Dyer, 2 Cox, 92 ; In re ^ Devoy v. Devoy, 3 Sm. & Gil. 403 ; Whitehouse, L. R. 37 Ch. Div. 683, Stone v. Stone, 3 Jur. (n. s.) 708. 685 ; Jackson v. Matsdorf, 11 Johns. ^ Smithsonian Institution v. Meech, (N. Y.) 91 ; Jaquith v. Mass. Bap. Con- 169 U. S. 398 ; Jaquith v. Mass. Bap. vention, 172 Mass. 439; Shepherd w. Convention, 172 Ma-ss. 439; HoUenback White, 10 Tex. 72 ; Bruce v. Slemp, 82 u. Rogers, 57 N. J. Eq. 199. S3 514 ESTATES IN EEAL PROPERTY. done away with by the statutes of New York,^ (a) Massa- chusetts,^ Michigan,^ Wisconsin,* Illinois,^ Kansas,^ In- (n) This New York statute was originally 1 R. S. 728, §§ 51-53. With the sentences somewhat transposed and altered, but without change of meaninof, it is now Real Property Law (L. 1896, ch. 547), § 74, and reads as follows : " A grant of real property for a valuable consideration, to one person, the consideration being paid by another, is presumed fraudulent as against the creditors, at that time, of the person paying the considera- tion, and, unless a fraudulent intent is disproved, a trust results in favor of such creditors, to an extent necessary to satisfy their just demands; but the title vests in the grantee, and no use or trust results from the payment to the person paying the consideration, or in his favor, unless the grantee, either, 1. Takes the same as an absolute conveyance, in his own name, without the consent or knowledge of the person paying the consideration, or, 2. In violation of some trust, purchases the property so conveyed with money or property belonging to another." This statute saves the rights of creditors of the actual purchaser, and compels him to be just before he is generous. It appears at first sight to do away with all possibility of a resulting trust for his benefit, except where the purchase is made with his funds, in violation of some trust, or without his consent or knowledge. But, whenever A takes title to land for which B pays the consideration, and subsequently, in violation of the express or tacit understanding between the parties at the time of the purchase, A at- tempts to hold the property for his own benefit, or otherwise to ignore B's moral rights, the courts, because of the attempted fraud, at once raise, against A, a trust which is in reality constructive (growing as it does out of fraud) and therefore not within the letter or spirit of the statute. ' " It seems to be a well-settled rule of law in this state," says Tan Brunt, P. J., " that, unless it appears that the person paying the consideration has consented to an unconditional and absolute conveyance of the property to another, without any recognition or intimation in respect to his rights, the statute in question will not protect the attempted fraud; and it is further held that no presumption can be indulged to support such a defence." Church of St. Stanislaus v. Algeraeine Verein, 31 App. Div. 138, affirmed without opinion in 164 N. Y. 606. In that case, the plaintiff, a church society which was not incorporated, took title to land in the name of the de- fendant; and after the church's incorporation demanded a conveyance to itself. The defendant having refused to convey, the action was brought, with the result that the conveyance was decreed. And, besides the above-quoted statement. Presiding Justice Van Brunt facetiously remarked that the statute was not intended to enable one church organization to de- fraud another. In the earlier case of Jeremiah v. Pitcher, 26 App. Div. 402, affirmed without opinion in 163 N. Y. 574, a real estate dealer, desir- l N. Y. L. 1896, ch. 547, § 74. Connolly v. Keating, 102 Mich. 1 ; Tif- ' Foster v. Durant, 2 Gray (Mass.), fany v. Tiffany, 110 Mich. 219. 538; Glidewell v. Spaugh, 26 lad. * Bosworth d. Hopkins, 85 Wis. 50 ; 319. Strong v. Gordon, 96 Wis 476. 3 McCreary v. McCreary, 90 Mich. ^ Pope v. Dapray, 176 111. 478. 478; Barnes v. Muuro, 95 Mich. 612; 8 Qee v. Thrailkill, 45 Kan. 173. EQUITABLE ESTATES. — RESULTING TRUSTS. 515 diana,^ Minnesota,^ Kentucky,^ California,* and perhaps some other states.^ But exceptions are expressly made by these statutes in favor of those who are creditors of the real purchaser at the time of the purchase ; and also in favor of such purchaser himself, when without his knowledge or consent his funds are used in buying property in the name of the nominal purchaser.^ The courts, moreover, generally restrict the operation of such statutes to what would otherwise be secret trusts, — to cases iii which one person knowingly and ing to trade in land free from the dower right of his wife, who was insane, purchased it in the name of his daughter, who orally agreed to convey it to him, or according to his directions, upon his demand. The plan was suc- cessful in preventing any dower right from attaching to the property. Phelps 21. Phelps, 14.3 N. Y. 197. But, in the action brought to establish a trust in his favor, it was held that the property was his and the daughter could not hold it to the exclusion of him, the real purchaser. To the same effect are Smith v. Balcom, 24 App. Div. 437, 441; Schultze v. Mayor, 103 N. Y. 307, 311; Wood v. Rabe, 96 N. Y. 414; Fairchild v. Fairchild, 64 N. Y. 471; Robbins v. Robbins, 89 N. Y. 251; Bitter v. Jones, 28 Hun, 492 ; Gage v. Gage, 83 Hun, 362; Bullenkainp i'. BuUenkamp, 54 N. Y. Supp. 482. Thus, while the primary and original purpose of this section of the New York Statutes of Uses and Trusts was to prevent the indirect creation and existence of what would be in effect passive express trusts, the courts have thrown the safeguard of a wise construction around it, and so prevent it from becoming an instrument of fraud or injustice. They also raise a trust, notwithstanding the statute, where it appears, from the instrument of conveyance, or from some other instrument, or from clear and explicit evidence, that such was the intention of the par- ties, — cases in which the transaction is relieved from the effects of a secret trust. Woerz v. Rademacher, 120 N. Y. 62. See the text further, as to such statutes. Also Schierloh v. Schierloh, 148 N. Y. 103 ; Bork v. Mar- tin, 132 N. Y. 280 ; Niver v. Crane, 98 N. Y. 40 ; Reitz v. Reitz. 80 N. Y. 538; Brown v. Cherry, 57 N. Y. 645; Marvin v. Marvin, 53 N. Y. 607 Everett v. Everett, 48 N. Y. 218 ; Foote v. Bryant, 47 N. Y. 544, .548 McCartney v. Bostwick, 32 N. Y. 53 ; Siemon v. Schurck, 29 N. Y. 598 Lounsbury v. Purdy, 18 N. Y. 515; Gilbert v. Gilbert, 2 Abb. Ct. App Dec. 256 ; McCahill v. MoCahill, 71 Hun, 221 ; Hubbard v. Gilbert, 25 Hun, 596; Sayre u. Townsend, 15 Wend. 617, 649; Russell v. Allen, 10 Paige, 249; Brewster v. Power, 10 Paige, 562; Bodine v. Edwards, 10 Paige, 504 ; Tracy v. Tracy, 3 Bradf. 57. The rights of creditors of the real purchaser, in such cases, are discfissed in connection with constructive trusts, §400, infra. 1 Toney v. Wondling, 138 Ind. 228 GHdewell v. Spaugh, 26 Ind. 319, 2 Durfee v. Pavitt, 14 Minn. 424 Haaren u. Hoass, 60 Minn. 313. " Martin v. Martin, 5 Bush (Ky.),47 * Smith V. Mason, 122 Cal. 426. 5 See Graham v. Selbie, 8 S. D. 604 ; Brock V. Brock, 90 Ala. 86 ; Ward u. Ward, 59 Conn. 188 ; Harris w. Dough- erty, 74 Tex. 1. Watt V. Watt, 39 S. W. Kep. (Ky.) 48. 6 See last preceding eleven notes. 516 ESTATES IN EEAL PROPERTY. intentionally purchases property in the name of another, who is guilty of no fraud, and who takes and holds the legal estate in th,e manner intended by the parties.^ The letter of the statute is not permitted to be used as an instrument of fraud. ^ Thus, where such statutes exist, if A intentionally buy land in the name of B, there is no dower or curtesy right in such land for the wife or husband of A,^ and subsequent creditors or purchasers of A can not reach it, because A has no estate in it, either legal or equitable ; * but the creditors of A, who are such at the time of A's purchase, may reach it in equity as held by B in trust for the payment of their claims.^ But if the purchase in B"s name be intended for the benefit of a partnership of which he is a member,® or if when he takes the title B agree even orally to convey it to A, the real purchaser, upon A's demand, the statute can not be invoked to enable B to appropriate the property to his own use and thus to defeat the rights of A, or those of the partnership, as the case may be.'' In such cases, notwithstanding the letter of the statute, the coui'ts raise what is technically a construc- tive trust (since it is implied regardless of B's intention), and thus prevent the perpetration of a fraud. ^ Of course, in states which have such statutes, all purchases by parents or husbands in the names of wives or children come within the general rule of the statutes, and do not have to be treated as exceptions — the nominal purchasers are the actual owners. 1 McArtliur v. Gordon, 126 N. Y. Super. Ct. 116; Linsley v. Sinclair, 24 597; Smith v. Balcom, 24 N. Y. App. Mich. 380. Div. 437, 441; Gage v. Gage, 83 Hun ^ See the wording of the statutes (N. Y.), 362; Bullenkainp v. BuUen- themselves. Isamp, 54 N. Y. Supp. 482 ; Pope v. B Fairchild u. Fairchild, 64 N. Y. Dapray, 176 111. 478, 484. 471. See Moore v. Williams, 55 N. Y. 2 Church of St. Stanislaus v. Alge- Super. Ct. 116; Greenwood v. Marvin, nieine Verein, 31 N. Y. App. Div. 133, 111 N. Y. 423; Traphagen v. Burt, 67 aff'd 164 N.Y. 606; Schnitzel). Mayor, N. Y. 30; Chester v. Dickerson, 54 103 N. Y. 307, 311 ; Woerz v. Kade- N. Y. 1 ; Levy v. Brush, 45 N. Y. 589. macher, 120 N. Y. 62 ; Wood v. Rahe, ' Church of St. Stanislaus i'. Alge- 96 N. Y. 414; Bitter v. Jones, 28 Huu meine Verein, 31 N. Y. App. Div. 133, (N. Y.), 492; Smith v. Balcom, 24 aff'd 164 N. Y. 606; Smith v. Balcom, N. Y. App. Div. 437, 441 ; Jeremiah v. 24 N. Y. App. Div. 437 ; Jeremiah v. Pitcher, 26 N. Y. App. Div. 402, aff'd Pitcher, 26 N. Y. App. Div. 402, aff'd 163 N. Y. 574; Pope v. Dapray, 176 163N. Y. 574; Wood «. Rabe, 96 N. Y. 111. 478, 484 ; Smith v. Mason, 122 Cal. 414, 425 ; Schultze v. Mayor, 103 N. Y. 426. 307,311. " Phelps V. Phelps, 143 N. Y. 197. « See discussion of constructive * Ibid. ; Moore v. Williams, 55 N. Y. trusts arising from fraud or attempted fraud, § 395, infra. EQUITABLE ESTATES. — RESULTING TRUSTS. 617 /8. Following Trust Funds. § 361. Trusts resulting from Purchase of Property with Trust Funds. — The equitable principle, on which depends the kind of resulting trust already discussed, is that he whose funds pay the price should be the owner of the property purchased. The second form of resulting trust rests upon the same prin- ciple; and is, in the last analysis, a subdivision of the first. It is the class of cases in which a trustee, or other person who holds funds in a fiduciary capacity, purchases property with them and takes the title in his own name. The essence of such a transaction is that the cestui que trust, the real owner of the funds employed, pays the consideration for the prop- erty, and the title is taken in the name of the other, the fiduciary party. ^ The nominal purchaser is accordingly pre- sumed to have intended to purchase the property for the benefit of the trust estate ; and a trust results in favor of the real purchaser, the owner of the purchase price. ^ Trust funds may thus be followed into any property into which they have been converted or invested by fiduciary holders.^ It is be- cause of the importance of the doctrine of " following trust funds " that this second group of resulting trusts, though really a subdivision of the first, is separately discussed. And that doctrine, tersely stated, is that a cestui que trust, or other person whose funds have been in the hands of a fiduciary holder, can follow them and appropriate to himself the prop- erty into which they have been changed, together with the increased value of such property, provided such trust funds can be clearly ascertained, traced, and identified, and the rights of an innocent purchaser for value without notice have not intervened.* The requisites here, which demand 1 Gale V. Harby, 20 Fla. 171; 1 U.S. .50; Farmers' and Mechanics' Bk. Perry on Trusts, § 127. v. King, 57 Pa. St. 202; Standish u. 2 "The right has its basis in the Babcocic, 52 N. J. Eq. 628; Prestoi, right of property, and the court pro- u. Preston, 202 Pa. St. 515; Barnes w. ceeds on the principle that the title has Timet, 116 Iowa, 359; In re Hallett'i not been affected by the change made Estate, L. R. 13 Ch. Div. 696. of the trust fund.s." Peclcham, J., in ^ Holmes v. Oilman, 138 N. Y. 369, Holmes w. Oilman, 138 N. y. 369. And Nat. Bk. v. Ins. Co., 104 U.S. Si; 1 see American Sugar Refining Co. u. Perry on Trusts, § 127. Fancher, 145 N. Y. 552 ; Converse v. * Cases cited in last two preceding Sickles, 146 N. Y. 200; Union Stock notes; Turnerr Sawyer, 1 50 U. S. 578 Yards Bk. v. Gillespie, 137 U. S. 411 ; Riddle ;.'. Whitehouse, 135 U. S. 621 Comm. Bk. of Pa. v. Armstrong, 148 Warren v. Union Bank, 157 N. Y. 259 518 ESTATES IN REAL PROPERTY. discussion, are that the funds shall have been expended or disposed of by one who held them in a fiduciary capacity, that they can be traced and identified, and that the property sought to be taken has not come into the hands of an inno- cent purchaser for value without notice of the rights of the claimant. § 362. Property held in Fiduciary Capacity. — It may be stated generally that, for the- purpose of implying a trust of this kind, courts of equity will treat the relation as fiduciary wherever one person holds money or other prop- erty which ex equo et hono should be handed over to another, or held, or used for his benefit. Illustrations of persons oc- cupying such positions are trustees,^ executors or administra- tions,^ guardians,^ directors or trustees of a corporation,* the committee of a lunatic,^ an agent entrusted with money or other property of his principal to hold or disburse,® a hus- band who employs his wife's funds in the purchase of land,^ and parents, partners, or co-tenants of whom one or more expend money belonging to the others or to all together. ^ So, Darrow v. Calkins, 154 N. Y. 503; Roca V. Byrne, 145 N. Y. 182 ; Hatch V. National Bk., 147 N. Y. 185 ; Cole v. Cole, 54 N. Y. App. Div. 37 ; Little ■V. Chadwick, 151 Mass. 109; Kennedy V. McCloskey, 170 Pa. St. 354 ; Jones v. Elkins, 143 Mo. 647 ; Kintner v. Jones, 122 Ind. 148 ; Moore v. Hamerstag, 109 Cal. 122; Story's Eq. Jnr. §§ 1258, 1259 ; Bispham's Prin. Eq. § 86. 1 Oliver v. Piatt, 3 How. (U. S.) 333, 401; Day v. Roth, 18 N. Y. 448; McLarren v. Brewer, 51 Me. 402 ; Lathrop v. Gilbert, 10 N. J. Eq. 344 ; Standish v. Babcock, 52 N. J. Eq. 628 ; Mc Arthur v. Robinson, 104 Mich. 540; Harrisburg Bk. v. Tyler, 3 Watts & S. (Pa.) 373 ; Pugh v. Pugh, 9 Ind. 132. 2 Buck V. Uhrich, 16 Pa. St. 499; Claussen v. Le Franz, 1 Clarke (Ga.), 226 ; Dodge v. Cole, 97 111. 338 : Phil- lips !'. Overfield, 100 Mo. 466 ; Harper v. Archer, 28 Miss. 212. * Schlaeter v. Corson, 52 Barb. (N. Y.) 510; Bancroft v. Conseu, 13 Allen (Mass.), 50; Durling v. Hammar, 20 N. J. Eq. 220 ; Turner v. Petigrew, 6 Humph. (Tenn.) 438; Hughes v. White, 117 Ind. 470; Alspaugh u. Adama, 80 Ga. 345. * Church V. Sterling, 16 Conn. 388; Palmetto Lumber Co. v. Risley, 25 S. C. 309 ; Church V. Wood, 5 Hamm. (Ohio) 283. 6 Reid V. Fitch, U Barb. (N. Y.) 399; Hammett's Appeal, 72 Pa. St. 337. 6 Day V. Roth, 18 N. Y. 448; Bank V. King, 57 Pa. St. 202 ; Church v. Ster- ling, 16 Conn. 388; Wynn v. Sharer, 23 Ind. 573. ' Methodist Church ». Jaques, 1 Johns. Ch. (N. Y.) 450, 3 Johns. Ch. (N. Y.) 77 ; Dickenson v. Codwise, 1 Sandf. Ch. (N. Y.) 214; Barron v. Bar- ron, 24 Vt. 375 ; Lathrop v. Gilbert, 10 N. J. Eq. 344 ; Jones v. Elkins, 143 Mo. 647. 8 Robinson v. Robinson, 22 Iowa, 427; Paige v. Paige, 71 Iowa, 318; Eastham v. Roundtree, 56 Tex. 110; Robarts v. Haley, 65 Cal. 397, 402; Rector v. Gibbon, 111 U. S. 276, 291; Monroe Cattle Co. v. Becker, 147 TJ. S. 47 ; Kennedy v. McCloskey, 170 Pa. St. 354; Virginia Coal Co. v. Kelly, 93 Va. 332 ; Moore v. Hamerstag, 109 Cal. 122 ; Brundy v. Mayfleld, 15 Mont. 201 ; Union Nat. Bk. v. Goetz, 138 111. 127 ; Carley v. Graves, 85 Mich. 483 ; Story's EQUITABLE ESTATES. — RESULTING TRUSTS. 519 a clerk in a bank, and probably one in any ordinary cleri- cal position, who purchases land with his employer's funds, holds it in trust for the employer. i And one who knowingly takes property from a person, who has purchased it with stolen funds, holds it in trust for the rightful owner. ^ But where one, who has property of another, does not hold it in any fiduciary capacity, as, for example, when he is holding ad- versely and treating it as his own with apparent cause, his purchase of realty or other property with it raises no trust. ^ § 363. Property traced and identified. — The principle in- volved in this class of trusts applies, not only to purchases with fiduciary funds, but also to assignments, deposits in bank, etc., — to all cases generally in which the fiduciary holder has disposed of property which can still be identified in the posses- sion of one who is not an innocent holder for value and without notice.* The requirement that it sliall be traced and identified is complied with if it can be found included in some particular property, fund, or account, no matter through how many changes it may have passed in reaching that position.^ When, therefore, a trustee mixes trust money with his own property, as by purchasing land with it and money of his own, and the specific land so purchased is known, he holds the proportion of it, which Eq. Jur. §§ 1258-1359; 1 Perry on 170 N. Y. 195; Coram. Bk. of Pa. t7. Trusts, § 127.' Armstrong, 148 U. S. 50 ; Little v. 1 Bank of Amer. e;. Pollock, 4 Edw. Chadwick, 151 Mass. 109; Farmers' Ch. (N. Y.) 215; Newton u. Porter, 5 and Mechanics' Bk. v. King, 57 Pa. St. Lansing (N. Y), 416; Bassett o. Spof- 202; Ennor v. Hodson, 134 111. 32; ford, 45 N. Y. 387 ; 1 Perry on Trusts, Carley v. Graves, 85 Mich. 483 ; Crum- § 128. rine v. Crumrine, 50 W. Va. 226. Some 2 Matter of Carin v. Gleason, 105 of these cases, and those cited in the N. Y. 262, 303 ; Price v. Brown, 98 other notes on this section, were the N. Y. 388, 395 ; Newton v. Porter, 69 outcome of positive fraud, or fraudulent N. Y. 133 ; Hoffman v. Carrow, 22 misappropriation of trust funds, and Wend. (N. Y.) 285. the trusts raised were therefore con- * Ensley v. Ballentine, 4 Humph. structive ; but they are cited to complete (Tenn.) 233. And see Parsons v. Phe- a general view of the doctrine of "fol- lan, 134 Mass. 109 ; Dana v. Dana, 154 lowing trust funds." Mass. 491 ; Turner v. Sawyer, 150 U. S. , ^ Accordingly, when property to 478; Peterson v. Boswell, 137 Ind. 211 ; which such a trust attaches is sold by a Silvers v. Potter, 48 N. J. Eq. 539 ; sheriff on execution against the holder, Heiskell v. Trout, 31 W. Va. 810. and the money deposited in bank in the * Amer. Sugar Refining Co. v. Fan- sheriff's account, the cestui que trust can cher, 145 N. Y. 552; Roca v. Byrne, follow it and claim the proceeds out of 145 N. Y. 182; Converse y. Sickles, 146 that account. In re Hallett's Estate, N. Y. 200; Warren v. Union Bank, 157 L. R. 13 Ch. Div. 696; Roca v. Byrne, N. Y. 259; Hatch v. National Bk., 145 N. Y. 182, 200; Amer. Sugar Re- 147 N. Y. 184; Matter of Hicks, fining Co. ti. Fancher, 145 N. Y. 552. 620 ESTATES IN REAL PROPERTY. the trust fund so used bears to the entire purchase price, for his cestui que trust, -^ and, if the trustee can not clearly prove how much of his own money was used in the purchase, the cestui que trust may take it all. The doctrine of confusion of goods in effect applies, in such a case as the latter, to the detriment of the trustee.^ This is the rule generally recognized and fol- lowed in both England and America ; although it has been held in a few such instances that the cestui que trust had only a lien upon the land for the amount of his property which was used in its purchase.^ Of course, when all of a piece of prop- erty can be identified as bought with trust funds, it all belongs to the cestui que trust, even though its value may greatly exceed the value of those funds. "The court proceeds on the principle that the title has not been affected by the change of the trust funds, and the cestui que trust has his option to claim the prop- erty and its increased value as representing his original fund."* But when the fiduciary holder has so inextricably mixed the trust property with his own or other persons' funds that it can not be identified in any form, or can only be said to make some unknown part of his general estate, or he has so disposed of it that it can not be found as such in any form, all possibility of 1 Inre Hallett's Estate, L. R. 13 Ch. " Supposing the trust money were one Div. 696 ; Jones v. Elkins, 143 Mo. 647 ; thousand sovereigns, and the trustee Turner v. Sawyer, 150 U. S. 578 ; llec- put them into a bag, and, by mistake, or tor V. Gibbon, 111 U. S. 276 ; Ennor v. accident, or otherwise, dropped a sover- Hodsou, 134 111. 32 ; Carley v. Graves, eign of his own into the bag, could 85 Mich. 483 ; 1 Perry on Trusts, §§ 127, anybody suppose that a judge in equity 128. would find any difficulty in saying that 2 Frith V. Cartland, 34 L. J. Ch. 301 ; the cestui que trust has a right to take Ex parte Dale, L. R. H Ch. Div. 772; one thousand sovereigns out of the In re Hallett's Estate, L. R. 13 Ch. Div. bag." And it is to be added that, not 696 ; People v. City Bk. of Rochester, only could he take the one thousand 96 N. Y. 32 ; Comm. v. McAllister, 28 sovereigns (which even a lieu would Pa. St. 480; McLarren v. Brewer, 51 enable him to do), but if the entire con- Me. 402 ; Sherwood v. Cent. Mich. Sav. tents of the bag had increased in value, Bk., 103 Mich. 109; Hill on Trustees, he could take his proportion of the 148, note. larger mass, which is the advantage * See In re Hallett & Co., Ex parte due to liis trust position. Thus, if the Blane (1894), 2 Q. B. 237 ; Schierlohu. value had doubled, he could take out Schierloh, 148 N. Y. 103; and discus- two thousand sovereigns and the trustee sion in In re Hallett's Estate, L. R. 13 two; while, if he were relegated to the Ch. Div. 696. In the case last cited, in position of a mere lienor, he could take which a trustee converted the property only his original one thousand sover- into cash and deposited it in bank to- eigns (with possibly interest added), gether with some of his own money, aud the other party would own the Sir George Jessel, M. R., said, in pre- residue. senting a strong argument for the rais- * Holmes v. Gilman, 138 N. T. 369. ing of a trust from such circumstances : EQUITABLE ESTATES. — RESULTING TRUSTS. 521 raising a trust because of it is at an end ; ^ and the cestui que trust has simply a personal remedy against the trustee. § 364. Rights of Innocent Purchasers for Value. — Finally, if in the process of changing form or possession the fund come into the hands of one who pays value for it without notice of the rights of him who claims it as cestui que trust, no resulting trust can arise against it in such hands. Thus, if after buying land with trust funds the trustee sell it to such a purchaser, the right of the cestui que trust against that land terminates.^ He can follow the proceeds in the possession of the trustee, if he can find them. But, otherwise, his only remedy is a per- sonal one against the trustee. This inability to follow any longer the land is simply one of the instances of the general rule as to innocent purchasers without notice, which has been heretofore explained^ and is further discussed hereafter, in treating of constructive trusts.* 7. Trusts Resulting from Failure of Declaration or Object. § 365. Essentials and Evidence of Such a Trust. — " There is no equitable principle more firmly established," says Mr. Hill, "than that where a voluntary disposition by deed or will is made to a person as trustee, and the trust is not declared at all, or is ineffectually declared, or does not extend to the whole interest given to the trustee, or it fails either wholly or in part by lapse or otherwise ; the interest so undisposed of will be held by the trustee, not for his own benefit, but as a resulting trust for the donor himself, or for his heir-at-law or next of kin, according to the nature of his estate." ^ To bring a result- ing trust of real property, then, within this third class, a con- veyance without consideration is made to one, who is clearly intended to hold in trust and not for his own benefit, and either 1 Freiberg v. Stoddard, 161 Pa. St. his own bank, with his own funds, and 259, 261 ; Little v. Chadwick, 151 Mass. then draw down the account below the 109; Dana u. Dana, 154 Mass. 4fll ; amount of the trust fund, and then add Cole V. Cole, 54 N. Y. App. Div. 37 ; to the account trust moneys of third Slater v. Oriental Mills, 18 R. I. 352 ; parties, the means of identification fails Nouotnck Silk Co. v. Flanders, 87 Wis. and the trust ceases. Cole v. Cole, 54 237 ; Cecil Nat. Bk. a. Thurber, 8 U. S. N. Y. App. Div. 37. App. 496 ; Farwell v. Kloman, 45 Neb. ^ Cornell c. Maltby, 165 N. Y. 557; 424; Blake w. State Sav. Bk., 12 Wash. Anderson v. Blood, 152 N. Y. 285; 619 ; Ferchen v. Aradt, 26 Oreg. 121 ; §§ 406-409, infra. Silvers v. Potter, 48 N. J. Eq. 539 ; 3 §§ 297, 299, supra. Heiskell v. Trout, 31 W. Va. 810. * §§ 406-409, infra. Thus, if the trustee put the property in ^ JiiH ou Trustees, 1 13, 114. 522 ESTATES IN REAL PROPERTY. the purposes of the transfer are left wholly or partly undeclared, or the purpose expressed wholly or partly fails and can not be carried out.^ When one pays value for property conveyed to him, it is conclusively presumed, in the absence of clear expressions to the contrary, that he takes it for his own benefit.^ Therefore, trusts of this group must come within the sphere of voluntary conveyances. And wills, of course, supply more numerous illustrations of these than do deeds. The transfer being found to be a gift, by either will or deed, if it further appear that some or all of the property was not intended for the nominal donee, or can not be used as the settler designed, a trust re- sults, as to all or some of it, as the case may be. It is a question of evidence, to be decided upon considera- tion of all the circumstances of each case, whether or not the donee was intended to take the property beneficially.^ And many refined distinctions have been made in efforts to ascer- tain his intention.* Thus, when the gift is to the wife, child, heir, or other close relative of the donor,* or to an infant or other person who is incapable of executing a trust,^ or with expressions of affection or kindness towards the donee,^ these are " circumstances of evidence " which militate against the presumption of any resulting trust. But such circumstances count for little against clear and direct expressions of the settler's intent.^ Accordingly, where a testator gives real property to his executors as trustees, " upon a trust to pay debts" and at the time of his death he has no debts, the execu- tors take it as a resulting trust for his heirs ;^ while if only some of it be needed for the payment of his debts, the residue 1 O'CoDnora.Gifford, 117N. Y. 275; v. Rogers, 3 P. Wms. 193; Randall «. Mosher v. Funk, 194 111. 351 ; 1 Perry Bookey, 2 Vern. 425. on Trusts, §§ 150-160. 6 Blinkhorn u. Feast, 2 Ves. Sr. 27; 2 Ridout V. Dowdiug, 1 Atk. 419; Williams u. Jones, 10 Ves. 77. Brown v. Jones, 1 Atk. 188; Kerlin o. ' Cook u. Hutchinson, 1 Keen, 42; Campbell, 15 Pa. St. 500; Anderson;;. Rogers v. Rogers, 3 P. Wms. 193; Blood, 152 N. Y. 285. Meredith v. Heueage, 1 Sim. 542, 555 ; 3 Walton V. Walton, 14 Ves. 318, 322 ; Wood y. Cox, 2 Myl. & Cr. 684, 692. Hill V. Bishop of London, 1 Atk. 619; * Ki«g v- Deunison, 1 Ves. & Bea. Starkey v. Brooks, 1 P. Wms. 390 ; Hug- 260, 275 ; King v. Mitchell, 8 Pet. (U. S.) gins V. Yates, 9 Mod. 122. 326, 349. * Perry on Trusts, §§ 151-153. » King v. Dennison, 1 Ves. & Bea. ^ Jennings v. Selleck, 1 Vern. 467 ; 260, 272 ; Morice v. Bishop of Durham, Hayes v. Kingdom, 1 Vern. 33 ; Christ's 9 Ves 399, 10 Ves. 522 ; Gloucester v. Hospital V. Budgin, 2 Vern. 683 ; Rogers Wood, 1 H. L. Cas. 272 ; Schmucker's Est. u. Reed, 61 Mo. 592. EQUITABLE ESTATES. — RESULTING TRUSTS. 523 results to his heirs.^ So, when a devise is made to A, " upon the trusts hereafter to be declared," and no trust is ever declared, or those declared do not exhaust the property, a resulting trust arises in favor of the devisor's heirs. ^ And when a gift is made for a purpose that is illegal, or otherwise void or ineffect- ual, as if it violate some statute or positive rule of law,^ or when the designated cestui que trust dies before the testator and the attempted gift lapses, a resulting trust comes into being.* § 366. Effects of Hesiduary Clauses in 'Wills. — If a will con- tain a general residuary clause, a legacy given by the will on a trust that fails does not form a resulting trust, but passes to the residuary legatee;® except in the case where the trust legacy itself forms a part of the residuary estate.^ But, at common law, when real property was devised upon a void trust, or one that failed, it did not pass under any residuary clause in the will, but a trust in it resulted to the heirs of the testator.^ ^ King V. Dennison, 1 Ves. & Bea. 260; McElroy v. McElroy, 113 Mass. 509. See Irvine v. Sullivan, L. R. 8 Eq. 673; Downer v. Church, 44 N. Y. 647 ; Schmucker's Est. v. Reed, 61 Mo. 592 ; Heidenheimer v. Bauman, 84 Tex. 174. ^ London v. Garway, 2 Vern. 571 ; Sidney «. Shelley, 10 Ves. 363; Atty.- Geu. V. Windsor, 8 H. L. Gas. 369; Pratt -. Sladden, 14 Vea. 193, 198; Mence o. Mence, 18 Ves. 348; Sturte- vant v. Jaques, 14 Allen (Mass.), 523, 526; Shaw v. Spencer, 100 Mass. 382, 388 ; Schmucker's Est. v. Reed, 61 Mo. 592. ^ Russell V. Jackson, 10 Hare, 204 ; Carrick v. Errington, 2 P. Wms. 361 ; Johnson v. Clarkson, 3 Rich. Eq. (S. C.) 305; Edson v. Bartow, 154 N. Y. 199, 768; St. Paul's Church v. Atty.-Gen., 164 Mass. 188; Rudy's Estate, 185 Pa. St. 359 ; Farrington v. Putnam, 90 Me. 405 ; Heiskell v. Trout, 31 W. Va. 810; Lusk V. Lewis, 32 Miss 297. * Ackroyd v. Smithson, 1 Bro. Ch. 503; O'Connor v. Gifford, 117 N. Y. 275, 281 ; Haskins v. Kendall, 158 Mass 224 ; Barker v. Reilly, 4 Del. Ch. 72 ; Bond V. Moore, 90 N. C. 239. So, in case of an insufficient declaration of an intended trust, or a failure of its purpose for any other reason, as by the dissolu- tion of the corporation for which it was made, a trust of this kind is generally the outcome. Williams v. Kershaw, 5 CI. & Fin. Ill ; Shaw v. Spencer, 100 Mass. 382, 388 ; Coburn v. Anderson, 131 Mass. 513; King v. Mitchell, 8 Pet. (U. S.) 326; Gumbert's Appeal, 110 Pa. St. 496 ; Jenkins o. Jenkins Uni- versity, 17 Wash. 160; Hill on Trus- tees, il6; 1 Perry on Trusts, §§ 159, 160. 5 Dawson v. Clarke, 15 Ves. 409, 417; Marsh v. Wheeler, 2 Edw. Ch. (N. Y.) 156 ; Woolmer's Estate, 3 Whart. (Pa.) 477; Pool v. Harrison, 18 Ala. 515. * Skrymsher v. Northcote, 1 Swanst. 566 ; Leake v. Robinson, 2 Meriv. 363, 392 ; Smith v. Cooke (1891), App. Cas. 297 ; Floyd v. Barker, 1 Paige (N. Y.), 480 ; 1 Perry on Trusts, § 1 60. ' The reason for this lay in the com- mon-law rules, which required a definite and specific dpscripiion of real property intended to be disposed of, and that the testator should be seised of it at the time when he made the will, and remain con- tinuously and uninterruptedly so seised until he died. A residuary gift, dispos- ing generally of what was left of a tes- tator's property at the time of his death, after all other gifts made by the will had been satisfied, could not comply with these requirements. 2 Bla,ckst. 524 ESTATES IN REAL PROPERTY. In England, New York, (a) New Jersey, Maine, and some other states of this country, tlie rule in this regard has been made uniform for both kinds of property, by statutes whicli make lapsed legacies and lapsed devises alike pass to a general residuary donee, unless a different intent appears from the language of the will.^ § 367. Gifts for Charity not apt to cause such Resulting Trusts. — Another qualification, to be noted, to the class of resulting trusts now under consideration, is that, when the object of an attempted trust is charitable, a resulting trust does not so readily arise as when the specified object is a private trust.^ This is because the cy pres doctrine can usually be applied to fix the destination of charitable gifts, even though the exact purposes intended may not be clearlj' indicated, or may wholly or partly fail.^ A private trust must be carried out as directed, or not at all. But, as already explained, when property is given for a general charitable purpose, but the particular object is not clearly specified, or if specified can not be realized in just that manner, or does not exhaust the entire fund, the general scheme ordinarily can and will be carried out by the court. Therefore, there is less apt to be property to result in trust in this latter class of gifts than in those that are private. But (a) The New York statute, 2 R. S. 57 (R. S. 9th ed. p. 1876), § 5, pro- vides that, " Every will that shall be made by a testator, in express terms of all his real estate, or in any other terms denoting his intent to devise all his real property, shall be construed to pass all tlie real estate, which he was entitled to devise, at the time of his death." And of this the Court of Appeals says: "The common-law rule that lapsed devises do not fall into the residue, but go to the heirs as undisposed of by the will, was done away with in New York by 2 R. S. 57, § 5 ; and there is now no difference between lapsed devises and lapsed legacies, as it respects the operation upon them of a general residuary clause." Cruikshank v. Home for the Friendless, 113 N. Y. 337; Onderdonk v. Onderdonk, 127 N. Y. 196; Youngs •;. Youngs, 45 N. Y. 251 ; Van Kleeck v. Dutch Reformed Church, 6 Paige, 600, 20 Wend. 457. Com. p. *513; 4 Kent's Com. ,W1 ; Cruikshank v. Home for Friendless, Year Book, 44 Edw. III. p. 33 ; Digby, 113 N. Y. 337 ; Molineux v. Reynolds, Hist. Law R. P. (5th ed.) p. 385 ; Van 54 N. J, Eq. 559 ; Merrill v. Hayden, 86 Kleeck v. Dutch Reformed Ciiurch, 6 Me. 133 ; Brigham v. Shattuck, 10 I'ai^re (N. Y.), 600, 20 Wend. (N. Y.) Pick. (Mass.) 306; Clapp v. Stoughton, 457; Hayden v. Stoughton, 5 Pick. 10 Pick. (Mass.) 463. (Mass.) 528. 2 xhetford School Case, 8 Rep. 130 b; 1 7 Wm. IV. and 1 Vict. ch. 26, § 24 ; Moggridge v. Thackwell, 7 Vcs. 36 ; 2 N. Y. R. S. 57 (R. S. 9th ed. p. 1876), § 347, supra. § 5; 1 Stim. Amer. Stat. L. § 2822; » §§ 347, 349, supra. EQUITABLE ESTATES. — RESULTING TRUSTS. 525 even when real property is given to trustees for a charitable object, if it be clearly for a specified particular object only, and that object can not be carried out, the trustees will take the property upon a resulting trust for the settler or his heirs.^ § 368. General Gift, or Gift for Specific Purpose, as causing Such a Trust. — A distinction is also to be noticed between a gift in trust for a particular purpose, whether public or private, and a gift to one, apparently for his own benefit, but having a duty, or charge, impressed upon it for some specified purpose, as, for example, to pay the settler's debts. In the former case, a trust results in the surplus, after the particular purpose is accomplished,^ while, in the latter case, the surplus belongs to the donee.^ The difficulty often is to determine, from the evidence, into which of these types a given case falls. Vice- Chancellor Wood's oft-quoted rules upon this matter are as follows : " 1st, where there is a gift to A, to enable him to do something, where he has a choice whetlier he will do it or not, then the gift is for his own benefit, the motive why it is given to him being stated ; 2d, where you find the gift is for the general purposes of the will, then the person who takes the estate cannot take the surplus, after satisfying the trust, for his own benefit ; and 3d, where a charge is created by the will, the devisee takes the surplus for his own benefit, no trust being implied." * S. Trusts resulting from Conveyances not expressing any Con- sideration or Use. § 869. Reasons for Such Trusts. — After uses became a prominent feature of real property, the conveyance of land by its owner to some other person, to hold to the use of such owner, was so ordinary a transaction that the courts came to regard all transfers of the legal estate, by common-law convey- ances, where no consideration was expressed and no use de- 1 Hopkins v. Grimshaw, 165 U. S. Downer v. Church, 44 N. T. 647; 342, 353. And see §§ 347, 349, supra. George v. Grose (1900), 1 Ch. 84. ^ King II. Dennison, 1 Ves. & Bea. * Barrs v. Fewkes, 2 Hem. & M. 60. 260, 272; McElroy o. McElroy, 113 And see Saltmarsh ii. Barrett, 29 Beav. Mass. 509; Smith v. Abbott (1900), 2 474; EUcock a. Mapp, 3 H. L. Cas. 492 ; Ch. 326. Cooke v. Stationers' Co., 3 Myl. & K. » Hill V. Bishop of London, 1 Atk. 262 ; Hale v. Home, 21 Gratt. (Va.) 619; Dawson v. Clarke, 18 Ves. 247; 112; Shaeffer's Appeal, 8 Pa. St. 38; Irvine v. Sullivan, L. R. 8 Eq. 673; 1 Perry on Trusts, § 1 52 ; Hill on Trus- tees, 119 ; Bispham's Frin. Eq. § 88. 526 ESTATES IN REAL PROPERTY. clared, as intended for the use of the transferor, who was commonly called the feoffor} That is, a use resulted to him who made a common-law conveyance to a stranger, without expressing any consideration or any other use.^ And if he de- clared a use as to part of the property or estate, and not in the residue, the use in such residue resulted to lam. Or, as Lord Coke expressed it, " so much of the use as the owner of the land does not dispose of remains in him." ^ This doctrine was not altered by the Statute of Uses. And when the use reappeared as a trust, after the decision of Tyrrel's Case, the same doc- trine remained as the foundation of the class of resulting trusts, which forms the fourth and last group of such trusts for our consideration.* Probably it was to prevent any possible operation of this principle that the custom arose of reciting a consideration of one dollar in quit-claim deeds, whether any consideration is paid or not ; for such a recital can not be re- butted by extraneous evidence, for the purpose of raising a re- sulting use or trust and thus nullifying the effect of the deed.* § 370. They arose only from Absolute Common-Iia'vr Convey- ances. — Resulting trusts of this group must arise, if at all, from common-law forms of conveyance, such as feoffments, grants, releases, etc., and not from those kinds of deeds and tranfers which arose and operated under the Statute of Uses ; for the latter always contain a declaration of the use for which the conveyance is made.^ No resulting trust would be implied, moreover, even from a common-law conveyance, when it was to the wife or a child of the grantor ; for the good considera- 1 Bacon on Uses, 317; Cruise, Dig. w. Graves, 29 N. H. 129; Philbroolt v. tit. xi. ch. 4, § 16 et seq. ; Hill on Trus- Delano, 29 Me. 410, 420 ; Thomas v. tees, 196; 1 Perry on Trusts, § 161. McCormiclt, 9 Dana (Ky.), 108. But 2 " For where there is neither con- it has also been held that a mere nomi- sifleration, nor declaration of use, nor nal consideration, of -rfhich one dollar any circumstance to show the intention is the common illustration, i. e., a con- of the parties, it cannot be supposed sideration not being anything substan- that the estate was intended to be given tial as compared with the value of the away." Cruise, Dig. tit. xi. ch. 4, § 16. property, will not prevent a resulting 8 Cruise, Dig. tit. xi. ch. 4, § 17. trust, as distinguished from the old re- * Cruise, Dig. tit. xii. ch. 1, § 52; suiting M.se, from being raised by equity. Dyer v. Dyer, 2 Cox, 92 ; Hayes v- 1 Spence, Eq. Jur. 467 ; Hill on Trus- Kingdome, 1 Vern. 33; Van der Vol- tees, 107, note; 1 Perry on Trusts, gen V. Yates, 9 N. Y. 219, 223 ; Bots- § 161 ; 2 Wash. R. P. (6th ed.) § 1421. ford V. Burr, 2 Johns. Ch. (N. Y.) 405; 6 Cruise, Dig. tit. xi, ch. 4, § 16 ; Pinney v. Fellows, 15 Vt. 525, 538. Coffey v. Sullivan, 63 N. J. Eq. 296; 5 Riley v. Riley, 83 Hun (N. Y.), 1 Perry on Trusts, § 162. For the 398; Weiss u. Heitcamp, 127 Mo. 23; forms of commou-law conveyances, see Bobb V. Bobb, 89 Mo. 411; Graves 2 Blackst. Com. p. * 309 ei seg. EQUITABLE ESTATES. — RESULTING TEUSTS. 527 tion arising from the relationship was enough to cause the pre- sumption that the grantee was meant to take beneficially.^ So, very slight evidence of intent would be sufficient in any case to rebut this weak presumption that there was a trust for the grantor. For example, it was declared that the mere exist- ence of the duties which rested upon a grantee of a temporary interest, such as one for life or for a term of years, was enough to indicate a beneficial transfer to him, and so to overcome the presumption of a resulting trust.^ § 371. Such Trusts are not now favored. — It is apparent, from the foregoing paragraphs, that the resulting trust of this fourth class never rested on anything but a very slight pre- sumption, which could be readily rebutted by a little evidence of the grantor's different intention. It was simply a rule which placed a light burden upon a grantee, to show that a voluntary conveyance was meant to be beneficial to himself.^ In most jurisdictions, this light burden has been shifted by the modern rule ; and, by the weight of authority to-day, if the instrument of conveyance be perfectly executed and in- tended to operate at once, no resulting trust will arise from the mere facts alone that it is voluntary and expresses no con- sideration and declares no use.* But the addition of very slight evidence will raise a resulting trust in favor of the grantor or his heirs.^ And in a few states, such as Indiana,* Tennessee,^ and Nevada,** and also in England as would appear from the more recent decisions,^ the old rule is still retained. § 372. Execution of Resulting Trusts. — It should be here repeated that, when a remedy is sought, any of the forms of resulting trusts is commonly executed, and the cestui que trust 1 Spirett c. Willows, 3 DeG. J. & S. Tillaux, 115 Cal. 663. And see Larnon 293; Spicer a. Ayers, 2 N. Y. Super. v. Knight, 114 111. 232, 236; 1 Perry on Ct. 626 ; Donnica v. Coy, 28 Mo. 525. Trusts, § 162. This is the same principle as that which ^ Clavering v. Clavering, 2 Vern. gives rise to the exception to the first 473; Edwards v. Culbertson, 111 N. C. class of resulting trusts above discussed. 842 ; GrafE v. Rohrer, 35 Md. 327 ; 2 Castle V. Dod, Cro. Jac. 200; 1 Hill on Trustees, 170. Trest. Est.,p. *292; 1 Spence, Eq. Jur. « Gifeeu v. Taylor, 139 Ind. 573; 452; 2 Kolle, Abr. 781, F. Myers v. Jackson, 135 Ind. 136. ' Bacon on Uses, 317. ' Nashville Trust Co. v. Lammon, * Rogers !). New York & Texas Land 36 S. W. Rep. (Tenn.) 977. Co., 134 N. Y. 197 ; Goldsmith v. Gold- « Bowler v. Curler, 21 Nev. 158. smith, 145 N. Y. 313; Hutchinson v. ' /n re Duke of Marlborough (1894), Hutchinson, 84 Hun (N.Y.), 482; Lovett 2 Ch. 133; Rochefoucauld v. Boustead V. Taylor, M N. J. Eq. 311 ; Fitzgerald (1897), 1 Ch. 196. Compare Haigh v. V. Fitzgerald, 168 Mass. 488 ; Steven- Kaye, L. R. 7 Ch. App. 469, and Leman son V. Crapnell, 114 111. 19 ; Tillaux v. v. Whitley, 4 Euas. 423. 528 ESTATES IN REAL PROPERTY. thus obtains his redress, by a conveyance of the legal estate to him from the trustee ; or satisfaction is given to him by a judgment or decree of tlie court vesting the legal estate in him, or declaring it to be so vested, without any conveyence.^ But, when the trustee has reasonably incurred any expense in caring for the property or dealing with it, he is ordinarily en- titled to be reimbursed, and may hold the legal estate until justice is thus done to him.^ 1 Millard v. Hathaway, 27 Cal. 119. " Malroy v. Sloans, 44 Vt. 311. CHAPTER XXIII. (b) CONSTRUCTIVE TRUSTS. § 373. Groups. Constructive trusts. a. Constructive Trusts arising from Actual Fraud. § 374. Trusts ex malejicio. § 375. Transfer of legal estate obtained by actual fraud. § 376. Elements of such fraud. § 377. Transfer of legal estate prevented by fraud. § 378. Trusts arising from crime. j3. Constructive Trusts arising from Presumptive Fraud, § 379. Nature and causes of such trusts. § 380. (o) Fraud presumed from nature of transaction. Inadequacy of purchase price. § 381. Sale of expectant interest by heir or reversioner. § 382. Other cases of such fraud. § 383. (|8) Fraud presumed or apprehended from relation or cir- cumstances of parties. § 384. Mental weakness: drunk- enness : duress: undue influence. § 385. Confidential relations. § 386. Trustee and cestui que trust. § 387. Trustee's purchase of trust property. § 388. Trustee's purchase of en- cumljrances : his renewal of lease. § 389. Conclusion as to trustee and cestui que trust. § 390. Attorney and client. § 391. Guardian and ward. § 392. Parent and child. § 393. Other close relations. § 394. Promoters and directors of corporations. § 395. Purchase under contract or promise to convey. § 396. Gifts from fraudulent taker. § 397. Remedy. § 398. (y) Fraud presumed or declared to exist as affecting third parties. § 399. Fraud on purchasers. § 400. Fraud on creditors. § 401. Fraud on marital rights. § 402. Fraud on powers. y. Constructive Trusts that arise in the Absence of Fraud. § 403. Foundation and forms of such trusts. § 404. Contracts for purchase and sale of real property. § 405. Legal estate taken with- out value and without notice. § 406. Bona fide purchaser for value without notice. 34 530 ESTATES IN REAL PROPERTY. §407. First — Notice. 1 §408. Second — Valuable consid- eration. §409. Third - -Time of notice and payment. § 410. Seeing to application of purchase money. § 411. Equitable mortgages and liens. § 373. Constructive Trusts — Groups. — Constructive trusts, or those which are implied by equity without regard to the intent of the parties,^ arrange themselves naturally into three chief groups or divisions, namely : a. Constructive trusts aris- ing from actual fraud, i. e., from direct facts or circum- stances of imposition or unfair dealing, /3. Constructive trusts arising from presumptive fraud, i.e., fraud inferred or ap- prehended by equity from the nature of the transaction or the relatiojis of the parties, or as affecting third parties, and 7. Constructive trusts arising in the absence of fraud, which are raised by equity as affording the best remedies and worlcing out the most substantial justice for the interested parties.^ An illus- tration of the first of these groups is where, by false statements intentionally made to deceive the owner of land, one induces him to transfer the legal estate in the property ; '^ the second group is illustrated by a transaction between a trustee and his cestui que trust, whereby the former seeks to acquire for his own benefit the property which he was holding for the latter ;* and a common illustration of the last group is supplied by every or- dinary contract for the purchase and sale of real property, for while such a contract is running and until the deed is delivered, the party who has agreed to sell holds the land as a construc- tive trustee for him who has agreed to purchase.^ Courts of 1 See distinction between construc- tive trusts and resulting trusts, § 351, supra. ^ See Lord Mansfield's classification of fraud in Chesterfield v. Janssen, 1 Atk. 301, 1 Lead. Cas. Eq. 541; 1 Perry on Trusts, ch. vii. ; Story's Eq. Jur. § 258. Tiiis classification has been much criticised by distinguished authorities, especially in regard to its division of fraud into actual or " legal " and constructive or presumed. Derry 0. Veek, L. R. 14 App. Cas. 337, 346; Angus ,.. Clifford (1891), 2 Ch. 449; Joliffe !.. Baker, L. R. 11 Q. B Div. 255, 271 ; Bokee v. Walker, 14 Pa. St. 139, 141 ; PoUock on Contracts, 480. But it is clear and practical and sup- ported by the authority of such names as Story and Lord Hardwicke. ^ Chesterfield v. Janssen, 2 Ves. 125; Ahrens v. Jones, 169 N. Y. 555; Grove V. Kane, 195 Pa. St. 325; 1 Perry on Trusts, § 171. * Coles V. Trecothick, 9 Ves. 234 ; Davoue v. Fanning, 2 Johns. Ch. (N. Y.) 252 ; Morse v. Hill, 136 Mass. 60 ; Ryle V. Ryle, 41 N. J. Eq. 582 ; Adams ... Cowen, 177 U. S. 471. s Green v. Smith, 1 Atk. 572 ; Wil- liams «. Haddock, 145 N. Y. 144, 150; Potter V. Jacobs, 1 1 1 Mass. 32 ; Reed v. Lukens, 44 Pa. St. 200 ; Roberts c. Nor. Pac. R. Co., 158 U. S. 1. EQUITABLE ESTATES. — CONSTROCTITB TRUSTS. 531 equity take cognizance of the first of these groups, because the remedy thus afforded through the medium of a trust is ordi- narily better than any that can be obtained from the common- law courts. The second group springs from a species of fraud which is solely of equitable cognizance, for in courts of law fraud must always be clearly proved and will never be fre- sumed} The constructive trusts of the third group afford scope for some of the most interesting and important equitable remedies, such as the specific performance of contracts, and several forms of relief by injunction.^ Bach of these divisions or groups of constructive trusts is to be separately discussed. a. Constructive Trusts arising from Actual Fraud. § 374. Trusts ex Maleficio. — Trusts ex maleficio — arising from actual fraud, i. e., from circumstances of direct imposition or unfair dealing — come into being because by such means either a conveyance of property has been obtained, or an in- tended conveyance or transfer has been prevented. In either case, the wrong intended or perpetrated is best obviated or redressed by treating the person who would otherwise profit thereby as a constructive trustee for the injured party. Thus, where A by false statements induces B to deed land to him for little or no consideration, he will liold it in trust for B." And when an heir inherits realty from his ancestor, because he fraudulently induced the latter to abstain from willing it away to another person, he takes the legal estate in trust for such injured person, who should rightfully have been the devisee of the same.* § 375. Transfer of Legal Estate obtained by Actual Fraud. — Whenever by actual fraud one is induced to part with the legal title to or estate in his property, he has a remedy at law in an action for damages;* and, in holding the wrong-doer to be a constructive trustee, equity assumes jurisdiction concurrently with law, but affords a different kind of redress.* While it 1 Bisphara's Prin. Eq. § 198. W. 94, 96; Mestaer v. Gillespie, 11 2 Quigley u. Gridley, 132 Mass. 35, Ves. 621, 638; Fischbeck v. Gross, 112 40. 111. 208 ; Church v. Ruland, 64 Pa. St. 3 Tyler u. Black, 54 U. S. 230 ; Boyce 432 ; 1 Perry on Trusts, § 181. V. Grancly, 28 U. S. 210; Ahrens v. 6 Boyce u. Grandy, 28 U. S. 210,220. Jones, 169 N. Y. 555; 1 Perry on « Evans w. Bicknell, 6 Ves. 174, 182; Trusts, § 171. Bacon v. Bronson, 7 Johns. Ch. (N. Y.) ^ Middleton o. Middleton, 1 Jac. & 194, 201. 632 ESTATES IN REAL PROPERTY. seems to be clear, however, that in the absence of statutory prohibition the latter court may take cognizance of all such cases of fraud and raise constructive trusts,^ yet in practice it does so only when there is no full and adequate remedy in any other tribunal.^ When damages in money, for example, will amply repay the injured party for his loss, as is ordinarily the case in a contract of sale, mortgage, or warranty of personal property, he is left to his redress at law.'' But, since each piece of real property has and must retain a situation different from every other piece, and therefore its loss by fraud may not be computable in terms of money, on application to equity by one who has been defrauded of such property, that court will uniformly raise a constructive trust in his favor. And, on de- mand by the beneficiary, the constructive trustee will be com- pelled to re-convey the land and account for its profits while he held it, or a re-conveyance will be declared by the court.* This is true except in cases in which there has been fraud in obtaining a will. Courts of probate have always had complete jurisdiction of wills of personalty ; and by modern statutes that jurisdiction has been generally extended over wills of realty." And the validity of a will of realty could always be determined, and complete justice ordinarily done regarding the same, in the common-law courts. Therefore, the rule has become well settled that equity will not usually interfere to raise a trust or to set aside a transfer because of the procuring of a will by fraud.* But even here, when the wrong-doer has obtained by 1 Evans K. Bicknell, 6 Ves. 174, 182; as to the personalty only. This has Russell V. Farley, 105 U. S. 433 ; Bacon been universally changed by statute, so V. Bronson, 7 Johns. Ch. (N. Y.) 194 ; that both species of will are required to 1 Spence, Eq. Jar. 625. be probated. But in a few states of * Buzard v, Houston, 119 U. S. 347. this country, such as New York and " Newham v. May, 13 Price, 749, 751 ; New Jersey, the validity of a devise of Buzard D. Houston, 119 U. S. 347; Inre real property may be tested over and Sawyer, 124 U. S. 200, 213; Force v. over again in the common- law court, City of Elizabeth, 27 N. J. Eq. 408. even after the will has been duly pro- < Earl of Bath's Case, 3 Ch. Cas. 55, bated. N. Y. Code Civ. Pro. §§ 2626- 56; Neville v. Wilkinson, 1 Bro. Ch. 2628; Corley v. McElmeel, 149 N. Y. 543, 596 ; Tyler v. Black, 54 U. S. 230 ; 228 ; Allaire v. Allaire, 37 N. J. L. 312 ; Ahrens v. Jones, 169 N. Y. 555; Wil- 1 Perry on Trusts, § 182. In New liams V. Vreeland, 29 N. .J. Eq. 417 ; York, however, its validity or invalidity Heuschel v. Mamero, 120 111. 660; may now be settled once for all by an, Sohler v. Sohler, 135 Cal. 323. action in the Supreme Court, at any 5 In the old Probate Courts of Eng- time within two years after probate, land (the so-called Ecclesiastical Courts), N. Y. Code Civ. Pro §2653 a; Dobie r. a will of real property could not be pro- Armstrong, 160 N. Y. 584. bated, and a will which disposed of both ^ Allen v. McPherson, 1 H. L. Cas. realty and personalty could be probated 191 ; Roberts i'. Wynne, 1 Ch. Rep. 125 ; EQUITABLE ESTATES. — CONSTRUCTIVE TRUSTS. 533 his attempted fraud a particular devise or bequest in a will otherwise valid, as by orally promising to hold it for another, and subsequently attempting to ignore such promise ; ^ or has fraudulently procured a will giving him an interest in real property which can not be reached by any real action, as when it is only a remainder or reversion of which he can not take present possession,^ equity will prevent a fraud by treating him as a trustee for the party who should rightfully have the property.^ § 376. Elementa of Such Fraud. — In Order to establish a trust against one who by actual fraud has obtained the legal estate from the rightful owner, all the elements of the wrong- ful act must be proved, in substantially the same manner as in an action in tort for fraud in a court of common law. The complainant might elect to sue in tort and recover pecuniary damages. Instead of doing so, he goes into equity for a differ- ent and for him a better remedy ; and there he proves the six requisites to the existence of actual fraud. These are, that the defendant made a representation which in spirit and essence was false, and that he did so either by expressing an untruth (^expressio falsi)*" or by suppressing the truth (suppressio veri), as by remaining silent when it was his duty to speak ;^ that he made such representation with wrongful and fraudulent intent, which fact may be proved by showing that he knew or believed it to be false, or that he was aware tliat he did not know whether it was true or false, or that although he believed it to be true he had no reasonable ground for the belief and so his belief can not be said to be honest ; ^ that he made it with Ellis ». Davis, 109 TJ. S. 485; Colton v. Anderson v. Anderson, 112 N. Y. 104, Ross, 2 Paige Ch. (N. Y.) 396; Adams 113-116. V. Adams, 22 Vt. 50 ; Garland i>. Smith, ^ Cases cited in last two preceding 127 Mo. 583; Langdou v Blackburn, notes; 1 Perry on Trusts, § 182; Bisp- 109 Cal. 19. In a few early English ham's Priu. Eq. § 199. cases, the opposite view was held. See * See Le Lievre v. Gould (1893), 1 Maundy v. Maundy, 1 Ch. Rep. 66; Q. B. 491, 498; Kouutze ;-■. Kennedy, Welby V. Thornagh, Pr. Ch. 123; Goss 147 N. Y. 124. V. Tracy, 1 P. Wms. 287. But now the ' Broderick v. Broderick, 1 P. Wms. rule as stated in the text is everywhere 238; Boyce u. Grandy, 28 U. S. 210; settled. See also 1 Perry on Trusts, Atwood v. Small, 6 Clark & Fin. 232 ; § 182; Bispham's Prin. Eq. § 199. Brownlie u. Campbell, L. R. 5 App. 1 Kennell v. Abbott, 4 Ves. 802; .Cas. 925; Schumaker v. Mather, 133 Matter of Will of O'Hara, 95 N. Y. N. Y. 590; People f. Pecken.s, 1.53 N. Y. 403 ; Church v. Ruland, 64 Pa. St. 432 ; 576, 592. See 1 Perry ou Trusts, §§ 171- Gilpatrick v. Glidden, 81 Me. 137. 177. 2 Brady v. McCosker, 1 N. Y. 214; ^ Derry v. Peek, L. R. 14 App. Cas. Clarke v. Sawyer, 2 N. Y. 498. See 337,372; Angus d. Clifford (1891), 2 Ch. 534 ESTATES IN REAL PROPERTT. intent that it should be acted on, or with reasonable ground to believe that it would be acted on ; ^ that it was acted on by the complainant, who under the circumstances was justified as a reasonable person in so acting;^ that the statement was material — a substantial moving cause of the complainant's conduct,^ and that it has caused pecuniary damage as a proximate result, or will do so unless the relief prayed for — the establishment of a constructive trust and the consequent disposition of the property — is granted by the court.* All of these elements of actual fraud have been fully dis- cussed and explained by the courts. Thus, it is settled that the false representation may be made by words written or spoken, by signs, gestures, or other acts, or by remaining silent or passive when one is under a duty to act or speak. Such a duty arises whenever a fiduciary relation exists between the parties ; ^ and also generally in the case of a latent defect in the thing involved, of which defect one party is aware, and which he believes the other party does not know of and 449 ; Edington v. Fitzmanrice, L. R. 29 Ch. Div. 459 ; Lehigh Zinc & Iron Co. V. Bamford, 150 U. S. 665; Lamberton V. Dunham, 165 Pa. St. 129; Hadcock V. Osmer, 153 N. Y. 604; Nash v. Minnesota Title Co., 163 Mass. 574; Bispham's Prin. Eq. § 214 ; 1 Perry on Trusts, § 174; Kerr on Fraud and Mis- talse, 73, 74; 1 Story's Eq. Jnr. §§ 192, 193. When he who makes the repre- sentation fairly and honestly believes in its truth, he is not guilty of fraud. Angus v. Clifford (1891), 2 Ch. 449; Nash V. Minnesota Title Co., 163 Mass. 574; Kountze v. Kennedy, 147 N. Y. 124; Houston v. Thornton, 122 N. C. 365. 1 " Where a party intentionally or by design misrepresents a material fact, or produces a false impression in order to mislead another^ or to entrap or cheat hi?n, or to obtain an undue advantage of him — in every such case there is posi- tive fraud in every sense of the term ; tliere is an evil act, with an evil intent, dolnm malum, ad circumriendum." 1 Story's Eq. Jur. §§ 192, 193; Hickey V. Morrell, 102 N. Y. 454. 2 Atwood V. Small, 6 CI. & Fin. 232, 336; Redgrave v. Hurd, L. R. 20 Ch. niv. 1, 13 ; Hickey v. Morrell, 102 N. Y. 454; Brown v. Leach, 107 Mass. 364; Clark u. Everhart, 63 Pa. St. 347 ; Pratt V, Philbrook, 33 Me. 17 ; Parker v. Hayes, 39 N. J. Eq. 469; Bispham's Prin. Eq. § 215. 8 Pulsford !'. Richards, 17 BeaT. 87, 96 ; Arnison v. Smith, L. R. 41 Ch. Div. 348; Strong v. Strong, 102 N. Y. 69 ; Levick v. Brotherlfne, 74 Pa. St. 149, 157; Kerr on Fraud and Mistake, 73, 74; 1 Perry on Trusts, § 175. * Smith V. Kay, 7 H. L. Cas. 750, 775; Clarke v. White, 37 U. S. 178; Wells . Peek, L. R. 14 App. Cas. Bispham's Prin. Eq. § 207. 337 ; Blygh v. Samson, 137 Pa. St. 367, ^ Person v. Sanger, 1 Wood & M. 376; Irving u. Thomas, 18 Me. 418; 138, 146 ; Lowndes o. Lane, 2 Cox, Savage v. Jackson, 19 Ga. 305. 363 ; Tyler v. Black, 54 U. S. 230 ; 8 Exhaustive discussions of these Rush V. Vought, 55 Pa. St. 437 ; Cesar elements are to be found in works on V. Karutz, 60 N. Y. 229 ; Daly w. Wise, "Fraud" and " Torts." 132 N. Y. 306 ; 1 Perry on Trusts, § 173. 9 Middleton a. Middleton, 1 Jac. & * Atwood V. Small, 6 CI. & Fin. 232, W. 94, 96 ; Oldham v. Litchford, 2 336; Redgrave o. Hurd, L. R. 20 Ch. Vern. 506; Mestaer v. Gillespie, II Div. 1, 13 ; Hickey v. Morrell, 102 N. Y. Ves. 621, 638 ; Jenkins v. Eldredge, 3 454; Parker v. Hayes, 39 N. J. Eq. Story (U. S. Cir. Ct.), 181; Church u. 469. Buland, 64 Pa. St. 432 ; Cowperthwaite 636 ESTATES IN REAL PEOPEETY, presentations he induced his ancestor to ahstain from devising it to other persons, he will hold it in trust for those who would otherwise have been the devisees.^ So, if heirs or devisees fraudulently prevent a testator from charging his property with legacies or annuities, they will take it burdened with a trust in favor of the intended annuitants or legatees.^ And whenever one wrongfully intercepts a gift or contemplated transfer, which is designed for another, by promising directly or indirectly that he will hand it over to that other, he takes it in trust for the intended beneficiary.^ Equity will raise a trust to frustrate fraud, whether it springs from negation or positive act ; and where that court finds one holding the legal estate or interest in property, which ex equo et bono he ought not to retain, it will convert him into a trustee for those to whom such property rightfully belongs.* § 378. Trusts arising from Crime. — It is in Conformity to this general principle that constructive trusts are sometimes raised against those who seek to retain property obtained by them because of accident or the honest mistake of others.^ And, at the other extreme, it is the same principle which some- times makes a thief or felon a trustee of that which he has obtained by his crime.* Accordingly, it is held in England, New V. Bank, 102 Pa. St. 397; Whitehonse * Cases cited in preceding notes on V. Bolster, 95 Me. 458 ; Fischbeck v. this section ; Wallgrave v. Tebbs, 2 Gross, 112 111. 208; Scheffermeyer u. Kay & J. 313; Matter of Will of Schaper, 97 Ind. 70. O'Hara, 95 N. Y. 403 ; Amherst College 1 Middletou v. Middleton, 1 Jac. & u. Rich, 151 N. Y. 282; Fairchild v. Ed- W. 94, 96 ; Button v. Poole, 2 Lev. 21 1 ; son, Edson v. Bartow, 154 N. Y. 199 ; Beech v. Kennegal, 1 Ves. Sr. 123; Whitehonse v. Bolster, 95 Me. 458; McGowanu.McGowan, 14 Gray (Mass.), Tucker v. Phipps, 3 Atk. 359; Eyton 119. V. Eyton, 2 Vern. 380; Gaines v. Hen- 2 Chamberlain v. Chamberlain, Free- aen, 65 U. S. 553 ; Ward v. Webber, man, 34 ; Huguenin v. Beasley, 14 Ves. 1 Wash. (Va.) 274 ; Schultz's Appeal, 27.3, 290; Thynn v. Thynn, 1 Vern. 80 Pa. St. 396. 296; Hoge v. Hoge, 1 Watts (Pa.), 163, ^ Bingham v. Bingham, 1 Ves. Sr. 213. See Matter of Will of O'Hara, 126; Pusey v. Desbouvrie, 3 P. Wms. 95 N. Y. 403 ; Amherst College v. 316 ; Midland Gt. West. R. Co. v. Rich, 151 N. Y. 282; Fairchild v. Ed- Johnson, 6 H. L. Cas. 798, 811 ; Fry v. son, Edson o. Bartow, 1.54 N. Y. 199; Lane, L. R. 40 Ch. Dlv. 312; Goode Edson !). Parsons, 155 N. Y. 555; Oliffe v. Riley, 1.53 Mass. 585; Short v. Cur- V. Wells, 130 Mass. 221, 224. rier, 153 Mass. 182. ' Barrow v. Greenbough, 3 Ves. " Nebraska Nat. Bk. v. Johnson, 51 152 ; Podmore v. Gunning, 7 Sim. 644 ; Neb. 546 ; Grouch v. Hazlehurst L. Co., Milleru. Pearce, 6 Watts& S. (Pa.) 97; 16 So. Rep. (Miss.) 496. See Mutual Hoge V. Hoge, 1 Watts (Pa.), 163, 213. Life Ina. Co. v. Armstrong, 117 U. S. See Kine v. Farrell, 71 N. Y. App. Div. 591 ; EUerson v. Westcott, 148 N. Y. 219. 149, 153. ■^ EQUITABLE ESTATES. — CONSTRUCTIVE TRUSTS. 537 York and a few other states in this country, that a person who kills another in order to procure the latter's estate by descent or devise can not take the property ; or, if he take it at all, he holds it in trust for the innocent and rightful owners.-' In other states, such as Nebraska, Pennsylvania and Illinois, it is held that the crime does not affect the will or the rules of descent, but that the punishment of the murderer is to be inflicted solely by the criminal law.^ While the latter of these views is per- haps the more technically accurate, the former seems to accord better with good morals and to be the more likely to produce the best equitable results.^ /S. Constructive Trusts arising from Presumptive Fraud. § 379. Nature and Causes of Such Trusts. — In going beyond the scope of courts of law in regard to fraud, and presuming its existence under some circumstances, equity has recognized three additional forms of that wrong as causing constructive trusts. These are, (a) fraud presumed from the intrinsic nature of the transaction, (/3) fraud presumed from the rela- tions of the parties to the transaction, and (7) fraud presumed or declared to exist as affecting third parties.* It is in dealing with constructive trusts arising from these species of fraud that the beneficent and practically exclusive jurisdiction of courts of equity comes specially into play. The first group (a) may be illustrated by a conveyance of land for a grossly inadequate consideration,^ the second (/S) by a gift of a trust interest from cestui que trust to trustee,^ and the third (7) by a voluntary conveyance of property in defraud of creditors.'' § 380. (a) Constructive Trusts arising from Fraud presumed from the Intrinsic Nature of the Transaction — Inadequacy of Pur- 1 Cleaver v. Mutual Res. F. L. Ass'n * Chesterfield v. Jaussen, 1 Atk. 301, (1892), 1 Q. B. 147; Kiggs v. Palmer, 1 Lead. Cas. Eq. 541 ; Story, Eq. Jur. 115 N. Y. 506; Lundy v. Lundy, 24 §258; Bispham's Priu. Eq. § 205. Can. Supr. Ct. 650 ; 36 Amer. Law Reg. ^ Osgood <;. Franklin, 2 Johns. N. 8. 227 ; 41 Cent. Law Jour. 377. Ch. (N. Y.) 1 ; Rosevelt v. Fulton, 2 2 Skellenberger v. Ransom, 41 Neb. Cow. (N. Y.) 129; Byers v. Surget, 60 631, 31 Neb. 61 ; Carpenter's Estate, U. S. 303 j Gifford v. Thorn, 9 N. J.Eq. 170 Pa. St. 203; Holdom v. Ancient 702. Order of U. W., 159 111. 619; Owens v. ' Adams t>. Cowen, 177 U. S. 471, Owens, 100 N. C. 240 ; Deen v. Milli- 482, 484. kin, 6 Ohio Cir. Ct. 357. ' Twyne's Case, 1 Smith's Lead. 3 See 36 Amer. Law Reg. N s. 227 ; Cas. 1 ; Means c. Dowd, 128 U. S. 41 Cent. Law Jour. 377 ; Mut. Life Ins, 273. Co. V. Armstrong, 117 U. S. 591, 597. 538 ESTATES IN REAL PROPERTY. chase Price. — In Chesterfield V. Janssen,^ Lord Hardwicke described one kind of fraud as that which is "apparent from the intrinsic value and subject of the bargain, such as no man in his senses, and not under delusion, would make on the one hand, and as no honest or fair man would accept on the other." An instance of such a bargain is a conveyance of property for a grossly inadequate consideration — for a price so small as to "shock the conscience" of the court ^ — for a compensation whose unfairness is "so gross and manifest that it is impossible to state it to a man of common sense without producing an exclamation at the inequality of it."^ Mere inadequacy of consideration alone, where it is not un- conscionably great and startling, will not cause a construc- tive trust to be raised on the presumption of fraud. Courts of equity, as well as those of law, will leave capable con- tracting parties free to reap advantage or suffer loss from an ordinary bargain.^ But when the insufficiency of the consideration- is so manifest and glaring as to be in itself from a fair point of view an evidence of fraud, it will be so treated ; and upon the presumption thus caused a constructive trust will emerge. Such cases are rare. But the instances are numerous in which other suspicious circumstances, though slight, when added to the fact of inadequacy of consideration, have given rise to constructive trusts.^ Thus, when the vendor who is not fairly paid is in pecuniary distress at the time of 1 1 Atk. 301, 2 Ves. Sr. 125, 155, U. S. 268; Seymour v. Delancy,3 Cow. 1 Lead. Cas. Eq, 541. (N. Y.) 445 ; 'Lee u. Kirby, 104 Mass. 2 Coles V. Trecothick, 9 Ves. 234, 420 ; Hemingway v. Coleman, 49 Conn. 246; Underbill v. Horwood, 10 Ves. 390; Cummings's Appeal, 67 Pa. St. 209; Horsey «. Hougb, 38 Md. 130; 404; Phillips v. PuUen, 45 N. J. Eq. Osgood V. Franklin, 2 Jobns. Cb. (N. Y.) 830 ; Cooper v. Eeilly, 90 Wis. 427 ; 1; Eyre „. Potter, 56 U. S. 42, 60; Wood u. Craft, 85 Ala. 260. Howard v. Edgell, 17 Vt. 9 ; Booker v. 6 Gwynne v. Heaton, 1 Bro. Ch. 8; Anderson, 35 111. 66. James v. Morgan, 1 Lev. Ill; Byers v. 3 Lord Thurlow, in Gwynne v. Hea- Surget, 60 U. S. 303; Eyre v. Potter, ton, 1 Bro. Cb. 8. And see Hamet 56 U. S. 42; Hume r. United States, V. Dundass, 4 Barr (Pa.), 178; Gifford 132 U. S. 406; Osgood v. Franklin, 2 V. Thorn, 9 N. J. Eq. 702 ; Phillips v. Jobns. Cb. (N. Y.) 1 ; Hodgson v. Far- PuUen, 45 N. J. Eq. 830; Brown v. rell, 15N. J. Eq. 88; Phillips i'. PuUen, Hall, 14 R. I. 249 ; Taylor v. Atwood, 47 45 N. J. Eq. 830 ; Taylor v. Atwood, 47 Conn. 498 ; Case v. Case, 26 Mich. 484 ; Conn. 498 ; Brown v. Hall, 14 R. L 249 ; Garrett v. Kan. City Coal Min. Co , 113 Howard ?>. Howard, 87 Ky. 616; Gal- Mo. 330 ; Boyce u. Fisk, HO Cal. 107. braith «. McLaughlin, 91 Iowa, 399. * Harrison v. Guest, 6 DeG. M. & G. And in some extreme cases, fraud on 424, 8 H. L. Cas. 481 ; Cockell v. Tay- this ground has been recognized and lor, 15 Beav. 103; Erwin v. Parham, relieved against even in courts of law. 63 U. S, 197 ; Slater v. Maxwell, 73 Hume v. United States, 132 U. S. 406. EQUITABLE ESTATES. — CONSTRUCTIVE TRUSTS. 539 his sale,^ or is weak-minded^ or very ignorant,^ or has been to some extent under the. authority or domination of the pur- chaser,* such a trust will readily be declared. Clear evidence of such circumstances readily shifts the burden of proof and fastens a trust upon him who has obtained large value for small consideration, unless he clearly convinces the court that no fraud of any kind was practised.^ § 881. Sale of Expectant Interest by Heir or Reversioner. — Where one holds a temporary interest in property, such as a life estate or an estate as tenant for years, and another ex- pects to obtain the land as heir and reversioner or remain- derman, a sale, by the latter, of such future estate is looked upon with suspicion by a court of equity ; and, if the consid- eration be inadequate, a constructive trust may be accordingly declared against the purchaser.^ The prospective heir is regarded as probably acting at a disadvantage, in that dis- tress or need of present income may cause him to part with his inheritance for less than its fair value. It is clearly against public policy to permit others to take advantage of such circumstances.' This class of cases, therefore, is simply one of the instances of those mentioned in the preceding para- graph — fraud is presumed, and a constructive trust raised from the inadequacy of price, coupled with the fact that the 1 Cockell V. Taylor, 15 Beav. 103; Rep. 484, 490 ; O'Eorke n. Bolingtroke, Warfield D. Ross, 38 Md. 85. L. R. 2 App. Cas. 814, 834; Fry v. 2 Clarkson v. Hanway, 2 P. Wms. Lane, L. R. 40 Ch. Div. 312, 320; 203; How u. Weldon, 2 Ves. Sr. 516; Savery i/. King, 5 H. L. Cas. 627; AUore V. Jewell, 94 U. S. 506 ; Rumph Varick v. Edwards, 1 Hoff. Ch. (N. Y.) V. Abercrombie, 12 Ala. 64 ; Mann v. 382 ; Powers' Appeal, 6.3 Pa. St. 443 ; Betterley, 21 Vt. 326. Wright v. Wright, 51 N. J. Eq. 475 ; 8 Pickett V. Loggon, 14 Ves. 215; Larrabee !'. Larrabee, 34 Me. 477 ; But- Wood V. Abrey, 3 Madd. 417; Cookson ler v. Duncan, 47 Mich. 94; McClure V. Richardson, 69 111. 137 ; McKinney v. Raben, 133 Ind. 507. The presump- «. Pinkard, 2 Leigh (Va.), 149; Eshami). tion being thus in favor of the heir, Lamar, 10 B. Mon. (Ky.) 43. because of his position, the rule is the * Gibson v. Jeyes, 6 Ves. 267 ; same when he is of full age. It is based, Brooks V. Berry, 2 Gill (Md.), 83 ; Grif- not upon any personal disability on his fith V. Godey, 113 U. S. 89, 95. part, but upon the assumed stress of ' Cases cited in last five notes, supra ; circumstances which causes him to sell 1 Perry on Trusts, § 187 ; 1 Sug. V. & his patrimony. Davis v. Marlborough, P. (8th Am. ed.) 119 ; Bispham's Prin. 2 Swanst. 113, 146 ; Addis v. Campbell, Eq. § 219. 4 Beav. 401. By some the rule is said ^ Gowland v. Do Faria, 17 Ves. 20 ; to grow out of the assumption that such James v. Kerr, L. R. 40 Ch. Div. 449 ; a transfer is a fraud on the ancestor. Wright V. Wright, 51 N. J. Eq. 475; See Varick v. Edwards, 1 Hoff. Ch. Chambers v. Chambers, 139 Ind. 111. (N. Y.) 382, 402. " Earl of Aylesford v. Morris, 8 Ch. 640 ESTATES IN REAL PROPERTY. subject-matter is the vendor's patrimony or expectancy. The courts have vacillated considerably in dealing with transfers like these. Some of the American decisions go to the extent of practically declaring such a sale by an heir, during the life of his ancestor, or the continuance of the temporary hold- ing, to be void.^ But the recent cases are much more liberal in dealing with these transactions.^ On both sides of the Atlantic, the conclusion now appears to be that the burden rests on the purchaser of such an interest to show fairness and good faith on his part; and, this being proved by reasonably clear evi- dence, he may retain the property freed from any trust. ^ When the father or ancestor joins with the heir in making the sale, or otherwise assists him in the transaction, or when the price received is substantially adequate, no trust will arise unless actual fraud or unfair dealing is proved.^ § 382. Other Instances of Fraud presumed from the Nature of the Transaction are found in contracts tainted with usury,^ 1 Boynton v. Hubbard, 7 Mass. 112; Poor I'. Hazleton, 15 N. H. 564; David- son V. Little, 22 Pa. St. 245, 252; McClure v. Eaben, 133 Ind. 507 ; Hale V. Hollon, 90 Texas, 427. 2 Kuhn's Appeal, 163 Pa. St. 438; Whelen v. Phillips, 151 Pa. St. 312; Clendening v. Wyatt, 54 Kan. 523 ; American note to Chesterfield i>. Jans- sen, 1 Lead. Cas. Eq. p. *541. ^ Aylesford v. Morris, 8 Ch. Eep. 484 ; Fry v. Lane, L. R. 40 Ch. Div. 312, 321 ; James v. Kerr, L. R. 40 Ch. Div. 449, 460; Wright K.Wright, 51 N.J. Eq. 475 ; Chambers v. Chambers, 139 Ind. Ill ; Hale v. HoUon, 90 Texas, 427. By the English statute 31 &32 Vict. ch. 4, it is proyided that no fair and hona-fide purcliase of any reversionary interest in either realty or personalty shall be set aside merely on the ground of inade- quacy of consideration. But it is held that this enactment still leaves the Court of Chancery free to set aside such transfers, where it can find any evidence of unfair dealing ; and thus conveyances by heirs of their expec- tancies are retained under its protection. Miller v. Cook, L. R. 10 Eq. 641 ; James V. Kerr, L. R. 40 Ch. Div. 449, 460 ; Rees V. De Bernardy (1896), 2 Ch. 437. * O'Rorke u. Bolingbroke, L. R. 2 App. Cas. 814, 828; Fitch v. Fitch, 8 Pick. (Mass.) 480; Nlramo v. Davis, 7 Texas, 26 ; 1 Sngd. V. & P. 427. So con- veyances of this kind in terminating dis- putes in families and making settlements are favored. Kingu. Hamlet, 2 Myl.&K. 456 ; Kenney v. Tucker, 8 Mass. 143 ; Powers' Appeal, 63 Pa. St. 443. But see Needles v. Needles, 7 Ohio St. 432. But mere knowledge or assent on the part of the ancestor, who does not join in the transaction nor assist in it in any way, does not seem to be sufficient tq rebut the presumption of fraud or pre- vent the establishment of a constructive trust. Note to Chesterfield v. Janssen, 1 Lead. Cas. Eq. p. « 541 ; Aylesford v. Morris, 8 Ch. Rep. 484, 491. See Fry v. Lane, L. R. 40 Ch. Div. 312, 321 ; Mc- Clure V. Raben, 133 Ind. 507 ; Hale i>. Hollon, 90 Texas, 427. ^ Aylesford v. Morris, 8 Ch. Rep. 484 ; Barrow «. Rhiuelauder, 1 Johns. Ch. (N. Y.) 550; Williams v Fitzhough, 37 N. Y. 444 ; Buckingham v. Corning, 91 N. Y. 525 ; M. K. & T. Trust Co. v. Kruraseig, 40 U. S. App 620 ; Munford V. McVeigh, 92 Va. 446; Sporrer v. Eifler, 1 Heisk. (Tenn.) 633. EQUITABLE ESTATES. — CONSTRUCTIVE TRUSTS. 541 wagering contracts,^ marriage brokerage contracts,'^ and con- veyances or transfers, or agreements to make them, upon considerations or arrangements which would result in illegal restraint of marriage,* or of trade,* or in the improper pro- curement of public office,^ or which would in any other manner violate sound principles of law or public policy.® Proceed- ing upon the general maxim, ex turpi causd non oritur actio, both courts of law and those of equity refuse to enforce such agreements when executory.'^ And when the outcome of any one of them has been the acquisition of the legal title to property, the retention of which would amount to the carry- ing out of such an illegal transaction or design, equity treats him who thus holds the title as a constructive trustee for the person or persons to whom it should rightfully belong.^ Placing these improper contracts and transfers under the gen- eral head of fraud in its broad, comprehensive sense, that 1 Rawden v. Shadwell, Ambler, 269 ; Stat. 8 & 9 Vict. ch. 109, § 18 ; Embrey V. Jemison, 131 U. S. 336 ; Harvey v. Merrill, 150 Mass. 1 ; Lynch o. Rosen- thal, 144 lud. 86; Dauler v. Hartley, 178 Pa. St. 23. 2 These are agreements made for negotiating marriages, and in most jurisdictions are held to be fraudulent and void. Cole v. Gilson, 1 Ves. Sr. .503 ; Duval v. Wellman, 124 N. Y. 156 ; Wliite V. Nuptial Benefit Union, 76 Ala. 251 ; Story, Eq. Jur. § 263. 8 Scott V. Tyler, 2 Lead. Cas. Eq. p. * 144, and note ; Stackpole v. Beau- mont, 3 Ves. 89, 96 ; Smythe v. Smythe, 90 Va. 638; Bispham's Prin. Eq. §§ 225-227. < Mitchel V. Reynolds, 1 P. Wms. 181; Nordenfelt o. The Maxim, etc. (1894) App. Cas. 535 ; United States V. Freight Ass'n, 166 U. S. 290, 346; United States v. Joint Trafiic Ass'n, 171 U.S. 505; Addyston Pipe & Steel Co. V. United States, 175 U. S. 211 ; People V. North River Sugar Refining Co., 121 N. y. 582; Diamond Match Co. V. Roeber, 106 N. Y. 473 ; Cohen v. Berlin & Jones Envelope Co., 166 N. Y. 292; Sternberg v. O'Brien, 48 N. J. Eq. 370, 372 ; Trenton Potteries V. Oliphant, 56 N. J. Eq. 680 ; Chicago Gas L. Co. V. People's Gas L. Co., 121 111. 530; Harrison v. Glucose Co., 116 Fed. Rep. 304, 309; Bispham's Prin. Eq. § 228. ' Chesterfield v. Janssen, 1 Atk. 301 , 1 Lead. Cas. Ilq. p. *.541 ; Basket v. Mass., 115 N. C. 448; Bispham's Prin. Eq. § 229. ' Wilkinsonu.Wilkinson.L. R. 12Eq. 604; Brown v. Peck, 1 Eden Ch. 140; Matter of Haight, 51 N. Y. App. Div. 310 ; Goodrich v. Tenney, 144 111. 422 ; Houlton V. Dunn, 60 Minn. 26; Lum V. McEwen, 56 Minn. 278. ' " The authorities from the earliest time to the present unanimously hold that no court will lend its assistance in any way towards carrying out the terms of an illegal contract. In case any action is brought in which it is neces- sary to prove the illegal contract in order to maintain the action, courts will not enforce it, nor will they enforce any alleged rights directly springing from such contract. In cases of this kind the maxim is Potior est conditio defendentis." McMulIeu V. Hoffman, 174 U. S. 639, 654; Peters <^. Mortimer, 4 Edw. Ch. (N. Y.) 279 ; Richardson v. Crandall, 48 N. Y. 348, 362 ; Snell v. Dwight, 120 Mass. 9 ; Scott v. Brown (1892), 2 Q. B. 724, 730. • » Authorities cited in preceding notes on illegal contracts. 542 ESTATES IN EEAL PROPERTY. court affords the most adequate remedy for the injured party by raising in his favor a constructive trust. For the wrong- doing trustee is then compelled to re-convey the property, or the procedure by which he acquired it is declared to be null and void and set aside; and thus the legal estate is vested in the rightful owner. ^ In the absence of any controlling statute (a), and pursuant to the maxim, " he who seeks equity must do equity," the party who obtains such redress is also required to place the other party as nearly as possible in statu quo; as, for example, by repaying the principal of a usurious loan with legal interest upon the same.^ § 383. (/3) Constructive Trusts arising from Fraud presumed or apprehended from the Relations or Circumstances of the Parties. — Whenever the condition or position of one of the parties to a transaction is such that the other may have acquired an unfair advantage more easily than in ordinary cases, a court of equity will investigate the whole matter with scrupulous care, and readily presume fraud, unless its absence is clearly proved.^ Also, in order to prevent the possible though hidden or undiscoverable perpetration of such a wrong, that court will sometimes, under circum- stances of this nature, declare a constructive trust to exist, without directly presuming any fraud. ^ Apprehension of (a) In New York, it is pi-ovided by statute that the "borrower" of money upon usurious interest may have redress in equity, without paying back or tendering any of the consideration received. R. S. 9th ed. p. 1856 (1 R. S. 772), § 8; L. 1837, eh. 430, § i. But this statute, being in dero- gation of sound equitable principles, is very strictly construed. And any one other than the "borrower" personally must do equity, by restoring the amount of the loan with legal interest, in order to obtain relief. Such is the devisee or heir of the borrower, who has secured the loan by a usurious mortgage. The devisee, heir, or other holder of the land who thus takes it subject to the mortgage, must pay or tender the principal of the debt with legal interest, in order to obtain an equitable decree for the cancellation of the mortgage. Buckingham i'. Corning, 91 N. Y. 525. 1 That is, the ordinary equitable the parties contracting ; and this goes remedy of restitution is granted, § 373, further than the rule of law, which supra. is, that fraud must be proved, not pre- 2 "Walker u. Dalt, 1 Ch. Cas. 276; sumed." Hoghton y. Hoghton, 1 5 Beav. Buckingham V. Corning, 91 N. Y. 525; 278; Taylor v. Taylor, 49 U. S. 183; Bispham'a Prin. Eq. § 222. Union Pacific R'way v. Harris, 1 58 U. S. ' In Chesterfield v. Janssen, 2 Ves. 326; 1 Perry on Trusts, § 194; 2 Story, Sr. 125, Lord Hardwicke said that the Eq. Jur. § 239. "thirdspeciesof fraud may be presumed * Davoue v. Fanning, 2 Johns. Ch. from the circumstances and condition of (N. Y.) 252, 259 ; Moore ». Moore, 5 EQUITABLE ESTATES. — CONSTRUCTIVE TRUSTS. 643 fraud is the causa ultima of all constructive trusts which arise merely from the relations or circumstances of the parties. In some cases it exists only as an apprehension, while in others it becomes so strong as to merge into a presumption. Thus, when a trustee purchases the trust prop- erty at his own sale of the same, a constructive trust is ordi- narily declared in order to prevent possible fraud, because of the aversion of equity to letting a trustee occupy a position in which he might so easily commit fraud without fear of detection ;i while a gift of land from a client to his attorney, who is conducting legal proceedings relative to such land, is presumed to be fraudulent and becomes the basis of a construc- tive trust. ^ Since the shadow of the same wrong falls through the windows of Equity athwart all such cases, and they all involve the same kinds and classes of parties, logically they are all to be discussed in the same chapter. § 384. Mental 'Weakness, Drunkenness, Duress, Undue In- fluence. — One of the clearest groups of instances of this char- acter is that of contracts between parties, one of whom is affected by mental weakness, intoxication, undue influence, duress, fear, apprehension, or extreme distress.^ Mere weakness of intellect alone, when there is no confidential relation between the contracting parties and they deal "at arm's length," is not a sufficient ground for the interference of equity ; * nor is a state of drunkenness, which does not make the person substantially non compos mentis.^ But when N. Y. 256; People v. Open Board of Me. 21; Hill on Trastees, 156; Co. Stock Brokers' Building Co., 92 N. Y. Lit. 447 a. 98; Scholle v. SchoUe, 101 N. Y. 167'; * Osmond !■. Fitzroy, 3 P. Wms. 129 ; Corbin v. Baker, 167 N. Y. 128 ; Yeackle Hyer v. Little, 20 N. J.-Eq. 443 ; Lozear V. Litchfield, 13 Allen (Mass.), 417, 419; v. Shields, 23 N. J. Eq. 509; Aiman v. Eich V. Black, 1 73 Pa. St. 92, 99 ; Beck- Stout, 42 Pa. St. 114; Ex parte Allen, ley V. Schlag, 46 N. J. Eq. 533 ; Taylor 15 Mass. 58 ; Mann v. Betterly, 21 Vt. V. Calvert, 138 Ind. 67 ; Fox v. Macreth, 326 ; Rogers v. Higgins, 57 111. 244, 247 ; 1 Lead. Cas. Eq. 115, note; Hill on Stiner v. Stiner, 58 Barb. (N. Y.) 643. Trustees, 248, note ; Bispham's Prin. But, of course, a very great lack of Eq. § 94. mental ability, such as results in idiocy 1 See cases cited in last preceding or insanity, renders the contract void, note, also § 387, infra. or at least voidable, in any court having 2 Holmes v. Loynes, 4 DeG. M. & G. jurisdiction of the subjec^matter. 270; Morgan v. Minot, L. R. 6 Ch. Div. ^ Qore v. Gibson, 13 M. & W. 623; 638; Newman v. Payne, 2 Ves. 199, Cory ti. Cory, 1 Ves. Sr. 19; Selah v. 200; Greenfield's Est., 14 Pa. St. 489, Selah, 23 N. J. Eq. 185; Gombault v. 506; § 390, infra. Public Adm'r, 4 Bradf. (N. Y.) 226; ' Ralston v. Tnrpin, 129 U. S. 663; Fliick v. Rea, 51 N. J. Eq. 233; In re Neilson !•. McDonald, 6 Johns Ch. Schusler's Est., 198 Pa. St. 81. (N. Y.) 201, 210; Oak v. Dustin, 79 ' 544 ESTATES IN REAL PROPERTY. one of the parties is so intoxicated or so mentally deficient as to lead the court to believe that he probably does not know what he is doing, the presumption is against the other party to the contract; and he must fairly clear himself of all im- putation of fraud, or have a constructive trust raised against the property which he has acquired by the transaction.^ And, as was explained heretofore,^ mental incapacity much less than this, from whatever cause it may proceed, and whether temporary or permanent, may be enough to raise such a trust, when it is coupled with the fact of inadequacy of consideration, or there are other slight circumstances in- dicating that the stronger mind may have taken an unfair advantage of the weaker. ^ So, not only those grosser forms of duress for which there is a remedy in a court of law, — duress of imprisonment, or per minas, or by threats against life or limb, * — but also the more subtle duress of the volition, called "equitable duress," and such influence as is "undue," which without direct force or bodily constraint compels a person to do something that he does not wish to do, will move a court of equity to imply a constructive trust in his ' favor ;^ "for in cases of this sort he has no free will, but stands in vinculis." ^ "As between parties occupying no relation of confidence in or toward each other, or of control by reason of position, employment, or otherwise, undue influence can rarely be imputed without showing some degree of fear, or threats, or advantage taken of position, or unfair practices 1 Gore V. Gibson, 13 M. & W. 623; nardy (1896), 2 Ch. 437; 1 Perry on Johnson v. Mellicott, 3 P. Wms. 130, Trusts, §§ 190, 191; Hill on Trustees, note ; Thackrah v. Haas, 119 U. S. 499 ; 155. Selah V. Selah, 23 N. J. Eq. 185 ; Mans- * Ripley v. Gelston, 9 Johns. (N. Y.) field's Case, 12 Rep. 123 ; Howe v. Howe, 201 ; Guilleaume v. Rowe, 94 N. Y. 268 ; 99 Mass. 88; Helbreg u. Schumann, 150 Elliott v. Swartwout, 35 U. S. 137; 111.12; Hill on Trustees, 46. Fairbanks v. Snow, 145 Mass. 153; 2 §§ 380-382, supra. Heaps v. Dunham, 95 HI. 583 ; Motz 8 AUore v. Jewell, 94 U. S. 506, 511 ; v. Mitchell, 91 Pa. St. 114; 1 Blackst. Griffith V. Gody, 113 U. S. 89, 95; Rals- Com. p. *131. ton V. Turpin, 129 U. S. 663; Dundee ^ Williams v. Bayley, L. R. 1 Eng. Chem. Works v. Connor, 46 N. J. Eq. & Ir. App. 218 ; Eadie v. Slimmon, 26 576; Borden v. White, 44 N. J. Eq. N. Y. 9; McCandless v. Engle, 51 Pa. 291 ; Raw v. Von Zedlitz, 132 Mass. St. 309 ; DoUiver v. DoUiver, 94 Cal. 164; Churchill v. Scott, 65 Mich. 485; 642; Bryant v. Peck & Co., 154 Mass. Yount V. Yount, 144 Ind. 133 ; Stepp v. 460 ; Bell v. Campbell, 123 Mo. 1 ; Fry Frampton, 179 Pa. St. 284; Highberger v. Lane, L. R. 40 Ch. Div. 312, 322; V. Stiffler, 21 Md. 338 ; Brice v. Brice, Chicago, etc. R. Co. v. Belliwith, 55 5 Barb. (N. Y.) 533, 549; Magglni .;. U. S. App. 113; Jones v. A. & V. R. Pezzoni, 76 Cal. 631 ; Jones v. Thomp- Co., 72 Miss. 22. son, 5 Del. Ch. 374 ; Rees v. De Ber- 6 2 Story, Eq. Jur. § 239. EQUITABLE ESTATES. — CONSTRUCTIVE TRUSTS. 545 or persuasion, involving in some degree a species of fraud. But when any of these elements enter into and constitute part of the circumstances attending a transaction, and controlling the will of a party making a deed or other contract, courts of equity have long been accustomed to give relief.^ § 385. Confidential Relations. — But the most numerous and important groups of cases, in which constructive trusts are brought into being in the manner now under discussion, are those in which some confidential relation exists between the contracting or interested parties. Such are the relations between trustee and cestui que trust, guardian and ward, attorney and client, parent and child, husband and wife, principal and agent, directors of a corporation and the corporation itself and its stockholders, minister or priest and parishioner, tenants in common, joinWenants, or other co-owners of property, employer and employee, partners, close friends, intimate neighbors, and the like. Equity looks with suspicion upon agreements and transactions between such person ; and, when the outcome is that he in whom the confidence is reposed acquires prop- erty from or through the other, frequently either the arrange- ment is wliolly set aside without proof, or the burden of showing the fairness of the contract is thrown upon him who has acquired the legal estate, or, if he fail to prove this, he is declared to hold the property as constructive trustee for the other party.^ Each of the most important of these re- lations requires a separate discussion. There are three of them to be first discussed, the existence of either of which alone is sufficient to create a presumption against the fidu- ciary party who seeks to acquire for his own benefit the property affected by the trust or confidence. These are the relations of trustee and cestui que trust, guardian and ward, and attorney and client. The other confidential relations above stated call for careful scrutiny by the court ; and, while neither of them alone will ordinarily be ground for implying a trust, 1 Per Smith, J., in Eadie v. Slimmon, great that the presumption ought to be 26 N. Y. 9, H ; Adams v. Irving Nat. against the transaction, and the per.son Bk., 116 'S.Y. 606; Peyser v. Maj-or, holding the trust or influence ought to 70 N. Y. 497, 501; O'sborn v. Robbius, berequired to vindicate it from all fraud, 36 N. Y. 365 ; Bispham's Prin. Eq. 230 ; or to continue to hold the property in 1 Perry ou Trusts, § 192. trust for the benefit of the ward, cestui 2 " The ground of this rule is, that gue trust, or other nerson holding a the danger of allowing persons holding similar relation." 1 Perry on Trusts, such relations of trust and influence § 194. with others to deal with them is so 35 646 ESTATES IN REAL PROPERTY. yet, with other suspicious circumstances though often very slight, they will give rise to such an implication. § 386. Trustee and Cestui que Trust. — The trustee of an active trust, because of his control of the property and superior knowledge concerning it, usually has an important advantage over the beneficiaries. His position also naturally gives to him an ascendency and influence over their minds, which is apt to be powerfully available in his favor. Therefore, when he purchases a beneficial interest in the property from the cestui que trust, or obtains a gift of it inter vivos from him, it is pre- sumed in equity that these advantages have been unfairly utilized ;i and the burden is accordingly placed upon the pur- chaser or donee to prove that he dealt honestly and in perfect good faith, and that the other party acted fi'eely, and was fully and fairly informed of all the circumstances, such as the value of the property, present or prospective, the conditions and rights of all the parties, and all other matters by which the transaction was affected, or could reasonably be expected to be influenced.^ In other words, such a sale or gift shifts the ordinary burden of proof. And when the vendor or donor comes into equity, praying that a con- structive trust in the property be declared in his favor on the ground of fraud, he succeeds, unless the donee or vendee clearly proves that the entire transaction on his part was fair, open, and above-board. In order that the transfer shall stand, the court must be convinced that no special knowledge of the trustee, nor any ignorance or disability on the part of the cestui que trust, nor any influence unduly exercised by the former over the latter, materially affected the gift or sale.^ These things can be most easily proved by the trustee, other circumstances being the same, when he has purchased the 1 Coles V. Trecothick, 9 Ves. 234; Yonge v. Hooper, 73 Ala. 119; Cole Dougan v. McPherson (1902), App. v. Stokes, 113 N. C. 270; Bispham's Cas. 197; Adams v. Cowen, 177 U. S. Prin. Eq. § 237. 471, 484 ; Goldsmith v. Goldsmith, U.'i ' Mott v. Mott, 49 N. J. Eq. 192, 199 j N. Y. 313; Ryle o. Ryle, 41 N. J. Eq. Hammell o. Hyatt, .59 N. J. Eq. 174; 582; Wright v. Smith, 23 N. J. Eq. Coombe's Ex'r v. Carthew, 59 N. J. 106 ; Smith v. Townshend, 27 Md. 368 ; Eq. 638 ; Wright v. Smith, 23 N. J. Eq. Fox w. Macreth, 1 Lead. Cas. Eq. 115, 106; Graves u. Waterman, 63 N. Y. 657 ; note; 1 Perry on Trusts, § 195; Hill Davoueu. Fanning, 2 Johns. Ch. (N. Y.) on Trustees, 158. 252, 258 ; Miggett's Appeal, 109 Pa. St. ^ Cases cited in last preceding note ; 520 ; Darlington's Estate, 147 Pa. St. Spencer's Appeal, 80 Pa. St. 317, 332; 624; 1 Perry on Trusts, § 195; Bisp- Cadwalladei's Appeal, 64 Pa. St. 293 ; ham's Priu. Eq. § 237. Smith V. Drake, 23 N. J. Eq. 302; EQUITABLE ESTATES. — CONSTRUCTIVE TRUSTS. 547 realty for a full and adequate consideration. And, the less the purchase price in proportion to the fair market value of the property, the greater, as a rule, is the burden of proof which rests upon him. Hence, that burden is heaviest in case of a gift inter vivos, a pure gratuity from the beneficial owner, vrlio is living and might personally enjoy the property if he did not give it away.^ It is natural and right that the presumption against the freedom and fairness of a gift under these conditions should be very strong. Still it is well settled that the trustee, in such a case, by affirmatively showing absolute good faith and fair dealing on his own part, full disclosure by him of all the attending facts and circum- stances, and complete freedom and facility of action on the part of the cestui, may establish his right to retain the prop- erty for his own benefit.^ When, on the other hand, the cestui que trust by his will makes a devise or legacy to his trustee, it is decided by most of the authorities that, while the relationship of the parties is a circumstance of suspicion to be given due weight in a contest over this provision of the will, yet it is not in and of itself sufficient to shift the burden of proof upon the donee by creat- ing a presumption of fraud against him.^ The cestui que trust at his death must let the property pass over to some one. And it is not unnatural, when he himself can no longer enjoy its bene- fits, that he should desire to give it to one who has shown him- 1 Adams v. Cowen, 177 U. S. 471 ; ° Bancroft v. Otis, 91 Ala. 279; Barnard K. Gantz, 140 N. Y. 249, 256; Eastia a. Montgomerr, 93 Ala. 293; Green v. Roworth, 113 N. Y. 462 ; Ten Matter of Will of Smith, 95 N. Y. 516 ; Eyck V. Whitbeck, 156 N. Y. 341, 353 ; Loder v. Whelpley, HI N. Y. 239, 250; Gibba v. N. Y. L. Ins. Co., 67 How. Pr. Matter of Cornell, 43 N. Y. App. Div. 207 ; Haydock v. Haydock, 34 N. J. Eq. 241, aff' d 163 N. Y. 608 ; Tn re Adams' 570 ; Wright v. Vanderplank, 8 DeG. M. Estate, 201 Pa. St. 502 ; Scattergood v. & G. 133, 137; Hoghton v. Hoghtou, Kirk, 195 Pa. St. 195; Harp v. Parr, 15 Beav. 278; Morley v. Loughman 168 111. 459; Mackall v. Mackall, 135 (1893), 1 Oh. 736; Taylor w. Taylor, 49 TJ. S. 167, 172, 2 Lead. Cas. Eq. 582. U. S. 183; Wistar's Appeal, 54 Pa St. Contra, i. e., that snch relations between 60, 63 ; Davis v. Strange, 86 Va. 793 ; testator and beneficiary do change the Soberanes v. Soberanes, 97 Cal. 140; burden of proof . Hegnoy v. Head, 126 Rosa V. Conway, 92 Cal. 632. Mo. 619; Griffin v. Diffendorfer, 50 2 Cowee V. Cornell, 75 N. Y. 91, 100 ; Md. 466. And see Kischman v. Scott, Pierce v. Pierce, 71 N. Y. 154; Matter 166 Mo. 214 ; Berberet v. Berberet, 131 of Will of Smith, 95 N. Y. 516, 522 ; Mo. 399 ; Fulton v. Andrews, L. R. Nesbit V. Lockman, 34 N. Y. 167 ; Al- 7 Eng. & Ir. App. 448, 461 ; Tyrell v. leard v. Skinner, L. R. 36 Ch. Div. 145 ; Painton (1894), Prob. 151, 157. 1 Perry on Trusts, § 195 ; Bispham's Prin. Eq. § 231. 548 ESTATES IN EEAL PROPERTY. self to be an honest and capable trustee. Besides, the donees under a will are usually not present when it is executed ; and it would be unreasonable to place upon them the burden of proof concerning a matter of which they may have no knowledge, and possibly no means of acquiring knowledge.^ A mere pas- sive or dry trustee, moreover, since his position gives him no advantage over the benficiaries, may take by any form of pur- chase or donation from them, without thereby occasioning a presumption of fraud or a constructive trust.^ § 387. Trustee's Purchase of Trust Property. — The basal principle, which operates in shifting the burden of proof as here explained, is that a trustee shall not use his position to make any profit for himself out of the trust estate.* An expression of the same principle, even more emphatic, occurs when a trustee with power to sell the trust property executes the power and purchases at his own sale. For, with the apprehen- sion of fraud in the background, but without actually presum- ing its existence, a court of equity, at the option of the cestui que trust, and for the purpose of keeping its favorite, the trustee, aloof from a position where he could so easily commit nndis- coverable wrong, will treat him as still holding the property in trust for the same beneficiary or beneficiaries as before.* This it will do whether the purchase is at private sale or public auction,^ directly by the trustee himself or indirectly through the medium of one or more third parties.® And the same stringent rule applies to every one, whether technically called 1 Bancroft v. Otis, 91 Ala. 279; Morse v. Hill, 136 Mas.s. 60; Rich v. Matter of Will of Smith, 95 N. Y. 516. Black, 173 Pa. St. 92, 99; Taylor v. 2 Parkesw. White, U Ves. 209, 226 ; Calvert, 138 Ind. 67; Scott u. Umbar- Inlow V. Christy, 187 Pa. St. 186, 191. ger, 41 Cal. 410, 419; Fox v. Mackreth, See Fletcher u. Bartlett, 157 Mass. 113. 1 Lead. Gas. Eq. 115; 1 Perry on 3 Hill on Trustees, 159; 1 Lead. Trusts, § 195. Cas. Eq. (4th Am. ed.) 62 Araer. note. ^ Campbell v. Walker, 5 Ves. 678, * Downes v. Grazebrook, 3 Mer. 680, 13 Ves. 601 ; Davoue v. Fanning, 200; Farrar v. Farrar, L. R. 40 Ch. 2 Johns. Ch. (N. Y.) 252; Boerum v. Div. 395, 409 ; Dougan u. McPherson Schenck, 41 N. Y. 182; Adams u. (1902), App. Cas. 197; Davoue v. Cowen, 177 U. S. 471 ; French h. Pitts- Fanning, 2 Johns. Ch. (N. Y.) 252 ; De burg Vehicle Co., 184 Pa. St. 161, 163 ; Caters v. Le Ray De Chaumont, 3. Ives v. Ashley, 97 Mass. 198 ; Broder v. Paige Ch. (N. Y.) 178; Fulton u. Whit- Conklin, 121 Cal. 282. ney, 66 N. Y. 548 ; Dodge v. Stevens, » Moore v. Moore, 5 N. Y. 256 ; 94 N. Y. 209 ; Amherst College v. People v. Open Board of Stock Brokers, Rich, 151 N. Y. 282, 340; Kahn v. Building Co., 92 N. Y. 98; Bassett l: Chapin, 152 N. Y. 305, 309 ; Hammond Shoemaker, 46 N. J. Eq. 538 ; DeCelis V. Hopkins, 143 U. S. 224 ; Yeackel v. v. Porter, 59 Cal. 464 ; Gibson v. Bar- Litchfield, 13 Allen (Mass.), 417, 419 ; hour, 100 N. C. 192. EQUITABLE ESTATES. — CONSTRUCTIVE TRUSTS. 549 trustees or not, such as executors, administrators, mortgagees, attorneys, agents, and the like, who assume to buy property for themselves, under circumstances fiduciary or confidential which impose upon them the duty of acting disinterestedly for others.^ Thus, where a sou was employed as agent by his father to buy land at the sale on foreclosure of a mortgage held by the latter, and the maximum price whicli he should bid was fixed at $15,000, a purchase of it by him, or for him through a third party, for $16,000, was held to be in trust for the father and his heirs at their election.^ The agent, being in the affair to act for the benefit of another, could not use his position to his own advantage, if the principal chose to treat the transaction as his own.* So a conveyance by an executor, acting under a power of sale in the will, to a person having the same surname as himself, and a deed for practically the same consideration as the other from such person to the executor within four days thereafter, both instruments being recorded at substantially the same time, were held to be facts sufficient to justify one in refusing subsequently to complete a contract to purchase from the executor individually, on the ground that he held the land as a constructive trustee for his original beneficiaries.* In this class of cases there is more than the mere shifting of the burden of proof upon the fiduciary. Having acted without any authorization from the court, he is not even permitted to prove, against the wish of the beneficiaries, that he has fairly acquired the trust property for himself; but they, at their own election and without more, may fasten a constructive trust upon it in his hands.* This absolute right of the cestuis que trustent may of course be waived or relinquished by thcra,^ or lost by their laches or by lapse of time.' And, where the trustee has an interest of 1 Adams o. Cown, 177 U. S. 471 ; 101 N. Y. 167, 171 ; Ives ti. Ashley, 97 Hill on Trustees, 428, and notes; 1 Mass. 198; Bassett v. Shoemaker, 46 Perry on Trusts § 19.5, and notes. N. J. Eq. 538 ; Bispham's Prin. Eq. 2 Moore v. Moore, 5 N. Y. 256. § 94; 1 Perry on Trusts, § 195. 8 Moore v. Moore, 5 N. Y. 256, 261 ; ^ Hoyt v. Latham, 14.3 U. S. 553 ; Morse v. Hill, 136 Mass. 60; Bassett v. Hammond v. Hopkins, 143 U. S. 224; Shoemaker, 46 N. J. Eq. 538. Harrington u. Erie Co. Savings Bk., 4 People V. Open Board of Stock 101 N. Y. 257; Yeackel c. Litchfield, Brokers B'ld'ng Co., 92 N. Y. 98. 13 Allen (Mass.), 417, 419; Ives u.Ash- s Campbell v. Walker, 5 Ves. 678, ley, 97 Mass. 198; Plucker v. Teller, 680; Davoue v. Fanning, 2 Johns. Ch. 174 Pa St. 529 ; Pearce v. Gamble, 72 (N. Y.) 252, 259-261 ; Moore v. Moore, Ala. 341 ; 1 Perry on Trnsts, § 197. 5 N. Y. 256, 261 ; Fulton v. Whitney, See Kullman v. Cox, 167 N. Y. 411. 66 N. Y. 548; SchoUe v. Scholle, ' Kahn v. Chapin, 152 N. Y. 305; 550 ESTATES IN REAL PROPERTY. his own to protect by bidding at the sale of the trust property, as, for example, where he has an individual part ownership therein, and he makes special application to the court for permission to buy for himself, which, upon the hearing of all those who are interested, or their being given their day in court and full opportunity to be heard, is duly granted, " then he can make a purchase which is valid and binding upon all the parties interested, and under which he can obtain a perfect title." ^ But a constructive trust may fasten upon his purchase, if he fail to comply exactly with all these requisites. He can not, for instance, rely on the formal leave to buy which is usually given to all the parties by the decree in a foreclosure or par- tition suit.^ His application must be special, and with every- body in court who could have any ground to object. " The* power resides in the court to relieve from the rule." * And it has been held in New York, by a decision, which if it does not undermine the priniciple of protection to the beneficiaries may at least break down some of its fortifications, that, if every one in interest be thus specially brought before the court, it may grant such relief by confirming a purchase by a trustee, who had a personal interest to protect, but who did not obtain before the sale any judicial authorization to bid in his own behalf.^ When a sale has been honestly made to an outside party, the trustee acting bona fide may, thereafter, validly purchase from or through him without any sanction of the court.^ And it is held by the United States Supreme Court, and in some states, though strongly denied in others,^ that he may pur- Hammond V. Hopkins, 143 U. S. 224 ; ^ Authorities cited in last two pre- Hopper V. Hopper, 79 Md. 400; Har- ceding notes. If they use trust funds in rison v. Manson, 95 Va. 593 ; Thompson the purchase, the profit of a resale be- V. Hartline, 105 Ala. 263; Darling v. longs to the cestui que trust. Ealier's Potts, 118 Mo. 506; Barber d. Bowen, Appeal, 120 Pa. St. 33. 47 Minn. 118; In re Boles & British * Corbin v. Baker, 167 N. T. 128, Land Co. (1902) 1 Ch. 244; Bispham's 134. Prin. Eq. § 94. 6 Corbin u. Baker, 167 N. Y. 128. 1 Schollet). SchoUe, 101 N. Y. 167, See Kullman v. Cox, 167 N. Y. 411; 172; Corbin v. Baker, 167 N. Y. 128, Kirsch v. Tozier, 143 N. Y. 390. 133; Colgate's Executor v. Colgate, 23 « Welch v. McGrath, 59 Iowa, 519. N. J. Eq. 372; Markle's Estate, 182 Pa. And see Pattersons. Leming, 118 Pa. St. 378 ; Boswell v. Coaks, L. R. 23 Ch. St. 571 ; Stewart ». Fellows, 128 111. Div. 302,310; Farmer D. Dean, 32 Beav. 480. Bttt, of course, such transactions 327; 1 Perry on Trusts (5th ed.),§ 195, are scrutinized by the courts with the note (a). most rigid care ; and it must be very 2 Fulton V. Whitney, 66 N. Y. 548 ; clear that the trustee was not person- Torrey v. Bank of Orleans, 9 Paige ally interested in the first purchase. (N. Y.), 649 ; Boswell v. Coaks, L. K. ' Marshall v. Carson, 38 N. J. Eq. 23 Ch. Div. 302, 310. 250 ; Hill on Trustees, 160, 250. EQUITABLE ESTATES. — CONSTRUCTIVE TRUSTS. 551 chase directly at the sale when it is not by or for him, but by some independent party, as when it is made pursuant to an adverse judgment or decree.^ § 388. Trustee's Purchase of Encumbrance — Renewal of Lease in his own Name. — As one who occupies a fiduciary position can not acquire a clear title to the trust property, except under such circumstances as those explained in the preceding para- graph, so he can not obtain for his own benefit, save under like conditions, any claim, encumbrance, or outstanding lien against or interest in that property.^ Being trustee, he must act wholly for the trust. Many other illustrations of this salu- tary principle are supplied by the authorities. But the only one which needs to be added here is that of a renewal of a lease in his own name by one who holds it in a fiduciary or quasi-fiduciary capacity. Such renewal enures to the bene- fit of the cestui que trust, or other party beneficially interested in the original leasehold.^ In the famous " Rumford Market Case," * it was so decided, although the trustee, who ultimately took the new lease in his own name and ostensibly for his own benefit, at first attempted to obtain a renewal expressly for the benefit of the cestuis que trustent, who were infants, and the landlord refused to grant it in that form, because, under the circumstances, he would then have had no means of enforcing payment of the rent. And, in cases like that of " The Hoff- man House," in New York,^ where one partner has endeavored for himself alone to renew a lease owned and controlled by the 1 AUen V. Gillett, 127 U. S. 589; N. Y. 556; McGuire v. Devlin, 158 Fisk V. Sarber, 6 W. & S. (Pa.) 18; Mass. 63; Jones's Estate, 179 Pa. St. BrunertJ. Finley, 187 Pa. St. 389; Hall 36; Wood i^. Irwin, 163 Pa. St. 413, V. Bliss, 118 Mass. 554. But here again 414; Petrie v. Badenoch, 102 Mich. 45; it must be perfectly clear to the court Croue v. Crone, 180 111. 599. Aud this that the trustee has acted in entire good principle applies to all cases in which, faith, and not availed himself of any ad- by virtue of the existence of the orig- vantage growing out of his position. inal lease, a renewal has been obtained See Mullen v. Doyle, 147 Pa. St. 512 ; by one person to the detriment of Parshall's Appeal, 65 Pa. St. 234. another who had an interest in the same. 2 Parkist v. Alexander, 1 .Johns. Ch. In re Lulham, 53 L. J. Ch. N. s. 928, (N. Y.) 394; Dickey's Appeal, 73 Pa. 931; Miti.hell v. Reed, 61 N. Y. 123, St. 218, 247 ; Baker v. Whiting, 3 84 N. Y. 556. Sumn. (U. S. Cir. Ct.) 475; Wellfordu. * Keech v. Sandford, 1 Lead. Cas. Chancellor, 5 Gratt. (Va.) 39. See Eq. 44, called the Kumford Market Kennedy v. De Tafford (1896), 1 Ch. Case, because the lease was of the 762. market-place of that name. » Keech v. Sandford, 1 Lead. Cas. ^ Mitchell v. Eeed, 61 N. Y. 123, 84 Eq. 44 ; Hill v. Hill, 3 H. L. Cas. 828 ; N. Y. 556. Mitchell V. Eeed, 61 N. Y. 123, 84 552 ESTATES IN REAL PROPERTY. firm, he has uniformly been held, on application of the other members, to be a constructive trustee for all the partners.^ This application of the principle, which forbids a trustee to profit by his position, is uniformly adhered to on both sides of the Atlantic.^ But an exception appears under circumstances such as arose in Pennsylvania, where a landlord refused to renew a lease of a colliery unless there was taken with it another colliery, the leasing and operating of which would call for the outlay of large additional sums of money. The first lease — of the one colliery — bemg held by a trustee, it was decided that he acted properly in refusing to risk the trust moneys in the larger enterprise. And he having taken the new and more extensive lease with his own funds, and the entire transaction being proved to be fair and honafide, it was held that no trust was to be raised by equitable construction against him.^ It follows that, where the lease can not be renewed and held for the cestuis without running counter to the well-settled principles which govern the conduct of trustees, the fiduciary holder is free from the operation of the rule which would otherwise preclude him from taking a renewal for his own benefit. § 389. Conclusion as to Trustee and Cestui Que Trust. — The cases here given, in which equity raises constructive trusts because of the apprehension of fraud, are simply the most im- portant instances of the operation of a general rule. And that rule makes the court quick to afford a remedy, through the medium of such a trust, whenever one party occupies a posi- tion towards another which would enable him readily to com- mit fraud without likelihood of detection. It applies, not only to the technical position of trustee and oestui que trust, but also, to a greater or less degree, according to the closeness of the confidence, to all the fiduciary and quasi-fiduciary relationships discussed in this chapter.* 1 See also In re Lnlham, 53 L. J. * Turner r. Sawyer, 150 U. S. 578; Ch. K. s. 928 ; Palmer v. Young, 1 Van Home v. Fonda, 5 Johns. Ch. Vern. 276; Winslow u. Tighe, 2 Ball & (N. Y.) 388, 409; Tanney v. Tanney, B. 195; Featherstonaugh v. Fenwick, 159 Pa. St. 277; Fellows v. Loomis, 17 Ves. 298; Crone v. Crone, 180 111. 170 Pa. St. 415; Hyndman v. Hynd- 599; Keech v. Sandford, 1 Lead. Cas. man, 19 Vt. 9; McHan w. Ordway, 76 Eq. 44, Amer. note. Ala. 347. And see Stevens v. Key- ^ Authorities cited in last three pre- nolds, 143 Ind. 467 ; Kennedy v. De ceding notes. Trafford (1896), 1 Ch. 762. » In re Markle's Estate. 182 Pa. St. 378. EQUITABLE ESTATES. — CONSTRUCTIVE TRUSTS. 653 § 390. Attorney and Client. — The operation of the rules above discussed is so strong between attorney and client, because of tlie powerful influence which the former is supposed to exercise over the mind of the latter, that it has been said, in some cases, that tliey can not make any valid contract between them concerning the subject-matter of the litigation or proceed- ing in which the attorney is acting.^ This is probably too ex- treme a statement.^ But a gift inter vivos of such property from client to attorney, or a purchase of it by the latter, whether directly from the client or at a judicial or official sale, places upon him the heaviest possible burden of proof sliort of that which is absolutely prohibitory.^ A client may give property to his attorney hy will without thereby alone causing any pre- sumption of fraud.* They may fairly contract with eacli other concerning property over which the attorney as such is exer- cising no control or influence ; and so they contract as strangers.^ And after the relation has ceased, and its influence can no longer be supposed to be operative, they can deal with each other at arms' length.^ Thus, they may so deal when tlie attorney has ceased to act as such for his former client and is suing him for fees, or, as a creditor, is otherwise pressing him.7 But when it is at all probable that the confidential position 1 Wright V. Proud, 13 Ves. 136, 138 ; L. E. 6 Ch. Div. 638. But in New York, Holman v. Loynes, 4 DeG. M. & G. aud probably in most jurisdictions, the 270 ; Tyrrell o. The Bank of London, courts have not gone so far. " I find 10 H. L. Cas. 26 ; Frank's Appeal, 59 no case in this state which holds the Pa. St. 190 ; Roby v. Colehour, 135 111. presumption of fraud or undue in- 300 ; Rogers «. Marshall, 3 McCrary fluence to be so strong in law, that it (U. S. Cir. Ct.), 76. cannot be overcome by evidence." Nes- 2 Liles V. Terry (1895), 2 Q. B. bit v. Lockman, 34 N. Y. 167, 169 679; Nesbit v. Lockman, 34 N. Y. 167, Whitehead v. Kennedy, 69 N. Y. 462 169 ; Whitehead v. Kennedy, 69 N. Y. Barnard v. Gantz, 140 N. Y. 249 ; Herr 462,466; Story, Eq. Jur. § 311. V. Payson, 157 111. 244; 1 Perry on 8 O'Brien v. Lewis, 9 Jur. (n. s.) Trusts, § 202. 528 ; Newman u. Payne, 2 Ves. 199 ; * Hindson v. Weatherill, 5 DeG. M. Liles o. Terry (1895), 2 Q. B. 679; & G. 301; Bancroft v. Otis, 91 Ala. Nesbit V. Lockman, 34 N. Y. 167 ; Mat- 279 ; Matter of Will of Smith, 95 N. Y. ter of Demarest, 11 N. Y. App. Div. 516; § 386, s«/»a. 156 ; United States v. Coffin, 83 Fed. ■■> Bellew v. Russell, 1 Ball & B. 96, Rep. 337; Mott v. Harrington, 12 Vt. 104; Edwards «. Meyrick, 2 Hare, 60; 199; Smith v. Brotherline, 62 Pa. St. Montesquieu u. Sandys. 18 Ves. 302. 461 ; Trotter v. Smith, 59 111. 240 ; Dono- « Wood «. Downes, 18 Ves. 120, 127 ; hoe V Chicago Cricket Club, 52 N. E. Smith v. Brotherline, 62 Pa. St. 461. Rep. (111.) 351. It is said by some See Troxell u. Silverhorn, 45 N. J. Eq. authorities that a gift of this character 330. is absolutely void. See Bispham's Prin. ' Johnson v. Fesemeyer, 3 DeG. St Eq. § 236, citing Greenfield's Est., 14 J. 13; Smith v. Brotherline, 62 Pa. St. Pa. St. 489, 506; Morgan u. Minott, 461. 554 ESTATES IN REAL PROPERTY. may have operated to the advantage of the attorney, even though as such attorney he had no direct control of the property, the onus of proving the most absolute fairness and good faith is imposed upon him.^ The same is true as to counsellors, solici- tors, and legal advisers generally, while they are acting for their clients as clients? And, as above shown, if being author- ized to sell their clients' property, they purchase for their own benefit, in the absence of such circumstances as would enable a technical trustee to so purchase, tlie beneficiaries may, at their option, have the sale set aside through the medium of a constructive trust.^ § 391. Guardian and Ward. — While two persons stand towards each other in the relation of guardian and ward, it is practically impossible for any contract of either gift or sale to take place between them, which may not be repudiated by the ward simply on the ground of his infancy.* But, during this period, the guardian may sometimes seek to acquire the ward's property through a sale or other transfer by himself, or by some other person acting under an authority given by deed or will, or by some competent court. Such a transaction can rarely stand, if the ward proceed properly to have it set aside because of presumed fraud.^ It produces one of the most difficult cases of all those in which a fiduciary purchaser or donee attempts to avoid a constructive trust by proving fairness. And, when he pays very little or no consideration, he generally can not succeed.® In some states tlie purchase by a guardian of his ward's real property is declared by statute to be abso- lutely void, and his act of so purchasing a misdemeanor. '* (a) (a) The provision of the New York Code is: "A commissioner, or other officer making a sale, as prescribed in this title, or a guardian, of an 1 Henry K. Raiman, 25 Pa St 354; 688; Green v. Green, 69 N. Y. 553; Hockenbury v. Carlisle, 5 Watts & S. Sparman v. Keim, 83 N. Y. 245, 250; (Fa) 348, 350; Beedle v. Crane, 91 Bool w. Mix, 17 Wend. (N. Y.) 119. Mich. 429; Place u. Hay ward, 117 N.Y. 6 O'Donoghue u. Boies, 159 N. Y. 487, 496. 87 ; Farmer v. Farmer, 39 N. J. Eq. 2 But when they are consulted sim- 211 ; 1 Perry on Trusts, § 200. ply as friendjS, or in some capacity '^ Dawson v. Massey, 1 Ball & B. other than that of legal advisers, the 219, 226; Farmer u. Farmer, 39 N. J. rule does not apply. Devinney u. Nor- Eq. 211. And see Hugueuiu u. Base- ris, 8 Watts (Pa), 314 ; Bank v. Foster, ley, 14 Ves. 273, 2 Lead. Cas. Eq, 556 ; 8 Watts (Pa.), 304 ; Dobbins u. Stevens, Bispham's Prin. Eq. § 234. 17 S. & R. (Pa.) 13. ' N. Y. Code Civ. Pro. § 1679; 8 § 387, sup-a. Boyer v. East, 161 N. Y. 580; 1 Stim. * Dawson v. Massey, 1 Ball & B. Amer. Stat. L. § 2617. 219, 226 ; MacGreal «. Taylor, 167 U. S. EQUITABLE ESTATES. — CONSTRUCTIVE TRUSTS. 655 When the guardianship has terminated, but its influence over the mind of tlie erstwhile ward may fairly be supposed to con- tinue, conveyances by him to the guardian, and settlements of the estate between them are looked upon with suspicion by courts of equity ; and a constructive trust arises unless the transferee proves clearly that there was no fraud, undue influ- ence, or unfair dealing in the transaction.^ The burden rests heavily upon the party who has recently had the power and ascendency over the other, which is ordinarily produced by such a relationship.^ Not until it is fair to assume that that influ- ence has worn away, or it is proved as a fact that it no longer exists, can they be said to deal with each other at arms' length. The smaller the consideration and the more recent the termin- ation of the guardianship, the heavier the burden of proof.^ And, when the transfer is inter vivos and purely gratuitous, immediately after the ward has become of age, the presumption of fraud is almost though not absolutely conclusive.* When infant party to the action, shall not, nor shall any person for his benefit, directly or indirectly, purchase, or be interested in the purchase of, any of the property sold ; except that a guardian may, where he is lawfully authorized so to do, purchase for the benefit or in behalf of his ward. The violation of this section is a misdemeanor; and a purchase made con- trary to this section is void." N. Y. Code Civ. Pro. § 1679; formerly 2 R. S. 326, § 58. This section is in the "title" of the code, which re- lates to actions concerning real property. It is entitled, " Purchases by certain officers prohibited. Penalty." And it is held not to apply to guar- dians generally, such, for example, as a guardian in socage, but only to guardians ad litem — those who, being appointed by the court, become its officers for the purpose of the respective actions. Boyer v. East, 161 N. Y. 580. When a guardian ad litem purchases realty affected by the action for which he was appointed, the burden is on him, in order to avoid the effect of the statute, of proving that he bought for the benefit of his ward. If he fail to prove this, his purchase is void, and the act of purchasing a misdemeanor. O'Donoghue v. Boies, 159 N. Y. 87, 102. 1 Dawson v. Massey, 1 Ball & B. Pierce u. Waring, 1 P. Wms. 120, n.; 219, 226; Wright u. Proud, 13 Ves. 136; Whitman's Appeal, 28 Pa. St. 348; Hatch V. Hatch, 9 Ves. 291 ; Bostwick O'Donoghue v. Boies, 159 N. Y. 87. V. Atkins, 3 N. Y. 53 ; Strauss v. Bend- ' " Nothing can be allowed to stand heim, 1 62 N. Y. 469 ; Somes v. Skinner, that proceeds from the pressure of the 16 Mass. 348 ; Says v. Barnes, 4 S. & R. relation of guardian and ward fresh (Pa.) 112; Richardson v. Linney, 7 B. upon the mind of the ward." 1 Perry Mon. (Ky.) 571 ; Waller v. Armistead, on Trusts, § 200. 2 Leigh (Va.), 11; McKonkey v. * Dawson u. Massey, 1 Ball & B. Cockey, 69 Md. 286; Garvin v. Wil- 219, 226, and other cases cited in last liams, SO Mo. 206. four preceding notes. 2 Hatch V. Hatch, 9 Ves. 292, 297 ; 556 ESTATES IN EEAL PROPERTY. the gift is by will, however, the rule is the same as in the case of trustee and cestui que trust, i. e., while the relationship is an important item of evidence and the cause of suspicion and careful scrutiny by the court, it is not in itself sufficient to shift the burden of proot upon the donee.^ § 392. Parent and Child. — Tlie law favors proper family settlements and arrangements.^ It is assumed, too, that the influence naturally existing between parent and child will be more apt to be employed for fair and equitable results than will that between guardian and ward.^ The burden of proof, therefore, is not shifted by the mere fact that a parent buys property from his child, or receives it as a gift from him, or that it passes by either of these methods to the child from the parent. The presumption is in favor of the validity of the transfer.* But the closeness of the relationship and the oppor- tunities which it affords for unfair dealing are circumstances of suspicion, which cause the court of equity to scrutinize tlie transaction very carefully. And when other circumstances, though slight, indicate that fraud or undue influence may have been employed, the additional fact that this relation exists between the parties will readily turn the scales against the transaction.^ Thus, the fact that the parent is old and feeble and has come to rely to some extent upon the child ; ® or, on the other side, that the child is inexperienced, and in other matters has been unfairly treated by the parent, or that the transfer is very detrimental to the child,'' will be enough to shift upon the donee the burden of overcoming the presumption of fraud and a constructive trust. The same rule applies between children and all those who stand in loco parentis to 1 § 386, supra ; Bancroft v. Otis, 91 the shifting of the burden of proof by Ala. 279 ; Matter of Smith, 95 N. Y. the mere e.\isteiice of this relationship. 516; 7)1 re Adams' Estate, 201 Pa. St. See Smith v. Kay, 7 H. L. Cas. 750; 502. Baker v. Bradley, 7 DeG. M. & G. 597 ; 2 Hartopp V. Hartopp, 21 Beav. 259 ; Eeaddy v. Pendergast, 55 L. T. Rep. Hoblyn V. Hoblyn, L. R. 41 Ch. Dir. 767; Bainbrigge «. Browne, L. R. 18 200; 1 Perry on Trusts, § 201. Ch. Div. 188. 8 Jenkins!). Pye, 12 Pet. (U. S.)241, » Taylor v. Taylor, 49 U. S. 183; 253 ; Matter of Will of Martin, 98 N. Y. Barnard v. Gantz, 140 N. Y. 249 ; Ber- 193 ; In re Budlong's Will, 126 N. Y. gen v. Udall, 31 Barb. (N. Y.) 9 ; Miller 423 ; Crothers v. Crothers, 149 Pa. St. ». Simonds, 72 Mo. 669. 201 ; Francis v. Wilkinson, 147 111.370; « Barnard v. Gantz, 140 N. Y. 249 ; Millican v. Millican, 24 Tex. 426. 1 Perry on Trusts, § 201. * Towsonu. Moore, 173 tJ. S. 17,24; ' Taylor v. Taylor, 49 TJ. S. 183; Jenkins v. Pye, 12 Pet. (U. S.) 241, and Towson v. Moore, 173 U. S. 17 ; 1 Perry other cases cited in preceding note. But on Trusts, § 201. some of the modern English cases fav.or EQUITABLE ESTATES. — CONSTRUCTIVE TRUSTS. . 557 them.^ And, in a greater or less degree, according to the near- ness and intimacy of kinship, it affects all close family relationships.^ § 393. other Close Relatioua. — The foregoing discussion shows the general principle at the foundation of constructive trusts raised upon the presumption or apprehension of fraud growing out of the relation or connection between the parties. Trustee and cestui que trust, attorney and client, guardian and ward, where that relation still subsists or has but recently terminated, — these are the parties between whom such a trust will be readily interposed, simply because of the existence of the relationship.^ Like the relation of parent and child, the other close connections and associations are circumstances of suspicion and items of evidence, which call for careful scrutiny and cause courts of equity to look at the transactions " with a jealous eye ; " but they do not generally, when unaided by proof of other facts of suspicion, give rise to constructive trusts. Of course, the closer such persons stand to each other, and the more intimate their association, the greater is the aid which their relationship gives to those wlio seek to impugn their transactions. Husband and wife, principle and agent, steward and employer, minister and parishioner, confidential medical adviser and patient, promoters and directors of corporations and the corporations and their stockholders, partners, tenants in common, intimate neighbors or friends, and many others come within the operation of this general rule.* § 894. Promoters and Directors of Corporations have fur- nished some prominent instances of the working of the principle. Thus, in Tyrrell v. The Bank of London,^ one, who was already interested with others in organizing a bank, purchased land, a part of which he subsequently sold to the new company (of which he had become a director), at a price materially larger than that paid by himself. It was held that, since his relation 1 Archer v. Hudson, 7 Beav. 551; IDrury, 310; Richardson «. Green, 133 Maitland v. Irving, 15 Sim. 437. U. S. 30; Carpenter v. Carpenter, 131 2 Harvey o. Mount, 8 Beav. 439; N. Y. 101 ; Pierce v. Pierce, 71 N. Y. Sears v. Shafer, 6 N. Y. 268 ; Smith „•. 154 ; McClellan v. Grant, 83 N. Y. App, Smith, 134 N. Y. 62 ; Kennedy v. Ken- Div. 599 ; Bud C. & I. Co. v. Humes, nedy, 2 A)a. 571 ; Hewitt v. Crane, 2 157 Pa. St. 278; Wickersham v. Crit- Halst. Ch. (N. J.) 159. tenden, 93 Cal. 17; Jacobs v. Lude- 8 §§ 386, 390, 391, supra. mann, 137 Cal. 176 ; McKee v. GriggS; * Hugnenin v. Baseley, 14 Vea. 273 ; 51 N. J. Eq. 178 ; Hill on Trustees, 547 SheflSeld Society v. Aixlewood, L. R. 1 Perry on Trusts, § 204. 44 Ch. Div. 412; Ahearns v. Hogan, « 10 H. L. Gas. 26. 558 ESTATES IN HEAL PROPERTY. to the corporation was fiduciary at the time of his purchase, and he had concealed from it the fact of his own gain in the transaction, he held that gain as its constructive trustee. i This, it seems, will not be the result, in the absence of actual fraud, if the promoter purchase the land and own it before he becomes in any way interested in the corporation.^ But even in such a case a trust will arise against him, if in selling to the company he make any false representation as to what he paid for the property.^ § 395. Purchases under Contract or Promise to Convey. — Another important group of such cases embraces those trans- actions in which confidential agents or other fiduciary parties acquire property, which they have orally agreed to purchase for persons already owning some interest either in tlie land itself or in its purchase money ; and then seek to avail themselves of the statute of frauds* as an excuse for not performing their agreements. ^Equity will not permit that statute to be thus used as an instrument of f raud.^ And, in favor of such an interested party, it will raise a constructive trust in the land so bought. Thus, if a person buy realty under an oral agreement to convey all or part of it to one who already has an interest therein, such as a mortgagor whose land is being sold on foreclosure, or a part owner of property sold for partition, equity will hold the purchaser a trustee for him who has such interest.^ So, when the contracting parties are partners, and the partnership funds are used in payment, or those funds are so employed by one partner even without the knowledge of the other, or if each of the parties contribute a definite portion of the purchase money 1 See also Archer's Case (1892), statute, or its equivalent here, which 1 Ch. 322, 341 ; McGourkey v. Toledo requires the contract or some note or & Ohio Cent. R. Co., 146 U. S. 536, memorandum thereof to be in writing, 565; Brewster v. Hatch, 122 N. Y. 349; in order to establish an agreement for Ex. Mission Land & Water Co. v. Flash, any interest in lands, tenements, or 97 Cal. 610, 634; Russel v. Fuel Gas hereditaments. 29 Car. II. ch. 3, § 4; Co., 184 Pa. St. 102; Collins d. Case, 23 N. Y. L. 1896, ch. 547, § 224; Stira. Wis. 230, 16 Amer. Law Rev. 671. Amer. Stat. L. § 4140. ^ Erlanger v. New Sombrero Phos- ^ Maddisonw. Alderson, L. R. 8 App. phate Co, L. R. 3 App. Cas. 1218, 1236; Cas. 467, 474; Bork o. Martin, 132 Ladywell Mining Co. v. Brookes, L. R. N. Y. 280 ; Trapha^en v. Burt, 67 N. Y. 35 Ch. Div. 400 ; Milwaukee Cold Stor- 30 ; Wainwright o. Talcott, 60 Conn, age Co. 1;. Decker, 40 Lawy. Rep. Ann. 43 ; Adam's Eq. 46. 837 ; Bisphara's Prin. Eq. § 239. o Ryan v. Dox, 34 N. Y. 307 ; Peck ' Ex. Mission Land & Water Co. v. v. Peck, 110 N. Y. 64; Cook t>. Cook, 69 Flash, 97 Cal. 610; McGourkey v. T. & Pa. St. 443; Kent v. Dean, 128 Ala. O. Cent. R. Co., 146 U. S. 536, 565. 600; Grumley v. Webb. 44 Mo. 444; * Tbe fourth section of the English Mackay v. Martin, 26 Tex. 57. EQUITABLE ESTATES. — CONSTRUCTIVE TEUSTS. 559 or other consideration before the land is bought, a constructive trust will arise against the purchaser who seeks to hold the property as exclusively his own.^ But beyond this equity adheres to the statute of frauds ; and, where the contracting parties are strangers, will not enforce an oral agreement to convey realty to one who has no existing interest in it at the time of its purchase by the other party, and who has done no act of part performance and has parted with nothing of value pursuant to his contract with the purchaser.^ § 396. Gifts from Fraudulent Taker. — It is to be added that, if one claim as a gift property coming to him through another's practices which are actually fraudulent, or for any cause are presumed to be so, he holds it constructively in trust for the rightful owner. Under such circumstances, said Chief Justice Wilmot, in Bridgman v. Green, " Let the hand receiving the gift be ever so chaste, yet if it comes through a polluted channel, the obligation of restitution will follow it." ^ Being once touched by the fraud, tlie land can not be cleansed from the defilement until the injured party has obtained his redress, or the property has come into the hands of an innocent pur- chaser for value without notice of the wrong.* § 397. Remedy. — In all these cases of constructive trusts, whether established by proof of actual fraud or raised by pre- sumption of equity, the injured party may have a reconveyance of the property, if it be still in the hands of the trustee ; or, when it has passed beyond the reach of such redress, he may have an accounting and damages against the wrong-doer.'' 1 Collins V. Carsons, 30 Atl. Rep. 29 N. J. Eq. 458 ; Taylor v. Boardman, (N. J. Eq.) 162; Everlyu. Harrison, 167 24 Mich. 287; Bobbins v. Kimball, 55 Pa. St. 355; Cuahing v. Danforth, 76 Ark. 414; Minot v. Mitchell, 30 Ind. Me. 114; Bryan v. McNaughton, 38 228; Barden v. Harltey, 112 Wis. 74; Kan. 98; Van Buskirk w. Van Buskirk, Burden v. Sheridan, 36 Iowa, 125; 35 Me. 383; Aborn v. Searles, 18 R. I. James v. Smith (1891), 1 Ch. 384. 357 ; Reorganized Church v. Church of » 2 Ves. Sr. 627. Christ, 60 Fed. Rep. 937 ; Barton v. * Bassett v. Nosworthy, 2 Lead. Cas. McGrader, 69 Miss. 462. But it is held Eq. 1, and notes; Anderson v. Blood, in some states that the whole of the 152 N. Y. 285; notes, §§ 297, 364, purchase money must be advanced be- supra. fore the purchase, by one who claims ^ Ex parte Reynolds, 5 Ves. 707 ; the benefit of such a trust. Schierloh Fox v. Mackreth, 1 Lead. Cas. Eq. «. Schierloh, 148 N. Y. 103 ; Bryant v. p. * 115; Jackson v. Walsh, 14 Johns. Allen, 54 N. Y. App. IMv. 500 ; Dudley (N. Y.) 407, 415; Eobbins v. Bates, V. Dudley, 176 Mass. 34. 4 Cush. (Mass.) 104; Sohler v Sobler, 2 Levy u. Bush, 45 N. Y. 589 ; Emer- 135 Cal. 323; Bispham's Prin. Eq. son V. Galloupe, 158 Mass. 146 ; Fox v. § 239. Peoples, 201 Pa. St. 9 ; Nestal v. Schmidt, 560 ESTATES IN REAL PROPERTY, § 398. (7) Constructive Trusts arising from Fraud presumed or declared to exist as affecting Third Parties. — In many in- stances in which real property is conveyed or transferred in such a manner as to injure the rights of third persons not parties to the transactions, statutes or common-law rules or both, afford substantial remedies, without calling for any trust or any application to a court of equity. That court, however, will take cognizance of such cases and grant relief through the medium of a constructive trust, the foundation of which is fraud actual or presumed. And suits in equity, upon this theory of a trust, are now the most ordinary methods of pro- cedure for the redress of such grievances. The important groups of fraud which give rise to them are fraud on pur- chasers, fraud on creditors, fraud on marital rights and fraud on powers. A few words as to each of these will be sufficient. § 399. Fraud on Purchasers. — If the owner of land make a voluntary conveyance of it to one person, — i. e., a conveyance without any valuable consideration, — and then convey it to another person for value, the first taker is readily presumed to be a fraudulent holder in trust for the second purchaser. This was the rule in equity even before the matter was affected by legislation.^ By the statute of 27 Eliz. ch. 4, which was made perpetual by the act of 39 Eliz. ch. 18, § 31, it was enacted that any conveyance, lease, or other transfer of any lands, tenements, or hereditaments, for the purpose of defraud- ing and deceiving persons who shall purchase the same for valuable consideration, " shall be deemed, only against such persons, to be wholly void, frustrate, and of none effect." This statute has been substantially re-enacted or tacitly adopted in all the states of this country .2 And it affords a solid base for a constructive trust, when the defrauded purchaser for value seeks his remedy in equity.^ There is, however, a radical distinction between the English construction of this statute and its construction in America. In England the purchaser or encumbrancer for value can have the other taker declared a trustee, and his acquisition of tho property nullified, even though the former when he purchased 1 Perry-Herrick v. Attwood, 2 DeG. " 1 Stim. Amer. Stat. L. § 4592. & J. 21 ; Lloyds 13k. Limited v. Bullock » Ellison v. Ellison, 1 Lead. Cas. Eq. (1896), 2 Ch. 192, 198; Davis v. Bigler, p. *245, and notes; Cathcart v. Kobin- 62 Pa. St. 242, 247 ; Kerr on Fraud and son, 30 U. S. (5 Pet.) 264, 279. Mistake, 227 ; May, Er. Conv. 3. EQUITABLE ESTATES. — CONSTRUCTIVE TRUSTS. 561 had notice of the voluntary conveyance.^ The theory is that, since the voluntary transfer is made void by the statute, it may be disregarded by a subsequent purchaser for value from the same grantor.^ It is essential that such subsequent purchase shall be fi'om the same grantor. An heir or devisee can not defeat liis ancestor's or testator's voluntary conveyance, by merely selling the same land for value to one who has notice.* And when a voluntary taker has conveyed to another person for value, the latter may hold the property against a subsequent purchaser from the original grantor.* In this country, a pur- chaser or encumbrancer for value, who has notice of a prior transfer of the land without value, taiies subject to the rights of the voluntary grantee, unless the latter was privy to an in- tended wrong ; and this is true whether the two conveyancers were made by the same person or by different persons.^ In New York, and possibly in some other states, the statute ex- pressly declares that this shall be the effect of such notice.® (a) The fact, moreover, that most conveyances and encumbrances, (a) This statute, first enacted in 1787, and taken from 27 Eliz. oh. 4, was contained in 2 J. & V. 88, § 3, and 2 R. S. 134, §§ 1, 2 ; and now, in Real Prop. L. § 226, reads as follows : " A conveyance of an estate or in- terest in real property, or the rents and profits thereof, and every charge thereon, made or created with intent to defraud prior or subsequent pur- chasers or encumbrancers, for a valuable consideration, of the same real property, rents, and profits, is void as against such purchasers and en- cumbrancers. Such a conveyance or charge shall not be deemed fraudulent in favor of a subsequent purchaser or encumbrancer, who, at the time of his purchase or encumbrance, has actual or legal notice thereof, unless it appears that the grantee in the conveyance, or the person to be benefited by the charge, was privy to the fraud intended." The last sentence of this statute was first added in 2 R. S. 134, § 2. See Matter of Jacobs, 98 N. Y. 98 ; Mosley v. Mosley, 15 N. Y. 334 ; Jackson v. Garnsey, 16 Johns. 189; Ames v. Blunt, 5 Paige, 13; Jackson v. Cadwell, 1 Cow. 622; Youngs V. Garten, 1 Abb. N. C. 136 ; Becknell y. Lancaster Ins. Co., 1 T. & C. 215, 58 N. Y. 677; Ten Eyck v. Witbeck, 135 N. Y. 40. 1 Evelyn w. Templar, 2 Bro. Ch. 148 ; ^ Cathcart v. Robinson, 30 U. S. Doe V. James. 16 East, 212; Hill v. (5 Pet.) 264,279; Verplanck a. Sterry, Bishop of Exeter, 2 Taunt. 69; Buckle 12 Johns. (N. Y.) 536 ; Roberts v. An- V. Mitchell, 18 Ves. 100, 111 ; Gooch's derson, 3 Johns. Ch. (N. Y.) 371; Lau- Caae, 5 Rep. 60. See Sterry v. Arden, caster v. Dolan, 1 Bawle (Pa ), 231 ; 1 Johns. Ch. (N. Y.) 261, 268. Mayor u. Williams, 6 Md. 235, 242; ^ Cases cited in last preceding note; Keeling v. Hoyt, 31 Neb. 453; 4 Kent's Cathcart v. Robinson, 30 U. S. (5 Pet.) Com. p. *463 et se.q. 264,279. 8 N. Y. L. 1896, ch. 547, § 226; 1 3 Kerr on Eraud and Mistake, 229. Stim. Amer. Stat. L. § 4592. " Ibid. ; Bassett v. Nosworthy, 2 Lead. Cas. Eq. 1, and notes. 36 562 ESTATES IN REAL PROPERTY. in this country are recorded, and thereby constructive notice of them is given to subsequent purchasers and encumbrancers, makes it very rare that constructive trusts arise here because of such fraud on purchasers of real property. Still the principle is here, and lias been applied in some cases in which purcliasers, mortgagees, etc., for value have had no notice, by record or otherwise, of prior conveyances to voluntary grantees. -"^ § 400. Fraud on Creditors. — Upon the principle that a man must be just before he is generous, the owner of property is forbidden to give it away so as to impair the rights of his creditors. This has been always true, of course, as a working principle in both law and equity.^ But, probably because of the frequent attempts to violate it, and the difficulties thrown in the way of its enforcement, statutes were passed in very early times, and have been re-enacted and rigidly enforced on both sides of the Atlantic, for the protection of creditors against such covinous transfers. Usually the best remedy for a creditor, in these cases, is in equity, on the theory that tiie holder of the legal estate is his constructive trustee.^ Beginning as early as Edward III.,* these enactments cul- minated in England in the celebrated statute of 13 Eliz. ch. 5, which, after reciting that feoffments, gifts, grants, etc., had been contrived of malice, fraud, covin, etc., "to delay, hinder, or defraud creditors or others of their just and lawful actions, suits, debts, accounts," etc., provides in substance that every transfer of lands, tenements, hereditaments, goods, and chattels, or any of them, for any such intent or purpose, shall be utterly void, as against the person and his heirs, successors, etc., whose actions, suits, debts, etc., are or might be thereby disturbed, ' Cases cited in last three preceding 639 ; Bearing v. McKinnou, etc. Co., notes. Voluntary conveyances are good 165 N. Y. 78, 90. between the immediate parties. But ' Twyne's Case, 1 Smith's L. C. 1, courts will not ordinarily aid any one 33, 49 ; Blenkinsopp v. Blenkiusopp, to enforce an executory agreement to 1 DeG. M. & G. 495, 500; Hendricks make a voluntary settlement or trans- v. Robinson, 2 Johns. Ch. (N. Y.) 283 ; fer. Matter of James, 146 N. Y. 78, Weed o. Pierce, 9 Cow. (N. Y.) 722; 93; Wadd t). Hazleton, 137 N. Y. 215; Cook v. Johnson, 12 N. J. Eq. 51; Pomeroy, Eq. Jur. § 1148; Story, Eq. Athey v. Knotts, 6 B. Mou. (Ky.) 24; Jur. § 987. See Tarbox v. Grant, 56 People's Bk. v. Loeffert, 184 Pa. St. N. J. Eq. 199; Laudon v. Hutton, 50 164, 172; Botsford v. Beers, 11 Conn. N. J. Eq. 500; Lawrence v. Lawrence, 370. 181111.248; 1 Perry on Trusts, § 109. * Stat. 50 Edw. III. v. 6; Stat. 2 Notes to Twyne's Case, 1 Smitli's 3 Hen. VII. ch. 4 ; Stat. 2 Rich. II. L. C. 1, 33 ; Clements v. Moore, 73 U. S. ch. 3 ; notes to Twyne's Case, 1 Smith's 299; Cadogan v. Kennett, 2 Cowp. 432. L. C. 1, 33. See Davis v. Schwartz, 155 U. S. 631, EQUITABLE ESTATES. — CONSTRUCTIVE TRUSTS. 563 hindered, delayed, or defrauded. Such is now, also, the statu- tory law in most, if not all, of the United States.^ (a) The conveyances, which are thus rendered voidable, are those which are made with fraudulent intent.^ If the motive which actuated both parties to the transaction can be shown to have been to hinder, delay, or otherwise injure creditors of the grantor, those creditors may treat the grantee as their con- structive trustee, and have the deed to him set aside, even though he paid value, either in part or in full, for the property .^ The cases, however, in which such relief is most readily obtain- able, are those in which the conveyances are voluntary, or for small or inadequate consideration. Hence these proceedings (a). The New York statute, which was 2 R. S. 137, § 1, taken from Jones and Varrick's revision of 1786-87 (2 J. & V. 88), in its turn taken from 13 Eliz. ch. 5, is now Real Prop. L. § 227, which provides that " A conveyance or assignment in writing or otherwise, of an estate, inter- est, or existing trust in real property, or the rents or profits issuing there- from, or a charge on real property, or on the rents or profits thereof, made with the intent to hinder, delay, or defraud creditors, or other persons, of their lawful suits, damages, forfeitures, debts, or demands, or a bond or other evidence of debt given, suit commenced, or decree or judgment suffered, with the like intent, is void as against every person so hindered, delayed, or defrauded." See also §§ 228-232 ; L. 1897, ch. 417, §§ 7, 24- 29; L. 1902, ch. 528; Bearing v. McKinnon, etc. Co., 165 N. Y. 78; Manning v. Beck, 155 N. Y. 577; Bristol v. Hull, 166 N. Y. 59; First Nat. Bk. V. Miller, 163 N. Y. 164; Beuerlien v. O'Leary, 149 N. Y. 33; Murphy v. Briggs, 89 N. Y. 446 ; Commercial Bk. v. Sherwood, 162 N. Y. 310; Billings v. Russell, 101 N. Y. 226; Neuberger v. Keim, 134 N. Y. 35; Jacobs v. Morrison, 136 N. Y. 101 ; Seymour v. Wilson, 19 N. Y. 417; Galle v. Tode, 148 N. Y. 270; Metcalf v. Moses, 161 N. Y. 587; Albany Co. Sav. Bk. v. McCarthy, 149 N. Y. 71; Matteson v. Falser, 173 N. Y. 404; Jenkins v. Good C. & M. Co., 56 App. Div. 573, aff'd 168 N. Y. 679; Masch v. Grauer, 58 App. Div. 560; N. Y. Co. Nat. Bk. v. Amer. Surety Co., 69 App. Div. 153. 1 N. Y. L. 1896, ch. 547, § 227, see 99 ; Zerbe v. Miller, 16 Pa. St. 488, 497 ; also §§ 228-232 ; 1 Stim. Amer. Stat. L. Gable v. Columbus Cigar Co., 140 Ind. §§4591,4593; 2 Keut's Com. p. *440 ; 563; Beasley a. Bray, 98 N. C. 266; National Bankruptcy Act of 1898, oh. Beidler v. Crane, 135 111. 92, 96 The HI, §§ 3, 60, 67. fraudulent purpose of the debtor is 2 Zoeller v. Riley, 100 N. Y. 102; properly imputed to the creditor, if he Metcalf V. Moses, 161 N. Y. 587 ; Wer- passively accepted the advantage of ner v. Zierfuss, 162 Pa. St. 360; Fidler the debtor's wrong-doing, as by letting V. John, 178 Pa. St. 112; Stewart o. him fraudulently confess judgment, etc. Exch. Bank, 55 N.J. Eq. 795 ; Bouquet Metcalf v. Moses, 161 N. Y. 587 ; Green- V. Heyman, 50 N. J. Eq. 114; Bump, waldw. Wales, 174 N. Y. 140. See Carr Fraud. Conv. § 594. v. Briggs, 156 Mass. 78; Bump, Fraud. 8 'I'wyne's Case, 1 Smith's L. C. 1, Conv. 197; Kerr on Fraud and Mis- 33 ; Holmes v. Penney, 3 Kay & J. 90, take, 200. 564 ESTATES IN REAL PROPERTY. are frequently spoken of as made to set aside " voluntary con- veyances in defraud of creditors." i In the last analysis, every transfer of property for less than its value is voluntary in character ; there is a gift of so much as it is worth over and above the consideration. The greater this difference be- tween the price paid and the value, the more readily may the vendor's creditors set aside the conveyance. But even the fact that the transfer is wholly a gift is not, of itself, sufficient to prove fraud.2 The question is one of fact, to be determined from evidence of the circumstances of each case.^ A man may, for example, make a valid gift to his wife, or to a relative or friend, if he do not thereby materially impair his means of paying all his debts.* But if such disposal of his property leave him insolvent, it is difficult and usually impossible for him to prove against his creditors that it was not fraudulent.* The criterion appears to be whether or not the " donor has, at the time, the pecuniary ability to withdraw the amount of the donation from his estate without the least hazard to his credi- tors, or in any material degree lessening their prospects for payment." ® A bona fide alienation for value, on the other hand, may be sustained, even when made by an insolvent grantor,^ and the value may be a past consideration.* Thus, in the ab- 1 Authorities cited in last three pre- " Metcalf v. Moses, 161 N. Y. 587; ceding notes. 2 Kent's Cora. 441. 2 Townsend u. Westcott, 2 Beav. 340 ; ' Jenljyn v. Vaughan, 3 Drew. 419, Sexton w. Wheaton, 21 U. S. (8 Wheat.) 42.'5; Thompson v. Webster, 4 Drew. 229 ; Nattingly v. Nye, 75 U. S. 370; 628; Kent v. Riley, 14 Eq. 190; Bump, First Nat. Bk. v. Miller, 163 N. Y. Fraud. Conv. 291. 164, 167. In order to render a volun- 1 Clements u. Moore, 73 TJ. S. 299, tary conveyance void as to subsequent 312; Galle v. Tode, 148 N. Y. 270; creditors, there must be affirmative Hancock v. Elmer, 61 N. J. Eq. 558 ; evidence that it was made to defraud De Hierapolis v. Reilly, 44 N. Y. App. them. Nattingly v. Nye, 75 U. S. 370 ; Div. 22 ; Skirm v. Rubber Co., 57 N. J. Buckley v. Duff, 114 Pa. St. 596 ; Todd Eq. 179 ; Beasley v. Bray, 98 N. C. 266 ; V. Nelson, 109 N. Y. .316; Bouquet v. Van Baalte u. Harrington, 101 Mo. Heyman, 50 N. J. Eq." 114. 602. a First Nat. Bk. v. Miller, 163 N. Y. » Commercial Bk. v. Slierwood, 162 164, 167; Bristol w. Hull, 166 N. Y. 59, N. Y. 310; Huntley u. Kingman, 152 66; Bataviau. Wallace, 102 Fed. Rep. TJ. S. 527, 532; Dodge i'. McKeclinie, 243; Jones v. Simpson, 116 U. S. 609; 156 N. Y. 514, 520; Rep. Chemical Co. N. Y. L. 1896, ch. 457, § 229; Twyne's v. Victor Co.. 101 Fed. Rep. 948. But Case, I Smith's L. C. 33, 37, 40. see Nat. Bankruptcy Act, 1 898, ch. 1 1 1 a, ^Hopkins v. Randolph, 2 Brock. 2; West Co. u. Lea, 174 U. S. 590; Gold- (U. S. Cir. Ct.) 132; Casey v. Davis, man v. Smitli, 93 Fed. Rep. 182; Nat 100 Mass. 124, 130; Dawson v. Walte- Bk. & Loan Co. v. Spencer, 53 N. Y. raeyer, 91 Md. 328; 2 Bigelow on App. Div. 547; Snell's Eq. 68. Fraud, 393. EQUITABLE ESTATES. — CONSTRUCTIVE TRUSTS. 565 sence of positive statutory restrictions such as insolvent or bankrupt laws, a debtor, acting in good faith, may exhaust his assets in paying only one or a few of his many creditors ; or he may use them in paying a just claim that has become barred by the statute of limitations.^ It suffices, if he satisfy a present moral obligation, which is founded upon an antecedent legal obligation.^ So, he may validly convey his property for money, or money's worth, or a marriage contracted as a quid pro quo for the transfer, — these being the three forms of valuable con- siderations. When such a consideration is proved, and no fraudulent intent is established, the transaction is sustained.^ The immediate parties to transactions which are fraudulent against creditors can not have them set aside, nor have any trusts founded upon them, because they can not take advan- tage of their own wrong.^ But the statutes give the remedy to creditors and others who may be injured by the transaction. All persons are thus included who have claims against the donor or grantor which ought to be satisfied out of his prop- erty.* Such, for examples, are a person entitled to a penalty against him under the usury law,^ a party with a claim in tort against him for injury to person or property," and his wife suing for divorce and alimony.'^ Not only those who are creditors of the grantor or donor at the time of the fraudulent conveyance, but, by the weight of authority, also, those subsequent creditors, whose rights are impaired by the transfer, may liave the trans- action declared fraudulent and set aside in their favor. Such are those cases in which one about to enter upon a hazardous financial enterprise, or to go into uncertain or reckless specula- tion, disposes of his property by voluntary settlement, and then by such business or speculative operations incurs debts which his remaining assets will not discharge.*^ 1 Bnmp, Fraud. Conv. 249, 250. * Twyne's Case, 1 Smith's L. C. 1, 2 Clemens v. Moore, 73 U. S. 299, 33, and notes. 312; Galle v. Tode, 148 N. Y. 270; ^ Heath u. Page, 63 Pa. St. 108. Delanej v. Valentine, 154 N. Y. 692, ^ Jackson d. Van Buren v. Myers, 704; Hiller v. Jones, 66 Miss. 636; 18 Johns. (N. Y.) 425; Bigelow v. Sterry v. Arden, 1 Johns. Ch. (N. Y.) Cassidy, 26 N. J. Eq. 557; Thorg v. 261; Reade «. Livingston, 3 Johns. Ch. Leibrecht, 56 N. J. Eq. 499; Wait, (N. Y.) 481, 489; Bank v. Read, 131 Eraud. Conv. § 90. And see Craft v. Mo. 553; Snell's Eq. 68. Schlag, 61 N. J. Eq. 567 ; Jackson v. 8 Blystone v. Blystone, 51 Pa. St. Seward, 5 Cow. (N. Y.) 67. 373 ; Bonsteel v. Sullivan, 104 Pa. St. ' Byrnes v. Volz, 53 Minn., 110; 9; Barwiek v. Moyse, 74 Miss. 415; Houseman z). Grossman, 177 Pa. St. 453. Harvey v. Varney, 98 Mass. 118; Wilt- ^ Neuberger o. Keim, 134 N. Y. 35; Bie on Mortgage Foreclosure, § 356. Guy v. Craighead, 46 N. Y. App. Div. 566 ESTATES IN KEAL PROPERTY, It is required in England, and in most of the states of this country, that, before a proceeding in equity can be sustained to overthrow a conveyance as a fraud on creditors, the claimant must have obtained a judgment at law for his demand, and had execution on the same returned wholly or partly unsatisfied.^ § 401. Fraud on Marital Rights. — If a man or woman about to marry make a voluntary conveyance of property in such manner as unfairly to deprive the intended wife or husband of a legal interest, which otherwise would have come into exist- ence by the marriage, this constitutes a fraud, on the ground of which equity will declare a constructive trust against the alienee and in favor of the injured spouse.^ Modern legisla- tion, giving to married women large control over their property, has made cases of this kind less frequent than they formerly were. For many of them were brought against wives, who on the eve of marriage secretly disposed of lands in defraud of the intended husbands;^ and there is no fraud in their aliening property before marriage, which they can readily dispose of during coverture so as to exclude all marital rights in the same.* But wherever the law is still such that marriage gives to husband or wife a right or interest in the other's prop- erty which that other alone can not take away, as is still true of the wife's dower right in New York, New Jersey, and most of the older states, a secret voluntary disposition of such prop- erty just before the marriage will readily cause a constructive trust.^ A transfer will be good and unassailable, however, if 614; Marshall B. Roll, 139 Pa. St. 399 ; Eq. 405; Hunt v. Matthews, 1 Vern. Jones V. Light, 86 Me. 437 ; Kinsey v. 408 ; England v. Downs, 2 Beav. 522 ; Feller, 51 Atl. Rep. (N.J.) 485; Bisp- Cheshire v. Payne, 16 B. Men. (Ky.) ham's Prin. Eq. § 245. And any trans- 618; Hinkle v. Landis, 131 Pa. St. 573 ; fer, once shown to be fraudulent, may Tyler v. Tyler, 126 111. 525; Alkire v. be attacked by subsequent creditors, as Alkire, 134 Ind. 350 ; Nichols v. Nich- well as by those wh(j were creditors at ols, 61 Vt. 426 ; Beers v. Beers, 79 the time. Marshall v. Roll, 139 Pa. St. Iowa, 555 ; 1 Perry on Trusts, § 213. 399 ; Jones v. Light, 86 Me. 437. s Strathmore v. Bowes, 1 Lead. Cas. • Southard v. Benner, 72 N. Y. 424; Eq. 405 ; England v. Downs, 2 Beav. Fruit Co. V. Buck, 52 N. J. Eq. 219, 522,528; Chambers w. Crabbe, 34 Beav. 229; Wait, Fraud. Conv. §§ 73-88. See 457; Williams v. Carle, 10 N. J. Eq. Neresheimer v. Smith, 167 N. Y. 202. 543; Tucker v. Andrews, 13 Me. 124; While, in England, only lien creditors Kline v. Kline, 57 Pa. St. 120; Ferebee can attack fraudulent donations after 'v. Pritchard, 112 N. C. 83; Murray v. the donor's death ; in this country all Murray, 90 Ky. 1 ; Bisphara's Prin. Eq. kinds of creditors have, after his death, § 253. practically the same rights that belonged * Wrigley v. Swainson, 3 DeG. & to them while he was living. Story, Eq. Sm. 458; Cole w. O'Neil, 3 Md, Ch. 174. Jur. §§ 375, 376 ; N. Y. L. 1889, ch. 487. ^ Authorities cited in last three pre- ^ Strathmore v. Bowes, 1 Lead. Cas. ceding notes. EQUITABLE ESTATES. — CONSTRUCTIVE TRUSTS. 567 made for a valuable consideration,^ or with the acquiescence or knowledge of the other party, no matter how short a time before the marriage such iinowledge may have been acquired ; ^ and the party who alleges that it is fraudulent must prove either an actual wrongful intent against him or her, or that the transaction was of such a character that fraud must reasonably be presumed.* The fact that the intended spouse did not know of the existence of the property fraudulently disposed of before the mari'iage will not change the result, if it can be shown that the gift was made for the purpose of preventing any marital right from attaching to the land.* On the same principle, if a husband, pending a divorce suit brought by his wife, dispose of property in order to avoid pay- ment of alimony, a trust will attach to it for such claim as the court may award to her against the husband.^ So, all ante- nuptial settlements are closely scrutinized by the courts ; and when they are greatly disproportionate, or are not proved to be just and equitable, a constructive trust is readily declared in favor of the injured party .^ § 402. Fraud on Powers. — A power affecting real property is the right to dispose of a use therein, or in many states, by virtue of modern statutes, to dispose of the legal estate.'^ (a) (a) " In New York, a power is an authority to do an act in relation to real property, or to the creation or revocation of an estate therein, 1 Blanchet v. Foster, 2 Ves. Sr. 264. 290"; St. George v. "Wake, 1 Myl. & K. See Atty.-Gen. v. Jacobs-Smith (189,5), 622; 1 Perry on Trusts, § 213. 2 Q. B. 341 ; Newstead v. Searles, L. E. ' Blenkinsopp v. Blenkinsopp, 1 De 9 App. Cas. 320, n. ; Green v. Goodall, G. M. & G. 495 ; Krnpp v. SchoU, 10 1 Cold. (TeDn.) 404. A conveyance Pa. St. 193 j 1 Perry on Trusts, § 213. made before the treaty of marriage is * Graham v. Graham, 143 N. Y. 573 ; commenced is not fraudulent. Bhss v. Lovesey v. Smith, L. R. 15 Ch. Div. West, 58 Hun (N. Y.), 71. 655. And see Clark v. McMahon, 170 2 St. George v. Wake, 1 Myl. & K. Mass. 91 ; Hussey v. Castle, 41 Cal. 610; Fletcher u. Ashley, 6 Gratt. (Va.) 239; Nance v. Nance, 84 Ala. 375; 332; Cheshire v. Payne, 16 B. Men. Kinne «. Webb, 54 Fed. Rep. 34 ; Synge (Ky.) 618. And the same is true u. Syn^e (1894), 1 Q. B. 466. though the husband, who thus acquires ' A power, says Chancellor Kent, notice, is an infant at the time. Slo- "is the mere right to limit a use; and combe v. Glubb, 2 Bro. C, C. 545. the appointment in pursuance of it is the " England v. Downs, 2 Beav. 522; event on which the use is to arise." St. George v. Wake, 1 Myl. & K. 610; 4 Kent's Com. p. *316. Employing the Bliss V. West, 58 Hun (N. Y.), 71. same form of expression, a power, as * Goddard v. Snow, I Russ. 485 ; created by many modern statutes, may Logan V. Simmons, 3 Ired. Eq. (N. C.) be defined as the right to limit (dis- 487. See Downes v. Jennings, 32 Beav. pose of) a legal estate. See 1 Stim. Amer. Stat. L. §§ 1650, 1651. 568 ESTATES IN REAL PROPERTY. Thus, land may be granted or devised to A for such uses as B shall appoint; or, now by statute, B maybe given the power of disposing of a legal estate, which is allowed in the mean time to descend to heirs, oris given temporarily to A, it being intended that the execution of the power shall take the property from the heirs or from A and pass it on to other persons. The subject of powers is discussed at length hereafter.^ It is sufficient for explanation here to add that he who confers a power is called the donor, the one to whom it is given the donee, and the act of executing it an appointment.^ Under the common-law sys- tem, when an appointment is made, by giving the use to some one, the Statute of Uses then transfers to the appointee the legal estate, "in the same quality, manner, form, and condi- tion " in which he is given the use.^ A fraud on a power is its improper execution, or other unfair dealing concerning it, so as to injure those who should justly be the beneficiaries of the appointment.^ Thus, if land were devised to A for life, with power in B to dispose of the residue of the use (or the legal estate) among A's three children, and B should appoint all or the greater part of it to one of the three, who paid him a bribe for so doing, or should give it to one whom he could unduly influence to convey it to himself, this would be a fraud on the power, which would enable the other two children of A to have a constructive trust fastened upon the property in the hands of the appointee.^ This they might do also, if the donee in any way dishonestly executed the power, though the appointee had no knowledge of the fraud, and even though the donor of the power consented to the improper appointment.^ The creation of the power con- which the owner, granting or reserving the power, might himself lawfully perform." New York Keal Property Law (L. 1896, ch. 547), § 111, which in substance was formerly 1 R. S. 732, § 74. 1 See alao explanation of powers in ^ Dnke of Portland v. Topham, 11 trust, § 332, supra. H. L. Cas. 32 ; Wellesley v. Moniing- 2 In some states, he who confers the ton, 2 Kay & J. 143 ; Marsden's Trust, power, whether by deed or will, is called 4 Drew. 594, 601 ; In re Kirwan's Trust, the " grantor," and he to whom it is L. R. 25 Ch. Div. 373. given, the "grantee." See N. Y. L. » Marsden's Trust, 4 Drew. 594, 601 ; 1896, ch. 547, § 112; Fowler's N. Y. Lee v. Fernie, I Beav. 483; Duke of Real Prop. Law, p. 321. Portland v. Topham, U H. L. Cas. 32 ; 8 § 302, supra. In re Perkins (1893), 1 Ch. 283. See ♦ Lane v. Page, Ambler, 233 ; Aleyn Smith v. Somes (1896), 1 Ch. 250. V. Belchier, 1 Lead. Cas. Eq. 377 ; Marsden's Trust, 4 Drew. 694, 601. EQUITABLE ESTATES. — CONSTRUCTIVE TRUSTS. 669 fers rights upon those who should properly be the recipients of benefit from its execution ; and it is a fraud on the power to so deal with it as to impair those rights.^ Constructive trusts and other media of redress arising from fraud on powers have been much more numerous in England than in this country, owing to the frequent employment of powers there in arranging marriage settlements. But the equitable principles governing the matter are the same in both countries.^ " A person having a power must exercise it bona fide for the end designed." ^ And if he so deal with it for his own benefit, or even for the benefit of a stranger, as to worli injustice towards the legitimate beneficiaries, a constructive trust will readily fasten upon the property.* 7. Constructive Trusts that Arise in the Absence of Fraud. § 403. Foundation and Forma of such Trusts. — On the broad foundation of the maxim, " Equity looks upon that as done which ought to be done," ^ constructive trusts emerge, with- out the existence or presumption or even the apprehension of fraud, whenever they are requisite to the worliing out of the best measures of justice between the parties. For it is upon the basal theory of the existence of a trust that the most ancient equitable remedies, as well as those that are the farthest reaching and most beneficient, such as specific per- formance of contracts, injunction, and accounting, have been originated and enforced.^ And, for the purpose of the remedy, the operation of the maxim frequently calls into being trusts which were not within the contemplation of the parties, and in connection with which there is not even the shadow of fraud.' It would be futile to attempt to enumerate all of such cases. Probably some of them have not yet been brought before any 1 Duke of Portland v. Topham, 1 \ ^ Bispham'a Prin. Eq. § 44 ; Fonbl. H. L. Cas. 32 ; Lee m. Fernie, 1 Beav. Eq. Tr. 13. 1, ch. 6, § 8. 483. « Green v. Smith, 1 Atk. 572 ; Wil- 2 See Williams's Appeal, 73 Pa. St. Hams v. Haddock, 145 N. Y. 144, 150 ; 249; Rowley v. Rowley, Kay, 242; 1 Spence, Eq. 108, 645 ; Bispham's Prin. Turner's Estate, L. R. 28 Ch. Div. 205 ; Eq. § 479. 1 Perry on Trusts, §§ 211, 212, 254; ' Authorities cited in last preceding Bispham's Prin. Eq. § 257. note. Also Teneick v. Elagg, 29 N. J. 8 Aleyn t. Belchier, 1 Lead. Cas. L. 25 ; Quigley v. Gridley, 132 Mass. Eq. 377. 85, 39; 1 Perry on Trusts, § 231. * Maraden's Trust, 4 Drew. 694, 601 ; 1 Perry on Trusts, § 211. 670 ESTATES IN REAL PROPERTY. court. The principle, which deals with them as they arise, is that a trust will exist when it ought to do so in order to pro- duce substantial justice. The discussion of a few of the most important instances of its application will suffice. Such are the constructive trusts which accompany contracts for the pur- chase and sale of real property ; those which attach to land in the hands of one who has taken the legal estate from a wrong- doer without paying value and without notice of the fraud ; and those which exist in the form of vendors' or vendees' liens, equitable liens for money loaned upon the faith of real estate security, and the like, and which are also treated hereafter as forms of equitable mortgages. § 404. Contracts for the Purchase and Sale of Real Property. — " The general rule in regard to contracts for the sale of land is that the owner of the real estate from the time of the execution of a valid contract for such sale is to be treated as the owner of the purchase money, and the purchaser of the land is treated as the equitable owner thereof." ^ After such a contract is made, a short time usually elapses before the deed is delivered and the legal estate is passed to the vendee. In the mean time the title to the realty is examined by or for the purchaser. During this period, the intended vendor holds the land in trust for the intended vendee ; and the latter is con- stantly said by the best courts, as is virtually done in the above quotation, to hold the purchase taoney in trust for the former.^ It is necessary to the existence of a trust, however, that there be a definite and ascertainable fund or property as the subject- matter.^ The land contracted to be sold is always such ; but how, it has been pertinently asked, can the proposed vendee hold the purchase money in trust in cases such as frequently arise in which he has no purchase money at the time, or at least none distinctively set aside as the fund with which he is to perform his part of the contract ? The answer is that, when courts use expressions like that above quoted, they do so with primary reference to the remedy, for which constructive trusts are implied, — the land is literally held in trust for the con- tracting purchaser; and he is to be treated, so far as the 1 Williams v. Haddock, 145 N. Y. U. S. 1, 10; Union Pac. R. Co. v. !**> 150. Chicago, etc. R. Co., 163 U. S. 564, 2 Green w. Smith, 1 Atk. 572 ; Dex- 600; 1 Perry on Trusts, § 231. teru. Stewart, 7 Johns. Ch. (N.Y.) 52; si Peny on Trusts, §§ 67-72; Matter of Davis, 43 N. Y. App. Div. §§ 300, S27, supra. 331 ; Roberts i>. Nor. Pao. R. Co., 158 EQUITABLE ESTATES. — CONSTRUCTIVE TRUSTS. .571 remedy against him is concerned, as if he actually had a fund of money distinctively set aside in trust and devoted to the purpose of buying the land. Therefore, the remedy of each against the other, in case of failure duly to perform the contract, is a specific performance suit — that ancient equita- ble redress (which is essentially an injunction to prevent the tlireatened violation of a trustee's duty^), whereby the delin- quent vendor is compellable to convey the land and pay any proximate damages caused by his default, or the vendee is re- quired to take title to the realty and to pay to the vendor the purchase price and any proximate damages occasioned by his attempted breach of the contract.^ The trust in real property, growing out of the contract for its purchase and sale, continues to exist until either the con- tract is executed by the delivery and acceptance of the deed, or is mutually abandoned by the parties, or the realty passes from the intended vendor to one who purchases it in good faith, for a valuable consideration and without notice of the trust.^ Upon the death of the contracting vendor, the legal estate passes to his heirs or voluntary devisees burdened with the trust. And if, pending the contract, he wrongfully convey it to a third party, who has notice of the rights of the intended ven- dee, the purchaser holds it in trust for the latter.* Thus, if A 1 Willard's Eq. Jur. p. * 261. erty raises a use or trust in faror of the 2 Green v. Smith, 1 Atk. 572 ; Union proposed vendee, it should be executed Pac. R. Co. V. Chicago, etc. R. Co., 163 by the Statute of Uses and no subse- U. S. 564, 600 ; Williams v. Haddock, quent deed should be necessary. But, 145 N. Y. 144 ; O'Connor v. Felix, 147 aside from the effect of the opposite in- N. Y. 614; Higgins v. Eagleton, 155 tention of the parties so clearly shown N. Y. 466 ; Reed v. Lukeus, 44 Pa. St. by the contract itself by its fixing the 200; Fry on Specific Performance, § 1. time for the delivery of the deed, that While the theory of this remedy is the statute does not affect the implied trust. existence of a trust which should be The legal estate remains in the pro- enforced, the primary reason for its posed vendor until the conveyance is adoption by equity was because of the made by the parties. inadequacy of the redress at law in such ' Wythes v. Lee, 3 Drew. 396 ; Dinn cases ; that redress being ordinarily only v. Grant, 5 DeG. & Sm. 451 ; Ten Eick damages for breach of contract. Specific o. Simpson, 1 Sand. Ch. (N. Y.) 244. performance " prevents the intolerable And see, as to rights of innocent pur- travesty of justice involved in permit- chasersfor value without notice, §§406- ting parties to refuse performance of 409, infra. their contracts at pleasure by electing * Barker v. Hill, 2 Ch. Rep. 113; to pay damages for their breach." Orlebar v. Fletcher, 1 P. Wms. 737 ; Union Pac. R. Co. n. Chicago, etc. R. Moore v. Crawford, 130 U. S. 122, 133 ; Co., 163 U. S. 564, 600. It might be Roberts w. Nor. Pac. R. Co., 158 U. S. argued that, technically, as soon as any 1 ; Matter of Davis, 43 N. Y. App. Div. contract to sell and purchase real prop- 331 ; Boric v. Satterthwaite, 180 Fa, 572 ESTATES IN EEAL PROPEETT. contract to sell land to B, and then let it descend to his heirs, or devise it to C, or convey it to D who has notice of B's rights, he or they who thus acquire the legal estate will hold it in trust for B, or for any one who claims under or through him as cestui que trust.^ § 405. Legal Estate taken without Value and vrithout Notice. — A hona-fide purchaser for value, without notice of the wrong on the part of the vendor, may acquire title to property unaf- fected by any trust. The absence of valuable consideration is looked upon by equity, however, as equivalent to notice. And, therefore, however innocent of fi'audulent intent or actual knowledge of any wrong may be a mere donee, or voluntary taker, of property, he takes it subject to any outstanding trust or equity by which it may be affected. ^ He may clear himself from all possible imputation of fraud ; yet he holds the land as a constructive trustee for those to whom it rightfully belongs. It is proper at this place to notice, more fully than has yet been done in this treatise, the facts which must co-exist in order that a grantee may avoid this difficulty — that he may be an innocent purchaser for value without notice. § 406. Bona-fide Purchase for Value -without Notice. — Three things must concur to make one an innocent purchaser for value without notice of any outstanding trust or equity which may attach to the property.^ First. He must buy without notice of the fraud, trust, or equity. Second. He must purchase for a valuable consideration. Third. In most states he must pay all of the consideration, and acquire the legal estate before receiving any notice of the fraud, trust, or equity. The last of these requisites is chiefly explanatory of the other two, but it conduces to clearness to discuss it separately. § 407. First. Notice is " legal cognizance of a fact." Positive knowledge is, of course, such cognizance; and this constitutes actual notice.'^ A purchaser may be bound by such notice as this, either if he personally have the knowledge, or if St. 542; Haughwout v. Murphy, 22 N. Wms 128; Ten Eyck v. 'Witbeck, 135 J. Eq. 531 ; Gloucester G. & Q. Co. v. N. Y. 40 ; 1 Perry on Trusts, § 241. Russia Co., 154 Mass. 92 ; Fry on Spec- ' Bispham's Prin. Eq. § 263. ific Performance, § 135; 1 Perry ou ^ Harper v. Ely, 66 III. 179, 194; Trusts, § 231; Bispham's Priu. Eq. Mayor v. Williams, 6 Md. 235; Jones §365. V. Van Doseu, 130 U. S. 684, 691; 1 Ibid. Notes to Le Neve v. Le Neve, 2 Lead. 2 Le Neve v. Le Neve, 2 Lead. Cas. Gas. Eq. 35. Eq. 35, note; Pye v. George, 1 P. EQUITABLE ESTATES. — CONSTRUCTIVE TRUSTS. 573 it can be proved to have been at the time in the mind of his attorney or other agent who was properly acting for him in carrying tlirough the purchase. ^ And it is now agreed, by prac- tically all the courts, that notice to such agent or attorney binds the principal, if it were acquired in the very transaction of buying the land, or in some other transaction sufficiently recent and important so that it is reasonable to assume that it was present in the agent's mind at the time of the purchase.^ But knowledge so brought home to the agent is not notice to his principal, if it were such that the agent had no legal riglit to reveal it to the principal, or if the former were engaged in connection with the purchase in a scheme to cheat or defraud the latter.^ Again, the information which is open to a purchaser by vir- tue of the proper record of a deed of the land, or a mortgage or other encumbrance thereon (the record being pursuant to the statute which authorizes or requires the same), or by the proper filing and indexing of a statutory lien or notice, such as a mechanic's lien or notice of the pendency of an action affecting the title to or possession of the land, is also such cognizance, whether or not the purchaser actually know of the existence of the record or of the filing ; and this is constructive noticed Such notice is now generally the result of positive statutes.^ But equity has always recognized the principle that, except as modified by statute, the mere pendency of an action or suit affecting realty is notice to purchasers and 1 LeNeve v. Le Neve, 2 Lead. Cas. (No. 1), 170 U. S. 133, 156; Indian Eq. 35; Astor v. Wells, 17 U. S. (4 Head Bank v. Clark, 166 Mass. 27; Wheat.) 466 ; Denton v. Ontario Co. Cole o. Getzinger, 96 Wis. 559 ; Gun- Nat. Bk., 150 N. Y. 126; Hovey v. ster «. Scranton I. H. & P. Co., 181 Pa. Blancliard, 13 N. H. 145. St. 327 ; United States Security Co. u. 2 Dresser v. Norwood, 17 C.B. (n. s.) Cent. Nat. Bk., 185 Pa. St. 586, 600. 466; Blackburu v. "Vigors, L. R. 12 * Carpenter v. Dexter, 75 U. S. App. Cas. 531; The Distilled Spirits, (8 Wall.) 513, 532; Bispham's Prin. 78 U. S. (11 Wall.) 356, 366; Mclntire Eq. § 270. V. Pryor, 173 U. S. 38, 52 ; Constant v. » New York L. 1896, ch. 547, §§ 240- Univ. of Rochester, 111 N. Y. 604; 247; N. Y. Code Civ. Pro. §§ 1670- Slattery v. Schwannecke, 1 18 N. Y. 543 ; 1673 ; Fowler's Real Prop. L. of N. Y. McCutchen v. Dittman, 164 N. Y. 355 ; pp. 544-562 ; Gen. Stat. N. J. pp. Willard v. Denise, 50 N. J. Eq. 482; 855, 856, 882; 1 Stim. Amer. Stat. L. Hart w. Farmer's Bk., 33 Vt. 252 ; Sheri- §§1610-1632. It has been held that dau {'. Briggs, 53 Mich. 569, 572. such record once properly made is con- 3 Kettlewell v. Watson, L. R. 21 Ch. structive notice, though the records Div. 685, 707; Henry v. Allen, 151 have been destroyed. Tucker u. Shaw, N. Y. 1 ; Benedict v. Arnoux, 154 N. Y. 158 111. 326. 715, 728; Amer. Surety Co. v. Pauly 574 ESTATES IN REAL PEOPERTT. encumbrancers thereof of all the rights that the parties to the litigation may thereby establish.^ And the equitable doctrine of constructive notice, independent of legislation, is still more forcibly illustrated by the rule, well settled in many states, that actual and open possession of real property under an unrecorded deed or encumbrance is constructive notice of all the interest and rights which the person in possession is able to establish under such deed or encumbrance.^ If, therefore. A, relying wholly on what appears upon the official records, buy land of which B is at the time holding actual, open, and visible pos- session under an unrecorded conveyance or mortgage, he is bound by notice of all B's rights in the property.^ Lastly, as to kinds of notice, when the purchaser or his agent acquires knowledge of facts, which should lead him as a reason- able person to suspect the existence of the outstanding trust or equity, and to make inquiry concerning it, and it can be proved that if he properly made the inquiry or investigation he would thereby obtain knowledge of the facts concerning such trust or equity, then he has notice of it whether he make such investi- gation or not ; and this is presumptive or implied notice,^ which 1 Sorrell v. Carpenter, 2 P. Wms. 482; Murray v. Ballon, 1 Johns. Ch. (N. Y.) 566 ; Cook v. Mancius, 5 Johns. Ch. (N. Y.) 89; Enfield v. Jordan, 119 U. S. 680, 693 ; Turner v. Haupt, 53 N. J. Eq. 526 ; Snively v. Hitechew, 59 Pa. St. 49; Adams's Doct. Eq. 157. He who purchases property affected by such litigation buys with notice of all the rights established by the litigation, whether or not any formal notice of its existence is filed. But the statutes of most states abolish this general doc- trine of lis pendens, and require as notice of an action a formal written document, made as prescribed by the statute, and duly filed and indexed. See statutes cited in last preceding note. 2 Phelan v. Brady, 119 N. Y. 587 ; Smith V. Reid, 134 N. Y. 568 ; Marden V. Dorthy, MO N. Y. 39, 52 ; Kirby v. Talmadge, 160 U. S. 379; Essex Co. Bank v. Harrison, 57 N. J. Eq. 91 ; Scott V. Gallagher, 14 S. & R. (Pa.) 333 ; Ohio Ins. Co. v. Ross, 2 Md. Ch. 25. But this doctrine is repudiated in some states. Glass v. Hulbert, 102 Mass. 24, 34; Boggs o. Anderson, 50 Me. 161; Harris v Arnold, 1 li. I. 125; Bush v. Golden, 17 Conn. 594. And, wherever possession is treated as notice, it must be actual, visible, and open occupation, inconsistent with the title of the appar- ent owner of record, not equivocal, oc- casional, or for n special or temporary purpose. Holland v. Brown, 1 40 N. Y. 344 ; Cornell v. Maltby, 1 65 N. Y. 557 ; Reagle v. Reagle, 179 Pa. St. 89 ; Hodge c. Amerman, 40 N. J. Eq. 99 ; Batavia V. Wallace, 78 Fed. Rep. 448 ; McAlpine V. Kesch, 82 Minn. 523. 8 Ibid. ' Le Neve i'. Le Neve, 2 Lead. Cas. Eq. 35, note; Kettlewell v. Watson, L. R. 21 Ch. Div. 704 ; Williamson c. Brown, 15 N. Y. 354 ; Holland v. Brown, 140 N. Y. 344 ; Kirsch .;. Tozier, 143 N. Y. 390; Anderson v. Blood, 152 N. Y. 285 ; Cornell v. Maltby, 1 65 N. Y. 557; Macon v. MuUahy, 145 111.383; Bailey v. Galpin, 40 Minn. 319; West- inghouseu. German Nat. Bk., 188 Pa. St. 630 ; Swasey v Emerson, 168 Ma.ss. 118; Batavia v. Wallace, 102 Fed. Rep. 240, 244; Foxworth u. Brown, 114 Ala. 299. EQJEriT4BLE ESTATES. — CONSTRUCTIVE TRUSTS. 575 W ■•'■'' is often classified as a form of actual notice.^ Its two elements are, the existence of tlie trust or other right against the land, and knowledge by or notice to tlie purchaser sufficient to cause him, as a reasonable person, to institute an investigation, which, if properly prosecuted, would give him actual knowledge of the trust or riglit.2 Thus, if a recorded deed in the chain of the title to the land refer to another deed or mortgage of the same property, although such other document is not recorded, this is notice to the purchaser or encumbrancer of all the rights in the land which a careful investigation would reveal as belong- ing to the beneficiaries of the mortgage or deed so indicated.^ And when one who is about to buy land is informed from a credible source that the vendor is going to sell it in order to defraud specific equitable lienors or creditors, he purchases with notice of the equities of all such persons, which a reason- able inquiry would have disclosed.* (a) (a) In New York, presumptive notice, as explained in the text, does not apply to the rights of creditors at large of the vendor, " having no special lien or equity," nor to purchases and sales of commercial paper, and proba- bly not to those of other personal property. Without discussing this large subject here in detail, it may be stated briefly that (1) A purchaser of per- sonal property, in order to be affected by notice of fraud on the part of his vendor, or any trust or equity attaching to the subject-matter, must have actual notice — knowledge or its equivalent by himself or his agent, Parker V. Conner, 93 N. Y. 118, 127, and the same rule is shown in that case to be followed in England ; (S) A purchaser of realty is not affected by the rights of " creditors at large, having no special lien or equity," unless he has actual knowledge of such rights, or its equivalent, Parker v. Conner, 93 N. Y. 118, 125; Stearns v. Gage, 79 N. Y. 102; Bush v. Roberts, 111 N. Y. 278; Jacobs v. Morrison, 136 N. Y. 101; AVilson v. Marion, 147 N. Y. 589, and (3) A purchaser of realty, who has knowledge sufficient to put a reasonable person on inquiry as to any outstanding equity or specific lien or right, has notice of it if by reasonable investigation he could acquire actual knowledge of the same, Williamson v. Brown, 15 N. Y. 354; Ten Eyck v. Witbeck, 135 N. Y. 40; Anderson v. Blood, 152 N. Y. 285. " It is the duty of the purchaser of real estate to investigate the title of his vendor, and to take notice of any adverse rights or equities of third 1 See Flagg v. Mann, 2 Suran. (U. S. 271 ; Cambridge Valley Bk. v. Delano, Cir. Ct), 486, 556 ; Bispham's Prin. Eq. 48 N. Y. 326 ; Keed v. Ganuon, 50 N. Y. § 268; Pomeroy's Eq. Jut. § 753. 345; Dingley v. Bon, 130 N. Y. 607; 2 Cornell v. Maltby, 165 N. Y. 557; Gerard on Titles to Eeal Estate (4th Jacobs V. Morrison, 136 N. Y. 101 ; ed.), p. 664. Wilson V. Marion, 147 N. Y. 589 ; Pome- * Williamson v. Brown, 15 N. Y. roy's Eq. Jur. § 784 ; 1 Perry on 354 ; Anderson v. Blood, 152 N. Y. 285 ; Trusts, § 223. Milliken v. Graham, 72 Pa. St. 484 ; 8 Sweet V. Henry, 175 N. Y. 268; Cox v. Miller, 23 HI. 476; Story, Eq. Howard Ins. Co. v. Halsey, 8 N. Y. Jur. § 400 b. 576 ESTATES IN REAL PROPERTY It is to be added that, if a purchaser in good fa^ acquir% fll^ legal estate for value and without notice, so that he holds fre and clear of the outstanding trust, he may convey as good a title to any one who has either kind of the above-described forms of notice,! provided the latter has not before owned the land bound by the notice or subject to the trust.^ Thus, if A own the legal estate as a constructive trustee, and convey to B, who pays a valuable consideration and buys in good faith without notice of the trust, B may transfer a clear title to C, and C to D, etc., although all these latter are notified of the trust. Otherwise B might occupy the anomalous position of having an unassailable title, which he could not sell free and clear after the facts concerning the trust became notorious.^ But, since A has already been bound by the trust, he could not re-acquire the land freed from it, no matter how perfect might be the title of his immediate vendor.* §408. Second. Valuable Consideration. — ■ A valuable consid- eration here means something of wortii, as money, money's equivalent, or marriage (marriage in the sense of tlie entering into the married state, and not an existing condition or status of being married), which is " the real inducement of the grant." ^ persons which he has the means of discovering and as to which he is put on inquiry. If he makes all the inquiry which due diligence requires, and still fails to discover the substantial right, he is excused; but if he fails to use due diligence, he is chargeable, as matter of law, with notice of the facts which the inquiry would have disclosed. . . . The questions in such cases are first, whether the facts were sufficient to put the party on inquiry; and second, did he fail to exercise due diligence in making the inquiry ? An affirmative answer to these two questions charges the party with notice as matter of law; but the notice, in all such cases to be found in the books, relates to some actual outstanding title, lien, or equitable interest." Per Kapallo, J., in Parker v. Conner, 93 N. Y. 118, 124. 1 Bumpiis V. Plainer, 1 Johns. Ch. * See last two preceding notes. (N. Y.) 213 ; Fletcher v. Peck, 10 U.S. "Whenever the chain of conveyances (6 Craccli) 87 ; Logan v. Eva, 144 Pa. St. reaches au iunocent purchaser for value, 312; Rutgers v. Kingsland, 7 N. J. Eq. who takes the legal title, the doctrine 178,658; Bassett k. Nosworthy, 2 Lead. of notice no longer applies." Bispham's Cas. Eq. 1, 33, note; 1 Perry on Trusts, Prin. Eq. § 26.5, citing Demarest v. § 222. " "VVyukoop, 3 Johns. Ch. (N. Y.) 129, 2 Taylor u. Kussell (1891), 1 Ch. 8, 147. 27 ; BoVey v. Smith, 1 Vern. 149 ; ^ Ten Eyck «. Witbeck, 13.t N Y. Clarkw. McNeal, 114N. Y. 287; Church 40, 47. These three terras," money, V. Ruland, 64 Pa. St. 432, 441 ; Wil- money's equivalent, or mairiage" are liams V. Williams, 11.') Mich. 477; here used as a terse summary of all Cassidy v. Wallace, 102 Mo. 57.5, 581. those things that are a right, iuterest, 8 Bumpus V. Platner, 1 Johns. Ch. profit, or benefit accruing to the one (N. Y.) 213. party, or some forbearance, detriment. EQU^fcl^ESTATES. — CONSTRUCTIVE TRUSTS. 577 In*.his connecfTOn, it is to be distinguished, not only from a good or meritorious consideration, but also from one that is merely nominal, such as one dollar, or any small sum, which is insignificant in comparison with the fair market value of the land, and is clearly not the actual moving cause of the convey- ance. When such small suras are paid for properties worth vastly more, the transaction is generally in substance a gift — a transfer growing out of close relationship, or love and affec- tion, or other actual consideration which is only " good," and the amount recited in the deed, as one dollar, five dollars, and love and affection, etc., is nominal and hot valuable.^ In Ten Eyck V. Witbeck,2 for example, the New York Court of Appeals held that a father's deed to his daughter, of land worth twenty thousand dollars, for ten dollars, actually paid, and her agree- ment to hold the property in trust for her mother and brothers and sisters, was not made for a valuable consideration. In the opinion it was said : " We think jt would be a perversion of language to say that a father, who had conveyed to a daughter property of the value of twenty thousand dollars for no greater sum than ten dollars paid, had sold the property to this child, or that she had bought it of him. The transfer would be recognized by the popular, as well as the judicial mind, as pos- sessing all the essential qualities of a gift." ^ Any amount of money, however small, is in itself, of course, valuable. But when it bears no reasonable proportion to the fair market price of the land, and so is not " the real inducement of the grant," it is only nominal ; and the grantee does not occupy the posi- tion of an innocent purchaser for value. And even where the parties regard and treat a nominal sum as the consideration, its gross inadequacy is usually sufficient in itself to put the pur- cliaser on inquiry as to any outstanding trust or equity in fraud of which the sale is being made, and so to prevent him from being an innocent purchaser without notice.* loss, change of position, or responsi- ^ Ibid. ; Doe v. Routlidge, 2 Cowp. bility, given, suffered, or undergone by 705 ; Metcalfe v. Pulvertoft, 1 Ves. & the other. Currie v. Misa, 10 Ex. 153, Bea. 180, 183 ; Murray v. Ballon, 1 1 62 ; Bassett v. Nosworthy, 2 Lead. Johns. Ch. (N. T.) 566 ; 1 Perry on Cas. Eq. 5, 103-109 ; City B. Co. v. Trusts, § 220. Citizens St. R. Co., 166 U. S. 557, 566 ; 2 135 N. Y. 40. Corle V. Monkhouse, 50 N. J. Eq. 537, ' Per Maynard, J., at p. 44. 540; Chilvers v. Race, 196 111. 71; < Wagstaff d. Read, 1 Ch. Cas. 156 ; Steele v. Steele, 75 Md. 477 ; Selman Bullock v. Sadlier, Anib. 763, 764. V. Lee, 69 Kv. 215, 222; Anson on Effects of inadequacy of consideration, Coutraots, p. * 83. § 405, supra. It is for this reason that 37 578 ESTATES IN REAL PROPERTY. Ill some of the United States, moreover, such as New York, Vermont, Maryland, Michigan, and Arkansas, a conveyance of land to a creditor of the grantor, made only in satisfaction of or on account of the previously existing indebtedness, while good between the parties to the deed, does not make the grantee, as to outside claimants or lienors, an innocent purchaser for value. In order to occupy that position, he must give z present valuable consideration, advanced specially for the property.^ The United States courts, however, and probably a majority of those of the states, take the opposite view and treat a conveyance or mortgage to individual creditors of the grantor or mortgagor, when properly made for the purpose of satisfy- ing or reducing the debt, as putting them in the position of purchasers for value. ^ But, with the exception of Pennsyl- vania, and possibly one or two other states, this position is not accorded anywhere to assignees in insolvency or trustees in bankruptcy ; but such takers, who acquire the land for pre- existing debts and not for themselves, but for others, are treated as mere volunteers.^ § 409. Third. Time of Notice and Payment Notice to the vendee, at any instant before he has actually obtained his conveyance and paid the consideration in full, prevents him from being an innocent purchaser without notice. If he acquire notice after the deed has been delivered and accepted, but be- fore payment of the entire purchase price, or after part or all of the consideration has been paid, but before the conveyance has passed, and then he complete the purchase, he takes the land subject to the interest or equity of which he thus obtained a trustee can not convey a valid title to Bk. v. Morse, 163 Mass. 383 ; Longdale a purchaser from him for a nominal Iron Co. v. Swift's Iron Works, 91 Ky. consideration. Shriver v. Shriver, 86 191; Koch w. Roth, 1.'50 111. 212 ; Heitz- N. Y. 575. feld v. Bailey, 103 Ala. 473 ; Moore v. 1 Bay V. Coddington, 5 Johns. Ch. Holcombe, 3 Leigh (Va.), 597 ; Titcomb (N. Y. ) 34; Rodgers v. Bonner, 45 «. Wood, 38 Me. 561 ; 1 Perry on Trusts, N. Y. 379 ; Barnard v. Campbell, 58 § 239. N. Y. 73 ; Amer. Sugar Refining Co. v. ^ Donaldson v. Farwell, 93 U. S. FancJier, 145 N. Y. 552 ; Poor v. Wood- 631 ; Mitford ii. Mitford, 9 Ves. 87, 100; burn, 25 Vt. 234 ; Riuggold v. Bryan, Chapman v. Tanner, 1 Vern. 267 ; 3 Md. Ch. 488 ; Ames Iron Works v. Goodwin v. Mass. Loan Co., 152 Mass. Kalamazoo Pulley Co., 63 Ark. 87 ; 189, 199 ; Beldiug v. Frankland, 8 Lea Schloss V. Feltus, 103 Mich. 525 ; Starr (Tenn.), 67 ; Burnett v. Bealmear, 79 Md. V. Stevenson, 91 Iowa, 684. 36; Amer. Sugar Ref. Co. v. Puncher, 2 Bayley v. Greenleaf, 20 U. S. (7 145 N. Y. 552. See Bughmau v. Cent, Wheat.) 46; Bughman v. Central Bk., Bk., 159 Pa. St. 94; Longdale Iron 159 Pa. St. 94 ; Goodwin v. Mass. L, & Co. v. Swift's Iron Works, 91 Ky. 191 ; T. Co., 152 Mass. 189, 199 ; Nat. Revere Chance u. McWorter, 26 Ga. 315. EQUITABLE ESTATES. — CONSTRUCTIVE TRUSTS. 579 cognizance. This is the law as settled in England and most of the United States.^ But, for the amount of money or other value actually paid before he acquired any notice, he has on the land a lien superior to the outstanding trust or equity of which he was notified.^ And, in some of the American states, such as Pennsylvania, Missouri, and California, he is held to be a lona-fide purchaser for value of that proportion of interest in the realty wliich the amount of consideration paid by him be- fore receiving notice bears to the entire contractual purchase price. ^ Thus, if A, who had agreed to buy a lot of land from B for $15,000, should receive notice, after taking the deed and paying only $5,000 of the consideration, that B in selling would violate a trust in favor of 0, A would own, independent of the trust, one-third of the land, if it were situated in Penn- sylvania ; while, if it were New York realty, he would simply have a valid lien on it for the 15,000.* It is to be reiterated here that one who can not estab- lish all the requisites to a bona-fide purchase for value is usually a trustee to some extent of the land that he has bought; and, when he can prove all of them except the payment of a valuable considei'ation, the trust does not arise from any fraud on his part, either actual or presumed.^ (a) § 410. Seeing to Application of Purohaae Money. — So care- ful were courts of equity of the rights of a cestui que trust, that they early required a purchaser from a trustee, who sold pur- suant to a valid power, not only to be sure that the conveyance was properly and fairly made, but also to see to it that the purchase money was duly appropriated to the purposes of the trust. This is known as the doctrine of " seeing to the appli- (a) " An implied or resulting trust shall not be alleged or established, to defeat or prejudice the title of a purchaser for a valuable consideration without notice of the trust." N. Y. L. 1896 (Real Prop. L.), ch. 547, § 75, which was formerly 2 R. S. 728, § 54. See also N. Y. L. 1896, ch. 547, § 84. Wood v. Robinson, 22 N. Y. 564, 567; Siemon v. Schurch, 29 N. Y. 598, 613; Baker v. Bliss, 39 N. Y. 70. 1 Tourville v. Naish, 3 P. Wms. 307 ; Hun (N. Y.), 19, 21 ; Warren v. Wilder, Bassett v. Nosworthy, 2 Lead. Cas. Eq. 1, 12 N. Y. St. Kep. 757, 759. 35, 77, note ; Murray v. Ballou, 1 Johns. 8 Juvenal v. Jackson, 14 Pa. St. 519 ; Ch. (N. Y.) 566; Pattou v. Moore, 32 Paul v. Fulton, 25 Mo. 156; Davis v. N. H. 382 ; Haughwout u. Murphy, 21 Ward, 109 Cal. 186 ; Florence a.Ziegler, N. J. Eq. 118; Florence v. Zeigler, 58 58 Ala. 221. Ala. 221 ; 1 Perry on Trusts, § 221. * Last two preceding notes. 2 Weaver v. Barden, 49 N. Y. 286, ° § 405, supra. 293 ; Sargent v. Eureka S. P. Co., 46 580 ESTATES IN EEAL PROPERTY. cation of the purchaser money." ^ It was a natural outgrowth of the equitable theory that the land belonged to the bene- ficiary of the trust. Hence the purchaser must either pay the money to him, and obtain his valid receipt for the same, or, if, as was generally the case, this could not be done because of the incapacity of the cestui or otherwise, he must, if reasonably practicable, see that it was actually and properly applied for his benefit.^ If the vendee failed to do his duty in this re- spect, however innocent and bona fide might otherwise be his purchase, he held the realty as a constructive trustee for the original beneficiaries.^ This principle has never been enforced in such a manner as to place an unreasonable burden upon the purchaser. When, therefore, the trust is so general or uncertain in character that it would cause great inconvenience to the vendee to follow the disposition of the purchase price, as, for example, in a trust to pay all the creditors of the settler, or to hold and apply the income to life beneficiaries, no court ever requires more than a bona-fide payment to the trustee.* The rule is never appli- cable except to a well-defined and limited trust, such as one to sell and pay all the proceeds at once to a designated person, or to deposit them in a specified bank, or to pay one or two defined debts which are all that can participate in the fund.^ In England this doctrine or principle was abolished by statute in 1859;^ and the same result has been reached, either by statutes or by positive adjudications in most if not all of the states of this country.^ The general form of such statutes is that, " A purchaser who shall actually and in good faith pay a sum of money to a trustee, which the trustee as such is 1 2 Perry on Trnsts, §§ 789, 790 ; 24 Vict. ch. 145, § 29 ; 44 & 45 Vict. KUiot V. Merryman, 1 Lead. Cas. Eq. cK 41, §§ 36, 71. p.* 59, and notes. ' N. Y.L.I 896, ch. 547, § 88; 1 Stira. 2 Weatheiby v. St. Giorgio, 2 Hare, Amer. Stat. L. § 1723 ; Woodward 624 ; Clyde v. Simpson, 4 Ohio St. 445 ; v. Jewell, 140 U. S. 247 ; Austin v. Foster u. Day, 27 N. J. Eq. 599. Hatch, 158 Mass. 198; Ind. etc. R. » 2 Perry on Trnsts, § 790. Co. u. Swaunell, 157 111. 616; McArthur ^ Stronghill v. Anstey, 1 DeG. M. v. Robinson, 104 Mich. 540 ; Bank v. & G. 635 ; Conover v. StothofE, 38 N. J. Looney, 99 Tenn. 278 ; Nat. Bk. of Com. Eq. 55; Turner v. Hoyle, 95 Mo. 337 ; v. Smith, 17 R. I. 244. "It may be Hughes V. Tabb, 78 Va. 313 ; 2 Perry stated that the strict Englisli common- on Trusts, §§ 794, 795. law rule is not faTored by the American s Clyde V. Simpson, 4 Ohio St. 445 ; courts, although, in the absence of stat- EUlot V. Merryman, 1 Lead. Cas. Eq. ntory regulation, they apply the doctrine p. * 52, note. in cases where it can not be avoided." " 22 & 23 Vict. ch. 35, § 23 ; 23 & 2 Perry on Trnsts, § 798. EQUITABLE ESTATES. — CONSTRUCTIVE TRUSTS. 581 autliorized to receive, shall not be responsible for the proper application of tlie money, according to the trust." ^ (a) § 411. Equitable Mortgages and Liens, — Whenever the owner of real property holds it subject to an outstanding lien or right which can be enforced only in equity, he is in a gen- eral sense a trustee for the benefit of the owner of such right. Many more instances might be given of the application of this broad principle. But it is enough here to add that some writers place equitable mortgages so called under the head of construc- tive trusts. Such are vendor's liens, vendee's liens, Interests arising from the deposit of title-deeds as security for loans, etc. But these will be better understood as discussed here- after in connection with mortgages, to which topic they more appropriately belong. (a) This is the New York form, which adds: " And any right or title derived by him from the trustee in consideration of the payment shall not be impeached or called in question in consequence of a misapplication by the trii>tee of the money paid." N. Y. L. 1896, ch. 547 (Real Prop. Law), § 88, which was formerly 2 R. S. 730, § 60. Belmont v. O'Brien, 12 N. Y. 394; Thomas v. Evans, 105 N. Y. 601, 615; Dyett v. Central Trust Co., 140 N. Y. 54, 69; Knoch v. Van Bermuth, 144 N. Y. 643, 645. But the purchaser must, at his peril, take notice of the power of sale and of any defect therein. If he have anything whatever to make him know or sur- mise that a breach of trust is being committed or intended, or that the power is not being properly executed, he loses the benefit of the statute. Kirsch v. Tozier, 143 N. Y. 390; First Nat. Bk. v. Nat. B'way Bk.; 156 N. Y. 459, 468; Moore v. Amer. L. & T. Co., 115 N. Y. 65, 79 ; Benedict v. Arnoux, 7 App. Div. 1 ; Champlin o. Haight, 10 Paige, 274. New York Beal Property Trusts. The preceding notes have explained the special features of the New York system of trusts. These may be profitably summarized here as follows : — 1. All passive express trusts are abolished; and an attempt to create such an interest, otherwise valid, vests the legal estate in the ultimate beneficiary or beneficiaries. S. For the purpose of preventing as far as possible all separation of the legal and equitable estates, all forms of active express trusts except five are converted into mere powers in trust. The grantee, as such, of a power ill trust does not hold the legal estate (as does a trustee), but it vests, to- gether with the equitable interest, in the beneficiaries of the power. The four forms of active express trusts which were at first retained (and in which, of course, the trustee has the legal estate), are : " (1) To sell real property for the benefit of creditors ; (S) To sell, mortgage, or lease real property, for the benefit of annuitants or other legatees, or for 1 N. Y. L. 1896, ch. 547, § 88. 582 _ ESTATES IN REAL PROPERTY. the purpose of satisfying any charge thereon ; (S) To receive the rents and profits of real property, and apply them to the use of any person, during the life of that person, or for any shorter term, subject to the provisions of law relating thereto ; (4) To receive the rents and profits of real property, and to accumulate the same for the purposes, and within the limits pre- scribed by law." And to these was added a fifth form of active express trust in 1893, in the restoration of (5) the charitable use or trust. See note at end of Chapter XXI., pp. 493-503, supra. 3. All the four classes of resulting trusts, except one, are left substan- tially unaffected by tlie statutes. The one affected is that which is gen- erally discussed as the first form — where the purchase price of real pi'operty is paid by one person and the legal estate is taken in the name of another. No trust now arises in New York, in such a case, unless it must be implied in order to prevent a fraud. § 860, note (a), supra. Jf. The constructive trusts, as worked out and implied by equity, are left practically unaffected by the statutes. Beyond the provision that a hona-fide purchaser need not see to the application of the purchase money (§ 410, note (a), supra) no one of the groups, classes, or forms is abolished; and, in so far as legislation has dealt with them, it has been for the pur- pose and with the result of making them more definite and certain. The chief statutes that aifect New York trusts in real property are now grouped in the Real Property Law (L. 1896, ch. 547), §§ 70-93. CHAPTER XXiy. (3) EQUITY OP REDEMPTION. § 412. Its development in con- I § 413. Its nature and extent, nection with mortgages. | § 412. Development of Equity of Redemption in Connection with Mortgages. — A real estate mortgage is iu form an abso- lute conveyance, accompanied by a clause of defeasance to the effect that if money be paid or some other act or condition be performed on or before a designated day, — called the " law- day," — the conveyance shall become null and void, but other- wise it shall remain in full force and effect. Before equity took any cognizance of such a contract, the courts of common law gave it a strict and rigid construction, and sustained a forfeiture of the mortgagor's land if he let the law day pass without duly performing the condition. It was in the process of ameliorating the hardships thus frequently inflicted on mort- gage borrowers that the courts of equity invented and carefully- fostered the third form of equitable estate, — the " equity of redemption," — the interest remaining in the mortgagor in consequence of the right being accorded him of redeeming the land from the mortgage, after the law day, by paying the prin- cipal of the debt and all accrued interest and costs down to the date of such payment. Many and varied attempts have been made by mortgagees to have this equitable right con- tracted away by mortgagors. But, acting on their maxim " once a mortgage always a mortgage," the courts of equity have steadily and successfully resisted all such efforts. A fuller account of their strenuous enforcement of that maxim and their development of the modern mortgage is given here- after.^ It is sufficient here to state briefly the nature of the resultant equity of redemption. § 413. Its Nature and Extent. — The equity of redemption of a mortgagor still exists, as strictly and properly an equit- 1 Chapter XXVI. infra. 584 ESTATES IN REAL PROPERTY. able estate, in England, Massachusetts, and the New England states generally. In those jurisdictions, the mortgagee owns the legal estate in the land ; and all the remaining interest, ■which continues even after the law day until the mortgage is foreclosed or otherwise done away with, is the mortgagor's equitable estate. Such an interest, as will be hereafter more fully explained,' is subject to dower, curtesy, liability for debts of its owner and in equity to the incidents generally of landed property ownership. The process of evolving the modern mort- gage has been carried to such an extent in the other American states that the mortgagor retains the legal estate in the land, the mortgagee has only a lien (which is personal property), and so no equity of redemption properly so called exists. But that form of estate, as it still remains in England and New Eng- land, is here described for the sake of completeness, and is to be understood as included with the uses and trusts when gen- eral mention is hereafter made of " equitable estates." 1 Last preceding note. PART IV. ESTATES CLASSIFIED WITH REFERENCE TO THEIR CONDITIONAL OR QUALIFIED NATURE. 1. Absolute Estates. 2. Qualified Estates. CHAPTER XXV. 2. QUALIFIED ESTATES. § 414. Absolute and qualified estates. §415. Qualified estates — Forms. (1) Estates on Condition. § 416. Forms of conditions — Express conditions — not favored. § 417. Implied conditions. § 418. Conditions precedent. §419. Conditions subsequent — Preferred. § 420. Conditions void, illegal, or impossible. § 421. Performance of conditions. § 422. Breach of conditions. § 423. Re-entry for breach. For- feiture. § 424. Waiver of breach — Equi- table relief. § 425. Who may re-enter for a breach of condition — Assignment of the right. § 426. Possibility of forfeiture — Right of entry. (2) Estates on Limitation. § 427. How distinguished from other qualified estates. § 428. Expressions used to create estates on limitation. § 429. Effects of happening of specified event. § 430. Remainders and rever- sions after estates on limitation. (3) Estates on Conditional Limitation. § 431. How distinguished from other estates. § 432. Expressions used to create estates on conditional limitation. § 433. Estates on conditional limitation are not favored by the common law. § 434. Means of indirectly creat- ing estates on conditional limitation at common law. § 414. Absolute and Qualified Estates. — Most of the estates thus far discussed in this book are absolute. And such is the nature of the larger portion of the interests in lands, tenements, 586 ESTATES IN REAL PROPERTY. and hereditaments with which the law has to deal. Being owned without restriction or condition, unqualified or absolute estates need only to be mentioned in this connection as a class that is contradistinguished from those that are qualified or conditional. The present chapter is to be devoted to the lat- ter species of estates generally, except the fee tail, which is elsewhere explained ; and the four next succeeding chapters will deal with that important modern outgrowth from the estate on condition — the mortgage. § 415. Qualified Estates — Forms. — The expressions " con- ditional estates," " base estates," and " qualified estates " have all been used to describe the different forms or interests in real property which are not absolute and unconditional. It will suffice here to employ the general term " qualified estates " to describe them all.^ In addition to the fee tail, they are : (1) Estiites on condition; (2) Estates on limitation; and (3) Estates on conditional limitation. (1) An estate on condition is one which may be created, enlarged, diminished, or defeated by the happening or not hap- pening of some contingent event.^ Illustrations are found in a conveyance to A and his heirs, provided they continue to live on the land ; to B for life, if he marry C ; to X for ten years, provided, however, that he shall lose it if he attempt to assign or sublet his interest. The characteristics of such interests, which distinguish them from the other forms of qualified es- tates, are that in order to defeat them the designated event must happen and the grantor or his heirs must re-enter. Upon the concurrence of these two requisites, the property reverts to the grantor or his heirs. ^ (2) An estate on limitation is one created by the use of words denoting duration of time, such as " while," " during," '.' so long as," and the like — words which are translations of donee* 1 The various expressions used by designated, are included within the different writers to describe these forms three forms described in the text ; and of estates, especially when they are fees to which of these belongs any such an in quantity, such as " limited," " de- interest dealt with by a case or text- terminable," " base," " qualified," " con- book may ordinarily be easily deter- ditional," " limitational," etc., should not mined from the context, be allowed to engender confusion. See, ^ Co. Lit. 201a; 2 Blackst. Com. for examples of such uses, 1 Prest. Est. p. * 152. pp. *24-*40, *480-*490; 1 Greenl. «§§ 422, 423, m/ra. Cruise, Dig. p. 69 ; 4 Keut's Com. p. * 9. i Co. Lit. 214 b; 2 Blackst. Com. All of the qualified estates but the fee p. * 1 55 ; Crabb on Real Prop. § 2135. tail, by whatever name they may be QUALIFIED ESTATES. 587 Illustrations are found in a transfer of property to A and his heirs, while they continue to live there; to B as long as he remains unmarried, etc. The distinctive features of such an estate are that when the event happens, which is thus desig- nated as terminating tlie period, the estate ends naturally and necessarily without any re-entry hy the grantor or his heirs, and the property reverts to them.^ (3) An estate on conditional limitation is one which is con- veyed to one person, so that, upon the happening or not happen- ing of some contingent event (whether this be conditional or limitational), the estate shall depart from him and go over to another.^ This may be illustrated by a grant of land to A and his heirs, but if he cease to live there then to B and his heirs ; or by a devise to A for life on condition tliat, if he injure the building on the land, the property shall then go to B ; or by a conveyance to A and his heirs, so long as he remains unmar- ried, and then to B for life. When such an interest as this is properly created, the happening of the designated event termi- nates the estate of the first holder ; and the property passes to the other person with9ut any entry or other act, either by him or by the grantor or his heirs. ^ Of these three forms of qualified estates, that which pre- sents the most questions for discussion here is the estate on condition. But eacli of them requires, in addition to the above outline, a brief separate discussion. (1) Estates on Condition. § 416. Forms of Conditions — Express Conditions not favored. — The different kinds of conditions by which estates may be affected are classified as express or implied; precedent or sub- sequent; and valid, void, illegal or impossible. Express conditions, sometimes called conditions in deed,* are directly created by the terms employed by the parties. Such are those in the illustrations of estates on condition in the last preceding section. They are produced by hypo- thetical or conditional words such as " if," " but if," " provided 1 Last preceding note; § 428, 1'n/ra. some of the different senses in which 2 Greenl. Cruise, Dig. vol. ii. p. 265, this term has been used, see Gray, Re- § .30; 2 Blackst. Com. p. * 155; Chase's straints ou Alienation, § 22, note (2). Blackst. p. 294, n. ; Brattle Sq. Church ^ Ibid. ; § 429, infra. V. Grant, 3 Gray (Mass.), 142, 143, 147; < Lit. § 325; Greenl. Cruise, Dig. Hatfield v. Sneden, 54 N. Y. 280. For vol. ii. p. 2, § 3. 588 ESTATES IN REAL PROPERTY. that," " if so be," " upon condition," " provided, however," etc.^ These terms differ from what may be designated limitational expressions, in that they never indicate the running along of time, but simply refer to the happening or not happen- ing of some uncertain event. In order that they may actually produce an estate on condition, they must be so employed by the parties as to make it certain that their intention is to create that kind of a determinable interest.^ The law does not favor conditions ; and, where the phrase- ology employed by the parties is doubtful or reasonably suscep- tible of some other interpretation, it will not be decided that an estate on condition has been brought into being.^ Thus, mere use of the word " condition " will not make a stipula- tion in a deed of conveyance a condition subsequent, unless it plainly appears that the intention of the parties was that the grantor should have the right to re-enter if it were broken by the grantee.* The clearest and most emphatic method of show- ing that intention is, of course, by a statement, in or connected with the words that are meant to create a condition, that the right of re-entry is reserved for its breach. But, if it be plainly apparent from the other language employed that it was in- tended that such a right should exist, the stipulation will be construed as a condition. § 417. Implied Conditions, or Conditions in Law, are such as legally inhere in the nature of the estate.^ Such is a condi- tion in a grant of a franchise that it shall be used for some pub- lic utility,^ or the common-law restriction implied against the 1 Lit. §§ 328-331 ; Co. Lit. 203 b, street v. Clark, 21 Pick. (Mass.) 389 ; 204 b; I'ortington's Case, 10 Rep. 35 a, Greene v. O'Connor, 18 R. L 56 ; Hoyt 41 b ; Langley v. Chapin, 134 Mass. v. Kimball, 49 N. H. 322 ; Seovill v. 82 ; Stanley v. Colt, 5 Wall (72 U. S.) McMabon, 62 Conn. 378 ; Sumner ... 119; Mahoning County v. Young, 16 Darnell, 128 Ind. 38. Courts prefer, U. S. App. 253. when possible, to treat such statements 2 Ibid. ; Gibert v. Peteler, 38 N. Y. as mere covenants, ecause thereby the 165, 168; Young Women's Christian possibility of forfeiture for bread) is Home V. French, 187 U. S. 401. avoided. 8 Ibid.; Lake Superior, etc. Co. v. ^ Co. Lit. 215 a. " Estates upon con- Cunninghara, 155 U. S. 354, 372; dition implied in law, are where a grunt United States u. Tenn. & C. R. Co., of an estate has a condition annexed to 176 U. S. 242; Woodworth v. Payne, it inseparably from its essence and con- 74 N. Y. 196 ; 1 Shars. & B. Lead. Cas. stitution, although no condition be ex- 123-126. pressed in words." 2 Blackst. Cora. ^ Cunningham v. Parker, 146 N. Y. p. * 152. 29, 33 ; Clement v. Burtis, 121 N. Y. e Brownell v Old Colony R. Co., 164 708; Graves w.Deterling, 120 N.Y. 447; Mass. 29; 2 Blackst. Com p. *152; Stuart V. Easton, 170 U. S. 383; Brad- § 125, supra. QUALIFIED ESTATES. 589 owner of a life estate to the effect that he should not attempt to convey by feoffment or fine more than his own interest.^ These forms of conditions are not so numerous, and in some respects not so technical, as are those which are expressed. § 418. Conditions Precedent. — A condition precedent must be performed before the estate can vest. When, for example, a piece of property is conveyed to A and his heirs, provided, however, that he is not to own it until he marries B,the estate is affected by such a condition.^ So is a gift to X for life, to be enlarged into a fee, if he marry Y.^ The full discussion of this form of condition belongs to the chapter on future estates. For an interest which depends for its vesting upon an event to happen in the future will be a contingent remainder or an executory estate.* § 419. Conditions Subsequent preferred. — A condition sub- sequent affects an interest which is already vested ; and it either diminishes or defeats that interest.^ Thus a conveyance to A and his heirs, but if he marry B, then to him only for his life, and an estate to C for years or for life or in fee, provided, how- ever, that he is to lose it if D come back from Rome, or if he fail to erect a building upon it, are estates on condition subsequent.* When a condition is seen toi affect an estate, the courts pre- fer to treat it, if reasonably possible, as subsequent rather than precedent.'' This is a very strong and frequently illustrated 1 Lit. §§ 415, 416; 2 Blackst. Com. session at the termination of a prior p. * 274. ' particular estate on which it depends, if, ''■ See Weston v. Foster, 7 Met. in the meantime, the event occur in its (Mass.) 297 ; Nevius v. Gourley, 95 111. favor; it is an executory estate when it 206 ; Vanhorne u. Dorrance, 2 Dall. does not rest on any particular estate, (Pa.) 304, 317; 2 Blackst. Com. p. but simply depends on the happening * 154. of the specified event. See the nature ^ Such a condition as this, which is of contingent remainders explained, of rare occurrence, affects only the §§ 575, 587, infra, and that of execu- fnture estate to be added if the event tory estates, §§ 565, 616, infra. occur, and as to that estate it is clearly ^ p q. Lit. 201 a ; Greenl. Cruise, precedent. Thus, in the illustration Dig. tit. xiii. ch. i. § 6, and note 1. here given, X owns an unconditional life « Lit. § 325; Watters «. Bredin, 70 estate ; and the fee, which may or may Pa. St. 235 ; Trustees of XJnion College not become hi.s, is a conjinjen* 7-emainrfcr v. City of New York, 173 N. Y. 38; depending upon the condition precedent Lake Superior, etc. Co. i^. Cunningham, of his marrying Y. It is therefore 155 U. S. 354 ; Monroe v. Bowen, 26 properly discussed hereafter as one of Mich. 523. the forms of such remainders. See ' United States v. Tenn. & C. R. Co., Cruise, Dig. tit. xiii., ch. i. § 7, tit. xvi. 176 U. S. 242; Lake Superior, etc. Co. ch. ii. §§ 35, 36. v. Cunningham, 155 U. S. 354, 372; * It is a contingent remainder when NicoU u. N. Y. & E. R. Co., 12 N. Y. it is so made that it may vest in pos- 121 ; Donnelly v. Eastes, 94 Wis. 390. 690 ESTATES IN REAL PROPERTY. preference ; and it is also a conspicuous application of the general principle, running through all the common law, that a right or an interest once conveyed or transferred, which may be looked upon as great and important or as of lesser signifi- cance, shall be treated and construed preferably in the former sense.^ The determination of whether a condition is precedent or subsequent depends ultimately on the intention of the parties as ascertained from their language and all the facts of the case; but, when such intent does not clearly appear, the rule now fol- lowed, and based on this general principle of preference, is that " if the act or condition required do not necessarily precede the vesting of the estate, but may accompany or follow it, or if the act may as well be done after as before the vesting of the estate," then the condition is subsequent.^ § 420. Conditions void, illegal, or impossible. — The condi- tions heretofore illustrated have been valid and enforcible. An instance of a void condition may be found in one which is repugnant to the nature of the estate granted ; as if, for example, land were conveyed to A and his heirs, provided that he should never take any profits or emoluments therefrom.^ An illegal condition would be found in a transfer of property to become void if the gi'antee did not commit murder or lar- ceny. So if the stipulation be in illegal restraint of trade, or of marriage, or violate general public policy.* With regard to conditions in restraint of marriage, it will here suffice to say, so far as real property is concerned, that they are generally held to be valid and enforcible, if precedent in their nature or if sub- sequent and reasonable as to time and circumstances. Other- wise they are illegal and void.^ Thus a provision that a grantee 1 Acting on this general principle, Barb. (N. T.) 455. And see cases in cases where the parties have not cited in last preceding note ; Finlay v. made their meaning clear, courts treat King's Lessee, 3 Pet. (28 U. S.) 346 ; an estate as vested in possession rather Burdis o. 3urdis, 96 Va. 81 ; In re than future, a remainder as vested Stickney's Will, 85 Md. 79. rather than contingent, and any ' s Cruise, Dig. tit. xiii. ch. i. §§ 20, future estate as a remaitvder of some 21 ; Smith v. Clark, 10 Md. 186. kind rather than an executory interest. * Cruise, Dig, tit. xiii. ch. i. § 19; So they always tend to hold that a United States v. Freifrht A.ss'n, 166 condition subsequent has not been U. S, 290; Scott k. Tyler, 2 Lead. Cas. broken, unless a breach has clearly Eq. 120; Sternberg v. O'Brien, 48 occurred, and thus to retain the estate N. J. Eq 370, 372. and prevent a forfeiture. See § 579, » Phillips v. Ferguson, 85 Va. 509 ; infra, and also the discussion of the Sinythe v. Smythe, 90 Va. 638; Ean- future estates generally. dall v. Marble, 69 Me. 310; Bo.stick 2 Underbill v. Saratoga R. Co., 20 v. Blades, 59 Md. 231 ; Story's Eq. QUALIFIED ESTATES. 591 should never own the estate until he married, or that, taking it, he should lose it if he married before he was twentj-five years of age, would be enforced ; but a condition subsequent absolutely prohibiting marriage of the owner of the property, or restricting it until he should become old — say fifty years of age — would be null and void.^ With these qualifications, it may be stated generally that void and illegal conditions are inoperative and do not affect the estate at all when they are subsequent ; ^ but that, when they are conditions precedent, since they can not be legally per- formed and the estate can not vest without their performance, the interest attempted to be conveyed naturally fails. A devise, for example, to A and his heirs, it being understood, however, that he shall lose it if he fail to commit murder, or any other specified crime, gives to A an indefeasible estate in fee simple ; ^ while a grant to X and his heirs, not to take effect unless he commits a felony, confers no right or interest whatever upon him.* The same principles are ordinarily applicable to conditions §§ 288, 289; 2 Pom. Eq. Jur. § 933; Cruise, Dig. tit. xiii. ch. i. §§ 53-67 ; 3.T Cent. Law Jour. 385. 1 Scott V. Tyler, 2 Lead. Cas. Eq. 120, note ; Phillips v. Ferguson, 85 Va. 509; Hogan c. Curtin, 88 N. Y. 162; Graydon's Ex'rs v. Graydon, 23 N. J. Eq. 229 ; 2 Pom. Eq. Jur. § 933. It is reasonable for a deceased husband or wife to devise realty to the other with a condition against remarriage. Bos- tick V. Blades, 59 .Md. 231 ; Giles u. Little, 104 U. S. 291 ; Knight v. Maro- ney, 152 Mass. 523, 525 ; Herd v. Catron, 97 Tenn. 662 ; Bispham's Prin. Eq. § 227, citing Allen v. Jackson, L. R. 1 Ch. Div. 399. 2 Ibid. ; Monroe v. Hall, 97 N. C. 206 ; Randall u. Marble, 69 Me. 310; Wil- liams ti, Cowden, 13 Mo, 211 ; 1 Story'.s Eq. Jur. §§ 283, 288, 289 ; Bispham's Prin. Eq. §§ 226, 227 ; 12 Law Quart. Rev. 36. There is much confusion in the books as to conditions in restraint of mai'riage. But most of it relates to personalty, and arises from the fact that some courts give more weight .and some less to the civil-law rule, which is very stringent against such conditions. See Bispham's Prin. Eq. § 225. In several cases in this country, it has been decided that any restraint made by words of limitation — as to a person " while " he remains unmarried, or " so long as " he does not marry — is valid, although it would be void if in the form of a condition subsequent — as to A and his heirs on condition that he never marries. Arthur !■. Cole, 56 Md. 100; Hotz's Est., 38 Pa. St. 422; Selden v. Keen, 27 Graft. (Va.) 576; Randall v. Marble, 69 Me. 310 ; Courter V. Stagg, 27 N. J. Eq. 305; Little v. Birdwell, 21 Tex. 597 ; Crawford v. Thompson, 91 Ind. 266. But this dis- tinction is not approved as to real property by the English courts, nor by some of the best writers. Jones v. Joues, L. R. 1 Q. B. Div. 279 ; 2 Jarm. on Wills (Bigelow's ed.), 886 ; 6 Gray's Cas. 23, n. * Brandon v. Robinson, 18 Ves. 429 ; Lovett v. Gillender, 35 N. Y. 617 ; Co. Lit. 206 b. * Co. Lit. 206 a, b, 218 a; Taylor V. Mason, 9 Wheat. (22 U. S.) 325, 350 ; Martin v. Ballou, 13 Barb. (N. Y.) 119; Parker v. Parker, 123 Mass. 584. 592 ESTATES IN REAL PROPERTY. which are impossible in their nature, such as a stipulation that the grantee shall go to Europe in one day, or shall support a person who has died before the gift or grant can become operative.^ But when the performance of any condition is ren- dered impossible by the act of the grantor, or, being a condi- dition implied in law, it becomes impossible by the act of God or by the operation of statute or other legal requirement, it falls away from the estate, and the estate itself becomes absolute and indefeasible.^ § 421. Performance of Conditions. — Any one interested in the property may validly perform a condition, and thus cause the estate to vest, or prevent forfeiture, as the case may be.^ In cases in which the estate has been created by devise, and is on condition subsequent, and nothing is said as to the time of per- formance, the devisee is presumed to have the period of his life in which to comply with its requirements.* But when the property has been transferred by act inter vivos, and there is nothing in the language employed to indicate the time of performance, or that such time is immaterial, the grantee is ordinarily given merely a reasonable time within which to do or bring about what is required.^ Of course, there are many conditions subsequent over which the owner of the property has no control. The words used in the creation of these, or their own inherent nature will uniformly determine the time when the events specified must occur, if ever. § 422. Breach of Conditions. — Not only does the law dislike conditions and prefer, when feasible, to construe stipulations as covenants, which do not work forfeitures,^ but also, when the words must reasonably be construed as creating a condi- tion, and there exists any room for doubt as to whether or not it has been broken, the courts lean strongly in favor of holding 1 Eoundel v. Currer, 2 Bro. Ch. 67 ; assumed the performance of the condi- Hughes V. Edwards, 9 Wheat. (22 U. S.) tion. See Paradine v. Jane, Aleyn, 27 ; 489; 2 Blackst. Com. p. * 156; Co. Lit. Harmony v. Bingham, 12 N. Y. 99; 206 a. Pollock, Cont. (6th ed.) 410, 418. ^ Baker u. Women's Christian Tem. ^ wnson r. Wilson, 38 Me. 18; Uii., 57 N. Y. App. Div. 290; Hughes 2 Crabb, Real Prop. § 2163. u. Edwards, 9 Wheat. (22 U. S.) 489; * Co. Lit. 208 b, 209 a; Finlay v. Taylor v. Sutton, 15 Ga. 103 ; Co. Lit. King, 3 Pet. (28 U. S.) 346, 376. 206 a. Mere personal impossibility on ° Trustees of Union Col. <.•. City of the part of him who should perform a New York, 173 N. Y. 38; Allen u. condition will not relieve him from the Howe, 105 Mass. 241 ; Pierce v. Brown effects of its breach, nor will impossi- Univ., 21 R. L 392; Co. Lit. 208 b. bility caused by the act of God be ' § 416, supra. an excuse for one who has unqualifiedly QUALIFIED ESTATES. 593 that there has been no breach.^ It is not enough, therefore, to defeat an estate on condition, to sIiovt that the letter of the stipulation has been violated, " but it must appear that its true spirit and purposes have been wilfully disregarded." ^ Thus, where the condition annexed to a grant of vacant property to be used as a public square was that the grantee should never allow it to be built upon, an inadvertent encroachment of three or four inches, by a neighboring builder, did not constitute a breach of the condition and gave no right of re-entry to the grantor.^ § 423. Re-entry for Breach — Forfeiture. — The mere fact alone that a condition subsequent is broken by the landowner does not defeat his estate. It simply gives to the grantor or his heirs or their successors in interest the right to re-enter and take back the property ; and this latter act, or its equivalent, must be done before the title of the holder on condition is divested.* Thus, if A own land conveyed to him on condition that he cut no trees from it, he does not lose it merely by cutting trees ; but for such a breach the grantor may re-enter and thus defeat the estate.^ Since the time when the action of ejectment was moulded into its present form in England, it has been de- cided in that country, and it is now generally held in the United States also, that an action of ejectment, or its equivalent statu- tory procedure under the codes, need not be preceded by actual entry on the land for the breach. The institution of the action is equivalent to entry .^ So, when the person entitled to ^ Riggs V. Pursell, 66 N. Y. 193; aforfeiture. Bowen v. Bowen, 18 Conn. Woodworth v. Payne, 74 N. Y. 196 ; 535 ; Trustees of Union College v. City Cunningham v. Parker, 146 N. Y. 29, of New York, 173 N. Y. 38. Until a 33 ; Merrifield v. Cobleigh, 4 Cush. forfeiture is thus enforced, the estate (Mass.) 178, 184; Page v. Palmer, 48 on condition is regarded as having the N. H. 385 ; Sumner v. Darnell, 128 ordinary incidents and attributes of ab- Ind. 38 ; Gadberry u. Sheppard, 27 solute and indefeasible estates. There- Miss. 203. fore, the United States government, 2 Rose t. Hawley, 141 N. Y. 366, having conveyed property in fee on 378 ; Hoyt v. Kimball, 49 N. H. 322. condition, and the condition having See United States v. Tenn. & C. R. Co., been broken, could not maintain an 176 U. S. 242. action against a stranger for trespass- 8 Rose V. Hawley, 141 N. Y. 366. ing on the land until it had defeated ' United States f. Tenn. & C. R. Co., the grantee's estate by re-entry or its 176 U. S. 242 ; Schlesinger v. Kansas equivalent. United States v. Loughrey, City, R. Co., 152 U. S. 444; Fonda 172 U. S. 206. V. Sage, 46 Barb. (N. Y.) 109; Up- ^ ibid. ington II. Corrigan, 151 N. Y. J43; « Jones u. Carter, 15 M. &W. 718; Osgood ». Abbott, 58 Me. 73 ; Green u. Cowell v. Colorado Springs Co, 100 Pettingill, 47 N. H. 375. The entry or U. S. 55 ; Schlesinger «. Kansas City demand must be with intent to produce R. Co., 152 U. S. 444 ; Plumb v. Tubbs, 38 594 ESTATES IN REAL PROPERTY. I the benefit of the breach is already in possession, that fact is, of course, equivalent to his re-entry .^ And a claim, duly made in consequence of the breach, is sufficient when tlie property is incorporeal and so not subject to a physical entry .^ When these two events — breach of the condition and re- entry or its equivalent — have concurred, the estate on con- dition is defeated ah initio ; the grantor, his heirs, or their successors in interest, re-acquire the property in the same plight as if such estate liad never existed, and all the liens and interests which the holder on condition may have created are thereby entirely swept away.** § 424. Waiver of Breach — Equitable Relief. — If the party entitled to enforce a forfeiture for breacli of condition know- ingly and expressly permit its violation, he can not re-enter for such breach.* So, if after the stipulation is broken he waive his right, as by accepting payment of arrears of rent accruing after the breach, or agreeing not to take advantage of the wrong, he is precluded from regaining the property for that violation of the condition.^ And the rule of Dumpor's Case in the early common law,^ now repudiated by statute in Eng- land ^ and generally treated with disfavor in this country,''' but still adhered to in New York, Maryland, and possibly in one or two other jurisdictions, is that an express permission of the owner once to violate a condition in deed (in Dumpor's Case, it was a condition against assigning a lease) destroys the con- 41 N. Y. 442; Austin u. Cambridge- Mass. 188; Andrews c. Senter, 32 Me. port, 21 Pick. (Mass.) 215. Contra, 394; Moses c. Loomis, 156 111. 392. Preston v. Bosworth, 153 Ind. 458. Acceptance of arrears of rent which 1 Lincoln & K. Bk. v. Drummond, accrued before breach of condition does 5 Mass. 321 ; Co. Lit. 218 a. not constitute a waiver. Jackson v. 2 Co. Lit. 218 a. Allen, 3 Cow. (N. Y.) 220; Miller v. 8 Moore o. Pitts, 53 N. Y. 85 ; Prescott, 163 Mass. 12 ; Crabb, Real McKelwayu. Seymour, 29 N. J. L. 321, Prop. § 2196. But the cases are not 329 ; Winnepesaukee C. M. Ass'n v. entirely in harmony as to the effect of Gordon, 67 N. H. 98 ; Co. Lit. 201 a, such acceptance. See Medinah T. Co. n. 84 ; 1 Prest. Est. p. *46. v. Currey, 162 111. 441 ; Hunter v. Os- * Williams v. Dakin, 22 Wend. terhaudt, 11 Barb. (N. Y.) S3. (N. Y.) 201; Birdsall v. Grant, 37 « 4 Rep. 119; 1 Smith's L. C. p. N. Y. App. l)iv. 348 ; Thropp v. Field, *47 ; Brummel v. Macpherson, 14 Ves. 26 N. J. Eq. 82 ; Moses v. Loomis, 156 173. 111. 392; Alexander u. Alexander, 156 ' 22 & 23 Vict. ch. 25, §§ 1-3. Mo. 413. ' Notes to Dumpor's Case, 1 Smith's 5 Goodright ;;. Davids, Cowp. 803 ; L. C. p. *47, *51 et seq. ; Kew ;;. Trainor, Davenport V. Reg., L. R. 3 App. Cas. 150 111. 150; Alexander v. Hodges, 41 115; Jackson v. Crysler, 1 Johns. Cas. Mich. 691 ; Note in 7 Amer. Law Rev. (N. Y.) 125; Conger v. Duryee, 90 616. N. Y. 594; Hubbard v. Hubbard, 97 QUALIFIED ESTATES. 595 dition altogether, and makes his estate absolute.^ Indeed, in New York, this rule seems to have been extended rather than restricted ; for it has been there held that an implied waiver of a prior breach by a tenant for years, shown by the landlord's acceptance of rent, would do away with the condition so broken.^ It is to be added that when there is a breach of a condition, for which the grantor has a legal right of re-entry, and for which compensation can be made, equity will ordinarily grant relief upon the terms that remuneration in money or other value shall be made for the breach, or that the grantor shall in some other manner be placed in statu quo ; and that court will be quick to do this when the breach is unwitting or accidental.^ § 425. "Who may re-enter for a Breach of Condition — Assign- ment of the Right. — The right to re-enter for a condition broken has its roots in the feudal system. It is an outgrowth of the lord's right in case a vassal violated his feudal obligations. Therefore, the ownership of an express condition and the right of re-entry for its breach, except in so far as they are modified by statute, are personal to the grantor and his heirs.* An express condition (or condition in deed) can not be validly reserved, at common law, to any one except the grantor and his heirs; and neither it nor any right to enforce a forfeiture for its infraction can ordinarily be assigned, or even devised away, unless the authority so to deal with it has been created by statute.^ Being incident to a particular estate, as if, for 1 Murray ». Harway, 56 N. T. 337 ; ' Wafer «. Mocato, 9 Mod. 112; Reid V. Weissner Brewing Co., 88 Md. Davis v. Gray, 16 Wall. (83 U. S.) 203, 234; Porter v. Merrill, 124 Mass. 534; 230; Noyes v. Anderson, 124 N.Y. 175; McKibbe u. Darracott, 13 Gratt. (Va.) Mactier v. Osborn, 146 Mass. 399; 278. Grigg V. Landis, 21 N. J. Eq. 494; '^ Murray v. Harway, 56 N. Y. 337, 1 Pom. Eq. Jur. § 453. " In every such 343 ; Clark u. Greenfield, 13 N. Y. case, the true test (generally, if not Misc. 124, 126 ; Koehler & Co. u. Brady, universally) by which to ascertain 78 Hun (N. Y.), 443. And see Smith whether relief can or cannot be had in V. Rector, etc. St. P. Ch., 107 N. Y. 610, equity, is to consider whether compen- 619; Wertheimer w. Hosmer, 83 Mich. sation can be made or not. If it cannot 56 ; Jones v. Durrer, 96 Cal. 95 ; Gulf, be made, then courts of equity will not C. & S. Ry. Co. V. Settegast, 79 Tex. interfere." 2 Story's Eq. Jur. § 1314. 256 ; Pennock v. Lyons, 118 Mass. 92 ; See Ibid. §§ 1313-1323 ; Greenl. Cruise, Sharon Iron Co. v. City of Erie, 41 Pa. Dig. tit. xiii. ch. ii. §§ 29-35, and note. St. 341, 349. "The ground of this * Co. Lit. 201 a, Butler's note (84); doctrine is that every condition of re- Fearne, Cont. Rem p. 381. entry is entire and indivisible ; and, as ' Ibid. ; Avelyn v. Ward, 1 Ves. Sr. the condition had been waived once, it 420 ; Jackson v. Topping, 1 Wend, cannot be enforced again." Wms. (N. Y.) 388 ; Van Rensselaer c. Ball, Real Prop. p. *398. 19 N. Y. 100; Gibert v. Peteler, 38 596 ESTATES IN REAL PROFEKTY. example, an estate for years or life were granted away on con- dition by the owner of the fee, if the latter attempted to assign his reversion and the right to enter for a breach, the condition was thereby destroyed entirely ; for the assignor could not enforce it because he had parted with it, and yet the assignee acquired notliing in it that he could enforce, because it was not assignable.^ Implied conditions, being raised by law and in- herent in the estate by its nature, have not been held subject to these stringent and technical rules ; but they could be en- forced by the devisees or assignees of the original owners.^ By the act of 32 Hen. VIII. ch. 24, the right to enforce express conditions, including, of course, entry and taking back the land, against owners of estates for years and for life, was made assignable with the reversion ; and that statute has been either substantially re-enacted or tacitly adopted in most if not all of the United States.^ (a) But it does not apply to a con- dition annexed to an estate in fee.^ It may be added, how- ever, that in Massachusetts, Illinois, and possibly some other states, a devisee of a grantor of an estate in fee on condition has been accorded the privilege of entering and terminating the estate for breach of the condition.^ § 426. Possibility of Forfeiture — Right of Entry. — From the preceding paragraph, it is apparent that, while the landlord (a) It has been re-enacted in New York, and is now L. 1896, ch. .547, § 193, which section is quoted and explained in the note on New York Manor Lands, at the end of Ch. XVII. supra. N. Y. 165 ; Vail v. Long I. B. Co., 106 ^ Austin v. Cambridgeport, 21 Pick. N. Y. 283 ; Merritt u. Harris, 102 Mass. (Mass.) 215, 224; Stearns v. Harris, 326 ; Hooper v. Cummings, 45 Me. 359. 8 Allen (Mass.), 597 ; Keuner v. Amer. The reason for this technical rule was to Contract Co., 9 Bush (Ky.), 202. See prevent maintenance. Greenl. Cruise, Boone v. Clark, 129 111. 466. In 2 Dig. tit. xiii. ch. 1, § 15; Co. Lit. Wash Real Prop. (6th ed.) § 955, note § 357. 5, it is said that the Massachusetts 1 Ibid. ; Rice v. Boston & W. R. peculiar rule has arisen from the con- Corp., 12 Allen (Mass.), 141 ; Hooper struction of a local statute. As al- V. Cummings, 45 Me. 359 ; Boone v. ready stated, local statutes may readily Clark, 129 111. 466. change these rules, and in some few 2 Crabb, Real Prop. § 2190 ; Co. Lit. instances have done so. See Stat. 8 & 214. 9 Vict. ch. 106, § 6 ; Leake, Land Law, 8 1 Stim. Amer. Stat. L. § 1352. p. 59; Hoyt v. Ketcham, 54 Conn. 60; « Co. Lit. 215 b ; Ruch v. Rock Southard v. Cent. R. Co., 26 N. J. L. Island, 97 U. S. 693 ; Nicoll v. N. Y. & 13. See also the following section of E. R. Co., 12 N. Y. 121 ; Upington v. the text for a fuller discussion of con- Corrigan, 151 N. Y. 143 ; Stockbridge ditions subsequent in connection with Iron Co. u. Cone Iron Works, 102 Mass. grants in fee. 80. QUALIFIED ESTATES. 597 or the reversioner who owns the property subject to an estate for years or life on condition may now sell or otherwise trans- fer his interest, in such manner that he who takes it may enforce the condition ; yet the grantor of an estate in fee on condition, having no right or interest left in the property other than the mere chance of regaining it because of a breach, can not in any way alien such mere chance or right, except in the few jurisdictions in which the power to do so is given by local statute, but must either release it to the owner of tlie property, or upon his own death let it pass to his heirs. These two things he can do with it, and, with the exception of the addi- tional rights arising from local statutes, they are the only two dispositions of it which he can make.^ This mere right, or chance of regaining by forfeiture an estate which one has transferred in fee on condition, is said by high authority to be, not an estate, interest, or reversion, nor, properly speaking, a possibility of reverter. The most exact designation of it is a " possibility of forfeiture." If it be not released to the owner of the land, it passes to the heirs of the grantor, not by way of descent, but by representation.^ It is to be carefully noted, as the one remaining right or incident connected with real prop- erty of to-day which, by the prevailing rule, can not be sold, given away, or otherwise aliened, (a) (a) In the note on New York Manor Lands, at the end of Chapter XVII. supra, it is explained that conditions authorizing re-entry for uon- 1 Last two preceding notes. But his reverter oi escheat ; but, from the re- see Co. 202 a; Gray, Perpetuities, § 13. moter probability of the return, when ^ Upington v. Corrigan, 151 N. Y. tlie fee was granted, it became custom- 143, 149 ; 4 Kent's Com. p. *17, note (6). ary to call it after the grant of the fee The expression " possibility of reverter " his possibility of reverter ; by degrees has been used in a variety of senses. that expression was applied to those Its history and meaning are explained cases only where a limited fee had been in Butler's note to Fearne, Cont. Rem. granted, and the word escheat was ap- p. 381, as follows: "It is generally plied to those where the grant had con- understood that lands were granted ferred an absolute estate in fee simple, originally for the life only of the A grant to a man and the heirs of his grantee, then to him and liis lineal heirs, body was at common law a limited fee ; and then to him and his lineal and col- and, therefore, after such a grant, a pos- lateral heirs : and that on every such sibility of reverter was said to remain in grant, whether it were for life or in fee, the grantor. When the statute de donis a right remained in the grantor to the converted such fees into estates tail, services of the grantee, during the con- the return of the land was secured hy it tinuance of his estate, and to a return to the donor, and was called his reverter. of the land on its expiration. Whether In all these cases the words reverter this right of the grantor depended on and reversion are synonymous." See, an estate for life, or in fee, it was of the also. Gray, Perpetuities, §§ 32-41 ; same catoie, and iudifierently called § 430, infra. 598 ESTATES IN REAL PEOPEETT. (2) Estates on Limitation. § 427. How distinguished from other Qualified Estates. — The chief characteristic of estates on limitation, distinguishing them from other qualified estates, is that they terminate natu- rally when the designated event occurs, and the property returns to the grantor or his heirs without the necessity for any re-entry on their part. Tlius, when land is conveyed to A as long as he shall lire upon it, it will revert to the grantor as soon as A ceases to reside there. Also, property conveyed to one and his heirs while the waters of tJie Delaware River shall flow, must, as far as such conveyance is concerned, revert to payment of proceeds of perpetual rents reserved on grants of land in fee may be enforced by the grantors personally, or by their heirs, devisees, or assigns, and that this result has been worked out as a common-law prin- ciple, and in reality without the aid of statute. This may appear, at first sight, to be an exception to the emphatic principle stated in the text. But the conditions, in such cases, are incident to the rents reserved by the grantors. They are not mere possibilities of forfeiture. They are owned together with and incident to incorporeal hereditaments. They can be assigned with such property. But, not being in themselves property, they could not be assigned or devised alone. For example, it is provided by statute in New York that a testator may devise every estate and interest in real property that is descendible to heirs. R. S. 9th ed. p. 1875 (2 R. S. 56), § 2. On the strength of this statute, the residuary devisee of one who had granted away land in fee on condition — reserving no rent, but merely providing for forfeiture by the grantee if a certain stipulation were broken ^sought to enforce a forfeiture for breach of the condition. But it was held that this right belonged to the heirs of the grantor and not to the devisee, because not being an estate or interest it was not ailected by the statute. Upington v. Corrigan, 151 N. Y. 143. In the opinion in that case. Gray, J., after summarizing the leading case of NicoU v. N. Y. & E. R. Co., 12 N. Y. 121, says: " After speaking of the change made in Eng- land by 32 Henry the VIIL ch. 34, and in our Revised Statutes, which permitted the assignment of a right of entry in case of grants, or leases in fee, reserving rents, and of leases for lives or for years, the opinion con- tinues : 'There was a reason for the statutory change in the particular cases mentioned ; for in them the grantor had an interest independent of the possibility of reverter. . . . But where a fee simple, without a reservation of rents, is granted upon a condition subsequent, as in this case, there is no estate remaining in the grantor. There is simply a possibility of reverter, but that is no estate. There is not even a possi- bility coupled with an interest, but a bare possibility alone.' " And he also explains (p. 149) that, technically speaking, this bare right is not a " possibility of revei-ter," but rather a "possibility of forfeiture," although it is called the former in his quotation. QUALIFIED ESTATES. 599 the grantor or his heirs if such waters ever cease to flow. Estates on limitation are thus naturally ending interests, and are not prematurely cut off or carried over to other parties by the liappening or not happening of tlie contingent events.^ They have been often spoken of as estates on special limitation, or collateral limitations ; but the term here used — limitation, simply — accurately describes them, and is now used by the best authorities in the sense here employed.^ Limitations may be annexed to interest of any fixed quan- tity — to an estate in fee, or for life, or for years. A gift to A and his heirs, so long as they continue to live there, is a fee on limitation ;^ to a widow, while she remains unmarried, a life estate on limitation,* and to B for ninety-nine years, or during his life if he die within that time, an estate for years on limitation.^ § 428. Expressions used to create Estates on Limitation. — As shown above, such interests as these arise from the employ- ment of expressions denoting the running along of time, such as " while," " during," " as long as," " during tlie contiimance of," and the like. All these may be readily remembered as English translations of " donee." The difference between them and the conditional or hypothetical expressions used in the 1 Crabb, Real Prop. § 2135; Chase's eventual measure of A's interest, de- Blackst. p. 294; Hatfield v. Sneden, 54 pending on the effluxion of the uiuety- N. Y. 280, 285. nine years, or the dropping of his life, 2 Ibid. ; Stuart v, Easton, 170 TJ. S. which shall first happen. The fact that 383 ; First Univ. Soe. of N. Adams v. these special limitations are not col- Boland, 155 Mass. 171; Gray on Re- lateral to the original measure given to straints on Alienation, §22,n. 1. "These the estates to which they are annexed, special limitations," says Fearne, " are constitutes the fundamental distinction sometimes termed collateral limitations. between them and conditional limita- And if the term ' collateral limitations ' tions specifically and properly so is used as referring to an event which is called." 2 Fearne, Cont. Rem. (Smith's collateral to the general limitation, it ed.) § 36. And see 1 Prest. Est. p. is not inaccurate. But if the term is *42. used from a notion that these limita- ^ Poole v. Needham, Yelv. 149 ; tions form-no part of, and are collateral Dodge v. Stevens, 94 N. Y. 209; Stil- to, the original mezisure of the estate, vvell v. Melrose, 15 Hun (N. Y.), 378. in the same manner as a conditional * Co. Lit. 42 a ; Harmon i,. Brown, limitation, or a condition subsequent 58 Ind. 207 ; Leonard v. Burr, 18 N. Y. properly so called, such a notion is 96 ; Warner u. Tanner, 38 Ohio St. inaccurate, and the inaccuracy is one of 118. a fundamental and most important ^ 2 Fearne, Cont, Rem. §36; Shaw char.icter. . . Thus, in the above- v. Hoffman, 25 Mich. 162, 172; Miller mentioned case of an estate limited to v. Levi, 44 N. Y. 489 ; Pratt v. Paine, A for ninety-nine years, if he shall so 119 Mass. 439. long live ; there is but one original and 600 ESTATES IN REAL PEOPERTT. creation of estates on condition is plainly apparent.^ " Where an estate is so expressly limited by the words of its creation, that it can not endure for any longer time than until the con- tingency happens upon which the estate is to fail, this is a limitation." ^ § 429. Effects of Happening of Specified Event. — The event indicated by these expressions, when it occurs, is, as above pointed out, the occasion of the instantaneous reverting of the property to the grantor or his heirs. This is because such terms denote or define the limitation of the estate conveyed, and indi- cate its natural end. If, therefore, property be conveyed to a per- son while a designated tree stands, the mere falling of the tree ends the estate, because that was the event contemplated by the parties ; and an estate to A and his heirs, so long as they are "tenants of the Manor of Dale," terminates naturally when they cease to be such tenants.^ So, a devise of property to a woman during her widowhood gives to her an interest which naturally terminates, either upon her re-marriage, or upon her death without having re-married.* It is important to note in passing that, because the law favors an estate which shall thus end naturally, rather than one prematurely terminated by the breach of a condition and the re-entry by the grantor or his heirs, in cases of doubt whether or not a transfer would be in illegal restraint of marriage, it is much more likely to be held that the conveyance is valid when the restraint takes the form of a limitation. Therefore, a transfer of property to a woman during her widowhood is looked on with much more favor than a conveyance to her for her life, on condition that she shall lose it if she re-marry. In both methods of declaring the transfer, the prima facie nature of the gift is the same for her ; but the form will be more favored by the courts when it is a limitation than when it is a condition.^ § 430. Remainders and Reversions after Estates on Limitation. — By way of slight anticipation, it should be stated here that 1 § 415, supra ; Portington's Case, 10 Mass. 171 ; Leonard v. Burn, 18 N. Y. Co. 35 a, 41 b ; Henderson v. Hunter, 59 96 ; Morris C. & B. Co. <^. Brown, 27 Pa. St. 335, 340 ; Shep. Touchst. p. * 125. N. J. L. 13. 2 Crabb, Real Prop § 2135, quoted * Co. Lit. 42 a, 214 b; Mansfield v. in 2 Chase's Blackst. p. 294, n. Mansfield, 75 Me. 509 ; Arthur v Cole, » Prest. Est. pp. *42-*44, *440; 56 Md. 100; Sims v. Gay, 109 Ind. .501 ; Ashley!). Warner, 11 Gray (Mass.), 43; Scott v. Tyler, 2 Lead. Cas. Eq. (3d Owen V. Field, 102 Mass. 90; First Amer. ed.) 412, notes. Univ. Soc. of N. Adams v. Boland, 155 ' Ibid.; § 416, supra. QUALIFIED ESTATES. 601 the common-law courts -would nevei' permit a remainder to be so created as to curtail or prematurely end the preceding or particular estate. Therefore, if land were directly granted to A during his life, hut if he ceased to live there, then on his moving away to pass to B and his heirs, the estate attempted to be created in favor of B could never be a remainder, because it must take effect in derogation of A's life estate. If, how- ever, the conveyance were to A until he ceased to live tliere, or while ho kept a good school, etc., and then to B and liis lieirs, B would obtain a valid remainder, because A's estate must naturally terminate when he ceased to live there, or no longer kept such a school, as the case might be.^ This distinction will be more fully discussed hereafter in connection with re- mainders ; but it should be carefully noted here, and remem- bered as an explanation of some important and far-reaching distinctions in the law of future estates. After an estate less than fee, on limitation, there is a reversion for the grantor. Thus, if A, the owner of land in fee simple, convey it to B, so long as he remains unmarried, it will cer- tainly revert to A, or his heirs or assigns, either wlien B mar- ries, or at his death unmarried. And after a fee, on limitation, dependent on an event which may possibly occur, — as an estate to B and his heirs until they cease to live there, — the better view, now generally accepted, is that there exists a " pos- sibility of reverter," — a chance that the property may return to the grantor or his heirs without the necessity for their en- forcing a forfeiture. And it is also generally held, — though not so uniformly as in the case of a " possibility of forfeiture " after a fee on condition, — that such a mere chance can not be aliened or assigned.^ 1 Cruise, Dig. tit. xrii. §§ 6, 7 ; 4 Gray, Perpetuities, §§ 32-41 ; Hatfield Kent's Com. pp. *17, note (6), *262, v. Sneden, ,^4 N. Y. 280, 285. notes (fl), (6); Brattle Sq. Ch. u. Grant, M Prest. Est pp. *50-*53; 2 3 Gray (Mass.), 142; First Univ. Soc. Fearne, Cont. Rem. (Smith's ed.) §§ 1!53, of N. Adams v. Boland, 155 Mass. 171 ; 154. Where the event which is to take Pemberton v. Barnes (1899), 1 Ch. 544; the property over may occur in deroga- Slegel V. Lauer, 148 Pa. St. 236. See tion of the first estate, as in the first discussion of the meaning of the ex- illustration here given, the second estate pression "possibility of reverter," attempted is a conditional limitation, § 426, notes 2, (a), supra; and also see, as and not a remainder ; and it was always to such a right after a fee on limitation, opposed and forbidden by the common- since the Statute of Quia Emptores, law courts. Ibid. ; Hatfield v. Sneden, 54 N. Y. 280. 602 ESTATES IN REAL PROPERTY. (3) Estates on Conditional Limitation. § 431. HoTv distinguished from Other Estates. — The fact that a third party is to take the property, on the happening of a designated event, is the characteristic of estates on condi- tional limitation which distinguishes them from the other forms of qualified estates. A transfer of land to A and his heirs, but if he fail to build a house there, then to B and his heirs ; or to A for his life, to leave him, however, and pass to B and his heirs, if B marry C ; or to A and his heirs while a certain tree stands, and at its fall to B and his heirs, creates a form of estate, — taking the land, as it does, over to B, — which is clearly distinct from either a condition or a limita- tion. Upon the happening of the designated event, B becomes the owner of the property ; whereas, had the estate been on limitation, then the happening of the event alone would have taken it back to the grantor or his lieirs ; ^ and, if it had been on condition, the happening of the event and the re-entry of tlie grantor or his heirs would have taken it back to them.^ Furthermore, when an estate is a conditional limitation, being made as it is to shift from the first taker to another on the happening of the designated event, the effect of the occurrence of that event and the consequent passing over of the property is the premature termination of the first holder's interest. This is its important feature, which, as will appear more fully in the discussion of future estates, distinguislies it from both remainders and reversions. These latter forms of future interests must always be so constituted that they shall not take effect in possession until the natural termination of the prior particular estates on which they depend, — the death of the first taker for life, or the expiration of the precedent estate for years, etc. ; and, therefore, if succeeding estates be made such that the second taker's acquisition of the property cuts off the interest of the first, — as will be at once seen to be true of the illustrations above given, — it is a conditional limi- tation.^ Wiien used in contradistinction to remainders and reversions, the term " conditional limitation " is often thought of as denoting simply the second interest, which is thus to take 1 § 426, supra. Cont. Rem. (Smith's ed.) § 149; Cruise, 2 § 422, supra ; Beach v. Nixon, 9 Dig. tit. xvi. ch. ii. § 16 ; Smith, Exec. N. Y. 3.5. Int. § 149 a. » 1 Preat. Est. p. "91; 2 Fearne, QUALIFIED ESTATES. 603 effect in possession in derogation of the first. Bat its more ordinary and general use is to denote both of the interests involved. § 432. Expressions used to create Estates on Conditional Limitation. — The words by which sucli interests are created may be either conditional or limitational. Thus, if property be conveyed to A and his heirs while a certain tree stands, and then to B and his heirs, it is the same in effect as if the trans- fer were to A and his heirs, hut if the tree should fall, then to B and his heirs. In either case, upon the falling of the tree, A's estate would terminate before its natural end and B's com- mence. These expressions, moreover, where permitted to make conditional limitations at all,^ may be attached to estates of any quantity — for years, for life, or in fee. It is simply requisite to their existence that, by whatever form of words created, the first estate is to be prematurely terminated by the happening of the event, and the second interest, by the same occurrence, is to take effect in possession.^ § 433. Estates on Conditional Limitation are not favored by the Common Law. — The characteristic of these estates, which was last explained in the preceding paragraph, made them ob- jectionable to the common-law courts. When real property had been transferred to one man for a specified period, whether for years, for life, or in fee, it was thought to be both unreasonable and repugnant to the nature of the first estate that the grantor should then prescribe a means of prematurely terminating the first interest in favor of a second taker.^ This thought has been variously expressed by the courts and writers. Thus it was said : " A fee can not be limited on a fee." That is, after the grantor had conveyed a fee to A, his power over it was ex- hausted ; and he could not, by condition or limitation, subse- quently transfer the property to B.* So, an interest given to A for life deprived the donor of control over the property during A's life ; and he could not, by his own subsequent declaration or act, depi'ive A of any part of that life estate and transfer tlie same interest to B.^ It was a natural and logical conclusion of 1 See the common-law objections to Hatfield v. Sneden, 54 N. Y. 280 ; conditional limitations, explained in the Brattle Sq. Ch. c. Grant, 3 Gray following section. (Mass.l, 142, 147. 2 Ibid.; Greenl. Cruise, Dig. tit. < Co. Lit. 271 b; 2 Blackst. Com. xiii. ch. ii. § 64, note; Chase's Blackst. p. *334. p. 294, note. ^ Cruise, Dig. tit. xvi. rh. ii. §5 28- 8 Cruise, Dig. tit xvi. ch. ii. § 29; 31 ; Carwardine r. Carwardine, 1 Eden, 604 ESTATES IN REAL PROPERTY. the common-law tribunals that the donor, or grantor, or devisor of real property should not be allowed thus to curtail the inter- est wliich he himself had previously conveyed to anotlier. But, as soon as alienation of real property became easily possible, owners thereof demanded that some method of thus derogating from their own grants should be invented. And it was in the process of complying with this demand that the legal profession, circumventing the objections raised by the courts, brought into being the executory interests in real property which are here- after fully explained. They may be here briefly mentioned and defined. § 434. Means of indirectly creating Conditional Iiimitations at Common Law. — By resort to the System of uses and the opera- tion of the Statute of Uses, estates on conditional limitation were first effectually produced. If, for example, a piece of land were deeded to a feoffee to uses, that he might hold the legal estate for the use of A and his heirs while they lived there, and then for the use of B and his heirs, the Statute of Uses con- veyed the legal estate at once to A, and, when A ceased to live on the land, transferred it to B. Tliis arrangement was desig- nated a shifting use. And, previous to the modern enabling acts which deal with the conditional limitation, it was the only way in which such an interest could be brought about by deed.^ After the Statute of Wills, 32 Hen. VIII. Ch. 1, permitted freehold estates in real property to be devised, these con- ditional limitations were also permitted to be made by will, and they were then designated executory devises.^ Thus, in summary, with the common-law courts constantly opposing and restricting estates on conditional limitation, the require- 28, 34. And as to such limitations of Talent he could not acquire a freehold estates for years, see 2 Fearne, Cont. estate. Rem. (Smith's ed.) § 1.'59 a; Burton, i Ch. XXXVII. tn/ra. R. P. §§ 946, 947. In attempting to = Ch. XXXIX. infra. Conditional make directly a conditional limitation limitations having been devised by of a freehold estate — as, e. g. an estate means of shifting uses before the Stat- to A for life, but if he marry B, then at ute of Uses, and it being decided that once to C and his heirs — there was the the possibility of so creating them (or further difficulty that the grantor made any other form of devise) was done livery of seisin to the first taker — to away with by that statute, it was natu- A — for himself alone, and not for the ral and logical to construe the Statute other — C — since the second interest of Wills as intended to restore tlie was adverse to and meant to curtail the power of making these executorv in- first. Therefore, there was no livery of terests, and to allow it to be done seisin to or for the-second party, — C, — directly in the legal estate and without and without livery of seisin or its equi- resorting to any use. See p. 98, supra. QUALIFIED ESTATES. 605 ments of business and commerce and the need of flexibility of property rights and interests brought about practical methods of producing estates on conditional limitation, namely, by (a) shifting uses, and (b) executory devises. Modern statutes, both in England and in the United States generally, now authorize and encourage the creation and maintenance of these estates through the operation of all forms of conveying.^ (a) It is worthy of note, in closing this paragraph, that the efforts of jurists to overcome the courts' opposition to this particular form of future limitation have been the cause of many of the subtleties and technical distinctions wliich characterize those forms of future interests known as executory estates. (a) Employing the word " remainder " in a broad, general sense, the New York Real Property Law (L. 1896, oh. 547), § 43, which was origin- ally 1 R. S. 725, § 27, entirely obviates for that state the difficulties which existed before January ], 1830, as to the creation and existence of estates on conditional limitation. It provides that " A remainder may be lim- ited on a contingency, which, if it happens, will operate to abridge or determine the precedent estate; and every such remainder shall be a con- ditional limitation." See Hatfield v. 8neden, 54 N. Y. 280; Embury v. Sheldon, 68 N. Y. 227; Crooke v. County of Kings, 97 N. Y. 421, 449. 1 Stat. 40 & 41 Vict. ch. 33 ; Digby, Hist. Law R. P. (5th ed.) pp. 362, 382 ; 1 Stiin. Amer. Stat. L. § 1426. (4) MORTGAGES. CHAPTER XXVI. HISTORY, GENERAL NATURE, AND KINDS OP MORTGAGES. § 435. Origin of mortgages. § 436. Early forms of lauded se- curity. § 437. Development of the mod- ern mortgage. § 438. Mortgage defined. § 439. Distinctions between a mortgage and a conditional sale. § 440. Distinctions between mortgages and other liens. § 441. Classification of mort- gages. a. Equitable Mortgages. §442. gages. §443. § 444. §445. §446. §447. enforced. §448. Kinds of equitable mort- Deposit of title deeds. Vendor's lien. Nature o\ vendor's lien. Transfer of vendor's lien. How the vendor's lien is Waiver of vendor's lien. § 449. Vendee's lien. § 450. Deed absolute in form, in- tended as a mortgage. §451. Mortgage defective in law. § 452. Valid agreement for a mortgage. § 453. Charges on land. § 454. Lis pendens. §455. §456. gage. §457. §458. •. Legal Mortgages. Their general nature. Conveyance part of mort- The defeasance. The personal obligation. Different Theories of Mortgages. § 459. Legal and equitable theo- ries. § 460. (a) Conveyance theory. § 461. (b) Lien theory. § 462. (c) Combination theory. § 435. Origin of Mortgages — Whatever may have been the germ from which has developed our modern conception of a mortgage, whether it was the Jewish land system with its year of jubilee and the return of inheritances to the original family owners, or the community system of holding realty among early Teutonic races, or the natural tendency in all peoples to use property interests as acceptable pledges for debt, certain it is that the estate on condition is the English progenitor of this favorite form of landed security.^ The first Anglo-Saxon or 1 Lit. § 332 ; Digby, Hist. Law R. P. (5th ed.) p. 285 ; Jones, Mort. § 4. MORTGAGES — HISTORY, NATURE, AND KINDS. 607 English mortgagee simply held his land on condition tliat the mortgagor, as we now know him, might regain it by paying hack money loaned, or performing some other prescribed act.^ It is for this reason that mortgages, though now more com- monly constituting mere liens on real property than giving estates or interests therein, are most logically and intelligibly to be discussed immediately after the subject of conditional estates. §436. Early Forms of Landed Security Just as all doubt that there were Anglo-Saxon alodial holdings and free trans- fers of property has disappeared, so uncertainty as to the em- ployment of land as security for debt in those early times has practically passed away.^ After the Norman conquest, how- ever, and the imposition of feudal clogs upon conveyances of realty, deeds, both absolute and conditional, became infrequent ; and it was not until after the enactment of the Statute of Quia Emptores that their employment became again com- mon.^ Soon after that famous legislation began to operate, three distinct methods of using real property as security for debb appeared in English history. These were the vivum vadium, the Welsh mortgage, and the mortuum vadium or mortuum gagum.^ The vivum vadium was a transaction in which the borrower of money conveyed land to the lender to hold until the income therefrom repaid the principal and interest of the loan. It was designated a living pledge, because the proceeds of the property were thus constantly working out its redemption and restoration to its original owner. It was living for him, and would not pass beyond the possibility of return to him.^ The Welsh mortgage consisted of a conveyance of realty by the borrower to the lender, to hold and retain the proceeds, and to treat them as interest, until the borrower should repay the principal of the loan. This was often an inequitable trans- action, the income being exorbitant payment of interest ; and it never obtained a very wide operation." The mortuum vadium or mortuum gagum (mort-gage) re- 1 Lit. §§ 332, 333 ; Kortright v. « Thomas, Mort. § 3 ; Powell, Mort. Cady, 21 N. Y. 343, 344; Erskine v. p. 3. Townsend, 2 Mass. 493; Hutching * 2 Blackst. Com. p. *157; Jones, r. King, 1 Wall. (68 TJ. S.) 53, 57. Mort. §§ 2, 3, 4. 2 2 Poll. & Mait. Hist. Eng. L. (2d 5 ibid. ed.) p. 118; Digby, Hist. Law K. P. « Thomas, Mort. § 5; Jones, Mort. (5th ed.) p. 284. § 3. 608 ESTATES IN REAL PROPERTY. suited from a conveyance of real property by the borrower to the lender, to hold and manage for the joint benefit of both parties, accounting for the proceeds until a designated day, which was called the law day} when, by the terms of the agreement, the borrower was to repay the principal and interest of the loan. It was called a mortgage, or dead pledge, because, if the law day passed without repayment by the borrower as required by his contract, tlie land became dead to him, his right to re-purchase it then ceased, and the lender acquired in it an absolute and indefeasible ownership.^ The last form of these ancient species of security is the only one that has survived ; and its survival is due to the process of development through which it has passed and which is to be next described. § 437. Development of the Modern Mortgage. — The original mortgage, described in the preceding paragraph, was simply and only a conditional sale. The borrower deeded or otherwise transferred his land to the lender on condition that it might be bought back on the law day. If that day passed without the condition being performed, the estate and title became absolute in the lender or mortgagee. If the borrower performed the condition and redeemed his land on tlie law day, the title had to be returned to him by a reconveyance from the lender.^ This system frequently resulted in great hardship for the mortgagor, who, if accidentally unable to repurchase his land on the law day, might lose a very valuable property for a comparatively small sum which he had borrowed. What may be termed the evolution of our modern mortgage from this system was the natural result of the frequent occurrence of such hardship. There are five prominent steps or changes in that evolution. First. Requirement of Reconveyance abolished. — The form of the mortgage was such that, by simply following its primafacie meaning, the courts of law, soon after the instrument was gen- erally used as a security, dispensed with the requirement that the mortgagee should reconvey to the mortgagor upon payment 1 Kortright v. Cady, 21 N. Y. 343, after explained. 2 Poll. & Mail. Hist. 34.5. It was sometimes made, also, witli- Eng. L. (2d ed.) pp. 119, 120. out a day for payment being fixed. ^ Ibid.; 2 Blackst. Com. p. *158; Then, on proper application, the court Thomas, Mort. § 6 ; 2 Poll. & Mait. might determine the day; and such Hist. Eng. L. (2d ed.) p. 119, note 3. proceedings are undoubtedly the fore- * Erskine v. Townsend, 2 Mass. 493 : runner of the strict foreclosure, here- 2 Wash. U. P. (6th ed.) § 976 ; Jones, Mort. § 1. MORTGAGES — HISTORY, NATURE, AND KINDS. 609 of the debt. The document itself provided that, if the terms of the condition were fulfilled, i. e., if the loan were repaid or the other specified obligation performed, the conveyance should be- come null and void. It was a natui-al step for a court of law to take when it decided that this provision should be strictly observed, and that, the obligation being performed, the trans- action was to be treated as if no conveyance at all had ever been made to the mortgagee.-' Second. Equity of Redemption. — The next act in the devel- opment of the mortgage was the very important one which, most of all, has helped to make that form of security the readily available property interest which is so beneficial at the present time to business and commerce. It was the addition of the so-called " equity of redemption." The courts of equity, organized and energetically acting to lessen the severities of the common-law principles and procedure, found one of the most emphatic needs for such relief in the condition of mort- gagors, whose lands might be forfeited because they were unable to redeem them on the law day. Those courts, accordingly, gave to such obligors the right, after that day had passed, to pay back the loan with all accumulations of interest and costs, or otherwise to fulfil their obligations, and thereupon to regain the title to and possession of the mortgaged lands.^ This right or equity of redemption has proved. to be a great and beneficial addition to the ancient character of a mortgage. It began to be recognized and allowed some time during the reign of Elizabeth, and by the middle of the seventeenth cen- tury was thoroughly settled as a right of the mortgagor, inalienable by him in the transaction of making the mortgage.^ As will be more fully explained hereafter, a mortgage can not now exist divorced from this right.* And this salient feature of the law of mortgages is couched in the maxim " Once a mortgage, always a mortgage." ^ The equity of redemption, being in its original a mere right to redeem after the law day, expressed so closely the property 1 Lit. §§ 332, 337 ; Jones, Mort. § 4 ; in Chan. 10; Thomas, Mort. § 8 ; Jones, Merritt v. Lambert, 7 Paige (N. Y.), Mort. § 7. 344, 348 ; Shields v. Lozear, 34 N. J. L. « § 491, infra. 496, 502. ^ Newcomb u. Bonham, 1 Vern. 8; 2 Emanuel College v. Evans, 1 Ref. Moakes & Co. v. Rice (1902), App Cas. in Chan. 18; Bisphara's Prin. Eq. 24 ; Jarrah T. & W. P. Corp. d. Samuel § 150; Thomas, Mort. § 8. (1903), 2 Ch. 1 ; Hughes «. Harlan, 166 ' Emanuel College y. Evans, 1 Ref. U. S 427; Bailey u. Bailey, 71 Mass. 505 ; § 491, infra. 39 610 ESTATES IN REAL PROPERTY. interest which remained in the mortgagor, that it gradually came to be employed to denote, also, that interest. And to-day it is very commonly used to indicate the value of the real property to its owner, over and above what he would have to pay to redeem it from the lien of the mortgage.^ It was natural that, as the meaning of the expression was thus en- larged, the court that so dealt with it should decide that an equity of redemption was not only a right, but also an equitable estate in the land. This conception of it was thoroughly set- tled by Lord Harwicke in the case of Casborne v. Scarfe, de- cided in the year 1736.^ It is to be added that, after these principles, rights, and interests had been thus settled and long acted on by equity, the courts of law came gradually to recog- nize and enforce them ; and the result is that now the " equity of redemption," as including both the mortgagor's right to redeem after the law day and the value of that right to him, has substantially the same meaning and operation in all courts.^ In many of the United States, also, as will be more completely explained hereafter,* the mortgagor now retains the legal title to the land, while the mortgagee has only a lien ; and yet the mortgagor's interest is still designated his " equity of redemption." Thus used, the term is, of course, a mis- nomer. But it is very conveniently and popularly employed, in this general sense, to embrace all the rights and interest of the mortgagor during the continuance of the mortgage lien. Third. Time Limit placed on Equity of Redemption. — While the meaning of the expression "equity of redemption" was as yet restricted so as to embrace only the right of the mortgagor to redeem after the law day, it became apparent that such right ought not to be indefinitely extended, even though the borrower continued to pay interest on the loan. The lender might want his money, to which he was entitled on the law day by virtue of his contract ; and the mere accru- ing of interest might come far short of compensating him for his inability to recover the principal. Therefore, reasoning by- analogy from the Statute of Limitations, the next step, taken by the courts of equity, was the limitation of the time of the equity of redemption to twenty years after the law day.^ 1 See Tice v. Annin, 2 Johns. Ch. s Odell v. Montross, 68 N. Y. 499, (N. Y.) 125 ; Baker v. Georgi, 10 N. Y. 503; Bispham's Prin. Eq. § 151. App. Div. 249, 252 ; Thomas, Mort. * § 461, infra. § 30 ; Boone, Mort. §§ 96, 98. ' Anon., 3 Atk. 313 ; Slicer v. Bank 2 1 Atk. 603. See § 413, supra. of Pittsburg, 16 How. (57 U. S.) 571 ; MORTGAGES — HISTORY, NATURE, AND KINDS. 611 Fourth. Right to foreclose. — But it would frequently happen, of course, that the mortgagee needed and should have repay- ment of the loan long before the expiration of twenty years after it became due. In other words, the efforts of equity to ameliorate the hardship, which had often deprived the mort- gagor of his land after the law day, had resulted in giving him too great au advantage over the mortgagee. He could hold the money, by simply paying legal interest thereon, for twenty years after the time when, by the terms of his contract, he was under a duty, both legal and moral, to repay the principal. Accordingly, the courts of equity compensated the mortgagee by conferring upon him the right to foreclose the mortgage after the law day.i This word " foreclose " is taken from the last part of the decree in the earliest form of such a suit. The language there employed was that, if the mortgagor did not redeem the property by paying off the mortgage and all accrued interest and costs within a designated time, — usually six months, — he should be "forever barred and foreclosed" of his equity of redemption.^ Therefore, the proceeding came to be designated a " foreclosure suit." Fifth. Changes and Improvements in Foreclosure. — The last stage, or series of steps, in the evolution of the modern mort- gage has consisted of the improvements in foreclosure proceed- ings. These are explained in detail in the chapter hereafter devoted to such suits.* And it will be sufficient here to state that, whereas the original form of foreclosure resulted in trans- ferring to the mortgagee the absolute and indefeasible legal title and estate in the mortgaged property, such a suit at the present time ordinarily terminates in a judicial sale of the land, payment of the mortgage debt out of the proceeds, and restitution of the surplus, if any, to the mortgagor or his suc- cessors in interest.* § 438. Mortgage defined — In view of its development from a conditional sale of land, as above explained, two different Demarest v. Wynkoop, 3 Johns. Ch. ^ ma. ; Lees v. Fisher, L. R. 22 Ch. (N. Y.) 129; Miner v. Beekman, 50 Div. 283. N. Y. 337 ; Ayres v. Waite, 10 Gush. « Ch. XXIX. infra. (Mass.) 72 ; Bates v. Conrow, 11 N. J. * Wallack v. Galton, 3 P. Wms. 3.')2 ; Eq. 137. BoUes v. Duff, 43 N. Y. 469 ; Moulton 1 Mondey v. Mondey, 1 Ves. & Bea. v. Cornish, 138 N. Y. 133, 140 ; Bartlett 223; Lansing 1). Goelet, 9 Cowen (N.Y.), v. Sanborn, 64 N. H.70; Farrelly.Par- 326 ; Monlton v. Cornish, 138 N. Y. 133, lier, 50 111. 274 ; §§ 557, 558, infra. 140 ; 4 Kent's Com. p. *181 ; Thomas, Mort. § 677. 612 ESTATES IN REAL PROPERTY. definitions of a mortgage may be now appreciated. One of these, which savors more of the ancient theory, is that it is " a conveyance absolute in form, but intended to secure the performance of some act (such as the payment of money and the like) by the grantor or some other person, and to become void, if the act is performed agreeably to the terms prescribed at the time of making such conveyance." ^ The other defini- tion, which draws more fully from the modern conception of the mortgage transaction, is that it is " any conveyance of land intended by the parties at the time of making it, to be a secu- rity for the payment of money or the doing of some prescribed act." ^ The thought of a mortgage as in form a conveyance of real property, but resulting ordinarily in the transfer of nothing more than a lien thereon, such lien to be held as security for the repayment of money loaned or the doing of some other prescribed act, is that most commonly in the mind of the modern court in dealing with these transactions. § 439. Distinctions between Mortgage and Conditional Sale. — Beginning in feudal times as a technical sale on condition with a forfeiture certain to result if the prescribed event did not occur on the designated day, and, by the above-explained changes, growing into a mere security for debt, which in most jurisdictions is now only a lien on the land, the modern mort- gage is something radically different from its common-law ancestor. The sale of real property, however, on condition subsequent that the vendor may within a stipulated time re- purchase the property for a sum agreed upon, has not ceased to be a possibility in the law, and is sometimes found as an actual occurrence.^ It is not favored by the courts. And when a transaction takes such a form as this, while each case must depend on its own circumstances, yet the inclination of the courts is to hold it to be a mortgage, and thereby to secure for the borrower the equity of redemption after the law day.* But, if the parties make their meaning clear and enter 1 2 "Wash. R. P. (6th ed.) p. 31, * King v. Newman, 2 Mnuf. (V.i.) p. *475. 40 ; Mooney c. Byrne, 163 N. Y. 86 ; '•* Ibid. ; Burnett v. Wright, 135 N. Y. Shields v. Russell, 142 N. Y. 290 ; Eaton 543, 547. V. Green, 22 Pick. (Mass.) 526; Louns- " Davis V. Thomas, 1 Russ. & M. hury v. Norton, 59 Coun. 178 ; Bangher 506 ; Conway !). Alexander, 7 Craiich (11 v. Merryman, 32 Md. 185. But some U. S.), 218 ; Bogk V. Gassert, 149 U. S. courts lean the other way. And often 17, 27 ; Wallace v. Johnstone, 129 U. S. the question is one of fact for the jury. 58; Fullerton v. McCurdy, 55 N. Y. See Bogk v. Ga.«sert, 149 U. S. 17, 27; 637 ; Pitts v. Maier, 115 Ga. 281. Thomas, Mort. § 38. MORTGAGES — HISTORY, NATURE, AND KINDS. 613 into a contract of conditional sale, sncli as is above described, which is fair and reasonable, their agreement will be upheld ; and, if the vendor tlien fail to redeem on or before the law day, his right to do so is forever gone.^ While ordinarily preferring a mortgage rather than a con- ditional sale, because the former involves an equity of redemp- tion while the latter does not, courts have agreed on several important criteria for determining to which of these forms a transaction belongs. One test involves the inquiry whether or not the so-called vendor has obtained for liis property money or other value which he is obligated to repay. When it is reasonably clear that he is bound to repay the purchase-monov, the transaction is only a loan, by whatever name it may be called by the parties ; and tlie dealing with the land constitutes a mortgage.^ Another important question is as to the posses- sion of the property involved. If this pass to the vendee, that fact is, to some extent, evidence that the transaction is a con- ditional sale ; while, if tlie so-called vendor retain possession, it is usually a mortgage.^ Again, the amount of consideration, paid is an important element in helping to decide this question. If the vendee pay substantially all that the property is worth, he may more easily assume the position of a conditional pur- chaser than he can if he pay much less than such value.* Still another criterion arises from the way in which the parties may have dealt with their securities. If, for example, when the transfer occurred, the vendee delivered up collateral security which he was holding and which belonged to the vendor, this indicates that the land was meant to take the place of such collateral, and the transaction is clearly a mortgage.^ In sum- mary, it may be said that, with the strong determination not to allow a borrower to divest himself of his equity of redemp- tion by giving the transaction the form of a conditional sale, 1 Last two preceding notes. ' Mooney m. Byrne, 163 N. Y. 86 2 Mooney «. Byrne, 163 N. Y. 86-, Campbell v. Dearborn, 109 Mass. 130 Matthews v. Sheehan, 69 N. Y. 585; Wharf i;. Howell, 5 Binney (Pa.), 499 Pace V. Bartles, 47 N. J. Eq. 170, 175; Hawes v. Williams, 92 Me. 483; Bobb Blumberg i: Beekman, 121 Mich. 647; <,-. Wolff, 148 Mo. 335; Osgood v. Os- CarroU v. Tomlinson, 192 111. 398; good, 35 Oreg. 1 ; Simpson w. First Nat. Wolf V. Theresa Village Fire Ins. Co., Bk., 93 Fed. Rep. 309. 115 Wis. 402. ^ Bispham's Prin. Eq., § 154, citing ' Blumberg v. Beekman, 121 Mich. Haines v. Thomson, 70 Pa. St. 434, and 647; Pace v. Bartles, 47 N. J. Eq. 170, note in 11 Amer. Law Reg. N. s. 680. 175 ; Waters ti. Randall, 47 Mass. 479 ; And see Susman v. Wliyard, 149 N. Y. Simpson v. First Nat. Bk., 93 Fed. Rep. 127. 309; Bispham's Prin. Eq. § 154. 614 ESTATES IN REAL PROPERTY. the courts, especially with the above-mentioned criteria in mind, carefully scrutinize every element of the transfer of the prop- erty to ascertain whether or not a loan was really intended and made ; and, unless it is clear that iiQ_loajiwas,jaeant__to_b6 made a nd that none ought to be inferred, they hold the con- tract to be a mortgage> — 5Ehen it is manifest, however, from all the circumstances, that no loan was intended, but that the vendor was simply given the right to repurchase the property for the original purchase price or other stipulated sum, and the transaction is otherwise fair, they declare it to be a conditional sale and hold the vendor strictly to the terms of his agreement.^ And, when any controversy as to the facts exists, the question is for the jury.^ § 440. Distinctions between Mortgages and other Iiiens. — The mortgage, evolved as above explained from the conditional sale, but now being in most jurisdictions a mere lien, is distin- guished chiefly by its history from other liens. The other liens on realty, as hereafter explained, are statutory in their origin and operation.^ It is to be understood, therefore, that the word " mortgage," as here employed and as ordinarily used by courts and writers, includes those interests, liens, and rights, whether recognized in law or in equity, which have grown up from common-law principles, and have associated with them the " equity of redemption." § 441. Classification of Mortgages. — The primary division of all mortgages is into a. equitable and h. legal. They are all recognized and enforcible in courts of equity ; but some of them are not known to the law courts. Tliis classification means, therefore, that legal mortgages are such that both law and equity will take cognizance of them, while equitable mort- gages are such as do not arise from conveyances by the mort- gagors and are cognizable in courts of equity only.* The equitable mortgages are sometimes spoken of and treated under the distinct heading of " equitable liens."^ But their origin and 1 Last six preceding notes. Also judgment liens, etc. N. Y. L. 1897, ch. Perdue v. Bell, 83 Ala. 396; Flegg v. 418; N. Y. Code Civ. Pro. § 1251; Mann, 14 Pick. (Mass.) 467; Hoopes Gerard on Titles to E. E. ch. 47, 48; V. Bailey, 28 Miss. 328 ; Cornell u. Hall, 1 Stira. Amer. Stat. L. §§ 1950, 1960- 22 Mich. 377. 1986, 350-353. 2 Bogk V. Gassert, 149 U. S. 17, 27 ; < Thomas, Mort. § 41 ; Jones, Mort. Thomas, Mort. § 38; Bispham'a Prin. § 162. ^q- %^^^- ' Jones, Liens, §§ 77, 1061; Pom. * Such are mechanics' liens, unsafe Eq. Jur. §§ 165-167 ; Bispham's Prin. building liens, liens for taxes, assess- Eq. ch. 7. ments and water rents, attachment liens. MORTGAGES — HISTORY, NATURE, AND KINDS. 615 history are so thoroughly bound up with those of all other forms of mortgages that it is most logical and convenient to treat of them as is here done. They will be first described and explained, in so far as it is necessary to comprehend them as distinct from the ordinary legal mortgages. a. Equitable Mortgages. §442. Kinds of Equitable >Iortgagea. — The chief species of claims against real property, which belong within the class of mortgages called equitable, are, — mortgage^ arising from de- posit of title deeds, vendors' liens, vendees' liens, absolute deeds intended and construed as mortgages, written mortgages defec- tive in law, valid parol agreements for mortgages, charges on land by wills and other instruments, and liens arising from the doctrine of Us pendens or its statutory substitute. Eacli of these requires a brief, separate discussion. § 443. Deposit of Title Deeds. — In most sections of Eng- land, the title deeds of real property are not recorded, but are preserved and held by the owner. In selling or encumbrancing the land, they are produced and examined by the vendee or lender, and in case of a sale are handed over to him. The owner of l land can not ordinarily sell it or borrow money upon it if he fail to produce these in such order as to show a perfect title. The deposit of one or more of them with him who loans money upon the faith of the land gives to him, therefore, sub- stantial security. Such a transaction has uniformly been held in England to create for him an equitable mortgage upon the property, which he can foreclose or deal with ordinarily in equity in substantially as useful a way as though he held a written and sealed legal mortgage.^ The theory of equitable mortgages arising from deposit of title deeds has been recognized in this country, and several in- stances of its application exist in the cases.^ But the record- ing acts, which dispense with the necessity for retaining the 1 Russel V. Russel, 1 Bro. C. C. 269 ; and have enforced the lien by a s-ile of Edge V. Worthington, 1 Cox, Ch. 211 ; the land." Thomas, Mort. § 42. Northern Co. Ins. Co. v. Whipp, L. R. ^ Carey v. Rawson, 8 Mass. 159; 26 Ch. Div. 482. " It has been held not to Rockwell v. Hobby, 2 Sand. Ch. (N. Y ) be an invasion of the Statute of Frauds, 9 ; Gale o. Morris, 29 N. J. Eq. 222 ; Murray v. Ballon, 1 Johns. Ch. Stevenson, 112 N. Y. 32.5; Hailey v. (N. Y.)566i Dovey's Appeal, 97 Pa. St. Ano, 136 N. Y. 569 ; Smith w. Hodsdon, 158; Jones, Mort. §302; Story, Eq. 78 Me. 180; Morton v. New Orleans, Jur. §406. etc. Ry. Co , 79 Ala. 590. ^ Cal. Code Civ. Pro. § 409 ; Ind. 2 IJohns. Ch. (N. Y.) 566. Code Civ. Pro. 325; Mass. Pub. Stat. ' Last two preceding notes ; Turner ch. 126, § 13 ; Mich. Comp. Laws, § 441 ; V. Haupt, 53 N. J. Eq. 526 ; Jones v. Minn. Gen. St. § 5866 ; N. Y. Code Civ. McNarrin,68 Me. 334 ; Evans u. Welch, Pro. §§1631, 1670-1688; Penn. Laws, 63 Ala. 250; Gardner v. Watson, 119 ch. 532, § 2 ; R. I. Gen. L. ch. 246, § 13, etc. 624 ESTATES IN REAL PROPERTY. h. Legal Mortgages. § 455. Their General Nature. — As already stated, legal mortgages are those formallj' drawn and executed instruments which operate as mortgages in both equity and law. Their history affords the explanation of the form which they continue to wear, even in those jurisdictions in which the results of their existence are mere liens on land.^ In the ordinary mortgage transaction, at least two, and generally three, distinct elements appear. The two are the deed of conveyance and the defeas- ance. And the third, when it exists, is a bond, promissory note, or other evidence of personal obligation to repay the loan. A word is needed as to each of these elements, (a) § 456. Conveyance Part of Mortgage. — The first part of the mortgage instrument is in the form of an absolute conveyance of the land. The only material difference between it and the modern deed which is not a mortgage is that this part of the mortgage usually contains a recital of the debt which it is given to secure. Such recital, however, is not absolutely nec- essary, and all requirements of the law are complied with if this part of the document be in the ordinary form of a deed of conveyance. § 457. The Defeasance. — After the conveyance part of the mortgage, comes the defeasance, which provides in substance that if the borrower — the part(^of the first part in the instru- ment — repay the loan, or do the other prescribed act or acts as therein required, then the conveyance shall become null and void, but otherwise it shall remain in full force and effect. In the ancient form of mortgage, this defeasance was a separate (a) The New York statutes prescribe short and convenient forms of mortgages, one for freehold and another for leasehold interests ; but add that they do not thereby " prevent or invalidate the use of other forms." But an additional charge of five dollars may be made* by the recording officer for recording a longer form. Real Prop L. § 274. Section 223 of the Real Property Law, Schedule C, gives the form for a mortgage of a freehold interest; and the short covenants and stipulations in that form are explained by §§ 219-222. Section 237, Schedule D, gives the form for a mortgage of a leasehold ; and its short covenants and stipulations are ex- plained by §§ 235, 236. The first of these forms was originally L. 1 890, eh. 475, § fi, and was amended to its present shape by L. 1897, ch. 277 ; and the second, was first prescribed by L. 1898, ch. 338. 1 § 437, supra. MORTGAGES — HISTORY, NATURE, AND KINDS. 625 ajjd distinct deed, but it early came to be a part of the one mortgage document.' Wliether tiie defeasance clause is included in the one docu- ment, as is ordinarily the case, or is made and delivered as a separate instrument, the essential requisite is that it and the conveyance part of the mortgage shall be delivered in the same transaction.^ For the defeasance delivered first and alone would be inoperative, because of the want of any conveyance upon which it could act ; and, if the conveyance portion were first and alone delivered, the grantee would obtain an absolute title, which could not be cut down by the grantor's subsequent act of delivering a defeasance. It is, therefore, absolutely requisite, in order to make a valid legal mortgage, that the two' parts shall be delivered in and as one and the same trans- action.* And, where the defeasance is thus properly made and delivered, so that it and the conveying instrument together con- stitute a legal mortgage, they must be recorded together. Otherwise, in some states, such as New York and New Jersey, the holder derives no advantage from the record of the convey- ance ; while in others, such as Massachusetts, Maine, and Michigan, following the common-law rule, record of the con- veyance alone may enable the holder to pass an absolute title to one who purchases from him innocently and without notice of the defeasance.* (a) But it is to be carefully noted that this (a) One section of the New York statutes regulates both equitable mortgages and such record of a defeasance, as follows : " A deed convey- ing real property, which, by any other written instrument, appears to be intended only as a security in the nature of a mortgage, although an abso- lute conveyance in terms, must be considered a mortgage ; and the person for whose benefit such deed is made, derives no advantage from the record- 1 2 Blackst. Com. p. *342 ; Dubuque And it is also generally requirei that Nat. Bk. V. Weed, 57 Eed. Rep. 513; the defeasance shall be of as high a Hey V. Dunham, 2 Johns. Ch. (N. Y.) character as the conveyauce — a spe- 182, 189; Snow v. Pressey, 82 Me. 552. cialty when that is so, and executed 2 Teal V. Walker, 111 U. S. 242, with as much formality. Flagg r. 246; Dedser u. Leonard, 6 Lans. (N.Y.) Mann, 14 Pick. (Mass.) 467; Lund v. 264; Lane v. Shears, 1 Wend. (N. Y.) Lund, 1 N. H. 39. 433; Nugent v. Riley, 1 Met. (Mass.) * N. Y. L. 1896, ch. 547, §269; 1 117; Sowles v. Butler, 71 Vt. 271; Stim. Amer. Stat. L. § 1860; Grimstone Haines v. Thompson, 70 Pa. St. 434; u. Carter, 3 Paige (N. Y.), 421 ; Purdy Jeffery u. Hursh, 58 Mich. 246 ; Bearss u. Huntington, 42 N. Y. 334, 343 ; Corp- V. Ford, 108 111. 16; Kyle ti. Hamilton, many. Baccastow, 84 Pa. St 363; Frink 136 Cal. xi-x:. v. Adams, 36 N. J. Eq. 485; Smith i'. 3 Ibid. ; Kraemer v. Adelsberirer, 122 Monmouth Mut. F. Ins. Co., 50 Me. 96 ; N. Y. 467, 474; Cotton v. McKee, 68 Carpenter v. Lewis, 119 Cal. 18; Jones, Me. 486 ; Lentz v. Martin, 75 Ind. 228. Mort. § 513. 40 626 ESTATES IN REAL PROPERTY. principle does not militate against the creation of equitable mortgages, as above explained, by adding defeasances accord- ing to the understanding of the parties, or even by annexing them by oral evidence when the transaction is manifestly a loani' *§ 458. The Personal Obligation In addition to the mort- gage instrument or instruments, the borrower usually delivers to the lender his bond or note, or makes some other form of exti'aneous promise to repay the debt. Or he may incorporate such promise in the mortgage document itself. Of these various forms of personal security, the bond of the borrower is preferred in England and the older states of this country. This arises chiefly from the facts that the bond has been most commonly used with the mortgage, and the two are best un- derstood together, and also that the bond, being under seal, is not ordinarily barred by the Statute of Limitations any sooner than the mortgage.^ In New York, Indiana, Michigan, Wisconsin, California, and perhaps a few other states, it is provided by statute that, if there be no express promise by the borrower to repay the money loaned, the lender's only security and redress are upon the mortgage and against the land.^ {a) This is on the prin- ing thereof, unless every writing, operating as a defeasance of the same, or explanatory of its being desired to have the effect only of a mortgage, or conditional deed, is also recorded therewith, and at the same time." Real Prop. L. § 269, which in substance dates back to the year 1774 (L. 1774, ch. 39) and was 1 R. S. 756, § 3. Kraemer v. Adelsberger, 122 N. Y. 467 ; Barry v. Hamburg-Bremen Fire Ins. Co., 110 N. Y. 1 ; Cook v. Eaton, 16 Barb. 439; Stoddard v. Rotton, 5 Bosw. 378; Grimstone c. Car- ter, 3 Paige, 421 ; Howells o. Hettrick, 13 App. I)iv. 366. (a) " A mortgage of real property," says the New York statute, " does not imply a covenant for the payment of the sum intended to be secure,d ; and where such covenant is not expressed in the mortgage, or a bond or other separate instrument to secure such payment, has not been given, 1 Roberts v. Kichards, 36 111. 339 ; And, on the other hand, it may some- Hasaam v. Barrett, 115 Mass. 2.56 ; Bur- times occur, as because of the absence nett V. Wright, 135 N. Y. 543; Scobey of the debtor from the state Vfhile the V. Kiningham, 131 Ind. 552 ; Lewis v. mortgagor (who may be a different Small, 71 Me. 552; Fisk u. Stewart, 24 person) remains within the state, that Minn. 97 ; § 452, supra. the remedy ou the mortgage becomes 2 When the personal obligation is a barred before that on the personal se- simple contract debt, and so may be- curity. Fowler v. Wood, 78 Huu (N. come barred, say in six years, the mort- Y.), 304. gage may often remain a lien on the * N. Y. L. 1896, ch. 547, § 214; 1 land after the remedy on the note is Stim. Amer. Stat. L. § 1867. lost. Hulbert v. Clark, 128 N. Y. 295. MORTGAGES — HISTORY, NATURE, AND KINDS. 627 ciple that he purchases a mortgage interest in the land for the money which he advances ; and, if he mean to have any other security, he should obtain it by express contract.^ Different Theories of Mortgages. § 459. Legal and Equitable Theories The legal theory of a mortgage was originally that it was a conditional sale and passed the legal title of the land to the mortgagee. The equit- able theory has always been that the mortgagor remains the owner of the land, whether his ownership is called legal or equitable.^ As the courts of equity have, step by step, shown the way to the best solution of the problems involved in mort- gage transactions, the courts of law have followed, more or less willingly ; and to-day it would be inaccurate to state that the theories of the two courts are essentially different. In most jurisdictions, the remedies of both parties are substantially tiie same in both tribunals.^ But the original differences in the view-points of these courts, and the varying ways in which they have respectively worked towards the results achieved, are the reasons for the still subsisting different theories which are found in the various states. They are to be understood as theories now recognized in any given state in both law and equity. There are many of them. But the three important ones are : (a) The conveyance theory ; (b) The lien theory ; and (c) The theory which combines the elements of the other two. In various jurisdictions, modifications of these theories, especially as produced by statutes, are numerous. But the three named are the theories which, being thoroughly comprehended, lead to an intelligible understanding of mort- gages in England and all of our states. the remedies of the mortgagee are confined to the property mentioned in- • the mortgage." Real Prop. L. § 214, originally 1 R. S. 738, § 139. Thus, \ in the absence of a pre-existing debt, and with no covenant or sepai-ate f promise of payment, the mortgagee's only remedy is against the land, r Mack V. Austin, 95 N. Y. 513; 'Spencer v. Spencer, 95 N. Y. 353. And i see Coleman v. Van Rensselaer, 44 How. Pr. 368 ; Elder v. Rouse, 15 Wend. V 218; Thomas, Mort. § 102. 1 Kraemer v. Adelsberger, 1 22 N. Y. ^ § 437^ supra. 467 ; Macauley ». Smith, 132 N. Y. .524 ; » Jones, Mort. § 14 ; White v. Rit- Coleman v. Van Rensselaer, 44 How. tenmyer, 30 Iowa, 268 ; Hubbell v. Moul- Pr (N. Y.) 368; Baum v. Tomltin, 110 son, 53 N. Y. 225. Pa. St. 569 ; Hills v. Eliot, 1 2 Mass. 26 ; Halderman v. Woodward, 22 Kan. 734. 628 ESTATES IN REAL PROPERTY. § 460. (a) Conveyance Theory. — In England, Massachu- setts, New Hampshire, Maine, Illinois, and probably in some other states, the legal title to the land is transferred by the mortgage to the first mortgagee, and the mortgagor retains only an equitable interest or estate in the property — his equity of redemption.^ Second and third and other subordinate mort- gages, therefore, can convey to their owners only equitable liens or claims. On this theory, as will be more fully explained liereafter, the mortgagee, being the owner of a legal estate in the land, would have an inherent right to the possession of it, but for the ordinary advei-se provisions of the instrument itself;^ and the mortgagor has an equitable estate,^ wl)ich, as equitable realty, may descend to his heirs or be deeded or de- vised away, and in which there is ordinarily dower, curtesy, and the other usual incidents of such estates.* §461. (b) Lien Theory — In New York, Michigan, Wis- consin, California, and the great majority of the American states, the mortgage is treated as conferring upon the mort- gagee merely a lien on the land, which lien is only personalty in his hands ; and as leaving the legal title and estate in the hands of the mortgagor.^ All mortgages, therefore, whether first, second, third, or more inferior, are simply liens, ordinarily having priority in the order of tlieir creation.^ The mortgagor's interest, although still called his equity, remains a legal estate, and the term " equity," as applied to it, is strictly a misnomer.'' His estate is, of course, capable of transfer by conveyance or devise, it may descend to his heirs subject to the mortgage, it 1 Green v. James, 6 M. & W. 656; Grigg v. Banks, 59 Ala. 311 ; Walters Lloyd V. Lloyd (1903), 1 Ch 385 ; Ers- v. Defeubaugh, 90 lU. 241 ; Graves „. kine o. Townsend, 2 Mass. 493 ; Flye v. Braden, 62 Ind. 93 ; Campbell v. Camp- Berry, 181 Mass. 442; Tripe y. Marcy, bell, 30 N. J. Eq 415; Terry r. Rosell, 39 N. 1-1.439; Atwood «. Moore, 85 Me. 32 Ark. 478; Bigelow v. Wilson, 18 379 ; Barrett v. Hinckley, 124 111. 32. Mass. 485. 2 Ibid.; Keech u. Hall, 1 Dong. 21; 5 Sexton v. Breese, 135 N. Y. 387; Kockwell V. Bradley, 2 Conn. 1 ; Lackey Trimm o. Marsh, 54 N. Y. 599 ; Button V. Holbrook, 52 Mass. 458 ; Youngman v. Warschaiier, 21 Cal. 609 ; Fletcher V. Elmira, etc. R. Co., 65 Pa. St. 278; v. Holmes, 32 Ind. 497; Reading v. Kranz v. Oedelhofen, 193 III 477. Waterman, 46 Mich. 107 ; Jordan v. 8 Chamberlain v. Thompson, 10 Sayre, 29 Fla. 100; Wood v. Trask, 7 Conn. 243; Norcross v. Norcross, 105 Wis. 566; Thomas, Mort. §26; Jones, Mass. 265; Flye v. Berry, 181 Mass. Mort. § 48. 442 ; Stewart v. Barrow, 7 Bush (Ky.), ^ Goodman v. White, 26 Conn. 317 ; 368; Blancy o. Bearce, 2 Me. 132; Freeman i\ Schroeder, 43 Barb. (N, Y.) Huckins b. Straw, 34 Me. 166 ; Ellison 618 ; Stoddart v. Hart, 23 N. Y. 556. V. Daniels, 11 N. H. 274. ' Kortright y. Cady,21 N.Y.343,365. 1 Kennett u. Plummer, 28 Mo. 142 ; MORTGAGES — HISTORY, NATURE, AND KINDS. 629 may have dower, curtesy, and the other ordinary incidents of legal interests.^ On this theory, as will be more fully explained hereafter, the mortgagee as such ordinarily has no right to take possession of the land.^ There are some particulars, however, in which, under this lien theory, a mortgage still resembles a deed of conveyance. Thus, a covenant of warranty in a mortgage may operate by estoppel in favor of the mortgagee in the same manner as such a covenant in a deed in favor of the vendee; and, just as a vendee under a warranty deed may acquire by virtue of the warranty all the interest or estate in the land which may sub- sequently accrue in favor of the vendor, so the mortgagee wliose mortgage contains a warranty may obtain a lien upon all the in- terest in the land which accrues in favor of the mortgagor after the delivery of the mortgage.^ Again, in the law of fixtures, a mortgagee is favored in the same manner as though he were a vendee. The mortgagor, having annexed a fixtuz-e to the land, can no more successfully claim it against his mortgagee than can a vendor, who has placed fixtures upon the property, take them away to the injury of his vendee.* Lastly, a mortgagee, under the lien theory is, sub modo, a purchaser of the land ; because, if the mortgage be foreclosed and the property sold, the vendee takes the same estate and interest which the mort- gagor had at the time of his delivery of the mortgage.^ Tlie mortgage, and the deed which passes as the result of its fore- closure, together constitute the link in the chain of title which passes it from the mortgagor to the purchaser at the fore- closure sale.^ § 462. (c) Combination Theory. — In a few of the Ameri- can states, of which New Jersey, Delaware, and Missouri are examples, the lien theory of a mortgage controls it and its operation until the law day. After that day, the mortgagee has 1 Trimm v. Marsh, 54 N. Y. 599 ; 184 ; W^illiamson v. N. J. So. Ry., 28 Buchanan v. Moore, 22 Tex. 537 ; Heth N. J. Eq. 277, 298. V. Cocke, 1 Rand. (Va.)344; Burrall * McFadden jj. Allen, 134 N. Y. 489 ; V. Bender, 61 Mich. 608. Potter v. Cromwell, 40 N. Y. 287 ; Mat- 2 Durand v. Mareks, 4 McCord (S. zon v. Griffin, 78 111. 477 ; Harmony C), 54 ; Trimm v. Marsh, 54 N. Y. 599 ; B'ld'g Ass'n i/. Berger, 99 Pa. St. 320 ; Michigan Trust Co. v. Lansing Lumber § 28, supra. Co., 103 Mich. 392. 6 Per Rapallo, J., in National Bank 3 Tefft V. Munson, 57 N. Y. 97; Oli- v. Levy, 127 N. Y. 549, 55:i. phant u. Burns, 146 N. Y. 218, 232; " Ibid.; Beinstein v. Neales, 144 Howze V. Dew, 90 Ala. 178 ; Gibbons r. N. Y. 347 ; Welles v. Garbutt, 132 N. Y; Hoag, 95 111. 45; Pratt v. Pratt, 96 111. 430; Rig^s v. Pursell, 66 N. Y. 193; Baldwin v. Howell, 45 N. J. Eq. 519. 630 ESTATES IN REAL PROPERTY. a right to enter and take possession of the land, either peace- ably, or by ejectment if necessary ; and he is thus treated sub- stantially as if he were the owner of the property. That is, in effect, the mortgage is a lien until the debt is due ; and, if not paid off or otherwise discharged on the law day, it then operates as a conveyance of the legal title and estate to the mortgagee.^ 1 Woodside v. Adams, 40 N. J. L. (Del.) 258; Cornog v. Cornog, 3 Del. 417 ; Shields v. Lozear, 34 K. J. L. 496 ; Ch. 407 ; Johnston v. Houston, 47 Mo. Hall V. Tunnell, 1 Houst. (Del.) 320; 227. Walker v. Farmer's Bank, 8 Houst. CHAPTER XXVII. MOETGAGBS. — INTERESTS, EIGHTS, AND DUTIES OF THE PARTIES. Interest, Rights, and Duties of Mortgagee. §463. General nature of his interest. §464. Interest of mortgagee under conveyance theory. §465. Interest of mortgagee under lien theory. §466. Interest of mortgagee under combination theory. § 467. Rights and duties of mortgagee. § 468. Assignment of a mort- gage. § 469. Assignment of debt or mortgage alone — The debt the principal thing. § 470. Compulsory assignment of mortgage. § 471. Position and rights of as- signee of mortgage — Non-negotia- bility of mortgage. § 472. Proper steps in taking as- signment. § 473 Mortgagee in possession — When he may take possession. § 474. Position and duties of mortgagee in possession. § 475. Repairs and improvements by mortgagee in possession. § 476. Doctrine of annual rests. § 477. Accounting by mortgagee. § 478. Reciprocal rights and du- ties of mortgagee and lessee of the same property. § 479. Such rights and duties when the mortgagee has no right of possession. § 480. Such rights and duties when the mortgagee has right of possession. §481. Adverse claims of mort- gage and dower. § 482. Adverse claims of mort- gagee and other lienors. Interest, Rights, and Duties of Mortgagor. §483. General nature of his interest — Conveyance theory. §484. Mortgagor's interest — Lien theory. § 485. Mortgagor's interest — Combination theory. § 486. Right to redeem. § 487. Who may redeem. §488. During what time the right to redeem exists. § 489. Amount paid to redeem. § 490. Suit to redeem — Other similar proceedings. § 491. Importance of right to redeem. § 492. Special mortgage clauses. § 49:i. Power of sale. § 494. Interest clause. §495. Tax and assessment clause. 632 ESTATES IN REAL PROPERTY. § 496. Insurance clause. § 497. Receiver's clause. § 498. Gold clause. § 499. Clause relative to mort- gage tax laws. § 500. Covenants for title. Interest, Rights, and Duties of Mortgagee. § 463. General Nature of hia Interest. — In England, mort- gages were at one time frequently made for a long term of years, as for one or more thousands of years. ^ But that sys- tem has been abolislied there ; and it never had any material operation in this country .^ The form of the conveyance part of the ordinary mortgage at the present time is that of a trans- fer of the land to the mortgagee and his heirs ; so that, stand- ing alone, it would convey to him an estate in fee simple. The time during which the mortgage is actually intended by the par- ties to continue is then designated in the defeasance part (or, sometimes, in the recitals) and also in the accompanying bond or note, when any exists. Tersely, therefore, the form of a mortgage transaction may be said to be, as a rule, a conveyance of real property in fee simple, defeasible after a stipulated time.^ Its operation and effects upon the position of the mortgagee re- quire to be examined with respect to each of the chief theories of a mortgage. § 464. Interest of Mortgagee under Conveyance Theory. — The English and Massachusetts theory of a mortgage results, as be- fore explained, in conferring the legal title and estate upon the mortgagee.* He becomes for many purposes the owner of the land in fee, his interest being defeasible on condition subse- quent. Therefore, the devolution and descent of his ownership are, in the main, the same as that of the interest of any other holder in fee. He may deed or devise away the legal title, and upon his death intestate it may descend to his heirs.^ Theo- retically, there would be dower and curtesy in his interest ; but practically, because such rights must be precarious and held temporarily, — subject to the right of redemption, — they have ordinarily been denied as incidents of his estate.^ 1 Stephens V. Bridges, 6Madd. 66; "^ Ksk v. Fisk, Free. Chan. U ; 2 Blackst Com. p. *158; 2 Poll. & Smith «. Dyer, 16 Mass. 18; Kinna n. Mait. Hist. Eng.L. (2d ed.) pp. 121-123. Smith, 3 N. J. Eq. U; Van Duyue v. 2 4 Kent's Com. pp. * 86-* 94. Thayre, 14 Wend. (N. Y.) 233 ; Thomas, » Jones, Mort. § 12 ; ^l Powell, Mort. § 10. Mort. p. 7 ; 2 Wash. R. P. (6th ed.) ^ Foster v. Dwinel, 49 Me. 44 ; §§ 975, 980. Moore v. Esty, .5 N. H. 479 ; 2 Wash. * § 460, supra ; Willis v. Eastern E. P. (6th ed.) § 1044. Trust & Banking Co., 169 U. S. 295, 304. MORTGAGES — INTERESTS, RIGHTS, AND DUTIES OF PARTIES. 633 Since under this theory the mortgagee holds the bond or note as personal property, and has it secured by his estate in fee in the land, his death intestate would pass the mortgage to his heirs, and the bond or note to his executors or administrators.^ This was the common-law result of such an occurrence ; but it was decided that the heirs must then hold the interest in the land in trust for the owners of the personal security.^ Tliis separation of the two securities for the same debt — the bond and the mortgage — frequently caused cumbersome and annoy- ing proceedings. It was, accordingly, provided in England, by the statute 44 & 45 Vict. ch. 41, § 30, that, on the death of the mortgagee, both the mortgage and the debt which it secured, whether the latter was represented by bond, note, or otlierwise, should pass to his personal representatives. Similar statutory provisions are found in the states of this country in which the mortgage is regarded as transferring the legal estate in the land. 3 The passing of the law day does not change the position of a mortgagee in whom is the legal estate in the first instance. Tlie original transaction, conferring upon him as it does the legal estate, gives him the right to possession unless this is prevented by the express terms of the contract.* Such terms are now ordinarily inserted in the mortgage. But, when found there, they usually are made to operate only until the law day. Tliere- fore, the passing of the law day gives to such a mortgagee, as a rule, the right to take possession of tlie land which would have been his in the first instance but for the contrary stipulation.^ Even under this theory of a mortgage, however, it is constantly borne in mind by the courts that the transaction is, after all, only by way of security ; the equity of redemption is jealously preserved, and in cases of doubtful construction the holder of the mortgage is accorded no greater rights and privileges than 1 Gibson K. Bailey, 9 N. H. 168, 173; §§2464-65; Raskins w. Hawkes, 108 Clerkson v. Bowyer, 2 Vern. 66;, Mass. 379; Brown u. Mayor, 128 Mass. Smith V. Dyer, 16 Mass. 18; Five v. 284; Webster v. Calclen, 56 Me. 204, Berry, 181 Mass. 442; 2 Wash. R. P. 210; Hoyt r. Hoyt, 61 Vt. 413, 416. (6th ed.) § 1044. * Newall w. Wright, 3 Mass. 138; ^ Clerkson v. Bowyer,>2 Vern. 66; Simpson r. Dix, 131 Mass. 179; Gray Gibson v. Bailey, 9 N. H. 168, 173; «. Gillespie, 59 N. H. 469 ; Foster w. Per- Demarest v. Wynkoop, 3 Johns. Ch. kins, 42 Me. 168. (.V. Y.) 129, 145; Thornborough v. ^ First Nat. Ins. Co. v. Salisbury, Baker, 1 Ch. Cas. 283. 130 Mass .303; Shaw u. N.irfolk Co. ' 1{. S. Mass. 1902, ch. 150, § 7; By, 5 Gray (Mass.), 162 ; Haven u. Gr. Maine, R. S. ch. 90, §§ 11, 12; R. I. Junction K. R , 12 Allen (Mass.), 337; Gen. L. ch. 214, §§ 7-lQ; Vt. Stats. Wilhelm u. Lee, 2 Md. Ch. 322. 634 ESTATES TN REAL PROPERTY. are requisite to the enforcement of his security.^ As said in a New Hampshire case, " the right of the mortgagee to have his interest treated as real estate extends to and ceases where it ceases to be necessar}- to eiiable him to protect or avail him- self of his just rights intended to be secured to him by the mortgage." ^ Therefore, for example, in an action of ejectment by the mortgagor against a third party in possession, such third party can not defend by setting up the title of the mortgagee ; for such title only exists for the latter's security, as between him and the mortgagor .^ § 465. Interest of Mortgagee under Lien Theory. — In the great majority of the states of this country, the mortgagee, having only a lien on the land, is the owner of merely a personal interest therein.* Both the mortgage and the bond, note, or other obligation which it secures, are personal property in his hands. Therefore, the devolution and descent of these are the same ; they may be transfen-ed as chattels, and, on his death intestate, they together pass to his executors or administrators as assets of his estate.^ There is, of course, no dower or cur- tesy in them, and they lack the ordinary incidents of realty. The mortgage transaction ordinarily confers upon the mortgagee no right to possession of the land, and, if he acquire such right, it is by virtue of some special contract or combination of cir- cumstances.* The passing of the law day does not change his position or rights. He simply acquires a lien by virtue of his mortgage, and a lien it remains until discharge or foreclosure.' § 466. Interest of Mortgagee under Combination Theory. — In those few states in which the mortgage creates simply a lien until the law day, and then substantially confers upon the mort- gagee the title to the land and the right to possession, his inter- est, rights, and duties are, before the passing of the law day, the same as those of a mortgagee of land in a state where the 1 Glasa V. Ellison, 9 N. H. 69; Gab- 171 ; 20 Amer. & Eng. Ency. of L. (2d bert V. Schwartz, 69 Ind. 450 ; Hall v. ed.) p. 902, Lance, 25 111. 251 ; Clinton u. West- ^ Ibid. ; Trimm v. Marsh, 54 N. Y. brook, 38 Conn. 9, 14; Jones, Mort. 599, 604; Packer v. Rochester, etc. R. § 11 ; 2 Wash. K. P. (6th ed.) § 1044. Co., 17 N. Y, 283, 296 ; 2 Wash. R. P. 2 Ellison V. Daniels, 11 N. H. 274. (6th ed.) § 1045. ' Last two preceding notes. ° Grattan i;. Wiggins, 23 Cal. 16, * § 461, supra ; Sexton v. Breese, 26 ; Shields v. Lpzier, 34 N. J. L. 496 ; 135 N. Y. 387 ; Fletcher ti. Holmes, 32 Trimin v. Marsh, 54 N. Y. 599. As to Ind. 497 ; McMillan v. Richards, 9 Cal. dower in connection with mortgages, 365; Thompson o. Marshall, 21 Oreg. see § 481, in/ra. ' Ibid. MORTGAGES — INTERESTS, BIGHTS, AND DUTIES OF PARTIES. 635 lien theory exists in its entirety ; and, after tliat day, they are the same as those of a mortgagee of land in a state where the conveyance theory exists in its entirety .^ § 467. Rights and Duties of Mortgagee. — There are several important positions and rights, belonging to a mortgagee under any theory of a mortgage, which require a special and somewhat more extended discussion. These may be dealt with under the headings of his assignment of the mortgage, his position as a mortgagee in possession, his relation to a lessee of the land, and his position toward one who claims a dower interest in the property. , § 468. Assignment of a Mortgage — How made. — The holder of a mortgage, who has not restricted himself by contract, may assign the security .^ An ordinary transaction in this particular consists of a transfer together of both the mortgage and the evidence of debt which it secures. It will conduce to clearness to treat first of this usual form of assignment. The bond or other evidence of debt, being always personal property, may of course be transferred merely by delivery. And the same is true of a mortgage where it is only a lien.^ In most of the states of this country, therefore, these instru- ments may be effectually assigned without writing and solely by manual delivery. Mortgages, however, are not, as a rule, transferred in this way ; but rather by a written assignment, which is more commonly in the form of a separate deed, though occasionally it is made on the mortgage instrument itself. In those jurisdictions in which a mortgage confers the legal title upon the mortgagee, its assignment must be in writing in order to comply with the requirements of the Statute of Frauds, because it is a transfer of a real-property interest.^ The writing may take the form of a quit-claim deed of the mort- gaged land, or any more important deed up to that which con- tains full covenants and warranties.^ Or it may be a devise.® 1 Cooch V. Gerry, 3 Har. (Del.) 280 ; aff'd, 101 N.Y. 620 ; Yates Co. Nat. Bk. v. Cornog V. Cornog, 3 Del. Ch. 407 ; Fox Baldwin, 43 Hun (N. Y.), 1.36, s. c. 124 V. Wharton, 5 Del. Ch. 200 ; Shields o. N. Y. 633 ; Pease v. Warren, 29 Mich. Lozear, 34 N. J. L. 496; Kircher v. 9; Kamena «. Huelbig, 23 N. J. Eq. 78. Schalk, 39 N. J. L. 335. 4 Dacus v. Streety, 59 Ala. 183; 2 Gould V. Newman, 6 Mass. 239 ; Stanley v. Kempton, 59 Me. 472 j War- Kellogg V. Ames, 41 N. Y. 259 ; Me- den v. Adams, 15 Mass. 233. chanics' Bank v. Weill, 163 N. Y. 486 ; 6 Conner u. Whitmore, 52 Me. 185 ; Savings Bank 1). Holt, 58 Vt. 166; Mur- Barnes u. Boardman, 149 Mass. 106; ray V. Porter, 26 Neb. 288; Sanders v. Lawrence v. Stratton, 6 Cush, (Mass.) Cassidy, 86 Ala. 246. 163; CoUamer «. Langdon, 29 Vt. 32. 8 Fryer v. Rockefeller, 63 N. Y. 268 ; 6 Van Wagnen v. Brown, 26 N. J. L. Wing i;. Raplee, 17 Weekly Dig. 415, 196; Coote, Mort. p. 570. 636 ESTATES IN REAL PEOPERTT. § 469. Assignment of Debt or Mortgage alone — The Debt the Principal Thing. — In a few of the American states, such as Massacliusetts, Maine, and Illinois, the mortgage is practically treated as the more important, or at least as more than a mere incident to the debt; and the assignment of the debt alone, in such states, does not carry to the assignee the mortgage security.! Even in such jurisdictions, however, the assignor then retains the mortgage in trust for the assignee.^ But in New York, New Jersey, Michigan, Wisconsin, California, and generally in the middle, southern, and western states, the funda- mental theory of the mortgage transaction is that " The debt is the principal thing" and whoever owns it owns also any mort- gage by which it may be secured.^ Therefore, an assignment of the debt is an assignment of the mortgage. And an assign- ment of any part of the debt is an assignment of a pro rata portion of the mortgage.* This is well illustrated by such mortgages (or trust deeds) as those executed by railroad com- panies or other corporations, which are given to secure a series of bonds. As the bonds pass from hand to hand by delivery, the proportionate interests in the mortgage (which is usually in the hands of a trust company) pass with them.^ One of 1 Young V. Miller, 6 Gray (Mass.), 231 ; Blair v. White, 61 Vt. 1 10 ; Lewis 152; Barnes v. Boardman, 149 Mass. v. Parrell, 51 Conn. 216; Phelan v. 106 ; Fitzgerald o. Beckwith, 182 Mass. Olney, 6 Cal. 478. 177 ; Smith v. Kelley, 27 Me. 237 ; Kil- 6 MuUer v. Wadlington, 5 Rich, gour V. Gockley, 83 111. 109 ; Barrett v. (S. C.) 342 ; Miller v. Rutland, etc. R. Hinckley, 124 111. 32; Bailey v. Winn, Co., 40 Vt. 399; O'Beirne v. Allegheny, 101 Mo. 649. etc. R. Co., 151 N. Y. 372 ; Dickerson v. 2 Morris v. Bacon, 123 Mass. 58; Northern R. Co., 176 U. S. 181 ; Pardee Jordan w. Cheney, 74 Me. 359 ; Barrett w. v. Aldridge, 189 U. S. 429; Northern Hinckley, 124 HI. 32 ; Graham v. New- Pacific Ry. v. Townsend, 190 U. S. 271. man, 21 Ala. 497. It is said in some states that, if the notes 8 Jackson v. Blodget, 5 Cow. (N. Y.) secured mature at different times, their 202 ; Payne v. Wilson, 74 N. Y. 348, 354 ; owners are entitled to priority of pay- Fitch V. McDowell, 145 N. Y. 498 ; ment in the order of their maturity. Flemington Nat. Bk. w. Jones, 50 N. J. Minor v. Hill, 53 lud. 176; Isett v. Eq. 244; Magie v. Reynolds, 51 N.J. Lucas, 17 Iowa, 503 ; Auder.sonu. Sharp, Eq. 113;,Briggs w. Hannowald,35Mich. 44 Ohio St. 260. But the rule of the 474; Lane v. Duchac, 73 Wis. 646; Federal Courts and the weight of au- Logan V. Smith, 62 Mo. 455 ; Connec- thority make them payable pro rata, tlcnt Mut. L. Ins. Co. v. Talbot, 1 13 Ind. regardless of the times of their maturity, 373; Carpenter v. Longan, 16 Wall. unless there is a contrary, controlling (83 U. S.) 271; 3 Pom. Eq. Jur. agreement. Lowell «. Cragin, 136 U. S. §1210. 147; Perry's Appeal, 22 Pa. St. 43; ■* Ibid.; Pattison t. Hull, 9 Cow. Penzel t. Brookmire, 51 Ark. 105; (N. Y.) 747; Gould v. Marsh, 1 Hun Granger u, Crouch, 86 N. Y. 494 ; Boies' (N Y.), 566; Stevenson i\ Black, IN. J. r. Benham, 127 N. Y. 620; Norton «. Eq. 338 ; Jennings v. Moore, 83 Mich. Palmer, 142 Mass. 433. MORTGAGES — INTERESTS, RIGHTS, AND DUTIES OP PARTIES. 637 tlie results of the operation of this theorj', that the debt is the principal thing, also appears in the rule recognized in this country that a debt secured by mortgage and held by two or more executors, administrators, or other joint owners, may be validly assigned, together with the mortgage, by one or more of them, less than the whole number, as well as by them all.-' An assignment of the mortgage alone, in some of the states ■which have adopted the conveyance theory, simply causes the assignee to hold it in trust for the owner of the bond or other evidence of debt.^ But in a number of these, and in practically all states which have the lien theory of a mortgage, it is held that the attempted assignment of the mortgage alone, without any transfer of the debt thereby secured (especially when the debt is evidenced by a separate bond or other instrument) is null and void.^ .The plain principle here is that, even if such assign- ment could carry the legal lien, tlie assignee must hold it as a resulting trustee for the owner of the debt ; and the trust, being passive and for no useful purpose, would be executed by the passing over of the title to him to whom it rightfully belonged.'' In the rare cases in which the lender of money takes nothing but a mortgage for his security, and has no personal promise of the borrower to repay the debt, that which he holds, standing as it necessarily does alone, may be assigned alone by the methods above indicated ; and the assignee may thereby acquire all the rights of his assignor. And, in any transaction in which the intent of the parties is made clear, the assignee of the mort- gage alone (in form) may acquire also any personal claim that may exist in connection therewith.^ §470. Compulsory Assignment of Mortgage. — The assign- ments thus far considered are voluntary. But, after a mort- gage debt is due and payable, the holder, especially in states where the lien theory prevails, may sometimes be compelled to assign it and its mortgage security against his will. This may 1 Hertell v. Bogert, 9 Paige (N. Y.), » Merritt v. Bartholick, 36 N. Y. 44 ; 52 ; George v. Baker, 3 Allen (Mass.), Murray v. Wilson, 111 N. Y. 29.5; Dev- 326, and note. Though this has heen lin v. Collier, .'53 N. J. L. 422 ; Lunt v. denied in England. In re Spradbery, Lunt, 71 Me. 377 ; Ellison v. Daniels, L. 11. 14 Ch. Div. .514. 11 N. H. 275 ; Hobson w. Roles, 20 N. H. 2 Sanger «. Bancroft, 12 Gray 41; Pickett i.. Jones, 63 Mo. 195; (Mass.), 365; Collamer r. Langdon, 29 Thomas, Mort. §302. Vt. 32 ; Barrett r. Hinckley, 124 111. 32 ; * Il)id. ; §§ 330, 331 , supra. Swan V. Yaple, 35 Iowa, 248; Williams ' Bulkley r. Chapman, 9 Conn. 5; V. Teachey, 85 N. C. 402; Welsh v. Larned v. Donovan, 31 Abb. N. C. Phillips, 54 Ala. 309. (N. Y.) 308 ; Thomas, Mort. §§ 303, 304. 638 ESTATES IN REAL PROPERTY. occur when the debt is paid or tendered by a person who is in equity not bound to make such payment, and for the protection of whose rights an assignment of the mortgage to or for him is necessary.^ Such, for example, is a junior mortgagee, when the prior mortgage debt is due and the property is rapidly depre- ciating in value, or the mortgagor is letting interest or taxes or assessments accumulate, or, because of other special circum- stances, the equitable rights of the inferior lienor are being dissipated.^ So a surety on the bond, who pays the debt, having the right of subrogation against the mortgagee, also has, as incident thereto, when needed for his protection, a right to the formal assignment of the mortgage to himself.^ Persons who occupy such positions as these, on properly tendering all that is due on account of the mortgage, and presenting a written assignment ready to be executed by the mortgagee, may, on his refusal to make the assignment and on their being able to show that such refusal is impairing their equitable rights, maintain a suit in equity to compel an assignment of the mortgage.* § 471. Position and Rights of Assignee of Mortgage — Non- Negotiability of Mortgages. — As already explained, in the great majority of our states, the assignee of the debt owns both the debt and the mortgage by which it is secured. In the ordinary transaction of this nature, he takes them subject to all the equi- ties, whether latent or otherwise, which exist in favor of the mortgagor or of any third party or parties.^ In the English and United States courts, and the courts of some of our states, the distinction is recognized that, whereas he is bound by equi- ties in favor of the mortgagor or debtor, he is not affected by latent equities, such as secret rights which may exist against the mortgage in favor of third parties.^ But this is strongly 1 Johnson o. Zink, 51 N. Y. 3.33 Welling V. Ryerson, 94 N. Y. 98 ; Mab- befct .;. Mabbett, 29 N. Y. App. Div. 609; Lamb k Jeffrey, 41 Mich. 719 See, contra, Lumsden v. Hanson, 96 Me Dixon V. Winch, 68 L. J. Ch. 572; Merkle v. Beidelmau, 165 N. Y. 21 ; Mechanics' Bk. v. Weill, 163 N. Y. 486; Bueliler v. Pierce, 175 N. Y. 264, 267 ; Woodruff v. Morristown Sav. 357. Inst., 34 N. J. Eq. 174 ; Cooley v. Har- 2 Frost V. Yonkers Sav. Bk., 70 N. Y. ris, 92 Mich. 126, 135 ; Croft v. Bunster, 553; Lamb f. Jeffrey, -41 Mich. 719. 9 Wis. 503 ; Fish v. French, 15 Gray 3 McLean v. Towie, 3 Sand. Ch. (.Mass), 520; Bispham's Prin. Eq. (N. Y.) 117. For distinctions between § 170. subrogation and assignment, as affecting ^ Carpenter v. Longan, 16 Wall, a mortgage, see Thomas, Mort. §§ 687, (83 U. S.) 271 ; Humble v. Curtis, 160 688-690. lU. 193 ; Downey v. Tharp, 63 Pa. St. * Last three preceding notes. 322 ; Bispham's Prin. Eq. § 171 ; Pom. ^ Norris u. Marshall, 5 Madd. 475; Eq. Jur. § 715; Jones, Mort. § 843. MORTGAGES — INTERESTS, EIGHTS, AND DUTIES OF PARTIES. 639 opposed in New York and some of the other states. " It is'. . . the settled law of this state," says the New York Court of Ap- peals, " though a different rule prevails not only in England, but in the Federal Courts and in some of the states, that a hona fide purchaser of a chose in action takes it subject not only to the equities between the parties, but also to latent equities in favor of third persons, and that to secure his superiority it is not necessary that the earlier assignee should give any notice of his assignment to the debtor or trustee. "^ It sometimes happens, however, and in quite a few of the ■western states it frequently occurs, that a mortgage is given to secure the payment of a negotiable instrument such as a prom- issory note or a bill of exchange ; and perhaps the prevailing rule in this country as to such a transaction is that, if an as- signee take the negotiable instrument in sucli manner that he can enforce its payment, he can also enforce the accompanying mortgage as security for its payment.^ In this sense, the mort- gage may have a negotiable or semi-negotiable character. But this can not be said to be the rule of New York or New Jersey, nor of several of the best courts of this country.^ It is to be added that, between the assignor and assignee of a mortgage, since the subject-matter of the transaction is per- sonalty or used as equivalent to personal security, there are implied warranties that the title to the mortgage is valid, that it is not a forgery, that it has not been paid in whole or in part, except as directly specified, that there are no legal defences against it, and that it is enforcible for the amount which it pur- ports to secure.* § 472. Proper Steps in taking Assignment. — When an as- 1 Central Trust Co. v. "West India v. Wood, 21 Vt. 331 ; Jones, Mort. Ins. Co., 169 N. Y. 314, 323 ; Stevenson § 834 ; Thomas, Mort. § 308. Brewing Co. v. Iba, l.'iS N. Y. 224; ^ Trustees of Union Col. «. Wheeler, Owen V. Evans, 134 N. Y. 514, 519; 61 N. Y. 88, 106; Rapps v. Gottleib, Trustees of Union Col. v. Wheeler, 61 142 N. Y. 164, and New York oases cited N. Y. 88 ; Scheurer v. Brown, 67 N. Y. in last preceding note but one ; Wood- App. Div. 567, 570 ; Kleemau v. Fris- ruff v. Morristown Sav. Inst., 34 N. J. bie, 63 III. 482 ; Tabor v. Fox, 56 Iowa, Eq. 174, 178 ; Buehler v. McCormick, 539; Pom. Eq. Jur. § 708. 169 111. 269; Hazle v. Bondy, 173 111. * Burhans v. Hutcheson, 25 Kan 625; Kelley y. Whitney, 45 Wis. HO Mack V. Prang, 45 Lawy. Rep. Ann (Wis ) 407 ; Webb v. Hoselton, 4 Neb. 308 ; Baruum v. Phenix, 60 Mich. 388 Thompson v. Maddux, 117 Ala. 468; 302; Watkins v. Goessler, 65 Minn. 118; Tabor v. Fox, 56 Iowa, 539; Jones, Mort. § 834, note. * Burt V. Devery, 40 N. Y. 283 ; Furniss v. Ferguson, 34 N. Y. 485 ; Parks 0. Morris Ax & T Co., 54 N. Y. Watson K. Wyman, 161 Mass. 96; Keyes 586; Thomas, Mort. § 333. 640 ESTATES IN BEAL PROPEETT. signment of a mortgage, or of it and the accompanying evidence of debt, is to be carried througli, the following steps are ordi- narily requisite to the proper securing of the assignee's interest, (a) The title to the mortgaged realty should be examined, for the purpose of determining whether or not the assignor can transfer a valid security, (b) Because the mortgage is usually not negotiable, and must be taken subject to outstanding equi- ties, there should be obtained (preferably in writing) from the mortgagor and from the present holder of the land and prior lienors and all other ascertainable persons who might set up defences in case of foreclosure, statements or other positive representations as to the amount of the principal of the debt, the rate of interest, the time of last payment of interest, the time of maturity of the loan, and all oth^r facts tending to indicate the existence or non-existence of any defences, either legal or equitable, against the mortgage or the debt. These are known as estoppel statements. ^ (c) The assignment should be drawn in writing (though this is not absolutely essential in some states, as above shown); ^ and, when the transaction is com- pleted, the assignee should obtain possession of such assignment and the bond, if any, the mortgage, and all other assignments or transfers material to perfect the assignee's title to the mortgage and the debt which it secures, (d) The assignment delivered should be at once placed on record, and with it any other of the instruments above-named, which have not been previously re- corded and which are authorized to be recorded so as to become constructive notice, (e) Personal notice should be served on the mortgagor, or other person obligated to pay the interest and the mortgage debt ; and this notice should be accompanied by a demand that thereafter accruing interest, and ultimately the principal of the debt, be ,paid to the assignee of the mortgage. This last step is needed because the record of the assignment in most states acts only prospectively , and therefore gives no constructive notice to the mortgagor nor to any one who already owns an interest in the mortgaged property .^ (a) (n) The New York statute expressly declares that : " The recording of an assignment of a mortgage is not, in itself, a notice of such assignment 1 Payne v Burnham, 62 N. Y. 69 ; » N. Y. L. 1896, ch. 547, § 271 ; Weyh V. Boylaii, 8.5 N. Y. 39-1; Rapps Curtis c. Moore, 152 N. Y. 159; Vmu V. Gottleib, 1+2 N. Y. 164; Thomas, Keuren u Corkhis, 66 N. Y. 77 ; Foster Mort. §§ 324 - 332 ; Jones, Mort. v. Carlou, 159 Pji. St. 477 ; Rodgers u. §§ 844 a, 845. . Peckham, 120 Cal. 238; Thomas, Mort. 2 § 468, supra. § 334 ; 1 Stim. Amer. Stat. L. § 1870. MORTGAGES INTERESTS, RIGHTS, AND DUTIES OP PARTIES. 641 § 473. Mortgagee in Possession — When he may take Posses- sion. — Under the common-law or conveyance theory of a mort- gage, the mortgagee would be entitled to possession of the land from the beginning of the transaction, but for the fact that it is usually stipulated between the parties that he shall not enter before the law day. After the passing of that day, his right to take possession ordinarily accrues ; and he may enforce it by ejectment, if necessary .1 In those states in which the equitable or lien theory prevails, the mortgagee simply as such ordinarily has no right to pos- session, either before or after the law day.^ And, where the combination theory prevails, the nature of the mortgage in like manner precludes him from entering before that day.^ Even in such jurisdictions as these, however, while the mortgagee has nothing but a lien on the land, circumstances occasionally arise which result in his taking possession of the property. Thus, if a prior mortgage be foreclosed in such manner as to cut off the equity of redemption of the mortgagor or land- owner, but a subordinate lienor be not made a party to the foreclosure suit, the mortgagee, if he purchase at the foreclosure sale, becomes a mortgagee in possession as to such omitted inferior claimant.* So, if one enter into possession under some other right, as, for example, under a contract to purchase the land, and subsequently he acquire a mortgage upon the property, he may continue in possession as mortgagee.^ And the principle is to be emphasized generally that, under any theory of a mortgage, when the mortgagee as such has once properly acquired possession of the land, he may retain it until foreclosure, or other satisfaction of the mortgage debt.^ to a mortgagor, his heirs or personal representatives, so as to invalidate a payment made by either of them to the mortgagee.." Real Prop. L. § 271, originally 1 R. S. 763, § 41. And this, like the similar acts of several other states, is simply a legislative statement of a general principle. Brewster V. Carries, 103 N. Y. 506; Van Keuken v. Corkins, 66 N. Y. 77; Frear v. Sweet, 118 N. Y. 454; Ciirtis v. Moore, 152 N. Y. 159. 1 Lackyu. Holbrook, U Met. (Mass.) * Robinson o. Ryan, 2a N. Y. 320; 4.^8; Gray v. Gillespie, 59 N, H. 469; Monlton v. Cornish, 138 N. Y. 133, 139. 4 Kent's Com. pp. * 154, *155; Jones, See Shriver v. Shriver, 86 N. Y. 575, Mort. § 702. 580. " Bryan v. Brasius, 162 XJ. S. 415; 6 Thomas, Mort § 239. Runyan v. Mersereau, 11 Johns. (N. Y.) « Romog v. Gillett, 187 U S. Ill ; 534; Kortright u. Cady, 21 N. Y. 343, Hnbbell o. Sibley, 50 N. Y. 468, 470; 364 ; Briukman o. Jones, 44 Wis. 498 ; Barson v. Mulligan, 66 N. Y. App. Div. 4 Kent's Com p. * 155. 486 ; Jones, Mort. § 715. 8 Sliields V. Lozear, 34 N. J. L. 496. 41 642 ESTATES IN REAL PROPERTY. In cases in which the mortgagee can not take possession of the land against the will of the mortgagor, if the latter injure the property so that the security of the former is being dissi- pated, the mortgagee may always have relief in equity, as by injunction or by the appointment of a receiver. But he can not have an action at law for waste against the mortgagor ; and it is only when he is in possession that he can have trespass at law either against a stranger or the mortgagor who injures the property.^ When he is out of possession, however, his equit- able remedy, as above explained, is ordinarily sufficient, and compensates him in most instances for his inability to acquire possession of the land before foreclosure. § 474. Position and Duties of Mortgagee in Possession. — Many attempts have been made to assimilate the position of the mortgagee in possession to that of other holders of land. But it is sui generis. Primarily, his occupation and use of the land are for his own benefit, and, in a sense, of a character adverse to that of the mortgagor.^ Nevertheless, there is a quasi trusteeship for some purposes involved in his position.^ Thus, while he obtains the income of the property chiefly for the payment of his own debt, yet he is under a fiduciary obli- gation to obtain as much of such income as is reasonably possible. He is also required to make reasonable repairs, pay taxes, and, generally, to manage the property for the best interests of all parties concerned.* Not only must he do this for the benefit of the owner of the equity of redemption, but also for that of subsequent lienors or encumbrancers. And the latter can hold him responsible in damages, if he fail to make a reasonable use of the property for the extinguishment of his own claim and the consequent furtherance of their interests.^ Not being in any technical sense a trustee, however, a mort- gagee in possession may purchase an outstanding title or en- cumbrance and hold it against the mortgagor and all other 1 Brady v. Waldron, 2 Johns. Ch. v. South Boston Sav. Bk., US Mass. (N. Y.) 148; Van Pelt v. McGraw, 4 300; Thomas, Mort. §§ 246-250. N. Y. 110; Guernsey v. Wilson, 134 ^ Ibid.; Jones, Mort. § 712. Mass. 482 ; Jackson v. Turrell, 39 N. J. * Ten Eyck r. Craig, 62 N. Y. 406 ; L. 329 ; Hager i-. Brainerd, 44 Vt. 294 ; Woodlee v. Burch, 43 Mo. 231 ; Morgan 2 Wash. R. P. (6th ed.) §§ 1065-1067. u. Morgan, 48 N. J. Eq. 399; MunlTx'k 2 Peugh V. Davis, 113 U. S. 542; v. Clarke, 90 Cal. 427; Jones, iMort. Hubbell V. Moulson, 53 N. Y. 225; §§714,715. Mills V. Mills, 115 N. Y. 80, 85; Brown ' Demarest v. Berry, 16 N. J. Eq. 481 ; Thomas, Mort. § 251. MORTGAGES — INTERESTS, RIGHTS, AND DUTIES OF PARTIES. 643 parties in interest.^ He can not, however, legally go to the extent of allowing the property to be sold for taxes because of his own failure to pay them, and then purchase the land for his own benefit.^ He must faithfully use the property so that it may fairly and as far as possible work out its own redemp- tion ; but this does not preclude his dealing with other inter- ests therein as an outside and independent party .^ § 475. Repairs and Improvements by Mortgagee in Possession. — When occupying the property and receiving the rents and income, the mortgagee must ordinarily apply them, first, to the making of necessary repairs upon the premises ; second, to the payment of taxes, (including water rents) ; third, to the liqui- dation of interest on the mortgage debt ; and, fourth, to the discharge of the principal of that debt.* He is not required to make any repairs except such as are reasonably necessary. And, if the mortgagor fail to keep the building insured, the mortgagee may include in the general expenditures, before taxes are paid, the amounts required for premiums upon the proper insurance.* A mortgagee in possession may also apply the income of the land to the making of such improvements as are fairly and properly requisite to his enjoyment and beneficial use of the property. And he may charge the expenses of such improve- ments as practically a part of what is expended for repairs.^ If he go beyond what is thus fairly required and make addi- tional improvements on the land, he does so at his own peril, since he can not charge the cost thereof against the(mortgagee| in case the latter redeems. The restriction, in this particular, of a mortgagee in possession has always been carefully enforced in equity, because otherwise, as it is said, he might " improve the mortgagor out of his equity of redemption." That is, if this power to charge improvements against the mortgage debt were not carefully hedged about, he might add so much value to the property as to preclude a mortgagor of moderate means from ever being able to redeem." This rule against improving 1 Trimra v. Marsh, 54 N. Y. 599, C. A. 236; Story's Eq Jur. § 1016; 607 ; Kennedy v. De Trafford (1896), 1 2 Wash R. P. (6th. ed ) §§ U58-1163. Ch. 762. ' Nichols v. Baxter, 5 R. I, 491 ; 2 Thomas, Mort. § 243. Slee v. Manhattan Co., 1 Paige (N Y.), ' Jones, Mort. §§ 712-715. 81 ; Harper v. EJy, 70 111. 581 ; Jones, ' Wilson 1-. Clner, 3 Bear. 136 ; Reed Mort. § 417. V. Reed, 10 Pick. (Mass.) 398 ; Hugnly « Jones, Mort. §§ 1126-1128. Mfg. Co. V. Galeton MiUs, 36 U. S. C. ' Moore v. Cable,l Johns. Ch. (N. Y.) 644 ESTATES IN REAL PROPERTY. the mortgagor out of his equity of redemption must be under- stood, however, as a pure equity ; and, therefore, it is ordinarily held that it must give way when such equity does not really exist, or when the justice of the matter is in favor of the mort- gagee. Thus, when a purchaser at a foreclosure sale has become a mortgagee in possession as to a subordinate lienor not made a party to the action, and, believing himself to be the absolute and indefeasible owner of the land, has made valuable improvements thereon, it is held in most states that such subsequent lienor can not redeem' the property without making equitable compensation for the additions thus made in good faitli.^ § 476. Doctrine of Annual Rests — A mortgagee in pos- session must account for the net income over and above the expenditures properly made therefrom, as above explained. He must, as heretofore stated, apply such net income, after paying for repairs and taxes, toward the discharge of, first, the interest, and then, the principal of the mortgage debt. But, since he is frequently required to receive the rents and profits of the land in small amounts, at numerous times, it would often be burdensome and unjust to compel him to account for such insignificant sums as though they had been applied as fast as received. In his accounting, therefore, he is entitled to make annual rests — and in some jurisdictions this is required to be semi-annual — and thus at regular intervals to apply the ac- cumulated receipts in the manner here specified.^ A mortgagee out of possession is under no obligation, not expressly assumed, to receive any amount of the mortgage debt other than the whole sum due at the time.^ If, thei-efore, he accept payments at various times and in small amounts, he must apply the same as fast as received to the satisfaction of the interest and principal of the mortgage debt, and he does not have the benefit of the doctrine of annual rests. But a mortgagee in possession has no such option of insisting on 385; Mickles v. Dillaye, 17 N. Y, 80, Milhird v. TrQax, 73 Mich. 381 ; Jones, 83; Fletcher v Bass Riv. Sav. Bk. Mort. § U28. 182 Mass. 5 ; Wells v. Van Dyke, 109 ^ ShaefEer v^ Chambers, 6 N. J. Eq. Pa. St 330; Horn v. Indianapolis Nat. 548; Van Vronker v. Eastman, 7 Met. Bk., 125 lud. 381 ; Malone v. Roy, 107 (Mass.) 157 ; Gibson v. Crehore, 5 Pick. Cal. 518; Thomas, Mort. §§ 253, 254; (Mass.) U6 ; Moshier u. Norton, 100 Jones, Mort. § 1127. 111.63; Adams v. Sayre, 76 Ala. 509; 1 Town of Brigliton v. Doyle, 64 Vt. Jones, Mort. 1139, 1140. 616; Mickles v. Dillaye, 17 N. Y. 80; « § 489, in/ra. McSorley v. Larissa, 100 Mass. 270 ; MORTGAGES - — INTERESTS, RIGHTS, AND DUTIES OF PARTIES. 645 pa3-ment in one lump sum. He must obtain the income in the best and most reasonable manner, and therefore it is emi- nently fair that he should enjoy the benefit of annual rests.^ § 477. Accounting by Mortgagee — When the mortgage is redeemed or foreclosed, in computing the amount due to the mortgagee he must account for all the income received as above explained. Tersely stated, his account consists of a credit side, which embraces the principal, accrued interest, costs, and necessary expenses actually paid by him ; and a debit side, in which he charges himself with all receipts on account of the debt, including all income received from the property, less proper expenditures made for repairs, necessary improvements, taxes, and running expenses.^ § 478. Reciprocal Rights and Duties of Mortgagee and Lessee of the Same Property. — Important questions frequently arise from adverse claims of mortgagees and lessees. Primarily, a mortgagee, since he is not usually entitled to possession, has nothing to do with the rents or income of the land. He can not, for example, require the mortgagor to account for rents received during the running of the mortgage debt, unless the latter has taken from him a lease of the land. But, as between a mortgagee and a lessee, the former is sometimes entitled to the control of the land and the income therefrom in prefer- ence to the latter. The contentions between tliese parties, and their results, may be summarized as follows : § 479. Such Rights and Duties when the Mortgagee has no Right of Possession. — (a) In the ordinary case, where the mortgagee is not entitled to possession of the land, he has no right or interest, at least before foreclosure, against a lessee whose lease is prior to the mortgage! But in this case, if the mortgage be foreclosed after the law day, and the property be sold subject to the lease, — and this is the only way it can be sold unless the lessee consents to have it conveyed clear of his interest, — the purchaser at the foreclosure sale becomes the landlord of the lessee, and, on serving due notice upon the latter, obtains the right to subsequent rent from him, and all the rights and privileges of a landlord against him.^ (b) When, on the other hand, the mortgage which carries with it no right to possession is first made, and a lease is sub- ' Last two preceding notes. ^ Moss v. Gallimore, 1 Doug. 279 ; 2 Thomas, Mort. §§ 245-264; 2 Jones, Mort. §§ 771, 772, 774. Wash. E. F. (6th ed.) §§ 1148-1163. 646 ESTATES IN REAL PROPERTY. sequently given by the mortgagor to a lessee who has notice of the mortgage, and the latter takes possession of the land ; ■while the mortgagee can not disturb him until foreclosure, yet, when the mortgage is properly foreclosed and he is duly made a party to the action, his rights as lessee are barred and fore- closed. Only by a new contract between him and the pur- chaser at the foreclosure sale can he then legally retain possession under his lease.^ (a) § 480. Such Rights and Duties when the Mortgagee has Right of Possession. — (c) A mortgage whose owner may take pos- session of the land confers upon him no right to eject a tenant who is holding under a prior lease. But the mortgagee, on duly notifying the lessee of his rights, becomes to all intents and purposes the landlord.^ And on foreclosure of the mort- gage, if the term of the lease be still running, the purchaser becomes the landlord of the tenant with all the rights and privileges incident thereto.^ (d) Lastly, if the mortgage carrying with it to the mort- gagee tiie right of possession be made before the lease, the lessee may be ejected by the mortgagee, since the right of the latter to occupy the land is paramount.* The tenant (as- (a) In New York, this is one of the cases in which an attornment is still recognized. The tenant, being shut out by the foreclosure, may attorn to the purchaser, if they so choose, by virtue of the statute which declares that : " The attornment of a tenant to a stranger is absolutely void, and does not in any way affect the possession of the landlord unless made either : 1. With the consent of the landlord; or. 2. Pursuant to or in consequence of a judgment, order, or decree of a court of competent jurisdiction ; or, 3. To a mortgagee, after the mortgage has become forfeited." Real Prop. L. § 199, originally 1 R. S. 744, § 3 ; National Bank v. Levy, 127 N. Y. 549 ; Austin V. Ahearne, 61 N. Y^. 0; O'Donnell v Mclntyre, 118 N. Y. 156 ; Mc Gregor v. The Board of Education, 107 N. Y. 511 ; Fletcher v. McKeon, 71 App. Div. 278; Thomas, Mort. § 1026; Taylor, Landl. & T. §§ 121, 442. 1 Jones V. Clarke, 20 Johns. (N. Y.) El. 299 ; Moss v. Gallimore, 1 Dong. 51 ; National Bk. v. Levy, 127 N. Y. 279; Mirick v. Hoppin, 118 Mass. ,582; 549; Thomas, Mort. § 1026; Jones, Kimball w. Lockwood, 6 R. 1. 138 ; Col- Mort. § 776. And, if during fore- lins i'. Moore, 115 Ga. 327 ; 4 Kent's closure the mortgagee have a receiver Com. p. *165. appointed, the latter may collect rent * Last preceding note but one. from the tenant for the time of the * Thunder v. Belcher, 3 East, 449 ; receivership, although the tenant with Keech v. Hall, 1 Roug. 21 ; Lane v. notice of the mortgage may have paid King, 8 Wend. (N. Y.) 584 ; Tarbell !•• for the same time in advance to the West, 86 N. Y. 280 ; Stedman v. Gas- mortgagor. Fletcher v. McKeon, 71 sett, 1 8 Vt. 346 ; Gartside y. Outley, 58 N. Y. App. Div. 278. 111. 210 ; Comer v. Sheehan, 74 Ala. 2 Rogers v. Humphreys, 4 Adol. & 452 ; Jones, Mort. § 778. MORTGAGES — INTERESTS, RIGHTS, AND DDTIES OF PARTIES. 647 Sliming, of course, that he becomes such with due notice of the mortgage) has no right to possession which he can enforce against the mortgagee. Neither is there any privity between him and the mortgagee. The mortgagee can not treat him as his own tenant against his will. If the tenant choose to stand on his technical rights and not attorn to the mortgagee, the latter must choose either to eject him or to allow him to remain in possession, paying rent and rendering all services and requirements as tenant to the mortgagor as landlord.-' But, since the mortgagee may eject him, if the tenant desire to remain as such, he may attorn to the mortgagee, the latter consenting, and thus the relation of landlord and tenant may be established between them.^ If the mortgagee choose to let the lessee renaain in undisturbed possession (without any at- tornment) during the running of the mortgage, and after that desire to remove him from the land, he may, by properly making him a party on foreclosure, bar all his rights and interests in the property. § 481. Adverse Claims of Mortgage and Dower. — In most jurisdictions, the following classes of mortgages and no others take precedence of the claim of a wife or widow for dower, namely : (a) Those which were made and became liens on the land before the marriage of her who demands dower in it as the property of her husband;^ (a) (b) Those which (a) The New York statute, declaratory of the common l3,w, says : " Where a person seized of an estate of inheritance in lands, executes a mortgage thereof, before marriage, his widow is, nevertheless, entitled to dower of the lands mortgaged, as against every person except the mort- gagee and those claiming under him." Real Prop. L. § 172, originally 1 E. S. 740, § 4; Coles v. Coles, 15 Johns. 119 ; Smith v. Gardner, 42 Barb. 356 ; Braokett v. Baum, 50 N. Y. 8; Kursheedy v. Union Dime Sav. Inst., 118 N. Y. 358. 1 TowersontJ. Jackson (1891), 2 Q. B. is " with the consent of the landlord." 484; Teal v. Walker, 111 U. S. 242; Jones, Mort. § 777; N. Y. L. 1896, McKircher E. Hawley, 16 Johns. (N.Y.) eh. 5+7, § 194. The attornment may 289 ; Massachusetts H. L. Ins. Co. o. be evidenced by any acts which show Wilson, 10 Met. (Mass.) 126 ; Hogsett v. an intent to make the relation of land- Ellis, 17 Mich. 351 ; Jones, Mort. § 777. lord and tenant between the mortgagee '■^ Ibid. ; Sanderson v. Price, 21 N. J. and lessee, such as receipt and payment L, 637 ; Adams u. Bigelow, 128 Mass. of rent, new stipulations as to its 365; Jones v. Clarke, 20 Johns. (N. Y.) amount, etc. McCormick v. Knox, 105 51. Such attornment is not a disputing U. S. 122 ; Weld v. Sabiu, 20 N. H. 533 ; of the landlord's title, but a justifying Gartside v. Outley, 58 111. 210. But see of his posses.sion under it. Since the Towerson v. Jackson (1891), 2 Q. B. landlord has given the mortgagee right 484. to possession, practically the attornment ' Coles v. Coles, 15 Johns. (N. Y.) 648 ESTATES IN REAL PROPERTY. were liens on the land when it was acquired by the husband ; ^ (c) Those which were given by the husband, when he bought the property, in whole or part payment of the purchase money ; ^ (b) and (d) Those made by the husband or his successors in interest, in which the wife voluntarily joined for the purpose of releasing her dower, or in favor of the holders of which she voluntarily gave in any manner a release of her dower rights, or estopped herself to deny the existence of such a release.^ The full discussion of the controversies that may arise between mortgagees and women who claim dower in the mortgaged prop- erty belongs to the chapters on dower. But, in summary, it may be said here that the mortgagee prevails in either of the four cases stated, and in all other instances the rule in most places is that the demand for dower must be first satisfied* § 482. Adverse Claims of Mortgagee and Other Lienors. — The reciprocal rights and duties of mortgagees and lessees and those of mortgagees and claimants of dower present the chief instances in which the mortgagee comes into confiict with other encumbrancers of the property, except those cases which are affected, necessarily, by the recording acts. The questions of priority, therefore, between mortgagees and other lienors are more properly discussed hereafter in dealing with the general topic of priority and registry of mortgages.* Interest, Eights and Duties of Mortgagor. § 483. General Nature of his Interest — Conveyance Theory. — Where the mortgage is treated as a conveyance of the land, (b) The New York statute declares that: " Where a husband pur- chases lands during the marriage, and at the same time mortgages his estate in those Jands to secure the payment of the purchase-money, his widow is not entitled to dower of those lands, as against the mortgagee or those claiming under him, although she did not unite in the mortgage. She is entitled to her dower as against every other person." Real Prop. L. § 173, originally 1 R. S. 740, § 5. See Boies v. Benham, 127 N. Y. 620, 624; Braokett v. Baum, 50 N. Y. 8 ; Campbell v. EUwanger, 81 Hun, 259. 319 ; Kursheedy v. Union Dime Say. declared by statute. N. Y. L. 1896, Inst., 118 N. Y. 358. ch. 547, § 173; 1 Jones, Mort. (3d ed.) ^ Ibid. p. 371, note 1. 2 Stow V. Tifft, 15 Johns. (N. Y.) 8 Durnherr v. Eaw, 135 N. Y. 219, 458; Mills u. Van Voorhies, 20 N. Y. 222; Nelson i>. Brown, 144 N. Y. 384, 412; Boies i/. Benham, 127 N. Y. 620, 389; Purdy v. Coar, 109 N. Y. 448; 624; Hinds y. Eallou, 44 N. H. 619 ; Boorura v. Tucker, 51 N. J. Eq. 135. Jones 0. Parker, 51 Wis. 218. And, in * §§ 510, 511, infra. a number of states, this is expressly MORTGAGES — INTEEESTS, RIGHTS, AND DUTIES OF PARTIES. 649 carrying, as it does, the legal title to the mortgagee, only an equitable interest is left in the mortgagor.^ This is true, how- ever, simply as between the parties to the transaction. As to outside third parties, the mortgagor is ordinarily treated as still the legal owner. And, therefore, in an action of ejectment by him against one wrongfully in possession, the latter can not successfully defend by setting up the title of the mortgagee.^ It was early settled that the mortgagor, even under this conveyance theory, has left to him an estate, — an equitable estate.^ This he may sell or sub-mortgage ; it is descendible to his heirs, and is devisable.* The right of curtesy exists in it, and now in England, and generally in the country where this theory of the mortgage prevails, the right of dower also attaches to the mortgagor's interest.^ Tliis estate is also liable for his debts. And while at common law it could not be reached by execution, yet in many states to-day it may be so reached.^ Where this can not be done, a creditor's bill, to have it applied to the payment of debt, will lie in equity.'' § 484. Mortgagor's Interest — Lien Theory. — In those juris- dictions in which a mortgage gives only a lien to the mortgagee, the interest of the mortgagor remains a legal estate until fore- closure proceedings are complete.^ It is to be treated, there- fore, as any other legal interest, with the only qualification that it must be dealt with as subordinate to the mortgage. Subject to that lien, it may descend to the mortgagor's heirs or be devised or granted away; and the ordinary incidents of curtesy, dower, and liability for debts exist therein. While this interest is usually called an equity of redemption, yet, as was above pointed out, this is a misnomer. It is to be thought of and dealt with from the proper legal standpoint as an ordinary interest in land, cognizable in both law and equity, but simply held and dealt with subject to the mortgage lien.^ 1 § 460, supra. wood u. Gatewood, 75 Va. 407; § 481, ^ Savage v. Dooley, 28 Conn. 411 ; supra. Porter v. Hubbard, 134 Mass. 233. 6 Forth v. Norfolk, 4 Madd. 503 ; » Co. Lit. 205 a ; Digby, Hist. Law Van Ness v. Hyatt, 13 Pet. (38 U. S.) R. V. (5th ed ) p. 286; Jackson u. Wil- 294; Wiggin v. Heywood, 118 Mass. lard, 4 Johns. (N.Y.) 42; Willington u. 514; Lord v. Crowell, 75 Me. 399; Gale, 7 Mass. 138. 2 Wash. R. P. (6th ed.) §§ 1094, 1095. * Casborne w. ^earfe, 1 Atk. 303 ; ^ Bispham's Prin. Eq. §§ 526, 527. Clark V. Regburn, 8 Wall. (75 U. S.) » § 461, supra. 318 ; White v. Rittenmyer, 30 Iowa, 268 ; » Kortright v. Cady, 21 N. Y. 343 ; Chamberlain ■-■• Thompson, 10 Conn. Trimm r. Marsh, .54 N. Y. 599 ; Lilly u. 243; 4 Kent's Com. pp. *158-*160. Dunn, 96 Ind. 220 ; Kline k. McGuckin, 6 Hart !?. Chase, 46 Conn. 207; Gate- 24 N. J. Eq. 411 ; Thomas, Mort. § 23. 650 ESTATES IN REAL PROPERTY. § 485. Mortgagor's Interest — Combination Theory. — In those states in which a mortgage is at first a hen, and then after the law da)' in effect a conveyance, it follows from the above dis-, cussiun that the mortgagor's interest is a legal estate until the law day, and an equitable one after that time. And his riglits, duties, and interests are readily ascertainable from the preceding discussion, according to the time at which they are sought to be determined.^ § 486. Right to Redeem. — Before and on the law day, the mortgagor's privilege of redeeming is a legal right. And such is its nature in many jurisdictions, where the mortgage is only a lien, even after the passing of that day. But, as heretofore explained, after the law day the right to regain the land from the mortgagee is the special favor to the mortgagor invented and always very carefully fostered by the courts of equity.^ It has been in those courts especially that jealous watchfulness has matured and perfected this right, and guarded it against encroachments and destruction. The important inquiries suggested by its existence are, who has the right to redeem, within what time redemption may be had, how much must be paid in order to redeem, and how the right may be en- forced in case the mortgagee attempt to violate or ignore it ? These questions are to be answered in the order in which they are here stated. § 487. Who may redeem. — The mortgagor and all persons owning interests in the property subordinate to the mortgage, who are in privity with the mortgagor, that is, whose rights accrue from mutual or successive interests arising from him, are entitled to redeem the property from the mortgage debt. Or, another way to state it, in summary, is that any one may redeem who has in the land an interest or right which could be barred or shut off by a proper foreclosure of the mortgage.^ Such persons include a mortgagor, his vendee, subordinate mortgagee's or lienors, sureties for the mortgage debt, one entitled to dower or curtesy in the land subordinate to the mortgage, and one who for value has assumed and agreed to pay the mortgage debt.* But mere volunteers or strangers to 1 Last iive preceding notes. v. Golden Lumber Co., 43 Mich. 468 ; 2 § 437, s«/)ra ; % in, infra. Gordon i\ Smith, 62 Fed. Rep. 503; 8 Grant v. Doane, 9 Johns. (N. Y.) 4 Kent's Com. p. *462 ; Thomas, Mort. 611 ; Averill v. Taylor, 8 N. Y. 44; § 675; Jones, Mort. §§ 1055-1069. Piatt V. Squire, 12 Met. (Mass.) 494; * Haines a. Beach, 3 Johns. Ch. Frishie v. Frisbie, 86 Me. 444; Powers (N. Y.) 460; Brainard v. Cooper, 10 MORTGAGES INTERESTS, RIGHTS, AND DUTIES OF PARTIES. 651 the mortgage transaction have no right to redeem.^ Thus, the mortgagor's creditors, who have not reduced their claims to judgments, and so have not obtained any liens on tlie land, are not entitled to redeem ; but, after their judgments are obtained and they become lien creditors subordinate to the mortgage, this right then belongs to them.'-' When an interest in the property is held by a trustee, he and not the cestui que trust is the proper person to redeem.^ § 488. During vrhat Time the Right to redeem exists. — There is no right to redeem from the mortgage before the law day, unless the mortgagee is willing to accept payment and relin- quish his security. Having made his investment with a view of retaining it until that day, no one has any right to deprive him thereof without his consent. The absolute right of redemption, therefore, accrues on the law day.* And it con- tinues until the mortgage is discharged, or foreclosure pro- ceedings are complete.^ And the general rule is that foreclosure is not ended, and the right to redeem is not terminated, until the sale of the property pursuant to the judgment is con- cluded. In some states, however, by statute, tlie privilege of redeeming is extended to a designated time after the sale of the property on foreclosure. Thus, in Minnesota, Michigan, and Wisconsin, the time is one year after the sale; and in several states, such as Iowa, Kansas, and Colorado, it is the same time as that permitted by their statutes L -r redemption of real property sold on execution.^ § 489. Amount paid to redeem. — In the absence of posi- tive agreement by the mortgagee, and when he has not taken possession of the land, he can not be required to accept for the purpose of redemption any payment less than the whole amount due on the mortgage, including interest, expenses N. Y. 356 ; Wood v.- Goodwin, 49 = Dexter v. Arnold, 1 Sumn. (U. S. Me. 260; Hunter v. Dennis, 112 111. Cir. Ct.) 109. 568 ;- Gibson v. Crehore, 5 Pick. (Mass.) * Brown ;;. Cole, 14 Sim. 427 ; Mis- 145 ; Vaugtian v. Dowden, 126 Ind. souri K. & T. Co. v. Union Trust Co., 406. 87 Hun (N. Y,), 377; Jones, Mort. 1 Grant v. Doane, 9 Johns. (N. Y.) § 1052. 591; Sinclair i>. Learned, 51 Mich./335 ; ^ Nutt o. Cuming, 155 N. Y 309; Ston's Eq. Jur. § 1023 ; Jones, Mort. Bernard v. Jersey, 39 N. Y, Misc. 212 ; § 1055 Hull a. McCall, 13 Iowa, 467 ; lleim- '^ Grant I/-. Doane, 9 Johns. (N. Y.) berger v. Boyd, 18 lud. 420; .Jones, 591 ; Brainard v. Cooper, 10 N. Y. 356 ; Mort. § 1052. See Collinson o. Jeffery Lomax o. Bird, 1 Vern. 182 j Story's (1896), 1 Ch. 644. Eq. Jur. § 1023. s 1 Stim. Amer. St. L. §§ 1940-1948 ; § 562, infra. 652 ESTATES IN REAL PROPERTY. properly chargeable, and costs.^ This is true though the debt or claim has passed to another party, or has become barred by the Statute of Limitations, or though the land has been sold for less than the amount of the mortgage.^ This right of the mortgagee to insist on payment in full prevails against any party seeking to redeem, although the latter may have only a small interest in or lien against the land. Thus, a part owner, a second mortgagee, or a claimant of dower subordinate to the mortgage must comply with this privilege of the mort- gagee, in the same manner as must the mortgagor himself.* But, when one who is not obligated to pay the whole mortgage debt redeems by paying that amount, he has the right to con- tribution, or subrogation, or exoneration, or two or all of these remedies, for his reimbursement, in the manner explained hereafter.* To this general requirement of payment in full, as a pre- requisite to redemption, there are, however, a few exceptions and qualifications. It may, for example, be waived by the mortgagee.^ And, when there are several mortgagors and the mortgage debt is barred as to some of them, but not as to others, those who remain obligated have a right to redeem by paying their proportionate shares.^ So, if the mortgagee him- self become the owner of a part interest in the equity of redemption, his mortgage is equitably satisfied to that extent, and the other part owners of the land have a right to redeem their interests by together paying their pro rata share of* the original debt.^ Again, where it would give an unjust ad- vantage to a mortgagee and injuriously affect him who redeems to compel him to pay the entire mortgage, as for example where the mortgagee has colluded with others unfairly to de- prive him of a part of the land originally covered by the mortgage, he may redeem by paying as much as is fairly and equitably due to the wrongdoing mortgagee.^ The courts have worked out such results as these in pursuance of their determi- 1 Collins V. Riggs, 14 Wall. (81 618 ; Thomas, Mort. § 6S0; Jc*es, Mort. U. S.) 491 ; Coffin v. Parker, 127 N. Y. § 1070. 117, 121 ; Aikeu v. Gale, 37 N. H. 501 ; * §§ 502-504, infra. Meacham i;. Steele, 93 111. 135 ; Lamb 6 Mutual Life Ins. Co. v. KirchofE, V. Montague, 112 Mass. 352; Pom. 133 111.368. Eq. Jur. § 411. 6 pogal v. Pirro, 17 Abb. Pr. (N. Y.) 2 Ibid. 113. 8 Palk V Clinton, 12 Ves. 59; Bell ' Dooley v. Potter, 140 Mass. 49. V. City of N. Y., 10 Paige (N. Y.), 49; 8 Coffin f. Parker, 127 N. Y. 117. Merselis v. Van Riper, 55 N. J. Bq. MORTGAGES INTERESTS, RIGHTS, AND DUTIES OF PARTIES. 653 nation to keep the equity of redemption on a purely equitable basis.^ § 490. Suit to redeem. — Other Similar Proceedings. — In the practice of the English courts of equity, whenever the mortgagee refused after the law day to accept payment of his debt in full and discharge the mortgage, a bill or petition to compel him to do so was sustained. The basis of this equit- able remedy was the recognition of the mortgagee as the holder of the legal title, and of the mortgagor as having nothing but an equity and possessing no legal right to regain his property after the law day. Originating, however, from this principle, such a suit has continued to be favored in all jurisdictions, including those in which the mortgage has de- veloped into a mere lien.^ Nevertheless, in states of the latter theory, a proper legal tender after the law day divests the mortgagee of his lien, and if he be not in possession, and the mortgage be not recorded, this affords full and adequate de- fence to the mortgagor.^ When the mortgagee is in posses- sion and his lien has been thus divested, the mortgagor may, it seems, have ejectment against him at law.* And when the mortgage is recorded, an action against the mortgagee to have it cancelled of record may be sustained on the strength of a proper tender, validly made and subsequently kept good.^ Therefore, in the lien-theory states, while a suit to redeem is possible and is sometimes brought, there is not frequently any real requirement for its existence.^ (a) § 491. Importance of Right to redeem. — The right of re- demption is equity's favorite child. It has been fostered and (a) In New York, "An action to redeem real property from a mort- gage, -with or without an account of rents and profits, may be maintained by the mortgagor, or those claiming under him, against the mortgagee in possession, or those claiming under him, unless he or they have continu- ously maintained an adverse possession of the mortgaged premises, for twenty years after the breach of the condition, or the non-fulfilment of a covenant therein contained." Code Civ. Pro. § 379 ; Mooney v. Byrne, 163 N. Y. 86, 98; Shriver v. Shriver,86 N. Y. 575; Campbell u.'Ellwanger, 81 Hun, 259. 1 Hannah v. Davis, 112 Mo. 599; wards o. Farmers F. I. & L. Co., 21 Jones, Mort. § 1076; 4 Kent's Cora. Wend. (N. Y.) 467. p. * 163. ' See this more fully explained, 2 Thomas, Mort. §§ 699, 700. § 523, injra. 8 § 523, infra. ' For proceedings in redemption suit, * Thomas, Mort. § 701, citing Ed- see Thomas, Mort. ch. xix.; Jones, Mort. §§ 1093-1113. 654 ESTATES IN REAL PROPERTY. flared for with jealous anxiety. And the mortgagor will not be permitted, when he makes the mortgage, to contract it away, or otherwise to divest himself of this important privi- lege. The maxim, " Once a mortgage, always a mortgage," is the terse expression of this emphatic equitable principle. ^ " You shall not," said Lord Bldon, speaking of the mortgage in the case of Seton v. Slade,^ " alter by special terms what this court says are the special terms of that contract." Such expressions as this mean that a mortgage transaction is sui generis, in that the parties to it can not inject into it, at the time when it is made, anything that by its own operation can cause the mortgage to develop into anything else. A lease may be made to include a provision that, on the happening of certain stipulated conditions subsequent, it shall become a deed of conveyance in fee simple. Or a contract of sale of real property may be so worded that without further agree- meht it shall become a lease, a mortgage, or a deed of convey- ance. But when a mortgage is made, any attempt to give to it a self-changing characteristic, or the capability of be- coming a different contract by the happening of subsequent events, is a nullity. In that transaction, the mortgagor can not sell, nor encumber, nor impair in any manner his equity of redemption. He can not make a mortgage that does not have incident to it the equity of redemption, and he can not, when making the mortgage, enter into any agreement that shall take away or clog that incident.^ This is the safeguard that the courts of equity, treating him as being at a disadvantage, have thrown around the mortgagor. Needing the money which the mortgage may bring to him, he would often be imposed upon by the mortgagee, but for this absolute and unalterable rule of equity.* It must be understood, however, that what is said in the preceding paragraph applies primarily to the transaction in which the mortgage is brought into being. After the land- 1 Newcomb i. Bonham, 1 Vern. 7; 86, 92; Hughes v. Harlani, 166 N. Y. Marquess of Northampton v. Pollock, 427; Bayley u. Bailey, 5 Gray (Mass.), L. R. 45 Ch. Div. 215; Noakes v. Rice .505; Hyndman o. Hyndraaii, 19 Vt. 9; (1902), App. Cas. 24; Bispham's Prin. Sweet v. Parker, 22 N. J. Eq. 453; Eq. § 153. Turpie «. Lowe, 114 Ind. 37; .Jackson 2 7 Ves. 273. v. Lynch, 129 111. 72 ; Bradbury v. ' Last two preceding notes ; Jarrah Davenport, 114 Cal. 593. Timber & Wood Paving Corp. !;. Sam- * Ibid.; 3 Poni. Eq. Jur. § 1193; uel (1903), 2 Ch. 1 ; Peugh v. Davis, 96 Bispham's Prin. Eq. §§ 153, 154. U. S. 332; Mooney v. Byrne, 163 N. Y. MORTGAGES INTERESTS, RIGHTS, AND DUTIES OP PARTIES. 655 owner has obtained the mortgage money, and delivered the instrument to the mortgagee, the parties by a new contract may cancel the mortgage in whole or in part, or the mortgagee may purchase the equity of redemption from the mortgagor, or they may enter into new agreements further encumbering or resti"cting that equity.^ So, of course, after the law day, the mortgage may be foreclosed, and all rights of the mortgagor thereby barred and destroyed. The maxim " Once a mortgage, always a mortgage," has no application to such subsequent transactions as these, when conducted fairly and in good faith. It simply means that a mortgage shall not be originated with an inherent tendency to become an absolute deed of conveyance, a lease, or any other form of grant, lien, or contract. § 492. Special Mortgage Clauses. — Prom the time of the creation of the right to redeem, and the adoption of the maxim " Once a mortgage, always a mortgage," lenders of money on such securities as these have frequently endeavored to violate the principle expressed by that maxim. Such attempts have been uniformly and with complete success frustrated by courts of equity, and, in more recent times, by courts of law as well.^ Yet mortgagees, while yielding to the force of this principle, have been enabled, from time to time, to weave clauses into the mortgage document, which do not violate that maxim, and yet are of great utility to them in preserving and enforcing their rights against the borrowers and the properties. The most important of such clauses are the power of sale clause, the interest clause, the tax and assessment clause, the in- surance clause, the receiver's clause, the gold clause, and a clause relative to the effects that may be produced upon the rights of the parties by subsequent tax legislation. These clauses are to be next explained in the order mentioned. § 493. Power of Sale. — A very common clause in a mort- gage is one providing that, on the maturity of the debt, the mortgagee shall have the power to sell the property, and that, after reimbursing himself out of the proceeds, he shall return any surplus to the mortgagor or to his successor in interest.** 1 Reeve w. Lisle (1902), App. Cas. De Lancey v. Finnegan, 86 Minn. 255 ; 461; Russell y. Southard, 12 How. (53 Wilson v, Vanstone, 112 Mo. 315; U. S.) 139, 154; Harrison v. Trustees Thomas, Mort. §§ 30, 678. of Phillips Academy, 12 Mass. 456; ^ Ibid. Odell V. Montross, 68 N. Y. 499; ' Bell Mining Co. v. Butte Banlj, Kreamer v. Adelsberger, 122 N. Y. 467 ; 156 U. S. 470, 477 ; Elliott v. Wood, 45 656 ESTATES IN REAL PEOPERTT. In executing this power, the creditor acts in a fiduciary capacity and is governed generally by the rules and principles which control the actions of trustees.^ Therefore, he can not validly purchase at his own sale without permission of the court ; he must use all reasonable means to make bhe property bring the highest possible price, and he must act in disposing of it for the best interest of the mortgagor.^ Since a power of tliis kind is usually coupled with an in- terest, it is not, as a general rule, extinguished by the deatli of its creator. 3 In many common-law jurisdictions, it has been held assignable and capable of passing with an ordinary transfer of the mortgage.* Its assignability, however, when it is not made to the mortgagee " and his assigns," has been denied in other jurisdictions.^ And, in still others, this matter is settled by statute, in effect like that of New York, which provides that " where a power to sell real property is given to a mortgagee, or to a grantee in any other conveyance in- tended to secure the payment of money, the power is deemed a part of the security, and vests in, and may be executed by any person who, by assignment or otherwise, becomes entitled to the money so secured to be paid." ^ The power of sale in a mortgage is, of course, entirely incidental to the existence of the mortgage debt. Therefore, the extinguishment of that debt terminates the power, and an attempted subsequent execution thereof is a nullity.' (a) (a) In the New York short form of mortgage, this covenant is: "That the said party of the first part will pay the indebtedness as hereinbefore provided, and if default be made in the payment of any part thereof, the party of the second part shall have power to sell the premises therein de- scribed according to law." Real Prop. L. § 223, Schedule C. And the meaning of this, as it was formerly expressed more in detail, and as ex- N. Y. 71; Eaton v. Whiting, 3 Pick. «. Jones, 63 Mo. 195; 2 Perry on Trusts, (Mass.) 484 ; Ckrk v. Condit, 18 N. J. §§ 602 k, 602 n. Eq. S.'iS; Thomas, Mort. § 1100. 5 Cooke i>. Crawford, 13 Sim. 98; 1 Ibid.; 2 Perry on Trusts, §§ 602 0, Chilton v. Brooks, 71 Md. 445, 450; 602 p. Stanley v. Kempton, 59 Me. 472 ; 2 Rob- 2 Ibid.; § 387, supra. bins, Mort. p. 890; Jones, Mort. §§ 826, ' Hunt V. Rousemauiere, 8 Wheat. 1792, 1796. (21 U.S.) 174, 201; 2 Perry on Trusts, « fj. y. L. 1896, ch. 547, § 126; § 602 h. See contra, where the mort- 1 Stim. Amer. Stat. L. § 1871 ; Water- gage is only a lien, Baura v. Raley, 53 man v. Webster, 108 N. Y. 157, 164. S. C. 32; Wilkins i-. McGehee, 86" Ga. ' Bunce !,■. Reed, 16 Barb' (N. Y.) 764. 347; Beatieu. Butler, 21 Mo 313. See, * Brown v. Smith, 116 Mass. 108; generally, as to such powers, 2 Wash. Sanford v. Kane, 133 Hi 199; Pickett R. P. (6th ed.) §§ 1003-1016. MORTGAGES INTERESTS, RIGHTS, AND DUTIES OF PARTIES. 657, § 494. Interest Clause. — Accumulations of interest on the mortgage debt rapidly diminish the value of the equity of re- demption, and thereby impair the mortgagee's security. In mortgages having several years to run, it is essential that this contingency be provided against. A very common clause, therefore, is to the effect that, if the mortgagor fail to pay any instalment of interest within a specified number of days (usually thirty) after it is due, the whole amount of the mortgage debt, principal and interest, shall thereupon, at the election of the mortgagee, become due and payable. ^ This enables the mortgage to be foreclosed for all that it secures, in case of such continued failure to pay interest. And it is generally held that, after an instalment of interest has remained due and unpaid for the specified time, the mortgagee has an absolute right to the payment of both principal and interest ; and the tender thereafter of simply what is due by way of interest will not deprive him of the right to foreclose for both principal and interest.^ (a) § 495. Tax and Assessment Clause. — Since taxes, assess- ments, water-rates, and like public charges, when they attach to the land, become liens prior to all others, and thereby en- danger the mortgage security, a quite usual and beneficent clause in such instruments is to the effect that, if any public charge of this character become a lien upon the land and re- plained in the text, is set out in Real Prop. L. § 219, subd. 2. For the similar covenant in mortgages on leaseholds, see Real Prop. L. § 237, Schedule D, as explained in § 235, subd. 1. (a) In the New York short form of mortgage, this clause, and the tax and assessment clause explained in the following section of the text, are combined as follows : " And it is further expressly agreed that the whole of said principal sura shall become due at the option of the party of the second part after default in the payment of any instalment of principal or of interest for . . . days, or after default in the payment of any tax or assessment for . . . days after notice and demand." Real Prop. L. § 223, Schedule C. And the meaning-of this, as it was formerly expressed more in detail, and as explained in the text, is set out in Real Prop. L. § 219, subd. 1. For the similar covenants in mortgages on leaseholds, see Real Prop. L. § 237, Schedule D, as explained in § 235, subd. 4. 1 Malcolm „. Allen, 49 N. Y.448 Bennett «. Stevenson, 53 N. Y. 508 Noyes v. Anderson, 124 N. Y. 175, 180 Atkinson v. Walton, 162 Pa. St. 219 Baldwin v. Van Vorst, 10 N. J. Eq 577; Bushfieldw. Meyer, TO Ohio St. 334; Currau v. Houston, 201 111. 442; Thomas, Mort. §§ 228, 229. 2 Ibid. ; Hothorn v. Louis, 52 N. Y. App. Div. 218 ; Rosche v. Kosmowski, 61 N. Y. App. Div. 23 ; Thomas, Mort. § 230. See HoweU v. Western K. Co., 94 U. S. 463. 42 658 ESTATES IN REAL PROPERTY. main unpaid for a specified number of days (usually sixty or ninety) thereafter, or after tliat numbf^r of days from notice to the mortgagor and demand that he pay the same, the entire amount of the mortgage debt, principal and interest, shall then, at the election of the mortgagee, become due and pay- able.^ The failure to keep down these encumbrances, as required by this clause, justifies foreclosure of the mortgage in substantially the same manner and under the same condi- tions as those specified in the preceding paragraph.^ (a) § 496. Insurance Clause. — It is generally expressly pro- vided that the mortgagor shall keep the buildings on the property insured against loss by fire, for the benefit of the mortgagee. By the clause which effectuates this, it is stip- ulated either that the mortgagor shall obtain the policy of insurance in his own name, and assign it to the mortgagee, or have the insurance made payable in case of loss to the latter as his interest may appear. Or, sometimes provision is made that the mortgagor will pay the premiums to the mortgagee, ■who shall thereupon take out the insurance in his own name. It is usually added, in either form of stipulation, that, if the mortgagor fail to perform the provisions thereof, the mort- gagee may insure in his own name, pay the premiums, and add the amount thereof to the mortgage debt. All that the mort- gagee can require under such a clause as this is that the amount of insurance shall be sufficient to cover all that may grow due upon the mortgage, even though the buildings on the prop- erty may be worth materially more.^ (a) (o) For the New York form of this clause, see the preceding section note (a). (a) lu the New York short form of mortgage, this covenant is : " That the said party of the first part will keep the buildings on the said premises insured against loss by fire for the benefit of the mortgagee." Real Prop. L. § 223, Schedule C. And the meaning of this, as it was formerly ex- pressed more in detail, and as explained in the text, is set out in Real Prop. L. § 219, subd. 3. For the similar covenant in mortgages on lease- holds, see Real Prop. L. § 237, Schedule D, as explained in § 235, subd. 2 ; and see also subd. h. ' Leopold V. Hallheimer, 1 N. Y. payment as soon as his attention was App. Div. 202 ; Condon v. Mayuard, 71 called to the default, and the mortgagee Md. 601 ; Pope «. Durant, 26 Iowa, 233. suffered no injury from the delay. Ver- 2 Ibid. But foreclosure will not be Planck v. Godfrey, 42 N. Y. App. Div. permitted for a mere technical or acci- 16. dental failure to pay such charges, when ^ Thomas, Movt. § 82. Such a it is shown that the mortgagor made clause must exist, in order to require the MORTGAGES INTERESTS, RIGHTS, AND DUTIES OP PARTIES. 659 § 497. Receiver's Clause. — The receiver's clause provides that, alter default in payment on the part of the mortgagor, the mortgagee shall be at liberty, after commencing proceed- ings to foreclose the mortgage (and sometimes without this), and on a specified number of days' notice (usually ten), to apply to the court for and have appointed a receiver of the rents and profits, who shall manage the estate, lease, pay expenses, make repairs, etc., so that the interest of the mortgagee shall be protected. This is in itself a useful clause ; but it does not supersede the general equitable principle which enables a mortgagee at any time, and without such express stipulation, on being able to show that his security is being impaired, to have a receiver appointed, who shall take possession of the property and preserve it from loss for his benefit. ^ § 498. Gold Clause. — A stipulation is frequently inserted — and especially during times of financial crises, or stringency in the money market — that both principal and interest, when due, shall be payable " in gold coin of the United States of the present standard of weight and fineness." Such a provision is. more apt to exist in long mortgages than in short ones, espe- cially when they are made in prosperous times. It is a valid stipulation, and its existence does not cause any additional encumbrance on the land.^ § 499. Clause Relative to Mortgage Tax Laws. — In states in which the taxes on real property are paid in full by the mortgagor, regardless of the existence of the mortgage lien, a mortgagee rarely pays any tax on the indebtedness to him- self, although in theory it may be taxable. In such states, be- cause of agitation in favor of compelling all mortgages as such to be taxed b", enabling the mortgagor to have the amount of tax upon the mortgage deducted from the tax otherwise pay- able by himself, a clause is frequently inserted in the instru- ment to the effect that, if any law be enacted giving such right or a similar one to the mortgagor, the entire mortgage debt, both principal and interest, shall then become due and payable. mortgagor to insure for the benefit of App. Div. 446; Harris v. Taylor, 22 N. the mortgagee; and, when it does ex- Y. App. Div. 109; Thomas, Mort. ist, it does not constitute a covenant § 895; Bispham's Prin. Eq. §§ 577, 578. running vfith the land. Farmers' Loan 2 Bronson v. Rodes, 7 Wall. (74 U. & Trust Co. V. Penn Plate Glass Co., S.) 229; Blanck v. Sadlier, 153 N. Y. 186 U. S. 434. 551 ; Hartigan v. Smith, 19 N. Y. App. 1 Browning v. Sire, 56 N. Y. App. Div. 173. Div. 399 ; Eidlitz v. Lancaster, 40 N. Y. 6ll0 ESTATES IN REAL PROPERTY. The enactment of such a statute would thereupon enable the mortgagee to proceed with a foreclosure suit. It is also fre- quently added, in this connection, that, if the amount of such a tax plus the interest stipulated for in the mortgage sliall not exceed the legal rate of interest after the enactment of such a law, the mortgagor shall pay all of such tax in addition to the interest reserved in the mortgage.^ In states which have stringent usury laws, this last clause is required to be carefully worded, so that it shall not result in any agreement for the payment of usury, growing out of the fact that the stipulated rate of interest plus the added tax may exceed the legal rate of interest, (a) §500. Covenants for Title. — In addition to the special clauses above enumerated, mortgages frequently contain or- dinary covenants for title on the part of the mortgagor, such as those of warranty, further assurance, against encumbrances, etc. These covenants operate in the mortgage in substantially the same manner as in a deed.'"* (a) In New York, mortgages are taxable. L. 1896, ch. 908, § 3. But, because the mortgagor must pay taxes on the full assessed value of the realty regardless of the existence of the mortgage, the mortgagee in many instances is never reached by the tax-assessors. If the mortgagor could have a reduction because of the mortgage, he would uniformly claim it, and the mortgagee would then be taxed for the amount so taken from the mortgagor — as is done, for example, in New Jersey. It is to provide against the possibility of a law permitting this, and becoming operative during the life of the mortgage, that such a clause is put into mortgages in states like New York. It is familiarly known in that state as the " Brundage Clause." 1 When the mortgagor fails to pay clause is to obviate the necessity for his taxes as his duty requires, the mortga- continuously inaking-,,uch payments, and gee may pay them and add the amount thereby endangering the security for the to the mortgage debt, even without the mortgage debt. aid of any stipulation to that effect in ^ Jones, Mort. § 68 ; Thomas, Mort. the instrument. Sudenberg v. Ely, 90 § 27 ; § 461, supra; N. Y. L. 1896, ch. N. Y. 257 ; Thomas, Mort. § 691 ; 547, § 219, subd. 4. Jones, Mort. §§ 1080, 1184. But this ^ CHAPTER XXVIII. MORTGAGES — SPECIAL EQUITIES ASSOCIATED WITH THEM — PRI- ORITIES AND RECORD — DISCHARGING AND EXTINGUISHING MORTGAGES. Special Equities associated with Mortgages. § .501. The four equities. § 502. Contribution to redeem. § 503. Exoneration. § 504. Subrogation. § 505. Marshalling. Priorities and Record. § 506. Priorities when mortgages are not recorded. § 507. Priority among equitable mortgages. § 508. Priority among legal mortgages when neither is recorded. § 509. Priority among legal and equitable mortgages. § 510. Priority among mortgages and judgments. § 511. Priority among mortgages and other liens. § 512. Record of mortgages — Its effects on priority. § 513. Tacking — Consolidation — Future advances — General nat- ure of these principles. § 514. Tacking of mortgages. §515. Consolidation of mort- § 516. Mortgages to cover future advances. Discharging and Extinguishing Mortgages. § 517. Ways of discharging. § 518. Release of mortgage. § 519. Payment of mortgage. § 520. Fund for payment of mort- gage debt. § 521. (a) Payment when pri- mary obligor has died. § 522. (b) Payment when mort- gagor has aliened the land. § 523. Tender of mortgage debt. §524. Extinguishment, or merger. § 525, Extinguishment, or mer- ger, at law. §526. Extinguishme n t, or merger, in equity. § 527. New agreement, or accord and satisfaction. § 528. Statute of Limitations. §529. Defenses against mortgages. Special Equities associated with Mortgages. § 501. The Pour Equities. — la connection with the mort- gage and its payment, the four equitable rights of contribution, exoneration, subrogation, and marshalling find frequent appli- cation. A separate discussion is needed as to each of these. 662 ESTATES IN EBAL PROPERTT. § 502. Contribution to redeem. — ■ SLnce a mortgagee can ordinarily demand payment in full as a prerequisite to the dis- charge of his lien, persons frequently redeem from the mort- gage by paying the entire debt, who are only part owners of the land, or who, for other reasons, are not equitably bound to bear the whole burden. He who so redeems becomes entitled to contribution from his co-obligors. This right exists, for ex- ample, against other joint debtors, or owners in common, or co-sureties, and generally against persons standing on the same plane of obligation as the party who pays the debt.^ The right accrues in one's favor as soon as he has paid more than his share of the mortgage debt. Thus, if A, B, and C be equally obligated as co-sureties on the bond which is secured by the mortgage, A has a right of contribution against B and C as soon as he has properly paid more than his one tliird of the indebtedness. And he need not wait to be sued for the debt, but may pay it voluntarily, as soon as it becomes due, and pro- ceed at once against B and C for their contributive shares.^ His best course of procedure for this purpose is to sue them together in equity, since in that court he may join in one suit all who are liable to contribute, may recover contribution rat- ably against those of them who are solvent if some turn out to be insolvent, and, if some of them have died, he may join their executors or administrators in the one proceeding, and thus re- cover their proportionate shares against their estates. At law, the death of any of the co-obligors relieves his estate from the liability to contribute, the insolvency of any one of them does not increase the amount which the others must contribute, but they pay simply the proportionate parts which they are deemed to have contracted for at the outset, and each must be sued separately, thus requiring as many distinct actions as there are contributors.^ Thus, if A, B, 0, and D were co-sureties, and after A had paid the debt he discovered that B was insolvent, at law he could recover only one fourth of the debt from C, and the same from D, and must sue them each separately ; but in equity, in one and the same proceeding, he could recover one 1 Whiting 13. Burke, L. R. 10 Eq. N. H. 475 ; Bispham'a Prin. Eq. § 328 ; 539; Ellesmere Brewery Co. v. Cooper 3 Pom. Eq. Jur. § 1222. (1896), 1 Q. B. 75 ; Swaine v. Ferine, 5 2 Davies v. Hnmphries, 6 M. & W. Johns. Ch. (N. Y.) 482 ; Wells v. Miller, 153; Morgan v. Smith, 70 N. Y. 537; 66 N. Y. 255 ; Blake v. Traders' Bank, Stearns, Suretyship, § 286. 145 Mass. 13; Brown v. Simons, 44 ^ Bispham's Prin. Eq. § 329; Bay- lies, Sur. & Guar. pp. 317-319. MORTGAGES — EQUITIES — PRIORITIES — DISCHARGE. 663 third of the debt from each of them. If, on the other hand, A found that B had died solvent, in equity, but not at law, he could recover one quarter of the debt from B's executors or ad- ministrators, thus leaving C and D each obligated for the same share (one quarter) of the amount paid by A to the creditor.^ § 503. Exoneration. — When one who is secondarily liable pays the mortgage debt or any part thereof, he is entitled to be reimbursed in full by the primary debtor ; and this is the equity of exoneration. Such, for example, is the right of a surety against the mortgagor. He may pay the debt before or after its maturity, and as one lump payment or in instalments, and, as soon as it becomes mature, may have his action against the primary obligor for as much as has been so paid.^ The chief qualification to this equity, which is to be noted, is that the party thus secondarily liable can not speculate in the trans- action at the expense of the borrower. Therefore, if he suc- ceed in extinguishing the debt by paying only a portion of it, or by satisfying it in depreciated currency, or by some other method advantageous to himself, he can recover against the principal debtor only the fair value of what he has himself expended, together with the costs and expenses reasonably incurred in so discharging the mortgage debt.^ § 504. Subrogation. — When any obligor other than the principal debtor pays the mortgage debt, by the equity of sub- rogation he is entitled to the mortgage security and all other collaterals held by the creditor.* In most jurisdictions, this in- cludes also any judgment for the debt which the mortgagee may have obtained against the principal obligor.^ The clear equity here is that the creditor holds the mortgage and all other collaterals in a semi-trust capacity, and can not deal with them to the injury of sureties or other secondary obligors and still hold the latter fully liable for the debt. Therefore, if by 1 Last preceding note; Stearns, 131 N. Y. 262; Merchants' & Manuf. Suretyship, §§ 289-294. Bli. i,. Cnmmings, 149 N. Y. 360, 364 ; 2 Aguilar v. Aguilar, 5 Madd. 414; Hayes v. Ward, 4 Johns. Ch. (N. Y.) Dowse y. Gorton (1891), App. Gas. 130; Gaskill k. Wales's Ex'rs, 36 N. J. 190; Galin v. Neimcewicz's Ex'rs, 11 Eq. .')27 ; Beaverv. Slanker, 94 111. 175 ; Wend. (N. Y.) 312; Bispham's Prin. Cockrum v. West, 122 Ind. 372; Bisp- Eq. § 331. ham's Prin. Eq. § 335. 3 Ibid. ; Stearns, Suretyship, §§ 296- 6 Prairie State Bk. h United States, 300. 164 U. S. 227 ; Mansfield v. Mayor, etc. * J&tns. Life Ins. Co. v. Middleport, of New York, 165 N. Y. 208 ; Bispham's 124 U. S. 534. 545; Howard v. Rob- Prin. Eq. § 336; Stearns, Suretyship, bins, 170 N. Y. 498; Pease v. Egan, §266. 664 ESTATES IN REAL PROPERTT. his negligence or wilful act he lose the mortgage security or any part of the same, or wrongfully return it to the borrower, those parties who stand in the position of sureties for the debt are released fro tanto?- Assistance may be here rendered in appreciating the tliree equities of contribution, exoneration, and subrogation by the following example. Suppose A to be the mortgagee, B the mortgagor, and C and D co-sureties for B. If C should 'pay the entire debt when due, he would have 'against D the right' of contribution, against B that of exoneration, and against A' that of subrogation.^ He could not specu>ate in these equities, nor recover more than he himself had expended ; but he could proceed with them, either successively or concurrently, until complete justice was worked out among all the interested parties as far as this could be done with the aid of a court of equity. § 505. Marshalling. — By the equitable doctrine of marshall- ing, funds available for the payment of two or more debts are required to be so utilized that each creditor shall share equit- ably therein. Thus, if A hold a mortgage on two lots of land, and B hold a subordinate mortgage on one of them, A must obtain payment of his claim from the property in such manner as to depreciate as little as possible the security for B's mort- gage. Therefore, if A foreclose and proceed to sell the land, equity will either compel him to sell in the first instance that lot on which B has no claim, and to stop there if it pay A's debt ; or, more commonly, will permit A to sell either lot, and, if any property remain after his claim is satisfied, will subro- gate B to such surplus for the payment of his claim.^ One of the most frequent applications of the doctrine of marshalling to mortgage transactions is made in determining the order in which the various lots of land covered by a blanket mortgage on them all shall be sold to pay the mortgage debt. The three groups of cases which may thus arise may be best explained by concrete illustrations, as follows : — (a) Suppose the mortgagor of ten lots of land, numbered from 1 to 10 consecutively, sells those numbered from 1 to 8 in 'Last preceding note; Sternbach " Evertsonii. Booth, 19 CTohns. (X.Y ) V Friedman, 34 N. Y. App. Div. 534; 486, 493; Ingalls i-. Morgan, 10 N. Y. Stearns, Suretyship, § 274. 178, 186; Groves v. Sentell, 153 U. S. " Furnold v. Bank of Missouri, 44 465, 482 ; Miller ti. Cook, 133 N. Y. Mo. 336. 190 ; Bispham's Prin. Eq. §§ 340, 341. MORTGAGES — EQUITIES — PRIORITIES — DISCHARGE. 665 that order, each to a separate purchaser, who either obtains a warranty deed or pays the purchase price of his lot in full on the faith that the blanket mortgage will be fully discharged by the mortgagor. If, now, the borrower fail to pay the debt, then, on foreclosure of the blanket mortgage, lots numbers 9 and 10 must be first sold, and if they fail to satisfy the mortgage, number 8 must be sold next, and next number 7, and so on, backwards, in the inverse order of alienation by the mortgagor. This is the requirement in England and in the majority of the United States.^ And the principle on which it is based is that, if the mortgage had been foreclosed after the mortgagor had sold only one lot, i. e., number 1, the other nine lots should be disposed of before number 1 should be taken. Therefore, number 1 should be sold last for the payment of the mortgage debt ; and, by a parity of reasoning, number 2 sliould be sold next to the last, and number 3 before number 2, and so on.^ (b) If any purchaser of one of the lots covered by a blanket mortgage assume the entire mortgage debt, and agree to pay the same as part of the purchase price of his property, or if he otherwise put himself in the position of the mortgagor, then his lot is to be first sold for the discharge of the mortgage, and if, as might sometimes happen, several of the purchasers of the lots so covered successively assume the entire mortgage obligation, or more of it than their fair shares respectively, then the equity of marshalling would require their lots to be sold in their direct order of alienation, i. e., in the same order in which they were respectively purchased from the mortgagor.' This is not, of course, a common occurrence ; but it exhibits the converse of the proposition explained in the preceding paragraph. (c) Lastly, it sometimes occurs that, after executing a blanket mortgage on a number of lots of land (say ten), the mortgagor sells the lots separately to distinct purchasers, each of whom expressly takes his lot subject to, or assumes and agrees to pay, his proportionate share of the blanket mortgage. 1 Farrington u. Forrester (1893), §§ 1621, 1622. See, contra, Dickey b. 2 Ch.461 ; Clowes y. Dickenson, 5 Johns. Thompson, 8 B. Mon. (Ky.) 312. Ch. (N. Y.) 235 ; Libby o. Tufts, 121 2 n,id. N. Y. 172; Rogers v. Smith, 75 N. Y. » Bonne v. Lynde, 91 N. Y. 92; App. Div. 141 ; George M. Wood. 9 Allen Chase u. Woodbury, 6 Cush. (Mass.) (Mass.), 80; Sanford «. Hill, 46 Conn. 143; Gushing v. Aver, 25 Me. 383; 42; Thomas, Mort.§ 271 ; Joues, Mort. Tompkins v. Wiltberger, 56 III. 385; Jones, Mort. § 1622. 666 ESTATES IN EEAL PROPERTY. In such a case there is no special equity amongst them in case the blanket mortgage is foreclosed, and the mortgagee may sell the lots in any order that he may select. But, if the mortgage be satisfied by a sale of any number less than the ten lojts-, those purchasers from the mortgagor who have thus lost their proper- ties are entitled to contribution from such purchasers whose lots are not sold on foreclosure of the blanket mortgage.^ A case like this also arises when tenants in common or joint tenants or other co-owners of land unite in mortgaging the whole of it, share ratably in the proceeds of the mortgage, and subsequently partition the mortgaged property amongst them- selves. Their equities are then equal, and neither can require that on foreclosure of the mortgage another's land shall be sold before his own. Also, the same right of contribution exists in favor of those whose lots are then taken to pay the mortgage debt.2 It is to be added that, when a blanket mortgagee who has notice of the facts and equities releases some of the lots which have passed into the possession of separate purchasers, if the equities of the lot owners are equal, as in case (c), above ex- plained, the other lots are released from the debt fro tanto, that is, they can not be required to pay any more than their original proportionate share.^ If, on the other hand, the blanket mortgage cover lots amongst whose owners there exist special equities, such as those explained in cases (a) and (b) above, and the mortgagee, knowing the equities, release some of the lots primarily obligated, he may thereby discharge entirely his claim against those subordinately encumbered.* Priorities and Record. § 506. Priorities ■when Mortgages are not recorded. — Leaving the recording acts out of view for the moment, the questions as to priority in right to payment among different mortgages 1 Bernhardt v. Lymburner, 85 N. Y. ' Stevens v. Cooper, I Johns. Ch. 172; Wood v. Harper, 9 N. Y. App. (N. Y.) 425; Parkman v. Welch, 19 Div. 229 ; Thompson v. Bird, 57 N. J. Pick. (Mass.) 231 ; Taylor v. Short's p:q. 175; Sweetzer o. Jones, 35Vt. 317; Adm'r, 27 Iowa, 361; Thomas, Mort. Monarch C. & M. Co. v. Hand, 197 111. § 386.\ 28S; 3 Pom. Eq. Jur, §§ 1205, 1225; * Ib^. ; George v. Wood, 9 Allen Jones, Mort. § 1622. (Mass.)) 81 ; Howard v. Halsey, 8 N. Y. 2 Groves ii. Sentell, 153 U. S. 465; 271 ; Thomas, Mort. § 277. Bernhardt v. Lymburner, 85 N. Y. 172. MORTGAGES — EQUITIES — PRIORITIES — DISCHARGES. 667 themselves, and among mortgages and other important forms of liens, may be briefly summarized. § 507. Priority among Equitable Mortgages. — Ordinarily, equitable mortgages are not in such shape or condition that they can be recorded. When, therefore, the different holders of two or more of them are contending for priority of payment, their rights are to be determined purely upon equitable pfinci- ples. And the maxim, " Among equal equities priority of time will prevail," usually decides the contest. That is, the equit- able mortgage which is first in time is first in right, over other equitable mortgages or purely equitable liens. ^ But, in these cases, the equality of the equities may be readily destroyed so as to give the second claim priority ; as, for example, when the second is taken for value and without notice of the first, and the first was taken without paying value. And, " should they," the equities, "for any reason, be unequal — should the balance be disturbed by fraud, laches, or negligence, the otherwise prior equity may be postponed." ^ „ § 508. Priority among Legal Mortgages when neither is re- corded. — Substantially the same principles as those invoked in the preceding paragraph apply among purely legal mortgages when the rights are unaffected by the record of any of them. When both are taken for value, first in time is first in right ; and this is true whether or not the subsequent mortgages are taken with notice of the existence of those ahead of them in time. But one who pays value without notice takes precedence of a prior taker without value.^ And, as will be explained hereafter, the record acts materially affect these questions of priority among legal mortgages.* § 509. Priority among Legal and Equitable Mortgages. — Still leaving all, effects of record out of account, and assuming that the holder of a legal mortgage is contending with the holder of an equitable one for priority of payment, the former uniformly prevails unless he has taken his lien after the equitable n^ort- gage was taken, and either without value (or in some states, such as New York, without value paid at the time) or with 1 Phillips w. Phillips, 4DeG. F.&J. 8 ibid.; Ten Eyck u. Witbeck, 13.5 218; Spring b. Short, 90 N. Y. 538 j N. Y. 40; McCracken «. Flanagan, 141 Snell, Priu. Eq. p. -23 et spij. N. Y. 174 ; Cathcart v. Robinson, 5 Pet. ^ Bispham's Prin. Eq. § 45 ; Jones, (30 U. S.) 264 ; Bispham's Prin. Eq. Mort. §§ 604-606 ; In re Lake (1903), § 261. 1 K. B. 151. * § 512, infra. 668 ESTATES IN REAL PROPERTY. notice of the prior mortgage.^ The holder of the legal claim, taking it with knowledge or notice of the prior mortgage, must be bound by such notice, and stands second in order of pay- ment. But whenever the legal mortgage is taken first, or, being taken secondly, is acquired and paid for without notice of the equitable rights, it has priority in payment.'^ Its prece- dence in claim then grows out of the application of the equit- able maxim, " Where the equities are equal, the law (or the legal claim) will prevail." ^ § 510. Priority among Mortgages and Judgments. — A judg- ment against a mortgagor, when made with direct reference to the mortgaged property, — such, for example, as one determin- ing the title to such property or fixing the rights of the claim- ants thereof, — in and by its own provisions ordinarily settles all questions as to priorities in the claims of the parties to the action in which it is obtained. But important controversies as to priority in right frequently arise among mortgagees and judgment creditors of the jjjprtgagors, when the judgments are merely for sums of money, and are caused to be liens on the land of the judgment debtors solely by virtue of statutes author- izing their docketing or other public filing or registry. Thus, in most of the United States, if A obtain a judgment against B, and have it docketed as authorized by the statute, it becomes thereby a lien on B's land then owned, or which he may sub- sequently acquire within the time (varying from ten to twenty years) prescribed in the statute.* The question then fre- quently arising is, shall this judgment or a mortgage on the land have priority ? Of course, a recorded mortgage first in time has priority. The settled principle, also, in most of the states of this country is that an unrecorded mortgage, whether legal or equitable, has priority over a judgment subsequently obtained against the mortgagor, whether such judgment is docketed or not.^ The principle on which these decisions rest 1 Le Neve v. Le Neve, 2 Lead. Cas. ' Bispham's Prin. Eq. § 40. Eq. 35 ; Jones v. Van Doren, 130 U. S. * N. Y. Code Civ. Pro. § 1251 ; Roll 684,691; Drakew. Paige, 127 N.Y. 562; v. Rea, 57 N. J. L. 647; Black, Judg- Anderson v. Blood, 152 N. Y. 285; ments, §§ 417, 418. Martin v. Bower, 51 N. J. Eq.452 ; First » Jackson v. Dubois, 4 Johns. (N. Y.) Nat. Bk y. Connecticut M. Life Ins. Co., 216; Schroeder v. Gurnev, 73 N. Y. 129 Ind. 241; Stephens v. Weldon, 151 430; Obermeyer v. Liebmau, 51 X. Y. Pa. St. 520; Warnock v. Harlow, 96 App. Div. 247; Rogers v. Abbott, 128 Cal. 298 ; Fahn w. Bleckley, 55 Ga. 81 ; Mass. 102; Pierce v. Spear. 94 Ind. 2 Pom. Eq. Jur. § 767. 127 ; Moorman i;. Gihbs, 75 Iowa, S'iT ; '^ Ibid. Sappington v. Oeschli, 49 Mo. 244 ; Fin- MORTGAGES — EQUITIES — PRIORITIES — DISCHARGE. 669 is that the mortgagee, having advanced value and acquired his lien with special reference to the real property affected thereby, is, to that extent, a purchaser of the property ; whereas the judgment creditor of the mortgagor did not loan the money or advance the credit, which resulted in his judgment, with special reference to the land, but, after obtaining the judgment, he simply proceeded by the statutory authority to make it a lien on the realty. The purchaser, — the mortgagee, — therefore, it is argued, should have the preference, although the judgment creditor acquired his lien without any notice of such purchas- ing mortgagee's right or claim.i This conclusion is denied in a few of the states.^ And in all jurisdictions it is held, of course, that a judgment duly docketed and made a lien on real property is superior, in right to a mortgage, subsequently acquired. § 511. Priority among Mortgages and other Liens. — Me- chanics' liens, liens of servants or workmen, unsafe building liens, liens by boards of health, etc., are instances of statutory claims against real property, between which claims and mort- gages contests for priority frequently arise. Without going into detail with regard to these, it is simply to be said gen- erally that the statutes which authorize filing of such liens, ordinarily, by their express terms make clear the order in which they may be asserted in connection with other rights in the property. Thus, for example, in New York, a mechanic's lien, properly filed, not only takes priority over all subsequent mort- gages on the land, but also over all advances thereafter made on mortgages existing, and even recorded, at the time when it is filed.3 § 512. Record of Mortgages. — Its Effects on Priority. — In most parts of England, mortgages are not recorded ; and the order of priority among them, when there are several on the same land, is readily determined by the principles above ex- plained. But, in most, if not all, of the United States, statutes authorizing the recording of mortgages make their proper record layson v. Crooks, 47 Minn. 74 ; Wilcox- Board of Comm'rs of Town of Tarboro son V. Miller, 49 Cal. 193, 194. So of v. Micks, 118 N. C. 162; Grace v. Wade, assignments for the benefit of creditors, 45 Tex. 522; McCoy v. Khodes, 11 and attachment liens. Thomas, Mort. How. (52 U. S.) 131 ; 2 Pom. Eq, Jur. § 290. 723. 1 Ibid. 3 N. Y. Lien Law (L. 1897, ch. 418), 2 Hunt u. Swayze, 55 N. J. L. 33; § 13. Stephens v. Waldron, 151 Pa. St. 520; 670 ESTATES IN REAL PROPERTY. constructive notice to all subsequent purchasers and encum- brances of the property .^ (a) Therefore, the order in which adverse claimants under different mortgages are entitled to payment is ordinarily determined by the order of the record of their instruments, and, unless actual or presumptive notice is brought home to him whose mortgage is subordinate in time, he acquires the prior lien by getting it first on record. Thus, if the same landowner make a mortgage of it to A, and thereafter another mortgage on the same lot to B, who has no knowledge or notice of any kind of A's claim, and B record his mortgage first, B has the first claim as mortgagee upon the land. ^ The fact is to be emphasized that these recording acts are intended to operate, and usually do so, only for the benefit of purchasers, and encumbrancers who are innocent as well as diligent. He who loans money or purchases land with actual or presumptive notice of the existence of a prior lien or en- cumbrance thereon, or in many states, such as New York, takes a mortgage for a past debt, can claim no benefit from his suc- cess in getting his instrument first on record.^ Presumptive notice, as was fully explained in connection with the law of trusts, is such as arises from knowledge of facts or circum- (a) In New York, the statute defines a conveyance as including a mort- gage (Real Prop. L. § 240), and then declares that: "A conveyance of real property, within the state, on being duly acknowledged by the person executing the same, or proved as required by this chapter, and such acknow- ledgment or proof duly certified when required by this chapter, may be recorded in the office of the clerk of the county where such real prop- erty is situated. Every such conveyance not so recorded is void as against any subsequent purchaser in good faith and for a valuable consideration, from the same vendor, his heirs or devisees, of the same real property or any portion thereof, whose conveyance is first duly recorded." Real Prop. L. § 241, originally 1 R. S. 756, § 1. The methods of acknowledging or proving and recording and indexing the mortgage are set forth in §§ 248- 265 of the same law. Separate books are required for conveyances and mortgages. And record of a mortgage in the wrong book — the book for conveyances — does not make constructive notice. Howells v. Hettrick, 13 App. Div. 366. 1 N. Y. L. 1&96, ch. 547, §§ 240, 241 ; 2 ibid. ; Jackson v. Post, 15 Wend. Jones, Mort. § 456 ; 1 Stiin. Amer. Stat. (N. Y.) 588 ; Purdy «. Huntington, 42 L. § 1858. A mortgage of a leasehold N. Y. 344; Boies v. Beuham, 127 N. Y. is ordinarily required to be recorded 620 ; Johnson v. Valido Marble Co., 64 with real estate mortgages. Lambeek Vt. 337. & B. E. B. Co. >'. Kelly, 63 N. J. Eq. ^ Last two preceding notes ; Wilcox 401; State Trust Co. «. Casino Co., 19 v. Drought, 71 N. Y. App. Div. 402 j N. Y. App. Div. 344. Thomas, Mort. §§ 482-495. MORTGAGES — EQUITIES — PRIORITIES — DISCHARGE. 671 stances actually existing, which knowledge is sufficient to put him who has it, as a reasonable person, on inquiry; and the inquiry, if properly prosecuted, would reveal clearly titles or right in question.^ Difficult questions have sometimes been presented to the courts as to the eiifect of the record of an assignment of a mort- gage. There is no doubt or controversy over the proposition that sucli record gives to the assignee for value and without notice priority over all other assignees of the same mortgage, whose assignments are not recorded until after his.^ But it is held in New York, and probably in a majority of the states of this country, that an assignee in good faith and for a valuable con- sideration of a duly recorded mortgage obtains, by virtue of liis purchase alone, no preference over a prior unrecorded deed or mortgage, of which he has no notice, if his vendor had notice of such unrecorded deed or mortgage. This results from the fact that, so far as the effect of the assignment of the mortgage alone is concerned, the assignee stands in the shoes of his assignor ; and, if the mortgage in the hands of the latter could not prevail over the other claim or title, no more can it do so when in the hands of the former.* It is further held, however, that the assignment of a mortgage is a " conveyance " within the meaning of the recording acts, which provide that the record of a " conveyance " shall give priority to one who holds it for value and without notice. Therefore, while the purchase alone of a mortgage does not give the purchaser any priority, his record of his assignment before the record of the deed or mort- gage over which he is seeking to prevail, will give him priority in right over such deed or mortgage. Thus, if A hold an un- recorded mortgage on a lot of land, and B acquire a subsequent mortgage on the same lot, with notice of A's claim, and B record his mortgage, and then assign it to C, who has no notice of A's rights, then, before C records his assignment, A's mort- gage has the priority ; but, ifmow C recprd his assignment before A records his mortgage, A's claim becomes thereby sub- ordinated to that of C* §513. Tacking — Consolidation — Future Advances — Gen- 1 As to kinds and effects of notice, v. Miller, 137 N. Y. 332 ; Jones, Mort. Bee § 407, supra. § 475. 2 Thomas, Mort. § 497 ; Jones, Mort. * Deeker v. Boies, 83 N. Y. 215; §§ 472-474. Clark v. Mackin, 95 N. Y. 346 j Thomas, * Decker v. Boies, 83 N. Y. 215, 219 ; Mort. § 500. Frear v. Sweet, 118 N. Y. 454; Collier 672 ESTATES IN REAL PROPERTY. eral Nature of these Principles. — In England and to some extent in this country, some peculiar results in the way of com- bining mortgages, or mortgage debts or payments upon them, have grown out of the combination of legal and equitable prin- ciples affecting these transactions. To some extent they are regulated by the record acts, and in other respects they are independent of those acts. The three important classes of such principles are known as tacking mortgages, consolidating them, and working out mortgages to cover future advances. A few words of explanation are needed as to each of these. § 514. Tacking of Mortgages. — Under the English theory of a mortgage, by which the legal title to the land is vested in the first mortgagee; second, third, and other subordinate mort- gagees can acquire only equitable interests or liens.^ All of these claims being generally in that country unrecorded, it occasionally happens tliat three or more mortgages on the same lot of land are held by mortgagees, the subsequent ones of whom have no knowledge or notice of the rights of the prior ones. The doctrine of tacking may apply under any such cir- cumstances, wlienever a mortgagee, whose claim is inferior in time but was acquired without notice of any intervening mort- gage, purchases the first mortgage ; or when the first mort- gagee buys up one of such inferior mortgages. The two mortgages being thus obtained by the same party, and one of them being a first mortgage, which gives to him the legal title to the land, the maxim that " where the equities are equal the law " (or legal title) " shall prevail," operates in his favor ; and he can have both mortgages paid off in full before any interven- ing mortgagee can obtain anything upon his claim. If, for example, A hold a first mortgage, B a second one, and C a third one, and if C acquired his lien without notice of B's, C may purchase A's first mortgage, or A may purchase C's third mortgage ; and he who thus becomes the owner of the two has the right of payment in full of both of them before B can obtain anything upon his mortgage.^ Since C, when he loaned his money and took his mortgage, did not know of the existence of B's mortgage, his equity is equal to B's ; and, by obtaining the legal title to the land through his purchase of the first mort- gage, he brings himself within the operation of the equitable 1 ^460, supra. 2 Ch. 355; Nichols v. Eidley (1903), 2 Marsh v. Lee, 1 Lead. Caa. Eq. W.N. 49; Bispham's Prin. Eq. § 158. (4th ed.) 615 ; Freeman v. Laing (1899), MORTGAGES — EQUITIES — PRIORITIES — DISCHARGE. 673 maxim above quoted. So B might first purchase A's mortgage, or A purchase B's ; and these two could be then tacked so as to keep C's mortgage in its subordinate place. It will be ob- served that, as pre-requisites to the operation of this principle of tacking, the subordinate lien must have been acquired without notice of any intervening one which it seeks to override ; and he who invokes the principle must have been, or must become, the owner of the first mortgage which embraces the legal title.^ In a state like Massachusetts, where the same theory of a mortgage prevails as that which exists in England, the doctrine of tacking might operate as a principle, but for the fact that mortgages are uniformly recorded; but in practice it can very rarely occur in such states that a subordinate mortgage is ac- quired without constructive notice, by means of the record, of intervening claims. In the other states of this country, such, for example, as New York, or Michigan, where the lien theory of a mortgage prevails, all the mortgages on the same land, however many they may be, are only liens, and none of them confers the legal title to the land upon any mortgagee. There- fore no purchase of any number of them can give the legal title (the law) to the purchaser ; the maxim, " where the equities are equal the law shall prevail," can not be invoked in favor of any such purchaser, and the- doctrine of tacking, as known to the English courts, can not possibly have any application., It has been wholly repudiated, as a principle, in this country .^ § 515. Consolidation . of Mortgages. — Resting on the rule of stare decisis, rather than on any definite principle of jus- tice, it has long been the law of England that, if one and the same creditor obtain several distinct claims against one and the same debtor, he may consolidate them into one entire de- mand, and insist that none of them shall be due until they are all due, and that the whole resulting amount must then be paid as one debt.^ When claims thus purchased are secured by mortgages, the same right of consolidation is there extended to the purchaser ; he may treat all of the mortgages which he holds against the same mortgagor or landowner as one com- bined mortgage, no part of which is due until all the parts are due, and which must then be paid in full by the person against whose lands the liens exist.^ It has been more than once re- 1 Last preceding note. » In re Salmon (1903), 1 K. B. 147 ; « Thomas, Mort. § 292 ; Jones, Mort. Pledge v. Carr (1895), 1 Ch. 51. § 569 ; Bispham's Prin. Eq. § 159. 43 674 ESTATES IN REAL PROPERTY. cently admitted by the English courts that this doctrine rests on practically nothing but ancient authority ; and it has been somewhat affected, but not wholly abolished there by statute.^ In this country it has been generally repudiated, although fol- lowed by a few decisions.^ § 516» Mortgages to cover Future Advances. — It frequently occu^ especially in connection with the loans made for the erection of buildings (commonly known as builders' loans), that mortgages are given to secure advances of money to be made in instalments from time to time. An illustration of such a transaction would be a mortgage for $15,000, on prop- erty consisting of a lot of land on which a building is to be erected ; $5,000 being paid down at the time of tlie delivery of the mortgage, 15,000 more to be paid to the mortgagor when the house shall be half completed, and the remaining $5,000 when it shall be wholly completed. There are rarely any difh- cult questions in connection with this form of mortgage, if the contract on both sides be carried out as originally contemplated by both parties. But, if the builder — the mortgagor — bor- row money from other parties and give other mortgages on the land, while the building is being erected, or, if judgments or mechanics' liens or other enforcible claims be filed against the property during that time, important questions as to pri- ority in right of payment frequently arise. And these are questions raised alike on both sides of the Atlantic from the so-called mortgages to cover future advances. Taking the illustration above suggested, where the pay- ments to the mortgagor are to be in three instalments of $5,000 each, suppose after receiving the first payment of $5,000, the builder (mortgagor) borrows $10,000 from another party whom we will call B, and then the first mortgagee, whom ■we will call A, goes on and advances the second and third in- stalments of $5,000 each upon the property, and the mortgagor then making default, the house and lot fail to sell for enough on foreclosure to pay off both mortgages. On the authority of the leading case in England of Hopkinson v. Rolt,^ it is held in that country that if A, when he made his second and third 1 Pledge V. White (1896), App. Cas. Conn. 282; Lee w. Stone, 5 Gill & J. 187 ; Farmer v. Pitt (1902), 1 Ch. 954. (Md.) 1 ; Lamsou ii. Sutherland, 13 Vt 2 Jones, Mort. § 1083. For a few 309. cases in which it has been approved, see ' 9 H. L. Cas. 514. Eowan v. Sharps' Rifle Mfg. Co., 29 MORTGAGES — EQUITIES — PRIORITIES — DISCHARGE. 675 advances, had iiotice of B's mortgage, B must be paid in full after A receives his $5,000 first advanced, unless, notwith- standing his notice of B's rights, A was under a binding obligation to make the subsequent advances of the other two instalments and had to make them when demanded or suffer damages for his refusal to do so. That is, if A were under such binding obligation, or if he made his second and third advances of f5,000 each without notice of B's mortgage, then A must be paid in full before B can obtain anything out of the property. Otherwise, B must be paid in full, after A has received back his first instalment of $5,000. Probably in a majority of the states of this country, where this vexed question has arisen, the English rule as above stated has been adopted and followed. As summarized by the New York Court of Appeals, the cases in such states " hold that the lien of the mortgage to secure voluntary future advances, will be postponed as to such advances as are made after knowl- edge of the existence of the subsequent mortgage in favor of the holder of the latter." ^ But the New York courts have taken more advanced ground upon this matter, and hold that, in an illustration like that above given, A shall be entitled to payment in full of his entire $15,000, unless it did not appear upon the face of his ^wq^jyiortgage to cover future advances, as recorded or as known to B, that he was under a binding obligation to make them. If, by the terms of A's mortgage, as recorded or as known to B, it appear that A must make all the advances therein designated or be liable in damages for not so doing, he shall have priority and right to payment in full, even though, as matter of fact, by agreement dehors the mort- gage, he is not required to make any advances after acquiring notice of intervening claims.^ Even in New York, however, if the intervening claim be- tween the advances and the mortgage be a duly filed mechanics' lien, the statute in favor of such liens is so strong as to give it priority over all subsequent advances on the mortgage.^ But - the rule of Hyman v. Hauff,* which is that above stated as apply- ing in New York between A and B in the illustration, operates 1 O'Brien, J., in Hyman v. Hauff,' Pom. Eq. Jar. §§ 1197-1199; Jones, 138 N. Y. 48, 54. Also Sherras t>. Mort. §§ 364-378. / Craig, 7 Cranch (11 U. S.), 34, 51; 2 Hymani'. Haufi, 138 N. T. 48. ^ Boswell V. Goodwin, 31 Conn. 74 ; Ward ' N. Y. Lien Law (L. 1897, ch. 418), V. Cooke, 17 N. J. Eq. 93 ; Ladue v. Be- § 13. troit & M. R. Co., 13 Mich. 380 ; 3 * 138 N. Y. 48. . 676 ESTATES IN REAL PROPERTY. against intervening mortgagees, judgment creditors, and all other claimants except mechanics' lienors. Discharging and Uxtinguishing Mortgages. § 517. Ways of Discharging. — The wiping out of a mort- gage may result from the act of the debtor, or from his taking advantage of some defence or operation of law in his favor, or from the act of the creditor in suing on the bond, or foreclos- ing the mortgage, or both. The remaining discussion of the law of mortgages is embraced within these two chief methods of doing away with them as securities. Under the first of these methods are to be discussed release, payment, tender, merger or extinguishment, accord and satisfaction, the Statute of Limitations, and, in a general way, the defenses which may be available against the mortgage debt. § 518. Release of Mortgage. — When a mortgage is partly paid off, the document technically known as a release comes specially into requisition. When the entire debt is paid, a satisfaction piece or total discharge is ordinarily given. Or sometimes, even in tlie latter case, the instrument takes the form of a release. The most common application of the re- lease is to a blanket mortgage, that is, to one which covers several distinct pieces or parcels of land. In such a mortgage, it is commonly agreed that the mortgagee will release the dif- ferent parcels on receiving part payments in the manner ex- pressly stipulated. And ordinarily, as the distinct lots or parcels are sold by the mortgagor, he delivers to the pur- chasers their deeds and also releases (obtained from the mortgagee) from the mortgage in so far as their respective pieces purchased are concerned. As was explained above, after the different parcels covered by a blanket mortgage have been sold to separate purchasers, a release of any one of tliem by the mortgagee releases the others pro tanto, unless there is some positive contract to the contrary.^ It sometimes occurs, of course, that some of the obligors of a mortgage debt are released or discharged, while the liability of the others remains. This may be done by express contract, or it may result from operation of law. An instance of the Ijist-named method of producing it is the discharge of sureties 1 § 505, supra. MORTGAGES — EQUITIES — PRIORITIES — DISCHARGE. 677 on the bond, by an alteration of the bond or mortgage, or a binding extension of time for the payment of the debt, made without their consent, and without reserving the rights of the creditor against tliem.^ It must be carefully noted, however, that the new contract or extension must be enforcible, or such a result will not follow. Thus, in some states, a mere contract to extend the time for the payment of a mortgage, the mort- gagor advancing no new consideration, but simply agreeing to go on paying the same rate of interest, is not enforcible, since it is without consideration, and, therefore, the sureties are not discharged or released by such a contract.^ § 519. Payment of Mortgage. — On or after the law day, the mortgagor, or any one having an interest in the property which would be injuriously affected by foreclosure, may validly pay the debt and discharge the mortgage. The party who so pays is entitled to evidence of the payment, which shall be avail- able for the purpose of having the mortgage cancelled of record in case it has been, as is ordinarily true, duly recorded. In some states, this evidence is supplied by the holder of the mortgage by a simple written receipt on the document itself. But, in most of the states, it consists of a separate paper, usually called a satisfaction piece.^ While it is ordinarily the rule of law that a debtor can not demand a receipt or other evidence of satisfaction as a condi- tion precedent to his payment of the debt, and that such a demand, accompanied by an attempted tender, vitiates the tender ; yet, since the mortgage is generally on record, and, if not cancelled of record, will remain as an apparent encum- brance on the land, it is said that the party entitled to pay the debt has a right to demand a satisfaction piece, or its equiv- alent, from the creditor, as a condition precedent to such pay- ment ; and that, if he put the creditor to no unnecessary trouble or expense, he may make a valid legal tender of the mortgage debt, though he attach as a condition thereto the demand that he shall be supplied with such evidence of payment. There- fore, if he have a satisfaction piece prepared, and all the facil- 1 United States v. Freel, 186 U. S. ' Bogert u. Bliss, 148 N. Y. 194 ; 309 ; llobertson v. Sully, 157 N. Y. 624 ; Flye v. Berry, 181 Mass. 442 ; Allen v. .Brown v. Mason, 55 N. Y. App. Div. Leominster Sav. Bk., 134 Mass. 580; 395; Stearns, Suretyship, §§ 72-81. Shields v. Lozear, 34 N. J. L. 496; 2 Olmstead v. Latimer, 158 N. Y. Hoyt v. Swift, 13 Vt. 129. 313; Shaffstall v. McDaniel, 152 Pa. St. 598 ; Stearns, Suretyship, § 82. 678 ESTATES IN REAL PROPERTY. ities for its due execution present, he can tender payment in full on condition that the mortgagee execute and deliver the satisfaction piece ; and, if the latter refuse to do this, the tender is nevertheless valid and effectual.^ If the payment be made without receiving a satisfaction piece or other sufficient writing or certificate, and the mortgage remain outstanding on the records, the remedy available to the landowner, in order to obtain again a clear title of record, is an action against the mortgagee to have the mortgage can- celled of record as a cloud on the title to the land.^ The satisfaction is uniformly required to be noted on the record of the mortgage, and in several states, statutes impose a penalty on the owner of the mortgage, for his failure after its payment to take the proper steps to have it cancelled of record.^ (a) (a) The New York statute requires that: "A mortgage registered or recorded must be discharged upon the record thereof, by the recording officer, when there is presented to him the certificate signed by the mort- gagee, his personal representative or assignee, and acknowledged or proved and certified in like manner as to entitle a conveyance to be I'ecorded, specifying that the mortgage has been paid, or otherwise satisfied and dis- charged. The certificate of discharge, and the certificate of its acknowl- edgment or proof must be recorded and filed; and a reference must be made to the book and page containing such record in the minute of the discharge of such mortgage, made by the officer upon the record thereof. ... In counties wholly embraced in a city of the first class (having a pop- ulation of 250,000, or more, Const. Art. 12, § 2), no mortgage .shall be dis- charged of record, unless in addition to the certificate provided and required by the preceding section, there shall be presented to the recording officer for cancellation the original mortgage, or a certified copy of an order made and entered as hereinafter provided. The said officer shall, at the time of the discharge of said mortgage, cancel said original mort- gage by effacing the signatures thereto, without obliterating the same, and shall file the same in his office and keep the same so filed for the term of ten years." Real Prop. L. § 270, as amended, and § 270 a, as added by L. 1903, ch. 490. And § 270 a adds full provisions, in case the mortgage is lost or destroyed, or for any other reason can not be produced, for obtain- ing from the court " an order dispensing with the production of the said mortgage and directing the discharge thereof," and having such order filed instead of the mortgage itself. 1 Halpin v. Phoenix Ins. Co., 118 ^ Beach v. Cooke, 28 N. Y. 508; N. Y. 165, 175. See Crawford u. Simon, Tuthill u. Morris, 81 N. Y. 94 ; King- 159 Pa. St. 585 ; Judy d. Thompson, 156 man v. Sinclair, 80 Mich. 427 ; Thomas, Ind. 533 ; Beal v. Stevens, 72 Cal. 451 ; Mort. §§ 424, 425. Jones, Mort. § 989 et seq. » Jones, Mort. §§ 992-1037. MORTGAGES — EQUITIES — PRIORITIES — DISCHARGE. 679 § 520. Fund for Payment of Mortgage D3bt. — Among differ- ent parties who are interested in the mortgaged land, im- portant questions frequently arise as to who should discharge the mortgage, or from what fund it should be paid. The most common instances which present such questions are : (a) those in which the mortgagor or other primary obligor has died, and the owners of his realty and those of his personalty are con- tending against each other for exemption ; and (b) those in which the mortgaged land has passed hands after the making of the mortgage, and the persons who are or have been owners of it subject to the mortgage are contending for exemption. Bach of these presents a different set of questions. § 621. (a) Payment when Primary Obligor has died. — When a landowner borrows money, the repayment of which he secures by a mortgage on the land, the common-law theory is that, since this transaction has increased the bulk of his per- sonal property at the expense of his realty, if he die without satisfying the mortgage, his executors or administrators should discharge the debt out of i his personal property, if they have enough for that purpose. ;>Therefore, in the absence of con- trary testamentary directions, the heir or devisee of the borrower can call upon them to exhaust the personal assets in discharging the decedent's debts, of which the mortgage is one ; and he is only liable for the residue of the amount of the mortgage if such assets be insufficient to pay all the decedent's debts in full in the ordinary course and method of ad ministration. 1 This right of the heir or devisee to call on the personal representatives for exoneration is restricted, how- ever, to the cases in which the ancestor was himself the bor- rower or had in some way increased the bulk of his personal property through the making of the mortgage. Tlierefore, if A were to purchase land subject to a mortgage already exist- ing thereon, so that his personal fund was never increased by the making of the mortgage, and should die intestate, letting the mortgaged land descend to B, B could not require A's personal representatives to satisfy any of tlie mortgage debt.^ The common-law rule, requiring the personalty of the 1 Ancaster (Duke of) v. Mayer, 1 30 N. J. Eq. 415; Gould u. Winthrop, Lead. Cas. Eq. 646, 881, note ; Cumber- 5 R. I. 319 ; Jones, Mort. § 751. land (Duke of) «. Codrington, 3 Johns. ^ g^ott v. Beecher, 5 Madd. 96; Ch (N. Y.)229; Mollan !>. Griffith, 3 Creesy v. Willis, 159 Mass. 249; Paige (N. Y.), 402 ; Brown v. Baron, Thomas, Mort. § 266. 162 Mass. 56; Campbell u. Campbell, 680 ESTATES IN REAL PROPERTY. deceased borrower to exonerate the heir or devisee who takes the luoi'tgaged laud, has been changed by statute in England, New York, and several others of the American states.^ And the general effect of such legislation is to make the land, in all cases not otherwise provided for by the decedent, tlie primary fund for the payment of the mortgage debt.^ (a) § 622. (b) Payment -when Mortgagor has aliened the Land. — A purchaser of mortgaged real property may expressly take it merely subject to the mortgage, without attempting to make himself in any way personally liable for the debt ; or, as part consideration for the realty, he may also assume the debt — obligate himself personally to discharge the mortgage. The first of these results is accomplished by expressly conveying the land " subject " to the mortgage, or by equivalent words, or by not mentioning the mortgage. And the latter object is accomplished by the statement in the deed that the purchaser " assumes," or " agrees to pay," or " assumes and agrees to pay " the mortgage debt, or equivalent expressions. When the purchaser of the land simply takes it " subject " to the mortgage, he can not be held, of course, personally on the bond or note or other promise which the borrower gave for the repayment of the loan.^ The purchaser, under such con- ditions, may lose the land by foreclosure of the mortgage ; but his other property is never endangered by such a transaction, because so far as he is concerned he has only taken the mortgaged land subject to the claims of the mortgagee. («) The New York statute declares that: "Where real property, sub- ject to a mortgage executed by any ancestor or testator, descends to an heir, or pas*s to a devisee, such heir or devisee must satisfy and discharge the mortgage out of his own property, without resorting to the executor or administrator of his ancestor or testator, unless there be an express direction in the will of such testator that such mortgage be otherwise paid." Real Prop. L. § 215, originally 1 K. S. 749, § 4. And the oft- repeated judicial utterance, based on this statute, is that now, in all cases in which a testator has not provided otherwise, "the land is the primary fund for the payment of the mortgage debt." Hauselt o. Patterson, 124 N. Y. 349; Van Vechten v Kealor, 63 N. Y. 52, 56; Glacius v. Fogel, 88 N. Y. 434; Olmstead v. Latimer, 158 N. Y. 313, 317. See Coukling «. Weatherwax, 173 N. Y. 43. 1 Stat. 17 & 18 Vict. ch. 113 ; N. Y. Bennett v. Bates, 94 N. Y. 354 ; Pnrdy L. 1896, ch. 547, §215; 2 Woerner, t. Coar, 109 N. Y. 448 ; Fiske v. Tol- Adra. § 497. man, 124 Mass. 254 j Dean v. Walker, 2 Ibid. 107 111. 540; Nelson v. Rogers, 47 Minn. 8 Shepherd v. May, 115 U. S. 505; 103; Foster ». Bowles, 138 Cal. 346. MORTGAGES — EQUITIES — PRIORITIES — DISCHARGE. 681 When, on the other hand, the purchaser of tlie land as- sumes the mortgage, he thereby becomes the primary obligor for the mortgage debt ; and his vendor, who before the sale was primarily liable, becomes his surety. And it is on the basis of the relationship thus established, and by virtue of the principle that a creditor is entitled to be subrogated to all the securities for the debt which are held by a surety of tlie principal, that most courts rest their conclusion that the mort- gagee is entitled to the benefit of the assumption agreement, even though, as is usually the case, he was not a party to it, and can recover against the assuming purchaser personally for the debt, — A being mortgagee and B mortgagor, and B sell- ing the land to C who assumes the mortgage, A can recover in assumpsit against C on the bond, note, or other personal obligation secured by the mortgage. Tliere is no privity be- tween A and C, because A had nothing to do with C's assum- ing contract with B. But C is liable personally, because " assets have come to the promisor's " (C's) " hands or under his con- trol which in equity belong to a third person," A.^ Since each assuming purchaser of the land becomes the primary obligor for the mortgage debt, it follows that, in case of a series of assumptions of the mortgage debt, the last party assuming is primary debtor, and the one from whom he pur- chased the land is his surety, the party from whom his vendor purchased is surety for both of them, and so on baclcwards in the inverse order of the alienation of the mortgaged property. Thus, if A be mortgagee and B mortgagor, and B sell to C who assumes the mortgage, and then C sell to D who also assumes, D is the primary obligor, C is surety for D, and B is surety for botli D and C. They are not in any sense co- sureties, but each is surety inversely for all the subsequent vendees.^ And, therefore, if the preseut holder of tlie land — 1 Johns V. Wilson, 180 D. S. 443, have uniformly held him liable, when 447 ; Franklin Sav. Bk. v. Cochrane, 182 the promisee (vendor) was himself per- Mass. 586 ; Wager o. Link, 134 N. Y. sonally obligated to pay the debt. The 122, 150 N. Y. 549, 553; Fisher v. purchaser, in order to be thus bound, Keach, 202 Pa. St. 74; Green v. Sto.e, must expressly promise to pay the debt 54 N. J. Eq. 387 ; Jones, Mort. § 755. (and this may be oral), or take the deed The Nevir York courts have vacillated containing the promise with knowledge some, as to the principle on which the of its existence, or under such circum- assuming purchaser is held, placing it stance that his knowledge and acquies- \ in some decisions simply on the doc- cence may be presumed. Blass u. trine of Lawrence v. Fox, 20 N. Y 268. Terry, 156 N. Y. 122; Wager v. Link, See Garnsey v. Rogers, 47 N. Y. 233 ; 150 N Y. 549 ; Jones, Mort. § 761. Thomas, Mort. §§ 579-590. But they 2 Ibid. ; Calvo v. Davies, 73 N. Y. 682 ESTATES IN REAL PROPERTY. the primary obligor — and the mortgagee, who has notice of the relationships, materially alter the bond or mortgage, or validly extend the time of payment without the consent of the former owners of the land, the sureties, the latter are thereby discharged.^ There can be no binding assumption of a mortgage by a- promise to a vendor who is not personally obligated for the debt. If, therefore, any one purchase mortgaged property witliout assuming the mortgage, his vendee's promise to him that such vendee will pay the mortgage debt, i. e., his vendee's attempted assumption of the debt, is ineffectual. Thus, if A be mortgagee, B mortgagor, and C purchase from B and assume the debt, A can recover against C a judgment on the bond or other personal obligation. If, now, sell the land to D, who does not assume, and then D sell it E, who agrees with D that he will assume, i. e., who assumes to assume, A can not hold E personally on the debt, because D, to whom E made the promise, was not himself personally liable.^ It is to be added that, in New York, and possibly some other states, a purchase of mortgaged real property with- out an assumption of the debt, i. e., simply subject to the mortgage, is treated as putting the vendor substantially in the position of a surety for the land. That is, while the pur- chaser does not become in any way obligated on the bond or other personal security, he nevertheless holds the land as a kind of primary fund for the payment of the mortgage debt, and in such position that the vendor is thereby made, as it were, surety for the land. The result is that, if, when the mortgage debt becomes due, the purchaser and the mortgagee enter into an enforcible agreement extending the time for its payment, without the consent of the mortgagor, thereby precluding foreclosure during that time, the mortgagor is dis- n charged from the mortgage debt to the extent of the valu9' / of the land.8 § 523. Tender of Mortgage Debt. — On and after the law 211; Boardman u. Larrabee, 51 Conn. 2 Carter v. Holahan, 92 N. Y. 498 ; 39 ; Thomas, Mort. §§ 591, 592 ; ■Williams v. "Van Geison, 76 N. Y. App. Stearns, Suretyship, § 268. Div. 592 ; Norwood v. De Hart, 30 N. J. 1 Union Mut. L. Ins. Co. 1). Hanford, Eq. 412; Birke i). Abbott, 103 lud. I. 143 U. S. 187 ; Franklin Sav. Bk. v. 8 Murray v. Marshall, 94 N. Y. 611 ; Coekrane, 182 Mass. 586; Paine v. Antisdel w. Williamson, 165 N. Y. 372; .Tones, 76 N. Y. 274; Stearns, Surety- Baker w. Potts, 73 N. Y. App. Div. 29. ship, § 81. MORTGAGES — EQUITIES — PRIORITIES — DISCHARGE. 683 day, and down to the time when foreclosure, if any, is complete, a valid legal tender of the mortgage debt by one entitled to make payment may materially alter the rights of the parties, although the money offered is not accepted. In so far as the debt is concerned, it is generally held that the tender has no effect unless it is kept good, that is, unless the money is deposited in court subject to be drawn out by the mortgagee, or paid into a bank subject to his draft or order, or otherwise so disposed of that, without more, he may take it at any time. But, if the tender be thus kept good, it stops the running of all interest and costs on the mortgage debt.^ Being so kept good, moreover, the tender may be successfully used as a ground for application to a court of equity to have the mortgage can- celled and discharged of record and declared to be no longer a subsisting lien upon or interest or claim iu the land.^ In those states, such as New York, in which the mortgage is a mere lien on land, a valid legal tender after the law day and before foreclosui-e is complete, though not kept good, discharges the mortgage as such a lien} Not being kept good, however, it gives no right to the obligor in equity to enforce a discharge of the mortgage from record, either by direct affirmative proceeding for that purpose, or by an application therefor in a foreclosure suit, or other proceeding against him by the mortgagee. Thus, if A be the mortgagee, and B the mortgagor, and after the debt becomes due, B make a valid tender thereof to A, this discharges the mortgage as a lien on the land, and, whether kept good or not, is an available and effectual defence in every attempt by A to foreclose the mortgage or otherwise to enforce the lien ; but, if not kept good, the tender affords to B no ground for affirmative relief of any kind, either in law or in equity — he can not succeed in a direct attempt, with himself as plaintiff, to have the mortgage cancelled of record, nor in an indirect attempt, as through his answer in a foreclosure suit, to accomplish that purpose.* § 624. Extinguishment, or Merger. — By the fact that the 1 Nelson v. L«er, 132 N. Y. 288. McClellan v. Coffin, 93 Ind. 456 ; Mc- See KnoUenberg v. Nixon, 171 Mo. 445. Clung v. Missouri Trust Co., 137 Mo. '^ Ibid. ; Shields v. Lozear, 34 N. J. 106 ; Thomas, Mort. §§ 396-398. L. 496 ; Parker v. Beasley, 116 N. C. 1 ; < Tuthill v. Morris, 81 N. Y. 94 ; Himmelmann v. Fitzpatriek, 50 Cal. Werner u. Tuch, 127 N. Y. 217 ; Nelson 650. V. Loder, 132 N. Y. 288; Cowles v. * Kortright v. Cady, 21 N. Y. 343 ; Marble, 37 Mich. 158 ; Thomas, Mort. Scheickw. Donohue, 77 N. Y. App. Div. § 399. 321 ; Sager v. Tupper, 35 Mich. 134 ; 684 ESTATES IN REAL PKOPERTY. mortgage and the land both come into the same hands, at the same time and in the same right, a mortgage may frequently be extinguished. This is very commonly spoken of as a merger of tlie mortgage ; but, in technical parlance, merger applies properly to the disappearance of an estate by its coming into the same ownership as a greater estate, while extinguish- ment applies to doing away with a lien or encumbrance by its coming into the hands or possession of the owner of the laiid.i It sometimes occurs that a mortgage is only partially extinguished, as, for example, when the owner of the mort- gage buys up a distinct and separate portion of the mortgaged premises.^ Extinguisliment of liens and encumbrances, like merger of estates, is a matter of the intention, either expressed or pre- sumed, on the part of the owner of the property. One may purchase and hold a mortgage on his own land ; and, by mak- ing his intention clear, as by writing it upon the assignment of the mortgage to himself or on some other paper, or by an oral statement in the presence of witnesses, he may prevent the lien from being extinguished, and retain the mortgage as a distinct encumbrance against his own property.^ It is some- times expedient for one who purchases a mortgage against his own land to keep it alive in this manner, in order to use it as a muniment of title, and, if necessary, as a defence against inferior outstanding claims or encumbrances. Thus, if one purchase an old mortgage on his property, as, for instance, one that has been a lien thereon for twenty-five years, and thus retain it as a muniment of title, if within those twenty- five years inferior claims or defects have arisen against the title, he may use the mortgage so held (by assigning it to one to foreclose for him) as a means of foreclosing and barring such inferior liens or claims. When one wlio has only a temporary interest in the real property pays off a mortgage without expressly indicating whether or not he means it to be extinguished, the presump- tion is in his favor, if this be needed to work |)ut justice, to the effect that he did not mean to have the mortgage extin- guished, but intended to retain it as a continuing lien on his 1 Bouvier's Law Diet, "Merger." ' Thome v. Cann (1895), App. Cas. 2 Smith V. Roberts, 91 N. Y. 470; 11; Smith v. Roberts, 91 N. Y. 470; Martia i). Tarnbaugh, 153 Mo. 172. Carrow v. Headley, 155 Pa. St. 96; See Thebaud «. HoUister, 37 N. J. Eq. Goodwin v. Keney, 47 Conn. 486. 402 ; Chase v. Van Meter, 140 Ind. 321. MORTGAGES — EQUITIES — PRIORITIES — DISCHARGE. 685 own interest and the other interests in the land.^ When, on the other hand, an owner in fee pays a mortgage debt without indicating any intent with regard to its further existence, the presumption is ordinarily against him and in favor of treating the mortgage lien as extinguished. In order to rebut this presumption, he must express with clearness what is his actual intention with respect to the mortgage.^ These presumptions, however, are stronger in law than in equity ; and, in the latter court, very slight circumstances will change them. The ordinary consequences of the coming together of the mortgage and the mortgaged lands, in the same hands, at the same time and in the same right, may be further and more fully appreciated from the following brief summary of the way in which the matter is dealt with in law, and the succeeding summary of the manner in which it is dealt with in equity. § 525. Extinguishment or Merger at Law. — When the per- manent owner of land pays in full a mortgage debt thereon, and fails to express his intent, the presumption at law is prac- tically conclusive that the mortgage is extinguished. But, when he clearly expresses an intention to the contrary, the courts of law treat the mortgage as still existing against his property. These are the only two alternatives which exist simply, in a court of law.^ In examining title to real property, however, it is not safe to rely on mere presumption of the extinguishment of a mortgage or other encumbrance, from the fact that it and the legal title appear to have been in the same person at the same time. This is because, before the time when the mortgage and fee appear by the records to have come into the same hands, the owner of the mortgage may have assigned it to one who did not record the assignment. The record of such assignment is not necessary as a protection to the assignee against a subsequent purchaser of the property mortgaged, or against any person other than a subsequent pur- chaser in good faith of the mortgage itself, or of the bond or debt secured by such mortgage.* 1 Harvey o. Hobray (1896), 1 Ch. 84; Andrus v. Vreeland, 29 N. J. Eq. 137; Ohetwood v. Allen (1899), 1 Ch. 394; Buzzell v. Still, 63 Vt. 490; Ly- 353; Jones, Mort. § 864. man v. Gedney, 114 111. 388, ■^ Ibid.; Inn Pride (1891), 2 Ch. * Curtis v. Moore, 152 N. T. 159 135 ; Betts v. Belts, 9 N. Y. App. Div. Pnrdy v. Huntington, 42 N. Y. 334 210. Carrow v. Headley, 155 Pa. St. 96 8 Forbes v. Moffatt, 18 Ves. 389 ; Thomas, Mort. § 370. Hull V. Cronk, 55 N. Y. App. Div. 83, 686 ESTATES IN REAL PROPERTY. § 526. Extinguishment or Merger in Equity. — When the same kind of a question is presented to a court of equity, the two propositions of the last preceding section express the outcome, if there be no counteracting circumstances or equitable condi- tions. That is, such circumstances or conditions being absent, equity treats payment by the permanent owner as an extinguish- ment, unless he clearly indicates an intention to the contrary. But the courts of equity go one step further than those of law, in this matter, and presume that no extinguishment was in- tended, if the opposite presumption would work a hardship on him who pays the mortgage debt.^ If, for example, a purchaser of mortgaged real property, who obtained his title from a mar- ried man, the wife not joining in the deed of conveyance though she had joined in the mortgage, should be falsely informed that such wife had died, and, believing this to be true, should pay off the mortgage without having it satisfied of record, or other- wise indicating what he intended with regard to it, equity would allow him to treat it as a continuing lien on his land for the purpose of warding off the claim of dower made by the wife of his vendor. By so keeping it alive, since the claimant of dower had joined in it, and to that extent had released her dower right, he could prevent her from obtaining any dower interest in the land, except in the surplus value thereof remaining after the payment of the mortgage debt ; whereas, if the mortgage should be treated as extinguished, her dower could be claimed against all of the property.^ So, if in any other manner it would re- sult in hardship to the purchaser of the mortgage on his own property to treat the mortgage as extinguished, as, for ex- ample, by thereby letting a subordinate mortgage or judgment or other lien become a first claim on the property, equity, on his showing that in paying off the mortgage he was ignorant of the fact that such advancement of the other claim would be the result, will allow him to hold the mortgage alive as a continuing security against his own property.^ 1 Turner u. Smith (1901), 1 Ch. 2 Porbes u. Moffat, 18 Ves. 384; 213; Snow v. Boycott (1892), 3 Ch. Eaton y. Simonds, 14 Pick. (Mass.) 98; 110; Factor's, etc. Ins. Co. v. Murphy, Mallory u. Hitchcock, 29 Conn. 127. 1 1 1 U. S. 739 ; Ewell v. Hubbard, 46 N. » Ibid ; In re Pride (1891 ), 2 Ch. Y. App. Div. 383 ; Steele v. Walter, 135 ; Denzler v. O' Keefe, 34 N. J. Eq. 204 Pa. St. 2.57 ; Clark v. Glos, 180 111. 361 ; Ryer v. Gass, 130 Mass. 227 ; .■iSe ; Patterson v. Mills, 69 Iowa, 7.55 ; Duffy v. McGuiness, 13 R. I. 595 ; Wil- Chase Nat. Bk. v. Security Sav. Bk., 28 son v. Vanstone, 112 Mo. 315 ; Lowman Wash. 150 ; Coleman & B. Co. v. Rice, v. Lowman, 118 111. 582 ; Thomas, Mort. 115 Ga. 510. §§ 364, 365. MORTGAGES — EQUITIES — PRIORITIES — DISCHARGE. 687 § 527. New Agreement, or Accord and Satisfaction. — By sub- stituting Other securities for the mortgage, or advancing any value of another character in its place, the mortgagor may also discharge the lien or claim. This method of doing away with it is simply mentioned for the sake of completeness. It is, in effect, the payment of the mortgage by means of some value other than money ; and it may simply be remarked that the agreement by the mortgagee to accept such other value in the place of the mortgage constitutes an accord between the par- ties, and the actual handing of that value over to him by the mortgagor, and its acceptance by him, constitute satisfaction. Both the accord and satisfaction being proved, the discharge of the mortgage in this manner is established. ^ § 528. statute of Limitations. — As long as the mortgagor or other party obligated to pay the debt continues regularly to pay interest or instalments of the principal, the debt and the mort- gage security are not affected by the Statute of Limitations. But, after the law day and a cessation of regular payments, that statute begins to run after the last instalment of principal or intei'est has been paid.^ It is to be noted that, under the statutes in most states, the mortgage, being a sealed instrument dealing with real property, is not barred until the expiration of twenty years after such last payment. When a bond accom- panies the mortgage, the period of the statute as against it is ordinarily the same ; but when the debt is represented by a promissory note, or bill of exchange, or mere oral promise, or other simple contract, six years is the usual time for the run- ning of the statute. And thus the debt, in instances like the last, may be barred by the Statute of Limitations, while the mortgage security has yet many years to run before such statute will operate against it as a bar.^ This is one of the reasons why, in most jurisdictions, the debt is represented by a bond, or other specialty, rather than by a simple contract, (a) (a) In New York, a mortgagor, or his heirs, or any person having an interest in the mortgaged land, or in any money into which the land has been converted under a decree of a court, which money is being held iu place of such land, may have a judicial proceeding to have the mortgage discharged of record, when, from lapse of tim^, it is presumed to be paid. And the procedure, on such an application, is prescribed by L. 1862, ch. 365, as finally amended by L. 1901, ch. 287. 1 Chase's Blackst. Com. p. 622, and N. Y. 529 ; Murdock v. Waterman, U.'i note. N. Y. 55 ; Knapp v. Crane, 14 N. Y. Ajip. 2 § 458, supra; Mack v. Auderson,165 Biv. 120 ; Thomas, Mort. §§ 410-415. 688 ESTATES IN REAL PEOPERTT. One of the ordinary cases in which the Statute of Limitations begins to run in connection with a mortgage is where there has been a defective foreclosure of the mortgage, the defect arising from tlie fact that one or more of the necessary parties defend- ant have not been made parties to the action. The purchaser at such a defective foreclosure sale, of course, pays nothing thereafter on account of the mortgage ; and, therefore, imme- diately upon his taking possession of the land, the Statute of Limitations begins to run against the right of such omitted parties to redeem the property from the mortgage. For exam- ple, if in the foreclosure suit the wife of the mortgagor, whose dower was subordinate to the mortgage, should be inadvertently omitted as a party, she would be entitled to redeem the prop- erty from the mortgage as soon as the sale on foreclosure was complete, and the purchaser had taken possession of the land. Her right having thus accrued, the Statute of Limitations would immediately begin to run against it ; and, if she did not redeem within twenty years thereafter, all her dower right and interest in the land would become thereby barred. And this result would follow, even though her husband were still living dur- ing some or all of the time of the twenty-year period of the statute.^ § 529. Defences against Mortgages. — The methods above discussed for discharging and extinguishing a mortgage are those which are available against such security as has been at one time valid and enforcible. In addition to these, it is of course true, with regard to a mortgage as with regard to all claims, that its enforcement may be prevented, and the apparent lien may be nullified and shown to be void, by any of the ordinary defences which may be set up in judicial proceedings. Thus, in a foreclosure suit or other proceeding to enforce the mortgage, the defence of infancy on the part of the mortgagor, or insanity, or undue influence, or fraud, or part payment, is as available as it would be in an action at law on the bond.^ 1 Simar v. Canaday, .^3 N. Y. 298, arising from usury laws, see Bucking- SOS; Campbell v. EUwanger, 81 Hun, hara v. Corning, 91 N. Y. 525; Gauz i\ 259. Lancaster, 169 N. Y. 357. 2 For illustrations of such defences, CHAPTER XXIX. MORTGAGES — ENFORCING SATISFACTION OF MORTGAGE FORECLOSURE OF MORTGAGES. DEBT — Enforcing Satisfaction of Mortgage Debt. § 530. Forms of Remedy. § 531. Foreclosure of mortgages — Kinds of foreclosure. (a) Strict Foreclosure. § 532. Origin and purpose. § 533. Decree of strict foreclosure — Its effects. § 634. Where strict foreclosure is employed. (b) Foreclosure by Entry, Notice, and Lapse of Time. General nature of this §535. remedy. § 536. §537. § 538. Entry. Notice — By certificate. Lapse of time. (c) Foreclosure by Advertisement. § 539. What mortgages may be thus foreclosed. § 540. Who may thus foreclose. § 541. Method of foreclosing by advertisement. (d) Equitable Foreclosure, or Fore- closure by Sale. § 542. General nature of such foreclosure. § 543. When right thus to fore- close exists. § 544. Ascertaining parties to foreclosure suit. § 545. Parties plaintiff. Parties defendant. Necessary parties defend- Proper parties defendant. Commencing the action to Notice of pendency of §546. §547. ant. §548. §549. foreclose §550. action. §551. The summons — Its ser- vice ^— Appearances. § 552. The complaint. § 553. Requirements as to inca- pacitated parties. § 554. Proceedings after above- described steps and before judgment. § 555. Reference to compute the amount due — Reference to take evidence. § 556. Order to compute. § 557. Judgment. § 558. Sale. § 559. Report of sale. § 560. Judgment roll. § 561. Muniments of purchaser's title. §562 closure. Redemption after fore- Enfordng Satisfaction of Mortgage Belt. § 530. Forms of Remedy. — The methods of discharging a mortgage or frustrating recovery thereon, as above discussed, are those which are available to the mortgagor or other persona 44 690 ESTATES IN REAL PROPERTY. obligated upon the debt. The debt becoming due and remain- ing unpaid, the methods by which the creditor may enforce payment or otherwise obtain redress are lastly to be discussed. These are in general by action at law upon the debt, by a fore- closure of the mortgage, or by a procedure involving in sub- stance both of these remedies. In the absence of statutory restriction, the mortgagee is permitted, after the law day, to sue at law on the bond or other evidence of debt and to foreclose the mortgage in equity at the same time.^ Tlie principle upon which this result is reposed is that, since the mortgagor has entered into the two- fold obligation, it is conforming to the agreement of the parties to permit the two-fold remedy. But, where these two proceed- ings are thus permitted to be carried on at the same time, the mortgagee is not allowed thereby to obtain more than one com- plete satisfaction of his claim. When, for example, he first recovers judgment at law, and it is satisfied in full, this action is a bar to and a complete termination of the foreclosure suit. And if, in the foreclosure suit, he first succeed in selling the land and obtain complete payment therefrom, equity will stay all further proceedings on the debt in the law court.^ In England, and in a few of the American states of which Massa- chusetts is an illustration, this double remedy — with not more than one satisfaction as the possible outcome — is still permitted.^ In many of the United States, the two remedies are forbid- den by statute to be prosecuted concurrently. One or two of these statutes, as, for example, that of New Jersey, require foreclosure of the mortgage to be first completed ; and, if full satisfaction be not thus obtained, an action at law on the bond, or other evidence of debt, may be subsequently brought for the deficiency.* But, in more of the states, — New York, Michigan, Indiana, and Nebraska, being examples, — the mortgagee is allowed to elect, either first to sue at law on the evidence of debt, or first to foreclose the mortgage ; but he can not proceed with both of these suits at the same time, unless he obtains for that purpose 1 Garforth v. Bradley, 2 Ves. Sr. ' Trustees of Smith Charities v. 678; Draper v. Mann, 117 Mass. 439; Connolly, 157 Mass. 272. Jones, Mort. §§ 1215, 1216, 1222. * Gen. Stat, of N. J. p. 2112, § 47 ; * Ibid. Holmes v. Seashore Electric By. Co., 57 N. J. L. 16. MORTGAGES — ENFORCING SATISFACTION — FORECLOSURE. 691 the permission of the court.^ Such permission will not be given, in the absence of some special equity which makes it proper and fair that the mortgagee should have the two-fold concurrent redress.^ But the prohibition against proceeding with both suits at once is ordinarily restricted, by the construc- tion of the statutes, to legal mortgages. It does not usually apply, for example, to equitable mortgages held as security for bonds or notes, nor to mechanics' liens which have been filed as collateral to promises for the payment of debts.^ In states like New York, in which the holder of a legal mortgage is thus compelled to elect between the forms of remedy, unless he can get the consent of the court to prosecute both at once, the codes ordinarily supply indirect incentives for the foreclosure of the mortgage in the first instance. One of these is found in the statute which enables the mortgagee, if the land fail to sell on foreclosure for enough to pay the debt, to enter, in the foreclosure proceeding and without the necessity for a separate action at law on the debt, a money judgment for the deficiency, against the mortgagor and all others who are personally bound to pay the mortgage debt.* Such judg- ments are styled deficiency judgments. Another of such incentives arises from the statutory provision that, if the mortgagee first sue on the bond or other evidence of debt and obtain judgment thereon, he shall not have an execution on that judgment levied against the property covered by the mort- gage which is collateral security for that debt. Thus, if A hold B's bond for $10,000, secured by B's mortgage on White- acre, and A sue B at law on the bond and recover judgment, his attorney, on issuing execution, must instruct the sheriff not to levy on Whiteacre by virtue of that execution.^ (a) The (a) The New York Code Civ. Pro (§§ 1432, 1433) requires that, "§ 1432: The judgment debtor's equity of redemption, in real property mortgaged, shall not be sold by virtue of an execution, issued upon a judgment recov- ered for the mortgage debt, or any part thereof." " § 1433. Where an execution against property is issued upon a judgment, specified in the last section, to the county where the mortgaged property is situated, the attor- ' N.Y. Code Civ. Pro. §§ 1628-1630; Hun (N. Y.), 206; Smith v. Fleisch- Reichert v. Stilwell, 172 N. Y. 83 ; Dud- man, 23 N. Y. App. Div. 355. ley 0. Congregation of St. Francis, 138 * N. Y. Code Civ. Pro. § 1627 ; Frank N. Y. 451 ; Jones, Mort. § 1223, note 1 . v. Davis, 135 N. Y. 275 ; Dudley o. Cou- 2 Matter of Moore, 81 Hun (N. Y.), gregation of St. Francis, 138 N. Y. 451 ; 329 ; Matter of McLaughlin v. Durr, Jones. Mort. §§ 747-750. 76 N. Y. App. Div. 75. » N. Y. Code Civ. Pro. §§ 1432, 1433 ; » Matter of Gould Coupling Co., 79 Peck v. Ormsby, 55 Hun (N. Y.), 265. 692 ESTATES IN REAL PROPERTY. object of this restriction is thus apparent, — to prevent the mortgaged property from being reached for the mortgage debt by any method other than by foreclosure of the mortgage, and thus indirectly to induce the mortgagee to proceed in the first instance with a foreclosure suit. § 531. Foreclosure of Mortgages — Kinds of Foreclosure. — In the outline of the development of the mortgage from a mere sale on condition subsequent to its present form, it was stated above that the fifth and last stage in that development consisted in the improvements made on the foreclosure of mortgages.^ In working out those improvements, many modifications of foreclosure suits have been produced. It is impossible, in a work of this size, to explain all of such modifications and varia- tions. But the forms of foreclosure, which stand out most prominently among them all, and which present the types most necessary to be understood, may be grouped in four classes. They are : (a) Strict Foreclosure, (b) Foreclosure by Entry, Notice and Lapse of Time, (c) Foreclosure by Advertisement, and (d) Equitable Foreclosure, so called, or foreclosure by sale of the land. These will be discussed in the order named. (a) Strict Foreclosure. § 532. Origin and Purpose. — After the court of equity had created the equity of redemption, as above explained, in favor of the mortgagor, and had subsequently, by analogy to the Statute of Limitations, fixed the time within which the mortgagor could redeem against the mortgagee in possession (at twenty years after the law day), it frequently became apparent that, in miti- gating the mortgagor's hardships, the court had gone too far against the rights of the mortgagee. The natural and logical remedy for the hardship thus inflicted upon the lender was the invention in his favor of a method of restricting the right of redemption. He needed and was given the ability to bar, shut out, or ^^ foreclose " this equitable right of the mortgagor. And, ney, or other person who subscribes it, must indorse thereon a direction to the sherifE, not to levy upon the mortgaged property, or any part thereof. The direction must briefly describe the mortgaged property, and refer to the book and page where the mortgage is recorded. If the execution is not collected out of the other property of the judgment debtor, the sheriff must return it wholly or partly unsatisfied as the case requires." 1 § 437, supra. MORTGAGES — ENFORCING SATISFACTION — FORECLOSURE. 693 in affording iiim this remedy, tlie court of equity first brought into being a strict foreclosure, the decree in wliich requires the mortgagor to exercise his right of redemption within a specified time (usually sis months) or be " forever barred a,nd foreclosed " of that right. ^ § 533. Decree of Strict Foreclosure and its Effects. — The proceedings in the suit having been carried through as required by the local rules or statutes, the judgment or decree of fore- closure in effect vests the absolute title to the land in the com- plainant, or plaintiff, unless the persons entitled to redeem do so within the specified time — usually six months. If they fail so to redeem, the plaintiff will be given a writ of assistance, if needed, or any other proper order or aid of the court, that may be requisite to his acquisition of a perfect title to and complete possession of the property. But, while this bars the defendants of all equity of redemption, it does not satisfy the debt, unless the property is of sufficient value to pay it. And whether or not it is of such value may be determined in an action on the personal obligation.^ It will be noted that this form of foreclosure is practically the converse of a suit to redeem. In the latter form of pro- cedure, the mortgagor or his successor in interest is complain- ant, and the typical form of the decree provides that he mai/ redeem within a designated time, and, if he fail to do so, then his right of redemption shall terminate. In the strict fore- closure, on the other hand, the mortgagee or his successor in interest is the complainant, and the typical form of the decree is that redemption must be made within the specified period, or the right to make it shall cease. In the strict foreclosure, the defendants may usually obtain from the court some exten- sion of the time to redeem, as such time is first decreed. But in the suit to redeem, since the complainant (the mortgagor) is the one who is asking to have the time fixed against himself, such extension of time is much less apt to be granted.^ § 534. "Where Strict Foreclosure is employed This method of foreclosing mortgages is naturally the oldest and most severe ; and is still employed in England, and in some of 1 Clark u. Reyburn, 8 Wall. (75 U. Kent's Com. pp. *180, *181 ; Wiltsie, S.) 318; Lansing v. Goelet, 9 Cow. (N. Mort. Pored. § 826. Y.) 346 ; BoUes v. Duff, 43 N. Y. 469 ; 2 Ibid. ; Green v. Geiger, 45 N. Y. McCarren v. Coogan, 50 N. J. Eq. 268; App. Div. 210 ; Jones, Mort. §§ 1561- Devereanx u. Fairbanks, 52 Vt. 587; 4 1568. 8 Thomas, Mort. §§ 714-716. 694 ESTATES IN REAL PROPERTY. the New England states, such as Massachusetts, Connecticut, and Vermont.^ In the great majority of the American states, it is not favored ; but the equitable foreclosure, so called, which results in a sale of the land, payment of the mortgage debt out of the proceeds, and an ultimate return of any surplus to the mortgagor, is the prevalent method of enforcing the mortgage lien against the land.^ Even in those jurisdictions, however, in which the mortgage is treated as a mere lien on the land, and the equitable fore- closure is most prevalent, there are, in the absence of absolute prohibitory statutes, some circumstances under which a strict foreclosure is still permitted. Thus, where the parties in one state proceed in equity for the strict foreclosure of a mortgage on land situated in another state, and show to the court some fair and just reason why the remedy prayed for should be granted, the court, acting as it does in personam, may grant such remedy.^ Again, and perhaps more commonly than in the instance just mentioned, when, pursuant to the local statute, a foreclosure by sale has occurred, but an encumbrancer of the land whose claim was subordinate to the mortgage foreclosed was not made a party to the suit, and knowing that lie was in- advertently omitted he failed to intervene, and thereby allowed an iimocent purchaser to acquire the property for value at the foreclosure sale in the belief that he was obtaining a valid title, such innocent purchaser may have a strict foreclosure against such outstanding encumbrancer. Thus, even in the state of New York where the statute in form requires that every fore- closure proceeding " must direct the sale of the property mort- gaged, or such part thereof as is sufficient to discharge the mortgage debt, the expenses of the sale, and the costs of the ac- tion," * a strict foreclosure is possible under the conditions above expressed, which may be more fully explained by the following illustration. Supposing that A is mortgagor, B first mortgagee, and C second mortgagee, and that B forecloses his mortgage, properly making all necessary persons parties defendant except C, who is inadvertently omitted, and that C, knowing these facts, 1 Norton v. Palmer, 142 Mass. 433; 24 Kent's Com. p. * 181 ; Wiltsie Palmer's Adm'rs v. Mead, 7 Conn. 149, Mort. Forecl. §§ 828-830. 152; Waters ti. Hubbard, 44 Conn. 340 ; s House v. Lockwood, 40 Hun (N. Paris V. Hulett, 26 Vt. 308 ; Devereaux Y.), 532, discussed in Wiltsie, Mort. V. Fairbanks, 52 Vt. 587 ; Williams Forecl. § 834 ; Eaton «. McCall, 86 Me. V. Hilton, 35 Me. 547 ; Jones, Mort. 346. §§ 1542-1556. 4 N. y. Code Civ. Pro. § 1626. MORTGAGES — ENFORCING SATISFACTION — FORECLOSURE. 695 abstains from revealing his rights, and allows the land to be sold on foreclosure to D, who purchases in good faith and for value, believing that his title will be perfect. C, whose equity has not been foreclosed, may redeem the land from D at any time within twenty years after the beginning of D's possession, by paying to him the principal of such first mortgage, with interest and costs to the date of the payment. If, now, C un- reasonably refuse to make such redemption, or to relinquish his right thereto, D may have a strict foreclosure of the first mortgage, and obtain therein a decree against C,that the latter shall exercise his right of redemption within (say) six months, or be forever barred and foreclosed of all interest in the land.^ (b) Foreclosure by Entry, Notice, and Lapse of Time. § 535. General Nature of this Remedy. — A species of statu- tory strict foreclosure, as it may be fairly called, exists in some of the New England states, such as Massachusetts, Maine, New Hampshire, and Rhode Island.^ The statutes in these states permit a holder of a mortgage, by following a pre- scribed course of procedure after the law day, to work out by lapse of time a foreclosure, without the necessity for applying to any court. The three stages or steps generally required for this procedure are entry upon the land, some form of notice to the mortgagor or his successors in interest of the purpose of the entry, and subsequent retention of the land for the pre- scribed period. Each of these steps is to be briefly explained. § 536. Entry. — Pursuant to the statute, the holder of the mortgage may make peaceable and open entry upon the land in the presence of witnesses, who thereupon make a certificate of the fact and file it with the county clerk. It is not necessary, though of course it generally results, that the other possessors of the land shall be ousted by such entry. It is sufiicient that the entry is peaceable and open.^ 1 Dicta iu Moulton v. Cornish, 138 ' 1 Stim. Amer. Stat. L. § 1921 ; Rev. N. Y. 133, 141, aud Denton !■. Ontario L. Mass. (1902) ch. 187, § 1 ; Pub. Stat. Co. Nat. Bk., ISO N. Y. 126, 134. And N. H. (1901) ch. 139, § 14; Gen. Laws see BoUes v. Duff, 43 N. Y. 469 ; Breed R. I. (1896) ch. 207, §3 ; Boyd v. Shaw, u. Ruoff, 173 N.Y. 340, 346; McCarren 14 Me. 58; Thompson v. Kenyon, 100 V. Coogan, .50 N. J. Eq. 268 ; Illinois Mass. 108 ; Thompson v. Ela, 58 N. H. Starch Co. v. Ottawa Hydraulic Co., 490 ; Daniels v. Mowry, 1 R. I. 151 ; 125 111. 237. Jones, Mort. §§ 1246-1257. 2 Jones, Mort. § 1238; 1 Stim. Amer. Stat. L. § 1921. 696 ESTATES IN REAL PROPERTY. In Maine, Massachusetts and New Hampshire, a writ of entry, and in Rhode Island an ejectment suit, may be main- tained, when necessary or preferable, for acquiring possession. And in such a suit the amount due on the mortgage may be ascertained and declared.^ §537. Notice — By Certificate. — In most of these states, the statute requires, when the entry has been without any judicial proceeding, that those whose interests are being barred by this procedure shall be notified of its being carried on ; and prescribes the manner in which such notice shall be given. This is ordinarily by the certificate of the witnesses, duly made and filed as required by the statute.^ § 538. Lapse of Time. — In all of these jurisdictions except New Hampshire, the possession under such procedure, if properly continued for tliree years, results in a statutory fore- closure and bar to all the interest and rights of the mortgagor and those parties whose ownerships or claims are subordinate to the mortgage.* In New Hampshire, the time prescribed for such possession is only one year; but it is there required that at least six months before foreclosure is complete, publication of the entry and holding by the mortgagee against all parties in interest shall be duly made as prescribed by the statute.* The ordinary effect of this form of foreclosure is, like strict foreclosure in equity, not only to bar the equity of redemption, but also to discharge the debt to the extent of the value of the land.^ (c) Foreclosure hy Advertisement. § 539. WTiat Mortgages may be so foreclosed. — The custom of inserting in a mortgage a clause, giving to the mortgagee a power to sell the property after the law day, is almost as old as the law of mortgages ; and has come to be very prevalent in both England and the United States. A mortgage, which contains such a clause, and is held as security for a liquidated amount of money, and has been duly recorded, if default in payment be made, may be foreclosed by advertisement. Thus, there appear 1 Jones, Mort. §§ 1276-1316 ; 1 » Ibid. Stim. Amer. Stat. L. § 192.5; Ladd v. •■ N. H. Pub. Stat. (1901) ch. 139; Putnam, 79 Me. 568. Smith v. Packard, 19 N. H. 575 ; Thomp- 2 Ibid. ; Furnas v. Durgin, 119 Mass. son «. Ela, 58 N. H. 490. 500; Jones, Mort. §§ 1259-1263; 2 6 lyd. Wash. R. P. (6th ed.) p. 244, p.* 605. MORTGAGES — ENFORCING SATISFACTION — FORECLOSURE. 697 four essentials to such a foreclosure ; namely, a power of sale in the mortgage, liquidation of the amount secured, default in payment, and due and proper record of the document.^ The existence of a proper record is essential, in order that the pur- chaser at the sale may have due notice of the terms of the mortgage.^ And the requirement that the amount of the debt shall be liquidated is apparent as a requisite, when it is under- stood that this form of foreclosure requires no procedure in court, and is simply an act by the creditor alone for the recovery of an amount claimed by him to be due — tliat amount must be fixed so tliat his claim may be definite and certain.^ § 540. Who may thus foreclose. — It is a general principle applicable to powers over real property that they can not be delegated. They are ordinarily personal and confidential, and cany with them certain trust obligations to the donees. There has, therefore, been much judicial controversy over the question of the passing of a power of sale in a mortgage to the as- signee of the mortgage ; or, in case of the death of its owner, to his executors or administrators. The weight of judicial opinion and determination has been in favor of sustaining the assignability of such powers as these, since they are manifestly given and received by the parties as part of the security for the mortgage debt. And, in most of the states of this country, it is now settled by positive legislation that a power of sale in a mortgage is a part of the security held by the mortgagee, and passes by assignment, descent, or other devolution of the mort- gage itself. Therefore, it may be stated generally that any one who owns the mortgage owns and may execute the power of sale, which became a part of the mortgage security at its inception.* § 541. Method of Foreclosing by Advertisement. — A mort- gage containing a clause which in terms authorizes tlie mort- gagee to sell the land after default by the mortgagor could be foreclosed at common law simply by sale by the mortgagee, whether such sale were public or private, in such manner as was reasonably fair to all the interested parties. But the preparation for such sale and the manner in which it shall be conducted, in recent times, have come to be regulated by exact and, in some cases, minute statutory requirements. These 1 Thomas, Mort. §§ 1 103, 1104. » Lewis v. Doane, 141 N. Y. 302, 309. "- Ibid.; Wilson v. Troup, 2 Cow. * § 493, supra i Thomas, Mort. (N. Y.) 195. § 1105. 698 ESTATES IN REAL PROPERTY. vary materially in the different states ; and the statute of each locality is required to be minutely studied and literally followed, in order properly to foreclose a mortgage by this so-called metliod of advertisement.^ Without attempting any complete or minute statement as to this method of foreclosure, it may be said generally that the statutes require a considerable time of advertisement before the sale (as, for example, in New York, in a newspaper of the county where the land is, once a week for twelve weeks), notice filed with the county clerk and duly posted iu designated conspicuous places, and personal notice served on the mortgagor or other owner of the land.^ The statutes are full and complete in their provisions for adjournments of the sale and methods of giving notice of the same. They ordinarily require that the sale shall be at public auction.^ In many jurisdictions, no deed to the purchaser is needed ; but the evidence of his title is afforded by affidavits, made as required by the statute and properly filed and indexed by the clerk of the county in which the land is situated.* The money received from the property is applied, first to the payment of the mortgage and interest and statutory costs and allowances, and the surplus, if any, may be reached by the mortgagor or present owner of the land, subject, however, to the rights of subordinate or intervening encumbrancers who may require their claims to be satisfied therefrom after said payment on account of the foreclosed mortgage.^ It is to be repeated and emphasized that these statutory procedures are to be strictly and accurately followed, or the purchasers at the sale do not obtain valid titles. There being no judgment, but the procedure being entirely in pais, irregularities or errors, which would be cured by the judgment in judicial foreclosure, readily become material and even fatal to the title, when they exist in foreclosure by advertisement.^ 1 N.Y. Code Civ. Pro. §§2387-2409; * N. Y. Code Civ. §§ 2400, 2396- 1 Stim. Amer. Stat. L. § 1924; Wiltsie, 2398; 1 Stim. Amer Stat. L. 1924 (e). Mort. Forecl. § 768. See Cranston v. Crane, 97 Mass. 459 ; 2 N. Y. Code Civ. Pro. § 2388 ; Webb Munn v. Burges, 70 111 604 ; Tripp r. i: HaefEer, 53 Md. 187 ; Bragdon v. Ide, 3 R. I. 51 ; Wiltsie, Mort. Foretl. Hatch, 77 Me. 433; Wiltsie, Mort. § 824. Forecl. §§ 773-792. 6 u. Y. Code Civ. Pro. §§ 2406-2408 ; 3 N. Y. Code Civ. Pro. § 2393; Cope K.Wheeler, 41 N. Y. 303; Eey- Wiltsie, Mort. Forecl. § 795. See nolds v. Hennessy, 15 R. T. 215 ; New- Mowry v. Sanborn, 68 N. Y. 153 ; GrifSn hall r. Lynn Sav. Bk., 101 Mass. 428 ; V. Marine Co., 52 111. 130. Thomas, Mort. §§ 1155-U57. " See WUtsie, Mort. Forecl. §§ 768- MORTGAGES — ENFORCING SATISFACTION — FORECLOSURE. 699 (d) Equitable Foreclosure, or Foreclosure by Sale. § ^42. General Nature of such Foreclosure. — The remedy On the mortgage, which has come to be the favorite and most common procedure in this country, results in a sale of the mortgaged property, pursuant to a judgment or decree of the court, by an officer designated by the court for that purpose, and in the payment of the mortgage debt out of the proceeds ; the surplus, if any, being handed over to the mortgagor or made available, before being so handed over, for the satisfaction of subordinate liens. Thus the mortgagee is paid in full, if the land sell for a sufficient sum ; and yet the mortgagor may have some of his property restored to him in the form of surplus. This method of foreclosure is logically and properly described as equitable. § 543. ■When Right thus to foreclose exists. '■ — The holder of the mortgage may foreclose it in this manner for any part of the debt, whether principal or interest, that is due and remains unpaid. Thus, although the law day has not arrived, yet, if pursuant to the terms of the mortgage an instalment of interest be due, a foreclosure for this amount may be had, and as much of the land may be sold as is necessary for its payment. So, if the debt become due in instalments, a separate foreclosure may be conducted for the payment of each instalment as it becomes due.^ When the foreclosure is for less than the entire mortgage debt, principal and interest, if the land can be sold in parcels, it will ordinarily be required by the court that so much of it only shall be sold as is needed to satisfy the amount then due.^ But if it be found by the court that it is best to sell the property as a whole, this may be done ; and either the entire mortgage may be paid off, with suitable rebate of interest, or the surplus at the time invested under the order of the court and held subject to the payment of future instalments as they shall be- come due. In the most ordinary form of mortgage, of course, all the debt becomes due at the same time ; and this method of foreclosure is usually for the recovery of the whole amount of the mortgage, principal, interest, expenses, and costs. 825; Jones, Mort. §§ 1723-1763; Johnson, 44 Mich. 491. See Eeichert Thomas, Mort. §§ 1099-1159. v. Stilwell, 172 N. Y. 83; Metropolitan 1 Lansing v. Capron, 1 Johns. Ch. Bk. v. St. Louis Dispatch Co., 149 (N. Y.) 617; American Life & F. Ins. U. S. 436. Co. II. Ryerson, 6 N. J. Eq. 9 ; Allen v. « N. Y. Codef Civ. Pro. §§ 1634, 1636, Wood, 31 N. J. Eq. 103; Bridgeman ». 1637; Thomas, Mort. §§ 814, 815. 700 ESTATES IN REAL PROPERTY. § 544. Ascertaining Parties to Foreclosure Suit. — One of the most important points of inquiry connected with the foreclosure of a mortgage is concerned with the ascertainment of the necessary and proper parties to the action. Speaicing generally, it may be said that all those persons are necessary parties who have interests, rights, liens, or claims in the property subordi- nate to the mortgage. For these are the parties whose rights and claims are to be shut out and foreclosed by the action.^ Ill practice, the method of ascertaining them is by the continu- ation of the searches, which are ordinarily made in the process of examining title at the time of the making of the mortgage. By having these properly continued down to the date of begin- ning foreclosure, all the transfers of the land and all the liens or encumbrances which have been imposed thereon, after the mortgage was delivered, are fully disclosed. § 545. Parties Plaintiff, — The plaintiff in the action is com- monly, of course, the mortgagee. When there are two or more mortgagees, they are ordinarily joint owners, and should unite as plaintiffs in the action. But one or more of them, less than all, may maintain the action.^ When there has been one or more assignments of the mortgage, the owner thereof at the time of foreclosure is the proper party plaintiff; and it is proper and often advisable, especially when the assignment is as security for a debt, for him to join the assignor or assignors of the mortgage through whom his title to it has come.^ In the code states, it is uniformly required by statute that the party in interest shall sue ; and such party is, of course, the owner or owners of the mortgage at the time the foreclosure is commenced.* , § 546. Parties Defendant. — In the practice under most of the modern codes in this country, there is a twofold object in the equitable foreclosure of a mortgage ; namely, to sell the land free and clear of all encumbrances, or at least of all en- cumbrances subordinate to the mortgage, and to obtain in the same action a money judgment, commonly designated a defi- 1 §§ 545-548, !«/'■«• 'Thomas, Mort. § 718; Wells v. 2 Paton V. Murray, 6 Paige (N. Y.), Wells, 53 Vt. 1 ; Consolidated Nat. Bk. 474; Sandford v. Bulkley, 30 Conn. of San Diego v. Hayes, 112 Cal. 75; 344. But, when less than all the eo- Merrell v. Bishoff, 3 N. Y. App. Div. owners are plaintiffs, the others should 361. be made defendants. Thomas, Mort. * N. Y. Code Ciy. Pro. § 449. See, § 720 ; Wiltsie, Mort. Forecl. §§ 70, 78 ; as to parties plaintiff generally, Wiltsie, N. Y. Code Civ. Pro. §§ 446, 448. Mort. Forecl. §§ 72, 89-114. MORTGAGES — ENFORCING SATISFACTION — FORECLOSURE. 701 ciency judgment, for the amount, if any, due on the mortgage debt over and above the amount realized on the sale of the land. For the accomplishment of the first of these objects, it is requisite tliat all persons having interests, liens, or claiius in the property subordinate to the mortgage be made parties ; and, for the accomplishment of the second purpose, it is proper to make parties, also, all those persons who are personally obli- gated to pay the mortgage debt. It is also possible, in some foreclosure suits, and often expedient, to join as parties per- sons who have claims upon the land superior to that of the mortgage which is being foreclosed. The result of all these rules and requirements is the natural division of all the parties defendant in a foreclosure suit into two classes — necessary parties defendant, and proper parties defendant. A word as to each of these. § 547. Necessary Parties Defendant. — It is clear from the above statements that the necessary parties defendant are all those persons who have any interests, liens, or claims in the property, inferior and subordinate to the mortgage. That is, those whose rights or interests entitle them to redeem from the mortgage should be cut off and extinguished in the process of its foreclosure.^ Such are the mortgagor, if he still remain the owner of the land subject to the mortgage, and his wife, if she joined in the making of the mortgage, or if for any other reason the mortgagee's lien or interest is superior to her right of dower.^ Such, also, are inferior or subsequent mortgagees, judgment creditors, mechanics' lienors, and subsequent pur- chasers and lessees of the land.^ When the laud has been sold by the mortgagor after the making of tlie mortgage, he is no longer a necessary party ; and, if his wife united in the deed with him, or otherwise relinquished her entire dower right, she is no longer needed as a party.* When the land is owned subject to the mortgage by some persons having a present interest, and others having future or 1 Wiltsie, Mort. Forecl. § 116 15 Pick. (Mass.) 126; Thomas, Mort. '^ TerreU v. Allison, 21 "Wall. (88 § 731 ; WQtsie, Mort. Forecl. §§ 135, U. S.) 289, 292; Raynor r. Selmes, 52 136. N. Y. 579; Bigelow v. Bush, 6 Paige » Brainard w. Cooper, lOK Y. 356; (N. Y.), 343 ; Kirsheedy v. Union Dime Moulton v. Cornish, 138 N. Y. 133 ; Van Sav. Inst., 118 N. Y. 358; Nelson v. Hattan u. SchoU, 1 N. Y. Misc. 32; Brown, 144 N. Y. 384, 389 ; Andrews v. Goodman v. White, 26 Coun. 317 ; Har- Stelle, 22 N. J. Eq. 478 ; Watts v. Ju- ris v. Hooper, 50 Md. 537 ; Wiltsie, lien, 122 Ind. 124 ; Mills v. Van Voor- Mort. Forecl. ch. vii. hies, 20 N. Y. 412; Swan ». Wiswall, * Last preceding note but one. 702 ESTATES IN REAL PROPEETT. contingent interests, the former are necessary parties, and those of the latter who have the first vested estate of inheritance, and all intermediate owners if any ; but beyond this it is not usually necessary to go in regard to the future interests. Thus, if subordinate to the mortgage the land be owned by A for life, then to go to B and his heirs, but if B die with- out children, then over to the issue of C, A and B are the only ones of these persons who are necessary parties defendant, since they two represent the present existing estate and the first vested estate of inheritance. This is the settled rule in most of the states as to parties who represent future interests.^ When the land owned subject to the mortgage is held in trust, the trustee as such is a necessary party defendant ; and so also are the cestuis que trustent, who are in being and ascer- tainable, and when they are not so numerous as to induce the court to omit them in order to make a foreclosure reasonably practicable.^ § 548. Proper Parties Defendant. — It is also apparent, from the last preceding paragraph but one, that all those persons who are obligated to pay the mortgage debt, such, for example, as the mortgagor who gave also a bond or otlier personal promise to pay the debt, though he may have sold the land after giving the mortgage, and all persons who have assumed the mortgage debt, and bound themselves to pay the same, are proper parties defendant, although they may not be needed as defendants for the purpose of divesting them of any interest in the land. Thus, if A were a mortgagor who had also given a bond for the debt, and he had sold the land to B who assumed the mortgage, and then B had sold to C who also assumed the mortgage, and C had sold to D who did likewise, A, B, and C, being personally liable, would be proper parties defendant. Although they have no interest in the land to be foreclosed, yet if it fail to sell for enough to pay the debt, in many of the states, such, for example, as New York, a money judgment may be entered against them in the same action 1 Lloyd V. Johnson, 9 Ves. 37 ; Clark must be adequately protected by the )'. Reyburn, 8 Wall. (75 U. S.) 318; judgment or decree. Monarque v. Eagle Fire Ins. Co. v. Camraet, 2 Edw. Monarque, 80 N. Y. 320. Ch. (N. Y.) 127 ; Brevoort i'. Brevoort, = First Nat. Bk. v. Shuler, 153 N. Y. 70N. Y. 136; Lahey w. Kortright, 132 163; McGuckin v. Milbank, 83 Hun N. Y. 450, 458; Iowa L. & T. Co. v. (N. Y.), 473, 475; Townshend «. From- King, 58 Iowa, 598 ; Jones, Mort. § 1401 ; mer, 125 N. Y. 44*6 ; Thomas, Mort. Wiltsie, Mort. Forecl. § 150. But the §§ 735-738; Wiltsie, Mort. Forecl. interests of contingent, future owners § 157. MORTGAGES — ENFORCING SATISFACTION — FORECLOSLTRB. 703 for the deficiency. They are, therefore, proper parties in such jurisdictions for the purpose of obtaining such judgments.^ Claimants hostile or superior to the mortgage are not ordinarily proper parties. But, in the foreclosure of a second or other subordinate mortgage, the first mortgagee and other superior lienors are proper, though not necessary, parties de- fendant. Even when such a superior party's claim is not yet due, he may be required, in such an action, to account and show the exact amount of his claim, in order to give definite- ness to the sale on foreclosure, though the sale must be subject to that claim.2 When the debt of the prior lienor is not yet due, he can not be barred or foreclosed by proceeding under a subsequent mortgage, unless he elects to take part in such pro- ceeding and allows it to foreclose his claim, as well as that of the inferior mortgagee. And if he elect to act in this manner, his prior claim is to be first paid out of the moneys received as the result of the foreclosure sale. When, moreover, his superior lien is due and payable at the time of the foreclosure of the inferior mortgage, he may be made a party for the pur- pose of compelling a foreclosure of his lien at the same time. This is, in effect, both a foreclosure of the inferior mortgage and a suit to redeem from the superior oiie.^ § 549. Commencing the Action to foreclose. — Taking as a type the procedure of an ordinary code state, such, for example, as New York, the action is commenced by the service of a summons on at least one of the parties defendant.* The papers to be first prepared for such an actfon are this summons, a complaint, and, ordinarily at about the same time, a notice of the pendency of the action. Bach of these requires a brief separate discussion. 1 § 522, supra ; N. Y. Code Civ. Pro. * It would be futile to attempt, in a § 1627 ; Thome v. Newby, 59 How. work of this size, even to give a sam- Pr. (N. Y.) 120; Jarman v. Wiswall, mary of the numerous ramifications of 24 N. J. Eq. 267 ; Wiltsie, Mort. Forecl. foreclosure suits in the difEereut juris- ohs. X, xl. dictions. Any useful, feasible outline of 2 Hagar v. Walker, 14 How. (55 such an action must, therefore, be based tJ. S.) 29 ; Nelson v. Brown, 144 N. Y. on the procedure of some one important 384 ; Smith i^. Roberts, 91 N. Y. 470 ; state. And so the foreclosure suit in Strobe v. Downer, 13 Wis. 10; Wiltsie, New York is taken as the type. The Mort. Forecl. § 190. New York statutes, based on and im- * Jacobs V. Mickle, 144 N. Y. 237 ; proving somewhat upon the old method Fletcher v. Barber, 82 Hun (N. Y.), 405 ; in equity, are chiefly in N. Y. Code Civ. Ruyter y. Eeid, 121 N. Y. 498; Kay- Pro. §§ 1626-1637. mond V. Holborn, 23 Wis. 57 ; Thomas, Mort. § 741. 704 ESTATES IN REAL PROPERTY. § 550. Notice of Pendency of Action. — The equitable doc- trine of Us pendens was above explained, as a principle whereby the existence of a suit in equity affecting the title to or posses- sion of a piece of land is notice to all purchasers and encum- brancers of the property after such suit is commenced .^ It is now uniformly required by statute that, in order to the exist- ence of such notice, a formal paper shall be drawn up, filed, and properly indexed, stating the existence and purpose of the action.^ This paper is designated the notice of the pendency of the action. In a foreclosure suit, its requisites are that it shall state the purpose of the action, name and describe the parties thereto, and carefully describe the property affected, and that it shall also state the date of the mortgage which is being foreclosed, the names of the parties to the mortgage, and the time and place of its record.^ This notice must be filed with the clerks of the county or counties in which the land is situated, and must be properly indexed, in a book kept for that purpose, against such names of the parties to the action as are indicated by the plaintiff for that purpose. These are ordinarily all the necessary parties defendant. It is required in New York that this notice shall be filed at least twenty days before application for judgment in the action.* As a matter of right practice, it is ordinarily filed with the com- plaint at the very beginning of the action ; and its filing gives no notice when no complaint is filed.^ And the requirement is that a summons shall be served on at least one of the defend- ants within sixty days after such filing. In New York, a failure thus to serve a summons within such time makes the filing of the notice of the pendency of the action nugatory ; and a new one must thereafter be filed in order to make it proper notice to purchasers or encumbrancers of the property, pending the action.^ § 551. The Summons — Its Service — Appearances. — In order that any suit in law or equity may be pi'operly con- ducted, the court must have jurisdiction of the subject-matter and the parties. In most of the states, jurisdiction af a 1 § 454, supra. * N. Y. Code Civ. Pro. §§ 1670-1672 ; 2 N. Y. Code Civ. Pro. §§ 1670, 1631 ; Thomas, Mort. §§ 759, 760. Pom. Eq. Jur. § 640 ; Smith v. Clark, ^ Albro v. Blume, 5 N. Y. App. Div. 144 U, S. 509. Hi.story of the doctrine 309; Thomas, Mort. § 761. in New York, Wiltsie, Mort. Forecl. « N. Y. Code Civ. Pro. § 1670; § 306. Cohen o. Ratkowski, 43 N. Y. App. 8 Ibid. Div. 196. MORTGAGES — ENFORCING SATISFACTION — FOBECLOSURE. 705 mortgage foreclosure belongs only to courts of record sitting in the county in which the land is situated ; or, if it be situ- ated in more than one county, sitting in either one of them.^ This is the outcome of positive statutes. For, since equity acts only in personam, in the absence of such statutes a fore- closure suit could be properly conducted in a court of equity, however remote from the land, which had complete jurisdic- tion of all the parties.^ The jurisdiction of the court over the party or parties plain- tiff always exists, of course, by the commencement of the action in that court. The obtaining of the court's jurisdiction over the parties defendant is the most crucial and important part of the foreclosure suit. For, if any necessary party de- fendant be not properly and completely brought within the court's jurisdiction in the action, such action, as to him, is a nullity ; his rights are unaffected by it, and the purchaser at the foreclosure sale obtains an imperfect title in so far as it is affected by those rights.^ In the method of code practice with which we are dealing, the summons is the process of the court used for bringing the parties defendant within its jurisdic- tion. This is accomplished, either by personal service of the summons upon the party, or by one of the forms of its sub- stituted service, — so called, — or by the party's voluntary appearance in the action and his service (either personally or through liis attorney) of a written notice of appearance upon the attorney for the plaintiff.* The personal service of the summons consists in the handing of it to the party within the jurisdiction of the court ; i. e., ordinarily within the state in which the land is situated.^ The substituted service, which is always pursuant to an order of the court obtained for tliat purpose, consists either, (a) in the publication of the summons (usually for six successive weeks) in one or more newspapers designated by the court, sucli publication being designed to give due notice of the actions to parties who are not within the state, or (b) in a personal service of the summons outside 1 N. Y. Code Civ. § 982 ; Thomas, ton v. Cornish, 138 N. Y. 1.33 ; Baynor Mort. §§ 777,778; Mead v. Brockner, u. Selmes, 52 N. Y. 579 ; Watts «. Julian, 82 N. Y. App. Div. 480. 122 Ind. 124; Wiltsie, Mort. Forecl. 2 Mead v. Brockner, 82 N. Y. App. §§ 324-327. Div. 480, and cases there cited ; Eaton * N. Y. Code Civ. Pro. §§ 416, 424 ; V. McCall, 86 Me. 346 ; 1 Perry on Thomas, Mort. §§ 779-785. Trusts, § 71. 6 Ibid. 8 N. Y. Code Civ. Pro. § 1 632 ; Moul- 45 706 ESTATES IN REAL PROPERTY. of the state, or (c) in a proper mailing of the summons, ad- dressed to a party within the state, who can not be found by the exercise of due diligence, and also a proper fastening of a copy of the summons upon the door or other conspicuous object at his last known place of residence.^ The most scrupulous care of the attorney for the plaintiff is required, to see to it that all of the parties defendant are properly and completely brought within the jurisdiction of the court by some of these methods. They are then said to have their " day in court ; " and, if they fail to redeem the property from the mortgage debt before the foreclosure is complete, all of them who are necessary parties defendant are, by the proper completion of the suit and sale of the land, forever barred and foreclosed of their right to redeem, unless the statute prescribes some definite period for the continuation of such right.^ § 552. The Complaint. — The complaint is required to con- tain a plain and concise statement of all the facts, without unnecessary repetition. This includes a description of the mortgage, its date, the time and place of its record, and the statement of the fact that default has been made in its pay- ment ; also a description of the property covered by the mort- gage, and a general description of the parties defendant, whether or not any of them are infants, lunatics, or persons otherwise incapacitated, and a summary of their interests in the prop- erty. It should also state whether or not any other action has been brought for the payment of the mortgage debt, and if so, the amount of recovery, if any, as the result of such action.^ The prayer for relief is, in substance, that the mortgage shall be foreclosed and the property sold by the sheriff or a referee to be named by the court, and that the plaintiff be paid the amount of his claim out of the proceeds. There should also be a prayer for a deficiency judgment against the parties per- sonally liable for the payment of the debt, in case the land fail to sell for enough to satisfy the same.* The complaint is to be duly verified and served upon all of the parties defendant, who are personally liable to pay the mortgage debt, and on the attorneys for all other parties who 1 N. Y. Code Civ. Pro. §§ 435-444 ; Thomas, Mort. §§ 790-792 ; Wiltsie, Wiltsie, Mort. Forecl. §§ 243-245, 251, Mort. Forecl. §§ 274-279. 252. * Thomas, Mort. § 793; Wiltsie, 2 § 488, supra. Mort. Forecl. §§ 292, 293. 8 N. Y. Code Civ. Pro. §§ 481, 1629 ; MORTGAGES — ENFORCING SATISFACTION — FORECLOSURE. 707 properly appear in the action through such attorneys and demand copies of the complaint. It is proper, although not necessary under the code practice in most states, to serve the complaint on all the other parties ; but it is sufficient, and generally the practice, to serve with the summons simply a notice of the object of the action and of no personal claim, on those parties who are not obligated for the payment of the debt. This notice is a brief description of the mortgage and of the property covered thereby, and a statement that the pur- pose of the action is to foreclose tlie mortgage, and that no personal claim is made on the defendant so served. ^ § 553. Requirements as to Incapacitated Parties. — If the plaintiff, or any of the plaintiffs when there are more than one, be under any disability to sue, such as that arising from infancy or insanity, guardians ad litem must be appointed for him or them, in the manner prescribed by the statutes, at the beginning of the action. For any defendants who are so in- capacitated, guardians ad litem are ordinarily obtained, either on their own application or on that of their parents, guardians, or next friends ; but, on failure of these persons properly to have such guardians appointed within the time prescribed by the statutes (ordinarily twenty days after the service of the summons), the plaintiff, in order to make his proceeding com- plete, must himself apply to the court to have such guardians appointed to act for the incapacitated defendants and protect their interests in the suit.^ § 554. Proceedings after Above-Described Steps and before Judgment. — Ordinarily, there is no contest in a foreclosure suit. The guardians for incapacitated defendants file formal answers, submitting the interests of their wards to the care of the court. Other parties frequently file notices of appear- ance, and demand that all subsequent papers and notices of subsequent steps shall be duly served upon them or upon their attorneys. But there are rarely any answers which raise issues to be tried by the court. If answers be filed raising such issues, they are to be tried and determined ordi- narily on the equity side of the court, that is, by one judge 1 N. Y. Code CiT. Pro. § 423. If the the plaintiff costa. Thomas, Mort, summons be properly served, failure to § 796 ; Wiltsie, Mort. Forecl. §§ 240, serve this notice does not invalidate the 241. proceedings, even vfhen no complaint is ^ jj_ y. Code Civ. Pro. §§ 469-472, served. But its due service may save 428 ; Wiltsie, Mort. Forecl. §§ 248-252. 708 ESTATES IN REAL PROPERTY. sitting without a jury. When such determination has been made in favor of the plaintiff, he is then entitled to judgment accordingly. When, on the other hand, the usual case exists and no issue has been raised by the pleadings and the time of the defendants to raise them has expired, — this time being ordinarily twenty days after completion of due service of the summons, — the plaintiff is entitled to proceed to obtain judg- ment.i The first step in this procedure consists of the so-called reference to compute. § 555. Reference to compute the Amount due — Reference to take Evidence. — Being entitled to judgment because of the failure of the defendants to raise any issue, the plaintiff's attorney, on due notice — ordinarily about five days — to all the parties who have duly appeared in the action, applies to the court for the appointment of a referee, to be named by the court, to compute the amount due on the mortgage. In making this application, he presents to the court an order prepared for the court's signature, and also an affidavit, duly verified by the attorney himself, which is often designated the affidavit of regularity, although under the code practice it does not need to be as complete and full as the technical " affidavit of regu- larity " required by the old equity practice in foreclosure. The affidavit thus presented must show to the court that all of the defendants have been duly served with the summons, or have duly appeared in the action ; it must state whether or not the whole amount of the mortgage debt is due and payable, and, if not, how much is so due ; it must inform the court whether or not any of the parties to the action are infants or absentees, and also state that the complaint and notice of pendency of tlie action have been duly filed as required by the statutes. He who presents it must also furnish competent and complete evidence (by affidavit) as to how each of the parties defendant has come or been brought within the jurisdiction of the court, that the time to answer and thereby raise issues has expired and that no issue has been raised which requires to be tried by the court.^ § 556. Order to compute. — Acting upon the evidence thus supplied, and on proof being given that the parties who have ap- peared have had due notice of the application, the court makes the "order to compute" appointing therein a referee for that 1 Wiltsie, Mort. Forecl. § 438; 2 wiltsie, Mort. Forecl. §§ 441,442; Thomas, Mort. §§ 797-800. Thomas, Mort. § 801. MORTGAGES — ENFORCING SATISFACTION — FORECLOSURE. 709 purpose. This order requires the referee so named, after due notice to the parties who have appeared, to receive evidence (which the plaintiff's attorney is to supply) and compute the amount of principal and interest due on the mortgage. When any of the parties defendant are infants or absentees, the order also requires the referee to take evidence of the facts and circumstances set forth in the complaint, and to examine the plaintiff as to whether or not any payment, and if so how much, has been made ou the mortgage debt. Tlie referee, having received such evidence, makes a report to the court of the conclusions arrived at by him ; and, if all of the mortgage debt be not due, he is ordinarily required also to report whether or not separate parcels of the land should be sold and in what order.^ § 557. Judgment. — On the coming in of the report of the referee to compute, and its proper filing, and due notice (ordi- narily eight days) to the parties defendant who have appeared, the plaintiff's applies for judgment of foreclosure and sale. The judgment thus obtained should contain a description of the property covered by the mortgage, an order that such property be sold by the sheriff, or by a referee named by the court, a statement that the plaintiff or any other party may become a purchaser at the sale, that the sheriff or referee shall execute a_proper deed to the purchaser at the sale, and that out of the purchase-money he shall pay to the plaintiff the amount found to be due on the mortgage, together with costs and expenses to be taxed, or, if the property bring not enough to pay all these, that the amount realized shall be applied for this purpose, and that the purchaser at the foreclosure sale shall be duly let into possession of the property.^ It should also contain directions for the disposition of surplus moneys, if any, as by paying thera to the county treasurer, and for a money judgment in favor of the plaintiff against the defendants personally liable for the deficiency in case the property fail to sell for enough to pay the mortgage debt. In order to obtain this last described part of the judgment, i. e., " the deficiency judgment," it must have been prayed for specifically in the 1 N. Y. General Rules of Practice, 2 N. T. Code Civ. Pro. §§ 1626,1636; No. 60; N. Y. Code Civ. Pro. §§ 1636, N. Y. General Rules of Practice, No. 1637; Wiltsie, Mort. Forecl. §§443- 61; Wiltsie, Mort. Forecl. §§460-464; 459; Hun's N. Y. Court Rules (1900), Thomas, Mort. § 820. pp. 330-348. 710 ESTATES IN REAL PROPERTY. complaint, and there must be, in addition to the mortgage, a bond, note, or other promise, on which the parties against whom it is desired to enforce the judgment are personally obligated.^ §558. Sale. — Acting as required by the judgment, the sheriff, or the referee therein designated, advertises the property for sale as required by the statute (in New York, once a week for six successive weeks, in a newspaper designated by the court; or, in counties where a daily,' semi-weekly, or tri-weekly newspaper is published, twice a week for three successive weeks), sells it at public auction to the highest bidder, and, after a reasonable time for the purchaser to examine the title, delivers to him a deed of the property, receives the purchase- money, pays out of it, if sufficient, the amount due to the plaintiff as designated by the judgment, and disposes of the residue, if any, as also required by the judgment.^ Applica- tions for any surplus moneys, by the mortgagor, and any other owners or subordinate lienors, are provided for by the codes ; and the proceedings thereon are commonly known as " surplus proceedings." ^ § 559. Report of Sale. — The referee, who thus sells the property and disposes of the purchase-money, should make and file a full report of his proceedings as they occurred in the order above outlined. This report is advisable, and should, if possible, be incorporated in the judgment roll sub- sequently to be made up by the attorney for the plaintiff. But it is generally held that the proceeding is not defective, and the title of the purchaser is not vitiated, by the fact that such report is never made or filed.* § 560. Judgment Roll. — After all the proceedings above outlined have been duly taken, and the papers required to be employed have been duly filed, as should be done, the attorney for the plaintiff should go to the clerk's office in which they are filed, obtain them all, arrange them in chronological order, fasten them together and have them filed away as con- 1 Wiltsie, Mort. Forecl. § 204 ; § 458, " N. Y. Code Cir. Pro. § 1633 ; N. Y. supra. General Rules of Practice, No. 64 2 N. Y. Code Civ. Pro. §§ 1434, Hun's N. Y. Court Rules (1900), pp 1678 ; N. Y. General Rules o£ Practice, 370-377 ; Thomas, Mort. §§ 1044-1061 No. 62, see also rule No. 64, as to filing Felts v. Martin, 20 N. Y. App. Div. 60, 01- recording the mortgage before the * Farrell v. Noel, 17 N. Y. App. deed is delivered, when this has not Div. 319 ; Wiltsie, Mort. Forecl. §§ 523- becn already done ; Hun's N. Y. Court 527 ; Thomas, Mort. § 930. Rules (1900), pp. 349-369. MORTGAGES — ENFORCING SATISFACTION — FORECLOSURE. 711 stituting the judgment roll in the action. Scrupulous care is required in preparing this judgment roll, to incorporate in the proper place in it proof of due service of the summons upon all the parties defendant, or the voluntary appearance and service of notice of appearance by such of them as were not so served. This is the jurisdictional element in the case, on which the title of the purchaser of the property vitally depends.^ § 561. Muaiments of Purchaser's Title. — After a mortgage has been foreclosed as above described, it should not be can- celled of record. The mortgage thus on record, the filed notice of the pendency of the action for its foreclosure and the deed by the referee appointed by the judgment constitute the links in the purchaser's chain of title, by wliich it is shown to have passed from the mortgagor to such purchaser. The purchaser has obtained by these links or steps the same title which he would have acquired if the mortgagor, at the time of making such mortgage, had deeded all of his interest in the property to such purchaser.^ § 562. Redemption after Foreclosure. — In most jurisdictions, as is true in New York, all right to redeem the property from the mortgage terminates when the foreclosure sale is made complete.^ But, in a few jurisdictions, the mortgagor and those who have interests subordinate to the mortgage are given by statute prescribed periods for redeeming after fore- closure. And in such states the purchaser usually obtains only a certificate of purchase, and not a deed of conveyance, until the time to redeem has expired.* 1 § 551, supra. Pa. St. 152 ; SteYensu, Theatres (1903), ' N. Y. Code Civ. Pro. § 1632 ; N. Y. 1 Ch. 857 ; Wiltsie, Mort. Forecl. § 577 ; General Rules of Practice, No. 63 ; § 488, supra. Rector, etc. Christ P. E. Church v. * Stockton v. Dundee Mfg. Co., 22 Mack, 93 N. Y. 488 ; Nutt u. Cuming, N. J. Eq. 56 ; Board of Education v. 155 N. Y. 309, 312; Jaycox o. Smith, Franklin, 61 Ga. 303; Davis v. Lans- 17 N. Y. App. Div. 146, 151. dale, 41 Ind. 399; Thomas, Mort. 3 Nutt V. Cuming, 155 N. Y. 309; §1586; 2 Wash. R. P. {6th ed.) pp. 238- Ruggles V. First Nat. Bk. of Centreville, 245, pp. *600-*606. 43 Mich. 192; Landell's Appeal, 105 PART V. ESTATES CLASSIFIED AS TO THE TIME FOR THEIR EN- JOYMENT TO BEGIN. 1. Present Estates. 2. Future Estates. CHAPTER XXX. ESTATES PRESENT AND FUTURE — CLASSES OP FUTURE ESTATES. § 563. Estates, present and future — 1. Present estates. § 564. 2. Future estates, or es- tates in expectancy. § 565. Leading principles, classes, of future estates. and § 563. Estates, Present and Future. — 1. Present Estates. — Classified, lastly, with respect to the time when their owners may begin to enjoy them, estates are, 1. Estates in prcBsenti — present estates ; and 2. Estates in futuro — future estates, or estates in expectancy. (a) The first of these — the interests that are not only owned at present, but are also owned in such manner as to afford immediate possession, enjoyment, and per- nancy of the profits to their owners — are the kinds commonly dealt with and had in contemplation in the foregoing chapters. A present estate is the kind of interest most frequently owned and most commonly desired. It presents no questions that have not been discussed in the preceding pages, as far as pos- sible in this treatise. (a) The New York statute divides estates, from this standpoint, as fol- lows : " Estates, as respects the time of their enjoyment, are divided into estates in possession, and estates in expectancy. An estate which entitles the owner to immediate possession of the property is an estate in posses- sion. An estate in which the right of possession is postponed to a future time is an estate in expectancy." Real Prop. L. § 25, which was formerly 1 R. S. 722, § 7, and 723, § 8. ESTATES PRESENT AND PDTUEE. 713 § 564. 2. Future Estates, or Estates in Expectancy. — In these interests the right of possession and enjoyment is postponed to some future time. An estate so owned by A that he can not occupy the property, nor take any income from it, until after the death of B, is future ; and so is one for the possession of which he must wait for ten years, or as long as he remains unmarried, or till C comes back from Rome. It has been here- tofore remarked that, while personal property is uniformly treated without much thought of different estates in it, upon estates in realty the care of the legal professor has always been laboriously expended, with the result that these have come to form the subject-matter of the major part of real property law.^ Upon no other form of estate has that care been be- stowed with such refined, and often even subtle, processes of reasoning as upon that which is expectant or future. The outcome, especially as represented in the various species of remainders and executory interests, often appears intricate and confusing. But the principles on which the results are based are always logical, nor in themselves are they very numerous or difficult ; and, with a few of those principles understood his- torically and borne constantly in mind, the course of the stu- dent through the law of future estates need not be irksome. A thorough comprehension of an estate in fee simple — a phantasm, or mental picture, of it as necessarily attached to every piece of real property {object of ownership) in the world — constant remembrance of the great importance of seisin and the necessity for livery of seisin or its equivalent in the trans- fer of every freehold interest, and a full appreciation of the nature of a use and its execution by the Statute of Uses, are the few familiar conceptions and requirements to be constantly recurred to, as at the foundation of the system of future estates reared by the medieval common law. A few words as to each of these requirements and conceptions are needed in explaining the classification of expectant estates. § 565. Leading Principles and Classes of Future Estates. — Undoubtedly the jurists who made our common law of real property conceived of an estate in fee simple, as the philoso- phers taught them to think of time, as a straight line stretch- ing away to infinity. Every minutest piece of land or tenement must be the starting point of such a line, which must always be continuous and unbroken. If the owner disposed of a part 1 See § 292, su-pra. 714 ESTATES IN REAL PROPERTY. of it only, the law at once invested him, or if he had died his heirs, with the residue, which was still infinite in extent. If he cut it up into numerous pieces, disposing of them consecutively to different persons, and ultimately transferred the fee, — the endless piece, — the line in all its straightness and continuity was unaffected, but had simply passed over to a number of successive owners. If the expression be permissible with ref- erence to a line, each part then rested for support upon that which immediately preceded it, the first or present one start- ing at the land, the next resting upon it, and so on to the last, which looked to all the others for support and was still infi- nite in extent. There could be no hiatus, no deviation. And though some of the successive owners might be yet unborn or unascertainable, yet the unbroken, continuous, straight line, with its parts thus upheld, must always remain and extend to infinity.-' Again, there must always be a present seisin in some living, ascertainable owner of every piece of real property (^object of ownership) within the realm. The writ or document that is- sued out of the king's court to commence a real or proprietary action was called briefly the prceoipe ; ^ it must be served on some one who was seised of the land in question, and there should be no instant of time when the jurisdiction of the king's court over any piece of property might be suspended because there was no one upon whom that writ could be served. Hence the requirement, as to every foot of land and every tenement, that there must always be some one seised to the praecipe} When, moreover, any freehold interest in the property was created or transferred, this must be done by livery of seisin or its equiva- lent — the formal ceremony of delivering possession and seisin on or within sight of the land, or, when the property was incor- poreal, delivering immediate ownership and control of the rents, profits, or income. Such a ceremony must give present seisin of a freehold estate.* 1 Wallach w. Van Riswick, 92 U. S. * Co. Lit. 48 a, 48 b ; 2 Blackst. 202. Com. pp. *312-*316 ; Digby, Hist. Law 2 The short designation of the writ K. P. (5th ed.) p. 146; Green v. Liter, by which the right of real property was 8 Cranch (12 U. S.), 229; Sparrow v. demanded, and which began with the Kingman, 1 N. Y. 242, 250. " Seisin is words, " Prmcipe quod reddat." 1 Prest. for the men of the thirteenth century a Est p. *208. fact ; the physical element in it is " 1 Prest. Est. pp. *206-*208 ; 2 essential. It can not be transferred by Poll. & Mait. Hist. Eng. L. (2d ed.) pp. a written instrument, nor by a compro- 62, 63. mise however solemn, nor even by the ESTATES PRESENT AND FUTURE. 715 With these principles and practices emphasized every day in the courts, the common-law judges could not entertain for a moment the notion of a freehold estate to spring up in the future, without any precedent estate on which it depended — there could be no livery of seisin of such an interest ; nor could they think of one freehold estate arising in futuro so as to curtail or prematurely to terminate another — the line must be straight and continuous, and not thus broken in upon. A deed of land simply to A for life, to begin when he subse- quently married, was therefore a nullity, as was also a transfer to B and his heirs to take effect in possession so as to defeat C's estate in fee if he ceased to live on the land. Hence the two absolute and far-reaching rules for every future legal estate were that it must be preceded by a prior, particular estate, on which it depended for support, and that it must be a natural continuation (keeping the line straight and unbroken) of that particular estate — must commence where it naturally ended, and not in any way contribute to its termination or dim- inution. Such a future estate is a reversion, if made by the law ; if made by act of the parties, it is a remainder. When A, the owner of an estate in fee, conveys the land to B for life, or for a term of years, the law returns the residue to A as a reversioner. When X conveys, out of his estate in fee, an inter- est to B for life or for a term of years, and the residue to A, the future estate of A is a remainder. In each case, A's es- tate is preceded by the temporary, particular estate of B, and rests down upon it for support, but does not defeat nor dimin- ish it ; but, in the first illustration, A's future estate is a rever- sion, because made by the law ; while in the second it is a remainder, because its creator is X. Before uses affected future estates, tlie courts would permit no form of them except these two.^ But estates in uses and trusts, whether freehold or not, controlled as they were by the less technical courts of equity, were always allowed to be created to arise in the future with- out resting on any precedent or particular estates ; or to take effect in derogation of prior interests. The Statute of Uses judgment of a court." 2 Poll. & Mait. rules applicable to freehold reversions Hist. Eng. L. (2d ed.) p. 103. and remainders were somewhat relaxed ' But, as will more fully appear by the common-law courts in dealing hereafter, especially in the discussion of with future estates less than freehold, contingent remainders, the stringent 716 ESTATES IN EEAL PBOPEBTT. executed these anomalous estates — made the legal estate vest wherever the use vested ^ — and thus afforded a means of indi- rectly creating future legal interests other than remainders and reversions. Because these do not depend on any particu- lar estate, but simply wait (hung up in the air as it were) to take effect in possession when the designated time arrives or event occurs, they are called executory estates. The three ways by which they ultimately became creatable are, directly by uses, by means of powers which also deal with uses, and by wills, in the form of executory devises, aftpr the enactment of the Statute of Wills, 32 Hen. VIII. ch. I.2 Illustrations of them are a deed of land to A for the use of B when he marries, no preceding estate being interposed in the meantime ; and a devise of land to A and his heirs, but to leave him — his estate to be cut short — and pass to B and his heirs if B return from Eome. In terse summary, then, future estates are (1) Reversions, created by the law and resting for support on prior particular estates which they never curtail, (2) Remainders, created by act of the parties, and likewise resting for support on prior particular estates which they never curtail, and (3) Executory estates, likewise created by act of the parties, but never resting for support on prior particular estates, — either having no con- nection whatever with any prior interests, or made to take effect in possession so as to diminish other and previous estates, (a) (a) Cy a nomenclature slightly different from that of most common- law writers, but without any material effect in practical results, the New York revisers classified reversions as expectant estates, simply, and em- ployed the expression " future estates," as embracing only remainders and executory interests. The statutes, which were formerly 1 R. S. 723, §§ 9, 10, and 726, § 42, and are now Real Prop. L. §§ 26, 27, declare : " All expectant estates, except such as are enumerated and defined in this article, have been abolished. Estates in expectancy are divided into, 1. Future estates ; and 2. Reversions. A future estate is an estate limited to commence in possession at a future day, either without the interven- tion of a precedent estate, or on the determination, by lapse of time or otherwise, of a precedent estate created at the same time." From the point of view of possession, which is that from which we are looking at estates in this chapter, a reversion is a future estate as well as an expect- ant one. It is so classified by the New York Court of Appeals, notwith- standing the statute. Griffin b. Shepard, 124 N. Y. 70, 75. 1 See the operation of this famous '^ See pp. 96-98, supra. statute fully explained, §§ 302-304, supra. CHAPTER XXXI. (1) REVERSIONS. § 566. Keversions defined and explained, § 567. Reversions are ordinarily vested estates — Seisin of them. § 568. Rights and incidents con- nected with reversions. § 569. Descent of reversions. § 570. Fealty — Attornment. § 571. Merger of particular es- tate and reversion. § 572. Prescription and adverse possession affecting reversions — Descent-cast. § 573. Possibilities of reverter and of forfeiture. § 566. Reversions defined and explained. — A reversion, being a creature of the law which was largely perfected in simpler times, — as early as the end of the thirteenth century ,i — is the plainest and least teclinical of the future estates. It may be defined as a future estate, created hy operation of law, to take effect in possession in favor of a lessor or a grantor or his heirs, or the heirs of a testator, after the natural termina- tion of a ^v'lov particular estate leased, granted, or devised.^ (a) Its distinctive essentials are that it is always created by the law, and always rests upon a prior particular estate which it never defeats or abridges. A reversion comes into being when- ever an owner of real property conveys only an interest in it less than his own. And the logical common-law conception of it, which also explains and harmonizes the decisions, is that it is not only a creation of law, but also a returning by the law to him of a portion of that which he owned before and in reality has never lost. Thus, if A, owning an estate for ten (a) The New York statutory definition is: "A reversion is the residue of an estate left in the grantor or his heirs, or in the heirs of a testator, commencing in possession on the determination of a particular estate granted or devised." 1 2 Poll. & Mait. Hist. Eng. L. (2d ed.) p. 21. ^ P. 94, supra. "A reversion," says Coke, " is where the residue of the estate always doth continue in him that made the particular estate." Co Lit. 22 c. 718 ESTATES IN KEAL PROPERTY. years, sublet it to B for six, B obtains his term by act of A ; and A, then and in that transaction, acquires by operation of law the residuary four years' interest as a portion of " the old estate, which was originally in him, and never yet was out of him." 1 It follows that a reversion may be made from any estate — by disposing of a lesser interest as a particular one,^ and that it may exist after any number of estates which together do not constitute a fee.^ The owner of a fee simple, after disposing from it of numerous estates for years, for life, or in tail, still has the reversion in fee simple ; a life tenant, on alienating the property for years or for the life of another, has a reversion for the residue of his own life (while he lives, the law always contemplates that there will be such a residue), and a lessor of a ten days' interest, subletting for nine days, has a one-day reversion. When, however, out of a fee simple, a fee on limita- tion or on condition is granted, that which is left for the grantor is not a reversion, but a mere possibility of reverter, or of forfeiture, as heretofore explained,* and again noticed hereafter.^ § 567. — Reversions are ordinarily Vested Estates — Seisin of them. — A reversion is rarely a contingent or uncertain estate, but usually vested, i. e. , there is a present, fixed own- ership of it, although the possession is postponed to the future. The landlord, whose tenant is to hold the farm for fifty years, owns the residue as a present, certain property interest ; and the old man, wlio has conveyed liis land that he held in fee to a young man during the latter's life, now owns the reversion in fee, although he may not live to possess again the property.^ Furthermore, whenever the particular estate is less than freehold, and has been carved out of a freehold interest, the reversioner remains seised of the property. The owner of the precedent estate, not being a freeholder, obtains only posses- sion ; and the seisin is retained by the reversioner. But in no proper or logical sense can one be said to be seised who owns only a reversion after an estate of freehold ; the seisin resides in such cases in the freehold particular tenant.' If A, the 1 2 Blackst. Cora. p. *176; Leake, « Barber . La France F. E. Co., 158 N. Y. 570; Paget o. Melcher, 156 N. Y. 399 ; Griffin v. Shepard, 124 N. Y. 70, 76; Van Axte v. Fisher, 117 N. Y. 401; Vanderzee v. Slingerland, 103 N. Y. 47, 55 ; Matter of Watts, 68 App. Div. 357; Barber v. Brundage, 50 App. Div. 123, 126. It seems now to be clear that these legislative definitions have very rnaterially changed the law for New York ; and have made the one prac- tical test of a vested remainder that which was formulated by Judge Woodruff, in Moore v. Littel: "If you can point to a man, woman, or child, who if the life estate " (particular estate) "should now cease, would eo instanii et ipso facto have an immediate right of possession, then the re- mainder is vested." If all conditions precedent affecting the remainder would be fulfilled in favor of the remainderman by the immediate termi- nation of all the preceding estates, the remainder is vested — a remainder to John after the termination of Margaret's life estate, if she live on the land all her life and die without leaving any issue, is vested while she con- tinuously lives on the land and has no living issue. If this be the law of New York, as it seems to be, the proper method of there dealing with re- 736 ESTATES IN REAL PROPERTY. inaitiders is simply to ask whether or not they are vested according to this easily applied test. If not, they are contingent ; and it is useless to be annoyed by any apparent difficulties in logic that may then arise because of the definition of contingent estates. See Chaplin on Suspension of Power of Alienation, pp. 19-36 ; 1 Columbia Law Rev., pp. 279, 347. CHAPTER XXXIII, a. VESTED REMAINDERS. § 579. Vested remainders pre- ferred by the courts. § 580. Prominent results of the law's preference for vested re- mainders. §581. (a) Remainders inde- feasibly vested. §582. (b) Remainders V e s t e d, subject to be divested, simply. § 583. (c) Remainders vested, subject to be partly divested, by opening and letting in other mem- bers of the class. § 584. (d) Remainders vested, subject to be divested, and also to open and let in other members. § 585. Particular estates which may precede vested remainders. §586. Incidents of vested remainders. §579. Vested RemainderB preferred by the Courts. — The principles heretofore explained are those which ultimately determine whether a remainder is vested or contingent. At common law, if one can truthfully say, " I now own the re- mainder, with no condition precedent affecting my right or ownership of it, and I could take possession of the property at once if the precedent estates should now terminate," and in New York, if he can truthfully say, " If the particular estate should now terminate, all conditions precedent (if any) would be fulfilled in my favor, and I could immediately take posses- sion of the property," he has a vested remainder.^ But because of the endless variety of expressions employed, especially by testators, in disposing of property, it is often a nice and diffi- cult question whether or not such a remainder is intended. The fundamental distinction between the two kinds of remain- ders being kept steadily in mind, this becomes purely a matter of interpretation and construction of the language employed. And here the cardinal rule is that, while the courts will make every reasonably clear expression of a legal intent absolutely decisive, yet, in all cases of doubtful construction, they prefer to treat a remainder as vested rather than contingent. This 1 § 578, supra, and note (a). 47 738 ESTATES IN REAL PROPERTY. preference is one of the strong tendencies of the law, being as it is a prominent outcropping of the basal principle that all rights and interests shall be held to be as important and use- ful as is consistent with the language and circumstances of their creation. ^ Many of the forms and incidents of remainders, as discussed in the following sections, are largely explained by this rule of construction. § 580. Prominent Results of the Law's Preference for Vested Remainders. — • Because of this preference, words of survivorship, used in a will in devising a remainder, are held prima facie to refer to the time of the death of the testator. Thus, if land be devised " to A for life, remainder to the surviving children of B," this is construed, in the absence of circumstances or expression of testamentary intent to the contrary, as meaning B's children who are living at the testator's death, — surviving him, and not A or B, — and so the remainder vests absolutely in those children, if any, when the testator dies and the will takes effect.^ Again, adverbs of time used in limiting remainders are con- strued, if reasonably possible and fair, as referring to the time when the remainderman is to enjoy the property in possession, rather than to that of the vesting of the interest or ownership. Accordingly, a gift " to my wife during her life, and /rom and after her death to our children," gives the children vested re- mainders as soon as the instrument of gift becomes operative ; ^ 1 Boraaton's Case, 3 Rep. 19; Doe 119; Connelly v. O'Brien, 166 N. Y. d. Coraberbach v. Perryn, 3 T. R. 484 ; 406 ; Stokes v. Weston, 142 N. Y. 433 ; Croxall V. Shererd, 5 Wall. (72 U. S.) Nelson v. Russell, 13.5 N. Y. 137 ; Colby 268, 287 ; Moore v. Lyons, 25 Wend. v. Duncan, 139 Mass. 398 ; Bailey v. (N. Y.) 119 ; Steinway v. Steinway, 163 Hoppin, 12 R. I. 560; Chew's Appeal, N. Y. 183; Wilber v. Wilber, 165 N. Y. 37 Pa. St. 23; Buck v. Lantz, 49 Md. 451 ; Matter of Russell, 168 N. Y. 169; 439 ; Thorington v. Thorington, 111 Matter of Cramer, 170 N. Y. 271; Ala. 237. This is not, however, a very Dingley v. Dingley, 5 Mass. 535, 537 ; emphatic rule of construction ; and the Graham v. Houghtalln, 30 N. J. L. 552, presumption that words of survivorship 558; Grimmer v. Friederich, 164 111. mean surviving the testator is a weak 245 ; Gillespie v. Allison, 1 15 N. C. 542. presumption, which easily yields to ex- Especially, by being held to be vested, pressions of a contrary intent. Matter remainders are brought within the class of Cramer, 170 N. Y. 271 ; Robinson v. of future interests that are alienable. Palmer, 90 Me. 246. and not ordinarily liable to be defeated s Clarke i'. Cammann, 160 N. Y.315 ; by the forfeiture, surrender, or other Hersee v. Simpson, 154 N. Y. 496; form of destruction of the particular Corse v. Chapman, 1 53 N. Y. 466 ; estate. Ibid. Sawyer v. Cubby, 146 N. Y. 192 ; Mat- '^ Doe d. Long v. Prigg, 8 Barn. & C. ter of Young, 145 N. Y. 535 ; Matter of 231 ; Moore v. Lyons, 25 Wend. (N. Y.) Murphy, 144 N. Y. 557 ; Wright v. VESTED REMAINDERS. 739 and a grant to A for life, residue to B and his heirs when he becomes twenty-one years of age, confers a vested remainder on B, although he can not take possession of the property till he is twenty-one, even though A should die before that time.^ It is largely because of this strong preference, also, that we find some forms of these future estates declared by the courts to be vested, although they may possibly be wholly or partly defeated by subsequent occurrences before the termination of the precedent estates, and so may never be enjoyed in posses- sion. It was explained above, for example, that conveyances, to an old man for his life, after an estate to a young man for his life, to a liviug person for life after a leasehold interest for a long term of years, to A for life and then to B and his heirs provided that if B marry C he is not to have it, and the like, create vested remainders, although the chances of their owners' ever enjoying the lands in possession may be very remote.^ And when remainders are given to classes of persons, where the number and personnel of the owners are liable to change during the continuance of the particular estate, as to A for life and then to his children who may be living at his death, or to a testator's widow and children for their lives and after they have died " to all my grandchildren," there may be vested re- mainders, subject to be wholly or partly divested, or to open up and let in as owners other members of the class as they come into being or are ascertained.^ These forms become clear, if we consider all vested remainders in four classes, namely: (a) Those indefeasibly vested; (b) Those vested sub- ject to be divested simply ; (c) Those vested subject to be partly divested by the coming in of other members of the class ; (d) Those vested subject to be divested wholly or partly and also to let in other members of the class. It may avoid con- fusion here always to bear in mind that, wherever there is a defeasible or determinable character in any of these forms of White, 136 Mass. 470; Peterson's Ap- 313; Shannon v. Pentz, 1 N. Y. App. peal, 88 Pa. St. 397; Byrne c;. France, Div. 331 ; Wardwell v. Hale, 161 Mass. 131 Mo. 639. 396 ; Nelson v. Pomeroy, 64 Conn. 257 ; 1 And if the estate thus conferred Chafee v. Maker, 17 R. I. 739; In re upon B be one of inheritauce, and B Walkerly's Estate, 108 Cal. 627. See die before he is twenty-one, it descends Lougheed v. The Dykeman's Baptist to his heirs. Doe d. Morris i;. Under- Church, 129 N. Y. 211 ; Kalisch v. Ka- down, Willes, 293; Bromfield v. Crow- lisch, 166 N. Y. 368. der, 4 Bos. & P. 313 ; Boraston's Case, ^ §§ 578, 579, supra. 3 Rep. 19; Clarke f. Cammann, 160 ' See §§ 582-584, in>a. N. Y. 315 ; Matter of Brown, 154 N. Y. 740 ESTATES IN REAL PROPEETT. vested remainders, it is because of a condition subsequent — not precedent. A single, separate illustration will explain each of these classes. § 581. (a) Remainders indefeasibly vested. — An illustration of this class or form is an estate to A for life, remainder to B, a living, known person, and liis heirs forever. Nothing in its nature or limitation is to divest it. B may grant it away be- fore A's death ; and if wliile A is still living B die, he may will it away or let it descend to his heirs. ^ At A's death, it is certain to become an estate vested in possession for B, or his heirs, devisees, or assignees. § 582. (b) Remainders vested, subject to be divested, simply. — A grant or devise of realty to A for life, remainder to B and his heirs, provided that if B marry C he is not to have it, gives B a remainder that is vested so long as he has not married C, but subject to be divested or defeated upon such marriage, — the breach of a condition subsequent.^ So, if the conveyance be to A for life, remainder to B for life, the nature of B's interest is such that it may end by his death before A's ; and in that sense it is defeasible or determinable. § 583. (c) Remainders vested, subject to be partly divested, by opening and letting in other Members of the Class. — Where a re- mainder in fee is given to a fluctuating class of persons, and there are no words of survivorship or other qualification, it vests in the existing members of the class, and opens to let in other members, as they come into being or are ascertained, and to some extent is thereby divested as to the prior owners ; but the death of any of them does not divest his interest. An illus- tration is a devise to the testator's children, and " after they are dead, to all my grandchildren and their heirs." If there were five grandchildren when the testator died, they would each own a vested one-fifth interest in remainder ; on the birth of a sixth, each would so own a one-sixth interest, and so on. But if any one of the grandchildren should die before the children of the testator, his interest would not be thereby de- feated, but might be disposed of by his will or allowed to descend to his heirs.^ After such an estate vests in possession, 1 See § 586, infra. .354, 372; Eose v. Hawley, 141 N. Y. 2 Matter of Brown, 154 N. Y. 313; 366. Chafee v. Maker, 17 R. I. 739; Leo- » X)oe d. Long v. Prigg, 8 Barn. & iiard V. Burr, 18 N. Y. 96; Lake Su- C. 231 ; Haug !;, Schumacher, 166 N. Y. peiior Co v. Caiiniughain, 155 U. S. 506; Matter of Kimberly, 150 N. Y. VESTED REMAINDERS. 741 it is no longer subject to open and let in any other members of the class. ^ § 584. (d) Remainders vested, subject to be divested, and also to open and let in Other Members. — To the last-explained form of remainder may be added a condition subsequent, so that total divesting may result, and yet the remainders may not become per se contingent. Such is a devise to A, remainder to liis children ; but, if any child die before A, his share to be divided equally among those who survive A. This remainder vests in tlie children of A who are living at the time of the tes- tator's death, opens and lets in any other children who may be born to him, and, if any of them die before A, closes down on the survivors. A's children who outlive him are the only ones who ultimately acquire an estate in possession ; but all the time after the will operates, while he is living and has children, the remainder is vested.^ The case of House v. Jackson ^ is one of the rare illustrations of the practical distinction between this peculiar, though now quite common, form of vested remainder and one that is contingent. Land had been there so granted that it was held by John Jackson for his life, remainder in equal shares to any of his children who should survive him. One of the children purchased John's life estate; and it was decided by the New York Court of Appeals that that child's wife then had an inchoate right of dower in his share of the property. This was because, the life estate merging in the vested remain- der to the extent of that child's ownership of it, he became seised in fee of that portion of the property. This could not have occurred if his remainder had been called contingent ; for 90, 93 ; In re Evans' Estate, 155 Pa. St. 40 Ohio St. 353 ; Kemp v. Bradford, 61 646 ; Security Co. of Hartford v. Cone, Md. 330. 64 Conn. 579 ; Gibbons v. Gibbons, 140 = 50 N. Y. 161. This is one of the Meiss. 102 ; Hinkson v. Lees, 181 Pa. cases growing out of the deed concern- St. 225 ; Adams «. Ross, 30 N. J. L. 505, ing which it was held, in Moore v. Littel, 513; Haggerty v. Harkenberry, 52 N. J. 41 N. Y. 66, that a grant to Johu Jack- Eq. 354 ; Lariverre v. Eains, 112 Mich. son for life, remainder to his heirs, gave 276. vested remainders to his children then 1 Stevenson u. Lesley, 70 N. Y. 512, living. Such a remainder would be 517. contingent at common law (the children 2 Harrison v. Foreman, 5 Ves. Jr. not being " heirs " until their father's 207 ; Campbell v. Stokes, 142 N. Y. 23, death) ; but, being treated by the New 28 ; Matter of Seaman, 147 N. Y. 69 ; York statutes as a vested remainder, it Moore v. Appleby, 108 N. Y. 237 ; Smith affords an instructive illustration of the V. Scholtz, 68 N. Y. 41, 61 ; Du Bois «. difference between this class of such re- Ray, 35 N. Y. 162 ; McArthnr v. Scott, mainders, to which it must belong, and 113U. S. 340; Blanchard 1-. Blanchard, contingent remainders. 1 Alien (Mass.), 223; Collins v. Collins, 742 ESTATES IN REAL PROPERTY. he would not then have owned it, it could not have merged any part of the life estate, and so he would have been seised of a life estate only. This is a border-line class of vested remainders. A slight change in phraseology will readily show that futurity is annexed to the substance of the gift, and so make the remainder con- tingent. Thus, a devise to A for life, remainder to those of his children who survive him, at common law, postpones the vest- ing and makes the remainder contingent until A's death ; ^ al- though by the New York criterion such a remainder is all the time vested in any existing children of A.^ And, in all juris- dictions, where the only form of tlie gift in a will consists in a direction to divide the property among the members of a class at a future time, such as a devise to A for life, with instructions for him to divide the land by his will among his children liv- ing at his death, the remainders are contingent.^ These are only rules of presumption, however, and they must always yield to an expressed intent of a testator as gathered from a proper construction of the entire will.* § 585. Particular Estates -which may precede Vested Remain- ders. — An estate for years, for life, or in fee tail may precede a vested remainder. The remainder being owned and ready to take effect in possession, all that is needed is that it and the particular estate shall constitute a continuous line of interests, the one to take effect in possession when the other terminates.^ § 586. Incidents of Vested Remainders. — - The incidents and characteristics of vested remainders explain the common law's preference for them. They are in their nature very much the same as reversions; and are descendible, devisable, and alien- able, may be reached for debts of their owners, and are subject to dower and curtesy, and generally to the ordinary incidents of estates in possession.^ These incidents must be understood, 1 Because, by the language em- Div. 600, aff'd, 173N. Y. 615; Matter ployed, surviying A is made a condition of Baer, 147 N. Y. 348; Goebel ti. Wolf, precedent to ownership. Thomson i;. 113 N. Y. 405; Carr v. Smith, 25 N. Y. Ludington, 104 Mass. 193; Robinson App. Div. 214. V. Palmer, 90 Me. 246 ; Whitesides v. ^ §§ 565, 575, supra. Cooper, 115 N. C. 570; Gray, Perpetui- ^ Wimple v. Fonda, 2 Johns. (N. Y.) ties, § 108. 288 ; In re Kenyon, 17 R. I. 149 ; Hink- ^ § 578, note (a), supra. son i'. I..ees, 181 Pa. St. 225 ; Gardiner 8 Matter of Crane, 164 N. Y. 71; v. Guild, 106 Mass. 25; Blanchard o. Lyons v. Ostrander, 167 N. Y. 135; Brooks, 12 Pick. (Mass.) 47; Drake w. Paget V. MeJcher, 156 N. Y. 399 ; Rudd Brown, 68 Pa. St. 223 ; Cruise, Dig. tit. V. Cornell, 171 N. Y. 114. xvi. ch, i. § 9. * Quade v. Bertsch, 65 N. T. App. VESTED REMAINDERS. 743 of course, as regulated by the nature and extent of the vested remainders tliemselves,and by the existence or non-existence of seisin of them. Thus, a remainder, not being an estate in pos- session, could never be transferred by any method of convey- ance which required formal livery of seisin, or handing over of possession;^ and a defeasible or, determinable remainder must pass to the alienee, subject to the same condition subsequent, — if owned, for example, by a member of a class who will lose it by his death before the particular estate ends, his alienee takes it subject to the same restriction, that it may be defeated by such death of the alienor. So thei"e is no dower nor curtesy in any remainder when the particular estate is one of freehold, because the remainderman then has no seisin.^ Vested remainders are also governed by the same rules and principles as are reversions, in regard to the rights and reme- dies of their owners when the property is wasted or injured, or when adverse possession has been held against the preceding tenants.^ But, since the owner of the particular estate does not hold under or of the remainderman in any sense, when both interests are estates for years or for life, or otherwise equal in extent and come together in the same hands, the remainder does not merge the particular estate. No merger occurs by their coming together, in the same hands at the same time and in the same right, except when one of them is actually greater tlian the other; and then, no intention of the owner to the contrary being shown, the smaller of the two merges in the larger.* 1 Last preceding note ; 1 Prest. Est. ^ See § 572, supra. p. * 75 ; Glidden v. Blodgett, 38 N. H. 74. * Co. Lit. 273 b ; Cruise, Dig. tjt. 2 § 568, supra. xxxix. §§ 40-46 ; 3 Prest. Conv. 201. CHAPTER XXXIY. b. CONTINGENT EEMAINDERS. § 587. Contingent remainders il- lustrated and classified. § 588. First. — Both estates af- fected by the same contingency. § 589. Cross-remainders — With- in this first class. § 590. Second. — Only the remain- der afieoted by the contingency. § 591. Alternate remainders — Fee with a double aspect — Within this second class. § 592. Third. — Remainder de- pendent on a contingent event that may occur too late. § 593. Exceptions to this third class. § 594. Fourth. — The remainder- man uncertain. § 595. Exceptions to this fourth class. The Rule in Shelley's Case. § 596. Its development and mean- ing. § 597. Formal statement of the rule — Its operation. § 598. Requisites to the operation of the rule. § 599. The rule operates, though other estates are interposed. § 600. Stringency of the rule — Its abolition in some states. Rules Governing Contingent Remainders. § 601. The seven rules. § 602. First Rule. — The event must be legal. § 603. Second Rule. — The con- tingency must not be too remote. § 604. Third Rule. — The event must not curtail the preceding es- tate. § 605. Fourth Rule. — Freehold particular estate for freehold con- tingent remainder. § 606. Fifth Rule. — Remainder must be vested when particular es- tate terminates. § 607. Sixth Rule. — Contingent remainder defeated by destruction of preceding estate. § 608. Seventh Rule. — Contingent remainders descendible, devisable, and now alienable inter vivos. § 609. Other incidents of contin- I gent remainders. § 587. Contingent Remainders illustrated and classified. — Every contingent remainder is an estate on condition precedent. " It is contingent while the person to whom or the event on which it is limited to take effect remains uncertain." ^ (a) An (a) This is the language of the New York statute, Real Property Law (L. 1896, ch. 547), § 30. And it is a careful and accurate expression of the 1 2Blackst. Com. p. *169; 1 Prest. (Smith's ed.) p. 3; §§ 577, 578, Est. p. *74; 1 Fearne, Cont. Rem. supra. CONTINGENT REMAINDERS. 745 estate to A for life, and then to the oldest son of B, who has no son, or then to the next president of the United States, illustrates a remainder that is contingent because of uncertainty as to the person ; and when property is conveyed to A for life, remainder to B if he marry C, and the marriage has not occurred, an in- staoce is afforded of a remainder that is contingent because of uncertainty as to the event.i The twofold division of such re- mainders, thus naturally suggested, — contingency as to the event, or as to the person, — is at once clear and comprehensive. But, for the purpose of examining and understanding them and their incidents as fully as their importance requires, the more complete, fourfold classification of Mr. Fearne and Mr. Cruise should be understood.^ Mr. Fearne says : " We may properly distinguish four sorts of contingent remainders : First, Where the remainder depends entirely on a contingent deter- mination of the preceding estate itself. Secondly/, Where the contingency, on which the remainder is to take effect, is inde- pendent of the determination of the preceding estate. Thirdly, Where the condition, upon which the remainder is limited, is certain in event, but the determination of the particular estate may happen before it. Fourthly, Where the person, to whom the remainder is limited, is not yet ascertained, or not yet in being." ^ An illustration of each of these classes will make it clear. And a good understanding of them will open the way to an appreciation of some prominent and far-reaching prin- ciples of the law of future estates. common-law meaning of such a remainder. But, since the New York .courts have made the chief test as to the character of remainders the stat- utory definition of vested remainders, and appear to have settled it that any remainder is vested whenever there is a person in being who could immediately take the property if the particular estate should terminate at once, this description of a contingent remainder must be understood in that state as if it said, " A remainder is contingent while the person who would have an immediate right to the possession of the property if the precedent estates should terminate at once, or while the event on which it is limited to take effect, remains uncertain." This may appear to be a strained construction of the definition of the statute. But it is the only one that logically indicates the line of demarkation drawn by the New York courts between vested and contingent remainders. See note (a), § 578, supra. 1 Last preceding note ; Thomson u. p. 5 ; Cruise, Dig. tit. xvi. ch. i, Ludington, 104 Mass. 193; Roosa u. §§ U-21. Harrington, 171 N. Y. 341. s i Fearne, Cont. Eem. (Smith's ed.) 2 1 Fearne, Cont. Rem. (Smith's ed.) p. 5. 746 ESTATES IN REAL PROPERTY. § 588. First. — Both Estates affected by the Same Contingency. — In the first of these four classes, one and the same contin- gent event, if it occur, terminates naturally the first (particu- lar) estate and causes the second (the remainder) to vest in possession. An illustration is an estate to A until B returns from Rome, and then to B and his heirs. The event — the return of B — is uncertain ; but its happening would affect the interests of both of tlie parties, terminating A's and causing B's to become vested in possession, (a) The distinction between such a remainder and an estate on conditional limitation is here to be carefully noted. And it lies in the fact that, in order to make such future interest a contingent remainder, the event which causes it to become vested must be an uncertain one the happening of which also causes the preceding estate to terminate naturally. In the above illustration, all that is given to A is an estate until B returns from Rome. The event, if it occur, will neither defeat nor curtail A's interest, but will bring it to its natural end — the end contemplated in its creation. Had the land been given to A for his life, or for a designated term of years, or in fee, with a proviso that it should leave A, and pass to B if he returned from Rome, B's estate would not have been a re- mainder, but a conditional limitation ; because, while the one eveut would affect both estates, it would defeat or diminish the first and not bring it to a natural end.^ So, an estate to A and his heirs until B returns from Rome, and then to B and his heirs, does not make a remainder for B. For the courts have always treated A's estate in such a case as a fee (the infinite line) which is to be curtailed by the happening of the event.2 This distinction is one of the most important of all those that have affected future estates. For, in a common-law jurisdiction, if the future estate must be called a conditional limitation, it must ordinarily be invalid. Thus, if a feoffment were made of Whiteacre " to A until B returns from Rome, and (a) Assuming that the remainderman is in being, such a remainder as this, although contingent at common law, would be vested in New York. There is a person in being who could immediately take the property if the precedent estate should now terminate. See note (a), § 578, supra. 1 Greenl. Cruise, Dig. tit. xvi. ch. i, ^ First Univ. Soc. of North Adams §§ 11, 12; Blackman v. Fysh (1892), v. Boland, 155 Mass. 171; Hatfield v. 3 Ch. 209 ; Hatfield v. Sneden, 54 N. Y. Sneden, 54 N. Y. 280 ; § 430, supra. 280. CONTINGENT REMAINDERS. 747 then to B and his heirs ; " and of Blackacre " to A for his life, but if B return from Rome then at once to B and his heirs ; " a common-law court must have decided that B had a contin- gent remainder in Whiteacre, and no estate nor right in Black- acre, in which an ineffectual attempt had been made to give him an estate on conditional limitation. The creations of the estates essayed for B sound very much alike ; but, because of the narrow distinction between this form of contingent re- mainder and a conditional limitation, the first is valid and the second utterly void.^ Uses, devises, and statutes have largely obliterated this fine distinction.^ But it still exists in some jurisdictions ; and even where it has wholly disappeared, it has, nevertheless, made history on which must rest any adequate understanding of the modern resultant law. (a) §589. Cross-remainders — Within this First Class. — CrOSS- remainders, properly so called, come within this first class of contingent remainders. They are made by conferring distinct, present, particular estates on two or more persons and provid- ing that, on the termination of any one of these while the others are continuing, the property held by him whose interest so ends shall pass to the other owners. An illustration is a life estate in one lot of land to A, and a similar interest in another lot to B ; and, after the death of that one of them who may die first, both lots to go to the survivor. While both are living, A has a contingent remainder in the lot held by B, and B has a contingent remainder in that held by A. Their re- mainders cross each other, as it were. And the one contin- gent event, the death of either before the other, will naturally terminate the particular estate of the one so dying, and vest his lot in possession in the other .^ The same kind of result (a) The New York Real Property Law, §§ 43, 47, makes all the forms of future estates here illustrated good and enforcible, and provides that they shall not be defeated by anything that may happen to or in connec- tion with the preceding interest. But the distinctions in name are still preserved ; and a thorough appreciation of these statutes depends on a comprehension of the common-law differences between remainders and conditional limitations. 1 Last two preceding notes. ' 1 Prest. Est. p.* 94; Purdyw. Hayt, ^ This is explained hereafter, iu the 92 N. Y. 446, 454 ; Dana v. Murray, 122 chapters on executory estates. See stat- N. Y. 604; Dow v. Doyle, 103 Mass. utes, 8 & 9 Vict. ch. 106, § 8; N. Y. 489; Glover w. Stillson, 56 Conn. 316. Real Prop. L. (L. 1896, ch. 547) § 47; I Stim. Amer. Stat. L. § 1403. 748 ESTATES IN REAL PEOPERTT. emerges when one piece of realty is conveyed for life to two or more persons as tenants in common ; and it is provided that, as they die off, the portions of those so dying shall vest for life in the survivors or survivor.^ And it is quite frequently added, in either of such cases, that, after all but one of such temporary owners have died, the entire property shall belong to him and his heirs — vest in him in fee simple. ^ In order to make such arrangements good as remainders, care must be taken that no owner's interest shall be curtailed or prematurely terminated. When, for example, A and B are made tenants in common of a parcel of land in fee simple, and it is provided that on the death of either the survivor shall own the whole property in fee, the attempted gifts over are not re- mainders but executory interests — they might be properly called, in this illustration, cross conditional limitations.^ (a) § 590. Second. — Only the Remainder affected by the Contiii- genoy. — In this class, the particular estate is definite and fixed, and the remainder alone depends on an event which may or may not happen. An illustration is an estate to A for life, remainder to B if he marry C. While A is living and B has not married C, B has a remainder which is contingent because of the uncertainty as to an event — the marriage — which affects it alone. This is a common and typical form of contin- (a) lu New York, the statute (Real Prop. L. §§ 43, 47) makes such exe- cutory limitations as these good, provided they are not more than two in number. Real Prop. L. § 32. And the result of these provisions and § 33 of the same law, which forbids the creation or existence of more than two successive life estates, is that not more than two cross-remain- ders for life are valid. Purdy v. Hayt, 92 N. Y. 446, 451, 452 ; Byrnes v. Stilwell, 103 N. Y. 453, 460 ; Benson v. Corbin, 145 N. Y. 851. 1 1 Prest. Est. p. * 94 ; 2 Crabb, whether or not such remainders for R. P. § 2339 ; Challis, R. P. p. 300. more thau two life tenants are valid. ^ Or, of course, the ultimate re- But it seems clear that, in the absence mainder after the death of all the life of statutory restriction (such, e. g., as in owners may be given over to still N. Y., where the restriction is to two another person. lives, Real Prop. L. §§ 32, 33), there 3 §§431, 565, supra. Cross-remain- may be cross-remainders for any num- ders may be made by either deed or ber of lives, if all be in being so as not will; but the courts will more readily to violate the rule against perpetuities, imply them from the language of wills, Doe d. Georges v. Webb, 1 Taunt. 234 ; and insist that deeds must be explicit in Hall v. Priest, 6 Gray (Mass.), 18 ; Dow order to bring them into being. Ashley i'. Doyle, 103 Mass. 489 ; Kerr i'. Verner, V. Ashley, 6 Sim. 358; Dana v. Mur- 66 Pa. St. 326. See Gilbert v. Witty, ray, 122 "n. Y. 604; Co. Lit. 195; Doe Cro. Jac. 655; Wright v. Holford, d. Tanner v. Dowell, 5 T. R. 518. There Cowp. 31. has been considerable discussion as to CONTINGENT REMAINDERS. 749 gent remainders. By its being explicitly made to depend on an uncertain event, " futurity is annexed to tlie substance of the gift " in remainder, although the particular estate is to ter- minate on another event which is fixed and certain to occur.^ § 591. Alternate Remainders — Fee with a Double Aspect — Within this Second Class. — When the disposition or owner- ship of the property after the natural termination of the par- ticular estate is made to depend on two or more contingencies, so that if one event occur the remainder will belong to one per- son, if another to another, and so on, alternate remainders are created. And these are simply several contingent remainders, usually of this second class, all dependent on one and the same particular estate, and so limited that as soon as any one of them becomes vested the others disappear.^ Such would be a devise to A for life, remainder to B if he marry X ; and, if B do not marry X, then remainder to if he marry X ; and, if neither of them marry her, then remainder to D if he marry X. Here there are tliree contingent, alternate remainders, to vest in that one of B, C, and D who may marry X; and, as soon as either of them marries her (provided this be while A is still living), his remainder becomes vested, and the others are defeated. When remainders in fee have been made in this alternate fashion, the limitation has been described as " a fee with a double aspect." ^ In the much discussed case of Hennessy V. Patterson,* the part of the gift which illustrates this class of remainders was, in substance, to the testator's daughter Mar- garet for life ; and, if she had issue living at her death, to such issue in fee ; but, if she died without leaving any issue, then to John Foley in fee. While Margaret was living and had no issue, the fee, which might ultimately go either to her issue or to John Foley, had a double aspect. And the suggestion is probably pardonable, that, had the testator added other contin- gencies which might have taken it to one of other possible re- maindermen, it would have had a multiple aspect. Here, also, is to be carefully noted that these alternate estates will not be valid remainders, if so made that one is to operate to defeat the other after that other has vested. Thus, 1 Co. Lit. 378 a ; 1 Tearne, Cont. "■ Loddington t. Kime, 1 Salk. 224 ; Rem. (Smith's ed.) p. 6; Smith v. Ed- Furnish v. Rogers, 154 111. 569 ; Taylor wards, 88 N. Y. 92; Matter of Crane, v. Taylor, 63 Pa. St. 481. 164 N. Y. 71 ; Rudd v. Cornell, 171 s Ibid. N. Y. 114. * 85 N. Y. 91. 750 ESTATES IN REAL PROPERTY. a devise " to A for life, remainder to B and his heirs, but if B cease to live there after A's death, then to C and his heirs," makes a conditional limitation for C, and not a remainder. It is one estate taking effect in derogation of another, (a) In the above illustrations of valid alternate remainders, they are all to be thought of as ready to begin, if the event happen in their favor, at the natural termination of the one particular estate ; and, when the contingency happens for one of them so that it thus begins, the others disappear, — one takes effect as a substitute for the other, and does not defeat it after it has vested. This feature is readily seen to be essential to the existence of valid common-law alternate remainders.^ S 592. Third. — Remainder Dependent on a Certain Event that may occur too late. — At common law, a remainder must entirely fail if anything stand in the way of the remainderman's taking the property in possession at the natural termination of the particular estate.^ Therefore, if a remainder depend on an event which is sure to happen, but may not happen until some time after the ending of the preceding estate, that remainder is contingent. Such are the remainders of Mr. Fearne's third class.^ Here the particular estate is definite and fixed, and the remainder depends on an event sure to happen ; but the con- tingency is in the fact that that event may not occur until some time after the particular estate has terminated. An illustration is an estate to A for life, remainder to B after the death of C. B can not take the property until C dies ; and, therefore, he can never take it at all if C outlive A. Not being able in such case to take it when A dies, he loses it, — the (a) From the preceding notes on the New York statutes, it is clear that those statutes make this form of gift entirely valid. The only restriction is that the ultimate, absolute vesting must not be too remote. That re- striction is more fully explained hereafter. See note (a), § 576, supra, and § 603, infra. Moreover, alternate remainders as here explained are expressly provided for as follows : " Two or more future estates may be created to take effect in the alternative, so that if the first in order fails to vest, the next in succession shall be substituted for it, and take effect accordingly." See Hennessy v. Patterson, 85 N. Y. 91, 99; Van Home V. Campbell, 100 N. Y. 287 ; Schettler v. Smith, 41 N. Y. 328. 1 Doe d. Herbert v. Selby, 2 Barn. = § 606, infra. &Cr. 926; Buzby's Appeal, 61 Pa. St. » 1 Feame, Cont. Rem. (Smith's ed.) Ill; Den. d. Micheau v. Crawford, p. 8; Boraston's Case, 3 Rep. 19. 8 N. J. L. 90 ; Francks v. Whitaker, 116 N. C. 518. CONTINGENT REMAINDERS. 751 event on which his remainder depends, though sure to occur, does not occur in time to save the property for him. § 593. Exception to this Third Class. — A conveyance of land to A for five years, remainder to B after the death of A, gives to B a contingent remainder within this third class, be- cause, if A should live longer than the five years, his estate would end before B could take the property. But, if the gift had been to A for eighty or a hundred years, and to B after the death of A, would B's remainder have been then contingent ? In favor of a just result, though perhaps at the expense of technical reasoning, it was decided in Lord Derby's Case ^ and in Napper v. Sanders ^ that such a remainder is vested. And it seems safe to state, as a common-law conclusion, that, wlien- ever the first estate is for a term of years, and the remainder is to take effect in possession after the death of a person who is practically sure to die before the term ends, an exception to the third class of contingent remainders is to be recognized; and the remainder is to be treated as vested.^ (a) § 594. Fourth. — The Remainderman Uncertain. — In the fourth and clearest class of contingent remainders, the uncer- tainty relates to the person — because he is not in being, or not yet ascertainable. A remainder to a child of a person who has no child, or to the next president of the United States, or to the (a) When the remainderman is in being and ascertained, it is clear that in New York all remainders of this third class are vested. There is no uncertainty as to either the person or the event. The remainderman must simply wait until a certain event occurs before he can take posses- sion. And § 48 of the Real Property law, which is quoted in note (a), § 606, infra, saves such a remainder from being defeasible by the termina- tion of the particular estate before that event occurs. Therefore, an estate to A for life, or for a term of years, whether long or short, remainder to B after C's death, gives B a vested remainder; and he can take possession of the property after A's estate has ended and C has died, no matter in what order as to time those events may occur. It may be noted that, strictly construed, such an estate is not within the New York definition of either a vested or a contingent remainder. There is no uncertainty as to the person or the event; nor could Btake the property while C is living, if the preceding estate should terminate at once. But, in view of the New York emphatic preference for treating remainders as vested, it is mani- festly to be placed in that class. It is simply made by the use of an adverb of time, and is not contingent. See § 580, supra. 1 Cited in Lit. Rep. 370. tit. xvi. ch. iii. § 10; I Brest. Est, 2 Hutton, 118. pp. *80, *8I ; Weale v. Lower, PoUex- 8 Ibid. ; 1 Fearne, Cont. Rem. fen, 54, 67. (Smith's ed.) pp. 20-27 ; Cruise, Dig. 752 ESTATES IN EEAL PROPERTY, heirs of a living person (where the result is unaffected by any statute, such, for example, as that of New York (a)) is an obvious illustration. 1 § 595. Exceptions to this Fourth Class. — A living person has no " heirs," in the proper, technical sense, — nemo est heres viventis? Therefore, an estate " to the heirs of A," a living person, is ordinarily contingent. But such a form of convey- ance has brought into the law three exceptions, or qualifica- tions to this fourth class of contingent remainders. One of these arises from a gift of property by a person to his own heirs. On his death, they take by descent, as being the worthier title (the law's transfer), and not by the gift; and so there is no remainder of any kind.^ Another exception, or rather qualification, is where the con- text or circumstances show that the grantor or devisor uses the word " heirs " in the popular rather than the technical sense — as descriptio personce — to indicate specific, known individuals, such as the existing children, or other near relatives of the liv- ing person named. Thus, a devise " to A for life, remainder to his heirs," gives a vested remainder to A's children, whenever it is clear from a proper construction of the entire will that they are the individuals meant by the testator to be the remaindermen.* The third exception arises from a grant or devise, such as " to A for his life, remainder to his heirs," — to the heirs of the taker of the particular freehold estate. At common law, no remainder whatever exists, in such a case ; but A takes the (a) It has been already stated that the New York rule seems now to be clear, contrary to that of the common law, that a conveyance to A for his life, remainder to A's heirs, confers vested remainders on any persons in being who would become A's heirs if he should die at once. See § 578, note (a), supra. 1 1 Fearne, Cont. Rem. (Smith's ed.) 3 Md. 190; Cruise, Dig. tit. xvi. ch. i. p. S ; Hall V. La France Fire Engine § 33. The English statute, 3 & 4 Wm. Co., 158 N. Y. 570; McGiUis o. Mc- IV. ch. 106, § 3, now makes a devise to Oillia, 154 N Y. 532; Loring v. Eliot, the testator's heirs take feffect ns a de- 1 6 Gr.'iy (Mass.), 56S, 572 ; Harriman v. vise ; and the result is that the devisees, Harriman, 59 N. H. 135 ; Chapin v. if given remainders, being ascertained Crow, 147 111. 219. when the will operates, take them as " Broom's Legal Max. p. * 522 ; Jack- vested remainders, son ti. Kniffen, 2 Johns. (N. Y. ) 31, 36; ^ \ Fearue.Cont. Eem. (Smith's ed.) Johnson v. Whiton, 118 Mass. 340, 345. pp. 209-215; Cruise, Dig. tit. xvi. ch. i. 8 Buckley v. Buckley, 11 Barb. § 34; Putnam w. Story, 132 Mass. 205; (N. Y.) 43 ; Gilpin v. HoUingsworth, Haverstick's Appeal, 103 Pa. St. 394. CONTINGENT REMAINDERS. 753 entire estate in fee simple by virtue of the famous " Rule in Shelley's Case," which is explained in the following sections. The Rule in Shelley^ s Case. § 596. Its Development and Meaning. — In the early times when " fee " was synonymous with " feud" or " fief," a con- veyance " to A and his heirs " and one " to A for life, remain- der to his heirs " were substantially the same. A could only hold the property for life, in either case, and on his death it must descend to his heir. Then, slowly through the centuries, were evolved the present uses of the word " fee," to denote the quantity of endless ownership — the continuous straight line of interest stretching away to infinity — and also the owner's absolute power over it, so that he may dispose of it and thus cut off his heirs if he choose.-^ After these changes were com- plete, the court was asked, in the discussion of a case brought by one Shelley in the time of Lord Coke, is an estate conferred upon " A for life, remainder to his heirs," or by use of any equivalent expression, still the same as one " to A and his heirs " ? Does the old rule remain, and A take a fee simple by either form of expression, though he may now dispose of it to the exclusion of his heirs ? The answer was, " Yes." And the ancient principle thus retained has been known since that time as the Rule in Shelley's Case.^ Tersely and inartificially stated, the rule is that a transfer of realty to A for life (or other freehold), and to A's heirs, no matter by what form of words it may be made, confers the entire estate in fee simple on A, and nothing on his heirs : and, similarly, a transfer of realty to A for life and to the heirs of A's body, no matter by what form of words it may be made, confers an estate in fee tail on A, and nothing on his heirs. Thus, a grant " to A and his heirs " gives him a fee simple in the ordinary way ; " to A 1 §§ 251, 276, 278, supra. of Beverly's Case, Year Book, 40 Edw. 2 Shelley's Case, 1 Rep. 93 b, 104 a; III. 9 (a. d. 1367), which is explained Wms. R. P. pp. * 254, * 255; 1 Prest. in 1 Piest. Est. p.* 305. The date of Est. p. *304 et seq.; Digby, Hist. Shelley's Case is 1581, 1 Rep. 93 b; Law R. P. (5th ed.) p. 269. Shelley's In re Youman's Will (1901), 1 Ch. 720. Case itself simply gave occasion for the In Perrin v. Blake, 1 W. Blackst. 672, a reiteration of an ancient principle, which leading case in which the rule is thor- was there so discussed and emphasized oughly discussed, Mr. Justice Black- by the judges as to be made a famous stone declares that the earliest case in landmark of law. The most emphatic which it was established was in 1325 — early decision of the rule was in Provost 18 Edw. II. fol. 577. 48 754 ESTATES IN REAL PROPERTY. for life, remainder to his heirs " gives him a fee simple by- virtue of the rule in Shelley's Case. So, a grant of an estate "to A and the heirs of his body" gives him a fee tail in the ordinary way ; " to A for life, remainder to the heirs of his body," gives him a fee tail by virtue of the rule in Shelley's Case. Although inform remainders are given to the heirs of the first taker, or to the heirs of his body, yet in effect the gift is all to such first taker ; and there are no remainders.^ § 597. Formal Statement of the Rule — It3 Operation. — Chancellor Kent's abridgment of Mr. Preston's formal state- ment of the rule in Shelley's Case is as follows : " 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 remainder (either with or with- out 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 gener- ation to generation, the limitation to the heirs entitles the ancestor to the whole estate." ^ The word " heirs," thus em- ployed, is said to be a word of limitation and not of purchase, i. e., it explains or defines (and in that sense " limits ") the quantity of estate which the ancestor takes ; and by it the heirs acquire nothing, — they are not purchasers or takers through its use in the instrument.^ If the heirs ever acquire the prop- 1 The origin of the rule — in the one generation sooner, by resting the in- ancient prohibition against alienation heritance in the ancestor, than if he con- by an owner in fee, so as to cut off his tinned tenant for life, and the heir was heirs, no matter by what form of words declared a purchaser." And a directly he acquired the property — seems quite opposite view, which is a favorite one, clear. The reasons for retaining it is that it was invented as a means of after that prohibition was removed, have retaining for the lord the beneficial in- been variously surmised and stated. cidents of tenure in the descent of the One reason was undoubtedly the courts' feud from ancestor to heir ; for, if the dislike of contingent remainders, and ancestor should own the land for his the fact that this rule does away with life only, and the heir should take by what would otherwise be a large class purchase and not by descent from him, of such interests : for h very common some or all of the incidents of relief, form of devise is to the testator's son, wardship, marriage, and escheat might and then to that son's heirs ; at com- be lost. See 1 Harg. Law Tracts, 668, mon law this must make contingent 572; Wms. R. P. (6th ed.) p. 253, remainders, if any remainders at all; note 1; 1 Fearne, Cont. Rem. pp. 85, but the operation of the rule is to avoid 86 ; Tudor's Lead. Cas. R. P. p. 482. the existence of any remainders what- 2 4 Kent's Com. p. * 215 ; 1 Prest. ever, in such a case, by giving the land Est. p. * 263 et seq. in fee to the sou. Another suggestion 8 4 Kent's Com. p. *214 ; 2 Blackst. is that it was retained in order to bring Com. p. *242 ; Wms. R. P. (6th ed.) the property " into the track of commerce p. 253, note 1 . CONTINGENT REMAINDERS. 755 erty at all, it is because the ancestor does not deed or will it away from them, as he has full power and right to do, but keeps it until his death and lets it descend to them. For example, suppose a lot of laud is deeded to A for life, remainder to his heirs (or other form of gift to his heirs is used) ; A owns the entire fee simple, and may immediately sell it so that his heirs will never own any of it : whereas, if the rule in Shelley's Case did not exist, A would own a life estate only, and could not deal with any greater interest in the land ; and those who would be his heirs if he were to die at once would own in fee simple the remainder, of which A could not deprive them.-' § 598. Requisites to the Operation of the Rule. — In Order that this technical rule shall operate, it is necessary, in the first place, that the two formal limitations or transfers shall be made in one and the same transaction. For, if land be simply conveyed to A for life, the grantor is at once given the rever- sion in fee by operation of law ; and a subsequent transfer of the fee to A's heirs disposes of such reversion to them as pur- chasers (takers by the instrument of transfer to them), and has no effect on A's previously acquired life interest.^ Secondly, the two estates so dealt with in form must be both legal or both equitable, — interests " of the same legal or equitable quality." ^ Therefore, a devise or deed of land to trustees to hold for A for his life, the legal estate in remainder to go to A's heirs, gives to A an equitable life estate only ; and, on his death, his heirs take the property by the will or deed (as pur- chasers), and not by descent from him.* When both estates are equitable, the rule ordinarily applies. But an exception may exist in the case of executory trusts ; for, as heretofore explained, the courts seek in such trusts to work out the settler's intent, regardless of technical principles ; and, when he clearly evinces a design of giving to the first taker no more than a life interest in such a trust, the residue may be ulti- 1 Last preceding note; In re You- ° 4 Kent's Com. p. *215; 1 Prest. man's Will, (1901), 1 Ch. 720; Daniel Est. p. *263; Van Grutten v. Foxwell V. Whartenby, 17 Wall. (84 U. S.) 639; (1897), App. Cas. 658; Brown w.Wads- Silva V. Hopkinson, 158 111. 386. worth, 32 N. Y. App. Div. 423, 168 2 Co. Lit. 299 b ; Moore v. Parker, 1' N. Y. 225. Ld. Kaym. 37 ; Dodson v. Ball, 60 Pa. ' Ibid. ; Silvester v. Wilson, 2 T. R. St. 492, 497. A will and codicil are one 444 ; Adams v. Adams, 6 Q. B. 860 ; 50 instrument, and constitute one transac- Albany Law Jour. 360. tion, for this purpose. Hayes v. Foorde, 2 W. Blackst. p.* 698. See Sloane v. Stevens, 107 N. Y. 122. 756 ESTATES IN REAL PROPERTY. mately given, by the trustee, as a valid remainder to that first taker's heirs.^ Thirdly, the remainder (so called) must be to the heirs of the first taker, and to those heirs only. Thus, while a grant to A for life, remainder to A's heirs, gives to him a fee simple, yet a grant to A for life, remainder to B's heirs, or to the heii's of A and B, or even to the heirs of A and his wife (since her heirs may be different from his), con- fers only a life estate on A, and creates valid remainders over which he has no control.^ So, when the limitation is to A for life and then to his " heir " (in the singular), the rule does not apply, and A takes only a life estate : such a transfer comes within the so-called rule in Archer's Case.^ Fourthly, the word " heirs " must be used in its technical sense, to denote " a class of persons to take in succession, from generation to generation," — the blood-relatives whether near or remote, who could inherit realty, — and not merely as personoe desiy- natce} For example, a devise to A for life, remainder to his heirs, where it is plain from the context of the will that the testator means A's then living children to be the remainder- men, and employs the word " heirs " simply to point them out, gives to A a life estate only ; and his children take by the will remainders, over which he has no control. In such a case, the word " heirs " is used in a colloquial and not an accurate legal sense ; and the result is the same as it would have been if the testator had said, for example, that he gave the land " to A for life, and then to A's three children." ^ Fifthly, the first estate (to A in the above illustrations) must be an estate of freehold. For livery of seisin or its equivalent must be made to the feoffee or donee of that estate (A in the illus- trations) ; his heirs not being ascertainable while he is alive, he is the only person in whom the seisin can reside ; and, since he must receive and retain the seisin, he must have a freehold estate.^ Therefore, at common law, such an attempted conveyance to A for a term of years, or for any other estate less 1 § 309, supra ; Papillon v. Voice, 2 4 4 Kent's Com. p. *215 ; Ludding- P. Wms. 471 ; Green v. Green, 23 Wall. ton v. Kime, 1 Ld. Ravm. 203 ; Peiree (90 U. S.) 486 ; 1 Perry on Trusts, v. Hubbard, 152 ]'a. St. 18 ; Millett v. § 359. Ford, 109 Ind. 159. 2 TuUer v. Chamier, 2 Eq. Cas. 682, ^ Ibid. ; De Vaughn !;. Hutchinson, 686 ; Mudge v. Hammill, 21 R. I. 283 ; 165 U. S. 566 ; Shoonmaker v. Sheely, Dawson v. Quinnerly, 118 N. C. 188. 3 Denio (N. Y.), 485; Jamison v. Mc- ' Archer's Case, 1 Rep. 63 h; Evans Whorter, 7 Houst. (Del.) 242. V. Evans (1892), 2 Ch. 173; 1 Leake, « Co. Lit. 22 b ; Wms. R. P.p. * 259; 359. Digby, Hist. Law E. P. (5th ed.) p. 269. CONTINGENT REMAINDERS. 757 than freehold, remainder to A's heirs, is utterly void ; neither A nor his heirs talie any interest in fee, and there is no estate whatever on which the rule in Slielley's Case can operate. ^ § 599. The Rule operates, though Other Estates are inter- posed. — ■ When all of the above-described requisites coexist, the rule applies and confers on the ancestor (A in the illustrations) all the interests in form transferred to him and to his heirs, even though other estates are interposed between them. Sup- pose, for illustration, a conveyance " to A for his life, and after A's death to B for his life, and after B's death to A's heirs." Here A owns a life estate in possession and the fee simple in remainder, and may deed or will away the entire interest in fee simple, except the interjected life estate of B, — all the con- tinuous, infinite, straight line, except the little piece represen- tative of the time during which B may live after A's death.^ So, if the gift were to A for life, and then to B for life, and then to C for fifty years, and then to D and the heirs of his body, and then to A's heirs, A would own and could alien all the interests in the property, except the life estate of B, the term of years of C, and the fee tail of D. Likewise, an estate to A for life, remainder to B and the heirs of his body, re- mainder to C for life, remainder to B's heirs, gives first a life estate to A, then a fee tail and the ultimate remainder in fee simple to B, and a life estate to C interjected between B's two interests, — A may enjoy the property while he lives ; on his death, B may have it in fee tail ; if B's issue run out while C is living, C may then have it for the rest of his life ; and then, after C's death, it will go to B's purchasers or devisees in fee in case he sells it or wills it away, otherwise it will descend to his heirs.^ § 600. stringency of the Rule — Its Abolition in Some States. — The rule in Shelley's Case is a very strong principle of the common law. It is not a rule of construction, for determining the intent or purpose of the maker of an instrument, but an absolute law that must operate whenever the transfer is in 1 Last preceding note. to A's heirs — it keeps the two estates 2 Wms. K. P. pp. * 256-* 259; owned by the latter apart, and they do Digby, Hist. Law R. P. (5th ed.) p. 269 ; not merge — A owns the two estates as 4 Kent's Com. p. *215 et seq. distinct entities ; but if B should die be- 8 Where a vested estate in one person fore A, then A's fee would merge his thus exists between two estates owned life estate and he would simply own the by another — as B's life interest be- entire fee simple. Colson v. Colson, 2 tweeu A's two estates, where tlie gift is Atk. 246 ; 1 Fearne, Cent. Rem. p. 29. to A for life, then to B for life, and then 758 ESTATES IN REAL PROPERTY. form to a person and that same person's heirs as such. There- fore, Its operation often defeats the prima facie intent, or even the actual, expressed intent of a grantor or testator. His legal intent, determined from the assumption that he knew the rule and that he could not violate it, must govern.^ The result has been, in many cases, especially of devises, that, where the gift has been to one person for life with clear expression of the desire of the donor that such person should not take nor con- trol in any way any interest but a life estate, and then tlie residue has been given to that same person's " heirs," he has been held to own and have complete control of the entire estate in fee simple, to the exclusion of his heirs. After the court has decided from the language employed that the transfer is to A, and to A's heirs in the technical sense (" heirs " not used as descriptio personce), no expression of a contrary intent will then prevent A from taking a fee simple by virtue of the rule in Shelley's Case.'' This ancient rule, being as it is a part of a complete, har- monious system, is still retained in England and probably a majority of the United States. Prominent among the courts in which it has been vigorously sustained are those of Pennsyl- vania and Illinois.^ But, in quite a number of the states of this country, such as New York, (a) Massachusetts, Virginia, (a) The rule in Shelley's Case was operative in New York until Jan- uary 1, 1830. Brown v. Wadsworth, 168 N. Y. 225. It is, therefore, necessary to be understood for the purpose of examining titles back of that date. It was abolished by I R. S. 725, § 28, in substantially the following language, which is now Real Property Law (L. 1896, ch. 547), § 44 : " 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 is given, the persons who, on the termination of the life estate, are the heirs, or heirs of the body, of such tenant for life, shall take as purchasers, by virtue of the remainder so limited to them." The revisers regarded 1 Jordan v. Adams, 9 C. B. n. s. 483 ; 177 ; Williams v. Knight, 18 R. I. 333 ; Van Grutten v. Foxwell (1897), App. Nichols v. Gladden, 117 N. C. 497. In Cas. 658; Grimes w. Shirli, 169 Pa. St. a few cases it has been held that the 74; Tiudall v. Miller, 143 Ind. 337. rule should not override a testator's ex- 2 Ibid.; Evans i). Evans (1892), 2 Ch. pressed intentions. Wescott v. Binford, 173; Pe Vaughn v. Hutchinson, 16.5 104 Iowa, 645; Tingley o. Harris, 21 U.S. 566; Carpenter w. Van Olinder, 127 R. I. 517; Smith v. Hastings, 29 Vt. 111. 42 ; Silva v. Hopkinson, 1 58 111. 386 ; 240. Daniel!'. Whartenly, 17 Wall. (84 U.S.) s Grimes v. Shirk, 169 Pa. St. 74; 639 ; Trumbull v. Trumbull, 149 Mass. Carpenter v. Van Olinder, 127 111. 42; 200 ; Martling v. Martling, 55 N. J. Eq. Silva u. Hopkinson, 158 111. 386. 771 ; Boutelle v. City Sav. Bk., 18 R. I. CONTINGENT REMAINDERS. 7(39 Michigan, and California, it has been abolished by statute.^ And the result is, in such jurisdictions, that, while a convey- ance " to A and his heirs" gives him a fee simple, one " to A for life, remainder to his heirs," or an equivalent form, gives to A a life estate only ; and his heirs take the remainder, not by descent from him, but as purchasers through the deed or will by which the conveyance is made.^ In New Hampshire, New Jersey, Kansas, Oregon, and perhaps one or two other states, the rule has been abrogated by statute as to gifts by will, but not as to other forms of transfer.^ Rules governing Contingent Remainders. § 601. The Seven Rules. — The essential nature and differ- ent forms of contingent remainders being understood, the principles built up around them by the common law and the the rule as artificial and unnecessary, and conceived that its abolition would better effectuate the wishes of testators. See their notes to this section; also Lytle v. Beveridge, 58 N. Y. 592, 601. It was because the rule in Shelley's Case did not affect the question, that, in Moore u. Littel, 41 N. Y. 66, where the grant was to John Jack- son for his life; "and after his decease to his heirs and their assigns," the gift to the heirs could be a remainder. And the anomalous result is to be here again noted that it was declared in that case and decided in House v. Jackson, 50 N. Y. 161, that it was a vested remainder in the living children of John Jackson. See also Beardsley v. Hotchkiss, 96 N. Y. 201, 213 ; Johnson v. Brasington, 86 Hun, 106, 112; Brown v. Wads- worth, 168 N. Y. 225 ; § 578, note (a), supra. 1 N. Y. L. 1896, ch. 547, § 44 ; Mass. Gen. Stat. (1889), § 7256 ; 2 Hill's Ann. Pub. Stat. 1882, ch. 126, § 4 ; Va. Code, L. (Oreg.) § 3093 ; 1 Stim. Amer. Stat. 1887, § 2423; 2 Howell's Ann. Stat. L.. §1406. The New Jersey General (Mich.) § 5544; Cal. Civ. Code (1886), Statutes (1895), § 10, provide that, if § 779 ; Conn. Gen. Stat. (1888), § 2953 ; laud be devised for life, remainder to 1 Stim. Amer. Stat. L. § 1406 ; Brown the devisee's heirs, issue, or heirs of the V. Wadsworth, 168 N. Y. 225; Trum- body, the land, after the death of the bull V. Trumbull, 149 Mass. 200 ; Bar- devisee for life, shall be vested in his nett V. Barnett, 104 Cal. 298. children. And it has been there held ^ And, of course, in those of such that the rule in Shelley's Case is thus states where estates tail are also abol- abolished onli/ so far as it relates to wills ished, a transfer of any kind to A for and to the lineal heirs of the devisee life, remainder to the heirs of his body, for life : And, where a father devised gives a life estate only to A, and a fee land to his son for life, with remainder simple in remainder to his issue. See to the son's heirs, the son took only a Chamblee v. Broughton, 120 N. C. 170 Clarkson v. Clarkson, 125 Mo. 381 Shoup V. De Long, 190 Pa. St. 331 N. Y. L. 1896, ch. 547, § 22. v. Davis, 59 N. J. L. 241 a N. H. Pub. Stat. ch. 186, § 8 ; Kan. life estate, if he died leaving any issue surviving him ; otherwise he took the fee and might will it away. Lippencott 760 ESTATES IN REAL PROPEETT. modifications of those principles produced by modern statutes and adjudications can be best understood, perhaps, if summar- ized in the form of seven rules to which they are reducible. Re- membering that a contingent remainder always depends on «ome condition precedent, that a fee simple was conceived of as a continuous, straight line of interest stretching away to infinity, and that at common law some one must always be seised to the prcecipe of every piece of real property, these rules and their modifications may be easily apprehended. § 602. First Rule. — The Event must be Legal. — The first and most obvious of these rules, to be mentioned, is that the contingency must be as to an event that may legally occur. A remainder, for example, to an illegitimate child, if subsequently to be begotten, or to a man and his heirs if he will commit treason or a felony, is manifestly invalid. This is simply the application to remainders of the general principle, heretofore explained, that an estate on condition must fail if it depend on a condition precedent which is impossible or can not be legally performed.* § 603. Second Rule. — The Contingency must not be too Remote. — One of the principles of scholastic logic was that a double contingency is vicious.^ Taken over into the courts, this produced the rule that a remainder could not be validly made to depend on more than one uncertain event. Therefore, it was declared by Lord Coke that an attempted gift in re- mainder to A's unborn son William must fail, because it could not vest until two contingencies had occurred — the birth of tlie son, and his being named William.^ This form of the rule, long kept in the courts, as Mr. Williams tells us, by respect to the memory of Lord Coke, is now everywhere discarded. And the contingencies may be double, or multiple, provided they do not postpone the possible vesting of the interest for too long a time — are not too remote — do not produce a perpetuity.* This may be explained, for the present purpose, by saying that the contingencies must not take the possibility of the vesting of the interest beyond lives in being, and twenty-one years and the period of gestation of a child in addition. Thus, a re- mainder to a living person's unborn son William, if he be sound in body and mind, is valid, although it depends on four uncertain 1 §420, SHpra. 186; Fife v. Miller, 165 Pa. St. 612; 2 Wms. R. P. pp. *272, *273. Jackson d. NicoU v. Brown, 13 Wend. » Ibid. (N. Y.) 437. 4 Ibid. ; Cole v. SeweU, 2 H. L. Cas. CONTINGENT REMAINDERS. 761 events. But a remainder generally to the child of a person not yet in being, or to any generation more distant in the future, is everywhere invalid, because of too great remoteness.^ These illustrations sufficiently explain the general meaning of this present rule against remoteness of contingent remainders. In its details, it is better understood as one of the expressions of the so-called rule against perpetuities, which is to be here- after discussed, (a) § 604. Third Rule. — The Event must not curtail the Preced- ing Estate. — One of the absolute requisites of every common- law remainder is that it shall be made to await the natural termination of the particular estate.^ This requirement is most frequently emphasized in connection with contingent remainders ; and it is simply to be recalled at this place as one of the rules by which they are governed. In some states, such as New York, Michigan, Wisconsin, and California, future estates that may take effect in derogation of preceding inter- ests may now be effectually made by any form of transfer or conveyance ; and the statutes that make this possible often speak of them as remainders. Where such legislation exists, the nomenclature is largely immaterial. But the common-law accurate name of a future interest which is to abridge a prior one is an estate on conditional limitation. (6) § 605. Fourth Rule. — Freehold Particular Estate fdr Free- hold Contingent Remainder. — At common law, a freehold con- tingent remainder must be supported by a freehold particular estate. Otherwise the seisin would be lost. For if land could (a) In New York, subject to the requirement that the contingencies must not be too remote, — too far in the future, — the statute expressly declares that, " A future estate, otherwise valid, shall not be void on the ground of the improbability of the contingency on which it is limited to take effect." Real Prop. Law, § 42. See also Real Prop. L., § 32; Jack- son d. NicoU V. Brown, 13 Wend. 437 ; Purdy !;. Hayt, 92 N. Y. 446, 456 ; Booth V. Baptist Church, 126 N. Y. 215, 237; People v. Simonson, 126 N. Y. 209, 307; Allen v. Stevens, 161 N. Y. 122. (b) " Remainder " and " conditional limitation " are used interchange- ably by the New York statute, which declares that, " A remainder may be limited on a contingency, which, if it happens, will operate to abridge or determine the precedent estate ; and every such remainder shall be a con- ditional limitation." Real Prop. Law, § 43 (originally 1 R. S. 724, § 26), quoted also and discussed, § 434, note (a), supra. 1 Hay V. Earl of Coventry, 3 T. R. 13 Wend. (N. Y.) 437, 442 ; Cruise, Dig. 83, 86 ; Duke of Norfolk's Case, 3 Ch. tit. xvi. oh. ii. §§ 4-8. Gas. 1, 29 ; Jackson d. NicoH v. Brown, ^ § 575^ supra. 762 ESTATES IN EEAL PBOPBHTT. be conveyed, for example, to A for ten years, remainder in -fee or for life to a person not yet in being, tlie grantor must part with his seisin, since he transferred a freehold interest ; but the seisin could not reside in A, since he would have only a term of years, and of course it could not be in the remainderman not yet in being. Neither could any contingent remainderman have the seisin. Therefore, there must be a present freehold tenant to the praecipe, to whom livery of seisin could be made.' But a contingent remainder less than freehold could always be supported by a particular estate less than freehold. For in such a case the seisin remains in the grantor or lessor, since it need not and can not accompany either of the estates transferred. Thus, a lease by A to B for ten years, remainder to C, an un- ascertained person, for twenty years, leaves the reversion in fee and the seisin in A ; he remains tenant to the prcecipe, and all three interests may exist and take effect in their order without violating any technical requirement of the common law.^ In several states of this country, of which New York, Michi- gan, and Wisconsin are examples, this common-law distinction, as to the necessary support of contingent remainders of free- hold estates and of those less than freehold, has been abolished by statute ; and either kind may now be created, as vested re- mainders always could be, to depend on an estate for years.^ (a) § 606. Fifth Rule. — Remainder must be vested -when Parti- cular Estate terminates. — At common law, a remainderman must be able to take the property when the particular estate terminates. Therefore his interest must become vested, if ever, during the continuance of that particular estate, which supports it, or at the time when that estate ends. This is because the two must form a continuous, straight line of interest ; and there must be no hiatus between them. Accordingly, a gift to A for (a) " Subject to the provisions of this article," says the New York statute, ..." a remainder of a freehold or chattel real, either contingent or vested, may be created, expectant on the determination of a term of years." N. Y. Real Prop. Law, § 40, which was originally 1 R. S, 72-t, § 2i. The "provisions of this article" are chiefly those which forbid the contingencies to be too remote, and restrict the number of successive life estates to two in number. 1 2 Blackst. Com. p. *171 ; 1 Prest. 13; Corbet u. Stone, T. Raym. 140, 151 ■ Est. pp. *216, *217 ; IJigby, Hist. La\¥ Young v. Dake, 5 N. Y. 463. R. P. (.5th ed.) p. 267; Goodright v. » N. Y. Real Prop. L. (L. 1896, ch. Cornish, 1 Salk. 226. 547 ) § 40 ; 1 Stim. Amer. Stat. L. 2 Cruise, Dig. tit. xvi. ch. iii. §§11- § 1424. CONTINGENT REMAINDERS. 763 life, and one day after his death to his oldest son, confers no remainder on the son. And, if land be conveyed to A for life, and then to B if he marry C, B can not take the property unless he marries C at or before the death of A. When the remainder- man was not in being, or the specified event (condition prece- dent), had not occurred and did not occur at the time of the termination of the precedent estate, the property at once reverted to the grantor or donor, or his heirs, and the remainder was thus entirely defeated. " There must be no interval, or ' mean time,' as Lord Coke expresses it, between the particular estate and the remainder supported by it." ^ Under this rule, it was at one time doubted whether a child en ventre sa mere could take property as remainderman, — the particular estate terminating before his birth. Partly by the aid of statutes in England and a number of the United States, and undoubtedly as a common-law matter where legislation has not dealt with it, it is now settled that he can do so.^ In favor of treating a remainder as vested rather than contingent, an un- born remainderman is deemed to be alive from the time of his conception, and the remainder is treated as vested in him during his gestation. If he die before birth, or be not born in such a state of maturity that by the laws of physiology he is cap- able of living, or at his birth fail to comply with any other condition precedent to his taking the property, this shows that it was not vested in him although it had been deemed to be so ; otherwise, the particular estate having terminated while he was in his mother's womb, he is entitled at birth to immediate possession of the property.^ By virtue of statutes in several states of this country, of which New York, Michigan, and Wisconsin are illustrations, a contingent remainder, otherwise valid, is not now defeated by 1 4 Kent's Com. p. *248 ; Cogan v. ' Ibid. ; Stedfast ex dem. Nicoll v. Cogan, Cro. Eliz. 360; Wolfe v. Van Nicoll, 3 Johns. Cas. (N. T.) 18; Barker Nostrand, 2 N. Y. 436; Campbell . Conboy, 73 N. Y. 230 ; Ackerman c. Gorton, 67 N. Y 63. Swarthout v. Earner, 143 N. Y. 499. 3 Deegan u. Wade, 144 N. Y. 573, POWERS. 797 Execution of Powers. § 633. Who are able to e:secute Powers. — The donee of a power, in executing it, i. e., in doing what it authorizes him to do, acts as the mere agent or instrument of the donor. What estate for life or for years, such estate is changed into a fee absolute in respect to the rights of creditors, purchasers, and encumbrancers, but subject to any future estates limited thereon, in case the power of absolute disposition is not executed, and the property is not sold for the satisfaction of debts.'' " § 130. — Where a like power of disj)osition is given to a person to whom no particular estate is limited, such person also takes a fee, subject to any future estates that may be limited thereon, but abso- lute in respect to creditors, purchasers, and encumbrancers." " § 131. — Where such a power of disposition is given, and no remainder is limited on the estate of the grantee of the power, such grantee is entitled to an absolute fee." " § 132. — Where a general and beneficial power to devise the inheritance is given to a tenant for life, or for years, such tenant is deemed to possess an absolute power of disposition within the meaning of and subject to the provisions of the last three sections." " § 133. — Every power of disposition by means of which the grantee is enabled, in his lifetime, to dispose of the entire fee for his own benefit is deemed absolute." "§ 139. — A special and beneficial power is liable to the claims of creditors in the same manner as other interests that cannot be reached by execution ; and the execution of the power may be ad- judged for the benefit of the creditors entitled." " § 142. — The execu- tion, wholly or partly, of a trust power may be adjudged for the benefit of the creditors or assignees of a person entitled as a beneficiary of the trust, to compel its execution, where his interest is assignable." " § 144. — A beneficial power, and the interest of every person entitled to compel the execution of a trust power, shall pass, respectively, to a trustee or committee of the estate of the person in whom the power or interest is vested, or an assignee for the benefit of creditors. " These, in substance, were originally 1 R. S. 733, § 86 ; 732, §§ 81, 82; 733, §§ 83-85 ; 734, § 93; 735, §§ 103, 104, respectively. Real Prop. L. § 133, here quoted, is to be carefully noted as explaining what is meant by " an absolute power of disposition." And see Cutting v. Cutting, 86 N. Y. 522, 534. " Where a grantee of an estate for life takes also a power to alien in fee to any person by will, and no other person than the grantee of the power has, by the terms of its creation, any interest in its execution, the power is a general beneficial one," and the grantee can convey in fee by deed, although the instrument creating the life estate and the power attempted to restrain and prohibit any convevance by deed. Deegan v. Wade, 144 IST. Y. 573, 578; Hume v. Randall, 141 N. Y. 499, 505; Matter of Moehring, 154 N. Y. 423, 427; Roberts v. Lewis, 153 U. S. 367, 375. Mr. Chaplin has given, inter alia, the following conclusions as to the effects of these statutes, when under any of them the grantee takes a fee : 1. " As to purchasers, the donee holds a fee; he may convey an absolute estate, and as the power is purely beneficial, he is absolutely entitled to 798 ESTATES IN REAL PROPERTY. he does is in theory done by the donor througli him as an instrumentality. 1 For this reason, a power may be executed at common law, not only by one who could convey the prop- erty if it were his own, but also by other persons of sufficient mental ability, such as a married woman or an infant sui juris? Before the modern married women's legislation, a power was the most available means of disposing of her property by a, feme covert. Owning the land and also a power emanating from the donor, she could convey it, because it was Ms act by her as an instrument, (a) § 634. By -whoin Powers must be executed — Their Delegation. — The general rule is that a power must be executed by the donee personally ; and, when there are two or more donees, by all of them personally. The donees of a power are the instru- ment of the donor ; and ordinarily the instrument that he selects must act, and all of it must act.^ The donor, however, the proceeds." 2. " As to encumbrancers and creditors, he holds a fee, and they may proceed, in respect thereto, as if the fee were (as it is, in their favor) absolnte." 3. " If the power is not exercised, and if the property is not sold for the satisfaction of debts, then any remainder duly limited takes effect." ... 4. " In all cases, where such (i. e., absolute and beneficial) a power of disposition is given, and no remainder is limited on the estate of the grantee of the power, such grantee is entitled to an abso- lnte fee." Chaplin, Express Trusts & Powers, pp. 456, 457. See also the New York authorities cited in connection with text on this topic, i. e., § 632, supra. These rules for making a general and beneficial power equivalent to an absolute fee do not apply as long as the power is affected by any condition either precedent or subsequent. They apply only when the power is absolutely vested. Real Prop. L. § 134, which in 1896 first put into statutory form the law as it had previously existed. Van Axte V. Fisher, 117 N. Y. 401, 403. (a) In New York, an infant has not been able effectually to execute a power since 1830. For the statute provides that : " A power may be vested in any person capable in law of holding, but cannot be exercised by a person not capable of transferring real property." Real Prop. L. §'l21, originally 1 R. S. 735, §§ 109, 111. See Temple v. Hawley, 1 Sand. Ch. 153. But the following section, Real Prop. L. § 122, provides that : " A general and beneficial power may be given to a married woman, to dispose, during her marriage, and without coucurrenoe of her husband, of real property conveyed or devised to her in fee." And the capacity of a feme covert to execute any kind of a power is now practically unquestioned. See Wright v. Tallmadge, 15 N. Y. 307 ; Leavitt v. Pell, 25 N. Y. 474. 1 1 Sugd. Pow. p. 242. Breit v. Yeaton, 101 111. 242; 1 Sugd. 2 Ladd V. Ladd, 8 How. (49 TJ. S.) 9, Pow. pp. 148-155. 27 ; Leavitt v. Pell, 25 N. Y. 474 ; In re ^ Montefiore v. Browne, 7 H. L. Cas. D'Augibau, L. E. 15 Ch. Div. 228; 241, 261 ; Winslow w. Bait. & 0. R. Co., POWERS. 799 may modify this requirement, by clearly indicating when and how the authority, or any portion of it, may be exercised by less than all the persons upon whom it is conferred.^ So, while the general rule forbids the delegation of powers — delegatus non potest delegare, — yet a power that is general in character, or amounts to absolute ownership, and reposes no personal confidence in the donee, may be delegated by him.^ What the courts mean by the common statement that a power can not be delegated is that any judgment or discretion required to be exercised by the donee can not be transferred to another. But when this element is not involved, and the power can be as well executed by one sound-minded person as by another, it may be delegated.^ Or, being given to a trustee, such a power may be executed by a substituted trustee.* So, merely ministerial acts connected with the execution of powers may be entrusted by the donees to other persons. And, when a donee in whom special confidence is reposed has duly exercised the judgment or discretion required of him, he may employ others to carry out what he has decided shall be done. Hav- ing a power to sell land, for example, and having decided to sell it for a certain sum, he may properly authorize his at- torney to carry out and close the sale accordingly.^ § 635. Survival of Powers. — Powers coupled with an inter- est in the property, such for example as a power of sale given to a mortgagee, or powers coupled with a trust duty, may usually be executed by the survivors or survivor of the several donees, in case some of them die or become incapacitated.^ 188 U. S. 646 ; Doolittle v. Lewis, 7 the will annexed. Greenland v. Wad- Jolins. Ch. (N. Y.) 45; Cruise, Dig. dell, 1 1 6 N. Y. 234 ; Clifford k. Morrell, tit. xxxii. ch. xvii. §§ 74, 75 ; 1 Perry 22 N. Y. App. Div. 470. on Trusts, § 294. * Ibid.; Lahey i;. Kortright, 132 N. 1 Wilder v. Eanney, 95 N. Y. 7; Y. 450; Boutelle u. City Sav. Bk., 17 Neel V. Beach, 92 Pa. St. 221. An R. I. 781. illustration is a power given to be exe- * Gates v. Dudgeon, 1 73 N. Y. 426. cuted by the donee "or his assigns." ^ Co. Lit. 112 b; Peter o. Beverly, Cruise, Dig. tit. xxxii. ch. xvii. §§ 77, 10 Pet. (35 U. S.) 532; Osgood «. Frank- 78. lin, 2 Johns. Ch. (N. Y.) 1, 20 ; Taber 2 Crooke v. County of Kings, 97 o. Willetts, 37 N. Y. Supp. 233 ; Sites N. Y. 421 ; Cruise, Dig. tit. xxxii. ch. c. Eldredge, 45 N. J. Eq. 632 ; Wilkin- xvii. §§ 79-84. son v Buist, 124 Pa. St. 253 ; Bennesou 8 ParweU, Pow. (2d ed.) p. 445. v. Savage, 130 111. 352. And it has And it is for this reason that, while a been shown that a power of sale an- power with personal confidence given to nexed to a mortgage now usually passes an executor terminates at his death, with an assignment of the mortgage, when no such confidence exists it ordi- § 493, supra. narily passes to an administrator with 800 ESTATES IN REAL PROPERTY. They act wholly or partially for themselves, or in performance of a moral obligation ; and those who can act should be allowed to do so. Other powers, such, for illustration, as an authority given to executors to sell land, are more readily destroyed by the disability or death of one or more of the donees. Here the common law distinguishes between a power conferred upon the donees nominatim, i. e., by naming them individually, and one given to them as a class. When the donation is of the former kind, as " to A, B, and C," or " to my executors (or trustees, etc.). A, B, and C," the death of any one of them, or his permanent inability to act for any cause, terminates the power.i But when it is of the latter kind, as " to my execu- tors," without naming them individually, or " to my trustees," or " to the children of A," the power survives as long as two or more of the donees remain — while the class as such can still be said to exist.^ With regard to executors, this distinction has been every- where somewhat changed by legislation. The statute 21 Hen. Vni. ch. 4, by which the executor or executors who qualify may execute a power of sale though others named refuse to take the office, has been uniformly re-enacted or adopted in this country.^ And the general rule here may be said to be that a power of sale given to executoi-s may be executed by those of them who accept and enter upon their duties as such ; and when any interest legal or equitable in the property is also vested in them, as when, for example, they are made testa- mentary trustees, it may be executed by the survivors or sur- vivor of those who so take the office.^ And in New York, and possibly some other states, the statute provides that, if one or more of the donees of any power die before its execution, it may be executed by the survivor or suiwivors.* (a) Such (a) The statute of 27 Hen. VIII. ch. 4, was re-enacted by the early legislation of New York (2 Jones & Var. 96 ; 2 R. L. 366), and now, some- what amplified, is in two distinct statutes — Code Civ. Pro. § 2642, and 1 Co. Lit. 113 a, Hargrave's note; 7n re Murphy's Estate, 184 Pa. St. 310; Peter v. Beverly, 10 Pet. (35 U. S.) 532, I Perry on Trusts, § 294. 564 ; Sinclair v. Jackson, 8 Cow. (N. Y.) 3 N. Y. R. S. (9th ed.) p. 1881 (2 R. S. 543, 554; Glover u. Stillson, 56 Conn. 109), § 55; 4 Kent's Com. p. *326, 316. note (d). See Lippincott v. Wikoff, 54 2 Ibid. ; Nilea v. Stevens, 4 Denio N. J. Eq. 107 ; O'Rourke v. Slierwin, (N. Y.), 399 ; Bradford v. Monksi, 132 156 Pa. St. 285. Mass. 405 ; Chandler w. Rider, 102 Mass. ■• N. Y. L. 1896, ch. 547, § 146 ; N. Y. 268 ; Boutelle y. City Sav. Bk., 17 R, I. Code Civ. Pro. § 2642. 781 ; Weimar v. Eath, 43 N. J. L. 1 ; POWERS. 801 statutes, however, must be read in the light of the undoubted right of a donor to specify clearly by whom and under what conditions he intends that the power shall or shall not be executed.^ § 636. Execution with the Consent of Persons other than the Donees. — Not only may a power be given to several donees, thus making all of them the one instrument of the donor, but it may also be conferred on one or more donees, not to be executed, however, without the consent of the donor, or of one or moi-e third parties. Such a requirement must be strictly complied with, in order to make a valid execution of the power. And the death of any one or more of those whose consent is so required, per se, terminates the power, because it makes its K. S. (9th ed.) p. 1881 (2 R. S. 109), § 55. The substance of the first of these is that, where power to sell, mortgage, or lease real property is given to executors, as such, or as trustees, or as executors and trustees, if any neglect to qualify, the power may be executed by those who do qualify. And the substance of the second is that, when realty is devised to execu- tors to be sold, or is ordered to be sold by them, if any of them neglect or refuse to assume the execution of the will, those who do assume it may execute the power. And then the Real Property Law adds, generally: " § 146. Where a power is vested in two or more persons, all must unite in its execution; but if before its execution, one or more of such persons dies, the power may be executed by the survivor or survivors." The section last quoted was originally 1 R. S. 735, § 112. It is to be noted that it saves the power in no case except that of the death of one or more of the donees. Herriott v. Prime, 87 Hun, 95. None of these pro- visions in terms saves a power of sale once vested in executors, some of whom resign or are removed ; and it is doubtful if they were intended to do so. But there are some judicial utterances to the effect that they were intended to cover such cases, and others that the court may fill such a vacancy and its donee may act with those named by the testator who have qualified. See In re Van Wyck, 1 Barb. Ch. 565 ; Fleming v. Burnham, 100 N. Y. 1 ; Chaplin on Express Trusts and Powers, §§ 633-638. There is also an important dictum that, if power of sale be given to "executors hereinafter named," this is the same as if the testator said the power was to belong " to the perxnns whom I have hereinafter named as executors; " hence they do not take the power "as executors," but as individuals, and any of them named who do not qualify must nevertheless join in execut- ing the power, or it will not be validly executed. Dominick v. Michael, 4 Sand 374. Contra, Madden v. Madden, 23 L. R. Ir. 167, 172. See, also, Royce v. Adams, 123 N. Y. 402; Greenland v. Waddell, 116 N. Y. 234; Mott V. Ackerman, 92 N. Y. 539; Conklin v. Egerton, Adm., 21 Wend. 430; Taylor v. Morris, 1 N. Y. 341; Leggett u. Hunter, 19 N. Y. 445. 1 Kissam v. Dierkes, 49 N. T. 602 ; v. Prime, 87 Hun (N. Y.), 95 ; Hunter Fleming v. Burnham, 100 N. Y. 1; t. Anderson, 192 Pa, St. 386; Robin- Wilder'u. Kanney, 95 N. Y. 7 ; Herriott son v. Allison, 74 Ala. 254. 51 802 ESTATES IN REAL PROPERTY. execution impossible. In the absence of modifying statutes, there is no case in which consent of the survivors can then save or restore the power, unless such an emergency is provided for in its creation.^ Since the first day of October, 1896, the statute law of New York has been such that, in case of the death of one or more (less than all) of those whose consent is required, " the consent of the survivor or survivors is sufficient, unless other- wise prescribed by the terms of the power." ^ (a) § 637. Formalities Requisite to Valid Execution. — When no mode of executing the power is prescribed in its creation, it may be executed by deed or will, or any other writing. But, when the donor designates the instrument to be used, it must be executed by that instrument. A power ordered to be exe- cuted by will can not be executed by deed, and when directed to be executed by deed it can not be executed by will,^ The common law is also very stringent in requiring that all the formalities prescribed by the donor for the execution of a power shall be complied with. No matter how numerous, whimsical, or unessential in themselves they may be, they must (a) New York Real Prop. L. § 154, which in full is as follows: ' ' Where the consent of two or more persons to the execution of a power is requisite, all must consent thereto; but if, before its execu- tion, one or more of them die, the consent of the survivor or survivors is sufficient, unless otherwise prescribed by the terms of the power." The last clause of this is new, and took eifect Oct. 1, 1896, with the rest of the Real Property Law. See § 301. Section 153 of the same act, which was originally in substance 1 R. S. 736, § 122, also requires the consent to be expressed in the instrument executing the power, or in a certificate thereon, subscribed by the person consenting, and, in order to be recorded, acknowledged the same as a deed. Under these statutes, the death of all the persons required to consent will still end the power, un- less the donor provides otherwise. Kissam o. Dierkes, 49 N. Y. 602; Gulick V. Griswold, 14 App. Div. 85. And the donor may still, by explicit language, make the consent of any one or more of them an absolute prerequisite to its valid execution. Perry v. Tynen, 22 Barb. 137 ; Correll V. Lauterbach, 14 Misc. 469. See Hoyt v. Hoyt, 85 N. Y. 142 ; Chaplin on Express Trusts and Powers, §§ 641-643. 1 Hawkins v. Kemp, 3 East, 410; Cowp. 260; Matter of Gardner, 140 Barber v. Gary, 11 N. Y. 397, 400; N. Y. 122; Wilks u. Burns, 60 Md. 64. 1 Sugd. Pow. 253. A power not directed to be executed by 2 N. Y. L. 1896, ch. 547, §§ 153, 154, will may be executed by deed, though 301. it is not to take effect till tlie donee's 8 Wright V. Wakeford, 17 Ves. 454 death. In re Jackson's Will, L. R. 13 a; Earl of Darlington v. Pulteney, Ch. Div. 189. POWERS. 803 all be fulfilled : for " the person who creates the power has the undoubted right to create what checks he pleases to im- pose, to guard against a tendency to abuse." ^ And, at com- mon law, one unfortunate result, among others, of the courts' excessive strictness in this regard was that a power other- wise good, but directing any unimportant illegal formality, or the use of an insufficient instrument in its execution, was entirely void.^ The rule still remains everywhere that the kind of instru- ment (deed or will) prescribed by the donor must be used ; and that, when he fails to specify the kind, any writing that can pass the estate is sufficient. But the rigid exactness as to " accumulative ceremonies," as they have been styled, has caused remedial legislation in England and in many of the United States.^ In States with codes similar to that of New York, the general results of the statutes are that the power must be executed by an instrument sufficient to pass the estate, if the donee were its actual owner ; the power itself is good though some negligible, invalid formality may be pre- scribed, merely nominal and unessential conditions may be disregarded, and no formalities of execution, though ordered by the donor, need be observed, " in addition to those which would be sufficient by law to pass the estate." {a) (a) The New York statutes, Real Prop. L., declare that: " § 145. A power can be executed only by a written instrument, which would be sufficient to pass the estate, or interest, intended to pass under the power, if the person executing the power were the actual owner." " § 147. Where a power to dispose of real property is confined to a dis- position by devise or will, the instrument must be a written will, executed as required by law. § 148. Where a power is confined to a disposition by grant, it cannot be executed by will, although the disposition is not intended to take effect until after the death of the person executing the power. § 149. Where the grantor of a power has directed or author- ized it to be executed by an instrument not sufficient in law to pass the 1 4 Kent's Com. p. * 330 In the practically overruled. Burdett v. Spils- great leading case of Wright v. Wake- bury, 6 Man. & G. 386 ; Ladd v. Ladd, ford, 17 Ves. 454 a, this doctrine was 8 How. (49 U. S.) 9, 30, 40; 4 Kent's pushed to the extreme of making an Com. p. *330, note (c). execution invalid, where the donor re- ^ 1 Sugd. Pow. 250 ; 1 Chance, Pow. quired it to be done by a writing 310, "under hand and seal attested by wit- ' Stat. 1 Vict. ch. 26, applicable only nesses," and this was done, but the to wills ; N. Y. L. 1896, ch. 547, §§ 145, executing deed did not contain any 147-152 ; 1 Stim.Amer. Stat. L. §§ 1658, statement that it was attested by wit- 1659. nesses. But this decision has been 804 ESTATES IN EEAL PROPERTY. § 638. Po-wers must be strictly executed. — The Common- law exactness as to the instrument and formalities to be employed in the execution of powers, as explained in the pre- ceding section, is simply one of the prominent outcroppings of the universal underlying rule of stringency in regard to them. The intentions of the donor of a power, as to the manner, time, and conditions of its execution, must be scrupulously observed and carried out ; or tlie result is that it is not exe- cuted at all. The donees are his instrument ; and his wish, in so far as it is legal and unaffected by statute, must be their only guide. The books and cases abound with illustrations of this fundamental principle, (a) A brief summary of two or three more of the most conspicuous of them will here suffice. A power of sale does not include a power to mortgage, and viae versa. This is now recognized as true practically every- where, unless some language is added such as to evince an intention that the one authority should include the other.^ estate, the power is not void, but its execution is to be governed by the provisions of this article. § 150. Where the grantor of a power has directed any formality to be observed in its execution, in addition to those which would be sufficient by law to pass the estate, the observance of such additional formality is not necessary to the valid execution of the power." " § 134. A general and beneficial power may be created subject to a con- dition precedent or subsequent." '•§ 151. Where the conditions annexed to a power are merely nominal, and evince no intention of actual benefit to the party to whom, or in whose favor, they are to be performed, they may be wholly disregarded in the execution of the power." These sec- tions, in substance, were originally 1 R. S. IZp, § 113; 736, §§ 115, 116, 118-120, respectively. They practically restrict the instruments that may execute powers to valid deeds and wills. Matter of Gardner, 140 N. Y. 122. See Bostwick v. Beach, 103 N. Y. 414, 421. And, while they do not interfere with material and important conditions annexed to powers, they abrogate all requirements for unnecessary ceremonies in their ex- ecution. Woerz V Rademacher, 120 N. Y. 62, 68; Kissam v. Dierkes, 49 N. Y. 602; Chaplin on Express Trusts and Powers, §§ 622-627. (a) In New York, after doing away with unnecessary formalities, the statute reiterates the general common-law requirement as follows: "Ex- cept as provided in this article, the intention of the grantor of a power as to the manner, time, and conditions of its execution must be observed; subject to the power of the Supreme Court, to supply a defective execution as provided in this article." Real Prop. L. § 152, which was originally 1 R. S. 736, § 121. 1 Bloomer w. Waldron, 3 Hill (N. Y.), Lesser v. Lesser, 32 N. Y. Supp. 167 ; 361; Woerz w. Rademacher, 120 N. Y. Kent u. Morrison, 153 Mass. 137;. 62 ; SchoUe v. Scholle, 113 N. Y. 261 ; Greene v. Greene, 19 R. L 619; Atwater Arnoux w. Phyfe, 6 N. Y. App. Div. 605 ; t. Perkins, 51 Conn. 188; Campbell u. POWERS. 805 Nor does a power of sale give authority to exchange or parti- tion without a sale, or viae versa} And when executors are directed to sell or otherwise dispose of testator's real property, they can not validly execute the power unless there is some reasonable requirement for them to do so, — such as to pay debts, or to divide the property among the beneficiaries,^ — or unless the power is so broad and complete as to show the tes- tator's wish to place the matter absolutely in their discretion.^ So, a power to appoint to children does not confer a right to give any of the property to grandchildren, unless there is something in the grant to show an intent to include the latter.* But a power of appointment to " issue " authorizes gifts to any of the descendants of the ancestor named. ^ The clear principle back of all these results is that the donor's legal wish is the absolute law for his donees.^ Improper Execution ; Non-Execution. § 639. Escessive Execution of Powers. - — One of the forms of improper execution of powers is that which is excessive, or beyond the authority conferred. The excess may be in the interest conveyed, as where under a power to appoint a life estate a fee simple is attempted to be given ; or in the objects or beneficiaries, as where a power to appoint among children is exercised in favor of grandchildren also ; or in the annexation of unauthorized conditions to the estates appointed, as where under a power to convey only an absolute life interest a life estate on condition subsequent is attempted.^ Foster Howe Ass'n, 163 Pa. St. 609; way Bk., 156 N. T. 459; Loring v. Loebenthal v. Ealeigh, 36 N. J. Eq. 169 ; Brodie, 134 Mass. 453. Cherry c. Greene, 115 111. 591; In re * Horwitz v. Norris, 49 Pa. St. 213, Bellinger (1898), 2 Ch. 534. 217 ; Thorington v. Hall, 111 Ala. 323; 1 King V. Whiton, 15 Wis. 684; 4 Kent's Com. p. * 345. Carr, Petitioner, 16 E. I. 645 ; Heard v. '4 Kent's Com. p. *345. Read, 171 Mass. 374; 2 Perry on Trusts, ^ See also In re Perkins (1893), § 769. " 1 Ch. 283 ; Dana v. Murray, 122 N. Y. 2 Hetzel ^. Barber, 69 N. Y. 1; 604; Hillen v. Iselin, 144 N. Y. 365; Trask v. Sturges, 170 N.Y. 482; Mel- Bates v. Bates, 134 Mass. 110; First len I). Mellen, 139 N. J. 210; Sweeney Nat. Bank o. Michigan Trust Co., 105 V. Warren, 127 N. Y. 426; O'Flynn v. Mich. 107; Taussig v. Reel, 134 Mo. Powers, 136 N. Y. 412. 530; Pottle i;. Lowe, 99 Ga. 576; 8 Sweeney v. Warren, 127 N. Y. 426 ; 2 Perry on Trusts, ch. xxv. Walter o. Tompkins, 71 N.- Y. App. ' Sugd. Pow. 498 ; Tud. Lead. Cas. Div. 21. See Kilpatrick v. Baron, 125 K. P. 306. N. Y. 751 ; First Nat. Bk. v. Nat. Broad- 806 ESTATES IN REAL PROPERTY. Whenever, in such instances, the excessive and therefore invalid part of the appointment can not be distinguished from that which is valid, the entire scheme of execution must fail.^ An illustration may be found in an appointment to three chil- dren, when the power is to select any two of them. It being impossible to ascertain which two would have been selected if the power had been properly executed, the entire appointment is void. Otherwise, the general principle is " that the execu- tion of the power will not be defeated because of some provision in excess of the power which may be eliminated without dis- turbing the general scheme." ^ But in the practical application of that principle equity has always been much more liberal than law. The difference between the two tribunals, in this particular, is that, while a court of law will treat the entire appointment as void unless the excessive part stands out sepa- rate and distinct from that which is valid, equity will take care to separate the two and let the good part stand, when this can be fairly and reasonably done. Thus, if the donee of a power to appoint a life estate attempt to execute it by giving a fee, the appointment is wholly void at law ; but in equity it results in conferring a life estate.^ Whereas, in both equity and law, an appointment to children and grandchildren is good as to the children, when the power is for their benefit alone;* and in both courts an execution will be upheld, divested of unauthor- ized conditions which stand out — as they usually do — apart and distinct from the chief scheme of the appointment.^ (a) (a) The New York statute con&ms and makes generally applicable the equitable doctrine on this matter, as follows : " A disposition or charge by virtue of a power is not void on the ground that it is more extensive than was authorized by the power ; but an estate or interest so created, so far as embraced by the terms of the power, is valid." Real Prop. L. § 157, originally 1 R. S. 737, § 123 ; Hillen v. Iselin, 144 N. Y. 365. 1 Alexander v. Alexander, 2 Ves. Sr. years is validly executed for that period, 640 ; Little, Ex'or v. Bennett, 58 N. C. in equity but not in law, though the 156; Myers v. Safe Dep. & Trust Co., attempt be made to execute it for 73 Md. 413. twenty-two or more years. Ibid. ;Camp- 2 Hillen v Iselin, 144 N. Y. 365, 380 ; bell v. Leach, Ambler, 740 ; Sinclair v. Horwitz V. Norris, 49 Pa. St. 213; Far- Jackson, 8 Cow. (N. Y.) 543, 581. well, Pow. 312. 4 Ibid.; In re Brown's Trust, L. R. ^ Alexander v. Alexander, 2 "Ves. Sr. 1 Eq. 74 ; Horwitz v. Norris, 49 Pa. St. 640; Sadler U.Pratt, 5 Sim. 632; Wick- 213. ershiim ;;. Savage, 58 Pa. St. 365; ^ Saddler «. Pratt, 5 Sim. 632; Pep- Sugden, Pow. 519; Farwell, Pow. 312. per's Appeal, 120 Pa. St. 235; Cruise, And so a power to lease for twenty-one Dig. tit. xxxii. oh. xvii. §§ 54, 55. POWERS. 807 § 640. Defective Execution — Hovr far aided by Equity. — Where the donee of a power has properly exercised it in part, i. e., has not exhausted his authority, but has made no mistake in that which he has done, as when, being directed to divide several farms, he has rightly divided one of them, the execution is good pro tanto} But a defective execution, whether it arises from failure to comply with required formalities, or from an appointment so partial and incomplete that it can not be treated as a perfect act, is wholly nugatory at law.^ Treating that as done which ought to be done, equity cor- rects defective executions of powers, in favor of certain classes of persons, and in cases in which the failure to execute properly is merely in matter of form and not of the essence of the power. The persons or beneficiaries in whose favor this is done are purchasers, creditors, or lessees, — those who have given value for the appointment,^ — and charities,* and the wife or legiti- mate children of the appointor.^ And the errors in formalities which are so corrected are illustrated by the use of an unsealed instrument when a seal is required,^ or by an inaccurate descrip- tion of the land, or by the attestation of only two witnesses when the terms of the power call for three.'^ Any mistake merely in the making of the instrument, other requisites of the execution of the power being rightly carried out, will be so aided ; and even an execution by will may be thus sustained, al- though it should have been by deed.^ But an execution ordered to be made by will can not be carried out even in equity if made by deed, because this would be to take away its revocable char- acter before the death of the donee.^ Neither can a defective execution of a statutory power be relieved in equity, since this would violate the legislative requirements.^" And wherever the defect is in the substance of the power, as, for example, an appointment to A, when it was only authorized to be made to 1 Tud. Lead. Case, R. P. 422 ; Beav. 500 ; Porter v. Turner, 3 S. & R. 2 Chance, Pow. 511. (Pa.) 108; 2 Sugd. Pow. 93, 94. 2 Ibid. ; Sugd. Pow. 521. ^ Smith v. Ashton, 1 Ch. Cas. 263. » Cotter V. Layer, 2 P. Wms. 623; ^ Sergeson v. Sealey, 2 Atk. 412; Schenek v. EUingwood, 3 Edw. Ch. Schenck v. Ellingwood, 3 Edw. Ch. (N. Y.) 175; Mat. Life Ins. Co. v. (N. Y.) 175. Everett, 40 N. J. Eq. 345; Beatty !,. » Toilet v. ToUet, 2 P. Wms. 489; Clark, 20 Cal. 11 ; 2 Chance, Pow. 494. Sugd. Pow. 558. * Saver v. Sayer, 7 Hare, 377 ; ^ Bentham v. Smith, 1 Chev. Eq. 2 Chance, Pow. 497. (S. C.) 33 ; 1 Story's Eq. Jur. § 97. 5 Fothergill v. Fothergill, 1 Eq. Gas. i" Smith v. Bowes, 38 Md. 463 ; Far- Abr. 222, pi. 9 ; Morse v. Martin, 34 well, Pow. 343. 808 ESTATES IN REAL PEOPEETT. B, it can not be corrected as a mere defect. Neither can a par- tial or incomplete appointment, which can not be treated as a distinct, perfect act, be corrected in equity as a mere defect^ If any aid can be obtained in such cases, it must be on the ground of fraud, or on that of non-execution, as explained in the follow- ing section. When equity affords relief in case of the defective execution of a power, it is usually by compelling a conveyance of the property to him to whom it would have gone if the power had been rightly executed in the first instance, (a) § 641. Non-Exeoutiou — How far Equity corrects. — When an attempt has been made to exercise a power, but the result is incomplete or imperfect, a basis for equitable relief is afforded in such instances as those mentioned in the last preceding section, because a scheme of proper execution is supplied and appointees are named whose rights should be preserved. On failure of the donee to do anything in regard to the power, this ele- ment does not exist. And hence the general rule of equity is not to afford any relief in case of the non-execution of a power, unless there is coupled with it a trust or duty which clearly ought to be performed. Dealing, therefore, with the division of powers into beneficial and in trust, it may be stated as a settled rule that no court will compel the execution, nor itself execute, those of the former kind. The donee of a beneficial power may appoint to himself, or to others, or to both, as he may choose ; and if he prefer not to exercise the right and authority (a) Two different sections of the New York Real Property Law provide for the correction of defective execution of powers. They are ; " § 143. — Wliere the execution of a power in trust is defective, wholly or partly, under the provisions of this article, its proper execution may be adjudged in favor of the person designated as the beneficiary of the trust." " § 160. — A purchaser for a valuable consideration, claiming under a defective execution of a power, is entitled to the same relief as a similar purchaser, claiming under a defective conveyance from an actual owner." These were originally 1 R. S. 737, §§ 131, 132. While the first of these sections speaks only of powers in trust, and the second of purchasers only, they are to be read as confirmatory and supplementary of equity's power, and not exclusive of other cases of relief. And the New York courts will correct all forms of defect mentioned in the text as calling for equitable assistance, Bostwick i\ Beach, 103 N. Y. 414, 421 ; Barber v. Gary, 11 N. Y. 897; Matter of Gantert, 136 N. Y. 106 ; Hillen v. Iselin, U4 N. Y. 365. 1 Austin V. Oakea, 48 Hun (N. Y.), 492, 496, aff'd, 117 N. Y. 577; Ilillen c. Iselin, 144 N. Y. 365. POWERS. 809 which may be utilized to his own advantage, it is proper tliat he should not be interfered with in his choice.^ But, a power in trust, in its essential nature, places upon the donee a duty to execute it, and thereby to dispose of property, in favor of some person or persons other tlian him- self.^ Such a duty in form may be accompanied with entire discretion in the donee as to whether it shall be carried out; or, as is more frequently the case, it may be an absolute require- ment, without any such discretion. The proper execution of the latter kind of trust power — the perfect and enforcible obligation which makes the donee similar to a trustee*^ — ■ will be compelled by equity, if possible, though against his will ; or, if he be dead or can not be reached, it will be executed by that court itself.* In summary, then, equity will not move in aid of the non- execution of a beneficial power, nor of a trust power the exe- cution of which is in the entire discretion of the donee ; but it will see to the carrying out of the purpose of other powers in trust, (a) (a) The New York statute emphasizes these results as follows : — "A trust power, unless its execution or non-execution is made expressly to de- pend on the will of the grantee, is imperative, and imposes a duty on the grantee, the performance of which may be compelled for the benefit of the person interested. A trust power does not cease to be imperative where the grantee has the right to select any, and exclude others, of the persons designated as the beneficiaries of the trust." Real Prop. L. §137, origi- nally 1 K. S. 734, §§ 96, 97. Thus a trust power, not made in its creation wholly discretionary, is as imperative as an active trust. Dominick v. Sayre, 3 Sandf. 555; Downing u. Marshall, 23 N. Y. 366, 380; Coleman v. Beach, 97 N. Y. 545; Hughes u. Mackin, 16 App. Div. 291,295; Tilden V. Green, 130 N. Y. 29 ; People v. Powers, 147 N. Y. 104 ; Holland v. Alcock, 108 N. Y. 312 ; p. 467, supra, and cases there cited. It is to be noted here, also, that, in case of the death of a sole or last surviving donee of a power in trust, the duty devolves on the Supreme Court, and is to be executed by a person appointed by it ; and, in case of the resignation or removal of such a donee, a substitute is to be appointed by that Court. In these respects, donees of powers in trust are treated the same as active trustees. Also the new law which restores trusts for charity, and prevents indefiniteness as to beneficiaries from defeating them, is made applicable to powers in trust for charity. Real Prop. L. §§ 162, 91-93 ; pp. 498-503, supra. 1 Tomkin v. Sandys, 2 P.Wpia. 228 n. ; ' But note again that the distinction Towler v. Towler, 142 N. Y. 371 ; Sites between a trustee and a donee of a, V. Eldredge, 45 N. J. Eq. 632 ; Security power is that the former must have the Co. V. Snow, 70 Conn. 288 ; Sugd. Pow. title, while the latter need not. §§ 332, 392. 333, supra. 2 § 333, supra. * P. 467, notes 1 and 2, supra. 810 ESTATES IN EEAL PROPERTy. § 6-1:2. Execution of Trust Powers by Equity. — As equity will not allow a valid trust to fail for want of a trustee,^ so it will not permit a power in trust to go unexecuted because no donee is named, or the donee dies, or for any other reason can not be compelled to act. The court itself will execute an imperative trust power, in cases in which the donee can not be made to perform the duty. And in doing this equity follows, if reason- ably possible, any scheme of distribution set forth or outlined by the donor. Otherwise, it acts on the maxim that " equality is equity," and divides the property equally among the bene- ficiaries.^ And, of course, the latter method of appointing is the one most frequently required. Thus, on a gift of land to A for life, " with the right and privilege of disposing of the same by will or devise to his children, if any he should have," if A die without exercising the power, the court will divide the land equally among his children.^ But, when the authority is to distribute to the members of a family according to their necessities or "degrees of poverty," the best considered cases declare that the court will investigate as far as it reasonably can the circumstances and needs of the appointees, and make the distribution accordingly.* There have been some strong dis- sents, however, against such a rule, and declarations that in all cases of execution by the court the division must be equal.^ And in New York the statute expressly requires that the shares of the beneficiaries shall be equal, whenever the court appoints after the death of a donee who had a right of selec- tion, (a) (a) The words of the New York statute are : — "If the trustee of a power, with the right of selection, dies leaving the power unexecuted, its execution must be adjudged for the benefit, equally, of all the persons designated as beneficiaries of the trust." And it is added that '• Where a power in trust is created by will, and the testator has omitted to desig- ^ Pee pp. 458, 459, supra. clared that it is impossible, or inconsist- ^ Salusbury v. Dentou, 3 Kay & J. ent with the dignity of the court, " to 529; Loiigmorc i.'. Broom, 7 Ves. 124; distinguish between degrees of poverty." Uuiniiiick v Sayre, 3 Saudf. (N. Y.) But it seems clear that dignity should 555 ; Greenland v. Waddell, 116 N. Y. not stand in the way if the thing can be 234, 242 ; Frazier k. Frazier, 2 Leigh intelligently and reasonably done See (Va.), 642 ; Glover v. Coudell, 163 lU. Lord Hardwicke's opinion in Gower ". 566 ; 1 Perry ou Trusts, § 255. Mainwaring, supra, and Mr. Perry's re- ^ Smith u. Floyd, 140 N. Y. 337. marks, in his work ou trusts, § 255 ' Gower w. Mainwaring, 2 Ves. Sr. ^ Ibid.; Withers u. Yeadon, 1 Rich. 87; llewett o. Ilevvett, 2 Eden, 332; Eq. (S. C.) 324; McNeilledge 9 ; Pells v. Brown, Cro. Jac. 590. for gestation of a child. And, finally, Then it was extended to any number it was settled that the twenty-one years of lives !7i6c/n(;, bythe Dukeof Norfolli's might be made as an absolute period, Case {3 Ch. Cas. 1), which may be without regard to any minority. Cadell regarded as settling the principle in- v. Palmer, 1 CI. & Fin. 372 ; Digby, volved; and this change was allowed Hist. Law R. P. (5th ed.) p. 365. The because it simply makes the measure- two centuries required for the working ment the longest life of those named — out of this important piece of judicial "the candles are all burning at once." legislation closed, in 1 833, with the iinal See also, Goring v. BickerstafEe, Pollexf . decision of the last-named case. Lewis 31 ; Taylor d. Smith v. Biddal, 2 Mod. on Perpetuity, pp. 140-162; Gray, Per- 289. Then, after much debate, the petuities, ch. v. 840 ESTATES IN REAL PROPERTY. always permitted, and still permits, property of any kind to be " tied up," or rendered unmarketable, or largely so, during a reasonable length of time. All are agreed that it is an attempt to clog or restrict its alienability heyond the reasonable period allowed that produces a perpetuity. There has been a notable discussion, however, by the authorities (resulting in two dis- tinct rules), as to whether in order to work a perpetuity the restriction must be absolute, or merely such as to postpone vesting and so to create remoteness because of a condition prec- edent. On the one side of the controversy it is said that no perpetuity can exist, unless for a period beyond that allowed by law the property is made " unalienable though all mankind should join in the conveyance ; " ^ on the other side it is con- tended that a perpetuity arises from every interest which will not become vested till a very remote period, even though as a contingent right or possibility it may be alienable or destruc- tible.^ According to the first of these views, no common law remainder, however far postponed in the future it may be, can produce a perpetuity, because if vested it may be sold and if contingent it may be destroyed at any moment by the owner of the present particular estate — by proper proceedings the property may be at once aliened in fee simple.^ But the other view regards a contingent remainder at common law as pro- ducing a perpetuity whenever it is such that it may not become vested in interest within the prescribed period of a life or lives in being and twenty-one years and a fraction of a year.* The first of these contentions, then, taking the word " perpetuity " in its primary and natural sense, treats the rule against per- petuities as a principle which forbids too long a suspension of the absolute power of alienation — proliibits property from being taken wholly out of tlie market for too long a time. The other, adopting a secondary and artificial meaning of the word " perpetuity," treats the rule as one against " remote- ness " — as not only forbidding an undue suspension of the absolute power of alienation, but also precluding all contingen- ' Powell, J., in Scatterwood v. Edge, pp. 97-153 ; Gray, Perpetuities, ch. vii.; 1 Salk. 229, 230.; Cole v. Sewell, 4 Dr. In re Hargreaves, L. R. 43 Ch. Div. &War. 1,28, 2H.L.Cas. 186; Birmiug- 401; Winsor v. Mills, 157 Mass. 362; ham Canal Co. v. Cartwright, L. R. 11 Madison v. Larmon, 170 111. 65. Ch. Div. 421 ; Wms. R. P. (13th ed.) s Lord Chancellor Sugden, in Cole pp. 274-277 ; Challis, R. P. p. 159 ; 1 v. Sewell, 4 Dr. & War. 1, 28 ; Challis Perry on Trusts, § 377. R, P. p. 159. 2 Lewis, Perpetuities, ch. 16, supp. « Gray, Perpetuities, §§ 285, 286. PERPETUITIES AND ACCUMULATIONS. 841 cie8 that are far in the future, even though the property may remain all the time alienable.' From either point of view, the rule forbids undue suspension ; but from one of them it is the suspension of the absolute power of alienation, and from the other the suspension of vesting. Each of these divergent theories needs further separate discussion. Then, treating them together as rules against illegal suspension, the law ap- plicable to them both will be explained, together with the dif- ferent results which arise from this divergence of opinions. § 662. A Perpetuity regarded as an Illegal Suspension of the Absolute Power of Alienation. — Many of the best authorities in both England and America, following the lead of Lord St. Leonards and Sir Edward Sugden,^ have unquestioningly treated the word perpetuity as having its primary and natural meaning ; and the rule against perpetuities, which was evolved by the courts through more than two centuries of discussion, as simply and only a rule against illegal suspension of the absolute power of alienation. " The absolutepowerofalieiiar___ tion is suspended when there are no persons in being by whom an absolute fee in possession can be conveyed. " ^ For example, a remainder to an unborn person suspends the absolute power of alienation, because there are no persons in being who can convey that remainder, and therefore no persons in being can convey an estate in fee simple in the land.* Until the absolute power of alienation is suspended, say these authorities, — until in the manner just illustrated or in some other way the property is rendered absolutely unmarketable for a time — no question as to a perpetuity can exist. And, when the absolute power of alienation is suspended, there is no perpetuity unless the suspension is for a longer period than the law allows. This is the most practical and the most easily applied concep- tion of the rule against perpetuities. And it is the theory on which is based all the legislation of states, such as New York, Michigan, Minnesota, Wisconsin, Kentucky, Alabama, Missis- sippi, Ohio, Indiana, Iowa, Idaho, California and the Dakotas, in which the matter has been dealt with by statutes.^ It re- 1 Gray, Perpetuities, § 140. L. 1896, ch. 547, § 32, originally 1 K. S. 2 In Cole 0. Sewell, 4 Dr. & War. 723, §§ 14-16. 1, 28, * Haynes v. Sherman, 117 N. Y. 433 ; 8 This is the way in which the New Sawyer ;■. Cubby, 146 k. Y. 192. York revisers of 1827-1830 declared * N. Y. L. 1896, ch. 547, § 32 ; I the meaning of that expression. N. Y. Stim. Amer. Stat. L. §§ 1440-1442 ; 842 ESTATES IN REAL PEOPERTT. gards the rule as meant simply to obviate the mischiefs that arise from making property too long inalienable, and so remov- ing it too far from the path of commerce and enterprise. It is believed to be the true theory, which is sanctioned by the cause for the existence of such a principle, by the history of its development and by the weight of authority at the present time.^ § 663. A Perpetuity regarded as an Illegal Suspension of Vesting. — Mr. Lewis and Mr. Marsden, in their works on Per- petuities, and, following them, Professor Gray have strongly contended that the rise and history of the rule show it to be one against " remoteness " of vesting, rather than against absolute suspension of alienability.^ Summarizing the reasons for this view, Professor Gray says : " It is not the inaliena- bility of the interest on a remote contingency, but its utterly uncertain value, which furnishes the sufficient justification, if it was not the original ground, of the rule against perpetuities. If there is a gift over of an estate on a remote contingency, the market value of the interest of the present owner will be greatly reduced, while the executory gift will sell for very little, or, in other words, the value of the present interest plus the value of the executory gift will fall far short of what would be the value of the property if there were no executory interest. And further, if the owner of the present interest wishes to convey an absolute fee, the holder of the executory gift can extort from him a price which greatly exceeds what it ought to be, if based on the chance of his succeeding to the prop- erty." ^ The English courts, in their recent decisions, appear to have accepted as correct this reasoning and the resulting theory.* And the same is true of the courts of several states of this country, such for example as Massachusetts, Pennsyl- vania, New Jersey and Illinois.^ And this view is said by some writers to express the rule against perpetuities.^ Chaplin, Suspension of Power of Aliena- greaves, L. E. 43 Ch. Div. 401; In re tion, Appendix. Turney (1899), 2 Ch. 739 ; In re Bowles 1 See Challis, R. P. p. 1.59 ; 4 Kent's . (1902), 2 Ch. 650; Moore v. Wingfield Com. p. *267; Becker v. Chester, 91 (1903), 1 Ch. 874. N. W. Rep. (Wis.) 87; Authorities * Winsor v. Mills, 1.57 Mass. 362', cited at end of § 663, infra. Johnston's Estate, 185 Pa. St. 179, 189 ; ^ Lewis, Perpetuity, Supp. pp. 16-19; Shallcross's Estate, 200 Pa. St. 122; Marsden, Perpetuities, ch. iii.; Gray, Stout v. Stout, 44 N J. Eq. 479 ; Madi- Perpetuities, ch. v. son v. Larmon, 170 111. 65 ; Chapman w. 5 Gray, Perpetuities, § 269. Cheney, 191 111. 574; Andrews v. * London & S. W. R. Co. v. Gomra, Lincoln, 95 Me. .541. L. R. 20 Ch. Div. 562 ; In re Har- » Gray, Perpetuities, § 269 ; Tiffany, PERPETUITIES AND ACCUMULATIONS. 843 This theory of one of the most important and farthest- reaching principles that the common law has ever produced is an after-thought of text-writers, which has been adopted by some of the courts. It certainly was not the original judicial conception of a perpetuity.^ The Anglo-Saxon policy as to values has generally been to let them regulate and care for themselves. Otherwise, there would doubtless have been numerous rules for compelling alienation by joint tenants and tenants in common, for examples, in many cases of which the price of the interests of some of the owners may be as in- juriously affected, by the refusal of the others to sell or release, as if the latter were contingent remaindermen. " Te teneam moriens " (dying I will keep you) " is the djnng lord's apostrophe to his manor, for which he is forging these fetters that seem, by restricting the dominion of others, to extend his own." ^ This is Mr. Jarman's epitome of the cause of the rule under discussion — the paternal search of men with families and fortunes for a means of indissolubly uniting the two. It was to counteract this tendency, so injurious to the public, that there arose an application of fines and common recoveries to the barring of estates tail.^ And, when the courts saw the same mischiefs accompanying remote executory interests, they were impelled by the same motives as before to build up a rule for retaining property in the market. They did not mean, at the beginning at least, to build up that rule against common-law contingent remainders, simply because they were contingent, but they did mean to raise it against the new forms of future interests that arose after the Statutes of Uses and of Wills — the executory interests — that were bringing with them the new danger to business and com- merce.* Mr. Challis, than whom' modern times have produced no more astute writer on the law of real property, says : " That the rule against perpetuities applies (apart from express statutory enactment) to legal limitations made by way of re- Modem Law R. P. § 152; Chaplin, 2 1 Jarman on Wills (ed. 1861), note. Suspension of Power of Alieuation, quoted in 1 Perry on Trusts, § 377, Preface. note 6. 1 Gray, Perpetuities, ch. v.; Chud- " Digby, Hist. Law R. P. (5th ed.) leigh'a Case, 1 Rep. 119 b, l.'O a; pp. 252-258. Duke of Norfolk's Case, 3 Ch. Cas. 1 ; * Scatterwood u. Edge, 1 Salk. 229 Brattle Square Church v. Grant, 3 Gray Duke of Norfolk's Case, 3 Ch. Cas. 1 (Mass.), 142, 156; Becker v. Chester, Cadell v. Palmer, 1 CI. & Fin. 372 91 N. W, Rep. (Wis.) 87; Fowler's Cole w. Sewell, 4 Dr. & War. 1, 28. Real Prop. Law of N. Y. p. 153. 844 ESTATES 'IN REAL PEOPERTT. mainder is one of those questions which ought never to have arisen. It implies an anachronism which may be said to trench on absurdity." ^ As already explained,^ the rule must always have applied to contingent remainders, if it were intended to be a rule against remoteness of vesting. In view of an utterance like that of Mr. Challis, supported as it is by long lines of carefully considered cases on both sides of the Atlantic,-^ by the opinions of such jurists as Lord St. Leonards,* Sir Edward Sugdeu,^ Mr. Williams^ and Chancellor Kent,'^ by the English Commissioners of real property ^ and by the prac- tical legislators who have settled this matter by statute in many of the United States,^ it seems to be safe to assert that the conception of a perpetuity as a " remoteness " is a digres- sion, made by some of the best courts and text-writers, and that the common-law rule against perpetuities is that which concerns itself simply with the illegal suspension of the absolute power of alienation.^" § 664. The Legal Period of Suspension. — It has appeared from the preceding discussion that the period of legal suspen- sion, finally settled on by the common-law courts after more than two centuries of discussion, is that of a life or lives in leing and twenty-one years and a fraction afterwards. ^^ The fraction is measured by the period of gestation of a child ; and so the limitation is sometimes said to be within " the period of a life or lives in being (treating a child in its mother's womb as in being) and twenty-one years afterwards." ^^ Treating thus a child en ventre sa mere as in being, there may be two periods of gestation within the legal time of suspension. Thus, if land be devised successively for life to any number of living ^ Challis, R. P. p. 159. resultsinsomemay be traced to statntea. 2 § 661, supra. But they reveal the thought of some " Some of the most important of of the best judicial minds upon this these are Cole v. Sewell, 4 Dr. ^ War. matter. See Tud. Lead. Cas. R. P. p. I, 28 ; Stephens v. Stephens, Cas. temp. 357 et spq. Talb. 228 ; Birmingham Canal Co. v. * Cole v. Sewell, 4 Dr. & War. 1, 28. Cartwriglit, L. R. 11 Ch. Div. 421; 6 lyd. Avern v. Lloyd, L. R. 5 Eq. 383; ^ Wms. R. P. pp. *318, *319. Gilbertsou c. Richards, 4 H. & N. 277, ' 4 Kent's Com. p. * 267. 5 H. & N. 453 ; Brattle Square Church v. 8 Report, vol. 3, pp. 29-31. Grant, 3 Gray (Mass.), 142; McArthur 9 § 662, supra. !■ Scott, 113 U.S. 340,381,383; Hop- "> See, also, 8 Harvard Law Rev. 212. kins V. Grimshaw, 165 U. S. 342, 355 ; " § 660, supra. Manice i). Manice, 43 N. Y. 303 ; Sawyer ^^ Judge Gray, in Hopkins v. Grim- II. Cubby, 146 N. Y. 192, 198 Some of shaw, 165 U. S. 342, 355. And see these cases present only dicta, and the Moore v. Wingfield (1903), 2 Ch. 4X1. PERPETUITIES AND ACCUMULATIONS. 845 persons and then in fee to the testator's grandchildren who sliall attain the age of twenty-one, the gift is good at common law, although the only grandchild who lives to be twenty-one is a posthumous ' child of the testator's posthumous child.^ Such an illustration shows the utmost limitation allowed. The expression "lives in being," in this rule, means in being when the deed is delivered, in case the disposition is by deed ; and in being at the death of the testator, when the disposi- tion is by will. 2 And, bearing in mind that twenty-one years are allowed as an absolute period not measured in any way by lives, a few other illustrations of legal suspension may be pro- fitably noted. A gift of land to trustees, who must hold and not sell it, to pay the net income to designated beneficiaries for twenty-one years, and then to divide the corpus among the donor's grandchildren who may be living at that time, is valid, since the suspension is only for twenty-one years.^ A grant in trust, to be held for the benefit of all the members of a class, all of them being then in being, and then in trust for others for twenty-one years after the death of the last member of the class, and then over to ultimate remaindermen in fee, though some of these latter are not in being at the time, is good, be- cause all the ultimate gifts must vest and become alienable im- mediately at the expiration of the number of lives in the class and twenty-one years beyond. So, any gift by devise to grand- children of the testator, though they are forbidden to own or alien it till they are of full age, is good ; for it can not cause a suspension longer than during the lives of his children and twenty-one years and a fraction beyond.* But a gift for the life of a person not in being, and then to his children, is void as causing too great a suspension. And after a grant has been made to A and his heirs, an attempted gift to B in fee if A die without heirs (meaning an indefinite failure of A's heirs — when A's heirs are all dead) is void, because neither B nor his heirs might own or be able to convey the land until many generations yet to be born. ^So, a devise to all of testator's grandchildren, not to be theirs nor alienable, however, till they are twenty-two years of age, is invalid, because one year longer ^ Thellussou v. Woodford, 1 1 Ves. 372 ; Connecticut Trust and Safe De- ll 2, 143; Gray, Perpetuities, § 221. posit Co. v. Hollister, 74 Conn. 228; 2 McArthur v. Scott, 113 U. S. 340 ; Gray, Perpetuities, §§ 223, 224. Tud. Lead. Cas. R. P. p. 361 ; Gray, * Gerber's Estate, 196 Pa. St. 366; Perpetuities, § 231. Eldred c. Meek, 183 111. 26; Gray, Per- » Cadell V. Palmer, 1 CI. & Fin. petuities, § 370. 846 ESTATES IN REAL PROPERTY. in its scope than the law allows.^ It is hoped that these few obvious illustrations have made clear the general scope of the common-law rule. In several of the United States, statutes have cut down the legal period of suspension to a designated numher of lives in being, and not more than twenty-one years and a fraction be- yond. Thus, in New York, (a) Michigan, Minnesota and Wis- (a) The New York statute declares that, — " The absolute power of alienation is suspended, when there are no persons in being by whom an absolute fee in possession can be conveyed. Every future estate shall be void iu its creation, which shall suspend the absolute power of alienation, by any limitation or condition whatever, for a longer period than during the continuance of not more than two lives in being at the creation of the estate ; except that a contingent remainder in fee may be created on a prior remainder in fee, to take effect in the event that the persons to whom the first remainder is limited die under the age of twenty-one years, or on any other contingency by which the estate of snch persons may be deter- mined before they attain full age. For the purposes of this section a minority is deemed a part of a life and not an absolute term equal to the possible duration of such minority." Real Prop. L. § 32, originally 1 R. S. 723, §§ 14-16. Tersely put, the meaning of this is that, after the prop- erty is made unmarketable for two lives in being (lives of A and B), the next gift must be in fee (to C) ; but it may be validly added, " if C die" (or marry, or any other designated event occur) " before he is twenty-one, it is then to go to D in fee." When D is at the time of the gift an unascer- tainable person, this may make the property inalienable till it is settled whether or not it is to go to D. And the longest possible period thus in- volved ia during the lives of A and B and the gestation and minority of C. The period thus prescribed can not be measured by any definite time, not associated with lives or a portion of a life. Thus, an attempt to ren- der land inalienable for two years, without reference to the duration of any life or any minority, is void. But if the suspension were made to last for two years, if A (in being) live that long, or until B (in being) becomes of age, so that it must terminate at A's death, or at B's majority or death, if this happen within the two years, it is valid, because its utmost length ia during a life in being or a part of such a life. Smith v. Chesebrough, 82 App. Div. 578; McGuire v. McGuire, 80 App. Div. 63; Montignani v. Blade, 145 N. Y. Ill; Steinway v. Steinway, 163 N. Y. 183; Cooper v. Heatherton, 65 App. Div. 581 ; Brown v. Brown, 54 App. Div. 6. So, in- structions to an executor to sell land "in the spring," leaving him the power to sell before then, does not suspend the power of alienation. Deegan «. Wade, 144 N. Y. 573, 576. See Henderson v. Henderson, 113 N. Y. 1. In order to cover all cases of attempted long suspension of real- property ownership, the New York statute also declares that, — " All the provisions contained in this article, relative to future estates, apply to limitations of chattels real, as well as of freehold estates, so that the abso- 1 Last preceding note ; § 660, supra. PERPETUITIES AND ACCUMULATIONS. 847 consin, it is restricted to not more than two lives in being, a minority and the period of gestation.^ And juiJiliiairatiQILof the longest legal suspension under these statutes is found in a devise of land in trust, to pay the net income to A during his life, and then to B during his life, A and B both being persons in being at the time of the testator's death ; and, after the death of both of tliem, the land to belong to B's youngest son and his heirs, provided that if such son die before he is twenty-one, the land is to belong in fee simple to the person who may be at that time mayor of New York City. This may cause a suspension during the lives of A and B, two persons in being ; then during the gestation of B's youngest son, who may or may not be a posthumous child ; and then till that son is twenty-one years old, when he will own the land absolutely and can convey it in fee simple.^ It is to be reiterated here, that, in states where such legislation exists, a perpetuity can not exist merely because of the existence of a contingency ; but it can arise only because tlicre is a suspension of the absolute power of alienation for a period beyond that prescribed by the statute.^ A gift on an indefeasible trust for three or more lives in being, for example, must be either wholly or partly void in any of the states just mentioned.* § 665. A Legal Suspension must be such as not possibly to exceed the Period allowed. — In order to be valid, the suspen- sion must be sucli that it must terminate within the period pre- scribed by the rule against perpetuities. If events may so occur as to make it extend beyond that period, it is treated as if such events were sure to occur ; and so it is wholly or partly invalid.^ If, for example, a testator who dies leaving children devise land to all his grandchildren and the survivors or sur- vivor of them so long as any of them may live, and then to lute ownership of a term of years shall not be suspended for a longer period than the absolute power of alienation can be suspended in respect to a fee." Real Prop. L. § 39, originally 1 R. S. 724, § 23. 1 N. Y. L. 1896, ch. 547, § 32 ; Chap- 8 § 662, supra. lin, Suspension of Power of Alienation, * Hawley v. James, 16 Wend. 61. Appendix; 1 Stim. Amer. Stat. L. ' Langdon v. Simson, 12 Ves. 295; §§ 1440-1442. Hanley v. Kansas & T. Coal Co., 110 2 Manice ?'. Manice, 43 N. Y. 303; Fed. Rep. 62; Haynes v. Sherman, 117 Haynes o. Sherman, 117 N. Y. 433; N. Y. 433; Schlereth v. Schlereth, 173 Toms y. Williams, 41 Mich. 552. See N. Y. 444 ; Andrews v. Lincoln, 95 Me, Chwatalu. Schreiner, 148 N. Y.683,689; 541. Schlereth v. Schlereth, 173 N. Y. 444. 848 ESTATES IN REAL PROPERTY. their issue in fee simple, this is invalid at common law, be- cause otherwise the suspension might continue during the lives of some grandchildren who were not in being at the time of the testator's death ; and, even if no grandchild were born after that time, such fact would not save the gift.^ Its valid- ity must be determined as of the time of the testator's death, when the will operates ; and, looking at it from that point of view, it must be treated as if it were sure to continue as long as by any possibility it might continue. Likewise, in New York, where suspension of alienability is restricted to not more than two lives in being, a minority and a fraction of a year, a devise to testator's grandchildren and the survivors or survivor of them so long as any of them may live, and then to their issue in fee, must be held to be illegal ; imless at the time of the death of the testator all his children are dead and there are not more tlian two grandchildren in existence. If there be a possibility in such a case that other grandchildren may be born, however remote may be the prob- ability of such an occurrence, it is enough to make the sus- pension illegal.^ But by this principle it is not meant that the instrument creating the suspension is to be construed most strongly against its validity. The gift or limitation is to be sustained, whenever this can be done by any fair construction. And es- pecially is this true when it is made by will. But, after the work of construction is thus done, if it then disclose an in- tended suspension which would be valid if contingent events were sure to occur in one way and bad if they were sure to occur in another way, it must be held to be invalid — not that the suspension may, but that it must, terminate within the pre- scribed period, is the rule.^ § 666. The Four Ways of causing Suspension. — In dealing with the rule against perpetuities, two distinct questions are uni- formly to be asked and answered. The first is, does any sus- pension at all exist ? And the second, if so, may it possibly continue for longer than the prescribed period ? It is only when both of these questions are to be answered in the afErm- 1 In re Wood (1894), 3 Ch. 381; " Last three preceding notes ; Evera Sears v. Russell, 8 Gray (Mass.), 86, v. Challis, 7 H. L. Cas. 53, 555 ; Fowler 100; Coggins' Appeal, 124 Pa. St. 10. v. Depau, 26 Barb. (N. Y.) 224; Gray, 2 Haynesy. Sherman, 117 N. Y. 433; Perpetuities, §§ 214-215 a; Lewis, Per- Daua V. Murray, 122 N. Y. 604 ; Fargo petuify, p. 170. V. Squiers, 1 54 N. Y. 250. PERPETUITIES AND ACCUMULATIONS. 849 ative that a perpetuity exists. And in regard to the first of them, involving as it does the inquiry as to what estates and limitations cause a suspension, it is first to be noted that vested, alienable interests, whether present or future, do not make any suspension whatever. A present estate and a series of absolutely vested remainders, for example, together consti- tuting the fee, no matter how many there may be, do not occa- sion any suspension, for the reason that there is no contingency involved and all the owners may at any time unite in a con- veyance of the property in fee simple.^ If any illegality exist simply because of a many-linked chain of wholly vested estates, it must be the result of positive statute, which is distinct from the common-law rule against perpetuities. Such a statute exists in New York, and prevents the creation of more than two successive life estates whether vested or contingent. (a) (a) The New York statutes first declare that, — " Successive estates for life shall not be limited, except to persons in being at the creation thereof ; and where a remainder shall be limited on more than two successive estates for life, all the life estates subsequent to those of the two persons first entitled thereto, shall be void, and on the death of those persons, the remainder shall take effect in the same manner as if no other life estates had been created." Real Prop. L. § 33, originally 1 R. S. 723, § 17. And then they go on and provide that no remainder shall be limited on an estate per autre vie unless such remainder be in fee, nor after an estate per autre vie in a term of years unless it be for the whole residue of such term, nor after more than two lives in being which measure such estate pee autre vie; that no life estate after a term of years shall be limited except to a person in being at its creation ; and that no contingent remainder shall be made after a term of years unless it is such that it must vest within or at the end of two lives in being at its creation. Real Prop. L. §§ 34-87, originally 1 R. S. 724, §§ 18-21. Having restricted to two the lives in being during which the absolute power of alienation may be suspended, the object of the revisers by these further statutes was, by an accompanying but distinct rule, to pi-event estates of any kind from being projected into the future farther than the period of two successive lives of persons in being when the estates are created. And the net result is that, if a vested remainder in fee be made after three or more successive life estates, it takes effect in possession after the death of the last survivor of the first two life owners named, and the other life owners named get nothing ; and, if a contingent remainder in fee be so made, it must be such as to become vested, if ever, and take efiect in possession, immediately on the death of the last survivor of the first two life owners named, or it will fail entirely. Thus, a devise 1 VSTood V. Drew, 3.3 Beav. 610; hunter v. D. M. I. & M. R. Co., 58 Seaver u. Fitzgerald, 141 Mass. 401 ; Iowa, 205 ; Gray, Perpetuities, §§ 205- Siddall's Estate, 180 Pa. St. 127; Wil- 210. ber V. Wilber, 165 N. Y. 451; Tod- 54 850 ESTATES IN REAL PROPERTY. Looking at estates and interests in real property in the order in which they have been discussed in this treatise, it will be found that there are four methods by which suspension may be produced. These are by trusts, contingent remainders or their equivalent, executory estates and interests, and powers. Trusts may do so when the trustees and beneficiaries are pre- cluded for a time from conveying; contingent remainders wherever statutes have forbidden their destruction by preced- ing owners, and especially when the remaindermen are either not in being or unascertainable ; executory interests especially while their owners are uncertain ; and powers whenever they temporarily prohibit absolute conveyances by the donees of the powers and by the owners of the property. Each of these re- quires a brief, separate discussion. § 667. Suspension caused by Trusts. — In the early common law, and in England down to the present time, no trust, except one for accumulation, has in itself raised any material question as to a perpetuity.^ A trust for a married woman may make the property inalienable ; ^ but only during her life, and there- fore not for an objectionable period. In the ordinary case of a trust (not for accumulations), whether express or implied, in fee or for a lesser interest, the trustee may sell the property, and the beneficiaries if ascertainable may sell their interests. And in England the beneficiaries when their interests are absolute may compel the trustee to convey the legal estate, notwithstanding a direction to the contrary in the instrument which creates the trust.^ Therefore the mere existence of a trust causes no suspension. Hence the generally accepted rule that a trust in fee, whether made expressly, where that is being made to A for life, then to B for life, then to C for life and then to D in fee, if D's remainder be vested he will acquire the land in posses- sion as soon as A and B are both dead, and C will take nothing ; while, if D's remainder be contingent, he also will take nothing unless the con- tingency be such as to occur so that he may have possession of the land as soon as A and B are both dead. Purdy «. Hayt, 92 N. Y. 446 ; Dana o. Murray, 122 N. Y. 604; Matter of Moore, 152 N. Y. 602; Duncklee v. Butler, 38 App. Div. 99. 1 Fox a. Fox, L. R. 19 Eq. 28d ; trusts for accumulations are explained Hawley v. James, 16 Wend. 61, 121 ; in §§ 676, 677, infra. Robert v. Corning, 89 N. Y. 225 ; Hil- 2 gee § 336, supra. len V. Iselin, 144 N. Y. 365, 3'9 ; Ram, ^ Brandon v. Robinson, 18 Ves. 429 ; WiUs, p. 6. The special rules as to Tatham v. Vernon, 29 Beav. 604 • Gray, Perpetuities, §§ 119-121. PERPETUITIES AND ACCUMULATIONS. 851 possible, (a) or arising as a constructive or resulting trust, works no suspension, and therefore can cause no perpetuity.^ It may be added, as of course, that a perpetuity may exist in connection with a trust when the interest of a beneficiary is made too remote, as in case of a trust simply for the benefit of the grandchild of an unborn person ; but this is not because of the trust, but because of the remoteness of the interest of the bene- ficiary. It has been heretofore explained, also, that trusts for charities are not affected by the rule against perpetuities and accumulations.^ In this country, while the practically uniform conclusion is, as in England, that mere trusts in fee whether express or im- plied cause no suspension, and that charitable trusts may continue perpetually,^ yet it is held in several states, contrary to the English doctrine, that the settler of a trust may render the property inalienable for a time by expressly providing that the trust shall continue and forbidding alienation by either the trustee or cestui que trust or both combined.* It is by this means that a spendthrift trust may be made in some of the United States, as already explained.^ And in a few of our states, such as New York, Michigan and Wisconsin, the statutes expressly make inalienable the right of a beneficiary of an express trust to receive rents and profits of real property and apply them to his benefit ; and they also forbid the trustee to (a) By the New York system, express trusts can not be made in fee, but only for lives in being. Note, pp. 493-503, supra. And resulting and constructive trusts, which are the only kinds that can exist in fee, being implied by law, do not at all suspend the absolute power of alienation. Of the five forms of express trusts, only two, the third (3) and fourth (^) suspend the power of alienation at all. And so the one question, as to a perpetuity arising from a trust, relates to a trust of either of these two forms and is whether or not it su.spends the absolute power of alienation longer than during two lives in being and a minority and the period of gestation of a child. Note, p. 494, supra; Chaplin, Suspension of Power of Alienation, pp. 138-159. 1 In re Eandell, L. R. 38 Ch. Div. 2 § 350, supra. 213; In re Boweu (1893), 2 Ch. 491; ^ Last two preceding notes. Hopkins v. Grimshaw, 165 U. S. 342, * Potter y. Couch, 141 U. S. 296,314 ; 345 ; Johnston's E.state, 1 85 Pa. St. 1 79 ; Siedler u. Syms, 56 N. J. Eq. 275 ; Win- Pulitzer V. Livingston, 89 Me. 359. See, sor v. Mills, 157 Mass. 362 ; Seitzinger's con(ra, Barnum y. Barnum, 26 Md. 119; Estate, 170 Pa. St. 500; Bigelow v. Missionary Society u. Humphreys, 91 Cady, 171 111. 229; Perry on Trusts, Md. 131, cases which seem to run coun- §§ 386 a, 827 a. ter to all the principles on which the ^ § 335, supra. rule against perpetuities is founded. 852 ESTATES IN BEAL PROPEETY. dispose of the property in contravention of the trust.^ The outcome, then, is that trusts for the receipt of rents and profits, either to accumulate them or to apply them to the benefit of designated beneficiaries — the third and fourth of tlie five forms of New York active express trusts — may suspend the absolute power of alienation, even tliough all the estates and interests be fixed and vested ; and may and frequently do raise important questions as to whether or not such suspension is so long as to create a perpetuity. (a) (a) The first (1) and second (S) of the New York active express trusts are trusts for alienation ; and so their existence does not suspend the power of alienation. See note, p. 494, supra. The fifth (5) form is for charity, and such a trust may continue perpetually. Allen v. Stevens, 161 N. Y. 122, 143. The fourth (4) class, trusts for accumulation, Ijave always been and still are such as to suspend the absolute power of alienation. Hawley V. James, 16 Wend. 61, 153; Radley v. Kuhn, 97 N. Y. 26, 31. These are explained more in detail in note (a), § 677, infra. The third form (3), " To receive the rents and profits of real property, and apply them to the use of any person, during the life of that person, or for any shorter term, subject to the provisions of law relating thereto," may continue for the full statutory period of two lives in being, a minority and a fraction of a year. But, because of the statutory prohibition against alienation by the trustee or the cestui que trust or both, it ordinarily suspends the absolute power of alienation during the time for which it is made to continue. But, as will be more fully explained hereafter (Note (a), § 670, infra), this suspension, and therefore all question as to a perpetuity, may be obviated in case of such a trust, by a power given by the settler to the trustee (or other donee) to terminate the trust at any time and sell the property. Robert v. Corn- ing, 89 N. Y. 225 ; Schermerhorn v. Getting, 131 N. Y. 48 ; Deegan v. Wade, 144 N. Y. 573, 576. But a power of sale, the exercise of which is not to be accompanied by a termination of such a trust, does not obviate the suspension. Allen v. Allen, 149 N. Y. 280, 288. Before the amendment of § 83 of the Real Property Law by L. 1903, ch. 88, it had been held by the Appellate Division of the First Department that, if the remaindermen who owned the fee were in being and could re- lease their remainders to the cestuis que trustent for life, the latter could then terminate the trust and sell the property; and therefore, in such cases, the power of alienation was not suspended by the third (3) form of express trust. Mills V. Mills, 50 App. Div. 221. See Matter of United States Trust Co., 175 N. Y. 304. But the form of the statute is now so changed by that amendment (L. 190.3, ch. 88) that such a construction is no longer possible. Its present form (Real Prop. L. § 83) is : — '■ The right of a beneficiary of an express trust to receive rents and profits of real property and apply them to the use of any person, cannot be transferred by assign- ment or otherwise, but the right and interest of the beneficiary of any other ' N. Y. L. 1896, ch. 547, § 83 (as 87; Chaplin, Suspension of the Power amended by L. 1903, ch. 88), and §§ 85- of Alienation, Appendix. PERPETUITIES AND ACCUMULATIONS. 853 § 668. Suspension caused by Contingent Remainders, or their Equivalent. — Whether or not, at commoii law, a contin- gent remainder caused any suspension that might result in a perpetuity has been the subject of much learned discussion. At the foundation of the controversy, however much other matters have been brought into it, is the divergence of view as to what constitutes a perpetuity. Where a perpetuity means simply undue remoteness of vesting, as in Massachusetts or Illinois, it may be caused of course — ^if we are to be at all logical — by the fact that a remainder is to continue to be con- tingent for too long a time, — vesting is too long suspended.^ Where a perpetuity means illegal suspension of the absolute power of alienation, as in New York and Michigan, it can not be caused by any estate which may be sold or terminated at any time, so that the property is all the while marketable in fee simple.^ In the absence of statutory change, a contingent remainder may be defeated at any time by the owner of the particular estate.^ Therefore by destruction of the remainder the property may be made alienable in fee simple at any moment. Accordingly, it seems to be safe to assert that, by the weight of authority whicli treats the rule against per- trust in real property may be transferred. The provisions of this act shall not impair or affect any rights existing at the date of its passage ; but the act hereby amended shall have the same force and effect with respect to such existing rights as though this amendatory act had not been passed." The Real Property Law, §§ 85-87, also forbids the trustee to sell in contrar vention of the trust. He is authorized to lease the land, however, for five years at a time, without the consent of any court; and by permission of the Supreme Court, upon application showing that it is for the best interest of the trust estate, he may lease for a longer period, or sell the land. But it is held that these latter sections (§§ 85-87) do not prevent this form of trust from suspending the absolute power of alienation. The proceeds of a sale thus authorized are not thereby released from the trust ; and the trust fund as such continues to be tied up and kept out of the market. Genet v. Hunt, 113 N. Y. 158, 172 ; Robert v. Corning, 89 N. Y. 225, 236 f Smith V. Secor, 157 N. Y. 402; Chaplin, Suspension of the Power of Alienation, §§ 301, 313. In brief, then, the third (3) form of express active trust suspends the absolute powei- of alienation, unless the settler prevents this from occurring by giving to some one (normally the trustee) the power to sell the property' and terminate the trust at any time. 1 Winsor .. Mills. 157 Mass. 362 ; 2 n. Y. L. 1896, ch. .547, § 32 ; Saw- Madison V. Larmon, 170 111. 65 ; Wood yer .;. Cubby, 146 N. Y. 192 ; Chaplin, V. Griffin, 46 N. H. 230 ; In re Frost, Suspension of the Power of Alienation, L R 43 Ch. Div. 246 ; Gray, Perpetui- Appendix ; § 662, supra. ties, §§ 284-298. ' § 607, supra. 854 ESTATES IN REAL PROPERTY. petuities as a rule against too great inalienability, no perpetuity can be caused by a common-law remainder, because it does not at all suspend the absolute power of alienation.^ Both in England, and generally in this country, statutes have taken away the power of owners of the preceding estates to destroy contingent remainders.^ And this fact appears to lend some support to the decisions of courts which hold, as do those of Massachusetts, that a remainder may cause a perpetu- ity merely by the fact that its vesting is too long suspended.' But, in New York, Michigan, and several other states, the statutes also make contingent remainders freely alienable, when their owners are in being and ascertained.* Therefore, in these latter jurisdictions, where no suspension is forbidden except that of alienability, there can be no perpetuity, because no sus- pension at all, as the result of any remainder, unless the con- tingency is as to the person, and not merely as to the event.^ Thus, if A grant land to B (in being) for life, remainder to C (in being), and his heirs if C marry D, no suspension of the power of alienation is thereby produced, because A and B and C, representing as they do all the possible interests in the property, may at any time unite in a conveyance of it in fee simple. But, if the grant be to A, B, and (all in being) and the survivors or survivor of them as long as any one of them lives, and then in fee to an unborn child, this causes a suspension of the absolute power of alienation for three lives in being, for the reason that there is no one who can sell the contingent remainder in fee.^ And in New York such a sus- pension is for one life more than the statute allows, and so it produces a perpetuity.' And, generally, whenever the ultimate gifts, or some of them, are to persons who may not come into being, or may remain unascertainable for too long a time, there is an illegal suspension, though the remainders may be called vested subject to open and let in other remaindermen, or subject to be divested. When such remainders result in placing inter- 1 § 662, supra, and authorities cited. course, that they are alienable when 2 § 607, supra. their owners are in being and ascertain- 8 Gray, Perpetuities, § 286. able, and otherwise not. See § 608, < N. Y. L. 1896, ch. 547, § 49 ; 1 note (a), supra. Stim. Amer. Stat. L. § 1420. The ^ Sawyer v. Cubby, 146 N. Y. 192, form of these statutes is that such 198 ; Wilber v. Wilber, 165 N Y. 451 ; estates "are descendible, devisable and Haug v. Schumacher, 166 N. Y. 506. alienable, in the same manner as are ' Ibid, estates iu possession." This means, of ' § 664, note (a), supra. PERPETUITIES AND ACCUMULATIONS. 8S5 ests in such plight that they can not be aliened because their owners can not be reached, they are to that extent, and for the purpose of the rule against perpetuities, equivalent to contingent remainders.' § 669. Suspension caused by Executory Estates. — It WaS in the discussion of executory interests, especially executory devises of chattels real, that the rule against perpetuities was matured.^ Since the beginning of the seventeenth century, it has been held that, in the absence of statutory change, spring- ing and shifting uses and executory devises are subject to that rule, because they must await the happening of the events on whicli they are made to depend, and can not be aliened or de- feated. And this is true, whichever be the accepted meaning of tlie word " perpetuity." ^ Illustrations are found in a gift over to B on the indefinite failure of the heirs of A, the first talcer in fee, and in a grant to X and his heirs for the use of A (in being), and his heirs to begin when A marries. In the first of these, as heretofore explained, the suspension is too long and so results in a perpetuity ; in the second it is valid, because it is within the prescribed period. Modern statutes, such as those of New Yorli, which make all future estates freely alienable when their owners are in being and ascertained, existing as such statutes do in those states where alienability must be absolutely suspended before any question as to a perpetuity can arise, have essentially modified the common -law rule. And in such states, as with contingent remainders so with all executory estates, no sus- 1 Sawyer ii. Cubty, 146 N. T. 192, able of giving such a release. Ibid.; 198 ; Haug v. Schumacher, 166 N. Scatterwood v. Edge, 1 Salk. 229. Y. 506 ; Chaplin, Susp. Pow. Alien. This fact is one of the strongest argu- §§ 124-129. ments in favor of the view that the '^ Duke of Norfolk's Case, 3 Ch. Cas. common-law rule against perpetuities 1 ; Scatterwood v. Edge, 1 Salk. 229 ; is one against remoteness, and not Cole V. Sewell, 4 Dr. & War. 1, 28 ; simply against inalienability. See Brattle Square Church v. Grant,3 Gray Lewis, Perpetuity, Supplement, 13-20; (Mass.), 142; Becker v. Chester, 91 Gray, Perpetuities, § 268. N. W. Rep. (Wis.) 87 ; 4 Kent's Com. 'The foUfiwing paragraph of this sec- pp. * 266-* 268 ; Gray, Perpetuities, tion of the text explains that now, in §§148-185, 317. states like New York where no perpetu- ^ Ibid. The fact that the owner of ity can exist unless the absolute power an executory devise may release it to of alienation is unduly suspended, all the preceding owner in possession (see doubt on this point is avoided by the § 657, supra) seems not to have obviated decisions that no suspension whatever the objection that a perpetuity might is caused by an executory interest result, even when the owner of the ex- owned by one by whom it may be sold ecutory interest was in being and cap- or released, , pension exists, and consequently no possibility of a perpetuity, except when the owner of the future interest is not in being or not ascertainable.^ I A devise, for example, by A, to B and his heirs, but if B sell intoxicating liquors there then to C and his heirs, does not suspend the absolute power of alienation for a moment, if B and C are living, known persons ; because B and C and the heirs of A, representing as they do all possible in- terests in tlie property, may at any time unite in a conveyance of it in fee simple. But a grant or devise to A, B, and C, and their heirs, provided, however, that if they all die without leav- ing any issue, the property is to belong to the oldest son of D, who now has no son, or to the person who shall then be president of the United States, suspends the absolute power of alienation for three lives in being ; and in New York causes a perpetuity.^ § 670. Slj^peHsloil caused or obviated by Powers. — There are three ways in which powers may be involved in questions concerning perpetuities. The first of these is where the execu- tion of the power is postponed by the terms of its creation ; the second, where the execution of the power results in taking the title out of the market for a time, and the third, where it is sought by means of a power to obviate an otherwise illegal suspension. JJr^fe A pGiwel* of appointment or disposition, which is to belong to a person not yet in being or not ascertainable, or the execution of which is postponed to the future by the terms of its creation, ordinarily causes a suspension of alienability until it can be validly exercised. The donee of the power can not sell the property until that time arrives ; nor can the owner of the property dispose of it freed from the power* Thus, a power of appointment to be executed by the child of an unborn per- son,* or an imperative power to executors to sell land but not till thirty years after the testator's death, would be void anj^- where." And a power of sale to executors, not to be exercised till four years (any definite period not measured by a life or lives) after the testator's death, or not till after the death 1 Mott V. Ackerman, 92 N. Y. 539, (N.Y.) 61, 175; Dana v. Murray, 122 549 ; Sawyer v. Cuhby, 146 N. Y. N. Y. 604 ; Gray, Perpetuities, §§ 476, 192, 198; Chaplin, Susp. Pow. Alien. 477. § 77. * Ibid. ; Morgan v. Gronow, L. R. 2 Ibid. 16 Eq. 1, 9. " Bristow V. Boothby, 2 Sim. & ^ Marsden, Perpetuity, § 237. St. 465; Hawley v. James, 16 Wend. jMO'.ETcrriEs KTSt> icacDaMBut-TToiiTS. 857 of his three Itvjo^ dhUdren i^ inwiiaa in Jfev YorU.^ "Wlieoi the execution is necessarily postponed, "feis must not be for longer than the Jpefkrd preseribad by Hite rulst. against per- petuities, (ct) Second. In case of a special power at common law, where its execution causes a suspension, the period during which this is to last must be computed from the time of the creation of the power — the delivery of the deed creating it, or the death of the testator when a will creates it — and not from the time of its execution.2 Thus, if A give land by will to his son B for life, with special power to appoint the residue to any of B's issue in fee, and B subsequently appoint it for life to one of his children who was not in being when A died, with remainder to that child's children in fee, the appointment is void, because the estates attempted to be given must be tested as if they had been made directly by the will of A, and so tested the gift is for the life of a person (B's child) not then in being.^ This principle does not apply, at common law, to general powers, such as an authority to appoint a remainder in fee to anif one ,■ for as to these the suspension is measured from the time of the appoint- ment.* But, in New York, Michigan, Minnesota, Wisconsin, and perhaps some other states, the same principle is applied to all powers ; and the statutes declare that " the period during which the absolute right of alienation may be suspended, by an instrument in execution of a power, must be computed, not from the date of such instrument, but from the time of the (a) In New York, every power in trust is imperative, unless its execu- tion or non-execution is expressly made to depend on the will of the donee. Real Prop. L. § 137. A beneficial power, on the other hand, is not imper- ative. And it is only a power that must be executed in the future, and that can not be released or destroyed, that can suspend the power of alien- ation. Therefore, powers in trust, which are not expressly made discre- tionary and those which are directly ordered to be executed in the future are the ones which may suspend the power of alienation ; and, if they do this for a period not authorized, may cause a perpetuity. Hawley v. James, 16 Wend. 61, 140, 175 ; Hone's Ex'rs v. Van Schaick, 20 Wend. 564, 566; , Kilpatrick v. Barron, 125 N. Y. 751 ; Chaplin, Susp. Pow. Alien. §§ 283- 300. 1 Garvey v. McBevitt, 72 N. Y. 556 ; » Bristow v. Warde, 2 Ves. 3.36, 350 ; Underwood v. Curtis, 127 N. Y. 523, Dukeof Marlborough k. Earl Godolphin, 540. 1 Eden, 404. 2 Lewis, Perpetuities, pp. 483-485; < Ibid.; Gray, Perpetuities, §§ 514- Challis, E. P. p. 156 ; 2 Prest. Abst. pp. 530. 165, 166. 858 ESTATES IN REAL PROPERTY. creation of the power." ^ (a) This is one of the most radically important rules of construction that are applicable to powers. Third. It is sometimes attempted to obviate an illegal sus- pension by means of a power to dispose of the property. This, it seems, can not have the desired effect, unless the alienation is to result in terminating the state of affairs which might cause the perpetuity. When, for example, a trust is ordered which of itself will render the property unmarketable for lives not in being, the difficulty is not overcome by giving to the trustee a power of sale, if he must hold the proceeds of the sale upon the same trust. The objection to the perpetuity in the trust fund is not removed by a mere power of changing it from one kind of property to another.^ But, if the power of disposi- tion may be exercised at any time so as to terminate the trust and thus unfetter the fund, it then clearly prevents all sus- pension ; and so may obviate what might otherwise be a perpetuity. 8 § 671. No Suspension caused in this Country by Conditions Subsequent, nor by Possibilities of Reverter or of Forfeiture. — The English courts hold that a suspension is caused by the exist- ence of a right of entry for condition broken, — a possibility of forfeiture.^ But, uniformly in this country, because such rights may be readily released, it is decided that they cause no suspension whatever. The same is true as to possibilities of reverter belonging to grantors of estates on limitation.^ Ac- (a) This is the language of the New York statute. Real Prop. L. § 158. And § 159, adds : " An estate or interest cannot be given or limited to any person, by an instrument in execution of a power, unless it would have been valid, if given or limited at the time of the creation of the power." These sections were originally, 1 R. S. 737, §§ 128, 129. And they make the execution of any power subject to the doctrine of relation back into the instrument creating the power, for the purpose of determining whether or not it illegally suspends the power of alienation. Fargo v. Squiers, 154 N. Y. 250 ; Dana v. Murray, 122 N. Y. 604 ; Beardsley v. Hotchkiss, 96 N. Y. 201; Dempsey v. Tylee, 3 Duer, 73; Chaplin, Express Trusts & Powers, § 679. See § 644, supra. 1 N. Y. L. 1896, eh. 547, § 158; 1 » Robert v. Corning, 89 N. Y. 225 ; Stirn. Amer. Stat. L. § 1658 ; Fargo v. Hillen u. Iselin, 14+ N. Y. 365, 379 ; Squiers, 154 N. Y. 250. Chaplin, Susp. Pow. Alieu. §§ 301-313. » Allen V. Allen, 149 N. Y. 280, 288 ; * Dunn v. Flood, L, K. 25 Ch. Div. Haynes i/. Sliernian, 117 N. Y. 443; 629; 7n re Trustees of Hollis' Hospital Cruiltshank w. Home for the Friendless, (1899), 2 Ch. 540; Lewis, Perpetuity, 113 N. Y. 337 ; Brewer «. Brewer, 11 pp. 618, 619. See contra, Challis, R. P. Hun, 147, aff'd, 72 N. Y. 603 ; Thatcher p. 152. V. St. Andrew's Church, 37 Mich. 264. ^ Cowell v. Springs Co., 100 U. S. PERPETUITIES AND ACCUMULATIONS. 859 cordingly, a grant of land to a society, on condition that it shall be used forever as a burying ground, or a devise of an estate to continue until Gloversville shall be incorporated as a village, causes no suspension and in itself can create no perpetuity.^ And so as to all conditions, annuities, mortgages, judgments, and other liens on or claims against property ; they may be released by their owners and thus extinguished, and therefore do not tend to create any perpetuity .^ § 672. No Perpetuity if Prescribed Period be not exceeded. — The limitations and arrangements which cause suspension — trusts, contingent remainders, executory interests, or powers — may be made for the benefit of any number of persons, in being or not in being, provided they are so made that the allowed period of suspension is not exceeded — the any number of lives in being and twenty-one years and the period of gestation of a child at common law, or in New York the two lives in being and a minority and the period of gestation of a child. It is the illegal tying up of the property and taking it out of the market, not the bestowal of its benefits upon many persons, that pro- duces a perpetuity.^ Therefore, a contingent remainder to the children of an unborn person is good, when it is provided that only those of such children shall take who may be born during the life of a designated person in being — that one designated life measures the suspension, and it is therefore valid.* So, a trust may be made in New York to continue while A and B (both in being) or either of them shall live, and the income paid during that time to any number of persons, as to all of the testator's grandchildren, some of whom may be yet unborn.^ Care being taken to designate persons in being, at common law any number and in New York two, beyond whose lives the property is not rendered unmarketable, no perpetuity can arise from any bestowal of its benefits. 55 ; Brattle Square Church v. Grant, 3 §§ 562-571 ; Chaplin, Snsp. Pow. Alien. Gray (Mass.), 142, 148 ; Tobey v. Moore, §§ 134-141. 130 Mass. 448 ; Upington .;. Corrigan, * Bailey v. Bailey, 97 N. Y. 460 ; 151 N. Y. 143; Thayer u. McGee, 20 Crooke v. County of Kings, 97 N. Y. Mich 195; In re Stickney's Will, 85 421 ; Tilden u. Green, 130 N. Y. 29, 47 ; Md. 79 ; Chaplin, Susp. Pow. Alien. Chaplin, Susp. Pow. Alien. §§ 229, 230, §§ 131-133. 245. 1 Hopkins V. Grimshaw, 165 U. S. « In re Bowles (1902), 2 Ch. 650; 342 ; Leonard v. Burr, 18 N. Y. 96. Moore v. Wingfleld (1903), 1 Cii. 874. 2 Hawley v. James, 16 Wend. ^ Scherinerhorn v. Cotting, 131 N. Y. (N. Y.) 61,179; McGowau v. McGowau, 48 ; Woodgate v. Fleet, 64 N. Y. 566, 571 ; 2 Duer (N. Y.), 57 ; Gray, Perpetuities, Steiaway u. Steinway, 163 N.Y. 183, 194. 860 ESTATES IN REAL PROPERTY. § 673. Construction favors Legality. — It has been explained that the suspension, in order to be legal, must be such that it can not, and not merely so that it may not, continue be- yond tlie prescribed period. ^ A devise suspending the alien- ability of property during the lives of all the grandchildren of a testator, who dies leaving children, can not be saved merely because there may be no grandchild who comes into being after the testator's death — the possibility, however great the improbability, that the suspension may be for a life not in being when the will takes effect is fatal.^ This is the rule that applies, after the work of construing the instrument is complete, and the meaning of the language determined. But, iu construing the words of a grantor or testator, the courts lean towards holding, wherever it is reasonable, that no suspension is made which can possibly continue beyond the legal period. This rule is in harmony with that which prefers to treat remainders as vested, rather than contingent, and otherwise to save and give as great an interest as the language of the instrument will fairly import.^ Two or three prominent instances of the results of this tendency will suffice.* A gift in a will for the lives of the " survivors " of a class means those who survive the testator, unless the contrary is clearly expressed ; and so the designated lives are all in being when the will takes effect.^ In a state like New York where the number of lives which may measure the suspension of absolute alienability is limited (in New York to two), if a testator tie up property " until my youngest child shall become of age," or by the use of an equivalent expression, this is construed to mean (unless the context shows otherwise) until the majority or death of the testator's youngest child who is living when the will becomes operative — at the time of the testator's death. It does not mean until the majority of the youngest child who may live to reach his majority ; and so where there are many children it makes a possible suspension, not during the lives of them all, but only during the minority or life (if he die under age) of the youngest.^ Such a construction is not possible, of course, 1 § 665, mpra. 119, 123 ; Matter of N. Y. L. & W. R. 2 Ibid. Co., 105 N. Y. 89, 92 ; § 5S0, supra. s § 579, supra. 6 Matter of Accounts of Mahan, 98 < See Chaplin, Susp. Pow. Alien. N. Y. 372 ; Becker v. Becker, 13 N. Y. §§ 500-515. App. Div. 342; Horndorf v. Horndorf, 6 Moore v. Lyons, 25 Wend. (N. Y.) 13 N. Y. Misc. 343, 346. PERPETUITIES AND ACCUMULATIONS. 861 ■when a testator who dies leaving children causes a suspension " until my youngest grandchild shall become of age ; " for the youngest grandchild might be one who was not in being when the testator died. Likewise, in a state like New York, when the alienability of property is suspended, as, for example, by a trust, for the beueht of many life owners, it will be treated as practically dividing the property into as many distinct parts as there are life tenants, whenever this can be fairly done.^ And, generally, whenever a gift that otherwise would be invalid can be sus- tained by treating it as two or more distinct gifts, each for not more than the prescribed number of lives, this will be done whenever such a course is fair and reasonable.^ Thus, a de- vise in trust, " for my ten children for their lives, and as each one dies liis share to be divided per stirpes among his issue," is ten distinct, valid trusts, each for one life.^ And a gift to testator's widow for life, and then to his two sons for life, and then to all his grandchildren, there being no provision that one son who should outlive the other shotild take all the property for the rest of his life, made two distinct gifts, one to the widow and one son and after the death of those two persons to the grandchildren, and the other to the widow and the other son and after the death of those two persons to the grandchildren.* § 674. Separation of Valid Parts from those that are In- valid. — The separation of the valid portions of a gift or grant from those that are invalid, and the consequent preservation of the former, is another illustration of the principle explained in the preceding section. The courts will not make a trust or devise for a settler, nor strain after a meaning which he does not express. And the ordinary common-law rule is often stated to be that " a gift cannot be divided when the settler or testator has not divided it."^ But the courts of to-day, and 1 Corse r. Chapman, 153 N. Y. 466; " Proctor o. Bishop of Bath, 2 H. Vanderpoel v. Loew, 112 N. Y. 167; Blackst. 358; Miles v. Harford, L. R. Van Brunt i>. Van Brunt, 111 N. Y. 12 Ch. Div. 691. In tlie last of these 178; Chaplin, Susp. Pow. Alien. cases it is said that one possible con- §§ 176-183. tingency, which might save the estate, ''■ Ibid. ; AUen v. Allen, 149 N. Y. will not do so when it is coupled by 280. implication with another expressed one 3 Corse !>. Chapman, 153 N. Y. 466 ; which is too remote. Thus, "on a VanBrunttJ. Van Brunt, 111 N.Y. 178. gift to A for life, with a gift over 4 Hang V. Schumacher, 166 N. Y. in case he shall have no son who 506. shall attain the age of twenty-five 862 ESTATES IN REAL PROPERTY. especially those of this country, will cut off and discard an invalid provision, in all cases where it is reasonably separable, and is not an essential feature of an entire scheme.' That part of an express trust, which illegally suspends the power of alienation, says the New York Court of Appeals, " is separable from the valid trusts, in a case where the trust which is defeated is independent of the other dispositions of the will and subordinate to them and is not an essential part of the general scheme." ^ Thus, if realty in New York be devised in trust for A for life, then for B for life, then for C for life, and then the fee simple to go to the oldest son of A who has no son at the time of the testator's death, the invalid trust for the third life (C's), being severable, is cut off and the remainder in fee takes effect after the death of A and B, if A leave a son.^ If, on the other hand, land in New York were devised in trust for A, B, and C, and the survivors and sur- vivor as long as any of them lived, with remainder in fee to the youngest son of A, the entire scheme must fail, because there is no way of determining that any two of the three life estates are valid and the other one invalid — all are invalid together.* So, wherever part of a gift is too remote, and another part is not, the latter will be allowed to stand, unless the illegality of the former is of such a nature as to taint them both.^ And a distinct provision of a will, such, for example, as a clause for- bidding any sale of the property within the period prescribed by the rule against perpetuities, may be disregarded whenever it is reasonably separable from the other and valid provisions of the instrument.^ years, the gift over is void for remote- 384; Schermerhorn v. Cotting, 131 ness." And it is not saved by the pos- N. Y. 48; Schlereth v. Schlereth, 173 sibility that A might die without any N. Y. 444; Chapman v. Cheney, 191 child. But see Evers o. Challis, L. R. 111. §74; Hills v. Simonds, 12.5 Mass. 7 H. L. Cas. 531. This is in harmony 536; Albert v. Albert, 68 Jld. 352; with the principle, explained in the Chaplin, Susp. Pow. Alien. § 482. text, that, after the work of construe- ^ Manice v. Manice, 43 N. Y. 303, tiou is done, the contingency causing 384. the longest suspension must govern. 8 Last two preceding notes ; Greene But, in the work of coustruction, this v. Greeue, 125 N. Y. 506. will first be separated from the others, * Bindrim c. Ullrich, 64 N. Y. App. so that it may be allowed to fail alone, Div. 444 ; Almstaedt v. Bendick, 47 when the language will fairly bear N. Y. App. Div. 265. that construction. See next succeed- ^ Last four preceding notes, ing note: Chaplin, Susp. Pow. Alien. 6 Haug v. Schumacher, 166 N. Y. §§484-494; Gray, Perpetuities, ch. ix. 506; Roe v. Vingut, 117 N. Y. 204; See Edgerly v. Barker, 60 N. II. 434. Kennedy v. Hoy, 105 N. Y. 134 ; Chap- 1 Manice v. Manice, 43 N. Y. 303, lin, Susp. Pow. Alien. § 482. PERPETUITIES AND ACCUMULATIONS. 863 § 675. Property generally, Corporeal and Incorporeal, Real and Personal, affected by the Rule against Perpetuities. — The princi- ple of public policy which originated and retains the rule against perpetuities — the demand that property shall be kept in the market and shall move along the paths of commerce and enter- prise — applies to substantially all kinds of property, corporeal and incorporeal, real and personal.^ In New York, a distinc- tion is made between the period during which the absolute ownership of personal property, except chattels real, may be suspended and that of the valid suspension of the absolute power of alienation of realty. The former is restricted to two lives in being ; and a minority and the period of gestation of a child can not be added. (a) (a) The New York statute has been heretofore quoted, which subjects chattels real to the same rule as to suspension as that which governs fees — " so that the absolute ownership of a term of years shall not be suspended for a longer period than the absolute power of alienation can be suspended in respect to a fee." Real Prop. L. § 39; § 667, note (a), supra. As to all other kinds of personal property, the statutes provide that, — "The absolute ownership of personal property shall not be suspended, by any limitation or condition whatsoever, 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 such limitation or condition ; or, if such instrument be a will, for not more than two lives in being at the death of the testator. In other respects limitations of future or con- tingent interests in personal property are subject to the rules prescribed in relation to future estates in real property." N. Y. Personal Property L. (L. 1897, ch. 417) § 2. See, also, the same act, §§ 3-9; Sawyer u. Cubby, 146 N. Y. 192. An effect of this distinction in periods, as to personalty and realty, is that statements in a deed or will, dealing in the same manner with both realty and personalty, may be entirely valid as to the former, and wholly or partly void as to the latter. See Manice v. Manice, 43 N. Y. 303. It is well to note here, also, that, since personal property disposed of by will is ordinarily to be governed by the law of the testator's domicile at the time of his death, and the New York policy is not specially concerned with gifts of such property that is to be taken elsewhere and administered, the only legacies of personalty that are governed by these statutes are those made in " domestic wills " (wills of testators who die domiciled in New York) which retain the property in New York. If the will send the property abroad, to a place where the limitation is valid though it would be too remote in New York, or bring it to New York from the testator's domicile where the limitation is valid though longer than the New York period, it is sustained. Dammert v. Osborn, 140 N. Y. 80; Hope v. Brewer, 136 N. Y. 126; Cross u. United States Trust Co., 131 N. Y. 330. See Chaplin, Susp. Pow. Alien, ch. vii. 1 Gray, Perpetuities, §§ 316-321. mere chances, do not usually cause sus- That mere conditious and possibilities, pension is explained in § 671, supra. which are generally not property but 864 ESTATES IN REAL PBOPEETY. The Rule against Accumulations. § 676. The Common-Law Rule, and the Statutes. — The rule against perpetuities is also at common law the rule which pre- scribes the period of valid accumulation of the income of property, i. e., the time during which the entire property may be held in trust and inalienable, and made to increase by the constant adding of the income to the principal.^ Mr. Thellus- son's will, dated 1796, which ordered an accumulation of a large amount of property for nine lives in being ; while held to be valid, ^ gave such a glaring illustration of the possible, un- reasonable multiplying of large fortunes, that the period of valid accumulations was restricted in England by the statute 39 and 40 Geo. III. ch. 98, which has accordingly come to be known as the " Thellusson Act." ^ It prevents accumulation for longer than the life of the settler, or for more than twenty- one years after his death, or for longer than during the minor- ities of the beneficiaries or of named persons in being at the death of the settler.* It applies to both realty and personalty. Its most important constructions have been that, under its peculiar wording, no minorities can measure the accumulation except those of persons in being at the death of the settler^ (though it may continue for an absolute period of twenty-one years) ; and that, if the accumulation be ordered to continue longer than the act permits, it will be good for the statutory period, provided it is not so long as also to violate the common- law rule against perpetuities." In this country, wherever statutes have dealt with the matter, they are in the main like that of New York, which is briefly explained in the following section. Pennsylvania, possibly followed by one or two other states, has a statute sub- stantially the same as the Thellusson Act.' In the other states, where no special statutes exist and which probably constitute 1 Griffiths V. Vere, 9 Ves. 127, note; see Hargrave's Treatise on Thellusson Pray v. Hegeniau, 92 N. Y. 508, 514; Act, § 95; Marsden, Perpetuities, Gray, Perpetuities, § 671. p. 337. 2 Tlielluason v. Woodford, 4 Ves. ^ Weatherall v, Thornburgh, L, R. 227. 11 Ves, 112. 8 Ch. Div. 261; Griffiths v. Vere, 3 See Vail u. Vail, 4 Paige (N. Y.), 9 Ves. 127; Hargrave's Treatise, Thel. 317, 323; Hargrave's Treatise on the Act, § 111. Thellusson Act. ' 2 Pepper & Lewis' Pa. Digest, 4 Gray, Perpetuities, §§ 686-699. p. 4055, being act of Apr. 18, 1853, § 9; 5 Ellis V. Maxwell, 3 Beav. 587 ; 1 Stim. Amer. Stat. L. § 1443. Haley v. Bannister, 4 Madd. 275. But PERPETUITIES AND ACCUMULATIONS. 865 the majority, the simple rule is that accumulations can not be legally made so as to violate the rule against perpetuities. And it is held in such jurisdictions that, when the estate is vested in the beneficiaries they have the power to terminate au accumulation at any time ; and therefore a direction to trustees to accumulate, in such instances, causes no suspension at all.i And it is also settled in such states that a direction to accumu- late for creditors of the settler causes no suspension, because they may take the property at any time and thus terminate all accumulations.^ § 677. Accumulation only during a Minority in Several States. — In a number of the United States, of which New York, Michigan, and Wisconsin are illustrations, accumulations are so regulated by statute that they must begin within the period allowed for the vesting of future estates (in such juris- dictions two lives in being) and during the minority of the beneficiaries, and can not continue longer than such minority.^ Based on the New York statute and its construction, the fol- lowing are the four leading principles which govern accumula- tions of the income of either realty or personalty or both in such states. Beginning. The accumulation may begin at once on the creation of the estate, if the beneficiary be then born ; or within or at the end of two lives in being at the creation of the estate when it is in realty, or withint\\Q two lives in being when it is personalty, and during the minority of the beneficiary.* It can not begin before the birth of the beneficiary. But he need not bo in being when the estate is created. Thus, a trust of real property is valid, to pay the income to A (in being) ' Oddie v: Brown, 4 De G. & J. 179; extend on through the" minority. But Wharton v. Masterman (1895), App. in the case of personal property, when Caa. 186; Gray, Perpetuities, §§ 671- the end of the two lives has been 673. reached, there is no farther opportu- ^ Tewart v. Lawson, L. E. 18 Eq. nity for suspension, and consequently 490 ; Morgan v. Morgan, 20 E. I. 600 ; none for accumulation. It necessarily Gray, Perpetuities, § 676. follows, therefore, that a trust for ac- 8 N. Y. L. 1896, ch. 547, § 51; cumulation, in order to secure any lee- 1 Stim. Amer. Stat. L. § 1443; Chap- way to effect its purpose, must begin lin, Susp. Pow. Alien, p. 150, note 2. within the term of suspension, and then * Ibid. " In the case of real prop- can run only until either the majority erty, when the two lives have ended, or earlier death of the infant, or the there is, in certain cases, opportunity sooner termination of the two lives ig for a further suspension during a mi- reached." Chaplin, Susp. Pow. Alien, nority. Here the accumulation may § 432, citing Mauice v. Manice, 43 N. Y. begin at the end of the two lives, and 303, 381 et seq. 55 866 ESTATES IN REAL PROPERTY. while he lives, and then to B (in being) while he lives, and if at B's death he leave a minor son then to accumulate the in- come during that son's minority and for his benefit.^ Beneficiaries. The accnmulation must be solely for the benefit of the minor by all or a part of whose minority it is measured. It can not be made during the minority of A for the benefit of B, or of A and B jointly. Nor is a direction valid by which an accumulation is to be made during A's minority for the purpose of having the income of the accumulated fund then paid to A for life, and at his death the fund to go to B.^ Neither is it good for the purpose of paying off a mortgage or other charge on the property.^ But it may be ordered for a number of successive minorities, for the benefit of each minor respectively, so long as the ultimate period is kept within the time prescribed by the rule against perpetuities.* And, be- cause of the practical necessity of the case, it seems to be allowable to provide for an accumulation during A's minor- ity for his benefit, with a contingent gift of the accumula- tions to B at the time of A's death, if A die before reaching his majority.^ Termination. The accumulation must terminate at or be- fore the majority of the beneficiary.^ It may be made to end before he is twenty-one ; and his death terminates it if he die before reaching that age. Not being capable of beginning until he is born, and necessarily ending at or before he is twenty-one, the accumulation must be limited by a minority ' or a, portion of a minority. Excess void. If an accumulation be ordered " for a longer term than during the minority of the beneficiaries, it shall be void only as to the time beyond such minority." ^ For ex- ample, a direction to accumulate for the benefit of A, a minor, until he is twenty-five years old, is valid for the period until he shall be twenty-one ; and at his majority he will be entitled 1 Gott V. Cook, 7 Paige (N. Y.), Ch. (N. Y.) 432; Chaplin, Susp. Pow. 521; Kilpatrick v. Johnson, 15 N. Y. Alien. § 261. 322; Manice v. Manice, 43 N. Y. ^ Smith v. Parsons, 146 N. Y. 116, 303, 120. See Chaplin, Susp. Pow. Alien. 2 Pray v. Hegeraan, 92 N. Y. 508 ; §§ 263-272. Barbour v. De Forest, 95 N. Y. 13. » The statutes so declare. See Hull See Wilson v. Odell, 58 Mich. 533. v. Hull, 24 N. Y. 247 ; Goebel !>. Wolf, 8 Hascall v. King, 162 N. Y. 134; 113 N. Y. 405, 413. Hafner v. Hafner, 62 N. Y. App. Dlv. ' N. Y. L. 1896, ch. 547, § 51, ,816, aff'd, 171 N. Y. 633. subd. 3. * Mason v. Mason's Ex'rs. 2 Sand. PERPETUITIES AND ACCUMULATIONS. 867 to the income accumulated up to that time.^ In such cases, where the period fixed by the settler is excessive and he directs that the fund shall not be paid to the beneficiary till the end of tliat period, and the general scheme is not entire and insepa- rable, the courts carry out his intent as far as it is legal, by giving the accumulated income to the beneficiary when he is of age, then having him receive regularly the subsequent income ou the corpus till the end of the period named (assuming of course that such period is permitted by the rule against per- petuities) and ultimately giving him the corpus at the end of the entire period. Thus, a trust to accumulate till A is forty years of age and then to pay him the principal and income, will be carried out by giving him the accumulated income when he is of age, then paying him the income regularly as it accrues until he is forty, and then handing over to him the principal.^ But, of course, when the scheme of the gift is one and insepa- rable, and part is illegal, the whole must fail. The above- quoted statute means that the excessive period shall be void, and the other stand, whenever a separation of the two is reasonably possible.^ (a) (a) The New York statute restricts accumulations of the income of real property as follows: "All directions for the accumulation of the rents and profits of real property, except such as are allowed by statute, shall be void. An accumulation of rents and profits of real property, for the benefit of one or more persons, may be directed by any will or deed sufficient to pass real property as follows : 1. If such accumulation be directed to com- mence on the creation of the estate out of which the rents and profits are to arise, it must be made for the benefit of one or more minors then in being, and terminate at or before the expiration of their minority. 2. If such accumulation be directed to commence at any time subsequent to the creation of the estate out of which the rents and profits are to arise, it must commence within the time permitted, by the provisions of this article, for the vesting of future estates, and during the minority of the beneficiaries, and shall terminate at or before the expiration of such minority. 3. If in either case such direction be for a longer term than during the minority of the beneficiaries, it shall be void only as to the time beyond such minority." Keal Prop. L. § 51, originally 1 R. S. 726, §§ 37, 38. And the similar provisions as to personal property are found in the Personal Property Law (L. 1897, ch. 417), § 4. In addition to the explanations, in the text of this section, of the meaning and operation of these statutes, it is to be reiter- ated that these rules form the guide and criteria as to accumulations in 1 Pray v. Hegeman, 92 N. Y. 508; " Ibid.; Chaplin, Susp. Pow. Alien. Radley v. Kuhn, 97 N. Y. 26 ; Cochrane §§ 262-276. u. Schell, 140 N. Y. 516, 536. 8 Cook v. Lowry, 95 N. Y. 103; Hascall v. King, 162 N. Y. 134. 868 ESTATES IN REAL PBOPEETT. New York ; and that income can not be indirectly accumulated for any longer time by means of the second (S) form of the active express trusts — a trust to lease realty "for the purpose of satisfying any charge thereon." It seems clear that a lease made under this trust must be for a gross sum payable at once ; and it can not be for payments ' for rent to accrue from time to time, and by thus gradually discharging a lien increase the value of the property for its owner by what would be in effect an accumulation not measured by a minority. Thus, if one who owns land worth $100,000, subject to a mortgage for $60,000, should devise it to trustees to lease it and apply the net rents from time to time to the payment of the interest and then the principal of the mortgage debt till it was all discharged, and then to divide the $100,000 worth of property thus acquired among desig- nated beneficiaries, this attempted indirect accumulation would be void. Hascall v. King, 162 N. Y. 134; Hafner v. Hafner, 62 App. Div. 316, afi'd, 171 N. Y. 633. It sometimes occurs that a valid direction to accumulate is made for the benefit of an infant, who is destitute of other sufficient means of support and education, and who should not be deprived of the benefit of the entire income until his majority. The following section of the Real Property law provides for such cases: "Where such rents and profits are directed to be accumulated for the benefit of a minor entitled to the expectant estate, and such minor is destitute of other sufiicient means of support and education, the supreme court, at a special term, or, if such accumulation has been directed by will, the surrogate's court of the county in which such will has been admitted to probate, may, on the application of his general or testamentary guardian, direct a suitable sum out of such rents and profits to be applied to his maintenance or education." § 52, originally 1 R. S. 726, § 39. And the similar statute as to personalty, which how- ever omits the requirement that the infant shall be "entitled to the ex- pectant estate," is found in Pers. Prop. L. § 5. See Matter of Davidson, 6 Paige, 136. When the terms of the gift are such as to vest the owner- ship of the accumulations in the infant as they accrue, in such case, if he die before the time of payment to him arrives, they belong to his estate, and pass to his personal representatives and not over to others. Smith V. Parsons, 146 N. Y. 116. It sometimes occurs, also, that the direction for accumulations is void, but all the other provisions of the trust are valid. Such a case arises, for example, when the trustee of an otherwise valid trust is ordered to lease land and apply the net yearly rents to the discharge of a mortgage upon it. In such cases, there may be a legal suspension of the absolute power of alienation for a time during which there is no valid disposition of the income. And all of these are regulated by § 53 of the Real Property Law (originally 1 R. S. 726, § 40), which declares that: "When, in conse- quence of a valid limitation of an expectant estate, there is a suspension of the power of alienation, or of the ownership, during the continuance of which the rents and profits are undisposed of, and no valid direction for their accumulation is given, such rents and profits shall belong to the persons presumptively entitled to the next eventual estate." Thus, a trust during the life of A, to pay him one-half of the net income, and accumulate the other half ; and at A's death to divide the principal and accumulations among his then living children, is valid in all respects save as to the direc- PERPETUITIES AND ACCUMULATIONS. 869 tion for accumulation. And the half of the income not payable to A would belong to his children in being as it accrued from time to time. This statute changes the common law in this regard, which gave such un- disposed of income to the settler or donor or his heirs. Hascall v. King, 162 N. Y. 134, 153; Schermerhorn v. Cotting, 131 N. Y. 48, 61; Delafield V. Shipman, 103 N. Y. 463, 469; Manice v. Manice, 43 N. Y. 303, 384; Gilman v. Reddington, 24 N. Y. 9 ; Williams v. Williams, 8 N. Y. 525, 538; Gott v. Cook, 7 Paige, 521, 542; Chaplin, Susp. Pow. Alien. § 275; Cornish, Uses, p. 68 et seq. INDEX. [References are to pages.] A. Abandonment, of easements and servitudes 197, 254-258 of obstruction to easement or servitude 267 title by, explained 100 Abeyance of seisin 381 Acceleration of remainders 772 Accident, causing constructive trusts 536 Accord and satisfaction, of mortgages 687 Accumulations, applied to support of infants 868 beginning of, when it may be 865 beneficiaries of, who may be 866 excess only void, as a rule 866 for discharging encumbrances 497, 498, 868 of income, rents, and profits 864-869 in New York 497, 498, 865-869 only during a minority, in several states 865 rule against 864-869 termination, when accumulations must end 866 under New York statutes 497, 498, 865-869 Acquiescence in user, to create prescriptive easement 206 Actions, determining right to easement or servitude .... 268 n. real and personal, as basis of division of property 7 Active trusts 428 Adaptability of fixtures to premises 24, 25 Adverbs of time, making remainders vested or contingent . . . 738 Adverse, claim of right, to give prescriptive easement 202 obstruction, extinguishing easements or servitudes 260 possession, distinguished from custom and prescription . . . 193 reversions, how affected by 723 title by, explained 98, 101 Advertisement, foreclosure of mortgages by 696-698 Agent, purchasing at his own sale, etc 549 Agreement (see Contract). Agricultural lease in New York 391 n. Aids, relief, etc., affected by statute 12 Car. II. ch. 24 . . . . 357, 361 incident to tenure by knight-service 350 872 INDEX. [Beferenoea are to pages.] Air and light, easements in, how acquired 273-276 prescriptive right to 277 Alien, could not be cestui que trust if he could not take legal title . 415 mining rights of 318 n. Alienation, by deed or grant 101-105 by devise 105-107 by matter of record 107 by special custom 107 by will 371-374 of realty by act inter vivos 374-378 restricted by heirs 374 n. restrictions on, generally 68 suspension of power of (see Perpetuities) 838-869 title by, kinds of alienation 101-107 Allegiance, in America, nature of 394 Alodial, holding of property 77, 333-396 holding in America 386-396 holding, turned into tenure 340 Alteration of easements and servitudes 249 Alternate remainders 96, 749 American holding of realty, alodial 334 Ancient buildings, lateral support of 281 Ancient demesne, tenure by 79, 364 Ancient lights (see Lights) 275 Anglo-Saxon, alienation by will 371 feudal germs in Anglo-Saxon law 336 holdings, or tenures 334-337 Annexation of fixtures, determining their nature .... 21-26 actual 22 adaptability to premises 25 constructive 21 weight, size, etc 24 Annual rests, right of mortgagee to 644 Annuity, distinguished from rent 119 Answer in Chancery, express trusts manifested by 440 Anticipation, clause against, in trusts for married women . . . 472 Appendant easement, explained 155 Apportionment, of rent-charge or rent-seek 140, 141 of rent-service 130-132 Appropriation, exclusive, essential to property 4 Appurtenance, distinguished from parcel 164 Appurtenant easements 155, 163 transfer of such easements 243 profit a prendre 308 Archer's Case, rule in 756 Artificial water rights 305 Assignment (see also Transfer). deed of 102 for creditors, presumed ended in N. Y. after 25 years .... 46.} of easements and servitudes 241 INDEX. 873 [References are to pages.] Assignment — continued. of mortgages 635, 671, 680 of rent-charge and rent-seek 138 of rent-service, and reversion 128 Assumpsit, action of, for rent-service 125 Assurances, common, of the realm 99, 101 Attoknby, constructive trust against, from presumed fraud 549, 553, 554 Attornment, abolished by statutes 385 by lessee to mortgagee 646 reversioners requiring 722 B. Bankruptcy, right of trustee in, to fixtures 47 n. Bargain and sale, deed of 103, 104 Base estates 586 Beneficium, or benefice 344 Benevolent, as a word to denote charity 481 Black-mail, as a species of rent 121 Bona fide, purchaser for value 521, 572-579 Bond, accompanying a mortgage 626 Book-land, alodial holding of, by Anglo-Saxons 335 Botes, or estovers (see Estovers) 309 Bridge, franchise for a 144 Brundagb clause, in a mortgage 659 Building, ancient, support of 281 erected on one's land with his consent 55 erected on one's land without his consent 54 erected on street, easements and servitudes in 230 lateral support of 280 repair of, by owners of portions 285 subjacent support of 284, 285 way through 183, 262 when realty and when personalty 53-56 Building loans, mortgages for 674 Burden of proof, shifted by confidential relation 546-558 Burgage, tenure in 79, 361 title, custom 107 Burial rights, when realty and when personalty 69 c. Cestui que use .82, 408 who may be 414 Chancery, Court of 409, 413 n. Change, of neighborhood, effect oh equitable easements .... 190 of way of necessity 181 Charge, on realty, as equitable mortgage 622 on realty, prevented by fraud 536 resulting trust on its failure 525 874 INDEX. [References are to pages.] Charitable uses and trusts (see Trusts, charitable) 83 Charity, amount of property testator may give for 482 history of charitable gifts in New York 498-503 uses or trusts for (see Trusts, charitable) 473-492 Chattel interests, explained 89 Chattels, goods and, explained 6 suspension of absolute ownership of 863 Chattels real, explained 88 pew rights as chattels real 67 Child en ventre sa mfere, remainder for 763 voluntary executory trust for 447 Chose in action for injury to realty, is personalty 51 Claim, adverse, to give prescriptive easement 202 continual, by disseisee ... 382 n. excessive (see Excessive claim) 266 Class, gift or grant to, vested remainders 739 Close, around every piece of land 73 Common, defined and explained 308-310 (See also Profit 1 prendre) 75, 154, 307-319 estates or tenancies in common 90 Common assurances op the realm 99, 101 Common recovery to uses, conveyance by 103 Compensation, for property taken for public use 229 Complaint, in action to foreclose mortgage 706 Condemnation, of realty for public purposes 233, 234 Condition, breach of 592 easements created by 160 entry and forfeiture for breach of 188 equitable easements arising from 188 estates on (see Estates, on condition) 587^-597 fee on 86 in restraint of marriage 590, 591, 600 kinds of conditions 587-592 New York Manor lands afiected by 391 n., 392 n. performance of 592 right of entry for breach of 74 n., 593 waiver of breach of 594 Conditional estates (see Estates, qualified) 587-597 Conditional limitation, distinguished from remainder .... 746 estates on 92, 93, 602-605 fee on 87 made by executory devise or shifting use 87, 781, 826 Conditional sale, distinguished from mortgage 612 Confirmation, deed of 102 Consideration, constructive trusts from inadequacy of ... . 537 for executory contract to settle property in trust 445 good or meritorious to raise trusts 447, 577 nominal, in quit-claim deeds, why 526, 577 past, in questions of fraud on creditors 564 valuable, explained 576 INDEX. 875 [References are to pages,] Consolidation of mortgages 673 CoNSTKocTivB TRUSTS (see Trusts, coDstructive) . . 83, 84, 529-582 Contamination (see Pollution) 298, 305 Contingent, estate, defined 730 remainders (see Kkmainders, contingent) . . .96, 730, 744-788 lises '96, 769, 770 seisin to support 784 Continual CLAIM by disseisee 382 n. Contract, determining nature of fixtures 18 equitable easements arising from 187 fixing pew rights 68 implied, no implication against the state 146 obligation of, not to be impaired • . . 145 of purchase and sale of realty, constructive trusts from . . . 570 equitable conversion caused by 50 fixtures, as between parties to 28 record and its effects 619 of purchase and sale of trees 64 Contribution towards mortgage debt 662 Conventional life estates, defined and explained 87 (See Estates, for life) 87, 88 Conveyance, forms of 101-107 mortgage as conveyance 628 tortious 384, 385 voluntary, in fraud of creditors 562 in fraud of purchasers 560 Co-owNERSHip (see Joint estates) 89-91 Coparcenary, estates or tenancies in 90 Copyhold tenure (see Tenure) 79, 366 Corporeal hereditaments 75, 115 Court of equity, or chancery 413 n. Court baron, or manor court 369 Covenant, easements created by 160, 187 for title, in mortgages 660 preferred, rather than condition 588, 592 Covenant to stand seised, deed of 103 Creditors, assignments and trusts for 468 assignments for, presumed ended in N. Y. after 25 years . . . 465 fraud on, constructive trusts arising from . . . 514 n., 536, 562 reaching trust income in New York 496 Crops, when realty and when personalty 59-65 Cross-remainders 96, 747 Curtesy, defined 88 in reversions 719 in uses and trusts 417, 421, 425 in vested remainders 743 Custom, alienation by special custom -. ... 107 distinguished from prescription and adverse possession . . 192, 219 easements and servitudes arising from 157, 219, 220 gavelkind custom 362 876 INDEX. [References are to pagea.] Ct prks, doctrine affecting charitable trusts {see Trusts, charitable) 486-491 construction of executory trusts •431 prevents resulting charitable trusts 524 restored in New York 502 D. Damages, for injuries to easements or servitudes 268 for invasion of street rights 231 Debt, action of, for rent 124 the principal thing in mortgage transaction 636 Dedication, abandonment of easements and servitudes by . . . 257 defined and distinguished from prescription .... 221, 225 n. of easements and servitudes (see Servitudes) 221-227 statutory 226 Deed, absolute in form, intended as mortgage 620 alienation by deed 101-105 common-law forms of 102 modern forms of 104, 105 operating by Statute of Uses 103, 104 quit-claim, one dollar consideration 526 trust deed, as form of mortgage security 636 Defeasance, clause, as part of legal mortgage 624 deed of 102, 103 of mortgage, its record 625 n. Defences against a mortgage 688 Deficiency judgment, in foreclosure suit 701, 709 Demand, for proceeds of rent 126 Demesne, ancient 364 holding in 342 Deposit of title deeds, as equitable mortgage 615 Descent, of contingent remainders 766 of easements and servitudes 243 of feuds 371 of reversions 720 title by 99 Descent-cast, explained 383 n., 724 Destruction of leased buildings, effect on rent (see Extinguish- ment) 133 Devise, alienation by 105-107 executory (see Executory devise) 97, 604, 824-837 kinds and effects 106, 107 of contingent remainders 766 of easements and servitudes 243 prevented "by fraud, constructive trusts 535 residuary, effects on resulting trusts 107, 523 title by, history 105, 106 (See also Wills.) INDEX. 877 [References are to pages.] Devisee, right of, to fixtures 29 Disability, of landowner, prevents running of prescription .... 208 Discbarge, of mortgages 676-688 of rent-charge and rent-seek 139 of rent-service '. 129 Disclaimer of easements and servitudes 254-258 Disseisin 382 Distress, for rent 120-124, 134, 137 incident to rent-service 123, 124 not incident of common right to other rents 134 Distributees, explained 9 Divine service, tenure by (see Tenure) 79, 359 Domesday Book 341 DoMiNAfjT tenement, in law of easements 150, 152 Dower, defined 88 in mortgaged realty 647 barred by Statute of Limitations 688 in reversions 719 in uses and trusts 417, 421, 426 in vested remainders 743 Drainage, easement of 306 Drunkenness, constructive trusts caused by 543 Duress, constructive trusts caused by 543 Dying without issue, or heirs, meaning of 833 E. Easements, and servitudes (see also Servitudes) ... 76, 150-306 abandonment of 197 action to determine right to, in New York 268 n. affirmative and negative 154 alteration of 249 apparent, and non-apparent 155 required in implied grant by severance 172 appurtenant, or appendant, and in gross 155, 156 transfer of , 243 burial rights, as easements 69 by co-owners of land, against the separate parcels 264 classifications of 154-157 common-law easements distinguished from other servitudes 150-212 continuous, and discontinuous 15o need not be continuous to cause implied grant 173 created by express grant or reservation 159-167 appurtenant to land granted or reserved 163 by maps or plans of land 161 created by implied grant or reservation, three classes . . . 167-192 equitable easements 184-192 from severance of entire tract 169-176 ways of necessity 176-184,246 878 INDEX. [Beferences are to pages.] Easements — continued. created by license, in a few states 158 creation of, generally 157-212 dedication of, so-called 221-227 descent and devise of 243 distinguished from other servitudes and rights . 150-152, 214, 320 drainage right 306 eaves' drip 306 equitable easements 184-192 estoppel as a basis of 190 precluding remedy against neighbor 192 extinguished by change of neighborhood .... 190, 191 requisites of 185, 186, 188 termination of 190, 191 extinguishment of .^ 252-266 by abandonment, or disclaimer, estoppel 254-268 by adverse obstruction, or prescription 260 by destruction of that on which easement depends . . . .262 by excessive claim or user 266 by license 253 by non-user 258-260 by release 252 by union of dominant and servient estates , 263 implied 167-192, 222 {See Easements, created by implied grant or reservation.) important kinds, special features 270-306 fence rights 294 highways 272 lateral and subjacent support 278-285 {See Support.) light, air and prospect 273-277 party- wall rights and similar rights 285-295 right of way 271 water rights (see Water) 295-306 incidents of easements and servitudes 241-251 in gross 155, 156, 215 transfer of 241 kinds of 150-212 negative, equitable 184 pew lights, as easements 67 prescriptive, from adverse user 192-212 license prevents running of period 203, 204 none where no grant can be presumed 211 presumption of grant or other legal right 209-212 use of 246 user, requisites Of, to give prescriptive easement . . . 195-209 when prescriptive period begins 198 remedies for obstructing 267 repairs of 248 revival after suspension 265 INDEX. 879 [Keferences are to pages.] Easements — continued. secondary 248 statutes providing for 126 suspension of 263 termination of 251-269 transfer of 241 ways of necessity (see Ways) 176-184, 246 Eaves' drip, easement of 306 Education, trusts for, charitable 479 Ejectment, for non-payment of rent 126 Eleemosynary gift, trust for, charitable 479 Elevated railroads, on streets, servitudes (see Railroads) . . 230 Eminent domain, easements and servitudes arising from . . 227-239 proceedings outlined 233, 234 Encumbrance, defined and illustrated 108 when a party-wall is, usually not 294 Enjoyment, of easements and servitudes 244-248 of land, to give prescriptive easement 195-212 Entirety, estates or tenancies by 91 Entry, right of, for condition broken 593, 596 to foreclose mortgage 695 Equitable, conversion 50 easements (see Easements) 184-192 estates, explained and classified (see Estates) 81 in mortgaged realty 628 seisin of 380 mortgages or liens (see Mortgages) 614-623 Equities, latent, affecting mortgages 638 Equity, courts of 413 n. of redemption (see Mortgages) ... 81, 85, 94, 583, 609, 650-655 Escheat, distinguished from forfeiture 355 feudal, incident of knight-service 354 in America 355, 394 of uses and trusts 417, 421, 425 title by 99 Escuage (see Scutage) 349, 356 Estates, absolute and qualified 92, 585 at sufferance 89 at will 89 base 586 by entirety 91 by marriage, life estates 88 classified, generally 80, 401 with reference to courts that recognize them .... 81, 402 with reference to number and connection of owners ... 89 with reference to qualified or unqualified nature ... 92, 585 with reference to quantity 85 with reference to time for enjoyment to begin .... 94, 712 conditional, or qualified 585-605 contingent, defined and illustrated 98, 730 defined and lEustrated 79, 399 880 INDEX. [References are to pages.] Estates — continued. equitable 401-584 in mortgaged realty 628 seisin of 380 trusts as such (see Trusts) 427-582 uses as such (see Uses) 403-426 -X executory (see Executory estates) ... 94, 96, 716, 776-837 explained, generally, and classified 399-401 for life (see Life estates) 87, 88 for years, defined and illustrated 88 commencement restricted in time in New York .... 849 in uses 421 merger of 723 shifting uses and conditional limitations in 782 freehold, explained and classified 85, 86 not of inheritance, or for life 87, 88 of inheritance, or fee of some kind 86, 87 from year to year, month to month, etc 88, 89 future 94, 712-869 classes and general principles 713-716 executory (see Executory estates) 776-837 growth from lesser to more important kind 829 kinds, reversions, remainders, executory estates .... 716 remainders (see Remainders) . . . 94-96, 600, 716, 726-775 reversions (see Reversions) .... 94, 95, 600, 717-725 greater and more important preferred 590 in common 90 in coparcenary 90 in expectancy 712-869 in possession 712 in real property, generally 399-869 in remainder (see Remainders) .... 94-96, 600, 716, 726-775 in reversion (see Reversions) 94, 95, 600, 717-725 in severalty 89 joint, defined and classified 89, 90 legal and equitable 81, 402 less than freehold, explained and classified 85, 88 next eventual, income to persons presumptively entitled to . . 868 on condition 92, 586-597 breach of condition 592 express condition, not favored 587 expressions used to create 586 forfeiture, and re-entry for breach 593 assignment of right to re-enter 595 implied conditions, or conditions in law 588 performance of conditions 592 possibility of forfeiture, or reverter 596 precedent 589 subsequent, preferred 589 termination of 600 void, illegal, or impossible 590 INDEX. 881 [References are to pages.] Estates — continued. on condition — continued. waiver of breach of condition, equitable relief 594 ■who may re-enter for breach 595 on conditional limitation 92, 93, 586, 602-605 created by executory devises 826 created by shifting uses 781 distinguished from remainders 746 expressions used to create 603 indirect creation at common law 604 not favored at common law 603 on limitation 92, 93, 598-601 efiects of happening of specified event 600 expressions used to create 599 remainders and reversions after 600 per autre vie 87, 849 n. partnership estates 91 particular, explained 715 present and future 94, 712 qualified 92, 585-605 summary of estates 79-98 tail, explained and illustrated 86 vested, explained and illustrated 96, 730 Estoppel, abandonment of easements and servitudes by . . 254-258 dedication of servitudes by 221 easements created by 190 from use of maps or plans 162 of tenant to deny landlord's title 123, 345 statements, in taking assignment of mortgage 640 title by 100 to deny intent as to fixtures 19 to revoke license 325, 326 Estovers, common of 309 Eviction of tenant, effects on rent-service 129 Exception, distinguished from reservation 164, 165 Excessive claim, extinguishment of easements and servitudes by . 266 Exchange, deed of 102 ExBCTTTED trusts 429 Execution, for mortgage debt, restrictions on 691 of powers 466,797-812 of resulting trusts 527 of passive express trusts 460 of trusts that change from active to passive 461-464 of uses, by Statute of Uses 419 of wills, to pass realty 106 reaching real property 9 Executors, power to sell realty, when a trust 794 power of, passing to administrator c. t. a ■ . . . 799 n. Executors and administrators, purchasing at their own sale . 549 right to fixtures . 29 56 882 INDEX. [References are to pages.] Executory agreement to settle property in trust .... 445-447 ExKCUTOUY DEVISES 97, 604, 824-837 after failure of " heirs," or " issue " 833,845 after estate whose owner may exhaust the fee 831 are independent of preceding estates 830 the four forms of 825 Executory estates 94-97, 776-837 causing inalienability or remoteness 855 demand for, and the four forms of 776 descendibility, devisability, alienability 829 distinguished from remainders 728, 729, 827 executory devises as (see Executory devises) .... 824-837 incidents, dower, curtesy, etc 829 powers, as means of creating (see Powers) 786-823 shifting uses as (see Shifting uses) 781 springing uses as (see Springing uses) 780-783 ways of making 777 Executory licenses, revocability 323 Executory trusts, 429 Exoneration, from mortgage debt 663 Extinguishment (see also Merger), of easements and servitudes 190, 191, 251-269 of mining rights, in ownership of the land 319 of mortgages 676-688 of rents 130, 139 of ways of necessity 180 F. Failure of issue or heirs, when indefinite 833 Fealty, distinguished from allegiance 345 feudal oath of and its outcome 345 incident of rent-service 123 incident to reversions 722 not incident to remainders 729 Fee, feudal meaning and change of meaning 344 limited or " mounted " on a fee 603 on condition (see Estates, on condition) 86 possibility of forfeiture after 597 on conditional limitation (see Estates, on conditional limitation) 87 on limitation (see Estates on limitation) 86, 87 qualified, or base . . ' 86 simple, defined and illustrated 86, 713 tail, defined and illustrated 86, 377 with a double aspect 749 Fee-farm rent 135 Fence, division, easements in 294 erected to shut out light and air — " spite fence " 276 Feod 344 INDEX. 883 [RefeTenoes are to pages.] Feoffee to uses 82, 408 who could be 414 Feoffment, and livery of seisin 383 abolished in New York 384 n. deed of 102 feudal procedure in making 344 to uses, conveyance by 103 Ferky, franchise for a 144 FeuDj 344 proper and iniproper feuds 78, 348 Feudal system (see also Tenure) 5, 77-79, 339-385 abolished generally in America 387 creation of feudal relationship 343 descent and devolution of realty affected by 370-378 fealty, homage, warranty 345 feudal germs in Anglo-Saxon law 336 manors 368-370 rise and growth in England , 339-341 seisin developed by . 378-385 subinfeudation 342 terms used in, connection with . . ., 343 FiDEi coMMissuM, as prototype of use 404 Fiduciary, purchasing. at his own sale 548 FiEP 344 Fine, for alienation, incident of knight-service 353 to uses, conveyance by 103 Fish, right to take 308 Fixtures ... 11-48 adaptability to premises, determining, nature 24, 25 annexation, use, or enjoyinent,, determining nature . . . 21-26 actual annexation 22 completory character 24 weight,, size, etc 24 assignee in insolvency, right to fixtures 47 n. criteria for determining whether, realty or personalty .... 15 execution purchaser, right to fixtures 36n., 47n. intent, as chief test for determining nature 15-21, 32 aided by method of annexation 26 how intent may be shown, directly 16 by contract 18 estoppel to deny intent 19 fraud, public policy 19 other tests largely subsidiary to intent 20 reasonably presumable intent 15 relation between parties determining nature of fixtures . 26-48 when annexed by permanent owner of land . . . 27-36 co-owners, joint tenants, etc 30 heirs or devisees and personal representatives of deceased owner 29 mortgagor and mortgagee 31 884 INDEX. [References are to pages.] Fixtures — continued. unpaid vendor, etc., of fixture and vendee, mort- gagee, etc., of land 31-36 vendor and vendee 28 when annexed by temporary owner of land . . . 36-48 life tenant 44, 45 tenant at will, at sufEerance, etc 46 tenant for years 37-44 fixtures he may remove 38-41 agricultural fixtures 40 domestic fixtures 39 trade fixtures 38 holding over after lease expires, effects . . 42, 46 renewal of lease, effects 43 time when he may remove fixtures .... 42 Folk-land, held by Anglo-Saxons 336 FoLLOwiNa TRUST FUNDS (see TRUSTS, resulting) . . .84, 433, 505-528 Foreclosure, of mortgages (see Mortgages) 611, 692-712 Forfeiture, disliked by courts 588, 592 distinguished from escheat 355 for condition broken 593 of uses and trusts 417, 421, 425 possibility of 596, 597, 724 title by 100 Franchises 75, 142-148 distinguished from easements 152 distinguished from mere power to a corporation .... 143 n. how acquired 145 how far real property 142-144 loss or destruction of 147 not implied against the state 146 purposes for which they may exist 144 Frankalmoin, tenure (see Tenure) 79, 358 Fraud, actual, constructive trusts arising from .... 84, 531-537 affecting right to fixtures 19 in obtaining wills or devises 532 in preventing wills or devises 535 on creditors 562 on marital rights 566 on powers 567, 811 on purchasers 560 presumptive, constructive trusts arising from 537-569 affecting third parties 560-569 from nature of transaction 537-542 from relation of parties 542-560 Statute of Frauds (see Statute of frauds) Free alms, tenure (see Tenure, Frankalmoin) 3.58 Free and common socage, tenure (see Tenure) 78, 360 Freehold estates, explained and classified 85, 86 not of inheritance, or for life 87, 88 of inheritance 86, 87 INDEX. 885 [References are to pages.] FKUCxrs INDUSTRIALES, when realty and when personalty . . 59-62 Fbucttjs naturales, when realty and when personalty . '. 59, 63-65 Fund for payment of mortgage debt 679-682 when mortgagor or primary obligor has died 679 when mortgagor has aliened the land 680 Future advances, mortgages to cover 674 Foture estates (see Estates, future) 94, 712-869 G. Gas, percolating natural gas is realty 57 n., 303 Gas fixtures and appliances, kind of property 52 Gavelkind, tenure (nee Tenure) 362 title, by custom of 107 Gift, deed of 102 from fraudulent taker, constructive trust 559 Gold, clause in mortgage 659 rights in gold mines 313 Goods and chattels 6 Government, charitable trusts for, to lessen public burdens . . . 480 Grand sergeanty 79 Grant, deed of 102 easements created by express 157-167 easements created by implied 167-192 implied, of easements, by maps, plans, etc 222 incorporeal hereditaments conveyed by 384 of easements in light and air 273 of easements and servitudes 241 by covenants or conditions 160 of party-wall rights 290,291 of servitudes 214-216 of water and islands 298 n. office, private, public 105 presumed, to create prescriptive easements .... 193, 209-212 title by 101-105 GpAss, when realty and when personalty 65 Guardian and ward, constructive trusts from relation .... 554 H. Heir, sale of expectant interest, constructive trust 539 Heirlooms 70 Heirs, history and meanings of the word 371, 756 inherit realty 8 failure of, when indefinite 833 restraining alienation by ancestor 374 n. right to fixtures 29 Hereditaments 74, 115, 116 corporeal and incorporeal (see Corporeal, Incorporeal) . 75, 115 lands, tenements, and 6 886 INDEX. [References are to pages.] Heriot 372, 418 n. Highways, created by operation of law 235 easements and servitudes in 218, 272 History, of alienation by act inter vivos 374-378 of alienation by will 371-374 of charitable uses and trusts 473 of feudal system 339-385 of fixtures 11-14 between landlord and tenant 37-41 of holdings of realty in America 386-896 of landlord and tenant 37, 38 of prescription 193 of "property" 2 n. of seisin 379 of tenures and alodial holdings 333-396 of uses, early 403-411 of wills of real property 105, 106 Holding op real property 77-79, 333-396 alodial, Anglo-Saxon, and American .... 333-337, 386-396 rights of the state 391 by tenure (see Feudal System) 77-79, 339-385 duration of vassal's 370 Homage, feudal oath of 346 House (see Building). Ice, when realty and when personalty 57-59 Implied, contract, not against the state 146, 177 easements (see Easements) 167-192 grant, not against the state 146, 177 reservation of easements 174-176 trusts (see Trusts) 432, 433, 504-583 Imprisonment, preventing running of prescription .... 208, 209 Improvements, by mortgagee in possession 643 In gross, easements (see Easements) 155, 156, 215, 241 Incapacitated persons, sale of their land by order of court ... 50 Incorporeal hereditaments 115-319 grant of 384 seisin of 380 Infancy, preventing running of prescription 208, 209 Infants, accumulations for, when used for support 368 execution of powers by 798 sale of their land by order of court 50 Influence, undue (see Undue influence) 543 Inheritance (see Descent). Injunction against injuries to easements or servitudes 268 Injury to leased building, effects on rent 133 Innocent purchaser for value, without notice, rights of . 521, 572-579 Insane persons, sale of their land by order of court 50 INDEX. 887 [Keferencea are to pages.] Insanity, preventing running of prescription 208, 209 Insurance, clause in mortgage 658 Intent, chief exponent of precatory trusts 451 determining nature of fixtures (see Fixtures) .... 15-21, 32 element of -fraud 533 executory trusts affected by 430 in depriving neighbors of percolating waters 303 Interest, clause in mortgage 657 Inverse order of alienation, sale of mortgaged lots .... 665 Investiture, feudal procedure 344, 383 Irrigation, use of waters from streams for 300 Issue, failure of, when indefinite 833 J. Joint estates . -" 89-91 Joint mortgages 91 Joint tenancy 90 Joint tenaIiits, right to fixtures 30 Jointure, in lieu of dower 88, 417 n. Judgment, alienation by 107 deficiency, for mortgage debt 691, 701, 709 in foreclosnre'suit . .' 709 priorities betweeti mortgages and judgments 668 . K. Kent, gavelkind t°enure°in county of .' 362 holding of land in county of, bridge between Anglo-Saxon and American holdings 335 Kinds of real properly 73-75, 111-330 Knight-service, tenure by (see Tenure) 78, 348-357 Knight's fee 349 L. Laen-land, Anglo-Saxon holding of 336 Lakes, when navigable 59 Land, corporeal part of real property 73, 113 support of 278, 283 Land-locked property (see Ways op necessity) . . . 176-184 Landlord and tenant, attornment by tenant to mortgagee . 385, 646 destruction of or injury to buildings, effects on rent .... 133 estoppel of tenant to deny landlord's title 345 eviction of tenant, effects on rent 129 history of the relation 336, 399 n. light and air, easements in 275 rent-service between 120, 121 rights in fixtures (see Fixtures) 13, 22, 37-44 rights in growing crops 62 888 INDEX. [References are to pages.] Lands and tenements 113, 114 Lands, tenements, and hereditaments 6, 73 Latent equities, affecting mortgages 638 Law, servitudes by operation of (see Servitudes) .... 227-239 Law day, of a mortgage 85, 94, 608 Lease, by trustee in New York 853 n. deed of 102 of agricultural lands in New York, restricted to 12 years . 137, 391 n. made by donee of power appendant 790 reciprocal rights of lessee and mortgagee 645-647 renewal of by trustee in his own name 551 Lease and release, deed of 104 Legal estates 81, 402 distinguished from equitable estates 402 Legal life estates 88 Legal mortgages 624-627 License 76, 320-330 creating or destroying easements or servitudes by . . . 158, 253 distinguished from easements 1 51 estoppel to revoke 325, 326 kinds — executory, executed, continuously or repeatedly executed 322, 329 n. executed, continuously or repeatedly 327-333 on licensor's land 328 on licensee's land 329 executed, wholly, irrevocable 326 executory, wholly, revocable 323 express and implied 321 in pews, or burial places 68, 69 naked and coupled with an interest 322 not transferable 321 preventing acquisition of prescriptive easement .... 203, 204 revocation of 323-330 to build on another's land 55 to cut and remove trees or grass 64 Lien, equitable 614 of mortgages 584, 628 on real property generally 107, 108 priorities among mortgages and other liens 648, 669 regulation of , Torrens system 108, 109 statutory 108 vendee's (see Mortgages, equitable) 619 vendor's (see Mortgages, equitable) 616-619 Life estates, legal and conventional 87, 88 not more than than two successive in New York .... 730 n. Life tenant, right of, to fixtures 44, 45 Light, ancient 275 and air, easements in 273-277 Limitation, collateral or special 599 n. estates on (see Estates, on limitation) .... 92, 93, 598-601 fee on 87 INDEX. 889 [ReferenoeB are to pages.] Lis pendens, doctrine of 573 equitable mortgages arising from 622 " Little Wkit of Right close," 365 LiVBRY OF Seisin, 344, 383, 714 abolished in New York 384 n. Location of way of necessity 181 Lord, mesne, or intermediate 5, 342 paramount 5, 342 M. Magna Charta, effects of, on alienation of reality 375 Manhood, or homage Qiomagium), feudal oath of 346 Manor . .' 368-370 lands of New York 389 n.-394 n. no new manors since Statute of quia emptores 377 rents connected with 136 n. various tenures in 368 n., 369 Manorial rent 117 Manure, when realty and when personalty 66 Map, or plan, creating easements or servitudes 161, 222, 226 Marriage, as a valuable consideration 576 estates by 88 fraud on marital rights 566 restraint of, by conditions, etc. 590, 591, 600 right of, incident to knight-service 353 Married women, execution of powers by 798 trusts for separate use of 471-473 Marshalling of funds for payment of mortgages 664 'M.A.siMS, accessio cedit principali 37 n. among equal equities priority of time prevails 667 cujus est solum, ejus est usque ad caelum 53, 113, 302 delegatus non potest delegare 799 equality is equity 467 equity acts in personam 459 equity follows the law 401, 415, 425 equity treats that as done which ought to be done .... 569, 621 ex turpi causa non oritur actio 541 he who seeks equity must do equity 542 id certum est quod certum reddi potest 119 nemo est heres viventis 752 non jus sed seisina facit stipitem . 720 once a mortgage, always a mortgage 583, 609, 654 quicquid plantatur solo, solo cedit 12, 13, 21, 84, 37, 53 sic utere tuo ut alienum non laedas 239, 278 solo cedit quod solo inaedificatur 37 n. ut res magis valeat quam pereat 473,487 where the equities are equal the law shall prevail 672 Mechanics' liens, priorities between them and mortgages . . 669, 675 890 INDEX. [References are to pages.] Meechet 366 n. Merger (see also Extinguishment) of easements and servitudes . 263 of estates for years 723 of franchises 147 of mining rights 319 of mortgages 683 of particular estate and remainder 743 of particular estate and reversion 722 of powers 823 of rent 130 Mesne, lord 5, 342 Mining (see Mines). Mines, access to 284 extinguishment or merger of mining rights 319 gold and silver mines 313 lode mines 316, 317 mining laws of this country 313-319 mining rights, steps in acquiring 315-317 as profit h prendre 310-319 distinguished from ownership of mines 310, 311 placer mines 317 right to pollute water in mining 299 subjacent support by owners of 284 Mistake, causing constructive trusts . 536 Misuser of franchise, may destroy it 147 Money, when real property . 49 Mortgages • . _ 92, 93, 606-712 accord and satisfaction, discharging 687 accounting by mortgagee 645 adverse claim of, and other liens 648 annual rests in applying income to 644 assignment of 635-640 compulsory 637 estoppel statements • 640 how made 635, 639 of debt or mortgage alone, effects . 637 position and rights of assignee 638 record of assignment, effects 640 the debt the principal thing 636 warranties accompanying 639 assuming of, effects 680 blanket, marshalling assets 664 release affecting 676 cancellation, of record 678 clauses, special in mortgages 655-660 assessment clause 657 covenants for title 660 gold clause 659 insurance clause 658 interest clause 657 INDEX. 891 [References are to pages.] Mortgages — continued. power of sale . 655 receiver's clause 659 tax and assessment clause 657 tax law (Brundage) clause 659 consolidation of 673 contribution to redeem 662 conveyance part 624 debt the principal thing 636 debt barred by Statute of Limitations 626 defeasance part 624 defences against 688 definitions of 92, 588, 611 development of, from conditional sale 607-611 deficiency judgment for debt secured by 691, 701, 709 discharge and extinguishment of 676-688 by accord and satisfaction 687 by merger, or extinguishment 683-686 by payment ., . ., 677-680 fund for payment 679,680 by release 676 by Statute of Limitations 687 by tender 682 distinguished from conditional sales 612 distinguished from other kinds o£ liens 614 distinguished from uses and trusts 412 dower,, right of in mortgaged realty 647 equitable 615-623 agreement for a mortgage 621 charges on land 622 deed absolute in form, intended as mortgage 620 deposit of title deeds 615 lis pendens 622 mortgage defective in law 621 vendee's lien 619 vendor's lien 616-619 equities associated with 661-666 contribution to redeem 662 exoneration 663 marshalling 664 subrogation 663 equity of redemption 85, 583, 584, 609 execution for mortgage debt, restricted 691 foreclosure of 611, 692-712 equitable, or by judicial sale 665, 699-711 appearances in 707 commencing the action 703 complaint 705 deficiency judgment 701, 709 judgment 709 892 INDEX. [References are to pages.] Mortgages — continued. judgment roll 710 muniments of purchaser's title 711 notice of pendency of action 704 obtaining jurisdiction of parties 705 order to compute amount due 708 parties, how ascertained 700-703 incapacitated parties . . . . t 707 proceedings to judgment 707 redemption after foreclosure 711 reference to compute, to take evidence 708 report of sale 710 sale 710 of land in parcels 699 of lots in inverse order of alienation by mortgagor 665 f -•. summons, its service 704 surplus proceedings 710 by advertisement 696-698 by entry, notice and lapse of time 695 strict 692-695 compared with suit to redeem 693 where and to what extent employed 693, 694 when foreclosure is complete 651, 711 fund for payment of mortgage debt 679, 680 when mortgagor has aliened the land 680 when mortgagor or landowner has died 679 future advances, mortgages for 674 incidents, dower, curtesy, descent, etc 633-635 insurance of mortgaged buildings 643 interests, rights and duties of parties to 631-660 of mortgagee 632-648 of mortgagor 648-660 joint 91 latent equities afEeotiug 638 law day of 608 legal 624-627 marshalling of funds for payment of 664 merger, or extinguishment of 683-686 mortgagee and lessee, reciprocal rights of 645-647 mortgagee and other claimants, reciprocal rights of . . . 647, 648 payment of, fund for 677, 679, 680 not ordinarily negotiable 638 once a mortgage, always a mortgage 588, 609, 654 origin and history of 606-611 personal obligation accompanying • 626 possession of mortgaged land by mortgagee . . . 632-634, 641-645 power of sale in, foreclosure by 655, 696, 697 purchase money mortgage, priorities of 648 priorities in right to payment 666-671 among different mortgages 667 INDEX. 893 [References are to pogea.] M0RTGXGK8 — continued. among mortgages and judgments 668 among mortgages and other liens 669 efiects on, of record 669-671 of mortgages to cover future advances 674 recording, effects on priorities 669-671 cancellation of record 678 of assignment of mortgage 671 redemption of 650-652 after foreclosure 711 contribution to redeem .... 662 suit to redeem 653, 693 release of 676 release of some mortgaged lots, effects on others 666 remedies of mortgagee 690 rights to fixtures on mortgaged land A3 1-36^ satisfaction of 689-712 satisfaction piece 677 Statute of Limitations, as a bar 687 subrogation, to mortgage securities 663 tacking of 671 tender, as a discharge 653, 682 theories of, the three chief ones 627-630 Mortmain, statutes of 403, 407 MoETUDM VADIUM Or mortuum gagura, parent of mortgage . . . 607 Muniment of title, mortgage as 684, 711 N. Nativi 365 Nature, servitudes and rights existing by . . . 151, 152 n., 157, 239 Navigable Streams {see Streams). Navigability (see Streams). NECE8siTY,.ways of («ee Easements, Wats) .... 176-184,246 Negotiability of mortgages 638 Nkife 366 New York (Throughout the book are special New York notes, in full measure, small type. They immediately follow the text, on subjects on which there is special New York law). Next eventual estate, persons entitled to, receiving income . 868 Next of kin {see Distributees) 9 Nominal consideration (see Consideration) 526, 577 Non-user, extinguishment of easements and servitudes by . . 258-260 interrupting prescription 197 of franchise, may destroy it 148 of way of necessity, does not destroy it 181 Notice 572-596 actual 572 bona fide purchaser without 572-579 894 INDEX. [References are to pages.] Notice — continued. coQstructire 573 implied 574 of pendency of action 623, 704 possession of realty as 574 presumptive 574 to agent, binding principal 573 0. Obligation, of contracts, not to be impaired 145 Obstruction, adverse, extinguishing easements or servitudes . . 260 Occupancy, title by 100 OrriCE GRANT, or deed 105 Oil, percolating, is really 57 n., 308 Oral restrictions, equitable easements from 188 Outline of real-property law 72-110 table of real-property law 109, 110 Parcel, distinguished from appurtenance 164 Parent and child, relation of, helping to raise constmctive trust . 556 Parol restrictions, equitable easements from 188 Particular estate 95, 96, 715, 728 Partition, deed of 102 does not cause implied easements for co-owners 171 Partners, rights of, to fixtures 30 renewal of lease by one in his own name 551 Partnership estates 91 Party-walls, easements and servitudes in 285-295 implied gi-ant of right to 172 not encumbrances, how made so 294 Pasture, common of 309 Patroons, owners of New York Manor lands 389 Payment of mortgage debt (see Mortgages) 677 Per autre vie estates, restricted in New York 849 n. Percolating water, oil, or gas, rights in 302, 303 Performance of conditions 592 Perpetuities 838-863 charitable trusts not afiected by rule against 851 but such trusts may cause perpetuities 491 construction of suspension favors legality 860 division of trusts, to prevent 861 four ways of causing suspension • 848 growth of rule against 838 legal period of suspension '. 844 New York's and several other states' statutory rule against . . 846 INDEX. 895 [Beferencea are to pages.] Perpetuities — continued. New York express trusts affected by rule against 497 personal property affected by rule against 863 property of all kinds affected by rule against 863 regarded as illegal suspension of alienability 840, 841 regarded as illegal suspension of vesting 840, 842 survivors of a class, gifts to, effects 850 separation of parts of gift, to avoid 861 suspension caused by contingent remainders, or equivalent . . 853 suspension caused by executory estates and interests .... 855 suspension caused by trusts 850 suspension caused or obviated by powers 856 suspension not caused here by conditions subsequent, nor possi- bilities 858 youngest child, gift till majority, etc., construction .... 860 Personal Pkopbrtt (see Property, Chattels, Goods, Fixtures) suspension of absolute ownership of 863 Petit (or petty) serjeanty, tenure (see Serjbanty) ... 79, 361 Pew rights, restraint on alienation of fee in 68 when realty and when personalty 67-69 Piscary, common of 309 Plan, or map, creating easements or servitudes .... 161, 222, 226 Ploughland, explained 349 n. Pollution of percolating water 305 of water in a stream 298 Possession, adverse (see Adverse possession). as notice 574 distinguished from seisin 380 estates in 712 title by adverse 98, 101 Possibility of forfeiture, inalienable 596, 724 of reverter 601 rent-service incident to 122 n. no perpetuity caused by, in this country 858 Power, of sale in a mortgage 655, 697 of sale, not to mortgage, nor exchange, etc 804 Powers 97, 567, 787-823 appendant, or appurtenant, extinguishable 821, 822 lease made by execution of 790 appointment under, illusory 811 its revocation 818 beneficial, conferring fee on donee 791, 795 classified 789-793 codified in some states 788 collateral, defined and explained 789 not extinguishable 820 coupled with an interest 817 creation of 793-796 defective execution, aided by equity 807 definitions of terms employed in law of 788 896 INDEX. [Beferences are to pages,] Powers — continued. delegation of 7^ execution of 797-812 by administrators c. t. a. 799 n. by instrument not referring to power 814 consent of others than donee, when required 810 defective, aided by equity 807 excessive 805 formalities required 802 illusory appointments 811 improper 805-808 instrument to be used in 802, 807 non-execution, when aided by equity 808 of trust powers, by equity 810 relates back to origin of power 812, 857 executors having, whether trusts exist 794 executory estates made by .' 778 extinguishment, and suspension 819-823 by execution, or cessation of object 819 by merger 823 collateral powers not subject to 820 of powers in gross 821 powers appendant freely extinguish able 821 formalities of execution 802 fraud on, constructive trusts 567, 811 general and special, beneficial and in trust 791 illusory appointments 811 in gross 789, 821 in trust 88, 465-467, 791 distinguished from trusts 465 execution of 466 by equity 810 New York system 493-503 infant executing 798 married women executing 798 merger of 823 non-execution, corrected by equity 808 relation back of execution of 812 revocation of, and of appointments 817-819 special 791 Statute of Uses, affecting 789 survival of, on death of some donees 799 suspension, of alienability .caused or obviated by 856 of powers appendant 822 Praecipe, early writ, seised to 381, 714 Precarium 343 Precatory Trusts (see Trusts, precatory) .... 83, 433, 450-457 Prerogative, title by 100 Prescription 192 acquisition of easements by (see Easements) . . . 157, 192-212 INDEX. 897 [Baferencea are to pages.] Prj:3CRIPTion — continued. against temporary owner 207 air acquired by 277 disability of landowner prevents running of 208 distinguished from custom and adverse possession .... 192, 219 distinguished from dedication 225 n. extinguishment of easements and servitudes by 260 history and development of 193 in a que estate, or in one and his ancestors 220 n. lateral support acquired by 281 light acquired by, ancient lights 275 public, servitudes arising from 216-218 rests on presumption of legal origin 209-212, 216 reversions, how affected by 723 title by 100 Present estates 94, 712 Presumption of legal origin of prescription 209, 212-216 Price (see Consideration). Primer seisin, incident to knight-service 352 Primogeniture, rights incident to 371, 721 Principal and ^gent, notice to agent affecting principal . . . 573 Private grant, or deed 105 roads, laying out of 237, 238 trusts 428 Profit A prendre, a form of servitude 76, 154, 307-319 appurtenant, or in gross 308 creation of 309 distinguished from easement 151 kinds, as commons (see Common) 308-310 mining right as 310-319 transfer of 243 Proof, burden of (see Burden of Proof) 546-558 Property, defined and explained 2-10 distinctions between real and personal 8 divisions of, goods and chattels, lands, tenements, and heredita- ments 6 movable and immovable 4 real and personal 7 kinds that are sometimes real and sometimes personal ... 10 mixed, explained 10 other than fixtures, that is, sometimes real and sometimes per- sonal 49-71 Prospect, or view, easements in ' 277 Public, grant, or deed 105 policy, affecting fixtures 19 prescription, servitudes arising from 216-218 roads and highways, laying out of . ' ., 236 trusts (see Trusts, charitable) 83, 473-492 Purchase, and sale of realty, constructive trusts 570 by guardian, of ward's property 654 57 898 INDEX. [References are to pagefl.] Purchase — continued. by attorney, of client's property 554 innocent, for value, without notice 572-579 money, seeing to application of 579 of trust property, by trustee 548 title by 98-107 Purchasers, fraud on, constructive trusts 560 innocent, for value, rights of 521, 572-579 seeing to application of purchase-money 579 Q. Qualified estates (see Estates, qualified) 92, 585-605 Quia EMPTORES, statute of, effects on rent . . . 122, 123 n., 134 n., 135 Quit-claim, deed of 104, 526 R. Railroads, elevated, injunction against 264 n. franchise for 144 on streets, easements and servitudes connected with . . 230-233 Real Property (see Property, Lands, Tenements, Heredita- ments, Fixtures). estates in 399-869 summarized 79-98 holdings of 77-79, 333-396 kinds of 73-75, 111-330 liens on 107, 108 tabulated outline of 109-111 titles to 98-109 Receiver, clause providing' for, in mortgage 659 Record, alienation by matter of, title by 107 of assignment of mortgage, effects 640, 671 of contract for purchase and sale of realty 619 of defeasance of mortgage 625 n. of mortgages, effects on priorities 669-671 Recovery, common to uses 103 Redemption, equity of, in mortgage 609, 650-655 of mortgaged realty, after foreclosure 711 Re-entry for non-payment of proceeds of rent 126 Registry (see Record). Relation, doctrine of, in law of powers 812 Release, deed of 102 of contingent remainders 766 of easements and servitudes 252 of executory devises 830 of mortgages 676 of powers 821 Relief, incident to knight-service 351 INDEX. 899 [Beferences are to pages.] Remainders 94-96, 600, 716, 726-775 acceleration of 772 after estates on limitation 600 alternate 96, 749 civil law interests similar to 773 compared with executory estates 827 contingent 96, 730, 744-768 acceleration does not apply to 772 alternate remainders are 749 causing inalienability or remoteness 853 contingency of prior estates afEecting subsequent ones . . 771 creation of 769 cross-remainders are 96, 747 distinguished from conditional limitations 746 distinguished from executory estates 728, 729 Fearne's first class of 746, 747 Fearne's second class of 748, 749 Fearne's third class of 750, 751 Fearne's fourth class of 751, 752 fee with doable or multiple aspect is 749 from directions to trustees to divide property in future . . 742 incidents, dower, liability for debts, etc 768 release of 766 rule in Shelley's Case affecting (see Rule in Shelley's Case) 753-759 rules governing 759-768 first, event must be legal 760 second, contingency not too remote 760 third, event not to curtail preceding estate .... 761 fourth, freehold particular estate for freehold contingent remainder 761 fifth, must vest at or before end of particular estate . 762 sixth, defeated by destruction of particular estate 764, 765 seoenth, descendibility, devisability, alienability . . . 766 trustees to support 765 fee with double or multiple aspect 749 requisites of all remainders 727 seisin of 380 n. successive, contingency of one affecting others, acceleration 770-772 tenure and fealty not incident to 729 to " heirs," when contingent 752 uses employed to create 769 vested 95, 730, 737-743 acceleration of 772 in child in ventre sa mere 763 incidents, dower, curtesy, etc 742 indefeasibly vested 740 made by adverbs of time 738 made by words of survivorship 738 particular estates that may precede 742 900 INDEX. [References are to pages.] Kemainders — continued. vested preferred, in doubtful cases 737-739 vested subject to be divested, partly or wholly . . . 740, 741 Remoteness, contingent remainders affected by 76tl of gifts over, on failure of issue or heirs 834 of vesting of estates (see Pekpetuities). Kent 75, 117-141 black, or blackmail 121 chief 121 distinguished from annuity 119 fee-farm 135 granted or reserved 134 ■ in an incorporeal hereditament 75 n. non-tenorial 136 n. of assize 121 of New York Manor lands 389 n.-394 n. paid by socage tenants 360 proper and improper 134 quit-rent 121 rack-rent 121 rent-charge 120, 133-141 discharge, suspension, appointment of 139-141 distinguished from rent-seek 133 of New York Manor lands 389 n.-394 n. remedies for enforcing 137 reservation of 136 rent-seek 121, 133-141 discharge, suspension, apportionment of 139-141 distinguished from rent-charge 133 of New York Manor lands 389n.-394n. remedies for enforcing 137 reservation of 138 rent-service 121-133 apportionment of 130-132 assignment or transfer of 128 demand for payment of proceeds 126 discharge, suspension, apportionment of 129-133 distress and other remedies for enforcing 123-126 effects on, of destruction of or injury to buildings . . . 133 estoppel of tenant to deny landlord's title 123 extinguishment, or merger, of 130 fealty, as its feudal incident 123 incident to reversion 121, 128, 134 of New York Manor lands 389 U.-394 n. origin of the name 118 re-entry for non-payment 126 reservation of 127 white rent 121 Repairs, by different owners of portions of a building 285 by mortgagee in possession 643 INDEX. 901 [Beferences are to pages.] Repairs — • continued. of easements and servitudes 248 of party-walls 293 Res mancipi 4, 405 Res NEC MANCIPI 4 Reservation, distinguished from exception 164-166 easements created by .... '. • . . . 164—192 of buildings, on sale of land 53 of easement in light or air 274 of growing crops, on sale of land 62 of rent 127, 134, 138 Residuary devise 107, 523 Restraint, of marriage 600 on alienation (see Alienation) 377, 838-869 allowed in trusts for married women 472 n. Restriction, on alienation of realty (see Alienation) . 377, 838-869 on land by oral agreements, equitable easements 188 on uses of land, equitable easements arising from .... 184-186 Rests, annual (see Annual rests, Mortgages) 644 Resulting trusts (see Trusts, resulting) 84, 433, 505-528 Reversions 94, 95, 600, 717-725 after estates on limitation 600 attornment connected with, abolished 722 curtesy and dower in 719 descent-cast affecting 723 descent of 720 fealty connected with 722 merger of, and particular estate 722 prescription and adverse possession do not affect 723 rent-service incident to 121, 122, 128 rights and duties incident to 719 seisin of 380 n. , 718 usually vested estates 718 waste affecting 720 Reverter, possibility of 596, 597, 601, 724 Revival of easements and servitudes 265 Revocation, of express trusts . 448 of licenses 323-330 of powers, and appointments 817-819 Right, adverse claim of, to give prescriptive easement 202 of action (see Chose in action) 51 of entry 596 of support (see Support) 278-287 of way, incidents (see Easements) 271, 272 riparian (see Water, Streams). Riparian rights (see Water, Streams). Rivers (see Streams). Roads, franchises for y. . . 144 private, laying out 237 public, by operation of law 235 902 INDEX. [References are to pages.] Rolling stock of railroads, when realty and when personalty . 56 KuLE, against accumulations (see Accumulations) .... 864-869 against perpetuities (see Perpetuities) 838-864 in Archer's Case 756 in Shelley's Case 753-759 abolished in some states 758, 759 development and meaning 753, 754 formal statement of 754 intermediate estates, effects of 757 requisites to its operation 755 stringency of the rule 757 S. Sale, conditional, distinguished from mortgage 612 of growing crops 62 of land in parcels, on foreclosure 699 of manure, on land where made 67 of realty, constructive trusts arising from 570 of trees or grass 64 on foreclosure 710 power of, in mortgage 655 Saleman 406 Satisfaction, of mortgages, how enforced 689-712 Satisfaction piece, of mortgage 677 Scintilla juris, doctrine of 784 reasoning that gave rise to 422 ScuTAGE, tenure by 349, 356 Seal, how far it implies consideration 447 Secondary easements 248 Seeing to application of purchase money 579 Seisin 78, 378-385 abeyance of 381 disseisin 382 distinguished from possession 380 importance of, as a legal conception 714 in fact and in law 379 livery of 344, 383, 714 of equitable estates 380 n. of incorporeal hereditaments 380 of reversions and remainders 380 n., 718 only one at a time 381 presumed in favor of rightful possession 382 to support contingent and shifting uses, .sciniiWayitm .... 784 Separation of parts of gift, to prevent perpetuity 861 Sergeanty, or sf.rjeanty, tenure by 79, 358, 361 grand and petit, distinguished 358 Services, incident to feudal tenure 347-385 Servient tenement, in law of easements 150, 152 INDEX. 903 [References are to pages.] Servitudes (see also Easements) 76, 150-306 action for determining right to, in New York 268 n. affirmative and negative 154 alteration of 249 apparent and non-apparent 155 arising from grant 214-216 as distinguished from common-law easements 213-240 by custom, illustrated 157 continuous aud discontinuous 155 created by operation of law 157, 227-239 creation of servitudes that are not common-law easements, six methods 214 customary 219, 220 dedication of 221-227 determination, destruction, suspension 251-269 easements in gross, as 215 extinguishment of 251-267 by adverse obstruction or prescription 260 by destruction of that on which the right depends . . . 262 by disclaimer or abandonment 254-258 by excessive claim or user 266 by license 253 by non-user 258-260 by release 252 by union of the two estates 263 highway rights, as 218, 233-238 important kinds, summarized 271 fence rights 294 highway rights 272 lateral and subjacent support {see Support) .... 278-285 party-wall rights (see Party-walls) 285-295 vrater rights (see Water) 295-306 incidents of, transfer, use, repairs, etc 241-251 legal, or created by operation of law, illustrated . . 157, 227-239 natural, existing by nature 157, 239, 247 natural support, as 277-285 prescriptive 216-218 railroads, buildings, etc., on streets 230 remedies for obstructions to 267 repairs of 248 revival of, after suspension 265 roads, laying out of 233-238 streams, drains, etc 239 street rights, as 227-239 suspension of 263 use and enjoyment of 244-248 Severalty, estates in explained 89 Shelley's Case, rule in (see Rule, in Shelley's Case) .... 753-759 Shifting uses 97, 781-785 causing inalienability or remoteness 855 904 INDEX. [References are to pages.] Shifting uses — • continued. couditioDal limitatious made hj . . , , , 601 in terms of years 782 seisin to support, scintilla juris 784 Silver, rights in mines of 313 Socage, tenure (see Tenfre) 78, 360-365 free and common 78, 360 villein 78, 368 Soil, support of 278, 283 SoKEMEN 365, 369 Specific performance, suit for 571 Spendthrift trusts 469-471 Spite fence 276 Springing uses 97, 780-783 causing inalienability or remoteness 855 State, can not give up control of navigable -waters 297 can not give up control of public utilities 147 rights of, in alodial holdings 391 Statute, de donis conditionalibus 86, 377, 838 of Charitable Uses 474 of Descent 99 of Distributions 9 of Enrolment 104 of Frauds 53, 62, 106, 323, 373, 435, 558, 720 effect OB transfer of growing trees 62-64 efiect on reservation of buildings 53 licenses affected by 323-330 not allowed to work a fraud 558 uses and trusts affected by (see Trusts) . . . 416 n., 435-437 of Limitations, affecting mortgages 626, 687 prescriptive period by analogy to 194 of Marleberge 720 of Mortmain 403, 407, 839 of Quia Emptores (see Qui Emptores) . . . 122, 123 n., 134 n., 135 effects on alienation of realty inter vivos 376, 377 in America 394 is in force in New York 389 n. of Twelve Charles II 7, 357, 361 of Uses 82, 105, 373, 416^24 effects of, on wills 9.8 n. employed to make new forms of conveyances 103 of Wills 98, 106, 373, 778, 825 Prerogativa Regis 376 Thellusson Act 864 Stock of a corporation or association, personalty 51 Stoop, support of 283 n. Streams (see also Easements, Servitudes) as public highways 239 diminution of water of 299, 300 natural, use, etc., of water of 298 INDEX. 905 [Boferences are to pages.] Streams (see also Easements, Servitudes) — continued. navigability of 58, 297 pollution of 298 servitudes associated -with 296 Streets (see also Servitudes) 235, 272, 279 creation of by operation of law 235 lateral support by 279 ownership of, and easements and servitudes in 272 Structures (see Buildings). SUBINFKUDATION 374, 375 Subrogation, to mortgage security 663 Substitution, Civil and French law of 773 Sufferance, estates at 89 Summary proceedings, for non-payment of rent 126 Summons, in foreclosure suit, its service 704 Superstitious uses 477, 484 Support, easement of 278-287 by walls 287 lateral 278-283 subjacent 283-285 Surface water, rights in 301 Surplus proceedings, after mortgage foreclosure 710 Surrender, deed of 102 of franchise 147 Survivorship, of estates by entirety 91 of estates in coparcenary 90 of estates in common 90 of joint estates 90 words of, making remainders vested 738 Suspension, of easements or servitudes 251-269 of rent-charge or rent-seek 140 of rent-service 130 of power of alienation or vesting (see Perpetuities, Accumu- lations) 838-869 of powers 822 of ways of necessity : 180 T. Table of real-property law 109-111 Tacking of mortgages 671 Tail, estate tail, or fee tail 377 Tax, and assessment clause in mortgage 657 Telegraph, wires and poles in streets 233 Telephone, wires and poles in streets 233 Temporary owner, prescription against 207 Tenancy, by entirety 91 in coparcenary 90 in common 90 in severalty . 89 joint 90 906 INDEX. [Belerences are to pages.] Tenant, at will, right to fixtures 47 for years (see Landlord and Tenant). from year to year, month to month, etc. right to fixtures 47 in capite 342 in common, by entirety, etc., right to fixtures 30 in tail, right to fixtures 46 paravail 342 under feudal system (see Feudal system) 5 Tender of mortgage debt (see Mortgage, tender) 682 Tenement 74, ll.S, 114 dominant and servient 150, 152 lands, tenements, and hereditaments 6 Tenementum (see Tenement). Tenure (see Feudal system) 5, 77-79, 333-396 by divine service 359 burgage 361 copyhold 366, 367 frankalmoin 358 free and unfree 347 grand serjeanty 358 gavelkind 362 growth of in England .'.... 339-341 in the United States 386-396 knight-service, and its incidents 348-357 petit (or petty) serjeanty 361 socage 860-365 free and common, incidents 360 villein, incidents 364 villeinage, pure 365 unfree, villeinage 363-366 Termination (see Extinguishment). Thellusson Act 864 Time of receipt of notice, to be effectual 578 Title 98-109 by abandonment 100 by adverse possession 98, 101 by alienation 101-107 by descent 99 by devise 105-107 by escheat 99 by estoppel 100 by forfeiture 100 by matter of record 107 by occupancy 100 by prerogative 100 by prescription 100, 192-212 by purchase 98-107 by special custom 107 how acquired 99-107 INDEX. 907 [References are to pages.] Title — continued. liens and encumbrances on 108 registration of, Torrens system 108, 109 Title deeds, pass with the land 70 Torrens system of registration of titles and liens .... 108, 109 Tortious convkyance 384, 385 Transfer (see also Alienation, Assignment, Title). of easements and servitudes 241 of express trusts 435, 440 of licenses 321 of mortgages, and debts secured (see Mortgages) 635 of right of entry for breach of condition 595 of power of sale in a mortgage 697 of trust interests, in New York 496 Transmutation of possession 103 conveyances operating by 103 conveyances operating without lQ4,_10g^ Trees, nursery, are fructus industriales 60, 65 roots or branches in another's land 199 when realty and when personalty 63-65 Trespass, action for injury to easements or servitudes 267 quare clausum /regit 73 Trinoda necbssitas 335, 359 Trust deeds, as forms of mortgage security 636 Trustee, and cestui que trust, constructive trusts from 546 can not sell for nominal consideration 577 n. Trustees to support contingent remainders 765 Trusts 81-85, 427-582 active, and passive , 83, 425, 428, 460 becoming passive 461 not executed by Statute of Uses 421 arising from deeds in payment of debts 620 charitable 83,473-492 beneficiaries indefinite 483-491 absolutely so in New York 502 degree of uncertainty 484-486 criterion of charitable purpose 480 cy pres, doctrine 486-491 judicial, in this country 486-490, 502 prerogative, in England 489 educational purposes of 479 eleemosynary purposes of 479 governmental, to relieve public burdens 480 for public utility, generally 477 how much a testator may give for 482 New York system of 498-503 not apt to cause resulting trusts 524 perpetuities caused by 491 religious purposes of 477 resulting trusts rarely arise from 491 908 INDEX. [Beferences are to pages.] Trusts — continued. constructive 84, 433, 529-582 arising from accident or mistake 586 arising from actual fraud 531-537 transfer obtained by fraud 531-535 transfer prevented by fraud 535 remedies 531 arising from crime 536 arising from fraud under New York statutes .... 514 n. arising from presumed fraud , 537-569 from nature of transaction 537-542 inadequacy of purchase price 537 sale of expectant estate 539 from relation of parties, confidential 542-559 attorney and client 553, 554 guardian and ward 5-54 parent and child 556 parties mentally weak, drunk, or unduly influenced 543 parties more remotely associated 557 promoters, directors, etc., of corporations . . . 5.57 trustee and cestui que trust 546-552 trustee's purchase of trust property .... 548 trustee's renewal of lease in his own name . 551 I from presumption or proof of fraud affecting third parties 560-569 fraud on creditors 562 fraud on marital rights 566 fraud on powers 567 fraud on purchasers 560 arising in absence of fraud 569-582 contract to purchase and sell realty 570 equitable mortgages and liens 581 legal estate taken without value and without notice . 572-578 notice explained 573-576 time of notice and payment 578, 579 valuable consideration 576-578 seeing to application of purchase money 579 gifts from fraudulent taker 559 prevention of actual fraud by 516 purchase under promise to convey 558 remedies . . ~ 559 curtesy in 425 development, through Statute of Uses and Tyrrel's Case . . 420-426 distinguished from mortgages and other liens 412 distinguished from powers in trust 465 distinguished from uses, early 410 division of, to prevent a perpetuity 861 dower in 426 executed and executory 429 executors with power of sale, when trustees 794 INDEX. 909 [Beferences are to pages.]'. Trusts — continued. express 83, 434-503 active and passive 83, 433, 459 active becoming passive 461 and implied, distinguished 432 charitable (see Trusts, charitable) 88, 473-492 created by directed words of trust 442-450 created by precatory words 83, 450-457 created by settler making himself trustee 444 created on transfer of legal estate 443 creation of, at common law 435 creation of, under Statute of Frauds 435-442 executory agreement to settle property in trust .... 445-447 for valuable consideration 445 without valuable consideration 446 in favor of wife or child 447 for creditors 468 for married women, separate use 471-473 New York system of 493-503 precatory (see Trusts, precatory) 83, 450-457 pu^'poses for which they may exist 468 specific kinds 468-492 spendthrift 469-471 Statute of Frauds affecting 435-442 subject-matter of, what may be 459 to pay legacies, etc., or to disburse income 469 revocation of 448 transfer of 435, 440 following trust funds 517-521 for married women, separate use 471-473 implied 83, 84, 504-582 constructive (see Trusts, constructive) . . .84, 433, 529-582 resulting (see Trusts, resulting) 84, 433, 505-528 legal and illegal 427 not to fail for want of trustee 458 passive express, or use, when executed 460 powers in trust (see Powers, in trust) 465-467 precatory 88, 450-457 as branch of express trusts 433 certainty of beneficiaries required 454 certainty of subject-matter required 456 intent of settler, chief test 451 subsidiary tests for determining 458 private and public 88, 428 purchase of trust property, constructive trust from 548 renewal of lease, constructive trust from 551 resulting 84, 433, 505-528 charitable gifts rarely cause 491, 524 execution of 527 following trust funds 517-521 910 INDEX. [References are to pages.] Trusts — continued. from conveyance expressing no consideration nor use . 525-528 from failure of declaration or object 521-525 charitable gifts rarely cause 524 effects of residuary clauses in wills 523 Vioe-Chancellor Wood's rules 525 from payment of purchase money 506-516 advancement to child, or gift to wife 511 clear proof of required 510 rebuttal of the presumptions 512 statutory abolition of this class 513 not often from precatory words 455 secret, abolished by statutes 513-516 spendthrift 469-471 in New York 496 superstitious uses 477, 484 suspension of alienability or vesting caused by 850 trust fund, how far reached by creditors of cestui que trust 470, 471 Turbary, common of 309 Turnpike road, franchise for 144 u. Undue inpluence, constructive trusts arising from 543 Unities, of estates by entirety 91 of estates in common 90 of estates in coparcenary 90 of joint estates 90 Use, and enjoyment of easements and servitudes 244-248 of party-walls 292 of water 298-302 of ways of necessity 182-184 User, to create prescriptive easements 195-212 Uses 81, 82, 403-426 as passive express trusts 460 cestui que use, who may be 414 characteristics before Statute of Uses 415 contingent {see Continqent, uses) 96, 769, 770, 784 curtesy in ' 425 development of, into equitable estates 408 distinguished from mortgages and liens 412 distinguished from trusts, early 410 dower in 426 equitable estates, meaning of as such 410 escheat of, forfeiture of 425 execution by Statute of Uses 419 executory estates made by 777 feoffee to uses, who could be 414 growth of, in common law 406 prototypes of 403 INDEX. 911 [References are to pages.] Uses — continued. remainders in 7Q9 requisites of 4J^3 restored, as trusts, after Statute of Uses 422-424 shifting (see Shifting uses) 97, 781-785 springing (see Springing uses) 97, 780-783 Statute of (see Statute of Uses) .... 82, 105, 373, 416-424 subject-matter of, what may be 414 use upon a use, not executed, Tyrrel's Case 422-424 Usus-FBUCTUs in Civil law 404 V. Valuable consideration {see Consideration). "Vassal 5^ 342 duration of his holding .• 370 Vendee's lien (see Mortgages, equitable) 619 Vendor and vendee, rights to fixtures 2«, 31-36 Vendor's lien (see Mortgages, equitable) 616-619 Vested, different senses in which word is used 730 estates, generally ■ . . 96, 730 remainders (see Remainders, vested) 95, 737-743 View, or prospect, easements in 277 Villein, kinds of villein tenants 365 socage 78, 364 Villeinage, tenure in (see Tenure) 79, 363-366 ViVIUM VADIUM 607 Voluntary, conveyance (see Conveyance) 460, 462 promise to settle property in trust 446 W. Waiver of breach of condition 594 Walls, common, easements in 286, 291 n. easements and servitudes in (see Party-wall ,) 285-295 independent, easements in 286 party-walls (see Party-walls) 285-295 right of support by 287 support of 278-285 Wardship, incident to knight-service 352 Warranty, deed 104 feudal origin of 846 in assignment of mortgage 639 Waste, recovery for, by reversioner 720 Water, artificial rights in, easements 305 easements and servitudes in 295-306 grant of, and islands, effects 297 n. irrigation, use of water for 300 kinds of rights in 295 912 INDEX. [Beferences are to pages.] Water — continued. natural streams of 296-30U diminution of 299, 300 ownership and use of 298 pollution of 298 percolating 302-305 carrying away and selling 304 pollution of 305 right to, not a profit a prendre 308 rights, alteration of 250 riparian rights 296 streams as highways 239 surface, rights associated with 301 use of 298-302 when realty and when personalty 57-59 Ways, by dedication 221-227 highways 272 of necessity 176-184 location and cliange of 181 prolongation of 183 suspension of 180 to what extent to be used 182-194, 246 termination of 180 through buildings 183, 262 private 271 through buildings 183, 262 to lower strata, through upper 284 use and enjoyment of 245-247 Welsh mortgage 607 Wharf, right to construct 296 Wife, voluntary executory trust for 447 WiLi,, estates at 89 Wills, alienation of realty by, history 105, 371-374 charges by, causing equitable mortgages 622 charges by, causing resulting trusts 525 contingent remainders devised by 766 creation of precatory trusts by 450 cy pres construction of 487 execution of, to pass realty 106 executory devises in 824-837 executory estates made by 778, 824-837 express trusts manifested and proved by 439 gifts by, from client to attorney 553 gifts by, from cestui que trust to trustee 547 gifts by, from ward to guardian 556 induced by fraud 532 of realty, English statutes 373, 374 of uses 416 prevented by fraud 635 residuary devises and legacies in 523 INDEX. 913 [References are to pages.] Wills — continued. Statute of Uses, its effects on 419, 420 n. Statute of Wills 98, 106, 373, 778, 825 Writ, " Little writ of right close " 365 prseftipe, seisin to the 381 Writing, to manifest and prove express trusts 438 Year to year, estates from Years, estates for (see Landlord and tenant) KF 570 R33 T7 c.l Autho Vol. Reeves , Alfred fl|ndy Title Copy A Treatise on special subjects uP tjLit! law uf real prupurlj/, Borrower's Name