((nrn^ll Slato ^rijnnl Hihtartj Cornell University Library KF 670.D37 V.I A treatise on land titles in the United 3 1924 018 780 324 lMMiW% 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/cu31924018780324 A TREATISE ON LAND TITLES TN THE UNITED STATES By LEWIS N. DEMBITZ OF THE LOUISVILLE BAR Author of a Treatise on Kentucky Jurisprudence VOL. 1 St. Paul, Minn. WEST PUBLISHING CO. 1895 COPYKIGHT, 1895, BY WEST PUBLISHING COMPANY. TO MY WIFE, Whose help, counsel, and encouragement have enabled me to bear up under long and wearisome labor, this work is AFFECTIONATELY DEDICATED BY THE AUTHOR. (iii) PREFACE. The following two volumes on Land Titles in the United State are laid by the author before his brethren of the legal professioi with a painful knowledge of their shortcomings. The American law of real estate is, in all its practical workings the creature of statute : — little else but names and underlying idea is "common law," and not much more is traditional equity. Th American statutes have, indeed, a great family resemblance. Bu the lawyer, in opening a text-book, does not look for the broad oul lines. Tliey are common to the ^ hole country. He looks for thos details that will fit the case which he has then in hand, and th state in which that case is to be tried. The law writer must then fore seek to make himself fully acquainted with the statutes of eac state, in all their details; in the points, great and small, in whic they diverge from each other; and with the decisions in each stat which bear upon and interpret these statutes. Among the fort^ odd states, several must, of necessity, agree on almost every ques tion, as it cannot be answered either by their legislatures or by thei courts in as many different ways as there are states ; and, f ortunatt ly, there has been much borrowing among law makers and law cor struers. Yet the variety between state and state seems intermint ble, and is much aggravated by frequent changes, — statutes amenc ed and repealed, decisions overruled or ignored. The work of ai rangement is overwhelming. The writer is fully conscious that he has missed many of th modern statutes which were enacted since the last revisions in thei respective states. Even Kent, in the fourth volume of his Commei taries, in which he treated the lavr of Eeal Estate when the numbe of states was so much smaller than it is now, and when changes i general laws were much rarer, o^■erlooked legislative acts of prett long standing. Why should his humble follower, dealing with twic as many states and territories, and with the infinitude of new ej periments in legislation, fare any better? In fact, no attempt ha been made to embody in his work the substance of the acts passed b the state legislatures during the winter or spring of 1895, for th V.l LAND TITLES. (V) VI PREFACE. simple reason that towards the end of June, when the manuscript of this M'ork went into the hands of the publishers, hardly any of the "sessions acts" were accessible. Indeed, those for the state of New York had not been published in pamphlet or other book form at the end of August. A leading article based on the address delivered by Mr. Carter be- fore the American Bar Association in August, 1895, says : "Recently the law [of New York] affecting dower was changed in a revolution- ary manner, without the knowledge of the profession; and within a few weeks the legislature was compelled to repeal the act, in re- sponse to the chorus of complaints that arose from the bar. Last year an alteration was made in the law relating to the legitimacy of offspring. It was accomplished in what may be fairly called a surreptitious manner. We venture to say that the people of the state are to-day ignorant that the alteration has been effected." Similar changes, affecting the title to land, are continually made, in one state or another, not in response to a public demand coming either from the people, or from bench and bar, but brought about simply by the whims of a few members, or even of a single member, in the legislative body. It is pretty hard, if not impossible, for even a careful and painstaking man to keep up M'ith all these changes, and to bring a text-book "up to date." But the mass of judge-made law, in its yearly growth, is even more appalling than that of new statutes. The old decisions are never re- pealed. They are as often ignored as they are expressly overruled, and, even after a decision of the supreme court in any one state has been expressly overruled and thrown aside by the tribunal which first pronounced it, that same decision may be blindly followed by the courts of other states. The raw material of precedents not only grows, but it grows at an ever-accelerated pace. Michigan takes only the ninth rank among the states, in point of population, but it publishes in each year six volumes of law reports, which, indeed, are among the very best. During the two months during which these volumes passed through the hands of the printer, two volumes of the United States Reports (1.57 and IGS) were published, and though the supreme court deals mainly with constitutional ques tions, and with patent, revenue, and admiralty law, these two vol- umes contained no less than eleven cases which could be profitably PREFACE. Vll quoted iu a text-book on American Land Titles, namely: Last- Ohance Min. Co. v. Tyler Min. Co., 157 U. S. 683, 15 Sup. Ct. 733 (min- eral lands); Frost v. Wenie, 157 U. S. 40, 15 Sup. Ct. 532 (public lands); Orchard v. Alexander, 157 U. S. 3T2, 15 Sup. Ct. 635 (same); Bardon v. Land & Eiver Imp. Co., 157 U. S. 327, 15 Sup. Ct. 650 (tax sale); De Sollar v. Hanscombe, 158 U. S. 21G, 15 Sup. Ct. 816 (tax deed, cancellation in equity); Teall v. Schroder, 158 U. S. 172, 15 Sup. Ct. 768 (laches in claim for land, letter of attornej'); Abraham v. Ordway, 158 U. S. 416, 15 Sup. Ct. 894 (laches); Harter v. Twohig, 158 U. S. 448, 15 Sup. Ct. 883 (same); Whitney v. Taylor, 158 U. S. So, 15 Sup. Ct. 796 (public lands); Catholic Bishop of Nesqually v. Gibbon, 158 U. S. 155, 15 Sup. Ct. 779 (same); Rich v. Braxton, 158 U. S. 375, 15 Sup. Ct. 1006 (tax sale); besides the great income tax case of Pollock v. Farmers' Loan & Trust Co., 158 U. S. 601, 15 Sup. Ct. 912, with its incidental remarks on the identity of the "rents and profits of the land" with the land itself, of which the author has availed himself. While the author craves forgiveness for having, of necessity, re- jected much of the material in statutes and authorities; for having, in fact, during the three years consumed in the preparation of the work, not found time to find and to read, let alone to sift and to digest, the greater part of this material, — yet he must also ask par- don for a literary blemish in the opposite direction : that of repeat- ing many statements, both in text and notes. Some of these repeti- tions are unavoidable, as the propositions of law stated can and must be attacked from several sides. Others can only be excused on the ground that the author was worn out by the constant and intense labor of three years, and could not subject his work to that patient course of revision by which alone this fault of repetition, along with other literary blemishes, could have been removed. But, at worst, no more than twenty pages have been added to the bulk of these two volumes by all the repetitions, avoidable and unavoidable. With the exception of a local law book (Kentucky Jurisprudence, 1891), this is the first appearance of the author before the legal pro- fession; and considering that in years, at least, if not in spirit, he is far from young, it may not improbably be his last. Lewis N. Dembitz. LouiSTille, September 9, 1895. TABLE OF CONTENTS VOLS. I. AND II. YOL. I. CHAPTER I. IXrRODUCTION. i 1. Scope of the Work. 2. Development of Euglisb Land I,aw in America. 3. Other than English Sources of Law. CHAPTER II. DKSCRIPTION AND BOUNDARY. I 4. Description in General. 5. Conflict in the Description. 6. Certainty in Description. 7. Ambiguity. 8. Agreed Boundaries. 9. Incidents and Appurtenances. 10. Littoral and Riparian Owners. 11. Fee In the Highway. 12. Oyster Beds. 13. Boundaries of Mines. 14. State Boundaries. CHAPTER in. ESTATES. 15. Estate in Fee. 16. Estate for Life. 17. Estate for Years. 18. Estate Tail. 10. Remainders and Reversions. 20. Uses and Trusts. V.l L.VND TITLES. (it) X TABLE OF CONTENTS. g 21. Tlie Rule in Shelley's Case. 22. Future Estates, Other Than at ('i)minon Law. 2.".. Estates on Condition. 24. Perpetuities. 2.">. Meaning of Words and Phrases. 2(i. Dying Without Issue. 27. Joint Ownership of Land. CHAPTEB IV. TITLE BY DESCENT, 28. Nature and Objects of Descent. 2!i, The Common and the Civil Law. 30. Course of American Legislation. 31. Comnjon Features and Divergences. 32. The Wife and Husband as Heirs. 33. Descendants. 34. Advancements. 35. Parents and their Descendants. 36. Ancestral Lands. 37. Half and Whole Blood. 38. Remote Kindred. 39. Bastards. 40. Effect of Marriage. 41. Adoption. 42. Legitimate Birth. 43. Aliens. 44. Presumption of Death. 45. Escheat. CHAPTER V. TITLE BY GRANT. 46. The Deed. 47. Parts and Parties. 48. The Seal— Herein of Blanks. 49. Signature or Subscription. 50. Other Requisites. 51. Delivery. r,o Escrows. '>3. Deeds by Married Women. .-.4. The Privy Examination. 5.J. Deeds by Corporations. 5G. Letters of Attorney. TABLK OH C0KTKNT8. XI 57. Deeds by Attorneys and Public Officers. 58. Deeds of Infants and the Insane. 59. After-Acquired and Future Interests. CO. Champerty. 61. Executory Contracts. 62. Contracts for Land, and the Statute of Frauds. 63. Part Performance. ij4. Curative Acts. CHAPTER VI. TITLE OUT OF THE SOYEKEIGN. § O.J. The Indian Title. 66. Colonial and State Patents. 07. United States Grants. OS. Inchoate Rights under the United States. 69. Railroad Land Grants. 70. llineral Lands. 71. Grants to the States. 72. Spanish and Mexican Grants. 73. Texas Titles. 74. "Office Found." CHAPTER Vn. TITLE BY DEVISE, 75. The Devise— Capacity to Make and to Take. 76. Requisites of a Will. 77. Signature or Subscription. 78. Attestation. 79. Competency of Witnesses. 80. Holographic Wills. 81. Nuncupative Wills. 82. Revocation. 83. Alteration of Will. 84. Implied Revocation. 85. Pretermitted Children. 86. Alteration of Estate. 87. Eflfect of Probate. 88. Lapse and Failure of Devises. 89. Construction of Wills. 90. When the Will Speaks— The Residuary. 91. Debts and Legacies. Note on the Admission of Extrinsic Evidence In the Interpretation of Wills. :XH TABLE OK CONTENTS. CHAPTER Vni. INCUMBRANCES. NOTE. When incumbrances are created by deed, the principles, rules, and distinctions set forth in the chapter on "Title by Grant," as to the execution, form, and delivery of deeds, and the capacity of the grantor, apply in nearly all cases, as much as to deeds made in the way of sale and conveyance. In- deed, many of the illustrations given in that chapter weic taken from mort- gages. S 92. The Mortgage. 93. Equitable Mortgages. 94. Power of Sale. 9.5. Future Advances. 9G. Absolute Deed as Mortgaue. 97. The Vendor's Lien. 98. Liens Akin to the Vendor's Lien. 99. Rights of Assignees. 100. Extinction or Subrogation. 101. Enforcement of Mortgages. 102. Sundry Statutory Liens. 103. Apportionment. TABLE OF COKTKK'iS. Xljl YOL. II. CHAPTER IX. TITLE BY MARRIAGE. 104. Marital Rights at Common Law. 105. Separate Estate in Equity. 106. Statutory Separate Property. 107. Dower at Common Law. 108. Modification of Dower. 109. Curtesy. 110. Quarantine and Widow's Award. 111. Community. 112. Dissolution of the Community. 113. Conveyance of the Homestead. 114. Devolution of the Homestead. 115. Homestead and Dower. CHAPTER X. POWERS. 110. Creation and Nature. 117. Validity. 118. Construction of Powers. 119. Execution— By Whom. 120. Time of Execution. 121. Manner of Execution. 122. Intent to Execute. 123. Substance of Execution. 124. Aid in Equity. 125. Apijlication of Purchase Money. CHAPTER XI. THE REGISTRY LAWS. 126. The Recording Office. 127. What Instruments are Recorded. 128. Place of Recording. XIV TABLE OF CONTENTS. g 129. Time of Recording. 130. Mortgages, Assignments, and Ueleases. 131. Powers of Attorney. iri2. Wlio is a Pui'chaser. 133. What is Notice. 134, Rights of Creditors. 13."i. Defective Recording. 136. The Registry as Proof. CHAPTER XII. ESTOPPEL AND ELECTION. 137. Estoppel by Deed. 138. Estoppel in Pais. 139. Election under Will or Deed. 140. Between Will and Dower. 141. Other Elections by Widow or Widower. 142. How Election is Made. CHAPTER XTTT. .JUDGMENTS AFFECTING LAND. 143. Conclusiveness of .Judgments. 144. Actual Notice. 14."). Appearance. 140. Constructive Service. 14T. Defects in Constructive Service. 148. Unknown Defendants. 149. Death or Disabilities. 150. Judgment to Sell Decedent's Land. 151. To Sell Infants' Land. 152. Land of Lunatics. 153. Sale for Division. l.J4. Common Features of I^icense. 155. Partition in Kind. 156. Sale of Settled Estates. 157. Subject-Matter. 1.58. Retrospective and Private I^aws. 159. l^arties and Privies. 160. Pendente Lite Purchasers. TABLE OF CONTENTS. CHAPTER XIV. TITLE BY JUDICIAL PKOCESS. 101. Introductory. 162. Judicial Sales. 163. Sales by I.iicense. 164. Purchase as Affected by Reversal. 165. The Judgment Lien. 166. When Valid Execution can Issue. 167. A Valid Execution. 168. When Execution or Attachment Takes Effect. 169. Exemptions— The Homestead. 170. Who Entitled to the Homestead, and against Whom. 171. Proceedings under the Writ. 172. Redemption. 173. Levy by Extent. 174. Sheriffs' and Commissioners' Deeds. Note on Tax Titles. CHAPTER XV. TITLE BY PRESCRIPTION. 175. General Outline. 176. Beginning and Length of the Bar. 177. Disabilities. 178. Exceptions and the Absolute Limit. 179. Nullum Tempus. 180. Limit of the Tax Lien. 181. Possession— Actual, etc. 182. Possession— Hostile. 183. Amicable Possession. 184. Tacking. 185. Extent of Possession. 186. Short Limitations. 187. Limitations for and against the Tax Title. 188. Limitation and Laches in Equity. 189. Foreclosure and Redemption. CASES CITED. (Aol. 2, pages 1461-1578.), INDEX. (Vol. 2, pages 1579-1655.) LIST OF STATUTES REFERRED TO, NOTE. This work was begun in October, 1893. The references to Statutes were made to the revisions then out. A number of states have put out new revisions, either official or unofficial, in the year 1893, 1894, or 1895. An effort has been made to correct the statements of the work as to statute law in accordance with the changes made since the last revision, even while the work progressed ; but it was impracticable to change all the statute references so as to adapt them to the new numbering of the sec- tions in the new revisions now in the hands of the public. But as the old numbers are generally placed in brackets, behind the new section numbers, but little inconvenience can arise from the omission. June 34, 1893. ALABAMA. Code of 1886. .\RIZONA. Revised Statutes of 1887. ARKANSAS. Mansfield's Digest of 1884; Sandels & Hill's Digest of 1894. CALIFORNIA. Civil Code; Code of Civil Procedure. COLORADO. General Statutes of 1883. CONNECTICUT. Geueral Statutes of ISSS. DAKOTAS. Territorial Codes. DELAWARE. Revised Laws of 1874: Revised Laws of 1893. FLORIDA. Revised Statutes of 1892. GEORGIA. Code of 1882. IDAHO. Revised Statutes of 1887. ILLINOIS. Revised Statutes of 18S9 (Cotliran's Ed.). INDIANA. Revised Statutes of 1888 and 1894. IOWA. Code of 1880. KANSAS. General Statutes of 1889. KENTUCKY. General Statutes of 1888; Statutes of 1894; Code of Civil Practice of 1877. LOUISIANA. Revised Civil Code. MAINE. Revised Statutes of 1883. MARYLAND. Public General Laws of 1S8S. MA SSACHUSETTS. Public ■ Statutes of 1882. MICHIGAN. Howell's Annotated Statutes, volumes 1, 2, and 3. MINNESOTA. General Statutes of 1878 and 1888. v. 1 LAND TITLES. (X MISSISSIPPI. Code of 1892. MISSOURI. Revised Statutes of 1889. MONTANA. Compiled Statutes of 18S8. NEBRASKA. Consolidated Statutes of 1891. NEVADA. General Statutes of 1885. NEW HAMPSHIRE. Public Statutes of 1S91. NEW JERSEY. Revision and Supple- niout. NEW YORK. Revised Statutes (Ed. 1889' , Code of Civil Procedure. NORTH CAROLINA. Code of 1883. OHIO. Revised Statutes of lesaO. OKLAHOMA. Statutes of 1890. OREGON. Hill's Annotated Laws. PENNSYLVANIA. Brightly's Pur- don's Digest of 1700-1883. RHODE ISLAND. Public Statutes of 1882. SOUTH CAROLINA. General Stat- utes of 1882; Revised Statutes of 1893. TENNESSEE. Code of 1884. TEXAS. Revised Statutes of 1893; Paschal's Digest of Statutes (1875). UTAH. Compiled Laws of 1888. VERMONT. Revised Laws of 1880. VIRGINIA. Code of 1887. WASHINGTON. Hills' Statutes of 1891. WEST VIRGINIA. Code of 1891. WISCONSIN. Revised Statutes of 1878 (Sanborn & Berriman's Ed., 1889). vi)t LAND TITLES IN THE UNITED STATES. CHAPTER I. INTRODUCTION. S 1. Scope of the Work. 2. Development of English Land I-aw in America, 3. Other than English Sources of Law. § 1. Scope of the Work. The first treatise written on the land law of the United States, aa distinct from the law of England, is the fourth volume of Chancellor' Kent's Commentaries on American Law. The second edition, pub' lished in 1832, combines the original draft of the work with an ac- count of sweeping reforms which the Revised Statutes of New York^ going into effect on the 1st of January, 1830, introduced into the ju- risprudence of that state. Kent was, beyond comparison, the great- est American jurist who ever expounded the law, either from the judicial bench, or the lecturer's chair. None has ever equaled him in perceiving the true grounds on which the law proceeds, and in thus following it out to its just conclusions. But he debars himself from treating the subject in its full compass by leaving out of view everything that pertains to the remedy; for on this ground alone he can have failed to treat of the statute of limitations, that last and surest basis of all titles in land. It is not even mentioned in the fourth volume. It is only alluded to in a preceding volume, as fur- nishing by its analogy the presumption of a grant for certain ease- ments in land. The judgment lien, and derivation of title from sale LAND TITLES V. 1 1 § 1 LAND TITLES IN THE UNITED STATES. [Ch. 1 or extent under execution, are spoken of by the father of American jurisprudence, and with nearly as much fullness and detail as was proportioned to their importance at the time; but all details as to practice in the courts, though the validity of the title depends upon them, are carefully avoided, as lying outside of the great writer's plan. He left it to others to teach the student and practitioner when to sue, so as to avoid limitations; how to sue, to obtain a valid judgment; how to proceed with his execution, to have a lawful sale, and to vest a good title in the purchaser. In Kent's time already the land law of the United States had diverged very far (much further than the law of personal property) from its English prototype. Pri- mogeniture had been abolished in all the states; estates tail, in most of them. Jointures and family settlements were rare. Convey- ances of land were registered everywhere, while in England the reg- istry of deeds was confined to two or three counties. The strict foreclosure of mortgages, which for many years longer prevailed in England, had been driven out of the American states, other than those of New England. The intricate contrivances of the British conveyancers, such as "attendant" terms, which Kent still faithfully describes, were even in his day unknown to American practice. Thus the fourth volume of Kent, even in its first edition, before the great reforms, made by the New York revisers, differed very broadly from any corresponding work which a great English lawyer could have written at the same time. However, when the first and second edi- tions of Kent appeared American precedents were not abundant. Printed reports, which in our days multiply with frightful rapidity, were then few in number, made up in gi'eater part of arguments of counsel, and yet of slender bulk. Of the 16 states wMch the Union comprised at the beginning of the nineteenth century, only 7 had entered upon the publication of printed reports before that time, namely, Connecticut, New York, Pennsylvania, Maryland, Virginia, and the Carolinas. Massachusetts and Kentucky opened their se- ries of reports in 1805; Tennessee, in 1813; New Jersey, in 1816; New Hampshire, in 1819; Vermont (where Nathaniel Chipman had, in 1792, published a little volume, of about 100 pages, under the name of "Debates & Decisions"), in 1824; Delaware followed in 1837; Geor- gia, in 1838; Rhode Island, as late as 1847. The supreme court of the United States, and some of the federal circuit courts, whose de- (2) Ch. 1] INTRODUCTION. § 1 cisions were reported by private enterprise, or through the love of fame entertained by the judges, supplied the lack of American au- thority to a slight extent only, as these courts dealt mainly with maritime, international, and constitutional questions. The lawyers in each state consulted English reports much more than those of sister states. The opinions of Lords Mansfield, Ken- yon, or Eldon were better known than those of Chief Justices Tilgh- man. Parsons, or of Kent himself, outside of their own states. Hence, in Kent's treatise on American Land Law, as contained in the fourth volume of his first and second editions, the citation of Eng- lish cases rather predominates over that of cases decided in our own state or federal courts. The conditions are vastly changed in our days. We are over- whelmed by a stream of hundreds of thick volumes every year, giv- ing, at great length, some very flimsy, and some thoroughly well- considered, decisions of innumerable American courts, from the su- preme court of the United States down to those of surrogates and county courts. The difficulty the text -book writer has to cope with is not to find material, but to select and to reject. An American decision, even if hasty, and not well founded in reason or authority, is at least authority for the state in which it was decided, and is thus of importance to the American practitioner. Meanwhile, since the days of Kent, American land law has diverged further and fur- ther from the ancient English model ; and the reforms carried out in the mother country, while sometimes on the same, in many other cases have moved on lines opposite to our own. Hence, in a modern work, like that which is now laid before the American practitioner, the positions of the text must rest almost entirely on American au- thorities, very many of these construing American statutes; and few English cases can be cited, except those known as "leading cases" in the several heads or branches of jurisprudence. The present treatise assumes that a reader has some knowledge of the English.antecedents of our land law, and undertakes to trace its growth and changes only on the western side of the Atlantic. While the land law of Louisiana, which differs fundamentally from that of all other states, cannot be treated in connection with the lat- ter, attention will be given to the statutes and doctrines which have been drawn from a source other than English, — from that Spanish (3) § 1 LAND TITLES IN THE UNITED STATES. [Ch. 1 and Mexican law which at one time governed all the territory west of the Mississippi, now embraced in the United States, and which prevails in many of the states formed out of that vast territory. For many years, Prof. Washburne's work on Real Property has been the standard text-book on the land laws of the United States. It is, in a great measure, an expansion of the fourth volume of Kent, together with so much of the third volume as treats of incorporeal hereditaments. Like Chancellor Kent's Commentaries, Washburne's treatise has little or nothing to say on the statute of limitations, and even less about titles based on judgment or executions. The writer believes that proceedings at law, on the one hand, and the repose from legal pursuit gained by lapse of time, on the other hand, enter so frequently into the question of land ownership, or of incumbrance, that he will set aside one chapter of this treatise to the validity of those judgments, on which title to real estate is likely to depend, against collateral attack; another to the manner in which title to or liens on land may be derived under the judgment of a court,^ and still another to the workings of the statute of limitations in actions for the recovery of land, or for the enforcement of liens thereon. He will also expound briefly the theory of tax titles, in its several phases. The treatise is, however, confined to land, and will not discuss the mode of acquiring or losing easements, or other in- 1 The writer of this treatise made his first appearance in legal literature as the author of "Kentucky Jurisprudence," in 1890; a booli intended to teach those features or branches of the law of Kentucky, whether statutory or judge made, which a lawyer cannot know by simply studying American law,— ex- clusive, however, of criminal law and of the law of procedure. But, notwith- standing the latter exception, he devoted a long chapter to "Judicial Titles," dividing it into 11 sections: "Service of Notice"; "Constructive Notice"; "Un- known Heirs"; "Execution Sales"; "Judicial Sales"; "Commissioners' and Sheriffs' Deeds"; "Infants' Lands, &c., before 1852"; "Infants' Lands, &c., 1852 to 1876"; "Infants' Lands, & Kindred Subjects, since 1870"; "Division and Dower"; "Jurisdiction of Matter & Parties." He had found in his prac- tice, in examining titles, that questions of doubt arose oftener upon the valid- ity of judgments, and of proceedings under them, than from any other cause. Three of the sections show, by their very names, the historical plan which is also pursued in the others. He states, with regret, that it will be impossible to carry this plan out fully in this treatise; that is, to state not only the present law of each state, but also that in force at any preceding period at which a change of title by execution or judicial sale took place. (4) Ch. 1] INTRODUCTION. § 2 corporeal hereditaments. It deals only with, the title, or incum- brances upon it, not with the personal obligations that may arise between owner and possessor, landlord and tenant, dowress and heir or terre-tenant, mortgagor and mortgagee, warrantor and warrantee. While the steps leading to a judgment from which a title to land flows, or the steps after judgment by which it is finally acquired, fall within its scope, the remedy by which the owner may regain possession lies entirely outside of it. The writer will be careful not to obtrude his own sentiments too often, as between contending views on questions of justice or of the true policy of the law. He cannot, however, conceal his strong feel- ings on one point, — ^that is, the sacredness of land titles resting on recorded deeds ; the impolicy of allowing such titles to be shaken by any evidence coming by word of mouth, except as against claimants guilty of actual fraud; the danger of allowing such titles to be over- thrown by judicial guesses at intention. Like Chancellor Kent, the writer of this treatise believes that the English law took a step back- ward when unenrolled deeds were, through the astuteness of con- veyancers, put in the place of notorious livery of seisin, or of the deed of bargain and sale enrolled in the court of chancery. The peace and welfare of the community are better safeguarded when the ownership of lands is certain and undisputable, and determined by public rec- ords and rules on which lawyers and judges can hardly ever dis- agree, than when it is made to depend on the recollection of wit- nesses, the caprice of juries, and the discretion of chancellors. § 2. Development of English Land Law in America. The feudal system, as a living factor in society, was never brought to the English colonies. No lands in these colonies were ever held "from" the English king by tenants in capite doing knight's service. No one in this country ever did homage for his lands, or owed any greater duty or fealty to the king by reason of his possession of land than he owed simply as a subject. There never was a guardian in chivalry. No lord had the privilege of giving the orphan daughter of his tenant in marriage. If there ever was a real manor, in the old English sense of the word, with its court baron and court leet, and the freeholders attending as suitors and jurors, it never was kept up § 2 LAND TITLES IN THE UKITED STATES. L^h- 1 successfully for a single year. In Pennsylvania a few tracts of 100,- 000 acres Mere set aside to the lord proprietary as "manors," but they were such only in name; the only distinction between them and the other lands of the proprietary being that these latter were sold to all comers at a fixed, very low price, while he might sell the laud comprised in the former upon his own terms. The great "pa- troon estates" in New York, held under royal grant by the Living- stons and the Van Kensselaers, bore the name of manors. The farms were let on freehold leases, subject to many arbitrary restrictions. But even these manors lacked the distinctive element of feudality in its lower strata, — the manorial court, held by the landlord or his deputy. In fact, long before the English conquest of the New Neth- erlands this court had dwindled down to an office for registering the transfers of copyhold lands, or, as they were technically called, "estates at will, held after the custom of the manor." What were the relations between the landowner — even between the first and greatest landowners, the lord proprietors, or colonizing companies — and the king? The charter granted by Charles the Second to William Penn on the 4th day of March of the three and thirtieth year of his reign (1681) gives and grants to him the land and waters out of which Pennsylvania and Delaware were afterwards constituted, "to Have and to Hold, &c., to be holden of us our heirs and successors. Kings of England, as of our Castle of Windsor in our County of Berks, by free and common socage, by fealty only for all services, and not in capite or by Knight's Service, yielding and paying therefore to Us, our heirs and successors. Two Beaver Skins to bee delivered at our Castle of Windsor on the first of January of every year." Whether this is to be regarded as an "ordinary rent," or as "petit sergeanty," is not very material; but such a tenure presents to us, at all events, the merest shell and shadow of feudalism.^ The charter of 1664, embracing the states of Maine, New York, and New Jersey, grants these territories to the dulce of York "to be holden of us our heirs and successors as of our manner [manor] of Greenwich, in free and common socage." The yearly rent is fixed at 40 beaver skins, payable every year, within 90 days after 2 Poore, Const, pp. 1509, 1510. The fifth part of all gold and silver that may- be found is also reserved to the crown. (6) Ch. 1] INTRODUCTION. § 2 demand ; which demand was certain never to be made.' The first charter of Virginia is dated in 1606. By it, James, by the grace of God, of England, Scotland, France, and Ireland, king, gives and grants to Sir Thomas Gates and others, knights, gentlemen, mer- chants, and other adventurers, who are incorporated as a body politic, "that part of America commonly called Virginia, and other territories, not now actually possessed by any Christian Prince or People, between four and thirty degrees of Northern Latitude, and five and forty degrees of the same Latitude, and the islands thereunto adjacent," etc., "to be holden of Us, our heirs and successors, as of our Manor of East Greenwich, in the County of Kent, in free and common socage only, and not in Capite." * This charter was granted when the jnilitary tenures, with all thei? galling incidents of marriage and wardship, were in full force; when these tenures, in the absence of parliamentary grants and subsidies, furnished an indispensable part of the king's revenue. The charter of the New England Company followed in 1620. It grants to Sir Ferdinand Gorges and his associates, mainly of Plymouth, Bristol and Exon [Exeter] the lands between 44° and 48° North Latitude, from sea to sea, "to be holden of us, our Heirs and successors, of our manor of East Greenwich in our Cotmty of Kent, in free and common socage, and not in capite, or by Knight's service, yielding and paying therefore, to us," etc., "the fifth part of the ore of gold and silver, which," etc., "may happen to be found," etc., — a return which was never realized." It would not be worth while to go through the charters of the remaining colonies, but for the curious exception in Carolina. A charter similar to the others, granting the territory to be holden of the king in free and common socage, reddendo one-fourth of the yield in gold and silver, passed the seals in 1665; thus cutting off the upper branch of the feudal system, if, indeed, the abolition of military tenures ordained by the Long Parliament, and afiSrmed by an act of 12 Car. n., had not done so effectually. But, to the amaze- ment of mankind, in 1669 John Locke, the philosopher, having the ear of Ashley Cooper, earl of Shaftesbury, then high in power, drafted a "Fundamental Constitution" for the new colony, in which he instituted new orders of nobility, — landgraves and caciques,— con- 8 Id. pp. 783, 784. * Id. pp. 1888, 1800. » Id. pp. OL'l, 02fl. (7) § 2 LAND TITLES IN THE UNITED STATES. [Ch. 1 ditioned on the ownership of named quantities of land, and gave to them, as lords of manors, the power to establish a court leet in each manor.® It is needless to say that this attempt to found in the new continent feudality in its worst phase — the combination of the landlord and the judge in one person, which, even in England, had fallen into disuse, and survived on British soil only among the highland clans of Scotland — was a complete failure, and that landgraves and caciques, along with Carolinian manors and courts leet, were very shortlived. The charters of the New England and of the Virginia colony were afterwards surrendered and resumed; the soil of Virginia reinvested in the crown ; but the principle which kept the new continent free from the burdens of knight's service upon the higher strata of society, or of manorial courts upon the lower, was always adhered to. By the accession of the Duke of York, under the name of James the Second, to the throne, the provinces granted to him vested in the crown of England, and grants of vacant lands were thereafter made in the name of the kiuc; oi' queen. This may be considered a feudal form, the king being considered the owner of all the lands in his kingdom. But these grants were made by the governors, not as "benefices" to favorites, such as the kings of England, even after the Revolution of 1688, in true feudal style, made to their favorites, but either in return for a fair price in money, or by way of a bounty to worth j- soldiers for services rendered in war which the colony was too poor to pay for in any other way.^ But 6 Id. pp. 1307-1408, in 120 articles. See the charter of Carolina, Id. pp. 1590- 1597. 7 This subject will be treated more fully in a chapter on "Title Out of the Sovereign." The city of Louisville is built in great part on land granted by Lord Dunmore, in the name of George the Third, to John Connolly and Charles WarmstorfC in December, 1773, and to William Preston in 1774, in reward for services which had been rendered by them in the Seven-Years War. The laws under which the several states, at llrst, and afterwards the government of the United States, grant land, either by way of sale for ready money, in return for services of various kinds (such as the building of railroads), or in the pur- suit of the policy of encouraging the settlement of wild lands or the opening of mines, have grown so manifold, and have given rise to so many fine distinc- tions, that, in the chapter on "Title Out of the Sovereign," we shall have to confine ourselves mainly to the decisions of the United States courts, for fear of becoming too prolix. The national laws on the survey of lands have intro- (8) Ch. 1] INTRODUCTION. § 2 in Massachusetts and CJonnecticut, at least, and at times in other colonies, even this fundamental form of feudality was rejected, and vacant lands were granted by votes of the "general court," or general assembly. The New York act of October, 1787, is a fair sample of those by which the ownership and overlordship which had formerly belonged to the state was vested in the sovereign people, and the extent of its seigniorial rights defined. All tenures by knight's service, or by socage in capite, all wards, liveries, primer seisins, etc., were abol- ished, not as of the date of the act, but of the date of the charter of 1664, which meant simply a declaration that all these incidents had never existed on the soil of New York. The old English statute of quia emp tores, which forbids subinfeudations, was re-enacted; no one can, for his land, bear duty to any one but to the sovereign state. The men of that day were perhaps too logical to declare the lands allodial (that is, free from all rights in any authority higher than that of the beneficial owner) as long as the state reserved the right of eminent domain, and the right of taking the land by escheat upon its coming into the hands of an alien, or upon the death of the owner intestate and without heirs.' And whatever might have been done then, or was done, at a later day, to declare the feudal system at an end,- its language could not be rooted out; it still per- vades the law of real estate, as will be seen in the chapter on estates. The very broad line between rights in land and rights in chattels or effects is a remnant of the feudal laws. How far this broad line still stands out visibly, how far it has been effaced by legisla- tion in many of the states, will be shown in the chapter on Descent, which in many of the modern codes has been merged in "distribu- tion" or in "succession"; the latter Tsord being borrowed from the French law, in force in Louisiana." The substitution of the allodium for the fief was rather a pretty phrase than a substantial change, duced in this country a new system of "Boundaries and Descriptions," which make a chapter on that subject the fittest with which to open a treatise ou land titles in the United States. 8 Gerard, in his work on Titles to Real Estate in New Yorlc, gives full ex- tracts from the act of 1787, which carried out in detail the objects of a shorter act of 1779. 9 The reader will, throughout this treatise, find under this, and other branch- es of the law, the most important steps of historic development (9) § 2 LAND TITLES IN THE UNITED STATES. [Ch. 1 but it was soon followed by the abrogation of the privileges of the firsthorn in those states (all but New Hampshire, Massachusetts, and Connecticut) which had adopted the British system of conferring the lands of an intestate on the eldest son, the eldest brother, or the eldest agnate. The breaking up of landed properties was alleged by the lawmakers of the time to be indispensable in order to prevent those gross inequalties in wealth and power which would undermine and overthrow the republic. Estates tail were also abolished in Virginia and in several other states,— a matter of very slight impor- tance, as "strict settlements" were rather favored than discouraged; and the meaning given to the estate tail in Connecticut, since fol- lowed in Ohio and other Western states, made its restrictions much more effective than they had been before. The period of deliberate law reform set in before the end of the century, beginning on the 19th of December, 1796, with a series of laws enacted by the Kentucky legislature on practice at law and in chancery, executions, with their bearing on the sale of lands, de- scents, land boundaries, and conveyances.^" This reform movement spread from state to state, very slowly, however, in Pennsylvania, Delaware, Maryland, and the Carolinas. It culminated in the Revised Statutes adopted by the New York legislature in 1828, which went into effect on the 1st of January, 1830." The drift and object of all these enactments was twofold: First, to pare away the asperities, and to fill up the gaps and defects, of the common law ; secondly, to present a whole branch of the law in a connected or codified form. The Civil Code and Code of Commerce introduced by Napoleon into France, and into some of the countries which dur- ing the Empire were its parts or dependencies, undoubtedly gave some impulse to the movement of codification; but there was an- other and more practical motive, which was frankly avowed in that most excellent revision of the laws of Indiana prepared by Samuel Bigger, and adopted by the legislature of that state in 184o. The most important principles of the common law, wliich clerks, lay judges, or justices had to act upon every day, were to be 10 1 Littell's Laws Ky. pp. 481 -.573. 11 Chancellor Kent, In the fourth volume of his second edition, speaks elb quently, and with a tinge of sadness, of the sweeping changes which the Re- vised Statutes made in the old landmarks of real-estate law. (10) Ch. 1] INTRODUCTION. § 2 as accessible to them as the changes which the legislature had found good to ingraft on the common law.^'' The settlement of the West introduced a new feature in the devel- opment of American law, — especially of the land law. Ohio, being founded, so to say, by Ephraim CuLter, of Connecticut, borrowed from that state its definition of the estate tail, and its requirement of acknowledgment and attestation by witnesses to the validity of a conveyance. IVIichigan borrowed its canons of descent from Massachusetts; its law of uses and trusts, in the main, and its law of powers literally, from New York. With the scission of Michigan Territory these laws marched westward to Wisconsin and to Min- nesota.^' The Connecticut law of entail passed from Ohio to Il- linois, thence to Missouri. The statutes peculiar to Missouri were transferred almost literally to Colorado and to Wyoming. An example is furnished by the Field Code. David Dudley Field, of New York, the author of the Code of Procedure of that state, and thus the father of modern pleading and practice, undertook to codify the laws of that state pertaining to substantial rights, hoping that his plan would find as ready assent as his Code on Remedies. The radical changes which he sought to introduce made his work distasteful to the New York bar, and all attempts to pass the Field Code into law failed in one or the other house of the legislature at Albany. But it found ready reception in California. It passed thence through the Territorial Civil Code of Dakota into the two states formed from the territory, and many portions were trans- ferred from the California statutes to those of Nevada, Idaho, Mon- tana, and Washington. In some of its parts, the Field Code is copied from the New York Revised Statutes, while in other features 12 Among the older states, the desire to codify— that is, to cover the whole ground— is found most thoroughly developed in the Georgia Code. After the war, and during or after reconstruction, law reform and codification reached the Carolinas, also. Maryland has legislated with great detail on some sub- jects, while as to others, such as the statute of limitations, regarding actions for land, it still relies on the old British statutes. The Revised Statues of New York declared all titles to land within the state allodial, and were imi- tated therein by the revisions of most of the Western and Southwestern states. 18 The exact agreement in the law of "Powers," of New York, Michigan, Wis- consin, Minnesota, and the Dakotas, will be shown in the chapter on that sub- ject (11) § 3 LAND TITLES IN THE UNITED STATES. [Ch. 1 (for instance, that of resulting trusts) it runs directly counter to it. Lastly, we must not omit the example of the mother country among the sources of American law reform. The will act of the first year of Victoria, copied in small part from the New York re- vision, has, in most of its features, been followed by many of the American states, including some, like Virginia, who have never been in the habit of following the lead of New York.^* § 3, Other than English Sources of Law. By far the greater part of the territory now embraced by the United States was never, or was only during the short interval be- tween 1763 and 1783, subject to the dominion of the English crown. The Old Northwest, bounded by the Pennsylvania state line, the Ohio, the Upper Mississippi, and the Lakes, was always, before the Seven Years' War, treated by the French as part of their province of Canada; and they had settlements at Detroit, at Sault Ste. Marie, at Fond du Lac, at Vincennes and Terre Haute, at Kaskaskia, and Cahokia. Virginia claimed all, or nearly all, of that country, under the vague words of the charter of 1609, which extended her bor- ders west or northwest. The colonies of New York, Connecticut, and Massachusetts laid claim to strips between their own parallels of latitude, under the "from sea to sea" clauses of their own char- ters. But as the English king could not grant what he neither owned nor possessed, — as, indeed, any lands possessed by any other Christian prince or people were excluded from their charters, — these claims were alike shadowy. But in the Seven Years' War the king of Great Britain conquered all Canada, including the country between the Ohio and Lakes, from the French king, and it was ceded to him in the treaty which closed that war. The British govern- ment included this vast region, in which there were hardly 5,000 white persons of all ages and sexes, in the new province of Quebec, which was to be governed by its ancient French laws, ignoring the claims set up by the colonies under their charters. During the 14 The will act of 1 Vict, a 26 (July 3, 1837), being printed as an appendix to Jarman on Wills, became thus well known to the bar and bench of the United States. In the chapter on "Title by Devise," many of its reforms in the old law of wills and of testamentary powers will be referred to. (12) Ch. 1] INTRODUCTION. § 3 war of the Eevolution, George Rogers Clarke, a citizen of Virginia, started with a few hundred men from the falls of the Ohio (now Louisville), and captured several of the French settlements in the present states of Indiana and Illinois. This lucky stroke gave the American negotiators of the peace of 1783 a basis for demanding the lakes as the boundary of the new republic, and, in a fit of gener- osity, the British negotiators assented. Thus the "Old Northwest," containing now a population of more than 15,000,000, in which, until then, the French law (as far as there was any law) had prevailed, became American. But the French settlers were so few in num- bers, and, moreover, so poor, so illiterate, so lacking in spirit and enterprise, that they left no trace whatever of their institutions among the teeming millions who crowded into the great West after the Ordinance of 1787 opened it to the settlement of American citi- zens.^" While in England and America the language of feudality remained to plague the distant grandsons of lords and vassals, long after the substance of the medieval relations had withered and died, in Spain, France, and other European countries which had drawn their jurisprudence from the Justinian Code, events had taken the contrary course. Laws and customs truly feudal were given names from the imperial Roman law: thus the relation between the great land- owners, and the half-enslaved peasants, who tilled the soil as their tenants, was named the "emphyteusis" or "planting right." In the Spanish grants within the limits of the present United States, there are but few, made in large tracts to nobles or royal favorites, that contain traces of the feudal gift in their language. Louisiana, when acquired by the treaty of 1803, was then, with the exception of small tracts near the mouth of the Mississippi, and a few unimportant settlements within the present states of Missouri and Iowa, given over to the Indian and the buffalo; but wherever, within this vast half continent, white men lived, they obeyed the laws of Spain. The only community with enough wealth or industry to 10 Cases of titles accruing during the French occupation— very few of them— will be mentioned in connection with the much more numerous Spanish and Mexican titles west of the Mississippi, or in Florida; but no traces of French law entering into the laws of the states. (13) § 3 LAND TITLES IN THE UNITED STATES. [Ch. 1 render laws important was collected around New Orleans. It was French in language and sentiment, and had looked upon its subjection to Spanish law between 17G3 and 1803 as a humiliation. Being erected by congress first into the territory of Orleans, and in 1812 into the state of Louisiana, this community, having, to some extent, converted the Anglo-American newcomers to its own sentiments, adopted a code of laws known as the "Code of Louisiana," taken almost bodily from the Code Napoleon, which, even to the present day, with few changes in its provisions, is the kernel of the laws, and more especially of the real-estate laws of that state. In the other portions of the great Louisiana purchase, the old settlers were too few to exert any permanent influence upon legislation. The Americans who came into the region now forming the state of Missouri, superior to the old French settlers in wealth and enterprise, had, on their side, the judges sent out by the federal government, lawyers bred in the com- mon law of England who could not, if they had wished to do so, have administered the old Spanish law, as they did not know nor under- stand the language in which the books containing it were written. In 1807 the governor and judges, to whom the law-making power in the territory then belonged, abolished the "community" of property between husband and wife, and put the English institution of dower in its place. In 1816 the territorial legislature of Missouri abolished the Spanish law entirely, and put the English common law, mainly in the form in which it was understood in the neighboring territory of Illinois, in its place.^" Florida, annexed in 1819, took Ihis step more promptly, though it contained at San Augustine, at Tampa, at Pensacola, and on some of the islands, a compact Spanish-speaking population. The law adopting the common law of England and the statutes of the realm down to 1606 (that is, to the year of the first charter of Virginia) was passed by the territorial legislature on the 2d of September 1822, and was re-enacted in 1823 and in 1829." Texas went through the changes from Spanish to English law while still a separate republic. The change was fully accomplished by an act which the congress of the republic passed on the 20th of January, 16 Lindell v. McNair, 4 Mo. 380; Eeaume v. Chambers, 22 Mo. 3G. As to the introduction of dower, see Wall v. Coppedge, 15 Mo. 448. IT Hart V. Bostwick, 14 Fla. 173. (14) Ch. 1] INTRODUCTION. § 3 and which went into force March 16, 1840." In California the native Spanish population might have sustained itself longer in the use of its old laws, but for the enormous inrush from the states, which was attracted by the gold discoveries of 1849. The convention which met to frame a constitution ratified the changes which custom had already brought in, and, from 1850 on, California was a common-law state. ^* In New Mexico the change is nearly, but not quite, com- plete, though many so-called "common-law statutes" have already been enacted, and Spanish law will undoubtedly be dropped when the state enters the Union. But it will be shown in the proper part of this treatise that an important institution borrowed from the French and Spanish law — the community of property between husband and wife — is found, not only in Louisiana, Texas, and California, who have never parted with it, but also in Idaho and in Washington, who have borrowed it; not, however, in its full vigor, for this regime of the household is not only ill understood by the English-American lawyer, but its justice and fairness is not apparent to the American layman, and under late statutes and decisions, outside of Louisiana, it is evidently losing ground. The abolition of private seals, even in the form of a scroll, has been aided in some measure by jthe example of the Spanish law.^" The Field Code, already mentioned, — rejected in New York, but adopted in California, and to a great extent in other states of the Western slope, — diverged very far from common-law ideas, espe- cially in throwing the lands and effects of the decedent together in one mass, which is called "his succession," after the fashion of France and of Louisiana, and is treated much like the hereditas of 18 Whiting v. Turley, Dall. (Tex.) 454; Moore v. Harris, 1 Tex. 36. 19 St. 1850, p. 219; Johnson v. Fall, 6 Cal. 359; Panaud v. Jones, 1 Cal. 488. The latter case also discusses the civil law, as established in Spain and its colonies, in its bearing on wills; the oflace of the escribano, or scrivener; the nature of an escritura publica; the comnrunity rights of the wife in the acqui- sitions of herself and husband; the rights of the children, after the death of a parent, in the community property, etc. 20 Seal unknown to Spanish or Mexican law, Hayes v. Bona, 7 Cal. 15G; Steinbach v. Stewart, 11 Wall. 578; while a parol agreement to convey land was void, Hoen v. Simmons, 1 Cal. 119. (15) § 3 LAND TITLES IN THE UNITED STATES. '[Ch. 1 the Eoman law. It was, perhaps, the Spanish element, still lurk- ing in the California laws, which made that state less averse than New York had been to adopt such innovations.^^ The Spanish measures of length — the vara, a very short yard, the league, of 5,000 varas; and, as a measure of contents, the square league; also the "league and labor," an area of 26,000,000 square varas — are often met ^vith in boundary disputes arising from Span- ish or Mexican grants, and come to remind us that the Anglo-Saxon was not alone in wresting the Western continent from savage men and wild beasts. 21 It will be seen, In the chapter on "Descent," that the state of Georgia, without any contact with sotu-ces of law other than English, has always held to this system of making lands assets in the hands of the administrator for all purposes. (16) Ch. 2] DKSCRIPTION AND BOUAUARY. $ 4 ■ CHAPTER n. DESCRIPTION AND BOUNDARY. § 4, Description in General. 5. Conflict in tlie Description. 6. Certainty in Description. 7. Ambiguity. 8. Agreed Boundaries. 9. Incidents and Appurtenances. 10. Littoral and Riparian Owners. 11. Fee in the Higliway. 12. Oyster Beds. 13. Boundaries of Mines. 14. State Boundaries. § 4. Description in. General. Under the laws of the United States, the lands granted by the national government, directly or indirectly, as they belong to the several land districts, are divided into townships, which run in ranges east or west of some "principal meridian." The townships within the range are numbered from north to south. Each full township is six miles from east to west, and as many from south to north, by the true meridian, and is divided into 36 sections, each of a square mile; each section is divided into 4 quarter sections (northwest, northeast, southeast, and southwest) ; and each quarter section, again, into halves or fourths. Whenever a navigable river or stream, a lake, or considerable pond, intervenes, the township, section, or other "lot" becomes fractional; the lines are not carried beyond such river, lake, or pond.' The rights of the purchasers of fractional lots will be discussed under the head of "Eiparian Owners." 1 The land districts are enumerated in section 2256 of the Revised Stat- utes of the United States. Section 2395 provides (clause 1) for the laying out of the land by the "true meridian," by north and south lines and others crossing them at right angles; (clause 2) for marking the corners of towfr ship and square miles; (clause 3) for the subdivision of the township into sections, the lines to be marked every second mile; (clause 4) for the mark- ing of comer trees; (clause 5) for the noting and marking of deficiencies ac LAND TITLES V.l 2 (17) § 4 LAND TITLES IN THE UNITED STATES. [Ch. 2 Where a tract is described according to the national surveys, but few disputes as to boundary can arise. It is otherwise in the orig- inal states, including with them Maine, Vermont, Kentucky, and Tennessee,- all of which communities disposed of their soil in tracts of very irregular shape. The same difficulties arise under the Span- ish and Mexican grants in Louisiana, Missouri, California, and New Mexico, and under these and the "republic" and state grants in Texas. The patent granted by the United States, which alone con- fers the legal title, is always preceded by a survey, and the descrip- tion in the patent refers to the field work of the survey, — that is, to the visible marks on the ground (in New England they say "on the face of the earth"), by which the lines and corners are denoted ; and the same process is ordained by the laws of the several states that excesses in the township; (clause 7) for the noting of water courses; (clause 8) for the return of field books and plats. Section 2:^96 provides for the subdivision of sections into halves and quarters, and regulates fractional townships and sections. Section 2397 provides for the further division of quarter sections into halves (by north and south lines) and quarters. The law on mineral lands (sections 2330 and 2331) provides for the further subdivision of the 40-acre lots (quarter quarter sections) into lOacre ti'acts. The platting of town sites on the public land is regulated by sections 2382-2386. The author is indebted to the United States surveyor general for Minnesota for the following explanation of the manner In which the convergence of the meridian from south to north is taken Into account in laying ofE townships under the congressional land system: "The deficiency in a township caused by the convergence of the meridians at the north is obviated in the survey of each township separately. The south boundary of each township is just six miles, but because of this convergence the north boundary is less. This deficiency falls on the one-half mile nearest the western boundary of the township. The amount of this deficiency, of course, depends on the latitude. In latitude 46° north the north boundary of a town- ship is about 75 links shorter than the south boundary. The south boundary being six miles in length, that boundary will necessarily extend to the west heyond the township just south of it the amount of the convergency." 2 Kentucky west of the Tennessee river is platted into townships, sections, and quarter sections under state law. Act Feb. 14, 1820; Morehead & B. St. p. 1040. See Johnson v. Gresham, 5 Dana, 542, as to the inaccurat'y of the surveys. Some parts of Ohio, Indiana, Illinois, and Michigan, and im- portant Spanish grants in Missouri, did not pass through the "gridiron" process of the United States surveys. A description by range, township, and section is good without naming the state or territory and county. Eaisback T. Carson ^Wash.) 13 Pac. CIS. (18) ^h. 2] DESCRIPTION AND BOUNDARY. § 4 have sold their own lands, though these .state laws have not been nearly as faithfully carried out as those of the United States. The monuments on the ground, the trees "blazed" or otherwise marked, are the "survey"; the map and field notes on paper are only the re- port or return of the survey. The patent is understood to refer to the lines actually run out on the ground, rather than to the courses and lines named in the return; '^ and the same rule holds good where lots are sold by a map which is known to correspond to marked lines on the ground.* Hence great uncertainty arises when the marked lines, and still more when the "corners," are lost; that is, when they are effaced by time, or when it turns out that the lines and corners recited in the survey have not really been marked on the ground. When they have been marked, but "lost," it has been held in the majority of cases, that these lines or points, when restored by the recollection of witnesses, or even by reputation, are still the best evidence for settling the position and boundaries of a tract." 3 "The origiual marks and living monuments constitute the survey." Clem- ent V. Paclier, 125 U. S. 300, 327, 8 Sup. Ct. 907; Goodman v. Myrick, 5 Or. do; Kronenberger v. Hoffner, 44 Mo. 185; Whitehead v. Ragan, 106 Mo. 231, 17 S. W. 307; and many cases in almost every state. The date of a survey is when the field work Is done, not when the written description is returned. Hickman v. Boffman, Hardin, 356, 358. Marked lines rule as against field notes. Hubbard v. Dusy, 80 Cal. 281, 22 Pac. 214. Tliis is so with sur- veys which precede a grant, ^^'here, however, a judgment or agreement of division orders a survey, an inaccurate survey made in pursuance thereof cannot overide it. Thomas v. I'atten, 13 Me. 329. In Pennsylvania an instruction by the trial judge was held erroneous, which limited the prefer- ence for the marked lines of a survey on which a patent issued, by requir- ing that they "must be in harmony with the bearings as near as may be," the supreme court recognizing no such limitation. Riddlesburg Iron & Coal Co. V. Rogers, 65 Pa. St. 41G. 4 Marsh v. Mitchell, 25 Wis. 706. See, also, Knowles v. Toothaker, 58 Me. 172, where the survey preceded the partition; Watrous v. Morrison, 33 Fla. 261, 14 South. 805. It is the same with state surveys. Machias v. vrhitney, 16 Me. 343. 5 Dimmitt v. Lashbrook, 2 Dana, 2; Hall v. Davis, 36 N. H. 569; Gerald v. Freeman, 68 Tex. 201, 4 S. W. 256; Herbert v. Wise, 3 Call, 209; Lewis V. Lewis, 4 Or. 177. As to proof of boundary, and especially of boundaries by reputation, see Boardman v. Reed's Lessee, 6 Pet. 328, 341 (the American rule allows such proof, unlike the English, where the private do not coincide with political boundaries); Huffman v. Walker, 83 N. C. 411, quoting from (19) § 4 LAND TITLES IN THE UNITED STATES. [Ch. 2 Land is often described by mere reference to a plat, generally one which is of record in a public office. This is, in effect, done in every deed issued by the United States for a quarter section, or other greater or smaller lot, under their land laws, and by all those who afterwards convey the land by these divisions. In other cases the description of land starts out with a "point of beginning." Then come the lines compassing the land, the last of which leads "back to the point of beginning." The area or quantity of the land conveyed is sometimes also expressed in acres. Land may, however, be grant- ed or devised by a popular or descriptive name, as the "Metropolitan Hotel," the "Arlington Estate," "my dwelling house," etc.^ A call for a tree or rock, for a road, or nonnavigable stream, means the center of the former, the middle line of the latter. The rule as to roads and streams, with its modifications, will be treated sep- arately. In the case of trees, rocks, etc., not only other parts of the description, but facts appearing on the ground, may show that an- other point than the center was meant.'' The point of beginning, or "first corner," is of the highest impor- tance, when the other lines start from it, and are defined only by way of "course," i. e. direction according to the points of the com- pass (such as north; northeast; N., 22° 30' E.), and "distance," ex- other North Carolina cases; reputation that a certain tree was a corner admitted; and proof may be by the declarations of a dead slave, Whitehurst v. Pettipher, 87 N. C. 179; or recitals in deeds more than 30 years old, Hatha- way V. Evans, 113 Mass. 204; admissions of opposite party. Shook v. Pate, 50 Ala. 91; recognition by survej^ors and by opposite ijarty, Kramer v. Good- hinder, 9S Pa. St. ;353. But witnesses cannot prove that a certain stump is the post named in a survey; see Pollard v. Shiveley, 5 Colo. 309. One line of a survey or description, straight or meandering, given either in direction and length, or either, or by reference to a road or stream or line of other lands, along which it runs, or in both ways, and with or with- out the monument, if any, from and to which it runs, is known as "one call" of the survey or description. Where one grants the northern half of his farm, "now occupied by A.," this is a call for the division fence, north of which A. occupies. Pritchard v. Young, 74 Me. 419. ' Stewart v. Patrick, 68 N. Y. 450, states both rule and exception. A road is often called a "monument"; e. g. Frost v. Angler, 127 Mass. 212. A passageway between A.'s and B.'s lots, referred to in A.'s deed to a stranger, does not necessarily end at the corner of B's lit. Ganlcy v. Looney, 100 Mass. 359. (20) Ch. 2] DESCRIPTION AND BOUNDAfiY. § 4 pressed in chains and links, rods and fractions of rods, or feet and inches (in Texas, and other Spanish surveys, in varas). But where each line is run, not merely "to a point" from which the next line again starts, but to a "monument," or, as the phrase goes, when there are "calls for monuments," either natural or artificial, other corners are established besides the first; and then the first corner has no greater sanctity than the others, and if it be lost, or become doubt- ful, it may be restored by "reversing the courses," and running the distances back from some one of the other corners.* When one of the lines passes along a stream or other body of water, it is said to run "with its meanders"; and to set stakes along the bank of the water, and to draw its contour by the position of such stakes, is to "meander" the stream. A broken or curved line may also be made by following a highway or fence, or the boundary line of another owner's land.' Generally speaking, a reference to a property line moans the true line, not one erroneously assumed by third parties, unless the circumstances, such as a length of time during which the erroneous line has been acted on, indicate that the parties, in refer- ring to a line, meant that of actual occupation.^" When the courses 8 Beckley v. Bryan, Print. Dec. 97; Pearson v. Baker, 4 Dana, 323; Thom- berry v. Churchill, 4 T. B. Mon. 32 (where the first corner being lost was restored from the second); Orena v. City of Santa Barbara, 91 Cal. G21, 28 Pac. 268; Hough v. Dumas, 4 Dev. & B. 328; Duren v. Presberry, 25 Tex. 512. Equal dignity of corners, Luckett v. Scruggs, 73 Tex. 319, 11 S. W. 529. Second corner a monument, need not be sought from the first, Scott V. Pettigrew, 72 Tex. 321, 12 S. W. 161. Also, Rand v. Cartwright, 82 Tex. 399, 18 S. W. 794. Contra, Ocean Beach Ass'n v. Yard, 48 N. J. Eq. 72, 20 Atl. 763. Often the lines of a tract are made to begin at a point at a given distance in a certain direction from a monument. The latter then Is the "first corner." This reversing of courses has been applied to surveys made under the laws of the United States, in Ayers v. Watson, 137 U. S. 584, 11 Sup. Ct. 201. and Simmons Creek Coal Co. v. Doran, 142 U. S. 417, 12 Sup. Ct. 239. 8 Thus, "southerly with A.'s line" may include several lines along A.'s lot, which, taken together, lead southwardly. Jawett v. Hussey, 70 Me. 433. 10 White V. .Tones, 67 Me. 20 (in favor of the true line). So, also, Umberger V. Chaboya, 49 Cal.' 526. Still stronger in Wiswell v. Marston, 54 Me. 270, where the true lines prevailed over stakes called for as marking them (an extreme case); Cleaveland v. Flagg, 4 Gush. 70. where it was said that only an occupation long enough to give title could put the de facto in place of the true lines. But see cases in note 4, as to the markings of a survey (21) § 4 LAND TITLES IN THE UNITED STATES. [Cll. 2 are given along the cardinal points, such as "north" or "northerly'' or "northward," nothing else appearing, it means exactly in that di- rection, — due north, due south, etc.; and so "northeast" or "north- eastwardly" means N., 45° E.^^ These words have no element of uncertainty in tliem. Eut the context may show that a course di- verging from the cardinal points is intended; for instance, where the side lines of a town lot, on a city street which diverges a few degrees from an east and west line, are made to run to the north or to the south. ^^ Where a deed or other written instrument refers to a plat, the courses, distances, and names of the monuments on the plat are con- sidered as if written out in the deed or writing; ^^ and though the being preferred over the survey on paper. Also, De Veney v. Gallagher, 20 N. J. Eq. 33. where a deed to line of street was said to mean to the street as opened and built upon. If it was laid out at the wrong lines, the loca- tion can only be corrected by bill in eguity for the purpose. But a con- veyance to A., bounded by B.'s land who then had title by recorded deed to one tract, and had bargained and paid for another tract, was construed to bind on the former only. Crosby v. Parker, 4 Mass. 110. A. conveys to B. a tract "bounded on land of T." means correct line, though a mistaken line had been staked off by parol agreement of A. and T. Cornell v. Jackson, 9 Mete. (Mass.) 150. 11 Jackson v. Reeves, 3 Gaines, 293; Brandt v. Ogden, 1 Johns. 156 (con- struing an. old colonial patent). And the words "about north," when there is nothing to show the divergence, will be construed "due north." Shipp v. Jliller's Heirs, 2 Wheat. 316. But a northerly or easterly direction will sat- isfy the calls "north" or "east" when other parts of the description or when circumstances demand it. Faris v. I'helan, 39 Cal. 612. A word lilie "north- east" has been supposed to indicate the exact course more strongly than one of the principal points would. 12 In Louisville the courses of town lots are always "north." "east," etc., though as the city is laid out the streets run about 2" east of north. Tlie words are tacitly construed accordingly. isMcIvor V. Walker, 4 Wheat. 444; Davis v. Kainsford, 17 Mass. 211. When a deed or survey refers to a preceding deed or survey, and makes it part of itself, the calls of the instrument thus referred to are read as they were in the one referring to it. But distances marked in the plat are subor- dinate to those written out in the grant itself. Hallett v. Doe, 7 Ala. 882. A reference to the "United States Survey" of lands still unsurveyed was construed to refer to the official survey made thereafter, not to an experi- mental sm-vey ah-eady made, but unknown to the parties. Fratt v. Toomes, 48 Cal. 28. (22) *^h- -] DESCRIPTION AND BOUNDARY. § 4 scale of distances and measurement of angles on the plat cannot al- ways be relied on, even these have been recognized as of some im- portance.^* The reference to a previous description, generally one which is contained in a recorded deed to the grantor, or to one from whom he derives title, is also almost always a part of the descrip- tion in any conveyance, incumbrance, or levy, and often it alone con- stitutes the description. Such a reference will be benignly con- strued; that is, where the intent to adopt the former description appears, it will be adopted.^ ^ The statement of contents or area is generally deemed of less importance than any other part of the description, yet it is often resorted to, to help out an uncertainty or ambiguity in the other elements of the description.^' It is often said that a "survey must close." This means that, run- ning out all the lines (at least those of them which are not deter- mined by visible objects or monuments) by their courses and dis- tances, the line last called for must run back to the point of begin- ning. Where all the lines are given in course and distance only, this is a mere matter of trigonometry: The sums of the northings and southings must be equal to each other ; the sum of the eastings must be equal to that of the westings.^ ^ But it is rare that the description does not close on paper. It happens oftener that while some of the calls are run out on the ground by marked lines, or along 1* Land Co. v. Saunders, 103 U. S. 316, -nliere. however, other things con- curred. 15 Thus, the words "described and conveyed by" will have their effect, though the writing referred to by them could not operate as a conveyance. Central Pac. R. Co. v. Beal. 47 Cal. 151. 16 Oakes v. De Lancey, 133 N. Y. 227, 30 N. E. 974, where the quantity was an element to show that a deed was to embrace the flats below high-water mark; Rioux v. Cormier, 7o Wis. 5G0, 44 N. W. 034, where the quantity was used to remove an ambiguity. Other instances will be given in the sections on "Certainty" and on "Conflicting Description." 17 Where the whole outline is given in courses and distances, every line running northwardly must be multiplied with the cosine of its deflection. The sum of these products are the "northings." The lines running south- wardly multiplied with the cosines of deflection when summed up give the "southings." The lines tending eastward or westward multiplied with the sines of deflection from the meridian give, respectively, the eastings and- westings. The sums of the two former and of the two latter must be equal, in order to bring the outline back to the place of beginning. (23) I 4 LAND TITLES IN THE UNITED STATES. [Ch. 2 streams, or to stakes or trees, the remaining lines, perhaps two or three, are either lost, or have in fact never been marked, and, if laid down as directed, will not meet, but will either leave a gap, or cross each other, because the true location of the monuments was not known by the surveyor who gave the courses and distances, or at least was not correctly stated. The distances must be measured on the level, not up and down with the unevenness of the ground." The course ought always to be given by the "true meridian," — that is, the line in which the sun or other heavenly bodies stand highest above the horizon, or cul- minate, is the true south (and such is, and always has been, the rule for the surveys of the United States), — not by the magnetic needle, with its daily and yearly variations; and courses in deeds and other documents should be construed accordingly. However, in the wilds, far away from astronomic instruments, and from the seats of scien- tific knowledge, the early surveyors under the state governments had no other guide than the needle. They made their surveys by the magnetic meridian, and often, but not always, marked in the margin of their report the variation at the time and place; and such is even now the custom in Tennessee and some other states. In Virginia, an act of 1772 directed that all surveys should be made and reported by the true meridian.^' In the very teeth of that statute, the court of appeals of Kentucky decided in 1811, and again in 1813, that, as a matter of fact, all surveys, public and private, were made by the magnetic meridian, and that, therefore, all deeds and contracts which contain courses must be construed by the variation which the needle showed at the date of the deed or contract.^" When, in the United States survey, the section lines are found, but 3 8 The statutes in many states call this a "horizontal measurement"; and the rule is one of the first elements of the surreyor's art. 19 See 8 Hen. St. p. 520, reprinted in Morehead & B. St. Ky. p 1494. Vir- ginia, and some of the older Kentucky, surveys bear the legend: "Variation of Needle ° East." And see sections 920-922, Code Va. 1887, providing a true meridian line for each county, and requiring each survc.ii-or to test his compass by it. 20 Finnie v. Clay, 2 Bibb. 351, where an old contract to convey a tract bounded by east and west, north and south, lines, was construed by the line of variation at the date of the contract. Vance v. Marshall, 3 Bibb, 150. Rev. St. Ky. 1S52. c. 98 (now Gen. St. c. 105. art. 2, § 3), provides tliat sur- (24) Ch. 2] DESCRIPTION AND BOUNDARY. § 5 the quarter-section lines, or still smaller subdivisions, are lost, and the section lines are either too far apart or too close together, the inner lines must be restored by prorating.^ ^ The "blocks of surveys" under the Tennsylvania land system must be treated similarly. It often happened, under the laws of that state, which limited the purchase of public lands by any one person to a small area, that one man would locate a number of warrants, — issued to himself, to his children, to his servants, etc., — sometimes more than 60 in number, together, in one "block," of which the sur- veyor would run out on the ground the exterior lines, in which alone the owner was interested, quite carefully, but omitting some of the inner lines between the separate lots, in whole or in part ; and, when these lots had passed into the hands of several owners, it would be difficult to find and trace the boundaries.^ ^ Great legislative grants sometimes speak of the country between two rivers. Each river must then be traced from its mouth to its source. When no branch is named the source is to be sought at the head of the main branch. The two sources are then connected by an air line; the mouths by the course of the larger river into which both streams flow.''' § 5. Conflict in the Description. The confusion from loose descriptions and faulty surveys has been the bane of all colonial and state grants. It was perhaps worst under the law passed by Virginia in 1779 for the sale of her veys shall be made by the magnetic meridian, and the variation shall be marked on the survey, if it can be done. 21 Eshleman v. Malter, 101 Cal. 233, 35 Pac. 860; Miller v. Topeka Land Co., 44 Kan. 354, 24 Pac. 420. 2 2 The system is fully explained in Bloom v. Ferguson, 128 Pa. St. 362, 18 Atl. 488, and cases there quoted. 2 3 Doddridge v. Thompson, 9 Wheat. 469 (under the reservation by Virginia of the soil between the Scioto and Little Miami). See Cavazos v. Trevino, 6 Wall. 773, for the Spanish method of running surveys along rivers. In Hays V. Steiger, 156 U. S. 387, 15 Sup. Ct. 412, it is rather said arguendo than decided that where, in Mexican grants, hills or mountains are given as the exterior boundary, the foot of the hills nearest to the land is meant, not the ridge. (25) § 6 LAND TITLES IN THE UNITED STATES. [Oh. 2 western lands, of which the most Taluable fell to Kentucky.^* The early Eeports in the latter state are full of cases in which con- tradictory surveys and descriptions are passed upon. At present the richest crop of such cases comes from Texas. The order of importance of the elements is generally the follow- ing: First. Natural and permanent objects, such as a river, lake, or pond, creek or spring; a ridge or ledge of rocks; a tree that has, without being marked, its own identifying aspect. Second. Arti- ficial monuments, marked trees, etc. We have shown already, in the preceding section, how the marks of a survey on the ground are preferred to the report of the survey. Third. Courses and dis- tances.^^ Fourth and last. Quantity. But, as everything in the con- struction of a deed must yield to the intention, this order may some- times be broken in upon, when an intention to that effect can be gathered from the whole instrument. I. The supreme court has strongly expressed its reliance on '•'natural and permanent" objects, which are less perishable than posts or marked trees, and are more likely to have been in the minds of the parties, as boundaries, than imaginary lines and corners, to be found by the compass and chain. Such objects are to be preferred to lines of latitude. They have "absolute control." 24 Code Va. 1779, p. 00, or Hen. St., reprinted in 1 Litt. Laws Ky. pp. 420, 422. 2 6 For the general statement, see George v. Wood, 7 Allen, 14; Opdyke v. Stephens, 28 N. J. Law, 8G; and eases in almost every state. InTithering- ton V. Trees, 78 Tex. 567, 14 S. W. 692, the order of importance first, sec- ond, and third was given as in the text in an instruction of the trial judge, with the limitation, that none of these calls absolutely control the other when there is good reason in the case why the monuments should not pre- vail over course and distance. For this restriction (it was not justified by the facts) the judgment was reversed. For cases of "contrary intention," see Jones v. Burgett, 40 Tex. 2S5; and compare Linney v. Wood, 66 Tex. 22, 17 S. W. 244. Courses and distances prevailed against monuments, as in better harmony with the intention, in Higinbotham v. Stoddard, 72 N. Y. 94. See, for preference of natural over artificial objects, Baldwin v. Brown, 16 N. Y. 359. A full list of the New York authorities is found in Ger. Tit. Real Est. p. 513. See, also, Bruce v. Morgan, 1 B. Mon. (Ky.) 26; Bruce v. Taylor, 2 J. J. Marsh. 160. So, also, a location by latitude will be rejected, if incompatible with references on a map (Mayo v. Mazeaux, 38 Ual. 442), latitude being "an imaginary line." (26) ^'l- '^] DESCRIPTION AND BOUNDARY. § 5 The most "material and certain" calls must control those that are less material and certain.^" Where, from a point on the edge of a stream, a course is given along that stream, say to its confluence with some river, the land borders on the water courses, though the course given is incorrect; nay, even if it is altogether the other way.^' It must not, however, be forgotten that rivers are not always permanent, that their channels may change, and that not only monuments set up by the surveyor, but courses and distances also, may be profitably used, to find the shore line along which a stream may have run at the time when that stream was "called for." ^^ It has happened that the intent to grant within a certain measurement, or to convey a certain acreage, is so clearly expressed that both natural and artificial monuments must give way to it, especially when the distance was only a few feet on level ground, about the measurement of which it was not easy to make a mistake; and this intent will be best shown by a separate clause added at the end of the ordinary description.^* n. Where the survey on the ground precedes the written descrip- tion, and the marks or "surveyor's footprints" are found, these must 26 Newsom V. Pryor's Lessee, 7 Wheat. 10; Browu v. Huger, HI How. 30.j, 308. Mistakes in courses are corrected by the calls. Heck v. Remka, 47 Md. 68. 2 7 Brown v. Huger, supra; Shepherd v. Nave, 125 Ind. 226, 25 N. E. 220. The boundary will follow all the meanders of the stream, though the single course would indicate a straight line. Bailey v. JlcConnell (Ky.) 14 S. W. 337; French v. Bankhead, 11 Grat. (Va.) 136. An island granted by its name passes, though courses and distances fall short. Lodge v. Lee, 6 Cranch, 237. 2 8 This is best exemplified by the case of Missouri v. Kentucky, 11 Wall. 395, as to Wolf Island, in which the evidence turns on the question where the channel of the Mississippi river had been at a given former date. And so a location on a road means such as it was at the time of the deed. Atwood V. Canrike, 86 Mich. 99, 48 N. W. 930. 2 9 Buffalo, N. Y. & E. R. Co. v. Stigeler, 61 N. Y. 348. where in a deed to a railroad company a strip of defined length and width in the direction of its line was given to it. These calls, of course, and distance, were preferred to a call for the lands of another road. Higinbotham v. Stoddard, 72 N. Y. 94. Lines of city lot, very short, and readily measured and agreeing with quantity, preferred to call for line of mill race. Jones v. Smith, 73 N. Y. 205. "Land called the cross lot now in possession of A. B." too vague to override a description. Ousby v. Jones, Id. 621, where the closing words "the premises being intended," etc., giving a named farm, of which the (27) § 5 LAND TITLES IN THE UNITED STATES. [Ch. 2 prevail, though the land system under which the surveys are made prescribes the size and shape of the lots to be surveyed, and the marked lines fail to produce these.^" The question arises generally when some of the marked lines or corners are lost or obliterated, and are located by the evidence of witnesses; sometimes even by reputation and hearsay.''^ The matter must then be put to the jury thus: "If the evidence as to location of the monuments or marked lines is conflicting, j-ou must form your own conclusions; but when j'ou have, on all the evidence, found where the monu- ments or marks were put, these will prevail over the courses and distances." But it seems that if the evidence is conflicting or weak the very courses and distances of a patent must have some weight in locating the lost monuments.^^ Highways, especially streets, and the walls of houses, are often called for in deeds, and hold an intermediate place between "natural objects," on the one hand, and the marks of the surveyor, on the other. A call for the center of a party wall as a starting point prevails over the accompanying words, requiring this point to be at a certain distance from a given street.''' boundaries were oa record, were held to control. The shortness of the lines is made a point in favor of correctness in Tyler v. Hammond, 11 Pick. 193, 211. 3 The section lines and corners that are actually marked are controlling, and cannot be corrected by an experimental sui-vey. Conn v. Perm, Pet. C. C. 496, note. Fed. Cas. No. 3,104; Buel v. Tuley, 4 McLean, 2G8. Fed. Gas. No. 2,101. 31 See preceding section, note 3, as to reputation and hearsay. 3 2 When the proof of marks or monuments is vague and slight. It should not, it has been said, overcome courses and distances (see Hall v. Mayo, 97 JIass. 416; Bruckner v. Lawrence, 1 Doug. [Mich.] 19; Budd v. Brooke, 3 Gill. [Md.] 198); though, more logically, it is matter for the jury, If the proof is competent, to say wliether it is enough to locate the monuments. In Robinson v. Kime, 70 N. Y. 147, 1.54, lost corners, of which the location was proved by parol, prevailed over distances. And unmarked lines must not control corners marked or found. Randall v. Gill, 77 Tex. 351, 14 S. W. 134; Kellogg V. Mullen, 4.j Mo. 571 (if the lines can be ascertained, they prevail). 3 3 Muhlker v. Ruppert, 124 N. Y. 627, 26 N. E. 313. distinguishing Smyth V. SIcCool, 22 Hun, 595. But where a house was identified only by street number, and another house answered the distance, the latter was preferred. Thomson v. Wilcox, 7 Lans. 376. Where one owner sells parts of a common lot to A. and B. by corners, and then courses and distances, and the re- (28) Ch. 2] DESCRIPTION AND BOUNDARY. § 5 A very important "artificial object" is a tract of land. It may be a town, or other political division; it may be a parcel named in a previous grant. If the nearest line or corner is marked, it is the ordinary case of a call for a monument; ^* but suppose it is not. There is a line of cases in North Carolina, approved by the supreme court of the United States, in which it is settled ''that the call for the line of another tract of land, which is proved, is more certain than, and shall be followed in preference to, one for mere course and distance.^ ° This is especially so where the older tract is a political division, or has a great and ancient notoriety, and its boundaries are laid down on public maps. Where the same party (e. g. the crown or the state) has granted both tracts, describing tract B as running over a line, with given course and distance, to tract A, he and his subsequent grantees are estopped from claiming a strip or gore between tracts B and A by reason of the shortness or wrong di- rection of the line by which the grantee of tract B is to reach tract A.''* Where a line is directed towards a pond, a river, or a defined tract of land, and will not touch it at any point, the course may be mainder to B., the latter is not restricted by the fence round his yard, which is not named in the deed, from claiming a narrow strip between it and the named boundary. Thompson v. Kauffelt, 110 Pa. St. 200, 1 Atl. 267. And where a man sells part of a large lot by exact boundaries, and adds "being the piece of land employed as a garden," these words were not deemed clear enough to make the partially misplaced fence override the measurement. Harris v. Oakley, 49 Hun, 605, 2 N. Y. Supp. 305. But such words as "by the fence as it stands, to the beginning" will overrule the location of the "first corner" by measurement. Needham v. Judson, 101 Mass. 155. A street laid out on paper in an embryo town is not a monument. Saltonstall v. Riley, 28 Ala. 164. 34 Well established corners in an adjoining survey, neither plaintiff's nor defendant's, may control. Grifl^th v. Rife, 72 Tex. 185, 12 S. W. 168. When there is need for monuments, those in the nearest survey should be sought. Noble V. Chrisman, 88 111. 186. But "a tree at the mouth of a creek,"' when the tree can no longer be found, is too vague a location, and course and dis- tance will prevail over it. Budd v. Brooke, 3 Gill. (Md.) 198. 3 5 Land Co. v. Saunders, 103 U. S. 316, quoting Campbell v. Branch, 4 Jones (N. C.) 313. This, in turn, follows Carson v. Mills, 1 Dev. & B. 546; Gause v. Perkins. 2 Jones (N. C.) 222; Corn v. McCrary, 3 Jones (N. C.) 496. 36 Land Co. v. Saunders, ubi supra. (29) § 5 LAND TITI,ES IN THE UNITED STATES. [Ch. 2 saved if a shortened or extended distance will reach the object.'^ But if the line would at any rate pass by the large object by which it is controlled, the rule is to abandon both course and distance, and to draw instead the shortest straight line which will reach the ob- ject aimed at.^* When the survey in dispute joins another and older survey, of which the lines have already been run out on the ground, these, as far as they are common lines, may be adopted, with as much force as if they belonged to the survey in dispute. This is especially clear when the same surveyor made both surveys within a few days of each other, and has often been applied to the "blocks of surveys," al- ready explained, found in Pennsylvania.^' The rule that calls must be preferred to courses and distances has this exception: that when the deed refers to the former in a doubting way, qualifying them by such words as "supposed," the latter will prevail, as expressing the intention of the draftsman more certainly.*" So where a tract is first denoted by its popular name, and described by metes and bounds, or courses and distances, which show some mistake or doubt on their face, the known bound- aries of the named tract will prevail over a construction which might otherwise be given to the ill-expressed boundaries; while other- wise, a specific reference to metes and bounds, or to a plat giving courses and distances, would prevail over and limit such a general designation as "my farm." *^ Courses and distances are sometimes 37 Standen v. Bains, 1 Hayw. 238; McPhaul v. Gilchrist, 7 Ired. 169; Lit- erary Fund V. Clark, 9 Ired. 58. 3 8 Campbell v. Branch, ubi supra, overruling a dictum in Literary E'und v. Clark, supra, which suggests that the shortest distance line should be drawn from the end of the line that will not reach the object. 3 9 Pruner v. Brisbin, 98 Pa. St. 202, discusses the whole subject of these "blocks." In Pennsylvania there is presumption de jure after 21 years from date of survey that it has been actually made. Grier v. Pennsylvania Coal Co., 128 Pa. St. 79, 18 Atl. 480. See, however, Magowan v. Brauham, 95 Ky. .581, 26 S. W. 803 ("within the D. T. survey" rejected). ■4 Jlizell V. Simmons, 79 N. C. 182, and older cases in the same state. A fortiori does the line of a third person that is called for prevail over course and distance stated with "more or less." Howell v. Merrill, 30 Mich. 283. *i Haley v. Amestoy, 44 Cal. 132; Breck v. Young, 11 N. H. 485 ("about 61'"); Stewart v. Davis, G3 Me. 539. Thus, in Shipp v. Miller's Heirs, 2 Wheat. 316, a call for a buffalo road in an entry under the Virginia land act of 1779 (30) Ch. 2] DESCRIPTION AND BOUNDARY. § 5 made to yield to the combined effect of quantity and natural objects, such as a call for crossing a river with one of the lines, and at the same time inclosing a named quantity, the latter being material when the land is sold by the acre.*^ ni. Courses and distances rank after artificial monuments, but it is yet an open question how they rank among themselves. In an early Kentucky case it was said: "(1) Nothing but a necessity will justify a departure from either course or distance. (2) When a de- parture from either course or distance becomes necessary, then the distances ought to yield." As expressed elsewhere, when a corner is lost, "it will be put at the intersection of the lines leading to it." *' But this doctrine, which seemed to be in vogue at the begin- ning of the century, was soon withdrawn by the Kentucky court of appeals, which now says that courses and distances are of equal dignity, and in construing surveys the doubt must be solved in favor of the commonwealth; hence the angle will rather be lessened, if running it out according to the description would lengthen a dis- tance, and thus increase the contents of the grant.** And this equal rank of course and distance is now the more general rule, though in Texas course is preferred over distance, as formerly in Kentucky.*^ In a hilly — stUl more in a mountainous — country there is good reason for distrusting the distances more than the courses; was rejected as in conflict with a distance supported by a natural monument, the ridge between two forlis. See, also, Johnson v. Hughart. 85 Ky. 657, 4 S. W. 348. So, in Texas, the distance leading to a marked line is preferred, unless the marks on the ground are proved to be those of the survey which is referred to. Fagan v. Stoner, 67 Tex. 2S0, 3 S. «'. 44. ■ta Newsom v. Prj'or's Lessee, 7 Wheat. 7, a strong case, for a 5,000-acre tract was laid off in the description of the grant, as a square of 894 poles, and had to be drawn out into a rectangle. A square league along a river had to be drawn out into an unusual shape in Williamson v. Simpson, 16 Tex. 435. 43 Bryan v. Beckley, Litt Sel. Gas. 93 (s. c. Print. Dec. 93, and I.itt. Sel. Gas. 100). A slight discrepancy to be explained by change in variation. Scott V. Yard (1890) 46 N. J. Eq. 79, 18 Atl. 359. ■14 Preston's Heirs v. Bowmar, 2 Bibb, 493; Pearson v. Baker, 4 Dana, 324 (doubt to be solved against grantee). No universal rule as between courses and distances. Loring v. Norton, 8 Greenl. Gl. "One or the other preferred according to the manifest intent of the parties." Smith v. Chap- man, 10 Grat 445. 4 5 Such is the common rule in Texas. (31) § 5 LAND TITLES IN THE UNITED STATES. [Ch. 2 and while the old Kentucky case above quoted says, further on, that allowance should be made for the variation of the needle and for the unevenness of the ground, it is clear, that the allowance for the former can be made with much more ease and certainty than the latter.*" Courses and distances have been postponed, not only to monuments, but also to the general description of some well-known tract, though it is not there marked by visible monuments, nor bouuded by fences. The parties are supposed to have had a Imown tract in their minds, and, if the lines by which their tract is to be either reached or measured do not reach or measure it, a mistake is presumed to lie rather in the length and direction given to those lines than in the designation of the tract.*^ rv. That the lines, as run, inclose a surplus above the named area, is of no import, except as circumstantial evidence.*^ This princi- ple has been applied to grants obtained from the state of Virginia, and still more unblushingly in Tennessee, where lands sometimes ex- ceeding the number of acres paid for three or more times were sur- veyed as being the quantity paid for, and the state was held to be without remedy.*^ A deficiency would stand upon the same ground as a surplus. We are not here dealing with the right of either party to obtain redress for the loss resulting by fraud or mistake, or with the apportionment of the deficit or overplus among several purchas- ers, but simply this: that at law boundaries are, if otherwise certain, and whether fixed by monuments and marked lines or by courses and distances, not affected by the statement of contents or acreage incon- sistent with the description.^" The quantity named as part of a description is, however, often looked to where the other elements of the description leave room for ambiguity, or seem to be in con- flict with each other, or where, by their awkward wording, they indicate a mistake of the draftsman; just as, in a similar case, IS Scott v. Yard, 4C> N. J. Eq. 79, 18 Atl. 359. 47 Thomson v. Thomson, 115 Mo. 56, 21 S. W. 1085, 1128; Rutherford v. Tracy, 48 Mo. 325; Lodge's Lessee v. Lee, 6 Cranch, 237; Keith v. Reynolds, 3 Greenl. 393. *8 Jlercer v. Bate, 4 J. J. Marsh. (Ky.) 338; Sanders v. Godding, 45 Iowa, 463. But quantity is made available in Scott v. Pettigrew, 72 Tex. 321, 12 S. W. 161, to control doubtful lines, not actually run out. 49 Fowler v. Nixon, 7 Heisk. 719. 00 Pope V. Hanmer, 14 N. Y. 240. (32) Ch. 2] DESCBIPTION AND BOUNDARY. § 5 courses and distances given positively are preferred to monuments stated in uncertain words. ''^ When elements of the same rank are in conflict, the court must, upon the whole survey or description, decide the dispute as well as it may: as between two monuments, both of which could not have been meant as corners; "^ and, if need be, not only all parts of the description, but the whole deed, must be read to reconcile the con- flict." Besides the conflict between monuments, natural and artificial, courses and distances, and quantity, there is sometimes the con- flict between a full and fair description or designation of the con- veyed or devised lot, and a subsequent reference or redescription. It is very difficult to give any general rules as to the comparative force of the one and the other, as the language and surrounding circumstances must in each case show whether the first or the second designation most fully expresses the will and intent of the parties. When one description is complete in itself, and the other only a reference to other documents, it is said, "Falsa demonstratio non nocet," "■' and that parties rely more on the first description, un- Bi Field v. Columbet, 4 Sawy. 523, Fed. Cas. No. 4,764. 02 Fitzgerald v. Brennan, 57 Conn. 511. 18 Atl. 743. In Field v. Columbet, supra, the description wound up with the remark that two springs were included. To solve a doubt in the meaning, the court used this remark Im favor of a boundary which would barely include the springs. B3 Mott V. Mott, 68 N. Y. 246 (question of including a way); Hussner v- Brooklyn City R. Co., 96 N. Y. 18 (rather a weak case). 54 "So, according to the maxim of Lord Bacon, 'falsa demonstratio non nocet,' when the thing itself is correctly described; as in the instance of the farm A., now in the occupation of B., here the farm is designated cor- rectly as farm A. But the demonstration would be false, if C, and not B., was the occupier, and yet it would not vitiate the grant." 4 I<;ent, Comm. p. 467, quoting Blague v. Gold, Cro. Car. 447, 473; Jackson v. Clark, 7 Johns. 217; Howell v. Saule, 5 Mason, 410, Fed. Cas. No. 6,782. Where land cor- rectly described in a deed is mistakenly said to be the "dower tract" of a named widow, this does not weaken the effect of the description, nor estop the parties from showing it to be another tract. Doane v. Willcutt, 16 Gray< 368. "My dwelling house on the ridge of the beach" identifies the place, and the added words "occupied by J. S.," being untrue, may be rejected. Stone V. Stone, 116 Mass. 279. A 40-acre lot identified by township, section, etc., will pass, though located by mistake in an adjoining county. Wilt v. Cutler, 38 Mich. 189. Or where a description, otherwise correct, calls for the nortb- r.AND TITLES V.l 3 (33) § 5 LAND TITLES IN THE UNITED STATES. [Ch. 2 less it be defective, than on an attempted redescription. Yet the ref- erence to a former deed may be most important, as the grantor is likely to convey by the same boundaries by which he owns the land. And, where the second description gives definite boundaries, these ought to prevail over general terms that are used first. If there are several descriptions, the court may interpret them in a way that will satisfy each of them.''^ While an unopened street, to be found merely by continuation of one in actual use, cannot be said to present any monument, built by either nature or art, yet it will prevail, when in conflict with a dis- tance leading to it, at a right or other angle to it, as it can with certainty be found from monuments, or bodily features of the ground. °* While, as shown elsewhere, a description altogether uncertain con- veys nothing, yet where the description can only bear two mean- ings the rule is to construe it against the grantor, as the deed is sup- posed to be his language ; " and if one grants a larger tract, subject to exceptions or reservations, a doubt as to their meaning will also be f>ast corner of lot 11, Instead of lot 12, this mistake was disregarded. Chand- ler T. Green, 69 Me. 350. And several such mistakes were ignored in Ha- thorn V. Hinds, Id. 326. But in Jennings v. Brizeadine, 44 Mo. 332, it was held that "bloclt 46" on a map could not be recovered under a conveyance of "lot 46," unless the deed was corrected by decree in equity. All "water and ?jeach lots" within defined outer lines being conveyed, numbered 1 to 32, it was held that lot 33 would also pass, being a "M'ater and beach lot," and within the line. Friedman v. Nelson, 53 Cal. 589. A full and consistent description by metes and bounds, with a reference to a previous instrument, having no description in it, but merely showing an intention to convey cer- tain other lands, cannot be corrected at law so as to reach such other lands. Prentice v. Northern Pac. R. Co., 154 U. S. 163, 14 Sup. Ct. 997. s 5 This whole matter is fully discussed upon the New England cases in Hathorn v. Hinds, 69 Me. 326, where the following cases, each supporting points in the text, are quoted: Crosby v. Bradbury, 20 Me. 61; Melvln v. Proprietors of Locks & Canals on Merrimack River, 5 Mete. (Mass.) 15, 29; Waller v. Barber, 110 Mass. 44, 47; Haynes v. Young, 36 Me. 557; Stewart v. Davis, 63 Me. 539; AThiting v. Dewey, 15 Pick. 428, 434; Sawyer v. Kendall, 10 Cush. 241 (general description controls where the metes and bounds are impossible); Law v. Hempstead, 10 Conn. 23; Madden v. Tucker, 46 Me. 367. 66 St. Margaret's Memorial Hospital v. Pennsylvania Co. for Insurance on iives & Granting Annuities, 158 Pa. St. 441, 27 Atl. 1053. 67 Ganley v. Looney, 100 Mass. 359, 364. (34) Ch. 2] DESCRIPTION AND BOUNDAUY. § 6 solved against the grantor, so as never to enlarge these exceptions or reservations. °' § 6. Certainty in Description. A deed or will, in ocder to pass an estate, must denote it with cer- tainty. In wills the testator often devises "all of my lands," or even "all of my estate'' ; and, in assignments for the benefit of cred- itors, words of equally sweeping import are generally used, and in many states must be used. But in ordinary deeds of sale, of gift, or of mortgage (the latter known as "blanket mortgages"), such gen- eral words as "all my lands," or "all my lands within the state of ," are good and effectual, between the parties,' as to all those lands situate in a state, to the laws of which the deed conforms in its form and execution. '^ Such sweeping language has, however, in Connecticut been held insufficient in a mortgage, and is everywhere held bad in a sheriff's deed, on grounds variously given, but really because the levy of an execution on "all the lands of the defendant" 68 Wj-man v. Fairav, 35 Jle. Gi. 59 Gen. St. Conu. 188S, § 501, dating back to 1843; Connecticut being the first state which regulated general assignments. Many others have followed; and, in those which have not done so, it is usual to use words which seek to embrace everything subject to execution; and the courts always construe such a deed, If possible, so as to reach and pass to the assignee all the as- signor's interest in laud, of whatever description. Knefler v. Shreve, 78 Ky. 297. In Moore v. Magrath, Cowp. 11, Lord Mansfield held that such general words, when following the grant of one named tract, must sometimes be disregarded as a blunder of the draftsman. But in the absence of mistake, as in Cox v. Hart, 115 U. S. 376, 380, 12 Sup. Ct. 9G2, a deed "conveying all the grantor's estate in Texas or elsewhere" is effective. It is there so treated, as of course. So, also, Jackson v. Delancy, 4 Cow. 427 ("all other lands not heretofore conveyed"); Sanders v. Townsliend, 89 N. Y. 623; Wilson v. Boyce, 92 U. S. 320. See, however, Wilson v. Beckwith, 117 Mo. 61, 22 S. W. 639, arising under the same private act, reserving a lien to the state over a railroad. The word "property" was construed, a sociis (tracks, depots, shops, etc.), not to include the land grant, in accordance with Whitehead v. Vineyard, 50 Mo. 30, in which the equities were somewhat difCerent. St. Louis, I. M. & S. R. Co. V. McGee, 115 U. S. 469, 6 Sup. Ct. 123, excluded the land grant. Alabama v. Montague, 117 U. S. 602, 6 Sup. Ct. 911; excluded town lots in another state. "All my farm land and wood land" carried the grantor's undivided share in a large tract Drew v. Carroll, 154 Mass. 181, 28 N. E. 148. (35) § 6 LAND TITLES IN THE UNITED STATES. [Ch. 2 ' would be bad, and the sheriff's deed must be supported by a good levy, and must follow it.*" The description in a deed of particular lands need not be "direct." It need not, in express words, set out all the boundaries, either by calls or courses and distances. If it is cer- tain by the construction which the law works out from its words^ that is enough."^ Where a deed purports to convey a part of a larger territory, it must contain something by which the smaller area can be segregated from the larger. The principle is pretty much the same as in the sale of chattels, where a sale cannot take effect till the one or more articles bargained for, out of a larger mass, are selected and set apart. Until then, in either case, though the deed or bill of sale should be drawn in the present tense, there is only a contract to sell, or a con- tract to convey.*^ Yet it seems that when the grantee has, by an un- 00 De Wolf V. A. & "W. Sprague Manuf g Co., 49 Conn. 2S2; Jackson v. Delancy, 13 Johns. 542 (all of defendant's land in Ulster county); Simonds V. Catlln, 2 Caines, 65. The reason is pointed out in McGuire v. Kouns, 7 T. B. Mon. (Ky.) 387. 61 Webber v. Webber, 6 Greenl. 127 (enough if the description can be made out by construction); s. p., Laub v. Buekmiller, 17 N. Y. 620. In Gieshara V. Chambers, 80 Tex. 544, 16 S. W. 326, "the league granted to M. B. by C, commissioner of Milam's colony,'' was held clearly good, there being only one league grant to M. B. That the name of the village or township is badly misspelled (Lington for Lincoln) is immaterial, if the place meant can be made out. Armstrong v. Colby, 47 Vt. 360. The S. W. i/4 of N. % of section 14, etc., is a good description, not void for uncertainty. It means 80 acres, — the S. V2 of W. V2 of N. V2 of the section. Bradley v. Rees, 113 111. 327. "My interest in B.'s estate," where B. owns only his homestead, deemed enough Ryder v. Loomis, 161 Mass. 101, 36 N. E. 836; Atwood v. Cobb, 16 Pick. 227; Nichols V. Johnson, 10 Conn. 192; Lorick v. McCreery, 20 S. C. 424 ("all my right, etc., as legatee of G."). 6 2 Dull V. Blum, 68 Tex. 299, 4 S. W. 489, where a deed otherwise in the usual form gave to the grantor the power to select. In Smith v. Bradley (Ky.) 11 S. W. 370, the point was not decided, as both parties held under the same defective deed. "One-third of the league of land purchased by me of P. N." gives no title. Harkness v. Devine, 73 Tex. 628, 11 S. W. 872. So, also, "3,788 of the M. F. league" is void; Tram Lumber Co. v. Hancock, 70 Tex. 312, 7 S. AV. 724. In Fuller v. Fellows, 30 Ark. U57, a deed giving quarter and section, but neither township nor range, was held void, though the exceptions of "G.'s homestead" would have identified it. This is not in keeping with the rUn of authority. In Pinkerton v. Ledoux, 129 U. S. 346, 9 Sup. Ct. 399 (ejectment upon a Mexican grant), the jury was told, if they r36) :Ch. 2] DESCRIPTION AND BOUNDARY. § 6 equivocal act, with the assent of the grantor, made his selection, as by taking full possession by a marked boundary, or conveying the selected tract by metes and bounds, the uncertainty is removed, and the title within such boundary vests under the first grant.®^ And a deed is valid which does not by itself identify the land con- veyed, but only furnishes the means for identifying it; and, moreover, the court must use all its ingenuity in reconciling contradictions, and in correcting mistakes in the boundaries, rather than let it fall to the ground for uncertainty.*^* Thus, where the smaller quantity is to be taken off one side, according to the points of the compass, which is very frequent in sheriff's or tax collector's sales, and in the deeds made in pursuance thereof, there is no uncertainty. So many acres "off the east side" or "off the west side" of a tract require the cannot from the documents arrive at the true boundaries, they must find for the defendant. «3 Corbin v. Jackson, 14 Wend. 619, in the court of errors of New Yorli, an important case, where 600 acres had been conveyed out of several thousand, with power of selecting it in 200-acre lots, it amounted to a sort of parol par- tition. In Armstrong v. Mudd, 10 B. Mon. (Ky.) 144, the general rule is quoted from 14 Vin. Abr. p. 49, that, of everything uncertain which is granted, election remains to him to whose benefit the grant was made, to make the same certain. Here 200 acres were granted, to bind on a given line, and to be laid off in a parallelogram, not more than twice as long as wide. The grantee having sold and conveyed 200 acres out of the first grantor's land, answering this description, it was held that he gave a good title; quoting 1 Shep. Touch, p. 250. The supreme court of Wisconsin, in 1881, in the well-considered case of Messer v. Oestreich, 52 Wis. 684, 10 N. W. 6, held that where a strip of five rods in width through a tract was con- veyed to a railroad company, without locating It otherwise, the subsequent location and laying of the track would identify it; relying on Georgia Rail- road V. Hart, 60 Ga. 550, and running into the line of cases of Agreed Boun- daries, for which see hereafter. 84 Alexander v. Lively, 5 JXon. (Ky.) 159 (where in the report of survey a line Iiad been omitted, and the court undertook calculations to supply it); Smith V. Crawford, 81 111. 296 (deed void for uncertainty only when proof by parol exhausted). So "block 52, In De Kalb county" was held sufficient, a tract being known as such (though the plat was not recorded), and had been delivered to grantee and occupied. Tetherow v. Anderson. 03 Mo. 96. Where the county would identify the land, that wherein the deed is recorded, pre- sumed. Butler V. Davis, 5 Neb. 521, referring to Harding v. Strong, 42 111. 149. Whether the description does identify Is In most cases a question of fact. Patterson v. Evans, 91 Ga. 799, 18 S. E. 31. (37) § 6 LAND TITLES IN THE UNITED STATES. [Ch. 2 drawing of a north and soutli line between sucli points in the outline of the larger tract^ that the segment east or west of the line thus drawn will contain the quantity conveyed."' And here, if the larger tract be a rectangle, of which the sides do not run exactly with the points of the compass, as is usually the case with city lots, the line which cuts off a named quantity at the east end or at the north end, etc., must be drawn parallel to the lines of the lot, such as they are ; for lines running obliquely to the street would, if intended, have been more clearly indicated."" And as the greater tract is very often rectangular — say a quarter section, or a town lot — the rule is some- times expressed that the conveyed smaller quantity is laid off in a rectangular strip. When the quantity conveyed is to come out of a comer, it must be laid off in a square; "' and, where it was de- es The ofBcer asks the bidders: Who -will pay the execution or the tax bill for the smallest amount of land taken off [say] the northern end? Mis- souri and Mississippi have in the last few years offered many examples of such deeds. Thus, "107 acres in south part of S. E. % of section 22 (naming township and range)" held good, in Enochs v. Miller. CO Miss. 19, "20 acres off east part of S. W. 14," etc., in McCready v. Lansdale, 58 Miss. 879, where the court says: "Lay off 20 acres east of a line!" So, "the south part of section 5, etc., being 225 acres," is good. Tierney v. Brown, 67 Miss. 109, 6 South. 737. See, for Missouri cases, note 69. In Iowa, "west part of N. E. 14 of N. W. 1/4. being 20 acres," of a named section, is sufficient; the quantity identifying the west part as the west half. Soukup v. Union In- vestment Co., 84 Iowa. 448, 51 N. W. 107. 6 6 Thus, "land at the corner of Congress and Exchange streets, extending through to Market street," was held (in a tax deed) to be no description. Bingham v. Smith, 64 Me. 4.50. 67 "One acre being the S. E. corner of N. E. quarter section," etc., means a squared acre. Smith v. Nelson, 110 Mo. 552, 19 S. W. 734. So. as to 14 acres,, in Bowers v. Chambers, 53 Miss. 259; "one and a half acres," Bybee v. Hage- man, 66 111. 519. In a will the devise of a messuage and 10 acres of land surrounding it (the tract being larger) is said to mean to give to the devisee the choice of 10 acres. Hobson v. Blackburn, 1 Mylne & K. 574. To same ef- fect 8 Vin. Abr. "Devise," p. 48, pL 11. The court of appeals of Kentucky under the Virginia land act of 1779, went very far in deeming a preliminai-y en- try "certain," and thus sustaining it as an equitable title against a patent; and it was followed therein by the supreme court of the United States. See Shipp V. Miller. 2 Wheat. 316, where an initial point, the quantity in acres, and the words "north for quantity," were held sufficient. For other ex- amples, see the introduction to the first volume of Bibb's (Ky.) Reports. Thus, an entry of 400 acres, containing A. B.'s cabin, means a square with (38) Ch- 2] DESCRIPTION AND BOUNDARY. § S scribed as the south and west part of a quarter section, it was said not to be uncertain, for it might be taken off in strips on its south- ern and western sides, though a quadratic equation would have t« be solved to get at the width of the required strips."* Generally speaking, the quantity stated in a deed, though followed by the words "more or less," may be resorted to to solve any uncer- tainty which might otherwise arise. For instance, where the deed grants "the east half and the northwest quarter of the northeast quarter of section 7," this might mean 'the east half of the whole section 7, and the northwest quarter of the northeast quarter, or the east half might also be taken only of the quarter section. The quan- tity will solve the doubt."" The deeds made by sheriffs upon execution sales — and tax deeds, even more — contain often very short descriptions, and these are couched mainly in figures and abbreviations, such as "i S." or "^ §" for "quarter section," "Tp." for "township," etc.; the points of the com- pass being expressed only by the initials, "N. E., S. W." This con- cise mode of description, so long as it can be plainly understood by persons acquainted with conveyancing, is good enough to pass the title.'" And so, also, if the meaning of the description can be made out as a matter of fact, in the light of all the surrounding circum- stances." But the words "part" or "corner" or "fraction," though located in some side or corner of a greater tract, if not aided by quantity, are vvholly uncertain. The court cannot say that "part," the sides running north, east, south, and west, with the cabin in the center. And in a very recent case, in accordance with possession talien and held for some time, a similar construction was put on a contract for 1,000 acres "around, circumjacent and adjoining said mine." Santa Clara Min. Ass'n v. Quicksilver Min. Co., 8 Sawy. 330, 17 Fed. 657. 8 8 Goodbar v. Dunn, 61 Miss. 618. 60 Davis V. Hess, 103 Mo. 31, 15 S. W. 324, quoting Burnett v. McCluey, 78 Mo. 676; Prior v. Scott, 87 Mo. 303; Wolfe v. Dyer, 95 Mo. 545, 8 S. W. 551. In Illinois a part of an 80-acre lot, containing 64 acres, and denoted as the execution defendant's property, was passed by the sheriff's deed ou proof that the defendant owned a certain tract of 64 acres. Colcord v. Alex- ander, 67 111. 581. TO Nearly all the descriptions in eases quoted In notes 4 and 8 are in abbre- viations. 71 In Reed v. Proprietors of Locks & Canals, 8 How. 274, this instruction was held free from error: "If the jury believe from the evidence, looking at (39) I 6 LAND TITLES IN THE UNITED STATES. [Ch. in such a connection, means lialf, or tliat "corner" means one-fourtl and the deed which gives no better description must be treated a void; location unaided by quantity being insufficient, just as quar tity alone, without location, will not identify the thing conveyed.' It is also destructive to the certainty of the deed to name as the thin conveyed a well-defined tract, excepting therefrom undefined parti that are to be excluded from it, — for instance, such parts as ma have been previously granted, — unless such parts can be identifier fey proof outside of the deed. Should the claimant under the deei with the undefined exclusions bring his ejectment, he must fail, ur less he can show what parts are excluded; for otherwise, until h does, he has not shown title to any one spot of ground.'^ But thi doctrine has been much assailed, with the contention that the gran is valid, and only the exception void.^* monuments, length of lines, and quanjities and actual occupation, that it wa more probable that the parties intended to include the demanded premise than otherwise, they may give their verdict for [the grantees]." '2 "S. E. part of S. E. i^," bad. Tierney v. Brown, supra. So is "S. E eorner" of a named quarter section, and "the S. "W. fractional part of the ^ %" of another quarter section. Morse v. Stocliman, 73 Wis. 89, 40 N. Yi fi79. "Part of lot 285, square 59, Vieksburg," void. Cogburn v. Hunt, 5 Miss. 675. In short, when the locatioH is wholly uncertain, the conveyane is void. Glenn v. Malony, 4 Iowa, 515. "About 100 acres" out of a de scribed tract of 400 acres was held void in Peck v. Mallans, 10 N. Y. 50£ Boardman v. Reed, 6 Pet. 328, is often- quoted as to deeds becoming void b; uncertainty. So "752 acres, including the land I now live on," was held t eonvey only the home farm of the grantor, but to be void for uncertaint; as to the rest, as he owned much more adjoining land than that quantity liobeson v. Lewis, 64 N. C. 734. There was "incurable uncertainty" in Jj France v. Richmond, 5 Sawy. 601, Fed. Gas. No. 8,209; the first call startinj from a creek several thousand feet long, and nothing in the descriptioi identified it. So "the S. W. quarter sec, being 40 acres," one-fourth of i quarter section must be meant, and the uncertainty is insoluble. Gampbel Y. Johnson, 44 Mo. 247. '3 Chandler v. Green, 69 Me. 350. Grantee of "lot 10, except what hai been conveyed out of it to J. S.," can recover no part until he shows a dee( to J. S. conveying part of that lot, but can recover the residue if he does So, "my home place, except so much as may be laid off as a homestead," ii within certum est, etc. Ex parte Branch, 72 N. C. 106. The reservatioi of a strip not fully defined for a right of -s^ ay does not defeat a grant for un certainty. Torrey v. Thayer, 37 N. .7. Law, 339. Ti Moonev v. Cooledee. 30 Ark. 640. Ch. 2] DESCRIPTION AND BOUNDARY. § 6 And here is the place to speak of "inclusive grants," popularly known as "blanket patents," which have caused so much confusion in the land system of "Virginia, North Carolina, Kentucky, Tennessee, and West Virginia. The land grants in these states were made, under the laws dating from 1777 down to very late times, in tracts of any size or shape for which the purchaser would offer either mil- itary warrants, treasury warrants, or money. Already before 1788, speculators in Virginia lands found it convenient to take their patent for a large tract, out of which many smaller surveys had been cut without hunting up the returns of these surveys in the several counties, and reciting them in the patent; but by inserting the sum total of the exclusions in acres the purchaser saved the price of so many acres. A Virginia act of June 2d of that year legalized this course, and many of these "inclusive grants" were thereupon issued.'" In Kentucky the true principle was applied: he who claims title under a grant has the burden of proof to show what has been granted; and the patentee of a large tract, from which two small surveys of named quantity were excluded, was cast in an ejectment, being unable to find or locate the two reserved surveys.'^" In sub- sequent Kentucky cases, patents granted under modern Kentucky laws for very large tracts, with exclusions stated only in acres, so as to get a saving on the price, but not giving even the names of the supposed owners of the reserved surveys, were held void in toto, as frauds on the commonwealth, and snares to other locators; with a tendency, however, in the later cases, to recede from this stern doctrine." In Virginia, on the contrary, great and unde- served favor has been shown to the holder of an "inclusive grant," 7 Section 86. See Hen. St. Va., reprinted in 1 Lltt. Laws Ky. p. 4G0 (Acts 1788): "Whereas sundry surveys have been made, * * * which include in the general courses thereof sundty smaller tracts of prior claimants, and which in the certificates « * * are resei-ved to such claimants; and the governor is not authorized * • * to issue grants upon such certificates: * • * Be It enacted * * * that it shall be lawful for the governor to Issue grants with reservation of claims," etc. 7 6 Madison's Heirs v. Owens, Litt. Sel. Cas. 281. In accordance with the cases quoted in note 73, Scott's Lessee v. Ratliffe, 5 Pet. 80, on the same patent, is decided in like manner. 77 Hamilton v. Fugett, 81 Ky. 366; Hillman v. Hurley, 82 Ky. 626; Roberts V, Davidson, 83 Ky. 281. In the third of these cases the effect of declaring (41) § 6 LAKD TITLES IN THE UNITED STATES. [Ch. 2 even when the exclusions were stated in acres only, and when he could not identify the excluded parts either by the words of his patent, or by proof outside of it. An earlier Virginia case proposes to give to such a patentee everything within the outer boundary to which no good prior claim is shown, thus reversing the rule above stated, but later cases do not go so far.'^ West Vir- ginia, and the supreme court of the United States, acting on pat- ents in that state, have reprobated the older Virginia views, with- out, however, holding these patents, with unnamed exclusions, to be void.'" In Tennessee, also, to which this crude mode of granting the public lands was transplanted from North Carolina, inclusive grants, by which large tracts could be fraudulently gotten for a trifle, the exclusions being feigned only to reduce the purchase money, have been sustained.^" But even where the principle of certainty in deeds is most firmly sustained the description need not be complete on its face. In the words of some judges "it is not the office of the description to identify the premises, but to furnish the means by which they can be identified," which is only an application of the maxim, "Certum est quod certum reddi potest." '^ Hence many descriptions have been held certain enough which contain neither natural objects, nor monuments, nor references to the national surveys, nor courses the patent void was much weakened by the distinction that the land within the outlines of the patent was no longer vacant, and therefore not open to new purchasers from the commonwealth. In the later case of Hall v. Martin, 89 Ky. 9, 11 S. W. 953, in which the number of acres excluded was not stated, and the state price for the whole tract must have been paid, the patent was sustained, as the excluding clause amounted to no more than ypbat the law would have implied. 7 8 Hopkins v. Ward, 6 Munf. 38. Contra, Nichols v. Covey, 4 Rand. (Va.) 365. T> Armstrong v. Morrill, 14 AVall. 143; Bryant v. Willard, 21 W. Va. 65. so Bowman v. Bowman, 3 Head. 47, a case arising within the strip south of Walker's line, over which the jurisdiction belongs to Tennessee; but the soil, by an agreement made in 1821 upon the settlement of boundaries, until sold, remained with Kentucky. 81 Eucker v. Steelman, 73 Ind. 396. The phrase is repeated In Works v. State, 120 Ind. 119, 22 N. E. 127, and given also in the form, "Certum est quod certum reddi potest." In the former case it was held immaterial that land otherwise well described was said in the deed to lie in two named sur- (42) Ch. 2] DESCRIPTION AND BOUNDARY. § 6 and distances, but speak of the premises only as "the home place" of the grantor, or as his "dwelling house" within a named city, or as the "farm occupied and cultivated by him," or designate it by some popular name.*= Or, again, the land may be fully identified as being the lot surrounded by that of A., B., C, and D., if it turns out that the grantor does at the time own a tract of land which is really surrounded by the tracts of A,, B., C, and D. The boundaries of these latter tracts may be ascertained from the patents or deeds under which they hold. Or the grant may embrace all of a known tract, "except the widow's dower," which is a sufficient reference to the legal proceedings in which dower was assigned. Some of the decided cases go to, or beyond, the verge of a sound distinction between what is certain and what is utterly vague. Thus, the deed of a master in chancery setting out metes and bounds, was sus- tained in North Carolina, though it had nothing better to stand on than a decree for selling the tract of which "J. B. died seised veys, when in fact it lay in three; and the land lying within the third passed by the deed. Chief Justice Marshall, in Blalie v. Dcherty, 5 Wheat. 359, 362, says: "It is not necessary that the grant itself should contain such a de- scription as, without the aid of extrinsic testimony, to ascertain precisely what is conveyed." Quoted in Cox v. Hart, 145 U. S. 376, 389, 12 Sup. Ct. 962. So, also, Slater v. Breese, 36 Mich. 77. 8 2 "The 141%-acre lot known as the 'Old J. W. Farm,' " in a named township, being aided by parol evidence as to place of farm. Trentman v. NefC, 124 Ind. 503, 24 N. E. 895. A right of way through certain lots being granted to a railroad, "such line being along line as laid out by H. C. K.," with proof that it was already run. Thompson v. Southern California Motor-Road Co., 82 Cal. 497, 23 Pac. 130. So the "McLeod Wood ranch, about 45 miles north of," etc., is sufficiently certain. Paroni v. Ellison, 14 Nev. 60. But "lot and •residence in Madison station" is too uncertain. Bowers v. Andrews, 52 Miss. 596. A lot located by block and lot number in a village by its popular rather than its legal name (Port Washington instead of Wisconsin City) is well described. Mecklem v. Blake, 19 Wis. 397. A popular name, such as the "Knapp House Property," will extend to all the land which goes by it Goodenow v. Curtis, 18 Mich. 298. Reputation is admissible what such a name (e. g. the Mill spot), found in a deed, includes, and what not. Woods V. Sawin, 4 Gray, 322. Tract "containing ten rods, more or less, at D., with a house thereon, owned in common with R.," is sufficient to pass the house and lot, and one across the road, thus owned. JefCers v. RadclifC, 10 N. H. 242. See, also, Falls of Neuse Manuf'g Co. v. Hendricks, 106 N. C. 485, 11 S. E. 568 ("land on which he now lives"); Farmer v. Batts, 83 N. C. 387. (43) § 6 LAND TITLES IN THE UNITED STATES. [Ch. 2 and possessed, in the county of Guilford, on the waters of S. Q., adjoining the land of " (leaving a blank); the court holding that there was enough by which to identify the land, with the aid of parol evidence. ^^ And though a sheriff's deed can speak only by its own terms, and cannot, if unintelligible, be helped out by proof of intention, yet in such a deed, as well as in one inter partes, a tract of land may be denoted by the name which it bears in the community, and by which it is known, as well as by metes and bounds or courses and dis- tances. Such a deed has also been held good when lines were stated which do not wholly surround the lot to be conveyed, but which, in connection with other proof, will identify it.** But, where the description in a sheriff's deed is so vague that it may ap- ply equally well to either of two tracts (especially if both tracts were subject to be levied on and sold under the execution) the deed cannot be sustained, though a similar uncertainty in a priva:te deed might be helped out by proof of outward circumstances bearing on the intention of the parties.** S3 "Begins at a pine in R.'s line, thence running witli K.'s line, thence binding on L.'s line, thence to first station, including 25 acres," was helped out by principle announced in Campbell v. Brancli, 4 Jones, 313, as to mode of maliing line called for, and by parol proof. Allen v. Sallinger, 108 N. C. 159, 12 S. E. 89G. So many acres "lying on the north and east of" "a named lot, subject to dower of" named widow, good both as to inclusion and exclusion. Parler v. Johnson, 81 Ga. 255, 7 S. E. 317. The uncertain de- scription in the deed from one part owner to the other may be cleared up by boundaries of the whole tract and by the deed for the other part made in return. Fuller v. Carr, 33 N. J. Law, 157. 8* Many cases in preceding notes grew out of sheriff's deeds. Also Hart v. Rector, 7 Mo. 532, where levy, sale, and deed were of an undivided part "of the Booneville tract, in Cooper county, on the south side of the Missouri river," on proof of the notoriety of the land under that name. Landes v. Per- kins, 12 Mo. 239; Bates v. Bank of Missouri, 15 Mo. 309; Bank of Slissourl V. Bates, 17 Mo. 583, where the court passes on what proof is necessary for identifying the named tract. Great looseness of description was formerly al- lowed in Kentucky, on the ground that the purchaser gained rights by his bid, which he could not lose by the subsequent neglect of the sheriff in writing the description. McGuire v. Kouns, 7 T. B. Hon. 387. For what is now deemed a sufficient description in that state, see Bell v, Weatherford, 12 Bush, 506. 85 Dygert v. Pletts, 25 Wend. (N. Y.) 402. (44) Ch. 2] DESCRIPTION AND BOUNDARY. § 7 Where the parties themselves make the conveyance, the "utmost liberality," it is said, should be applied to gather the intent, "ut res magis valeat quam pereat," and, if there be a conflict in the lines, to reconcile them in the best possible way, rather than treat the deed as a nullity.*" Though it is usual to begin the words of description in a deed, title bond, or other instrument concerning land, with the name of the state, county, and city or township in which the land lies, this is by no means necessary. Every state takes notice of the United States land laws, and of the principal meridians, ranges, townships, sections, quarter sections, and the halves and fourths of quarter sections, as they are laid out and surveyed under those laws.*^ But, even when the land is not thus described, it may be inferred from the evidence of the parties in what state or county the land lies; and, if the description fits some lot in such state and county, it will not be rejected as vague, because it might possibly fit some other and far distant locality.** § 7. Ambiguity. As a general principle, a written document cannot be varied by parol evidence, and this applies as well to deeds and wills as to executory contracts. Parol — or, more generally speaking, extrin- sic — evidence is, however, admissible in the interpretation of deeds and wills, and this in two classes of cases: The first when the writing uses a word or set of words, which, in its nature, can be "located" only by outside proof. For instance when a deed conveys the grantor's "dwelling house," extrinsic evidence must be brought forward to show where that house is, and what its boundaries are ; and this, we have seen, may be done, on the principle of "certum est 88 Mason v. White. 11 Barb. (N. Y.) 173. " Ives v. Kimball, 1 Mich. 313; German Mut Ins. Co. v. Grim, 32 Incl. 240. If the "monuments can be imagined" which will verify the description, it may be helped out by proof aliunde, is the language in Blake v. Doherty, 5 Wheat 359, quoted in Bosworth v. Farenholz, 3 Iowa, 84, and Pursley v. Hayes, 2i Iowa, 11. 8 8 Atwater v. Schenck, 9 Wis. 160; Russell v. Sweezey, 22 Mich. 235. And the omission of the land district is immaterial where no doubt about it can exist Long v. Wagoner, 47 Mo. 178. (45) § 7 LAND TITLES IN THE UNITED STATES. [Ch. 2 quod certum reddi potest." '* The other case is that of a latent am- biguity."" Where the uncertainty appears openly on the face of the deed, — thus, if one should convey one quarter of a section, without stating which, — the ambiguity is said to be patent, because the section is bound to have four quarters. But if he should convey section 15 in a civil township which contains two congressional townships, or even in a county which very probably contains many of them, the ambiguity is said to be latent."^ It does not appear 89 This has been shown under the head of "Certainty." The seven rules of Vice Chancellor Wigram are much oftener applied in the interpretation of wills than of deeds, and much oftener in determining the party who is to receive a devise than to the description or identity of the land or other thing devised. The fifth rule of Wigram is stated in the following words: "For the purpose of determining the object of the testator's bounty, or the subject of disposition, or the quantity of interest intended to be given by his will, a court may in- quire into every material fact relating to the person who claims to be inter- €sted under the will, and to the property which is claimed as the subject of disposition, and to the circumstances of the testator and his family or affairs, for the purpose of enabling the court to identify the person or thing intended by the testator, or to determine the quantity of interest he has given by his will. The same (it is conceived) is true of every other disputed point respect- ing which it can be shown that a knowledge of extrinsic facts can in any way be made ancillary to the right interpretation of the testator's words." Green- leaf in his Law of Evidence (volume 1, § 287), in a note to which Wigram's rules are quoted, says in regard to them that there is no material difference in principle between wills and contracts. 9 Wigram's rule on this subject (No. 7) is worded thus: "Notwithstanding the rule of law which makes a will void for uncertainty where the words, aided by evidence of the material facts of the case, are insufficient to de- termine the testator's meaning, courts of law, in certain special cases, admit extrinsic evidence of intentions to make certain the person or thing intended, where the description of the will is insufficient for the purpose. These cases may be thus defined: Where the object of the testator's bounty or the subject of disposition (1. e. person or thing intended) is described in terms which are applicable indifferently to more than one person or thing, evidence is admis- sible to prove which of the persons or things so described was intended by the testator." The seventh rule dates back to Bac. Max. reg. 25: "Ambiguitas latens is that which seemeth certain and without ambiguity for anything that appeareth upon the deed or instrument, but there is some collateral matter that breedeth the ambiguity." And he says about such an ambiguity: "Quod ex facto (i. e. by matters not in the deed) oritur ambiguum, vereficationl efacti (by averment of outside matter) tollitur." »i Stevens v. Wait, 112 111. 548, undoubtedly well decided, as a civil town- (46) <^h- 2] DESCRIPTION AND BOUNDARY. § 7 on the deed itself, and, as it has been proved by facts outside of it, such facts may also be admitted to remove it, e. g. the fact that the grantor owns no land except in one township Avithin the territory, or, if the deed spealis of any class of buildings, that such buildings are to be found only in one such township."^ Thus, where the line between towns is given as one of the calls of a deed, this would, on its face, appear free from all ambiguity. But it may appear that, by a usage of long standing, a line different from that established by record is treated as the town line by the authorities of both towns, and is by the people of the neighborhood thought to be the true one. Here the ambiguity arises out of this outside fact, whether the parties to the deed meant the record, or the customary line.°^ In like manner, an ambiguity may arise, whether one-half of the highway is included in the grant of an adjoining lot; also 'vhether the depth of the lot is to be measured from the side, or from the center line outward. The question is here not between latent and patent ambiguity, but between ambiguity and the cer- tain meaning of the words of description; and the decisions on the point, even in the same state, are rather conflicting."'' ship oftenest coincides wholly or nearly with the congressional township, and the person reading the deed would not expect that the former contains two of the latter. But in Bybee v. Hageman, 66 111. 519, where the numbers of town- ship and range were omitted, and the location of the subdivision was placed in McDonough comity, the reasoning is forced, for a county must be supposed to contain more than six miles square. The general doctrine is recognized by the United States supreme court in Reed v. Proprietors of Locks & Canals, 8 How. 274, quoted elsewhere; and by the supreme court of ;Massachusetts in Miles v. Barrows, 122 Mass. 579. Compare Goff v. Roberts, 72 Mo. 570, where a sale, by the terms of a deed of trust, was to be made at the court- house of a town; it appearing that two buildings were known as "the court- house," further evidence was admitted to show which was meant. 8 2 Compare Bank of Missouri v. Bates, 17 Mo. 583, quoted elsewhere, as to proof to identify 35 acres described as lying in a named quarter section. Township, section, etc., in a tax deed, good without the county, as the name of the granting tax officer supplies it. Lewis v. Seibles, 65 Miss. 251, 3 South. 652. 3 Putnam v. Bond, 100 Mass. 58, distinguishing Cook v. Babcock, 7 Ciish. 526, where, the true line having just been defined by act of the legislature, evi- dence aliunde was not admitted, but approving Hall v. Davis, 36 N. H. 569, which is to the same effect. 4 Or, generally, the circumstances under which the deed was made may be proved; Stanley v. Green, 12 Cal. 148. (47) § T LAND TITLES IN THE UNITED STATES. [Ch. 2 Some descriptions which have been aided by outside evidence, as not being uncertain on tlieir face, would appear so to the unprej- udiced reader; and the decisions holding that the uncertainty was latent, and may be thus aided, must be studied separately, as it would be hard to classify them."'* An effort has often been made, where a deed, and still more, where a will, defeats the supposed in- tention of the grantor or devisor, to carry a supposed uncertainty into the meaning, in order to remove it by proof of intention. This is tried oftener with wills than with deeds; for, while an error or omission in a deed may be corrected in equity for fraud or mistake, the chancellor has no competence to correct a mistake or to sup- ply an omission in a will. The courts must, however, repress all attempts to set up the proof of intention against written deeds or wills. Thus, in a leading case, where a testator devised "the farm which I now occupy, with the crops on the land," evidence was not admitted that a part of his farm which he had leased out for a num- ber of years before the date of the will was intended to be included, as the description is certain, and no ambiguity can be carried into it."* The evidence which is most frequently and most properly used to clear up an ambiguity in the description is the action of the par- ties, at or near the time of i"he conveyance, in setting up their monu- ments, or in erecting fences or walls, each holding and occupying on one side thereof.^' Such action comes, in effect, to pretty much the same as an agreement upon a disputed boundary, but is by no means the same thing. We have not to do here with the compromise of a dispute, nor with an endeavor to find the true position of a doubtful line, but with the unconscious construction which the par- 9 5 In Lane v. Thompson, 43 N. H. 320, the court rejected part of a descrip- tion to carry out the intent of the parties. 9 s Warren v. Cogswell, 10 Gray, 76 (deed); Jackson v. Sill, 11 Johns. 201; Brown v. Saltonstall, 3 Mete. (Mass.) 423 (under will, very similar to case in text). For the general principle that proof is allowed to explain, but not to contradict, see Stevens v. Wait, 112 111. 544, 548. 9' Compare what is said as to contemporaneous construction in the two pre- ceding and in the next following sections, and authorities there cited. But a previous memorandum was used in Lyman v. Gedney, 114 111. 388, 29 N. 10. 282. All the circumstances must be considered. Bell v. Woodward, 46 N. H. 315. (48) Ch. 2] DESCKIPTION AND BOUNDARY. § 8 ties give to the words of a grant or devise, without being conscious at the time that there is any room for dispute or uncertainty. If the words had two meanings, the choice between the two has once been made, and, being once made, must stand.** We refer for a further discussion of the facts admissible to solve questions of ambiguity in denoting the land which is meant to be conveyed, or otherwise disposed of, to the note on the "Admission of Extrinsic Evidence in the Interpretation of Wills" (in the chapter on "Devise"), in which ambiguity in the boundaries, as well as in the person who is to take the land, will be dealt with. § 8. Agreed Boundaries. Often neighboring landowners agree on a disputed boundary, draw- ing a line and marking it by a fence or otherwise, or they sub- mit the dispute to a lawyer or surveyor, upon whose instructions, or by whom, the boundary is run, and is thereupon marked. The agreement is at any rate an admission that the line is the cor- rect line, unless a new line is intentionally run, and such an admis- sion is evidence."® Possession up to such a line is adverse, and will ripen into title under the statute of limitation, but so might possession without agreement. The question to answer is this: The agreement being made without a writing, or without one which satisfies the statute of frauds, and the possession having not lasted long enough to ripen into a title, will the agreed line hold good, if, upon a new survey, it turns out not to be the correct, line? The deci- sions of the several states are not in harmony, though most of them profess to follow the same principles. To some extent, the full- ness with which the statute of frauds has been re-enacted, and the spirit in which it is construed, have their bearing. In some states, e. g. in Kentucky, there is no provision that a trust other than a resulting or implied trust in lands cannot be raised, except by writ- ing; and in these and some other states the law of conveyance, re- 8 Linney r. Wood, G6 Tex. 22, 17 S. W. 244; Stone v. Clark, 1 Mete. (Mass.) 378; Dunn v. English, 23 N. J. Law, 12G; Lego v. Medley, 79 Wis. 211, 48 N. W. 375. 9 9 Wilson V. Hudson, 8 Yerg. 398 (decisive where the other evidence is con- tradictory); Boardman v. Reed's Lessee, 6 Pet. 328. LAND TITLES V.l i (49) § 8 LAND TITLES IN THE UNITED STATES. [Ch. 2 quiring a deed or ^Yill to transfer land, and which takes the place of another section of the statute of frauds, seems to be ignored, and that section which says "no action shall be brought on any contract" is construed narrowly, so that a defense may under some circum- stances be maintained on the unwritten contract. Hence, in Ken- tucky, when an unwritten boundary agreement is carried out by running the line, and taking possession in accordance with it, such agreement becomes binding without regard to the length of the pos- session; but an agreement to change the established line, or to de- liberately run one differing from that drawn by the law, if in parol, cannot be enforced.^"" In Pennsylvania, also, an agreement to run a boundary line, in the way of settling a dispute, is deemed binding, and, though by parol, is not deemed within the statute of frauds; and, when the line has been actually run, no particular length of possession in accordance with it seems to be necessary.^" So in Missouri a verbal agreement for locating a division line, followed by possession and improvements, is not within the statute of frauds, and is binding on parties and privies, if tire intention of the parties was that the agreed line should hold good, whether it be the true one or not.^°^ In Texas the very large grants made in Mexican times, and during the days of the republic, upon hasty and inaccu- rate surveys, have made boundary disputes, and, with them, compro- mise lines, very frequent, and quite a number of them have lately come before the supreme court of the state. The agreed line is 3 00 Brown v. Heiis of Crow, Print. Dec. 106, 108, not put upon the ground stated in the text, but relying on the decree of the chancellor in Perm v. Lord Baltimore, in 1 Ves, Sr. 444; also, Jamison v. Petit, 6 Bush, 670; Smith T. Dudley, 1 Litt. (Ky.) 67; MiUer v. Hepburn, 8 Bush, 333, where an accretion from the river was divided otherwise than it would have gone by law. Contra, Robinson v. Com, 2 Bibb, 125. In Atchison v. Pease, 96 Mo. 566, 10 S. W. 159, such an agreement was held not to be within the statute of frauds. It will be shown hereafter that the Kentucky court of appeals has receded from the distinction between actions and defenses in other than boundai-y disputes. 101 Bo wen v. Cooper, 7 Watts, 311; Perkins v. Gay, 3 Serg. & R. 327, quoted with other cases in Kellum v. Smith, 65 Pa. St. 86, 89, which restores an older compromise line in case a later one should be set aside for fraud. 10 2 Taylor v. Zepp, 14 Mo. 488; Blair v. Smith, 16 Mo. 273, which has been followed in other states; and other cases cited in Kineaid v. Dormey, 47 Mo. 337. Secus, if the line is fixed upon as a temporary expedient. (50) Ch. 2] DESCRIPTION AND BOUNDARY. liere held binding, if it have been acquiesced in for some years, though for a time less than that of limitation, and the tendency is rather to shorten the time. Nor can one of the owners avoid the agreement on the ground that he had mistakenly thought the agreed line to be the true line.^"' In Ohio and Tennessee three conditions must concur, to give effect to the agreed line: First, both of the parties who concur in running it must be owners at the time, — that is, neither of them must be a simple occupant or a trespasser on the ground which he undertakes to define; secondly, the obligation must be reciprocal, which it would, indeed, hardly be, unless both parties were owners ; thirdly, there must have been no previous and different line already established, otherwise the agreement would amount to a conveyance of the intervening strip of land. And even then it seems doubtful whether anything less than 21 years' possession will suffice in Ohio.^°* In Arkansas it has been said that the neighboring owners may, without a writing, es- tablish an arbitrary line as a boundary between them, and that ac- quiescence will make such an agreement good; nay, that the agree- ment may be inferred from long acquiescence. So also in Flor- ida.^"^ In Delaware the court thought that an express agreement for running a boundary line, though without a writing, if followed by possession, was better than an acquiescence of 20 years, on the ground that the fact itself is better than presumption of the fact.^"" And in Xew Hampshire, when there is a dispute about the bound- ary, a line agreed upon, or run by a surveyor in pursuance of an agreement, is conclusive.^" Many of the cases in which this doc- 103 Coleman v. Smith, 55 Tex. 254; Coopei- v. Austin, 58 Tex. 494. And the line is binding in favor of purchasers in good faith, who have made improve- ments, even if it has been obtained by misrepresentation. Hefner v. Down- ing, 57 Tex. 576. 104 Walker v. Devlin, 2 Ohio St. 593. There was a call for a natural object; hence the line did not come within the rule. Otherwise in Lewallen v. Over- ton, 9 Humph. 76, and other Tennessee cases thete cited. McAfCerty v. Con- over, 7 Ohio St. 99; Yetzer v;'Thoman, 17 Ohio St. 130. 105 Jordan v. Deaton, 23 Ark. 704, quoting early New York cases, and Blair v. Smith, 16 Mo. 273, supra; Watrous v. Morrison, 33 Fla. 261, 14 South. SOo (quaere). 108 Lindsay v. Springer, 4 Harr. (Del.) 547. 107 Gray v. Berry, 9 N. H. 473; Orr v. Hadley, 36 N. H. 575, where other cases in the same state are quoted. (51) § 8 LAND TITLES IN THE UNITED STATES. [Ch. 2 trine is laid down were actions of trespass. Tlie defendant can always justify his cutting of timber, or other acts of ownership, be- tween the agreed line and the supposed true line, by a license, and such the agreement would amount to, at any rate; but the license can, of course, be revoked, and this will bring into question the binding force of the boundary agreement, which is, in most instances, put upon the ground of estoppel, or of a promise not to sue.^°* In North Carolina the line run by agreement seems to serve only as a revocable license,^"" while in Maine and Rhode Island a possession for such time "as will give title by disseisin" seems to be required to give effect to the line.^^° In Massachusetts and Maine an agreed line made by neighbors soon after their deeds have been received is deemed binding, and not within the statute of frauds, upon the theory that it is but supplying by monuments the line to which the deeds refer, and which must have been in the minds of the parties at the time of the deeds. This would not authorize a parol agreement on a new line, where one was already visibly marked.'^^ Nebraska also recognizes the agreed location of an "ambiguous" line as an estoppel. ^^^ In Illinois a similar rule is established by early cases.^^^ But in order to reconcile the New York decisions, of which there are a great number, we must go into all the limiting details of the rule as recognized in the preceding states: First the mere acquiescence of the parties in a "practical location" is nol treated in New York as proof of an express agreement; secondly, there must have been a real uncertainty about the dividing line, and a dispute to be compromised, in order to render an agreement about it valid. When these two conditions — uncertainty and dis pute — concur, there is a good consideration, and the statute of frauds is not in the way of an actual agreement, though unwritten, if followed by a marked line, and possession up to the line. But 10 8 Kip V. Norton, 12 Wend. 127, 130, arguendo; following Jackson v. Ogden, 7 Johns. 245, and RockAvell v. Adams, 6 Wend. 4CT; and passim in cases quoted above. 109 Palmer v. Anderson, 63 N. C. 365. 110 Moody V. Nichols, 16 Me. 23; Wakefield v. Ross, 5 Mason, 16, Fed. Cas. No. 17,050. 111 Makepeace v. Bancroft, 12 Mass. 469; Knowles v. Toothaker, 58 Me. 173. ii3Trussel v. Lewis, 13 Neb. 415, 14 N. W. 1.".. 113 Stuyvesant v. Tompkins, 9 Johns. 61; .Jat-ksun v. Douglas, 8 Johns. 286. (52) ^^- 2] DKSCKIPTION AND BOUNDARY. § 8 two lines of decision run side by side tlirough the New York courts, and the distinction is not clearly set forth, though the results reach- ed are diametrically opposed. In 1809 the court of appeals quoted from a somewhat older case, that "something more than agreement, and possession according to it for a few years, is necessary to con- fer a title or create an estoppel," and "in all cases in which practical locations have been confirmed upon evidence of this kind, the ac- quiescence has continued for a long period, rarely less than twenty years"; and cases are quoted, both from Illinois and from New York, s^•nere possession along an agreed boundary for four or five years, for eight years, for eleven years, for anything short of the bar of limitation, was deemed insuflicient, and at last it was held that no shorter time would serve.^^* Yet in the older cases here relied up- on, the doctrine is plainly laid down that where a line is uncertain, and in dispute, adjoining owners can fix it by agreement, which will work, not as a conveyance, but as an estoppel (especially where expfense has been incurred in improvements), and be binding on par- ties and privies, and no particular length of acquiescence seems necessary, where the agreed line has been staked out, and posses- sion taken in accordance with it, and these older cases have been fol- lowed up in late years.^^^ A division fence is not necessarily an agreed boundary. It may have been set up to keep out cattle, or merely for peace. Some of 114 Perhaps the c.ises can be reconciled on this distinction. Where the parol agreement fixes the most likely position of the old line, which is uncer- tain, it will stand; while, where it avo\Yedly fixes a new line, it is void under the statute of frauds. Vosburgh v. Teator, 32 N. Y. 561 (new boundary cannot be run by parol). The departure is made in Baldwin v. Brown, 16 N. y. 363, while the preceding case of Jackson v. McConnell, 19 Wend. 175, demanded an acquiescence of 20 years only where no agreement or "actual location" had been shown. Reed v. McOourt, 41 N. Y. 435, 441, speaks of "prob- ably not less than 20 years," as necessary to consecrate a compromise line; and the 20-year limit is reached in .Jamison v. Cornell, 3 Hun, 557. On the distinction that there must have been a real uncertainty, see, also, Terry v. Chandler, 16 N. Y. 354; Teass v. City of St. Albans, 38 W. Va. 1, 17 S. E. 400; Watrous v. Morrison, 33 Fla. 261, 14 South. 805; Ferguson v. Crick (Ky.) 23 S. W. 668. H5 Reed v. McCourt, 41 N. Y. 435. See cases quoted in note 108, and the older case of Jackson v. Dysling, 2 Caines, 198, where it is said to be imma- terial whether the parties, when locating the line, knew or did not know (53) § 9 LAND TITLES IN THE Q-NITED STATES. [Cll. the older New York cases went off on this point. So does a Mict igan case, in which the supreme court of that state avoids an opin ion on the law of "practical locations." ^^^ Wisconsin demand possession for a "long time, though not exactly for the time barrinj an ejectment." '^' Where boundaries are agreed upon in writing, all objection fron the statute of frauds disappears, and, at least between parties wh( are sui juris, there is an "undoubted defense" to any attempt to re cover the true limits as afterwards admeasured.^^* As, generally speaking, the. sovereign cannot be bound by estop pel, the limits of land held by the state for some special purpos( (e. g. for schools) cannot be lessened by the attempt of a state O'l county surveyor to run a line which is to separate the lands so ownec by the state from those of a neighboring private owner.^^' § 9. Incidents and Appurtenances. The old form of a deed adds, after the description of the landt or tenements conveyed, words like the following: "with all the privileges and appurtenances thereto belonging or in any waj appertaining," or simply "with the appurtenances." It is doubtful whether these general words do, in any case, enlarge the effect ol the deeds.^^" The primary meaning of "appurtenances" is the ease nients and other incorporeal hereditaments enjoyed with the land their rights. The principles laid down in these older New York cases hav( been followed out in other states (e. g. in Arkansas) to their legitimate re suits. The more recent cases upholding a compromise location are Davis v Townsend, 10 Barb. 333; Laverty v. Moore, 32 Barb. 347; Vosburgh v Teator, 32 N. Y. 561; Williams v. Montgomery (1878) 16 Hun, 50 (not ap pealed). ii^o, also, on the Mississippi, between Illinois and Iowa (though the states share the river bed), the riparian owner in Illinois holds to the middle thread (as he does also in the state of Mississippi); he in Iowa, only to high-water mark.^*° In Michigan and Wisconsin it is a settled rule that the title of the riparian owner on inland waters, whether navigable or not (except on the Great Lakes), extends to the middle thread of the stream, or center of the pond or lake.^^* In Ohio (aside of the Ohio river, on account of the limited state jurisdiction) the same ruleprevails.^*^ The Great Lakes are always treated as inland seas with an outline "where the water usually stands, when free from disturbing causes." ^*^ On the other hand, some of the New England states,^^" New York, with some hesitation, and by the aid of local statutes enacted for 143 Virginia decisions, like Garrison v. Hall, 75 Va. 150, are mainly based on an act of 1791, not applicable to the Kentucky district, wbich forbade the grant of land below the bank of navigable rivers. See, also, Hayes v. Bow- man, 1 Rand. 417; Mead v. Haynes, 3 Rand. 33. In West Virginia (Towd of Ravenswood v. Flemings, 22 W. Va. 52, containing a full review of American authorities) the Ohio river is treated like tide water. The grantee holds only to the bank, and cannot, as against the municipality, erect wharves. In Ken- tucky, see, as to the Ohio, Berry v. Snyder, 3 Bush, 2G6; as to smaller rivers, Williamsburg Boom Co. v. Smith, 84 Ky. 372, 1 S. W. 765; Kentucky Lumber Co. V. Green, 87 Ky. 257, 8 S. W. 439. "i Handly's Lessee v. Anthony, 5 Wheat. 375; Booth v. Shepherd, 8 Ohio St. 247. 145 Middleton v. Pritchard, 3 Scam. 510; Fuller v. Dauphin, 124 111. 542, 10 N. E. 917; Morgan v. Reading, 3 Smedes & M. 366 (a leading case). 146 Fletcher v. Thunder Bay Boom Co., 51 Mich. 277, 16 N. W. 645; Webber V. Pere Marquette Boom Co., 62 Mich. 626, 636, 30 N. W. 469; Lorman v. Benson, 8 Mich. 18; Arnold v. Elmore, 16 Wis. 509, 51C; Jones v. Pettlbone. 2 Wis. 308. 14' Gavit V. Chambers, 3 Ohio, 496. 148 Sloan V. Blemiller, 34 Ohio St. 492. 149 In Adams v. Pease, 3 Conn. 481, the common-law definition is enforced; (64) Ch. 2] DESCRIPTION AND BOUNDARY. § 10 other objects,^"" and Pennsylvania, which bounds riparian owners on navigable rivers by low- water inark,^^^ have cut loose from the common-law distinction, adopting "the better doctrine of the civil law." And, in the same line, the supreme court of California says "that the Sacramento river being navigable in fact, the title of nothing but tide waters navigable. See, contra, Rowe v. Smith, 48 Conn. 444. On "navigable" rivers, grant extends only to high-water mark. Chapman v. Kimball, 9 Conn. 38; New Haven Steamboat Co. v. Sargent, 50 Conn. 199. In New Hampshire the common-law rule seems to be declared In Claremont v. Carlton, 2 N. H. 369. The position taken by the United States supreme court in Packer v. Bird, supra, — "most, if not all, of the New England states," have departed from the common-law rule as to what is "navigable,"— is hardly borne out. See, for Massachusetts, Com. v. Chapin, 5 Picli. 199, where Che Connecticut river above the tides was held not navigable. As to same river in New Hampshire, see Scott v. "Wilson, 3 N. H. 321. Still, it Is a public highway. 150 People V. Canal Appraisers, 83 N. Y. 365. The opinion aims to give the substance of the English and American decisions down to its date (1865). The English precedents are mainly: The Royal B'ishery of River Banne, Da v. Ir. K. B. 55; Warren v. Mathews, 6 Mod. 73, 1 Salk. 357; Carter v. Murcot, 4 Burrows, 2162; Mayor of Lynn v. Turner, Cowp. 86; Rex v. Smith, Doug. 441; Miles v. Rose, 5 Taunt. 705. There is a review of the older New York cases: Ex parte Jennings, 6 Cow. 518 (the old doctrine); Hooker v. Cummings, 20 Johns. 90 (none but salt-water rivers "navigable"). Palmer v. Mulligan, 3 Caines, 308, held otherwise, but Kent and Thompson, JJ., dissent in favor of the old doctrine. Case of Tibbits, 17 Wend. 571, treats the Mohawk as navi- gable. Canal Appraisers v. People, 17 Wend. 610, proceeds mainly on the acts of the legislature which deal with the Hudson, Mohawk, and Lake Cham- plain as public waters. Starr v. Child, 20 Wend. 149, as to the Genesee river,, was reversed in Child v. Starr, 4 Hill, 369, where it was held that a boundary running eastwardly to the river, "thence north^^ardly along the shore of the river," conveyed no part of the bed, bat the grantee took only to low-water mark. This case is rather doubted in Seneca Nation v. Knight, 23 N. Y. 498, in which "meanders" from a point In the bank are carried along the middle thread, as a zigzag line along the water's edge would be very inconvenient. In the late case of Smith v. City of Rochester, 92 N. Y. 463, the riparian own- er's lines are extended to the middle line of a small lake; and so, again, in Gouverneur v. National Ice Co., 134 N. Y. 355, 31 N. E. 865, and 32 N. E. 1014. See infra as to doctrine in other states. 101 Monongahela Bridge Co. v. Kirk, 46 Pa. St. 112, 120. Hart v. Hill, 1 Whart. 124, 137, brings the ownership down to the water's edge or low-water mark. In Wood v. Appal, 63 Pa. St. 210, on the Ohio river, it is "ordinary low-water mark," which would not include bars appearing in very low stages. LAND TITLES V. 1 5 (65) § 10 LAND TITI.KS IN THE UNITED STATES. [Ch. 2 the abutters extends no further than the edge of the stream." "* Since the supreme court of the United States, in the cases of The Genesee Chief and of Fretz v. Bull, extended the admiralty juris- diction over the great inland lakes and rivers, it has become par- tial to this doctrine, and it warmly approved the California, as it did the Iowa, ruling.^^^ Indeed, in some of its laws for the sale of pub- lic lands, congress has discriminated between rivers navigable and those not navigable; and the context forbids construing these words according to the common-law rule, which considers only tide waters navigable.^ ^* Except Iowa, the states rejecting this view generally confine the ri- parian owner to the "water's edge," leaving the question between low- water mark and high-water mark open, as the case generally turns on the ownership of an island.^^^ Minnesota, like Pennsylvania, lets the riparian owner on navigable waters come down to low-water mark, and allows him, with due regard to navigation, to project wharves and piers beyond that line.^'^" Kansas and Alabama treat their great rivers, as Iowa does, like tide waters, limiting the ripa- rian owner by high-water mark.^^' Some states have laid stress on such phrases as "by the side of or "by the margin of" a stream, as exclusive ; and where the description of land starts from the edge of a river, making the latter a terminus a quo, rather than ad io2 Lux v. Haggin, 69 Cal. 255, 10 Pac. 674, and next case, which were af- firmed in tlie United States supreme court. 153 Packer v. Bird, supra, note 135; The supreme court avows its willing- ness to construe federal grants by state law. The Genesee Chief and Fretz T. Bull will be found in 12 How. 443, 466. The former applies to Lake On- tario; the latter, to the Mississippi. 154 Act Jlay 18, 1796 (1 Stat. 468); Railroad Co. v. Schurmeir, 7 Wall. 272. 155 Passim in cases quoted "to the water's edge" or "to the water line''; e. g. Hart v. Hill, note 151. 150 Schurmeier v. St. Paul & P. R. Co., 10 Minn. 82 (Gil. 59), 7 Wall. 272; Union Depot Street Railway & Transfer Co. v. Brunswick, 31 Minn. 297, 17 N. W. 626; St. Paul, S. & T. F. R. Co. v. First Division St. P. & P. R. Co., 26 Minn. 31, 49 N. W. 303. 151 Wood v. Fowler, 26 Kan. 682. Though the Kansas and other rivers were declared in 1864 by act of the legislature "not navigable," they were Im- pliedly navigable before that time, and still remain so as to riparian owner- ship, which extends only to high-water mark. So, also, in Alabama. Mayor, «tc., of Mobile v. Eslava, 9 Port. 577; affii-med in U. S. Sup. Ct., 16 Pet. 234. (66) Ch. 2] DESCRIPTION AND BOUNDARY. § 10 quern, the intent to exclude the river bed may be more easily infer- red. Yet this is, and should be, but sparingly done. Even monu- ments on the bank do not, by themselves, indicate such exclusion, as they can hardly be placed lower down.^=^ But the courts of some of the states, in the matter of streams as well as of highways, are inclined to exclude the grantee on rather slender grounds.^ '^'' While the body of the Great Lakes is never subjected to riparian ownership, the ponds and smaller lakes, from half a mile to three miles in width, and up to ten miles in length, which abound in the Northwest, have caused much diflSculty. The supreme court of the United States has, on these lakes, taken the view most favorable to the riparian owner. It has always held that the meandering lines by which the surveyors bound the subdivisions of the public land bordering upon rivers, lakes, and ponds have no other effect than to fix the price at which the lands must be sold, but that they do not limit the rights of the purchaser over the adjoining land that is cov- ered with water, as far as that belongs by the local law to the ripa- rian owner.^"" In Michigan and Indiana it was held that the pur- chaser of a fractional lot (such as a quarter section) bounded by a nonnavigable lake takes only so much of the lake bottom as is re- quired to fill out the lot of which he has bought the fraction; and this rule has the authority of the Roman law, as well as convenience, to recommend it.^°^ New Jersey, lying along the sea coast, and hav- 158 Haight V. Hamor, 83 lie. 453, 22 Alt. 309. Contra, Hart v. Hill, supra, note 151. In Rockwell v. Baldwin, 53 111. 19, following Hatch v. Dwigbt, 17 Mass. 298, grantee under deed with call "to the west side of C. creek, thence down west line of said creek," etc., takes to the western bank only. Contra, King v. King, 7 Mass. 495; Gavit v. Chambers. 3 Ohio, 495. The meander lines are measured alouy the bank for the surveyor's convenience, wlio otherwise would have to wade throuRh the water; hence their high location proves nothing. ij9 Hosleton v. Dickinson, 51 Iowa, 244, 1 N. W. ■"i.^O ("east to Pine creek, thence N. E. up its west bank"); Whitehurst v. McDonald. 8 U. S. App. 164, 3 C. 0. A. 214, and 52 Fed. g:];;. 100 Middleton v. Pritchard. 3 Scam. 510; also, Jefferis v. East Omaha Land Co., 134 U. S. 178, 10 Sup. Ct. 518; approved in Hardin v. Jordan, 140 U. S. 371, 11 Sup. Ct. 808, S3,S. 131 Clute V. Fisher, 65 Mich. 48, 31 N. W. 614; Stoner v. Eice, 121 Ind. 51, 22 N. E. 968. The Human law on the subject is quoted in Hardin v. Jordan, supra, from Dig. lib. 41, tit. I., ft'. 7, 16; Lamprey v. State, 52 Minn. 181, 53 N. W. 1139. (07) ^ 10 LAND TITLES IN THE UNITED STATES. [Ch. 2 ing no great rivers in which the tide does not ebb and flow, has re- tained the English common-law doctrine, in all its fullness, both as to streams and lakes.^'^ The courts of Illinois draw a distinction between running waters, large or small, and a lake or pond, follow- ing therein an early New Hampshire precedent."'' The round or irregular shape of the latter, and the lack of current, render it diffi- cult to locate a middle thread, or even a center, and the riparian owner therefore takes only to the water's edge.^°* But the majori- ty of the supreme court of the United States (Brewer, Gray, and Brown dissenting), while claiming to act on the law of Illinois, ex- tended fractional lots on the edge of a small lake to its center, wherever that might be found; and setting aside the convenient rule of Indiana and Michigan, it carried the fractional lots much further than the lines of the full squares, over the reclaimed soil of the lake."= Where a ditch is made the boundary of a grant, half of its width goes to the grantee, just as half of a wall or stone or other monu- ment would go."° The highest authority has defined, in a contest between states, / 102 Cobb V. Davenport, 32 N. J. Law. 3fi9. 163 State V. Gilmanton, 9 N. H. 401, where the current or lack of current is made the test. 104 Seaman v. Smith (18G0) 24 111. 521, 523, as to Lake Michigan; Cortelyou V. Van Brundt, 2 Johns. 3.j7, furnishing the analogy as to the usual stage of the water; Trustees of Schools v. Schroll, 120 111. 509, 12 N. E. 2i3. as to the Mendosia Lake, which is about five or six miles long, and near the Illinois river. 105 Hardin v. Jordan. 140 U. S. 377, 11 Sup. Ct. 808, 838; Mitchell v. Smale, 140 U. S. 406, 11 Sup. Ct. 819, 840. The little lake in Question in both these cases has an outlet through ^Yolt river into Lake Michigan. The fractional lots granted by the United States are extended far beyond the full squares. In one case the purchaser of about 4% acres gets with them a reclaimed tongue of land of 25 'acres. S. P. in Tappendorff v. Downing, 76 Cal. 109, 18 Pac. 247. There is a very full review of authorities, among them Bris- tow V. Cormican, 3 App. Cas. 641, decided by the house of lords as to Lough Neagh, in Ireland. Among American cases not heretofore quoted, Ledyard v. Ten Eyck, 30 Barb. 102; Cobb v. Davenport, 32 N. J. Law, 309, 33 N. J. Law, 223; Ridgway v. Ludlow, 58 Ind. 248. Still later, Lembeck V. Nye, 47 Ohio St. 336, 24 N. E. 680 (nonnavigable lake, private property of riparian owners). 106 Warner v. South worth, 6 Conn. 471. (fSS) Ch. 2] DESCRIPTION AND BOUNDARY. § 10 where the middle thread of a great river is, as will be shown in another section. Whether the ruling will be accepted by all the states in controversies between riparian owners, when both sides of the stream are within the same state, is not quite certain, as the question between them may turn on different grounds."^ Among the incidents of ripai'ian ownership are those of alluvion or accretion, on the one hand, and of attrition, on the other; that is, new soil may be lodged by the lake or river against the owner's hind, enlarging it, or may be washed off, so as to diminish such land. On a river the accretion on one side may take place at the cost of the owner on the opposite shore. The courts have, with great consistency, adhered to this distinction: That when the accretion and attrition have gone on gradually, or imperceptibly, the soil add- ed to one side and taken from the other is won and lost by the respective owners ; but when the stream is suddenly turned from its channel, so that the change can be readily seen, the former line of middle thread (if that was the dividing line) remains such after the change.^** Where a subdivision had been laid out on the shore of a great lake, which touched the corner of a block and partly covered the street in front of the block, and a large accretion of new soil was afterwards formed on the other side of the street, as laid out on the plan, this accretion was adjudged to those claiming the resid- uary belonging to the owner of the subdivision, as against the IS'' See infra under "State Boundaries." 16 8 Mayor, etc., of New Orleans v. U. S., 10 Pet. 6G2, 717 (New Orleans would otherwise be cut off from the river); .Jones v. Soulard, 24 How. 41 (accretion applies to Mississippi, and a city is to tie treated as riparian owner); Saulet v. Shepherd, 4 Wall. 302 (accretion goes to the nearest strip, never to lands back of it) ; St. Clair Co. v. Livingston, 23 Wall. 46 (test, that witnesses cannot perceive the progress as it goes on, though they notice it from time to time); .Telferis v. East Omaha Land Co., 134 U. S. 178, 10 Sup. Ct. 518 (a water line, no matter how it shifts, remains the boundary). On the other hand are quoted 2 Bl. Comm. p. 267; Ang. Water Courses, § 60; The King v. Lord Yarborough, 3 Barn. & C. 91; Trustees of Hopkins Acade- my V. Dickinson, 9 Cush. 544; Buttenutth v. St. Louis Bridge Co., 123 111. 535, 17 N. E. 439; Hagan v. Campbell, 8 Port. (Ala.) 9; Murray v. Sermon, 1 Hawks, 56,— all quoted in Nebraska v. Iowa, 143 U. S. 359, 12 Sup. Ct. 396. The law of accretion does not apply to the drying or draining of a swamp. Lewis V. Roper Lumber Co., 118 N. C. 55, IS S. E. 52. ( 153 U. S. 367, 14 Sup. Ct. 945— passes on a devise to a widow durante vidui- tate, which was, subject to the conditions of not re-marrying, held to confer a fee, on the strength of Little v. Giles, 25 Neb. 327, 41 N. W. 186, arising on the same will, contrary to the previous opinion of the United States supreme court on the same will in Giles v. Little, 104 U. S. 291. (The case ought to have gone off on the construction of a "power," as it finally did.) The Ne- braska statute, governing the land, not only dispenses with words of inherit- ance, but a clause copied from Michigan, as the Michigan law is in substance copied from that of Massachusetts, says: "Every devise of land m any will," etc., "shall be construed to convey all the estate of the devisor therein," etc., "unless it should clearly appear," etc., "that the devisor intended to convey a less estate." In the case in 104 U. S. the supreme court says very truly that, where the devise goes on to limit a subsequent interest to others, the law is (106) Cll- 3] ESTATES. § 16 It will be seen in the section on "Estates Tail," how the statutes of no less than eight states give a life estate only to the person who would formerly have been the first tenant in tail, and in another section, how in Kentucky a life estate is worked out from a clause which elsewhere would give a joint estate in fee to a mother and her children. Lastly, in three states (Maine, Massachusetts, and Rhode Island), which still recognize the special estate tail, in its old mean- ing, there may be "an estate tail with possibility of issue extinct," which is only a species of life estate; that is, if an estate be given ''to A. B., and to the heirs of his body begotten upon his wife (nam- ing her)," and that wife die childless, the impossibility of having heirs to inherit under the gift becomes certain, and the estate is no longer an estate of inheritance.^^ At common law a life estate might be forfeited for two causes to those in remainder: First, for an attempt by the life tenant to convey the whole fee, or any estate greater than that which he held ; second, for waste. The first of these causes of forfeiture has been complied witli at all events, whether you give a fee to the first taker and nul- lify the later limitation, or give to the former only a life estate and carry out the later limitation; for in the latter view also the whole estiite is disposed or. In Weir v. ilichigan Stove Co., 44 *Mich. 50C, 7 X. W. 78, effect is given to the statute; and In Dew v. Kuehn, 64 Wis. 300, 25 N. W. 212, it is said of a sim- ilar clause that it "changes the presumptions as to the estate devised." The Kentucky act says: "Unless a different purpose appear by express words or necessary inference, every estate in land created by deed or will, etc., shall be deemed a fee simple," etc.; enforced in Robbins' Ex'r v. Robbins (Ky.) 9 S. W. 254. And Howard v. Howard's Ex'r, 4 Bush, 494, reconciles a devise of the whole and of one-third by giving each devisee a fee, but cutting the for- mer down to two-thirds. But see Anderson v. Hall's Adm'r, 80 Ky. 91, for words suflacient to create an estate for life. The supreme court of Massa- chusetts in Brimmer v. Sohier, 1 Cush. 118, 132, says that "clearly and mani- festly," in the act of that state, means no more than according to the ordinary rules of construction. In Dew v. Kuehn, supra, a devise to K. simpliciter was held to be for life only, because a subsequent estate in the same subject was given to others. In Kaufman v. Breckinridge, 117 111. 315, 7 N. E. 666, a devise to the wife "as long as she shall remain his widow, to be disposed," etc., was held a fee because the necessities of the family as shown in the will would require a sale. 2 7 Classed by Co. Litt. §§ 32, 27b, foremost among the estates not of inherit- ance. It differs from other such estates by being free from impeachment of waste. To same purpose are Blackstone and other standards. (107) § 16 LAND TITLES IN THE UNITED STATES. [Ch. 3 formally abolished in many of the states; ^^ but of this there was no need, for the forfeiture, even at common law, arose only when the life tenant made a "common-law conveyance," such as livery of seisin, — a manual, visible turning over of the land, by which the purchaser would take the place of the former owner as a freehold tenant in the feudal polity, — or a fine, or common recovery; both of these being fictitious proceedings in a law court, which operated a trans- fer of the land. As livery of seisin, fine, and common recovery are no longer in use, but land in the United States is transferred either by deed of "bargain and sale," which takes its origin, if not its effect from the statute of uses, or by a statutory "grant" or "quitclaim," and as such conveyances were always deemed "harmless," convey- ing no greater estate than the bargainor, grantor, or releasor had, no forfeiture could arise, though it had never been abolished.^" The other cause of forfeiture not only remains unrepealed, but most of the states have re-enacted the English statute, which allows the remainder-man, in case of waste, to sue the life tenant, and to de- mand in his action not only damages for the waste committed, but a forfeiture of the place wasted. However, the right of the re- mainder-man to the forfeiture seems to have become a dead letter.^" 2 8 (e. g.) Rev. St. N. Y. pt. 2, c. 1, tit. 2, § 166 ("sliall not work a forfeiture, but shall pass to the grantee all the title, estate, or interest which such tenants •could lawfully convey")- 2 9 The effect of a "feoffment" in creating a disseisin, and thus a wrongful fee, is fully discussed in 4 Kent, Comm. 480-490, under the head of "Feoff- ment." Nothing there said ever applied to conveyances under the statute of uses, or conveyances under the American statutes. 30 The statute of Gloucester (6 Edw. I. c. 5) gives treble damages and for- feiture of the place wasted— re-enacted in New York (Rev. St. pt. 3, c. 5, tit. 5, § 10; Code Civ. Proc. § 1655); Indiana (Rev. St. § 286); Minnesota (Gen. St. 1878, c. 76, §§ 45, 40; Gen. St. 1894, §§ 5882, 5883); Delaware (Rev. Code, c. 88, § 9); North Carolina (Code, § 629); Kentucky (Gen. St. c. 66, art. 3, § 1); Dakota (Terr. Code Civ. Proc. § 652); Missouri (Rev. St. 1879, § 3107); Washington, but only for voluntary waste (Code Proc. § 660); Massachusetts eal, 64 Pa. St. 9. "We must not hesitate." Bassett v. Hawk, 118 Pa. S>t. 94, 11 Atl. 802. 116 Code N. C. § 1329. See cases cited below in note 122. This section of the Code was enacted in 1856. See doubt in Jenkins v. Jenkins, 96 N. C. 2.j4, 2 S. E. 522. Other cases pass on the rule, and it was enforced without question as to its existence in Ex parte McBee, 63 N. C. 332, as to a deed made in 1865. Starnes v. Hill (N. C. 1803) 16 S. E. 1011, seems to carry out Ehe statute, turning heirs into children. iif Hochstedler v. Hochstedler, 108 Ind. 506, 9 N. E. 467, and passim. H8 4 Kent, Comm. 240; Lord Glenorchy v. Bcsville, Cas. t. Talb. 3, 1 AVhite & T. Lead. Cas. Eq. 1. Hare and Wallace, in their notes on the case, say they can find no American case in which, on a mere intention to provide for chil- dren in maiTiage articles, a strict settlement is decreed, but they quote from states in which the rule in Shelley's Case is fully recognized, cases in which executory contracts were withdrawn from it; Wood v. Burnham, 6 Paige, 513; Saunders v. Edwards, 2 Jones, Eq. (N. C.) 134; Tallman v. Wood, 26 Wend. 9; Choice v. Marshall, 1 Kelly (Oa.) 97; Wiley v. Smith, 3 Kelly, 551; Loving v. Hunter, 8 Yerg. (Tenn.) 4; Garner v. Garner, 1 Desaus. Eq. dS. C.) 437,— to which may be added the late case of Henderson v. Henderson, M4 Md. 85, 1 Atl. 172. 110 In a deed, if the grantor wishes the heir of the first taker to have the 04(J) ^^- 3] ESTATES. § 21 There is in the states which fully recognize the rule, or which, acted upon it until they repealed it by statute, great diversity as to the consistency with which the courts follow it out. None go so far as Pennsylvania, Indiana, and Illinois, while Ohio has frit- tered it away even as to deeds, though it is repealed only as to de- vises; and the rule is rather weak in the Carolinas."" In the states which follow the rule closely the grant or devise is not taken out of the rule by words clearly indicating the testator's intent that the first taker shall have only a life estate, the phrase "and no longer," after the limitation for life, or words forbidding alienation, or securing the estate to the heirs, are held immaterial; in fact, the latter clause may, by creating a fee in the first taker, defeat the heirs.^^^ That a statute turns estates tail into fee simple, and remainder after his life by purcliase, he must be very precise; for such lan- guage as "heirs at his death," "heirs then living," may not suffice where the rule is lived up to. Criswell's Appeal, 41 Pa. St. 288; Cockins' Appeal, 111 Pa. St. 20, 2 Atl. 363. The point in the text was for the first time decided directly in Earnhart v. Earnhart, 127 Ind. 397, 26 N. E. 895. See, liowever, to the contrary, Richards v. Bergavenny, 2 Vem. 324. 120 In Indiana the rule was recognized in cases quoted hereafter in 1 lud. and 5 Ind., and has been steadily maintained ever since. See, however, as to testator's intentions, McMahan v. Newcomer, 82 Ind. 565. Illinois, in the older cases (Balier v. Scott, 02 111. 86, and Butler v. Huestis, 68 111. 504) did not carry the doctrine out very steadily, but has retrieved the lost ground, except as far as the statute defining estates tail, defeats its operation. In South Caro- lina the rule was first recognized in Dott v. Cunnington, 1 Bay, 4.13, and Carr V. Porter, 1 McCord, Eq. 60; but the doctrine has lately been relaxed. Ohio declared the rule part of its law in McITeely v. Jloore, 5 Ohio, 400. It is here and in New Jersey in force only as to deeds. And in Reddish ^■. Carter, 1 Cine. R. 283, the word "heirs" was on very slight grounds construed into "children." As in both these states an estate in tail is tunied into a life estate, with re- mainder in fee to the first set of lineal heirs, the rule defeats itself whenever the remainder is given to heirs of the body, and not to plain heirs. In Mary- land the rule was first recognized in Home v. Lyeth, 4 Har. & J. 431, but has been, avowedly relaxed, as stated, in Henderson v. Henderson, supra. See, for the limit of the rule in Pennsylvania, Guthrie's Appeal, 37 Pa. St. 9. Very strong ground in favor of the rule is also taken in a case affecting chattels in Florida. Watts' Adm'r v. Clardy, 2 Fla. 369. 121 Allen V. Craft, 109 Ind. 476, 9 N. E. 919 (where the rule is called "Inex- orable"); Andrews v. Spurlin, 35 Ind. 202; Hageman v. Hageraan, 129 111. 104, 21 N. E. 814 (relying as to futility of restrictive words on 1 Prest. Est. (147) § 21 LAND TITLES IN THE UNITED STATES. [Ch. 3 thus renders them subject not only to sale, but also to devise, is no reason against applying the rule when the limitation alter the life estate is to "the heirs of the body." ^^^ The word "nearest," when prefixed to "heirs," does not mean "immediate," so as to turn them into takers by purchase.^^^ More diflQculty arises from the clause often added "to be equally divided between them." This clause shows that the plural in "heirs" is not meant for the suc- cession in time, but by reason of the plurality of heirs at the testa- tor's death. It might be literally complied with, by dividing the estate pei; capita among those who are the first taker's heirs, though in a descent from him they would take in different proportions. Yet in Pennsylvania, Indiana, Illinois, Maryland, and in the older cases in South Carolina, these words have been held to be unavailing against the "inexorable" rule; ^^* while the later cases in South Carolina, and, as it seems, the uniform line of authorities in North Carolina, Georgia, and Florida, has deemed these words sufficient to overcome the rule.^^° The word "issue" is the equivalent of "heirs of the body," and, like the latter words, raises an estate tail. 281); Bender v. Fleurie, 2 Grant's Cas. 345. Belslay v. Engel, 107 lU. 1S2, in which the rule was made to yield to the Intention of the testator on the authority of Perrin v. Blake in the king's bench before the reversal, is dis- tinguished, but in fact overruled. So, in California, before the statute, re- strictive words were held immaterial. Norris v. Hensley, 27 Cal. 439. 122 Clarke v. Smith. 49 Md. 106; Bender v. Fleurie, supra; Cai-penter v. Van Olinder, 127 111. 43, 19 N. E. 868. "Begotten heirs and heiresses" is the same as heirs of the body. Leathers v. Gray, 101 N. C. 169, 7 S. E. 657; one judge dissenting, because it is not a technical word of inheritance. 123 Ryan V. Allen, 120 111. 648, 12 N. E. 65. 124 Clarke v. Smith, supra; Cockin's Appeal, 111 Pa. St. 26, 2 Atl. 363 (a hard case). The equal amoimt to be given to all heirs living at time of death was referred to the sets of heirs of the two life tenants. So in Virginia, while the rule was in force. Jloore v. Brooks, 12 Grat. 135. Cooper v. Cooper, 6 R. I. 261; Crockett v. Robinson, 46 N. H. 454. And so in New Jersey, then as to wills, and still as to deeds. Kennedy v. Kennedy, 29 N. J. Law, 185. Wil- liams V. Foster, 3 Hill (S. C.) 193; quoting Jesson v. Doe, 2 Bligh, 1. 125 Fields V. Watson, 23 S. C. 42; Jenkins v. Jenkins, 96 N. C. 254, 2 S. E. 522; Hen-ing v. Rogers, 30 Ga. 615. The one division per capita among tlie immediate heirs breaks the line. Middleswarth v. Blackmore, 74 Pa. St. 414 ("dying without legal issue," before the JIaryland act of 1862 giving to these words a new meaning); following Dickson v. Satterfield, 53 Md. 320, and Thomas v. Higgins, 47 Md. 439 (case of deed). Rviss v. Iluss, 9 Fla. 105. (148) Ch. 3] ESTATES. § 21 In some of the states a remainder to "issue" after an estate for life is no better than a remainder to heirs — notably in Pennsylvania and Indiana — unless the contrary meaning of the word is clearly indi- cated.^^" In other states "issue" (when found in a will) is treated as a word of purchase. It was so treated in New York, while "the rule" was in force. It is admitted that this word or the phrase "lineal descendants" have not as much force as "heirs," and will more easily yield to the plain intention of the devisor or grantor.^^^ The word "children" is properly a designation of persons, and, as such, a word of purchase.'-* In fact, it has been said that even the word "heirs," if it appears from the whole instrument that it was used in the sense of "children," may become a "word of pur- 128 Allen v. Markle, 36 Pa. St. 117 (the words were "legitimate offspring"); quoting a number of earlier Pennsylvania cases, and Denn v. Puckey, 5 Term R. 306; Carroll v. Burns, 108 Pa. St. 386 ("lawful issue"); Andrews v. Spur- lin, 35 Ind. 262 ("descendants"); Allen v. Craft, supra (arguendo); Armstrong y. Michener, 160 Pa. St. 21, 28 Atl. 447 (to A. for life, after his death to his issue, then to his next of kin, gives a fee). In Shalters v. Ladd, 141 Pa. St. 349, 21 Atl. 596, and 163 Pa. St. 509, 30 Atl. 283, the word "issue" was held, in the context, not to mean heirs. In O'Eourke v. Sherwin, 156 Pa. St. 285, 27 Atl. 43, where other parts of a devise were thought to make "issue" a word of purchase, it was said that it is a word of limitation. 127 Mendenhall v. Mower, 16 S. C. 308 (in a declaration of trust drawn by a learned judge); Henry v. Archer, Bailey, Bq. 536; Mclntyre v. Mclntyre, 16 S. C. 290 ("issue of them and their heirs"); Cushney v. Henry, 4 Paige, 345. Always a word of purchase in New Jersey. Price v. Sisson, 13 N. J. Eq. 168; Henderson v. Henderson, 64 Md. 185, 1 Atl. 72, and the old case of Chelton v. Henderson, 9 Gill, 432 ("to J. D. for life, and, if he should have lawful issue, to that issue in tail, if not to T. D. in fee"); Boykin v. Ancrum, 28 S. C. 486, 6 S. E. 305. In a deed the word "issue" was always treated as a word of pur- chase, the word "heirs" being indispensable for an estate of inheritance. Doe v. Collis, 4 Term R. 299. See Price v. Sisson, 13 N. J. Eq. 168. 128 Shearman v. Angel, Bailey, Eq. 351; M'Lure v. Young, 3 Rich. Eq. 559; Bannister v. Bull, 16 S. C. 220; Dudley v. Mallery, 4 Ga. 52; Gemet v. Lynn. 31 Pa. St. 94; Tate v. Townsend, 61 Miss. 316 ("to descend" to the children means simply "to go"); Jordan v. Gatewood, 1 Ind. 82; Kenniston v. Leigh- ton, 43 N. H. 309 (where an attempt was made to carry the line to the child of an unborn child). In another case of an attempted perpetuity, A. for life, then to his children, and then to their descendants (Caldwell v. Willis, 57 Miss. .555), the court refused to discriminate, and made even the word "children" one of limitation, vesting the fee in A. Williams v. Sneed, 3 Cold. 533. (149) § l-'l LAND TITLES IN THE UNITED STATES. [Ch. 3 chase."' ^^^ However, there are some Indiana cases in which "chil- dren" have been construed into heirs; ^^° and though, after a devise to several, the word "children" is used in the remainder after the life estate first grajited, it may appear further on that "heirs" were meant, and that the children of each were named only to prevent survivorship.^^^ Where the deed or devise in a will begins with a grant or devise "to A. and his heirs," the usual words for creating a fee, the remainder given after the first taker.'s death must be limit- ed in very precise language to persons who can take as purchasers, in order to cut down the fee.^^^ To make the heirs or heirs of the body a new stem of descent by adding words of inheritance — "and to their heirs" — is generally unavailing. This is in fact a point that arose in the devise passed on in Shelley's Case.^^^ Sometimes a remainder is given to male heirs, or to the heirs of the body of the first taker, by a named wife or husband, — words which would be fitly employed to create a special estate tail. In most of our states an estate tail, whether special or general, is turned into a fee; and 120 Ridgeway v. Lanphear, 99 Ind. 251; Bramfleld v. Drook, 101 Ind. 190; Doe V. Jackman, 5 Ind. 283 ("children or heirs of the body," understood in fhe former sense, took a remainder). The words "male heir" in Harris v. Potts, S Yeates, 141, meant evidently a particular son, and so construed. Findlay v. Riddle, 3 Bin. 139, is a strong case, but not in harmony with later Pennsyl- vania authorities. In Doe v. Laming, 2 Bun'ows, 1100, Lord Mansfield held "his heirs, female as well as male," to mean sons and daughters. Chew's Ap- peal, 37 Pa. St. 23, excluding some of the heirs by name or designation, makes the others take as purchasers. In re Dorney's Estate, 136 Pa. St. 142, 20 Atl. G4.5. 130 Fletcher v. Fletcher, 88 Ind. 418; remainder to "respective children" being construed as being only meant to negative sui'vivorship between two devisees. See, also, King v. Raa, 56 Ind. 1; Glass v. Glass, 71 Ind. 392; Biggs v. Mc- Carty, 86 Ind. 352. 131 In re Browning, 16 R. I. 441, 16 Atl. 717. The statute denying the appli- cation of the rule amounts to little after the decision in Boutelle v. City Sav. Bank (E. I.) 26 Atl. 53, being restricted to cases where a simple not where a fee tail is limited to the heirs. 132 AUen V. Craft, supra, note 121. Hochstedler v. Hochstedler, supra, note 117, quoting from Preston on Estates: " 'Heirs' is a powerful word." 133 Andrews v. Lowthrop, 17 R. I. 60, 20 Atl. 97 (to A. and to his heirs, and their heirs and assigns, forever, in a will, within the rule). "His heirs male and to their heirs male." Carroll v. Burns. 108 Pa. St. 386; George v. Morgan, 16 Pa. St. 95; and passim in other cases cited in notes to this section. (150) Ch. 3] ESTATES. § 21 thus, by the operation of the statute to this effect, and (if the gift to the first taker is for life) of the rule in Shelley's Case, the estate goes to the general heirs by descent, unless disposed of by the deed or will of the first taker ; and, at all events, otherwise than the grantor or devisor intended."* A life estate to the husband and remainder to the heirs of the wife, of course, do not coalesce; but an estate de- vised to husband and wife for their lives, and remainder to their heirs, which is presumed to mean their joint heirs, do unite into a fee.^^° A life estate with remainder to heirs in the rents and prof- its is the same as if given in the land itself; and, if both estates are made to be equitable, it is the same as if both were legal.^^" But where the life estate is equitable only (especially if under an active trust), and the remainder to heirs is legal, — in iS'orth Carolina also where the first taker is to have only the use during life, — the two estates, being of dissimilar natures, do not grow together into a fee.i" 134 Wayne v. Lawrence, 58 Ga. 15; McKenzie v. Jones, 39 Miss. 233; Cooper V. Cooper, 6 R. I. 261; Griffith v. Derringer, o Har. (Del.) 2S4; Simpers v. Sim- pers, 15 JId. 160; Dart v. Dart, 7 Conn. 250. "Next male heir" need not mean heir of the body, and raises estate in fee simple. Jlclntyre v. Mclntyre, supra, where the first person so designated in the singular took a fee simple in re- mainder. i35Cockin's Appeal, supra, note 124; Steel v. Cook, 1 Mete. (Mass.) 2S1. 136 Cannon v. Barry, 59 Miss. 289 (under will made before Revision of ISJ",' which first repealed the rule in Mississippi); BIcKenzie v. Jones, 39 Miss. 230; Martin v. McRee, 30 Ala. 116 (before repealing statute, separate estate to wife' and trust in favor of her heirs). Leading English cases for applying the rule to executed and naked trusts are Wright v. Pearson, 1 Eden, 119; Jones v. Mor- gan, 1 Brown, Ch. 206; overruling Bagshaw v. Spencer, 2 Atk. 246. The dis- tinction between executory and executed trusts was announced in Papillon v. Voice, 2 P. Wms. 471. See 4 Kent, Comm. 219, 220. See, also, Wayne v. Law- rence, supra. 137 Kiene v. Gmehle, 85 Iowa, 312, 52 N. W. 232 (separate estate, etc., but put partially on the ground of mtention); Appeal of Reading Trust Co., 133 Pa. St. 342, 19 AtL 552; Ware v. Richardson, 3 Md. 505 (wife's estate a "sep- arate estate"); Jenkins v. Jenkins, supra (but an estate "to A. for his own use and benefit" is not a trust estate. SicelofC v. Redman, 26 Ind. 251) ; Thurs- ton V. Thurston, 6 R. I. 296; Austin v. Payne, 8 Rich. Eq. 9; Gadsden v. Des- portes, 39 S. C. 131, 17 S. E. 706. (151) § 21 LAND TITLES IN THE UNITED STATES. [Ch. 3 The rule in Shelley's Case applies to leaseholds, — that is, the life estate with remainder to heirs becomes an absolute interest; ^"^ and in like manner to lands which the will orders to be turned into monej', and which equity treats as personalty. While the question Hnder "the rule" arises generally as against grantees from the first taker, it sometimes takes this shape: that, the estate tail created under the old law being turned by the statute into a fee simple, sub- sequent remainders are shut out.^^" Another incident of the estate of inheritance built up under the rule is dower to the wife or cur- tesy to the husband of the first taker, even should the fee thus aris- ing be defeasible and actually defeated.^*" A gift to a woman "and her present heirs" must, under the maxim, "nemo est haeres viven- tis," mean the same as to "her and her children." It would not raise the question between strict settlement and estate in fee, but the named devisee, and the children, designated either as such or as "present heirs," would take together as tenants in common; though, under many circumstances, especially if the person named has no children at the time of the grant or devise, such words are otherwise construed, as will be shown elsewhere.^*^ A few words should be said about the states which have not ex- pressly abolished the rule in Shelley's Case, but in whose printed reports no cases can be found recognizing the rule. First, in Geor- '^ia, there is an enactment in force since 1859, by which the words "heirs," or "heirs of the body," or "lineal heirs," or "lawful heirs," or "issue," or any similar words, when used in limitations over, are held to mean "children" (with representation to predeceased chil- dren), whether the parent be alive or dead. This is a most efllec- 138 Hughes v. Nicklas, 70 Md. 484, 17 Atl. 398, based on English cases apply- ing "the rule" to money in the funds; and the older case, in the same state, of Home v. Lyeth, 4 Har. & J. 431; Seegar y. Leakin, 76 Md. 500, 25 Atl. 862; Little's Appeal, 117 Pa. St. 14, 11 Atl. 520. 138 Chelton v. Henderson, 9 Gill (Md.) 432. But the fee raised by "the rule" may be defeasible. Kennedy v. Kennedy, 29 N. J. Law, 185. 140 Cooper v. Coursey, 2 Cold. (Tenn.) 416 (curtesy). i" Fountain County, etc., Co. v. Beckleheimer, 102 Ind. 76, 1 N. E. 202; Hunt V. Satterwhite, 85 N. C. 73. See, as to "children" thus named meaning heirs, and raising estate tail. Wild's Case, 6 Coke, 17; Chrystie v. Phyfe, 19 N. y. 344; Cannon v. Barry, supra; Lee v. Tucker, 50 Ga. 11. (152) Ch. 3] ESTATES. § 22 tual way of repealing the rule."^ In Texas and Arkansas the rule has been acknowledged by the courts, but in the latter state and in Vermont (if in force there) it is of very little use; for whenever it would raise an estate tail this is converted by the statute into a life estate in the first taker, with remainder in fee to his heirs.^*^ In the District of Columbia it is presumably in force to the same extent as in Maryland. Iowa has worked out its jurisprudence from that of Michigan, where the rule never was in force; ^** and it hardly fits the states of the far West, in which husband and wife talie by descent from each other, even in the presence of issue and the word "heirs" no longer indicates community of blood.^^" § 32. Future Estates, Other Than at Common Law. At common law an estate of freehold, in the very nature of things, could not be created to begin at a future time, whether fixed by date, or depending upon an event either certain or uncertain ; for the pri- mary mode of conveyance was livery of seisin, which took effect with- out any writing, and invested the party thus enfeoffed at once with the freehold. The rule did not apply to uses ; for A., the owner, could enfeoff B. in fee, to hold to the use of A. himself during his life, and after his death to the use of 0. In this manner the beneficial own- ership would change only at a future time, named in the so-called deed "to lead the uses." When the statute of uses turned "uses into, possession" (i. e. annexed the title to the use), the legal estate could thus be made to begin in futuro; and the same result followed 1*2 Georgia (Code, § 2249). The enforcement was never very strict. Thus, the untechnical words "heirs from her body" were deemed sufficient to modify "heirS of the body." Kemp v. Daniel, 8 Ga. 385. Courts try to carry out tes- tator's intentions. Mallery v. Dudley, 4 Ga. 52. 1*3 Moody V. Walker, 3 Ark. 147; Myar v. Snow, 49 Ark. 125, 4 S. W. 381; Act 1837 (now section 643 of Mansfleld's Digest); Moore v. City of Waco, 85 Tex. 206, 20 S. W. 61; Vermont (§ 1916). So, also, in Colorado and New Mex- ico. See section on "Estate Tail." 144 Whether it is in force is left purposely undecided in Pierson v. Lane, CO Iowa, 60, 14 N. W. 90. Hanna v. Hawes, 45 Iowa, 439, and Kiene v. Gmehle, supra, seem to recognize the rule, but, by bringing in the questions of intent, nullify it. 145 See, infra, chapter on "Title by Descent," § 32. (153) § '22 LAND TITLES IN THE UNITED STATES. [Ch.' 3 from the statute of wills. As we have in the United States no common-law conveyances, but land passes either by will, or by deed taking effect under the statute of uses, or by statutory grants simi- lar to such deeds, the rule against estates beginning in the future fell to the ground by itself; but it has, for greater certainty, been abolished bj' statute in very many states.^^" More for the purpose of the old nomenclature, than for any practi- cal distinction, we here reproduce, in a short outline, from an old edition of Kent's Commentaries, the classification of future estates which, in the palmy days of English conveyancers, could be raised under the statute of uses, and, in analogy to them, under the stat- ute of wills; sparing our readers, however, all trouble about the now exploded doctrine of scintilla juris, — that spark of right which many lawyers and judges supposed to flicker through the frame of the feoffee to uses for one moment, before the statute transferred the fee to the cestui que use: 1. "Shifting or secondary uses take effect in derogation of some other estate, and are either limited by the deed creating them, or authorized to be named by some person named in it. Thus, if an estate be limited to A. and his heirs, with a proviso that if B. pay to A. one hundred dollars, by a given time the use of A. shall cease, and the estate shall go to B. in fee, the estate is vested in A. subject to a shifting or secondary use in fee to B. So, if the proviso be that C. may revoke the use to A., and limit it to B., then A. is seised in fee, with a power to C. of revocation and limitation of new uses." ^" The shifting of uses by the execution of a "power" will be treated in a separate cliapter. "These shifting uses are common in all settlements," Chancellor Kent proceeds; "and in marriage set- tlements the first use is always to the owner in fee till the marriage, and then to other uses." Marriage settlements made by the parents of bride or groom with limitation of future estates are, however, so rare in the United States that few, if any, cases growing out of 140 Bev. St. N. y. pt. 2, c. 1, tit. 2, § 24: "A freehold estate, as well as a chattel real, may be created to commence at a future time;" copied in Mich- igan, Wisconsin, Minnesota, California, the Dakotas, etc. 147 4 Kent, Comm. 296, citing Mutton's Case, Dyer, 274b; Spencer v. Duke of Marlborough, 3 Brown, Pari. Gas. 232; NicoUs v. Sheffield, 2 Brown, Ch. 218. (154) Cll- 3] ESTATES. § 22 them have come before courts of error so as to pass into the printed reports. 2. "Springing uses are limited to arise on a future event, vs'here no precedent estate is limited, and they do not take effect in deroga- tion of any preceding interest. If a grant le 'to A. in fee, to the use of B. in fee, after the iirst of January next,' this is an instance of a springing use, and no use arises until the limited period. The use in the meantime results to the grantor, who has a terminable fee. A feoffment to A. in fee, to the use of B., in fee, at the death of C, is good, and the use would result to the feoffor until the springing use took effect by the death of C."' Under the modern statutes, under which a freehold may be made to begin in future, the feoffee may be left out altogether." 3. "Future or contingent uses are limited to take effect as remain- ders. If lands be granted to A. in fee, to the use of B. on his re- turn from Kome, it is a future contingent use, because it is uncertain whether B. will ever return." ^^° 4. "If the use limited by deed expired, or could not vest, or was not to vest but upon a contingency, the use resulted back to the grantor who created it." ^°" Almost the only contingency in which, in modern practice, an es- tate is made to shift, is that the first taker of the fee dies under cer- tain circumstances; the must usual of them being that he dies with- out issue living at the time of his death; more rarely, that he dies before another person, or that he dies under age, or unmarried, or "under age and unmarried," etc. The fee of the first taker, which is thus made to shift, is the "defeasible fee" already spoken of in another section. The gift of the estate to which it shifts, which may be in fee, or for a smaller estate, or for such smaller estate with remainder in fee, being much oftener made by will than by deed, is known in this country generally as an "executory devise," 148 Id.; citing WoodlifC v. Drury, Cro. Eliz. 439; Mutton's Case, supra; Roe v. Tranmer, 2 Wils. 75. 1*9 Id. 298; citing no cases, but referring to Gilb. Uses (Sugd. Ed.) pp. 152- 158; 1 Prest. Abst. p. 105, and 2 Prest Abst. p. 151. iBo Id. 299; citing Co. Litt. 23a, 271b; Sir Edward Clare's Case, 6 Coke, ITb; Armstrong v. Wolsey, 2 Wils. 19. (155) § 22 LAND TITLES IN THE UNITED STATES. [Ch. 3 even when it is contained in a deed of settlement.*"^ The first recognition of the executory devise as a fee made to begin upon the contingency of the first taker of the fee dying under named condi- tions was achieved only after a hard struggle. The more regular mode of limiting the estate would have been to bestow an estate tail on the first taker, with a remainder over in fee or in tail. This could have been barred by a common recovery. The object of the executory devise, or use in the nature thereof, was to keep the future estate from being thus barred, and thus to tie up the land for another generation. The victory for this "fee limited upon a fee" was the first in a long struggle, of which more will be said in the next section.^'^ Nothing prevents the limiting of successive executory devises, each after vesting being defeated by the next.^"^ An executory devise, or estate in the nature thereof, is deemed a more distant or weaker interest in land than even a contingent re- mainder, and is considered, until the contingency has arisen, hardly more than "a possibility coupled with an interest." Nevertheless, it may be devised, and such has been the law in England since early in the eighteenth century. It may, in modem times, be conveyed or "assigned," even to an assignee for the benefit of creditors; but where the law subjects to execution only estates "in possession, reversion, or remainder," it would seem that the "possibility" aris- ing from an executory devise cannot be sold under execution.*"* Just as the tendency of the law is, in case of doubt, to prefer a vested to a contingent remainder, so the latter will be preferred to the executory devise, under the notion that the remainder would sooner vest, and thus render the full ownership certain, restoring the land to the channels of trade.*"" Under the Revised Statutes of 151 Goodell V. Hibbard, 32 Mich. 47. 152 Pells V. Brown, Cro. Jac. 590. 153 Higgins V. Dowler, 1 P. Wms. 98, on successive executory devises. 154 Rev. St. N. Y. pt. 2, c. 1, tit. 2, § 35: "Expectant estates are descendible, ■devisable, and alienable, in the same manner as estates in possession." This includes executory devises, which are not known under that name in the New York statutes, while shifting uses, along with all other uses, are expressly abolished. See, on this question, chapter on "Grants, Future and After-Ac- quired Estates." 155 2 Washb. Real Prop. p. 751; Criley v. Chamberlain, 30 Pa. St. 161; Man- ice V. Manice, 43 N. Y. 303. Ch. 3] ESTATES. § 22 "New York and the laws of Michigan, Wisconsin, and Minnesota (which are, as to estates in land, copied from them), an executory deyise or kindred estate is embraced under the general name of "ex- pectant-estate"; but it is known also as a "remainder," and will pass when referred to by that name in deed or will.^°* Cross remainders are thus defined by Chancellor Kent, who there- in follows Preston on Estates : He premises that by deed they must be created by express words, while in a will they may be raised by implication, but this has no bearing on the nature of the estate, when once created. He proceeds : "If a devise be of one lot of land to A., and of another lot to B., in fee, and, if either dies without issue, the survivor to take, and, if both die without issue, then to C. in fee, A. and B. have cross remainders over by implication j and, on the failure of issue of either, the other, or his issue, ta.iies, and the remainder to 0. is postponed." To the reader not deeply versed in the old land lore, the cross remainder here seems to be given with enough expressness. He proceeds: "So, if different parcels of land are conveyed to different persons by deed, and by the limitation they are to have the parcel of each other when their respective inter- ests shall determine, they take by cross remainders." He then points to a complexity which will often arise when there are more than two parties to whom the gift or devise is made, after two or more have died, in the proportions, which pass over: For the share which passes on the death of A. to B. may not always, on the death of B., be treated in the same manner as B.'s original parcel. On the contrary, the tendency of the courts is to make every estate vest at the earliest moment. Hence, whenever the language of the grant or devise permits it, the shares which on the termination of the first life, go to the other donees will be considered as owned by them in fee.^°' It will be noticed that the example first given by 166 Pond V. Bergh, 10 Paige, 140. 167 4 Kent, Comm. 201; 2 Bl. Comm. 381; ChadocU v. Cowley, Cro. Jac. C95; 1 Prest. Est. pp. 94, 98. The difficulty in cross remaindera comes in where the donees or devisees are more than two, and the lot or share of one has gone to the others, to determine whether or not the parts of these lots or shares go to them in fee, or whether they are still under the sway of the will or deed, creating the remainder. Mr. Preston, and Kent after him, compare the diJli- culty in fixing the proportions at a second or subsequent death with those (157) § 23 LAND TITLES IN THE UNITED STATES. [Ch. 3 Kent is of executory devises, rather than of remainders, properly so called, and in practice cross remainders are nearly always of the former nature. Moreover, in the great majority of cases, it is not one tract of land which is given to A., and another which is set aside to B., but aliquot shares, generally equal shares in the same land; and this renders the calculation of the parts belonging to each set of heirs or descendants after two or more of the cross remainders have taken effect so much more complicated. A gift, by deed or will, to "survivors" among a class of designated persons, must be distinguished from that of cross remainders. Such a gift goes to those who are still alive at the time of some future event (gener- ally either a testator's death, or the death of some life tenant), and then vests in all those remaining at the same time, with no room for cross remainders among them.^^^ § 23. Estates on Condition. We must next speak of conditions,^ ^° either precedent or subse- quent, laying out of view those "conditional gifts," which are turned arising among coparceners under tlie old Englisli rule of "seisina facit sti- piteni." We may rather refer to the conflicting views under the laws of Mas- sachusetts, New Hampshire, and other states on the question whether the share of the parental estate passing from one minor child to another is or is not, upon the death of that other child, to be treated as "parental," which will be discussed in the law of descent. 158 O'Brien v. O'Leary, 64 N. H. 332, 10 Atl. 697. 169 The older law writers, including Kent (see 4 Comm. 121), first divide con- ditions into "conditions in law" and "conditions in deed." If the tenant for life or years aliened by a common-law conveyance (feoffment, fine, or common recovery), he forfeited bis estate, and the reversioner came in at once. In like manner, if the dowress or life tenant committed waste, her estate in the place wasted was forfeited, and went at once to those in reversion. Common-law conveyances have long gone out of use; and forfeiture for waste, though recog- nized by law in many states, is never resorted to. And, ever since the decay of the feudal system, no condition in law has been implied in a lease, for life or years, of forfeiture or of re-entry, for nonpayment of rent; such a condition must be expressed. "Conditions by deed," in the meaning of this classification, embrace those by will or devise. It is strange that the books have never clas- sified conditions as negative or positive, which, as to conditions subsequent, has very important bearing. An estate may be given to A. "if he will marry B.," or "as long as he will reside on the land," or on the other hand "unless he (158) Ch. 3] ESTATES. § 23 into estates tail, and those grants of an estate to become void upon the payment of a sum of money by the grantor, which are such in form only, but in fact securities for debt. There is a condition precedent when an estate is to begin upon its fulfillment. At com- mon law, when a freehold estate could not be made to begin in futuro, a simple condition precedent could most readily affect a term for years, which could always be made to begin in futuro; also an estate in remainder, if the CAent happened during the time of the particular estate. But an estate might also be limited to A. in tail (or for life), to pass from him to B. upon a named contingency, which would then be a conditional limitation. But under the statute of wills or of uses an estate may be limited to A. on his marriage with B., or upon the payment by him of a sum of money, and the estate will not take efEect, unless the condition is fulfilled; and it is said that such condition must be literally performed, and that equitj' has no power to relieve against the failure to perform it,^^" unless the failure has arisen through the contrivance of the party in adverse interest, under circumstances amounting to fraud.i«^ Subsequent conditions are those which operate on an estate al- ready vested, and defeat it. They are Aery frequent in leases, which are by such conditions to come to an end by failure to pay the rent on a named day, or upon the tenant's assigning or subletting with- out license. In this country, where leases for lives, in husbandry, should marry B." In the former case there may be excuses for delay, or even for noncompliance; but in the latter there can be none for disregarding the restraint, unless the restraint be unlawful. This distinction should have been kept in mind. An example of a positive condition is Tilden v. Tilden, 13 Gray, 10.3 ("to keep in good repair" held to be broken by not rebuilding after a fire) ; also two cases stated in the text of Kent's Commentaries,— Police Jury y. Reeves, 6 Mart. (N. S.) 221, and Hayden v. Stoughton, 5 Pick. 528. On the other hand, a devise of a lot to a creditor, because the testatrix disliked treat- ing her obligation as a debt, was construed as a condition precedent that the creditor would not treat it as such, and the estate was defeated by his bring- ing suit. Hapgood v. Houghton, 22 Pick. 480. A condition precedent may re- sult In lengthening a life estate into a fee. Karchner v. Hoy, 151 Pa. St. 383, 25 Atl. 20. 160 Kent (4 Comm. 125) cites Popham v. Bampfeild, 1 Vem. 83. The position is stated ever since as settled. 161 Sharon Iron Co. v. Erie, 41 Pa. St. 341; Murray v. Harway, 56 N. Y. 337. (159) § 23 LAND TITLES IN THE UNITED STATES. [Ch. 3 are almost unknown, such conditions are attached only to terms for years. Equity generally relieves against a clause of re-entry or forfeiture in a lease for nonpayment of rent on the day, but not against forfeiture for assigning or subletting without license."^ Conditions, either precedent or subsequent, may affect an estate in remainder before it comes into possession.^"' A condition subse- quent, at the common law, always resulted to the benefit of him who, by conveyance or devise, imposed it, or to the benefit of his heirs; that is, upon the estate given determining, there was a reversion, not a remainder. And now, as shown above, when the condition making an end to A.'s estate turns it over to B., this is more cor- rectly called a "conditional limitation." ^"* An estate subject to a condition subsequent can be alienated by grant or devise, remaining liable to be defeated in the hands of the grantee or devisee.^"' Courts, in all cases of doubt, construe conditions as being subse- quent, rather than precedent, so that estates may vest at the earliest moment.^*" There are, however, cases where the estate would 162 In Peachy v. Duke of Somerset, 2 White & T. Lead. Cas. Eq. 1082, the distinction is laid down, complainant being a copy holder, that equity would not relieve against the forfeiture for making unauthorized leases, felling tim- ber, etc., though compensation was offered. Relief is given for nonpayment of money where the compensation can be clearly admeasured. Among the English cases cited in the notes is Hills v. Rowland, 4 De Gex, M. & G. 430, where equity refused to relieve a lessee for not cultivating land in a husbauU- like manner; Macher v. Foundling Hospital, 1 Yes. & B. 188, for carrying ou a trade without license, or who assigns without license. So, in the United States, equity has refused to relieve the lessee against forfeiture for assigniuj;. Green v. Bridges, 4 Sumn. 96. For other American cases we refer to books oa "Landlord and Tenant." And see, as to relief for nonpayment of rent, section 17 of this chapter. 183 Birmingham v. Lesan, 77 Me. 494, 1 Atl. 151. 164 Co. Litt. 246b; 4 Kent, Comm. 126. 165 This clinging of the condition to the estate in the hands of even remote alienees is spoken of as the condition "running with the land." Wilson v. Wil- son, 38 Me. 18; Taylor v. Sutton, 15 Ga. 103 (a somewhat confused, unsatis- factory case); Winnepesaukee Camp-Meeting Ass'n v. Gordon (N. H.) 29 Atl. 412 (even to conditions which may be imposed thereafter); O'Brien v. Bark- ley, 78 Hun, 609, 28 N. Y. Supp. 1049 (an odious condition held to be subse- quent, so as to defeat it). 166 Hooper v. Cummings, 45 Me. 359 (provided he fence the land, and keep it in repair); Finlay v. King, 3 Pet 340 (devise to A. on condition of his mar- (IGO) Ch. 3] ESTATES. § 23 sooner come into possession of some one for whom it is intended (rather, eases of conditional limitation), by construing the condition as precedent; and there are other cases in which the fulfillment of • the condition is the only purpose of creating the estate, and the land is only to be enjoyed in the shape into which the condition will bring it, and this must be then held to be meant as precedent, without much regard to the grammatical structure."'' There are no recognized sets of words which will create the one or the other kind of conditions. The matter is always one of intent, to be gath- ered from the whole instrument.^ °' To prevent still further the rying a daughter of B. and R., held a condition subsequent, though "on marry- ing" would have been precedent). The utmost length was reached in Fremont Y. U. S., 17 How. 542, in construing a Mexican grant, where even the condition that the departmental assembly must assent was held to be subsequent (Camp- bell and Catron, JJ., dissenting). Den v. Presbyterian Church, 20 N. J. Law, 051. The burden of proof Is on him who claims under the condition. Den v. Steelman, 10 N. J. Law, 193, 204. But "that he live on the land, and return to the county of O.," held precedent. Reeves v. Craig, 1 Winst. (N. C.) 209. Wheeler v. Walker, 2 Conn. 196, where the payment of a sum charged on a devise of land was held a condition precedent, is not good law now. In Miller V. Board of Sup'rs (Miss.) 7 South. 429, giving land to the use of a county and a town does not raise a condition that it shall revert on the removal of the county seat from the town. In Curtis v. Board of Education, 43 Kan. 138, 23 Pac. 28, a conveyance of land for school purposes, and no other, is said to raise a trust, not a condition. 167 Den V. Brown, 7 N. J. Law, 305 (devise to I., but, should he never re- turn, to M., held a devise in praesenti to M., with a limitation over to I. on condition precedent that he return); City of Stockton v. Weber, 98 Cal. 433, 33 Pac. 332 (gift of tract with some graves to city, on condition of exhuming the bodies, and improving into park, condition precedent); Bennett v. Culver, 97 N. y. 250 (land clearly given for cemetery only, no title vests till it is established); Tennessee & C. R. Co. v. East Alabama Ry. Co., 73 Ala. 42G ("deed to have effect only," etc.). We shall speak hereafter of relief against the inconsiderate use of "or" for "and" 16 8 Burnett v. Strong, 20 Miss. 116; Craig v. Wells, 11 N. Y. 315; Parmelee V. Oswego & S. R. Co., 6 N. Y. 74. This was a grant of saline lands by the state, under an act providing: "Any part of such location which at the expira- tion of said four years shall not be actually occupied by manufactories of coarse salt," etc., "may be again set apart by," etc., "to any other person," etc.: held condition precedent, and title passed only to land covered with salt works; but grants from the state are always construed narrowly against the grantee. "If T. [a grandchild] will stay with testator and his wife till their landtiti,p:sv.1 — 11 (161) § 2?) LAND TITLES IN THE UNITED STATES. [Ch. 3 divesting of estates, words will often be construed as a covenant, as a trust, or as a mere statement of the consideration, rather than a condition, the nonfulfillment of which might take the land from its owner."" The clearest words to make a condition subsequent death," is clearly precedent. Tilley v. King, 109 N. C. 461, 13 S. E. 936; Mar- tin V. Skipwith, 50 Ark. 141, 6 S. W. 514 (deed of land to county, "provided a jail is erected on it," held subsequent). There may be a condition which is both precedent and subsequent. Clarke v. Calloway, Print. Dec. 46 (a grant of an exclusive ferry privilege, as long as the grantees keep it according to law). But in private dealings a condition which has already served as one precedent will not readily be again enforced as subsequent. Casper v. Walker, 33 N. J. Bq. 35. See, however, in O'Brien v. Barkley (Sup.) 28 N. Y. Supp. 1049, a line of decisions, from Wright v. Tuttle, 4 Day, 313, to Chapin v. School Dist., 35 N. H. 445, to the effect that the word "provided" introduces a condition subse- quent, though English authorities are also introduced that the matter depends on the order in which the vesting of the estate and the contingent event must naturally happen. 10 9 Noyes v. St. Louis, A. & T. H. R. Co. (111. Sup.) 21 N. E. 487 (deed to railroad company "for erection and maintenance of depot" raises no con- dition) ; Stone v. Houghton, 139 Mass. 175, 31 N. E. 719 (a "stipulation" is not a condition); Crane v. Hyde Park, 135 Mass. 147 (lot conveyed to town "for school" not a condition); Brown v. Caldwell, 23 W. Va. 187 (consideration that all white Christian communities may have free burial, not condition); contra, Cleveland, C, C. & St. L. R. Co. v. Coburn, 91 Ind. 5-j7 (in consideration that depot be kept on adjoining lot, held a condition); Gallaher v. Herbert, 117 111. 160, 7 N. E. 511 (here the grantor's support was taken as a covenant, rather than a condition); Farnham v. Thompson, 34 Minn. 330, 26 N. W. 9 (for purpose of erecting a church, not condition); Horsey v. Horsey, 4 Har. (Del.) 517 ("on condition to pay legacies," a trust and charge); Emerson v. Simpson, 43 N. H. 475 (A., holding land charged with B.'s support, conveys to C., reciting that C. has assumed the task, held consideration only). Rawson v. Uxbridge, 7 Allen, 125, a leading case, quotes from Shep. Touch., "Every good condition requu-es an external form," and says: "It must be expressed in apt and sufficient words, which, according to the rules of law, make a condition; otherwise it fails, unless language is used which ex proprio vigore impart a condition, or the intent of the grantor is clear and unequivocal. If it may be covenaut or condition, the coin-ts incline against the latter (Co. Litt. 205b, 219b; Merrifield v. Cobleigh, 4 Gush. 178, 184). Proper words are: 'So as,' 'provided,' and 'on condition,' made clear by a clause of forfeiture or limitation over. In purely voluntary gifts, devises and grants from the crown, a declaration that it is given for a purpose may imply a condition. But there is no authority that a private grant for a purpose imposes a con- dition subsequent. Such words will rather create a trust" The case was (1C2) Ch. 3] KSTATES. § 2o are: "the estate shall be forfeited," or "the land shall revert." ''» The enforcement of a condition subsequent is in the nature of a forfeiture; hence it can only come from those who have a direct interest, — those in reversion, when it is a pure condition, or those to whom the estate is "limited over," in the case of a conditional limitation. A mere trespasser or intruder cannot set up the for- feiture as "outstanding title." "^ It has even been held that the right to take advantage of the breach of a condition subsequent cannot be assigned, but that the reversioner must enter himself before, he can convey; certainly that he must make his demand for surrender of possession. (But in California the statute makes it transferable in express words.) ^'^ Thus, where a railroad com- of an old deed to the town for a burial groimd, wliich the heirs sought to recover, because it had been diverted from the purpose. In Gibsou v. Arm- strong, 7 B. Mon. 4S1, a deed in the form prescribed by the Methodist Church having been made by the seller of the ground, the court said: "There no condition could be assumed that the land should ever revert." And conditions subsequent are not to be inferred from the smallness of the consideration. Oicott V. Gabert, S6 Tex. 121, 23 S. W. 985. See, also, Laberee v. Carleton, :>o Me. 211; Gadberry v. Sheppard, 27 Miss. 203. But to support a named person is enforced as a condition when necessary. Thomas v. Record, 47 ile. 500. Conditions not construed into covenant, except to avoid forfeiture. Underbill v. Saratoga & W. R. Co., 20 Barb. 4.j.j. So construed, with that view, in Elyton Land Co. v. South & N. A. R. Co. (Ala.) 14 South. 207. Pay- ing legacies is rather the subject of a trust than of a condition, as the enforcement of the trust attains the only possible intent. Newson v. Thorn- ton, 82 Ala. 402, 8 South. 461. 170 Pepin Co. v. Prindle, 01 Wis. 301, 21 N. W. 2.54; Hoyt v. Ketcham, 54 Conn. GO, 5 Atl. OOG. And a condition is not a covenant, and cannot be enforced on behalf of the grantor by specific performance. Close v. Burling- ton, C. R, & N. Ry. Co., 04 Iowa, 149, 19 N. W. 886; Clarlje v. Inhabitants of Town of Brooktield, 81 Mo. 503 (land given to town to revert, unless, etc.). 171 Norris v. Milner, 20 Ga. 503; Cross v. Carson, 8 Blackf. 138; Smith v. Brannan, 13 Cal. 107; Hooper v. Cummings, 45 Me. 359; Wing v. Mc- Dowell, Walk. (Mich.) 179; Dewey v. WilUams, 40 N. H. 222. Nor can it be imported into the instrument creating the estate from a previous contract. Douglas V. Union Mut. Life Ins. Co., 127 111. 101, 20 N. E. 51. 172 4 Kent, Comm. 128 (a leasehold ceases at once when a condition subse- quent is broken; but not without an entry or demand for the pui-pose); Co. Litt. 215a; Boone v. Tipton, 15 Ind. 270; Nieoll v. New York & E. R. Co., 12 Barb. 460 (not assignable). The older authorities require a demand before fiction. Chalker v. Chalker, 1 Conn. 79; Lilicolu Bank v. Drummond, 5 Mass. (163) § 23 LAND TITLES IN THE UNITED STATES. [Ch. 3 pany has failed to comply with the conditions of the land-grant act, by completing its road within the time specified, it still holds the title to the granted land, as against all other persons, until the United States, through their proper organs, demand, and sue for the recovery of, the land."^ A condition subsequent has been sustained (perhaps not strictly as a condition), though neither he who imposed it, nor those claim- ing under him as purchasers, heirs or devisees, had any interest therein, but only the community or the neighbors; such as a clause of forfeiture, if the owner of the estate should obstruct the view, or do anything offensive to the neighbors. But the position is not very clear.^^* 321. See, contra, Plumb v. Tubbs, 41 N. Y. 442. But no re-entry Is necessary when the party entitled Is in possession. Hamilton v. Elliott, 5 Serg. & R. 378; O'Brien v. Wagner, 94 Mo. 95, 7 S. W. 19. Action held a sufficient demand, under modern practice in suits for land. Cowell v. Springs Co., 100 U. S. 55. The benefit of the forfeiture passes by will. Hayden v. Inhabit- ants of Stonghtou, 5 Pick. 529. Where land Is bought for a church or charity from an outsider, who conveys it, the contributors, and not he, are the gran- tors, to whom the land would revert on condition broken; and they must enter or make demand; Clark v. Chelsea Academy, 56 Vt. 734. Where the condition is to support the grantor, he must enter himself for its breach. A charge at most remains for the default. Bcrryman v. Schumaker, 67 Tex. 312, 3 S. W. 46. But, where the condition subsequent is that the grantee must do something within a given time, no demand to do the thing is necessary to put him in default, Ellis v. Elkhart Car AVorks, 07 Ind. 247; except, when the thing to be done is payment of money, it must first be de- manded, Bradstreet v. Clark, 21 Pick. 389; contra, Civ. Code Cal. § 1046. "3 Bybee v. Oregon & C. E. Co., 139 U. S. 6G3, 11 Sup. Ct. 641. 174 Gibert v. Peteler, 38 N. Y. 165 (obstructinr T^iews). The court said that since Spencer's Case, 5 Coke, 16 (1 Smith, Lead. Cas. 137), equity had found ways by which those interested in such a condition could find relief, and that, therefore, the title was incumbered, and a buyer need not accept it, but did not really show how the neighbors could take advantage of the condition broken unless by injunction, which would turn the couditiou into a covenant running with the land. In Sioux City & S. T. P. R. Co. v. Singer, 49 Minn. 301, 51 N. W. 905, it is said a condition against sale of liquor is good only where the grantor retains an interest in its observance, but that such interest will be presumed. In McElroy v. Morley, 40 Kan. 70, 19 Pac. 341, the neighbors for whose benefit a condition against obstructing the outlook was created seemed to be powerless to enforce it. See how the effect of a condition against keeping a tavern on the laud was lost in X'ost (164) Ch. 3] ESTATES. § 23 A condition that tlie owner of land in fee simple or fee tail shall not alien it is void for repugnancy, and as against the policy of the law; and so, that the holder of any estate shall forfeit it if he takes the profits; but conditions which restrict the use of lands in one or the other respect, though they may greatly lessen its value, have been sustained.^'^ V. Weil, 115 N. Y. 361, 22 N. E. 145. Conditions against liquor selling en- forced in Jeffery v. Graham, 01 Tex. 481. See, also, Copeland v. Oopeland, 89 Ind. 29 (only grantor can enforce conditions). i^sDe Peyster v. Michael, 6 N. Y. 467 (as to fee), states the authorities to date fully. The same principle was settled as to estates tail in Mary Portington's Case, 10 Coke, 42a. The weight of authority forbids even tempo- rary conditions against alienation. See below. But see Gadberry v. Shep- pard, supra (conditional limitations over on conveyance during first talker's life sustained); and a limitation to the wife of the beneficiary life tenant, if his estate should be found subject to his debts, in Bull v. Kentucky Nat. Bank, 90 Ky. 452, 14 S. W. 425. In Newkerk v. Newkerk, 2 Caines, 345 (quoted by Kent), land was devised to the testator's children in case they continued to inhabit the town of H., otherwise not. The condition was set aside as unreasonable and repugnant. The condition is said to be repugnant whenever the donor retains no reversion. Mandelbaum v. McDonell, 29 Jlich. 78 (where the whole fee is given to H. for life, remainder to B., etc., a condition against alienation for stated time held repugnant and void, both as to the life tenant and the remainder-men). Christiancy, J., insists that there is no English decision since the statute quia emptores which allows a restraint upon alienation even for one day by one who parts with the whole fee. McCleary v. Ellis, 54 Iowa, 311, N. W. 571 (deed of life estate and remainder in fee, no reversion; no restraint allowed), relies on Litt. § 360; Co. Lift. 223a; admits that it might be otherwise where the estate is given in trust for beneficiaries. A temporary restraint on the alienation of a fee is held void in Anderson v. Gary, 36 Ohio St. 506. A rather opposite condition, that whatever was not disposed of by grantee in fee at his death should revert, was held repugnant and void in Case v. Dwire, 60 Iowa, 442, 15 N. W. 265, perhaps without good reason. In Langdon v. Ingraham, 28 Ind. 360, a condition against conveying for a given time or to a named person was sustained. See, on the other hand, Blackstone Bank v. Davis, 21 Pick. 42 (condition against alienation or attachment held void). A condition against the sale of liquor on the premises is sustained, as not repugnant to the fee, in Plumb v. Tubbs, 41 N. Y. 442. Cowell v. Springs Co., 100 U. S. 55. And see case in preceding note; Craig v. Wells, supra, against a distillery. And so as to the erection of a schoolhouse, a livery stable, a macliine shop, blast furnace, powder magazine, hospital, or cemetery. Collins Ma'.:u;',4 Co, v. (1G5) § 23 LAND TITLES IN THE UNITED STATES. [Ch. 3 When the doing of an impossible or of an unlawful act is im- posed on a grantee or devisee as a condition precedent, the estate does not take effect; but, where an estate is to cease unless its holder will do something impossible or unlawful, the performance is excused."" And where the condition is not even impossible on its face, but becomes so by subsequent events, its performance will be excused, unless it is of the very essence and purpose of the gift, and sometimes even then."' Conditions subsequent are narrowly construed. Equity often relieves against the loss of an estate for breach of condition subsequent, as has been already remarked as to leases; but it never aids to enforce them."* While conditions de- structive of an estate are otherwise narrowly construed, the fullest effect seems to have been given, at least in one state, to those which are made a part of building schemes, as to the distance at which Marcy, 25 Conn. 242; Speny's Lessee v. Pond, 5 Ohio, 3S9; NicoU v. New York & E. R. Co., 12 N. X. 121, and other cases quoted in these. A grant to a cemetery, with condition against selling or letting lots below a named price, is not void under the anti-feudal clause in the constitution of New York. Bennet v. Washington Cemetery (Cir. Ct.) 11 N. Y. Supp. 203. I'e As to unlawful conditions precedent, see Taylor v. Mason, 9 Wheat. 350. In Arkansas a donation to the county, on condition that the house and lot must remain the county building, is deemed bad as against public policy. Rogers v. Sebastian Co., 21 Ark. 440. 177 Fremont v. U. S., supra, goes very far in this respect; Finlay v. King's Lessee, 3 Pet. 346 (B. and B., his wife, whose daughter the devisee was to marry, died without ever having a daughter). See, also, U. S. v. Arredondo, 6 Pet. 691 (condition attached to grant by king of Spain); Trumbull v. Gibbons, 22 N. J. Law, 117; Drummond v. Drummond, 26 N. J. Eq. 234. 178 In Wellons v. .Tordan, 83 N. C. 371 (a conditional limitation being stated in two forms, that most favorable to the first taker is chosen); Stevens v. Pillsbury, 57 Vt. 205 (equity prefers compensation to forfeiture); Clarke v. Pai'ker, 19 Ves. 12 (relieves when the party interested in the default has helped to bring it about); s. p. D'Aguilar v. DrinkAvater, 2 Ves. & B. 225; Thompson v. Thompson, 9 Ind. 323; Wilson v. Gait, 18 111. 432. If the con- dition is once dispensed with, it is gone. Sharon Iron Co. v. City of Erie, 41 Pa. St. 341. But, on the other hand, where a railroad company is to lose a right of way granted to it should the people of the county vote a tax, a ma- jority signing a petition is an equivalent. Kenner v. American Cont. Co., 9 Bush, 206. A strip of land granted for a street only is not forfeited when an intruder builds on it for a time. Carpenter v. Graber, 66 Tex. 465, 1 S. W. 178. (166) Ch. 3] ESTATES. § 23 the several houses of adjoining lot purchasers must be built from each other, or from the street."" Where an aflarmative condition subsequent is personal, — such, for instance, as that the holder of the estate must marry a named per- son, — the better opinion is that, no time being stated in the condi- tion, he has his whole lifetime to perform it in; but, when it affects the value of the land, it seems that performance within a reasonable time would be required."" A condition for some named person's benefit can always be re- leased by that person, and the estate will thus become absolute.^'^ . Though everybody should have free access to the courts of his country, a condition in a will that a devise shall cease if the devisee should contest the will is not void as against public policy.^*^ It seems that a devise to the widow as long as she remains a widow (a grant would stand on the same ground) is considered as not creating an estate incumbered by a condition subsequent, but to fix the duration of the estate; durante viduitate being one of the recognized forms of the life estate. Hence the loss of her estate under such a devise upon a second marriage is now everywhere well established, though formerly there seemed to be some doubt on the question.^ *^ 179 Bagnall v. Davies, 140 Mass. 76, 2 N. E. 786; Attorney General v. Wil- liams, 140 Mass. 329, 2 N. E. 80, and 3 N. E. 214; Payson v. Burnham, 141 Mass. 547, 6 N. E. 708; Hamlen v. Werner, 144 Mass. 396, 11 N. E. 684. 180 Flnlay v. King's Lessee, 3 Pet. 346 (arguendo). Contra, Hamilton v. El- liott, 5 Serg. & R. 384 (substantial compliance is enough); City of Quincy v. Attorney General, 160 Mass. 431, 35 N. E. 1066 (to be governed by city au- thorities, associating one citizen with mayor and council, no harm). A tender of an affirmative condition discharges it. 4 Kent, Oomm. 133; Co. Litt. 209b; Jackson v. Aldrich, 13 Johns. 110. 181 Tanner v. Van Bibber. 2 Duv. 550 (condition to support widow); Boone V. Tipton, supra (same). The forfeiture may be waived by acquiescence or "conduct." Ludlow v. New York & H. R. Co., 12 Barb. 440. See "Estoppel iu Pais," in a later chapter; Kenner v. American Cont Co., supra; Carbon Black Coal Co. V. Murphy, 101 Ind. 115; Duryee v. Mayor, etc., of New York, 06 N. Y. 477 (forfeiture waived by conduct). 182 Thompson v. Gaut, 14 Lea, 310. In Hoit v. Hoit, 42 N. J. Eq. 388, 7 Atl. 856, a condition charging a devise with all costs if the devisee contests the will was held valid. 183 Hibbits V. Jack, 97 Ind. 570; Coppage v. Alexander's Heirs, 2 B. Mon. (107) § '23 LAND TITLES IN THE UNITED STATES. [Ch. 3 Where a gift or devise is made to an unmarried woman, with a condition that the estate shall cease upon marriage, the condition, being in restraint of marriage, is said to be against the policy of the law; and it has generally been held that, unless the instrument imposing the condition says also to whom the estate shall go in case of disobedience, the condition is deemed to have been inserted in terrorem only, and may be disregarded. Here is a distinction against the heirs of the donor, and in favor of the strangers whom he may name by way of conditional limitation, for which no good reason can be given, but which seems to be well established, for the eases are very rare in which the condition without limitation over has been deemed valid.^^* Partial restrictions on marriage, 313; Pringle v. Dunkley, 14 Smedes & M. 16. Parsons v. Winslow, 6 Mass. 169, to the contraiy, is ovemiled by Knight v. Mahoney, 152 Mass. 523, 25 N. E. 971, in accordance witli modern Englisli decisions, and on reason, as the interest of the children may be endangered by the marriage of the widow. Kent (4 Comm. 129) spealjs of the estate durante yiduitate as a "collateral limitation." According to 2 Bl. Comm. 155, which is based on Co. Litt. § 380, and 1 Coke, Inst. 234, there is this practical difference: that under a limita- tion the estate ceases ipse facto, under a condition only by entry of the grantor. 184 Otis V. Prince, 10 Gray, 581. Here land was devised to a grandson in fee, with a limitation over to "his heirs" should he marry. The limitation over, being bad by reason of nemo est haeres viventis, was held as none, and the condition disregarded as in terrorem. But for the ill favor shown to the condition, "heirs" might have been construed as "presumptive heirs." Accord- ing to the supreme court of Pennsylvania in Com. v. StaufCer, 10 Pa. St. 350 (which is followed in McCuUough's Appeal, 12 Pa. St. 197), the doctrine that conditions in restraint of marriage are void is unknown to the common law, and therefore can only be applied to legacies over which the chancellor has a power concurrent with the ecclesiastical courts, whose jurisprudence is deriveH from the civil through the canon law, but not to devises of land, nor, it would seem, to legacies charged primarily on land. But the case first named arose on a devise to the widow during widowhood, v/hich has always stood on differ- ent ground. However, in "Waters v. Tazewell, 9 Md. 297, a provision in a marriage settlement, forfeiting the husband's interest upon remarriage, was held void. In Maddox v. Maddos's Adm'r, 11 Grat. 804, a member of the Society of Friends made a devise to his niece M., with a proviso that she should remain a member of that society. She married, and ceased to be a member of that society. Held, the condition is an unreasonable restraint upon mar- riage, and void. In the English and American notes to Scott v. Tyler, 2 White & T. Lead. Gas. Eq. 144, conditions in restraint of marriage are fully discussed, mainly as to those annexed to bequests of personalty. The weight of au- (168) • Ch. 3] ESTATES. § 24 sucli as not toi marry a named person, or any one of a named family, are generally sustained, even without a limitation over, but are nar- rowly interpreted; ^^° and so as to conditions against marrying with- out consent of parents, or of those who stand in loco parentis.^ ^'' A condition subsequent, that the estate shall come to an end whenever the taker, who is then separated from his wife, or from her husband, should again cohabit with her, or with him, is clearly void, as against public policy, being a bribe to the donee to violate his or her plighted faith and lawful duty.^*^ Although the law does not favor conditions destructive of an estate, and equity even less, yet when the condition is lawful, and its meaning plain, no relief can be given against its operation simply because the holder of the estate has paid out his money either upon the purchase, or in the erection of valuable improvements.^** The condition of "dying without issue" will, further on, be treated separately and fully, as it stands on different ground from all other conditions. § 24. Perpetuities. At common law a life estate cannot be limited to a child unborn at the time when a conveyance takes effect, or when it becomes operative by the death of a testator. Only an estate of inheritance, fee simple or fee tail, is ordinarily given as a contingent remainder to an unborn person. Should a life estate be thus given, a remainder thorlty is that a condition against marriage within the age of minority without consent of guardians or older relatives is not void. Such a condition may often protect an orphan girl against the wiles of greedy suitors seeking her hand for her money. 185 Phillips V. Ferguson, 85 Va. 509, 8 S. E. 241 (marry in A.'s family means one of A.'s children, but the condition against it is valid). 186 Denfleld, Petitioner, 156 Mass. 265, 30 N. E. 1018 (estate to be distributed, and share to a female, provided she remains single, is valid, though no limita- tions over; but it is accomplished as condition precedent if she is single at time of distribution). 18T O'Brien v. Barkley, 78 Hun, 609, 28 N. Y. Supp. 1049; Whiton v. Har- mon, 54 Hun, 552, 8 N. Y. Supp. 119 (distinguishing Cooper v. Remsen, 5 Johns. Ch. 459); Wilkinson v. Wilkinson, L. R. 12 Eq. 604; Potter v. Mc Alpine, 3 Dem. Sur. (N. Y.) 108. 188 Rowell V. Jewett, 71 Me. 408. (ICO) i 24 LAND TITLES IN THE UNITED STATES. [Cll. S iannot (such is the better opinion) be limited after it. A contingent 'emainder may follow any number of successive life estates to per- sons in being, or it may be limited after one or more estates in tail. 3ut the first tenant in tail, when he comes into possession, might ^ut off all the remainders by a common recovery; and, if he had the cooperation of the life tenants, he might do so even before coming nto possession. Thus the alienation of the estate could not be post- Doned beyond a life or lives in being, when the settlement was laid )ut by will or deed, because after the life or lives in being all the es- ates or interests would be certain or vested. But the ultimate remain- ler-man, or reversioner in fee simple or fee tail, might be a child of ender years when his estate vests, or even a child en ventre sa mere; md under the statute 9 & 10 Wm. IV. c. 10, such a child is capable )f taking a future estate by purchase. During gestation, and during lis infancy, the power of alienation would be suspended. On these grounds, astute land lawyers succeeded, after a long struggle, in jxtorting from the English courts in successive cases, first the va- idity of an executory devise after one life; then after several lives n being; then for such lives and the time of gestation added; and it last for "one or more lives in being, and twenty-one years and the ;ime of gestation thereafter"; and this additional time might be in- erposed, not for the infancy of the ultimate remainder-man or rever- sioner, but 21 years, as it is said "in gross," and where a posthumous child comes into question, the period of gestation besides. As the dentity of the ultimate taker under the executory devise or future ise is often unknown during all this period, the absolute property could not be aliened until its end, but the restraint on alienation could go no further."' The rule is mainly intended to prevent the 189 4 Kent, Comm. 264-267, giving the cases in which executory devises were •ecognized and extended; Pells v. Brown, Cro. Jac. 590 (one life); principle )f several simultaneous lives, Goring v. Bickerstaffe, Poll. 31; Case of Duke of ?^orfolk, 3 Ch. Cas. 1 (executory devise of term of years); Scatterwood v. 3dge, 1 Salk. 229; Lloyd v. Carew, 2 Show. Pari. Cas. 137, reversing same ;ase In Finch, Piec. 72 (one year after lives in being); Luddington v. Kime, 1 L,d. Eaym. 203 (to include birth of posthumous son; opinions divided). And the present doctrine was established in Stephens v. Stephens, 2 Barnard. 375; Cas. :. Talb. 223; Atkinson v. Hutchinson, 3 P. Wms. 258; Long v. Blackball, 7 Term R. 100; 2 Bl. Comm. 174. In Cadell v. Palmer (1833) 10 Bing. 140, all (170) Cll. 3] ESTATES. § 24 vesting of an executory devise, or of a future estate under the stat- ute of uses, — of like nature, — from occurring at a point of time later than the rule. And it makes no difference that no lives at all are named. An estate to A. in lee, and, if a certain event should hap- pen within 213 years (independently of any one's being still alive) then A.'s fee to cease, and the estate to go to B., or to B.'s heirs, would outrun the rule as much as if a number of lives in being were interposed before the running of the 22 years.^"" The statutes of Kentucky, Iowa, and Georgia (the two latter leave out the 10 months) state the old rule in these words: "The absolute power of alienation shall not be suspended by any limitation or condition whatever for a longer period than during the continuance of a life or lives in being, and twenty-one years and ten months thereafter." ^^^ And such would naturally be the law of those states which have not legislated on the subject. By the statutes of New York, Michigan, Wisconsin, and Minnesota, the power of alienation is said to be suspended "when there are no persons in being by whom an absolute fee in possession can be conveyed"; and this cannot be for a longer period than dur- ing the continuance of two lives in being at the creation of the es- tate, except that a remainder in fee may be made to take effect on a prior remainder in fee "in the event that the persons to whom the first remainder is limited die under the age of twenty-one years," or other event happening before their reaching full age. Mark the reduction of "one or more lives in being" to only two lives, and the 21 years to the case of infancy. Under this statute a suspension the judges certify to the house of lords as settled laws that the 21 years are independent of infancy, but the months for gestation are allowed only "when it exists." 100 1 Jarm. Wills, 231, resting on Palmer v. Holford, 4 Russ. 403 (Sir .J. Leach) where all the children living 28 years after the testator's death were to take the fund; quoted in a leading American case,— St. Amour v. Rivard, 2 Mich. 294. So held as to personalty in Smith v. Edwards, 88 N. Y. 92. On the other hand, the number of lives is immaterial. Hale v. Hale, 125 111. 399, 17 N. E. 470. 101 iCentucky, St. 1894, § 2350; Iowa, § 1920; Georgia, § 2267. Recognized in Missouri, Lockridge v. Mace, 109 Mo. 162, 18 S. W. 1145; Illinois, Waldo V. Cummings, 45 III 421; Tennessee, Brown v. Brown (1888) 86 Tenn. 277, 6 S. W. 869, and 7 S. W. 040; and passim in cases quoted below from Massa- chusetts, Pennsylvania, Mai'yland. (171) § 24 LAND TITLES IN THE UNITED STATES. [Ch. 3 of free power of disposition for any length of time, measured only by years, and independent of lives or infancy, whether during the out- standing of a contingent future estate, or while the beneficial inter- est is separated from an active trust, is unlawful and void.^"^ In Indiana, California, and the Dakotas, the number of lives in being is not limited; but the additional 21 years, as in New York, are al- lowed to precede the ultimate remainder-man only to the extent that they are covered by the infancy of a preceding remainder-man.^^' In all these states, except Indiana (New York, Michigan, Wisconsin, Minnesota, California, and the Dakotas), the statute says, expressly, that a devise or grant which will result in an unlawful perpetuity is void in toto.^'* The restriction in Connecticut would be the sharp- est and shortest, but for the nature of the estate tail in that state. No estate can be limited to a person unborn, other than the imme- diate issue (that is, children only, not grandchildren) of persons in 192 New York, 1 Kev. St. pt. 2, c. 1, tit. 2, §§ 15, 16; Michigan, §§ 5533, 5534; Wisconsin, §§ 2039, 2040 (amended in 1887 by adding tlie words "and twenty- one years thereafter"); Minnesota, c. 45, §§ 15, 16. Where land Is ghen in un- divided shares, the lives count separately on each share. Tiers v. Tiers, 98 N. Y. 568; Saxton v. Webber, 83 Wis. 617, 53 N. W. 905; Purdy v. Hayt, 92 N. Y. 446; Palms v. Palms, 68 Mich. 355, 36 N. W. 419; where a number of other New York cases, down to Ward v. Ward, 105 N. Y. 68, 11 N. E. 373, and Kennedy v. Hoy, 105 N. Y. 1S4, 11 N. E. 390, are quoted, and where the separateness of each share is sustained even among unborn grandchildren; so that each share may be kept back by the trustees, to be turned over on his becoming of age. As to years without lives, see Cruikshank v. Home for the Friendless, 113 N. Y. 337, 21 N. B. 64. Garvey v. McDevitt, 72 N. Y. 566; a lease for three lives, the lessor retaining the reversion, does not violate the New York rule, for lessor and lessees jointly can at any moment convey the whole fee. Case v. Green, 78 Mich. 542, 44 N. W. 578. 193 Indiana, §§ 2962, 6057; California, Civ. Code, § 715; Dakota Territory, Civ. Code, § 201. A limitation after Indefinite failure of issue is the most ob- vious example. Huxford v. Milligan, 50 Ind. 542. A closer question is pre- sented in Amos v. Amos, 117 Ind. 20, 19 N. E. 539. 194 New York, 2 Rev. St § 14; Indiana, § 2962; ' Michigan, § 5533; WiscoD sin, § 2042; Minnesota, c. 45, § 14; Cahfornia, Civ. Code, § 772; Dakota Tel- ritory. Civ. Code, § 229. In California and the Dakotas the futvu-e estate is void if "by any possibility" it may extend beyond the limits. See, as to the New York statutes restricting contingent remainder in a leasehold estate, Hen- derson V. Henderson, 46 Hun, 509. For a devise not obnoxious to the New York statute, but on its verge, see Bird v. Pickfoi-d, 141 N. Y. 18, 35 N. li. 938. .172) f^'h. 3] ESTATES. § - ^ being, which evidently means persons named in the deed or will. It seems that a life estate might be thus given (a fee or lesser es- tate).^»= The Ohio statute says, "immediate issue or descendant" and allows unborn grandchildren, as well as children, to take the remain- flpj. 106 jjj Alabama the lives must be no more than three, unless there are life estates given to the donor's children, or wife and chil- dren, and the additional time is limited to 10 years.^"^ In New York it has been held that it is unlawful to suspend the power of aliena- tion by keeping up an active trust beyond the time otherwise al- lowed; ^"^ and this state, along with Michigan, Wisconsin, and Min- nesota, also forbids the limiting of life estates to persons not in be- ing. When a remainder — even a vested remainder — is limited after more than two life estates, all the life estates after the second are thrown out.^^^ The general principle is this: that a devise or grant of a future estate is bad, under the rule against perpetuities, not only when such estate must necessarily take effect too late, or in a manner forbidden, but also when, in the natural course of events, it might take effect 185 Connecticut, § 2952; Beers v. Narramore, 61 Conn. 13, 22 Atl. 1061. Re- peal of rule in Shelley's Case does not affect the law against perpetuities. Leake v. Watson, 60 Conn. 498, 21 Atl. 1075. 198 Ohio, § 4200; Turley v. Turley, 11 Ohio St. 173. 19 7 Alabama, § 1834, dating back to 1834. 198 Everitt v. Everitt, 29 N. Y. 39 (the land was by the will converted into money, but the rule as to perpetuities is the same as to both). In Gai-vey v. McDevitt, 72 N. Y. 556, four years independent of life or infancy was deemed enough to cut off subsequent devise. But a trust till youngest of living grand- children come of age was held valid. Hawley v. James, 5 Paige, 318. Even an indefinite time for winding up trust after lives ended, and without regard to infancy, is unlawful. Manice v. Manice, 43 N. Y. 303; s. p. Dubois v. Kay, 35 N. y. 165; Post v. Hover, 33 N. Y. 601; Tucker v. Tucker, 5 N. Y. 408; De Kay v. Irving, 5 Denio, 646; Gott v. Cook, 7 Paige, 521, affirmed 24 Wend. 641 (with the result in some of these cases of defeating subsequent limitations). These decisions would be authority also in Michigan, Wisconsin, Minnesota, California, and the Dakotas. 199 Minnesota, c. 45, § 17, and corresponding section in other states. In Purdy V. Hayt, 92 N. Y. 446, this is said to be independent of the laws against suspending alienation. If the ultimate remainder is vested, the third life estate is stricken out; if contingent, It fails, and works partial intestacy. (173) § 24 LAND TITLES IN THE UNITED STATES. [Ch. 3 too late, or upon too remote a beneficiary; ^°" and if the limitations are too remote, on their face, e. g. in giving the income to unborn children till they reach the age of 25 or 27 years, it matters not that all of them are born early enough to reach that age within 21 years after the end of a life in being. ^"^ And a fortiori, the court cannot apportion the future estate, sustaining it as to those reaching that age within the period, and defeating it as to the others.^"- What is the result when the rule against perpetuities is violated? Aside from the statutes already quoted, which define the forbidden perpetuity, and its result, so to say, in one breat-h, Indiana directs 200 Beers v. Narramore, supra, the devise being to the lineal lieir of a named life, who might turn out to be a grandchild instead of a child, and thei-efore incapable under Connecticut law. "If, by possibility, the event may not hap- pen," made the test in Donohue v. McNichol, 61 Pa. St. 73. This was, how- ever, a plain ease of a life estate to unborn issue. It turned out that the first taker for life died without issue. Ford v. Ford, 70 Wis. 19, 33 N. "W. 188, uses the words "under any and all circumstances." Women having children at 50, who would delay the vesting of the estate, not deemed impossible. Stout v. Stout, 44 N. J. Eq. 479, 15 Atl. 843; In re Millner's Estate, L. R. 14 Eq. 245; Proprietors of Chm-ch in Brattle Square v. Grant, 3 Gray, 142 (executory de- vise which may possibly not vest, etc.); Sears v. Russell, 8 Gray, 8G (though the event carrying it beyond the limit is highly improbable); Hawley v. James, 16 Wend. 61, 120 (limitation "which by possibility," etc., void); Dono- hue V. McNichol, 61 Pa. St. 73. Contra, Longhead v. Phelps, 2 W. Bl. 704 (probably overruled); Tiers v. Tiers, supra (where the possibility was very slight); Palms v. Palms, 68 Mich. 355, 36 N. W. 419 (event highly improbable;. 201 Leake v. Robinson, 2 Jler. 8(>4, where the limitations affected the Income under an active trust; Proctor v. Bishop of Bath and Weils, 2 H. Bl. 358; Jee V. Audley, 1 Cox, Ch. 324, 2 Ves. Jr. 365. Beers v. Narramore, supra. 202 Thomas v. Gregg, 76 Md. 169, 24 Atl. 418. This and other cases illus- trating the point generally arise under powers, and require for thieir under- standing a knowledge of the subject treated in the first section of the chapter on "Powers." Several will be quoted there, and in the section on "Validity and Substantial Execution of Powers." They arise where a contingent estate is limited after the lives of several children, some of whom are born before, and some after, the death of the first taker. See, also, Lockridge v. Mace, 109 JIo. 162, 18 S. W. 1145, Lockridge v. Mariner, 109 Mo. 169, 18 S. W. 1146, and Leake v. Robinson, supra. But where life estates in common with cross re- mainders were given to two, and a subsequent life estate, the ultimate remain- der was held good as to one-half, as only two lives would pass over the half of the longest liver. Purdy v. Hayt, supra. (174) ^"- 3] ESTATES. § 24 that, where a life estate is given "subsequent to those persons enti- tled to take" (that is, to a person unborn), it shall be thrown out, and the remainder shall take effect at once, while Greorgia gives an ab- solute fee to the last taker, whose limitation is not too remote, which might turn a life estate into a fee simple.-"^ These statutory provi- sions hardly reach the case of a too remote executory devise. Aside of them, there are two classes of cases, — that of an executory devise, or springing use, and that of a contingent remainder. Where the former is void for remoteness, it is simply stricken out of the will or ideed. It is said to be an innovation upon, and infringement of, the com- mon law ; and, unless the conditions are fulfilled upon which alone it is permitted, no mercy is shown to it. Where the executory devise is to defeat a previous fee given in the same instrument, that fee be- comes absolute, if the contingency is too remote. If there is no pre- vious estate at all, the remoteness of the executory devise leads to intestacy. The heirs simply retain their land.-"* But it is otherwise where contingent remainders are created byi deed or will, in excess of the rule, which, as to these estates, knows nothing of the additional 21 years, but allows them to be limited only after a life or lives in being, and, where estates tail are un- changed, after successive estates tail. It is not rare that men un- acquainted with the law, or hoping to circumvent it, write wills, or insist on having them written, in which tliev devise successive life estates to several generations of unborn issue, or to successive eldest sons of eldest sons. The devise cannot stand as written. Some courts have applied a cy pres ("as near as can be") doctrine, like that which the English chancery applies to impracticable gifts for char* itable uses. They will carry out the testator's intention as far as they can ; that is, they give a life estate to the first taker, with an estate tail to his issue or his eldest son, which would, in Connecticut, Ohio, 203 Rev. St. Ind. § 2963; Code Ga. § 2667. 204 And all limitations even after the remote devise also fall to the ground. Proctor V. Bishop of Bath and Wells, supra fexecutoiy devise to son of T. P. who should first take holy orders, which none could before 24 years of age, with devise over should he have no such son). The cases quoted in note.« 198-200 illustrate the result. For the distinction against executory devises, see Leake v. Robinson, supra. In Saxton v. Webber, 83 Wis. 617, 53 N. W. 905, the estate devised next preceding the unlawful perpetuity was sustained. (175) § 24 LAND TITLES IN THE UNITED STATES. [Ch. 3 etc., secure those of the third generation; others have awarded an estate tail to the first taker; ^"^ while some courts have disapproved the cy pres doctrine altogether. And in a well-reasoned American case, where a testator parceled out his lands among his children, each child to have the use only during his life, the court held all the de- vises void from the very beginning, and awarded a partition of the lands under the law of intestate descent.^"" A vested remainder stands on very different ground from a contin- gent remainder, or an executive devise. Only the enjoyment is de- ferred, but the vested remainder is assignable, and can be levied on and sold for debt; and, the owner being known, it does not stand in the way of aliening the whole fee. Hence some of our states have held that the rule against perpetuities is inapplicable to a vested remainder. No one, indeed, would claim that a remainder could not be granted to a living man, in fee, to take effect in 25 years, the es- tate for the term having been granted to another, and such a term might follow one or more lives. The named grantee in remainder might be dead when the estate comes into possession, in which case his heirs would talie by descent from him, and would be bound by his conveyance.^"' It has also been held in Pennsylvania that, where 205 Pitt V. Jackson, 2 Brown, Ch. 52 (shaken by Smith v. Lord Camelford, 2 Ves. Jr. 698), and Vanderplank v. King, 3 Hare, 1, are quoted in cases about pei-petuity for the cypres doctrine; but the former turns on the faulty execu- tion of a power. Humberston v. Humberston, 1 P. Wms. 332; Nicholl v. Nich- oll, 2 W. Bl. 1159 (attempt to establish a line of second sons) ; Doe v. Cooper, 1 East, 229, 234; Allyn v. Mather, 9 Conn. 114. In Gibson v. McNeely, 11 Ohio St. 131, the testator, after the endless line of life estates, added that he wished it carried out as far as the law allowed, and it was done. 20 8 St. Amour v. Rivard (1852) 2 Mich. 294, based mainly on Mony penny v. Bering, 16 Jlees. & W. 418 (attempt to establish primogeniture in gavelkind lands). In the latter case the cypres decisions are disapproved, but not over- ruled, and the decision that the first taker did not get an estate tail out of the successive remainders to issue is put upon narrow ground. It is here said that, though there may be a contingent remainder for life to an unborn child, there can be no vested remainder after such life estate; Jarman's opinion to the contrary being disapproved (1 Jarm. Wills, 241). As to the treatment of a perpetuity in New York, under their shorter limit, see, also, Kennedy v. Hoy, 105 N. Y. 134, 11 N. E. 390, and the very late case In re Ricard's Estate (Sur. Ot.) 28 N. Y. Supp. 583. 207 Dulany v. Middleton, 72 Md. 67, 19 Atl. 146; Lunt v. Lunt, 108 111. 307. : (17G) Ch. 3] ESTATES. § 24 trustees are appointed for unborn children, a direction that these trustees manage the estate, and pay over the income to the bene- ficiary to a later age than 21, and thereafter divide it and convey it to the beneficial owners, does not avoid the ultimate gift for re- moteness.^"' Still more favored is the position of the reversioner; that is, an estate may be brought to an end by a condition, where a "conditional limitation" would be too remote. Thus, the donor of a charity may reserve a reversion, if at any time the charitable purpose should be abandoned or become impracticable, to himself and his heirs; but he cannot direct that the fund or lands of the endowment be, in such a case, turned over to another chosen purpose, unless he fixes in the deed of gift or will a time within the rule of perpetuity.""" The question of accumulation of rents we must leave undiscussed, as it does not directly concern the title to land. We shall recur to perpetuities again, in connection with powers; also, indirectly, in speaJiing of charitable uses for which alone perpetuities may, in many states, be created. A full treatment of the subject of per- petuities would require a separate work, like that of Tir. Gray or of Mr. Lewin. Jarman on Wills treats pretty fully all the older Eng- lish cases, under the head of "Testamentary Power." NOTE. The statute of quia emptores, -which forbade any further subiu- feudations, recognized the power of every owner of land to sell or give away the whole or any part, divided or undivided, of his estate, for its whole dura- tion, or for any shorter period. After the statute de donis had been nullified, in its object of fettering the inheritance, by the decision of the judges on common recoveries in Taltrum's Case, the law of perpetmty stood, in its main features, as follows: The owner of a fee niight "carve" out of it one or more 208 Appeal of Oldmixon, 147 Pa. St. 228, 23 Atl. 553; In re Cooper's Estate, 150 ra. St. 576, 24 Atl. 1057, where the trustees were to act till two-thirds of the beneficiaries should demand a partition; but quaere, whether the restric- tion on the several children to demand their own after coming of age could have been enforced. 209 Theological Education Soc. v. Attorney General, 135 Mass. 285; Palmer V. Union Bank, 17 R. I. 627, 24 Atl. 1091 (reason given that the reverter is necessarily vested, and Its owner may release the condition). It was, however, held in Jones v. Habersham, 107 U. g. 174, 2 Sup. Ot. 33G, that one charity may be substituted to take the place of the first whenever that fails at any indefinite time. lAMD TITLES V.l 12 (177) § 25 LAND TITI.ES IN THE UNITED STATES. [Cll. 3 estates for life. He might follow these life estates up with one or more estates tail; and finally give an estate in fee, or, by failing to do so, retain a reversion in fee to himself and his "right heirs." It all of the remainders were vested, being limited to living persons, by name or designation, and the holder of the first estate and all the remainder-men weie of full age, they could, by joint act. malse a "tenant to the praecipe," and, by a common recovery, bar the whole entail, including remainders and reversion, and sell or resettle the estate. Thus only the first-named remainder-man in tail was needed for action; he could shut out all the later ones. Indeed, all unborn remainder-men, their re- mainders being contingent, might be ban-ed by feoffment (at least, with the consent of the reversioner in fee), for a contingent remainder was destroyed by the destruction of the particular estate. Thus the alienation of the whole fee could only be prevented, either while som.e of the estates cai"ved out of it were held by infants (feoffment, however, would be voidable only, not void), or when the owners of some of these vested estates would not agree to the disposition desired by the others. A fee could not bo limited upon a fee; hence there was no future estate after an estate of inheritance, which a com- mon recovery would not destroy. But, imder the statute of uses, cunning conveyancers invented the springing or shifting use, and executory devise, by which a fee could be limited to begin after a previous fee should be de- feated by a foretold event. They also invented "trastees to preserve contin- gent remainders," — a shadowy vested remainder to come in before those to unborn children; they miglit insist upon the forfeiture arising from a feoff- ment by the holder of the preceding estate. Thus, for a number of lives, and for 21 years and 10 months thereafter, the ultimate owners of the land might be unborn, or at least imlinown, and an alienation of the fee wholly impossi- ble. Early American law writers have echoed the words of English chancel- lors and English land lawyers, in praising these "improvements" in the law of real estate, which have accommodated it to "the necessities of mankind," or rather to the foolish pride of a landed aristocracy, and many American legis- latures have sanctioned all the contrivances for tying up the inheritance of land; have expressly authorized the raising of defeasible fees and executory devises; and have saved to settlers and testators the trouble of appointing trustees to preserve contingent remainders, by declaring such remainders inde- structible; and they have done all this in the naive belief that they were tread- ing in the path of law reform. We have shown in the section to which this note is subjoined that some of the states, at least, have acted with more wis- dom than others, and have materially abridged the power of dead landowners over their estates. § 25. Meaning of Words and Phrases. 1. The words "heirs" and "heirs of the body" are, in the highest sense, technical words, having a well-known meaning. Heirs are (178) t!h. 3] ESTATES. § 25 those on whom the law, in case of intestacy, casts the title of a de- cedent's lands. Heirs of the body are those heirs of a person who are his lineal descendants. These words imply that the person whose heirs are spoken of is dead, for nemo est haeres viventis. But the words are often used in an untechnical sense, a grant being made in a deed "to the heirs of A. B.," who is then alive; and popularly the word ''heirs" denotes common blood, though, by the law of the state, a great share, or even the whole, of a decedent's estate may go to the surviving husband or wife, in preference to blood relations.^^" When in a will a testator gives anything, upon the failure of a preceding devise, or otherwise, to his own heirs, the gift amounts to a reversion, or partial intestacy. The word "heirs" must here be taken in its legal sense.-^^ But in a gift or devise to the heirs of a third person, the word "heirs" is generally construed to mean "heirs apparent," as otherwise, under the rule of nemo est haeres viventis, the gift would be defeated.^ ^^ And in like manner, where a devise or a fu- ture estate in a deed is given, after the death of a named person, to that person's heirs, so that the word can have its legal meaning, the person on whom the law casts the lands of such decedent will take.^^^ But when an estate is devised or granted to the heir or heirs of a person then living, or who is expected to be alive when the gift takes 210 Weston v. Weston, 38 Ohio St. 473 (widow included if she Inherits); Bi-owei' V. Hunt, 18 Ohio St. 311; Richards v. Miller, 62 111. 417 (husband in- cluded); Rawson v. Rawson, 52 111. 62 (widow); Baskin's Appeal, 3 Pa. St. 304. 211 4 Kent, Comm. 50G (a devise to the heir is void if it gives the same estate he would talie by descent) ; 4 Kent, Comm 220 ("heirs" may be word of pur- chase when the ancestor named is dead at the time of the devise, and will designate the next heirs). ■2i2Cushman v. Horton, 59 N. Y. 149 (in a bequest, used in the sense of "heir apparent"). So in a devise in Heard v. Horton, 1 Denio, 168; whenever it appears that the testator knew the ancestor was yet livmg, Carne v. Roch, 7 Bing. 220. Construed, therefore, to mean children. Simms v. Carrot, 1 Dev. & B. Eq. 393. See, also, 4 Kent, Comm. 221. In many cases the context shows that the word "heirs" means simply children. Hughes v. Clark (Ivy.) 26 S. W. 187. In Lott V. Thompson, 36 S. C. 38, 15 S, E. 278, "heirs" was construed to mean children, and the children of such children as the devise excluded. 213 On this rests the rule in Shelley's Case, and the construction of the words witliin it, in the states which do not recognize it. See supra, section 21, note (179) § 25 LAND TITLES JN THE UNITED STATES. [Ch. 3 effect, and more clearly so, when the grant or devise is made to the preseht heirs of a named person, the word cannot be taken in its technical meaning, and will generally mean children. Thus a gift made by a father by deed to his daughter and to her present heirs, or to her heirs by her husband then living, is a conveyance to her and to the children whom she may have by that husband; ^^* and the only question which can arise under such a gift is whether it is con- fined to the children already born, or whether it shall include those born thereafter, which question is generally answered in the latter wdy, there being no reason why the donor should be supposed to discriminate against the unborn children.^^^ Grandchildren or more remote descendants, whose intermediate parents are dead, would be included in the word "heirs," whenever it means children, along with them, and for such a share as they would take by the law of descent in the estate of the person as whose heirs they are named; ^^® but the word would not be construed, in the absence of children or de- scendants, to include ascendants or collaterals, or the surviving wife or husband, when the gift is made on condition that there are heirs; for, as almost everybody has heirs of some kind, such a condition is always construed in the same sense as having descendants.^^' 2. At common law the word "issue," in a deed, was not a tech- nical term for raising an estate of inheritance, — it was not the equivalent of "heirs of the body," — ^but suflScient in the phrase, "if he should die without issue," to cut down a fee simple to a fee tail. In a will this word has always been a good equivalent for "heirs of the body," and sufficient to create an estate tail.^^^ A devise to any one's issue is the same as to his lineal heirs, or heirs of his body, — 211 Pendleton v. Vandevier, 1 Wash. (Va.) 388. 215 Dean v. Long, 122 111. 447, 14 N. E. 34. Compare infra, "to her and her children." 216 In re Hopkins' Trusts, 9 Ch. Div. 131; Baker v. Bayldon, 31 Beav. 209; Feit's Ex'rs v. Vanatta, 21 N. J. Eq. 84; Comp. note 2a. 217 See cases referred to in section on "Dying without Issue." In Coots v. Yewell (Ky.) 26 S. W. 179, a grant of the remainder in fee to "the children, heirs, and legal representatives" of the life tenant was said to mean descend- ants only. See, also, Benson v. Linthicum, 75 Md. 141, 23 Atl. 133; Baxter V. Wann, 87 Ga. 239, 13 S. E. 634. 21S4 Kent, Comm. 273, etc. And see, infra, section on "Dying without Is- sue." (180) Ch. 3] ESTATES. § 25 that is, to those of his descendants who are not separated from him by a living intermediate linli, and who would therefore inherit such person's land under the laws of descent; and the understanding is always that such descendants would receive the same shares, either per capita or per stirpes, when taking under a deed or will, under the designation of "issue," as they would if the thing given came to them by way of inheritance from such person.^^' We have found onlj' one case in American jurisprudence, in which this rule was broken in upon; a family settlement by which the father gave a tract of land upon his own death to his named and then only son, and "such other issue" as he might then have, being divided into three parts, — one to the grantee of such named son, and the other two to this son's own daughters.'^" 3. The word "children" is, in the great majority of cases when it occurs in a deed or will, taken in its true and legal sense of sons or daughters, with the additional qualification of legitimate sensor daugh- ters.^^^ But where a child not born in lawful wedlock is legitimated, either by general law or private act, it may thereafter be designated 219 It was held in England that issue "must take in the order of primo- geniture," — Roe V. Grew, 2 Wils. 322, where it was for that very reason con- strued as a word of limitation. Hall v. Hall, 140 Mass. 267, 2 N. E. 700 (children of deceased children take by representation under a gift to issue). A division per capita is not implied by the words "all such issue." Horse- pool V. Watson, 3 Ves. 383. Where the word "issue" is used in a deed as a word of pm'chase, in a state requiring words of inheritance, the several persons who make up the issue can take life estates only. Rochfort v. Fitz- maurice, 2 Dru. & War. 17. And so in South Carolina. See cases collected in Bradford v. Griffin, 40 S. C. 408, 19 S. E. 76. But see act of 1853 of that state, there referred to. A history of the interpretation of the word "issue" is given iu Palmer v. Horn, 84 N. Y. 516, 519. 220 Weehawken Ferry Co. v. Sisson, 17 N. J. Eq. 475 (on appeal; same case, reiwrted in court below). On the meaning of "issue" and the estate taken by them (a life estate only in default of words of inheritance added to "issue") in South Carolina, independent of the act of 1853, see Bradford v. Griffiji, 40 S. C. 468, 19 S. E. 76. It is but natural that a gift to issue, where it is a word of purchase, should carry it to the same persons who would take it by limitation, where the ancestor does not divert it by deed or will, Wee- hawken Ferry Co. v. Sisson, recognizes the general rule. 221 Collins V. Hoxie, 9 Paige, 81; Shearman v. Angel, 1 Bailey, Eq. 351. Where an illegitimate child inherits from the mother, it would be properly described as her child in a gift or devise. Hughes v. Knowlton, 37 Conn. 429. (181) § 25 LAND TITLES IN THE UNITED STATES. [Ch. 3 as the natural father's or mother's child, son, or daughter.--- Of course, where, by the whole context of an instrument, it is evident, that a particular natural child, though not legitimated in any way, is meant, its designation by the unmerited name of child, son, or daughter cannot debar it from the giver's bounty."^ And so, if he speaks of stepchildren as his children, the children of these may take as grandchildren.^^* 4. We have shown elsewhere that "children" may sometimes mean "heirs," and become a word of inheritance. The condition subse- quent, "if he die without children," must mean "without issue" ; for the donor could not mean to cut down the estate, if there be living descendants of the taker of the fee, the issue of predeceased chil- dren. ^^° This brings us to the construction of the word "children," when named as grantees or devisees, so as to mean or to include grandchildren. The first construction occurs when there are no children, and the devise must otherwise fail, and the testator must have meant the grandchildren.^^" The inclusion happens oftenest when a testator divides among his own children and the children of one or more predeceased children some or all of his lands, and then proceeds to give "to my children" something else (perhaps the share 222 Carroll v. Carroll, 20 Tex. 731. In Drane v. Violett, 2 Bush, 155, it is said that "children" or "issue" includes all those who are capable of inherit- ing. Adopted children are not deemed Included in a devise to A.'s children, though he have no other. Schafer v. Enen, 54 Pa. St. 304. 223 HiU V. Crook, L. R. 6 H. L. 265; Gardner v. Heyer, 2 Paige, 11. It is not enough that the person whose children are to take has no lawful chil- dren, for such might still be born. Dorin v. Dorin, L. R. 7 H. L. 568. Dannelli v. Dannelli, 4 Bush, 51, might have been decided as it was, on the ground that the claimant was clearly intended, but went off on the ground that she was legitimate, and thus filled the description of daughter. The word "children" was, upon Indications of intention, held to include children bom in a void and adulterous marriage. Sullivan v. Parker, 113 N. C. 301, 18 S. E. 347. 224 In re Hallet, 8 Paige (N. Y.) 375; Barnes v. Greenzebach, 1 Edw. (N. Y.) 41; Lawrence v. Hebbard, 1 Bradf. Sur. (N. Y.) 252. 225Parkman v. Bowdoin, 1 Sumn. 359, 366, Fed. Cas. No. 10,763; citing Hughes V. Sayer, 1 P. Wms. 534; Doe v. Perryn, 3 Term R. 484; Wood v. Baron, 1 East, 259. 22 6 Feit's Ex'rs v. Vanatta, 21 N. J. Eq. 84; Palmer v. Horn, 20 Hun, TO, 84 N. Y. 516; In re Baton, 41 Hun, 497. (182) Ch. 3] ESTATES. § 25 of a child dying before him) in the event of lapse or failure. It seems natural that the latter devise should follow the former, generally the greater and surer. The presumption is not so strong when the childien and grandchildren are all those of a third person."' The authorities are, however, by no means in harmony. The inclusion of grandchildren among children, under the circumstances above stated, seems to be the rule; but there are exceptions, on not very apparent grounds.^^* 5. But this vford "children" gives most trouble in a gift "to A. B. and her children," a phrase which has been twie« called "unskillful" by the supreme court of Massachusetts, and one of the meanings of which must be guessed at. Where the first taker, who is generally the wife or daughter of the donor, has children at the date of the deed or will, the literal meaning of this phrase is to make the mother and the children which she then has joint tenants, or tenants in com- mon, of the lands or effects given."" If she has none, she takes the gift for life, with a remainder to such children as may be born from time to time, opening for each as it is born.-'" But the former con- 227 Bowker v. Bowker, 148 Mass. 198, 203, 19 N. E. 213 (devise to seven children and the childi-en of a deceased eighth, with cross remainder if one should die without Issue). So Judge Story, in Parkman v. Bowdoin, 1 Sumn. 359, Fed. Cas. No. 10,763, gives this sense to the word "when the structure of the devise requires it," and inclines to give the inheritance to the issue of a dead child. See, also, Trowitt v. Rodman, 37 N. Y. 42; Scott v. Guernsey, 48 N. Y. lOG; Bamitz's Appeal, 5 Pa. St. 264; Scott v. Nelson, 3 Port. (Ala.) 452; Dickinson v. Lee, 4 Watts, 82; Dunlap v. Shreve, 2 Duv. 334 (against older Kentucky precedents, and by a forced construction of the statute pre- venting lapses among devisees of a class). And so grandchildren may Include great-grandchildren. Tolbert v. Bums, 82 Ga. 213, 8 S. B. 79. Contra, Hone V. Van Schaick, 3 N. Y. 538. 228 Churchill v. Churchill, 2 Mete. (Ky.) 466; Sheets v. Grubbs, 4 Mete. (Ky.) 339; Monson v. New York Security & Trast Co., 140 N. Y. 498, 35 N. E. 945: 229 Annable v. Patch, 3 Pick. 360 ("my daughter S. A. and the children of her body," tenants in common); Allen v. Hoyt, 5 Mete. (Mass.) 324. In the former case it was declared that the devise would open for after born childreii; otherwise the testator would have named them. Gill v. Logan, 11 B. Mon. 231; Cessna v. Cessna, 4 Bush, 516 (where first taker is a man); Bullock v. Caldwell, 81 ICy. 566. 230 Carr v. Estill, 16 B. Mon. 309, where the contention was that the first taker should take an estate tail, according to Buffar v. Bradford, 2 Atk. 220. (183) § 25 LAND TITLES IN THE UNITED STATES. [Ch. 3 strnction is hardly what the unlearned writer of a will or deed could have meant, and, when the children are young and numerous, an awk- ward arrangement^" In Kentucky, where grants and devises in this language have been most numerous, the taking in common has been rejected — First, where the gift is contained in a deed inter partes, and only the first taker is named in the partes, on the tech- nical ground that a person not there named cannot take a present es- tate; °^- second, when the first taker is the donor's wife, on the ground that the husband, having his children in his mind, dislikes giving his wife an estate in fee, which, upon her second marriage, will pass to strangers in blood. Included herein is the case when the husband, with his own means, buys land, which a stranger, at his instance, conveys to the wife and her children.^^^ On the other hand, in California, a deed made to the grantor's wife, "and to her son A. B., and such other children as she may have," was, in the absence of further children, construed, without hesitation or opposi- tion, as a grant of one-half to the wife and one-half to the son, in fee. And in Illinois the rule of the joint estate seems to prevail, and it does undoubtedly in Georgia,"^* while in North Carolina, at 231 "To A. B. and her children" includes those unborn. Dean v. Long, 122 111. 447, 14 N. E. 34. = 32 Foster v. Shreve, G Bush, 523; Webb v. Holmes, 3 B. Mon. 404. The reason given bears also on the intent of the grantor. 233 Turner v. Patterson, 5 Dana, 292; Davis v. Hardin, 80 Ky. 672 (over- CTiling Powell v. Powell, 5 Bush, 619); Koenig v. Kraft, 87 Ky. 95, 7 S. W. 622; Smith v. Upton, 13 S. W. 721. The older cases give some slight separate grounds. The last is based solely on the presumption of the donor giving to his wife only a life estate. In Goodridge v. Goodridge, 91 Ky. 507, 16 S. W. 270, both the wife by name and "her children" were named in the partes; yet a life estate and remainder was adjudged. Frank v. Unz, 91 Kj'. 623, 16 S. W. 712. Of course, the word "jointly" removes all doub|u See Proctor v. Smith, 8 Bush, 81. In the English case of French v. French, 11 Sim. 256, the decision for life estate and remainder and against joint holding is put on two grounds: First, a separate estate was given to the mother; secondly, a joint estate, it was thought, would shut out afterborn children, who could, however, take a share in the remainder. In re Harris, 7 Exch. 344, has been quotea on this subject, but merely holds that, under a bequest to a widow for the maintenance of herself and her cliildren, the latter have an enforceable trust. 2 34Brenham v. Davidson, 51 Cal. 3.52; Dean v. Long, 122 111. 449, 14 N. E. 34, supra (note 215), based on Powell v. Powell, supra, which in Kentucky (184) Ch. 3J ESTATES. § 25 a time when words of inheritance were required in a deed, a grant to the donor's daughter and her children was construed as giving a life estate to her, and a life estate after her jointly to her children."'^' A remainder limited to such sons, daughters, or children as there should be at the time of the father's death did not, at common law, go to posthumous children, then en ventre sa mere, until the rule was changed in their favor by act of 10 & 11 Wm. III. This mat- ter is, in compilations of statutes and in text-books, nearly always treated as a part of the law of descent, which it is not at all. The English statute is either re-enacted or considered as a rule of prop- erty, throughout the United States. ^^^ Among the facts of human life which recur with some regularity, and can be almost calculated beforehand, are mistakes made in le- gal documents, whether these be written by the unlearned parties, by a scrivener, or by a learned lawyer. Some mistakes have oc- curred so often that the habit of the court to construe them away, so as to get at the supposed intent of the grantor or testator, has grown into a rule of property."' 6. It is quite natural, in a will or family settlement, when a gift is made to a child of tender years, to consider that if such child should die under age, so as not to have power to dispose of the thing given him by deed or will, and without issue, the object of the gift would at his death go to collateral heirs, wholly indifEtrent, and per- haps unknown, to the donor. It is therefore natural to insert after stands overruled. Jackson v. Coggin, 29 Ga. 403 (relying on Wild's Case, Coke, 16, which contains a dictum on page 18: "If a man devises land to A. and to his children or issue, and they then have issue, etc., they shall have but a joint estate for life") ; Hoyie v. Jones, 35 Ga. 40 ("to A. B. and the heirs of her body," held an estate in common); hut both of these were cases of devises of slaves. In re Mcintosh's Estate, 158 Pa. St. 528, 27 Atl. 1044, 104vS (devise to A. B. [a man] and his children). 235 Blair v. Osborne, 81 N. C. 417. 236 See hereafter in the chapter on "Title by Descent." The section of the English statute 10 & 11 Wm. III. c. 16, § 1, can be found in Alexander's British Statutes in Maiyland; also in Abut's Digest for District of Columbia (page 640). See it applied in Shriver v. State, 9 Gill & J. 1. See, also, So- teldo V. Clement (1893; Ohio Com. PI.) 29 Wkly. Law Bull. 384. 237 The leading motives of this "free interpretation" are two: "Ut res magis valeat quam pereat," and the search for the grantor's or devisor's in- tent We shall recur to this when we come to the construction of wills. (185) § 25 LAND TITLES IN THE UNITED STATES. [Ch. 3 the gift in fee to sucli a child a defeasance and devise over in case such child should die "under age and without issue," or "without having made a disposition by deed, and without issue." The intent in the settler's or testator's mind is: If the child comes of age, or if he (or she) have issue (women often have a child or children before reaching the age of 21), the estate shall remain good. In putting the two conditions into the shape of a defeasance of the estate, the particle "or" ought to be turned into the conjunctive "and"; but this is overlooked, and we And a devise to A. and his heirs, but if he should die without making a "settlement," or without issue, "if he should die under age, or without issue," then to B. There is no more reason for taking the land from the issue of a man or woman who dies at 20 than from the issue of an older parent. It looks, there- fore, as if having issue alone was intended to save the estate; and so, if one of the conditions for saving it was the making of a marriage settlement, it would be a fraud on the wife to let this settlement become void because the settler, her husband, afterwards died with- out issue.^^* Hence the courts have, in such cases, taken the liberty of reading the conjunctive "and" in place of the disjunctive "or" (in one case, the words being placed otherwise, "or" in place of "and"), and have thereby not only avoided a senseless disposition of an es- tate, but also the infliction of great hardship on helpless, newborn babes. More often, though, such ruling, which has really become a rule of property, has resulted in making the estate indefeasible on the first taker's coming of age.^^" In some cases the mischosen par- ticle was put between the word "unmarried" and either or both of the other terms ("under age and without issue"), and the court like- 23 8 Beachcroft v. Broome, 4 Term R. 441, on a case submitted from chan- cery. 230 SouUe V. Gerrard, Cro. Eliz. 525; Framlingham v. Brand, 3 Atk. 390- ("dying during minority unmarried, and without issue"); and many other cases quoted in 1 Jarm. Wills, 444, 445, down to Jlytton v. Boodle, 6 Sim. 457 (a case of personalty); Turner v. Whitted, 2 Hawlss (N. C.) 613; Holmes v. Holmes, 5 Bin. 252 (though the estate was to begin only when the devisee married or came of age); Williams v. Dickerson, 2 Koot, 191; Brewer v. Opie, 1 Call (Va.) 184 ("before the age of 21 years or lawful heir"); Sayward V. Sayward, 7 Greenl. (Me.) 210; Jackson v. Blanshan, 6 Johns. 54 (where "and" In one clause was corrected into "or" from the "and" in the other clause). Somewhat akin to these cases is Boyd v. Robinson, 93 Tenn. 1, 23 S. (18G) Ch. 3] ESTATES. § 25 wise substituted "and" for "or." ^^^ It has happened, unfortunately, in some cases, that the scrivener, in the fullness of his verbiage, put the words "in either case," "in every such case," before the limita- tion over, and the courts were unwilling to upset such an express declaration.^*^ In one case (that of a deed from father to son, to be void on certain contingencies), but in one case only, a court has read ''and" into "or" for the purpose of enforcing a forfeiture, to the loss of a purchaser from the grantee.^*^ 7. But with the intent of preserving the fee, the same which in other cases led to the substitution of one particle for the other, the words "without issue" have often been interpolated where a father gave an estate to his child, especially his only child, with a limita- tion over to collaterals or strangers if the child should die under age; though there was nothing in the deed or will to show that dy- ing without issue was at all before the testator's mind.^*^ And where the words of a condition are "if the devisee should die," and a fee has been given to him by any implication, — death being cer- tain, and not the subject of a condition, — it is natural to supply the modifying words ""without issue," unless it be a case in which an early death is to be understood, as will be explained in the "Construc- tion of Wills." ^** But, where a limitation over is given in case the first-named devisee (though the grantor's or testator's child) should die before some other event, the meaning expressed is too plain for a court to interpolate the words "without issue," though a literal W. 72, where an estate was to pass from A. to B. If A. died childless and in- testate, and from B. to C. if B. should die childless; "and intestate" was interpolated by the court. 210 Carpenter v. Heard, 14 Pick. 449; Phelps v. Bates, 54 Conn. 11, 5 Atl. 301 ("during minority, or without family or issue"). 2*1 Brooke v. Croxton, 2 Grat. (Va.) 506; Parrish v. Vaughan, 12 Bush, 9r (a. man has the right to make an absurd will). 242 Jackson v. Topping, 1 Wend. 388. 24 3 Spalding v. Spalding, Oro. Car. 185; Strong v. Cummin, 2 Burrows, 707; Nelson v. Combs, 18 N. J. Law, 27; Baker v. McLeod's Estate, 79 Wis. 534, 48 N. W. 657 (there were no words of inheritance, these being needless under the statute. Case between child of only child dying before age of 21, on one side, and a stranger and a charity, on the other. 244 Jackson v. Strang, 1 Hall (N. Y.) 1, quoted approvingly in note to 4 Kent, Comm. 536; Selden v. King, 2 Call (Va.) 72 (an estate tail under old rule); Listen v. Jenkins, 2 W. Va. 62. (187) § 26 LAND TITLES IN THE UNITED STATES. [Ch. 3 enforcement will carry the estate over from tlie testator's blood to strangers.^*^ The limitation over to "survivors," which may as we have seen throw light on "dying without issue," is said by Jarman to have, whenever unexplained, its strict and literal meaning; ''*" i. e. survivors are those of a named class, who remain alive when a future event takes place, especially when the first taker of an estate dies. Now, when several children or grandchildren are named, and, upon the death of one without issue living at the time of his death, the estate is to go to the survivors, it must mean the others of the same class only, and cannot mean the issue v\uich one of the class, dying before the named first taker, may leave behind him. Hence those of the class taking jointly will have a vested remainder, de- feasible only by some ulterior limitation which may be contained in the deed or will, and thus a speedier disposition of the whole fee will be aided.^^^ NOTE. This matter of construing words or phrases generally is not easily- separated from the construction of wills, under which head the thread here the statutes turning estates tail into fees simple, these words of con- dition would become altogether nugatory, while even in England, considering the ready means to dock entails, they would amount to very little. The reversions or remainders following an estate tail fall to the ground when the estate tail is turned into a fee by stat- ute, or they may be barred by fine, common recovery, or statutory deed.=*' In short, in all such cases the intention of the grantor or devisor who imposed the conveyance was wholly defeated, and this upon the theory that he cherished the unlawful intention of tying up the estate for an indefinite time, until the issue of the first taker should fail, and then to let the reversion or remainder come into possession. But if the grantor or devisor set down these words in their natural sense (i. e. that the grantee or devisee should die, having no issue at the time of his death), his intention was clearly lawful, as the con- dition would necessarily be determined one way or the other at the end of a life in being. It is true, the devisee might be outlived by his issue by less than a year, perhaps by one hour, thus render- ing the fulfillment of the condition illusory, yet it is literally ful- filled.^^" Unless the issue survives the first taker for such a very short time, the result of this construction is always to defeat the purpose of the testator or grantor which might have been lawfully 24 Chancellor Kent (4 Comm. 273) puts the doctrine in this form: "If an executory devise be limited to talie effect after a dying without heirs or with- out issue, the limitation is held to be void, because the contingency is too re- mote." In other words, he takes it for granted that the meaning of these^ words is an indefinite failure of issue. As English cases in which the decision was most strongly against the donor's intention may be named Driver v. Ed- gar, Cowp. 379; Newton v. Bamardine, Moore, 127; Doe v. Bannister, 7 Mees. & W. 292. Among Massachusetts cases recognizing the rule in its general out- line may be named Parker v. Parker, 5 Mete (Mass.) 134; Weld v. Williams, 13 Mete. (Mass.) 486; Abbott v. Essex Co., 18 How. 202. 2S0 Jeffery v. Sprigge, 1 Cox, Ch. 62, decided by Lord Thurlow, who thought that the testator meant the limitation over to take effect only on failure of issue. In Pleydell v. Pleydell, 1 P. Wms. 750, Lord Macclesfield thought the rule was created for the purpose of supporting the intention, but admits that it runs counter to the import of the words. Lord BUenborough, also, in Tenny V. Agar, 12 East, 253, thought the, intention of keeping out the remainder-man till failure of issue plain. Same reason was given in early American cases.. Bells V. Gillespie, 5 Rand. (Va.) 273; Oaskey v. Brewer, 17 Serg. & K. 441. (189) § 26 LAND TITLES I.\ THE UNITED STATES. [Ch. 3 carried out. Hence many of the states (as enumerated in the note) have enacted statutes to this effect (quoting from the Minnesota statute) : "When a remainder is limited to take effect on the death of any person without heirs, or heirs of his body, or without issue, the word 'heirs' or 'issue' shall be construed to mean heirs or issue living at the death of the person named as ancestor." ^'^ And, as these clauses occur most often in wills, the states of New Jersey and Maryland have given the new and truer meaning to the words in question only when found in devises. -°^ Some of these statutes are broader than that quoted above, providing, not for the case only in which a remainder is limited, but more generally for every lim- itation over, which often is a reversion; that is, the fee first granted is determined without creating any other estate in place of it. In fact, the limitation over, when allowed, is an executory devise, not a. remainder.^^^ In two states (Ohio and Connecticut) the English rule has never been recognized, and no repealing statute has been found necessary.^^* In most of the other states the old rule has 251 New York, 1 Rev. St. pt. 2, c. 1, tit. 2, § 22; Michigan, § 5538; Wiscansiu, § 2046; Minnesota, c. 45, § 22; Virginia, § 2422; West Virginia, c. 71, § 10; Nortli Carolina, § 1327; Kentucky, c. 63, art. 1, § 9 (St. 1894, § 2344); Ten- nessee, § 2815; Missouri, § 8837 (from an act of 1825); California, Civ. Code, § 1071; Nevada, implied in section 2613 about posthumous children; Dakota Territory, Civ. Code, § 617; Idaho seems to be implied by section 2837; Mon- tana, Comp. Laws, div. 5, § 279; South Carolina, § 1862; Georgia, § 2251; Ala- bama, § 2181; Mississippi, § 2448 ("every contingent limitation"); New Mex- ico, Comp. Laws 1884, § 1424. The Georgia statute of 1854 was applied to a will written in 1850, the testator dying in 1855. Stone v. Franklin, 89 Ga. 195, 15 S. E. 47. 252 New Jersey, "Wills," 25; Maryland, art. 93, § 317 ("die without issue, die without leaving issue"). The New Jersey act is in force since 1861. See the old rule enforced in Davies'. Adm'r v. Steele's Adm'r, 38 N. J. Eq. 168. 2 53 Some of the decisions in favor of the English rule are put on the ground that the law prefers a remainder (as it would be after an estate tail) to an executory devise, such as a new estate taking effect on the death of the first taker on the defeat of his fee. Willis v. Bucher, 3 Wash. C. C. 369, Fed. Cas. No. 17,769. Such a preference is stated in 4 Kent, Comm. 203. 2B4 Parish's Heirs v. Ferris, 6 Ohio St. 563, broadly says: "If he die without issue" means "living at his death." Stevenson v. Evans, 10 Ohio St. 307 (anal- ogous as to succession, to "children and their children," meaning those living when the first set die). Niles v. Gray, 12 Ohio St. 320 ("die without any legiti- (190) Ch. 3] ESTATES. § 2G been enforced witliout any regard to the supposed intention of the testator or grantor: whether the grant aside of the condition has words of inheritance or not, and whether or not the words are such as to raise a fee simple or a fee tail."^ Slight modifying words or phrases have generally been unavailing: such as the particle "then," which would indicate that the further ownership of the estate is to be determined at once upon the first taker's death; ^°° or coupling with the condition of dying without issue that of dying un- der age, or demanding that "he should live to have lawful issue." ^^' Where a devise is made to several, and the limitation over is to the survivors, this would indicate clearly that it takes effect at the time of death; but even on the effect of such a clause the authorities are divided: those in Pennsylvania and part of those in Massachu- setts upholding the technical rule even against such clear indica- tion; ^°' while by others in Massachusetts and by those in New Jer- sey a limitation to the survivors has been recognized as fixing the mate heirs") only reaffirms 6 Ohio St. 563. Morgan v. Morgan, 5 Day, 517 ("dying without children'' to be given its natural import); quoting Doe v. Per- ryn, 3 Term R. 494, for the reluctance of Lord Kenyon about the English rule; Hudson V. Wadsworth, S Conn. 348 ("without lawful heirs of his body"). These decisions are approved in Goodell v. Hibbard, 32 Mich. 47, though Mich- igan has solved the question by statute. 2 55 Morehouse v. Cotheal, 21 N. J. Law, 480 (devise in fee reduced to estate tail by limitation); Hay ward v. Howe, 12 Gray, 49 (no words of inheritance). In Pennsylvania the leading case is Eichelberger v. Barnitz, 9 Watts, 447. Shoof stall v. Powell, 1 Grant, Gas. 19; Shoemaker v. HufCnagle, 4 Watts & S. (Pa.) 437; Hansen v. Hubbell, 24 Pa. St. 244 (no words of inheritance, "if he die without children or heirs"). In New Jersey, before the statute, Condict's Bx'rs V. King, 13 N. J. Eq. 375. In Mississippi, in a case arising before the statute (Hampton v. Rather, 30 Miss. 193), the words were "should he be called away by death without lawful heir." 266 Hall V. Priest, Gray (Mass.) 18. 2B7 Chew's Lessee v. Weems, 1 Har. & McH. (Md.) 463; Arnold v. Brown, 7 R. I. 188. ("It is an established rule"); quoting 2 Jarm. Wills, 178. 2 58Braden v. Cannon, 24 Pa. St. 158; Covert v. Robinson, 46 Pa. St. 274; Moody V. Snell, 81 Pa. St. 359; going back to Haines v. Witmer, 2 Yeates, 400,— all cases of cross remainder. A fortiori when to be divided among other sons. Lapsley v. Lapsley, 9 Pa. St. 130; Brown v. Addison Gilbert Hospital, 155 Mass. 323, 29 N. E. 625; Nightingale v. Burrell 15 Pick. 104. (191) § 26 LAND TITLES IN THE UNITED STATES. [Ch. S time at the first taker's death.^"^ But such words as "without leaving issue alive" would probably be recognized everywhere as fixing the time.^"" In the leading English case the time was fixed by putting the condition that the first taker should die with- out issue "living," then to the remainder-man. ''"^ The substitution of "heirs of the body" or of "heirs" simply for issue is immaterial; for as practically everybody has some heirs, and the limitation over is nearly always to a kinsman of the first taker, the word heirs must mean children or descendants; and "without heir" is the same as "without heirs." "^ Where the failure of issue or heirs is modified, — "no heirs but J. S.," "none but her husband," — it becomes clear that the matter must be determined at the first taker's death.^^* And it would seem that coupling the condition of dying without issue with that of dy- ing under age should also have the effect of clearly fixing the time, but the authorities herein are by no means agreed.^"* A life estate to the first taker, with remainder in fee to his children, and, if he dies without issue, then over, seems clearly to indicate that tJie remainder over is to be determined at the first taker's death.^°° Al- though the rule which construes the limitation upon "dying without issue" into an estate tail in the first taker is closely connected, both in reasoning and purpose, with the rule in Shelley's Case, yet the repeal of the latter by statute has not generally affected the deci- 2=9 Richardson v. Noyes, 2 Mass. 56; Brightman v. Brightman, 100 Mass. 238; Den v. Allaire, 20 N. J. Law, 6; Den v. Howell, Id. 411. So, also, in Kentucky before the statute. Deboe v. Lowen, 8 B. Mon. 616. 260 Den V. Schenck, 8 N. J. Law, 29. 261 1'ells V. Brown, Cro. Jac. 590. 2 62 Goodright v. Pullyn, 2 Ld. Eaym. 1437; Wright v. Pearson, 1 Eden, 119, Amb. 358; Reach v. Martin, 1 Har. (Del.) 548; Waples v. Harman, Id. 223 (heirs and issue); Sutton v. Miles, 10 R. I. 348; Albee v. Carpenter, 12 Gush. 382 ("without issue or heirs"); Osborne v. Shrieve, 3 Mason, 391, Fed. Gas. No. 10,598 ("leaving no male heirs"). The devise in this case was first given to I. S. and his male heir and his male heirs. The "male heir" was given a remainder in tail in his own right, on the authority of Archer's Case, 1 Coke, 66. 263 Appeal of Barry (Pa.) 10 Atl. 120. 264 Busby V. Rhodes, 58 Miss. 237 (issue at time of death). Contra, the old 32; Comp. Laws Utah 1888. § 2739; St. Okl. § 6892. Nevada uses the common-law terms "descend and be distributed," but the effect is the same. See Meeks v. Hahu, 20 Cal. 620; Acts N. M. 1887, c. 32, § 1. « Gen. St. Kan. par. 2562. Under paragraph 2898, the administrator, on failure of assets, appUes for leave to sell "the real estate of the deceased," not that of the heirs. ^ Comp. Laws Mich. § 440C; Dickinson v. Reynolds, 48 Mich. 158, 12 N. W. 24. And see next note. See, contra, under older act, Marvin v. Schaiing, 12 Mich. 356. (205) § 28 LAND TITLES IN THE UNITED STATES. [Ch. 4 lows the lead of Michigan, though not to its full extent; ' Alabama goes not quite so far." On the other hand, in Virginia and North Carolina, with their off- shoots, Kentucky, West Virginia, and Tennessee; in New Jersey, Delaware, and Maryland, — the lands of the intestate vest in the heir at once; neither the administrator nor the probate court can meddle with them; only in a suit (generally before the court of equity) against the heirs can the lands be subjected to the payment of debts. In Washington, also, the statute speaks the language of the com- mon law, and the canons of descent and of distribution are set out separately.^" In Massachusetts, Maine, Vermont, Rhode Island,^^ Pennsylvania,^^ and Illinois,^' the land vests in the heirs, but the ad- ministrator sells lands for debt by order of a probate court; and the heir cannot by alienation or incumbrance defeat such a sale. In 8 The administrator may take possession of lauds. .Tones v. Billstein, 28 Wis. 221; following Michigan decision imder a similar law in Streeter v. Paton, 7 Mich. 341. See an early Indiana case against the deed from the heirs,— Elliott v. Moore, 5 Blackf. 270. Masterson v. Girard, 10 Ala. CO. 10 In Spaight v. Wade, 2 Jlm'ph. 295, under an old North Carolina statute, lands, having been sold for the heir's own debts, were held no longer bound for the ancestor's debts. In New .Jersey it was held that lands bought in good faith from the heir cannot be sold thereafter for ancestor's debts. Den v. Jaques, 10 N. J. Law, 250. In the states here named in the text the title of the heirs can only be divested in regular proceedings to which they are made parties, and any alienee from the heir would have to be made party as terre- tenant. 11 As to the law of the New England States, see Wilkinson v. Leland, 2 Pet. 627, from Rhode Island and the cases there quoted; Gore v. Brazier, 3 Mass. 523, 542; Wyman v. Brigden, 4 Mass. 150, 155; Driukwater v. Drink- water, Id. 354, 359, to the effect that the administrator's power of sale is not defeated by alienation. Under chapter 134 of the Massachusetts Public Stat- utes, the administrator is entitled to possession when he has obtained license to sell for debt. 12 In Pennsylvania the heirs have only the sui-plus after the payment of debts. Blank's Appeal, 3 Grant Cas. 192. But, if there is only one heir and no debts, administration is needless, and the heir can make title. JIcLean v. Wade, 53 Pa. St. 140. 13 Vansyckle v. Richardson, 13 111. 171 (heir cannot incumber the land as against the ancestor's creditors). For a declaration of heirship by the probate court, see Keegan t. Geraghty, 101 111. 20. (206) Ch. 4] TITLE BY DESCENT. § 2S New York, the distinction between descent and distribution is kept up; and though a judgment for the ancestor's debt is a higher lien than one for the debt of the heir, yet, by express direction of the statute, a deed made by the heir, to a purchaser in good faith, before notice of lis pendens, or judgment roll filed, will be respected.^* In Texas, a conveyance by the heirs prevents a sale on summary order of the probate court, because the administrator can, under the statute, sell only the "decedent's lands"; but the deed of the heir would probably not stand good against a suit of the ancestor's creditors to subject the land.^° Even in states in which the power of the administrator is quite extensive, as in Michigan, "Wisconsin, and Alabama, it is the rule that when he neither takes nor claims possession, in a contest between the heirs or devisees on one side, and strangers in title to the estate on the other, the former have the right of possession, and may main- tain ejectment.^" In Florida, also, lands are assets in the hands of the executor or administrator, though he can only take possession of them by order of court. He represents the inheritance so far that he alone may be made a party defendant to the foreclosure suit by a mortgagee and the heirs are bound by the decree and sale had in such suit. But the deed of the heir passes the title subject to the decedent's debts." In states like Connecticut or Kansas, in which land passes through administration like chattels, the pur- chaser of land from the heir has no greater rights than the pur- li Code Civ. Proc. N. Y. §§ 1853, 1854; 2 Rev. St. X. Y. pt. 3, tit. 3, c. 8, § 51. See Covell v. Weston, 20 Johns. 414. See, further, on this subject, in sections on "Sale by Administrator under License." 15 Mitchell v. Dewitt, 20 Tex. 294; Morris v. Halbert, 30 Tex. 19. And land vests at once in the heir, subject to debts. Chubb v. Johnson, 11 Tex. 469. 16 Campau v. Campau, 19 Mich. 116; Jones v. Billstein, 28 Wis. 221; Mas- terson v'. Girard, 10 Ala. 60. This matter will be referred to hereafter in treating of sales by administrator under "license." In New Hampshire, where the powers of the administrator over descended land are very full, it is said to vest at once on the ancestor's death in the heir. Lane v. Thompson, 43 N. H. 321. 17 Code Fla. 1892, §§ 1817-1819; Merritt v. Baffin, 24 Fla. 320, 4 South. 80G; see also Belton v. Summer, 31 B'la. 139, 12 South. 371. And, on the other hand, Stewart v. Mathews, 19 Fla. 752. (207) § 28 LAND TITLES IN THE UNITED STATES. [Cll. 4 chaser of a chattel from the distributee has at common law; i. e. nothing but an equity, subject to all charges. But, where the common law is unchanged, the heir takes possession at once, having the "right of entry"; the administrator cannot meddle with the rents; the land can only be subjected to the ancestor's debts by a regular suit, to which the heirs are made parties. Until such ac- tion is brought, either on behalf of one or of all the creditors, the debts of the ancestor are not a lien on the descended lands; and, if one has purchased from the heirs in good faith, he takes as good a title as if he had bought the lands of a man who is himself in debt, but for whose debt no lien has yet arisen. This is the statutory rule in New York, and has been laid down judicially in New Jersey and North Carolina. The authority of the supreme court of the United States,^ ^ followed in Illinois, runs the other way; but it was rendered in a case from Connecticut in which the heir to land was even then hardly more than a distributee. The supreme court looked on the law which subjects descended lands to sale for the ancestor's debts as raising an inchoate lien, like a power given to executors by will to sell the lands which are allowed to de- scend, and intimated that the title of the purchaser from an heir might be displaced by an administrator's sale at any time within the time for limiting actions for land. In states in which the personal representative cannot meddle with the lands at all, and he or a creditor can subject them to the payment" of debts only by an administration suit, in the nature of a bill in chancery, making the heirs and terre-tenants parties, upon the allega- tion of a deficit of assets, the rule of the supreme court would be intolerable. At least, when the shorter period for bringing an admin- istration suit has elapsed, the alienee should be safe from disturb ance, though single creditors might perhaps still have the statutory right to subject the descended lands to their own claims. It is to be wondered that both statutory provisions and judicial decisions on this highly important question are so scanty. At one time, corporate shares in companies like railroads, whose assets are mainly lands and franchises, were deemed real estate; but it is not believed that such is now the law in any state, Kentucky 18 Ricard v. Williams, 7 Wheat. 59, 114, from Connecticut (208) ^il- 4] TITLE BY DESCENT. § 28 having provided to the contrary in 1^71, and Georgia cleared up all doubts on the subject by an act of 1893." There is in most of the American states no estate of inheritance, except the estate in fee simple, either absolute or defeasible, as an estate in tail is generally by statute turned into a fee simple. In some states, words which would under the statute de donis create a fee tail raise a life estate in the first taker, with remainder in fee in the heir ; while in a very few states a fee tail still exists, descend- ing by special rules, but rare and unimportant. An estate held by the decedent for the life of another goes in most states, as personalty, to the administrator; but in Massachusetts, North Carolina, Minne- sota, Nebraska, Oregon, Washington, and Arizona, and, notwith- standing a contradiction in the statute, probably also in Wisconsin, Ihe statute of descents in express words embraces these estates.-" A mining claim, though resting on no better law than the "rules and customs of miners," is real property for all purposes, and sub- ject to the laws of descent like land.-^ An equitable fee, an equitable right to have a conveyance of land in fee, an equity of redemption, goes to the heir as land held in fee," though the statute of descents may only speak of laud of which the decedent died seised. Even where the equity grows out of a bond for title, which at law must go to the administrator, the interest in the land goes entirely to the heir ; and the acts of the administrator will be held void when they interfere with the heir's equity.^' En- tries and surveys, under the land laws of Virginia, North Caro- lina, and states having similar systems,^* located land war- i» Sess. Acts 1893, c. 1>24. 2 The first clause in the statute of descents generally states what descends. In AVisconsin, section 2030 makes an estate pur auter vie descend. Section 2270 calls the remnant after the gi-antee's death personal estate. 21 Belli V. Meagher, 104 U. S. 279, 283. 2 2 Asay V. Hoover, 5 Pa. St. 21 (equity of redemption). See Nicholson v. Halsey, 1 Johns. Ch. 417, and innumerable cases in which the matter is taken for granted. 2 3 Myrick v. Boyd, 3 Hayw. (Tenn.) 179; Stephenson v. Yandle, Id. 109. See, contra, Godfrey v. Dwinel, 40 Me. 94; Code Miss. 1892, § 154G. 2 4 Hansford v. Minor's Heirs, 4 Bibb (Ky.) 385; Moore v. Dodd, 1 A. K. Marsh. (Ky.) 140; Workman v. Gillespie, 3 Yeates (Pa.) 571; Morrison v. Campbell, 2 Rand. (Va.) 206. Compare, Bond v. Swearingen, 1 Ohio, 395. landtiti.es v.l — 14 (209) § 28 LAND TITLES IN THE UNITED STATES. [Ch. 4 rants,^" and certificates of purcliase at a tax sale, go to the heir.^® On the other hand, the legal title held by a trustee for the benefit of oth- ers, and the estate of avendor of land who has been paid in part only, and has not yet made his deed, go to^ the heir only in trust for the administrator.^^ On common-law grounds it has been held that a ferry license is a hereditament; so is a church pew.-* A lease for a long term, for instance, for 99 years, goes as personalty. But, by statute in Ohio, a ''perpetual lease, renewable forever," and in Massachusetts a lease for 100 years, or a longer term, of which 50 years are still unexpired, descends like a fee.^° We cannot discuss the lengthy provisions borrowed by the Lou- isiana Code from the French law as to the unworthiness of heirs. But the question has been very lately raised in Nebraska, whether a relative who had murdered the intestate could take the inherit- ance; and it was first held in the negative, on the authority of a New York decision excluding a legatee who had poisoned his grandfather from a bequest in his will. But on rehearing the supreme court of Nebraska decided that it had no power to ingraft exceptions on the statute of descents; and the same was held in North Carolina as to dower. A late statute in Mississippi adopts the rule that no one can inherit from a person whom he has killed; the estate must de- scend as if the homicide had never lived, thus excluding his issue along with him.^" 2 5 Armstrong v. Cauipbel), 3 Yerg. (Tcun.) 201; Shanks v. Lucas, 4 Blackf. 476. 2 Rice V. White, 8 Ohio, 216. 2 7 BeiTien v. McLane, 1 HofC. Ch. (N. Y.) 421; Martin v. Price, 2 Rich. Eq. 412; Vincent v. Huff, 8 Serg. & R. 381. 2 8 Lewis v. Town of Gainesville, T Ala. 85; McNabb v. Pond, 4 Bradf. Surr. (N. Y.) 7. 2» Murdock v. RatclifE, 7 Ohio, 119; Rev. St. Ohio 1890, § 4181; Pub. St. Mass. c. 121, § 1 (from Rev. St. 1830). so SheUenberger v. Ransom, 31 Neb. Gl, 47 N. W. 700, which relies on Riggs v. Palmer, 115 N. Y. 506, 22 N. B. 188, was reopened, and upon rehearing (59 N. W. 935) the contrary opinion given. So, also, Owens v. Owens, 100 N. C. 240. Code Miss. § 1554, disinherits the parricide. (210) Ch. 4] TITLE BY DESCENT. § 29 § 29. The Common and the Civil Law. The course of descent is in every case determined by the law in force at the time of the former owner's death. It often becomes necessary to go back to laws long repealed or modified, in tracing a title through a course of several descents; and it is always useful to know the old law, in order to understand fully the statutes now in force. Before going into the history of American legislation, we must be- gin with the English common law of descent, under which all the original states, except New Hampshire, Massachusetts, and Connec- ticut, lived before the Eevolution. L Under the common law, a distinction was made between lands purchased by the decedent and those coming to him by descent. As to the former, he was from necessity the stock of descent; as to the latter, he was such only if he was seised, — "seisina facit stipitem,"- — that is, if he had seisin in law, no freehold estate being outstanding (for a reversioner or remainder-man after a freehold estate is not seised) ; and if he had, moreover, seisin in fact, or actual possession, that which Coke so well defines as the "possessio fratris." Unless the intestate had such seisin in law and in fact, not he, but the last ancestor who had such seisin, would be the propositus from whom the descent must be counted. But, among the collateral heirs of him who formed the stock or root of descent only those could take who were of the blood of the purchaser, — generally, though illogic- ally, called "the first purchaser," — and who were by that blood his nearest heirs. Thus, if A. purchases land in fee, and it descends to B., who is seised, and from him to C, who never is seised, and he dies, the fee will pass by descent to the heir or heirs of B.; but, if B. has no issue, to such collaterals only as are of the blood of A., and the nearest in blood to A." 31 See Bl. Comm. bk. 2, c. 14. Kent, in his Commentaries on American Law (volume 4, § 65), sets forth the common-law canons of descent, and character- izes them as harsh and cruel, but simple and certain. A good exposition of what is meant by seisin in the maxim "seisina facit stipitem" (in other words, to constitute a possessio fratris) can be found in Green v. Liter, 8 Cranch, 22'J. The maxim is also well explained in Kelly's Heirs v. ilcGuire, 15 Ark. 55.",. Perhaps the statement of the text that seisin is immaterial as to an estate (211) § 29 LAND TITLES IN THE UNITED STATES. [Ch. 4 n. The estate passes at common law to the eldest son of the pro- positus, if he has any sons ; if not, to all his daughters in coparcenary, the eldest daughter having some privileges of first choice in making division. Should the eldest son have died before the father, or should one or all of the daughters (there being no son) have died in the father's lifetime, the issue of such predeceased child v^ould come in his or her place by representation, — always per stirpes, or by stems; that is, if all the daughters were dead, the issue of each would take the parent's share; and so on to more distant descendants. But the issue again must be the eldest son, if there are sons; daughters taking in coparcenary only in the absence of sons. m. In the absence of issue, the lands go to the eldest brother of the propositus; and, in the absence of a brother or issue of a brother, to the sisters in coparcenary, with the same rule of representation as there is among lineals. The brothers and sisters must be of the whole blood. IV. If there are no brothers or sisters of the whole blood, or their issue, the estate does not go to the father, but to the brothers and sisters of the whole blood of the father, and to their issue as before; and, on failure of these, to the brothers and sisters or the paternal grandfather and their issue, as before ; and so ad infinitum. V. If the estate had come by descent, it must remain in the blood of the ancestor from whom it had come, which would alter the case materially, if it had come ex parte materna, tliat is, from the mother or a maternal kinsman. AT[. A purchased estate might go to the kindred by the mother's side only, if there were no kindred on the father's side at all. \Yliich has come by purchase does not cover the whole ground. It should be added that the heir is determined, not as of the intestate's death, but as of the time when the estate vests in possession. The matter may be still of in- terest in Maryland, the District of Columbia, and iS'orth Carolina. We refer the reader to Coke upon Littleton (Thomas' edition). The inheritance from brother to brother is deemed direct; hence, if both are subjects, the alienage of their father is immaterial. When the ordinary heir is an alien, the on^ next in remoteness is admitted, if he is a subject. The statute of 11 & 12 Wm. III. c. 6, did away with the obstacle of inheriting through an alien wheil both transmitter and heir are subjects. For the English authorities, see cases in United States supreme court; Levy v. M'Cartee, 6 Pet. 102, and M'Creery V. Somerville, 9 Wheat. 351. (212) \ Ch. 4] TITLE BY DESCENT. § 29; Vn. Collaterals by the half blood cannot take at all, — even -where the estate has come by descent, and the collaterals are of the blood of The transmitting ancestor; even where their exclusion leads to an escheat.'^ Vin. A bastard (one not born in lawful wedlock) is Alius nullius, and f-annot take from any one by descent, nor transmit his own es- tate at death, except to his own lawful issue. IX. The posthumous child of the intestate could always take at common law ; even the posthumous child of a kinsman born after the intestate's death might succeed by way of a "shifting inheritance." X. Where the intestate left an heir, not in his nature the nearest, or heir apparent, the inheritance might be displaced afterwards by the birth of a nearer heir. For instance, if his next heir at death was an uncle, the inheritance would be displaced by the subsequent birth of a sister; and, again, by the birth of a brother; or, if there was only one sister at his death, a second sister born thereafter would come in for one-half as coparcener. XL Wife and husband could not inherit land from each other, even to save an escheat. XII. An alien could not transmit nor take land by descent, not having inheritable blood; nor can a subject derive descent from a subject through an alien intermediary. This harsh and inhuman system was at least simple and free from doubt. It agreed with the old Roman law in this: that on failure of issue the next agnate, i. e. nearest kinsman connected with the de- cedent by male ancestors only, took the estate; but in the old Ro- man law only descendants or lineals took by representation, while the brother (and sister?), as the nearer, excluded the nephew. In ancient Rome and in feudal England the main end of the law was 3 2 The rule excludes those of the half blood entirely, even where the estate comes from a parent, and the half-biother is the son of that parent. For in- stance, in the ease of land coming from A.'s mother to A., preferring tbe brother of A.'s mother to her son by another husband than B., is among aU the common-law canons the most irrational. Connecticut had before the Revolu- tion followed this rule, though not living under the common law of descent; but in the early case of Clark v. Russell, 2 Day (Conn.) 112, the colonial deci- sion was overruled, on the ground that among "next of kin," as defined by the statute of distribution, there is no distinction between whole and half blood. (213) § 29 LAND TITLES IN THE UNITED STATES. [Ch. 4 to build up the gens or house. But at Rome primogeniture was un- Ivuown. Tlie daughter, it seems, inherited with the son, and even the mother, if in the power of the husband, would count as a child, and thus inherit. ^^ The Hebrew law, as sketched in the Pentateuch and elaborated in the Mishna, is based on principles not unlike those of the common law, as to the tracing of kinship. But the eldest son gets only a double share; and among collaterals there is no primogeniture at all. Males in the same degree are preferred to females; representa- tion by stems holds good throughout, both among lineals and collat- erals. The father and other male ascendants (only in the father's line) are not excluded; on the contrary, the ancestor always precedes his children. The half blood on the father's side is as good as the full blood ; the half blood by the mother's side does not count at all. Here, as in the common law, the daughter of a deceased son has precedence over the son of a deceased daughter.^* But the Roman law, which has affected European and American legislation, is not that of the Twelve Tables, which was in vogue in 3 3 Prof. R. Sohm (Institutes of Roman Law) gives the first canon of the Twelve Tables tlius: "Si intestato moritur cui suns heres non escit proximus agnatus familiam habeto." He thinks a daughter would under this canon take as suus heres. A wife who was in manu must have taken a child's share under the old law. The child of a predeceased daughter, not being in manu, could not have taken as suus heres. Ulpian puts it: "Mulier autem familiae suae et caput et finis est." A kinswoman more remote than a sister was not reckoned an agnate. 3* See Numb, xxvii. 8-11; Dent. xxi. 16 (which denies to the father the right of changing the shares of his sons by will). The cauons of descent laid down in the Mishna (Baba Bathra, c. S) prefer the father or ascendant to his issue; while the text in Numbers, assuming that no one has an allotment till after his father's death, passes by ascendants altogether. The common law also saw no room for an ascent of the inheritance. In the old Roman law there was no occasion for it, for the Alius familias could have no property of his own; and, if the father emancipated him, he remained his patronus, and would on the son's death without issue succeed in that capacity. The Jewish law (Baba Bathra, c. 9, § 1) gives to the daughters alimony out of the father's estate, which must swallow up every small estate ("the daughters must be fed though the sons go begging"), as now is the case in America by reason of the allowance to the widow and minor children, and of the homestead. The common law had no such feature for tempering its harsh exclusion of the daughters from all share in the father's land. (214) ^ll- 4] TITLE BY DESCENT. § 29 the early republic; nor that jurisprudence which during its growth in the later republic and early empire had sloughed off many of its harsh features; but the new law as Justinian laid it down in the 118th and 127th of his Novels. The cognatic kinship, which runs alike through females and through males, in the mother's as well as in the father's line, takes the place of the agnatic. The rule of rep- resentation per stirpes is retained among descendants, whether they be of the same or of different degree. The wife no longer takes a child's part; for the marriage relation had been so far changed that the wife is never in manu of the husband, and thus on the footing of a child. On failure of issue, the estate goes, secondly, to the as- cendants jointly with the brothers and sisters of the whole blood, and to the issue of such brothers and sisters. Among ascendants, only the nearest take; if either father or mother be alive, no grand- pai'ent takes anything; am'ong several grandparents, the division is made in lineas; the paternal and the maternal line will take equal shares. The issue of each brother or sister take the share of a pre- deceased brother or sister per stirpes. But when there are both ascendants, and brothers or sisters or their issue, the ascendants take per capita each the share of a brother; and so does the issue of one brother or sister. When there are only nephews and nieces, they take per capita; the division per stirpes among collaterals taking place only when it is unavoidable. The third class, after the failure of the first and second, is that of brothers and sisters of the half blood, and the issue of such brothers and sisters, with the same rules of representation as in the second. The fourth class embraces other cognati or kindred in the nearest degree, counting them both ways; that is, from the propositus or decedent up to his ancestor, and from the ancestor down to the heir. Thus a great-uncle stands in the fourth degree, counting three to the great-grandfather, and one down from him; and a first cousin or grandnephew is also in the fourth class; but the grandnephew comes in as heir in the second class. An uncle or aunt will, as standing in the third degree, exclude a first cousin, the child of a deceased uncle or aunt; the latter being in the fourth degree. In the fourth class, no distinction is made be- tween those of the whole and those of the half blood. Adopted children, if "fully" adopted, would inherit, not only from the adopting father, but through him from his father. Natural chil- (215) § 29 LAND TITLES IN THE UNITED STATES. [Ch. 4 dren might be made legitimate by the father's subsequent marriage with the mother, and aclinowledgment. Natural children inherit from and transmit to the mother; and receive, together with their mother, in the absence of lawful issue, one-sixth of the succession, under the 89th Novel. Husband and wife succeed each other only on the failure of all kindred by blood; except that under Novels 53 and 117 the dowryless "poor widow" of a wealthy husband takes, on the failure of issue, one-fourth absolutely, or, when there are three or fewer children, one-fourth for life; if more than three, a child's share for life.''^ The Spanish law was in force in Louisiana at the time of the pur- chase; and, of course, in Florida. The Spanish-Mexican law which till 1840 regulated the descent of land in Texas, and for a short time in California, and until quite recent times in New Mexico and Ari- zona, recognized the one-fourth of the p'oor widow, to be forfeited by her leading a lewd life or marrying again within a year after the husband's death. The preference of the whole over the half blood is also carried out.^" The French Civil Code of 1803, which was closely followed by the first Code of Louisiana, lays down canons of descent very similar to those of the Novels. But collaterals of the half blood are not postponed to those of the whole blood; only the latter take "in both lines," which gives them rather more than double 3 5 See, for a clear exposition of the law of the Novels, Heineccius, §§ 681- 702, or Sohm's Institutes of Roman Law, § 08 II. 3 6 Boone v. Hulsey, 71 Tex. 176, 9 S. W. 531; Wardlow v. Miller, 69 Tex. 395, 6 S. W. 292; quoting Schmidt, Law of Spain and Mexico. This one-fourth (cuarta marital) cannot exceed 100 pounds of gold in value. The old Spanish law of descent is fully discussed in Garret v. Nash, Dall. Dig. (Tex.) 498. It is said that the forfeiture by remarriage within the year is abrogated. The children were necessary heu's. The father could not adopt a stranger, or devise more than one-flfth of his estate away from his children. Teal v. Sevier, 26 Tex. 516. In 1836 (Spanish law) brothers of the half blood were postponed to the whole blood. Wardlow v. Miller, supra. See, for Mexican law in California, Emeric v. Alvarado, 04 Cal. 529, 2 Pac. 418. In the Louis- iana purchase the Spanish law superseded the French in 1769. See Beard v. Poydras, 4 Mart. (La.) 3G7. For a full discussion, of the Spanish law of de- scent, especially on the question of half blood, see Cutter v. AVaddington, 22 JIo. 206. Under the Spanish law, a bastard not resulting from adultery or incest, and his mother, could inherit from each other (bastardo espurio). Pet- tus V. Dawson, 82 Tex. 18, 17 S. W. 714. (210) Oh. 4] TITLE BY DESCENT. § 29 shares. Father and mother do not take virile shares with brothers and sisters, but, if both are alive, one-half of the estate; if only one lives, one-fourth; both of them take all when there are no brothers and sisters, or issue of such. If only one is alive, the share of the other goes to hi§ or her kindred. Higher ascendants are postponed to brothers and sisters, and take per capita. Among kindred in the same degree those connected through the nearest ancestor of the in- testate are preferred; e.g.acousinto a great-uncle. Publicly acknowl- edged natural children come in for a share, which ranges from a third to three-fourths of what a lawful child would get, according to the remoteness of the other heirs from the decedent. Husband and wife come last, before the state. The share of the poor widow is un- known; but the "community of acquests" well supplies its place.''' In England, at the time of the settlement of the American colonies, and far down in the seventeenth century, the personal effects of those dying, with or without testament, were administered under the supervision of the ordinary or bishop's surrogate, who followed, in the main, the canons of succession laid down in the late Roman or civil law, till parliament took the matter in hand, and in 22 & 23 Car. II. enacted the statute of distribution, which distributes the "surplusage," mainly in agreement with those canons; compounding them with English customs, by which the widow has a pars rationa- bilis, generally one-third of his personal estate, or one-half on the failure of issue. The law was amended in the reign of James II. so as to excuse the husband who administers on his wife's estate from accounting to her next of kin; in other words, he was to retain the whole personal estate of his deceased wife.'^ The word "degree" in 37 Code Civ. arts. 731-735. The law regarding .status of children is found In earlier parts of the Code. 3 8 22 & 23 Car. 11. c. 10, found at large in Williams on Executors. Aside of London and the province of York, where it dealt only with the "dead man's part," untouched by the custom, and thus duplicates the reasonable share of the wife, which is borrowed from these very customs, the statute gives the "surplusage" thus: One-third to the wife; the residue to the children of the Intestate "and such persons as legally represent" them if dead. Then follow rules as to advancements. "And in case there be no children, nor any legal representatives of them," then orie-half to the wife, "the residue to be dis- tributed equally to every of the next of kindred • * * who are in equal decree, and those who equally represent them: provided, that there be no (217) § 29 S.AND TITLES IN THE UNITED STATES. [Ch. 4 the statute of distribution is construed as in the civil law, counting up to the common ancestors, and down to the claimant. In the canon law the degrees are counted only in the longer of the two lines, or in one of two equal lines; thus, a cousin is in the second line, a granduncle or grandnephew in the third. But there is no canon law of succession, and it is hard to say what is meant by the "canon law as understood in England in 1776," to which reference is made in the canons of descent in the Civil Code of Georgia.^° The territory of New Mexico until 1884 retained its Spanish-Mex- ican laws. Common-law principles were then introduced in many representation admitted among collaterals, after brothers' and sisters' chil- dren." In case there is no wife, the whole goes as the residue is directed to go as above. The half blood takes equally with the whole blood. A post- humous sister takes. Wallis v. Hodson, 2 Atk. 114. A later statute (29 Car. II. c. 3, § 25) directs that the husband administering on his wife's goods need not distribute; and a later statute (1 Jac. II. c. 17) directs the distribution of the share coming to a child from the father, on its death, among the mother and other children of the same father. 30 2 Bl. Comm. pp. 504, 516, quoting Finch, Prec. 593. But this con- struction was undoubted. In fact, as the canons of succession, except as tO' the widow's part, are so closely modeled upon Justinian's law, there was no good reason for construing, "nearness" and "equal degree" otherwise than in the terms of that law. Mr. Christian, the editor of Blackstone, is right in pointing out the utter irrelevancy of the great commentator's reference to flie common-law degrees in the chapter on descent; for at the common law the order of descent depends, not on the fewness of the degrees between Intestate and heir, but only on the nearness tb the intestate of the common ancestor, from whom the heir traces his own descent, without regard to the distance of that heir's descent from the common ancestor. Blackstone has, by dragging in the canon-law degrees, needlessly confused, not only many law writers, but also the legislature of Georgia, and induced many writers of statutes to add a section In which it is expressly declared that degrees of consanguinity shall be reckoned by the rules of the civil law. The only reference in the corpus juris canonici is in a decretal of Collestine III. (chapter 119, A. D.), sent t& ans\yer an inquiry whether a man who is removed in the sixth or seventh de- gree may marry a woman removed from such ancestor in a nearer degree; and a decretal of Gregory IX. (chapter 1232, A. D.), which says that "a man descended in the fifth degi'ee from the ancestor may marry a woman de- scended from him in the fourth degree, because in whatever degree the more remote person is related to the ancestor in that he is related to all of his de- scendants." Neither decretal alludes to descent. We shall recur to this sub- ject in the section on "Remote Kindred." (218) Cll. 4] TITLE BY DESCENT. § 30 branches of jurisprudence; a law of descent following modern Amer- ican lines was enacted in 1887.*" § 30. Course of American Legislation. The three states of New Hampshire," Massachusetts,*' and Con- necticut *^ never lived under the rule of primogeniture. They adopt- ed, towards the end of the seventeenth century, the canons of the English statute of distribution for the disposition of the lands as well as of the goods of the decedent, except as to the rights of husband and wife. In Rhode Island and in the middle and southern states the common-law rules of descent were in force till abrogated, during or soon after the Revolution, on political grounds. The canons of the civil law of succession were known to the statesmen and lawyers of the day, through the English statute of distributions, and through Blackstone's Commentaries; and thus a system lay at hand leading to the subdivision of estates by equality among males and females, and among older and younger children. New Jersey, in 1780, was the first to enact her new law of descent, which deviates as little as possible from the common law, while carrying out the great object of equality; New York followed in 1782, but recast the act of that year in 1786. North Carolina in 1784 passed two acts(chapters 10 and 22) embracing the new system. It passed from there into Tennessee. Maryland act- ed in 1783 ; her system passed in February, 1801, into the District of Columbia, where it has since remained unchanged. Virginia, em- bracing then Kentucky and West Virginia, adopted in 1785 her new descent act, drawn by Jefferson, to take effect January 1, 1787. The feature of keeping ancestral estates in the blood of a former owner was left out entirely, but was partly restored in 1790.** The new 4 Acts 1887, c. 32. 41 See New Hampshii-e acts of July 12, 1782, and February 23, 178(5. 4 2 The Massachusetts act of 1782 gave to the eldest son a double share, which provision was soon stricken out. It also introduced the principle of making the descended "portion" of one of several children, dying under age, go to the other children. The law of descent was revised by act of 1805 (chapter 90). Defects in that were remedied by an act of March 12, 180C. 4 3 The Connecticut colonial act of 1699, framed on the English statute of distribution, was in force till 1784, and but slightly changed then. 44 12 Hen. St. at Large, p. 138, c. 60; also, 1 Lltt. Laws Ky. 557, or 1 Jloore- head & B. .St. Ky. 5i;2. (219) § 30 I.AND TITLES IN THE UNITED STATES. [Ch. 4 system was introduced in Rhode Island in 1798, in South Carolina in 1791, and so in the other original states.* ° The five states of the old Northwest began life under the ordinance of June 13, 1787, which bears at its very head a law for the equal division of descended lands as the groundwork of a free commonwealth; a law which is short, but comprehensive enough, in the opinion of the supreme court of the United States, to supersede the common law of descent in all its features.*" Texas lived under the Spanish law of succession, already referred to, till it enacted on the 28th of December, 1810, a statute on the American model, which was remodeled in 1842, so as to free it from the English distinction between descended and purchased estates.*' While Louisiana substituted a French Code for the Span- ish law, the governor and council of the Missouri territory in 1807 enacted a law based mainly on that of Virginia.*' As the new statutes mixed in different parts, the features of the common, of the civil law, and of the statute of distributions, with other provisions of American growth, the variety among them be- came so great that as early as 1832 Chancellor Kent expressed him- self as almost unable to grapple with it. Among the changes effected by that time may be stated the fol- lowing, aside from the abolition of primogeniture, and of the prefer- ence of males over females: I. The rule that "seisin makes the stock" of descent was abolished in New York by the Eevised Statutes, which took effect on the 1st 45 This South Carolina act and the Georgia act of 1801 are in force yet in their main features. The sections of the acts are marked in the late revisions. -to Section 2 says "that the estates both of resident and nonresident pro- prietors in the said territory, dying intestate, shall descend to and be distrib- uted among their cliildren and the descendants of a deceased child in equal parts, the descendants of a deceased child or grandchild to take the share of their deceased parent in equal parts among them; and, where there shall bi- no children or descendants, then in equal parts to the next of kin in equal de- grees," etc., with representation for collaterals, and distinction between whole and half blood. The supreme court of the United States, in Bates v. Brown, 5 Wall. 710, held that this section made a complete law of descent, superseding all th9 cancns of the common law. The ordinance of 1787 is generally printed in revisions for the five states of the old Northwest. 41 See chapter on Descent in 1 Pasch. Dig. Laws Tex. 1875. 4 8 Livington's Civil Code of Louisiana reintroduced French in place of Span- ish law. (220) Cll. 4] TITLE BY DESCENT. § 3(> of January, 1830, but had been acted on up to tbat time. It seema to exist, said Cliancellor Kent as late as 1832, in Vermont, New Hampshire, Maryland, and North Carolina, and in none of the other 20 states; but he was probably mistaken as to Vermont and New Hampshire, and the names of these states are dropped in later edi- tions." n. The representation among lineals, when they all stand in equal degree (no children left, but only grandchildren), was such that they took per capita ; only \\hen they stood in unequal degree (e. g. children and grandchildren), it was per stirpes, except in the four states of Rhode Island, North and South Carolina, and Louisiana, The number of states following the common-law rule of representa- tion is now much greater. At that time only two states had intro- duced the widow or widower as heirs, in competition with the de- cedent's issue: South Carolina and Georgia. Their laws, as they stood at that time, are but little changed at this day. III. The parents are allowed to inherit on failure of issue, either before or concurrently with or after the brothers and sisters and descendants of such brothers and sisters; while at common law an ascendant could never take a landed estate as heir. And here the distinction between ancestral estates, coming either on the father's or on the mother's side, and "purchased" estates, comes in for the *o The rule "seisina facit stipitem" has been abolished in England by stat- ute, along with the rule which forbids the ascending of an estate. In a comi- try in which the descent on several children is the rule, and not the exception, the return to the person last seised for a stock is utterly intolerable. A. has three children, B., C, and D., and dies, having granted, a life lease on land of which he was seised. Each child Inherits one-third. But, before the children can take possession, B. dies. His one-third must descend as coming from A., the person last seised. Hence B.'s children will share it with C. and D., and get only one-ninth of the whole instead of one-third. It will be the same when A. was seised in law, but B. died while some one was wrongfully m posses- sion. In short, whenever there is room for the "principle" to come in, it will result in cutting down B.'s issue from one-third to one-ninth; or, if A. had six children, from one-sixth to one thirty-sixth. While the rule still prevailed in New York (before 1830), it was held that the immediate owner of wild or vacant land was sufficiently seised. Jackson v. Howe, 14 Johns. 405. And so said arguendo in Green v. Liter, 8 Cranch, 244, 249. Some modeiii stat- utes, like that of Missouri, speak of the intestate as "seized of lands," with- out any thought of reviving the old rule. (221) § 30 LAND TITLES IN THE UNITED STATES. [Ch. 4 first time; for some of the American statutes treat estates that have come by gift or devise from a parent, as well as those that have come by descent, as ancestral. Several states (Virginia, Kentucky, Mas- sachusetts, Maine, New Hampshire) regarded the origin of the estate only where the intestate was an infant. IV. On failure of issue and of parents', the estate would go to the brothers and sisters and their issue; and Chancellor Kent believes that these were universally preferred to the grandfather and grand- mother. It was certainly so expressed in the Revised Statutes of New York. In some states, however, there was no representation beyond the children of brothers and sisters; grandnephews must come in as next of kin in the fourth degree. In New Jersey and North Carolina grandparents were excluded altogether. The dis- tinction between whole and half blood had been abolished in many states, and nowhere was the half blood wholly excluded. As to purchased estates, the half blood was equal to the whole blood in Maine, New Hampshire, Vermont, Massachusetts, Rhode Island, New York, Illinois, North Carolina, Tennessee, and Georgia. In Virgiaia and Kentucky the half blood take half portions. In other states brothers and sisters of the half blood were postponed to those of the whole blood. V. In default of these classes of kindred, the grandparents might come in by the laws of most of the states; but never in New York, New Jersey, and North Carolina. The grandparents take either con- currently with, or in preference to, uncles and aunts. VI. The estate went equally to the brothers and sisters as well of the father as of the mother and to their issue, while at common law it went to the latter only when no kindred on the father's side could be found. But there are exceptions to the more liberal rule even now. VII. Chancellor Kent here refers to the descent of lands coming ex parte paterna to the collaterals on the father's side, and of those coming ex parte materna to the collaterals of the mother. We may add that from an early day Massachusetts, New Hampshire, and Maine gave the example of carrying the preservation of ancestral, or rather parental, estates in the blood no further than giving the share of a dying child to its brothers and sisters on the transmitting side, to the exclusion of the surviving parent, and of the half blood (222) CIl. 4] TITLE BY DESCENT. § 30 on the wrong side, while they made no distinction when the descent fell on more remote kindred. VIII. Among more distant heirs, the reckoning by degrees as un- der the civil law and under the English statute of distributions was introduced at an early day in many states aside of those New Eng- land states which had regulated descents of land by those rules even before the Revolution ; but it will be seen that even now the common- law principle of going back from the decedent to his nearest ancestor, and down from that ancestor alike to near and to remote issue, or the combination of that principle with the civil-law rule. Is still in force in many states. IX. The harsh rules about children born out of wedlock had even in 1832 been much relaxed, partly by allowing the father to legiti- mate an antenatus by marrying the mother, partly by recognizing the bastard at least as the child of his mother, or even as the brother of her other children. X. The doctrine of a shifting inheritance fell into desuetude when the rules of descent were drawn up in the form of statutes, in which nothing was said about divesting the estate of those who at the moment of the intestate's death might be his next heirs. XL The laws against aliens were mitigated in many states, at least, in favor of those residing in this country; while treaties with other countries removed the disability of alienage from many who otherwise could not have taken lands by descent." Since 1832 the American law of descent has diverged further from the common law in the following directions: " 6 While the drift and intent of legislation was to soften the disabilities of aliens, the effect in New York, at least, was the opposite way. The statute of descent of 1786 covered the whole ground, and an act of 1788 repealed all British statutes. Thus, the act of 11 & 12 Wm. III. c. 6, allowing citizen to inherit from citizen through alien ancestor, was repealed. So held in Levy v. M'Cartee, 6 Pet. 102. And so the law stood till 1830. Hence the importance of re-enacting this statute of Wm. III., even where the disability of both trans- mitter and heir is fallen away 51 Kent quotes the following cases on the law of descent as it stood in 1832; For the descent from the last owner, Cook v. Hammond, 4 Mason, 467, Fed. Cas. No. 3,159; Hillhouse v. Chester, 3 Day (Conn.) 166; Gardner v. Collins, 2 Pet. 59; for the common-law doctrine, Chirac v. Keinicker, Id. 613, 62."); and in New York, before the Revised Statutes (that is, before 1830), .lacksou (223) § 31 LAND TITLES IN THE UNITED STATES. [Ch. 4 1. Many states have degraded the rights of the heir from owner- ship into a distributive share. 2. The rights of inheritance of wife or husband have been greatlj' enlarged, and are now recognized in fully half the states. 3. The "homestead" has been introduced, with special rules of descent in favor of the widow and infant children. (See sections on "Homestead.") 4. In a number of states of the far Northwest community property has been introduced. (See chapter on "Title by Marriage.") 5. The mother has been put more on an equal footing with the father. 6. The rule of representation has been extended in several states; and this is really a reversion to common-law principles. 7. The distinction between purchased and ancestral lands has been dropped in many places where it was formerly acknowledged, and the rule that seisin makes the stock been repealed in one of the two states that held to it in Kent's time. 8. The legitimation of children and the inheritance between bas- tards and their mothers or acknowledging fathers has been greatly extended. 9. The disabilities of aliens have been almost wholly removed; however, with some notable exceptions, and lately with some back- ward steps. § 31. Common Features and Divergences. But for the greater or less extent in which the wife and husband have been introduced as heirs to each other by the laws of many states, the course of descents would, in the great majority of cases, run through the same channels all over the Union. We may state in short the general principles of the American law of descent in. our days, together with the exceptions : I. Descent does not depend upon seisin, either in law or in fact, but upon title or ownership of an estate of inheritance, be it in pos- session, in remainder, or reversion, and whether the same be obtain- ed by purchase or by descent, though descended estates, or even those acquired by gift or devise from an ancestor, may descend otherwise than purchased lands. Maryland and the District of Col- (224) Ch. 4] TITLE BY DESCENT. § 31 umbia alone seem to have maintained the old doctrine of the pos- sessio fratris.'*- II. Children, and the issue of children that have died before the intestate, are, in all cases, preferred to ascendants and to collater als. III. Neither among children and other descendants, nor among brothers and sisters and other collaterals, is any preference given to the elder over the younger, nor to males over females. The privileges which the eldest coparcener has at common law, to make first choice among the allotted parts, and of buying out the other co- parceners in incorporeal hereditaments, are either abrogated or dis- used. But the canon of the common law which prefers the eldest male to his brothers and sisters survives, in a few unimportant particulars, in a few states : V. Hilton, 10 Johns. 96; Bates v. Shraeder, 13 Johns. 260; that in New Yorli, before 1830, nephews and nieces toolt per stirpes in all cases, Jackson V. Thui-man, 6 Jolins. 322; that, under first Civil Code of Louisiana, collaterals took only on failure of ascendants, Hooter's Heirs v. Tippet, 12 Mart. (La.) 390; Bernard v. Goldenbow, 18 La. 95; for exclusion of uncles and aunts by nieces and nephews, Davis v. Rowe, 6 Rand. (Va.) 355; for equality of whole and half blood in Rhode Island, Gardner v. Collins, ubi supra; for same rule in North Carolina, Seville v. Whedbee, 1 Dev. 160 (where a paternal half- brother inherited land that had come ex parte materna); for the preference for the whole blood as to purchased estates in Maryland under act of 1786, Hall V. Jacobs, 4 Har. & J. 245; Maxwell v. Seney, 5 Har. & J. 23; for like pref- erence of the former owner's blood in ancestral estates, Den v. Jones, 8 N. J. Law, 340; Bevan v. Taylor, 7 Serg. & R. 397; that North Carolma goes back to the first piirchaser of descended estates. Bell v. Dozier, 1 Dev. 333; for disability of bastards in Massachusetts, Cooley v. Dewey, 4 Pick. 93; their inheriting from mother, Heath v. White, 5 Conn. 228. The casus omissus in Maryland of estate inherited from a brother, which is neither paternal nor maternal nor purchased, and therefore goes by the rules of the common law, as disclosed in Bamitz v. Casey, 7 Cranch, 456, had already been remedied by statute of 1821 ("by purchase or acquired in any other manner"), and is not mentioned by Chancellor Kent. a2 Chirac v. Reinecker, 2 Pet. 613, 625, from Maryland, where the statute says "digs seized." The same was held in North Carolina in Lawrence v. Pitt, 1 Jones (N. C.) 344. But the revision of 1873, in the opening words of the canons or rules of descents, embraces all "rights" to which the decedent Is .entitled. The -rule was never recognized in Georgia. Thompson v. Sand- ford, 13 Ga. 238. In most states its nonexistence is taken for granted. LAND TITLES V.l 15 • (,225) § 31 LAND TITLES IN THE UNITED STATES. [Ch. 4 (a) In New York the canons of descent reach only to the uncles and aunts of the deceased, and to their descendants, and in cases for which they do not provide the common law still prevails. In other words, when a man leaves no uncles or aunts, first cousins, or issue of first cousins, either on the father's or mother's side, then you go for an heir, as at common law, to the eldest brother of the paternal grandfather, or to the eldest among his issue, and, if there is no such brother, to the sisters of that grandfather, and so on.'^ (b) In New Jersey and South Carolina, under a negative construc- tion of the statute of descents; ^^ in Maryland, by its express words, ^^ — the estate of a trustee, who has no beneficial interest in the land, goes according to the rules of the common law, and thus generally to only one person, which makes it easier to extinguish the naked legal title. (c) In New Jersey primogeniture was abolished by an act which supposes the testator to have two or more children, or their issue. It has thus been inferred that if he left only the issue of one prede- ceased child the common-law rule would prevail among them.^" (d) There are some remnants in a few Eastern states of the estate tail; of which elsewhere. (e) In Maryland, the right to "elect" in partition is reserved to the eldest male, and where there is none to the eldest female. rv. The issue of the intestate through predeceased children and grandchildren always take shares with the nearer living descend- ants; and, if issue in unequal degrees are left, the remoter descend- ants take per stirpes, reaching up at least to the nearest (oldest) liv- ing degree. V. The father and mother of the decedent are nowhere wholly shut out from the inheritance, taking in most states before, or B3 Rev. St. N. Y. pt. 2, c. 2, § 16. Tlie same clause leaving the common law In force in cases not provided for is in the Arliansas Statutes, but has here the result of preferring the father's collaterals to those of the mother. It was so in Maryland under old statute. See Stewart v. Collier, 3 Har. & J. 289. 04 The New Jersey statute spealis only of him who is seised of lands in his own right See cases cited in notes to Revision of 1877, "Descent"; Martin V. Price, 2 Rich. Eq. (S. C.) 412. 5 5 Pub. Gen. Laws 1860, art. 47, § 24. The note to the revision quotes 4 Grif. Reg. p. 1250. So does Chancellor Kent. No reported case is quoted. (226) . Ch. 4] TITLE BY DESCENT. § 31 along with, brothers and sisters; in a few, after them. Nor are higher ascendants excluded, except in New York, New Jersey, and North Carolina.^' VI. The wife and husband come in as heirs at some point in the order of descent; if not sooner, at least on the failure of blood kindred, so as to prevent an escheat; with the exception of Delar ware, where the consort inherits land only for life, and of New Hampshire. °' Vn. An illegitimate child can, in most states (but with quite im- portant exceptions, as will be shown), be rendered legitimate by the intermarriage of its father and mother, and recognition, and thus becomes the heir of the father, and generally of the father's kin- dred. Vm. A bastard is not treated as a Alius nullius. In nearly all the states he can (at least, on the failure of lawful issue) inherit from the mother, and transmit to her. In some states inheritance is allowed between the bastard or his issue, and the mother or her kindred. In some states a bastard can, by formal, written acknowledgment, be made heir to the natural father.'*" IX. Collaterals of the half blood are nowhere wholly excluded from the inheritance, unless the lands descended have come to the intestate from an ancestor to whom these collaterals are quite for- eign (e. g. lands come to the intestate from the father can, in some states, not go to the half brothers by the mother's side). But in some states they are postponed; in some, they get smaller shares than those of the whole blood. X- The collateral kindred of the mother fare as well as those of 67 Taylor v. Bray, 32 N. J. T..aw, 182; s. c, on appeal, 30 N. J. Law, 415 (on the ground, it seems, that grandparents are not "in consanguinity," as the canon of descent demands). In North Carolina the statute says expressly that ascendants other than a parent shall not inherit B8 See the concluding part of next section. 50 In Connecticut it was held at an early day that, as the common law of descent was never in force in the state, the unreasonable rule of ignoring the relation between a bastard and his mother was foreign to its jurisprudence; that the word "child" in the statute embraces the bastard child as to the mother. Heath v. White, 5 Conn. 228. In other states the rule of filius nul- lius is in force as far as it is not modified by statute. (227) § 31 LAND TITLES IN THE UNITED STATES. [Ch. 4 the father, with the exception of Maryland, Georgia, and Arkansas, and as to the more distant collaterals in New York. XI. Posthumous children of the intestate inherit everywhere. The posthumous children of predeceased sons or grandsons, bom after the intestate's death, are in most of the states put on the same footing; but in Rhode Island, Maryland, Alabama, Arkansas, and Florida, the capacity to inherit is denied to those en ventre sa mere^ unless they be the intestate's own children, while in Missouri, Colo- rado, Wyoming, and Arizona, posthumous children and descendants are admitted, while collaterals not actually born are excluded. Xn. Aside of posthumous children, the rule of the "shifting in- heritance" seems to be abrogated, except in North Carolina. In Tennessee a statute putting brothers, born and unborn, on the same level, has been lately construed to include such brothers as were en ventre sa mere at the intestate's death, and these only."" CO Maryland, Pub. Gen. Laws 1887, art 46, § 25; Ark. Dig., supra. A cliiltt en ventre sa mere is not bound by a decree of partition or sale among the living heirs. Massie v. Hiatt's Adm'r, 82 Ky. 314. See, for exjKJsition of Maryland law, Sliriver v. State, 65 Md. 278, 4 Atl. 679. The inheritance by a posthumous child at common law is only one case of shifting inheritance; hence the presumptive heir who is displaced is entitled to the mesne rents. Before the statutes 10 & 11 Wm. III. c. 16, a child en ventre sa mere could not take a contingent remainder, limited to begin at his father's death. When the object is to let a child en ventre sa mere inherit, whether it be descendant or collateral, the aptest words are those of the California statute (also in force in the Dakotas, Idaho, etc.): "A child conceived, but not yet born, is to be considered an existing person," etc.; or the clause in the Massachusetts laws; "Posthumous children are considered as living at the death of their parent." For words excluding posthumous heirs other than the intestate's own children, see Gen. St. K. I. c. 176, § 3, or descendants, Rev. St. Mo. § 4466; Ark. Dig. § 2523; Kev. St. Fla. § 1815. In Kentucky the awkward words "born of his widow" (Gen. St. c. 31, § 7) seem to restrict their benefit to intestate's own child. The tendency in- favor of all posthumous children was shown in Missouri in Aubuchon v. Bender, 44 Mo. 560, where such a child was allowed to take a contingent remainder notwithstanding the clause in the statute for- bidding such children to take as collaterals. In Ohio and Pennsylvania all children begotten before the intestate's death have capacity to inherit. In other states a child Is to be treated as if bom before its own father's death, which covers the whole ground. In some states the time limit of 10 months (which used to mean 280 days) raises the presumption of legitimacy for this and other purposes. The common-law rule in favor of the posthumous cnild (22S) Ch. 4] TITLE BY DESCEKT. § 31 Xni. Resident aliens, and, above all, those who have declared their intention to become citizens, are almost everywhere put on a level with citizens. The common-law rule that one subject cannot inherit from another subject through an alien intervening kinsman is everywhere abrogated. In many states the disability of alienage is entirely done away with. Moreover, the treaties of the United States confer on the citizens and subjects of many countries the right to take lands in the United States, if entitled to inherit but for their alienage. This makes the cases of the possible exclusion of aliens comparatively rare. Special laws for the descent of the homestead, or for the disposi- tion of "community property," will be treated in different chapters; the doctrine of advancements in a separate section. Louisiana has its "necessary heirs"; elsewhere only the widow, or the widow and children taking the homestead, are protected in any way against disposition by last will. The Louisiana law on neces- sary heirs must be omitted. The conflict between the widow's herit- able rights and the husband's will belongs to another chapter. To avoid, in the following sections, too frequent references to the statutes of each separate state on the different canons of descent, a footnote is subjoined, showing the chapter and section, or the num- ber of the consecutive chapter or article, in the Code, Revision, or the Compiled Laws of each state or territory of the Union."^ NOTE. Since the preparation of this cliapter, Jlichigan lias adopted the fol- lowing new canons of descent for the lands of an intestate (see Sess. Acts 1S9;!) : ■"First. In equal shares to his children, and to the issue of any deceased child IS affirmed in Pearson v. Carlton, 18 S. C. 47. In Tennessee, as stated in the text, the posthumous child may gain an advantage over some of his brothers. Melton V. Davidson, 8G Tenn. 129, 5 S. W. 530. 61 Maine, Rev. St 1883, c. 73, §§ 1, 2; Id. c. 103, §§ 1, 14; New Hampshire, Pub. St. 1891, c. 19G, §§ 1-lG; Massachusetts, Pub. St. 1882, c. 124, §§ 1, 3; Id. c. 125, § 1; Vermont, R. L. 1880, §§ 2230-2233; Rhode Island, Pub. St. 1888, c. 187, §§ 1, 2, 4-G; New York, Rev. St. pt. 2, c. 2, §§ 1-20 (enacted in 1828, and slightly amended); New Jersey, Revision, "Descent," pp. 296, 299; Pennsylvania, Brightly's Purd. Dig. pp. 929-934; Delaware, Rev. Code 1S74, ■c. 85, §§ 1, 2; Ohio, Rev. St 1890 (Giauque) §§ 4158-4181; Indiana, Rev. St. 1888, §§ 2467-2510; Illinois, Rev. St. 1891 (Cothran's Ann. Ed.) c. 39, §§ 1, 2, «tc. (is the act of 1872, slightly amended In 1877); Michigan, How. Ann. St 1882, recast by an act taking efCect October 2, 1889, 3 How. Ann. St.. as an (229) § 31 LAND TITLES IN THE UNITED STATES. [Ch. 4 by right of representation; and, if tliere be no child of the testator living at his death, his estate shall descend to all his other lineal descendants" (with the usual provision of per capita, If in the same.degree; per stirpes, if otherwise). "Second. If the intestate leave a husband or widow, and no issue, one-half shall descend to such husband or widow, and the remainder to the father and mother, in equal shares, and, if there be but one parent living, to such parent alone; and if there is no issue, husband, or widow, then the estate shall de- scend to the father and mother, in equal shares," etc.; "and if the intestate leave no issue, father, or mother, the estate shall descend, subject to the provisions herein made for the widow or husband, if," etc., "in equal shares to his or her brothers and sisters, and the children of deceased brothers and sisters by right of representation. The provision for the widow shall be in lieu of dower, unless she shall, within one year from the appointment of the administrator, begin proceedings for the assignment of dower," etc. "Third. If the deceased shall leave no issue," etc., as above, "his estate shall descend to his next of kin in equal degree, except that those in equal degree claiming through nearest ancestor shall be preferred." The fourth and fifth canons retain the older provisions carrying over parental lands from a child dying amendment to section 5772a) ; Wisconsin, Sanb. & B. Ann. St. 1889, §§ 2270- 2276; Maryland, Pub. Gen. Laws 1884, art. 47; Virginia, Code 1887, §§ 2548, 2551-2555; West Virginia, Code 1882, c. 94, § 1 (not changed in edition of 1891); North Carolina, Code 1883, § 1281; South Carolina, Rev. St. 1882, §§ 1845-1847, 1850, 1852 (in the "Civil Statutes," 1894, see sections 1980-1986); Georgia, Code, §§ 2484, 1701, 1762, 1764; Kentucky, St. 1894, §? 1393-1399; Tennessee, Code 1884, §§ 3208-3276; Florida, Rev. St. 1892, §§ 1820-1826 (pre- ceded by three general sections); Alabama, Civ. Code, §§ 2252, 2253 (Canons), 2260; Mississippi, Code 1892, §§ 1543-1549; Missouri, Rev. St. 1889, §§ 4465- 4477; Arkansas, Mansf. Dig. §§ 2522 (Canons), 2534, 2591, 2592, 2599 (in the Digest of 1804, see sections 2470-2473 for the canons and main rules); Louisi- ana, Civ. Code, arts. 888, 902-917; Texas, Rev. St. 1893 (Canons), art 1688 (Rev. St. 1879, art. 1645); Iowa, Rev. Code 1880, §§ 2440, 2453-2458; Kansas, Gen. St. 1889, pars. 2609-2621; Minnesota, 1 Stat. c. 46; also same chapter in volume 2; Nebraska, Cobbey's Consol. St. 1891, §§ 1124-1135; Colorado, Gen. St. 1883, §§ 1039 (Canons), 1041, 1044-1046, 1048; Nevada, Gen. St. §§ 2981- 2991; Montana, Comp. St. 1888, p. 395, §§ 532-543; Idaho, Rev. St. 1887, §§ 5700-5716; California, Civ. Code 1886, §§ 1386 (Canons), 1387, etc.; Oregon, Rev. St. 1872, c. 10, §§ 1, 4-7, 14; Washington, Gen. St. and Codes 1891, §§ 1480-1486, 1494; Wyoming, Rev. St. §§ 2221-2226; North Dakota, Ter- ritorial Codes of Dakota (1887), Civ. Code, §§ 776-787; South Dakota law is stated hereinafter for "Dakotas," but there is a state Code, which see; Utah, Comp. Laws 1888, §§ 2739-2760; New Mexico, Acts 1887, c. 32; Arizona, Rev. St. 1887, §§ 1459-1472; Oklahoma, St. 1890, pars. 0891-6912. The above ref- erences do not include rules of descent in community property, nor generally those as to legitimacy of children or as to rights of aliens. (230) Ch. 4] TITLE BY DESCKNT. § 32 under age. "Sixtli. If the intestate shall leave a husband or wife, and no Issue or descendants, and no. father, mother, brother, sister, or children of deceased brother or sister, the estate shall descend to the husband or widow . Seventh. If no husband or wife, nor next of kin, the estate shall escheat to the state for the use of the primary school fund." § 32. The Wife and Husband as Heirs. Leaving the homestead laws out of view for the present we can distinguish, among the statutory provisions which give to the surviv- ing wife or husband some or all of the decedent's lands, those which do so in the presence of issue, and those which do so upon the fail- ure of issue. The reason for casting the descent on husband and wife is twofold: Either, as in South Carolina and Georgia, the de sire to let lands and goods go in the same channel, or the idea that the law of intestacy should carry out the supposed wishes of the intestate; and this was the avowed motive .with Robert Dale Owen, the chief author of the Revised Statutes of Indiana. The share in fee takes the place of curtesy and dower, whicli are abolished; but the wife's share is often, in whole or in part, secured against the husband's debts, against his alienation without her consent, and against his disposition by last will. But only in two states the widow's rights in the inherited lands are restrained, with a view of preventing her from carrying them away from the transmitting hus- band's blood. I. Where the decedent leaves two or more children, or issue by two or more children, or one child and issue by one or more other children, the widow or surviving husband takes one-third of the lands, subject to debts and charges like other heirs, in the following states: New Hampshire, Connecticut, South Carolina; also in Florida, California, Nevada, Idaho, Montana, Washington, the Da- kotas, Utah, and Oklahoma. In Florida and the states and terri- tories named after it, he or she takes one-half when competing with only one child, or the issue of one child; in the states named before Florida, only one-third, in all cases; in Colorado and Wyoming one- half, whether sharing with one or with several children." ^ In Iowa 6 2 The rules of these states which have given little or no room for litigation will be found among the canons of descent, or in close connection with them. (231) § 32 LAND TITLES IN THE UMTED STATES. [Oh. 4 one-third of all the real property owned by the husband at any time during the marriage, which has not been sold on execution or judi- cial sale, and to which the wife has not relinquished her right, is set aside to her in .fee simple, the husband having the like share in the wife's land. Curtesy and dower are abolished."^ In Pennsyl- vania, by the act of April, 1S33, which, in the main, still governs descents, the widow is given one-third for life, when there is issue; and this is no longer dower, but an estate in common with the other heirs, held, not under, but with, them, even before allotment. But the husband's life estate is still called "curtesy." On failure of issue the widow has one-half for life.** In Texas, also, the act of March 18, 1848, has made a life estate in one-third to the widow, and in the whole to the surviving husband, a part of the canons of descent."^ In Kansas, when there is issue, the wife takes one-half of all the real estate, on the same terms as in Iowa."* In Connecticut a new rc^gime dates from April 20, 1877. Where par- ties have married since" that day, or, having married before it, de- clare, in writing on record, their choice of the new plan, the surviv- es Iowa first establislied the present rule by the Revised Statutes of 1851, and repealed it by an act taking effect July, 1853, which re-established dower as at common law. The present rule was re-enacted in 1862, and is no ,v sec- tion 2440 of the Code of 1873. The supreme court has held that the wife has no vested rights in her husband's land till his death; hence the legislature may in his lifetime lessen her expectancy, though it cannot increase them as against purchasers. Lucas v. Sawyer, 17 Iowa, 517, where land was sold un- der execution in 1845. Husband died after revision of IS.jI, but before act of 1853. TTie wife got nothing. See, also, Moore v. Kent, 37 Iowa, 20, and cases there cited. Sale of mortgaged land under statutory notice is a judicial sale. Sturdevant v. Norris, 30 Iowa, G4. o-i This life estate differs from dower, in not being free from the decedent's debts. Nor is it, like dower, before allotment, a mere jus in rem. It is an immediate estate, and may be taken in execution. Shaupe v. Shaupe, 12 Serg. & R. 12; Gourley v. Kinley, 06 Pa. St. 270. But, like dower, it attaches to an estate tail. As to the Ufe estate in Massachusetts, see Sears v. Sears, 121 Mass. 267. 5 The widow is, as to her share, an heir. She takes such a share in what- ever is undisposed of by will, without being put to an election. Carroll v. Carroll, 20 Tex. 744. How far husband and wife are deemed heirs in Massa- chusetts, see Proctor v. Clark, 154 Mass. 45, 27 N. E. 673. 6 6 Comp. Laws Kan. c. 33, § 8, par. 2240. The husband is on precisely the same footing. Id. par. 2266, § 28. (232) Ch. 4] TITLE BY DESCENT. § 3i ing husband or wife has, in case of intestacy, one-third absolute!;) when there is issue, one-half when there is none."' In Vermont on failure of issue, the surviving husband or wife has the choic* either to take the fee in land to the value of |2,000, and one-half oi the remainder, or to have curtesy or dower at common law.°' Mis sissippi and Arkansas have, by recent statutes, conferred new rights of inheritance upon the surviving husband or wife. ' In the rormei state, dower and curtesy having been abolished, such survivor takes a child's share, when there are children or their descendants. Ir the latter state the wife may, within 60 days after grant of adminis tration, disclaim dower, and take a child's share in the husband's estate. °' In Florida the estate of a married woman is cast on hei children, or their descendants, and her husband, giving to the lattei a child's share by the canons of descent. But the corresponding provision for the widow is found under the head of "Dower," ii place of which she may elect a child's share, or the whole real estate when the husband leaves no issue.'" In Georgia the wife has t ^'child's share," but in no case less than one-fifth, while the hus band takes the whole of the wife's estate, even in the presenct of issue, except that since 1871, when the wife leaves a separate estate (without any remainder or limitation over), within the meaning of equity jurisprudence, he also has only the share o: one child, or issue of one child, just like the wife in other cases.'- In Missouri the wife has her dower as at common law, but she may, within 15 months after the death of her husband, indicate her choice to take a child's share, as heiress, — that is, subjec to the decedent's debts, — her share being the same as in Geor gia. The choice is to be made of record in the probate court.' ^ Ir Michigan, under the act of 1889, upon the failure of issue, the hus band or wife takes one-half, as against father and mother, or eithei of them, brothers and sisters, or their children, but the whole ai 67 Gen. St. §§ 623, 624, 630, 632, 634. 6 8 Rev. L. § 2230, cl. 2. 6 9 Code Miss. § 2291; Ark. Dig. § 2599. 7 Kev. St. 1S02, ?§ 1832, 1833. 71 Code Ga. § 2484. 72 Rev. St. Mo. § 4465, as to wife taking by descent. Election by widow Id. §1 4520, 4521. (233) § 32 LAND TITLES IN THE UNITED STATES. [Ch. 4 against more distant kindred; and in Minnesota, by a late amend- ment of the probate act, tlie wife of a liusband dying witiiout cliil- dren or parents talies the whole estate.'^ The Indiana statute must be given very much in detail. If a husband dies, testate or intestate, one-third of his real estate de- scends to his widow. This is free from his debts. But only one- fourth is free if s'uch estate exceeds |10,000 in value ; and only one-fifth when it exceeds $20,000. If there is only one child (which means either one living child, or the issue of one dead child), the widow has one-half. If a wife dies, testate or intestate, leaving issue, the hus- band talces one-third, subject to debts. The wife is entitled to one- third of all the real estate of which the husband was seised during coverture, and which he disposed of without her joining in the deed. His mortgage, unless for purchase money, does not affect her right. Since 1875, if the husband's estate is sold under judicial sale, she is entitled to have her one-third laid ofE at once. A freehold jointure bars her right of inheritance, just as it would bar dower; and the husband's right to inherit can also be barred by marriage contract.'* If a wife leaves her husband, and lives in adultery, continuing to do so at his death, she forfeits her inheritance. He can forfeit his in like manner, by living in adultery, or abandoning his wife, and not providing for her and her children." These lat- ter rules apply as well when there is no issue of the decedent a» when there is. The very complicated law of Indiana as to the right of succession of husband and wife to each other's land has been adopted almost literally in the territorial act of New Mexico of 1887. In Indiana the inheritance of the wife is clogged with two provisos made by sections 18 and 24 of the original chapter, — the former, to the effect that if the widow marries again, having children by the husband transmitting the inheritance, she cannot thereafter convey it, unless these children be all of age, and join in the deed, 73 3 How. Ann. St. § 5772a, amended. See Prob. Act Minn. § 64. 7 4 McClanalian v. Trafford, 40 Ind. 410; Iseuliour v. Isenhour, 52 Ind. 328. See, for exceptions, Mathers v. Scott, 37 Ind. 303. But a jointure does not prevent the wife from inheriting as against brothers aud sisters. Glass v. Davis, 118 Ind. 593, 21 N. B. 319, based on Sutherland v. Sutherland, 69 111. 481. '5 Goodwin v. Owen, 55 Ind. 243; Owen v. Owen, 57 Ind. 291. Contra, Shaf- fer v. Richardson, 27 Ind. 122. (234) Ch. 4] TITLE BY DESCENT. " § 32 the latter to the effect that if a man marry a second or other subse- quent wife, and has by her no children, but has children alive by a former wife, the land descending at his death to the wife shall, at her death, descend to the children. These two provisos have given rise to a great deal of litigation. Neither of them is held to apply to land sold by the husband without the wife's consent, such land not coming properly by descent. The conveyance, if made by her after remarriage, is void, even as against the widow herself. Partition before remarriage does not put the land allotted to the widow in a new plight. The proviso as to the childless widow is in force where the husband leaves grandchildren alive. If the inherit- ing wife has any children by the transmitting husband, and other children, both sets will inherit equally upon her death. The cases quoted below decide these and several other points. The vexed question whether the estate of the widow bearing no children to the intestate, who' leaves children by another husband, is a fee or a life estate, has at last been set at rest, in favor of the life estate, by an act of March 1, 1889.'° 7 The clauses concerning wife and husband as heirs had best be named, as they stand in the Revised Statutes, edition of 1S8S: Wife with issue, sec- tion 2483; not to alien when remarried, section 2484 (old section 18); from wife to husband, section 2485; wife with one child, section 2486; childless widow of man with children, section 2487 (old section 24); wife or husband and parents, section 2489; land conveyed without wife's consent, section 2499; all to husband or wife, section 2490; widow's right in land contract, sections 2493 and 2494; land mortgaged for purchase money, section 2495; adulterous wife, section 2496; adulterous or deserting husband, sections 2497, 2498; jointure, sections 2502-2504. The following cases are but a few of the reported cases arising under these sections: Where a widow has partition be- fore remarriage, she is still in by old title. Avery v. Akins, 74 Ind. 283. See, as to effect of sale in administration suit, Spencer v. McGonagle, 107 Ind. 410, 8 N. E. 266. Lands which a widow cannot alien cannot be sold on execution against her. Smith v. Beard, 73 Ind. 159. Her conveyance is void even against herself. Knight v. McDonald, 37 Ind. 463. Her share free from debts remains so in the husband's children, taking It after her death. Louden v. James, 31 Ind. 69. The estate of the childless widow was called a life estate in Hendrix v. Sampson, 70 Ind. 350, and other of the older cases; but in Utterback v. Terhune, 75 Ind./366, and all the later cases reviewed in Hablg V. Dodge, 127 Ind. 31, 25 N. B. 182, It is recognized as a fee, less power of alienation, and with forced heirs. The "expectant heirs" had no estate that would pass by grant, but it might be barred by warranty. Id. And an act of (235) § 32 la:^d titles in the united states. [Ch. 4 II. On the failure of issue the inheritable shares of the surviving wife or husband become greater, as we have already seen, in Penn- sylvania and Connecticut; and their right to inherit is more widely acknowledged. Only in Nevada, the husband dying without issue, but leaving brothers, is a casus omissus, and the wife gets nothing, aside of her share of community property.''^ In Georgia either hus- band or wife, on the failure of issue, takes the whole of the dead spouse's estate. And so it is in Kansas '^ since 1870; also in Wiscon- sin, Colorado, Mississippi, and Florida- In Texas and Arizona, on failure of issue, the surviving consort has one-half, "without remain- der to any one," 1. e. in fee; and if there is no father or mother, brother or sister, or other descendants, then all. In Ohio, on failure of issue, the estate vests in surviving husband or wife, subject to special rules for its later descent. In Massachusetts an act of 1854 gave to the widow, on failure of issue, at her choice, instead of dower, a life estate in one-half, as tenant in common with the heirs. In 1880 the lawmaker went further: The husband is to have, when no issue was born alive, a life estate in half the lands; and, whenever the wife dies without issue, a fee in realty up to |5,000 in value. The wife, on the death of the husband, intestate and without issue, has a fee in lands of like value, and her choice between dower and one- half for life in the residue, as before. An adopted child is deemed March 1, 1889 (see continuation of Rev. St. 1892, E. B. Myers & Co., p. 1G7), enables the lieirs to sell their expectancy and deal with the widow. When the widow has a child by the transmitting husband, her children by another husband share with it if she dies discovert. McMaken v. Michaels, 23 Ind. 462. When she dies covert, neither the second husband nor his children take any part of her share. Mathers v. Scott, 37 Ind. 303. See, also, Thorp v. Hanes, 107 Ind. 324, 6 N. E. 920. Widow cannot defeat rights of children by consenting to sale of her share for husband's debts. Armstrong v. Cavitt, 78 Ind. 4TG. Land being conveyed by husband without wife's consent, her third goes to her, free of the expectancy of the children. Slack v. Thacker, 84 Ind. 418; Hendrix v. McBeth, 87 Ind. 287. Adopted children of husband do not affect widow's right of alienation. Barnes v. Allen, 25 Ind. 222. For the act of March, 1889, see Sess. Acts, p; 430. T! Clark V. Clark, 17 Nev. 124, 28 Pac. 238. . 7 8 The wife must not have always resided outside of the state. This dis- tinction is held not to be unconstitutional. Butfington v. Sears, 46 Kan. 730, 27 Pac. 137. (236) Ch. 4] TITLE BY DESCENT. § 32 issue, within the act.^^ In Connecticut, aside of the half in fee going to the widow on failure of issue, the estate is liable for her support; and, under the present system, it is not clear how the lands can be allotted to an heir as long as she claims that allow- ance. Perhaps, if once so allotted, a sale to a bona fide purchaser would destroy the widow's lien, if any, for such support.^" In Il- linois the surviving husband or wife takes, on the failure of issue, half the realty, and this is independent of dower. While the latter is barred by a jointure, the former is not.*^ In Indiana, on failure of issue, if the whole estate, real and personal, does not exceed |1,000 in value (it seems, beyond the allotment to widow), the relict gets it all. If it is more, the parent or parents take one-fourth, as a joint estate. In Wyoming the limit is $10,000; and in both states, on failure of parents, the relict takes all.^^ In California, Nevada, Montana, Idaho, the Dakotas, Washington, and Oklahoma, upon fail- ure of issue, one-half goes to the father or mother, or their descend- ants; the other half to the wife or husband; if there be none of them, all to the relict. In South Carolina, on the failure of issue, the wife or husband gets one-half; on the failure of issue and of brothers and sisters and their issue, and of parents, the wife or husband takes two-thirds. The surviving husband or wife succeeds on the entire failure of kindred, except in New Hampshire, where the statute is silent; in Delaware, for life only. It was held in Pennsylvania, where a man left only a mother and wife, the former inheriting first, that the wife should step in afterwards, to prevent an escheat. In Louisiana 7 8 The wife is considered an heir as to the fee not exceeding 35,000 in value, but not as to life estate. Proctor v. Clark, 154 Mass. 45, 27 N. E. 673. By the acts of 1S85 and 1887 the wife's power of devising her estate has been practically taken away. 8 Conn. St. §§ 623, 624. The former refers to marriage after April 20, 1877; the latter to couples who have recorded an agreement to abide by the provi- sions of section 624. 81 Sutherland v. Sutherland, 69 lU. 481. 82 For the act of 1853, soon repealed, which let brothers, etc., In with the wife, see Nebeker v. Rhoads, 30 Ind. 330. For husband's share under act of 1838, see Cunningham v. Doe, 1 Ind. 94. As against brothers and sisters,— i. e. when the wife is sole heir,— she takes notwithstanding the jointure, though this would bar her of the one-third, which she takes in case of issue. (237) § 32 LAND TITLES IN THE UNITED STATES. [Ch. 4 the succession of wife or husband is deemed "irregular," and he or she can talte possession only under a decree of court. In many states the relatives of a predeceased husband or wife are also let in, to prevent an escheat. A late case from an Ohio circuit court is reported, where such an extremely rare case came up on a dispute between the wife's kindred.*' It will be seen, in the section on "Bastards," that the wife of a bastard will be preferred to his mother in some cases where the wife of another person would be postponed. It is very doubtful whether the statutes of Georgia and Connec- ticut forfeiting the dower of a wife who leaves a husband and lives in adultery would be applied to her rights of inheritance. But in Minnesota either wife or husband loses the right of inheritance by desertion for the space of one year or over, and continuing to the time of death. Where the statute does not provide a forfeiture, the wife's inheritance will not be forfeited by elopement, as it is against public policy to let a land title depend on matters in pais.^* Generally speaking, where the statute gives an estate of inherit- ance to a wife or widow or relict, or to a husband, etc., it is under- stood that a divorce from the bonds of matrimony destroys that character, and makes the former spouses strangers to each other. In some states this result does not always follow, unless, indeed, the owner of the property to be inherited has entered into a new union. The exceptional statutes will be noticed along with the results of a judgment of divorce. 83 Rev. St. Ohio, § 4161; Ellis v. Ellis, 3 Ohio Cir. Ct. R. 186. 8*AcIose V. Fossit, 1 Pears. (Pa.) 304. It was held in Massachusetts in Lakin v. Lakin, 2 Allen, 45, that the statute of Westm. II., which bars dower for adultery and elopement, unless there be a voluntary conciliation, is not in force in Massachusetts as against dower; it being against our policy to let the title to land depend on matters in pais. The South Carolina statute (section 1852) makes the wife's share forfeitable on the same grounds on which dower is forfeited. In Arkansas, by the act of 1891, the widow's right to inherit was enlarged, but the canons of descent in the Digest of 1894 put her exactly on the footing of the old law. (238) Ch. 4] TITLE BY DESCENT. § 33 § 33. Descendants. Where the intestate leaves no wife or husband, but leaves issue, the whole estates goes everywhere to his issue. If he leaves also a wife, or a woman leaves a surviving husband, then the issue takes the inheritance, subject to dower or curtesy, or after taking out such share as the law gives to the surviving widow or widower. At common law, when the descent was cast on several persons, for instance, on all the daughters in the absence of sons, or under the custom of gavelkind, the tenancy was said to be in coparcenary, which has the same unity of estate as a joint tenancy, but not the survivorship incident to the latter. The statutes of some states call the joint ownership of several children "coparcenary." Others style them "tenants in common." Others, again, use neither term. The difference is at any rate very slight, though it may sometimes affect the bar of the statute of limitations.'^ Where the intestate leaves children, and the issue of predeceased children, the latter in all the states take by stocks, — that is, the issue from each - tion would probably hold good in all. Mortgaged land is an advancement only as to the surplus over the incumbrance. Polley's Ex'rs v. Polley, 82 Ky. 64. 107 Bowles V. Winchester, ubi supra, note 100; Stevenson v. Martin, 11 Bush, 485. Contra, Pigg v. Carroll, 89 111. 205 (where land given to sons was valued when possession was taken, though deeds were made long afterwards); Ruch v. Biery, 110 Ind. 444, 11 N. E. 312 (interest to father) ; Hook v. Hook, 13 B. Mon. 526 (life estate reserved). But in Comings v. Wellman, 14 N. H. 287, where life estates for both parents were reserved, they were deducted from the fee simple in the valuation. Even rent may be charged up if set down in writins by the father at the time. Shawhan v. Shawhan, 10 Bush, COO; Dixon v. Marston, 64 N. H. 433, 14 Atl. 728 (the advancements are thrown into hotchpot at the time of the parent's death). 108 Christy's Appeal, 1 Grant, Gas. 369; Merrell v. Rhodes, 37 Ala. 449; Prey V. Heydt, 116 Pa. St. 001, 11 Atl. .jo-j (intent must exist at time of gift). But the parent cannot by a declaration turn a gift which is not an advancement into one. Cleaver v. Kirk, 3 Mete. (Ky.) 270. (247) ( 34 LAND TITLES IN THE UNITED STATES. [Ch. 4 "ooting."" For other states, having no such statute, it has been leld that a will covering a part of the estate not only does not oper- ate as an advancement, but prevents gifts made by testator from thus operating; as he shows, by not mentioning them, that he does not wish them to be brought into hotchpot.^" In several states the law is so worded, and very properly, that neither land nor money is to be charged against a child, unless "charged" at the time, "and a memorandum made thereof in writing," or delivered in the presence of witnesses who are asked to take notice, or such other language is used that the intent "to advance" cannot be made to depend on inference.^ ^^ Where an advanced child dies before the parent, leaving children, the latter take by descent, though by representation, yet in their 3wn right. A simple loan to the intermediate parent could not have been charged against grandchildren thus inheriting. But an advancement is charged to them; and this was done in England, under the customs of York and London, and under the statute of iistribution. For greater certainty. New York, its copyists, and a aumber of other states have adopted this rule by words in their statutes; but it probably prevails everywhere. Michigan, Wiscon- sin, and Minnesota charge each advancement by statute against the child or descendant who receives it.^^^ Under the chapter of the statute on "Powers," a gift to a child or descendant by the parent out of lands over which he has a 'TDeneflcial" (that is, an unrestricted) power, or a power in trust, with a right of selection, is in the states aamed deemed an advancement, if, under the same circumstances, i gift out of his own property would have been such. That is, [f he should die, without disposing of the rest, and the estate should go to his children or descendants, they will, if possible, be made even in both estates, his own and that under his power, including the 109 Virginia, Code, § 2561: West Virginia, Code, c. 78, § 13; Kentucky, Gen. 3t. e. 31, § 15 (Stat. 1894, § 1407); Tennessee, Code, § 3281. 110 Thompson v. Carmichael, 3 Sandf. Ch. 120. 111 Petition of Atkinson, 16 R. I. 413, 16 Atl. 712; Appeal of Yeich (Pa. 3np.) 17 Atl. 32, shows the inconvenience of a law not requiring such cleai proof. 112 2 Rev. St. N. Y. tlL 3, art. 3, § 76. (248) Ch. 4] TITLE BY DESCENT. § 35 parts already given."' When the thing given by the father to the child is land, the intent to advance is presumed; proof to the con- trary must come from the donee who refuses to bring the gift into hotchpot.^^* A deed made in consideration of one dollar and of love and affection implies a gift, and hence an advancement; but the grantee is not estopped from showing that there was a valuable consideration, and that the conveyance, not being a gift, cannot operate as an advancement.^^° In a late case a rather startling decision on valuation of an advancement was rendered. A father had taken a life policy on his own life for the benefit of one of his children, and it was charged to him at its face value; though this included, in its very nature, interest on the premiums paid. In ac cordance with the general doctrine, no more than these premiums ought to have been charged.^ ^* The law of advancements is part of the law of descent. Hence, when a father says in his will that his property shall be divided among his children, or his descendants, according to the law of descent, advancements should be charged up as if he had died in- testate."' § 35. Parents and Their Descendants. Aside of husband and wife, after the children and other descendants of the decedent, the next heirs belong to the group which is com- posed of the father and mother of the decedent, of their children, who are the decedent's brothers and sisters, or half brothers or half sis- ters, and their more remote descendants ; that is, nephews and nieces, grandnephews, etc. But among these precedence is dealt out most capriciously. There may be equality between father and mother; 113 See, for instance, Jlinuesota, c. 44, § 53, to fully understand the opera- tion of the rule. See infra, chapter on "Powers," § 116; Cole v. Palmer, 1 Bush, 371; Renaker v. I.afferty, 5 Bush, 88. m Phillips V. Phillips (Iowa) 58 N. W. 879. In Gulp v. Wilson, 1,^3 Ind. 294, 32 N. E. 928, it is said that proof of the father's statements is generally unreliable. 115 Hattersley v. Bissett, 50 N. J. Eq. 577, 25 Atl. 332, affirmed 29 Atl. lS7. 110 Cazassa v. Cazassa, 92 Tenn. 578, 22 S. W. 560. To charge the premiums, less commissions and share of expenses, would have been still more logical. 117 Cole V. Palmer, 1 Bush, 371; Kenaker v. Lafterty's Adm'r, 5 Bush, 88. (249) § 35 LAND TITLES IX THE UMTED STATES. [Ch. 4 the father or the mother may be preferred; the parents may stand first in order, or the brothers and sisters, or both or one of the par- ents may take, with the latter, either a certain share or a brother's share; or full brothers may be preferred to the parents, and half brothers postponed ; and there may be more or less representation of deceased brothers and sisters, and in some cases none. I. Equality between father and mother obtains in Pennsylvania, where father and mother take a joint estate with survivorship to the longest liver; and in the presence of a wife or husband (who gets three-fourths), also in Indiana and Wyoming as to the remaining one-fourth; while the two parents take equally, but as tenants in common, in Massachusetts, Wisconsin, Iowa, Kansas, California, Washington, and New Mexico; since 1887, also, in Nebraska and Idaho; since October 2, 1889, in Michigan; and since October 1, ISO??, in Kentucky. In all these states the parents take, or the one surviving parent takes, to the exclusion of brothers and sisters and their descendants."' In Arizona, the two parents also stand on an equal footing, but take only one-half, the other half going to the brothers and sisters and their descendants. n. Until the changes of 1889 and 1893 in Michigan and Kentucky, father and mother took in equal shares when both were alive; but while the father, if he alone survived, got the whole estate, the mother, in Michigan, got only one brother's or sister's share (count- ing the issue of a predeceased brother or sister as one), when there were brothers or sisters, but excluded, when there were none, the issue of brothers and sisters; in Kentucky she took one-half, the other half going to brothers and sisters and their descendants. III. In the following states the father is preferred to the mother, and to the brothers and sisters of the decedent, taking all that does not go to the surviving wife or husband: Maine, New Hampshire, Vermont, Rhode Island, New York, Minnesota, Virginia, West Vir- ginia, Florida, Montana, Oregon, Nevada, Colorado, the two Dakotas, and Oklahoma. In Utah, on the failure of issue, the mother for- merly took the whole estate; but now father and mother inherit in equal shares, if both are alive, or either of them, if alone, in preference 118 Before 1887, Nebraska, Idaho, and Arizona made the father sole heir to the exclusion of the mother. (2o0) Ch. 4] TITLE BY DESCENT. § 35 to brothers and sisters. In Colorado, the father takes the estate in fee; tlie mother takes it in like manner, if the father is dead. In Arkansas the statute is obscure. The first section of the chapter on descent, on failure of issue, gives the estate "to the father, then to the mother, then to the brothers and sisters and their descendants in equal parts." But a section dealing with ancestral and with ac- quired estates says, as to the latter: "To the father, or if there be no father, to the mother for life, remainder to the collateral heirs." The two sections being construed together, new acquisitions go, first, to the father for life, remainder to the mother for life, then to col- laterals, among whom brothers and sisters are the nearest^^° In Louisiana, father and mother each take one-fourth, when there are brothers or sisters or their representatives. The latter take three- fourths, if there is but one parent; one-half when there are two. When there are no brothers, etc., each parent gets half, or the only parent all. In Indiana and Wyoming the descent, as between par- ents and brothers, when there is no relict, is this : In Indiana the two parents, or only surviving parent, takes one-half, leaving the other to the brothers and sisters and their issue; all if there are none. In Wyoming, both father and mother take one brother's share; nat- urally all, if there are no brothers or sisters or their issue. In Texas, also, father and mother take one-half as joint tenants; brothers, sis- ters, and their issue the other half; but, if there be only one parent, he or she takes only half as much. rv. In Georgia, the father, or if he be dead, the mother, gets one sliare with the brothers and sisters that are of the father's blood, and tlieir issue; if there are none of that blood, then those of the mother's blood and their issue share with him or her. In Missouri, South Carolina, and Wyoming, each surviving parent takes a brother's part; so in Illinois. But here, if a single parent is left, he or she takes two such parts. In all these states there is full representa- tion of brothers and sisters. In New Jersey full brothers and sis- ters and their issue come first; next the father; next the mother for life with remainder to half brothers and sisters and their issue, or other collaterals. The descent in remainder is determined as of the lis This is incidentally settled in tlie leading case of Kelly's Heirs v. Mc- Guire, 15 Ark. 555. (251) § 35 LAND TITLES IN THE UNITED STATES. [Ch. 4 time of the intestate's death/^" here and elsewhere, as in the case of dower. In Connecticut, the order is : the brothers and sisters of the whole blood and their representatives; the parents or parent; the brothers and sisters, etc., of the half blood. In Ohio those of the whole blood first; then those of the half blood; then the father; then the mother. In Tennessee brothers and sisters and their issue come first, then the parents as tenants in common, or the one surviving parent.*" In Delaware, Maryland, North Carolina, and Alabama: first the brothers and sisters and their issue; next the father; lastly the mother. While in IMississippi, father and mother, when reached, take in equal parts. In the states in which the father comes in first, there is great di- vergency when he does not survive. In New York the descent is to the mother for life, remainder in fee to the brothers and sisters and their issue; but in fee, when none of these is alive.* ^- In Min- nesota, if there are living brothers or sisters, the mother takes one- third; but all if there is only issue of brothers and sisters; the brothers and sisters and the issue of those predeceased the other two- thii'ds; if there is no mother, these take all. (The slight amendment made by the last revision in favor of issue may be noted.) In Vir- ginia, AVest Virginia, Ehode Island, Vermont, and Florida the es- tate goes to "the mother, brothers, sisters, and their descendants"; that is, the mother takea a brother's share. In the Dakotas, Mon- tana, Nevada, and Oklahoma the estate "'goes in equal shares to the brothers and sisters and to the children of any deceased brother, etc. If he have a mother, also, she takes an equal share with the broth- ers," etc. And if only children of brothers and sisters are left, the mother takes to their exclusion. Oregon has the same law, except that it extends representation to all the "issue" of brothers and sis- ters. In Maine, children and grandchildren of brothers and sisters are excluded by the mother; but when there are living brothers or sisters these children or grandchildren take by representation, and the mother takes only a brother's part.*-^ 120 Den V. Smith, 2 N. J. Law, 7. Nephews do not exclude grandnephews. 12 1 The statute includes "unborn brothers." See Grimes v. Orraud, 2 Heisk. 298. And remark as to shifting inheritance at the end of this section. 122 Wheeler v. Clutterbuck, 52 N. Y. C7. 12 3 See statutes cited in note 61 to section 31. (252) ^h. 4] TITLE BY DESCENT. § 35 In the states in which father and mother stand on an equality, or ■where the latter has only a life estate, the next step in the devolution of the estate is confined to brothers and sisters and their issue. Here again divergences must be noted. (1) There may be full or unlim- ited representation. (2) Such representation may be confined to children and grandchildren of deceased brothers and sisters. (3) And may be confined to the children of brothers and sisters only. We have already stated how one or the other kind of representation is allowed in the states in which father and mother are not the equal and foremost heirs, and have shown how in some cases, in the pres- ence of a mother, there is no representation at all. And this hap- pens in some other cases. In Iowa and Kansas there is a sort of irregular representation. The descent to parents is accompanied by the further direction that, if they have died before the intestate, their share of the estate shall go as if they had survived him. And here r Iowa takes the same course that we have noticed Kansas take in al- lowing a deceased child to be represented by heirs of all kinds, by blood or by marriage. Hence, where the intestate left neither wife nor child, but left brothers and sisters and a stepmother, she took one-sixth on this ground: If the true mother had outlived the intes- tate, she would have gotten half, and would have transmitted it on her death to her children, that is, to the brothers and sisters; the father would have left two-thirds of his half to the children, and one- third of his half, that is, one- sixth, to his wife, the stepmother."* In the other states in which father and mother fare equally, and stand first on the failure of both, the estate goes, of course, to living brothers and sisters, if there are any ; but with this difference as tO' representation of those who are predeceased: There is full repre- sentation — that is, all issue or descendants are admitted — in Massa- chusetts (only since 1876,^^^ when the word "issue" was substituted for "children"), in Indiana and Wyoming (where, however, in the ab- sence of a relict, the parents have only one-half), in Nebraska and .12 4 As the true mother must have died before the father, it seems he ought to have one-half directly and one-third of her one-half, or two-thirds in all, and leave to his widow (the stepmother) two-ninths; but the true time of the parent's death is not considered. Moore v. Weaver, 53 Iowa, 11, 3 N. W. 741. As to Kansas cases, see note 91 to section 33. 125 Embodied in the law of descent in the Revision of 1882. .(253) § 33 LAND TITLES IS THK UNITED STATES. [Ch. 4 in Vermont. Grandchildren, as well as children, of brothers and sisters, are admitted in Pennsylvania (since 1855; they were not by the great statute of descent of 1833); ^^^ also in Georgia. Only chil- dren of brothers and sisters are admitted to represent them in Wis- consin, Michigan, California, Washington, and Idaho. But both in Vermont, where representation is full, and in Michigan and Wiscon- sin, where it is restricted to children, there must be at least one liv- ing brother or sister, in order to let in this class of "brothers and sis- ters, and their" children or issue. In Vermont,^" by construction, in Wisconsin, by plain words, the estate, in the absence of brothers and sisters, goes to the next of kin, and the nephews and nieces can in such case only inherit in that capacity, according to their remoteness in degree, and would be postponed to a grandmother, being further by one degree from the decedent. Going back to other states, there is full representation of brothers and sisters in New York, and in New Jersey, by reconciling two conflicting sections, Virginia, West Vir- ginia, Kentucky, North Carolina, Tennessee, Rhode Island, Connec- ticut, Ohio, Illinois, Florida, Louisiana (always "by roots"), Missouri, Alabama (also per stirpes), Arkansas (by the New York rule, either per stirpes, or per capita) and Arizona; as far as grandchildren in Maine and New Hampshire; only to children in Michigan, Mary- land,"^ South Carolina, the Dakotas, Nevada, Montana, Idaho, and Oklahoma. In all the last-named states, grandnephews and grand- nieces can inherit only in their capacity of next of kin in the fourth degree, being postponed to uncles and aunts, who are in the third degree; and, if they inherit, it must always be per capita. It seems that, wherever the descendants of the decedent's brothers 126 Brenneman's Appeal, 40 Pa. St 115, though dealing with the children and grandchildren of uncles and aunts, also expounds the clause of the act of 1855 as to children and grandchildren of brothers and sisters. All the preceding cases are there quoted. 127 Fully discussed in Hatch v. Hatch, 21 Vt. 450, on the authority of the English decisions under the statute of distributions; the leading case being Lloyd v. Tench, 2 Yes. Sr. 213. Contra where a brother is alive. Gaines v. Strong, 40 Vt. 354. As to Michigan, see How. Ann. St. § 5776a; Act 1883, No. 169; Van Cleve v. Van Fassen. 73 Mich. 342, 41 N. W. 258 (nephews and nieces exclude grandnephews). 128 McComas v. Amos, 29 Md. 132 (nephews and nieces per stirpes, grand- nephews being shut out). (254) Cll. 4] TITLE BY DESCENT. § 35 and sisters take by representation, they will share per stirpes if in the same state the representatives of the decedent's children, under like circumstances, take per stirpes, and per capita where the de- scendants of children take per capita, except in New Hampshire, where nephews and nieces take per capita, though grandchildren do jjQ^_i=9 rpjjg inheritance by brothers and sister a leads^ naturally to the "shifting inheritance." It often happens that a child leaves an estate, and, after his death, brothers or sisters are born to him. Oil common-law principles, the inheritance would go to these, in the ab- sence of issue; and, if there was a sister born before the child's death, she would have to share with the sisters who might be born thereafter. Only Maryland and North Carolina have kept up this strange law.^^° Ohio had adopted it at one time, but a decision in that line was soon oveiiuled,^''^ and in an Illinois case it was held by the supreme court of the United States that the common law of descent was never in force in the Northwestern Territory, and that the rule of the shifting inheritance, unless enacted by statute, could not be in force in any of the states carved out of that territory. ^"^ In Tennessee the statute conferring an inheritance on brothers and sisters, whether born or unborn, seemed to have been purposely drawn to affirm the law of the shifting inheritance as it had come from North Carolina, and as it was still recognized in that state; but, after some fluctuation, the supreme court decided, at last, that 129 In Maine the older law of nephews exclucling grandnephews was en- forced in Quinby v. Higgius, 14 Me. 309 (now changed). In New Hampshire nephews take per capita. Nichols v. .Sliepaid, G3 N. H. 391. In Rhode Island full representation always per stirpes. Daboll v. Field, 9 R. I. 266. Nephews and nieces in South Carolina take per stirpes. Stent v. McLeod, 2 McCord, Eq. 354. So all descendants of brothers and sisters in North Carolina. Clem- ent v. Cavible, 2 Jones, Eq. S2. They take per capita in Virginia. Davis v. Rowe, 6 Rand. (Va.) 355. In Tennessee, section 3271 of the Code puts repre- sentation of collaterals and Imeals on the same footing. See, for New York rule, Pond v. Bergh, 10 Paige, 140. Great-grandchildren of brothers do not take by representation in Maine. Stetson v. Eastman, 84 Me. 366, 24 Atl. 868. 130 Goodwin's Lessee v. Keerl, 3 Har. & McH. 403; Cutlar v. Cutlar, 1 Hawks (N. C.) 324. Both cases are put on the ground that the common law Is in force as far as it is not changed by statute. 131 Dunn V. Evans, 7 Ohio, 169. Contra, Drake v. Rogers, 13 Ohio St. 2l. In Indiana, Cox v. Matthews, 17 Ind. 367, rejects the old doctrine. 132 Bates V. Brown, 5 Wall. 710, in which all the cases are reviewed. (255) § 36 LAND TITLES IN THE UNITED STATES. [Ch. 4 the unborn bi'others or sisters must have been conceived at the time of the decedent's death in order to be admitted to the inheritance.^^* Georgia has, since 1843, limited the inheritance of the mother from her children in a peculiar way, in order to prevent the transfer of property from family to family. If she marries a second time, she cannot take as heir the estate of any of her children by a former bed, except that of the last surviving child, when her husband's blood has become extinct.^ ^* § 36. Ancestral Lauds. The states may be arranged in groups, from those which do not distinguish at all between the descent of ancestral and of purchased lands, passing through those which distinguish only in a few cases, and to a slight extent, till we come to Maryland, which carries the doctrine to the full extent of the common law, and Pennsylvania and Xorth Carolina, that go beyond it. I. In Louisiana, of course, the distinction, which is wholly foreign to the French and Spanish law, was never known. In Texas it was introduced in 1842, but dropped since 1848.^^° Massachusetts, which had until 1876 given a narrow room to the principle, repealed its law in that year. West Virginia, in her Revision of 1882, omitted the clauses which h'ad been taken over literally from the Virginia Re- vision of 1860. The statutes of Vermont, Illinois, Mississippi, Iowa, Kansas, and Arizona (except, in the last named, as to a gift from the adopter to the adopted child) are wholly silent, and thus disallow the distinction. In Missouri the use of the words "grandfather, grandmother," in the singular, might have led to the conclusion that the grandparents on the transmitting side aJone were meant; 13 3 Melton V. Davidson, 86 Tenn. 129, 5 S. W. 530. Comp. note 321. 134 The statute was expounded in Wilson v. Bell, 45 Ga. 514. Thompson v. Sandford, 13 Ga. 238, was decided under an act of 1845 (no longer in force), having the same object of keeping property in the family. It made a woman married again, who had children by her former husband, share with them any inheritance that might fall to her from any source. Code Ga. § 2484, subd. 6, For the construction of the rights of the mother, when or when not a widow, see, also, Holder v. Harrell, 6 Ga. 125. 136 Under act of 1842 paternal kindred took paternal lands. Distinctions abolished in 1848. Jones v. Barnett, 30 Tex. 637. ■ (256) 42; Chaney v. Barker, 3 Baxt. (Tenn.) 125; Nesbit v. Bryan, 1 Swan (Tenn.) 468; In re Miller Wills, 2 Lea, 62. 148 Mon-is T. Ward, 36 N. Y. 587. It was a deed by the grandfather of a (262) Cb. 4] TITLE BY DESCENT. § 36 parent by the half blood are yet of such parent's blood. A deed partly for value and partly for love and affection makes a purchase, but the Insertion of "one dollar" in a gift or advancement to a child or grandchild is immaterial.^** Connecticut deals with lands that have come "by gift, devise or descent from any ancestor or kinsman" of the intestate as folU»ws: First. Half brothers and sisters, with their descendants, if of the blood of the transmitter, are as good as those of the whole blood, which they are not as to purchased estates. Second. In default of such whole or half blood brothers, etc., the estate goes to the issue of the transmitting kinsman ; next to such kinsman's brothers, sisters, etc.; lastly to the intestate's general heirs. And if the intestate should die under age, without issue, without brothers, etc., of the whole blood, or parents, the estate goes to the next of kin that are of the transmitter's blood; and only in default of these to the next of kin of the intestate generally. Another clause of the chapter on "Succession" deals with the share of an infant child dying before the parent's estate is settled; such share shall be treated as a part of the parent's estate.^''" The Rhode Island rule is very broad. The estate which has come by descent, gift, or devise from a parent or other kindred shall, on failure of issue, go to the kindred next to the intestate, of the blood of the person from whom it came, if any there be. Those not of the blood of the transmitting ancestor are practically shut out. And the words would bear the construction that the first purchaser should be traced several steps back, as at common law, but, as will be seen, they have not been so construed. In 1829 this question, under the Ehode Island statute of 1822 (still in force), came before the supreme court of the United States. A father leaves land by descent to three bride, to her for life, remaincler to unborn ctiildren, by way of advancement. On tbe death of such a child, its share was deemed ancestral, as coming from the great-grandfather. Wheeler v. Clutterbuck, 52 N. Y. 67. Half-brother may take the interest in land which the intestate had inherited from a parent, if it came from the common parent. 149 Beebee v. Griffing, 14 N. Y. 235. Under the descent act of 1780, perliaps the half-brothers of the transmitting parent would not have taken. 160 See In re North's Estate, ubi supra; Buckingliam v. Jaques, 37 Conn. 402, under act of 1835. § 36 LAND TITLES IN THE UNITED STATES. [Ch. 4 children, all of whom die without issue. When the intestate, who is last survivor, dies, his own original one-third is, of course, ancestral. The other two-thirds have passed through one or two hands, — those of "kindred" between the father and the intestate. What is the char- acter of these shares thus accruing to the last surviving child? If only the descent from a full brother or sister is regarded, the descent would go as if the estate was purchased; not so, if we look back of such brother to the father, the "first purchaser." The supreme court of the United States held — and its ruling has been followed in New Jersey, New York, Ohio, Indiana, Connecticut, and Florida — that not more than one descent, gift, or devise can be looked to. The decisions turn mainly on the ground that the reason for the common- law rule was one of feudal policy, and is rather opposed to the policy of a new country; hence the statutes in favor of a former own- er's blood should not be extended by construing them into a re-en- actment of an abrogated common-law canon.^^^ We need not refer here to the Kentucky decisions; for, as the law of that state speaks only of estates derived from a parent, the descent from brother to brother falls clearly outside of it. In New Jersey an estate'which has come by gift, devise, or descent "on the part of the mother" diverges from the line of descent of pur- chased lands whenever the intestate has no issue, nor brothers or sisters, or the issue of brothers and sisters, of the whole blood. In- stead of going to the father, the inheritance goes as if the intestate had outlived his father. If the estate had come on the part of the father, it does not seem, from the statute, that the mother is deprived of the life estate which is given to her upon the failure of brothers and sisters, etc., of the whole blood. If the estate has come on the 151 Gardner v. Collins, 2 Pet. 58 (opinion by Mr. J. Story); Den v. Jones, S N. J. Law, 340; Wheeler v. Clutterbuck, 52 N. Y. 67 (as to half passing from brother to brother); Hyatt v. Pugsley, 33 Barb. 373 (inheritance from one parent to child, from child to brother, goes to brothers of both parents) ; Ciu'- ran v. Taylor, 19 Ohio, 36; Prichett v. Parker, 3 Ohio St. 395; Clayton v. Drake, 17 Ohio St. 367; Murphy v. Henry, 35 Ind. 442 (overruling Johnson V. Lybrook, 10 Ind. 473); Morris v. Potter, 10 R. I. 58; Clark v. Shailer, 4G Conn. 119 (relying on Gardner v. Colhns, 2 Pet. 58, and the Ohio cases). We class Tennessee with the states that go back only one step, though the point has not come up, as the tendency of its supreme court lately has been averse to the harsher features of the common law of descent. (264) Ch. 4] TITLE BY DESCENT. § 36 side of either parent, brothers and sisters of the half blood on the other side are excluded, and, in like manner, if there are any kindred on the transmitting side capable of taking the estate, none that are not of the blood of the transmitting ancestor shall be admitted at all.^" In Delaware any land to which the intestate has title by "descent or devise" from a parent or ancestor (which here seems to mean "as- cendant") shall first descend to his brothers and sisters of the blood of such ancestor, or their descendants, before going to the brothers and sisters, or their descendants, not of such blood. VL We lastly come to the three states in which the law of descent seeks for the "first purchaser," — Pennsylvania, Maryland, and North Carolina, — and in two of these three the ancestral rule goes, in a way, really further than at the common law. For in Pennsylvania gift or devise is joined with descent, in the derivation of the lands, and in North Carolina, "gift, devise or settlement." There are, however, in North Carolina, some broad exceptions. In Maryland the canons of descent, as they now stand under the Revision of 1860, are but slightly altered from the act of 1786. In default of issue, the statute gives one set of canons for land that has descended "on the part of the father" ; another for such as has descended "on the part of the mother" ; a third for such as has been acquired in any other manner, which comprises such as has come from a brother. The words "or in any other manner" were introduced in 1820 to cure a casus omissus, already mentioned, which would let in the common law. Land devised is not within the ancestral class. Land descended from the mother's brother comes "on the part of the mother,? and goes to her kindred, rather than to half-brothers by the father. Though the brother is not an ancestor, yet the father's estate which descends to one child, and from that child to its brother, remains paternal. ' Here is a table giving the order of descent for paternal and maternal estates: Paternal: (1) To the father; (2) to brothers, sisters, and their is- sue, of the father's blood ; (3) paternal grandfather; (4) his descend- i!i2Banta v. Demarest, 24 N. J. Law, 431; Haring v. Van Buskirk, 8 N. J. Eq. 545; Speer v. Miller, 37 N. J. Bq. 492. (205) § 36 l.AXU TITLES IN THE UNITED STATES. [Ch. 4 ants; (5) father of paternal grandfather, his descendants, etc. On failure of all these: (6) To mother; (7) mother's descendants; (8) maternal grandfather ; (9) his descendants ; (10) his father, and that father's descendants. Maternal: The order is 6, 7, 8, 9, 10, 1, 2, 3, 4, 5."' In North Carolina the gift, devise, or settlement, to be equivalent to a descent, must be from an ancestor, which is construed as mean- ing a relative to whom the donee or grantee would have been an heir."* Ancestral land goes, in default of issue, to the intestate's next collateral of the blood of the ancestor, the collaterals on the other side being cut out altogether. But the father or mother seem not to be touched. They take the same estate as if the lands were purchased; that is, after brothers and sisters, and their issue, and before more distant collaterals. And the courts have carried the estate back two steps, and would have gone back further; preferring, for instance, nephews of the grandfather from whom the land had come to the mother, to her uterine ha If -sister.^ °^ In Pennsylvania "no person who is not of the blood of the ances- tors or other relatives from whom any real estate descended, or by whom it was given or devised, shall take any estate of inherit- ance therein; but [it], subject to * * * life estate shall pass to * * * such other persons as would be entitled, if such persons 153 Donnelly v. Tui'ner, 60 Md. 81. Father's land descends to two children, on their death without issue it goes to the mother. Garner v. Wood, 71 Md, 37, 17 Atl. 1031. But lands descended from a brother, who was the pur- chaser, are not within this relief. Barnitz v. Casey, 7 Cranch, 456. The older cases, especially Stewart's Lessee v. Evans, 3 Har. & J. 287, and Hall v. Jacobs, 4 Har. & J. 245, are fully discussed. Here, where the common-law rule prevails, and only descended land is ancestral, the decision in Smith v. Triggs, 1 Strange, 487, that lands devised to the heir are to be treated as descended, a devise to the heir being void, is still important. 154 Sawyer v. Sawyer, 6 Ired. 407; Osborn" v. Widenhouse, 3 Jones, Eq. 238. And so, in Ohio, land devised to a sister-in-law is not deemed ancestral. Perm V. Cox, 16 Ohio, 30. 155 wilkerson v. Bracken, 2 Ired. 315 (estate carried back two steps). The law of 18(18 is illustrated by the history of the bill for enacting it. Dozier v. Grandy, 66 N. C. 484, refers to some older cases. But, to prevent an escheat, those not of the ancestor's blood may take when his blood is extinct. Uni- versity V. Broivii. 1 Ired. 387. Only collaterals of the wixng blood are wholly excluded, not the father. Little v. Buie, 5 Junes, Eq. 10. (2UG) f!h. 4] TITLE BY DESCENT. § '^S not of the blood ♦ • * had never existed." Under this law an inheritance was, in two cases, traced through one descent and two previous devises back of the intestate, with the result of finding no heirs to the purchaser thus reached, and thus defeating the very ob- ject of the law.^''* A devise by the husband to the wife is not with- in the rule (except in Indiana), the husband being neither ancestor nor relative.^"' The territory of New Mexico, in 1887, adopted the preference of the ancestor's blood to ancestral property, in its broadest form, applying it to everything that has come by gift, devise, or descent from the paternal or the maternal line, the kindred on the wrong side inheriting only when the right line is wholly exhausted. Whether land that has come from one who is clearly an "ancestor" has come in such a manner as to fall within the rule is often a deli- cate question. The equity may have come from him, but a deed con- veying the title from a stranger. In such a case it has been held in New York, in Rhode Island, and in Ohio, that the lands must be judged by the legal title, and are non-ancestral.^^' In Arkansas, lands bought for the son with the father's money were considered a gift; in Kentucky, also, though the father had derived the money from a legacy coming to his wife."* In Pennsylvania, if the holder of de- 156 B-aker v. Chalfant, 5 Whart. 477, has been quoted for the opposite view. It holds only that half-brothers on the right side may take ancestral lands. There is a dictum in it that a brother is not an ancestor, but this is repudi- ated in Maflat v. Clark, 6 Watts & S. 262, where the share passing between brothers is held ancestral. Then follow the cases alluded to in the text,— Lewis V. Gorman, 5 Pa. St. 164, and Dowell v. Thomas, 13 Pa. St. 41. The general heirs kept the estate, because none of the first purchaser were known. But very remote heirs of the first purchaser got the estate in Perot's Appeal, 102 Pa. St. 235. i57Birney v. Wilson, 11 Ohio St. 426 (arguendo); Brower v. Hunt, 18 Ohio St. 311. Contra, Fontaine v. Houston, 86 Ind. 205; Orr v. White, 106 Ind. 341, 6 N. E. 909; Comett v. Hough, 136 Ind. 387, 35 N. E. 699 (a strong case). 158 Nicholson v. Halsey, 1 Johns. Ch. 417: Champlin v. Baldwin, 1 Paige, 562; Watson v. Thompson. 12 R. I. 466; Shepard v. Taylor, 15 R. I. 204. 3 Atl. 382; Patterson v. Lamson, 45 Ohio St. 77, 12 N. E. 531 (stress was liUrt on the recital in the deed that the child had paid the price). Bond v. Swear- ingen, 1 Ohio, 395, must be considered as overruled. 159 Galloway v. Robinson, 19 Ark. 396, already quoted. And cases in which the equity did not clearly appear: Magness v. Arnold, 31 Ark. 103; Hogan (2G7) § 37 LAND TITLES IN THE UNITED STATES. [Ch. 4 scended land grants a fee-farm lease, the ground rent is a new ac- quisition. So, also, where he redeems lands which are ordered to be sold for the ancestor's debts, there is a new purchase.' '" When the ancestral lands are exchanged for others, the latter are not an- cestral, for at common law the character of the land might have been changed by mere formal conveyances.' °' But partition, whether by process of law, or by deeds in pais, leaves the character of the land unchanged.' ^^ § 37. Half and Whole Blood. Much on the subject of half and whole blood has necessarily been stated in the two preceding sections. To sum up the positions taken in the several states, it may be said: (1) As to lands not deemed an- cestral, the collaterals of the half blood are nowhere excluded alto- gether from the inheritance. As to ancestral lands, they are in most cases, where the distinction prevails, postponed, either by im- plication, or in terms. (2) Where the statute directs that ancestral lands shall go to those heirs only who are of the blood of the trans- mitting ancestor, the half-blood brothers or collaterals of that ances- tor are deemed to be within the definition.'®^ (3) The states which have framed their law for the disposition of the decedent's lands most nearly upon the pattern of the statute of distributions make, in gen- eral, the least discrimination against brothers and other collaterals of the half blood.'" V. Finley, 52 Ark. 55, 11 S. W. 1035; Walden v. Phillips, 86 Ky. 302, 5 S. W. 757. The result would have been the same if the estate had been considered as coming from neither fatlier nor mother. Perhaps Pennsylvania should be counted on this side if an inference may be drawn from Clepper v. Livergood, 5 Watts, 113, and other cases, in which the proceeds of an infant's land sold for reinvestment were made to go to the ancestral heirs. But the lands bought for an infant daughter out of the father's personal estate are not paternal, even in Pennsylvania. Simpson v. Hall, 4 Serg. & R. 337. leo Culbertson v. Duly, 7 Watts & S. 195. 161 Armington v. Armington, 28 Ind. 74. See citation from Coke's Littleton on change of nature of estate by feoffment and redelivery. But a deed from the husband to the wife through conduit is deemed a gift from him to her. 162 Conkllng v. Brown, 8 Abb. Prac. (N. S.) 345. 163 Danner v. Shissler, 31 Pa. St. 289; Cliver v. Sanders, S Ohio St. 501. 164 See the history of the colonial law on the subject in Clark v. Russell, 2 (268) Ch. 4] TITLE BY DESCENT. § 37 Coming to details, we shall first give the states in which no dis- tinction at all is made between those of the whole and those of the half blood: I. The statutes of Massachusetts, Vermont, Illinois, Kansas, Ore- gon, and Washington, in so many words put the collaterals of the half blood on an equality with those of the whole blood; and the statutes of Iowa do so by implication, by not speaking of the half blood at all, and yet covering the whole ground. Yet in Oregon and Washington there is a canon about the descent from one of several children, dying under age, to the other children of the transmitting parent; and in this case there must be a distinction against the half blood, as the special rule would prevail against the more general.^'' And the clause of the Kansas statute, that "children of the half blood shall inherit equally," etc., is unmeaning, and is defeated by the next clause, by which "children of a deceased parent inherit in equal pro- portions the portion their father or mother would have inherited." Thus brothers and sisters take by representation only; and it re- sults that those of the half blood get less than half shares.^ °° And the like result flows from the Iowa statute, under which, as in Kansas, on the failure of parents, the estate descends as if they had outlived the intestate. Thus only the three states of Massachusetts, Ver- mont, and Illinois remain in which collaterals of the half blood are treated, in all cases, as if they were of the whole blood. With these three states, however, Indiana must be counted, for all prac- tical purposes. No distinction is made here as to purchased es- tates; and the rule for ancestral estates comes in only when there is neither issue nor relict, nor parents, brothers, or sisters, nor issue of brothers and sisters. Should the estate have come from the intes- tate's father or mother, the collaterals of either by the half blood, being of his or her blood, would inherit. Hence, only in the rarer Day (Conn.) 112, which refers to acts of 1699 and 1727. It will be seen that Connecticut has since adopted another rule. i«5 See section 36, II. 166 Russell V. Hallett, 23 Kan. 276. In Schermerhorn v. Mahaffie, 34 Kan. 113, 8 Pac. 199, some meaning was given to the "children of the half blood," by allowing the children of a woman by her second husband to inherit equally with those by the first husband the share of the flrs^ husband's estate in- herited by her and left at her death. (269) § 37 LAKD TITLES IN THE UNITED STATES. [Ch. 4 case of land which has come from a grandfather or uncle, kindred of the half blood could be excluded as not being of the ancestor's blood. n. Next we must class the two states of Oregon and Washington, already mentioned, and Maine, New Hampshire, Rhode Island, Del- aware, which otherwise admit the half blood on an equality, but exclude it, if on the wrong side, in some or all cases of an ancestral estate; and Michigan, Wisconsin, Minnesota, Nebraska, California, Nevada, the Dakotas, Idaho, Montana, Utah, and Oklahoma, in all of which states and territories the statute, in very nearly the same words, says: "Kindred of the half blood inherit equally with those of the whole blood in the same degree, unless the inheritance came to the intestate by descent, devise, or gift of some one of his ances- tors, in which case all those who are not of the blood of such an- cestor must be excluded from such inheritance." This clause is copied from section 15 of the New York law of descent, which, how- ever, contains the further clause : "And the descendants of the same relatives shall inherit in the same manner as descendants of the whole blood," — which are proper in New York, which allows full rep- resentation, but not in the other states, which do not. It may be safely asserted that in all these states copying from New York, as in New York itself, only the last step in the derivation will be looked to, unless it be in the case of minor children of the same father, in which we have seen that Wisconsin considers the vf ather's succession as still open while an infant child holding a share in it remains alive.^"' We have seen that in Ahibama the only distinction of an- cestral lands is that they cannot go to the collaterals of the half blood on the wrong side, while collaterals of the blood of the ancestor in the same degree are to be found. It may be added that this is also the only discrimination against the half blood. III. Half shares are given to collaterals of the half blood in Vir- ginia, West Virginia, Kentucky, Florida, Missouri, Colorado, Wy- oming, Arizona; now, also, Texas, and even smaller shares in Lou- isiana, Iowa, and Kansas, where brothers and sisters take by repre- sentation of their parents, as shown above. We have seen how, in some of these states, in some limited cases, the half blood miglit be excluded from a parental estate which had come from the other side. ler See section 36, note 137. (270) Ch- 4] TITLE BY DESCENT. § 37 "WTiere the mother takes a brother's share in any of these states, it is, of course, the share of a brother of the whole blood, or twice as much as one of the half blood ; and in Missouri both parents take such double share, as against half-brothers or half-sisters, or their descendants, by the exprcr-s words of the statute. In Louisiana, the whole estate, or so much thereof as goes to brothers and sisters, is divided into equal halves, one paternal and one maternal; each half is divided among the brothers and sisters by their respective parents, and their representatives; those of the whole blood taking their shares in both lines; the result being that if there are as many half-brothers, etc., on one side, as there are full brothers, etc., the latter will have three- fourths; but if there are half-brothers and sisters, both on the fa- ther's and mother's side, the full brothers may have only double shares. IV. The half blood is postponed in the inheritance even of the in- testate's purchased lands in Connecticut (which has herein aban- doned its older policy of following the statute of distributions); in New Jersey, Pennsylvania, Delaware, Maryland,^ "^ Ohio, South Caro- lina, and Mississippi.^ °° In Connecticut, brothers and sisters of the whole blood, with those who represent them, come before parents; the same kindred, if of the half blood, after the parents ; and, among more distant collaterals, kindred of the whole blood, taking as next of kin, are preferred to those of the half blood in the same degree. In New Jersey the same law prevails, only substituting "father" in place of "parents." ^'"' In both states, all collaterals are excluded who are not of the blood of the "ancestor" or "kinsman" from whom the estate was derived. In Connecticut, in Maryland, and in Ohio, brothers of the half blood, if on the proper side, will fare better in ancestral than in purchased estate, being in the inheritance to the former of equal rank with those of whole blood. In Pennsylvania, the half blood is postponed only among the brothers and sisters of the intestate, with their children and grandchildren; not among those 168 Keller v. Harper, 64 Md. 74-84, 1 Atl. 65. 109 Scott V. Terry, 37 Miss. 65. Descendants of brothers and sisters of the whole blood take by representation, and are therefore, imder the Mississippi statute, preferred to brothers and sisters of the half blood. 17 Paternal land will go to paternal half-brothers in New Jersey where pur- chased lands would not. Den v. McKnight, 11 N. J. Law, 385. (271) § 33 LAND TITLES IN THE UiMTED STATES. [Ch. 4 of his father and mother, as the latter take, under the act of 1833, as "next of kin," and their character is not taken from them by the partial allowance of representation to uncles and aunts under the act of 1855. In Delaware, the half blood is postponed among the broth- ers and sisters of the deceased himself and their issue, but not among remote collaterals; that is, when the estate is purchased; when an- cestral, the half blood on the transmitting side is on an equality with the whole blood. In Maryland and in Ohio, among brothers and sis- ters and their descendants, those of the whole blood are, in the case of nonancestral lands, preferred to those of the half blood, who come in only on the failure of the former. There seems to be no differ- ence among more remote collaterals. In South Carolina, the canons of descent refer to half blood only within the parental group, not in the determination of the next of kin beyond that group. The provisions are, however, so obscure, and apparently so contradictory, that in the absence of judicial de- cisions we cannot undertake to state the effect. In Georgia, no dis- tinction is made among more distant kindred, but, among brothers and sisters and their issue, those from the mother's side only are post- poned to those on the father's side, whether the latter be of the whole or of the half blood. In New York, should there be no kindred as near as a grandfather or his descendants (uncles, aunts, cousins, etc.), the descent goes by the common law, that is, to the eldest brother, or to all the sisters, if there be no brother, of the paternal grand- father, which eldest brother or which sisters must be of the whole blood."! A very curious construction has been recently placed on the Indi- ana statute, which discriminates among kindred of the half blood only in the heirship to ancestral property, by preferring among the collaterals of the wife, as to lands received by her under her hus- band's will, one who happened to be a kinsman of the husband."^ § 38. Eemote Kindred. When there are no descendants, and none of the parental group, and no surviving husband or wife (or when the law gives to these iTi Brown v. Bui-lingham, 3 Sandf. (N. X.) 418 (arguendo). 172 Cornett v. Hough, 130 lud. 387, 35 N. E. U'JO. (272) Ch. 4] TITLE BY DESCENT. § 38 only curtesy or dower, or at all events, less than all of the landed estate), what becomes, then, of this estate, or of the residue? How do the more remote kindred take rank, and how do they share? There are two opposing views : The first is that of the common law and of the Hebrew law, modified only so far as to abolish the distinc- tion of age and sex. You go up from the propositus to his nearest ascendant who is either living, or who has descendants living. But, as the distinction of sex is done away with, you have to divide the estate between the kindred on the mother's side and those on the father's side, though in two or three states the former are excluded or postponed. In applying the principle, there is almost as much variety in parceling out the estate, or the moieties thereof, between grandfathers and grandmothers, uncles and aunts, as we have found in section 35 between father and mother, brothers and sisters, neph- ews and nieces; and the grandparents themselves may be passed by altogether. The other view is that of the latest Koman law, in which, after the two preferred groups named above (which, by the discrimination between half blood and whole blood, become three groups), the estate goes to the next of kin ; that is, to those who are nearest to the propositus in the number of degrees. Instead of only counting up from the propositus to his nearest ascendant (called gen- erally ''nearest common ancestor"), you count also downward from him to the proposed living heir, as has been explained in section 29. Eepresentation is wholly inadmissible. In the states which have adopted this principle, the representation of brothers and sisters is not carried out fully; and thus grandnephews and grandnieces, or, at least, great-grandnephews, etc., are taken out of the parental group, and are thrown in with the next of kin. Next of kin always take per capita, and where this principle is fully acknowledged the estate cannot be divided into two halves, for the maternal and pa- ternal side; but of course, the kindred on both sides are of equal rank. One cousin on the mother's side being of the fourth degree, will, for instance, take an equal share with three granduncles on the father's side, each taking one-fourth. Grandparents, being in the sec- ond degree, always rank highest. But the descent and division of land among the next of kin by the civil-law degrees seems to have been repulsive to the English-American mind; and the statutes which start out on the civil-law principle have generally been modified to LAND TITLES V.l 18 (273) § 38 LAND TITLES ]N THl? UNITED STATES. [Ch. 4 conform in part to the other, or common-law, principle. This has been done either bj extending "representation" to deceased un- cles and aunts, which is really an overthrow of the principle itself, or by a proviso that, among several kindred of the same degree, those having the "nearest common ancestor" — that is, those descended from the nearest ascendant of the intestate — should be preferred. I. The first-named system was set forth by Thomas Jefferson in the Virginia act of 1785. On the failure of issue, and of the pa- rental group, the act proceeds to divide the whole estate into two moieties, one for the father's, one for the mother's, kin, and says, as to the disposition of each: "Sec. 6. First to the grandfather. Sec. 7. If there be no grandfather, then to the grandmother, uncles and aunts on the same side and their descendants or such of them as there may be," etc., — with similar, but rather unimportant, direc- tions for even more remote kindred on the failure of these. This is still the law of Virginia and West Virginia, of Rhode Island and Florida, while in Kentucky (since 1874) the grandfather and grand- mother take equally, and uncles and aunts, or their descendants, come in only in the absence of both grandparents. The rule in In- diana is the same as in Kentucky, and in both states, on the failure of either line (father's or mother's), the whole estate goes to the other. The Texas rule seems to be the same.^^^ Under this system a single first cousin, or child of a deceased first cousin, on the mother's side, would get a full half of the estate, though there be 10 living uncles and aunts on the father's side; for the former represents one grandfather, or "one line," and the others jointly only represent the other grandfather, or the other line. By the language of the Ten- nessee act the estate is also divided into halves, but only if the kin- dred on the two sides are of "equal degree or represent those in equal degree," which comes exactly to the Virginia plan. Each half goes to the heirs of the father or of the mother, respectively. Who those heirs are has been shown in section 35. The statutes of Mis- souri, Colorado, and Wyoming also seek for the blood of the intes- tate's nearest ascendant, thus, "then to the grandfather, grand- 17 3 When the estate goes to kindred beyond parents, it goes in two moieties, without regard to nearness of those on the two sides. McKinney v. Abbott, 49 Tex. 371. This point seems not to have been expressly passed upon in the other states. (274) Ch. 4] TITLE BY DESCENT. § 38 mother, uncles and aunts and their descendants," and so on, passin;: to the nearest lineal ancestor and his descendants. This law has been construed in Missouri, notwithstanding the use of the singular, "grandfather, grandmother," to let in the maternal grandparents, as well as those on the father's side; and Colorado and Wyoming re- enacted the statute after it had been thus construed. In Maryland (which includes, for our purpose, the District of Columbia),^'* in North Carolina, and in Arkansas, the kindred on the father's side take the whole estate, in preference to those on the mother's side unless it has come ex parte materna; the latter take if there be no kindred on the father's side. In North Carolina, after the parental group, the inheritance must go to the nearest collaterals; hence the grandfather and grandmother are shut out in all cases. In Maryland the relatives of both grandmothers are excluded in all cases. In Arkansas the postponement of the maternal kindred is based on the use of the singular, "grandfather," etc., as in Missouri, and a section calling in the common law in all cases not provided for by the statute. New York, when directing the descent of lands, knows nothing of next of kin. After exhausting the descendants and the parental group, an inheritance coming from the father's side goes first to the brothers, sisters, or issue of brothers and sisters, of the father; a maternal estate, first to those of the mother; a purchased estate, to those of both parents. But the estate is not divided into two halves. On the contrary, the brothers and sisters of both par- ents, living or represented by issue, are added together, and take equally among themselves. No provision at all is made for the grandfather or grandmother. And if there are no brothers or sisters of the father or mother, nor issue of any of these, the common law steps in, with primogeniture and the exclusion of the half blood. It is almost impossible to construct a scheme in which the successions of an estate would go in Iowa and Kansas, in which states the chil- dren, the wife or husband, and the parents are the only heirs named in the statute, and in which all the more remote kindred, even broth- 174 It seems that the Maryland statute of 1736 still governs descents In tlie District, while the legislation of Maryland was greatly changed In 1820. The exclusion of the maternal kindred in favor of the paternal, the former to come in only when the latter are extinct, is enforced in Savary v. Da Camara, CO Md. 139. (275) § 38 LAND TITLES IN THE UNITED STATES. [Ch. 4 ers and sisters, take only as representatiyes or "heirs" of the parents. As far as the inheritance is not altogether deflected from the intes- tate's blood, it would have to go rather to the descendants of his nearest ascendant, as at common law, than according to the civil-law degrees. Ohio, though the statute spealcs of "next of kin," belongs in this category; for since March 4, 1865, the words "and their legal representatives," have been added to "next of kin," which has no other possible meaning than to restore the common-law rule of look- ing for the issue of the intestate's nearest ascendant. There is no division into the paternal and maternal lines. The distribution among the takers seems very dilflcult, under the words of the statute. n. The following states give lands, like personalty, to the next of kin by the civil-law degrees, after issue and the parental group are ex- hausted: Vermont, where, as shown in section 35, the descendants of deceased brothers and sisters are taken out of the parental group when there is no living brother or sister, and where the statute ex- pressly declares that there is no representation among next of kin; New Hampshire, where great-grandchildren of brothers and sisters, at all events take only as next of kin; in Illinois; in New Jersey, where, however, the use of the word "consanguinity," instead of "next of kin," has been construed to exclude grandparents entirely; in Con- necticut, where the next of kin who are collaterals by the whole blood are preferred to half-blood collaterals in the same degree; and in Louisiana, which provides a division by lines for ascendants, — that is, the one or two parents of the father or mother get one half, the one or two parents of the other get the other half. This separate dealing with the ascendants is taken from the civil law; but the grandparents, as they stand in the second degree, would, at any rate, be preferred to all other "next of kin." III. The two states of Pennsylvania and Mississippi, which nom- inally recognize the rights of the next of kin, leave but little of them in effect. Until 1855 Pennsylvania allowed no representation be- yond children of brothers and sisters. Grandnephews would take as next of kin only, after grandparents, after uncles and aunts, and on a level with cousins. Since 1855 brothers and sisters may be represented by grandchildren ; uncles and aunts, by children. Hence grandnephews come in before all mere next of kin, — grandparents, as the foremost among these. First cousins take with uncles, per stirpes, (276) Ch. 4] TITLE BY DESCENT. § 38 and to the exclusion of the children of cousins, who are only kindred in the fifth degree.^" In Mississippi representation is given "not beyond descendants of brothers and sisters, uncles and aunts," — that is, in at least 99 out of 100 cases, — and the reference to civil law degrees comes to nothing. In Georgia, after brothers and sisters, and their children and grandchildren, who take under the seventh canon, the eighth canon names first cousins, uncles, and aunts, with- out distinction between the father's and the mother's side. There is no representation for these. The ninth canon gives the estate, on the failure of all these, to the next of kin under the canon law, as understood in England in 1776, which probably means the statute of distributions. It has been held, under this clause, in accordance with the views indicated by Blackstone, but without citation of any English precedents, that nearness under the canon law is meas- ured by the longest distance of either the propositus or the dis- tributee from the common ancestor, and that, therefore, the grand- children of an aunt, as in the third degree, must be preferred to the great-grandchildren of a brother, who are in the fourth degree.^ ^'' 176 Byers v. McAuley, 149 U. S. 608, 13 Sup. Ct. 906 (under Pennsylvania law of descent; children of cousins postponed to cousins). 176 Wetter v. Habersham, 60 Ga. 193. The writer made inquiries on the subject of this case, and has been favored with the views of the highest au- thorities in England. Sir Walter Phillimore says: "Blackstone is right in say- ing that the canon law counts only the longer time of the two in reckoning de- grees. I take this from the table of degrees within which marriage is prohib- ited, published A. D. 1563, etc. Whether, however, the canon-law rule was applied to succession, 1 do not know. I only presume it was in England. But, if the legislature of Georgia meant by 'canon law as understood in England' the law of the statute of distribution, then there is no doubt that this law is tie civil law which counts the degrees (both ways). The best case is Lloyd V. Tench (1750) 2 Ves. Sr. 212, sustaining the counting of degrees by the civil- law rule in determining the distributees, etc. If, therefore, the legislature of Georgia meant to apply the statute of distribution, the decision of the Georgian court in Wetter v. Habersham is all wrong, etc. But if the legislature meant to apply the canon-law mode of counting degrees, as m the table of prohibited degrees, then the court was right. But, of course, the court would find no English precedents, as this mode of reckoning for succession pm-poses clearly could not prevail m England after the statute of distributions. If (which prob- ably no one knows) it prevailed before that statute, as there are no regular ecclesiastical reports before that date, a precedent could only be preserved by some accident. I think Blackstone's statements as to degrees are made gen- (277) § 38 LAND TITLES IN THE UNITED STATES. [Ch. 4 IV. In several states the inheritance is, on the failure of the pa- rental group (the extent of which has been defined above, in section 35), given to the next of kin, with this modification: that, between two or more next of kin standing in the same degree of remoteness, those connected "by the nearest common ancestor" (that is, by a com- mon ascendant who is nearest to the intestate) shall be preferred, — that is, grandnephews, who in most of these states are not admitted to represent the brothers or sisters, but who stand in the fourth de- gree, would be preferred to cousins, who are also in the fourth de- gree, because the former are connected with the decedent by his fa- ther; the latter, by his grandfather. But the grandnephews are postponed to uncles and aunts, who are in the third degree. And so first cousins are preferred to granduncles, both being in the fourth degree. This is the rule in Maine, Massachusetts, Delaware, Wi' consin, Minnesota, Nebraska, California, Oregon, Nevada, Washing- ton, the Dakotas, Idaho, Montana, Alabama, and in Utah, Arizona, and Oklahoma; also in Pennsylvania, in which, at best, but little of the civil-law degrees is left. Many of the states say expressly, in their statutes, that the degrees shall be determined by the rules of the civil law; and some statutes show, at large, how the degrees are computed.^^' Lastly, we must again refer to the peculiar clause in the erally, and not with specific reference to inheritance." Sir Frederick Pollock says: "The state of Georgia has made itself a queer puzzle, certainly. I do not believe there was any such thing as canon law understood in England (for the purposes of intestate succession) on the 4th of July, 1776. Therefore, I think the legislature of Georgia must be taken to have meant the law of the statute of distributions, etc. As to the historical question whether Courts Christian in England ever applied any distinct canonist rule of succession to intestates' effects, I should guess that they did not; and the statute of dis- tributions mainly confirmed existing practice." Mr. Bryce, wl}0 kindly for- warded the letters of Phillimore & Pollock, adds: "My own impression after studying the passage in Blackstone [about canon-lixw degrees] is that the legis- lature of Georgia misunderstood both Blackstone and the provisions of the English law. Though his language is not very clear, Blackstone cannot have meant to say that either for succession to real estate or for succession to per- sonal estate the rules of the canon law wore followed in England in his time. The latter had been regulated for near a century by the statute of distribu- tions, which is based upon the civil law, in fact on Novel 118." 177 The reported cases as to the rights of remote kindred are few, and not very difficult Under the pure civil-law system may be mentioned Smith v. (27S) Ch. 4] TITLE BY DESCENT. § 39 New York statute, by which, after the enumerated groups of kindred, the common law steps in, and the eldest paternal great uncle is pre- ferred to the great-aunts."* § 39. Bastards. We shall first consider how far children not born in lawful wed- lock may take or transmit an inheritance without being legitimated by marriage, leaving for another section the legitimation by mar- riage, and the status of children born in marriages null in law. The treatment of bastards is very different, ranging from South Carolina, in which the doctrine of Alius nullius is still undisturbed, to Utah, where illegitimates inherit like lawful children, from both fa- ther and mother, — a law sustained by the supreme court of the Unit- ed States."' We have already seen that Connecticut allows the transmission between bastard and mother without any provision for that purpose in the statutes, on the plain ground that the common-law rule is not applicable to its plan of succession, which cuts loose entirely from common-law principles. A number of states — California, Minnesota, Nebraska, Nevada, the Dakotas, Washington, Montana, and Idaho — and the territory of Okla- homa, have enacted, in exactly the same words, a section which says, among other things: "Every illegitimate child is an heir of the per- son who in writing, signed in the presence of a competent witness, acknowledges himself to be the father of such child, and in all cases is an heir to his mother." The instrument of acknowledgment must, Gaines, 35 N. J. Bq. 65 (grand uncle takes witli first cousin, both being in the fourth degree); Bailey v. Ross, 32 N. J. Eq. 544 (uncles exclude cousins); Smallman v. Powell, 18 Or. 3G7, 23 Pac. 249 (grandfather prefen-ed to uncle). Cousins in Pennsylvania exclude children of cousins. Shields v. McAuley, 37 Fed. 302. Uncles exclude cousins in New Hampshire. Watts v. Wellman, 2 N. H. 458. Grandparents in the District of Columbia exclude aunt. In re Afflick, 3 MacArthur, 95. 178 Hunt v. Kingston, 3 Misc. Rep. 309, 23 N. Y. Supp. 352. 170 Cope V. Cope, 137 U. S. 682, 11 Sup. Ct. 222. It had been objected that the territorial law was repealed by the act of congress, which abrogates all laws made to encourage polygamy. An act of 1884 requires some sort of acknowledgment by the father, though not in writing. (279) § 39 LAND TITLES IN' THE UNITED STATES. [Ch. 4 according to the weight of authority, excepting an important deci- sion made in California in 1893, be one written apparently for the purpose; not one in which the child is incidentally acknowledged by the father.^^" Maine has enacted the same rule in almost the same words."^ Kansas allows a "general and notorious" acknowledgment as the alternative for one that is in writing, while in Iowa "proof of paternity" during the father's life is deemed of the same force as a written acknowledgment.^*^ The statute in these states (other than Kansas and Iowa) proceeds thus: "But he shall not be allowed to claim as representing his father or mother by inheriting any part of the estate of his or her kindred, lineal or collateral, unless" there be legitimation by marriage. Now, this same difficulty arises in all the states in which the harsh common-law rule, as between the bastard and his mother, has been relaxed: Can the bastard inherit from his mother only, or also through her from her kindred? Can his lawful issue inherit from her and them? Can he transmit his own inheritance to her only, or also to her kindred, as if he was legitimate? On all these points ISO Pina V. Peck, 31 Cal. 359. A recital in a will, "my natural daughter A. B.," Is insufficient. See, for the clause quoted: California, Civ. Code, § 1387; Minnesota, Gen. St c. 46, § 5; Nebraska, § 1125; Nevada, § 2982; Dakota Ter- ritory, Olv. Code, § 780; Washington, § 1484; Montana, Prob. Pr-ac. Act, § 536; Idaho, § 5703; Oklahoma, St. § 6895. In re Jessup, 81 Cal. 408, 21 Pac. 976, and 22 Pac. 742, 1028, upholds another method of legitimation imder sec- tion 230 of the California Civil Code, by which a father can "adopt" his ille- gitimate child into his family (if he has a wife, only with her consent) with- out any writing, by treating him or her as his child. In Blythe v. Ayres, 96 Cal. 532, 31 Pac. 915 (see infra for another point), it was held that an in- formal letter addressed to tlie child, and written in presence of a witness, but unattested, is sufficient. 181 Rev. St. Me. c. 75, § 3. 182 Gen. St. Kan. pars. 2613, 2614 (illegitimate children inherit from the mother, and the mother from the children). They shall also inherit from the father whenever they have been acknowledged, etc. The leading Kansas case on illegitimates— Brown v. Belmarde, 3 Kan. 41— throws but little light on the subject. Under a mutual acknowledgment, the father may inherit from the child (paragraphs 2G15 and 2G16), but the mother and her heirs are preferred to him and his heirs. The very broad provision, both in Kansas (paragraphs 2610 and 2612) and in Iowa, for letting children and parents be represented by their heirs, would make transmission either way perfect, modified as above. (280) Ch. 4] TITLE BY DESCENT. § 39 the progress of legislation has been steadily towards treating the bastard as if he was the lawful child of his motiier. In the follow- ing states the father can legitimate, to some extent at least, his natural child otherwise than by marriage, that is, by a proceeding in court: In North Carolina, Georgia, Alabama, Mississippi, and New Mexico, — in which proceeding the judge is allowed some dis- cretion. The effect of the judgment of legitimation is to make the bastard a lawful child far all purposes, so as to carry a descent from the parent, or his or her kindred, to the bastard or his issue. Ten- nessee, an offshoot of North Carolina, also provides a mode of ac- knowledgment by order of the county court, which is a sort of adoption, and renders the child legitimate for all purposes.^'^ In Indiana, a child may be acknowledged by the father. The fact of acknowledgment must be proved by other testimony than that of the mother; but there remains only a "natural child," who will inherit only if the father leaves no lawful issue anywhere, and no heirs of any kind (including a widow) in the United States.^** In Louisiana the father can by an "authentic act" — that is, an act drawn up by a notary and attested by two witnesses — acknowledge a, natural child, provided it be neither the result of adultery (a mar- ried man's intercourse with any woman other than his wife is deem- ed adultery), nor of incest. But the inheritance of natural children takes precedence of the state only, and is "irregular" ; i. e. such heirs ■can take possession only under the decree of a court.^*^ South Carolina does not legislate at all on the subject of bastards, and here, unlike Connecticut, the harsh rule of the common law is ■deemed in force.^"" Delaware enables the mother to take from the 183 The Tennessee law dates back to 1805. A child legitimated under it in- herits from the grandfather. McKamIe v. Baskerville, 86 Tenn. 459, 7 S. W. 194. 18* Rev. St § 2475 (amendment of 1853); Borroughs v. Adams, 78 Ind. 161; Cox v. Rash, 82 Ind. 520. Under act of 1831, a bastard's wife excluded the mother. Doe v. Bates, 6 Blackf. 533. issvoorhies' Dig. § 2474, on the basis of an act of 1831. See, also. Rev. OIv. Code, art. 924 et seq. As to "adulterines," see Succession of Fletcher, 11 La. Ann. 59. 188 Barwick v. Miller, 4 Desaus. Eq. 434 (under St. 1791, but this has not been changed since). (281) § 39 LAND TITLES IN THE UNITED STATES. [Ch. 4 child but not the child from the mother. New Jersey has regulated the transmission of personal estate to and from bastards, but leaves the common-law rule in force as to lands.^*' In New York, by the Revised Statutes in force January 1, 1830, the mother inherited from the bastard on failure of issue; but no provision was made for the bastard till April 24, 1855. He is now heir to the mother on failure of lawful issue. This is also the rule in North Carolina. In Louisiana the natural child of the mother is indeed postponed to her kindred, but not to her husband. In the other states and territories the mother and the bastard child themselves inherit from each other as if the child was lawful ; but there is great divergency, as indicated above, as to collateral de- scent, and as to descent through the mother, both in statutes and in the construction of statutes worded alike. However, in the District of Columbia, with the Maryland laws petrified as they stood in 1801, upon the death of an illegitimate without children or other issue, his widow is his onlj- heir.^'* New York transmits the estate of a bastard dying without issue, not only to his mother, but, if she be dead, to her kindred, as if he were her lawful child; and this is also the rule in California and the states named with it, whenever the bastard leaves neither consort nor issue. Massachusetts (since March, 1882), Illinois (since 1872), Ohio (since 1865, and in part since 1853), Pennsylvania (since 1883, except that the mother and her kindred cannot inherit the bastard's own acquisitions),^*" Indiana (since 1853), Ehode Island, Virginia (by construction of a statute which says simply "transmit and in- herit on the part of the mother"), West Virginia (by following Vir- 187 Ng^ Jersey, "Orphans' Court," § 147, refers to personal estate only. The law of descent does not mention bastards. 188 Briggs v. Greene, 10 R. I. 495; Grundy v. Hadfield, 16 R. I. 579, IS Atl. 186 (bastard and children of bastard inherit from his brothers, legitimate issue of his mother). Contra, in District of Columbia. Brooks v. Francis, 3 MacArthur, 109. 188 Opdyke's Appeal, 49 Pa. St. 373; Grubb's Appeal, 58 Pa. St. 55 (under act of 1855). The Virginia court of appeals construed a devise to a woman and her issue in Bennett v. Toler, 15 Grat. 588, as including her illegitimate children. And in Hepburn v. Dundas, 13 Grat. 219, such children, according to their putative father, are classed as fuU and half brothers. (282) Ch. 4] TITLE BY DESCENT. § 39 ginia), Texas, Arkansas, Missouri,"" Tennessee, Mississippi, and Florida "^ allow the bastard and his lawful issue to transmit and talve to, from, or through the mother as if he were legitimate, and so does Connecticut, without having any statute as to the inheritable quality of bastards. And this is probably the law in Iowa and in Kansas. While in Virginia the words "inherit and transmit on the part of the mother" were held to embrace all her kindred, the Kentucky courts construed the same words as meaning no more than "from the mother," or "to the mother;'' and a bastard child was not allowed to take the estate of his mother's father or brother.*'^ In Missouri the same words in an act of 1845 were held to mean that the bastard can take from his mother, and that, when he dies before her, his issue could take her estate; and this decision probably led to the present more liberal statute, as another adverse decision based up- on the Kentucky precedent did in Illinois; in fact, in most of the states which are classed above with Missouri and Illinois. In Massachu- setts even the issue of a predeceased bastard child was excluded from the benefit of the first statute, recognizing bastards as children of their mothers. Such representation of the predeceased bastard is, however, allowed in Kentucky, and this is in Georgia the statutory rule, and will probably be maintained in most or all other states on general principles of representation. In the states named with California, and in the states (other than Virginia, West Virginia, and Connecticut) in which no special provision is made for transmission "through" the mother, it may be assumed that it is not allowed.^'' 190 In Bent v. St. Vrain, 30 Mo. 268, both mother and Illegitimate sister were excluded, on the authority of Judge Washington's opinion In Stevenson's Heirs V. Sulllvant, 5 Wheat. 207, on the meaning of the words "Inherit and transmit," etc., in the Virginia act Virginia has herself rejected this con- struction. For Indiana, see Ellis v. Hatfield, 20 Ind. 101 Oegitimate child of mother inherits from her bastard). 191 Tennessee (Act March C, 1885) speaks only of descent from the ille- gitimate himself. Keech v. Enriqucz, 28 Fla. 597, 612, 10 South. 91. 192 Allen V. Ramsey, 1 Mete. (Ky.) 635; Scroggln v. Allan, 2 Dana (Ky.) 364 (following Stevenson's Heirs v. Sulllvant, 5 Wheat. 207) ; also Remmlngton v. Lewis, 8 B. Mon. 606; Jackson v. Jackson, 78 Ky. 390; Sutton v. Sutton, 87 Ky. 216, 8 S. W. 337 (bastard's lawful issue represents him). 193 Bales V. Elder, 118 111. 436, 11 N. E. 421 (under act of 1845, in short terms giving transmission between mother and child), in which the Kentucky and other like authorities are fully quoted aud relied on. The new Illinois law, (2S3) § 39 LAND TITLES IN THE UNITED STATES. [Ch. 4 In some of the states named above, along with Massachusetts, as treating the bastard the same as the legitimate child of the moth- er, there is, however, a special set of rules for the descent of property on the death of an illegitimate intestate. Thus, in Illinois, while the widow or widower of any other person dying without is- sue takes only half his real estate, the relict of a bastard takes it all, to the exclusion of a mother and brothers, etc. And so it is in Ver- mont, one of the states in which the bastard inherits only from the mother, but not from her kindred.^"* In Tennessee, while in other cases brothers and sisters come in as heirs before the mother, the mother of a bastard precedes his brothers and sisters ; and so does the surviving husband or wife. Such statutory rules are faithfully carried out; ^'° but the statute of Michigan, which gives a bastard's ■estate to his mother on the failure of issue, has been construed, as if it read: "Without husband or wife or issue;" and a similar clause in the Indiana statute will be interpreted as securing to the wife her ordinary share.^"" In Colorado, the estate of a bastard who dies without consort or issue goes one-half to his mother, the other half to his brothers and sisters, etc. In Alabama, where a bastard may inherit as well from the mother's kindred as from the mother, the rights of the latter are not enlarged above those of a legitimate mother, but even a half- brother by a different father inherits from the bastard in prefer- ence to the mother. What is said above as to Kentucky was the law only till October 1, 1893 ; for, by the new statute which then came in force, a bastard inherits from the mother and her kindred, and transmits to her and them, as if he were her legitimate child.^°^ more liberal, Is applied In Jenkins v. Drane, 121 111. 217, 12 N. E. 684. See, for older Tennessee laws, Brown v. Kerby, 9 Humph. 460. 101 Bacon v. McBride, 32 Vt. 585; Grundy v. Hadfield, 16 K. I. 579, 18 Atl. 186. 10 5 The rules are found among the canons of descent. See, as to Tennes- see, Evans v. Shields, 3 Head. (Tenn.) 70; Scoggins v. Barnes, 8 Baxt. ^Tenn.) 560. 19 6 Keeler v. Dawson, 73 Mich. COO. 41 N. W. 700. See Rev. St. Ind. § 2476, and consider the favor shown in Indiana to the widow. 107 Under the older Kentucky law, the late case of Blankeuship v. Ross, 25 S. W. 268, gives the estate of a bastai-d dying without issue, one-half to his mother, the other half to his only brother by the same womb. (284) Ch. 4] TITLE BY DESCENT. § 39' While Virgina has, without special words in her statute, allowed the bastard to inherit from his brothers, legitimate or illegitimate^ born from the same mother, and even discriminated between full brothers and half-brothers, according to the fathers, lawful or puta- tive, the statutes in some other states have treated the descent among brothers and sisters specially. Georgia allows bastard children from the same mother to inherit from each other, but not from her legitimate children ; hence, by way of reciprocity, the lat- ter do not share in the "wild pasture" of the bastard's estate.^"* In North Carolina, on the other hand, the legitimate brothers are al- •lowed to come in on the bastard, while the latter inherits only from his brother in shame.^°* In Tennessee the illegitimate brother can- not inherit from the legitimate.^"" In Kentucky, as in Georgia, the bastard children of one mother could until very recently take and transmit only among themselves.^ "^ In California the inheritance of one bastard child from the other (or the other's lawful issue) was worked out from the general power of the bastard to transmit to the mother or her kindred ; and the precedent will probably be follow- ed in the states which have drawn their statute in the same words.""^ Where persons have been legitimated by special acts of the legis- lature, the words of the act must, of course, be closely scanned, to find how far the legitimation goes; and the courts will presume in favor of the wider scope. So, where A. and B. are declared the law- ful sons of C, they become by statute lawful brothers, and inherit from each other. "^ There have been very few cases in which the legitimating father sought an inheritance from his natural child. Where the statute 198 Allen V. Donaldson, 12 Ga. 332; Houston v. Davidson, 45 Ga. 574. ISO Flintham v. Holder, 1 Dev. Eq. 349; Ehringhaus v. Cartwright, 8 Ired. 39; Powers v. Kite, S3 N. C. 15G. The law Is made more liberal in the successive revisions of 1836, 1857, and 1373. 200 Woodward v. Duncan, 1 Cold. (Teun.) 562. See Code, §§ 3270, 3273. 201 Act 1S40 (see Loughborough's St. p. 211); now Gen. St. c. 31, § ~x See, contra, Kemmington v. Lewis, supra. But, by an act of 1893 (St. 1894, § 1397), the bastard inherits from his mother's kindred. 20 2 Estate of Magee, 63 Cal. 414. 203 Berry v. Owens, 5 Bush (Ky.) 453; Killam v. Killam, 39 Pa. St. 120; Pace v. Klink, 51 Ga. 220. (285) § 40 LAND TITLES IN THE UNITED STATES. £Ch. 4 speaks of the child as "legitimate for all purposes," of course the father should inherit, like any other father. But most of the stat- utes which we have here considered fall short of these words; and in most of tlie states which allow a legitimation without marriage the father will not inherit from the naturaJ, though legitimated, child.=»* Though it would seem that legitimacy is a matter of "personal law" and should depend upon the domicile of the child, it has been lately held in an important and well-contested case that a father living in California could by mere correspondence so far recognize a daughter born in England, and living there until after the father's ' death, as to make her his legitimate child and sole heir.""' The bastard to whom the lands of the father descend, when he is recognized in the form pointed out by the statutes of many of the Western states, is an "heir," within the meaning of the national land laws of the United States, and may claim the benefit due to the heirs of a pre-emptor.""* § 40. Effect of Marriage. In most of the American states, a child born out of wedlock may be fully legitimated by the subsequent marriage of the father and mother, which in most of them must be coupled with recognition by the father. The states, which in the next preceding section are named with California as having the same enactment as to illegit- imate children, say therein: "But he shall not be allowed to claim as representativa of his father or mother," etc., "unless, before his death, his parents intermarry, and his father after such marriage acknowledges him as aforesaid, or adopts him into his family." This 20* McCormick v. Cantrell, 7 Yerg. 615. The Kansas statute (sections 2615 and 2616) provides that the child may recognize the father; and he can inherit from the child. 20 5Biythe V. Ayres, 96 Cal. 532, 31 Pac. 915, arising under sections 230 and 1387 of the California Civil Code, and pretty well supported by the de- cision of the house of lords in the Scotch appeal of Munro v. Munro, 1 Rob. App. 492. It was thought not necessary for the father in this case to receive the child into his family, as he lived with a mistress. 206 Hutchinson Invest Co. v. Caldwell, 152 U. S. 65, 14 Sup. Ct. 504 (under section 2269, Rev. St U. S.). (286) Oh. 4] TITLE BY DESCENT. § 40 makes him brother to the legitimate children, with a "saving to the father and mother » * « their rights in the estates of all said childien," etc. In Maine, the birth of other children to the marriage is made equivalent to acknowledging the antenatus, or adopting him into the family. In Minnesota and Nebraska, the words "and have other children" are inserted after "intermarry." So there are three requisites: intermarriage, other children, and acknowledgment. Some of the states referred to have elsewhere in their statutes a clause to the effect that "a child born before wedlock becomes legiti- mate by the subsequent marriage," etc.; but this, it seems, does not dispense with acknowledgment.^"' Pennsylvania requires only that the parents should "intermarry and cohabit" (which cohabitation need not be permanent); and in Oregon intermarriage alone makes the child legitimate to all purposes. But who are the parents? Who is the father? Under the law of both Pennsylvania and Oregon an acknowledgment by the father seems immaterial, and paternity has to be proved.^"* The acknowledgment must in Louisiana be by an authentic act, or must be contained in the marriage contract; and a child of adultery or incest cannot be legitimated. In other states no writing is re- quired to constitute an acknowledgment. Some states require, by implication or expressly, that the child be acknowledged after mar- riage with the mother, while a few, for instance Kentucky, allow this recognition to take place either before or after marriage; but the child must not be begotten in adultery. In Virginia, the parents may, by marriage after the child's death, legitimate its issue.^"" Gen- !0 7 See section 39, note 180, for place of the clause in the several statutes. 208 The Pennsylvania acts of 1857 and 1858 are embodied in Brightly 's Purdon's Digest with the act of 1833 among the canons of descent See, for construction, McDonald's Appeal, 147 Pa. St. 527, 23 Atl. 892 (no presumption that antenatus is the husband's child). But even in Maine, where the stat- ute contemplates an acknowledgment, this is not always a sufficient proof of paternity. Grant v. Mitchell, 83 Me. 23, 21 Atl. 178. 209 See, for statutes: Maine, c. 75, § 3; Massachusetts, c. 125, § 5; New Hampshire, c. 180, § 15; Vermont, § 2233; Connecticut, § 630; Pennsylvania, "Maniasje," pi. 9; Ohio, § 4175; Indiana, § 2476; Illinois, c. 39, § 3; Mich- igan, § 5775a; Wisconsin, § 2274; Maryland, art. 46, § 29; Virginia, c. 123. § 6; West Virginia, c. 78, § 6; Kentucky, c. 31, § 6; Georgia, § 1786; Florida, c. 11, § 5; Alabama, §§ 2364, 2365; Mississippi, § 1549 (1275); Minnesota, c. (287) § 40 LAND TITLES IN THE UNITED STATES. [Ch. 4r erally speaking, the child legitimated by marriage is "legitimate for all purposes," though the Arizona statute reads as if the issue were only enabled to inherit from his father, but not to represent hiin.^^" But in Rhode Island, New York, New Jersey, Delaware, and South Carolina the old rule, of which England is so proud, is still unbroken. In North Carolina and Tennessee, legitimation by the order of a court, as explained in a former section, is the equivalent of intermarriage and recognition; and the laws of North Carolina and Tennessee do not provide for the latter. In Louisiana, recognition gives only the greatly inferior position of a "natural" child, while marriage and rec- ognition give all the rights of inheritance and transmission which belong to lawful issue.-^^ At common law, though there be a marriage in form, yet if it be null by reason of another husband or wife living ^^^ at its inception, or by reason of consanguinity or other causes, the children born of the union are deemed bastards. But the states which legitimate the children born before marriage have generally relaxed the other rule also, by giving legitimacy to the children of a "marriage null in law," if they are born or begotten before its judicial annulment, either in all cases, or with exceptions. Thus, those states which disallow marriages between whites and blacks bastardize the children of such connections. In California, Nevada, the Dakotas, Montana, Washington, Idaho, and Oklahoma, the section already quoted in part winds up: "The issue of all marriages, null in law, or dissolved by divorce are legiti- mate." Minnesota says the same in its chapter on marriage, leav- ing out "or dissolved by divorce," the meaning of which words is not clear. Nebraska, which otlierwise goes along with these states in 01, § 17; Iowa, § 2200; Missouri, § 2170; Arkansas, § 2525; Texas, § 1G3G; Colorado, § lOiS; Wyoming, c. 42, § 7. Several states have two clauses in their laws,— one which requires acknowledgment; the other does not. But it seems that the former prevails. Contra, .Sams v. Sams' Adm'r, 85 Ky. 396, 3 S. W. 593. See Ash v. Way, 2 Grat. 203. 210 Jackson v. Moore, 8 Dana (Ky.) 170; Rev. St. Ariz. § 1470. 211 Rev. Civ. Code, art. 198. 212 Cartwright v. McGown, 121 111. 328, 12 N. B. 737. Husband lived with second wife for many years, and had children by her after dissolution of first marriage, she being ignorant of it. The cohabitation and reputation, being based on the original ceremony, did not prove a common-law marriage per verba de praesenti. (288) CJh- 4] TITLE BY DESCEiNT. § 40 the treatment of illegitimates, declares tlie issue illegitimate, but only when the marriage is annulled by decree for consanguinity, or when it is between a white person and a negro." ^ The number of mar- riages null in law, except where one of the parties is ignorant of the other party having another husband or wife living, is so small that it seems sufficient to refer the reader in a note to the statutes of the several states that have legislated on the subject."* Where the law forbids intermarriage between whites and blacks, it is natural that the issue should be illegitimate, as there could have been no mistake of fact to excuse the forbidden union, and it is so declared in Maine, Nebraska, Delaware, North Carolina, Kentucky, Arizona, by way of exception to the curative statute. In South Carolina there is no statute on the subject, nor in Connecticut; hence, issue of a marriage void for any cause is deemed illegitimate as at common law; and so it is in Rhode Island, where the statute only enforces the old rule as to certain cases. In a number of the old slave states, and in the District of Colum- bia, also in Illinois, the legislature has found it necessary to set up retrospectively a lawful relationship between colored parents and their children born in the days of slavery, giving to the customary marriage among slaves the effect of wedlock. In Missouri some sort of registration waa demanded. The child, to be legitimate, must be 213 See section 39, note 180, for the other states and territory; for Min- nesota, c. 61, § 17; for Nebraska, § 1449. It is so also in Kentuclsy and many of the former slave states. 21* Illinois, c. 40 (Divorce), § 3, and ease of Clarke v. Lott, 11 111. lO.o, decided under It, fall short of legitimating the issue of void marriages. As to other states, Virginia and West Virginia have the broadest declaration of legitimacy among the rules of descent. See Maine, a 60, § 19; New Hamp- shire, c. 160, § 3; Vermont, § 2350; Massachusetts, c. 145, § 13; Minnesota, c. 61, § 17; Indiana, §§ 1026, 1027. And there are similar acts in Pennsylvania, Ohio, Michigan, Wisconsin, Missouri, Iowa, Colorado, Wyoming, Arkansas, Texas, and Arizona. Under the Virginia statute, in Heckert v. Hile's Adm'r, 18 S. E. 841, the child of a second wife, whom the husband man-ied before a divorce from the first, who had deserted him, was held legitimate, and al- lowed to Inherit. A law legitimizing children of void marriages, as the Te-xas act of 1848, aids the children as to all inheritances opened by death after such law is enacted. Carroll v. Can-oil, 20 Tex. 731. L A N D TITLES V . 1 19 (289) § 40 LAND TITLES IN THE UNITED STATES. [Ch. 4 born before a day named, ranging from 1865 to 1870."''^ "Where the statute, as in North Carolina, in terms only enables the children to inherit from a parent, they cannot take the estate of an aunt or of a brother or sister; ^^^ but the Missouri statute expressly confers on the children of a slave marriage the quality of brothers and sis- ters. Where a child is legitimated by marriage under the law of the domicile in which he is born, perhaps, also, if he is recognized as legit- imate by the laws of the state in which his parents are domiciled and marry, he acquires the status of a lawful child, and ought, upon principle, to inherit even lands lying in those states which adhere to the common-law rule. It is different in England, where legiti- mation, under the Scotch law, of children born and domiciled in Scot- land, has been held insufficient; -^'' and not all of the American de- cisions are in harmony on the subject. But the two principal states which have held out against the innovation on the old English rule. New York and New Jersey, have admitted the effect of the status of legitimacy acquired elsewhere.-'* At all events, he who is 215 Maryland, Pub. Geu. Laws, art. 62, § 33; Rev. St. U. S. pt. 2, § 794; the Missouri act is found, in Revision of 1869. 216 Tuclier v. Bellamy, 98 N. C. 31, 4 S. E. 34 (under act of 1879; not from aunt). In Brown v. McGee, 12 Bush, 429, the remedial statute of Kentucky was deemed to apply, though one of the parents was free. Hepburn v. Dun- das, 13 Grat 219. Emancipated slave children of same parents inherit from each other. They might do so under the general law as to bastards. The reported decisions under these statutes are few in number, as the estates in dispute were not often large enough to justify appeals to the highest courts. In Tennessee, the original law on the subject bedng found too narrow, it was enlarged by act of March 21, 1887, to include children of "customary mai-- riages" bom outside of as well as within the state. 211 Doe V. Vardill, 6 Bing. N. C. .385 ("that a child must be legitimate, and, moreover, born in wedlock"). But the so-called "statute" is nothing but an entry on the rolls of parliament that the barons had rejected a proposed cnange in the law in favor of the antenati. See Story, Confl. Law, §§ 87-93. 218 Smith v. Derr, 34 Pa, St 126, was decided in Pennsylvania before its law permitted legitimation on the strength of a clause in the descent act of 1833, similar to the statute of Slerton. In Miller v. Miller, 91 N. Y. 315, a child born in the kingdom of Wurtemberg (whose laws allow legitimation), and whose parents married in Pennsylvania, which afterwards enacted a retro- spective law to the same end, was allowed to inherit land in New York, (290) Ch. 43 TITLE BY DESCENT. § 41 a bastard, as being born before wedlock, by the law of his own dom- icile, cannot inherit as a lawful child in a state which allows children born outside of wedlock to be legitimated by a subsequent mar- riage.''^* A child born before wedlock is not legitimated by a marriage that is itself void by reason of being bigamous."^" § 41. Adoption. The "adrogation" or "adoption"' of a person by another, not his father, by which the former would become, in the eyes of the law, the cJiild and heir of the latter, was a feature of the Roman law, from a very early period. It passed through France and Spain, into the jurisprudence of Louisiana and Texas. It was introduced by statute in Massachusetts in 1851, and has since become the law of all states and territories, with the exception of Maryland, the Dis- trict of Columbia, and Virginia.^ ^^ where the father and child resided at the time of the former's death. This was followed up in Stack v. Stack, G Dem. Sur. 280 (at best a very close case). In New Jersey the chancellor recognized a Pennsylvania legitima- tion in Dayton v. Adkisson, 45 N. J. Eq. 603, 17 Atl. 964. One of two twins was allowed to inherit from the other. 219 In McDeed v. McDeed, 67 111. 546, tlie state with the more liberal law withheld the inheritance from a child bastardized by the laws of Its home. So in Mississippi, as to a child born in South Carolina, where his parents inter- married. Smith V. Kelly, 23 Miss. 167. 2 20 Adams x. Adams, 154 Mass. 290, 28 N. E. 260. 221 The Louisiana act of 1831 as to legitimation has a clause for adopt- ing a strange child by notarial act. For the present statutes on adoption, see in the Revisions or Codes quoted in last note to section 31, and in other laws, specially named: Maine, c. 67, § 38; New Hampshire, c. 188, § 1; Ver- mont, §§ 2536-2542; Massachusetts, c. 148, §§ 1-10; Connecticut, §§ 471-474; Rhode Island, c. 164, § 1; New York, Rev. St. pt. 2, c. 8, tit. 3, § 18; New Jersey, Revision, p. 1345; Pennsylvania, "Adoption"; Ohio, § 3137; Indiana, §i 823-828; Illinois, c. 4, § 1; Michigan, § 6379, etc.; Wisconsin, §§ 2273, 4021- 4024; Delaware, 17 Biennial Laws, p. 612, § 1; West Virginia, c. 122, §§ 2-5; North Carolina, c. 1; Georgia, §§ 1788-1790; Acts 1889, p. 69; Florida, Laws 1885, c. 3594; Kentucky, c. 31, § 18, amended 1890, c. 573; Tennessee, § 4388, etc.; Alabama, § 2475, etc.; Mississippi, § 1496, etc.; Iowa, § 2307, etc.; Minnesota, c. 124, § 26; Nebraska, §§ 5263-5267, or chapter 2, §§ 796-800; Kansas, pars. 3873, 3874; Texas, arts. 1 and 2; Wyoming, c. 2, §§ 1, 2; Col- (291) § 41 LAND TITLES IN THE UNITED STATES. [Cb. 4 As a supplement to the two preceding sections, we should mention a clause in the statutes of California, the Dakotas, Idaho, Montana, and Washington which is appended to those which regulate adoption, and which uses the same word, but only gives an additional method for legitimating natural children: "The father of an illegitimate child, by publicly acknowledging it as his own, receiving it as such with the consent of his wife, if he is married, into his family, and otherwise treating it as if it were a legitimate child, thereby adopts it as such, and such child is thereupon deemed legitimate for all pur- poses from the time of its birth." In true adoption the paternity of the adopted person is immaterial, and he becomes, in the eyes of the law, only the adopter's child, as to the relations between the two, but not the relative of all the adopter's kindred. The clause quoted has been sustained, as being cumulative, and not limited by another clause in the same body of laws, which requires a written legitima- tion.^^^ In a few states, adoption is effected by a deed or written declaration signed by the adopting parent or parents and the person to be adopted, or his parents or guardian. It is So in Vermont, Iowa, Missouri, Alabama, and Texas. The deed has to be acknowledged and recorded. In Pennsylvania, Colorado, and Wyoming, adoption can be made either by deed, or by proceedings in court, while all other states which allow adoption at all demand proceedings in ei- ther the probate court, or a court of full common-law or equity ju- I'isdiction, resulting in a judgment or decree. The requirements of the law differ greatly. In some states the person adopted must be under age; in others, he need only be younger than the adopter. In orado, §§ 1, 2; Idaho, §§ 2545-2554; Montana, Gen. Laws, §§ 1-10; Nevada, Acts 1885, c. 24, § l; Washington, § 1418; Oregon, § 2938, etc.; California, Civ. Cede, !i§ 221, 230; Arizona, e. 15, §§ 1383-1392; Arkansas, Dig. 1894, §§ 2492, 2493 (beir miule by written declaration); Louisiana, Rev. Civ. Code, art. 214 (see Voorh. I»ig. § 2474); Florida, §§ 1536-1541. The adopted child is a "child capable of inheriting." Moran v. Stewart, 122 Mo. 295, 26 S. W. 902. The South Carolina act was only passed December 24, 1892. Georgia, see amendment of September 26, 1883, to section 1788 of the Code. See amend- ment in Maine, Acts Feb. 28, 1889; in California, March 9, 1893. 222 See In re Jessup, 81 Cal. 408, 21 Pac. 976, and 22 Pac. 742, 1028 (already quoted in section 39), for facts to establish adoption in pais under section 231; In re Pico's Estate, 52 Cal. 84, 56 Cal. 413. This section, with its counter- parts in other states, applies only to minor children. (292) Ch. 4] TITLE BY DESCENT. § 41 some states a married man can only adopt with the consent of his wife ; in others, he can, without her consent, choose an heir for him- self, though not for her. In a few states a nonresident may become the adopting parent of a child having its domicile there. The age above which the child must give its own consent is generally 14. In some states it is 12.-^^ The leading features of the Massachusetts law, from which many of the others are copied, are these : Any one who is 21 years, or over, may petition the probate court for leave to adopt one younger than him- self, other than the petitioner's husband or wife, brother or sister. If the petitioner is married, husband or wife joins. The adopted person becomes the child of both. One not an inhabitant may adopt a child residing in the state. The person to be adopted, if over 14, also the husband, on behalf of a married woman, the parents or surviving parent, or person having custody, or illegitimate mother, on behalf of an infant, must give consent in writing. Parent need not consent (1) if hopelessly insane ; (2) if imprisoned under sentence having still three years to run; (3) if he has for two years allowed the child to be supported by corporate or public charity. When all the parties do not consent, notice is issued, or order of publication, if the notice cannot be served. The court, if there is no answer, gives judgment, or appoints guardian ad litem. If satisfied of petitioner's ability to do good to the child, a decree of adoption is entered. "As to the succession to property, a person adopted in accordance with the pro- visions of this chapter shall take the same share of property which the adopting parent could have devised by will that he would have taken if born to such parent in lawful wedlock, and he shall stand to the legal descendants but to no other of the kindred of such par- ent in the same position, as if so born to him." But what he receives by gift or inheritance from his natural father shall descend as if he had not been adopted. He shall not lose the inheritance from his 223 Louisiana statute of 1SG5 required a judicial act. Since 1872 notarial act is again sufficient. Succession of Vollmer, 40 La. Ann. 593, 4 South. 25i. For exposition of Texas statute, see Eckford v. Knox, 67 Tex. 200, 2 S. W. 372. Pennsylvania act of 1872 for adoption by deed is retrospective as to deeds made before that time, but not if descent is already cast on others. Ballard v. Ward, 89 Pa. St. 358. New York act of 1873 (chapter 830) is not to defeat previous adoptions, but cannot aid them. Hill v. Nye, 17 Hun, 457. (293) §41 LAND TITLES IN THE UNITED STATES. [Ch. 4 natural kindred. Inhabitants of another state, adopted in accord- ance with its laws, are entitled to inherit in this state accordingly. There may be a second adoption, with the first adopter's consent. From the decree of the probate court an appeal lies to the supreme court, and it may be vacated for fraud in the probate court itself. Most other states have either left out the clause which raises a re- lationship between the adopted and the real children of the same father, or have expressly directed that the adopted child is not to represent the father in the inheritance from his lineal or collateral descendants; and, though the descent between brothers is deemed direct, it is believed that with such a clause the two classes of chil- dren will not inherit from each other.^^* In Texas, one who is adopt- ed as an heir is not given the same rights as a real child, for when the adopter leaves any issue the adopted heir's share must not ex- ceed one-fourth. In most of the states there is no reciprocity; the adopter does not become the heir of the adopted.^^° Some statutes and decisions bear on the question whether an adopted child fills the description of "children," of "issue," or of "heirs of the body," in a deed or will. This is no part of the law of descent, but rather of the construction of grants and devises. The adopted child is deemed "issue," within the meaning of a statute of descent, such as the Mas- sachusetts act, giving a certain share to the widow on failure of issue.^^° But it is generally held that where the adopter's wife has 2 24 This clause in tlie Wisconsin statute was thought by the supreme court of Illinois not to allow the real child to inherit from the adopted. Keegan V. Geraghty, 101 111. 26. As to descent between brothers being direct, see below, sections on "Aliens." No succession between real and adopted child. Moore y. Moore, 35 Vt. 98; Bamhizel v. Ferrell, 47 Ind. 335. Helms v. Elli- ott, 89 Tenn. 446, 14 S. W. 980, distinguishing McKamie v. Baskerville (see note 183 to section 39, case of legitimated natural child). In Massachusetts a grandchild adopted by her grandfather becomes a sister to her dead parent, and can take only her own share, not the parent's share by representation. Delano v. Bruerton, 148 Mass. 619, 20 N. E. 308. But in Iowa grandchildren adopted inherit their own shares and that of the parent. Wagner v. Varner, 50 Iowa, 532. 22 5 Hole V. Kobbins, 53 Wis. 514, 10 N. W. 617. But by section 2272a prop- erty derived from the adopter is to go to him or his kindred. There is a similar provision in Arizona ("Descent"); and the counterpart, as shown in the text, in IMassachusetts. Barnhizel v. Ferrell, 47 Ind. 335. 226 Buckley v. Frazier, 153 Mass. 525, 27 N. E. 7GS. (204) Ch. 4] TITLE BY DESCENT. § 41 not assented to the adoption, though the act might not be void al- together, yet it will not diminish the widow's descendible share.^''' A state which provides by its own laws for adoption considers the condition of a child adopted anywhere as a status known to its laws, and will allow such child to inherit land situate within it to the same extent as if such child had gone through the process of adoption un- der its own laws.^-* The land lawyer is interested in knowing how far a defect in the judicial proceedings, or in the execution of the deed, will render the adoption void, so that it may fail to give inheritable capacity. Where proceedings in court are required, the person or persons wishing to become adopters are the petitioners; and other persons, generally the parents of the child, if not at hand and willing to consent, must be notified. The failure to notify them in the manner pointed out by law would, on general principles, render the judgment or decree void.^^" But a defect rendering it only voidable could not be invoked by the heirs of the adopter to the injury of the adopted child.^^" The jurisdiction to declare one person the child of another, not his parent, is so foreign to the course of the common law that it has been narrowly watched. The proceedings should show that the dom- icile of the parties is such as the law demands, and, unless the stat- ute indicates another intention, it will hardly be interpreted as allow- ing nonresidents of the state to apply under it for leave to adopt.^^^ 22T Stanley v. Chandler, 53 Vt. 619. See In re Kowen's Estate, 132 Pa. St 299, 19 Atl. 82. In Indiana, wife's consent is not required. See Bamhizel V. Ferrell, supra. But the adoption of children by the husband does not redtice the wife's right over her inheritance, as real issue does. Barnes V. Allen, 25 Ind. 222. 2 28 Ross V. Ross, 129 Mass. 243 (a case arising before present statute); Keegan v. Geraghty, 101 111. 26. In Florida the statute recognizes the adop- tion laws of other states. Rev. St. 1892, § 1825. 2 29 Furgeson v. Jones, 17 Or. 204, 20 Pac. 842. In California, under act of 1878 for adopting children from orphan asylum with consent of managers, no consent, adoption void. In re Chambers, 80 Cal. 216, 22 Pac. 138 (not a case of succession). It seems that in Kentucky the order of adoption cannot be collaterally attacked. Tinker v. Ringo's Bx'r (Ky.) 11 S. W. 605. 23 Sewall v. Roberts, 115 Mass. 262. 231 Ex parte Clark, 87 Cal. 638, 25 Pac. 967, but an order made by an acting judge is good. In re Newman's Estate (Cal.) 16 Pac. 887. New Hampshire statute passed on, Foster v. Waterman, 124 Mass. 592. But in Pennsylvania (295) § 41 LAND TITLES IN THE UNITED STATES. [Ch. 4 In some states the court decreeing the adoption has no further power over the matter, while in other states it may, upon application, set it aside for good cause.^"^ Where the adoption is made by deed, slight informalities, such as failing to fill out the age of the child, when enough appears to show its minority, are not fatal, and it is no objection that the same person who signs the deed as consenting guardian signs also as adopter.-" But, where the statute requires the deed to be recorded, it must be done within the adopter's life- time, or the adoption will fail.^^* Where a "person" is authorized to adopt, husband and wife may join in one act, and the adopted will sustain the position of child to both of them.^^° A line of decisions took rise in New Jersey, establishing a sort of equitable adoption; that is, where, by some oversight, the forms of adoption had been neglected, in whole or in part, or where the law for adoption turned out ineffectual, but the adopting parents, as well as the child, had for many years lived in the belief that the relation of parent and child existed between them, the latter was given the inheritance by way of an equitable right arising by contract The supreme courts of Ohio, Missouri, and Michigan followed these prec- edents.^^" They have, however, been disapproved in Indiana, llli- it was held that a temporary residence is sufficient to give jurisdiction, though petitioner was a nonresident of the commonwealth. Appeal of Wolf (Pa. Sup.) 13 Atl. 760. Formality not insisted on in New York. People v. Bloedel (Super. Buff.) 4 N. Y. Supp. 110. 232 Thus, Pub. St. Mass. c. 148, §§ 2, 11, only provide for a decree of adoption, and an appeal from its grant or refusal. Secus in New York, Laws 1884, c. 438, § 12. See People v. Paschal, 68 Hun, 344, 22 N. Y. Supp. SSI (power to revoke). So iu Pennsylvania. In re Gatjkowski, 12 Pa. Co. Ct. R. 191. 233 Bancroft v. Bancroft's Heirs, 53 Vt. 9; Abney v. De Loach, 84 Ala. 393, 4 South. 757 (where also the unauthorized signature of the wife claiming to adopt as mother was deemed surplusage). 234 Tyler v. Reynolds, 53 Iowa, 14C, 4 N. W. 902; Shearer v. Weaver, 5G Iowa, 578, 9 N. W. 907. The defective execution of the deed is not aided by the child's living in the adopter's family. Long v. Hewitt, 44 Iowa, 363. But in Abney v. De Loach (supra, from Alabama) it was held not fatal that the deed was recorded in the wrong book. 235 Krug V. Davis, 87 Ind. 590. 230 Van Tine v. Van Tine (N. J. Ch.) 15 Ati. 249, following Van Dyne v. Vreeland, 11 N. J. Eq. 370; Sharkey v. McDermott, 91 Mo. 047, 4 S. W. lOT; Shahan v. Swan, 48 Ohio, 25, 2G N. E. 222. (290) Ch. 4] TITLE BY DESCENT, § 42 nois, and Iowa.'" The supreme court of South Dakota has gone so far as to treat the expectancy of an adopted child (whose mother had given her needful consent on condition that it would inherit from the new parent) as so much of a vested right that a voluntary convey- ance or a devise by the latter of the bulk of his estate might be set aside by the adopted child as a fraud upon his rights,^** § 42. Legitimate Birth. In sections 39 and 40 the rights of natural children have been discussed on the supposition of the facts being known. We have still to consider some presumptions of law and artificial rules of evidence bearing on legitimate birth. Presumption is always in favor of legitimacy, especially where a person has for many years been recognized as the legitimate child of another, and still more after the child's death.'''* Marriage may always be proved by "co- habitation as husband and wife, and reputation," and in a state in which, as at common law, verba de praesenti alone, or verba de future and cohabitation, make a valid marriage, such proof is con- clusive. In a well-considered case in New York, the jury were allowed to presume, in the case of a child born two weeks before a marriage ceremony, and always thereafter acknowledged by the father, that the parties, living in Connecticut, had before the birth of the child been married privately, so as to sustain the child's le- gitimacy.^*" The question of admissibility of declarations by the supposed fa- ther or mother, or of reputation, to prove the dates of marriage or of birth, or the paternity of a child, belongs rather in a work on Evi- dence than on Land Titles; but the question, what facts may be shown to bastardize a child born or begotten during lawful wedlock, 2 37 Wallace v. Rappleye, 103 111. 229; Wallace v. Long, 105 Ind. 522, 5 N. E. 66G; Shearer v. Weaver, 56 Iowa, 578, 9 N. W. 907. 23 8 Quinn v. Quinn (S. D.; 1894) 58 N. W. 808. 2 3 Stegall V. Stegall, 2 Brock. 269, Fed. Cas. No. 13,351; Johnson v. John- son, 1 Desaus. (S. C.) 595; Johnson v. Johnson, 30 JIo. 72. 240 Starr v. Peck, 1 Hill (N. Y.) 270. The reasoning is strained. In nearly all the states the law legitimates children on intermarriage and recognition; hence this case has lost some of its importance as a precedent. Man-iage "in fact" need not be proved. In re Robb's Estate, 37 S. C. 10, 16 S. E. 241. . (297) § 42 LAND TITLES IN THE UNITED STATES. [Ch. 4 is one of policy, rather than of evidence, and its correct answer is a part of the law of descent. The civil law lays down the rule: "Pater est quern (justae) nuptiae demonstrant" ("Father is he whom lawful wedlock points out"). This rule was received into the law of England, and in the time of Lord Coke and long thereafter was carried so far that no exception was allowed, except the hus- band's absence from the realm during the whole time when concep- tion could have taken place, or his impotency.^*^ The rule was shaken by a judgment of Lord Eaymond in 1732, and narrowed down so that the utter impossibility of the husband's access from any cause, not only by reason of absence from the realm, may be shown against the presumption; and in the Banbury Peerage Case it was still more weakened, nothing being left but this: if access by the husband appears, no proof against his paternity can be al- lowed, and under no circumstances can either husband or wife be admitted by their testimony to bastardize the child of the latter.^*- The common law assumes that a living child may be born after a gestation of 180 days at the least, and of 280 days (still improperly called "ten months") at the most; hence, a child born within 280 days after the husband's death or after divorce stands on the same presumption as if born within wedlock.^^^ But the presumption is by no means withdrawn from those born less than 180 days after the marriage is solemnized. ^^* In a Virginia case decided in 1811, the husband was allowed to inherit from his wife's child born three 2" Co. Litt. 244a. 242 Pendrell v. Pendrell, 2 Strange, 925; Banbury Peerage Case (Opinions of the Judges) 1 Sim. & S. 153. See, also, Goodright v. Moss, Cowp. 591, for the distinction between a case in which the dates of marriage and birth are in dispute and the matter in hand. The rejection of the husband's or wife's testimony or declaration against the legitimacy of a child begotten in wed- loclj is said here, by Lord Mansfield, to be demanded by "decency, morality, and policy." 243 Rhyne v. Hoffman, 6 Jones, Eq. (N. C.) 335. So declared in many states by statute, for the purpose of letting in posthumous children; e. g. in Cal- ifornia and those grouped with it in section 39, issue of marriages dissolved by divorce is legitimate, which must mean begotten in marriage, but born after divorce. 244 A child bom immediately after man-iage is legitimate. Niles v. Sprague, 13 Iowa, 198; State v. Herman, la Ired. 502. (298) Ch. 4] TITLE BY DESCENT. § 42 months after the marriage, although he had always repudiated it, and had separated from his wife, evidently by reason of her ante- nuptial unfaithfulness. It was, of course, not absolutely impossible that he might have been the father, but the court knew plainly that he was not, and rested its judgment on the presumption alone.^*° While the courts everywhere agree that neither reputation nor the declarations of father and mother, nor even their testimony, can be allowed to bastardize a child avowedly born in wedlock, or within the period of gestation after its dissolution,^" they differ pretty widely as to the facts which may be admitted to upset the presump- tion of legitimate birth. The supreme court of North Carolina has in one case gone almost or quite as far as the English courts before Lord Raymond, holding a child legitimate that was born six months after a divorce had been granted for the wife's adultery, while both an older and a later case ^" speak of the staid old rule as exploded. The supreme court of Louisiana went also very far in a case which it decided on the supposed law of South Carolina.''*' In Louisiana the matter is regulated by the Civil Code, which gives to the husband or his heirs an action for disavowing issue, to be instituted within a given time, and does not allow an inquiry to be made otherwise than in such an action.^** 246 Bowles V. Bingham, 2 Munf. 442 (decision), 3 Munf. 599 (opinion). Phil- lips v. Allen, 2 Allen (Mass.) 453, was also a cast In which the child was in fact almost certainly a bastard, bom eight months after marriage, and eight months and ten days after husband and wife first met. Perhaps the Virginia courts would decide the matter otherwise in our days. 248 Bowles V. Bingham, supra; Cross v. Cross, 3 Paige (N. Y.) 139; Green V. Green, 14 La. Ann. 39; Haddock v. Boston & M. R. Co., 3 Allen, 298; Den- nison v. Page, 29 Pa. St. 420. 247 Rhyne v Hoffman, 6 Jones, Bq. (N. C.) 335. Contra, State v. Pet way, 3 Hawks, 625; Warlick v. White, 76 N. C. 175. 248 Vernon v. Vemon, 6 La. Ann. 242, a case in which husband and wife lived for years in different counties, if not in different states, and where the child in question was by both of them openly treated as the offspring of adultery. It seems that the courts of South Carolina treated the matter differently. 249 Dejol V. Johnson, 12 La. Ann. 853; Succession of Saloy, 44 La. 433. 10 South. 872. In this case, A., B., and C. were the daughters of D. and of E., her supposed husband. A. dying without issue, B. and C. claimed the suc- (299) § 42 LAND TITLES IN THE UNITED STATES. [Ch. 4 In Georgia, on the other hand, the strict old English doctrine was denounced as the height of unreason, and all facts are admitted which indicate that the husband could not have been the father, including his actions and declarations on discovering his wife's pregnancy.^^" The only case in Kentucky in which the wife's loose conduct and her acts of adultery were deemed material is really not so strong, yet these facts were only admitted as corroborative, after strong medical evidence had been given of the husband's im- potency at the time of conception.^^^ South Carolina in two late cases (1880 and 1882) has gone as far as Georgia, the court holding that "a question of paternity is in itself a question of fact, the principle pater est, etc., having its full influence." ^^^ In Tennessee, all such circumstances as would bear against the husband's paternity, such as the wife's loose conduct, her intimacy with an adulterer, the claim made by the latter and the wife that the child was their child, its resemblance to the adulterer, ajid not to the husband, "etc., were all deemed admissible against the pre- sumption of the law. The admission of the mother's declaration in this and in the Georgia case goes far beyond the modern English <;ases.^^' In New York, also (not, however, in a case of inheritance), the old rule, even in its modified form, by which intercourse between the husband and the wife must be impossible, in order to bastardize the issue, has been rejected.^^* In all cases in which a child having ■cession, and were opposed by the state, which claimed for want of all heirs, on the ground that the kinship of A., B., and C. sprang from adulterous birth, AS D. was in fact the wife of F., who lived in another country. Held, that unless F. or his heirs raised the question, D.'s daughter must be deemed legit- imate. 250 Wright V. Hicks, 12 Ga. 155; the case coming up on a second writ of error in 15 Ga. 160. 251 Goss V. Froman, 89 Ky. 318, 12 S. W. 387. In this and other cases the monograph of Sir Harris Nicolas on Adulterine Bastards, giving all the English decisions down to about 1840, Is frequently quoted. 2 52 Shuler v. Bull, 15 S. 0. 421, followed up in Wilson v. Babb, 18 S. C. 69, where it was held that the presumption is weaker where the child is be- gotten before marriage. 2 53 Cannon v. Cannon, 7 Humph. 410. 2 64 Van Aernam v. Van Aernam, 1 Barb. Ch. 375. (300) Ch. 4] TITLE BY DESCENT § 42 a strain of negro blood is born to the white wife of a white husband, all presumptions must yield to the plain fact.^" In Wisconsin and Michigan, in cases not directly affecting the rights of the child, the English doctrine, said by Lord Mansfield to be founded "on decency, morality, and policy," that neither hus- band nor wife can testify to nonaccess, has been upheld.^'" While neither the child's mother nor her husband are allowed to testify as to nonaccess, either of them may prove the date of their marriage, and the date of the child's birth, so as to show whether or not it was born in wedlock.^ °' It may be stated, as a result of the reported decisions, that the modem English doctrine is on the whole the average doctrine of the United States; in other words, neither husband nor wife can by declaration or testimony bastardize a child born during wedlock;. and, when access by the husband cannot be disproved, the child must be held legitimate, unless, indeed, its race or color should differ from that of both its mother and her husband. The presumption of the husband's paternity has in a late case in Maine been successfully invoked to disinherit a child born to a woman during her first coverture, but who was acknowledged as his own as an antenatus by her second husband, and sought a share in his estate.^ ^' Where a statute gives a kind of legitimacy to the children of colored parents who lived in slavery times in the "customary" rela- tion of husband and wife, the same strong presumption in favor of the husband's paternity does not arise as in the case of actual mar- riage. ^°'' 2 55 Watkins v. Carlton, 10 Leigh (Va.) 560. Compare Raby v. Batiste, 27 Miss. 731; Warlick v. Wbite, ubi supra; Bullock v. Knox, 96 Ala. 195, 51 South. 339. 256 Egbert v. Green wait, 44 Mich. 245, 6 N. W. 654; Mink v. State, 60 Wis. 583, 19 N. W. 445. 257 Janes' Estate (Appeal of McDonald) 147 Pa. St 527, 23 Atl. 892; 2 Greenl. Ev. § 151. 25 8 Grant v. Mitchell, S3 Me. 23, 21 Atl. 178. 259 Woodward v. Blue, 107 N. C. 407, 12 S. E. 453. (301) § 43 LAND TITLES IN THE UNITED STATES, [Oh. 4 § 43. Aliens. At common law an alien who should, by purchase (that is, by ei- ther deed or will), acquire land, would hold it undisturbed until the crown should institute an inquest of oflQce; and only after "office found" (that is, upon the verdict of a jury given before the escheator) the crown would be vested with the estate, and might then dispos- sess him. But in the matter of descent it is otherwise. An alien has no "inheritable blood," i. e. no one is his heir. When he dies his kindred have no more right to take possession than any one else. And if a subject dies, and his kinsman nearest in right of inheritance is an alien, he will be passed by, and the one nearest after him who is a subject will step in his place.^°" It follows that if some of the coparceners were aliens the others alone would inherit. And if a subject dies, and leaves no kindred other than aliens, his land es- cheats, the alien kindred having no more title or right of entry than any stranger. Lastly, one subject cannot inherit from another through an alien; that is, the grandson or nephew cannot inherit through his father,^" but one brother inherits directly from the other, though their relationship comes through the common father.^'^ All this learning has become more and more unimportant, as well through the very liberal legislation of the several states, as through the con- clusion of treaties by the United States, with a great number of other 2 80 Hardy v. De Leon, 5 Tex. 211; Jackson v. Jackson, 7 Johns. (N. Y.) 214. 2S1 Levy v. M'Cartee, 6 Pet. 102, where the English authorities are reviewed. The British statute removing the objection had been repealed in New York along with other British statutes in 1789. It was re-enacted in the Revised Statutes, going into effect in 1830. Probably those states which do not author- ize a descent passing through an alien would act upon the British statute 11 & 12 Wm. III. c. 6. Where authority is given to inherit through an alien ancestor, he must be dead. A., a citizen, leaves an alien brother, B., who has a citizen son, C. He also leaves an uncle, D., a citizen. D. will inherit, not C. McLean v. Swanton, 13 N. Y. 535. The contrary, however, was decided in Virginia in Jackson v. Sanders, 2 Leigh (Va.) 109 (now become unim- portant in that state, through the sweeping act of 1873). Connecticut does not recognize the common-law rule against deriving descent thi-ough an alien. Campbell's Appeal, 64 Conn. 277, 29 Atl. 494. 282 McGregor v. Oomstock, 3 N. Y. 408, and authorities quoted in Levy v. M'Cartee, supra. (302) Ch. 4] TITLE BY DESCENT. § 43 nations, in which the citizens or subjects of each are enabled to in- herit real estate in the other, and by the statutes which confer citi- zenship upon the wife and minor children of every American citizen, who has at any time resided in the United States. I. The following history of the law of Kentucky on descent to and from aliens, reproduced from the writer's Kentucky Jurisprudence, is useful to illustrate the course of state legislation : "As to aliens, the common law, having been modified in 1796 so as to permit the title to pass from citzen to citizen through an alien, was fur- ther relaxed in 1800 so as to permit aliens who have lived in the state two years thereafter to pass or take landa by descent. This was re-enacted by the Revised Statutes (1802). An act of March, 1861, re- moved the disability to inherit or transmit lands entirely. An act of March, 1867, restored the older law, so modified as to malce a 'dec- laration of intention' the test, instead of the two-years residence. This was re-enacted by the General Statutes (1873). But an act of February 23, 1874, removes the disability in favor of those aliens whose home country allows citizens of Kentucky the right to trans- mit and inherit lands within its own borders. This takes in all sub- jects of Great Britain." ""^ It may be safely stated that the old rule, by which a citizen cannot take by descent from a citizen through an alien, is no longer in force anywhere within the American Union. But this means merely that a grandson or nephew who is a citizen may, if the next heir, inherit, though his father or mother, who died before the intestate, had been an alien; not that such grandson or nephew can inherit, though his father or mother, an alien, nearer to the intestate than he, be alive at the intestate's death. ="■* In the following states it seems that aliens are put on the footing of citizens, as to the transmission and inheritance of land: Maine, Indiana, Michigan, Wisconsin, Iowa, Minnesota, Maryland, Virginia, West Virginia, Georgia, North Carolina, Tennessee, Missouri, Ar- kansas, Oregon, Nevada (except as to subjects of China), Colorado, Washington, the Dakotas, Idaho, South Carolina, Alabama, Mis- 283 "Kentucky Jurisprudence," by the author, p. 191. 20* De Geoffrey v. Riggs, 18 D. C. 331. But In Spratt v. Spratt, 1 Pet. 343, lands acquired by the intestate while still an alien were held to be included. (303) § 43 LAND TITLES IN THE UNITED STATES. [Ch. 4 sissippi, Florida, New Mexico, Arizona, and, for all practical pur- poses, Montana; ^"^ and very nearly so in California.^^" Maryland, by an old act, which is still in force in the District of Columbia, did, and Nebraska, perhaps by a slip of the lawmaker, does yet, allow nonresident aliens to take by descent from aliens, while the same right is not vouchsafed to them over the succession from citizens. It was held in a late case in the District that the statute is not to be extended by a reasoning a fortiori to the latter case. However, resident aliens are not now subjected in either place to any disqualification.^'" In Delaware only resident aliens who have made their "declaration of intention" are relieved from the disability of transmitting or taking.^'* Connecticut relieves "any alien resident" of the United States, and any citizen of France, as long as France accords the same right to American citizens, so they may transmit and inherit like born citi- zens, but it seems that only the widow or lineal descendants of an 205 Maine, c. 73, § 2; Massachusetts, c. 126, § 1; Rhode Island, c. 172, § 6; Pennsylvania, "Aliens," §§ 10, 11, 15; Ohio, § 4173; Indiana, § 2967 (Act 1885); Illinois, e. 6, §§ 1, 2, modified in 1887 (see below); Michigan. § 5775; Wisconsin, § 2200; Iowa, § 1908; Minnesota, c. 75, § 41; North Carolina, § 7; Tennessee, §§ 2804-2807 (taken from an act of 1873); Missouri, §§ 342, 343; Arkansas, § 233; Oregon, §§ 2988, 2989; Nevada, §§ 2655, 2656; Colorado, § 61; Washington, except as to Chinese, §§ 2955, 2956; Dakota, Civ. Code, § 170; South Carolina, §§ 17(;8, 1847; Alabama, § 2S60; Mississippi (only as to resident aliens), § 2439; Florida, c. 92, §§ 7, 14; New Mexico, § 2746; Arizona, § 1472; New Jei-sey, Revision 1877, p. 6, Act 1846 (excepting, as do some of the other states, alien enemies); Virginia act of 1873, made section 43 in Code 1887, very sweeping (see Hauenstein v. Lynham, 100 U. S. 483); West Virginia, c. 70, §§ 1, 2; JIaryland, c. 45, § 8; Georgia, § 1661; In Montana, Prob. Code, § 553; and Idaho, Rev. St. § 5715 (a nonresident alien heir must "appear" and claim within five years). 2SG The constitution of California guaranties to resident aliens the same rights of property as to citizens. The Civil Code (sections 671 and 672) gives to nonresident aliens five years after the decedent's death to "appear and claim," which law is in accord with the constitution. State v. Smith, 70 CaL 153, 12 Pac. 121. 267 Nebraska, §§ 4396-^399. See Comp. St. 1881, c. 73, § 54. On the Mary- land act of 1791, see Geoffrey v. Riggs, IS D. C. 331. 2 68 Delaware, c. 81, § 1. (304) Ch. 4] TITLE BY DESCENT. § 43 alien are capacitated to take as dowress, or as heirs at law."' In Kansas the constitution, as amended in 1888, seems to contem- plate that, until laws are enacted on the subject, aliens will have the same property rights as citizens, and no laws disabling them from taking or transmitting lands have been passed.^'" The Civil Code of Louisiana does not disqualify aliens, and, as it has no background of common law, there is no distinction in prop- erty rights between aliens and citizens. It would have been the same in Texas, under the Spanish law, but for a Mexican decree of 1828 which prohibited the ownership of land by aliens in the pro- jected colony in Texas. Until the republic, in 1840, adopted new laws, many owners of large tracts died, leaving kindred in the United States; and cases arise yet, from time to time, in which the inca- pacity of these "alien" heirs to take by succession arises. At present an alien resident who has "declared his intention," and the subject of any country which allows inheritance to American citizens, has the right to transmit and inherit lands in Texas.^'^ 1^ New York there were a number of retrospective acts, down to 1826, releasing the state's title by escheat, and again an act of 1843 in favor of naturalized citizens to whom land had come by descent or devise before their naturalization, reserving all vested rights, and a similar act for resident aliens in 1845. Among permanent statutes came first one of 1825, putting a resident alien who had made his "deposition" or "declaration," for six years thereafter, on the footing of citizens.^" Then came the Revised Statutes, allowing descent through an alien. The act of 1845 enables the alien or other heirs of an alien resident to take the descended lands, on certain terms, which law was in 1874 extended to resident alien heirs of citizens. Finally, under a statute of 1889, the children and descendants of a woman born in the United States may take and hold real estate in New York, notwithstanding her marriage and residence in a foreign 269 Connecticut, Gen. St. 1888, §§ 15-17. 270 Kansas, Gen. St. 1889, § 00. 271 Mlddleton v. McGrew, 23 How. 45 (alien could not Inherit in 1835); Hardy V. De Leon, 5 Tex. 211 (nearest citizen talses). 272 Construed in Kennedy v. Wood, 20 Wend. 230; Wright v. Saddler, 20 N. Y. 320. The common law is left in force, except where the act applies. LAND TITLES V. 1—20 (305) § 43 LAND TITLE8 IN THE UNITED STATES. [Ch. 4 country. But aliens residing outside of the United States were still incapable of inheriting till they were allowed, by an act of 1893, to inherit from citizens, and to transmit the inheritance. "'' In New Hampshire the statute, until 1891, only released the rights of the state where the title had vested in an alien, but did not prevent the inheritance from passing "around him" to the next heir after the alien ; but now it puts an "alien resident" in this state on the same footing with the citizen, as to taking and transmitting by descent.^^* Only Vermont has enacted no statute on the subject of aliens, ='^' and this for the singular reason that escheat of the land of aliens, and the want of "heritable blood," has appeared to the judicial mind of that state as an incident of feudalism, and out of place in a state in which all titles to land are allodial. Though the decisions of the supreme court do not cover all the points, the universal practice of the state does. It puts citizens and aliens on the same level, as to the descent of lands.^^* The statutes of the United States regulate the rights of aliens in the District of Columbia, and, to some extent, in the territories. The object of these laws, enacted in 1887, was to prevent the holding of large bodies of land by nonresident foreigners, or by corporations or syndicates made up in foreign countries. They therefore, in terms, exclude from their prohibition the acquisition by aliens of land by descent, by devise, or in the course of justice, when it is bought in good faith in satisfaction of a debt. But this exception does not repeal the old common-law disability, where it still exists, as in the District of Columbia, under the old laws of Maryland there in force. 273 Goodrich v. Russell, 42 N. Y. 177. Compare remark above on statutes of Nebraska and Maiyland. In many other states the progress from the forbid- ding policy of the common law, to a more or less liberal policy, or to full equality of citizens and aliens, has been thus taken, as here shown for Ken- tucky and for New York. The act of 1889 is chapter 42 of that year. And see Act March 9, 1893. 274 New Hampshire, St. 1891, c. 137, § 16. 27 5 The statute revision of 1880 is wholly silent on the subject. 27 6 Oilman v. Thompson, 11 Vt. 643; State v. Boston, C. & M. E. Co., 25 Vt 433; Lenehan v. Spaulding, 57 Vt. 115. Mr. H. A. Huse, of Montpelier, Vt., has kindly informed the writer as to the practice of the state and the opinion of its har on the subject. (30G) Ch. 4] TITLE BY DESCENT. ' § 43 These allow one alien to inherit from another alien, but not from a citizen.^ ^' The state of Illinois has also, in 1887, deprived nonresident aliens of the capacity to take, hold, transmit, or convey land. Hence, on the death of a citizen, some of whose heirs are nonresident aliens, the land goes to the other, or to the more remote heirs, as if the former had never existed.^^' The statutes of Wisconsin, Texas, and other western states and territories, directed against nonresident aliens, like the act of congress of 1887, make an exception in favor of acquisition by descent or devise, and need not be noticed further in this connection."^ Similar is the Iowa act of 1888, amended by chapter 82 of the Acts of 1894, which directs that nonresident aliens shall not take lands, by descent or devise, in excess of 320 acres in the country, or of $10,000 in value in a city, unless they were at the date of the former act owned by an alien, or by a naturalized citizen. n. The naturalization of aliens is regulated by title 3 of the Re- vised Statutes of the United States. One of the sections of this title {section 2172) directs that the children of persons who have been naturalized under any law of the United States, being under age at the time of the naturalization of their parents, shall, if dwelling with- in the United States, be considered citizens, "and the children of persons who now are, or have been citizens of the United States, shall though born out of the limits and jurisdiction of the United States be considered as citizens thereof." The latter clause is limited by the proviso in section 1993 containing the same law, with the substi- tution of "fathers" for "parents," and which says, "but the rights of citizenship shall not descend to children whose fathers never resided in the United States." Section 1994, which, together with section 1992, was first enacted in 1855, also naturalizes every "woman who 2 77 Acts Cong. 1887. p. 476, to be found in all Territorial Codes since pub- lished. For construction, see De Geoffrey v. Riggs, 18 D. C. 331, 278 Repealing an act of 1851, in favor of nonresident aliens, expressly, and tlius replacing as to tbem the common law. Wuuderle v. Wunderle. 144 111. 40, 33 N. E. 195. An act of 1891 again allows aliens to take land in Illinois by purchase. 279 Wisconsin, Acts 1887, e. 479; Washington, St. 1891, § 2955; Wyoming, Rev. St. § 2226; Idaho, Rev. St. § 5715; Mont. Comp. St. 1887, p. 400; Arizona, Rev. St. 1887, § 1472; Texas, Rev. St. 1893, arts. 9-15 (appUes only to lands outside of cities, towns, or platted villages). (307) § 43 LAND TITLES IN THE UNITED STATES. [Ch. 4 is now or may be married to a citizen of the United States," and who might herself be lawfully naturalized. In a very late case the supreme court, in passing on the question whether the governor-elect of Nebraska was or was not a citizen of the United States, came very near deciding, if it did not actually de- cide, that the acts of congress which confer on residents of territories, who are of foreign birth, and have made their "declaration" under the naturalization laws, the right of suffrage, do thereby maJie such residents citizens for all purposes. -**" III. The treaties between the United States and many foreign pow- ers giving, by way of reciprocity, to the citizens or subjects of those powers the right to inherit real estate, are enforced in all the states as a fair exercise of the treaty-making power.^'^ The oldest of these treaties was concluded with Prussia in 1785. The so-called "Jay Treaty," concluded in 1794 with Great Britain, operated only in favor of the heirs of those who held lands at or before the time of the treaty, and it is almost impossible for cases to arise under it. The treaty concluded with France in 1800 expired by its own terms in eight years from its ratification, and no new treaties have been con- cluded with either Great Britain or France regarding the succession to lands. The fullest and most effective expression is given in the following words, found in a treaty with Prussia: "And where on the death of any person holding real estate, it would by the laws of the land descend on a citizen or subject of the other were he not disqual- ified by alienage, such subject shall be allowed a reasonable time to sell the same, and to withdraw the proceeds without molestation, and 2 80 Boyd v. Nebraska, 143 U. S. 135, 12 Sup. Ct. 375. Field dissented on the ground of want of jurisdiction. Three other judges would not assent to place Boyd's citizenship on the grounds above stated. 281 Chirac v. Chirac, 2 Wheat 269; Hauenstein v. Lynham, 100 U. S. 483 (in which the effect of the Swiss treaty of 1850 is fully explained) ; Schultze v. Schultze, 144 lU. 290, 33 N. E. 201; Prevost v. Greneaux, 19 How. 1 (by Inference). This case refers to a treaty concluded with France in 1853, which gives the right of succession to Frenchmen on equal terms in all states, the laws of which permit it; that is, it forbids as against them discriminating succession taxes. See, also, Yeaker's Heirs v. Yeaker's Heirs, 4 Mete. (Ky.) 33; Jost V. Jost, 1 Mackey (D. C.) 487 (where it appears that the treaty of 18d0' with Switzerland applied only to the states, and not to the District or to the territories). .(308) Ch. 4] TITLE BY DESCENT. § 43 exempt from all rights of detraction on the part of the government of the respective states." Very few of the treaties are as explicit as this. Some of them allow two years' or three years' time for sale and removal. The following is believed to be a complete list of the treaties now in force which grant reciprocity as to the right of taking lands by descent, and, a fortiori, by devise, together with the dates of the trea- ties: Austria, 1848; Bavaria, 1845 ; Hesse-Cassel (now part of Prus- sia), 1844; Nassau (now part of Prussia), 1846; Wurttemberg, 1844; Brazil, 1828; Chili, 1832; Ecuador, 1839; Guatemala, 1849; Han- eeatic Kepublics (i. e. Hamburg, Bremen, and Lubeck), 1827; Peru, 1851; Peru-Bolivia, 1847; Bolivia, 1858; New Granada, 1848; Ven- ezuela, 1836; Brunswick, 1854;='" Prussia, 1785, 1799, 1828; Eussia, 1832; San Salvador, 1850; Swiss Confederation, 1850; Sardinia, 1838; Spain, 1795; Hanover, 1840; Two Sicilies (now part of Italy), 1855; Italy, 1871 (by a most favored nation clause).^** It will be noticed that there is no treaty on this subject between the United States and the German empire, nor with the North German Confed- eration, which preceded it. Hence the subjects of those German states which made no treaties about the right of succession, such as Baden, are under the disabilities of alienage, while the subjects of those states with whom such treaties subsist have not lost them by the entrance of their states into the German empire.^** Where the treaty gives to the alien heir a certain length of time in which he may sell the inherited lands and remove the proceeds, he obtains thereby a fee in the land, which is defeated by a failure to sell within the prescribed time. It would seem that, if the de- scent is thus once cast on the alien, the more remote home heir could no longer come in, but the land must escheat. While the fee is in 282 The treaty with Brunswick and some others use the itiexact words "on whom the land should descend, and who could not retain it," when under the common law the descent does not take place at all. But, as a strict construc- tion would nullify the treaty, it will be held to mean that the land shall descend on the Bmnswicker, notwitlistanding his alienage. 283 The "second volume of the Revised Statutes of the United States" con- tains all the treaties ratified and proclaimed at the date of publication. The later ones will be found in the Statutes at Large for the year. 284 Wunderle v. Wunderle, 144 111. 40, 33 N. B. 195; Schultze v. Sehultze, supra. (300) § 44 LAND TITLES IN THE UNITED STATES. [Ch. 4 the alien, i. e. before the expiration of the limited time, he may claim a partition.^^° The supreme court of the United States has held that these treaties must he liberally construed, so as to carry out their purpose, and has allowed the land of a resident alien to go to his heirs abroad, although, in terms, the treaty took care only of the alien heir, and said nothing as to imparting inheritable blood to the alien ancestor. It treated the time in which the alien must sell as a sort of statute of limitations.^^? § 44. Presumption of Death. Often the fact of the last owner's death, though highly probable, is in doubt, or cannot be proved ; a presumption must take the place of proof. In other cases it is known that the former owner of land, and one or more of his heirs, have died, but the order of time in which they have departed is unknown, and a presumption as to this order of time would be helpful ; again, where persons have died at a great distance of time, and at some unknown or far-off place, it is not known whether they have left issue. I. If a person has left his home for a foreign country, and has not been heard of for seven years, a presumption arises, in analogy to the statute of bigamy of James I., that he is dead. Strictly speak- ing, he must have gone either to: parts unknown, or for some tem- porary purpose; for, if he had emigrated to some known place abroad, he would thereby establish a new home, at which inquiries for him should be made. In the "leading case" of Nepean v. Doe, in the exchequer chamber, 7 Wm. IV., it was held that the absence and lack of news for seven years only proves that a person is dead, but not when he died; certainly not that he died on the last day. Indeed, death on the last day of the period is least to be presumed, for it would offer no reason for the long preceding lack of news.^*^ How- ass KuU V. KuU, 37 Hun (N. Y.) 476; Schultze v. Schultze, supra. 2 86 Hauenstein v. Lynham, 100 U. S. 483. It was incidentally held in tEis case that a born foreigner Is presumed to remain an alien till the contrary is proved. 2 87 2 Smith's Lead. Cas. 306; 2 Mees. & W. 910. The older English cases on the general doctrine are Doe v. Jesson, 6 East, 85; Hopewell v. De Pinna, 2 Camp. 113; Hex v. Inhabitants of Twyning, 2 Barn. & Aid. 386. (310) Ch. 4] TITLE BY DESCENT. § 44 ever, the supreme courts of Illinois and Pennsylvania, and Mr. Jus- tice McLean, on the circuit, have held that the presumption is in favor of death at the end of the seven years.^'^ On the other hand, the principle of the English case has been adopted in North Carolina and in Mississippi (where the period is reduced to five years). Partly on the ground that innocence is to be presumed, it was held, after the lapse of many years, that where a woman had married five or six years after the disappearance of her former husband, his previous death might be presumed, so as to validate the second marriage, and give her her dower."" The distinction that the departure should be for a temporary purpose seems to have been ignored in the decisions and statutes of several states. And in some states the authorities are not definite as to whether or not any particular time of death is to be presumed; indeed, in most cases it is immaterial at what time with- in the seven years death took place. In this general way, Maine, Mas- sachusetts, New Hampshire, and New Jersey also recognize the seven- years rule.^"" To leave the boundaries of the state would, under the American view, be equivalent to "leaving the realm" in England; it has never been deemed necessary that the absent man should have gone outside of the United States. It -^'ill in many cases be difficult to prove that the disappearing party has actually left the state of his abode, and still more difflcult to prove that he stayed away for seven years ; and an insistence of the court on such proof might defeat the presumption altogether. This was done in an early Kentucky case,''" even under a statute. And a much later case in the same state raises other difficulties, still more destructive: Firstly, if a man has 288 Whiting v. Nicholl, 46 111. 230; Burr v. Sim, 4 Whart. 150 (Ashbury v. Sanders, 8 Cal. 62, being rather equivocal); Gilleland v. Martin, 3 McLean, 490, Fed. Cas. No. 5,433. 2 89 Spencer v. Koper, 13 Ired. (N. C.) 333; Spears v. Burton, 31 Miss. 547; Chapman v. Cooper, 5 Rich. Law, 459. 290 Smith V. Knowlton, 11 N. H. 191; Brown v. Jewett, 18 N. H. 230 (requires proof that friend and kindred have not heard of the absentee); Winship v. Conner, 42 N. H. 341; Primm v. Stewart, 7 Tex. 178 (presumption aided by namors of death); Cofer v. Thui-mond, 1 Ga. 538; Stinchfield v. Emerson, 52 Me. 465; Newman v. Jenldns, 10 Pick. 515; Winship v. Conner, 42 N. H. 341; Osbom V. Allen, 26 N. J. Law, 388. 2 01 Spurr V. Trimble, 1 A. K. Marsh. 278 (notwithstanding act of 1798, which is similar to new statute quoted below). (311) § 44 LAND TITLES IN THE UNITED STATES. [Ch. 4 moved from his former abode in Kentucky to Missouri or to Utah, with his family, and made his home in the latter state or territory, why should news from him come to Kentucky? News should be inquired after at his new home. Secondly. You want to take an inheritance or devise limited to A. B. by reason of his presumed death. How do you know but that he left children, or if he had children when he moved from his first home, is it not highly improb- able that all of these should have died also? °°* Thus qualified, the seven-years rule can no longer serve to hasten the distribution of es- tates. A few of the states have adopted statutes on the subject, which are placed generally under the head of "Evidence," subhead "Presump- tion.'" So in New York: "If any person upon whose life any estate in lands shall depend, shall remain beyond sea, or shall absent him- self in this state or elsewhere for seven years together, such person shall be accounted dead in any actions concerning such lands, unless sufficient proof be made of the life of such party." The New Jersey statute is in nearly the same words.-"' The statutes of Virginia, West Virginia, and Kentucky speak of "any person who has residefi in this state," and goes from it, and does not return in seven years (Arkansas has it "five years"), unless proof is made. Under all these laws, it would seem that hearing from the absent man is not enough; his being alive, when it comes into question, mast be proved as 292 Gray v. McDowell, 6 Bush, 475. This is, however, in agreement with the older cases in England and Massachusetts (Newman v. Jenkins, 10 Picli. 515), which raise the presumption of death only when the party has left home for a temporary purpose. As to second point, see, also, Faulkner's Adm'r v. Williman (Ky.) 16 S. W. 352 (not otherwise reported). In Henderson v. Bonar (Ky.) 11 S. W. 809, it was said that, after seven years' absence of the father, his son may bring ejectment. It might be objected, non constat, but that he begot other children. 2 93 New York, Rev. St pt. 2, c. 1, tit. 5, § 6; also. Code Civ. Proc. § 841; New Jersey, Revision 1877, p. 294, § 4; Virginia, c. 172, § 47; West Virginia, c. 130, § 44; Kentucky, c. 37, § 16; Arkansas, § 2850. Under the New Jersey statutes, it seems that the party seeking to prove death has only to prove the seven years' absence, and the bui'den is then thrown on the other side to show that the absent man has been heard from. Osborn v. Allen, 26 N. J. Law, 388; Wambaugh v. Schenck, 2 N. J. Law, 229; Smith v. Smith's Ex'rs, 5 N. J. Eq. 484. (312) ^h. 4] TITLE BY DESCENT. § 44 a fact.=°* The laws of Indiana and Louisiana which provide for seizing and administering the absentee's estate after five or seven joars hardly belong here.=°° The California statute presumes "that a person not heard from in seven years is dead," saying nothing of absence; while the Dakota Code says expressly, "Absents himself, in the territory or elsewhere." The statute of Vermont requires him to be absent and not heard from for fifteen years.*"' A subordinate court of New York has refused to presume death after a seven-years disappearance, where the missed party had strong motives for concealment.^"^ Where property has been adjudged to any one by reason of the presumption arising from the seven-years disappearance, it must, of course, be restored, if the absentee turns out to be alive; and many of the statutes have a clause to that effect In those states in which lands go, along with the personal effects, to the executor or administrator, the grant of letters would of itself establish the death of the ancestor, until set aside; for it does so at common law as to the personalty.*'* A shorter time of absence than seven years may be taken as proof of death, when coupled with cir- cumstances of great impending danger; but going to sea alone is not such a case of danger.^"" The presumption that a person once known to be living is still alive, is not overcome by that of unreasonably high old age till he would have attained the age of 100 years.""" II. Where several persons die in the same calamity, such as battle, fire, or shipwreck, the transmission of a landed estate will often de- pend on the order in which their deaths take place. In the absence of all proof, rules, depending on age and sex, for determining this 29 4 Foulks v. Rhea, 7 Bush (Ky.) 568. Under the English rule, receiving letters from him is a sufficient rebuttal. See Hopewell v. De Pinna, supra. 29 5 Indiana, § 2232; Louisiana, arts. 58, 59. But see Indiana, act 1883, c. 13T. 266 California, Code Civ. Proc. § 1963, subsec. 26; Dakota, Code Proc. § 498; Vermont, Rev. L. §§ 2077, 2215. 2 9 7 In re MUler's Estate (Surr.) 9 N. Y. Supp. 639. 298 Newman v. Jenkins, 10 Pick. 515. 299 Burr V. Sim, ubi supra. 300 Emerson v. White, 29 N. H. 482 (arguendo). But a much shorter time may be persuasive under circumstances. Ross v. Clore, 3 Dana (Ky.) 189, where a widow, not having claimed dower for 36 years, was presumed to be dead. § 44 LAND TITLES IN THE UNITED STATES. [Ch. 4 order, have been laid down by the civil law, which are copied into the Code Napoleon.^"^ These rules are not recognized by the Eng- lish courts; they treat the question as one of fact only, to be deter- mined upon all the circumstances, and, if no inference can be drawn from these circumstances to show who died first, the party who seeks to recover on the ground that some one among the sufferers in the disaster survived some other one must fail for want of proof. In other words, in the absence of both proof and presumption, it is to be assumed that all have died at the same moment. Tlius, if A. and his only son, E., perish together, the former owning land, in the ab- sence of proof, B.'s mother will not take by inheritance from her son, but the land will go to A.'s brothers, while B.'s land might pass to his mother; for A. had no son surviving him, and B. no father.^"^ American courts follow the English decisions in ignoring the pre- sumptions set up in the Roman and French law; each case must stand on its own facts.^"' But some states have enacted the French rules, or rules nearly like them, by statute, — Louisiana, of course, also California and Oregon: (1) Of two persons under 15 years of age, the older is deemed to have survived; (2) if both are over 60 the younger; (3) if one is under 15, the other over 60, the former; (4) both between 15 and 60, the male ; and, if both of the same sex, the older; (5) one between those ages, the other below or above, the former is presumed to be the survivor. So it is in California and Oregon, while in Louisiana, more in accordance with the French model, the first three rules are the same as above; the fifth is not stated, but only implied; and, among those between 15 and 60 years of age, the male is deemed the survivor only if the difference of age is less than a year; otherwise, survivorship is "in the order of nature. 301 Civ. Code, arts. 721, 722. 3 02 Wing V. Angrave, 8 H. L. 1S3. Tlie Roman and French rules are repudiated. As long as the pcssessic. fratris governed descents of lands in England, the question could arise only as to personalty. The rule is repudi- ated in this country as foreign to the common law In Smith v. Croom, 7 Fla. 81 ; Coye V. Leach, 7 Mete. (Mass.) 371. 303 Newell v. Nichols, 75 N. Y. 78; Estate of Ehle, 73 Wis. 445, 41 N. W. 027; Williams v. Williams, 63 Wis. 58, 23 N. W. 110. A distribution is figured out in Russell v. Hallett, 23 Kan. 276, under the intricate descent law of that state. Ch. 4] TITLE BY DESCENT. § 45; Thus the younger must be presumed to have surYived the elder." ""* in. When a person has so long been unheard of that he may be set down as dead, can we, in the absence of all evidence, assume that he died without issue? Lord Tenter den thought we might, as two affirmatives, marriage and the birth of a child, must be shown by the opposite side.^"' But many of the American cases, supported by good English authority, take the ground that he who seeks to estab- lish his heirship takes upon himself the burden of showing the ab- sence of all nearer heirs and all coheirs; though very slight proof may often suffice.'"' ° § 45. Escheat. Though Blackstone ranges Title by Escheat under the head of Purchase, not of Descent, it is more convenient to treat the law of escheat in connection with that of descent. For the state takes the land of the intestate, when he leaves no heirs, and, under most of the statutes, the state actually takes as heir,*"' either because he 304 California, Code Civ. Proc. § 1963, subsec. 40; Oregon, § 776, subsec. 41; Louisiana, Civ. Code, arts. 932, 933. 30 5 Doe V. Wolley, 8 Barn. & C. 22, criticised In the next following case as being in its reasoning unsupported, though allowed to be correct on the facts. 30 6 Emerson v. White, 29 N. H. 482. There is no presumption either way. The party interested in showing failure of issue must show it as a link in his claim of title. Gray v. McDowell, supra, note 292, agrees herewith. But King V. Fowler, 11 Pick. 302, followed in 1892 by Butrick v. Tilton, 155 Mass. 461, 29 N. B. 1088, tends the other way; i. e. the lack of proof or presumption results in concluding lack of Issue, as In Doe v. Wolley. But in these cases the decedents had not been heard from for a long time,— 40 to 70 years. The leading case for throwing the burden on the claimant for want of issue is Richards v. Richards, 15 East, 294, note, quoted in Adams Ej., 1 Greenl. Ev., 2 Phil. Ev., and 2 Steph. N. P. But this proof may be mere hearsay or reputation. Doe v. Griffin, 15 East, 293. See, also, Crouch v. Eveleth, 15 Mass. 305; Clark v. Trinity Church, 5 Watts & S. 266; and McComb v. Wright, 5 Johns. Ch. 263. 307 Very many of the states have set the escheat to the commonwealth down as the last among the canons of descent; e. g. in Minnesota, the tenth canon of chapter 46, § 3, reads thus: "If the intestate leaves no husband or wife or kindred, his or her estate shall escheat to the state." Similar is canon 12 of section 1124 of the Nebraska Consolidated Statutes; the eighth canon in Michigan; Montana Prob. Prae. Act, § 535, which follows Immediately on the canons of descent, etc. In other Codes escheat is put on the ground that (315) § 45 LAND TITLES IN THE UNITED STATES. [Ch. 4 has none in any sense, as a bastard dying without issue in those states which have left the harsh rule of the common law unchanged ; or because he has no known heirs; or because, being an alien, he is incapable of transmitting an inheritance; or because all the kindred on whom the law would cast the inheritance are aliens, and thusi in- capable of taking by descent. The liberal laws which in many states give heritable blood to bastards, and the still greater liberality with which most of our states have abolished all or nearly all the disa- bilities of alienage, aided as these are by public treaties, and, lastly, the inclusion of the surviving wife or husband among those capable of taking by descent, have made escheats very rare, and this whole branch of learning rather unimportant. Treating escheat as a branch of the law of succession is in accord- ance with the civil law, under which the flscus (i. e. the imperial treas- ury) became the heir in default of all others; and so in Louisiana, as, under the French "Code Civil," the succession by the state is placed among "irregular successions," along with those accruing for the want of blood kindred to the surviving husband or wife, or to natural chil- dren.^"^ Under the common law, the escheat of lands flows from the lapse of the flef which the tenant or vassal has received from his immediate lord, "to him, his heirs and assigns." When he dies without heir or devisee, the tenancy is at an end, just as a tenancy for life comes to an end with the death of the tenant, with or without heirs. The fief returns to the immediate lord; and, if the land be holden of the king, it reverts to him. Thus the escheat to the crown is seigniorial, not a part of the prerogative. Hence, an escheat of land for want of transmissible blood, or for want of heirs, makes an exception to the general rule that the crown can only take by matter of record; but the escheated land vests in the crown, or, in America, in the state, "with- out office found," or without inquest of ofSce; that is, no jury need be impaneled to find the facts on which the title of the crown or of the state rests.^°° Since the abrogation of the proprietary governments, the feudal a thing which has no owner escheats. Thus, in Connecticut, Gen. St §§ 647, 648. 308 Corp. Jut. Cod. Const 10, § 10; French Civ. Code, art. 723. 309 4 Kent, Comm. p. 424, quoting 4 Co. Inst 58; 2 Com. Dig. tit. "Pre- (31C) Ch. 4] TITLE BY DESCENT. § 4& relation no longer exists in the United States between persons; hence, ownerless land can only escheat to the commonwealth. The laws passed by many states at the time of the Kevolution abolish in express words all feudal tenures; but the ultimate rights of the common- wealth, escheat and eminent domain, are always reserved, though land is to be holden allodially in all cases.'^" And where the com- monwealth is not in modern statutes named as an heir in the canons of descent, there is generally a provision that the lands (or the estates)- of those who die without making a will and without heirs, shall "vest in the commonwealth without office found." ^^^ Some of the states do, however, empower some court to make an inquiry (not necessa- rily with the aid of jury) when no heir comes forward to claim the estate; and the estate is adjudged to the state after such inquiry. In Louisiana, too, the succession by the state, being "irregular," must be authorized by the decree of a court.^^^ The escheating of land which an alien has lawfully acquired on the ground that, as an alien, he cannot hold it, must be eifected by an inquest of office. But in the very few states, and in the very few cases, in which land might be escheated on the ground of alien- age, hardly any state in the Union in our .days enforces such r,n odi- ous right, except perhaps under laws lately passed by some of the far western states and by congress for the territories, with the view of preventing accumulation of large tracts in the hands cf for- eign capitalists and corporations.^^' In a few states the legislature has by general law conferred air estates escheated or to be escheated on some one of the political rogative," D, 70. And the Revised Statutes of New York, accordingly, authorize the attorney general to sue any occupant of the land at once for possession. 810 Rev. St. N. Y. pt. 2, c. 1, tit. 1, §§ 1-3. 811 E. g. in Kentucky, an act of April 30, 18S4, made section 1 of chapter 36 of the General Statutes. 812 Vermont, Rev. L. 1880, §§ 2235, 2238, dating back to 1797. The proceed- ing is before the probate court, and is called an "inquisition," but a jury is not provided for in plain words. So, in Connecticut, under section 647, the "pro- bate judges shaJl make inquiry." Nothing is said of a jury. See, also. Civil Code of Louisiana. This will be referred to again in a section on "Office Found." 313 See section 43, supra, notes 277 and 279, for these laws. No reported cases can be found in which these statutes have been enforced. § 45 LAND TITLES IN THE UNITED STATES. [Ch. 4 subdivisions, — in Vermont and Rhode Island, on the town in Avhioli the land lies; in Illinois and Washington, on the county in which it lies; in Kansas, on the county in which administration on the es- tate of the decedent is granted; in Kentucky, as to all estates iii Louisville, to the school board of that city.^^* When the commonwealth, or a purchaser from the commonwealth, seeks to recover land as escheated for failure of heirs, she or he has the burden of satisfying the jury that the decedent died without heirs; and proof that a man's intimate acquaintances for several years never heard him speak of his family, parents, wife, or children is prima facie evidence that he had no heirs, if his place of birth is unknown, and there is no clue to better evidence. It has even been held that when, after advertisement and inquiry, nobody claims the premises as heirs of the person last seised, this is enough to put the other side on their defense.^^^ At common law the lord took by escheat, for want of heirs, the land of the owner, his "tenant," dying without heirs, free from any trust or equity that might have been impressed upon it. On the other hand, he was not entitled to succeed to any equitable fee, the owner of which left no heirs, for the simple reason that an equity was not held "of a lord," and, consequently, in such a case the holder of the legal title would own the land thereafter beneficially, and free from all trusts or equities. In America, however, escheats are not seigniorial, but a flower of sovereignty, and neither of the feudal rules is applicable.'^' The escheated title remains always, either by statute or by the more liberal construction of the courts, subject, in the hands of the commonwealth, to all trusts, equities, and incumbrances which rested on it while in the hands of the last owner, while, on the other hand, equities of all kinds will now, for lack of heirs, go to the commonwealth in her capacity as ultima haeres.^^^ sii "Vermont, Rev. L., ubi supra; Rhode Island, c. 188. 315 People V. Etz, 5 Cow. 314; People v. Fulton Fire Ins. Co., 25 Wend. 205. 318 Burgess v. Wheate, 1 Eden, 177; 4 Kent, Oomm. 425. And see case quoted in next note. 317 Johnston v. Spicer, 107 N. Y. 185, 197, 13 N. E. 753; Rev. St. N. Y. pt. 2, c. 1, tit 1, art. 1, § 1 ("subject to the same trusts, incumbrances, charges, rents, services," etc., with power in the chancery court to order the attorney general to make conveyances for carrying out the equities). The Kentucky case of Com. v. Blanton's Ex'rs, 2 B. Mon. 393, enforcing the escheat of per- sonalty, is somewhat in point. (318) Ch. 5] TITLE BY GRANT, § 46 CHAPTER V. TITLE BY GRANT, f 46. The Deed. 47. Parts and Parties. 48. The Seal— Herein of Blanks. 49. Signature or Subscription. 50. Other Requisites. 51. Delivery. 52. Escrows. 53. Deeds by Married Women. 54. The Privy Examination. 55. Deeds by Corporations. 56. Letters of Attorney. 57. Deeds by Attorneys and Officers. 58. Deeds of Infants and the Insane. 59. After-Acquired and Futiu^e Interests. 60. Champerty. 61. Executory Contracts. 62. Contracts for Land, and the Statute of Frauds. 63. Part Performance. 64. Curative Acts. § 46. The Deed. The common-law method of transferring a freehold in land by livery of seisin was never in vogue in any of the American colonies. The statute of uses was part of the law which the English settlers brought to this country; and deeds which take effect under it, by annexing the possession to the use: "bargain and sale," "lease and release" (that is, a lease for a year and a release of the reversion), and a covenant to stand seised, where blood, or marriage, and not money or money's worth, is the consideration, were from the first recognized modes of transfer. In fact, simple grants were used in the New England s.tates, where the nice distinctions of the common law between things lying in grant and things lying in livery were at first not much understood. As the "lease and release" was invented in England only in order to escape the enrollment of plain deeds of bargain and sale, required by the statute of uses, and as the American colonists at a very early day introduced the regis- § 46 LAND TITLES IN THE UNITED STATES. [Ch. 5 tering or recording of all deeds for the conyeyance of land, thia cumbrous fiction was but little used, and the deed of bargain and sale became the common instrument for the sale of land, whether in fee or for life; and, by the Insertion of a small and only nominal consideration, also for gifts and family settlement. Early statutes in Virginia and elsewhere declared a "release" to be good though not preceded by a lease.^ While the statute of uses (27 Hen. Vm.) saved the time and trouble of giving and receiving livery of seisin to those who would rather deliver or take a deed, it left the ancient way of transferring the fee or other freehold in land, without any writing, in full effect till "the statute for the prevention of frauds and perjuries" was enacted in 29 Car. II. One section of this great law directs that a convey- ance of land, or of a greater interest therein than a lease for three years, made merely by livery of seisin or by parol, shall confer no greater interest than a lease at will. Hence, the conveyance of land by one of the forms of deed growing out of the statute of uses be- came compulsory. In the American colonies, the statute of frauds was either considered as binding, or it was re-enacted, either in whole or in part; and thus at an early day a civilized system of land titles, based upon written and publicly recorded deeds, was fully established. Fines and recoveries, though not frequent, were known in the colonies, being used to bar entails or to extinguish the title of married women. Indeed, the privy examination of married wo- men, as it is now used in many of the states, grew out of the exami- nation which a married woman had to undergo before a judge under the very old English statute of fines. These examinations, in fact all the acknowledgments of deeds, were in colonial times, and for some time after the Eevolution, taken in open court; the examina- tion before a clerk, recorder, or other magistrate is a later relaxa- tion, which has indeed made the ceremony quite unmeaning, and has in many places led to its abolition.^ As, under the great principle enounced in Eoe v. Tranmarr, every deed will take effect, irrespective of its wording, in the way in which under the law it may have effect ("ut res magis valeat quam pereat"), 1 See 4 Kent, Comm. p. 494, for history of "Lease & Kelease." It is seen there how in New York the enrollment came to be dispensed with, and the simple bargain and sale, unrecorded, became binding between the parties. i As in Indiana, where since 1853 the "privy examination" is unknown. (.S20) Ch. 5] TITLE BY GRANT. § 46 it can hardly have ever happened that a deed showing clearly the in- tention to pass the maker's estate in land should not have produced that result.^ As to an estate in reversion or remainder, a deed of grant, operating as a surrender, if to the reversioner, or as a release, if from him to the party in possession, would have been good even at common law. But, to avoid all doubt, a number of statutes have been passed from time to time, by many of the state legislatures, under which words of "grant" or of "conveyance," or any words in- dicating an intention to pass the title, are made effective. The Revised Statutes of New York going into effect in 1830, give force to the word "grant" ; Virginia has borrowed the same word in the Code of 1873, professedly from an act of 8 & 9 Vict.; in Kentucky, since the statutes of 1852, "to convey" is made effective, which, not being a technical common-law term, may be supplied by any word of like meaning, and at the same time the forms used under the statute of uses are declared to be still good; in Georgia the act of 1785 and subsequent laws require "a deed," and this has been construed to comprise any deed indicating the intention to convey; and so it is in Iowa under the Eevision of 1857.* Many of the states, e. g. Vir- ginia and Tennessee, give short forms of deeds which shall be suffi- cient to pass all the grantor's title in the premises; the Tennessee form begins with the words "I convey," while in others the effective words are "I grant," or "I bargain and sell." ^ The statutes of many 3 Willes, 632. Best known from its insertion in Smitli's Leading Cases. 4 New York, Rev. St. pt. 2, c. 1, tit. 5, § 1; Virginia, Code, § 2439; Ken- tucky, Gen. St. c. 24, § 3; Georgia, Code 1882, § 2692. The statutes of New York and Kentucky recognize deeds of bargain and sale or lease and re- lease as valid kinds of grants or conveyances. 5 So, also, in Indiana, Illinois, Michigan, Wisconsin, Iowa, Mai-yland, West Virginia, Arkansas, Texas, California, the Dakotas, South Carolina, Missis- sippi. Some of these statutes declare that the foi-na given is not exclusive of the older forms, but this must be understood as to all of them. The author avails himself of the collection of these forms found in Stim. Am. St. Law, art. 148; leaving out, however, those for Texas, Arkansas, and Missouri, and that for South Carolina, as being too long, and hardly any saving on modern so-called "common-law forms": (1) In consideration of , I convey [and waiiant] to the land de- scribed as . Witness my signature, the day of , 18—. (Mississippi, § 1231.) (2) This deed, made the day of , in the year , between [.I. LAND TITLES V. 1 21 (.221) § 46 LAND TITLES IN THE UNITED STATES. [Ch. 5 other states are silent as to the form of the conveyance, but simply say that a "deed" or a "conveyance" is to be executed, or how it is to be executed. This is so in Kansas, Aliunesota, Delaware, Connecticut, and other states; and it may be boldly asserted that the meaning of such a clause is: "Whatever would in popular language pass for a 'deed' or a 'conveyance' of the land therein described, as distinguish- S. and W. V.], witnesseth: That, in consideration of [one dollar], the said [J. S.J doth grant unto the said [W. V.] all [description of property]. Witness the following signature and seal. (Maryland, ai-t 21, § 51; Virginia, § 2437; West Virginia, c. 72, § 1; Dakota, Civil Code, § 624.) The Maryland form has the word "Test" at its ena. (3) For the consideration of dollars, I hereby convey to A. B. the fol- lowing tract of land [description]; [and I warrant the title against all persons whomsoever]. (Iowa, § 1970.) (4) J. S., of D., for and in consideration of $ in hand paid, conveys [and warrants] to J. W., of V., the following described real estatje (descrip- tion), situated in the county of , in the state of Illinois. Dated this day of . A. D. IS—. J. S. (L. S.) (Illinois, c. 30, § 9.) (5) J. S. conveys (and warrants) to J. V. (description), for the sum of (con- sideration). (Indiana, § 2927; Michigan, § 5728.) (6) A. B., grantor, of county, Wisconsin, hereby quitclaims (conveys and warrants) to C. D., grantee, of county. Wisconsin, for the sum of dollars, the following tract of land in county (description). Wit- ness the hand and seal of said grantor, the day of , IS—. In the presence of [Seal.] [Seal.] (Wisconsin, § 2208.) (7) I hereby convey to A. B. the following tract of land (description) [and I warrant the title against all persons whomsoever]. (Tennessee, § 2820.) (8) I, A. B., grant to C. D., all that real property sitiLated In county. state of . bounded [or described] as follows (description). Witness my hand and seal, this day of . 18—. A. B. (L. S.) (California, § 1092.) Form where a married woman is a party: This deed, made this day of , in the year , by us, and (322) Ch. 5] TITLE BY GRANT. § 46 ed from a coutract to convey, will pass the title without livery of seisin or delivery of possession." ° But, in the absence of express words in the statute, one strict rule of the common law must be enforced ; unless a deed conveying land has words of inheritance ; i. e. unless the words, "and his heirs" are added after the name or designation of tlie grantee, or after the pro- noun referring to him, he can take only an estate for life, even if the deed should indicate the intent of the maker to part with whatever estate he has.' This rule, having often worked mischief, has been abolished in most of the states. Virginia took the lead, in 1792; Kentucky came next, by act of December, 1796 ; New York followed in the Revised Statutes (1830); and thereafter many other states in quick succession, the statute in each case directing that a conveyance shall be always construed to convey the whole estate of the grantor, unless the contrary intention appears.* Yet no such statute has , his wife, witnessetli tbat, in considei'ation of . we, tbe said and his wife, do grant unto . Witness our hands and seals. Test: A. B. (Maryland, c. 21, § 52.) It is useless to give here the statutoiy forms of states like South Carolina and Florida, which would be good as deeds of bargain and sale without the aid of any statute. The great majority of deeds in the states which have not adopted statutory forms contain the words "giant, bargain, and sell," or "bargain, sell, and con- vey," and state a money consideration, even when the deed is made from "love and affection" to a wife or child. ' 4 Kent, Comm. p. 6, quoting 1 Co. Lltt. 87b, 100b; Tapner v. Merlott, Willes, 177; Yanhom v. Harrison, 1 Dall. (Pa.) 137. Later cases are Sisson v. Don- nelly, 3C N. J. Law, 432; Edwardsville R. Co. v. Sawyer, 02 111. 377. And in Sedgwick v. Laflin, 10 Allen, 430, even a mortgage made to the creditor, his successors and assigns, was held to expire with his death. In Cole v. Lake Co., 54 N. H. 242, the court, after a fierce onslaught on the feudal system, from which the rule came, holds that any other words indicating a fee simple may supply words of inheritance. s New York, Rev. St. pt. 2, c. 1, tit. 5, § 1; Maryland, art. 21, § 51; Virginia, Code, c. 112, § 8; West Virginia, c. 72, § 8; North Carolina, § 1280; Georgia, Code, § 2248; Indiana, Rev. St. (as passed In 1852, in force 1853), § 2929; Illinois, c. 30, § 13; Michigan, § 5730; Wisconsin, § 2206; Kentucky, Gen. St c. 63, art. 1, § 17; Tennessee, Code, § 2812; Iowa, Ann. St. § 1929 (word "heirs" unnecessary), and section 1930 (every deed conveys whole estate of (323) § 46 LAND TITLES IN THE UNITED STATES. [Ch. 5 yet been enacted in any of the New England states nor in New Jer- sey, Delaware, South Carolina, Ohio, or Florida, though in most, perhaps in all, of these states, words of inheritance would not be required in a devise. A deed to a corporation aggregate needs no ''words of inheritance," and even under the common-law rule they are effective, if placed anywhere in the deed where they clearly ex- press the intent of the parties to convey a fee." The date inserted in a deed is no part thereof, unless it is referred to in the body; e. g. where a deed of mortgage provides that the debt secured by it shall be paid in a given time "from the date here- of." The date does not, but delivery, fixes the time at which the deed takes effect; and the date is only important as indicating the time when the delivery most probably took place.^" In many of the states the statute dispenses in express words with the attornment of tenants where the land is farmed out, which at common law was in such case closely akin to livery of seisin, so that the seisin and possession of the new owner was not complete until the tenants had in some way attorned to him.^^ But, even without such a statute, the failure of tenants to attorn would not in our days prevent the full vesting of an estate conveyed by proper deed, though it might tend to establish a possession adverse to it. A deed of conveyance, in the forms in use in the United States, though purporting to confer on the grantee a greater estate than the grantor, unless contrary intent appears); Minnesota, e. 40, § 4; Missouri, § 3939; Arkansas, § 641; Texas, art. 551; California, §§ 1072, 1105, 1329; Or- egon, § 614; Nevada, § 2611; Colorado, § 204; Dakota, Civ. Code, § 618; Idaho, § 2905; Montana, Gen. Laws, § 278; Georgia, § 224S; Alabama, § 2128; Ifls- sissippi, § 1189. » See 4 Kent, Comm. pp. G, 7, for the exceptions to the requirement of words of inheritance, with quotations from Co. Litt. 9b, 273b, 280a; Holdfast v. Mar- ten, 1 Term R. 411; Fletcher v. Smiton, 2 Term R. 656; Newkerk v. Newkerk, 2 Caines (N. Y.) 345. In a late Ohio case (Brown v. National Bank, 44 Ohio St. 269, 6 N. E. 648), though the old rule was still recognized as to absolute conveyances, it was reasoned away in its application to a mortgage. The whole instrument, it was said, showed the intention that the fee in the land should be in security for the debt. 10 Hardenberg v. Schoonmaker, 2 Johns. 230. See infra, section on "Deliv- ery." 11 E. g. New York, Rev. St. pt. 2, c. 1, tit. 2, § 146; New .Jersey, "Convey- ances," 74; Indiana, Rev. St. 5215; Kentucky, Gen. St. c. 03, art. 1, § 10. (324) Ch. 5] TIILE BY GRANT. § 46 grantor has himself, never has the consequences which a common-law conveyance (by livery of seisin or by fine) had under similar circum- stances; that is, the rightful owner of the remainder or reversion is not thereby deprived of any right or remedy. On the other hand, the grantor's estate is not forfeited by his attempt to create a wrong- ful fee.' = There is this great distinction between a deed of conveyance, which is an executed contract, and an executory agreement, whether sealed or unsealed: that while the latter is indissolubly tied up with the obligation of which it is the evidence, so that its destruction or alter- ation by the obligee, or its surrender to the obligor, releases him from his obligation, the former, the conveyance, has all its effect at the moment of delivery, and its destruction, or its return to the grantor, cannot divest the grantee's title.^^ The latter has a free- hold, with which he can only part by sealing and delivering a new deed, not by giving up a piece of paper or parchment which has achieved its object, and is nothing but evidence. In the words of an English judge, "God forbid that a man should lose his estates by losing his title deeds." ^* The American cases do not, however, all come up fully to this doctrine. The surrendered deed was in most cases unrecorded, and was returned because the grantee feared the levy of an execution; and the dispute generally arose between the execution creditor of the grantee and the resuming grantor, or a second purchaser from the grantor. The decisions in Connecticut, in New York, and in Wisconsin, where the question has come up most frequently, are consistent; the cancellation or redelivery amounts to nothing.^"* The opinions of the supreme courts of Massachusetts 12 The real-estate law of almost every state provides for this in express words needlessly, for it follows naturally from the abolition of feoffments and fines. 13 Chessman v. Wliittemore, 23 Pick. 231. 14 Chief Justice Eyre, In Bolton v. Bishop of Carlisle, 2 H. Bl. 260; Roe v. Archbishop of York. C East, 80 (a very strong case) ; going back to Co. Litt. 225b, Butler's note 13G. 15 Jackson v. Chase, 2 Johns. 84; Raynor v. Wilson, 6 Hill, 469; Botsford v. Morehouse, 4 Conn. 550 (where an unrecorded deed was returned, and the notes for the price given up by the seller); Marshall v. Fisk, 6 Mass. 24 (at- tachment against first purchaser after cancellation prefen-ed to claim of sec- ond purchaser with notice); Parker v. Kane, 4 Wis. 1; Albright v. Albright, (325) § 46 LAND TITLES IN THE UNITED STATES. [Ch. 5 and Maine are dmded or wavering, those favoring the effectiveness of cancellation or surrender being based either on a strained construc- tion of the recording laws, where there was a second recorded grant after the unrecorded first, or on the ever-ready plea of estoppel; while New Hampshire has gone pretty far in sustaining this irregu- lar mode of conveyance/" In Ohio it was thought by the supreme court that a grantee consenting to the destruction of his deed might be estopped from proving its contents; but it was held that such an estoppel should not be enforced against a married woman who gives a reluctant consent to the demands of her husband." In Xorth Carolina the cancelment of an unrecorded deed is sustained on the ground that the conveyance is still in fieri, the "probate and record" being the modern substitute for the old livery of seisin; and this ground was also taken in New Hampshire.^' And, just as the estate cannot be returned to the grantor by re- turning the deed, it cannot be destroyed by an alteration in the deed which in a bond or note would be deemed fatal. Where an erasure or interlineation appears in a deed of conveyance, it can 70 Wis. 532, 3G N. W. 254 (where It is, however, intimated that a grantee might in some cases be estopped from proving the contents of a deed volun- tarily destroyed by him) ; Hinchliff v. Hinman, 18 Wis. 130 (though the parties thought that an unrecorded deed might be effectually canceled); Rogers v. Rogers, 53 Wis. 3(3, 10 N. W. 2; Partee v. Mathews, 53 Miss. 140. In Cali- fornia and the Daliotas, where much of the common law is codified, the stat- ute directs (California, Civ. Code, § 1058; Dakota, Civ. Code, § 610) that the title shall not be returned to the grantor by returning or canceling the deed. A fortiori, a married woman cannot divest her estate by giving bacli an un- recorded deed where she is under disability. Ray v. Wilcoxon, 107 N. C. 514, 12 S. E. 443. 16 Com. V. Dudley, 10 Mass. 403 (a case perhaps maintainable ou tlie ground of fraud in the grantee. It is bitterly assailed in the notes to the second edition); Holbrook v. Tirrell, 9 Pick. 105 (mainly rested on recording laws); Barrett v. Thorndike, 1 Greenl. (Me.) 73 (decided against effect of a willful alteration, but intimates that a surrender of the deed might have been effec- tual) ; Tomson v. Ward, 1 N. H. 9 (the intent to reconvey by surrendering deed is sustained). Farrar v. Farrar, 4 N. H. 191, approves Com. v. Dudley, supra (arguendo). 1' Dukes V. Spangler, 35 Ohio St. 119. 18 Edwards v. Dickinson, 102 N. C. 519, 522, 9 S. E. 456 (relying on Souther- land V. Hunter, 93 N. C. 310, and Hare v. Jernigan, 70 N. C. 471) ; Dodge v. Dodge, 33 N. H. JS7. (326) f^il. 5] TITLE BY GRANT. § 46 lessen its force only by throwing a doubt upon the shape in which it was worded at the moment of its execution. The modern doc- trine starts here from the presumption of honesty, and in the ab- sence of special grounds for suspecting a forgery, or fraudulent change, the jury will be instructed that they may, from its appear- ance, find whether the changes were made before or after execution. And the party relying on the deed will, under most of the American authorities, not be called upon to account for the alteration, un- less it has a suspicious look about it; the supreme court of the United States, however, still inclining to the harsh old rule.^' To avoid all difiQculty, it is best to note erasures on interlineations above the signatures. Xearly all the decisions on this subject are found with regard to executory instruments, where a material alter- ation after delivery destroys, not only the instrument, but the obliga- tion. The English authorities, even those of ratber modern date, take the opposite ground to those of American courts. Under them any visible alteration in a written instrument throws the burden of proof on those claiming under it to show that the alteration was made before execution.^" Where the change is made after execu- tion and delivery, by the consent of both parties, there is, in consid- eration of law, a new delivery, and the deed as changed is valid. ''^ At common law, partition could be made between tenants in com- mon by the simple yielding of exclusive possession to the parcels 10 Wing v. Stewart, 68 Iowa, 13, 25 N. W. 905 (court must decide on inspec- tion whether the instrument looks suspicious, and shift the burden of proof accordingly) ; Hagan v. Merchants' & Banlsers' Ins. Co., 81 Iowa, 321, 40 N. W. 1114 (to same effect); Smith v. U. S., 2 Wall. 219, 232 ("where any suspicion is raised as to the genuineness of an altered instrument, whether it be apparent on inspection, or is made so by extraneous circumstances, the party producing the instniment and claiming under it is bound to remove the suspicion by accounting for the alteration"); Gooch v. Bryant, 13 Me. 386 (in absence of all proof, the jury were not to assume that the alteration of a flgui-e in a note uas made after execution) ; Cumberland Bank v. Hall, 6 N. J. Law, 215 (law does not presume that an alteration apparent on the face was made after execution); Bailey v. Taylor, 11 Conn. 531 (whether alteration was made before or after execution is for the jury to determine from all the circum- stances). 20 Knight V. Clements, 8 Adol. & E. 215; Henman v. Dickinson, 5 Bing. 183; Clifford V. Parker, 2 ilan. & G. 910. 21 Hargrave v. Melbourne, 8U Ala. 270, South. 1'Sj. (327) § 46 LAND TITLES IN THE UNITED STATES.. [Ch. 5 which they were to hold in severalty. Eeleases by deed were not deemed proper, as each of them was deemed to be separately pos- sessed. Neither was a formal livery of seisin needed. In New York, where, under the statute of descents, coheirs are tenants in common, it was held at an early day that, notwithstanding the stat- ute of frauds, and aside from the statute regulating judicial parti- tions, tenants in common such as coheirs can divide their land by parol, provided they actually mark the boundaries and take posses- sion accordingly. Nor is it necessary that there should be any long acquiescence, or any acts following the taking of possession which would amount to an estoppel.^ ^ The same doctrine has been laid down in Illinois, but in a case in which each of the parties after- wards gave a deed to a purchaser for his share in severalty, which deed would perhaps everywhere operate as an estoppel, e. g. in Wis- consin.''^ But in Massachusetts, Maine, New Hampshire, Pennsyl- vania, and Ohio a parol partition does not, though the parties take possession in accordance therewith, pass the legal title j though it would raise a strong equity, and the parties might by long acquies- cence, for a time shorter than the bar of limitations, and by the erection of valuable improvements, be held estopped from reopening the partition, especially if it appeared to be fair when made.^* In Virginia the statute, though such partitions had been sustained by the courts, declares them invalid.^^ It is not likely that a title may still be defeated under the stat- ute of uses because the deed on which it rests is neither a good bar- gain and sale, based on a pecuniary consideration, nor a covenant to 2 2 Wolf V. Wolf, 158 Pa. St 621, 28 Atl. 164. Older cases are Jackson v. Bradt, 2 Caines, 174; Jackson v. Harder, 4 Johns. 202; Jackson v. Vosburgli, 9 Johns. 27G; Jackson v. Christman, 4 Wend. 277. Jncidentally, also, Corbin v. Jackson (Ct. Err.) 14 Wend. 619; affirming Jackson v. Livingston, 7 Wend. 13G; Ryerss v. Wheeler, 2.5 Wend. 434; Baker v. Lorillard, 4 N. Y. 257,— all reviewed and followed in Wood v. Fleet, 36 N. Y. 499. 23 Shepard v. Rinks, 78 111. 188; Eaton v. Tallmadge, 24 Wis. 217. 24 Porter v. Perkins, 5 Mass. 233; Porter v. HUl, 9 Mass. 34; Snively v. Luce, 1 Watts, 69 (where possession had not been taken); Gratz v. Gratz, 4 Rawle, 411; Dow v. Jewell, 18 N. H. 354; Piatt v. Hubbell, 5 Ohio, 243 (sus- tained as an equity); Gardiner Manuf'g Co. v. Heald, 5 Me. 384. = 5 Virginia, Code 1887, § 2913, changing the law as laid down in Boiling v. Xeel, 76 Va. 487, 493. (32S) Ch. 5] TITLE BY GRANT. § 47 stand seised, made in consideration of a proposed marriage, or in favor of a son, brotlier, or nepliew; especially as the payment of the nominal consideration (one dollar) which is usually inserted in a deed of gift, cannot be gainsaid, and as laws passing the title to land by any words of grant have been in force now for from 60 to lOOi years in all the older states.^* § 47. Parts and Parties. A conveyance of any kind must contain the names of a grantor and a grantee. The former is necessarily in being when the deed is executed, but the grantee named may happen to be dead, though there was an understanding to make and deliver the deed to him while he was alive. This will happen oftenest where an official, who has to follow a prescribed routine, conveys land on behalf of the sovereign, i. e. the United States or a state, or conveys the land of the citizen under powers conferred by law. He has not the opportunity to learn the death of the applicant for public land, or of the bidder iit an execution or tax sale; nor is it part of his duty to find out on whom the right to the land to be conveyed is thrown by descent or devise. By the common law, a deed made to the dead man is void, as lacking one of the two necessary parties; but some of the states have enacted statutes to remedy the mischief. Where the conveyance is a "grant" or "patent" of the public land, the deed inures to the heirs or devisees, according as the grantee died in- testate or testate (or to the heirs generally, with an equity in favor of the heirs when the estate has been devised), by the land laws of the United States," and by those of Kentucky,^* while in Virginia, un- 2 8 See Hare's notes to Roe v. Tranmar In volume 2 of Smith's Leading Cases (page 461), referring to a very few American cases in whicii this diffi- culty arose. Statutes putting all estates "in grant" were passed in Massa- chusetts and in Pennsylvania In very eai-ly colonial times. 2 V Rev. St. U. S. § 2448. It is retrospective. Title Inures to "heirs, devisees, or assignees" as if it had been issued dm-ing the patentee's life. 28 Such an act was passed in Kentucky in 1792, embracing heirs and devisees, and was re-enacted in the revisions of 1852 and 1873 with the latter word left out. See Gen. St. c. 50, art. 1. The heirship is determined by the law in force at the time of the patent. Slieene v. Fishback, 1 A. K. Marsii. 356; Hansford v. Minor's Heirs, 4 Bibb (Ky.) 385. The modem statute is cou- (329) § 47 LAND TITLES IN THE UNITED STATES. [Ch. 5 der the common lav.', the patent in the name of the dead man is void.29 A deed of conveyance is either a deed poll, in which the grantor speaks in the first person, and which he alone executes, or an inden- ture or deed inter partes. A deed of the latter kind, in its origin, was always made out in counterparts. It derived its name from the zigzag or indented line along which the parchment for the counter- parts was cut. But it is now fully agreed that where two or more parties have to execute a deed, each of them parting with some right, or binding themselves in a covenant, their signatures and seals affixed to one and the same writing will bind all.^" Indeed, in most cases the so-called indenture is a unilateral deed, in which only one party parts with an estate, or binds himself to anything. The opening words of an indenture are: "This indenture, made and en- tered into this [here insert day and year], by and between A. B. and 0. D. [giving names and residence], parties of the first part, and E. F. and Gr. H. [names and residence], parties of the second part [and there may be parties of a third and fourth part, or even more], wit- nesseth ;" and the parties so named are thereafter referred to as the parties of the first, parties of the second part, etc. The old rule was that, where a deed opens in this wise, an estate in possession can be granted only to such persons as are named among the parties; but an estate in remainder may be limited to other persons not so named. It is doubtful whether this distinction would be kept up at the strued as giving the title to tlie heirs in trust for the devisees. Russell's Heirs v. Marks' Heirs, 3 Mete. (Ky.) 37. The Kentucky, like the United States act, is retrospective, as it well may be; the state having clearly the right to validate its own patent, unless rights of third parties have intervened. 28 Blankenpickler v. Anderson's Heirs, 16 Grat. 59. The Virginia statute provides for a grant to the heirs or devisees. Code, § 2351. 30 The only deeds that are in modern jiractice made out in two or more parts are leases, of which the landlord and the tenant each receives a counter- part, and deeds of partition, of which one is retained by each part owner. Where a deed of the latter kind is made by a master in chancery or court commissioner, it is becoming the custom to make out but one part, which, being put on record, is accessible to all persons in interest. Assignments for the benefit of creditors are always made out in one draft only, and the trustee writes his acceptance of the trust at the bottom. Dyer v. Sanford, 9 Mete. (Mass.) 305; Giles v. Pratt, 2 Hill (S. C.) 439. (330) Ch. 5] TITLE BY GRANT. § 47 present time, even for the purpose of construing a deed of doubtful import. ^^ Next comes the granting clause. In a deed poll, after its opening words, "Know all men by these presents that," this clause reads: "I, A. B. [or we, A. B. and C. B., his wife], for and in consideration of I , paid by E. F., the receipt whereof is hereby acknowledged, have granted, bargained, and sold [or "quitclaimed and released"] unto E. F., his heirs and assigns forever," — while, in an indenture, "party of the first part," etc., is substituted for the names. It has been said that the granting clause, being the most essential part of the deed, prevails, in case of conflict, over the other parts; though, as we have seen, words of inheritance inserted in other parts of the deed would turn a life estate into a fee.^^ The consideration is important where a deed of "bargain and sale" carries the legal title, while a mere grant does not. A nominal sum, such as "one dollar," is sufficient, and the recital is conclusive. If the dollar has not been paid, the grantor may demand it, if he chooses; but he cannot deny the operation of the deed as a bargain and sale.'' In Kentucky it is the unvarying custom (and it is very common in Texas), when the consideration is not fully paid in cash or property, 31 Foster v. Shreve, 6 Bush, 523; Davis v. Hardin, 80 Ky. 672 (gifts to a woman and her children, referred to in a former chapter). These go back to Webb V. Holmes, 3 B. Mon. 404, which relies on Co. Litt. 231, a case in 8 Mod. 115, and 4 Com. Dig. tit. "Fait," D, 2. The writer has found no American cases outside of Kentucky to support the position. The authors of the American & English Encyclopedia of Law (volume 5, p. 453) say bluntly that there is no practical difference between a deed poll and an indenture. But see, note 38, infra, as to new name in habendum. 82 The intrbductory words of the deed, containing the names of the parties and the granting clause, including the description, are often comprised under the name of "the premises"; e. g. 4 Kent, Comm. p. 466. Everything that precedes the habendum. Berry v. Billings, supra. The names of the grantors may appear only as "we" or "we, the undersigned," which are explained by the signatures, as in a note. Withers v. Pugh, 91 Ky. 522, 16 S. W. 277. 33 Delaware, perhaps, is now the only state in which a deed must false effect as a bargain and sale or as a covenant to stand seised, and where a "grant" or "conveyance" is not authorized by statute. As to North Carolina before the present Code, see Blair v. Osborne, 84 N. C. 417. The English practice of Indorsing the payment of the purchase money on the deed is now unknown in this country, and was not practiced in the days of Kent (331) § 47 LAND TITLES IN THE UNITED STATES. [Ch. 5 to state the fact truly; e. g. "For and in consideration of three thous- and dollars, paid and to be paid as follows, to wit, one thousand dollars in cash, and two promissory notes, each of one thousand dollars, payable, respectively, in one and -two years from this date, each bearing interest from this date, the receipt of which money and notes is hereby acknowledged." And the deed proceeds, either at this point or later on, "For the securing of which notes a lien is hereby reserred." ^* Then follows the description, which is generally introduced thus: "A certain parcel of land, lying in the county of , and state of ," and winds up with a reference to the deed or other instrument under which the grantor deraigns title thus : "Being the same parcel which was conveyed to the party of the first part by deed of X. Y. and Z. Y., his wife, of date , recorded in the office of the register for county, in Deed Book , page ." We have discussed in a former chapter how contra- dictions in the description, or between it and this reference to the source of title, are to be reconciled or solved.^" Next usually come the words, "And with the privileges and appurtenances thereto be- longing," which is hardly ever, perhaps never, of any effect what- ever, or adds anything to the force of the deed.^° Next comes the habendum clause, to which we have already re- ferred when speaking of estates in fee. Originally, the habendum itself defined the duration of the estate. Then the tenendum stated of whom arid by what tenure the land was to be holden, and the reddendo named the amount of services or yearly rent. Except in indentures of lease, all this is now useless and obsolete. But when uses grew up they were set forth in this part of the deed, and when "uses were turned into possession" it became the custom, in the deed of release of the reversion ("lease and release"), which oper- ates as a common-law conveyance when the releasee was the bene- siThis institution of the express vendor's lien has in Kentucky, at least, wholly superseded mortgages for the purchase money, and has shown itself In evei-y way more convenient, and has for that state put an end to many perplexing questions arising on such mortgages. 35 Supra, c. 2, § 5. ss See chapter 2, § 12, "Incidents and Appurtenances"; also. Berry v. Billings, 44 Me. 416, quoting 2 Greenl. Cruise, 334, note; Kent v. Waite, 10 Pick. 141; Blake v. Clark, 6 Greenl. 430; Brown v. Thissell, 6 Gush. 257 (where water rights passed with a mill without the words "privileges and appurtenances"). (332) Ch. 5] TITLE BY GRANT. § 47 ficial taker, to add, after the clause, "To have and to hold to said C. D., his heirs and assigns forever," the declaration of use: "To his and their only use, benefit, and behoof forever;" and, this use being reduced into possession, a trust for others might then follow : "In trust, nevertheless, for the use and benefit of," etc. And it is still the custom to put declarations of trust in this part of a deed.^' Aside of such declarations, the land is, in the vast majority of cases, limited in the habendum to the same persons and for the same estate or estates as in the premises; and in all these cases the habendum is a dead formality, which (as seen above) is dropped in all the statu- tory forms for deeds. But sometimes the habendum disagrees with the premises, and then the rule is that it may enlarge the estate granted, but cannot lessen it.^* After the habendum, the covenants of title, if any, are inserted, of which we shall speak hereafter, only as far as they may operate by way of rebuttal or estoppel on future or after-acquired estates. After these any conditions are inserted, the happening of which 37 A use may be declared in the habendum. Sammes' Case, 13 Coke, 54; Spyv-e V. Topham, 3 East, 115. 3 8 The theory of a grant is that the earlier part prevails over the latter, as a man cannot resume what he has given. The contrary rule would apply to a devise which the testator can revoke. See 2 Bl. Comm. 241, 293; Goodtitl& V. Gibbs, 5 Bam. & C. 709; 4 Kent, Comm. 468. In McLeod v. Tarrant, 39 S. C. 271, 17 S. E. 773, the granting clause wus in favor of the husband alone, without words of inheritance, the habendum to him and his wife and their heirs. The majority of the court held that, the husband's estate by the premises not being a fee, the habendum did not cut it down, but possibly enlarged it, and held the deed to convey an estate by entireties to husband' and wife; quoting Berry v. Billings, 44 Me. 416 (no grantee named in premises, person named in habendum will take). From Blackstone, supra: "The office of the habendum is properly to determine what estate or interest is granted by the deed." Chief Justice Mclver, in his dissent, quotes 'Windsmore v. Hobart, Hob. 313 (where the habendum is not allowed to give an immediate- estate to one not a party to the deed); Brooks v. Brooks, Cro. Jac. 434 (which is really in point for the decision of the majority) ; Greenwood v. Tyler, Id. 564, (where the additional grantees in the habendum were ruled out, it being a lease, a deed inter partes). In Hafner v. Irwin, 4 Dev. & B. (N. C.) 433, the deed (of slaves and personalty) was a grant to Hafner, his heirs, etc., haben- dum to Curry, his heirs, etc., in trust, etc. It was held that the habendum,. being in conflict with the premises, was void, and the title in Hafner. Blair v. Osbome, 84 N. C. 417, approves the old authorities,— that one who is first (333) § 47 LAND TITLES IN THE UNITED STATES. [Ch. 5 sliall render the deed void, of which by far the most frequent is the defeasance, which renders the deed void in the event that the grantor should pay certain sums at some given day; in short, the clause which turns an absolute deed into a mortgage.''' Last of all comes the testimonium clause, which, in a deed poll, embraces the date, while in an indenture the "day and year" are stated at the opening, in the inter partes. The mention of a party as grantoi* in the testimonium clause may sometimes suffice to connect his sig- nature with the deed.*" The parties to a deed are generally named by their Christian and , family names ; and those who grant anything or bind themselves to anything necessarily so, as their signatures must appear under or in the deed. But the grantees, especially of future estates, are often described by the oflQce or position they hold, and oftener by their kinship to the grantor or to others, e. g. when a gift is made "to my eldest son," or "to my three daughters." Such grants are valid on the principle of id est certum quod certum reddi potest. Indeed, we have seen that grants may be made to persons unborn, designated only as the children that may be born of a named parent.*^ Where any uncertainty arises as to the persons to whom an estate is given, the same principles apply, which we have set forth in a previous chapter as to uncertainty in the description ; that is, in the thing granted. And when there is an ambiguity, latent or patent, the same principles govern, as to the admission of extrinsic evi- dence, as have there been referred to. This will be treated more fully in a note in the chapter on Title by Devise, drawn mainly from introduced in the habendum cannot take a present estate. Where the grantor Is by mistake named as grantee in the premises, the habendum will set it right. Invin v. Longworth, 20 Ohio, 581. 39 Words occurring in the warranty may modify the estate, and perhaps amount to a condition. Kibler v. Luther, 18 S. C. 606. 40 Newton v. McKay, 29 Mich. 1, goes even further, for it holds that where one of the grantors is named as a party, but not as a grantor in the body of the deed, and he and another person sign the deed, the words, "we have set our hands," In the testimonium clause, will make both of them grantors. *i There must, however, be at least one known grantee, to whom the deed is delivered, either as trustee for the unknown or unborn, or as the taker of a particular estate, the latter taking remainders or other future estates; for, as will be shown In another section, there is no private grant without delivery. (334) *--h- 5] TITLE BY GRANT. § 47 Wigram's essay on tlie Admission of Exti'insic Evidence in the In- terpretation of Wills.* 2 Sometimes an absolute deed and oftener a mortgage, is made to a firm by its firm name, indeed the latter conveyances are habit- ually drawn in that way. The grantee takes such a form as "John Brown & Co.," or "Brown Brothers," or "Brown, Smith & Co."; tha.c is, the full names of some partners, or of all the partners, are L,ot given; some partners are not named at all. By changes in the firm it may happen that none of them is named even by his surname. In equity, the land conveyed belongs to the firm for partnership pur- poses;*^ but how does the legal title stand? The weight of au- thority sustains the position that if the firm name contains the full name of a partner, or even the surnames of one or more partners ^ho can be identified, the title would vest in such fully-named member, or in the members partially named and otherwise identified, but not in those only indicated by the words "& Co." If members of the firms are identified by such words as "& Son," the name of the son meant may be proved, and he will take under the deed.** 42 Though the omission of the given name makes a patent ambiguity, it has been supplied, shovying who took possession under the deed. Fletcher v. Man- sur, 5 Ind. 267, 269, where the title in the fcarty thus ascertained was sustained against the later insertion of another Christian name in the blank. In David v. Williamsburg Fire Ins. Co., 83 N. Y. 265, a deed from the owner to a flcH- tious person and one executed by him in the fictitious name to a third person were held to pass tha.titie. Where the beneficiaries of a deed are named in general words, — e. g. the grantor's creditors, evidence must always be taken to ascertain them and tlieir respective interests. In Drummond v. Attorney General (1850) 2 H. L. Cas. 837, the question arose upon a deed of trust made in 1870 for the benefit of "Protestant Dissenters in Ireland,"— whether Uni- tarians could take a share of the fund; and evidence was admitted that, at the date of the deed, the word "Protestant Dissenters" was not understood as comprising Unitarians. A deed to the heirs of A. B., who was still alive, was in Hall v. Leonard, 1 Pick. 27, held void for uncertainty. In such a case, if the deed was made for a money consideration, equity must give some relief. •4 3 As to the equities in pirtnership lands, and what are partnership lands, see Lake v. Gibson, 1 White & T. Lead. Cas. Eq. 264, and Lake v. Craddock, Id., and notes. It is a subject not falling within the scope of this work. 44 In Beaman v. Whitney, 20 Me. 413, it was held that a deed to "Whitney. Watson & Co.," where one man named Whitney and one named Watson were members, vested thef^e two, at least, with the legal title, and was valid. To same effect are ArtUuv v. Weston, 22 Mo. 378; Morse v. Carpenter, 19 Vt. 613 (335) § 47 LAND TITLES IN THE UNITED STATES. [Ch. •5' Where a partnership does business in a name sounding like that of a corporation or joint-stock company, there is no good reason in law why the same rule should not apply. A deed to the "Eeal Es- tate Company" is in effect a conveyance to the persons who make up that company. But here the decisions are in conflict; the feel- ing against unauthorized corporations having inclined some courts to declare such deeds invalid.^" On the much more important question, when and how far lands belonging to a firm can be affected by deed of conveyance or by an incumbrance made by one partner on behalf of the firm, the supreme court of the United States has, in 1895, announced it as the settled rule that the other partners will be bound, and the title of the firm will pass (whether legally or equitably is of little import), if there be either a previous parol authority, or a subsequent parol adoption of the act; and "ratification may be inferred from the presence of the other partner at the execution and delivery, or from his acting un- der it, and taking the benefits of it with knowledge." ^* (ejectment on deed to "Morse & Houghton" by two J)artners with those sur- names); "Winter v. Stoelf, 29 Cal. 411 (deed to L. B. & Co., L. B. alone has the legal title). But In McCauley v. Fultou, 44 Cal. 355, under a deed made to a partnership of four, two names only appearing in the firm, with "& Co.," each was held to have title to one-fourth, though the articles of partnership were not in writing. Moreau v. Saffarans, 3 Sneed, 595 (deed to J. L. Saffarans & Co., title at law in the named partner alone); Murray v. Blackledge, 71 N. C. 492 (deed to firm not void. The ambiguity as to "Co." may be explained by parol. Title in all) ; Hoffman v. Porter, 2 Brock. 156, Fed. Cas. No. 6,577 (deed to P. H. & Son) ; Bernstein v. Hobelman, 70 Md. 29, 10 Atl. 374 (mortgage to firm good deed at law). See, also, Carruthers v. Sheddon, 6 Taunt. 14; Maug- ham V. Sharpe, 17 Co. B. (N. S.) 443; Lindl. Partn. (4th Ed.) p. 208; Elphin- ston, Interp. Deeds, p. 126. 4 5Kelley v. Bourne, 15 Or. 476 (deed to "Grant's Pass Real Estate Asso- ciation," a pai-tnership of five members, held to give to each a share in the fee). Contra, German Land Ass'n v. Schcller, 10 Minn.. 381 (Gil. 260). Tl\e other cases which were quoted in the former against validity of the deed arose on grounds of public policy; as Harriman v. Southam, 16 Ind. 190 (deed to a railroad company unconstitutionally chartered) ; or of devises to corpora- tions not yet formed, or incapable of taking, in states having no statutes of charitable uses. See Baptist Ass'n v. Hart's Bx'rs, 4 Wheat 1; Wheeler v. Smith, 9 How. 55; also, Sloane v. McConahy, 4 Ohio, 157 (where a title bond to the commissioners of Wayne county was held void). « SIcGahan v. Bank of Rondout, 150 U. S. 218, 232, 15 Sup. Ct 347 (a case (3.36) Ch. 5] TITLE BY GRANT. § 47 A conveyance, generally by sheriff or master, after a judicial sale, is often made to the administrator, who has bought the land of a debtor to the decedent's estate. Such a conveyance, to "A. B., ad- ministrator of C. D., deceased," vests the legal title in the grantee A. B., who may sue, for possession in his own name, without joining the heirs; though he will, of course, hold the land subject to the same trusts as the money that he might have collected.*^ Generally speaking, a deed is not the less valid because the grantee's name is incorrectly, or even incompletely, given, as long as he can be iden- tified from the designation.^* While a deed made to an officer of a corporation cannot at law inure to the corporate body, and in equity only by way of resulting trust, such body having furnished the con- sideration, yet, when a note secured by mortgage is made payable "to A. B., cashier," or is assigned to him in like terms, the latter Involving prioi-ity between a mortgage made by one partner and a subsequent execution against the firm, the land being in South Carolina, the parties mainly in New York). The court relies on the following authorities: Smith v. Kerr, 3 N. Y. 144; Graser v. Stellwagen, 25 N. Y. 315; Van Brunt v. Applegate, 44 N. Y. 544 (from New Yorli); Stroman v. Yarn, 19 S. C. 307; Salinas v. Bennett, 33 S. C. 285. 11 S. E. 908 (from South Carolina); also, 3 Kent, Comm. 48; Oady v. Shepherd, 11 Picli. 400; Peine v. Weber. 47 111. 41; Frost v. Wolf, 77 Tex. 455, 14 S. W. 440; Schmertz v. Shreeve, 62 Pa. St. 457; Wilson v. Hunter, 14 Wis. 683; Rumery v. McCulloch. 54 Wis. 505, 12 N. W. 65; Pike v. Bacon, 21 Me. 280; Russell v. Annable, 100 Mass. 72; Gunter v. Williams, 40 Ala. 501; Sullivan v. Smith, 15 Neb. 476, 19 N. W. 020. See, to the contrary. Car- ter V. Flexner, 92 Ky. 400, 17 S. W. Sol. 4 7 Jackson v. Roberts, 95 Ky. 410, 25 S. W. 879. ■*8 We quote from Schumpert v. Dillard, 55 Miss. 360: "It is said In Shepp, Touch. ,53. that the names of parties are inserted to ascertain them, and, if sufficient be shown to point out grantor and grantee, the deed is good. Illus- trations: A grant by the Duke of Norfolk without his baptismal name; a grant to T. and his wife, Ellen, when her name was Emeline. The maxim. Id eertum est quod certum reddi potest,' applies to deeds. A grantee may be described by his office or relationship. It is immaterial that there is a mis- take in the Christian name. A deed to Robert, Bishop of E., is good, though his name was Roland. In Fletcher v. Mansur, 5 Ind. 268, the grant was to Ban alt. The Christian name was omitted. The court responded that the deed was delivered to Barratt, and the ambiguity could be supplied by proof. In Hoffman v. Porter, 2 Brock. 158, Fed. Cas. No. 6,577, Chief Justice Mar- shall sustained a conveyance to Peter Hoffman & Son. Though there were several sons, it was easy to apply the description to the son connected with the father in business." LAND TITLES V.l 22 (337) § 48 LAND TITLES IN THE UNITED STATES. [Ch. 5 instrument is regarded as a mortgage to tiie bank of wliicli lie is casli- ier, and may be enforced by it in its own name.*'* Wlien a married woman, to bar dower or homestead riglit, joins in lier husband's deed of his own hand, her name is generally inserted as that of a grantor in the inter partes or other opening clause. The deed, how- ever, is just as binding upon her if at the end, say in the testimonium clause, her name is first introduced, provided it is coupled with words barring or releasing those rights: e. g. "In witness whereof, Mary Doe, wife of John Doe, who hereby releases her dower, has set her hand and seal." °° The addition of an official or fiduciary character to the grantor's signature, when the body of the deed shows that he is conveying his own property, does not invaJidate his grant; tb'^ addition being considered a mere descriptio personae, just as if he had added an academic degree or military rank to his name.^^ § 48. The Seal— Herein of Blanks. A colonial statute of Virginia, enacted in 1748, and having its counterpart in other colonies, requires of a deed, to be effectual as a conveyance of land, that it be "made by writing, sealed and indent- ed." The deeds of that day, including the land patents which were issued by the colonial governors, were indented; but only one re- ported case can be found, in which the deed was held of less account for not being indented ; and in the state in which this decision was made, Maryland, a statute as early as 1794 dispensed with indent- ing."'^ And with the disuse of parchment the habit of indenting documents fell into desuetude. The seal remained. While Blackstone defines it as "wax im- pressed," the impression soon came to be made on bits of paper, at- 49 Michigan State Banlv of Eaton Rapids v. Trowbridge, 92 Mich. 217, 52 N. W. 632. 00 Davis v. Jenldns (Ky.) 20 S. W. 283. Indeed, In some states this is con- sidered the safer course. 51 Brayton v. Meriihew, 56 Mich. 166, 22 N. W. 259. The principle is famil- iar in the law of promissory notes, and generally in that of contracts. 52 ilOT-ehead & B. Ky. St. p. 429, from 5 Hen. St. at Large, 409; Gittings v. Hall, 1 Har. & J. (Md.) 14. (338) Ch. 5] TITLE BY GKANT. § 48 tached by wafer or mucilage to the deed, and in many of the South- ern and Western states the seal soon degenerated into an ink scroll (or scrawl), generally in the form "L. S." which was appended to the grantor's signature. At last some of the states came to dispense with the seal entirely; while the signature or subscription not re- quired by the older statutes, became everywhere obligatory under the statute of frauds. Delivery of a deed is of its essence, and in all the states remained indispensable. An acknowledgment of the deed is in most of the states essential to pass the estate of a married woman. In a few states it is, with or without attestation of wit- nesses, required before any person's deed of conveyance will carry the legal title. But in most states, in deeds of persons other than married women, the acknowledgment or attestation is of importance only as the basis for recording or registration; and this is only re- quired to make the deed effective against creditors or purchasers. The laws of the states as to each requisite must be treated in order. First, the seal, which at common law is the one great feature of a deed. The seal of a corporation or of a public oflQcer has always its own device and legend, which identifies it and attests the genu- ineness of the instrument, as the handwriting does as to that of an individual, and as anciently the private seal did, when men could not write. But for centuries, ever since it became customary to sign deeds as well as to seal them, any impression on "wax or other tenacious substance that will receive and retain an impression" ^^ was a good private seal ; and where a deed is signed by several, and only one piece of impressed wax or wafer is attached, it will stand as the seal of all the signers, if it seems to have been adopted by all of them as their seal." In the following states a deed conveying the legal title to land must be sealed, and the seal must fit the above definition, a "scroll" or scrawl being insufficient: The New England states, other than Connecticut. In Delaware, except when the seal is recited, as it usually is. Until lately, in New York, Maryland, and North Carolina; in the first of these states the word "seal" or let- » 03 Leigh, N. P. p. 730 (a wafer will do); Tasker v. Bartlett, 5 Cush. 359. The impression need not be discernible. Hughes v. Debnam, 8 Jones (N. C.) 127; Lunsford v. I-a Motte Lead Co., 54 Mo. 426. 64 Mackay v. Bloodgood, 9 Johns. 285; Atlantic Dock Co. v. Leavitt, 54 N. i'. 35; Tasker v. Bartlett, supra. (33!)) § 48 LAND TITLES IN THE UNITED STATES. [Cll. 5 ters "L. S.," written in a ring behind the name, may now take the place of wax or wafer; in the two others, an inli scroll.^" The word "seal" or letters "L. S." are also sufQcient in Connecticut, Idaho, and Utah, and such word or letters, or a mere scroll of almost any shape, make a good private seal, by statute, in New Jersey,"' Illinois, Mich- igan, Wisconsin, Virginia, West Virginia, Georgia, Florida, Missis- sippi, Colorado, California, Oregon, Washington, Wyoming, and New Mexico, and by judge made law or custom in Pennsylvania," South Carolina,"' and Arkansas; "* but lately in Texas,"" and still in Dela- ware, where the instrument recites the affixing of a seal.®^ All pri- vate seals are dispensed with in the following states: Kentucky (as early as 1812 as to obligations, only in 1843 as to deeds),"^ Tennessee,"' Alabama (but the deed must indicate that it is meant as a convey- ance),"* Ohio (only since 1884),"" Connecticut (since 1888), Iowa, Kan- sas, Nebraska, Texas, Oklahoma, Arizona, Dakota, Montana, and Idaho,"" — while the Revised Statutes of Indiana contain two con- 55 A scrawl is not a seal. Warren v. Lynch, 5 Johns. 239. Followed in New Yorli ever since. 5 8 Revision 1877, "Evidence," p. 387, § 52 (enacted in 1875). Another and older section applies only to obligations. Secus before the act. Perrine v. Cheeseman, 11 N. J. liaw, 174. 6 7 Long V. Ramsay, 1 Serg. & R. (Pa.) 72. A ribbon run through the parch- ment is not a seal. Duncan v. Duncan, 1 Watts, 322. 5 8 Parks V. Duke, 2 McCord, 380; Relph v. Gist, 4 McCord, 267. But an unsealed deed conveys no title, and is not within the recording law. Arthur V. Screven, 39 S. C. 78, 17 S. E. G40. It is not even a "writing in the nature of a mortgage.'' Harper v. Barsh, 10 Rich. Eq. 149. 69 Bertrand v. Byrd, 4 Ark. 195. 60 Flemming v. Powell, 2 Tex. 225, under Act Feb., 1840. which required a writing sealed and delivered, a scroll to be deemed a seal. Such is also the Code of 1875. 61 Armstrciig v. Pearce, 5 Har. (Del.) 351. See, for similar rule formerly prevailing in other states, Boynton v. Reynolds, 3 Mo. 79; Ijong v. Long, 1 MoiTis (Iowa) 43. 6 2 Acts 1843, p. 11, now embodied in section 2, c. 22, Gen. St es Code, § 2478. "■» Code, § 2G94 (seal not necessary to convey title). 6 5 See Rev. St. 1800, § 4, from Acts 1884, p. 198; Acts 1883, p. 79. 6 6 Iowa, Rev. Code, § 2112; Nebraska, Consol. St. § 4417 (use of private seals abolished); Kansas, Gen. St par. 1110 (deed to be subscribed; nothiut; said about seal); Dakota Territory, Code, § C23; Xevada, Gen. St § 2607 (seal (340) oil. 5] TITLE BY GEANT. § 48 tradictory provisions, one of which says that no private, seal or ink scroll shall be necessary to any conveyance of land, while another requires that all conveyances, bonds, or powers of attorney as to lands shall be executed with a seal."' With the exception of Ken- tucky, Iowa (1852), and Alabama (where the recital of the seal in the witnessing clause was by an act of 1839 made equivalent to seal- ing,"* the abolition of private seals is comparatively modern. But the use of an ink scroll instead of wax or wafer has been almost universal in the West ever since Kentucky introduced it in 1796. A private seal is unknown to the Roman, and therefore to the Spanish, law; hence a deed executed in Missouri before 1816, when a statute of frauds and of conveyances was enacted, was good without a seal;'" and the same may be said of Texas and other Mexican acquisitions. Where a. seal is required, but a paper purporting to be a convey- jiuce of land is made without it, the instrument will nevertheless have the effect of an executory contract and raise an equity in the grantee; not, however, such a "dry naked trust" as will defeat an ejectment or writ of entry by the grantor or his heirs.''*' When the courts of Massachusetts had only a limited equity jurisdiction, they could not relieve against a deed under seal, on the ground of an un- sealed defeasance, nor would the supreme court of Vermont enforce an unsealed memorandum to reconvey land.''^ But the necessity for a seal is not raised by construction ; thus, where the California stat- or L. S. unnecessary); Idaho, Rev. St. § 2920 (conveyance by writing sub- scribed and delivered). Such also is the langxiage in tlie Statutes of Arizona (section 214) and Oklahoma (section 1695). 7 Both sections of the Revised Statutes of 1888 (sections 2999 and 4925) are from the Statutes of 1S,"J2, which were adopted in separate chapters; hence the last ought to prevail. The usage in Indiana is to put a scroll to deeds of land. 6 8 It was not so before the statute, and that is not retrospective. Williams V. Young, 3 Ala. 14.j; Moore v. Leseur, 18 Ala. 606. Contra, Shelton v. Ar- mor, 13 Ala. 647. Seal now unnecessary under section 26o4 of the Code. 9 Moss v. Anderson, 7 Mo. 337. 70 Worrall v. Munn, 5 N. Y. 229; Switzer v. Knapps, 10 Iowa, 72 (deed made before act of 1852, abolishing private seals); Frost v. Wolf, 77 Tex. 455, 14 S. W. 440 (under act of 1840). Contra, Jewell v. Harding, 72 Me. 124. But the paper will always operate as a license to enter. Ti Kelleran v. Brown, 4 Mass. 443; Arms v. Burt, 1 Vt. 303. The principles (341) § 48 LAND TITLES IN THE UiNITED STATES. [Ch. 5 ute enabled a married woman to convey her land by deed with the consent of her husband, a deed signed and sealed by her was deemed sufficient, though the consent of her husband was given in an unseal- ed memorandum.'^ As long as a seal is deemed necessary to a deed of conveyance, the power of attorney to execute such a deed must itself be under seal. It must, in the language of the common law, be a deed.'* It follows that a blank which the grantor leaves in a sealed deed when he delivers it cannot be filled up so as to complete the deed, unless the person who fills the blank is authorized to do so by a sealed power of attorney; and such has been the ruling in North Carolina, Tennessee, and Georgia. While in California, though pri- vate seals are disused, the same result is reached under the statute of frauds, which requires all writings affecting the title to land to be subscribed either by the principal or by an agent appointed in writing.'* This doctrine is, however, not recognized in most of the states, but is generally exploded as too technical to flt into modern Ameri- can law. The supreme court of the United States gave it, in 1864, as the "better opinion" of that day that a parol authority for adding to and for completing a sealed instrument is good enough; and dis- allowed the force of the deed then before it only because the grantor was a married woman, who, under the law of Iowa, cannot act by of equity are now so fully enforced everywhere as to render such decisions obsolete. '2 Ingoldsby v. Juan, 12 Cal. 5G4. "Davenport v. Sleight, 2 Dev. & B. (N. C.) 381. This doctrine is elemen- tary. It has often been applied to sealed contracts for the payment of money, which would have been just as good without the seal; so that the note given by one partner in the firm name has been held invalid as against the other, because he attached a scroll. See next note. 74 Humphreys v. FiKCh, 97 N. C. 303, 1 S. B. 870, goes back to Shep. Touch. 57, and Co. Litt. 52a, for principle that power to make deed must be given by deed, and disai^proves Lord Mansfield's nisi prius opinion in Texira y. Evans, mentioned in note to Master v. Miller, 1 Anst. 229, and which is over- ruled in England in Hibblewhite v. M'Morino, G Mees. & AV. 200, 210. Same principle (Mosby v. Arkansas, 4 Sneed [Tenn.] 324) applied to a bond; also, Viser v. Rice, 33 Tex. 139 (since ovenniled. See note 77); also In Ingram v. Little, 14 Ga. 173. Applied to a mortgage in Parker v. Parker, 17 Mass. 370 (incomplete by reason of blank, is like not delivered). (342) Cb. 5] TITLE BY OllANT. § '^^ attorney at all." In a later case before the same court, the modern doctrine was affirmed, but again the deed was held to be invalid, be- cause the blank for the grantee's name had not been filled up till after delivery; in fact, not till after the grantor's death. The more liberal doctrine has been recognized in quite early cases in Massa- chusetts and South Carolina; in New York (as to bonds); in Penn- sylvania; in Alabama, Maine, New Jersey, Missouri, Indiana, Wis- consin, Texas, Nebraska, and Oregon; in Minnesota, on the ground of estoppel in pais; in Iowa, on the broad ground that private seals are abolished, and there is no longer any room for the old rule that an attorney to make a deed must be created by deed.^° In Texas it seems quite common to indorse a deed with a blank left for the grantee on the back of a land certificate, which the buyer fills up with his own name after he has entered and located land by means of the certificate.'^ It has been held in New York and in Missis- ' f^ Drury v. Foster, 2 Wall. 24. The court thinks that to apply here the doctrine of esloi'ipel against the maiTied woman would deprive her of the pro- tection intended by the law to be given to her. '6 Woolley V. Constant, 4 .Tohns. 54; In re Decker, 6 Cow. 60 (neither case very strong); AViley v. Moor, 17 Serg. & R. (Pa.) -!3S; Allen v. Withrow, 110 O. S, 119, 3 Sup. Ct. 517 (admits that such is the rule in many states); Me- Olung V. Steen, 32 Fed. 373 (Judge, now Mr. Justice, Brewer); Gibbs v. Frost, 4 Ala. 720 (case of a judicial bond, which the clerk filled up after delivery, construed into a redelivery); Smith v. Crooker, 5 Mass. 538; Richmond v. Davis, 7 Blackf. (Ind.) 412; Camden Bank v. Hall, 14 N. J. Law, 583; Rags- dale V. Robinson, 48 Tex. 379; Loekwood v. Bassett, 49 Mich. m1, 14 N. W. 492; Pence v. Arbuckle, 22 Minn. 417 (where the certificate of acknowledgment is much dwelt on); Cribben v. Deal, 21 Or. 211, 27 Pac. 1046 (decided in November, 1891, where the blank was filled up after acknowledgment); Van Etta V. Bvenson, 28 Wis. 33; Swartz v. Ballou, 47 Iowa, 188 (overrulmg Simms V. Hervey, 19 Iowa, 273); Field v. Stagg. 52 Mo. 534; Schintz v. McManamy, 33 Wis. 299; Duncan v. Hodges, 4 HcCord (S. C.) 239 (based, like most of tlie first cases on this side in each state, on Lord Mansfield's nisi prlus opinion in Texira v. Evans) ; Inhabitants of South Berwick v. Huntress, 53 Me. 89. But the authority to fill up must appear affirmatively. Cooper v. Page, 62 Me. 193. In Smith v. Crooker, supra, the blank was for the obligor's own name, and could not have, been filled up in any other way; but the court went beyond the facts, relying on Zouch v. Claye, 2 Lev. 35 (tern. Car. II.), a very short and vaguely worded case. Reed v. Morton, 24 Neb. 760, 40 N. W. 282; Dob- bin V. Cordiuer, 41 Minn. 165, 42 N. W. 870. 77 Dean v. Blount, 71 Tex. 271, 9 S. W. 1C8. (343) § 49 LAND TITLES IN THE UNITED STATES. [Ch. 5 sippi that where an instrument recites in its testimt)niuni clause that it bears a seal, but there is none in fact, the signer cannot have affirmative relief in equity; ^* yet in an action against him such re cital is not the equivalent of a seal, unless the statute says so.''" In other states, on general principles of equity, in Michigan by the words of the statute, the lack of the seal, or of any other formality in execution, reduces the effect of the deed from that of conveying the legal title into that of a declaration of trust, or of an executory contract, which equity will enforce.'" We shall treat elsewhere of the seals to be appended to the deeds of corporations or of pub- lic officers. § 49. Signature or Subscription. The other and now the most important step in the execution of a deed is the signature or subscription. These two words have by no means the same meaning; for, while to subscribe is to write one's name at the bottom of an instrument, a signature may be at the beginning, in the middle, or at the end. The necessity for signing a deed first arose in England under the statute of frauds and perjuries; in the colonies under it or under a re- enactment of those parts of that statute which relate to the transfer of interests in land.'^ Under tliis statute the deed or contract must 7 8 MeCarley v. Board of Supervisors, 58 Miss. 483 (ease of a bond); relying on Kent's decision in Wadsworth v. Wendell, 5 Johns. Ch. 224 (also an obli- gation) ; and on Rutland v. Paige, 24 Vt. 181. '9 McPherson v. Reese, 58 Miss. 749. 80 How. Ann. St. § 5727; Dreutzer v. Baker, 60 Wis. 179, 18 N. W. 776 (such equity carries the right of possession, and will maintain as well as defend au action of trespass). NOTE. In Florida the Revision of 1892 contains no provision authorizing tlie use of a scroll; and it was deemed safest to append wafer or wax to a deed till the "scrawl" (sic) was restored to its dignity by an act of April 28, 189S, professing to have retrospective force. 81 The following is the form of that section as re-enacted in New Jeraey (see Revision, "Frauds and Perjuries," 1), and almost literally In the cor- responding section of the Digest of Pennsylvania statutes: "(1) That aU leases, estates, interests of freehold or term of yeare, or any uncertain interests of, In, to, or out of any messuages, lands, tenements, or hereditaments, made or created, or hereafter to be made or created, by livery and seisin only, or by Ch- 5] TITLE BY GRANT. § 49 be "in writing, signed by the party." Hence, the grantor's name might be written by him in any part of the deed. And this has been held very often as to contracts for the sale of goods, the only limitation being that the instrument must be apparently complete; that the name was not purposely left off at the end, because the obligor or grantor had not fully assented.^^ ^ ^gg^ without a sig- nature at the end, but containing the grantor's name in the begin- ning, the whole deed, including that name, being in the handwriting of a scrivener, but acknowledged and delivered by the grantor, has in one case been deemed sufficiently signed, though not subscribed, to have the effect of a written instrument, within the statute of frauds.*' Not all state have gone to this length; and, as against married women, whose conveyances are hedged about with particular safe- guards, such a ruling would be hardly sustained.** In some states (in- cluding those which have built on the "Field Code") the word "sub- scribed" is in the statute of frauds substituted for "signed," at least as to contracts for the sale of lands.^^ Those parts of the statute parol, and not put in writing, and signed by the parties so making or creating the same, or the agents thereunto, lawfully authorized by writing, shall have the force and effect of leases or estates at will only, and shall not, either in law or equity, be deemed or taken to have any other or greater force or effect, any consideration for making any such parol leases or estates not- withstanding; except, nevertheless, all leases, not exceeding the term of three years from the making thereof." The form adopted in ilaine, c. 73, § 10, is very much shorter. 82 A leading case is Johnson v. Dodgson, 2 Mees. & W. 659, decided by Lord Abinger; also, Penniman v. Hartshorn, 13 Mass. 87; McConnell v. Brillhart, 17 111. SrA, 361; Fulshear v. Randon, 18 Tex. 277; People v. MuiTay, 5 Hill (N. y.) 470. As to the dispute whether the statute of frauds did really require a deed to be signed, see hereafter under "Deeds of Corporations." 83 Newton V. Emerson, 66Tex. 142, 18 S. W. 348. The paper could not operate as a deed, as it had no seal which the statute tnen required, and which would have been enough, as the statute of conveyances, which called for "a writing sealed and delivered," must have prevailed over the more general words of the statute of frauds. The matter is now regulated in Texas by articles 997, 1000, and 1003 of the Code, which require that a deed be subscribed; and this is the tendency of modern legislation, as will be found in the sections on the "Execution of Wills." 84 Adams v. Medsker, 25 W. Va. 127. so California, Civ. Code, § 1741; Dakota, Civ. Code, § 993. Montana, Gen. (345) § 49 LAND TITLES IN THE UNITED STATES. [Ch. 5 which required a signed instrument, in writing, for the conveyance of a freehold, or leasehold, are generally re-enacted as the leading sec- tion in a chapter on conveyances, which prescribes the requisites of a valid deed of lands. Here either "signing" or "subscribing" may be demanded, or the statute of conveyances may simply call for a deed, or direct that a "deed must be executed." Thus the Revised Statutes of New York demand that every grant of a freehold estate must be "subscribed and sealed." Connecticut (by her last Revis- ion), California, the Dakotas, Idaho, Indiana, Arizona, and (in efEect) Texas, ask only that the deeds be subscribed; Alabama, in plain terms, that it be signed at the end. Among the states that call only for a deed or for executing a deed are New Jersey, Pennslyvania, Kentucky, Minnesota, Kansas, Delaware, while Massachusetts, Ver- mont, Ohio, Illinois, Tennessee, Nebraska, and Oregon are among those which require the deed to be "signed." *" Where the signature is not at the end there must be something to show that the instrument "was finished; and hardly anything will indicate this but such formal acknowledgment before an official as is required by the recording laws.'^ The grantor's' name written out for him by way of signature or subscription, in his presence, by another person, by his direction (the old books have it "by his commands"), or even with his consent, or even a signature which he adopts as his own before delivery of the deed (which, again, is best proved by the acknowledgment), is as good as if it had been made by the grantor himself.'* A cross mark is usually made by or for an illiterate grantor, with the words Laws, § 217. The same states introduce the word "subscribe" again among the requisites of a deed for conveying land. 80 The word "sia:ned" or "subscribed" or simply "executed" will be found generally in the same sentence with that containing or not containing the word "sealed," referred to in note to section on "Seal." For Indiai'a, seo Rev. St. § 2919. s' Newton v. Emerson, sijpra. 88 Conlan v. Grace, 36 Minn. 276, 30 N. AV. 880. The doctrine is familiar, to be found in elementary books, and has never been seriously controverted. See another Minnesota case,— Schmitt v. Schmitt, 31 Minn. 106, 16 N. W. 543; Wood V. Goodi-idge, 6 Gush. 117; also, Bartlett v. Drake, 100 Mass. 174; quoting Greenfield Bank v. Crafts, 4 Allen, 447; Lovejoy v. Richardson, 68 Me. 386; Mutual Benefit Life Ins. Co. v. Brown, 30 N. J. Eq. 193. (34G) Ch. 5 J TITLE BY GRANT. § 49 "his [or her] mark" over and under it, and the grantor's given name to the left, the surname to the right of the mark, and the signature of an attesting witness near it. It has been held in North Carolina — First, that the words "his mark" are not necessary; second, that there need be no attesting witness to a mark, except where the law requires it to the grantor's signature, leaving the mark, like a real signature, to be proved by any competent proof; third, that the mark need not be explained by writing the name around or under it, when that name appears in the testimonium. clause, under a statute which calls only for a signed, not for a subscribed, deed.*" A fortiori, if a person chooses to sign his Christian name only, but the name, full enough to identify the grantor, appears in the body of the deed, or if the name be misspelt in the signature, the deed will be deemed valid, as long as it is apparent that the grantor wrote or caused to be written such defective or incorrect name as and for his signa- ture.*" But in Connecticut the statute says expressly that the grantor's name must be annexed to the mark, and in Alabama the law allows only those unable to write to sign a deed with a mark, and requires the name to be added to it and a witness able to write to attest such a signature; and in West Virginia it must be attested."^ At common law, an illiterate grantor may demand that a deed which he is called on to seal should first be read to him. But if it is not read at his request, and he signs it nevertheless, he seems to waive his right, and to withdraw his request; and so the rule is cut down to this ; that if the reading be refused or withheld by any trick or false pretence, and he is thus induced to put his mark and seal to the deed, he may repudiate it as not being his deed.*" 89 Howell V. Ray, 92 N. C. 510; Deveieux v. McMahon, 108 N. C. 134, 12 S. B. 902; quoting Yarborough v. Monday, 3 Dev. 420; Sellers t. Sellers, 98 N. C. 13, 3 S. E. 917. 9 Zaun v. Haller, 71 Ind. 136, where a mortgage of the feme's land was signed by her husband and her, thus, "R. Zann, Catherine," but the body of the deed and the acknowledgment gave her name in full. In Middleton v. Findla, 25 Cal. 76, a title was deemed good, though a grantor named Edward Jones might have signed his name Edmund Jones. 91 Connecticut, Gen. St. § 2954; West Virginia, c. 98, § 1; Alabama. § 1. Under this clause it would seem insufficient for another person to write the grantor's name in his presence and at his request. 6 2 School Committee v. Kesler, 67 N. 0. 443. (347) I 50 LAND TITLES IN THE UNITKD STATES. [Ch. 5 The subscription of a deed must connect itself with its body. If a deed were written in the first person, there is no reason why the signature at the end should not connect itself with the pronoun "I" or several signatures with the pronoun "we," in a deed, just as much as they do in a promissory note. "I hereby grant Whiteacre to John Doe and his heirs. [Signed] Richard Roe. [Seal]," — is probably a valid deed. But if the deed were written thus : "I, Richard Roe, hereby grant," etc.,-^and were signed and sealed not only by Richard Roe, but also by Susan Roe, the latter name would not grammati- cally connect itself with the body of the deed. It could not be in- ferred whether this signature imported any grant, and, if it did, what the signer intended to grant; and it must be rejected as un- meaning."* And it has also been held that a person named in a deed as a grantee only, who signs and otherwise executes the deed, will not thereby become a grantor,'* though probably a court of equity would put such person (generally the widow) to an election, and not allow her to claim the granted, as well as the original, inter- est. NOTE. As to mining giants under Mexican law, see infra, "Spanish and Mexican Grants." § 50. Other Eequisites. , A deed signed or subscribed, sealed, and delivered, in most of the states, passes the title, without further ceremony, between the grantor and grantee, and the acknowledgment or proof by attest- ing witnesses is needed only for the purposes of registration, or binding a married woman. But in some of the New England states either attestation by two witnesses or the grantor's acknowledgment before an official, or both formalities, were required, by colonial and early state statutes, to pass the title, just as the English statute re- quired the enrollment of deeds of bargain and sale within six months of their execution, as a substitute for the livery of seisin, which was dispensed with. Prom Connecticut the requirement of both attestation and acknowledgment passed into the ordinance of 03 Catlin v. Ware, 9 Mass. 218. 0* Pratber v. McDowell, 8 Bush (Ky.) 46; Adams v. Medsker, supra. See however, under "Dower," for exceiitions to this rule. As to the grantor's own estate, such a deed is clearly bad. Stone v. Sledgo (Tex. Sup.) 2G S. W. IOCS. » Ch. 5] TITLE BY GRANT. § 50 1787 for the Northwestern Territory; and it is still in full force in Ohio. The effective words of the statute of Connecticut are: "At- tested by two witnesses with their own hands, and acknowledged by the grantor to be his free act and deed ;" after which the officers, in or out of the state, are named, who may take and certify the ac- knowledgment."" New Hampshire, having by a colonial statute of 1701 required an acknowledgment only, added the formality of two attesting witnesses in 1791."' A Massachusetts act of 1783 provid- ed for deeds acknowledged before certain magistrates, or proved, as a mode of conveyance; but this and subsequent statutes were never so construed as to make either attestation or acknowledgment a prerequisite for passing the title between the grantor and the grantee."' The statute of Vermont, dating back to 1797, also re- quires every deed or conveyance of land to be "signed by two wit- nesses, and acknowledged by the grantor, before" certain officers named, and to be recorded at length ; but another section indicates that the acknowledgment and recording are needed only to make the deed effectual against other persons than the grantor or his heirs."'* After these formalities had been observed for over 50 years, under the government of New Hampshire and of Vermont, the supreme court declared, very properly, that the law was meant to be exclusive of all other methods of conveying lands, and that, though the ac- knowledgment is only necessary towards recording (in fact, the grantor may be compelled to acknowledge his deed), the two wit- nesses are as indispensable as the signing and sealing."" 8 5 Gen. St. § 2954, from Gen. St. 1875, p. 352, § 5, amended In 1878 and 1881. See history of these laws in French v. French, 3 N. H. 263. 97 Marshall v. Fisk, 6 Mass. 24; Dole v. Thurlow (1846) 12 Mete. (Mass.)- 162. The unacknowledged deed was deemed good as "a covenant to stand ('.eized" in Wallis v. Wallis, 4 Mass. 135; and the statute of uses was deemed in force in Marshall v. Fisk; but Dole v. Thurlow was put on the ground that the statute required proof or an acknowledgment only for purposes of record- ing, as notice to subsequent purchasers. »8 R. L. §§ 1927, 1931. A notary public may take the acknowledgment, an* certify it without his seal. 98 isham v. Bennington Iron Co., 19 Vt. 280 (case really involves other points); Wood v. Cochrane, 39 Vt. 544 (acknowledgment naming grantee in- stead of grantor cannot be corrected); Town of Lemington v. Stevens, 48 Tt, 38 (lack of acknowledgment leaves deed good as against grantor). (349) § 50 LAND TITLES IN THE UNITED STATES. [Ch. 5 The second section of the ordinance of 17S7 speaks of conveying land "by lease and release, or bargain and sale, signed, sealed, and delivered by the person, • * ♦ and attested by two witnesses, provided • * * such conveyances be acknowledged, or the exe- cution thereof be duly proved, and be recorded within one year after cxecation." ^'"' While the legislative power of the Northwestern Territory was vested in the "governor and judges," a decree made in 1795 adopted the common law of England, as modified by antecolonial statutes; and this was followed by a territorial act of 1802 which clearly dis- pensed with these formalities. But in Ohio, by an act of 1805, tak- ing effect on the 1st of June, both formalities— attestation and ac- knowledgment — were again required; and so by all subsequent Ee- visions.^"^ On the other hand, the Indiana Territory, which then embraced both Indiana and Illinois, in its first compilation of 1807 left out these requisites; and the common law, as modified by Eng- lish statutes, being made the rule of decision, there has been no need for either formality in either Indiana or Illinois ever since.^"^ The territory of Michigan, which then embraced Wisconsin, adopt ed the Ohio statute in 1820, and in a modified form it is still retained in both the states, Michigan ^"^ and Wisconsin, in which convey- ances may be made by deed signed and sealed by the person, etc., "or by his lawful agent or attorney, and acknowledged or proved as directed by this chapter," while another section provides for the attestation of the deed by two witnesses. Hence, the acknowledg- ment before the designated officer does away with the necessity for the two attesting witnesses on whose oath the "proof" might be made; or the affidavit of the attesting witnesses would complete the deed, and fit it for record, without an acknowledgment.^"* The ordinance of 1787 became the provisional law of the "South- 100 The ordinance is printed in ttie Revisions ot Olnio, Michigan, and Wis- consin in the introductory matter. 101 Moore v. Vance, 1 Ohio, 12; present law, Rev. St. 1890, § 4106. 102 Stevenson v. Cloud, 5 Blackf. 92, gives the history of the law, spealis of the old "his testlbus" clause of deeds of feoffment as becoming obsolete in the reign of Henry VIII., and quotes Co. Litt 7a, and 356, to show that attesta- tion is not a necessary part of either a common-law or a statutory conveyance. 103 How. Ann. St. § 5707. 104 Wis. Ann. St §§ 2203, 2206. (350) <-!h. 5] TITLE BY GRANT. § 50 ■western Territory," afterwards formed into the states of Alabama and Mississippi. But it was held in the former state that the ordi- nance was set aside by the adoption of the state constitution; and it seems that this provision was not enforced in any reported case.^"" But an early statute of Alabama, which was carried into all the later Revisions, directs that "the execution of [such] conveyance [unless duly acknowledged] must be attested by one, or, where the party cannot write, by two witnesses, who are able to write, and who must MTite their names as witnesses." "° The rule derived from the ordinance seems, however, never to have been either recognized or re-enacted in Mississippi. The course of decision under the statutes has varied somewhat. In some of the older New Hampshire cases the force of the statute has been frittered away by the argument that the statute of uses (27 Hen. Viil.), which transfers the possession to the use, is still in force, and that the unattested or half-attested deed takes effect as a bargain and sale, or covenant to stand seised; while the two wit- nesses and acknowledgment are the substitutes for livery of seisin, and thus both kinds of deeds are left for choice.^"' A statute en- acted in 1829 expressly forbade this evasion of the prescribed for- malities; and they have since been respected.^"' The witnesses need not be "credible" or disinterested, yet a grantor's wife will not count as a witness; neither can the signature of the magistrate at the bottom of the acknowledgment be counted.^"" Whether the sig- natures of two persons other than the grantor are an attestation, without words indicating that the deed wes executed in their pres- ence, is left undecided.^^" / In Connecticut the attestation of two witnesses and acknowledg- loswiswall v. Ross, 4 Port. (Ala.) 321, quotes Robertson v. Kennedy, 1 Stew. (Ala.) 245, for abrogation of the ordinance. 108 Alabama, St. § 1789. The words "with their own hand," in the Con- necticut statute (section 2954), seem also to call for attesting witnesses who are able to write. 107 French v. French, 3 N. H. 203 (covenant to stand seized). See, how- ever. Smith V. Chamberlain, 2 N. H. 441. 108 Stone V. Ashley, 13 N. H. 38, under act of 1829. 109 Frink v. Pond, 46 N. H. 125; Corbett v. Norcross, 35 N. H. 99; Bund- lett V. Hodgdon, 16 N. H. 239 (point conceded). 110 Forsaith v. Claik, 21 N. H. 409 (the deed being made before 1791). (351) § 50 L.^ND TITLES IN THE UNITED STATES. [Ch. 5 ment has been steadily enforced by the courts; and, though the stat- ute did not use the word "credible," it has been held (even since par- ties were allowed to testify) that a person having a direct interest, such as a stockholder of the grantee corporation, cannot be an at- testing witness to a deed, and that it fails as a deed for want of two disinterested witnesses.^ ^^ The Ohio statute has been fairly enforced. It was held that a deed signed by only one witness does not carry the legal title, and cannot be lawfully recorded; and a deed with a defective acknowl- edgment is no better: e. g. where the grantor's name is left blank in the certificate, or the ofQcial does not subscribe it, or does not give himself his oificial title."" But that the witnesses attest only the "sealing and delivery," and not the signing, or that the certificate bears an earlier date than the deed, has been held immaterial."' In Michigan the older statute, worded like that of Ohio, was also strictly enforced, so that a deed with only one attesting witness was deemed unrecordable.^^* In Minnesota, as the law stood in 1854, a deed of conveyance not attested by two witnesses was A'oid, even against purchasers with notice; but the present law does not require attestation.^^^ In 111 Winsted Sav. Bank v. Spencer, 26 Conn. 193. The question whether the certifying magistrate must be disinterested Is also left undetermined. 112 Smith V. Hunt, 13 Ohio, 2U0; Hout v. Hout, 20 Ohio St. 219; Johnston V. Haines, 2 Oliio, 55. So, if the acknowledgment is written out on a sepa- rate strip of paper (a very common practice in many states). Winkler v. Higgins, 9 Ohio St. 599. The common form of attestation in Ohio is "signed, sealed, and delivered in presence of." Oourcier v. Graham, 1 Ohio, 331 (one attesting witness, the deed confers an equity only); White v. Denman, 1 Ohio St. 110 (magistrate's signature to acknowledgment is not counted as at- testation). In Illinois, though a part of the old Northwestern Territory, a common-law deed is good, except as affected by the registry laws. Roane V. Baker, 120 111. 309, 11 N. E. 246. 113 Fosdick V. Risk, 15 Ohio, 84 (name of county in venue of acknowledg- ment supplied from deed, and magistrate thus located in his county); Beckel V. Petticrew, 6 Ohio St. 247; Fisher v. Butcher, 19 Ohio, 406 (date imma- terial). 114 Galpin v. Abbott, 6 Mich. 17; Hall v. Redson, 10 Mich. 21. 116 Thompson v. Morgan, 6 Minn. 295 (Gil. 199). The court went so far that a mortgage attested by one witness only was not helped against the junior mortgage by the clause In the latter, "subject to M.'s mortgage." (352) Ch. 5] TITLE BY GRANT. § 50 Wisconsin, under the territorial act of 1839, which directed that the deed must be aclinowledged "or proved by one or more of the sub- ecribins witnesses," which is embodied in the Eevision of 1849, it was held (in view of other parts of the statute) that a deed would, without either attestation or acknowledgment, pass the title be- tween the parties, and that the lack of these formalities would only render the deed unrecordable, and thus without effect against subse- quent purchasers.^ ^° The rule of the ordinance of 1787 has traveled further westward to the states of Oregon and Washington. Oregon has, ever since its first territorial statutes, demanded the attestation by two witnesses, and the acknowledgment, in nearly the same words as those used in Connecticut; and an early decision (1855) declared that a mortgage lacking in either of these formalities would operate only as an equitable incumbrance, and must be postponed to a later, but regu- lar, mortgage; but later decisions have been much more in- dulgent.^^' Most important, perhaps, is the clause in the New York statute 'under which a deed, if not duly acknowledged before delivery, and the execution and delivery be not attested by at least one witness, shall not take effect against a purchaser or incumbrancer until so acknowledged or attested. The word "purchaser" has been con- strued in its widest sense; the qualifications of good faith or "for value" being rejected. Hence, a deed unacknowledged and unattested has in New York but little more force than a will. It can at any moment be revoked by another deed.^^* Maryland also requires 116 Myrick V. McMillan, 13 Wis. 188 (a deed made in 1848); followed, with- out further remark, in Quinney v. Denney, 18 Wis. 485. See, also, Chase v. Whiting, 30 Wis. 544,— all as to acknowledgment. And lack of witnesses does not affect deed as between parties. Gilbert v. Jess, 31 Wis. 110; Lein- enkugel v. Kehl, 73 Wis. 23S, 40 N. W. 683. No particular form of attesta- tion. Webster v. Coon, 31 Wis. 72. One set of witnesses good for several grantors. Hrouska v. Janke, 6G Wis. 252, 28 N. W. 166. iiT Moore v. Thomas, 1 Or. 201. The unacknowledged mortgage in this case was postponed to that of subsequent mortgagees having actual notice. See, contra, Goodenough v. Warren, 5 Sawy. 494, Fed. Cas. No. 5,534 (attesting no part of execution). lis 1 Rev. St. pt. 2, c. 1, tit. 2, § 137, after some hesitation, and an equal division in the court of appeals, thus construed in Mutual Life Ins. Co. v. Corey, 135 N. Y. 32G, 31 N. E. 1095. i.ANDTrn.KSV.l — 23 (B5S') § 50 LAND TITLES IN THE UNITED STATES. [Ch. 5 attestation by one witness, at the least, as a prerequisite to the passing of the title; and, as it seems, also aclinowledgment before the proper oflicer. But the attestation by a witness is, upon the con- struction of the whole article on conA'eyances, held not to be neces- sary for a mortgage, as the form for such an instrument given by the statute does not, like that of an absolute deed, wind up with the words: "Test: A. B.,"— at the bottom."" In Rhode Island, by statute, all deeds of conveyance must be ac- knowledged; and the requirement cannot, as formerly in New Hampshire, be evaded by reliance on the statute of uses, for deeds of bargain and sale, etc., are expressly named. And the deed not acknowledged is void against all parties except the grantor and his heirs; but there are provisions, under which an acknowledgment can be compelled.^^" There are other states in which the section of the statute which directs how a deed shall be executed says also that it shall be "ac- knowledged or proved"; such are Indiana, Maine, Minnesota, North Carolina, Tennessee, Arkansas, Texas, Nevada, Idaho, Montana, Wy- oming, Alabama, Florida, Arizona. But it seems that in these states the acknowledgment or attestation which leads to proof by the attesting witnesses is only the means of fitting the deed for record; and the deed, when signed or subscribed and sealed, but not acknowl- edged nor attested, has only the defects of an unrecorded convey- ance.^ ^^ In the states in which the omission of attesting witnesses or of the acknowledgment lowers the deed into a declaration of trust or exec- utory contract, enforceable in equity only, the result is at all events to postpone it to the claims of subsequent purchasers for value with- out notice; but the states differ in the treatment which they give to such imperfect deeds, as well as to unrecorded conveyances, in the lis Pub. Gen. Laws, art. 21, § 51 (deeds); Id. 59 (mortgages). The difference is pointed out in Carrico v. Farmers' & Merchants' Bank, 33 Md. 235. 120 Gen. St. c. 162, §§ 2, 1, 6-8, based on an act of 1822. Where the deed of a resident of Rhode Isliuid was taken before a justice of Boston, Mass., the deed was held void as against creditors. Richards v. Randolph, 5 Mason, 115, Fed. Gas. No. 11,772. Rhode Island had until lately no system of equity; and a deed not good at law could not be helped out by "notice." 121 Minnesota, c. 40, § 7; North Carolina, § 1245. (354) Ch. 5] TITLE BY GRANT. § 50 contest witli creditors and volunteers. This must be discussed in connection with the recording laws. In the deed of a married woman, the lack of any of the prescribed formalities is much more fatal. It results in the utter nullity of the instrument, except in those states which have removed the disabilities of married women altogether. Of this hereafter. It is one of the first maxims in the "Conflict of Laws" that both the outward formalities, and the construction and effect of every deed for the transfer of land, depend on the law of the state or country in which the land is situate. But a number of the states have expressly provided by statute that a deed granting a part of their soil may be executed elsewhere in the United States, or even in a foreign country, according to the forms prescribed by the laws of the place of such execution. Such is the law in Connecticut, Ohio, Illinois, Michigan, Wisconsin, Minnesota, Kansas, Nebraska, Oregon, and Florida; this mode of execution being, of course, op- tional, and not excluding one in conformity to the law of the situs. These states differ, however, in this: Illinois allows only the acknowl- edgment to be made in the form of the place where it is taken. The others extend this tolerance to all the forms in executing deeds, but Connecticut only to the law of some state or territory of the United States; Minnesota only to the laws of foreign countries; while Ohio. Wisconsin, Kansas, Nebraska, Oregon, Florida, and Iowa allow deeds to be executed, both in and out of the Union, according to the local law of the place of execution.^^^ Wherever the statute allows a deed to conform either to the home law or to the foreign law, the one or the other must be pursued tliroughout; the compliance with one in part, with the other in the remaining requisites, is unavailing.^ ''=' These statutes are, of course, intended to facilitate the execution of deeds by owners living permanently, or sojourning, abroad; but introduce the difficulty of proving the foreign law on which the valid- ity of the grant is made to depend; and, with this object in view, some of the statutes in question have provided for a certificate of 12 2 The sections authorizing the use of these foreign forms are easily found among those governing the execution and acknowledgment of deeds; e. g. iu Minnesota it is section 10 of the chapter on Deeds and Mortgages (chapter 41)). 123 Kruger v. Walker (Iowa) 09 N. W. 65; Connell v. Galligher, 36 Neb. 740, 55 N. W. 229, (355) § 51 LAND TITLES IN THK UNITED STATES. [Cll. 5 some ofBcer abroad, to the effect that the execution and certificate of acknowledgment are in conformity with the laws of the plaee.^^* The statutes of Kentucky and Missouri expressly provide that deeds written abroad, in a foreign language, shall have full force for the conveyance of land, and direct how such deeds may be admitted to record.^ ^^ § 51. Delivery. A deed or a written obligation, sealed or unsealed, executed or ex- ecutory, is of no effect until it is delivered ; that is, until the grantor or obligor has put the paper or parchment writing out of his own hands into those of the grantee or obligee, or his agent, or has done something held equivalent thereto in the law. The question about this last step which gives efficacy to a deed arises often in the case of an escrow (deed put into the hands of a stranger to be delivered to the grantee on fulfillment of condition) — of which hereafter; also when the deed is put into the hands of a third party, not then the agent of the grantee, for the grantee's use, the latter not assenting at the time, nor recognizing the third party as his agent, until at some subsequent time, when the rights of others may have inter- vened; or when there has been only a momentary exhibition of the deed, which is afterwards found in the custody of the grantor; and sometimes when there is, in plain English, no delivery at all.^^^ 124 Illinois provides for certificate of clerli under seal. 12 5 Kentuciiy, Gen. St. c. 24, § 37; St. 1894, § 517; Missouri, Rev. St §2404. 126 "It is requisite to every deed that it be delivered, and also that it be ac- cepted;" quoting 4 Kent, Comm. 451. This does not mean that there must be a manual delivery to the grantee. It may be to his agent. Also, "delivery to the recording officer or a stranger will be valid, and the acceptance by tlie grantee presumed from his conduct without an express acceptance." Ward v. Small's Adm'r, 90 Ky. 201, 13 S. W. 1070. "Delivery may be effected by words without acts, or by acts without words, or by both acts and words." Ruck- man V. Ruckman, 32 N. J. Eq. 259. The intention of both parties. It is here said, may amount to delivery, though the deed remains with the grantor; but in this case, and in Dukes v. Spangler, 35 Ohio St. 119, the two deeds from the husband to "conduit," and from the latter to the wife, were in fact delivered; the latter to the husband for the wife. The matter of this and the next sec- tion is treated in 2 Bl. Comm. 307, 4 Kent, Oomm. pp. 454, 455. A momentary delivery is enough to pass the title, which cannot fail because the paper is re- turned to the grantor. Trustees of M. E. Church v. Jaques, 1 Johns, Ch. 450. (856) Cll. 6] TITLE BY GRANT. § 51 In strictness, there can be no delivery without an acceptance; and, when the person to whom a deed is handed for the grantee is not empowered by him beforehand to receive it, the deed can, upon prin- ciple, have no effect until the grantee learns of its existence, and, by word or act, shows his assent. This is the doctrine in its extreme form, in which some of the states have enforced it. The English, and many American, authorities do not go so' far, but generally sustain a delivery to a third person for the grantee's use, though that person be not his agent. When the contest arises between the grantee and those who derive title after the delivery to the third person, and before acceptance by the grantee, thig distinction is quite important. The authorities cannot be reconciled. There are some, of the highest rank, which are satisfied with an acceptance assumed on the ground that a given deed is altogether for the grantee's benefit, and that there could be no reason on his part for declining it; ^^^ but many American courts of last resort take the broad ground (at least for all conveyances other than deeds of gift or family settlements) that a grantee cannot accept the benefits of a deed^ if he does not know of its existence.^''* Deeds of gift, however, especially when made to infants of tender years, or by a husband to the wife, or generally to a married woman, have been sustained, not only upon a delivery to the guardian, parent, or husband, or to some friend or confidential person,^^^ but in some cases without any manual delivery at all, the grantor retaining the deed among his own papers. 127 Brooks V. Marbury, 11 Wheat. 96; Tompkins v. Wheeler, 16 Pet. 106, quoted approvingly in Grove v. Brien, 8 How. 429, a case of a sale or pledge of goods, in which the court expressly say that the proof of a previous assent of the party receiving them was not necessary, and that, in the absence of all proof to the contrary, the presumed assent to a beneficial grant or transfer is enough. 128 Goodsell V. Stinson, 7 Blackf. (Ind.) 439; affirmed in Woodbury v. Fisher, 20 Ind. 387. Samson v. Thornton, 3 Mete. (Mass.) 275 (case of a ship; stronger, perhaps, for acceptance tlian Grove v. Brien, supra), which soes back to Maynard v. Maynard, 10 Mass. 456, where no rights of third persons inter- vene, but where a deed from father to son, sent to the registi-y and recorded, was held to be undelivered at the son's death, because the son, though in pos- session of the land, never knew of it. Jackson v. Richards, 6 Cow. (N. Y.) 617 (no delivery without acceptance). But the broad maxim here stated is not borne out by the New York authorities. 129 "By tLe common law, all persons whatever may be grantees in a deed. (357) § 51 LAND TITLES IN THE UNITED STATES. [Ch. 5 In 1875, the supreme court of Iowa, in passing on a deed from a father to an infant child, admitted that the facts before it Vould, under many of the American precedents, be deemed insufficient; but, following former cases in the same state it held (1) that manual de- livery and acceptance by the grantee are not essential, as otherwise a deed could never be made to a child of tender years ; (2) that knowl- edge by the grantee is not essential; (3) that the grantor need not part with the possession of the paper — the intention to make the disposition of the property final being, it seems, the only test.^^" In fact, some English cases carry the constructive delivery thusfar, even as to deeds among adults for business purposes. The opposite view — that a deed of gift, remaining among the grantor's papers, unknown to the world, and found only after his death, is "nothing more than because it is supposed to be for their benefit. But infants, married women, or persons of insane memory may disagree to sucti deed, and waive the estate thereby conveyed to them." Cruise, Dig., quoted in Cowell v. Daggett, 97 Mass. 434, 437. Here the father of an infant grantee accepted land con- \eyetl by an executor to her in lieu of a legacy, and his acceptance was held good; she having assented to his acting for her. In Douglas v. West, 140 111. 455, 31 N. E. 403, a deed left with a neighbor for grantee, without special instructions, was held to be delivered and enforced, though destroyed by grantor's wife. ISO Newton v. Bealer, 41 Iowa, 334, following Foley v. Howard, 8 Iowa, 56, 60, and Stow v. Miller, 10 Iowa, 4G0, 463 ("if a father dies, leaving among his papers a deed of land duly executed in form to one of his children, the law will give effect to the same if there is anything indicating the intention of the intestate that it should become effective"), and adding: "Where one who has the mental power to alter his intention, and the physical power to de- stroy a deed in his possession, dies without doing either, there is but little reason for saying that his deed shall be inoperative because during life he might have done that which he has not done." In the English case of Doe V. Knight, 5 Bam. & C. 671, a debtor had written out a mortgage to secure a debt of which the creditor did not know, and put it in the hands of his own sister, telling her that it belonged to the latter, but keeping power over it so far that she let him have it when he wanted it. It was admitted that delivering a deed for the grantee's use to one who is not his agent is a good delivery; but the court in banc went further, and thought that the merely formal "I deliver this." spoken to the attesting witness, would have been enough. The New York case of Church v. Gilman, 15 Wend. 656, is oftenest quoted for delivery to a third person. Delivered to scrivener for grantee, death of grantor thereafter immaterial. Colyer v. Hyden, 94 Ky. 180, 21 S. W. S6S. (358) Cb. 5] TITLE BY GRANT. § 51 a will defectively executed"; that it cannot operate as a conveyance; and that there can be no delivery after the grantor's death — is borne out by cases in Nev? Hampshire, Indiana, Illinois, Massachusetts, Wisconsin, and North Carolina.^^^ The English, and some high American, authorities maintain that an "instrument may be good as a voluntary settlement, though retained by the grantor in his possession until his death; but such a deed, when not actually delivered to the grantees, or to some one for their use, should be made and kept, under circumstances showing that the grantor deemed the instrument binding, and did not reserve to himself any power" of revocation; at least, nothing to the contrary should appear; though two early Connecticut cases quoted by the supreme court of Pennsylvania have sustained a deed as well delivered, over which the grantor had expressly reserved the right to recall it from his depositary at any time before his death.^'^ Reading the deed to the attesting witness, still more, reading it to the grantee, sending it to the registry for record, are strong circumstances to show final- ity.^"' It seems that, while the rule in favor of "voluntary settle- 131 Cook V. Brown, 34 N. H. 460, overruling Shed v. Shed, 3 N. H. 432; Parker v. Dustin, 2 Fost. (N. H.) 424 (if grantor retains control over deed handed to stranger, to be delivered after his death, the title will not pass till then, and hardly even then); Johnson v. Farley, 45 N. H. 510 (the decisions of the United States supreme court [see note 127] in favor of presumed acceptances are said not to be law in New Hampshire. If the person re- ceiving the deed is not the agent of the grantee, be is the agent of the gran- tor); Mills V. Gore, 20 Pick. 28, and other Massachusetts cases quoted In notes 128 and 135; Baldwin v. Maultsby, 5 Ired. (N. 0.) 505; (grantor must ac- tually i)art with the deed, see Illinois cases in note 134). Prutsman v. Baker, 30 Wis. 644 (grantor reserving power over deed in hands of depository de- feats delivery; followed afterwards in case of supposed escrow). The deci- sions in Alabama on escrows approve this line of authorities. Lang v. Smith, 37 W. Va. 725, 17 S. E. 213; Barrows v. Barrows, 138 lU. 649, 28 N. E. 983 (possession of grantor's agent is his); Caza.ssa v. Cazassa, 92 Tenn. 573, 22 S. W. 560. 132 Belden v. Carter, 4 Day (Conn.) 66; followed in Stewart v. Stewai-t, 5 Conn. 317; quoted by Sharswood, J., in Stephens v. Rinehart, 72 Pa. St. 434, 441. 133 Bmin V. Winthrop, 1 Johns. Ch. 336 (Chancellor Kent), where a deed attested by two witnesses giving a leasehold to the grantor's misti-ess and natural child was found in a package with his will. The chancellor quotes Clavering v. Clavering, 7 Brown, Pari. Cas. 410: Boughton v. Boughton, 1 Atk. 625; Johnson v. Smith, 1 Ves. Sr. 314 Where the deed was not ex- (350) § 51 LAND TITLES IN THE UNITED STATES. [Ch. 5 mc-nts' is not denied, the later cases, both in the federal and state courts, incline against the validity of deeds retained by the grant- or: ^^- while in some states tlie distinction in favor of family settle- ments is, as we have seen, unknown. Having the deed put on rec- hibited before attesting witnesses, it was, under otherwise like circumstances, held for naught. Stillwell v. Hubbard, 20 Wend. 4-t. In Souverbye v. Ar- den, 1 Johns. Ch. 240 (which has become a sort of leading case). Chancellor Kent reasserted the doctrine of the former case, but really found on the proof a delivery in fact. He gives a full review of the English cases, among them Naldred v. Gilham, 1 P. Wms. 577, where Lord Macclesfield allowed the grantor to set aside a deed of settlement made on an Infant nephew, which she had retained in her own possession. Where a husband in a deed names himself and another trustee for his wife, reading the deed to the co- trustee, who accepted it, was held a good delivery. Huse v. Den, 85 Cal. 390, 24 Pac. 790. For a recent case between husband and wife, see Toms v. Owen (E. D. Mich.) 52 Fed. 417. 134 Younge v. Guilbeau, 3 Wall. 636: "The grantors must part with the pos- session of the deed. The presumption [of delivery from registration] is re- pelled by attendant and subsequent circumstances;" quoting Jackson v. Phipps, 12 Johns. 419, and Jackson v. Leek, 12 Wend. 105; also Maynard v. Maynard, 4 Edw. Ch. 747 (a case taking very strong ground for manual deliv- ery and actual acceptance); CMne v. Jones, 111 HI. 563. One judge, dissenting, relies on Bunn v. Winthrop, supra, and on Masterson v. Cheek, 23 111. 76, where the grantor's intent is said to be the controlling element. The majority rely on Basket v. Hassell, 107 V. S. 602, 2 Sup. Ct. 415 (a ease of a gift mortis causa of personalty); Olney v. Howe, 89 111. 556 (similar case); Byars v. Spencer, 101 111. 429 (demanding, as an equivalent for manual delivery, the grantor's clear disavowal of all further control). They distinguish Scrugham V. Wood, 15 Wend. 545, and Doed v. Knight, 5 Barn. & C. 671, In which the court went beyond the facts before them. An older Illinois case (Hulick v. Scovil, 4 Gilm. 178) sets forth the whole doctrine thus: "(1) Delivery by the grantor and acceptance by the grantee are essential to the validity of a deed. It takes effect only from its delivery. There can be no delivery without acceptance, express or implied; delivery and acceptance being simultaneous and correlative acts. Jackson v. Richards, 6 Cow. 617; Church v. Oilman, 15 Wend. 658. (2) Delivery may be made, first, to the party himself, or to any one by his appointment, or to any one authorized to receive it; or, second, to a stranger for and to the use of him to whom It is made without authority, under certain circumstances. Touch. 57. (3) In case of delivery to a stran- ger, the accceptance of the grantee at the time of deliveiy will be presumed under the following concurring circumstances: First, that the deed be upon its face beneficial to the grantee; second, that the grantor part entirely with all control over the deed; third, that the grantor accompany delivei-y by a declai-ation or intimation that the deed is dehvered to the use of the (3G0) Ch. 5] TITLE BY GRANT. § 51 ord is not always sufficienlj proof of the grantor's intent, quite aside of the question of acceptance by the grantee.^ ^^ Sometimes the question of fraud on creditors is" mixed up with that of delivery. An equivocal disposition of the deed may be caused by the grantor's intent to keep up a false credit, to play fast and loose with the conveyance, and to let the grantee claim the land as against creditors only. In such cases, the incomplete delivery is likely to be disregarded as feigned and fraudulent.^" But the effect of acts which would otherwise sufBce as a delivery is not weakened by the grantor's effort to keep a deed of gift secret from the world, or even from the grantee, till his own death.^*' grantee; fourth, that the grantee has eventually accepted the deed, and acted under it." The facts were these: A., an intruder on B.'s land, had gotten from the auditor the deed made to C, a purchaser at a tax sale, with- out the latter's knowledge or consent, and sought to set it up as a defense in ejectment to show that B., the plaintiff, had no title. The deed was ruled out, as never delivered. In Kingsbury v. Burnside, 58 111. 310, the supreme court regrets that the old rule allows a deed in any case to become binding on the grantor without the acceptance of the grantee. See, also, Cazassa v. Cazassa, 92 Tenn. 573, 22 S. W. 560. 135 Davis V. Williams, 57 Miss. 843 (deed to grantor's grandchildren found in his chest after his death held inoperative); Powers v. Russell, 13 Pick. 69 (case of mortgage to a brother, attested as sealed and delivered, but proved to have been given to a third party, who redelivered to grantee; not sus- tained, on the authority of Maynard v. Mayuard, supi-a); Chess v. Chess, 1 Pen. & W. (Pa.) 32 (deed being placed on record, not conclusive of delivery). Kentucky, while taking extreme ground as to mortgages, sustained a family settlement on very slight circumstances in Alexander v. De Kermel, 81 Ky. 345. A number of cases on the delivery of voluntary deeds, mainly in favor of children too young to accept intelligently, have been very lately decided in Missouri, in accordance with the above views. Crowder v. Searcy, 103 Mo. 97, 15 S. W. 346; Sneathen v. Sneathen, 104 Mo. 201, 16 S. W. 497; Al- len V. De Groodt, 105 Mo. 442, 16 S. W. 494, 1049; Tyler v. Hall, 100 JIo. 3l3, 17 S. W. 319; Hall v. Hall, 107 Mo. 101, 17 S. W. 811; Pitts v. SherifC, 108 Mo. 110, 18 S. W. 1071. Georgia does not deem a father's deed to a child de- livered when he reads it to the attesting witnesses, and then retains it till his death. Oliver v. Stone, 24 Ga. 63. where Doe v. Knight, 11 E. C. L. 632, is doubted. i38Blackman v. Preston, 123 111. 381, 15 N. E. 42. In Fairbanks v. Met- calf, 8 Mass. 230, the nondelivery of a deed for many years was held rather proof of good faith. 187 Diefendorf v. Diefendorf, 132 N. Y. 100, 30 N. E. 375 (sick husband deliv- (3G1) § 51 LAND TITLES IN THE UNITED STATES. [Ch. 5 It happens, frequently, that the grantor, in the absence of the grantee, leaves the deed, acknowledged by himself, with the record- ing officer. Unless it is done in accordance with a previous under- standing with the grantee, this does not amount to a deli^^'ery; for the recording officer is not the agent of the grantee. Should the lat- ter afterwards withdraw the deed, or act under it, such acceptance completes the delivery; but the deed can date only from such ac- ceptance, and cannot override an intermediate sale or incumbrance, whether voluntary or by process of law.^^* Where a grant or con- veyance is made to a trustee for one or more beneficiaries, the ac- ceptance of the trustee is la almost all cases sufficient to pass the whole interest, as far as it is needed to feed all the trusts; but, where the same deed transfers several interests to several grantees, none being named as trustee for the others, each must accept for himself, or the deed will pro tanto remain undelivered, and, to that extent, be of no effect; though, if the grantees had a joint interest, a deliv- ery to one would inure to all."" In the nature of things, the deeds ering deed for his wife to physician); Grain v. Wright, 134 N. "Y. 307, 21 N. E. 401 (mother handing a deed of gift for daughter to the latter's husband, —both with injunction of secrecy.) See, also, Douglas v. West, 140 111. 4.").'3, 31 N. E. 403, where the grantor's wife, who had joined in his deed to grand- children, destroyed it. 1S8 Hedge v. Drew, 12 Picli. 141, is a leading case for the position that the delivery "dates from the time of such assent." Building on the lot granted shows the assent of the grantee. Snow v. Orleans, 126 Mass. 453; Spring- field V. Harris, 107 Mass. 532. It matters not that before such assent the deed left with the recording officer is lost or stolen. Molineux v. Ooburn, 6 Gray, 124. In Georgia the magistrate's certificate of aclinowledgment is deemed prima facie proof of delivery. Highfield v. Phelps, 53 Ga. 59. The New .Jersey cases on conduct amounting to delivery (Crawford v. Bertholf, 1 N. J. Eq. 467; Commercial Bank v. Reckless, 5 N. J. Eq. 430; Den v Far- lee, 21 N. J. Law, 285; Armstrong v. Armstrong, 19 N. J. Eq. 357; Cannon v. Cannon, 26 N. J. Eq. 319), though recognizing favorable precedents, all turn out unfavorable to those claiming under doubtful deliveries. 139 Bell V. Farmer's Bank of Kentucky, 11 Bush (Ky.) 34. is a strong case. The owner of land made a mortgage in favor of several creditors, without a trustee, stating the sum due to each. The deed was put to record. One of the creditors named did not leara of it till after some unsecured creditors had attached the land, while all the other mortgagees had accepted. The one not accepting was postponed, because not knowing of the deed he could not accept See, also. Com. v. Jackson, 10 Bush, 424, 427. It scouted the (362) Cll. 5] TITLE BY GRANT. § 51 whicli the grantor thus puts out without the grantee's co-operation are of the kind to benefit the latter, being either deeds of gift or se- curities for a subsisting debt. Hence, if the presumption of accept- ance can be drawn from the character of the deed, proof will hardly ever be needed.^*" Manually placing a deed into the grantee's hands is not, in all cases, a delivery ; for words or actions may disprove, as well as prove, a valid delivery,^*^^for instance, where the grantor hands to the grantee a package of papers, including the deed, for safe-keeping, or intrusts the instrument to him, that he may submit it to his lawyer for an opinion as to its sufiSciency; and so, in all cases in which the possession of the instrument is wrongfully, or, as the law terms it, surreptitiously, obtained.^*'' In strictness, a deed thus obtained is no better than a forged deed; for delivery is just as essential to make a binding instrument as signing or sealing. proposition that the statute of conveyances, by demanding that a deed must be signed, acknowledged, and recorded, lessens the common-law necessity for delivery. Delivery to one of several joint grantees is good. Carman v. Pultz, 22 N. Y. 547. And, where a mortgage is made for a sum In gross to secure several creditors, an acceptance by one is an acceptance by all. Shel- den V. Erskine, 78 Mich. 627, 44 N. W. 146. But the acceptance by the husband of a deed to the wife, where she never acted upon it, was held not to make out a good delivery. Hutton v. Smith (Iowa) 55 N. W. 326. Where the creditor causes a mortgage to be drawn up, the lodging for record is a delivery. Greene v. Conant, 151 Mass. 223, 24 N. B. 44. rio Where the statute forbids preferences among creditors, and subjects those accepting a preference from an insolvent to costly law suits, a mort- gage for an antecedent debt is not always a benefit, and may often be re- fused. See Johnson v. Farley, 45 N. H. 505. 141 Benneson v. Aiken, 102 Ul. 284; Price v. Hudson, 125 111. 284, 17 N. E. 817; going back to Herbert v. Herbert, 1 Breese (111.) 354,* and Wiggins V. Lusk, 12 III. 132, where the recording of a deed in favor of an absent grantee, who knew nothing of it till after the grantor's death, was held in- sufficient. 142 Bovee V. Hinde, 135 111. 137, 25 N. E. 694 (the question was somewhat mixed up with that of undue influence in obtaining a deed of gift); Penning- ton V. Pennington, 75 Mich. 600, 42 N. W. 985 (deed gotten hold of by false pretense); Major v. Todd, 84 Mich. 85, 47 N. W. 841 (grantee obtaining deed before conclusion of the business) ; Comer v. Baldwin, 16 Minn. 172, Gil. 151 (deed left for examination) ; Parker v. Parker, 1 Gray, 409 (to get signature of grantor's wife). See, for a case of "no delivery," Farmers' & Traders' Bank of Bonaparte v. Haney (Iowa) 54 N. W. 61. (3G3) § 51 LAND TITLES IN THE UNITED STATES. [Ch. -5 Hence, where the grantee obtains possession of a deed without the grantor's consent, he has no title in law or equity, and cannot confer it, even on a purchaser for valuable consideration, acting in good faith, and without notice of the defect, — a rather harsh doctrine, against which equity might, perhaps, relieve an innocent purchaser where the deed has passed from the grantor's hands under circum- stances showing gross negligence.^*" In some of the states, the statute setting forth the requisites for executing a deed specially name that of delivery; ^** but it is doubt- ful whether such a clause in the statute has had any bearing on the decisions of their courts as to demanding more or less actual delivery. In Massachusetts, a statute of 1892 makes recording conclusive proof of delivery, in favor of purchasers from the grantee.^*^ A land patent from the United States or a state takes effect from its execution, without delivery; but it is otherwise with a deed made by a tax officer, sheriff, or master in chancery, where the public offi- cer does not convey a part of the public domain, but the land of the citizen.^*" It has even been said that the deed of a corporation, when sealed with the common seal, is good without delivery.^*' In the absence of any proof to the contrary, a deed is supposed to be deliv- ered on the day of its date; but another day, either later or earlier, 143 Harkreader v. Clayton, 56 Miss. 383; Everts v. Agnes, 4 Wis. 343, 6 Wis. 453; Tisher v. Bechwlth, 30 Wis. 55; Stefflan v. Mllmo Nat. Bank, 09 Tex. 513^ 6 S. W. 823 (with intimation as to equitable estoppel); "Van Am- ringe v. Morton, 4 Whart (Pa.) 382. See, however, Pratt v. Holman, 16 Vt 530. 144 This Is the case in Massachusetts, Khode Island, Georgia, P.Iorida. Indi- ana, California, and Texas. "A grant takes effect from delivery" in New York where however very slight circumstances of delivery have been deemed sufficient; in California and in the Dakotas. 145 Laws 1892, c. 256. 148 U. S. V. Schurz, 102 U. S. 378, 408 (case of a land patent, which was preceded by Marbury v. Madison, 1 Cranch, 137, 160); Hammond v. Johnston, ■93 Mo. 198, 6 S. W. 83; U. S. v. Le Baron, 19 How. 73 (on commissions to officers). As to tax deeds, contra, Hulick v. Scovil, 4 GWlm. (111.) 159; com- missioner's deed under decree, Mitchell v. Bartlett, 51 N. Y. 447. 147 There is a dictum to that effect in Bason v. King's Mountain Min. Co., W N. C. 417, quoting Grant, Corp. 63. But I do not believe that the point has been actually decided by any American court, so as to give effect to an undelivered deed by reason of the common seal. (3G4) C'h. 5] TITLE BY GRANT. § 52 may be shown by parol proof. ^^ Of course, the possession of the deed by the grantee is always prima facie proof that it was delivered to him at some time since its execution.^*" As to a deed of parti- tion, retention by a grantor is not proof of nondelivery, as every grantor is also a grantee.^"" § 52. ' Escrows. The consideration of what is, and what is not, an escrow, is insep- arable from that of modified or doubtful delivery of deeds in general. Where a deed is put into the hands of a third person, with directions to deliver it to the grantee after the lapse of a given time, or upon the happening of such a contingency as the grantor's death, this is not, strictly speaking, an escrow. The direction must be to deliver the deed upon the performance of a condition, the most usual being the paj-ment of the whole or of part of the purchase money, or the doing of some act desired by the grantor. The deed of the first kind is "deemed the grantor's deed presently. Still it will not take effect as a deed until the second delivery, but when thus delivered it relates back to the first delivery." ^°^ But the real escrow takes "8 Parke v. Neely, 90 Pa. St. 52; Ford v. Gregory's Heirs, 10 B. Mon. (Ky.)- 17.1, 180; Hall v. Benner, 1 Pen. & W. (Pa.) 402; Wood v. 0.wings, 1 Cranch, 239 (the Maryland act of 1766 has other requisites for passing the estate, but the deed is delivered without these); Pawling v. U. S., 4 Cranch, 219 (where several grantors execute at different dates, the last shows the delivery) ; Rob- inson V. Wheeler, 25 N. Y. 252 (date of deed, not of lodging for record) ; Duke of Cumberland v. Graves, 7 N. Y. 308, and People v. Snyder, 41 N. Y. 397 (nor even the date of acknowledgment); Purdy v. Coar, 109 N. Y. 448, 17 N. E. 352. But in Van Rensselaer v. Vickery, 3 Lans. (N. Y.) 57, it was thought that the date of canceling the revenue stamps on the deed was most prob- ably that of delivery. Contra, Loomis v. Pingree, 43 Me. 299 (date of ac- knowledgment). 1*0 Kille V. Ege, 79 Pa. St. 15 (the presumption is strengthened by acknowl- edgment and recording); Critchfield v. Oritchfield, 24 Pa. St. 100 (though thus strengthened may be rebutted); Strough v. Wilder, 119 N. Y. 530, 23 N. E. 1057. But possession alone is proof. Roberts v. Swearingen, 8 Neb. 371, 1 N. W. 305; Molineux v. Cobum, 6 Gray, 124. 150 Smith V. Adams, 4 Tex. Civ. App. 5, 23 S. W. 49. 151 Chief Justice Shaw in Foster v. Mansfield, 3 Mete. (Mass.) 414; quoted' by Sharswood, J., in Stephens v. Rinehart, 72 Pa, St 434, 440, and by the (3G5) § 52 LAND TITLES IN THE UNITED STATES. [Ch. 5 effect, for all purposes, from the second delivery only, — that is, from that by the third person to the grantee, after condition performed, — and would, at law, be defeated by any intermediate grant or incum- brance.^^^ The intervention of a third person is required, to make an es- crow.^^^ A deed cannot be delivered on condition to the grantee or to his agent. Such a delivery would pass the estate at once,"* though we have seen that a deed might be handed to: the grantee for inspection only, and that this would not amount to delivery. And if the deed is incomplete on its face (that is, if it lacks the seals or signatures of parties named in it as signers or grantors), the posses- sion of the deed may have been given to the grantee in order to en- able him to obtain their signatures; and, when these are still lack- ing, proof would be admissible that such was the unfulfilled purpose court of appeals of New York in Hathaway v. Payne, 34 N. Y. 92, 105; actu- ally applied in Ruggles v. Lawson, 13 Johns. 285 (deed for love and affec- tion of A. to his son, to be delivered to C. in case A. should die without will. He died so, and deed delivered. Held to be valid from first delivery); Tooley V. Dibble, 2 Hill, 641 (on similar facts, the quitclaim deed of the son during father's lifetime held to pass the title. These follow the older cases of Wheelwright v. Wheelwright, 2 Mass. 447, and Belden v. Carter, 4 Day (Conn.) 66. The distinction between "contingency" and "condition" is deemed rather thin in Kent's Commentaries, and is discountenanced by the supreme court of Wisconsin in Prutsman v. Baker, 30 Wis. 644. 152 Ford V. James, *43 N. Y. 300; Stanton v. Miller, 58 N. Y. 192, 201; Dag- gett V. Daggett, 143 Mass. 516, 10 N. E. 311. See Kent's review of the cases of Taw V. Bury, 2 Dyer, 167b; Alford and Lea's Case, 2 Leon. 110; and Butler and Baker's Case, 3 Coke, 26b (4 Comm. 455, 456, note). The deed deliverable on contingency was given immediate effect in Toole v. Dibble, 2 Hill (N. Y.) 641, so as to support the grantees' grant. 153 But where grantor hands a deed to grantee, with the understanding that he will hand it over to the agreed depositary to hold as an escrow, he cannot hold it as validly delivered. Gilbert v. North American Fire Ins. Co., 23 Wend. 43. 154 Duncan v. Pope, 47 Ga. 445— (an extreme case, where the deed was delivered to an attorney representing an infant of tender years); Chen-y v. Herring, 83 Ala. 458, 3 South. 607; Flagg v. Mann, 2 Sumn. 486, Fed. Gas. No. 4,847 (arguendo); Miller v. Fletcher, 27 Grat. (Va.) 403; Arnold v., Patrick, 6 Paige, 310; Frost v. Beekman, ubi supra; Worrall v. Munn, 5 N. Y. 229. But where the seller of land intrusted his deed to one of a committee of a coi-poration, to be delivered on payment of the price, a delivery without pay- ment was held ineffectual. Rhodes v. School District, 30 Me. 110. (366) Ch- 5] TITLE BY GRANT. § 52 of the possession given, and tliat it does not amount to a true deliy- The conditions upon which an escrow is to be delivered may be set down in writing, or may be spoken, or partly written and partly spoken.^"* This state of the law is unfortunate, in so far as it makes the title to land, notwithstanding the statute of frauds, rest in pa- rol."' The use of the word "escrow," or of any formal set of words, is not essential to make the deed an escrow.* °* Where the grantor has deposited a deed with a common agent of both parties, to be delivered to the grantee without condition, he cannot impose condi- tions afterwards; and, when he has so delivered it upon conditions agreed between them, he cannot thereafter annex other conditions.*'"' But, where the conditions are inconsistent with the deed, — for in- stance, that a deed reciting payment in money should be delivered in return for notes and a mortgage, — it would seem that an agree- ment by words of mouth cannot be proved, as against the deed, and that the grantor would be at liberty to countermand his directions. *"' And in some of the cases it is intimated that the delivery of a deed to the grantor's own ordinary agent (e. g. his lawyer) is no delivery at all, even so as to make it an escrow, and leaves the paper within the grantor's control.*'* And, of course, if the grantor alone, or both 166 Hicks V. Goode, 12 Leigh (Va.) 479, and other cases in same state down to Wendlinger v. Smith, 75 Va. 309; Shelby v. Tardy, 84 Ala. 387, 4 South. 2T6. 156 Gregory v. Llttlejohn, 25 Neb. 368, 41 N. W. 253; Ayres v. Milroy, 53 Mo. 518; Pepper v. State, 22 Ind. 399. 167 A regret for this state of the law Is expressed by the supreme court of the United States in Pawling v. U. S., 4 Cranch, 219. 158 Abbott, C. J., in Murray v. Stair, 2 Bam. & C. 87, exploding the state- ment to the contrary in Sheppard's Touchstone; followed in White v. Bailey, 14 Conn. 274 ("many people don't know what the word 'escrow' means"). See, also, Jackson v. Catlin, 2 Johns. 248, 259; Clark v. Gifford, 10 Wend. 310. 169 Blight v. Schenck, 10 Pa. St. 285, quoting Doc d. Lloyd v. Bennett, 8 Car. & P. 124. 160 Campbell v. Thomas, 42 Wis. 437 (the deed under such circumstances is not an escrow, but undelivered); Fitch v. Bunch, 30 Cal. 208 (the deed may be recalled from depositary, when the conditions are not fully agreed on). But where the condition is in accordance with the deed (e. g. to pay cash, where the deed calls for cash), the escrow is In-evocable. Cannon v. Handley, 72 Cal. 133, 13 Pac. 31.5. 161 Wier V. Batdorf, 24 Neb. 83, 38 N. W. 22. The iiiling Is rather hareh, (3C7) § 52 LAND TITLES IN THE UNITED STATES. [Ch. & grantor and grantee, reserve any control, there is no escrow.^"^ There are exceptions to the rule that an escrow takes effect only from the second delivery. Should the grantor die, or fall under dis- ability (e. g. a feme sole marrying) before conditions performed, and it be thereafter fulfilled in good time, the fiction is indulged in that the deed was actually delivered while the grantor was alive and free from disability; and the escrow is, in such cases, said to refer back to the first delivery. But this fiction must not work injustice; that is, it cannot override such conveyances, leases, or incumbrances as have been made in good faith in the meanwhile. Its only purpose is to evade the technical objection that the dead or disabled grantor cannot deliver the deed.^*^ A substantial compliance with the condition is generally deemed good enough to justify delivery, and to pass the title. At all events, if the grantee fulfills his own part of the conditions imposed, the deed belongs to him by right, though the grantor and the depositary have failed to do their part.^°* And it has been maintained by some courts of last resort that, upon the compliance of the grantee with the conditions, the deed is his, and the title passes, whether it be actually delivered to him by the depositary, or not, — a somewhat in- convenient doctrine, which enlarges still further the dependence of land titles on the memory of witnesses.^'^ On the other hand, should and not well sustained by authority. If grantor and grantee agree on a depositaiy, it can matter but little that he is usually the business agent of one or the other. 162 James v. Vanderheyden, 1 Paige, 385. 163 Kent, Comn\., as in note 151; discussed In Frost v. Beelsman, 1 Johns. Ch. 288, and in Simpson v. McGlathery, 52 Miss. 723. In Whitfield v. Harris, 48 Miss. 710, a judgment lien between first and second delivery was cut out. Contra, Jaciison v. Rowland, 6 Wend. 666, where an intermediate execution or attachment was preferred. See, also, Ruggles v. Lawson, 13 Johns. 285 (not a true eso-^w); Jackson v. Catlin, 2 Johns, 248, on error, 8 Johns. 120,— which cases follow Wheelwright v. Wheelwright, supra; Quick v. Milligan, 108 Ind. 419, 9 N. E. 392; Ware v. Smith, 62 Iowa,. 139, 17 N. W. 459. 164 In Frost V. Beekman, supra, the conveyance was to be delivered when mortgage for purchase money "is executed and recorded." The mortgage was •correctly drawn and lodged for record, but incoiTectly registered, to mort- gagee's loss. Held, that the escrow was rightly delivered. BIston v. Cham- berlain, 41 Kan. 354, 21 Pac. 2, 9. 165 White Star Line Steam-Boat Co. v. Moragne, 91 Ala. 610, 8 South. 867, (3U8) Ch. 5] TITLE BY GRANT. § 52 the depositary hand the deed over to a grantee who has not complied ■with the conditions, this would not be a good delivery. The posses- sion of the deed by the grantee would be deemed surreptitious, and, strictly speaking, no estate passes to the grantee, and none can be conferred by him, even on purchasers in good faith.^^' It is to avoid such mischievous results that not only a substantial compliance is deemed sulScient, but that in the case of escrows the courts have, in many states, relaxed, or even abandoned, the rule as to "surrepti- tious" possession of the deed, as running counter to the policy of let- ting land titles depend on the public record; and this may be justi- fied on the ground that the seller of lands, who intrusts his deed to a third person for delivery, may be deemed guilty of laches when he chooses a depositary who does not obey his instructions.^ °^ Where the deed recjuires for its validity the signature and acknowl- edgment of husband and wife, the husband, having possession of the deed with the wife's consent, may, without her co-operation, deliver it as an escrow, and make out a statement of the terms on which it may be delivered; and this will be binding, and cannot be recalled by either.^"* The title to the land (that is, the question whether the grantee has or has not complied with the conditions of the escrow) should not be tried in an action of replevin for the possession of the paper deed.^°° Should it, however, be adjudged in such an action, without an issue having been tried involving the right to the land, the un- successful party would not be prejudiced in an ejectment or writ of where this is claimed to be the "better opinion," quoting Shirley v. Ayres, 14 Ohio, 307; Prutsman v. Baker and Simpson v. McGlathery, supra; and Campbell v. Larmone, 84 Ala. 499, 4 South. 593,— which hardly bear out the position here taken. The case is at best a dictum, as there was in fact no compliance. 166 See preceding section, note 143; several of the cases there cited being of escrows improperly handed over. 167 Quick V. Milligan, 108 Ind. 419, 9 N. E. 392 (where the grantee received his' deed improperly, and had also possession of the land); Simson v. Bank of Commerce, 43 Hun, 156. 16S Hughes V. Thistlewood, 40 Kan. 232, 19 Pac. 629. 160 Knopf V. Hansen, 37 Minn. 215, 33 N. W 781. Secus, where purchaser has notice, he is bound by the validity or tJie fajlm-o of the escrow. Conneau V. Geis, 73 Cal. 176, 14 Pac. 580. LAND TITLES V.l 24 (369) § o'd LAND TITLES I.\ THE UNITED STATES. [Ch. ■"> entry for tlie land itself/^" But it is quite usual to sue in chancery (or by analogy to a bill in chancery) both for the delivery of the deed and the land, making both the grantor and the depositary defendants to the suit.^^1 § 53. .Deeds by Married "Women. Until 1848 the only way for a married woman to convey lands was to join in a deed with her husband, except where she was empowered to convey as executrix, or otherwise, as the donee of a power in a deed or will,^^'' or where she held a "separate estate," within the meaning of the usage in equity, which separate estate itself (to be treated elsewhere) was derived from the doctrine of powers. Ex- cept in Massachusetts, Maine, New Hampshire, Vermont, Connecti- cut, and South Carolina, an acknowledgment of the deed by husband and wife was also requisite, the acknowledgment of the latter to be made on privy or separate examination. And, where the older American rule prevails, it seems that the married woman cannot even execute a mortgage for the purchase money of land just con- veyed to her, without the husband's assent, notwithstanding the strong equity of the vendor.^" And, as her warranty and covenants of title are void, her joint deed, where she is still under disabilities, would not carry her after-acquired title.^^* But in 1844 the legis- lature of Maine set on foot a movement for giving to married women the same power of disposition over all their property which the courts of equity had long recognized in so-called "separate estates." New York followed with her acts of 1848 and 1849, and many other states have fallen into line. When a wife could act without her husband, she could no longer pretend to stand in fear of him; and the sep- arate or privy examination, imitated from the "fine" in the old Eng- lish practice, was no longer deemed necessary by the states which 170 Flannigan v. Goggins, 71 Wis. 215, SO N. W. 846. I'l Daggett V. Daggett, 143 Mass. 516, 10 N. E. 311. 172 Sugd. Powers, 148-155; 4 Kent, Comm. 22-t; Jackson v. Edwards, 7 Paige, 386, affirmed 22 Wend. 498; Wetheiill v. Mecke, Briglitly (Pa.) 135; Tyree v. Williams, 3 Bibb (Ky.) 368; even where the power results from a secret trust, Gridley v. Wynant, 23 How. 500; Gridley v. Westbrook, Id. 503. I" Concord Bank v. BeUis, 10 Gush. 277. "4 Wight V. Shaw, 5 Gush. 56. (370) ^^' 5] TITLE BY GRANT. § 53 gave her the powers of an unmarried woman over all hor jtroperty, and this formality was abolished even in many of the states which still require the husband's joinder in the wife's deed of her own es- tate. The Maine act of 1844 only took from the husband his marital rights in the wife's property. The wife's power of disposition fol- lowed in 1861. In some states the husband's curtesy or analogous rights (in Ohio, his dower) cannot be taken from him without his concurrence. l'.ut, as far as her own estate goes, so as to bar herself and her heirs by blood, she can now, without the husband's assent, pass the title in the following states, since the times indicated, for the enactment of the law, marriage, or acquisition of the property : In Alabama, thougii all the property of the wife, whether held before or acquired after marriage, is by the Code called "separate,'" yet the husband must join in her deed.^'^ In Arkansas as to all property acquired since Xovember 1, 1874, and since March, 1891, as to all property, until which time the joining of the husband and an acknowledgment on privy examination were deemed necessary as to lands acquired be- fore the flrst-named date.^'° In Colorado since 1861.^^' In Dela- ware since April, 1873, more fully since 1877.^^' In Connecticut for parties who have married since April 20, 1877, or have by record entry submitted to the new regime."^ In Georgia since 1860; cer- tainly since the constitution of 1808.^*° In Illinois since July 1, 1874; privy examinations abolished July 1, 1872.^'^ In Kansas since Oc- 115 Code, §§ 2341, 2348. See, for exceptions, below. 176 Const. ISliS, art. 12, § G, clogged by a requirement of registi-ation of the wife's separate property. Again, Const. 1874, art. 9, § 7; Dig. §§648, G5H, however require the husband's joining and a privy examination, and it is held that the constitution is only prospective as to property acquired thereafter. Roberts v. AVilcoxson, 30 Arli. 355; Ward v. Ward, Id. 586. An act of 1891 has dispensed with the privy examination. 1" Section 198. I'sis Del. Laws, c. 105, § 1, amended by chapters 464, 465, 467 of same volume. The first-named act turns all property of a married woman into separate estate. i7» Gen. St Conn. 1888, § 2790, refen'ing to Acts 1877, c. 114. Section 27!)(i makes land bought with the proceeds of her personal services her separatn estate. 180 See HufC v. Wright, 39 Ga. 41; Code, § 1754 (1744). 181 Rev. St. c. G8, § 9, and Id. c. 30, § 20. (371) § 53 LAND TITLES IN THE UNITED STATES. [Cll. 5- tober 31, 1868."= In Maine, where parties have married since April, 1861 ; but lands held by gift from the husband, or by gift or devise from his kindred, are still excepted."' In Massachusetts since 1874."^ In Michigan since April 20, 1877."° In Mississippi since 1870."* 182 Gen. St. 1889, pars. 3752, 3753, being sections 1, 2, of act of above date. The "homestead" can be conveyed or leased only by joint deed. Const. Kan. art. 15, § 9. See hereafter, under "Homestead." 183 Rev, St. c. 61, §§ 1, 2. By chapter 73, § 14, the joint deed of husband and wife conveyed her property, in which he has an interest She may, without the husband's consent, convey land which he has given her before marriage. Reed v. Reed, 71 Me. 156. The old law excepted land directly or indirectly con- veyed by the husband, or given or devised by one of his relatives. Under the act of February 12, 1889, only lands conveyed to the wife directly by the husband are withdrawn from her powers. 184 Pub. St. c. 147, § 1, re-enacted from Acts 1874, c. 184, § 1 (she cannot impair husband's curtesy). Before 1864 the wife could only with the hus- band's assent in writing convey her separate real estate; that is, any land in which he had no interest other than as a husband. This assent could be given informally, in a way which would not have sustained a joint deed. Hills v. Bearse, 9 Allen (Mass.) 403. Even a signature as attesting witness is enough (Child V. Sampson, 117 Mass. 62) or guarantying a note reciting that it is secured by the wife's mortgage (Cormerais v. Wesselhoeft, 114 Mass. 550). 185 Act April 20, 1877, now section 5G62 of the Annotated Statutes, which re-enacts and validates an act of April 22, 1875, which would have come into force August 3, 1875, but was perhaps void for a flaw in its title. It provides for married women the same form of acknowledgment as for others. How. Ann. St § 6295. The constitution of 1850, in securing to man-ied women their property, did not empower them to convey it without assent of husband. Brown v. Fifield, 4 Mich. 322. Under the act of February 18, 1855, the married woman may convey without husband, and without acknowledg- ment Durfee v. McClurg, 6 Mich. 223, 232 (it was the assignment of a mortgage), and may mortgage her land for husband's debt Watson v. Thurber, 11 Mich. 457. In Burdeno v. Amperse, 14 Mich. 91, and Ransom v. Ransom, 30 Blich. 328, it is held that since 1850 the husband can convey directly to the wife, and intimated that she might in like manner convey to him. The privy examination was abolished by an act of April 22, 1875, in force August 3, 1875, of doubtful validity, but ratified by act of April 20, 1877, now sections 5G62, 5662a, Ann. St 186 The constitution under which Mississippi resumed her place in the Union guaranteed equal property rights to men and women, power being reserved to the legislature to regulate the conveyance of homestead. See hereafter, under "Title by Marriage," section on "Conveyance of Homestead." (372) Ch. 5] TITI.E BY GRANT. § 53 In Nebraska since June 1, 1871."^ In Nevada, as to other than community property, since March 10, 1873.^^* In New York pro- gressively under the acts of April 7, 1848, of April 11, 1849, March 20, 1860, April 10, 1862 (the husband's assent being required between the two last acts).^*» In North and South Dakota since 1877, but 1ST Consol. St. § 1412, part of sections 1411-1416, which comprise "An act concerning married women" (Acts 1871, p. 68). Married woman may mort- gage her property for debt of husband (Stevenson v. Craig, 12 Neb. 468, 12 N. W. 1)' but there must be a consideration, not for an antecedent debt, unless there be such (Kansas Manuf 'g Co. v. Gandy, 11 Neb. 448, 9 N. W. 569. 188 Gen. St. § 507. The separate property must be inventoried in the man- ner pointed out in sections 501-503. The power of the wife over her separate property is treated in Cartan v. David, 18 Nev. 310, 4 Pac. 61; Kiel^ards v. Hutchinson, 18 Nev. 216, 2 Pac. 52, and 4 Pac. 702. 189 Act 1848, c. 200, by section 1 makes the property of all females marry- ing thereafter "sole and separate" property; by section 2 makes all property of women already married "sole and separate," except as to liability for hus- band's antecedent debts; by section 3 enables a married woman to receive land from all othei's but her husband by gift, grant, devise, or bequest, and hold it as sole and separate. This section is amended by the act of 1849 (chap- ter 375) by adding the words "by inheritance," thus making all subsequent acquisitions her "separate property" as if she were unmarried, except what she might earn in business. The act of March 20, 1860 (chapter 90) directs that all property which a man-ied woman "now owns," and that which comes to her by descent, devise, gift, or grant, or which she acquires by trade, busi- ness, labor, or service, shall be her sole and separate property; and she may bargain, sell, and convey it, but only with the consent in writing of her hus- band, or by order of the supreme com-t These restrictions were removed by the act of April 10, 18G2 (chapter 172). In Yale v. Dederer, 18 N. Y. 265, 271, Is a dictum that the acts of 1848 arid 1849 make the wife's deed good without privy examination, or the husband's assent; followed by direct decision in Wiles V. Peck, 26 N. Y. 42. But these laws were held unconstitutional, as robbing the husband of vested rights as to property acquired by the wife be- fore passage, Westervelt v. Gregg, 12 N. Y. 202; also Ryder v. Hulse, 24 N. Y. 372 (where the wife, after 1849, attempted to bequeath effects which she had acquired before that time, and in which it was held the husband had vested rights); but valid as to property afterwards acquired by women mar- ried before the acts, Thurbu v. Townsend, 22 N. Y. 517. The consent required by the act of 1860 need not be given by joining in the conveyance, but, if given at any time, will validate the deed. Wing v. Schramm, 79 N. Y. 619, affirming s. c. 13 Hun, 377. The acts do not authorize a deed from the wife to the husband. White v. Wager, 25 N. Y. 328; Winans v. Peebles, 32 N. Y. 423 . Among late acts in this direction is that of Florida of May 31, 1893, by which a wife can convey her land by herself, when the husband has been insane, or been declared insane, for one year; and of Minnesota, of April 20, 1891, when the husband has been insane for three years; and the Alabama act of 1887, No. 41, where the husband is non compos, has abandoned the A^ife, or been convicted and sentenced for two years or more of hard labor. 2 IK Gaston v. Weir, 84 Ala. 193, 4 South. 258. Under the Massachusetts act of 1887 the husband can thus give his assent. Chapman v. Miller, 128 Mass. 269. He can assent to a mortgage by guaranteeing the note. Child v. Samp- son, 117 Mass. 63. 220 See "Texas Titles" in next chapter. Ballard v. Carmichael, 83 Tex. 335^ 18 S. W. 738. 221 Bullock V. Grinstead, 95 Ky. 261, 24 S. W. 867. (378) Cl>- 5] TrtLE BY GRANT. § 54 Where the statute empowers a married woman to convey her own property, or to release her dower, with or without her husband, with or without a separate examination and acknowledgment, it does not follow, by any means, that she can appoint an attorney to make such a conveyance in her behalf. Some of the modern statutes are indeed so broad, in the removal of all the disabilities of coverture, that the capacity to act by attorney would follow. But, under the statutes which impart only certain rights, that of making an attorney is n3ver implied; and the older statutes of conveyances either confer this power on all or on some married women (e. g. on nonresidents) in separate clauses, or they are understood to withhold it altogether. Hence, "powers of attorney by married women" must be discussed along with Letters of Attorney. § 54. The Privy Examination. In the states not excepted in the preceding section, even now (and in most of those there named within times recent enough to bear up- on the land contests of the future) the deed of a married woman, in order to pass the title to her own estate, or to relinquish her dower in that of her husband, is not fully executed until the feme has been examined separate from her husband and the contents of the in- strument made known to her, and until she has thereupon acknowl- edged it to be her free act and deed, and, in some states, has de- clared "that she does not wish to retract it" or "consents that it be recorded," and until these facts are certified on the deed by the of- ficer taking the acknowledgment. The wording of the statutes dif- fers considerably, the oldest being generally the fullest, guarding against "coercion or compulsion" of the husband, or his undue influ- ence or threats of displeasure; and "separate" is sometimes bet- ter defined as "without the hearing of her husband." The oldest of the statutes that are still in force is the- colonial act of Pennsylvania of February 24, 1770. Under it, the husband and wife were to appear before a judge of the supreme court or jus- tice of the county court of common pleas (other officers in and out of the state were afterwards added), and to acknowledge the deed, in doing whereof the judge or justice shall "examine the wife sepa- rate and apart from her husband, and shall read or otherwise make (379) § 51 LAND TITLES IN THE UNITED STATES. [Ch. 5 known to her the full contents of such deed ; and if, upon such privy examination, she shall declare that she did voluntarily, and of her own free will and accord, seal and deliver said deed, without coercion or compulsion of her husband," the deed is to be valid. The justice must be of the court of the county in which the land lies.^^^ The Virginia act of 1785 is, in some of its features, still in force in Ken- tucky, and prevailed for a long time in Virginia and West Virginia; Tjut the county clerk or his deputy was, after a few years, substituted for the county court, composed of all the justices, in which anciently the deeds of Virginians were acknowledged or probated, and ordered to record. Under this act of 1785, the deed being sealed and deliv- ered by husband and wife, and the latter having been "examined privily and apart from her husband," she must "declare to him (the justice) that she did freely and willingly seal and deliver the said writing, to be then shown and explained to her, and wishes not to retract it," or, when the acknowledgment is taken elsewhere than in the presence of the recording court, she "consents that the same may be recorded." In the later Kentucky statute, it is made the duty of the officer "to explain to her the contents and effect of said deed." "' This phrase, "and wishes not to retract the same," is also required by the laws of Rhode Island, Texas, Idaho, and Arizona, and by those until 1891 in force in California; while North Carolina has the equivalent words "and does still voluntarily consent thereto"; while Tennessee, Delaware, and New Jersey use no words of like import."* 222 Brigbtly's Purd. Dig. p. 568, "Deeds and Mortgages," pi. 22. 223 Kentucky, Morehead & B. St. p. 432; Virginia, 12 Hen. St. 154, amended from colonial act of 1748 (Morebead & B. p. 429); Virginia, 5 Hen. St. 408. The present Kentucky law (Gen. St. c. 24, § 21) requires that the officer, before takmg a married woman's acknowledgment, should "explain to her the con- tents and effect of the deed, separate and apart from her husband"; and, "if she freely and voluntarily acknowledges the same, and is willing for It to be recorded," he shall certify it, if he be a clerk within the state, in general terms, compliance with the law being presumed; if an officer outside of the state, he must state these facts in a mode prescribed, winding up "and con- sented tliat the same might be recorded." As to the husband, the deed may t)e proved by witnesses. 224 "She shall be examined privily and apart from her husband, and shall declare to the officer that the deed or instrument shown and explained to her, «tc., is her volimtary act, and that she does not wish to retract the same." (380) Ch. o] TITLE BY GRANT. § 54- The forms that were formerly in use in Ohio, New York, Illinois, Maryland, Michigan, Wisconsin, Arkansas, and Missouri, may still have a bearing on present questions of title. It is thought best tO' refer, in a note, either to the requirements of the law or to the Rliode Island, Pub. St. c. 1G6, § 8. "And upon an examination without the hearing of her huEhand, 1 made her acquainted with the contents of the within instniment, and thereupon she acknowledged to me that she executed the same and does not wish to retract such execution." Idaho, Rev. St. 1887, §§ 2922, 2956. "And having been examined by me privily and apart from her' husband, and having the same fully explained to her, she the said * * * acknowledged the same to be her act and deed, and declared that she had will- ingly signed, sealed and delivered the same, and that she wished not to re- tract it;" or any certificate substantially showing these facts. Texas, Rev. St. art. 4310. "Personally appeared * * *, known to me (or proved to me on the oath of * * *) to be the person whose name is subscribed to the- within instrument, described as a married woman, and upon an examination without the hearing of her husband I made her acquainted with the contents of the instrument, and thereupon she acknowledged to me that she executed the same, and that she does not wish to retract such execution." Cali- fornia, Civ. Code, § 1191. "And * • *, -svife of the said • * *, hav- ing appeared before me privately and apart from her husband, the said • * * acknowledged the execution of the said deed to have been done by her freely, voluntarily and understandingly without coercion or restraint from' her said husband, and for the purposes therein expressed." Tennessee, Code, § 2891. "And the said * * * being by me privately examined, separate an* apart from her said husband, touching her voluntary execution of the same, doth state that she signed the same freely and voluntarily, and without fear- er compulsion of her said husband, or any other person whatsoever, and does still voluntarily consent thereto." North Carolina, Code, § 1246. "And the said * * * being at the same time privately examined by me apart from her said husband, acknowledges that she executed the said indenture willingly, with- out compulsion or threats or fear of her husband's displeasure." Delaware,. Rev. Code, c. 83, §§ 4, 9. "And the said [wife] being by me privately ex- amined, separate and apart from her husband, further acknowledged that she signed, sealed and delivered the same as her voluntary act and deed, for the uses and purposes therein expressed." New Jersey, Revision, p. 154, "Convey- ances." § 9. In Arizona (for deeds of homestead) : "Before me personally ap- peared • * *, wife of » * *, known to me (or proved to me by oath of ) to be the person whose name is subscribed to the foregoing instrument, and having been examined by me privily and apart from her husband, and having the same fully explained to her, she acknowledged such instrument to be her act and deed and declared that she had willingly signed the same for- the purposes and consideration therein expressed, and that she did not wish to- (381) § 54 LAND TITLES IN THE UNITED STATES. [Oh. 5 forms."'' The statutes on the acknowledgment of deeds have many provisions applicable to all persons alike, as much to married women as to others, such for instance, as the declaration required, by many states, of the magistrate that he knows the grantor personally. retract it." Arizona, Rev. St. § 2.:iS3, taken from Arkansas form. In Wyo- m'ug, § 2784 (homestead deeds only), tlie officer must "further certify that * * * wife of said * * * was by me first examiaed, separate and apai-t from her sai3 husband, in reference to the signing and acknowledging of the foregoing deed, that she was fully apprised by me of her right and the effect of signing and acknowledging the same, and that while separate and apart from her husband she did sign the said deed and did acknowledge that she freely and volun- tarily signed and acknowledged the same for the uses and purposes therein set forth." In the District of Columbia as to dower or jo:nt deeds: "And the said * * *, wife of said * * *, being by me examined privily and apart from her husband, and having the deed aforesaid fuUy explained to her, acknowl- edged the same to be her act and deed, and declared that she had willingly signed, sealed and delivered the same, and she wished not to retract it." Rev. St. U. S. District Laws, § 451,— before that the Maryland form under the co- lonial act of 1765 was in force. In Alabama, as to the homestead (though even the acknowledgment of a common deed recites that, "being informed of the contents," husband and wife executed the conveyance "voluntarily"), the officer must certify: "Came before me the within named * * *, known to me (or made known to me) to be the wife of the within named * » *, who being examined separate and apart from the husband, touching her signature to the within [deed] acknowledged that she signed the same of her own free wiU and accord, and without fear, constraint or threats on the part of her husband." Code, § 2508. 225 In, Ohio, after the general acknowledgment of husband and wife, the cer- tificate would proceed: "And the said • * * vrife of said * * * being examined by me separate and apart from her said husband, and the contents of said instrument being by me explained and made known to her as the statute directs, did declare that she did voluntarily sign and acknowledge the same, and that she is still satisfied therewith as her act and deed." The Re- vised Statutes have this provision, going back to Acts of 1805, 1820, and 1827, referred to in notes to section 4 of this chapter. In New York the Revised Laws of 1813 and Revised Statutes of 1829 (part 2, c. 3, § 10) required only resi- dent wives (nom-esidents being by the next section allowed to acknowledge like feme soles) to acknowledge "on a private examination apart from her husband, that she executed such conveyance freely and without any fear or compulsion of her husband"; being a substantial re-enactment of Colonial Laws of 1771 and 1773. In Maryland the examination was governed by Co- lonial Acts of 1715 and 1765. Then, by an act of 1830, lintil the married woman's act of 1S58, embodied in the General Public Laws of 1889 as article (382) Ch. 5] TITLE BY GRANT. § 54 While the neglect of such a provision in the certificate might ren- der the deed of a man or of a feme sole only unfit for being recorded, it must defeat the deed of a married woman entirely wherever a cer- 45, § 2, it was required that a judge or justice should "examine her out of the presence and hearing of her husband whether she doth execute and aclinowledge the same freely and voluntarily and without being induced to do so by fear or thi-eats of or ill usage by her husband or by fear of his dis- pleasure, or to that eftect; and she must sign and seal such deed before such judge or justice and he must endorse and annex a certificate," etc. At pres- ent the certificate of acknowledgment only requires that the grantors should be named as "* • • and * * *, bis wife." Under the former law of Mis- sissippi the feme had to acknowledge on "a private examination, separate and apart from her husband (betore a judge or justice authorized, etc.), that she signed, sealed, and delivered the same as her voluntary act and deed, freely and without any fear, threats, or compulsion of her husband." Mississippi, Laws 1840, c. 34, § 19; Rev. Code 1871, § 2315. The Michigan acts regulating acknowledgment by married women are the territorial acts of August 29, 1805, re-enacted April 12, 182T, Rev. St. 1838, pp. 258, 263,— "separately and apart ft-om her husband she declared that she executed the deed without any fear or compulsion of her husband"; April 1, 1840, embodied as chapter 65, § 12, in Rev. St. 1846, — "Without fear or compulsion from any one." See note to present Annotated Statutes (section 5G62). The ofilcer cannot make his ex- amination through an interpreter. Dewey v. Campau, 4 Mich. 565. Substan- tially thef same form as In Michigan was used in Wisconsin and Iowa as long as separate acknowledgments were used in those states. In Arkansas the acknowledgment of the wife is taken by her "voluntarily appearing before the proper court or officer, and in the absence of her husband declaring that she had of her own free will executed the deed or instrument in question (or had signed the relinquishment of dower) for the purposes therein contained and set forth, without compulsion or undue influence of her husband." Dig. 1884, §§ 648, 659. In Missouri the act of 1825 (section 12) required the married woman to appear before a court of record; that of 1845 (sections 34, 37) be- fore a court, judge, clerk, justice, or notary. The latter act is contained in the Revision of lS-">r>, p. 363. She must be known or proved by two witnesses to the court or officer to be the person, etc., and "such court [or judge, etc.] shall make her acquainted with and explain to her the contents of such deed * * ♦ and examine her separately and apart from her husband," etc., "and if such woman shall, upon such examination, acknowledge such deed," etc., "that she executed the same voluntarily, freely and without compulsion or undue influence of her husband and does not wish to retract it," it shall be certified. Justice may take the acknowledgment under Laws 1855; Mitchell V. People, 46 Mo. 203, overruling West v. Best, 28 Mo. 551. The Illinois forui was, under the act of 1833, literally the same as what was required as above stated in Missouri. (38^]) § 54 [.AND TITLES IN THE UNITED STATES. [Ch. 5 tiflcate of acknowledgment is deemed an essential part of a mar- ried woman's deed.^^* As to the facts that make up the privy examination and acknowl- edgment, the better opinion is that the certificate cannot be eked out by parol proof when it is defective,^^' nor contradicted by parol proof when it is in proper form and covers the whole ground. And it seems that only in obedience to curative acts (of which hereafter) has parol evidence been allowed to eke out a defective certificate. In California, also, under a former law which allowed the officer to amend his certificate under orders of the county court, or a law now in force (though the separate examination is no longer used) allow- ing the district courts under their equity powers to correct the cer- tificate, it is said that the wife's deed is fully executed by her ac- knowledgment, — not, as formerly, when a good certificate was writ- ten out.^^* In Missouri, it was held that the certificate may be con- tradicted, being only prima facie proof of the facts stated; and such was the rule in Minnesota from an early day, under the express provision of the statute.^^" In Kentucky, since the Revision of 1852 2 26 Thus, in Tennessee, the omission of the words, "who is known to me as such." concerning the female grantor, rendered her deed void. Garnett v. Stockton, 7 Humph. (Tenn.) 84. The older cases on the requisites of a valid deed by a mnvried woraan are gathered in Heaton v. Fryt)erger, 38 Iowa, ISi 227 Thus, where blanlis had been left for the names of the husband and wife (Meri'itt v. Yates, 71 111. 63G), the deed was void; and an amendment made by the justice post litem motam was held unavailing. But, where the names had been inserted where they first occur, leaving the subsequent blanks, referring to them, unfilled, the certificate will be good (Donahue v. Mills, 41 Ark. 421). 22 8 California, Civ. Code, § 1202; Wedel v. Herman, 59 Cal. 507 (certificate reformed). But not in the absence of such a statute. Barnett v. Shackelford, 6 J. .1. Marsh. (Ky.) 532; Still v. Swan, Litt. Sel. Cas. (Ky.) 156; Elliott v. Peirsol, 1 Pet. 338; Jourdan v. Jourdan, 9 Serg. & R. 268. 229 Wannell v. Kem, 57 Mo. 478, where the magistrate had at first written a plain acknowledgment, and long afterwards added the privy examination, the jury were justified in believing the grantor's testimony in contradiction. In this case the grantee was not allowed to prove that the female grantor knew the contents of the deed without having them explained. In Dodge v. HoUinshead, 6 Minn. 25 (Gil. 1), the acknowledgment by the feme is said to be as material as the signature. In Hughes v. Lane, 11 111. 123, a very defective certificate was allowed to pass muster on the ground that the feme might show by parol that the examination was not carried on according to law. (384) ^h- 5] TITLE BY GRANT. § 54 county clerks within the state need no longer write out the facts, the law assuming that they, being acquainted with its requirements, would act accordingly; and when they certify that a grantor who is the wife of a cograntor has acknowledged a deed, it is evidence that she has done so in the prescribed way. It was held that this evidence is not conclusive, but may be met by proof. This doctrine was carefully limited by later decisions; "° and, under the Revision of 1873, the certificate can only be assailed for fraud in the grantee or mistake in the clerk.^^^ And so, in Tennessee, the act of the clerk or other officer certifying the acknowledgment is said to be quasi judicial; that to contradict it by outside proof must upset the security of titles; and that it should only be assailed for fraud or duress, — that is, on the same grounds on which the deed of a person sui juris might be impeached, — a doctrine which would protect purchasers in good faith,^^^ and which pervails also in Ohio, Maryland, Texas, and other states, being, as above stated, the better rule; with the distinction, however, which is sometimes taken be- tween an imperfect examination or acknowledgment and the lack of any, the wife never appearing before the ofBcer at all, in which lat- ter case the certificate has been called a forgery.^^' 2S0 Woodhead v. Foulds, 7 Bush, 222, and Foard v. Teal, Id. 156, are the only Kentucky cases in which the evidence against the certificate was allowed to prevail. In these and in those following, In which the objectloit did not prevail, the contest was with the grantee himself. 231 In Moorman v. Board, 11 Bush, 135, where the wife had heard the deed explained in her husband's presence, and would not listen to a second' explanation apart from him, it was held good; and in Jett v. Rogers, 12 Bush,. 5(i4, 507, tlie court says, it she understands the deed already, there is no use in explaining it again. The contradictory evidence "must be convincing," e'tc. Gen. St. c. 81. § 17. See it applied in Tichenor v. Yankey, 89 Ky. 508, 12 S. W. 947. 232 Shields v. Netherland, 5 Lea, 196. Contra, Coleman v. Satterfield, 2 Head, 259, where the deed was obtained by duress, but held good in hands of bona fide purchaser, the certificate being in form. 233 Baldwin v. Snowden, 11 Ohio St. 203; Hartley v. Frosh, 6 Tex. 208. A bona fide purchaser is protected by the cei-tificate. As against others, it may be overthrown by proof of fraud or duress. Heeter v. Glasgow, 79 Pa. St 79, where the certificate is called a "judicial act," as in Jamison v. Jamison, 3 Whart. (Pa.) 457; as also in Tennessee in Shields v. Netherland, 5 Lea, 19G. Duress by the husband without guilty knowledge of the grantee does not vitiate the acknowledgment. Singer Manufg Co. v. Rook, 84 Pa. St. 442; lAND TITLES V.l 25 (385) § 54 LAND TITLES IN THE UNITED STATES. [Ch. 5 Defects in the several parts of the certificate must now be con- sidered. It may be said, in general, and will be found in all the cases quoted, that the very words of the statute need not be used, as long as their substance is fully reproduced. If it does not appear that the wife was examined apart from her husband, or examined generally, as the case may be, this is, of course, fatal.^'* It has been held that the word "privately" means apai-t from all other per- sons but the examining magistrate; that it is not the same as "apart from her husband," and cannot be omitted. In New Jersey, the con- trary conclusion has been reached.^^' It must appear that the con- tents of the deed have been made known to the married woman; ^■"' but slight deviations from the words of the statute on this head hiwv generally been overlooked, such as "contents" where the statute said "contents and effect"; or "she was made acquainted with," in- stead of the deed being "made known and explained to her." "^ In Donahue v. Mills, 41 Ark. 421. So, also, Central Bank v. Copeland, 18 Md. 305. The magistrate was not allowed as a witness to contradict his certificate, distinguishing Bissett v. Bissett, 1 Har. & McH. 211. And in Florida it can only be impeached for fraud. Shear v. Robinson, 18 Fla. 379. So, also, Johnston v. Wallace, 53 Miss. 331. In Louden v. Blytbe, 16 Pa. St. 532, the grantee having means for knowing the fraud, proof was admitted against him. The feme not having appeared before the officer at all, the certificate was treated as a forgeiy; Michener v. Ca vender, 38 Pa. St. 334; Allen v. Lenoir, 53 Miss. 321. Same doctrine in Meyer v. Gossett, 38 Ark. 377. Wife's own testimony not enough to overcome the certificate even for fraud. Hart V. Sandereon's Adm'rs, 18 Fla. 103. See, also, in favor of the conclusiveness of the certificate. Hall v. Patterson, 51 Pa. St. 289; McCandless v. Bngle Id. 309; Schrader v. Decker, 9 Pa. St. 14. In California, the certificate may be attacked for fraud (De Amaz v. Escandon, 59 Cal. 486), but not simply contra- dicted (Le Mesnager v. Hamilton, 101 Cal. 532, 35 Pac. 1054; Banning v. Ban- ning, 80 Cal. 279, 22 Pac. 210); but the distinction in .Johnston v. Wallace, S3 Miss. 331, is recognized where the notary did not see the wife. 234 Thompson v. Morrow, 5 Serg. & R. (Pa.) 289; Ellett v. Richardson, 9 Baxt. (Tenn.) 294; Barnet v. Barnet, 15 Serg. & B. 72; Graham v. Long, 03 Pa. St. 363. 23 5 WaiTen v. Brown, 25 Miss. 66. Conti-a, Den v. Geiger, 9 N. J. Law, 225; Thayer v. Torrey, 37 N. J. Law, 339. 238 Silliman v. Cummins, 13 Ohio, 110, and Connell v. Connell (1S34) 6 Ohio, 353, are still good law elsewhere, though overruled under pressure in the same state, in Chesnut v. Shane, 16 Ohio, 599, and other cases in the same volume, on the gi-ound of "communis error facit jus." 231 The act of June 8, 1893, gives to a woman full power to convey if only (3SG) Ch. 5] TIILE BY GHANT. § 54 stating that the feme acknowledged the execution of the deed, the words of the statute for denoting this execution "signed and sealed," or "signed, sealed, and delivered," or "executed," etc.), being inci- dental only, need not be strictly followed.^''* Under the older laws on conveyances the certificate under a deed in which the feme only relinquished her dower in the husband's land used to state such relinquishment as being made and acknowl- edged by her; thus differing from the certificate of acknowledgment which would be appended to a deed of the wife's own land. As the former class of deeds was far more common, the ofQcer would often, from ignorance or mistake, append the certificate of relin- quishment to the wife's deed of her own land, thus indicating that the deed was not understood by him, and that he could not have explained it to her. In Kentucky, the intrusion of these words was held destructive, but in Missouri it was rejected as surplusage;^'" while the omission of the words about relinquishing dower, where the statute prescribed them, would defeat a release of dower, these words being of the very essence.''*"' It has been contended that a court of equity cannot correct a mistake in the deed of a married woman as to description or terms; because to do so would imply that the paper had not been rightly explained to her, and the new deed would not be her own free act. In California, this contention has been allowed. Not so in a late case before the court of appeals the husband joins, and seems to dispense with privy examinations. As to the former law, see Hombeck v. Mutual Building & Loan Ass'n of Elizabeth, 88 Pa, St. 6-t; Gill v. Fauntleroy's Heirs, 8 B. Mon. (Ky.) 117; Martin v. Davidson's Heirs, 3 Bush (Ky.) 572. The case of Stevens v. Doe, 6 Blatchf. (Ind.) 475, goes further in condoning defects in this and all other paits of the certificate. See, also, Hughes v. Lane, supiu. 238 Martin v. Davidson's Heirs, supra; Nantz v. Bailey, 3 Dana (Ky.) 111. But the omission of the words "for the consideration and purposes," and the substitution of "she willingly acknowledged" for "she acknowledged" that she willingly executed, were each held fatal In Hayden v. MofCatt, 74 Tex. 647, 12 S. W. 820. 239 still V. Swan, latt. Sel. Cas. (Ky.) 156. Contra, Ohauvin v. Wagner, supra. In Hughes v. Lane, 11 111. 123, there were two lots, one belonging to the husband, one to the wife. The relinquishment was refeiTed to the former only, "ut res magis valeat," etc. 240 Kussell V. Rumsey, 35 III. 302, where the necessity for tlie relinquish- ment clause was inferred from the general usage and the accepted blanks and (387) § 54 LAND TITLES IN THE UNITED STATES. [Ch. 5 of Kentucky, v/hich was formerly so watchful over married women's rights. This question is akin with that of blanks in a married wo- man's deed filled up after acknowledgment, which has been dis- cussed in a former section.^*^ The words expressing that the feme acknowledges her action to have been free vary greatly from state to state. The courts of Ten- nessee, Alabama, and Arkansas have insisted on close compliance with the law in this part of the certificate. For instance, the word "understandingly" was thought indispensable in Tennessee. "For the purposes therein expressed" is essential in Arkansas; but that she "executed and delivered," or the words to that effect, need not follow the statute closely, no stress falling on them in the sentence.^*'' The closing words "consents that it be recorded," or "wishes not to re- tract it," wherever called for, have been held essential, except in Illinois, where the court thought that they were not intended to form a part of the certificate, but were only intended for the guid- ance of the magistrate. In Ohio, the last case allows a very weak substitute for these words.^*' form books. O'Ferrall v. Simplet, 4 Iowa, 381. Also Barnett v. Shackelford, supra, under the older Kentucky law. 241 Leonis v. Lazzarovich, 05 Cal. 49, 50. Contra, Tichenor v. Yankey, 89 Ky. 508, 12 S. W. 947. And see notes to latter part of section 48 of this chapter. 242 Wright V. Dufield, 2 Baxt. (Tenn.) 218; Henderson v. Rice, 1 Cold, (Tenn.) 223; Hunt v. Han-iis, 12 Heisk. 244. A divergence from the Alabama statute in the declaration as to acting freely (Clay, Dig. p. 155, § 27) was held fatal in Boykin v. Rain, 28 Ala. 832, but the words as to what she acknowledged doing, such as "signed, sealed and delivered," or "executed and delivered," are rather formal, and a variance here is of little import Martin v. Davidson's Heirs, 3 Bush, 573. 243 Grove v. Zumbro, 14 Grat. 501; Ijinn v. Patten, 10 W. Va. 187; Landers V. Bolton, 26 Cal. 408; Belcher v. Weaver, 46 Tex. 294; Chauvin v. Wagner, 18 Mo. 531. In the latter case some minor discrepancies from the words of the statute, such as "made acquainted with," instead of "made Imown and explained to her," or "that she signed," instead of "executed," were condoned. Strictness was, however, appUed, as the acts regulating privy examinations (acts 1821 and 1825) alone, after the common law had been introduced, gave married women the power to convey their land. A number of the older cases are quoted, among them McDaniel v. Priest, 12 Mo. 545,— luther liberal; Jones V. Lewis, 8 Ired. (N. C.) 70,— not enough to indoi-se "private examina- tion had" without stating all the facts. The certificate was held defective (388) Ch. 5] TITLE BY GRANT. § 54 The courts have been stricter in insisting that a duly-authorized ofBcer should take the acknowledgment than about its form or con- tents."''* Generally, but not always, the same officer who might allow only nonresident married women to appoint attorneys. The first giving them the capacity was enacted in 1812, requiring even greater solemnities than for deeds. The act of 1818 required only the same formalities as with deeds. This was amended in 1831. But in the Revised Statutesi of 1852 the whole subject was omitted, and was restored in 1856, in the belief that other- wise married women could not convey by attorney; and so stands in the General Statutes of 1873. See May's Heirs v. Fiazee, 4 Litt. (Ky.) 391 (when the wife was executrix); StansbeiTy v. Pope, 2 A. K. Marsh. 486; Steele v. Lewis, 1 T. B. Mon. 48; Harris v. Price, 14 B. Hon. 333,— for the construction of these laws. In Minnesota, under the older statutes (before 1857), the deed of a married woman through an attorney was wholly void (Randall v. Kreiger, 23 WaU. 137), though, at least as to dower, capable of being made good by a curative act. A married woman can appoint an attorney only under the express words of a statute. Mott v. Smith, 16 Cal. 533; Dentzel V. Waldie, 30 Cal. 138. Could do so in California under later statutes only by joining with husband. Dow v. Gould & Curry Silver Min. Co., 31 Cal. G29; Douglas V. Fulda, 50 Cal. 77. See, as to married woman's capacity as to prop- erty owned before incorporation of California in United States, Racouillat v, Sansevain, 32 Cal. 376. Other states allowed married women to execute let- ters of attorney like deeds. Rhode Island, c. 166, § 10; Ohio, § 4108 (now superseded by the removal of all disability); Indiana, § 2949; Michigan, § 5725; Minnesota, c. 40, § 2; West Virginia, c. 65, § 12; North Carolina, § 1257; Mis- souri, § 670; California Civil Code, § 1094; Nevada, § 183; Florida, c. 150, § 11. Under such laws the wife may join with the attorney of the husband. Glenn V. Bank of U. S., 8 Ohio, 72, following dictum in Fowler v. Shearer, 7 Mass. 21. 288 Mexia v. Oliver, 148 U. S. 664, 672, 13 Sup. Ct. 754; quoting Sayles^ Civ. St. arts. 559, 4310, and Cannon v. Boutwell, 53 Tex. 626; Peak v. Brinson, 71 Tex. 310, 11 S. W. 269. So In Arkansas. McDaniel v. Grace, I't Ark. 465 (quaere, whether under present statute). No objection to such appointment in Nebraslia. See Benschoter v. Lalk, 24 Neb. 251, 38 N. W, 746. As to law of New York in 1849, see Hunt v. Johnson, 19 N. Y. 279, 297, (404) Ch. 5] TITLE BY GRANT. § 56 mont, New Hampshire, and Minnesota, and need only say here that what is said hereinafter about construing a letter of attorney will ap- ply to the construction of such a vote.^^" Where the power is cou- pled with a condition, as where a letter of attorney authorizes the sale and conveyance of land, if it should become necessary for the payment of debts, and the facts are known or confessed, the act of the attorney is, of course, invalid, if the condition is not fulfilled; for such a condition cannot be held to mean simply "if the attorney should deem it necessary." But the question generally arises on the burden of proof, and here both text-books and decided cases are disagreed; the court of appeals of Kentucky and supreme court of Tennessee taking the lead on opposite sides.^"" The maxim of the Roman law, "omnis ratihabitio retrotrahitur et mandate aequiparatur," — that is, "A ratification of the attorney's act by the principal after the act is done in his name is as good as an authority given beforehand," — has been adopted in,to the common law. But the ratification must, generally Speaking, be executed with the same formalities that would have been required in a letter of attorney; e. g. where the latter must be under seal, so must the former, and where the ratification, as it may be in the case of persons sui juris, is worked out by an estoppel, from an acceptance of the proceeds of the attorney's deed, such acceptance must have taken place with full knowledge of the facts.^^^ 289 Miller v. Ewer, 27 Me. 509, under a similar usage in Maine. The bur- den of showing the "vote" rests on the grantee. 29 Bruce v. Duke, 2 Litt. (Ky.) 215 (proof on purchaser); Pitman v. Brown- lee, 2 A. K. Marsh. 210 (commissions empowered by special act). Contra. Marshall v. Stephens, 8 Humph. (Tenn.) 159; Wilburn v. Spofford, 4 Sneed (Tenn.) 704. A very full discussion is found in Machebeuf v. Clements, 2 Col. 36, where the intermediate ground is taken that the attorney's recital is prima facie proof against his principal. Heath v. Nutter, 50 Me. 378. 291 SpofCord V. Hobbs, 29 Me. 148, where the principal had accepted a mortgage for the purchase money. This is perhaps wrong on even technical reasoning, as the acceptance of a deed is often equivalent to sealing a deed. And the receipt of purchase money has been deemed a ratification in Bocock V. Pevey, 8 Ohio St. 270; Hutchins v. Railroad Co., 37 Ohio St. 282; Zimpelman V. Keating, 72 Tex. 320, 12 S. W. 177, and other Texas cases; and much less has been deemed a ratification of a land sale in Goss v. Stevens, 32 Minn. 472, 21 N. W. 549, and Alexander v. Jones, 64 Iowa, 207, 19 N. W. 913. But where rights of third persons have accrued, they cannot be divested by a later (4or.) § 56 LAND TITLES IN THE UNITED STATES. [Ch. 5 Where it is desired that the deed which the attorney will make on behalf of the principal should be recorded, and have the additional force of a recorded deed, the letter of attorney should itself be re- corded, and be executed and proved or acknowledged in such a way as to fit it for record.^^^ In Massachusetts and Maine, and, it seems, in Virginia, the rule was formerly otherwise.^"' "Naked" powers, such as given to an attorney in fact, as distinguished from those coupled with an estate, are narrowly construed, and at all events not extended beyond their natural and grammatical meaning.^"* Thus, ratification. Wood v. McCain, 7 Ala. 800; McCormick v. Bush, 38 Tex. 314 (where an imauthorized delegation was ratified). But an act In pals win not be deemed a ratification by estoppel unless done with knowledge of the attorney's act. Lester v. Kinne, 37 Conn. 9. For ratifying a lease made by an unauthorized person, a delay of 100 days, while the lessee spent money on improvements, was thought enough in Hoosac Mining & Milling Co. v. Donat, 10 Colo. 529, 16 Pac. 157. 2i)2Camall v. Duval, 22 Ark. 136; ElliOLt v. Pearce, 20 Ark. 508; Voorhies V. Gore, 3 B. Mon. 529 (following in Kentucky upon Taylor v. McDonald's Heirs, 2 Bibb, 420); Humphrey v. Havens. 12 Minn. 305 (Gil. 196). Thus It has been held In Mississippi under a statute not mentioning powers of attor- ney, but providing for the registration of written contracts for land. Hughes V. 'Vilkinson's Lessee, 37 Miss. 482. 293 Valentine v. Piper, 22 Pick. 85; Newman v. Chapman, 2 Rand. (Va.) 93. 294 Attwood V. Munnings, 7 Bam. & C. 278; Wood v. Goodridge, 6 Gush. 117; Hodge v. Combs, 1 Black (U. S.) 192; Penfold v. Wai-ner, 96 Mich. 179, 55 N. W. 680 (power by husband and wife to convey their land does not embrace lands then belonging to the husband which come to the wife on his death); Craighead v. Peterson, 72 N. Y. 279 (a power of attorney to draw checks or notes); Dearing v. Lightfoot, 16 Ala. 28 (power to manage aU the principal's business and to settle all demands against him did not authorize the attorney to sell the former's slaves). But a power to convey all lands "which I may own," etc., and to release all mortgages "which may be re- corded," embraces after-acquired lands and mortgages subsequently taken. Bigelow V. Livingston, 28 Jlinn. 57, 9 N. W. 31; followed in Benschoter v. Lalk, 24 Neb. 251, 38 N. AV. 746. "Power to sell any of my real estate" in- cludes after-acquired. Fay v. Winchester, 4 Mete. (Mass.) 513. Very broad words are construed not to authorize the conveyance of land. Skaggs v. Murchison, 63 Tex. 353. Power to convey to principal upon the payment of debts does not justify sale to stranger. JIoss v. Berry, 53 Tex. 633. While, under testamentary powers, that to sell, and especially to sell and exchange, ■Bmbraces that of making pai-tition. A power of attorney to sell does not justify either partition or exchange. Berry v. Harnagee, 39 Tex. 638. See, also, Reese v. Jledlock, 27 Tex. 120; Borel v. Rollins, 30 Cal. 408. Power to (40G) Ch. 5] TITLE BY GRANT. § 56 a power "to sell" or "to sell and convey" is, when conferred in a letter of attorney, construed as not giving the power of mortgaging the land; for it is presumably one of the objects of the principal that the attorney should realize the best possible price, which he could only do by an absolute sale, and not merely raise money on the land, as he might by way of mortgage.^"" Or, where land is to be sold by lots, the attorney cannot sell by the acre, as such a sale might not bring as good a price.^°' Generally speaking, a power to sell means to sell for ready money, not on credit, nor even in satisfaction of a debt, unless the attorney be empowered to pay it; and so a power to mortgage land means, if nothing else be said, to do so for advances of money, not to secure an existing debt. Least of all can an attor- ney with power of sale sell the land in consideration of something, like his or a third person's future support, which in its nature can- not go to the benefit of the principal.^ '^ convey the propei-ty of A. and B. does not include B.'s separate property. Gil- bert V. How, 45 Minn. 121, 47 N. W. 643; Dodge v. Hopkins, 14 Wis. 630; at least when it is not shown that there was no joint property. A power to mortgage for a named sum does not authorize the insertion of an attorney's fee. Pacific Rolling Mill v. Dayton, S. & G. R. Ry. Co., 7 Sawy. 61, 5 Fed. 852. Under power to buy and sell real estate, the attorney can only sell such as he has bought. Greve v. Coffin, 14 Minn. 345 (Gil. 2G3). ' A power to sell does not authorize a gift; Dupont v. Wertheman, 10 Cal. 354. 20 5 Butler v. Gazzam, 81 Ala. 401, 1 South. 16; Coutant v. Servoss, 3 Barb. (N. Y.) 128; Albany Fire Ins. Co. v. Bay, 4 N. Y. 9; Bloomer v. Waldron, 3 Hill, 361. But where a power of sale is expressly given for the purpose of raising money it embraces that of mortgaging. Gaylord v. Stebbins, 4 Kan. 42. In Texas, a general power to sell, without naming its purpose, was held to authorize a mortgage in Sampson v. Williams, 6 Tex. 110. This is so in Pennsylvania, where a similar power even in a will is construed fo include a power to mortgage. Campbell v. Foster Home Ass'n, 163 Pa. St. 609, 30 Atl. 222. 208 A deed of trust for the benefit of creditors was held to be authorized under a power to sell or convey for securing debts. Marshall v. Shibley, 11 Kan. 114. But a power to mortgage (in JIaryland) will include that of giving an absolute deed and talking back a lease in the nature of a defeasance. Posner v. Bayless, 59 Md. 56. 2 07 Randall v. Duff, 79 Cal. 115, 19 Pac. 532, and 21 Pac. 610 (not without consideration); Frost v. Erath Cattle Co., 81 Tex. 505, 17 S. W. 52, (nor in discharge of principal's debt); Greenwood v. Spring, 54 Barb. 375 (nor mort- gage to secure such debt); Lumpkin v. Wilson, 5 Heisk. (Tenn.) 555 (nor in (407) § 56 LAND TITLES IN THE UNITED STATES. [Ch. 5 A letter asking a friend to manage the writer's land, and to sell when opportunity offers, justifies a contract to sell, but not a con- veyance of the legal title, though such conveyance, if made by the party addressed, may be enforced in equity as a contract. But a formal power to sell implies an authority in the attorney to convey the lands sold by him.^^^ Sometimes a power to "sell and convey" may be satisfied by a conveyance without a previous sale, when the circumstances show that the object of the giver of the power would thus be accomplished.^"'' A power "to exchange and convey" is not exchange for merchandise); Weare v. WiUiams, 85 Iowa, 253, 52 N. W. 328; Coulter V. Portland Trust Co., 20 Or. 4G9, 26 Pac. 565, and 27 Pac. 266 (future support); nor for collateral benefit of principal. Mora v. Murphy, 83 Cal. 12, 23 Pac. 63. And so it was held In case of personalty. Brown v. Smith, 67 N. C. 245; Nippel v. Hammond, 4 Oolo. 211. But see, as to what is a cash sale, Plummer v. Buck, 16 Neb. 322, 20 N. W. 342. An agent being author- ized to release a mortgage on the execution of a new one, and releasing it without one, the release is void. Foster v. Paine, 56 Iowa, 622, 10 N. W. 214. In Vaiiada's Heirs v. Hopkins' Adm'rs, 1 J. J. Marsh. (Ky.) 285, it is thought that, where such is the custom, the agent may sell on credit. 2!>8 Hemstreet v. Burdick, 90 111. 444; Fogarty v. Sawyer, 17 Cal. 591; Val- entine V. Piper, 22 Pick. 85 ("to sell" includes "to convey"). Pamham v. Thompson, 34 Minn. 330, 20 N. W. 9, authorizes a quitclaim deed which is known to release a mere tax lien. Alexander v. Goodwin, 20 Neb. 216, 29 N. W. 468; Lyon v: Pollock, 09 U. S. G68 (as to informal letter). See, also, the California cases: Billings v. Morrow, 7 Cal. 171; De Rutte v. Muldrow, 10 Cal. 505; Jones v. Marks, 47 Cal. 24.3,— on the letter of attorney from Capt. Sutter to Schoolcraft, "to represent his real and personal estate, to make con- tracts, to do all things that concern his interest, real and personal, making him his general attorney"; held good enough to make executory sales, but not to convey. Per contra, a general power of sale enables the attorney to make executory sales. Haydock v. Stow, 40 N. Y. 368. The power of sale, where a mortgage is received for a part of the purchase money, does not extend to releasing this. Hakes v. Myrick, 09 Iowa, 189, 28 N. W. 575; s. p. Coquillard v. French, 19 Ind. 274. A power "confirming all sales, leases, and contracts of every description to be made" enables the attorney to sell and convey land. Sullivan v. Davis, 4 Cal. 291. In Pennsylvania express words are required in power to sell and convey land, Sweigart v. Frey, 8 Serg. & R. 299; while power for "all business as to land," or "as to estate, real and per- sonal," was deemed sufficient to sell and convey In Missouri, Lamy v. Burr, 36 Mo. 85. 20 Hull V. Glover, 126 111. 122, 18 N. E. 198. A power to sell real and per- sonal estate reaches a certificate given to the purchaser at a decretal sale. Cooper V. Finke, 38 Minn. 2, 35 N. W. -1G9, " (40S; Ch. 5] TITLE BY GRANT. § 56 a. power to sell.'°" A power to sell, or to sell and convey, authorizes the insertion of the ordinary covenants of title, on the ground that deeds to purchasers are expected to contain them, except, of course, when the power is conferred by married women, incapable of bind- ing themselves by covenant, which is of importance, aside of the per- sonal liability, because the covenant of warranty, working by way of estoppel affects all subsequently acquired rights to the land.^"^ Unless the letter of attorney expressly gives the right of substi- tution to the attorney, he cannot appoint any one to act in his ■stead, nor can one of two joint attorneys turn over his authority to his companion; though the principal can, of course, ratify the acts ■of the improperly made substitute.^"^ The principle is shortly 300 Long V. Fuller, 21 Wis. 121. In Dayton v. Nell, 43 Minn. 246, 45 N. W. 231, tlie power to sell and that to convey are treated as distinct; the latter being carried out separately. Husband and wife having appointed an at- torney by deed, the wife, being entitled to the proceeds, was allowed by parol to authorize a deed of gift. 301 In New York the earlier decisions— Nixen v. Hyserott, 5 Johns. 58; Gib- son V. Colt, 7 Johns. 390; Van Eps v. Mayor, etc., of City of Schenectady, 12 Johns. 436; Wilson v. Troup, 2 Cow. 195— denied that the power to warrant was an incident of the power to sell. These decisions were much shalien by Nelson v. Cowing, 6 Hill, 336, and Sanford v. Handy, 26 Wend. 260 (neither of which referred to the sale of land), but were not finally overruled until 1890, when, in Schultz v. Griffin, 121 N. Y. 294, 24 N. E. 480, it was held that an agent employed to make a sale might contract for a general warranty deed. The older English doctrine, by which "all reasonable assurance" does not in- clude any covenants, was said to be "altered," by Twisden, in Lassels v. Chat- terton, 1 Mod. 67. The leading American case is "Vanada's Heirs v. Hopkins' Adm'rs, 1 J. J. Marsh. (Ky.) 285, 203, In which powers of attorney for the sale of land axe thoroughly discussed. Then come Peters v. Farnsworth, 15 Vt. 155, reviewing the English cases; Taggart v. Stanbery, 2 McLean, 543, Fed. Cas. No. 13,724, and Le Roy v. Beard, 8 How. 451, where a covenant of seisin inserted by the attorney was sustained, such being the custom. It was admitted in Wilson v. Troup, supra, that an attorney authorized to give a mortgage, at a time and place at which it was the custom to insert £L power of sale to take the place of judicial foreclosure, might do so on be- half of his principal. In Johnson v. Knapp, 146 Mass. 70, 15 N. E. 134, a power to convey "with or without warranty" was held to authorize a cove- nant against incumbrances. But a power to grant discharges by deed must mean quitclaim deeds, and does not justify a warranty. Heath v. Nutter, 50 Me. 378. 302 White v. Davidson, 8 Md. 169; Uogers v. Cruger, 7 Johns. 557. A most (409) § 56 LAND TITLES IN THE UNITED STATES. [Ch. 6 Stated thus: "Delegatus non potest delegare."' When a power of sale is cast on an executor, administrator, or guardian, he cannot give his discretion over to another, except in Georgia; ^"^ but v/hen such fiduciary has made a sale, he may empower an attorney to make the formal conveyance.^"* As a universal rule, the death of the principal makes an end to the attorney's power; for one who, being dead, can no longer act by himself, cannot act through another,— the attorney's deed being that of the principal ("quod quis per alium fecit, per se fecisse putatur"),— unless, indeed, the power is "coupled elementary proposition, taljen for granted in cases where the substituted attorney seems to stand on special grounds; never denied. Xor can one of two joint attorneys transfer his power to the other. Loeb v. Drakeford, 75 Ala. 464. S03 Sugd. Powers, c. 5, § 1, lays down these i-ules: Where a man has only a particular power, as to lease for life or years, he cannot make a lease by attorney, quoting Lady Gresham's Case, 9 CoKe, 76a; Attorney General v. Gradyll, Bunb. 29. Contra, Orby v. Mohun, 2 Vern. 542. If the power re- poses a personal trust and confidence in the donej to exercise his own judg- ment, he cannot refer it to another. Thus trustees having power to sell cannot sell by attorney, quoting Combes' Case, 9 Coke, 75b. And so, where a power of appointment among children Is given, it cannot be delegated. Ingram v. Ingram, 2 Atk. 88; Hamilton v. Royse, 2 Schoales & L. 330. And a person whose consent is made necessary to the execution of a power can- not appoint an attorney to consent. Hawkins v. Kemp, 3 East, 410. And see Berger v. Duff, 4 Johns. Ch. 368. _The American cases refer generally to pow- ers of sale in executors; e. g. May's Heirs v. Frazee, 4 Litt. (Ky.) 391, 401 (not easily distinguished from the Kentucky case quoted in next note). One having bare authority, coupled with trust, cannot act by attorney. Black v. Erwin, Harp. (S. C.) 411. See Georgia Code, § 2180,— fiduciary "may sell and convey property by attorney in fact," etc. Cases arising before the Code, Doe v. Roe, 22 Ga. 600; Atkinson v. CenU'al Georgia, A. & il. Co., 'iS Ga. 227. 30* Says Sugden, in chapter 5, § 1, subd. 3: When the deed of appoint- ment is actually prepared, or the donee of the power points out the precise appointment he wishes to be made, and thus no discretion is delegated, the deed may be executed by attorney. Where the powers given are only for the donee's benefit, and really constitute a property in him, Sugden shows that they may be exercised by attorney; his latest authority being Warren v. Arthur, 2 Mod. 317. Where executors are directed to seU land for payment of debts and legacies, equity considers it as converted into money, and belonging to the executors; hence they may sell by attorney. Colsteu v. Chaudet, 4 Bush (Ky.) 6G6. (410) Ch. 5] TITLE BY GRANT. § 56 with an interest," which means here with an estate, in the attorney, BO that he may act in his own name."° And, when the attorney has appointed a substitute, the first attorney's death puts an end to the authority of the substitute.^"^ But where the principals are joint tenants, with surTivorship, as trustees generally are, the death of one or more, while one survives, leaves the attorney authorized to act for the survivor.^"' A power, not coupled with an interest in the attorney, or in some third person who has advanced something of value on the faith of it, can be revoked by the principal at any time; and words pur- porting to make it irrevocable, when inserted in such a power, have been rejected as unmeaning.'*" But, while revocation by death operates independently of any notice to those dealing with the at- torney, it is otherwise when the living principal revokes his authori- ty. Then the revocation must be brought home to the purchaser from the attorney, at least if he be a purchaser for value, either by actual notice, or by putting the revocation upon record, in like man- ner as the revoked power was recorded.'"" 305 Hunt V. Rousmanier, 8 Wheat. 174, where a power of attorney to sell a ship was given in place of a mortgage on It, is the leading case. That the power is made on its face irrevocable does not help it. Wassell v. lieardon, 11 Ark. 712, s. p. In Smith v. Smith, 1 Jones (N. C.) 138; Smith v. Saltmarsh, 32 Ala. 404 (where the attorney's deed was antedated, but defeated by parol proof of the time of its execution). Huston v. Oantril, 11 Leigh (Va.) 136. Houghtaling v. Marvin, 7 Barb. (N. Y.) 412, and Wood v. Wallace, 24 Ind. 22(j, on powers coupled with an interest, can hardly aid a naked power of attorney to convey land. The sale by attorney after the principal's death is not voidable, but void, within the meaning of the Texas limitation law. Primm V. Stewart, 7 Tex. 183; Cox v. Bray, 28 Tex. 259. See, also, Lewis v. Ken, 17 Iowa, 73. Want of notice in purchaser and attorney is immaterial. Davis V. Windsor Sav. Bank, 46 Vt. 728. The death of the wife whose power was void leaves the husband's power in force. Earle v. Earle, 20 N. J. Law, 348. As to presumption of fact about time of death, see Oppenheim v. Lee-Wolf, 3 Sandf. Ch. (N. Y.) 571. A unique decision is Ish v. Crane, 8 Ohio St. 520, sustaining a contract of sale by attorney after principal's death. But see, contra, McClaskey v. Barr, 50 Fed. 712. 308 Lehigh Coal & Nav. Co. v. Mohr, 83 Pa. St. 228. 307 Wilson V. Stewart, 3 Phila. 51 (Sharswood, J.). 308 McGregor v. Gardner, 14 Iowa, 326; Mansfield v. Mansfield, 6 Comi. 562. 309 Morgan v. Still, 5 Bin. (Pa.) 305. In Maryland the statute (Pub. Gen. Laws, art. 21, § 2G, first enacted in 1856) expr°ssly says that the power is (411) I 57 LAND TITLES IN THE UNITED STATES. [Cll. 5 ■Wherever a married woman is subjected to any of the old disa- bilities, — such, for instance, as not being allowed to couYey her land without the assent of her husband, — the marriage of a woman operates as the revocation of her letter of attorney previously given; for she cannot, after marriage, do by another what she cannot do by herself.^^" And, on like grounds, when the donor of the power becomes insane, — certainly, when he is judicially declared insane, — his attorney can no longer act for him, as he cannot act himself. But, even this revocation has been held not to prejudice purchasers dealing with the attorney without notice of the principal's loss of mind.^^^ The powers of sale inserted in mortgages will be treated in connec- tion with mortgages. These, being "powers coupled with an inter- est," do not belong to the class of the common "powers of attorney." Powers conferred by will, family settlement, or deed of trust must be treated in a separate chapter on powers. NOTE. The books sometimes, but, it seems, inaccurately, call the party who issues a letter of attorney the donor, and the party holding, the donee, of a power, — terms which belong properly to those who give or receive powers coupled with an estate or trust. § 57. D33cl3 by Attorneys ani Pablic Offlcers. The deed of an attorney in fact does not prove by its recitals that he has the power to execute it; nor does the deed of a public officer who executes it under some statutory power, under the general prin- ciples of the law, prove in any way that those facts have occurred which, under the statute, should have preceded the execution of the deed, and without which it would have no validity. Yet, there are cases, in which the recital of a power of attorney in a deed executed by attorney, connected with a long acquiescence of the alleged prin- cipal, has been deemed sufficient evidence to go to the jury, from revoked when the deed of revocation is recorded in the proper office. In other than land cases, the point is met in McNeilly v. Continental Life Ins. Co., 66 N. Y. 23; Claflin v. Lenheim, Id. 301. 310 Wambole v. Foote, 2 Dak. 1, 2 N. W. 239; Montague v. Cameal, 1 A. K. Marsh. (Ky.) 351. 311 Mattliiessen & Weichere Raflning Co. v. McMahou, 38 N. J. Law, 546; Hill V. Day, 3i N. J. Eq. ISU. (412) Ch. 5] TITLE BY GRANT. * § 57 which the existence of a power of attorney in good form may he presumed; especially where the latter was executed under the Span- ish law, and the officer authenticating the conveyance, who was shown the letter of attorney, attested the fact that it was so shown to him."^ And many statutes under which a public officer (e. g. a tax collector or state auditor) is empowered to convey land by his deed make such deed at least prima facie proof of all the ante- cedent steps which lead up to the deed, and without which its execution would be unauthorized.^^' Both an attorney in fact under a power of attorney (which is an instance of a so-called "naked power" not coupled with an interest> and a public officer (such as a sheriff, conveying land sold under execution, or a commissioner, conveying land sold at a judicial sale or in obedience to a decree, or a revenue officer, who sells for de- linquent taxes) must in their deed show whose land they convey, and by what authority they do so. The difference between the attorney chosen by the owner and the public officer who derives his power from the state, and exercises it without the consent and even in hos- tility to the owner, is this: that equity, wherever it is fully develop- ed (and such it is now, perhaps, in every American state other thaa Louisiana), will aid the defective execution of a private power of at- 312 ■Williams v. Peyton's Lessee, 4 Wheat. 77: "The collector's power is a nalied power, not coupled with an interest, and In all such cases the law re- quires that every prerequisite to the exercise of the power must precede its exercise." And, in the absence of words in the statute to that effect, the deed is not even prima facie proof that these prerequisites have been fulfilled. Id., and Stead's Ex'rs v. Course, 4 Cranch, 403; Parker v. Rule's Lessee, 9 Cranch, 64. Where an attorney is empowered to sell "when necessaiy," his deed does not proye the necessity. Bruce v. Duke, 2 Litt. (Ky.) 244. A. fortiori, it does not prove fulfillment of other conditions precedent McCon- nell V. Bowdry's Heirs, 4 T. B. Mon. (Ky.) 400. 313 Forman v. Crutcher, 2 A. K. Marsh. (Ky.) 69; Watrous v. McGrew, 16 Tex. 513; Johnson v. Shaw, 41 Tex. 433.— even as to wild lands not in actual possession, especially where those claiming under the power have paid taxes; Stroud v. Springfield, 28 Tex. 664; Holmes v. Coiyell, 58 Tex. 688; Glasscock V. Hughes, 55 Tex. 476; Williams v. Conger, 125 U. S. 397, 8 Sup. Ct. 933. In HaiTison v. McMurray, 71 Tex. 122, 129, 8 S. W. 612, the several Texas cases on the point are collected. There is no presumption, from the lapse of time during which a power of attorney has not been acted on, that it has been> revoked. (413) § 57 LAND TITLES IN THE UNITED STATICS. [Ch. 5 torney, but will not aid the defective execution of a power conferred by positive law.'^* The first requisite of a deed of conveyance made by an attorney is this: that it appears on its fact to be the deed of the principal. When C. D., under a power from A. B., conveys the latter's land to E. F., the deed ought to run thus : "Know all men that I, A. B., etc., bargain and sell to E. F. and his heirs, etc. In witness whereof I have hereunto set my hand and seal, by C. D., my attorney in fact." The signature attached is: "A. B., by C. D., his attorney"; and the seal set opposite to the signature is deemed the seal of A. B., not of C. D.'^"* If this be not done, but the deed proceeds in the attorney's name, as if he were the owner and grantor of the property, it conveys no title at law,^^* — but is aided in equity, if there be a valuable or 814 Wilks V. Back, 2 East, 142 (42 Geo. III.), holds that a bond signed and sealed in this form: "For Jas. Brown, Mathias Wilks [L. S.]," is the bond of James Brown; the other form: "James Brown, by M. Wilks [Seal]," being admittedly more regular. Mr. Washburn, in his treatise, criticises the case as not in harmony with the authorities; but it has been a precedent too long on the side of liberal construction to be shaken or doubted. 315 The doctrine that equity aids defective execution of powers, but not the nonexecution, laid down in Toilet v. Toilet, 1 White & T. Lead. Cas. Eq. aG5, and which will be discussed in a section of the chapter on "Powers," hereafter, applies as much to deeds under powers of attorney as to conveyances or devices under those "subtler" powers which will be treated in that chapter. See some of the cases below for an applJcation. As an example of the liberal treatment of a deed by a fiduciary, see Pursley v. Hays, 22 Iowa, 11. 316 Co. Litt. 25Sa. In Echols v. Cheney, 2S Cal. 157, the granting clause ran in the name of "il., attorney for S.," and such was the signature. The deed was held void under either common or the Spanish law, the words added being only a descriptio personae; more technical than Wilks v. Back, where, as seen in note 314, a signature, "For J. Brown, M. Wilkes," was held good to convey Brown's land. In Fowler v. Shearer, 7 Mass. 14 (the leading American case), and in Bassett v. Hawk, 114 Pa. St. 502, 8 AtL 18, the wife, empowered by her husband, conveyed in her own name only. Her deed of her own estate was void for want of the husband's co-operation. Also Bogart V. De Bussy, 6 Johns. 94; Locke v. Alexander, 1 Hawks (N. C.) 412. Contra, Oliver v. Dix, 1 Dev. & B. Eq. (N. C.) 158, where "A., attorney for B.," was deemed good enough, the whole deed showing an intent to ^rant B.'s laml. (And in Henby v. Warner, 51 Pa. St. 278, which I'oUowed Allison v. Kurtz, 2 Watts, 185, 188, an attorney for the committee of a lunatic conveyed in his own name, even letting his wife join to release dower; he having no estate at aU in the land. There being then no court of equity in Pennsylvania, the court (414) Ch. 6] TITLE BY GRANT. § 67 pood consideration, as any other informal conveyance miglit be aid- ed, so far as the statute of frauds will permit."^ This will hold good, however, only where the principal is a person sui juris; and, where a married woman is allowed by statute law to convey only un- der given circumstances and in named forms, and her attorney exe- cutes a deed running in his own name, as grantor, the deed will be void in equity as well as at law; and it will be considered rather as a case of nonexecution than of faulty execution.*^* In some states, in view of the frequent mistakes made by attorneys in fact when conveying the land of their principals, the statute Imsi stepped in, of law treated the case like that of a testamentary power, and referred the deed to the owner, rather than let it pass for nothing). Where the attorney deliberately claims the land as his own, and so grants it, he does not execute the power of attorney. Watson v. Sutro, 86 Cal. 500, 531, 24 Pac. 172, and 25 I'ac. 64. But, if there be two letters of attorney, one invalid, the other good, the deed, though referring to the former, is sustained by the latter. Link V. Page, 72 Tex. 592, 10 S. W. 699. The power must be referred to in some way, Shii-ras v. Graig, 7 Cranch, 34; not in the body only, but the attorney must sign the principal's name. A misrecital of the power is not fatal. Jones v. Tarver, 19 Ga. 279. The doctrine is pretty much disregarded in Rogers v. Bracken, 15 Tex. 564; also in Aveiy y. Dougherty, 102 Ind. 441, 445, 2 N. B. 123, where the notion of descriptio personae is scouted, and a lease made "between R. M., agent of O. D., guardian of B.'s children," etc., signed "R. M., agent of O. D.," was held a good lease of the children's land. The New Hampshire cases, Coburn v. Ellen wood, 4 N. H. 102; Montgomery V. Dorion, 7 N. H. 483; Hale v. Woods, 10 N. H. 471; Tenney v. East Warren Lumber Co., 43 N. H. 343, 349,— take the broad ground that the deed is good if on the whole it appears to be the grant of the principal. 317 .Stark V. Starr, 94 U. S. 477, where those claiming under the deed had strong equities; Ramage v. Ramage, 27 S. C. 39, 2 S. E. 834, referring to Welsh V. Usher, 2 Hill, Eq. 167 (case of sale of a ship). See Strchecker v. Farmers' Bank, 8 Watts, 190 (assignment of bond). But where the attorney has himself an estate in the thing, and conveys only in his own name, he is supposed to convey that estate only. Pease v. Pilot Knob Iron Co., 49 Mo. 124. When the attorney makes an executory sale in his own name, equity will enforce it speciflcally, Vanada's Heirs y. Hopldns' Adm'r, 1 .T. J. JIarsU. (Ky.) 285, 295; a power of attorney being a common-law power, the de- fective execution of which is aided in equity; referring to Sugd. Powers, p. 1. The deed in attorney's name is not within the statute of frauds, and binds the principal as a contract to sell. McCaleb v. Pradat, 25 Miss. 257. 318 Wilkinson v. Getty, 13 Iowa, 157. Attorney of husband and wife con- veyed in husband's name only. Equity could not refonn the deed. (415) § 57 LAND TITLES IN THE UNITED STATES. [Ch. 5 either to authorize or cure deeds made in the attorney's name, or t© furnish a form which will satisfy the law.^^' When either a letter of attorney or the statute confers a power on two or more persons, it is understood, unless otherwise expressed, that all of them must join in the act.^^" In such cases, the death of any of the persons named will prevent the execution of the power.^-^ Among public oflQcers, we must distinguish between those who act under the order or process of a court and those whose action is executive or ministerial. We shall treat of deeds made by the for- mer, under decrees for the conveyance of land, or in transferring lands sold under execution, or in pursuance of a judgment or de- cree, as part of the larger subject of the transfer of lands in the en- forcement of judgments. Otherwise, officers act on behalf of the government, state or federal, in conveying its title. We shall, in an- other chapter, treat of the forms that are prescribed by the laws of the United States and by the laws of some of the states for the first disposition of the soil. We have already referred to the dis- tinctions that grants by the sovereign are effective as soon as they pass the seals, without any manual delivery.^" 8 it> Pennsylvania, Biightly's Purd. Dig. "Attorneys in Fact," 8; Ohio, St. § 4110; Virginia, Code, § 2416; Maine, Kev. St. 1841, c. 91, § 14, referred to in Porter v. Androscoggin & K. R. Co., 37 Me. 349, but seems not to be In the present revision; Citizens' Fire Insurance Security & Land Co. v. DoU, 35 Md. 89, 103, referring to Maryland statute, now article 21, § 27. Attorney ex- ecuting deed "shall describe himself, and sign the deed as agent or attorney," seems to enforce the old rule. Mississippi, Code, § 194 (need not be formally in principal's name). 3 20 Hartford Fire Ins. Co. v. Wilcox, 57 111. 180; Town of Middletown v. Town of Berlin, 18 Conn. 197; Patterson v. Leavltt, 4 Conn. 53. But where a power is given to a firm, one member of the firm. It is held in Texas, can execute the deed in the firm name. Frost v. Erath Cattle Co., 81 Tex. 505, 17 S. W. 52; but, one member dying, the power is gone, Martine v. Interna- tional Life Ins. Co., 53 N. Y. 339, 343; and where a power is given to two "as my attorney or attorneys," it seems that either one may execute it, Greenleaf's Lessee v. Birth, 5 Pet. 132. Several attorneys may, however, execute the deed at several times. Crosby v. Hustcn, 1 Tex. 226. 3 21 Boone v. Clarke. 3 Cranch, C. C. 389. Fed. Cas. No. 1,641. 8 22 See section 51 of this chapter, subtiue. (416) Ch. 5] TITLE BY GRANT. § 57 There remain the deeds by which ministerial officers may divest the land of the private owner out of him, and A'est it either in the com- monwealth or a municipality or another private person. These deeds are always made under the revenue laws; land on which the tax is OA'^erdue or any lands belonging to the delinquent taxpayer, being forfeited, or sold by a nonjudicial procedure, and this for- feiture or sale being followed up and declared by a deed. When such a deed is made in favor of a private buyer at the tax sale, it must be delivered, like a deed between man and man.^^' And it may be further stated that the forms prescribed for such a deed must be closely followed, as the purchaser under a tax sale has no equi- ties by which the lacking form might be supplied.''-* Thus, where the auditor of state, or register, or controller, or treasurer, or some other officer, is authorized to give the deed (sometimes called the ccr- tiflcate), no other officer can take his place.^" If the statute re- quires a public seal to be affixed, the instrument, without such seal, or having only a scrawl or private seal, has no force whatever; and it is of no avail to show that the proper public seal had not yet been made or contrived.^^" Although the deed of a public officer must be made with all the prescribed formalities, yet omissions may be supplied, at least in all but deeds on sales for taxes. Thus, it has been held, where the sheriff's deed on an execution sale was void for want of a seal, the new sheriff could make a new deed which would relate back to the date of the flrst.^" A seal has also been held indispensable to grants or patents by the' commonwealth. The payment of the government price, and full compliance with all the terms of the land law, may confer an equity; but an unsealed deed can add nothing to it, and we are not 823 Doe V. Hileman, 2 111. 323; Atkins v. Kinnan, 20 Wend. 241, 247. 824 See hereafter In "Note on Tax Titles." S2B Graves v. Hayden, 2 Litt. (Ky.) 64. Under an old Kentucliy statute, the register who made the sale must make the deed, though he had left office; getting the new incumbent to affix the seal. If the owner had died, this must be ignored in the deed. "Sic lex scripta est." Curry v. Fowler, 3 A. K. Marsh. 504. 326 Doty V. Beasley, 2 Bibb, 14; Shortridge v. Catlett, 1 A. K. Marsh. 587. 327 Kruse v. Wilson, 79 111. 233. LAND TITLES V.l — 27 (417) § 58 LAND TITLES IN THE UNITED STATES. [Ch, 5 aware that any of the states dispense with the seaJ of the common- wealth.^^* In New England the early informal habits took such deep root that the men appointed by a vote of the legislature or of a town meeting to convey land on behalf of the commonwealth or of a town, would usually execute the deed in their own names; and, to prevent a general unsettling of land titles, the courts felt compelled to give force to deeds made in this form.=^» Generally speaking, a convey- ance which an attorney in fact or a public officer makes to himself is void, not so much on technical grounds as from reasons of good morals and public policy.'*" And for this reason the conveyance will be set aside as fraudulent or illegal, if made to another in name, if it is really made in trust for the attorney or public officer, or with the expectation that the grantee will convey to him.*'^ A late stat- ute in New Jersey, made for the quieting of titles, provides that when a deed by attorney, which recites the power given him by the principal, has been recorded for 10 years, it is prima facie proof of the fact."' § 58. Deeds of Infants and the Insane. In most of the states, full age is yet, as at common law, the first moment of the day preceding the twenty-first birthday; ^"° but the statute has, in the states named in the note, reduced the age 328 Carter's Heirs v. Edwards, 88 Va. 205, 13 S. B. 352 (conceded); Garrett V. Stevens, 36 W. Va. 445, 15 S. E. 177; Doe v. Winn, 11 Wheat. 380; Alex- ander v. Greenup, 1 Munf. 134; Bledsoe v. Wills, 4 Bibb, 329. 329 Cofran v. Cockian, 5 N. H. 458; Thompson v. Carr, Id. 510; Ward v. Bartholomew, 6 Pick. 409. 3 30 E. g. A release of mortgage from attorney to principal. Hutchings v. Clark, 64 Cal. 228, 30 Pac. 805. 331 Graves v. Ward, 2 Duv. (Ky.) 301. 832 Act N. J. May 14, 1894 (Sess. Laws). 333 Chitty's note 12 to 1 Bl. Comm. 12, says: "If he is bom on the 16th of February, 1608, he is of age to do any legal act on the morning of the 15th of February 1629, though he may not have lived 21 years by nearly 48 hours. The reason assigned is that in law there is no fraction of a day," etc. He cites 1 Sid. 162; 1 Keb. 580; 1 Salk. 44; Ld. Raym. 84. See Ross v. Morrow, 85 Tex. 172, 19 S. W. 1090 (born April IT, 18G0, of age AprU 16, 1881). (418) ^h. 6] TITLE BY GRANT. § 58 for women from 21 to 18, or has put an end to minority, either for women only or for men and women alike, at marriage, or at marriage with parental consent."* In Missouri, Arkansas, Texas, and some other states, the probate court or judge is authorized by statute to grant, upon application, to persons of less than full age the power "to do business" as if of full age. This authority has been held, in Arkansas, not to extend to children under 14. In Texas, it is thought not to be judicial in its nature, so that the proceedings do not enjoy the presumption of regularity.^ ^° Conveyances of land by those under the lawful age are not bind- ing upon them; and the law governing conveyances by persons of unsound mind is very much the same, now, as that which governs conveyances by infants. The old distinction that a lunatic cannot disaffirm his own conveyance, that he cannot stultify himself, but must wait for his heir or devisee to do so, has long since been aban- doned, both in England and America.^ ^° The conveyance made by an infant or person of unsound mind, generally speaking, is not void, but voidable; for it might, if the 33 4 The folio wiQg states fix the majority of women at a lesser age than 21; Vermont, § 2421; Ohio, § 3136; Illinois, c. 64, § 1; Iowa, § 2237; Min- nesota, c. 59, i 2; Kansas, par. 3808; Nebraska, § 1465; Maryland, art. 93, § 144; California, Civ. Code, § 25; the Dakotas, Ter. Civ. Code, § 10; Oregon, § 2951; Nevada, §4943; Idaho, §2405; Missom-i, § 5278; Arkansas, § 3463, at 18. In Ma- ryland, ubi supra (by inference only); Texas, art. 2858; Oregon, § 2951,— a woman acquires all the power of an adult by marriage; and in Nebraska a woman over 16, who marries; in Iowa, ubi supra, and Texas, art. 4857, all persons, boys or girls, become of age when lawfully married. In Washington, a woman is of age at 18, or when married with consent of parent or guardian (section 1134). The Maryland law was amended in 1890 (Laws, c. 210, p. 240) so that an unmarried woman between 18 and 21 cannot put a deed of trust on her lands without being first, upon petition, authorized to do so by a court of equity. The petition must show residence in the county, or the order is void. Hindman v. O'Connor, 54 Ark. 627, 16 S. W. 1052. In Maine, a married woman of any age has the same power over her lands. St. e. 61, § 1. In Minnesota, by act of April 20, 1891, a m'nor wife can convey her land, her husband joining. Daley v. Minnesota Loan & Inv. Co., 43 Minn. 517, 45 N. W. 1100. 336 Doles V. Hilton, 48 Ark. 305, 3 S. W. 193, under what is now Ark. Dig. S 1362; Brown v. Wheelock, 75 Tex. 385, 12 S. W. Ill, 336 2 Kent, Comm. 450; Thompson v. Leach, 3 Mod. 310; Key v. Davis, 1 Md. 32. (419) § 58 LAMD TITLES IN THE UNITED STATES. [Cil. 5 consideration was full and adequate, and had not been wasted, be for the infant's benefit that the conveyance should stand.^'^ But a letter of attorney or other deed made by an infant, by which he only confers power to another to deal with his estate, has always been held entirely void; ^'^^ and so has a deed which shows upon its face, that it cannot result in any benefit to the grantor, — as a quitclaim without consideration, or a deed by which the infant's land is pledged for the debts of another, — even if it be the land of an infant wife for the debt of her husband.^^* The distinction between void and voidable has these consequences: First, the party buying from the infant, or who is to advance money upon his mortgage, is bound by his contract, if himself of full age and otherwise capable of contracting; second, parties not claiming under the infant cannot impeach the conveyance (for' instance, if the infant's grantee brings ejectment against an intruder, the 337 Zouch V. Parsons, 3 Burrows, 1794, is the leading case. It sliows by old precedents that a feoffment by an infant is valid till disaffirmed. Dis- tinction between void, voidable, and valid set out by Eyre, C. J., in Keane V. Boycott, 2 H. Bl. 511. The rule is thus stated by Perkins, an early law writer: "All such gifts, grants, or deeds as do not take effect by delivery of his hand (such as we would now call 'executory') are void. But all gifts made by an infant by matter in deed (i. e. livery of seisin or its equivalent), or in writing, which take effect by delivery of his own hand (i. e. executed con- veyances), are voidable by him and his heirs and by those who have his estate." Philips v. Green, 3 A. K. Maxsh. (Ky.) 12; Logan v. Gardner, 138 Pa. St. 588, 20 Atl. 625; Tucker v. Moreland, 10 Pet. 58, and authorities there quoted; McGan v. Marshall, 7 Humph. (Tenn.) 121; U. S. v. Bainbridge, 1 Mason, 82, Fed. Gas. No. 14,497 (treating this matter incidentally only),— follow the leading case. See, also, 2 Kent, Comm. lect. 31. 33 8 stated in Bool v. Mix, 17 Wend, 119. This would apply to the power of sale in a "deed of trust." Cooper v. State, 87 Ark. 424, does not prove the contraiy. And see above, in section on "Letters of Attorney." 33 9 Robinson v. Coulter, 90 Tenn. 705, 18 S. W. 250 (covenant of seisin broken by void deed from infant), following Swafford v. Ferguson, 3 Lea, 292. See contra, deed of gift to children. Slaughter v. Cunningham, 24 Ala. 260; Chandler v. McKinney, 6 Mich. 217. Here a decree obtained during the mortgagor's Infancy to sell her land was held void. The decision is perhaps unsound as an unwarranted disregard' of a judgment rendered by a com- petent court. A release of dower by an infant wife was held void in Sherman V. Garfield, 1 Denio, 329, but not on the ground of being a voluntary con- veyance. See case of dower in note 341. (420) Ch. 5] TITLE BY GRANT. § 58 latter cannot plead an outstanding title in the infant grantor).'*' Third, and what is most important, the infant, after he comes of age, may, by acts not amounting to a new conveyance, afiSrm that made during minority, or estop himself from impeaching or dis- affirming it. He may thus estop himself by standing by, after he becomes of age, while the purchaser improves the premises, or makes considerable outlays in building and rebuilding, or while third parties buy from or advance money to his grantee on the faith of these lands ; and these acts, when combined with long acqui- escence, for a less time than that fixed by the statute of limitations, may bar him from setting up his rights of disaffirmance.^*' And this right can often be exercised only on terms, such as the restoring of the consideration received; which would be otherwise if the conveyance was void, and the grantee under the infant's deed was a mere intruder. In fact, the conveyance of an infant or person of unsound mind (at least, one not found judicially to be such) stands good until disaffirmed. No formal act to that end is necessary, or usual. The infant, when he comes of age, or, when he dies, his heir or devisee, may, without previous notice or demand, bring his ejectment suit, which is a disaffirmance in itself, while a plea of infancy is the shortest way of disaffirming a mortgage, which it seems a court would be compelled to enforce, if the plea is not set up.^*^ Or he may give a written notice of disaffirmance, which 340 The first point, which hardly concerns us at all, is stated in many opin- ions as the great element of difference between void and voidable. In the leading case (note 336) the second point arose. The naked legal title in land, having fallen on an infant, was by him, at the request of those in interest, conveyed to the lessor of the plaintiff; and the defendant was not heard to object on account of infancy. In Oldham v. Sale, 1 B. Mon. (Ky.) 76, a widow claiming dower was not allowed to object to her husband's complying with contract of sale made before marriage, while an infant. 341 Wallace's Lessee v. Lewis, 4 Har. (Del.) 75 (four years deemed unrea- sonable where the purchaser was seen making improvements); Hartman v, Kendall, 4 Ind. 404 (17 jrears' acquiescence in release of dower by an infant wife); Kline v. Beebe, 6 Comm. 494 (acquiescence for an unreasonable time, though by a married woman, an affirmance); Irvine v. Irvine, 9 Wall. 617 (four years after full age, and seeing expensive improvements go on). 342 Mustard v. Wohlford's Heirs, 15 Grat. 329; Bedinger v. Wharton, 27 Grat. 857; Jackson v. Carpenter, 11 Johns. 539,— where the ancient mode of avoiding a feoffment made by an infant with liveiy of seisin is said to have (421) § 58 LAND TITLES IN THE UNITED STATES. l^n. O is operative either with or without re-entry; and, while anciently a re-entry was thought to be the only way to avoid a feoffment with livery of seisin, it is still a good disaflarmance of conveyance by deed.''" Or, the infant, when he comes of age, may convey the same estate to another grantee, the new deed being incompatible with that executed during infancy, and thus disaffirm the first grant; and the second grantee will recover.''** No length of time, short of the bar of limitations, takes from one who has conveyed his land during infancy the right to disaffirm by either of these methods; and this right, on his death, goes to his heir or devisee, to be exerted within the like period. In other words, silence alone does not estop the grantor or his heirs, etc., from disaffirming, and the ' rule is sometimes stated in this form.'** If the consideration received is still, in some tangible form, in the hands of the grantor or his heirs, who come to disaffirm, it ought to be tendered back;'** but, -if it has been wasted or lost, been a re-entry on tlie land, but that an action is now sufficient Tuclser v. Jloreland, 10 Pet. 58, sliows that entry cannot be necessary where the infant is not out of possession. A remainder-man may disaffirm. Ihley v. Padgett, 27 S. C. 300, 3 S. E. 468 (arguendo). No solemnity of any kind required. Drakes' Lessee v. Ramsay, 5 Ohio, 251; Singer Manuf'g Co. v. Lamb, 81 Mo. 221. And see cases in next note. 3 43 Green v. Green, 69 N. Y. 553; White v. Flora, 2 Overt. (Tenn.) 426; (re- entry); Roberts v. Wiggins, 1 N. H. 73; Long v. Williams, 74 Ind. 115. 344 Jackson v. Carpenter, 11 Johns. 539; Jackson v. Burchin, 14 Johns. 124; Bool V. Mix, 17 Wend. 119; Peterson v. Laik, 24 Mo. 341 (it is a matter of law, not a question for the jury); I^angdon v. Clayson, 75 Mich. 204, 42 N. W. 805 (a quitclaim deed). 34 6 Wilson V. Branch, 77 Va. 68 (suit by married woman after 32 years, she having lately become discovert); Richardson v. Pate, 'X', Ind. 423 (21 years); Birch V. Linton, 78 Va. 584; Youse v. Norcum, 12 Bio. 549 (second deed, by husband and wife, made 30 years after first); Peterson v. Laik, supra (21 years); Harris v. Ross, 80 Mo. 89 (where the heir of infant wife brought suit after coming of age) ; Harvey v. Briggs (Miss.) 8 South. 274. In Indiana, a woman still under coverture, though she cannot convey her land, can by suit disaffirm her deed made during infancy. Buchanan v. Hubbard, 96 Ind. 1, and a number of Indiana cases there cited. Also Sims v. Everhardt, 102 U. S. 300, 310; Irvine v. Irvine, 9 Wall. 627; Wallace v. Latham, 52 Miss. 293; Stull V. Harris, 51 Ark. 294, 11 S. W. 104. 346 So in aU cases of exchange of land. See below. Also Hill v. Anderson, 5 Smedes. & M. 216. (422) ^t*- 5] TITLE BY GRANT. § 58 it need not be restored or tendered back; for the inability of infants to take care of the proceeds of their lands, and the likelihood of their being cheated out of their money, is one of the main reasons for the law which disables them from a binding disposition of their lands."' ■Where the land of an infant is disposed of in the way of an exchange for .other lands, or where such other lands are bought by or for him (or her) with the price, the retention of these lands for a considerable time after the infant comes of age and is sui juris °''"^ — and, still more, the sale and conveyance of the land taken in exchange — is deemed a ratification. The latter would be conclusive, if anything near the whole proceeds of the lands sold was invested in those newly acquired.''*' 3*7 Cresinger v. Welch, 15 Ohio, 156; Craig v. \an Bebber, 100 Mo. 584, 13 S. W. 906, to which case the editor has appended a note of over 150 pages en the conveyances and contracts of infants, bringing the authorities down to 1890; Claik v. Tate (Mont.) 14 Pac. 761; Vogelsang v. NuU, 67 Tex. 4(55, 3 S. W. 451 (wliere infant's agent had withheld her money) ; Vallandingham v. Johnson, 85 Ky. 288, 3 S. W. 173 (no return of consideration necessary where suit is brought by second grantee); Gibson v. Soper, C Gray, 279; Boody v. McKenney, 23 Me. 517 (the other party need not be put in statu quo); Tuclter V. Moreland, supra; Shaw v. Boyd, 5 Serg. & R. 309. In Chandler v. Simmons, 97 Mass. 508, it is said: "We do not understand that such a condition [return of the consideration] is ever attached to the right of a minor to avoid his deed. If it were so, the privilege would fail to protect him when most need- ed." In Walsh v. Young, 110 Mass. 396, an infant wife, having joined with her husband in selling land held in common, was allowed to recover her half, without offering to return anything, as it did not appear that, when coming of a^e, any part of the price was left in her hands. Green v. Green, 69 N. Y. 553 (where a son sold to his father, and spent the money before coming of age). 84 8 Statutory in Georgia, Code, § 2731. See McKamy v. Cooper, 81 Ga. 679, 8 S. K. 312. Ellis v. Alford, G4 Miss. 8, 11 South. 155 (5 years after discov- ertyre). But retention for only seven months after majority not an estoppel. Cardwell v. Rogers, 7G Tex. 37, 12 S. W. 1006 (not a case of plaintifE's own conveyance). 34!) Buchanan v. Hubbard, 119 Ind. 187, 21 N. E. 538 (though $400 of the price was in money); Ililey v. Padgett, 27 S. C. 300, 3 S. E. 468 (plaintiff had mortgaged the new land). But infant wife not estopped by taking dower iu lands bought by husbanil with proceeds of hers (Richardson v. Pate, 93 Ind. 423), nor by offering to convey again upon full payment of purchase money (Craig V. Van Bebber, supra). (423) § 58 LAND TITLES IN THE UNITED STATES. [Ch. 5 A recital in a deed to a third party, e. g. of a first mortgage given during infancy, in a second mortgage given after majority, or of a conveyance for one parcel of a lot in a subsequent deed conveying another part of the tract, is sufficient as a ratification."^" When an infant buys land, and takes a conveyance, he cannot, while still under age, disaffirm the purchase on the mere ground of infancy, and reclaim the purchase money, though he might do so on the ground of fraud; for to disaffirm the purchase is to divest himself of the title to land. He must wait till he comes of age. But, after a conveyance by the infant, when it is voidable, he or the guardian may, during minority, enter and claim the profits. He may plead infancy, while an infant, to a bill to foreclose or otherwise enforce a mortgage; but he cannot finally disaffirm a sale or conveyance of land (it is otherwise with chattels) until he comes of age; for dis- affirmance may require as much discretion as the original act of sale.^^^ When he has bought land, and has given his mortgage on the land bought for the purchase money, he cannot avoid this mortgage without returning the land, — of course reclaiming at the same time the part of the price paid by him, for which he has a lien on the land.^'^ The right of an infant or person of unsound mind to recover S50 Breckenrldge v. Ormsby, supra; Ward v. Anderson, 111 N. C. 115, 15 S. E. 933,— where It is put partly on the ground that the recital itself creates a charge (as to mortgages); Boston Bank v. Chamberlin, 15 Mass. 220 (as to parcel). See, also, Losey v. Bond, 94 Ind. 67; Ward r. Anderson, 111 N. C. 115, 15 S. E. 933. 3B1 Cummings v. Powell, 8 Tex. 80 (giving the reasons in an actual case). In many other cases of sales of chattels the distinction between these and dispositions of land is given. See Stafford v. Roof, 9 Cow. 626; Towle v. Dres- ser, 73 Me. 252. See, also, North Western Ry. Co. v. McMichael, 5 Exch. 127; Newry «& E. Ry. Co. v. Coombe, 3 Exch. 565 (disaffirming the disaffirmance); Wheaton v. East, 5 Yerg. (Tenn.) 41; Scott v. Buchanan, 11 Humph. 467 (arguendo); Mathewson v. Johnson, Hoff. Ch. (N. Y.) 560; Doe v. Leggett, 8 Jones (N. C.) 425; Kilgore v. Jordan, 17 Tex. 341; Chapman v. Chapman, 13 Ind. 396. The guardian cannot disaffirm during infancy. Oliver v. Houdlet, 13 Mass. 237. The doctrine is upon the authority of Edgerton v. Wolf, 6 Gray, 453, drawn into doubt in Chandler v. Simmons, 97 Mass. 508, where it is held that if, after arriving at full age, he is declared a "spendthrift," his guardian, under that declaration, may disaffirm for him. SB2 Roberts v. Wiggin, 1 N. H. 73; Lyude v. Budd, 2 Paige, 101; Uecker (424) Ch. 5] TITLE BY GRANT. § 58 land granted during disability is not a mere equity, and may be enforced against purchasers in good faith near or remote from the grantee, as well as against him.'^^ Most of the sales by infants that have led to litigation were made by infant married women, and generally under the dominion of laws which restricted the power of married women over their lands by requiring the assent of the husband and a privy examination. It has been said that each of the two disabilities, infancy and coverture, was independent of the other; and, if the forms required for a married woman's deed had been observed, her disabilities are removed from further con- sideration. But, if the statute enables "adult married women," and these only, to convey their lands, it would seem that, under such a statute, the deed of an infant married woman must be void.^"^ When the deed of husband and wife of the land owned by the latter is avoided by reason of her infancy, it will, under the modern laws, which do not allow the husband to grant away his marital right without the wife's consent, be void as to him.°°° V. Koehn, 21 Neb. 559, 32 N. W. 583 (land bought assuming mortgage,' and resold). 353 Mustard v. Wohlford's Heirs, 15 Grat. 329; Harrod v. Myers, 21 Aik. 592; Jenkins v. Jenkins, 12 Iowa, 195; Sims v. Smith, 86 Ind. 571); McMoiris V. Webb, 17 S. C. 558; Hovey v. Hobson, 53 Me. 451 (deed by lunatic); Adams V. Ross, 30 N. J. Law, 505; Myers v. Sanders' Heirs, 7 Dana, 524, where T. A. Marshall, J., says: "The right of an infant to avoid his deed is an absolute privilege, founded upon incapacity conclusively fixed by the law." "Infancy is not, like fraud, a circumstance wholly extraneous from the title." In short, he who buys land takes the chance that all the grantors in the chain had at the time of their respective grants capacity to convey. 3 54 See several of the above cases from Missouri. Also Bull v. Sevier, 88 Ky. 515, 11 S. W. 506. In Schmitheimer v. Eiseman, 7 Bush, 298, the deed of an infant wife was sustained, because she had, at the purchaser's request, made affidavit to her full age; which seems to the writer utterly wrong in principle, as the statute provided for the sale of infants' lands otherwise than "by affidavit," and as the very fact of asking for her oath showed that the purchaser strongly suspected that she was under age. The early Penn- sylvania case of Schrader v. Decker, 9 Pa. St. 14, that an infant mai-ried woman's deed is void, is overruled in Logan v. Gardner, supra (note 337). But it is here admitted that, while under coverture, the infant grantor having become adult, cannot affirm otherwise than by reaeknowledgment or new con- veyance, such as would pass the estate of a married woman. 356 Craig V. Van Bebber, supra. (425) § 58 LAND TITLES IN THE UNITED STATES. [Ch. 5 The acts by which the infant grantor ratifies his or her deed must occur after arrival at majority; and very little force has been given to the infant's representation, at the time, of being of full age then. In fact, in many instances these representations, when made, are known, or strongly suspected to be false by the purchaser.=^° 3 56 Dibble v. Jones, 5 Eq. 389, shows the oppression to which infants may be exposed by holding them bound by misrepresentation of age. In Carpenter V. Carpenter, 45 Ind. 142, and Norris v. Vance, 3 Rich. Law, 1G4 (at law), even the sale of a chattel was not helped out. See, also, Vogelsang v. Null, 67 Tex. 465, 3 S. W. 451; Rundle v. Spencer, 67 Mich. 189, 34 N. W. 548 (where the infant, while such, witnessed conveyances by his grantee, and saw improve- ments made). Vallandingham v. Johuson, 85 Ky. 288, 3 S. W. 173, admits that the misrepresentation cannot prejudice a Iwna fide purchaser from the infant. Charles v. Hastedt, 51 N. J. Eq. 171, 26 Atl. 564 ("the children were mere passive instruments in the hands of older persons"); Wieland v. Kobick, 110 111. 16 (recital in deed that grantor is of age immaterial); Merriam v. Cunning- ham, 11 Cush. (Mass.) 40; Studwell v. Shapter, 54 N. Y. 249 (not a case of land), which follows Brown v. McCune, 5 Sandf. 228, where the vice chan- cellor considers it clear that "the doctrine of estoppel is inapplicable to infants"; Gilson v. Spear, 38 Vt. 311; Burley v. Russell, 10 N. H. 184; Conrad V. Lane, 26 Minn. 389, 4 N. W. 695. Bradshaw v. Van Winkle, 133 Ind. 134, 32 N. E. 877, decides nothing. But courts of equity have undertaken to work out an estoppel in Schmitheimer v. Eiseman, 7 Bush, 298, and in Ferguson v. Bobo, 54 Miss. 121. Watson v. Billings, 38 Ark. 278, discusses the matter, and puts it thus very forcibly: "They cannot, by their own acts, acquire any ability to contract," and quotes from 2 Kent, Comm. 241, strong language to the same effect. In the Mississippi case a girl of 19 had conveyed her land to her father, to enable him to raise money on it. There was much falsehood in plaintifC's conduct, and the land was really bought with her father's means; but the court professed to lay these matters out of the case. It admitted that since Johnson v. Pie (in 17 Car. II.) 1 Lev. 169, 1 Keb. 905, the weight of authority had been against holding infants liable, except in tort, for misrepresentation of age, and that most American courts had refused to estop an infant on any such ground from disaffirming his deed. The court relies, however, on Whittington v. Doe, 9 Ga. 23, where an estoppel for "standing by" and letting land be sold was enforced against an infant near the age of 21 years. Hall v. Timmons, 2 Rich. Eq. 120,— a similar case of a slave owned by an infant of 15 years, and sold in his presence by a kinsman as his own. The latter case was complicated by lapse of time. The English cases referred to are: Savage v. Foster (1723) 9 Mod. 35, a dictum about an infant or feme covert being estopped by "standing by"; Evroy v. Nicholas, 2 Eq. Cas. Abr. 488, where an infant was estopped by witnessing a lease to his own lands, granted by another, who claimed authority; and In re King, 3 De Gex (426) Ch. 5] TITLE BY GEANT. § 58 Although the rule as first stated gave a provisional validity only to those acts of the infant which "take effect by the delivery of his land," i. e. to executed conveyances, it seems that title bonds, especially if accompanied with possession, stand on the same ground, and that if a man, after coming of age, wants to carry out a contract of land made during infancy, the conveyance may relate back to the contract, and no one can complain.'"'' Where the infant's land has been conveyed, not by his own deed, but by his guardian, under color of a license, but, for some reason the guardian's deed is ineffectual, the acts of ratification or of estop- pel must be much clearer than when it comes in aid of his own voidable deed; for the alienalion by the guardian, when it lacks legal authority, is not voidable, but void.'"' An infant who receives, by deed or will, the fee in lands, cannot, by a power to sell given in the same grant or devise, obtain the capacity to sell or convey what thus becomes his property, — that is, a capacity to do what the law disallows; and a clause seemingly giving such capacity must be construed in a way compatible with the general law.'"® In California and the Dakotas some of the matters here treated are governed by statute. "A minor cannot give a delegation of power," nor, while imder 18, "make a contract relating to real estate," which would indicate that his conveyance while under 18, and & X 63, which merely overrules Johnson v. Pie, supra, so that an action In some form may be had for deceit against an Infant who obtains a loan by fraudulent representation of full age. There is no American precedent quoted in the Mississippi case (1876) of land actually passing through the mis- representation, though the only other decision— that from Kentucky — was ren- dered in 1870, and a strong dictum in Davidson v. Young (1865) 38 111. 145. 3 57 Oldham v. Sale, 1 B. Mon. (Ky.) 76; Vallandingham v. Johnson, 85 Ky. 288, 3 S. W. 173. 368 Dohms V. Mann, 76 Iowa, 723, 39 N. W. 823. In Aldrich v. Funk, 48 Hun, 367, 1 N. Y. Supp. 541, the decretal sale was held good; hence tlie affirmance was not needed. Contra, Terrell v. "Weymouth, 32 Fla. 255, 13 South. 429 (which arose out of conduct of infant after a void judicial sale); Cooter V. Dearborn, 115 111. 509, 4 N. E. 388 (delay of 12 years excused). The guardian's deeds in these cases were void; in the last, being without license, had not even color; and there seems to be no room for either ratification or disaffirmance. soo Sewell v. Sewell, 92 Ky. 500, 18 S. W. 162. See our chapter on "Powers." (427) ^ 58 LAND TITLES IN THE UNITED STATES. [Ch. 5 always her conveyance (for women over 18 are adults), is void. Nothing seems to curtail the right of a young man between 18 and 21 to dispose of his lands.^"" In Iowa, also, the statute steps in. A minor is bound by all contracts "unless he disaffirms them within a reasonable time after he attains his majority, and restores • ♦ • all money or property received by him • • • and remaining within his control at any time after his attaining majority." The ^'reasonable time" counts from the infant's marriage (for that makes him or her an adult), as well as from the age limit; but a disaffirm- ance during infancy is good. The length of time allowed after major- ity depends on the circumstances in which the other party is put, and six months was in one case deemed unreasonably long.^"^ Another clause of the Iowa statute denies the right to disaffirm where, from "the minor's own misrepresentation as to his majority, or from his having engaged in business as an adult, the other party had good reason to believe" him an adult.'°^ We may also refer here to the statutes of Maine and Massachu- setts, which provide for filing with the register of deeds a notice of any application to have a person declared a lunatic or a "spend- thrift," so as to deprive him of the power of alienation, and thus warning off purchasers.' °* While, generally speaking, the deeds of persons of unsound mind, like those of infants, when taking effect "by delivery" are not void, but voidable, and have even been held good, where the person had not been judicially declared insane, and the deed was for his bene- fit, the land being sold for a fair consideration, and the money aris- seo California, Civ. Code, §§ 33-35; Dakota, Civ. Code, §§ 15-17. 8 61 Iowa, Code, § 2238; Jenkins v. Jenkins, 12 Iowa, 195 (a delay of only 18 days was, of course, reasonably short); Weaver v. Carpenter, 42 Iowa, 343; Jones V. Jones, 46 Iowa, 466 (six months from marriage too long; one judge dissents); Stout v. Merrill, 35 Iowa, 17; Green v. Wilding, 59 Iowa, G79, 13 N. W. 761 (wrong advice on the law by laymen no excuse; three years and a half too long). 862 Iowa, Code, § 2239. The cases reported on the subject relate to per- fionalty. Dealing as an adult in merchandise might be enough to induce a stranger to accept a deed of land from an infant so engaged. Jaques v. Sax, 39 Iowa, 3GT. 383 Chandler v. Simmons, 97 Mass. 508, gives the history of the legislation on the subject. See, for the present law, Massachusetts, Pub. St c. 139, § 9; Maine, c. 67, § 7. (42S> Ch. 5] TITLE BY GRANT. § 58" ing from the sale used by him for necessaries, yet, as to mortgages by such persons, the courts have held otherwise, even in Massachu- setts, where a mortgage is still looked upon asan executed conveyance. It is there said that "fairness" cannot supply the lacking power to convey, and that the mortgage may be avoided without accounting for the advances received.^** In conclusion, we must speak of certain deeds by infants which are neither void nor voidable, but valid and binding. Whenever an infant makes and delivers a deed of conveyance which it was his duty in law to make, he cannot disaffirm it; but it stands good, as if he was of full age. Thus, if, with money intrusted to him by another to buy land in the latter's name, he should buy it in his own name, it would be his duty to right the wrong. Hence, if, without a decree of court, he conveys to him whose funds he has misapplied, the deed binds him.^°^ Or, if a court should decree him to convey land, and he does so, his deed is binding, and remains such unless the decree- should be opened or reversed.^''^ And where an idiot, not then de- clared judicially to be such, sold his land for a fair price to a pur- chaser in good faith, and the proceeds were used for his necessary support, it was held that the land could not be reclaimed without return of the price; the deed being treated like the contract of an in- fant for necessaries.^*'' In one case, which goes to the verge, a mortgage made by a man out of his mind at the time of execution 364 "Valpey v. Rea, 130 Mass. 384; Chandler v. Simmons, 97 Mass. 508, 515; Seaver v. Phelps, 11 Pick. 304; Brigham v. Fayerweather, 144 Mass. 48, 10- N. E. 735 (mortgage for good antecedent debt). 36 5 Irvine v. Irvine, 9 Wall. 617. 3 66 Yet the American practice is to let infants convey by commissioner,— Grier's Appeal, 101 Pa. St. 412 (where a guardian was ordered to moi-tgage the land of his wards; and, though he was insane at the time, the deed was held good). 367 Burnham v. Kidwell, 113 111. 429. Schaps v. Lehner, 54 Minn. 208, 55 N. W. 911, makes the distinction that the executed contract of an insane person, not found to be such by inquisition, is voidable only if injurious to him, but valid if fair. Eaton v. Eaton, 37 N. J. Law, 108; Lancaster County Nat. Bank v. Moore, 78 Pa. St. 407; Young v. Stevens, 48 N. H. 133; Gribben v. Maxwell, 34 Kan. 8, 7 Pac. 584; Fay v. Burditt, 81 Ind. 433. In the hands of a purchaser in good faith, to be sustained, as far as equitable. Myers v. Knabe, 51 Kan. 720, 33 Pac. 602; s. p. Sponable v. Hanson, 87 Mich. 204, 49' N. W. 644 (429) § 59 LAND TITLES IN THE UNITED STATES. [Ch. 5 was sustained as valid, on tlie ground tliat he had agreed on all the particulars before he had lost his sound mind.^°* § 59. After-Acquired and Future Interests. The ancient warranty inserted in deeds of feoffment was a cove- nant by which the warrantor and his heirs were bound to warrant the title, and might be adjudged to yield other lands to the value of those from which the feoffee or his heirs or assigns might be evicted by paramount title. The learning of "lineal and collateral warranties" is obsolete, not only because modern statutes (beginning with 4 Anne, c. 16) have abolished them, or done away with the sweeping effects which they had at common law, but because mod- ern deeds do not contain warranties in the old sense, but cove- nants of title of which the covenant of warranty is one; but all these covenants are discharged in money, not by the conveyance of other lands. The other covenants which are usually inserted in deeds are that of seisin, that of the right or full power to convey, that against incumbrances (that the title hereby conveyed is free, clear, and un- incumbered), that of further assurance, and that of quiet enjoyment. As far as damages may be recovered on any of these covenants, they lie beyond the scope of this work.^^" The question of the true state of the title at the date of a deed can be, and often is, determined in an action on the covenant of seisin ("that the grantor is lawfully 368 Bevin V. Powell, 83 Mo._365. 369 4 Kent's Comm. 468. Many modem statutes give a short form for the covenants of title as now used. Thus Eev. St. Ind. § 2927, directs that the words "and warrants," inserted after "conveys," shall imply a "covenant from the grantor for himself and his personal representatives that he is lawfully seised of the premises, has good right to convey the same, and guaranties the quiet possession thereof; that the same are free from all incumbrances; and tliat he will warrant and defend the title to the same against all lawful claims." In the Kentucky Statutes, the words "with special warranty" are also defined. And so in many other states. Probably the court would (since heirs are everywhere bound for debts of the ancestor to extent of assets by descent), without such assistance, worli out these meanings. See Miller V. Texas & P. R. Co., 132 U. S. 662, 10 Sup. Ct. 206, for words in the habendum clause that were held to be a good "warranty," though not containing that word at all. (430) Ch. 5] TITLE BY GRANT. § 5'J seised in fee simple of the premises herein conveyed, or meant or intended so to be"); for the covenant is, if the grantor is not fully seised, broken as soon as made, and an action to try the complete- ness of the title conveyed lies at once.^'" But the effect of the cove- nant of general warranty ("that the grantor, his heirs, executors, and administrators, will warrant and defend the premises to the grantee, his heirs and assigns, against all lawful demands"), of spe- cial warranty (that they will "warrant and defend against the law- ful claims of the grantor, and of all persons claiming by or under him"), and of quiet enjoyment, is to estop the covenantor (whether he be the grantor or otherwise joined in the deed) from setting up an after-acquired title, which now means only such as may come to him thereafter by descent or purchase,^'^ but which included former- 370 In Missouri it has been lately held that the covenant of seisin runs with the land. Allen v. Kennedy, 91 Mo. 324, 2 S. W. 142. The common-law war- ranty, like the modern covenant of seisin, could be enforced, not only in case of eviction by the ordinary writ of warrantia chaitae; but, when the feoffee found that the title was defective, by a writ of warrantia chartae quia timet, which became a lien on the defendant's land, and thus secured the judgment that would be rendered after an eviction. This Is fully explained in Funk v. Voneida, 11 Serg. & R. 109. In modern English conveyances the covenant for quiet enjoyment, which is only broken upon an eviction, has taken the place which in American deeds is taken by the covenant of warranty. The covenant for further assurance Is rather unusual in this country. Should it be specifically enforced, it would only produce the effect which even courts of law have given to the ordinary covenants of title of transferring after-acquired interests and estates. Kent, in his Commentaries (volume 4, p. 471, 2d Ed.), speaks of both the covenant of quiet enjoyment and of the personal covenant of warranty as running with the land; and he disapproves the then late English decision in Kingdon v. Nottle, 1 Mauie & S. 355, 4 Maule & S. 53, under which the breach of the covenant of seisin is "continuous," and thus the •covenant itself is made to run with the land, and to inure to heirs and assigns. 3T1 A clause of the statute In many states abolishes "lineal and collateral warranties." The former are where the land and the obligation of the war- ranty descend on the heir from the same ancestor; the latter, where the war- ranty descends from one and the land from another. The former is highly just; the latter, unless assets descend along with the obligation, highly un- just; but this Injustice was in the old common law lessened by the exceptions that "a warranty beginning in disseisin does not bind the heir." Such a re- pealing clause is found, for instance, in Gen. St. Ky. c. 63, §§ 17, 18, run- ning back to 1797. But this repealing clause has been ignored as to lineal warranties. If an after-acquired title of the ancestor, on which he could not f431) § 59 LAND TITLES IN THE UNITED STATES. [Cll. 5 ly,when contingent estates and possibilities were not assignable, these also whenever they came thereafter into possession by subsequent events. The reason for this estoppel by the covenant of warranty, general or special, as by the warranty, payable in land, of the ancient common law, is to prevent circuity of action; for, if the covenantor was allowed to recover upon the after-acquired title, he would be at once liable to restore the value of the land in an action upon the covenant; ^" and this as will be seen from the cases quoted, as well evict bis -warrantee, descends to his heir, how can the latter sue? See, for rebutter by warranty of the covenantor or his heirs, Beard v. Griggs, 1 J. ,T. Marsh. 27; Berthelemy v. Johnson, 3 B. Men. 93; Logan v. Steele, 7 T. B. Men. 108 (a deed made by a commissioner, but with warranty under decree of specific performance); Nunnally v. White, 3 Mete. (Ky.) 585. The new title must be beneficial, not in trust. Dewhurst v. Wright, 29 Fla. 223, 10 South. 682. And see cases quoted below on implied warranty in Illinois and California, etc. Also Fitch v. Pitch, 8 Pick. 480; Trull v. Eastman, 3 Mete. {Mass.) 121 (mere expectancies); Fairbanks v. Williamson, 7 Greenl. (Me.) 96 (rather a covenant of further assurance, not in a conveyance); Moore v. Rake, 26 N. J. Law, 574 (heir barred); Middlebury College v. Cheney, 1 Vt. 33li; Robertson v. Gaines, 2 Humph. (Tenn.) 383; Kennedy v. McCartney, 4 Port. (Ala.) 159; Bush y. Marshall, 6 How. 291; Dart v. Dart, 7 Conn. 250; Loomis V. Bedell, 11 N. H. 74 (though the grant was only of right, title, and interest); Vanderheyden v. Crandall, 2 Denio, 9; Jackson v. Murray, 12 Johns. 201; Jackson v. Stevens, 13 Johns. 316 (said not to be disputed in Moore v. Littel, 41 N. Y. 95); Barton v. Morris, 15 Ohio, 408; Dodswell v. Buchanan, 3 Leigh, 376; and many other cases quoted in American notes to Spencer's Case, In 1 Smith, Lead. Cas. 175. They are based mainly on Co. Lift. 2(55a. "If there be a warranty annexed to the release, then the son shall be barred; for albeit the releasor cannot have the right, etc., yet the warranty may rebut and bar him and his heirs of a future right." As to covenant of quiet enjoyment, see Shelton v. Codman, 3 Cush. 320; Savage v. Mason, Id. 505; Brown v. Manter, 21 N. H. 528. The same effect has been given in New York to a covenant against incumbrances. Coleman v. Bresnaham, 54 Hun, 619, 8 N. Y. Supp. 158. The effect of warranty in Georgia (Doe v. Ramsey, 22 Ga. 627) is now superseded by the more sweeping statute, infra. A special warranty prevents the grantor from setting up a judgment lien against the land. Bennitt v. Wilmington Star Min. Co., 119 111. 9, 7 N. B. 498. A warranty inserted in a voluntary deed to grantor's children works an estoppel. Frank v. Caruthers, 108 Mo. 569, 18 S. W. 927. Trevivan v. Lawrance, 1 Salk. 276, is claimed as an English precedent under the modem system of covenants of title. 372 Pelletreau v. Jackson, 11 Wend. 111. Case on same facts, Jackson v. Varick, 7 Cow. 238; on appeal, 2 AVend. 166. The lack of a wan-anty was said to prevent the assignment of a "possibility" under a devise from taking effect. (432) Ch. •*)] TITLE BY GRANT. § 59 when the covenantor has at the time a partial intei'est in the sub- ject of the warranty or covenant of quiet enjoyment as when he has no valid title at all. The covenant of warranty thus operates as a conveyance, or, if contained in a mortgage, as a pledge, of the estate which may thereafter come to the covenantor, whether by descent or purchase; including purchase in the narrower meaning, i. e. the interest in the land which he may buy thereafter."' Hence, where one conveys, with warranty, land that is declared in the deed to be subject to a mortgage, unless the grantee assumes in the same deed the payment of such mortgage as part of the price, the grantor cannot, if he buys up the mortgage, enforce it against the land in the hands of the grantee or of others holding under the latter.^'* Messrs. Hare & Wallace, in their notes on the Duchess of King- ston's Case, criticise this doctrine as not being founded on any Eng- lish precedents, as the passages from Coke referred only' to the old- fashioned "real covenant" of warranty, which could be pleaded by See, also, Sinclair v. Jackson, 8 Cow. 543. In the older law it was the most important quality of contingent remainders that they could not be assigned by their possible owners, though they might be destroyed by others. However, according to Co. Litt. 352, a man is alwajs estopped by deed indented,—!, e. having in such a deed professed to own an alienable estate, he cannot thereafter deny it. Weale v. Lower, Poll. 54, 61; Noel v. Bewley, 3 Sim. 103. And one who has in a plea to a writ of entry disclaimed Is estopped by record from setting up a future contingent estate. Hamilton v. Elliot, 4 N. H. 182. 373 Sandwich Manuf'g Co. v. Zellmer, 48 Minn. 408, 51 N. W. 379, where' one of the covenantors bought in the title arising under a prior mortgage, and conveyed; the title so acquired passed by the deed containing the covenant. It was the owner's wife who had joined in the deed, apparently to bar dower and homestead, and was not supposed then to have any title. McManness v. Paxson (W. D. Mo.) 37 Fed. 296 (mortgage). Secus, where a wife Joining to release dower does not join in the covenants. Tyler v. Moore (Pa. Sup.) 17 Atl. 216. But where the deed of husband and wife is void on account of Iiis nonjoinder, her covenant is void too. Naylor v. Minocli, 96 Mich. 182, 55 N. W. 664. 374 Boyd V. Haseltine, 110 ilo. 203, 19 S. W. 822 (see below as to Missouri statute); Sandwich Manuf'g Co. v. Zellmer, supra; Probstfleld v. Czizek, 37 Minn. 420, 34 N. W. 896; Brundred v. Walker, 12 N. J. Eq. 140 (covenants against incumbrances relied on); Tefft v. Munson, 57 N. Y. 97. Estate will subserve mortgage with waiTanty, though the debt be barred by bankruptcy. Ayer v. Philadelphia & B. Face Brick Co., 159 Mass. 84, 34 N. E. 177. LAND TITLES. V.l 28 C433) § 59 LAND TITLES IN THE UNITED STATES fCh. 5 way of "rebutter," if the wari-antor or his heir should become de- mandant in a real action against one holding the land, under the common-law conveyance accompanied by the warranty. They quote the supreme court of North Carolina for the position that what in the United States is called a "warranty" is only a covenant of quiet en- joyment, unknown to the days in which the learning of warranties grew up. Yet, whenever the covenantor himself, or an heir, who in- herits the very land in question from the covenantor, seeks to recover on the newly-acquired title, the estoppel by the covenant is so plainly just that it does not need old precedents for its supporf " At com- mon law there was, besides the express warranty, an implied war- ranty, in the words "dedi et concessi" ("have given and granted"), of a deed of a freeliold, good during the life of the grantor, i. e. if the eviction took place before his death; and from the word "dimisi" {"ha\'e dem'ised") a covenant of quiet enjoyment was implied. These implications have been done away with by statute in the states of New York, Michigan, Wisconsin, Minnesota, (California, Oregon, Wy- oming, and Texas as likely to run counter to the intention of the parties ; and the former, at least, would probably not be enforced in other states which have not legislated on the subjecf ° On the other hand, the colony of Pennsylvania enacted a law as early as 3715, which is still in force in its original form, under which the words "bargain, sell, and convey" in any conveyance (other than a lease at a rack rent, or a lease in possession for less than 21 years) imply two covenants: First, that the grantor is seised of an estate in fee, free from any incumbrance done or suffered by himself; sec- ond, for quiet enjoyment against himself, his heirs and assigns. In this state, though, it seems these implied covenants have not in any reported case been used to transfer the after-acquired title ; yet no diflBculty could arise when the grantee's title has passed from him, by death or conveyance, as the restricted covenant for quiet enjoy- ment, at least, runs with the land, though the restricted covenant of 375 Gilliam v. Jacack§, 4 Hawks (N. C.) 310 (former ejectment between them iu 3 Murph. LN. C] 47). See, also, Flynn v. Williams, 1 Ired. (N. 0.) 509. 87 6 New York Kev. St. pt. 2, c. 1, tit. 2, § 140 (whether the deed contains covenants or not); Michigan, § 5655; Wisconsin, § 2204; Minnesota, c. 40, § 6; Texas, § 557; Oregon, § 3007; Wyoming, § 5; California, Civ. Code, § 1113 (but see below). (434) Ch. 5] TITLE BY GRANT. § 59 seisin and against incumbrances does not."" This law has been cop- ied substantially in Illinois. Here a number of cases have come be- fore the supreme court, in all of which the words "grant, bargain, and sell" haye been held equivalent to a special warranty in passing an after-acquired estate to the covenantee; and, if the deed cont^n- ing these words be a mortgage, it carries such new estate of the grantor as far as needed to pay the debt."* The California Civil Code, followed by that of Dakota, Idaho, and Montana, implies the same covenants from the word "grant" alone, but has been construed as giving the same force to the words "bargain and sell." ^'"' The Pennsylvania provision has also been transferred to the statutes of Missouri (where its effect is enlarged so as to raise a full covenant of seisin), Arkansas, Alabama (where each of the three words has the full effect of the three words "grant, bargain, sell"), and Mississippi ; and is or may be applied in all of these states to work out the estoppel of warranty from the words of conveyance most usually employed.^*" At common law there was also an implied general warranty in the conveyance by "exchange," if made in its technical form, and in deeds of partition, which are a kind of exchange of land. 377 Pennsylvania, Dig. "Deeds," § 93; Act 1715; discussed in Weiser v. Weiser, 5 Watts, 279; Funk v. Voneida, 11 Serg. & R. 109. See other Penn- sylvania cases infra, the statute being so old ani so universal in Its applica- tion to deeds that it is hardly referred to. 3TS Illinois, c. 30, § 8; D'Wolf v. Haydn, 24 111. 525 (covenant in mortgage); King v. Gilson, 32 111. 318; Gochenour v. Mo wry, 33 111. 331; Wadhams v. Gay, 73 111. 415; Pratt v. Pratt, 96 111. 184, 197 (covenant in mortgage). The present statute puts each of three words— "grant,"— "bargain,"— "sell,"— in separate quotation marks, as if each singly was to have the full effect. In Jones V. King, 25 111. 383, the express covenants are relied on, the deed ante- dating the statute. 37 9 California, Civ. Code, § 1113; Dakota, Civ. Code, § 628; Montana, Gen. I;aws, § 285; Idaho, § 2935; Touchard v. Crow, 20 Cal. 150; MuUer v. Boggs, 25 Cal. 186. See below as to other clauses of California statute. 380 Missouri, Rev. St. § 2402. These covenants run with the land. Allen v. Kennedy, 91 Mo. 324, 2 S. W. 142. Arkansas, Dig. § 639. See Brodie v. Wat- kins, 31 Ark. 319; Alabama, Code, § 1839. The word "quitclaim," or "right, title, and interest," when added, destroy the waiTanty. Dernc-k v. Brown, 66 Ala. 162; Chambers v. Ringstaff, 69 Ala. 140, holding that the husband joining with his wife, when her deed is void, may thus bar his marital rights. Mississippi, § 2440; but see infra as to that state. (43.5) § 59 LAND TITLES IN THE UNITED STATES. [Ch. 5 While deeds of exchange are probably no longer in use, and the war- ranty incident to them obsolete, the warranty implied in a partition is grounded on such a clear equity that it may be deemed still to prevail, and to bar each of the parties to the division of lands sigainst setting up an after-acquired title to the share allotted to his companions. This doctrine seems, however, to be wholly ignored in Massachusetts.^*^ Some courts (including the supreme court of the United States and that of Texas) have, however, gone further, maintaining that if the deed shows that the grantor intended to con- vey, and the grantee to receive, an estate of particular quality (es- pecially when it purports to pass a fee simple), then, though the deed "may not contain any covenants of title, still the legal operation of the instrument will be as binding upon the grantor and those claim- ing under him as if a formal covenant had been inserted, at least so far as to estop them from ever afterwards denying that he was seised of that particular estate at the time of the conveyance." ^'^ But in most of the states the distinction is kept up that only a covenant running with the land, either express or implied, can bar an estate, 881 Venable v. Beauchainp, 3 Dana (Ky.) 325; contra, Doane v. Willcutt, & Gray, 328. Deed of partition implies no warranty, and, without covenants, does not pass after-acquired estate. So, also, Pendill v. Agricultural Soc, 95 Mich. 491, 55 N. W. 384, where the deeds conveyed "right, title, and interest." 382 Van Rensselaer v. Kearney, 11 How. 297, 301; French's Lessee v, Spencer, 21 How. 228, approved in Hannon v. Christopher, 34 N. J. Eq. 459, 464, followed in Lindsay v. Freeman, S3 Tex. 259, 18 S. W. 727. Recitals in the deed are relied on for an estoppel in Fitzhugh's Heirs v. Tyler, 9 B. Men. 559; but there is also a special warranty. Griffith v. Huston, 7 J. J. Mai'sh. 385, has a short remark in the same direction, but the writing referred to may have contained a covenant. Moreover, the sale was made of state lands after entry or survey, the inchoate title being assignable; so in Irvine v. Irvine, 9 Wall. 617, like inchoate title under United States land laws; Ward v. Dougherty, 75 Cal. 240, 17 Pac. 193, quitclaim deed by bidder at execution sale good enough to carry the title afterwards given by sheriff's deed. These cases are not in fact of after-acquired estates. The Pennsylvania cases. Brown V. McCormick, 6 Watts, 60; Tyson v. Passmore, 2 Pa. St 122, Clark v. Martin, 49 Pa. St. 209,— speak generally of estoppel by deed. But all these deeds, under the act of 1715, contained covenants of quiet enjoyment. But the doctrine is again enforced in Ryan v. U. S., 136 U. S. 68, 10 Sup. Ct 913 (where the deed was, however, made in pursuance of a contract), quoting Smith v. Williams, 44 Mich. 240, 6 N. W. 662, and Case v. Green, 53 Mich. 615, 1» N. W. 554; Lee v. Lee, 83 Iowa, 565, 50 N. W. 33 (lease). (43G) Ch. 5] TITLE BY GRANT. § 59 thereafter acquired; that words operating as a grant only cannot do Before the covenant can operate as a grant of future estates, it must be effective as a contract. Hence, where a married woman has no capacity to bind herself by contract, her conveyance which is authorized by statute can only operate on the present estate. Her covenants no more bind her after-acquired estate in the land conveyed than any other estate : a rule, however, which has not been followed in all the states.'*'* The covenant of warranty or quiet enjoyment is co-extensive only with the grant. Where the granting clause (which may be modified by the habendum) conveys only the "right, title, and interest," only the estate held at the time is under- S8S Jackson v. Wright, 14 Johns. 193 (warranty is necessary); House v. McCormicU, 57 N. Y. 510. New York Rev. St. pt. 2, c. 1, tit. 2, §§ 143, 144, do not refer to after-acquired estates, to contingent estates, or to iwssibilities of reverter, yet a clear intent was held equivalent to a covenant in the peculiar case of Kingsland v. Mayor, etc., of New York, 35 Hun, 458. See, also, People v. Miller, 79 Mich. 93, 44 N. W. 172, following Frost v. Missionaiy Soc, 56 Mich. C9, 22 N. W. 189; McOlure v. Rahen, 125 Ind. 139, 25 N. E. 179; Id., 133 Ind. 507. 33 N. E. 275; Cuthrell v. Hawkins, 98 N. C. 203, 3 S. E. 672; Hnlman V. Dukes, 110 Ind. 195, 10 N. E. 629. 884 So in New York before act of 1862, c. 172; Jackson v. Vanderheyden, 17 Johns. 167; Martin v. Dwelly, 6 Wend. 9; Dominick v. Michael, 4 Sandf. (N. Y.) 374, 425, where it is said, on the authority of Co. Litt. 302, and cases in Cro. Eliz. pp. 39, 700, that a married woman cannot estop herself by deed. So in Kentucky, before 1894. Hobbs v. King, 2 Mete. (Ky.) 141; Nunnally v. White's Ex'rs, 3 Mete. (Ky.) 593 (overruling what is said to the contrary in Massie v. Sebastian, 4 Bibb [Ky.] 433). Den v. Demarest, 21 N. J. Law, .541: Gonzales v. Hukil, 49 Ala. 260, approved also in Wilson v. King, 23 N. J. Eq. 155, and in Tyler v. Moore, 17 Atl. 216 (not reported in Pa. St. Reports); (bound where disabilities abolished. Guertin v. Mombleau, 144 111. 32, 33 N. E. 49: Dobbin v. Cordiner, 41 Minn. 165, 42 N. W. 870). Conti-a, Hill v. West 8 Ohio, 222; Nelson v. Harwood, 3 Call (Va.) 394 (covenant of further assurance specifically enforced) ; Colcord v. Swan, 7 Mass. 291, which is practically over- ruled by Wight V. Shaw, 5 Cush. 66. In Florida, by section 1966 of the last Revision, a married woman is bound by her covenants of title to estoppel, but not personally. By Virginia Code, § 2502, the wife's covenants can operate only on her "separate estate." In Nevada, by statute, section 2589, the wife Is bound on her covenants with her after-acquired estate, but no fm-ther. The view binding the feme covert by her covenants claims to rest on the analogy of the English law as to the fine and the deed accompanying it "to lead the uses." (437) § 53 I.A.N'D TITLES IN THE UNITED STATES. [Uh. 5 stood to be conveyed, and nothing more is warranted.'*'' Wliere a covenant against incumbrances excepts some mortgage or lien, by name and amount, but the covenant of warranty is general, and the grantee does not assume the accepted incumbrance, as part of the price, the covenantor, or one clainjing under him, cannot, when he takes it in, enforce it against the grantee, or those holding under the latter.^'*" In California, and other states of the far West (the Dakotas, Idaho, Montana, and Nevada), the necessity for covenants has been so far abrogated that "when a person purports, by proper instrument, to grant real property in fee simple, and subsequently acquires any title or claim thereto, the same passes by operation of law to the grantee or his successors." This clause has been enforced on mort- gages, as well as on absolute deeds, but not to deeds of release or quitclaim, even where the habendum showed an intent to carry future acquisitions.**^ The statute of Mississippi and that of Georgia, as construed, go even further, and estop the grantor in a quitclaim deed, "and his heirs, from asserting a subsequently acquired adverse title to the lands conveyed." The words "quitclaim and release" have been held not incompatible with the intent to convey the fee simple.'** Laws of this kind were enacted in many of the older West- 886 Gill V. Grand Tower Mining, Manufacturing & Transportation Co., 92 HI. 249; Grand Tower Mining, Manufacturing & Transportation Co. v. Gill, 111 111. 556 (20 acres excepted from warranty; acquired estate in them will not pass); Merritt V. Byers, 46 Minn. 74, 48 N. W. 417 (matter for construction what is warranted); Miller v. Ewing, 6 Cush. 34 (habendum excludes future acquisitions). Contra, Loomis v. Bedell, supra, note 311. 386 Sandwich Manuf'g Co. v. Zellmer, 48 Minn. 408, 51 N. W. 379; Kimball V. Sample, 23 Cal. 440; Stanford v. Broadway Savings & Loan Ass'n, 122 Ind. 422, 24 N. E. 154. 387 California, Civ. Code, § 1106 (section 33 of the old conveyance act); Clark V. Baker, 14 Cal. 630; Dalton v. Hamilton, 50 Cal. 422; San Francisco v. Law- ton, 18 Cal. 477; Montgomery v. Sturdivant, 41 Cal. 290; and Morrison v. Wil- son, 30 Cal. 347 (does not apply to quitclaim deeds); Kirkaldie v. Larrabee, 31 Cal. 457; Green v. Clark, Id. 593; Cadiz v. Majors, 33 Cal. 289; Anderson v. Yoakum, 94 Cal. 227, 29 Pac. 500 (habendum in quitclaim deed ineffectual). Dakota, Civ. Code, § 633; Idaho, § 2928; Montana, Gen. Laws, § 267 (worded like that of Illinois, infra). Nevada, § 2602. 88 8 Mississippi, Code, § 2438 (old Code, § 1195); Bramlett v. Roberts, 68- (438) Ch. 5] TITl.K BY GRANT. § 59 em states, with a view to the common habit of dealing in lands still belonging to the United States, as part of the public domain, on which the vendor had settled and made improvements, or set aside to himself in some method recognized by public opinion, but to which he had no title, or at least not the legal title. If he had paid the purchase money, and thus gained a good equity, the patent subsequently taken would, at least in the eyes of a court of equity, if not of a court of law, inure to his grantee; and the statutory clauses in some of these states (as in Illinois and Colorado) seem intended simply to convert this equity into a legal title, but have been applied more broadly, where the settler's or pre emptor's or squatter's claims had not matured even into an equity.'** In Iowa, "where the deed purports to convey a greater interest than the grantor was at the time possessed of, any after-acquired title of the grantor, to the extent," etc., "inures to the grantee," subject to the mortgage for the purchase money which the grantor may have to give on his new purchase. The after-acquired title of a wife, who only joins as such, is not affected.'"" In Kansas the clause is very broad, but its effect is destroyed by the introduction of the words "quitclaim and release," along with the ordinary "grant, bargain, and sell," into the granting clause, on the ground that by introducing these words the grantor showed an unwillingness to denote the quantity of estate which he meant to convey.'"^ There is a similar provision Miss. 325, 10 South. 56. Georgia, Code, § 2699; dlsposiD? of the contrary law in Bivins v. Vinzant's Lessee, 15 Ga. 521, and Way v. Arnold, 18 Ga. 181, where a subsequent purchaser from the same grantor was held not to be barred by his warranty. The statute is enforced in Parker v. Jones, 57 Ga. 204, where the older Georgia cases are quoted and distinguished. 389 Illinois, Rev. St. c. 30, § 7; Colorado, § 201; but title acquired from grantee does not inure to him. Miller v. McMannis, 104 111. 421. As, only under a grant purporting a fee, the after-acquired title inures to the grantee, mortgages have been helped out under the covenants, written or implied. See note 378. When the grantor has the equitable title, his later-acquired legal estate will follow, even under a quitclaim. Welch v. Button, 79 111. 4(55. 390 Iowa, § 1931, enforced in Rogers v. Hussey, 36 Iowa, GG4; Bellows v. Todd, 39 Iowa, 209. Wives joining to bar dower not estopped. Childs v. McChesney, 20 Iowa, 431; O'Neil v. Vanderburg, 25 Iowa, 104. 31)1 Kansas, Gen. St. par. 1114 (old par. 1089). Does not apply to quitclaims. Brace V. Luke, 9 Kan. 201; Ott v. Spiague, 27 Kan, 624; Sutphen v. Sutphen, 30 Kan. 510, 2 Pac. 100 (deed of homestead entiy). The estoppel runs with (439) § 59 LAXD TITLES IN THE UNITED STATES. [Ch. 5 in Nebraska, and in Arlcansas, and was in Missouri under the Re- vision of 1879. Here, as in Illinois, the force given to the words "grant, bargain, and sell" rendered such a provision almost needless. While some of the states, as Illinois and Colorado, give this effect only to deeds purporting to convey the fee simple, and others speak of a deed purporting to convey a greater estate than the grantor has, the difference is unimportant in the application of the law.^'^ We have dealt so far with the simple case where the covenantor acquires a new estate, and' thereafter either he or his heir or devisee sues, when the justice of the estoppel ia self-evident. But it may happen that on the covenantor's death his heirs, bound by his general warrantj', acquire the estate by inheritance from another source, or by purchase. Thus, when husband and wife convey the latter's lands, and her grant is void or voidable, and her warranty void, the children become heirs to the father's liability and to the wife's right of entry. The harsh doctrine of "collateral warranty," which bars them, regardless of assets, is no longer known; but if they have re- ceived from the warranting ancestor assets, in lands or chattels, by intestacy or by will, they ought, to that extent, pay this, like any other liability of the ancestor. A fcAV states have, by statute, worked out an estoppel known as "warranty and assets" (these are Kentucky, Virginia, and West Virginia),^'^ while the N^ew York statute, in the land to the holder of a quitclaim deed. Scoffin v. Grandstaff, 12 Kan. 4C7. Statute enforced also in Gray v. Ulrich, 8 Kan. 112; Simpson v. Greeley, Id. 5S6. 3 9 2 Nebraska, Consol. St. § 4376. Arkansas, Dig. § 642 (fee simple or other es- tate; any legal or equitable estate passes to the grantee). Enforced in Cocke v. Brogan, 5 Ark. 693; Holland v. Eogers, 33 Ark. 251; Watkins v. Wassell, 15 Ark. 73 (momentary seisin in grantor, not subject to his debts); Jones v. Green, 41 Ark. 363 (deed by corporation). The Nebraska act, by amendment made in 1875, excepts quitclaim and special warranty deeds from its opera- tion. 8 3 Kentucky, Acts 1891-1893, c. 150, § 16. It bars any claimant who has received anything from the vendor with general warranty by gift, advance- ment, descent, devise, or distribution, to the extent in value of the thing received (the statute says "devised"). Enforced in Proctor v. bmith, 8 Bush, 81. The writer had occasion to save a remote purchaser from the wife, whose deed was void for informality, by showing that the warranting husband had advanced land in another state to his daughter, ihe claimant, fraudulently pretending to sell it to her husband. Dancey v. Schoening, Louisville Ch. Ct (440) ^-Jil- &J TITLE BY GRANT. § 59 words, and those of other states, by silence, declare that the heirs are liable to the extent of assets received, but put the covenantee to his action on the covenant of the ancestor, as he would have to sue on any other obligation.^'* So much as to after-acquired estates, properly so-called; that is, those which arise from a descent cast, devise taking effect, public or private grant, or judicial or ministerial sale (in short, by descent or purchase) after the deed. As to such future estates, which the grantor in a deed was already entitled to by a preceding grant or devise in his favor, but only by way of contingent remainder, exec- utory devise, or possibility of reverter, it may be stated that all sucli interests pass at the present time without the aid of any warranty or like covenant, by the simple effect of the granting clause, when- ever it purports to convey a fee, or such quantity of estate as will embrace such future interest. It is not necessary again to state the law of Mississippi and Georgia, which make even new acquisitions pass, or of California, where they pass under any but a quitclaim deed, by the aid of statute; or of Texas, where they so jjass by ju- dicial decision.'"" In New York a long and obstinate litigation over a release without warranty, of a "survivorship" devised to the grant- or, resulting in the annulment of the release as ineffectual, ijrobably gave rise to the direction of the Eevised Statutes, in force since 18.30, that "every grant shall be conclusive as against the grantor, and his heirs claiming from him by descent, also * * • as against subse- quent purchasers from such grantor, or from his heirs claiming as such," with a proviso to conform to the registry laws.^"' Other states have by similar clauses, or by more direct words, made contingent estates and so-called possibilities assignable by grant; ^°' and such 1875. The Virginia and West Virginia Statutes (Code Va. § 2419; Code W. Va. c. 71, § 7) are not so broad, but bar the heirs only to the value of estate descended. 394 New York, Rev. St. pt. 2, c. 1, tit. 2, § 141, the same that abolishes lineal and collateral warranties. 306 See, supra, notes 382, 385, 386. 3 06 New York, Rev. St. pt. 2, c. 1, tit. 2, §§ 143, 144. See eases namea in note 372. »»7 Kentucky, Gen. St c. 03, art. 1, § 6: "Any Interest In (jr claun to real estate may be disposed of by deed or will in writmg." Virginia, Code, § 2418, and West Virginia, Code, c. 71, § 5,— nearly the same. Maryland, Pub. Geu. (441) § 59 LAND TITLES IN THE UNITED STATES. [Ch. 5 interests will pass by the general words of an assignment for the benefit of creditors.^"* Wherever the grantor has an inchoate title, — for instance, such as a pre-emptor or actual settler has under the United States land laws, or the owner of an "entry" or survey under the land laws of some of the states, or the purchaser at an execution or decretal sale, or at a tax sale, — the statute which governs the disposition of public lands, or the sale of lands for debt or in the enforcement of the tax lien, determines whether the inchoate rights thus acquired are assignable. If they are, a conveyance in the ordinary form would take effect as such assignment; and the patent, or sheriff's, commissioner's, or Laws, art. 21, § 12 (the words "grant or bargain and sell" carry any interest the grantor has); Indiana, § 2919 ("of land or any interest therein"); Wash- mgton, § 1422 (Id.); Missouri, Rev. St. § 2395 (Id.); Nebi-asl?:a, Consol. St. § 4375. There is no such clause in the New Jersey statute; hence in Apgar V. Christophers, 33 Fed. 201, the United States circuit court for the New Jer- sey district put the binding effect of the grant of a survivorship — i. e. of a possibility — on the ground of estoppel by deed, rather than on Its being as- signable (a distinction with little difCerence), though the deed was without warranty, following the supreme court cases quoted in note 382; Hannon v. Christopher, 34 N. J. Eq. 459; Jolly v. Arbuthnot, 4 De Gex & J. 224; and Morton v. Woods, L. B. 4 Q. B. 293. It is said that a deed of bargain and sale passes only vested interests. The expectancy of the heir in tail does not pass by his deed. Davis v. Hayden, 9 Mass. 514. Only in Maine and Mas- sachusetts the power to alien contingent estates is seemingly limited, as the only statutory change of the common law runs thus: "When a contingent re- mainder, executory devise," etc., is so granted or limited to a person thaE in case of his death before the happening of the contingency the estate would descend to his heirs," etc., "[he] may before the happening," etc., "sell, assign or devise the premises subject to the contingency." Massachusetts, Pub. St. c. 126, § 2; Maine, c. 73, § 3. Nevertheless, grants of expectant estates, whlob would not so pass to the heirs, have been sustained. At least it is said in Dan- iels V. Eldredge, 125 JIass. 356, 359: "But, if such estate of the son was in the nature of a contingent remainder, his interest in that contingent estate was vested and capable of being alienated by him, and of passing by assign- ment in insolvency," etc. StiU stronger is Belcher v. Burnett, 126 Mass. 23(). In Read v. Hilton, 68 Me. 139, the statute was confessedly extended to a case not falling within its letter, as being "within its spirit and within the mis- chief it was designed to remedy." 398 White's Trustee v. White, 86 Ky. 602, 7 S. W. 26 (sliaro in land to be divided among children who may then live). Also Belcher v. Bm'nett, supra, and many other cases. (442) Ch. 6] TITLE BY GRANT. § 60 treasurer's deed, afterwards made, must in some form inure to the benefit of the grantee.'"" § 60. Champerty. "There is one check to the power of alienation of a right or inter- est in land, taken from the statute of 32 Hen. VIII. c. 9, against selling pretended titles; and a pretended title, within the purview of the common law, is where one person lays claim to land of which another is in possession, holding adversely to the claim." Of course, a release by the claimant to the tenant in possession is not within the prohibitory rule.*"" This rule, upon the whole salutary, has sometimes led to strange and unexpected results. It would, if fully carried out, prevent the buyer of a farm or house from obtaining a correction of the boundary fence, if the strip in dispute had, for even a short time, been held adversely to his vendor.*"^ But, instead of seeking to correct the workings of the rule in detail, about half of the American states have repealed it by statute, viz.: Maine, Vermont (since 1884), Illinois (since 1845), Michigan, Wisconsin, Iowa, Minnesota, Kansas, Ne- braska, Missouri, Arkansas, California, Oregon, Nevada, Colorado, Idaho, Montana, Wyoming, Utah, Arizona, Georgia, and Mississippi; Massachusetts only in 1891. New York has in her Revised Statutes re-enacted the common-law rule, but without the forfeiture of the 388 Indiana, Rev. St. § 3000, validates contracts made in lands of the Unitea States. Such contracts, as to lands bought and paid for, but not patented, are valid. Stone v. Young, 5 Kan. 229. See, also, cases on this point in note 382. 40 4 Kent, Comm. 446. Chancellor Kent, further on, shows the deep-seated reasons of the rale in the common law, and quotes older statutes for enforcing it. Some of the older American statutes forfeited the right of entry, unlaw- fully assigned, the forfeiture to inure to the disseisor or party in possession,— e. g. a Kentucky act of 1824; but such a forfeiture is unconstitutional. More effective were the acts giving a penal action, against grantor and grantee, in which a sum equal to the value of the land might be recovered. *oi But held not applicable to a boundary question about which there had been no previous dispute. Danziger v. Boyd, 120 N. Y. 628, 24 N. E. 48^. Also Smith v. Faulkner, 48 Hun, 186; Clark v. Davis (Super. N. Y.) 19 N. Y, Supp. 191. In Kentucky such cases are supposed to be within the law. (443) § 60 LAND TITLES IN THE UNITED STATES. [Ch. 5 pretended title which is declared by the statute of Henry Vin.*''^ The alienation of pretended titles, known as champerty, has also been declared void by the statutes of Kentucky, Ehode Island, the Dakotas, and, with great severity, by those of North Carolina and Tennessee.*"^ In the other states the courts deal with the question according to their best lights under the common law, as modified by English statutes, generally ignoring the doctrine altogether. The New York Revised Statutes declare that "every grant of land shall be absolutely void if, at the time of the delivery thereof, the land shall be in the actual possession of a person claiming under a title adverse to that of the grantor"; but they allow the claimant, by the very next section, to mortgage his "just title"; and from the time when the mortgagor or his representative recovers possession ■of the lands the mortgage shall bind them, and so will a judgment lien. This concession is against the spirit of the old law, of which the leading object was to let every claimant of land fight his legal battles with his own means alone, without the assistance which others might give in hope of sharing the prize.*"* 402 Maine, c. 73, § 1 (see Hovey v. Hobson, 51 Me. 62); Vermont, Acts 18S4, c. 146; Illinois, c. 30, § 4; Michigan, § 5657; Wisconsin, § 2205; Iowa, § 1932: Minnesota, c. 40, § 6; Kansas, par. 1115; Nebraska, § 4355; Missouri, § 2400; Arkansas, § 644; California, Civ. Code, § 1047; Colorado, § 202; Oregon, § 3009; Nevada, § 2603; Idaho, § 2902; Montana, Gen. Laws, § 268; Wyoming, § 7; Georgia, § 2695; Mississippi, § 2433. See, for Massachusetts, Sess. Acts 1891 (Act May 21st). But, notwithstanding such repeal, the assignment of a right to set a deed aside for fraud may be deemed void as against public pol- icy. Illinois Land & Loan Co. v. Speyer, 138 111. 137, 27 N. E. 931, quoting similar cases from Michigan and Wisconsin. 403 New York, Rev. St. pt. 2, c. 1, tit. 2, §§ 147, 148; Connecticut, § 29(T6; Kentucky, Gen. St. c. 11, § 0; North Carolina, Code, § 1333; Tennessee, Code, §§ 2445-2449, etc.; Rhode Island, c. 173, § 2 (only implied from the word "pos- session" in providing for conveyances; but that the principles of the cham- perty law are in force in Rhode Island, is admitted in the two cases of Hall V. Westcott, 15 R. I. 373, 5 Atl. 629, and Doyle v. Mellen, 15 R. I. 523, 8 Atl. 709); Dakota, Civ. Code, § 681; Connecticut, § 2966 (one who is "ousted" cannot grant or lease lands). In Kentucky, besides the champerty act, the first section of the law on conveyances allows the owner to convey all estates in land "not in adverse possession." Dakota, Civ. Code, § 681, enforced by Code Civ. Proc. §§ 45^8; sales by the territory (now state) and judicial sales excepted. 404 The criminal and penal clauses, formerly directed against buyer and (444) Cb. 5] TITLE BY GKANT. § 60 The Kentucky statute makes another concession : The possession, as between mortgagor and mortgagee, lessor and lessee, vendor and vendee (embracing also the seller and buyer of land by executory contract or title bond), and trustee and cestui que trust, is declared not to be adverse; so that a mortgagor, for instance, may sell the land of which the mortgagee is in actual possession. Three other ex- ceptions have been ingrafted, in this state, upon the statute — First, where the right of entry belongs to several persons as joint owners, one or more of them may sell out to their companions, no new par- ties being thus introduced into the dispute; second, where the claim- ant has recovered a judgment for the possession of the land, his title is no longer deemed a "pretended title" within the meaning of the champerty act (though the judgment might still be appealed from), and a sale is valid ; third, that a contract of sale made before adverse possession has been taken of the land may be carried out by a con- veyance thereafter. But a mortgage of land adversely held is void."" The Tennessee act (and that of North Carolina is very much like it) forbids the buying and selling of pretended titles, and declares seller, are not in the New York Revision of 1889. The defendant in an eject- ment suit, while in possession, can sell. The common law and British stat- utes are all superseded by the statute of New York. Sedgwick v. Stanton, 14 N. y. 289. An amendment to the Code of Procedure of 1862, by author- izing grantees of a right of entry to sue in their grantor's name, for a while practically repealed the champerty law; but the act of 1862 was soon re- pealed, and is not embodied in the Code of Civil Procedure. See Towle v. Smith, 2 Rob. (N. Y.) 489. Part owners, it seems, may sell out to each other. Requa v. Holmes, 26 N. Y. 338; same in Kentucky, see next note. *0 5The exception of vendor and vendee, etc., is construed in Kinsolving v. Pierce, 18 B. Mon. 782, and is based on older cases. Batterton v. Chiles, 12 B. Mon. 348; Swager v. Crutchfield, 9 Bush, 411 (when judgment against de- fendants is superseded, and they not ousted, they can sell); Cummins v. Latham, 4 T. B. Mon. 105. By analogy, a defendant, whom the sheriff mis- takenly dispossessed altogether, instead of as to half, may sell. Barret v. Co- burn, 3 Mete. (Ky.) 510; Greer v. Wintersmuth, 85 Ky. 516, 4 S. W. 232 (as to carrying out a contract). As to vendor and vendee, see Craig v. Austin, 1 Dana, 518; GrilBth v. Dicken, 4 Dana, 563. The exception was carried too far in Chrisman v. Gregory, 4 B. Mon. 480. A gift is as void as a sale. Clay v. Wyatt, 6 J. J. Marsh. 584. Joint owners may sell out to each other. RuS' sell V. Doyle, 84 Ky. 386, 1 S. W. 604. Mortgage is void. Redman v. Sanders>. 2 Dana, 69. (445) § 60 LAND TITLES IN THE UNITED STATES. [Ch. 5 utterly void any "agreement, bargain, sale, covenant or grant, where the seller has not by himself, agent, tenant or ancestor been in actual possession of the lands, or of the reversion or remainder, or taken the rents," etc., "for one year," etc. This forbids the sale of the fu- ture estates under one title w^hile the land is possessed under another which ignores such future estate. The act proceeds to allow the sale or mortgage, and especially the sale by execution, of lands of which no person at the time holds adverse possession; but, if the seller is not in possession, the presumption is against the purchaser. When the land of nonresidents is in the possession of others, this must be claimed under deed, devise, or descent, to prevent a sale. The pos- session of a third person is presumed to be adverse; but the pur- chaser may show good faith. On this proviso an exception has been built, as in Kentucky, sustaining a conveyance in pursuance of a contract made before any adverse possession had been taken.*"' The Connecticut statute has ,also been often brought before the courts, and has been construed very much like those of New York, Tennessee, and Kentucky. Mortgages are not deemed "alienations" of land, within its meaning.*"'' It has been generally held that a conveyance made after an ouster or intrusion, in pursuance of a con- dition inserted in a previous deed, or of a contract of sale, — and in 40 6 The awkward and contradictory wording of the Tennessee act, first en- acted in 1821, arises from its being drawn In part from the act of Hen. VIII. The clause in favor of nonresident owners was drawn because large ti-acts belonging to them were occupied by squatters without pretense of title. All the exceptions are explained in Whiteside v. Martin, 7 Yerg. (Tenn.) 384, 396; the rights of nonresidents in McCoy's Lessee v. Williford, 2 Swan (Tenn.) (542 (no champerty); Saylor v. Stewart's Heirs, 2 Heisk. 510, and Bleidorn v. Pilot Mountain Coal & Min. Co., 89 Tenn. 16G, 204, 15 S. W. 737 (decree of court or grant by state give color to occupant); a deed void on its face does not, Hardwick v. Beard's Heirs, 10 Heisk. (Tenn.) 659; judicial sales on previous contracts not within the statute, Sims' Lessee v. Cross, 10 Yerg. (Tenn.) 4G0. The Tennessee law is severest in dealing with the employment of lawyers on a contingent fee. The North Carolina law on this subject, from the lack of reported cases under it, seems to be a dead letter. *«' The older statutes gave a penalty recoverable by the party in posses- sion; and the rightfulness of alienations is determined in some cases in suits for the penalty. Leonard v. Bosworth, 4 Conn. 421 (mortgage not within law). Releases within it Hinman v. Hinman, Id. 575; Sheinvood v. Barlow, 19 Conn. 471. (44G) Ch. •">] TITLE BY GRAKT. § 60 Kentucky it has been said, even in pursuance of an oral contract, — is not within the mischief provided against, of trading in pretended titles, and therefore not within the atatute.and so whenever there was a legal or moral duty to convey and to accept the land.*"* Generally speaking, the first question to be determined on a plea of champerty is this: Was the possession adverse? Though it has been often said that this is a question of fact for the jury, yet, as a matter of law, it may be stated that, whenever the real occupant rec- ognizes the owner's title, or from the circumstances may be supposed to recognize it, the sale is good. Thus, aside 'from the exceptions made, as above shown, in the Kentucky statute, a defendant in ex- ecution who remains in possession after a sale will be regarded as the purchaser's tenant at will, the possession of a dowress will be considered amicable to the heir, and an occupant who assents to the sale cannot be said to hold adversely.*"" The owner of wood lands *osGumi v. Scovil, 4 Day, 234 (reconveyance in conformity to condition); Townsend v. Chenault (Ky.) 17 S. W. 185 (commissioner's deed on old title); Harral v. Leverty, 50 Conn. 46 (pursuant to contract). Compare notes 404- 406. Cardwell v. Sprigg, 1 B. Mon. 372 (oral sale); Hopkins v. Paxton, 4 Dana, 36 (deed made to correct a mistake); Simon v. Gouge, 12 B. Mon. 164; Saunders v. Groves, 2 J. J. Marsh. 408 (reconveyance by vendee. when ousted on return of price). 409 Mitchell v. Llpe, 8 Yerg. (Tenn.) 181; Hoyt v. Thompson, 5 N. Y. 320; Snowden v. McKimiey-, 7 B. Mon. 258; Little v. Bishop, 9 B. Mon. 240 (quaere, whether possession of grantee in deed to defraud creditors Is adverse to purchaser under execution); Wilson v. Nance, 11 Humph. 189; Driskell v. Hanks, 18 B. Mon. 864; and Chaira v. Hobson, 10 Humph. 354 (dowress; see, also, about character of her possession, Vance's Heirs v. Johnson, 10 Humph. 214); Mclntire v. Patton, 9 Humph. 447; Sanford v. Washburn, 2 Root, 439 (possession of mortgagee). Land occupied by mistake coming from common source. Harris v. Oakley, 54 Hun, 635, 7 N. Y. Supp. 232; Doyle v. Mellen, 15 B. I. 523, 8 Atl. 709 (grantee of mortgagor does not hold adversely to trus- tee in mortgage so as to prevent sale by him); Moore v. Brown, 62 Hun, 618, 16 N. Y. Supp. 592 (holding mine under contract for products not adverse to title). See, for peculiar case where possession was deemed adverse, Gately v. Weldon (Ky.) 14 S. W. 680. It is often remarked, especially in the Kentucky cases, that possession, though sufficiently adverse to set the statute of limita- tions to run, may not be sufficient to stamp a sale of the outstanding title as champertous. In Indiana, one tenant in common, though ousted by his com- panion, may convey. Patterson v. Nixon, 79 Ind. 251. Holding under unre- corded deed may be adverse. Hinman v. Hinman, 4 Conn. 575. (447) § 60 LAND TITLES IN THE UNITED STATES. [Ch. 6 is not ousted by persistent trespasses on his timber.*^" Where the vendor remains in possession after a sale, and might be supposed to hold on behalf of the vendee, yet it is not champerty in him to sell the land to another. Nor is any mere right of possession deemed adverse, so as to prevent a deed by the true owner.^" On the other hand, land may be in adverse possession within the meaning of the champerty law, without being inclosed ; and, even in the days when land suits in the Southwest grew mainly out of conflicting patents, it was admitted that a holding under the same patent might be adverse and come within the champerty laws.*^^ A tenant's pos- session becomes! adverse when he attorns to a stranger, and his land- lord has notice thereof, or when the landlord abandons his posi- tion as such.*'^ But the grantee from the life tenant does not hold adversely to the remainder-man during the life.^^* The "one year" clause, copied by the Tennessee statute from that of Henry VIIT., has not come up for enforcement in any reported case. Otherwise, the length of time which the adverse possession has lasted is imma- terial.^^^ The covenants of title fall to the ground with the deed.*^" But it seems that one who mortgages his land by deed with full cov- enants is estopped, at least in equity, from setting up the fact (un- known to the other party) that at the time of giving the mortgage there was an adverse possession. *^^ 410 Wickliffe v. Wilson, 2 B. Mon. 43. 411 Bledsoe v. Rogers, 3 Sneed (Tenn.) 467; Dawley v. Brown, 79 N. Y. 390; Cardwell v. Sprigg, 1 B. Mon. 370. The pedis possesslo must concur with a distinct claim of title, hostile to the grantor's. Crary v. Goodman, 22 N. Y. 170. But the possession of a school lot by a school district, though it cannct own land generally, is enough. Sherwood v. Barlow, 19 Conn. 471. 412 Moss V. Scott, 2 Dana, 271; Lillard v. McGee, 3 J. J. Marsh. 551. 413 Ross v. Blair, Meigs (Tenn.) 545; Becker v. Church, 115 N. Y. 562, 22 N. E. 748; Church v. Schoonmaker, 115 N. Y. 570, 22 N. E. 575. 414 Christie v. Gage, 71 N. Y. 189. 416 Whiteside v. Martin, 7 Yerg. (Tenn.) 384, discusses the one-year clause. Kincaid v. Meadows, 3 Head, 192; quotmg Bullard v. Copps, 2 Humph. (Tenn.) 409 (where a tenant disavowed his lease), which speaks of "the mo- ment after it [the adverse possession] commences," and stating that having received the rent for a year would not improve the case. 41 s Graves v. Leathers, 17 B. Mon. 668; the only remedy of the buyer, who Is ignorant of his grantor's lack of possession, being for fraud. Williams v. Hogan, Meigs (Tenn.) 189. 41' Ruffin V. Johnson, 5 Heisk. (Tenn.) G04. (A weak case in which to rely (US) Ch. 5] TITLE BY GRANT. § 60 An executor cannot, under the powers of a will, sell a tract in ad- verse possession, any more than one who holds in his own right; nor can the trustee in a so-called deed of trust (mortgage with power of sale).*^* The unlawful character of the sale is not purged away be- cause it has been ordered by a court on an ex parte application, such as the sale of church property under the laws of New York.*^* Where a deed comprises land which is, and other land which is not, in adverse possession, it is void only as to the latter.*^" To sell a share in an executory contract for the purchase of land, which con- tract was lawfully made before any adverse possession, is not cham- perty.*" When the conveyance falls within the champerty law, and is void, the grantee can, of course, not sustain any action at law or in equity, as owner of the estate granted to him; and, in most of the cases quoted, the question arose in an action by the grantee against the party in adverse possession. But, if the sale of the pretended title is thoroughly void, even between the parties to it, it cannot hinder the grantor from prosecuting his right of entry as he could have done before the champertous grant, — and so it has really been held in New York, Connecticut, and Tennessee ; that is, a plea of the cham- pertous deed is not a good defense to: the grantor's action.*^" Here, the Kentucky law is more severe. While the clause copied from the champerty act of 1824, which denounces a forfeiture to the common- wealth, to inure to the benefit of those in possession, against a claim- ant contracting to have his action managed on shares, is clearly un- on the champerty law. The adverse title had already been defeated, and tha injunction against the "deed of trust" was eviQently taken for delay.) *i8 Peck v. Peck, 9 Yerg. (Tenn.) 301; Whiteside v. Martin, supra. "8 Christie v. Gage, 71 N, Y. 189. Such sale is not a judicial sale. *2o Goodman v. Newell, 13 Conn. 75; Smith v. Railway Co., 8S Tenn. Oil, 13 S. W. 128; s. p., Hyde v. Morgan, 14 Conn. 104. 421 Bradford v. Foster, 87 Tenn. 4, 9 S. W. 195. 42 2 Wilson v. Nance, 11 Humph. 189, followed up in Fowler v. Nixon, 7 Heisk. 729; Key v. Snow, 90 Tenn. 663, 18 S. W. 251; Chamberlain v. Taylor, 1)2 N. Y. 349 (Hamilton v. Wright, 37 N. Y. 502, decided under the amendment of 1862 to Code Proc. § 111, practically repeals the champerty law, and is no longer in force). But a joint bill in equity by vendor and buyer, setting up the deed and seeking recovery, is bad on demurrer. Lenoir v. Mining Co., 88 Tenn. 168, 14 S. W. 378; Phelps v. Sage, 2 Day, 151; Isham v. Avery, 1 Root, 100. Compare Freeman v. Thompson, 1 Root, 402, where grantee sued. LAND TITLES V. 1 29 (449) § 60 . LAND TITLES IN THE UNITED STATES. [Ch. constitutional,*^^ and openly disregarded, and while no forfeiture is denounced against the parties engaged in a champertous sale, still, before bringing his suit, the champertous vendor must "rescind and abandon" the sale; otherwise the suit fails.*^* The grantor may, be- fore suit brought, elect against the grantee to hold his title; but, under the maxim of "in pari delicto," he cannot invoke the active aid of a court of equity. ■'-° The grantee in a champertous deed can no more defend a suit upon the title arising therefrom than he can institute a suit upon it.*^" It goes without saying that the commonwealth is not bound by the champerty acts. The possession of the citizen is never taken to be adverse to the sovereign. Deeds made in the name of the state, whether of the public domain, of escheats, forfeited lands, etc., are never held void for champerty.*^^ We have seen, in a preceding sec- tion, that an infant, upon coming of age, can avoid his deed made dur- ing minority by conveying the same land to another. Now, though the first grantee be in actual possession, it has been held in Kentucky, where it is otherwise rigidly enforced, that the law against champerty will not defeat such a conveyance.*^^ A few words as to the states which have not either affirmed or abolished the law against selling pretended titles by statute. We find in their Keports many decisions on contingent fees, and other- wise on "champerty and maintenance" in the management of law- suits, some even as to the sale of chattels, held adversely, but very few on the conveyance of land in adverse possession. However, Florida has clearly recognized that such a conveyance is void, sub- *23 Self-inflicting forfeiture laws void. See Redman v. Sanders, 2 Dana, 68; Crowley v. Vaughan, 11 Bush, 518; and Kentucky cases under other statutes gathered in Marshall v. McDaniel, 12 Bush, 378. 424Harman v. Brewster, 7 Bush, 355; Luen v. Wilson, 85 Ky. 503, 3 S. W. 911. These two cases put the grantor in a bad plight, very near a for- feiture of his right of entry. In Adkins v. Whalin, 87 Ky. 153, 7 S. W. 912, the court seems to have punished a champertous grantor by taking from him a small portion of his share which he had omitted to convey. *2 6 Laevison v. Baird, 91 Ky. 204, 15 S. W. 252. 42 6 Pearce v. Moore, 114 N. Y. 256, 21 N. E. 419. *27AUen V. Hoyt. Kirby (Conn.) 221; White v. White, 2 Mete. (Ky.) 102 (escheated land). 428 Moore v. Baker, 92 Ky. 518, 18 S. W. 363. (450^ Ch. 5] TITLE BY GRANT. § 60 jcct to the exception which in Kentucky is made by statute; i. e. the vendee by parol, still awaiting his deed, does not hold adverse- ly.*=° In Indiana, the rule is fully recognized, but not favored. "When the purchaser acts in good faith, without notice of the out- standing possession being adverse, his title will be sustained, even against the occupant. In all cases the deed is good between the parties; and the doctrine of champerty does not apply to judicial or oflicial sales.**" In Ohio, it would seem from the reported cases that, while an arrangement, by which the claimant is to receive from an assignee a share of the fruits of litigation, free of risk, is void, a straight-out sale of the claim might be valid.*'^ In Massachusetts, this seems still plainer, the retention of an interest by the grantor to be realized at the end of litigation being deemed the only objec- tionable feature; and the assurance given to Chancellor Kent, when he wrote-his Commentaries, that the sale of pretended titles in Mas- sachusetts was unlawful is not yet sustained by a reported case.'"^ In Alabama, chattels in adverse possession cannot be sold or as- signed, but no allusion is made to land.**' In Texas, the law against the purchase of land in adverse possession seems never to have been in force; the contrary rule is an "admitted principle." *'* In Pennsyl- vania, the rule against the sale of rights of entry or pretended titles has always been unknown, and no attempt to have them declared illegal seems ever to have been made before the supreme court.**" 42 9 Nelson v. Brush, 22 Fla. 374; Coogler v. Rogers, 25 Fla. 853, 7 South. 391. Contra, Gamble v. Hamilton, 31 Fla. 401, 12 South. 229; Levy v. Cox, 22 Fla. 547. 43 Fite V. Doe, 1 Blackf. 127; Martin v. Pace, 6 Blaekf. 99; Galbreath v. Doe, 8 Blackf. 366; Michael v. Doe, 1 Ind. 481; German Mut. Ins. Co. v. Grim, 32 Ind. 249; Steeple v. Downing, 60 Ind. 478. Contra, McGill v. Doe, 9 Ind. 306; Webb v. Thompson, 23 Ind. 428; Vannoy v. Blessing, 36 Ind. 349; also, Patterson v. Nixon, supra, note 409. The docti-ine is subjected to a query in Winstandley v. Stipp, 132 Ind. 548, 32 N. E. 302. Stotsenburg v. Marks, 79 Ind. 193, did not affect lands in Indiana. *3i Stewart v. Welch, 41 Ohio St. 483; Key v. Vattier, 1 Ohio, 132. 432 Pub. St. c. 160, § 6; Ackert v. Barker, 131 Mass. 436; Williams v. Fowle, 132 Mass. 385; Belding v. Smythe, 138 Mass. 530. The common-law doctrine seems to be fully recognized in Brlnley v. Whiting, 5 Pick. 348. 43 3 Foy V. Cochran, 88 Ala. 353, 6 South. 385. 434 Campbell v. Everts, 47 Tex. 102. 43 5 See 4 Kent, Comm. 448; Stoever v. Whitman, 6 Bin. 420, followed in 1893 in Re Murray's Estate, 13 Pa. Co. Ct. R. 70. (451) § 61 LAND TITLES IN THE UNITED STATES. [Cll. & In New Jersey, it is believed that tlie laws against buying and selling of pretended titles stand repealed, having been omitted, as inappli- cable, in the compilation of laws made under the act of November 24, 1792."* In Virginia, the act of Hen. VIII. was held to be in force, was even re-enacted in 1819, and only left out in the Code of 1850 and later Revisions. But the court of appeals construed it as only punishing the sale and purchase of pretended titles, not as an- nulling them. Thus, in Virginia, and, by consequence, in West Vir- ginia, such sales were always valid.*'^ In Georgia, the law against the sale of pretended titles has been generally enforced, but so as to allow the grantor to carry on his action as if he had not made the forbidden grant.*^^ In the District of Columbia, conveyances of land in adverse possession were in an early case said to be void, as a mat- ter of course; and such must still be the law, as congress has never changed it.*'° § 61. Executory Contracts. The deed of bargain and sale, which the statute of uses turned into a conveyance, was in its origin nothing more than a "bargain"; that is, an agreement upon the price at which land was sold, the convey- ance to follow thereafter, in the way of livery of seisin, that is, for- mal delivery of possession. When the statute dispensed with this delivery, a need was felt for a new method of dealing with land, which should not, in the first instance, amount to a conveyance. The principal motive was an unwillingness of the seller to part with the legal title before the consideration was paid in full. But 1 The question, which for a long time troubled the English courts, whether a husband, agreeing that his wife should levy a fine, could be subjected to process of contempt on account of her refusal, and his own inability to make her do so, has been speedily answered in the negative in this country. To put a man in jail because he will not compel his wife to do a thing which she most solemnly assures the judge she does freely and without compulsion seems so thorough- ly wrong and absurd that the proposition should never have been entertained for an instant.*°* In dealing with executory contracts, we have looked rather at the interest of the vendee than at his obligation to pay and take the deed. What kind of title must be tendered him? Must it be such as to exclude all possibility of loss? of outstanding interests or liens? It has been said that mere possibilities cannot be regarded, — the court and the vendee must be satisfied with moral certainty, — ^for in the nature of things there can be no mathematical certainty of a good title." = not be construed Into a title bond. Townsley v. Chapln, 12 Allen, 476. The power to contract for conveyance depends on the power to convey. Baker v. Hathaway, 5 Allen, 103. 484 Young V. Paul, 10 N. J. Eq. 402; Clarke v. Reins, 12 Grat. (Va.) 98. *8B Middleton v. Findla, 25 Cal. 76, 80, citing Lyddall v. Weston, 2 Atk. 19; Sperling v. Trevor, 7 Ves. 498; Hillary v. Waller, 12 Ves. 239. Other modern cases on what is considered a "marketable title" are Linn v. McLean, 80 Ala. 366; Close v. Stuyvesant, 132 111. 607, 24 N. E. 868; Conley v. Dibber, 91 Ind. 413; Stevenson v. Polk, 71 Iowa, 278, 32 N. W. 340; Chesman v. Cummings, 142 Mass. 65, 7 N. E. 13; Powell v. Conant, 33 Mich. 396; Townshend v. Good- fellow, 40 Minn. 312, 41 N. W. 1056; Taylor v. Williams, 45 Mo.. 80; Cornell V. Andrews, 35 N. J. Eq. 7; Ludlow v. O'Neil, 29 Ohio St. 181; Mullins v. Aiken, 2 Heisk. (Tenn.) 535; Herzberg v. Irwin, 92 Pa. St. 48; Newbold v. Peabody Heights Co., 70 Md. 493, 17 Atl. 372; Cambrelleng v. Purton, 125 N. Y. 610, 26 N. E. 907; Welfley v. Shenandoah, I., L., M. & M. Co., 83 Va. 768, 3 S. E. 376; Gober v. Hart, 36 Tex. 141; Kennedy v. Gramling, 33 S. C. 367, 11 S. E, 1081. Among the most recent cases are: Hunting v. Damon, 160 Mass. 441, 35 N. E. 1064 (construction of will too doubtful); Warner v. Will, 5 Misc. Rep. 329, 25 N. y. Supp. 749 (adverse possession not clear enough); Flood v. Thom- asson (Ky.) 25 S. W. 108. In the case of Moser v. Cochrane, supra (note 450), it was held that the opinion of conveyancers against the title was immaterial. NOTE. Rescission, which is closely connected with executory contracts for land, belongs rather to treatises on equity. It is in most cases sought on the ground, either of mistake or of fraud and misrepresentation, rarely by (463) § 62 LAND TITLES IN THE UNITED STATES. [Ch. 5- § 62. Contracts for Land and the Statute of Frauds. We have in the foregoing section assumed that the contract under which land is held, or by which its sale is agreed upon, hasi been drawn up and signed by the vendor in such a manner as to satisfy the statute of frauds. The clause of the English act referring t& executory sales of land runs thus : "No action shall be brought, where- by to charge any person on any contract or sale of lands, tenements or hereditaments, or any interest in or concerning them, unless the agreement on which such action is brought, or some note or mem- orandum thereof, is in writing and signed by the party to be charged therewith, or by some other person, thereunto by him lawfully au- thorized." We assume for the present that there is a writing pur- porting to contain a contract of sale, and bearing some kind of sig- nature, and will consider whether such writing and signature come up to the requirements of the statute, or of its counterparts in the several American states. It having been held in England, under the statute of frauds, that the promisor's, grantor's, or testator's name, written in any part of an instrument, would stand for a signature, many American states have either substituted the word "Subscribed" in this clause of the law, or have generally declared that signing al- ways means setting down a signature at the end of the document. the seller, who is acquainted with the quantity and quality of his land, and with his title; very often by the purchaser. There are, however, a few cases standing by themselves in which a deed of land has been set aside, or a recon- veyance ordered, because the purpose for which the former conveyance was made had wholly failed. The most instructive of these cases is Barker V. Smith, 92 Mich. 336, 52 N. W. 723, where a husband conveyed a tract to his wife, upon an oral understanding that she should in her will devise it to a named college. She did so, and furnished in a recital of the will the Heedful memorandum in writing. But, the will being rejected for want of full proof by the witnesses, in a suit by the husband's heirs against those of the wife a reconveyance was ordered. In an older Michigan case, — Jacox v. Clarli, Walli. Ch. 508,— a conveyance had been made of a water right. The grantee diverting the water to grantor's injui-y, a reconveyance was ordered. Thorn V. Thorn, 51 Mich. 167, 16 N. W. 324, also sustains this view. In an older New York case,— Quick v. Stuyvesant, 2 Paige, 84, — a strip of land having been conveyed, which the grantee was to dedicate for a street, but either did not or could not, there was a decree to reconvey. 1464) Cll. 5] TITLE BY GRANT. § IJ'-^ This has been done in New York, Michigan, Wisconsin, Minnesota, California, Colorado, Oregon, Kentucky, Alabama, the Dakotas, Mon- tana, Nevada, and Wyoming.^"" Some states, in their anxiety that interests in land shail not de- pend upon the proof of spoken words, have gone further, and have, in the clause which refers to executory contracts, as in that which refers to conveyances, required that the agent whose signature is to bind the party must himself be appointed by a writing subscribed by such principal. This has been done in New Hampshire, Vermont, Delaware, Illinois, Missouri, the Dakotas, California, and Oregon, while Nebraska, Nevada, Montana, and Wyoming seem to require a signature or subscription by the party in all cases.*"' The question having been raised in England, upon another clause of the statute, whether the consideration of the promise must also be expressed in the writing which the statute demands, and having been there de- cided in the affirmative, many of the American states have amended their statutes so as to declare, one way or the other, whether the consideration must be expressed. The statutes of Virginia, West Virginia, Kentucky, Maine, Massachusetts, New Jersey, Indiana, Il- linois, and Michigan say plainly that the consideration need not be expressed in writing; ^"^ those of New York, Wisconsin, Minnesota, 466 New York, Kev. St. pt. 2, c. 7, tit. 1, § 8; Michigan, §§ 0181-C183; Wis- consin, §§ 2304, 2305; Minnesota, c. 41, § 12; California, Civ. Code § 1024; Colo- rado, § 1.517; Oregon, §§ 785, 786; Kentucky, St. 1894, § 470 (Statute of Fiauils) § 408 (construction of "signing"); Alabama, Civ. Code, § 1732; Montana, Gen. Laws, § 219; Nevada, § 2620; Wyoming, § 1249. 4 67 Xew Hampshire, c. 215, § 1; Vermont, § 981; Delaware Rev. Code, c. 63, § 7, as amended by Sess. Laws, vol. 13, c. 451; Illinois, Rev. St. c. 59, § 2 (see Hughes v. Carne, 135 III. 519, 26 N. E. 517); Nebraska, § 1787; Missouri, Rev. St. § 5186; other states as above. Where the statute requires a writing by the party, it would undoubtedly be satisfied by one executed by attorney, under a letter of attorney duly subscribed. In other states authority need not be in writing. Kennedy v. Ehlen, 31 W. Va. 340, 8 S. E. 398; Dodge v. Hopkins, 14 Wis. 630. Thus an auctioneer can sign a memorandum binding both seller and buyer, if he does so immediately at the sale. Bamber v. Savage, 52 Wis. 110, 8 N. W. 609; McBrayer v. Cohen, 92 Ky. 479, 18 S. W. 123. See infra as to contents of such a memorandum. 468 Virginia, Code, § 2840; West Virginia, c. 98, § 1; Maine, c. Ill, § 1; Kentucky, as above; Massachusetts, c. 78, § 2; Indiana, Rev. St § 41105; lUInois, c. 59, § 3; New Jersey, "Frauds and Perjuries," § 9; Michigan, § 0182. LAND TITLES V. 1 30 (465) § 62 LAND TITLES IN THE UNITED STATES. [Ch. 5 the Dakotas, Alabama, Colorado, and Oregon, that it must be ex- pressed."" In those states which require the consideration to be expressed, but which recognize the distinction between sealed and unsealed instruments, the old common-law rule, it seems, would come in, under which a seal imports a consideration; and a sealed covenant to convey land at some future day answers all require- ments.*'" Where the statute is silent, the tendency of the American courts is not to require the consideration to be expressed in the written agreement or memorandum. The matter seems of little importance where the contract relates to an interest in land, as the vendor is very likely always to name the price received or to be received in any written memorandum of sale; but, in a late decision, a court of high standing has, under a law which dispenses with a written state- ment of the consideration, enforced an agreement to sell, and, upon parol testimony, changed the price which the memorandum, rightly construed, named.*'^ While the English statute only forbids the bringing of an action, many of the American acts go further, and declare that the contract, lease, or sale shall be void, or invalid, or of no effect, unless in writing, etc. ; this is the language of the stat- ute in New York, Michigan, Wisconsin, Minnesota, the Dakotas, Cal- ifornia, Oregon, Alabama, Georgia ("to make binding"), North Caro- *8» See same states above, notes 466, 467. 470 Johnson v. Wadsworth, 24 Or. 494, 34 Pac. 13. Indeed, a promise or covenant to convey land upon the payment of a "'amed sum does not express the consideration at all, unless it shows either thai the buyer has bound him- self to pay the price, or has paid some part of it in advance. 471 There is a full array of the authorities on both sides in the American notes to Wain v. Warlters, 2 Smith, Lead. Cas. 24a, mainly as to agreements to answer for the debt, default, or miscarriage of another. In England the consideration need no longer be stated in the written memorandum. 19 & 20 Vict. c. 97, § 3. Thomburg v. Hasten, 88 N. C. 293 (consideration need not be stated). To express consideration, the words "for value received" are enough. Cheney v. Cook, 7 Wis. 413. So Is a reference to some extrinsic fact Wash- burn V. Fletcher, 42 Wis. 152. In Hayes v. Jackson, 159 Mass. 451, 34 N. E. 683, there was a receipt "on account of $14,140, subject to a mortgage of $8,000," which would, of course, mean $22,140; but the mortgage was really meant as part of the price. A majority of the supreme court compelled the vendor to sell at $14,140, overruling Grace v. Denison, 114 Mass. 16. (466) ^■'- 5] TITLE BY GEANT. § 62 Una, Nebraska, Wyoming, Nevada, and Montana.*" But since the courts of equity, both in England and in those states which have followed the older wording, no longer treat the statute of frauds as simply governing the evidence at the trial, but allow a defendant to admit the parol agreement, and at the same time to "plead the stat- ute" against its enforcement,*' ° the change from forbidding an action on the contract to denouncing it as void is not very important; es- pecially as this word has by judicial decisions been toned down into "voidable." *'* We find, on tlie other hand, three states in which the English law against the enforcement of unsigned contracts for the sale of land has not been re-enacted at all, or at last in a much weakened form. Iowa only forbids any other evidence of the contract than a written instrument, note, or memorandum. Hence, when the defendant is too conscientious to deny the verbal agreement, it must be enforced, aside of large exceptions, which will be discussed hereafter.*^' Pennsylvania and Washington omit the clause alto- gether. But the former state has worked out something very much like the law in other states from the clause which requires a deed in order to create or transfer any estate in land, in law or in equity; 472 Georgia, Code, § 1950; North Carolina, Code, § 1554. For other states, see above, notes 466, 467. 473 See Story, Eq. Jur. §§ 756, 757. It Is here shown that Lord Macclesfield would disregard a plea of the statute where the defendant at the same time in a sworn answer admitted the oral contract as laid In the bill (Child v. Godolphin, 1 Dickens, 39) ; how Lord Hardwicke at least Intimated the same views in Cottington v. Fletcher, 2 Atk. 155, but it was soon thereafter aban- doned; Walters v. Morgan, 2 Cox, Ch. 369, being the first English fully reported case for the modern position of faithfully enforcing the statute; while Thomp- son V. Tod, 1 Pet. C. C. 380, Fed. Cas. No. 13,978. is the first American case. Gammon v. Butler, 48 Me. 344 (the unwritten contract Is morally binding, and may be ratified). *7 4 Davis V. Inscoe, 84 N. C. 396 (parol vender complying with contract, third pai-ty cannot complain); Oldham v. Sale, 1 B. Mon. 78. Generally the statute had to be pleaded under the old practice. The bill was not demmTa- ble for failing to allege a writing. See Lawrence v. Chase, 54 Me. 196. 47 6 Such, at least, is the wording of the statute. But it was said in West- heimer v. Peacock, 2 Iowa, 528,— action on a promise to pay the debt of another where an Issue was made and tried,— that the effect of the statute was the same as of that of 29 Car, II. ; and Berryhill v. Jones, 35 Io\va, 311 J, again glances at the question, but neither case brings it up squarely. (4G7) § 62 LAND TITLES IN THE UNITES STATES. [tlh- -J and Washington must either pursue the same course, or supply the lacking enactment."" The laws of the other states and territories agree substantially with the clause set out in the opening of the section ; and those of the states named in all but the details pointed out above.^^^ The sale of growing timber is within the statute of frauds. So is a contract for the planting of fruit trees on the land of another, and sharing the produce of the trees; contracts for the sale of min-. erals in the ground, or of rock in the quarry,*" — but sales of the growing crop are not, nor contracts for making brick from another's surface soil for one season.*'* On the question whether an agree- ment to waive a lien on land, without giving up the demand itself, is within the statute, the authorities are not quite in harmony. When the lien has not yet arisen, and especially when it has not been spread on the records, a parol waiver would seem less objectionable than where it rests upon a mortgage already recorded; while the promise to remove a lien by paying it off cannot be called a contract for an interest in land, in any just sense of the word.**" A promise to leave an estate to any person by will, if made upon a good consideration, — for instance, that of services rendered to 476 Irvine v. BuU, 4 Watts, 287; Wilson v. ClaAe, 1 Watts & S. 554; Ellet V. Paxson, 2 Watts & S. 418; Dumars v. Miller, 34 Pa. St. 319. 4" Massachusetts, Pub. St. c. 78. § 1: Connecticut, Gen. St. § 13G6; Rhode Island, e. 204, § 7; New Jersey, "Frauds and Perjuries," 5; South Carolina^ Rev. St. § 2019; Florida, § 1995; Ohio, § 4199; Indiana, § 4904; Tennessee, Code, § 2423; Mississippi Code, § 1225; Texas, Rev. St. art. 2.543; Kan- sas, § 3166; Arkansas, § 3371; Arizona, § 2030. In Maryland and the District of Columbia the act of 29 Car. II. is still in force. 47 8 Terrell v. Frazier, 79 Ind. 473; Robbins v. McKnight, 5 N. J. Eq. 643; Henrici v. Davidson, 149 Pa. St. 323, 24 Atl. 334 (subject to "part perfoini- ance" as in next section); Hirth v. Graham, 50 Ohio St. 57, 33 N. E. 90 (even for immediate removal). 4 7 3 An easement is within the statute. Foss v. Newbury, 20 Or. 257, 25^ Pac. 669; Bloom v. Welsh, 27 N. J. Law, 180; Brown v. Morris, S3 N. O. 251. <8o McElroy v. Braden, 152 Pa. St. 78, 25 Atl. 235 (contract by builder to waive mechanic's lien good); McCraith v. National Mohawk Val. Bank, 104 N. Y. 414, 10 N. B. 862 (an agreement to get a mortgage released is not a con- tract for interest in land); Parker v. Barker, 2 Mete. (Mass.) 423 (promise not to enforce mortgage is within the statute) ; Leavitt v. Pratt, 53 Me. 147 (agree- ment to release mortgage within statute). (4GS) Ch. 5] TITLE BY GRANT. § 62 the testator, — is binding in law, and can be enforced against the decedent's estate. But if the estate consists, in whole or in part, of land, the contract falls within the statute of frauds. So far from the personal estate carrying the lands with it, it seems that the contract, if not in writing, is bad as to both.**^ An express trust in land, under another section of the statute of frauds, can be created only by writing, which must be signed by the party himself. Several of the states have either re-enacted this section, or combined its main features with that of the first section, which refers to the conveyance of leases, estates, or interests in land. This was done in Pennsylvania.*^^ But even in states where the section on trusts has been wholly omitted the creation of an express trust has been held impliedly forbidden by the two other clauses, one of which forbids the alienation of lands, or any interest therein, unless by writing, and the other of which is directed against contracts for the sale of land; and the latter, a fortiori, embraces gifts, as the law will not favor a volunteer above a purchaser for value.*** Coming now to the form and contents of the instrument, we are struck with the words of the statute: First, the agreement; next, *8i Shahan v. Swan, 48 Ohio St. 25, 26 N. E. 222; Johnson v. Hubbell, 10 N. J. Eq. 332; Grant v. Grant, 63 Conn. 530, 29 Atl. 15. *s2 29 Car. 11., c. 3, § 1, reads: "All leases, estates, interests of freehold or terms of years, or any uncertain interest of, in, to, or out of any messuago, manors, lands, tenements, or hereditaments, created by livery of seisin only, or by parol, and not put In writing, and signed by the parties creating the same, or their agents thereto lawfully authorized in writing, shall have the force and effect of leases or estates at will only, and shall not either at law or equity be taken to be of greater force or effect, any consideration for mak- ing any such parol leases or estates or further usage to the contrary notwith- standing." Section 2 excepts short leases at rack rent. Section 7 reads: "All declarations or creations of trust or confidence, of any lands, etc., shall be manifested and proved by some writing signed by the party who is by law enabled to declare such trust, or else by his last will in writing, or else shall be utterly void." Section 8 excepts trusts resulting by operation of law. 483 Morton v. Nelson, 145 111. 586, 32 N. E. 916 (one buying lands in his own name, on account of himself and others) ; Johnston v. Johnston, 138 Hi. 385, 27 N. B. 930 (husband conveying to wife in trust for reconveyance) ; Champlin V. Champlin, 130 111. 309, 26 N. E. 526 (sons to mother on like trust). It is premised that no trust "results" in these cases by operation of law. (400) § 62 LAND TITLES IN THE UNITED STATES. [Ch. 5 as its substitute, a "note or memorandum thereof." Hence the writ- ing need not have been written with a view of binding the subscriber, it may be a letter, or a series of letters, addressed, not to the party interested, but to others; or entries made by the party to be charged on his own books. One of the commonest, perhaps the most usual, form of memorandum, is a receipt for part payment, stating the whole sum to be paid, and designating the tract sold.''^* There was a time when the statute of frauds was held to affect the evidence only, and when a defendant admitting in his answer the existence of an unwritten agreement could not resist its enforcement, but under the modern view it is otherwise. Moreover, as shown above, many states, in their laws, call the contract void when no written memorandum has been signed. Hence an answer which the defend- ant is compelled to make cannot serve as the written memorandum either in the same suit, or in another which may thereafter be brought on the same agreement. But it has been held that, when he answers without pleading the statute, the lanswer, signed and sworn to, may be used as a written memorandum of the contract which is set forth in it.*'° A telegram is a writing, within the mean- ing of the statute, and it is expressly declared in some states that it is such.*^° A deed or formal writing executed by the vendor, but not delivered, cannot be read as a memorandum, under the statute, — at least, not for the contract which it contains, though it might, perhaps, as to a recital of previous agreements ; for to allow 48 < Kopp V. Reiter, 140 111. 437, 34 N. B. 942; Roehl v. Haumesser, 114 Ind. 311, 15 N. E. 345 (contract to devise estate extracted from letters, some of them lost); Gordon v. CoUett, 102 N. C. 532, 9 S. E. 486 (receipt of part pay- ment). Entries on grantor's books. In re Farmer, 18 N. B. R. 210, Fed. Cas. No. 4,050. Declaration by purchaser of his purchase, signed below him by the seller, enough. Winn v. Henry, 84 Ky. 48. Many of the cases cited in otiier notes turn on receipts on account of lot sold; and ho objection is made to this form. 485 Jones V. Lloyd, 117 111. 597, 7 N. E. 119; Renz v. StoU, 94 Mich. 377, 54 N. W. 276 (arguendo, answer in chancery admissible); Champlin v. Cham- plin, 136 111. 309, 26 N. E. 526 (recital of facts in wUl); Barker v. Smith, 92 Mich. 336, 52 N. W. 723 (.in will which is rejected for lack of form; dictum); Barrett v. McAllister, 35 W. Va. 103, 12 S. E. 1106 (answer admitting con- tract, and not insisting on statute, cannot be withdrawn after reversal of decree). 48 Butler v. Iron Cliffs Co.. 96 Mich. 70, 55 N. W. b70; Rev. St. Ind. § 4180. (470) Cll. 5] TIILE BY GRANT. § 62 it such a force would destroy the rule, both of positive law and of common sense, by which no deed or other contract has any binding force until the grantor or maker parts with its possession.*" The written agreement, note, or memorandum must be complete in itself. It must show what the subscriber has bound himself to do, either on its face, or by reference to other writings. A reference to "what was said," or to verbal instructions, cannot be helped out by proof of spoken words; and, if the contract cannot be fully under- stood without such proof, it cannot be enforced.*'* Where the contract has to be made out from several papers, they must refer to each other. The connection must depend on "internal evidence." *** In like manner, where a written authority is required for the agent who signs the agreement or memorandum, this must be suflScient in itself to support whatever instrument the agent has signed. If he has departed from, or gone beyond, the authority given, the departure or excess cannot be made good by a verbal ratification.*"" As to the particular contents, these are — ^First, the description of the land, and designation of the interest therein; second, the 4 87 Kopp V. Reiter, supra; Chick v. Sisson, 95 Mich. 412, 54 N. W. 805 (left for examination, but not delivered). A deed left in escrow was held a mem- orandum in writing in Campbell v. Thomas, 42 Wis. 437; shaken by Bamber V. Savage, 52 Wis. 110, 8 N. W. 609, and still more by Popp v. Swanke, 65 Wis. 364. 31 N. W. 91G. 488 McElroy v. Buck, 35 Mich. 434. See what auctioneer's memorandum must contain. Horton v. MeCarty, 53 Me. 394. An extreme case is Gault v. Stormont, 51 Mich. 636, 17 N. W. 214. A receipt for $75, as part of prin- cipal of $1,050, held Insufficient for not indicating the time of payment. It would seem to mean payment in cash, nothing else being said. Wright v. Weeks, 25 N. Y. 153 ("upon terms speciiied" bad); Pulse v. Miller, 81 Ind. 190 (sale of lands in township A.; parol proof which land was meant inadmissi- ble); Pittsburg, etc., R. Co. v. Wright, 80 Ind. 182 (contract cannot be half written, half verbal). But in Loud v. Campbell, 26 Mich. 239, the rule was de- parted from, and in Butler v. Iron Cliffs Co., 96 Mich. 70, 55 N. W. 670, a reservation of the "usual mining rights" was held to let in proof of conversa- tions regarding these rights. Jones, Com. & Trade Cont. § 134, is relied on; jilso, Bailey v. Cornell, 6G Mich. 107, 33 N. W. 50. ISO Mayer v. Adrian, 77 N. C. 83; Andrew v. Babcock, 63 Conn. 109, 26 Atl. 715 (a signed letter, promising to come and bring the written agreement, in- sufficient); Tice V. Freeman, 30 Minn. 3SU, 15 X. W. U74. 400 Kozel V. Dearlove, 144 111. 23, 32 N. E. 51'J. ail) § 02 LAND TITLES IN THE UNITED STATES. [Cll. 5 names of vendor and vendee; third, the price and the terms of sale/" As to the description, it may be briefly said that whatever is sufficiently certain in a grant is sufiQcient in a contract.*"^ The name of the vendor must appear. Where the writing is dravs^n and signed by an agent (such as an auctioneer making his note of the accepted bid), it may happen that the name is omitted, in which case the writing is worthless, under the statute.*"" The vendee's name is not made to appear, where a written authority to a broker, to sell at a named price and stated terms, is accepted by a buyer, as if it were a proposition addressed to him. Such a written authority can only become binding upon him who gave it by another writing signed by the broker.*"* The clause of the statute of frauds on contracts not to be per- formed within one year has been sometimes invoked where a lease short enough not to fall within the clause on contracts for the sale of lands is agreed upon by parol, not to begin immediately, but ioi But the time of payment may be left to futui-e agreement. Camp v. Moreman, Si Ky. 035, 2 S. W. 179. The court must judge of the effect of such a writing. 492 Ryan v. U. S., 136 V. S. 68, 10 Sup. Ct. 913 (extrinsic evidence to locate from description); Eggleston v. Wagner, 46 Mich. 610, 10 N. W. 37 (same); Andrew v. Babcoclc, supra (an insufficient description); MuiTay v. Mayo, 1.57 Mass. 248, 31 N. E. 1003 (house and lot by street and number). The reader is referred to chapter II ("Boundary and Desci'iption"), §§ 6, 7. Whenever parol testimony is admissible to identify the land granted, it is admissible to identify land contracted to be sold. Indeed, there is no reason why a court of equity should not (while no rights of third persons have interfered) enforce a cov- enant to sell and convey a smaller quantity out of a larger tract. But see FaUs of Neuse Manuf 'g Co. v. Hendricks, 106 N. C. 485, 11 S. E. 568, on this point, and on what words may be explained by parol; and Baxter v, Wilson, 95 N. 0. 137, as to effect of contemporaneous survey. Compare chapter II, § 6, of this work. Kennedy v. Gramling, 33 S. 0. 367, 11 S. E. 1081, is an ex- treme case of scanty description deemed good, but the contract was held not completed on other grounds. 49'3 Mentz V. Newwitter, 122 N. Y. 491, 25 N. E. 1044. So, where the vendee's agent signed only his own name, his iirincipal was not bound for the price. Briggs V. Partridge, 64 N. Y. 357. But see, contra, Hargrove v. Adcock, 111 N. C. 166, 16 S. E. 10. 494 Haydock v. Stow, 40 N. Y. 363. Contra, Alford v. Wilson, 95 Ky. 506, 26 S. W. 539, which was a suit against the proposed purchaser, but would have been decided in the same way if the authority had been signed by the seller. (472) Ch. 5] TITLE BY GRANT. § 62 within a year, and to come to an end after the year. It is enough here to say that the decisions of the various states are by no means in unison.*"" A land contract, though under seal, may be barred by an accord and satisfaction, like any other; and this may be proved by parol, if there is a consideration which has actually passed between the parties.*"" There is some little conflict of opinion on the question whether a contract for the sale of land (or other contract which falls within the statute of frauds) can be "reformed" in equity by showing that it did not express the true intention of the parties, and then enforced as amended; but the great weight of opinion is against such a course, though there is no doubt that parol evidence may be used to set aside tlie contract, or to defeat its operation, because, through fraud or mistake, it fails to set forth correctly the intention of the parties. The English chancery courts are unwilling to enforce a written contract that has first been reformed upon unwritten testi- mony, even when it doen not fall within the statute of frauds.*"' When on a bill for specific performance, the variation is set up by way of defense, the court will, in its discretion, and with the plaintiff's consent, reform the contract to what it should be accord- ing to the defendant's answer, and then enforce it against the lat- ter.*"' And many of the American courts, like the English chan- cery, refuse to go any further ; that is, they will not reform an execu • tory contract for land, and then enforce it.*"" The correction of a 48 5Bateinan v. Maddox, 86 Tex. 546, 554, 26 S. W. 51 (lease good); Becar V. Flues, 64 N. Y. 518; Railsback v. Walke, 81 Ind. 412; Sobey v. Brisbee, 20 Iowa, 105. Such a lease Is held bad In Greenwood v. Strother, 91 Ky. 483, 16 S. W. 183, relying on Kentucky authorities only. 496 Nicholas v. Austin, 82 Va. 817, 1 S. E. 132, citing Fleming v. Gilbert, 3 Johns. 528; U. S. v. Howell, 4 Wash. C. C. 620, Fed. Cas. No. 15,405. And so the time for performance may be extended by parol, Bullis v. Presidio M'ln. Co., 75 Tex. 540, 12 S. W. 397. 4 07 WooUam v. Hearn, 7 Ves. 211, 2 White & T. Lead. Cas. Eq. 484; Rich V. Jackson, 6 Ves. 335, note; Clinan v. Cooke, 1 Schoales & L. 22; Attorney General v. Sitwell, 1 Younge & C. Exch. 559; other cases down to Manser v. Back, 6 Hare, 443, and none to the contrary. 498 Lindsay v. Lynch, 2 Schoales & L. 1, 9; Story, Eq. Jur. § 770a; and see Quinn v. Roath, .37 Conn. 29. 498 Elder v. Elder, 10 Me. 80; Osborn v. Phelps, 19 Conn. 63; Climer v. (473) § 62 LAND TITLES IN THE UNITED STATES. [Ch. 5 deed, an executed conveyance, which, through accident or mistake, conveys other land, or another estate therein, than the parties con- template, rests on entirely different grounds; and the courts wield- ing chancery powers, in any state of the Union, never hesitate to cor- rect such a deed, on these grounds, wherever opportunity offers.^"" There are only a few cases in which an executory contract for land (or any other contract falling within the statute of frauds) has in any American court been reformed and enforced, at the instance of the party which sought its reformation, on unwritten evidence. Al- most every one of them seeks its justification on special grounds. Indeed, to allow such reformation, and enforcement of the contract as reformed, would be almost equivalent to a repeal of the statute.'"' The statute of frauds, either under the contract or the trust clause, does not reach trusts arising or "resulting" by force of law from the payment of purchase money by a third party in the states in which a trust results therefrom, perhaps a necessary exception, but one fraught with much danger of perjury.""^ The laws by which the sheriff holding an execution, or the master or commissioner of Hovey, 15 Mich. 18, 22; Glass v. Hulbert, 102 Mass. 24; Macomber v. Peck- ham, 16 R. I. 485, 17 Atl. 910. 600 Gillespie v. Moon, 2 Johns. Ch. 585; Metcalf v. Putnam, 9 Allen, 97; Gates v. Green, 4 Paige, 355. In Keisselbraek v. Livingston, 4 Johns. Ch. 144, a covenant had been erased from a deed of conveyance, which Chancel- lor Kent decreed to be restored. Noel's Ex'r v. Gill, 84 Ky. 241, 1 S. W. 428 (numbers of lots in description corrected). And hundreds of similar cases in almost all the states. Jlortgages have so far been deemed conveyances that they have been corrected for mistakes, and then enforced, e. g. Tichenor v. Yankey, 89 Ky. 508, 12 S. W. 947, a very strong case. 001 McCurdy v. Breathitt, 5 T. B. Jlon. 232; Bai-low v. Scott, 24 N. Y. 40; Murphy v. Eooney, 45 Cal. 78; Webster v. Harris, lU Ohio, 490; Gower v. Sterner, 2 Whart. 75; Bradford v. Union Bank, 13 How. 57 (here the vendor had lost part of the land he agreed to sell, through a tax sale, without the knowledge of either party, at the time of the contract. He was decreed, upon payment of a proportionate price, to make a deed of the residue). 002 Nelson v. Worrall, 20 Iowa, 409; Sullivan v. McLenans, 2 Iowa, 437. See, also, section on "Uses and Trusts" in former chapter, and cases there quoted. The "trust clause" of the statute usually excepts trusts resulting by law. In fact, the exception is inherent; for there can be no written contract when there is none of any kind. The mistake is in th'e law which raises the resulting trust except where one party's money is taken without his cou- sent, i. e. fraudulently, and invested in land in another's name. (474) Ch. 5] TITLE BY GRANT. § 63 a court decreeing a sale, puts lands up at public vendue, repeal, aa far as they go, the statute of frauds. The bidder's right, though inchoate or incomplete on other grounds, is enforceable as soon as the ofQcer has "knocked down" the land to him, and before the oflQcer has made any written report or return ; and the best bidder is bound in lilfe manner, though he has not signed any memorandum. This is a necessary exception to the statute of frauds, and one which can do but little if any harm.""' § 63. Part Performance. A section of the statute of frauds, which is embodied as the first section of the chapter on conveyances, in almost every American Revision, directs that no estate in fee or for life in land, and no tenn for more than three years, can be conveyed or created, except by deed in writing, signed, etc. Another section is also copied in the statutes of every state, that no action shall be brought upon any contract for the sale of land, unless the contract, or a note or memo- randum thereof, be in writing, and signed by the party to be charged therewith. And yet another section, which has been copied into many, but not into all, the American Revisions, says that no trust in land shall be created except by writing properly signed. Courts of equity admit that they are bound by the clause which forbids the bringing of an action for the sale of land to the extent that they may not entertain a suit for specific performance, unless a contract or a note or memorandum thereof has been duly signed by the seller or his lawful agent. Yet there is a large class of cases in which land may lawfully be held in fee, for life or on a long lease, in pursuance, and as part performance, of a contract not reduced to writing, or not signed by the owner of the land, or in which the buyer may at least enforce against the land a lien for his outlays, where the courts of his state will not allow the more glaring inroad to be made on the words and on the avowed policy of the statute of frauds."" 003 Stearns v. Edson, 63 Vt 259, 22 Atl. 420. From time to time the point is raised, and as often overruled. This is probably tbe latest case. See, also, Nichol v. Ridley, 5 Yerg. G3; Hy skill v. Givin, 7 Serg. & R. 369. B04 The case of Lester v. Toxcroft, decided in 1701 by the house of lords (475) § 63 LAND TITLES IN THE UNITED STATES. [Ch. 5 This course of excepting part performance out of the statute has been followed in New Hampshire, Rhode Island, Connecticut, New Jersey, Pennsylvania (which really lacks a clause speaJving plainly of executory sales of land), Delaware, Maryland, Virginia, South Carolina, Ohio, Indiana, Illinois, Missouri, Mississippi, Kan- sas; also more lately in Massachusetts,^"'' and in a number of states the exception, as established by the course of courts of equity, is now recognized in the body of the statute. These are New York, where the rule had prevailed before being thus declared ; Michigan, Wisconsin, Minnesota, the Dakotas, Nebraska, West Virginia, and <1 CoUes, 108, 1 White & T. Lead. Oas. Eq. 768), is tlie groundwork of the doctrine that part performance takes a verbal contract out of the statute of frauds. The appellant had verbally agreed with the testator to tear down a number of old buildings, and to put up 14 new houses, on the testator's land, at his own expense, for which he was to be reimbursed by a 99-years lease at a named rent. He put up the houses at a great expense, of which he paid £2,000, besides other sums which he borrowed from the testator. The latter, while on his deathbed, caused a building lease to be drawn, but through acci- dent, or through the machinations of his devisees, failed to sign it. It was decreed that the devisees should execute the promised lease, and the builder should remain in possession. The case would have been very hard on the appellant if relief had not been given. See the English and American notes in Leading Cases in Equity for authorities. BOB Welsh V. Bayaud, 21 N. J. Eq. 186; Hall v. Hall, 1 Gill (Md.) S83; Billington's Lessee v. Welsh, 5 Bin. (Pa.) 129; Eaton v. Whitaker, 18 Conn. 222; Newton v. Swazey, 8 N. H. 9; Farrar v. Patton, 20 Mo. 81; Peckham V. Barker, 8 R. I. 17; Grant v. Ramsey, 7 Ohio St 157; Heth's Ex'r v. Wool- dridge's Ex'rs, 6 Rand. (Va.) 605; Carlisle v. Fleming, 1 Har. (Del.) 421; Ander- son V. Chick, 1 Bailey, Eq. 118; Gilmore v. Johnston, 14 Ga. 683; Shirley v. Spencer, 4 Gilm. (111.) 583; Finucane v. Kearney, 1 Freem. Ch. (Miss.) 65; Barnard v. Flinn, 8 Ind. 204; Edwards v. Fry, 9 Kan. 417. In Massachusetts, since the enlargement of equity powers, Metcalf v. Putnam, 9 Allen, 97; Glass V. Hulbert, 102 Mass. 25; contra, under the former limited equity pow- ers. Brooks V. Wheelock, 11 Pick. 439. In Parkhurst v. Van Cortland, 14 Johns. 15, 31, Chancellor Kent rests this exercise of equity power on the ground that it would be fraud to peimit the parol agreement to be partly executed, and to lead a party to expend money in the melioration of the estate, and then to withdraw from the contract. He adds, whenever damages will answer the purpose of indemnity, this remedy is to be preferred, thus bowing to the statute. In Watson v. Erb, 33 Ohio St. 35, relief was refused by reason of the lack of this element of fraud. For West Virginia, sae Gal- lagher v. Gallagher, 31 W. Va. 9, 5 S. E. 297. (476) Ch. 5] TITLE BY GRANT. § 6S California."" Alabama and Iowa have gone mucli further in their legislation, the former taking the case out of the statute of frauds when the purchase price has been paid in whole or in part, and pos- session been given; the latter, when one or the other has happened, or when the case lies outside of the statute by common usage. ""^ The rule as to part performance has been wholly rejected in Maine and Tennessee, a return of payments and outlays being the only relief which a court will give in any case to the buyer of land by parol.""* And such is also the law in Kentucky, though the same result was for a long time attained in that state by taking hold of the words of the statute which only forbid an action on a con- tract for land, when there is no writing signed by the party to be charged ; while nothing is said about no defense being based on such a contract, which came to the same result, as the part performance needed under the rule always embraces a delivery of possession to the buyer. But this untenable position has been abandoned.""* 006 See clauses of statute of frauds cited in notes to preceding section, or those closely following upon them. In California, also, Code Civ. Proc. § 1972. Freeman v. Freeman, 43 N. Y. 34. These statutes leave the equity doctrine unchanged (Smith v. Finch, 8 Wis. 245); yet it is variously under- stood in the several states. S07 Alabama, Civ. Code, § 1732, enforced in McLure v. Tennille, 89 Ala. 572, 8 South. 60. See Powell v. Higley, 90 Ala. 103, 7 South. 440, where land was exchanged for a piano; but in this case the common rule would have worked the same result. Iowa, Code, § 3G65 ("when the purchase money or any part thereof has been received by the vendor, or when the vendee, with the actual or implied consent of the vendor, has taken and held possession thereof, under and by virtue of the contract, or," etc.). The "purchase money" means whatever consideration has been agreed on, e. g. a deed for other land, upon an exchange. Devin v. Himer, 29 Iowa, 297, where possession had not been given to the plaintiff. In Chamberlin v. Robertson, 31 Iowa, 408, there was possession and payment. 608 Wilton V. Harwood, 23 Me. 131 (no jurisdiction to award performance of parol contract) ; Ridley v. McNairy, 2 Humph. (Tenn.) 174. ooa The English rule is rejected in Grant v. Craigmiles, 1 Bibb. 203, and other early cases, and again in Blackburn v. Blackburn (Ky.) 11 S. W. 712. Tbe clause of the statute of frauds which forbids a trust in land to be raised liy parol is not in force in Kentucky. The opinions allowing a defense of the possession on words of mouth in Nichols v. Nichols, 1 A. K. Marsh. 1(>7; Ford v. Elliugwood, 3 Mete. (Ky.) 359; and Cornellison v. Cornellison, 1 Bush, 140, are not quite direct; but in Caldwell v. Caldwell, 7 Bush, 515, the party in (477) § 6) ].A^D titi.ils in the united states. [Ch. .1 In North Carolina no relief can be given when the defendant denies the parol contract. When he admits it, there can be only compensation; while in Mississippi relief was steadily denied from the first."" In those states which do not enforce the verbal agreement, or in cases in which the vendee has an equity, but the conditions for tak- ing the case out of the statute do not concur, compensation is gen- erally given in damages, without regard to the method by which the contract has been established, — whether by the admission of the defendant in his answer under a plea of the statute, or by proof after his denial."^^ When compensation is awarded to the vendee in possession, the court of equity which decrees it generally makes the payment thereof a condition precedent, without the fulfillment of which the vendor is not allowed to recover the possession upon his title at law."' The courts have so far felt a kind of uneasiness about setting possession was even allowed to sustain a bill to quiet the title on a mere oral understanding in the family, without having paid or laid out any money. The court of appeals went even further in Faris v. Dunn, 7 Bush, 27G, and Williams v. Williams, 8 Bush, 241; the latter a case where the owner of a large tract, being in trouble with his wife, conveyed it to his cousin, remain- ing in possession, and the latter was compelled to recouvey, on proof of which the only written piece was a letter advising the plaintiff to sell part of his land, without describing it. But in Usher's Bx'r v. Flood, 83 Ky. 552, the court of appeals, bethinking itself of the clause of the statute of frauds which is made the first section of the chapter on "Conveyances," tooli from the donee by parol, after a possession of nearly 14 years, a house which he had earned in great part by services to the donor, notwithstanding a letter in which the latter had promised him "a house," not saying which. 610 McGuire v. Stevens, 42 Miss. 724, and cases there quoted. Ellis v. Ellis, 1 Dev. Eq. 341, on review, reverses a former decision, which followed the Eng- lish doctrine. Barnes v. Teague, 1 Jones, Eq. 277 (defendant can admit parol agreement and plead the statute); Piummer v. Owens, Busbee, Eq. 254 (a memorandum which does not identify the lot will not sustain a decree for performance, but one for compensation) ; Dunn v. Moore, 3 Ired. Eq. 304 (con- tract admitted, but plea of statute: compeusatic.n) ; Allen v. Chambers, 4 Ired. Eq. 125 (contract denied, proof cannot be heard); Albea v. Griffin, 2 Dev. & B. Eq. 9 (account of payments and improvements, less rent). 511 See North Carolina cases in note 510; Parishurst v. Van Cortland, 14 Johns. 15. 012 See the leading case of Seton & Slade, 2 White & T. Lead. Cas. Eq. 529, for the doctrine of "damages and compensation." Except for the lien which (478) ^^'- 5J TITLE BY GRANT. § 63 aside the plain words or the beneficent policy of the statute of frauds that they have laid down the rule never to decree a conveyance un- less the proof of the parol agreement is clear and conclusive,°^* and unless it is, moreover, definite as to all the particulars of the con- tract, — such as the boundaries of the land, the interest to be convey- ed, the price and the terms of payment."^* Nothing short of giving and taking possession of the land is considered a good part perform- ance for this purpose. Payment of the price is not enough, though it might give rise to an equitable lien, to which reference will be made hereafter.'^" the vendee may claim for such compensation, of which hereafter, it lies be- yond the scope of our worli. 513 Blum v. Robertson, 24 Cal. 142 (before the statute allowing the parol proof) ; Truman v. Truman, 79 Iowa, 50G, 44 N. W. 721 (case of parol gift to child); Eekert v. Eckert, 3 Pen. & W. 332; Tiernan v. Gibney, 24 Wis. 190. GaUagher v. Gallagher, 31 W. Va. 9, 5 S. E. 297, contta. If clearly proved, and a refusal would aid a fraud, performance must be decreed. Barrett v. Forney, 82 Va. 269. 61* Cox V. Cox, 26 Pa. St 378 (a variance between allegation and proof shows that the complainant cannot give the true terms). So as to boimdaries; Robertson v. Robertson, 9 Watts, 32; Woods v. Parmere, 10 Watts, 195; Camden & A. B. Co. v. Stewart, 18 N. J. Eq. 489; Wiseman v. Lucksinger, 84 N. y. 31 (as to consideration and terms). For cases of sufficient clearness in proof, see Xeale v. Neale, 9 Wall. 1; Hooper v. Laney, 39 Ala. .338. See, however, Lobdell v. Lobdell, 30 N. Y. 327. We shall find a like strictness wherever an equity In land is made to depend on parol. 615 Gallagher v. Gallagher, supra (payment alone not enough); Foster v. Maginnis, 89 Cal. 2(54, 26 Pac. S2S (possession must be taken with vendor's knowledge); Bigler v. Baker, 40 Neb. 32.j, 58 N. W. 1026 (must be under contract of sale, not under lease); Wiseman v. Lucksinger, 84 N. Y. 31 (must be referable to contract); Clark v. CLirk, 122 111. 391, 13 N. E. .553 (not to tenancy); Koch v. National Union Building Ass'n, 137 111. 497, 27 N. E. .530 (holding over by tenant not enough); Eckert v. Eckert, supra (must follow contract) ; Sweeney v. O'Hora, 43 Iowa, 34 (may be connected with it by parol proof); CarroUs v. Cox, 15 Iowa, 455 (under contract); Williams v. Landman, S Watts, & S. 60 (possession by attornment of old tenant enough); Miller v. Ball, 64 N. Y. 86 (possession of wild land by making road, cutting under- brush, etc.). Yet costly improvements made by a tenant near the end of his term, were deemed part performance in Morrison v. Hen-ick, 130 111. 631, 22 N. E. 537; Gorham v. Dodge, 122 111. 530, 14 N. :^i. 44 (possession Indispensable); Shahan v. Swan, 48 Ohio St. 25, 26 N. E. 222 (referable to contract). But possession of one tract is not part performance as to an- (479) § 63 LAND TITLES IN THE UJS'ITED STATES. [Ch. 5 As far as payment by the vendee is required, it may be made effectually by his accepting the land in satisfaction of a previous demand against the vendor."* The vendee must, according to the weight of authority, besides having been put in possession, and besides having made payments on the land, have been put in such a position that he would be the loser by a breach of the contract of sale; e. g. he may have spent money and labor in making lasting and valuable improvements on the land, as in the case which gave rise to the doctrine."^' Land is often given by the owner to a railroad company with the understanding that tracks should be laid over it; and when this is done, a costly and lasting improvement has been made, which the vendee cannot remove without great loss; especially when the main line has been run over the land. The land is not always sold for money. Often the desire to have the railroad, switch or a "spur road" run over or into the vendor's land is the consideration, and is undoubtedly sufficient to support a contract of sale. In all these cases, the railroad company can, after complying with its side of the contract, taking possession, and laying the track, call for a deed.''^* other, Myers v. Croswell, 45 Ohio St. 543, 15 N. E. 866; Bullis v. Mining Co., 75 Tex. 540, 12 S. W. 397 (improvemeuts made after a renewal of contract do not aid the old one). In Morse v. Inhabitants of Wollesley, 156 Mass. 95, 30 N. E. 77, a promise by parol to reconvey interest in laud conveyed, could not be sustained, not being followed by possession. Everett v. Dilley, 39 Kan. 73, 17 Pac. 661 (though interest on deferred payments and payment of tax by vendee had not been agreed on distinctly). 516 Cooper V. Monroe, 77 Hun, 1, 28 N. Y. Supp. 222 (where the demand was barred by limitation, but morally still binding). See a consideration worked out in Holmden v. Janes, 42 Kan. 758, 21 Pac. 591. 517 Glass V. Hulbert, 102 Mass. 25; Moore v. Small, 19 Pa. St. 461, 470 (con- tract enforced only where compensation in money not feasible); Foster v. Maginnis, supra; Bshleman v. Henrietta Vineyard Co. (Cal.) 3S Pac. 775 (suffering no loss, no case); Bradley v. Owsley (Tex. Sup.) 19 S. W. 340 (pur- chase price and taxes paid, but no improvements, not enough); Forrester v. Flores, 64 Cal. 24, 28 Pac. 107 (possession and price paid not enough), ap- proved in Moulton v. Harris, 94 Cal. 420, 29 Pac. 706. All the requisites ful- filled, Winchell v. Winchell, 100 N. Y. 159, 2 N. E. 897; Calanchini v. Bran- stetter, 84 Cal. 253, 21 Pac. 149 (where a strip surrendered in a boundary set- tlement, to be paid for upon a future ascertainment of the true line, had been improved). f' 18 East Tennessee, V. & G. Ry. Co. v. Davis, 91 Ala. 615, 8 South. 349; am Ch. 5] TITLE BY GRANT. § 63 But, besides Iowa and Alabama, which have by statute enlarged the scope of parol contracts, Wisconsin and South Carolina seem always, and West Virginia and Maryland in some cases, at least, to be satisfied with possession alone j and Illinois, when land is ex- changed, requires nothing further than delivery of possession by both parties, and of a deed by the party who seeks to enforce the contra cf'* We have shown, under the head of "Deeds," that a partition by parol followed by possession, has been recognized in many of the older cases. In Pennsylvania, not only a partition between tenants in common but an exchange of separate tracts, when made by parol, and performed by actual possession, is held good; and either party, when in possession, can retain, and probably can have his title quieted.'^" It has been shown that the Iowa statute differs widely from its English prototype, in not forbidding the action, for lack of a writing, but only excluding unwritten evidence. Hence when the plain- tiff's allegation of an unwritten contract is not denied, in pleading, Chicago, B. & Q. K. Co. v. Boyd, 118 111. 74, 7 N. E. 487; Hall v. Peori.i & E. Ry. Co., 143 111. ItiS, 32 N. B. 598. Secus, where only a license to lay the track was given. St. Louis Nat. Stock Yard v. Wiggins Ferry Co., 112 111. 385. "0 Watts v. Witt, 39 S. C. 356, 17 S. E. 822; Rapley v. Klugh. 40 S. C. 134, 18 S. E. 680; McClure v. Otrich, 118 111. 321, 8 N. E. 784 (parol ex- change of lands); Bechtel v. Cone, 52 Md. 698 (everything done on both sides, except delivery of deed, seller, becomes trustee for buyer) ; Gallagher V. Gallagher, supra (possession enough in some cases); Blanchard v. Mc- Dougal, 6 Wis. 167; Cameron v. Austin, 65 Wis. 652, 27 N. W. 622. But in Seaman v. Ashchermann, 51 Wis. 678, 8 N. W. 818, the relief is based on the fraud implied in its refusal. S20 Johnston v. Johnston, 6 Watts, 370: "It is undoubtedly true that an agreement for the exchange of land is within the statute of frauds, and must be in writing. But the specific execution of a parol agreement will be decreed in equity, when the agreement has been carried into effect in whole or in part. A partition is in some respects analogous to an exchange, and in Ebert v. Wood, 1 Bin. 216, it is held that a parol partition between ten- ants in common, made by m.arking a line of division on the ground, and followed by a corresponding separ-ate possession, is good, notwithstanding the statute." S. P. Wolf v. Wolf, 158 Pa. St. 621, 28 Atl. 164. A parol ex- change of lands must be made good by delivery of possession. Reynolds v. Hewett, 27 Pa. St. 176. All approved in Brown v. Bailey, 159 Pa. St. 129, 28 Atl. 245. LAND TITLES V. 1 31 (481) § 68 LAND TITLES IN THE UNITED STATES. [Ch. 5 and no issue of fact is made, tlie statute does not come in at all."^^ Merely putting building material on the ground, with a view to the erection of improvements, is not the same as improving the ground, and is not even such a taking of possession as is necessary under the rule.^^^ Part performance, by which, if disregarded, irreparable loss would result to one party, has been held sufficient to enforce an oral con- tract to release that party's land from a mortgage or lien, though the loss in such a case would not arise from outlay on improvements. And, in like manner, performance of an agreement to give a lien for the cost of improvements made has been enforced.^^^ The most frequent case of a parol transfer of land happens between parent and child, or between the father and his proposed son-in-law. The child or son-in-law may, in accepting a farm or lot given to him, taking possession, improving, building, or cultivating, have changed the whole course of his life, in full reliance on the perma- nence of the gift, — risking more than if he had paid the money price of the land. Where the farm or lot is given in contemplation of the son's or daughter's marriage, there is, in law, a "valuable considera- tion," if the marriage takes place accordingly, — as much as if there had been payment in money.^^* But even where marriage does not enter as a consideration, but the son or daughter simply enters into possession on the faith of the gift, and makes valuable and per- manent improvements, he or she may, according to a number of 021 Hotchkiss T. Cox, 47 Iowa, 555 (an antecedent indebtedness makes a sufficient payment, if released or surrendered). 622 Poland V. O'Connor, 1 Neb. 50; Hunt v. Lipp, 30 Neb. 469, 48T, 46 N. W. 632; Erringdale v. Riggs, 148 111. 403, 36 N. E. 93 (slight improvements); Cloud V. Greasley, 125 111. 316, 17 N. E. 826 (same). 623 Gould V. Elgin City Banking Co., 136 111. 60, 26 N. B. 497, where the debtor's wife had released her inchoate right of dower in other tracts, on the promise of a release of the homestead from mortgage; Smith v. Smith, 125 N. Y. 224, 26 N. E. 259. An easement is "an interest in land," but may be gained by parol and part performance. Robinson v. Thrailkill, 110 Ind. 117, 10 N. E. 647. 524 White V. Ingram, 110 Mo. 474, 19 S. W. 827. But services by a child or stepchild are not part performance when made the considei-ation for a prom- ised devise, no possession being given. Ellis v. Carey, 74 Wis. 176, 42 N. W. 252. (482) Ch. 5] TITLE BY GRANT. § 64 authorities, claim a specific performance, if the parol gift be "clearly, definitely, and conclusively established."" ^° There is noticing in the doctrine of part performance which con- fines it to the claim to a fee. In fact, the "leading case" was that of a long lease. And a life estate has been decreed on parol evi- dence."^' As part performance must almost if not quite always embrace possession by the vendee, as one of its elements, it naturally works out a notice to all the world of such equitable rights as the vendee may have; and it will therefore be enforced as much against pur- chasers from the vendor as against him, for the purchasers will not be free fiom notice."^ § 64. Curative Acts. While the estate or inchoate right of dower of married women could only be passed or released by fine or common recovery, — ^that is, by the solemn judgment of a superior court, — ^no question could arise upon the details of the examination or acknowledgment preced- ing that judgment. The colonial act of Virginia of 1748 perhaps intended the same result, when the county court, under its provisions, ordered a deed to record. But it was adjudged otherwise,"^* and when single judges or justices, mayors, recorders, clerks, and notaries 52 5 Truman v. Truman, 79 Iowa, 500, 44 N. W. 721; Moore v. Pierson, 6 Iowa, 279, 298, which extracts the position of the text from Syler v. Eckhart, 1 Bin. 378 (Tilgliman, C. J.); Stewart v. Stewart, 3 Watts, 253; Young v. Glendenning, 5 Watts, 509; Lobdell v. Lobdell, 36 N. Y. 327; Lloyd v. Hol- lenbach, 98 Mich. 203, 57 N. W. 110 (daughter and husband moving into other city, besides malting improvements); Griggsby v. Osbom, 82 Va. 371 (gift certain and clearly proved, etc.). 526 St. Louis, A. & T. Ry. Co. v. Graham, 55 Ark. 294, 18 S. W. 56; Red- field V. Holland P. Ins. Co., 56 N. Y. 3.54 (between husband and wife). 527 Holmden v. Janes, 42 Kan. 758, 21 Pac. 591; District No. 3 v. Macloon, 4 Wis. 79. 028 Virginia act of 1748, § 5 (5 Hen. St. at Large, p. 408 et seq.), copied in Morehead & B. St. Ky. p. 431. In Philips v. Green, 3 A. K. Marsh. 10, the analogy between the proceedings in the county court and a fine is left un- determined. In Prewitt v. Graves, 5 J. J. Marsh. 120, the former are called "ministerial." (483) § 64 LAND TITLES IN THE UNITED STATES. [Ch. 5 were, by later acts, authorized to take and certify acknowledgments, the certificate, even though called "judicial," no longer concluded the granting feme covert at the utmost any further than as to the truth of the facts therein recited. Many of the magistrates being almost illiterate, nearly all of them not learned in the law, and the statutes differing from state to state, deeds being often acknowl- edged where the laws governing them were inaccessible, mistakes were naturally very frequent The acknowledgment was often taken by an officer not fully authorized, or was defective in form, stating too little or too much. These defects had, in most instances, nothing to do with the wife's willingness or unwillingness to sell or incumber her land, or to bar her dower, but were simple accidents. She would have been just as wUling to go before the right as before the wrong officer; to answer the right as to answer the wrong questions. But for want of the right certificate made by the right magistrate, her deed was void. Thus great hardships arose to purchasers or incum- brancers who had paid or advanced their money in the best of faith, and the legislatures stepped in, seeking to remove these hardships. Retrospective laws were passed, called by their authors and friends "healing" or curative acts, to give effect to the deeds of married women not properly acknowledged or certified, in almost every state in which "privy examinations" were known and used. Sometimes the curative act dealt with the body of the deed, or with acknowl- edgments of persons who were sui juris, rendering the registration of a deed valid which would otherwise have been ineffectual. In Kentucky, among other states, such acts have been held unconsti- tutional, as making a contract for the woman grantor, who has made none herself; as taking her property from her, and giving it to another.^^" This was also the decision of the supreme court of 629 Pearce's Heirs v. Patton, 7 B. Mon. 162, 168. On a very mild law whicli directed that wlien a deed by baron and feme, otherwise good, except tliat the justices had not been commissioned by a dedimus, had been made to a purchaser for value, he might, after seven years' possession after the passage of the act, on showing that there was no "fraud or guile," have the deed established in chancery. The doctrine is broken in upon in the ill-consid- ered case of Boyce v. Sinclair, 3 Bush, 261. The Kentucky tfen. St. 1873 provide in chapter 24, § 23, that deeds theretofore executed may be recorded thereafter; but this was held not to apply to a married woman's deed, on which the time had already run out, and which had thereby lost its effects (484) Ch. 5] TITLE BY GRANT. § 64 Ohio, which at the time when rendered (1841), attracted great atten- tion ; but a few years later, under the pressure of widespread excite- ment and popular clamor, it appearing that many hundreds of deeds might be set aside, and in order to stop endless litigation, the court overruled itself by a vote of three to one.°^° The Ohio constitution of 1850 set the matter at rest for that state. The legis- lature may not validate deeds directly, but may empower the courts to do so; and a very broad statute passed with that view in 1857, has been applied and sustained.^' ^ Pennsylvania has most fully and frequently acted on the view that no one is constitutionally entitled to set up a mere technical objection to his or her contracts; that not only a man, but also a married woman, can be compelled by the lawmaker to give up property rights which in honor and good conscience he or she cannot retain. Cura- tive acts, or curative sections making part of more comprehensive acts, were passed in Pennsylvania in 1770, 1826, 1840, 1841, 1849, 1850, 1851, 1852, 1854, 1860, 1864, 1866, 1874, and 1881."" No question could arise as to the very broad colonial act, for Pennsyl- vania had then no constitution to limit her lawmakers. The act of 1826, which validated all acknowledgments certified by the proper officers, but defective in their contents, before September 1, 1826, was expressly held constitutional."^' The act of 1840 cures all deeds acknowledged defectively, or by officers in other states author- ized to take such acknowledgments by their home laws, though not Lee V. James, 81 Ky. 443. An act of May 10, 1884, mentioned in section 54, note 246, may also fail in Its retrospective features. 63 Good v. Zercher, 12 Ohio, 364; Sllliman v. Cummins, 13 Ohio, 116, over- ruled in Chestnut v. iShane, 16 Ohio, 599, and other cases heard with it, in which the majority, to break the strength of the constitutional objection, also went back on Itself on the question whether the acknowledgment was good as it stood. See section 54, note 236. 31 Article 2, § 28, Const. Ohio 1851. The act under this provision Is embodied in the Revised Statutes as section 5872. In Miller v. Hlne, 13 Ohio St 565, it was held that the nonjoinder of the husband makes the deed a nullity, and it cannot be cured under this statute; but that he joins only in the testimonium clause can be cured. Goshorn v. Purcell, 11 Ohio St. 641. 632 Brlghtly's Purd. Dig. c. "Deeds and Mortgages," els. 64-78. 533 Barnet v. Barnet, 15 Serg. & R. 72; Tate v. Stooltzfoos, 16 Serg. & R. 35. A volunteer as well as a purchaser for value can avail himself of the act. Mercer v. Watson, 1 Watts, 356. (485) § 64 LAND TITLES IN THE UNITED STATES. [Ch. 5 by that of Pennsylvania, at any time before the 1st of January, 1841. These parts of the act were re-enacted, and thus extended, in 1848, 1849, and 1850. This act does not cure a certificate taken within Pennsylvania before a wrong officer, nor the absence of all semblance of a separate examination, and cannot direst the estate which has accrued to a second grantee before its passage."'* The act of 1841 refers to deeds acknowledged prior to 1817 before the mayor or recorder of Philadelphia. That of 1849 cures all defects occurring before the year 1818, if the husband or wife, or either of them, had received the consideration of the deed. The act of April 15, 1850, refers to all deeds (not only to those executed by husband and wife) which have been recorded more than 30 years before its passage, and which had not been properly proved or acknowl- edged, but is restricted by act of 1851 to cases in which the possession of the lands has been held for 30 years in accordance with the deed. The act of 1854 again validates deeds acknowledged prior to its passage (May 5th) before an officer anywhere In the United States authorized by the laws of his own state to take acknowledg- ments.^^' The act of 1860 cures deeds made erroneously in the name of the attorney instead of that of the principal, and has a proviso that no case theretofore decided judicially shall be affected by this act, former acts having been thus applied. The act of 1864 validates all acknowledgments taken before notaries in Pennsylvania, or else- where in the United States, after the act of April 22, 1863 seemingly authorized notaries to certify deeds. The act of 1866 validates releases made before its passage in the manner provided therein as if executed thereafter. The act of May 25, 1874, cures the defects in the certified acknowledgment only upon the affidavit of one of the subscribing witnesses that the examination was actually carried on as the law requires. This law, and the next following, were not to apply to suits then pending. The act of May 26, 1874, refers to deeds made by husband and wife before 1850, under which the purchaser has entered and held possession since that time, and bars the title 6S4 Tarr v. Glading, 1 Phila. 370. Green v. Drinker, 7 Watts & S. 440-444, extends to volunteers, sucli as a trustee of the wife. Rigler v. Cloud, 14 Pa. St 364. 636 Applies to mortgages as well as to absolute deeds, and is constitutional, Journeay v. Gibson, 56 Pa. St. 57. (486) i Ch. 5] TITLE BY GRANT. § 64 of the grantors as fully as if all the requisites of the act of 1870 had been complied with. The act of 1884 supplies the lack of alder- manic seals to certificates. "° But, even in Pennsylvania, a private act ratifying a deed which the grantor was prohibited from making by the nature of her estate, and by the will of the donor from which she derived it, was held to be a mere arbitrary transfer of property from one person to another, and as such null and void.^=^ Minnesota enacted, within a much shorter time, an even greater number of curative laws; and these were sustained by her courts.^^* 036 See the case of Satterlee v. Matthewson, first In 13 Serg. & R. 133, after- wards decided to tlie contrary in 16 Serg. & R. 169, under a curative act. The other acts will be found following those cited, but have not given rise to important decisions. 5 37 shonk V. Brown, 61 Pa. St. 320. The deed had been made by a mar- ried woman holding by devise a separate estate without power of alienation. Her heirs claimed vmder their giandfather's will, as if she had held no more than a life estate. 538 Statutes of Minnesota, volume 1, which is the Revision of 1878, con- tains in chapter 123 all the "curative laws" up to that time; title first, those which refer to the deed defectively executed or recorded. Among tliese, sec- tion 1, enacted In 1856, cures all acknowledgments taken before clerks of court; section 2, of 1858, deeds attested by only one witness. Sections 3 and 4 do the same in 1863, and validate the record of such deeds. Section 5, of 1863, validates the certificate of a notary who was a banker or broker; section 6, of 1864, those made by McTavish, governor of Assiniboia. Sections 7 and 8 cure and make evidence all records in the proper county, though not recordable. Section 9, of 1866, gives force to acknowledgments taken by ter- ritorial judges of probate; sections 10 and 11, those before officer, out of state, who has an official seal, but is not further vouched for as required. Section 12, of 1867, cures conveyances not attested by any witness; sections 13 and 14, of 1870, those executed and acknowledged out of the state accord- ing to the law of the place, and bearing a certificate to that effect, the rec- ord thereof to be evidence. Sections 15 and 16 establish deeds acknowledged within the state without official seal; section 17, of 1871, certificates of for- eign notary without seal: section 18, of 1872, deeds with one subscribing wit- ness; sections 19 and 20, of 1873, acknowledgments of married women where "without compulsion by the husband" has been omitted; section 21, of 1875, where no separate examination is shown. Sections 22-30, from 1875 to 1878, cure other deeds defectively acknowledged or attested. The second volume, which contains the amendments down to 1889, contains other acts as late as 1887. One of that year, as section 30p, gives force to the power of attorney made by a married woman for the conveyance or incumbrance of land, if the (487) § G4 LAND TITLES IN THE UNITED STATES. [Ch. 5 In Xew York, a colonial act of 1771 first made the separate ao- knowledgment of married women necessary; an act of 1773 cured deeds which since the former act might not have been thus ac- knowledged by women out of the colony. This was before any written constitution exist ed.°^' No general retrospective laws have since been passed in New York, like those of Pennsylvania, for the cure of faulty acknowledgments; but special acts conflrnj- ing deeds of corporations that were void for irregularity, but wert intended by the governing body to pass the title, have been sustaiii- ed as valid."" In Arkansas, Texas, and New Jersey, healing stav utes giving force to the otherwise invalid deeds of married women have been sustained. The difficulty here is that a married woman can, at common law, make no executory contract, and declare no trust, and that, therefore, the statute which gives validity to her attempted conveyance does much more than enforce a contract or an equity.'^^ In Illinois, Wisconsin, and Alabama, the Kentucky doc- husband joins with the attorney in the latter. Several of these acts (all of which are retrospective) provide expressly that the rights of intermediate purchasers shall not be affected. A curative act of 1858 gave force to deeds not attested by two witnesses. It was held In Thompson v. Morgan, 6 Minn. 295 (Gil. 199), that it was void as against intermediate incumbrancer. Again, in the acts of 1889 we find an act of February 26th curing the defect when a married woman is not described in the acknowledgment as the wife of her co-grantor; an act of March 16, 1891, cures deeds executed and put to record without subscribing witnesses. 639 Jackson v. Gilchrist, 15 Johns. 89; Constantine v. Van Winkle, 6 ETiU, 177; Hardenburgh v. Lakin, 47 N. Y. 109. 540 People V. Law, 34 Barb. 494. The legislature may also transfer the title from the trustee of a naked trust to the beneficiaries. Dutch Church v. Mott, 7 Paige, 77. = " Johnson v. Richardson, 44 Ark. 365, lays down the principle (1) that the constitution (of that state) does not forbid retrospective laws; (2) that the healing acts of March, 1883, which allow a cori'ection of the certificate by the district court, on showing what took place at the privy examination, affect only the proof, and must therefore be construed to apply to deeds thereto- fore acknowledged; (3) that a pending suit gives no vested right. So, in Texas, article 4353 et seq. of the Revised Statutes, authorizing courts to correct deeds according to the facts, were applied as acts of "evidence" to deeds of married women. Johnson v. Taylor, 60 Tex. 360. In New Jersey healing acts mak- ing instruments otherwise void carry out the intention of the parties were held valid in New Jersey Railroad & Titinsportation Co. v. Mayor, etc., of (488) Ch. 5] TITLE BY GRANT. § 64 trine has been followed. Acts of the legislature confirming deeds void in the matter of form have been held unconstitutional, as tak- ing from the apparent grantor the freehold or property still belong- ing to him or her, without consent or trial. And this result must follow everywhere, when the rights of purchasers in good faith have intervened; that is, when the grantor, disregarding the first and inoperative deed, conveys the land to a third person for value, — a case which we have seen is expressly provided for in some of the Pennsylvania acts.°*^ The whole subject of these validating, retrospective laws is fully treated in Cooley's Constitutional Limitations, under the head of ^'Protection by Due Course of Law;" but very few of his cases refer to statutes which validate deeds void for informality'.'*' Where cura- tive acts are sustained at all, they are construed liberally, to carry out their evident purpose; for instance, powers of attorney defective- ly acknowledged are embraced by an act curing defective deeds and ''other instruments." "** The older state constitutions do not generally contain a guaranty of vested rights in property, except, in the words of Magna Charta, that "no man's freehold shall be taken, unless by the judgment of his peers or the law of the land." In some cases they guaranty ■"due course of law." But these clauses did not attract attention till the days of the fourteenth amendment, which gave a national City of Newark, 27 N. J. Law, 185, 197. The Iowa cases of Brinton v. Seevers, 12 Iowa, 389, and Ferguson v. Williams, 58 Iowa, 717, 13 N. W. 49, do not go so far, for they only give validity to the recording of deeds against which no vested rights had yet arisen. The New Jersey acts can be found mainly in the supplement (1877-1886), "Conveyances": sections 26-30, as to acknowledgments; sections 21-36, as to deeds; section 33 (act of 1882) validates deeds of married women made by attorney, section 35 (act of 1883) deeds made by attorneys in their own name. B4 2 Russell V. Rumsey, 35 111. 362 (act seeking to release dower); Alabama Life Ins. & Trust Co. v. Boykin, 38 Ala. 510; Orton v. Noonan, 23 Wis. 102. 643 Cooley, Const. Lim. quotes on the side of these acts Chief Justice Parker In Foster v. Essex Bank, 16 Mass. 245; also, "Courts do not regard rights as vested contrary to the justice and equity of the case," from supreme court of New Jersey in New Jersey Railroad & Transportation Co. v. Mayor, etw., of City of Newark, supra. S4 4 Collins V. Valleau, 79 Iowa, 626, 43 N. W. 284, and 44 N. W. 904. (489) § 64 LAND TITLES IN THE UNITED STATES. [Ch. 5 guaranty for "due course of law." Hence, the older objections to curative laws were made on the general ground of some necessary restraint on the lawmaking power; and, on error to the supreme court of the United States, nothing could be invoked but the clause against "laws impairing the obligation of contracts." The supreme court has had three cases before it in which a healing act sought to give validity to a contract which, under the law in force at the time of its making, was void. In 1826 Pennsylvania repealed the old oppress- ive statutes directed against the holders of Connecticut titles, by which no contract of tenancy under them as landlords could exist, and enacted that such contracts theretofore made should be valid. The supreme court of Pennsylvania applied the new law to a pending suit, worked out an estoppel from the tenancy, and adjudged posses- sion of a farm to the landlord. The supreme court of the United States could not find here any impairment of the obligation of con- tracts, and, there being no other casus foederis, had to afQrm this judgment; and soon afterwards, upon the same ground, one that came up from Pennsylvania under the other healing act of 1826, above mentioned, referring to the deeds of married women.^*° A much later case came from Illinois, where a mortgage had been given to a Kew York corporation, while a law was in force declaring all contracts of loan by foreign corporations void. A subsequent stat- ute, which gave validity to the securities theretofore executed upon such loans, was sustained by the supreme court of Illinois; and, on an appeal to the supreme court at Washington, the appellant claimed the guaranty of the fourteenth amendment for "due course of law" ; but the constitutional point was evaded as the party who raised it had no standing in court for such a purpose, since he had acquired his rights after the passage of the act.'**" In Kentucky, no retro- spective law, though otherwise unobjectionable, is allowed to affect a pending action, except as against the commonwealth or municipal corporations, on the ground that the legislature must not interfere with the province of the courts. However, the courts not only of Pennsylvania, but of other states, have disregarded this distinction, BIB Satterlee v. Matthewson, 16 Serg. & R. 169; Id., 2 Pet. 380 (on error); Watson V. Mercer, 8 Pet 88 (on error from Sup. Ct. Pa.). 546 Gross V. United States llortg. Co., 108 U. S. 477, 2 Sup. Ct. 940. (490) Ch. 5] TITLE BY GEANT. § 64 and hold that a person cannot acquire a vested right by bringing a suit."*^ In some of the states, the curative laws referring to deeds are scanty, rather mild, and of comparative late date, and do not un- dertake to give force to the deeds of married women, otherwise void ; but deal only with smaller irregularities, mainly in the certificate of acknowledgment. So in Maryland, where a few of these retrospective acts have been passed between 1 864 and 1882 ; and these have, so far as passed upon, been sustained."** Where an act seeks to give validity to the defective execution of a power to sell a debtor's land for debt (such as will be treated of hereafter under "Power of Sale — Deed of Trust"), the tendency is naturally against giving such act any retrospective effect; not only upon powers already faultily ex- ecuted, but even upon former deeds containing such a power."*" « 6»7 rPhweatt V. Bank of Hopklnsvllle, 81 Ky. 1, 8. Contra, see note 5'^; Green v. Abrahams, 43 Ark. 420, resting on Cooley, Const Llm. p. 476; and Johnson v. Richardson, supra, note 541. However, intervening vested rights are not to be disturbed. 5*8 Gen. Pub. Laws, art. 21, els. 77-82; Gambrill v. Forest Grove Lodge, 66 Md. 17, 5 AtL 548, 10 Atl. 595. 649 Gordon v. CoUett, 107 N. C. 362, 12 S. E. 332. But see, contra, Madlgan V. Workingmen's Permanent Bld'g & Loan Ass'n, 73 Md. 317, 20 Atl. 1009. In late years, laws curing flaws in deeds by married women have been quite numerous; e. g. there is a Connecticut act of Jime 29, 1893, which cures any conveyance made by the wife of a nonresident husband, without his co-opera- tion, with the significant addition that the rights of a subsequent purchaser from husband and wife, already accrued, shall not be affected. (491) § 65 LAND TITLES IN THE UNITED STATES. [Ch. 6 CHAPTER VI. TITLE OUT OF THE SOVEREIGN. § 65. The Indian Title. 66. Colonial and State Patents. 67. United States Grants. 6S. Inchoate Rights under the United States. 69. Railroad Land Grants. 70. Mineral Lands. 71. Grants to the States. 72. Spanish and Mexican Grants. 73. Texas Titles. 74. "Office Found." § 65. The Indian Title. The country wMch is now embraced in the United States, whether a part of the original thirteen colonies, or acquired since from Spain, France, or Mexico, was, before the arrival of its present set- tlers of European descent, inhabited by a great number of wandering tribes of "savages, on whom the newcomers bestowed the general name of Indians." Even those among them who had advanced fur- thest in the arts of peace had no permanent possession or heritable ■ownership of land; and by far the greater portion lived mainly by hunting and fishing, only occasionally eking out their wants by a crop of maize. It is no wonder that European princes and colonists should have treated an ownership of land so loosely held, as that ■of the individual Indians, with very little respect When they felt the need for purchasing land, they bought from a "nation," or tribe, through its chief men. The governments of the several nations which settled North America — the English, Dutch, Spanish, and French — named in their colonial charters or royal decrees vast tracts of territory over which they asserted sovereignty, and from which each of them excluded all other European governments; but they had still to deal with such right as the Indian tribes might have to the land, or such force as these tribes might exert to keep •ofE intruders. Between the several European nations, the prior right (492) Ch. 6] TITLE OUT OF THE SOVEREIGN. § C& was nominally determined by first discovery, but really by the sword. Chief Justice Marshall, in one of his most noted opinions, sets forth these historic truths with great force, and, applying them to- the English colonies, saysi^ "In the first effort made by the Eng- lish government to acquire territory on this continent, we perceive a complete recognition of the principle which has been mentioned. The right of discovery given in the commission (to Cabot) is con- fined to countries then unknown to all Christian people, and of these Cabot was empowered to take possession in the name of the king of England; thus asserting a right to the possession notwithstanding the occupancy of the natives, who were heathens, and at the same- time admitting the prior title of any Christian people who may have made a previous discovery." The chief justice then refers to the Virginia charters of 1606 and 1609, to that which in 1620 was granted to the Plymouth Company, the charter of 1664 to the duke of York, and gi'ants, made in 1663 and 1666, of the lands lying south of Virginia, and proceeds: "TTius has our whole country been granted by the crown while in the possession of the Indians. These grants purport to convey the soil as well as the right of dominion to the grantees." Under the governorship of Lord Dunmore, shortly before the Revolution, notwithstanding the proclamation made by the British crown in 1763, adventurous men from Virginia and the adjoining colonies pushed out westward to the fertile lands of the Ohio Valley, and many of them sought to acquire the ownership of vast tracts of land by bargaining on their own account with the- Indians.^ The jealousy of the state legislatures was aroused, and,, as the chief justice further says: "Virginia, particularly, passed an act, in the year 1779, declaring her 'exclusive right of pre-emption from the Indians of all the lands within the limits of her own char- iJolinson V. Mcintosh, 8 Wheat. 543, 576, etc. The Indian title of occu- pancy is compatible with a fee in the state. Fletcher v. Peck, 6 Cranch, 87. 2 The most noted example is that of Kichard Henderson and his associates, who, in 1775, bought from the Cherokee Indians the vast tract between the Ohio, Cumberland, and Kentucky rivers. The Virginia legislature com- promised their claims by granting to them 100,000 acres at the mouth of the Green river. Including what is now the city of Henderson. 9 Henning's Vir- ginia Statute at Large, page 571, reprmted in Morehead & Brown's Statute of Kentucky, page 938, and referred to in Ilolloway v. Buck, 4 Litt. (Ky.) 203;. Buck V. Holloway's Devisees, 2 J. J. Marsh. 163. (493) § 65 LAND TITLES IN THE UNITED STATES. [Ch. 6 tered territory, and that no persons have or ever had a right to purchase any lands within the same from any Indian nation, except only persons duly authorized to make such purchase, formerly for the benefit of the colony, and lately for the commonwealth.' The act then proceeds to annul all deeds made by Indians to individuals for the private use of the purchasers." The other twelve colonies pursued the same policy; though they sometimes, by sovereign act, recognized or ratified some one particular purchase of Indian land.^ Speaking of the Indian title as subject to that of the crown or the colony, the chief justice says: "If an individual might extinguish the Indian title for his own benefit, or, in other words, might pur- chase it, still he could acquire only that title. Admitting their [the Indian's] power to change their laws or usages so far as to allow an individual to separate a portion of their lands from the common stock, and hold it in severalty, still it is a part of their territory, and is held under them by a title dependent on their laws. The grant derives its efficacy from their will; and if they choose to resume it, and make a different disposition of the land, the courts of the United States cannot interpose for the protection of the title." It follows that one holding a grant from an Indian tribe or from an individual Indian, cannot prevail in a contest with a pur- chaser from the state or the United States after the one or the other has extinguished the Indian title by treaty or otherwise.* The first and greatest acquisition of new territory was that made of Louisiana by the treaty of 1803. By its second article, the cession made on behalf of the French republic is made to include "the adja- cent islands belonging to Louisiana, all public lots, and squares, 3 In the argument for defendant In error in Johnson v. Mcintosh reference Is made to Penn's purchase from the Indians, which did not strengthen Eia title in law. Penn v. Lord Baltimore, 1 Ves. Sr. 444. Counsel also concede some exceptions in the New England states, the Indian title being recog- nized for local and political causes. Lynn v. Nahant, 113 Mass. 433, and Clark v. Williams, 19 Picls:. 499. Under a colonial statute a sale of the aboriginal title without the license or approbation of the general court was void. * In Goodell v. Jackson (court of errors) 20 Johns. 693, 733, reversing Jackson V. Goodell, Id. 188, it is held that no white man can buy land from an Indian Individually or from a tribe collectively, even where their title as a tribe has been recognized by the state or nation, (494) Ch. 6] TITLE OUT OP THE SOVEREIGN. § 65 vacant lands, and all public buildings, etc., -which, are not private property." " In pursuance of the policy which the British crown and its successors in authority had pursued in the territory of the thirteen colonies, the United States interpreted the words "vacant lands" to embrace all those which were still held by the Indian tribes, and which extended from New Orleans and Mobile to Puget Sound on the Pacific. The same words, "vacant lands not private property," are used again in the treaty with Spain made in 1819 for the acquisi- tion of Florida.' The treaty of 1848 between the United States and Mexico, by which the vast territory then known as Upper California and New Mexico was added to the Union, speaks distinctly of the "savage tribes" who are said to occupy a great part of the ceded territory. These are spoken of as the common enemies of both republics. A subsequent article reserves their "property" (not dis- criminating between land and movables) to all Mexicans, whether established in the ceded territory or not, implying that any claims on behalf of the "savage" tribes are not to be respected.'' It is well known that in Mexico a considerable, perhaps the greater, part of the settled population is of pure Indian blood ; but with regard to those Indians who kept up their tribal relations, even though they were converted to Christianity, as the Mokalumne Indians of 9, and particularly Barden v. Northern Pae. R. Co., 1.54 U. S. 288, 318, 14 Sup. Ct. 1030. See under old laws, U. S. v. Gear, 3 How. 120 (lead mines not open to sale or pre-emption under act of 1834). 10 8 "The policy of the government since the acquisition of the Northwest Territory to reserve salt springs from sale has been uniform. The act of 1796 required every surveyor to note on his field book the true situation of all mines, salt lakes, and salt springs, and reserves for the future disposal of the United States every other salt spring that should be discovered." Morton v. Nebraska, 21 Wall. 060, 667. The principles are by the Nebraska act of ISol extended to Kansas and Nebraska, and render void an entry or patent where the saline had been noted on the field book, and is palpable to the eye. Id.; McKinley v. Wheeler, 130 U. S. 630, 9 Sup. Ct. 638. 107 Manuel v. Wulff, 152 U. S. 505, 14 Sup. Ct. 651 (only the United States can complain of lack of citizenship; and it is too late to do so when it is acquired). 108 Hoyt V. Russell, 117 U. S. 401, 6 Sup. Ct. 881 (Montana statutes as to (541) § 70 LAND TITLES IN THE UNITED STATES. [Cll. 6 In reading the Revised Statutes we must keep in mind the dis- tinction between "location" and mining claim. The former is earned and staked out by a single miner, and the local customs as to al- lowable size of vein or lode location, and the statute restriction on placers, apply to it alone; but the individual miners may, by as- signments, combine several locations into a lode claim (about which there never was a doubt), and, in like manner, several placer loca- tions into one placer claim, which then may exceed 160 acres; and a patent for a larger quantity is, under such circumstances, per- fectly good.^"^ A vein or lode claim made up of several locations would be bad only as to the excess, if the combined length should exceed the sum of those which the local custom permits."" A patent which is issued while a controversy is pending be- tween the applicant and an adverse claimant, under section 2326 of the Revised Statutes, is deemed surreptitious as against the ap- plicant, and cannot be set up in the progress of the suit."^ The contest for mining rights has in late years been carried on mostly against town-site entries. These are void, when a "known" vein or lode is running under the site.^^^ The occupancy of land as a town site is of no avail against a newly-discovered mine, unless the town site has been duly entered at the land ofiQce before the recording when chaDjre in statute came into force in each locality); Noyes v. Mantle, 127 U. S. 348, 8 Sup. Ct. 1132. 109 Smelting Co. v. Kemp. 104 U. S. 636; Tucker v. Masser, 113 U. S. 205, 5 Sup. Ct. 420. Before 1870, placer locations were unlimited. The court draws attention to the words "or their grantors," in the Revised Statutes, showing that locations are assignable, as they must be considering the large scale and capital which mining requires. The work required each year for all the locations combined into one claim may be put on any one of them. Cham- bers V. Harrington, 111 TJ. S. 350, 4 Sup. Ct. 428. The work may be done at a distance, is in the first-named case said incidentally. 110 Richmond Min. Co. v. Kcse, 114 U. S. .o7G, 5 Sup. Ct. 1055 (under Nevada act allowing 200 feet to each locator along the vein, besides 200 feet to the discoverer). 111 Richmond Min. Co. v. Rose, 114 U. S. 576, 5 Sup. Ct. 1055. The lanil office must not assume that a claim is abandoned because there is delay in bringing it to trial. 112 Sparks v. Pierce, 115 TJ, S. 408, 6 Sup. Ct. 102. It was also held here, as was stated generally in section 67, that none but the person entitled to the patent can assail the patent actually issued by bill in equity. (542) Ch. 6] TITLE OUT OF THE SOVEREIGN. § 70 discovery."* But, where a mine has been worked in times past, and been abandoned, and its further possibilities are unknown, the town site entered before work is renewed may stand good.^^* Nor is land considered within the exception unless, at the time of the grant, it is known to contain ore or coal enough to pay for the ex- penditure of extracting it."' In the contest between placer and lode mining claims, the same principle governs as in the contest between the town site or farm, on the one side, and mining on the other; that is, the lode must be sufficiently rich in ore that to follow the veins, lodes, or ledges should be profitable."" As the placer patent is on its face made subject to all known vein claims (where they are disclosed in the application, they are excepted), the patentee cannot recover where 113 Id., distinguished from Deffeback v. Hawlie, 115 U.>S. 392, 6 Sup. Ct. 95, where an entry of the town site had actually been made. This case, as well as the other, affirms that one In possession of public land, knowing that he has not complied with the law, cannot be said to hold in good faith. 114 Dower v. Richards, 151 U. S. 658, 14 Sup. Ct 452. 110 Davis' Adm'r v. Weibbold, 139 U. S. 507, 11 Sup. Ct. 628. 118 A placer patent gives the fee in the surface land as well as In the minerals below. Deffeback v. Hawke, supra. In U. S. v. Iron Silver Min. Co. (sometimes quoted as U. S. v. Iron Min. Co.) 128 U. S. G73, 679, 9 Sup. Ct. 195, a placer claim is defined as "ground within defined boundaries, which con- tains mineral in its earth, sand, or gravel; ground that includes valuable deposits not in place, that is, not fixed in rock, but which are in a loose state, and may in most cases be collected by washing or amalgamation without mill- ing." The word "placer" (pron. platherr) is Spanish, and means "pleasure." "Veins or lodes" are said to be meant for "lines or aggregations of metals embodied in quartz or other rocks in place." But a lode may contain more than one vein. Iron Silver Min. Co. v. Cheesman, 116 U. S. 529, 533, 6 Sup. Ct. 481, which quotes from Mr. Justice Field's opinion in Eureka Case, 4 Sawy. 3(t2, 311, Fed. Cas. No. 4,548: "A fissure in the earth's crust, an opening in its rocks or strata, etc., would seem to be essential to a lode in the judgment of geologists. But to the practical miner the fissure and its walls are only of Impoi'tance as indicating the boundaries within which he may look for, and reasonably expect to find, his ore. A continuous body of mineralized rock, lying within any other well-defined boundaries, would equally constitute in his eyes a lode." And this is said to be the meaning of "lode" as used in the acts of congress. There may be a discovery of a vein within the lode, which, under the Nevada law or custom of miners, will entitle the discoverer to an additional 200 feet in length. Richmond Min. Co. v. Rose, 114 U. S. 576, Sup. Ct. 1055; Sullivan v. Iron Silver Min. Co., 109 U. S. 050, 3 Sup. Ct. 339. (543) § 71 LAND TITLES IN THE UNITED STATPZS. [Ch. 6 a known vein existed, though it be possessed and worked by one who has not followed either the miners' customs or the laws of congress in locating and extending it."' If the vein or lode is not known at the time when the placer claimant applies for his patent, having fulfilled all previous conditions and made his payments, he seems to be entitled to a patent including all minerals, though the vein or lode is discovered and brought to his notice before tht patent is actually issued.^^' The opening and working of mines while the Indian title to the land is not yet extinguished is unlawful. Yet, when the Black Hills miners worked on the Sioux reservation while the national authorities were negotiating with the Indians for that country, the time of exploration and work preceding the sale by the Indians was credited to the miners, the extinguishment of the Indian title re- lating back to the beginning of the work."" § 71. Grants to tlie States. In consideration of the great cessions of land and sovereignty which Virginia and the states north of it made to the United States in or before 1784, and Georgia in 1802, the national government undertook, not only to extinguish the Indian title, and to survey the public domain, but they also set aside a great part of that domain for pur- poses of education. Section 16 in each township was granted to each of the states formed out of the common territory, to some of them also section 36; and the same policy was pursued with regard 117 Reynolds V. Iron Silver Min. Co., 116 U. S. 687, C Sup. Ct. 601, decided on the ground that the plaintiff in ejectment must recover on the strength of his own title. The patent excludes all known veins; hence no recovery can be had on It. In Iron Silver Min. Co. v. Reynolds, 124 U. S. 374, 8 Sup. Ct 59-8, between the same parties, and with regard to the same placer patent, and a vein coming into it from outside of its vertical lines, it was decided that the wording of the patent allowed the vein miner to enter under ground in the pursuit of his vein. The priority between placer and lode claims is a question of fact, on which the decision of the land office, if submitted to it, is final. Iron Silver Min. Co. v. Campbell, 135 U. S. 286, 10 Sup. Ct. 765. 118 Dahl V. Raunheim, 132 U. S. 260, 10 Si;p. Ct. 74; Sullivan v. Iron Silver Min. Co., 109 U. S. 550, 3 Sup. Ct. 339. 119 Noonan v. Caledonia Min. Co., 121 U. S. 395, 7 Sup. Ct. 911. (544) Cll. 6] TITLK OUT OF THE SOVEREIGN. § 71 to the new states carved out of the Louisiana and Florida purchases, and out of the conquests and purchases from Mexico. Several town- ships in each new state were also granted to it in aid of a state university,^2° which it might establish; and other donations followed from time to time. The most important of these were the act of Soptfuiber 8, 1841, giving to each "public-land" state then in the Union, and to each new one that might be thereafter admitted .500,000 acres (including amounts already received for the same purpose), to aid the state in works of internal improvement; the swamp-land act of 1850 (entitled "An act to enable the state of Arkansas and other states to reclaim the swamp lands within their limits"), with sub- sequent amendments greatly enlarging its scope; the agricultural college act of 1862, and other acts in favor of one or more states. The one great question under all these acts is as to the time when the legislative grant takes effect: whether the statute operates by its own force, or is only an agreement to be carried out either by pat- ent or by another confirmatory act; a question already stated in a general way in opening the law as to United States grants in a for- mer seetion.^-^ There have been many different grants of public lands to one or more states for a number of different purposes, aside of those stated above, and aside of those made to aid in the construc- tion of railroads. The grant made to the state of Oregon in 18G6- for the establishment of a military road (in its nature closely akin' to a railroad land grant) may be mentioned. This grant, being re- sumed for supposed noncompliance with its conditions, brought up' the interesting question of the quality of the work that must be done,, or of the road that must be built, in order to preserve the land grant from forfeiture.^ ^^ 120 The University grant contemplates that the receiver may be a priyaW corporation, which may hold its lands against any subsequent resumption by the state. Vincennes University v. Indiana, 14 How. 270. 121 Kissell V. St. Louis Public Schools, 18 How. 19; Cooper v. Roberts, Id. 173. The same has been held as to the legislative grants to Michigan and Wisconsin. The act of 1841, giving land for internal improvements, was not a grant in praesenti. Foley v. Harrison, 15 How. 433. The grant to Nevada, by act of June IC, 1880, of 2,000,000 acres in lieu of the sixteenth and thirty- sixth sections, was to be selected out of unappropriated lands. See as to meaning thereof, U. S. v. Williams, 30 Fed. 309. On selection of school lands In CiUifornia, see McCreeiy v. Hasliell, 119 U. S. 327, 7 Sup. Ct. 170. 122 u. S. V. Willamette Val. & C. M. Wagon Eoad Co., 55 Fed. 711; U. S- LAND TITLES V. 1 — 35 (545) § 71 LAND TITLES IN THE UNITKD STATES. [Ch. 6 The swamp-laad act of Septembei- 28, 1850, by its first section gave to the state of Arkansas, and by another section to all other states, "the whole of those swamp and overflowed lands" remaining then unsold; "and the same are hereby granted to said states." Each le- gal subdivision, of which the greater part is "wet and unfit for culti- vation," is to be included in plats, which the secretary of the interior is to prepare, of the lands coming within the purview of the act, and which lists he is to transmit to the governor of each state, and at his request to issue patents therefor. The legislature of each state is to dispose of the lands given to the state, the proceeds to be used exclusively for reclaiming such lands.^-^ Here is a grant in prae- senti. As soon as the bill was signed by the president, every 40-acre lot of which the greater part was on the 28th of SeptemlDer, 1850, "wet and unfit for cultivation," belonged to the state containing it, before any report by the surveyor to the secretary, or by him to the governor; a rather loose way of legislating, considering how men differ on the question what land is wet, or unfit for cultivation. This view was actually enforced in an early decision under the act, in which the supreme couit allowed the proof by parol that the lands in dispute were "wet and unfit," and thus withdrew them from a railroad grant taking effect in 1852 before a plat of the lands had been returned.^ ^* In subsequent cases this view was so far restricted that proof of "swamp or no swamp" can only be introduced as long as a plat has not been made out by the secretary of the interior, and patents issued; but that his action, when taken, is conclusive, and cannot be controverted in the courts."' The act of July 23, 1865, to V. Dalles Military Road Co.. 2 C. C. A. 419, 51 Fed. 629. The decision of the courts was favorable to the road; it took the wild state of the country at the time of its construction into consideration. 123 9 Stat. 519; Brightly 's Dig. (1857) p. 492. 124 Wright V. Koseherry, 121 U. S. 483, 7 Sup. Ct. 985 (title complete wilh- out patent to the state). See, as to the act of 1860 in favor of Oregon, with its condition precedent of selection in due time, Pengra v. Munz, 29 Fed. 830; Hannibal & St. J. R. Co. v. Smith, 9 Wall. 95; Chandler v. Calumet & Hecla Min. Co., 149 U. S. 79, 13 Sup. Ct. 798. As to grant by state of swamp lands for purpose of public Improvement, see Wineman v. GastreU, 4 C. C. A. 596, 54 Fed. 819. 125 French v. Fyan, 93 U. S. 169, 173; Bhrhardt v. Hogaboom, 115 U. S. 67, 5 Sup. Ct. 1157; Chandler v. Calumet Min. Co., 149 U. S. 79, 13 Sup. Ct. (546) Ch. 6] TITLE OUT OF THE SOVEREIGN. § 72 quiet land titles in California, as far as it gave to the state the sections selected in place of school lands lost by prior Mexican grants, oper- ated in praesenti (though it did not do so as to the gift of 500,000 acres contained therein). Such lands having been selected from lands already surveyed, and notice of the selection having been given to the local land office, the title of the purchaser from the state is su- perior to that derived under the United States land laws after such act; such as a purchase from the regents of the university under the grant to the state for the establishment of agricultural colleges.^ ^* A law of 1894 (it is section 4 of the "sundry civil bill" passed for the then current year) authorizes the secretary of the interior, with the president's approval, to contract and agree with the states of Wash- ington, Oregon, California, Nevada, Idaho, Montana, Wyoming, Col- orado, North and South Dakota (or other state , containing desert lands) to grant to them the desert lands therein, not exceeding 1,- 000,000 acres in each, upon the filing of a map by the state, and its agreeing, through its legislature, to irrigate the same in a manner therein specified. Of course, no judicial decisions have yet been rendered construing the act; and probably none of the states have yet perfected all the steps for receiving their allotments."' § 72. Spanish and Mexican Grants. By far the greater part of the area of the United States has come to the nation by successive cessions. First Louisiana, then East and West Florida, then the Republic of Texas, were incorporated into the Union; then the immense tracts known as Upper California (comprising the state of California and great parts of Utah and Nevada) and New Mexico (containing the northern parts of the present territories of Xew Mexico and Arizona, and much of the 798. The act of March 3, 1857, confirming the swamp-land selections to the several states, at least as to all selections made before that day, cuts off the plea that the land was not "wet or unfit." 126 McNee v. Donahue, 142 U. S. 587, 12 Sup. Ct. 211. The agricultural col- lege act of 1862, with its amendments (15 Stat. 68, c. 55, § 4; 16 Stat. 581, c. 126), that even after its acceptance by the state, no title vested in the state, till it made a formal selection. 12' See Acts Cong. Aug. 18, 1894; March 3, 1877; March 3, 1891. (517) § 72 LAKD TITLES IN THE UNITED STATICS. [Ch. 6 State of Colorado); lastly the Mesilla Valley, comprising, roughly speaking, the southern half of the territories of New Mexico and Arizona, was annexed. All of these acquisitions, with the excep- tion of Louisiana, the largest among them, had before its entry into the American Union (Texas until a short time preceding that entry), been governed by Spanish law. Louisiana had been settled by the French. The population in and around New Orleans and at St. Louis was almost exclusively French. But from 17G3 to 1802 it was governed by Spanish laws and Spanish officials; in fact, the treaty by which it was ceded back to the French republic had not been carried into effect by the appointment of French officials, be- fore the First Consul ceded his new acquisition to the Americans.^ ^* 128 A very few French grants antedating the Sp.anish rfigime in Louisiana have come before the supreme court of the United States. Two of these were thrown out because dated after the cession by the treaty of Fontainebleau, November 3, 1762. U. S. v. D'Auterive, 10 How. GOO, and U. S. v. Pillerin, 13 How. 9. A British grant, made during the British rule in Florida was thrown out in Harcourt v. Gaillard, 12 Wheat 523, because made in the country north of the thirty-first parallel of latitude, after the Declaration of American Inde- pendence. The early French grants, even more perhaps than the late Spanish ones, were often too vague, unaided by survey, could not be located, and thus conferred no legal title. Denise v. Ruggles, 10 How. 242. French gi-ants were also given on condition of improvement and occupancy; and, after a long lapse of time, the condition remaining unfulfilled, congress might resume the grant, its act to that effect being equivalent to office found. U. S. v. De Re- pentigny, 5 "Wall. 211. See, also, New Orleans v. De Armas, 9 Pet. 224, for a contest between a French and a late Spanish grant. The Mexican grants in Texas, mainly under the colonization laws of Mexico, will be treated hereafter in connection with the land system of that state. A Spanish grant, made after the treaty of .1802 by which Spain had given Louisiana back to France, was thrown out in U. S. v. Reynos, 9 How. 127, as unauthorized, though the treaty had been kept secret till the cession by France to the United States, and though by the rule of both France and Spain laws were not in force tUl promulgated at the place. A case of some historic interest is U. S. V. De Repentigny, 5 Wall. 211, under a French grant of 36 square leagues at the Sault Ste. Marie, in what is now the state of Michigan. That the country vs'as before the Seven-Years Vtar a part of Canada or New France is tacitly admitted. The important point in the case is that of international law and the treaty of 1763 as to the French subjects who left Canada, thereby forfeit- ing and abandoning their lands to the British government. The very informal titles of the French settlers in Kaskaskia, Vincennes, Cohokia, etc., were recog- nized in the "Ordinance of 1787 for the Organization of the Northwestern Ter- (548) Ch. 6] TITLE OUT OF THE SOVEREIGN. § 72 Broadly speaking, then, the land titles, of other than English or American origin, with which we are confronted, are governed in their origin either by the law of royal Spain, or by that same law modified by the institutions of the Mexican republic.^''" The parts of this vast domain which had been wrested from the mastery of the red man were, at the dates of the several annexa- tions, comparatively small, except in New Mexico, where the Indians had adopted Christianity, peaceable habits, and in a great measure the use of the Spanish language; and here the largest and most valuable, perhaps also the most fraudulent, "Spanish grants" have been set up. A rather late decision of the supreme court of the ITnited States illustrates how the study of Spanish law may be ma- ritory"; and an ordinance of the continental congress, passed in 1788, directed the governor of the Northwestern Territory to examine and pass on such of them as might be submitted to him. A title thus passed upon by Gov. St. Clair was sustained by the supreme court In Eeichert v. Felps, 6 Wall. 160. 129 It is said in Fremont v. U. S., 17 How. 542, 557, that the courts take notice of the old Spanish or Mexican law, and it need not be proved as a fact, like foreign law. See this applied in Doe v. Braden, 16 How. 635, to the nature of the grant made by the king of Spain to the duke of Alagon. The linear league is equal to 5,000 varas, each vara being about 2.786 feet. The sitio or square league is equal to 4,456.8 acres, nearly seven square miles. The decree of 1824 of the Mexican congress, by article 12, directs that noi more land shall be permitted to unite in the same hands than one league suit- able for irrigation, four leagues of arable land, having no facilities for the same, and six leagues of grazing land. But article 14 of this decree speaks of "the contracts which the empresarios [undertakers] make with the families which they bring at their own expense, provided they are not contrary to the laws." Article 7 of the rules adopted m 1828 for eari-ying out the law or de- cree of 1824 speaks of "grants made to empresarios for them to colonize with many families." It is upon the ground of these latter grants that the supreme court of the United States in the Maxwell Land-Grant Case, 121 U. S. 325, 360, 7 Sup. Ct. 1015, sustained the grant known as "Una de Gato," made by Gov. Armijo, in 1841, to Beaubien and Miranda. The conflicting claim to part of the same land set up in Interstate Land Co. v. Maxwell Land-Grant Co., 139 U. S. 569, 11 Sup. Ct. 656, appeared to rest on a mere executory contract, as most of the empresario grants did, and could not be considered. The judi- cial delivery of possession by a magistrate, under the Mexican law, is illus- trated by the accompanying document in Tameling v. United States Freehold & Emigration Co., 93 U. S. 648. The Mexican departmental governors had no power to make grants of land, except under the colonization law of 182^. Van Reynegan v. Bolton, 95 U. S. 33. (549) § 72 LAND TITLES IN THE UNITED STATES. [Ch. 6 terial in judging of tlie validity of a link in the chain of title. In 1817 a tract of land in the then Spanish province, now state of Texas, was sold as confiscated property for the supposed treason of the owner. The documents evidencing the sale recited, under the hands and seals of the proper civil oiBcers to conduct such a sale, that the commanding general of the department had confiscated the land ; but did not show by whom the owner's guilt had been inquired into, or whether there had been any trial at all. It was decided, upon reading the royal decree of the king of Spain, that there could be no confiscation without a trial, and the documents were rejected as insufficient.^^" The Spanish grants were either "perfect" or "incomplete." The former correspond to patents under the English- American law; the latter rather to homestead entries. It seems that the "subdelegates" of royalty had authority to allot lands to appli: cants; but only the royal governor or "intendant general" could issue what we would call a patent. And for East Florida it seems the signature of the captain general of Cuba was needed. Hence, in the provinces far removed from the seat of government, perfect grants were exceedingly rare.^"^ Under the Mexican rule perfect 130 Sabariego v. Maverick, 124 TJ. S. 261, 8 Sup. Ct 461. A document there relied on showed only that the king of Spain granted such title as he had, but did not show that he had acquired it by confiscation. In Mitchel v. U. S., 15 Pet. 52, questions of political and military history were raised. The peti- tioner's grantor had, with the assent of the Spanish governor of Bast Florida, and of the captain general of Cuba, bought the tract surrounding Ft. Marks from the Indians, the documents being so worded as to include the fort It was held that such could not be the intent, and that a wide clearing around the fort, a zone 3,400 yards wide, measured from the "salient angles" was part of the fort, and excluded from the grant. 131 In Menard v. Massey, 8 How. 293, the supreme court remarks that in Upper Louisiana (what is now the state of Missouri) only two men, both of them Anglo-Americans, took the trouble to go or send to New Orleans for a regular grant. The difficulties and dangers of the journey, the poverty and illiteracy of the people, the small value of the land, and the preference of the French habitants for village life on narrow strips of land within a common fence, all tended against any desire for new and good land titles. The docu- ment given, as appears in this case, to the ancestors of plaintiffs by the gov- ernor at St. Louis, is "to enable him to solicit the title in due form from the intendant general of Louisiana." This was in 1799. Before 1798 the power was lodged in the military governor. See Chouteau's Heirs v. U. S., 9 Pet. (550) CI). 6] TITLE OUT OF THE SOVEREIGN. § 72 grants were somewhat more common than under the Spanish. They hardly ever comprised less than a square league, not seldom eleven square leagues. But, as has already been remarked, while some of these grants gave boundaries agreeing with the area, or described the parcel by its usual name, many other of the Mexican grants gave a comparatively small area within much wider "out boundaries." As to these grants, the supreme court has decided that the Mexican government had the right, upon a survey, to con- fine the grantee to the quantity named, which generally corre- sponded with the quantity prescribed by law ; and that the United States government, as the successor of the Mexican, may exercise the same right.^'^ The great bulk of imperfect grants in the Louisiana purchase was many years ago fully disposed of under the acts of congress of 1S24 and ISli, which provided for proceed- ings by the claimant against the United States in the proper district court. The grantee must have had his residence within the province of Louisiana at the time of the grant, or, at least, on or before the 10th of March, 1804, when it was formally turned over to the United States. The relief prayed was either a confirmation of the grant, or, if the lands embraced therein had in whole or in part been sold by the United States, then indemnity out of other unappropriated lands. No remedy could be given, under these acts, where the Spanish title was perfect on its face.^^' Most of the Mexican grants 137. Under Mexican law, a perfect title could only be made by a formal de- livery of possession through a magistrate CSlore v. Steinbach, 127 U. S. 70, 8 Sup. Ct. 1007); which in California, as there said, could not be done after the conquest. See, as to the importance of the judicial delivery, Malarin v. U. S., 1 Wall. 282, 289. It has been repeatedly held in Texas that the alcalde who delivers the judicial possession need not be the same who has jurisdic- tion over the locus in quo. Martin v. Parker, 2G Tex. 257. 132 u. S. V. McLaughlin, 127 U. S. 428, 8 Sup. Ct. 1177. In a number of cases Mexican grants within a large "out boundary" were by our courts, after confirmation, confined to the number of square leagues (usually 11) recited in the Mexican grant. Homsby v. U. S., 10 Wall. 224, 231. Here the regula- tions of 1825, under the colonization law of 1824, are stated in full, in nine articles, the translation being credited to Rockwell's Spanish & Mexican Laws in Relation to Mines and Titles (volume 1, p. 453). 133 u. S. V. Castant, 12 How. 437. The grant being of titulo in forma, the petition was dismissed. A gi-eat number of cases under these acts are founQ in the 9th, 10th, 11th, and 12th volumes of Howard, in nearly all cases on (551) § 72 LAND TITLES IN THE UNITED STATES. [Ch. 6 in California, perfect or imperfect, about the validity or extent of which any doubt prevailed, were either rejected or confirmed and defined under the act of March 3, 1851, by the board of commis- sions appointed by authority of that act. From its decisions an appeal lay to the district court of the United States for the district of California, in which the proceeding was "original," not appellate, in form; and from the district court an appeal lay to the supremt. court as in other cases.^'* A similar act for the settlement ol titles in the Mexican department, and then United States territory, of New Mexico was approved on the 22d of July, 1854.^^^ In dealing with these Mexican grants, the United States were bound both in appeal by the United States from a judgment giving the relief prayed, and resulting almost always in reversals, couched sometimes in words of ill-con- cealed indignation against the lower courts, which allowed fraudulent claims to slip through. Perhaps no class of litigation is fuller of deliberate falsehood and forgery than is shown in setting up Spanish or Mexican grants. In Fre- mont V. U. S., supra, a history of the old Spanish imperfect title is given, and of the many attempts to set up grants which had no merit whatever. 134 The act of March 3, 1851, invited all claimants to bring the proofs of their titles before the board of commissioners within two years from that date, to be passed upon by the board, subject to appeal to the courts; declaring, "in effect, that if the claim be not thus presented, within the period designated [the government] v/ill not recognize or confirm them, but that the claims will be considered as abandoned." Waiving in that case the constitutional ques- tion as to perfect titles, the court proceeds: "Such legislation is not subject to any constitutional objection so far as it applies to grants of an imperfecf character which require further action on the part of the political department to render them perfect." Beard v. Federy, 3 Wall. 478, 490. The working of this board is also illustrated by U. S. v. Workman, 1 Wall. 745 (passing on the powers of the "departmental assembly" over land grants, and holding that they had no power except to assent to colonization grants); Lynch v. De Bernal, 9 Wall. 315; and TJ. S. v. Rocha, Id. G39. It is pointed out in Fre- mont V. U. S., 17 How. 542, that, while the act of 1824. as to Louisiana and Florida, dealt only with imperfect titles, the act of 1851 subjected both per- fect and imperfect titles to its scrutiny. 135 Under this act the surveyor general for New Mexico had to report the various claims perfect or incomplete, with his conclusions on the evidence, and his recommendations for the action of congress. The report was, through the secretary of the interior, submitted to the house early in 1857. The sev- eral grants were passed upon at different times. The surveyor's report alone, without the action of congress, is not proof In a court of justice. Pinkerton V. Ledoux, 129 U. S. 34G, 9 Sup. Ct 309. (552) Ch. 6] TITLE OUT OF THE SOVEREIGN. § 72 the political and the judicial aspect, as well by the express provi- sions of the treaty of Guadalupe Hidalgo as by the principles of international law, to protect all rights of property in tha t territory emanating from the Mexican government previous to the treaty.*^" The title of the city of San Francisco, and those claiming under it, to the tract of four square leagues granted by the Mexican gov- ernment to the pueblo or town of which the city is the successor, was at first brought before the board of land commissioners under the act of 1851, but was, after a long litigation, both with the state of California and with the United States, finally settled by acts of congress. As a final result, the city and those claiming under it were confirmed in the ownership of the tidal lands and of the valu- able lots redeemed from the open sea and the bay by filling."' 136 Teschemacher v. Thompson, 18 Cal. 11; Beard v. Federy, 3 Wall. 478; Soulard v. U. S., 4 Pet. 511; Strother v. Lucas, 12 Pet. 436; San Francisco V. Le Roy, 138 U. S. 650, 11 Sup. Ct. 364^where it is said that the property rights of pueblos, equally with those of individuals, were entitled to protec- tion; quoting Townsend v. Greeley, 5 Wall. 326, 337. It will, however, be seen from Beard v. Federy, sufira, that the United States do not recognize any grants made by the republic of Mexico In California after it was occupied by the American army, the 9th of July, 1846, being deemed the end of Mexican dominion. See, also, as to same point, U. S. v. Yorba, 1 Wall. 412, 423, and More V. Steinbach, supra. 137 A full history is found in San Francisco v. Le Eoy, supra; in Hoadley's Adm'rs v. San Francisco, 124 U. S. 639, 8 Sup. Ct. 659; and in Kniglit v. United States Land Ass'n, supra. Tbe four leagues are at the northern end of the tongue of land on which the city stands, boimded on the west by the Pacific, on the east by the Bay, on the north by the connecting waters, on the south by an east and west line such as will make the quantity. Such, at least, is the survey made by order of the department by way of construction of the Mexican grant. On the 20th of June, 1855, the city council of San Francisco passed "An ordinance for the quieting and settling of titles," known as the "Van Ness Ordinance," or as "No. 822," whereby the city relinquishes and grants all right and claim to the lands within its corporate limits to the parties in the actual possession thereof, by themselves or tenants, on or be- fore January, 1855, excepting the "slip property," which is described; except- ing also the land south, east, or north of the water-lot front of the city as established by legislative charter of 1851; those holdiug titles by giants from the alcalde or ayuntamiento, or town council, or conveyances thereunder, to be deemed in possession. This ordinance was ratified by the California legis- lature March 11, 1858. Congress, on July 1, 1SC4, passed an act for settling California land titles, by section 5 wbereot all right of the United States to (.553) § 72 LAND TITLES IN THE UNITED STATES. [Ch. 6 California and New Mexico were departments of the republic of Mexico; "territories" we would call them. And the disposition of the public lands was made by the central government through the governor of the department. It was different in Texas, which, soon after the obtention of Mexican independence from Spain, became part of the self-governing province or state of "Coahuila and Texas," whose legislature (congreso) disposed of the public lands, mainly through commissioners for "colonies" in the uninhabited or sparsely- inhabited parts of the double province. These grants were never submitted to boards or officers of the United States, but were dealt with by the republic, afterwards by the state, of Texas.^^^ The manner in which the republic or state has dealt with those titles must be told in another section. In passing upon a perfect Spanish or Mexican grant, made by a "judicial delivery of possession," the court often finds that the description in the ofiScial act, signed by the alcalde, differs from that contained in the application to which the grant is an answer. In such a case the former description is preferred, as showing the true contract between the parties.^"" The word "testimonio," which is so often met with in the judgments and opinions of courts upon Spanish and Mexican titles, requires some explanation. Under the English and American views of law, the lands within the corporate limits as defined by the charter was relin- quished, and granted to the city, with some slight exceptions. 13 Stat. 333. By virtue of this act the circuit court of the United States for the California district, on May 18, 1865, confirmed the claim of the city to the Pueblo lauds in suit pending in the name of the city against the United States, upon an appeal from tlie board of land commissioners. From this decree both parties appealed to the supreme court, but, before a decision was reached, congress, on the 8th of March, 1866, gave up all rights in opposition to the decree, and both appeals were dismissed. Conflicting rights of the state of California as littoral owner were settled in the case cited above from 142 U. S. and 12 Sup. Ct. 138 An act of the congress of Coahuila & Texas, enacted at Monclova on the 28th of March, 1832, and repealed March 26, 1834, is relied on successfully to sustain the grant to the ancestors of plaintifEs In Gonzales v. Ross, 120 U. S. 606, 7 Sup. Ct. 705, though the authentic act was dated 23 days after the repeal, as the laws of Mexican states did not come into force at the several localities until published, and the very action of the commissioner under the repealed act was prima facie evidence that the repealing act had not been published at his seat of office. 139 Pinkerton v. Ledoux, 129 U. S. 346, 9 Sup. Ct 399. (554) Ch. 6] TITLE OUT OF THE SOVEREIGN. § 72 land passes by deed, which, among individuals, must be delivered; and, when it proceeds from the sovereign, and called a patent, usually is delivered. There are record books for deeds, and public archives in which counterparts of patents are kept. But these are the copies; the deed or patent delivered to the grantee is the opera- tive instrument. Among the nations of continental Europe, the Spanish among them, this is otherwise. The entry of the convey- ance or of the sovereign's grant in the public archives is the effective instrument for conferring the ownership of land, while- the instru- ment delivered to the grantee is deemed only a counterpart or "sec- ond original." And such is the testimonio of the Spanish-Mexican law.i" 140 An example of a testimonio is given in Word v. McKinney, 25 Tex. 259: (1) The petition of Rafael Manchola, February 12, 1829, for four leagues of land, which he solicited on the terms prescribed by the colonization law of the state. (2) Its reference to the ayuntamiento of Goliad to report according to article 17 of the colonization law, dated Leona Vicario, February 14, 1829. (3) Report as to the locality, and th% qualifications of the application. (4) The concession made at Leona Vicario, on the 5th February, 1830, of four leagues, as an augmentation headlight; and commissioner general directed to give possession. (5) Petition of Rafael M., 8th October, 1830, that the alcalde of Goliad may give possession. (6) Corresponding direction to the alcalde. (7) Petition by Maria, as the widow of the original applicant to the alcalde, that possession be given to her according to the concession of her husband, dated October 2, 1833. (8) The order of survey, dated October 3, 1833, by the alcalde, on the petition of the widow. (9) Report of the surveyor. (10) Title of pos- session for four leagues to the widow from Miguel Aldrete, sole constitutional alcalde for the town of Goliad, and commissioner to distribute and give pos- session of vacant land within that jurisdiction, dated October 7, 1833. The certified copy of all these, entries and documents was the testimonio offered. To it was appended a ratification in form following: "Executive Department of the Free State of Coahuila & Texas. Book A. No. 161. B'ol. 147. Monclova, April 25, 1835." The possession of two leagues of land, given by the alcalde commissioned of the town of Goliad, citizen Jos6 Miguel Aldrete, according to the foregoing document, is ratified by the government, provided they do not affect the rights of other parties. Let this be returned to the party interested for the suitable purposes. [Signed] Viescjx. [Signed] J. Mariano de Yeala, Secretary." The confirmation in this case, being addressed to the grantee was rather irregular. In Paschal v. Perez, 7 Tex. 348, the nature and effect of the testimonio are fully explained. In Edward v. James, Id. 372, the testi- monio is called a "second original." The diseflo is a map furnished by the applicant, a sample of which is found in the Maxwell Land-Grant Case, supra. (555) S 73 LAND TITLES IN THK UNITED STATES. [Ch. 6 § 73. Texas Titles. Much that has been said in reference to state and colonial grants, and much that has been said concerning Spanish and Mexican grants, finds its application here. The land system of Texas, however, grew gradually out of that of the Mexican state of Coahuila and Texas. The settlers of English-American descent, who settled the country northeast of the Nueces river, were at first loyal to that state, and willing to live under its laws, and adapted themselves to those laws as well as the difference of language andhabitsallowed. Notonly after the struggle for independence began, but after it became successful by the victory of San Jacinto, and the republic of Texas had been established, the English-speaking Texans lived on under the old law of real estate.^" The Spanish law was only abrogated in March, The denunciation is the informal designation of the tract of land applied for, corresponding to the entry under the Virginia land law. See Cavazos v. 'Treviiio, 6 Wall. 773, 783. A sample of a «omplete Spanish title, given in 1S(>2 by Intendant General Morales for a. small tract near New Orleans, is given at the foot of the report of Menard's Heirs v. Massey, in 8 How. 293. Being upon a sale, there is nothing but the grant, and a document signed by the royal surveyor, witnessing the delivery of possession. Another example of both the grant and the survey is given in Cavazos v. Ti'evino, 6 Wall. 773, a case turning mainly on the true boundaries of that survey. The books most quoted for the laws of Mexico and Spain are the Coleccion de las Cortes; Schmidt's Laws of Spain and Mexico; Eseriche Diccionario de Legislacion; White's Nueva Recopilacion; also White's Land Laws of California, Oregon, and Texas. The Mexican national and state laws bearing upon titles in Texas are given in full in Paschal's Digest of Statutes, and many of them in his Digest of Decisions. A word often met with in Spanish documents bearing on land titles is "rubrica," following the name of an official, or of some person of standing. It is thus written out in print, and represents the flourish pecu- liar to every man of official or of business or social standing which he puts under his signature as a means of more certainly identifying it. 141 The independence of Texas dates from November 13, 1835, when the "consultation" adopted the "plan and powers of the provisional government." (There was a more formal declaration of independence on March 2, 1836. Residence, at this date, fixes citizenship.) It was decided in Donaldson v. Dodd, 12 Tex. 381, that on that day (November 13th) the powers of the land commissioner of Coahuila & Texas ceased, in accordance with a section of the "plan," which ordered the closing of the land office; and a grant issued by him on November 20th was void, although there had not been time for the (55G) Ch. 6] TITLE OUT OF THE SOVEEEIGN. § 73. 1 840, though the Civil Code of Louisiana had in part been introduced in 1836. The minutes and original documents in the archives of the Mexican departments became the first record books and flies in the recorder's oflSces for the new counties, and the continuity wa» never broken. The Spanish and Mexican titles were not subjected to a board of commissioners, like those of California, nor to a sur- \ eyor general reporting to congress, like those of New Mexico. Noth- ing more was required (and that only by an article in the constitution of 1876) than that the muniments of title issued before November 18, 1835, must be either recorded in the county which at the time of recording contained the land, or "archived" in the general land office, or that the land must be in the possession of the grantee, or those claiming under him, in order to be preferred to one claiming under a junior title "from the sovereignty of the soil," under circum- stances reasonably calculated to give notice to such junior grantee.^** The supreme court of the United States has strongly intimated that in so far as this clause in the constitution of 1876 purports to act retrospectively, so as to subordinate a valid older to a junior grant, for things omitted to be done before the date of that instrument, it is invalid, as depriving the owner of his property without due course of law.^" Even the old measures — the vara, or Spanish yard, the square league, or sitio, and, in addition to these, the "labor" or millionada, as a measure of area — were for a long time retained in the Texas laws for the disposition of public lands.'^' plan to reach him. An act of January 20, 1840, taking effect 60 days there- after, abolished the Spanish and Mexican laws, except as to "grants and the colonization of lands in Coahuila & Texas, to the reservation of lands, and those relating to salt lakes, salt springs, mines, and mineral." 1 Pasch. Dig. art. 804. , 142 Const. 1876, art. 13, § 2. The words "reasonably calculated," etc., qualify the manner of possession, which, considering the vast stretches of wild and waste land contained in a Mexican grant, must have often been quite shadowy. 143 Gonzales v. Ross, 120 U. S. 605, 7 Sup. Ct. 705. 144 The headright grant guarantied by the first constitution of the republic (General Provisions, § 10) to every citizen, the head of a family, is a "league" (i. e. a square of 5,000 varas each way) and "labor" (i. e. a square of 1,000- varas). The first mention of an English mile is found in the land law of December 14, 1837, in fixing compensation of surveyor according to the leiigtli of lines run. The league or sitio (and consequently the vara) seems to be (557) § 73 LAND TITLES IN THE UKITED STATES. [Oh. 6 Leaving out of view Spanish grants antedating the independence of Mexico, as to which hardly any disputes can arise hereafter, our first landmark is the colonization law of the congress of Mexico of 1.S24; and closely following it, and acknowledging its authority, the act of the state of Coahuila and Texas of March 24, 1825. The great colonies known in Texas history and jurisprudence, sought to bring themselves within the federal as well as the state law. One great feature is found in both, — the border and littoral leagues. It was feared that an inilux of foreigners along the border of the United States, or along the coast, might become too powerful, and betray the country to a foreign power. Hence the federal law forbade colonizing by the states of any land within 20 leagues from the bor- der of a foreign nation, or within 10 leagues of the coast, without the previous approbation of the federal president; and the state law made it the duty of the governor to see to it that this rule be fully observed. There was a commissioner for each colony, and in the instructions sent out to the commissioners in 1827 is one which for- bids their giving possession within the forbidden zone. The republic and state found it good policy to uphold the Mexican law when, after the settlement of the coast and the border along the Sabine, Mexican patents — often forged, nearly always fraudulent claims — were set up for the recovery of the most valuable lands, and it soon became a settled principle that Me:iic;m grants within "the coast and littoral leagues are void." ^*^ An exception has, however, arisen under an slightiy in excess of the measure used in New Mexico and California; for two-thirds of the "league and labar," which by the latter standard would amount only to 3,090 acres, is by Ilev. St. art. 4108, made equal to 3,129 acres. Mr. Paschal, on the other hand, in the introduction to his Digest of Decisions speaks of the sitio as equal to 4,428 acres, which is less than that of New Mexico. 145 1 Pasch. Dig. arts. 546, 569, 615, 693; Const 1836, 10th General Pro- visions (as to 20 border leagues) ; Wilcox v. Chambers, 26 Tex. 281, and earlier cases; followed in the supreme court of the United States in League v. Egei-y, 24 How. 2C.6, and Foote v. Egery, Id. 267, as the acknowledged local law. The 10 coast leagues were by the Mexican government counted from the mouths of rivers, though emptying into a bay. See as to this and as to how to measure the border leagues, Hamilton v. Menifee, 11 Tex. 751. As to how to show consent of the Mexican president to a grant within the forbidden zone, see Yancy v. Norris, 27 Tex. 49. In California it was not considered unlawful for the governor to grant land to native settlers singly (not as colonies) within the coast leagues. De Ai-guello v. U. S., 18 How. 547. (558) Cb. 6] TIILE OUT OF THE SOVEREIGN. § "m article (No. 32) of the law or decree of Coahuila and Texas of March '2i, 1S34, -which repealed the old colonization laws — the only article of the decree which was ever applied in practice. It directed the issue of grants to the inhabitants of the Nacogdoches frontier, and to those east of Austin's colonies, for the land which they may occupy (que ocupen), without reference to any further assent of the presi- dent of Mexico; lands being thus thrown open which were notori- ously within the 20 border leagues.^*^ The Mexican grants to set- tlers were somewhat like patents under the homestead laws of the United States. Settling on the land being the principal considera- tion which induced! the state to part with its land, the settler was not allowed, for six years after he took possession, to sell the whole or any part of the tract granted to him, nor to contract for the sale. The sale being void, his heirs could recover the land from the pur- chaser, — not however, as it was afterwards decided, without offer- ing to return the purchase money.^*^ The colonization laws of Coa- huila and Texas, enacted March 24, 1825, and April 28, 1832, still breathe this spirit of hospitality, inviting settlers on easy terms; ^** but they were repealed on the 26th of March, 1834, and the new act brought in a new system, — that of selling land at public sale, to the highest bidder. The English-speaking settlers had evidently become objects of suspicion and fear. Very little land was sold, but many inchoate rights were completed by grants. The state, in article 32 of the new law, assumed to sell the "border leagues" near Nacog- doches, without regard to the inhibitions of the national law of 1824. 140 Blount V. Webster, 16 Tex. 619, followed In Johnston v. Smith, 21 Tex. 724. The former case has instructive remarks on the working of the Mexican federal constitutions. 1*7 Ledyard v. Brown, 27 Tex. 393; Houston v. Killough, 80 Tex. 296, 30.5, 16 S. W. 56. The colonization law of Tamaulipas required a residence of 20 years. 1*8 This law is reprinted in 1 Pasch. Dig., beginning with article 574. It begins with guarantying to all foreign settlers full protection, and authorizes native or foreigner to specify any vacant land to the political authority, who shall forward his application to the executive, etc. Settlements under this law gave no absolute title. Edgar v. Galveston City Co., 21 Tex. 302, 329; ToUe V. Correth, 31 Tex. 364. The vara and sitio are fixed as units. Article 24 of the law (article 584 in 1 Pascli. Dig.) requires reitain fees to be paid,— $30 for a sitio of grazing land, for a "labor" or milliorada of irrigable land $5, of land not irrigable, $2.50. (559) § 73 LAND TITLES IN THE UNITED STATES. [Ch. & The country between the lower waters of the Eio Grande and of the Nueces, now comprised in the state of Texas, was originally a. part of the Mexican province of Tamaulipas. There were a few English-speaking settlers in the country, but not enough to gain the upper hand against the Mexicans. However, on the 18th of Decem- ber, 1836, the republic of Texas, through its congress, declared that its boundary reached to the Rio Grande. But the authorities of Tamaulipas seem to have remained in quiet possession and control of the disputed country till the outbreak of the Mexican war, in April, 1846. The grants made under the Tamaulipas authorities before December 18, 1836, are fully recognized by the legislation of Texas, especially by an act of 1870 which provides for judicial proceedings against the state to establish titles derived from this or older sources in the country between the Nueces and the Rio Grande.^*" It has been since held that the ordinary workings of the Tamaulipas state government, between 1836 and 1846, in the disputed district, must be treated as binding.^''" I'he Tamaulipas colonization laws dealt with a country much more accessible than that of Coahuila and Texas and limited "concessions" to any one settler to five square leagues. The lowest price was |30 for the league, or sitio. How- ever, larger grants were not deemed void.^°^ The details of the colonization laws of the Mexican nation, or of the two states, have lost their practical importance. We need, at 140 An act of August 15, 1870, looks to tbe settlement of Tamaulipas titles having their origin before December 18, 1836. See State v. Sais, 47 Tex. 3(57. A Spanish or Mexican title in that country may be good by possession or pre- sumption of grant; but judgment against the state under this act can be only had upon a regular title, regularly proved. State v. Cardinas, 47 Tex. 250. In such cases, documents issuing from the Spanish or Mexican government must be proved. Id. 150 City of Brownsville v. Basse, 3G Tex. 499. It is here admitted that the claims of Texas to that region were very shadowy, and it is intimated, but not decided, that grants after December 18, 183G, if such were made by the government of Tamaulipas, ought to be good. 151 The Tamaulipas colonization laws are published in 1 Pasch. Dig. along with those of Mexico and of Coahuila & Texas. It was held in State v. Sais, 60 Tex. 87, that, an expediente being sent by the proper alcalde to the gov- ernor of Tamaulipas, showing compliance with all previous steps, accom- panied with the purchase money, the settler thereby gained such equitable title that the state of Texas, under the act of 1870, was bound to complete it (560) C]l. 6] TITLE OUT OF THE SOVEKLKiN. § 73 present, look only to the executed grants. These were ejiecuted by the commissioner appointed by the state government for each of the several colonies.^ "^ The espediente (or expediente), which accom- panied the judicial possession given by an alcalde, was in all cases in duplicate; that is, upon his own books, and as a second original, delivered to the grantee. It was indispensable to complete the grant, but mistakes,, irregularities, or erasures would occur at times, and had to be overlooked or condoned.^"* The republic of Texas opened its land legislation with an act of December 14, 1837, in which it is recited that many persons have acquired land which is incumbered by conditions, and these the re- public relinquishes, but with several provisos, the most important of which is that the act shall apply only to estates of not more than "a league and a labor," and that the purchasers must pay what is due to the land commissioners of the county within six months after a land office is opened therein ; that they must remain in the country ; and that the clause forbidding the sale to aliens is not repealed. The conditions, of which performance is excused, are, plainly, those of colonization.^^* The clause requiring the grantee to remain in the country has been nullified by the decisions of the Texan courts. They have held, uniformly, that only the republic or state could take ad- vantage of a breach of this condition ; and grantees of Mexican blood and sympathies, who, during the struggle for independence, left the country, and settled to the southwest of the Rio Grande, as well as those who went to the United States, were allowed to recover the 152 Three different holdings, among them the "emphyteutic," derived from the Roman law, and corresponding to the English copyhold, were in vogue, be- sides the absolute property sought by American settlers. These are discussed in Trevino v. Fernandez, 13 Tex. 630, where White's translation in his Reco- pilacion of "censo de guitar" into "tenancy at will" is shown to be incorrect. The entries on the commissioner's book were, under the act of 1832, part of the title. Weir v. Van Bibber, 3^ Tex. 229. The extent of the settler's right in a colony is explamed in Edgar v. Galveston City Co., 21 Tex. 302, 329. ]53Hanrick v. Jackson, 55 Tex. 17, 28, where for good reasons the testi- monio could not be embodied. Sheppard v. Harrison, 54 Tex. 91, where the grantee's name, appearing otherwise, was left blank in the granting clause. i54Kilpatrlck v. Sisneros, 23 Tex. 113, 125, following Hardy v. De Leon. 5 Tex. 211, and Paul v. Perez, 7 Tex. 338; and the analogies of common law, as shown in M'llvaine v. Coxe, 4 Cranch. 209; Jones v. McMasters, 20 How. 8; also White v. Burnley, Id. 235 (directly in point). LAND TITLES V.l 36 (561) § 73 LAND TITLES IN THE UMTED STATES. [Ch. lands which had been granted to them under the laws of Mexico or of Coahuila and Texas.^'^'' The "land certificate," under the Texas s^'stem, is a much more im- portant document and more closely interwoven with the title to the land on which it is located, than the scrip or land warrant in other states. Deeds to the land, which may be acquired under the certificate, have often been indorsed upon it; and, as soon as there is a location, there is an equitable ownership, on which such deed or other assign- ment will operate.^^" Equities in the ownerehip of the certificate be- come equities in the land acquired, and follow it into the hands of all subsequent owners except purchasers in good faith from the holder of a patent.^"' The certificates or warrants enumerated in the Eevision of 1893 are of no less than ten different kinds, dating back to the constitution of 1876; but any "genuine land certificate" issued after 1876 becomes void, unless it be located within five years from its date.^^* The certificate is divisible. A smaller quantity than what 15 5 It is held that the constitution of 1836, recognizes every person then living within it as a citizen, and he could not lose his rights as such until a forfeiture was adjudged. Kilpatrick v. Sisneros, 23 Tex. 127. Secus, where the grantee had left Texas before the constitution was adopted. Bissell v. Haynes, 9 Tex. 556. 156 Beatty v. Masterson, 77 Tex. 168, 13 S. W. 1014 (any one may deliver the certificate to the covinty surveyor; his agency need not be shown; the surveyor may fill up a blanli; application); Greening v. Keel, 72 Tex. 107, 10 S. W. 255 (the identity of the applicant being in doubt, tlie patent belongs to him who had the certificate). 157 Goode V. Lowery, 70 Tex. 150, 8 S. W. 73. IBS Articles 4106 (3871) 4118 of the Revised Statutes enumerate: (1) Head- right certificates (i. e. a league and labor to a head of family, or third of a league to those residing in Texas March 2, 1836, who have received no land scrip from Mexico, or of the same to volunteers arriving between March 2 and August 1, 1836; unconditional for 1,280 acres to heads of families, 640 to single men, to emigrants between March 2, 1^36, and October 1, 1837, and the same for 640 acres to heads of families, 320 to single men arriving between October 1, 1837, and January 1, 1842, and colony headright). (2) Augmentation certificates (two-thirds of league and labor to single men of first class, who married before December 14, 1838; for 640 acres to single men of third class, who married before October 1, 1837, and 349 acres to single men who re- ceived one-quarter league; and of 177 acres to heads of families who had re- ceived only one-quarter league from the Mexican government (3) Bounty warrants to volunteers in the war of Independence for 1,280, and for 640 acres (562) Ch. 6] TITLE OUT OF THE SOVEREIGN. § 73 is called for in the certificate may be entered under it, and the residue placed elsewhere; and the assignee of one-half or of any other frac- tion of the certificate can enter the number of acres coming to him, and leave the rest to his assignor to enter elsewhere.^ '"' The old headright certificates to heads of families, or augmentation certifi- cates, which were given to a single mgn upon marriage, become "community" property of husband and wife; and upon a divorce be- tween them tlie latter, if the children are with her, is entitled to two-thirds, which she can pursue into the equitable title to the do- nated land against the husband and against purchasers with notice.^"" The headright certificates issued by the republic were in so many cases fraudulent, several being issued to the same person, or family certif- icates to single men, or issued in fictitious hames, that in 1838 means were already taken to sift them. A board of traveling commissioners was established, before whom all of these certificates had to be laid. Under an act of 1847 suit might be brought against the state for the confirmation of each certificate."^ It has been expressly held that to the heirs of those killed in battle. (4) Donation warrants for C40 acres to the participants in the battle of San .lacinto, etc., and to the heirs of those who fell at the Alamo, etc. (5) Land scrip, issued to certain agents conduct- ing sales of public land. (6) Railroad certificates— L e. of 640 acres— granted in aid of railroads generally; G40 acres to be located on the odd sections; international certificates issued to the international railroad exempted from taxes for 25 years. (7) River certificates, to be located. (8) Canal and ditch certificates for 640 acres if used in aid of such undertakings. (9) Indigent vet- eran certificates under an act of 1879. (10) Disabled confederate's certificates under an act of 18S1. As to the Alamo donation certificates, see Todd v. Mas- terson, 61 Tex. 618, and Rogers v. Kennard, 54 Tex. 30. It seems that one certificate is due to the estate of the dead as a volunteer, which is assets. The donation certificate goes to the heirs as a gratuity. A certificate issued by competent authority cannot be collaterally assailed. Babb v. Carroll, 21 Tex. 766; Bradshaw v. Smith, 53 Tex. 474. 160 Farris v. Gilbert, 50 Tex. 350. Compare Texas & P. R. Co. v. Thomp- son, 65 Tex. 186, as to use of two certificates on one survey; patent under one, the' other not waived. leoQoode V. Lowery, 70 Tex. 150, 8 S. W. 73; Porter v. Chronister, 58 Tex. 53. lei McKinney v. Brown, 51 Tex. 94; Miller v. Brownson, 50 Tex. 583. See Const. 1845, art. 11 § 2. The unconfirmed certificate being void, a new one, granted by special act, is a mere gratuity, against which no equity can arise. Id. These provisions have led to the word "genuine" in later statutes. (5«3) § 73 LAND TITLES IN THE UNITED STATES. [Ch. 6 these old headright certificates cannot be made good, so as to rank as "genuine," otlierwise. If not approved by the "traveling board," they must be put in suit under the act of 1847.^" Lost certificates have often been supplied by special act of the legislature; but it was held that, where a certificate had never issued, and the record does not show that it could have legally issued, the legislature cannot supply the defect retrospectively to the prejudice of third parties.^"* The title to land out of the republic begins in almost every case with a "certificate," which calls for land by quantity only, and is, before its location, a chattel interest. It passes by indorsement, or by a separate written instrument, or even by parol; but should be delivered to the assignee for the security of subsequent purchas- ers.^"* The holder of the certificate enters land with it, and under the older law pointed out the land to any lawful surveyor, whereupon it became the duty of the county sur\'eyor to receive the field notes, and enter them on his book of surveys for the county. His right is then changed from a mere claim for an abstract quantity to an estate (though equitable) in the land on which he has located, and is no longer personalty. Yet the administratrix of the certificate holder is competent to enter land and locate the certificate,^ ""^ and to with draw the location, though by doing so she reconverts a landed inter- est into a chattel."" Before August 30, 1856, a location could be i Pet. 117," etc. U. S. V. Bostwick, 0-i U. S. 53, 66 (the United States, taking a lease of land, stand on the same ground as any person or corporation). i'8 "Inquest of office, which is an inquiry made by the king's officers, his sheriff, coroner, or escheator, virtute officii, or by writ to them sent for that purpose, etc., concerning any matter that concerns the king, to the possession of land, etc., goods, etc. This is done by a jury of no determined number, being either twelve, etc. As to inquire whether the king's tenant for life died seised, whereby the reversion accrues, etc.; whether A., who held of the crown, died without heirs, etc.; whether B. be attainted of treason, whereby his estate is forfeited (though there must have been a grand jury to indict, and a petty jury to convict him); whether C, who has purchased land, be an alien, etc. ; whether D. be an idiot," a nativitate, and therefore, together with his lands, appertains to the custody of the king; and other questions of like import conceraing the value and identity of the lands." 3 Bl. Comm. 358. 177 We have seen in the chapter oc "Descent" (section 17) that in most states the commonwealth takes as ultimate heir, and its title vests "without office found." Under English authority the position of the crown taking by escheat is less favorable than that of an heir. In Taylor v. Haygarth, 14 Sim. 8, land was devised to trustees to sell foi purposes to be disclosed thereafter (5(>7) § 74 LAND TITLES IN THE UNITED STATES. [Ch. G stone enumerates several other possible means of acquisition); and this, in its first meaning, implies the verdict of a jury; as vrhere a man is convicted of treason or felony, when forfeiture of estate followed such a conviction (though this alone may not suffice). A proceeding leading to such a verdict, when the vesting of property in the crown was the only object, was known as an "inquest of office." by codicil, but no codicil was made. It was held, tliere being no heir or next of kin, that the crown could not enforce the trust, and the trustees retained the land; and so held in Burgess v. Wheate, 1 Eden, 177; Perry, Trusts, § 327. In Indiana (Rev. St. § 2178), for lack of heirs, the state takes by escheat, not by descent, and the attorney general brings his Information. See State v. Meyer, 63 Ind. 33; Reid v. State, 74 Ind. 255. Yet in the latter case the com-t does not admit that "office found" must be had first to entitle the state to possession, unless there is some one in lawful possession. Reference is here made to many cases, quoted in sections on "Aliens" and on "Escheat" in chap- ter on "Descent." It was held in this case that the state is not estopped from claiming the land by escheat by having caused it to be sold for taxes. In University v. Harrison, 00 N. C. 385, ejectment was brought without objection on the escheat It only failed for lack of evidence. In South Carolina, the state, on lack of heirs, proceeds by inquest of office, and the result may be traversed; thus leading to an is^ue between the state and those in adverse interest. In re Robb's Estate, 37 S. C. 19, 10 S. E. 241. For the nature of the proceeding in this state, see Eason v. Witcofskey, 29 S. C. 239, 7 S. E. 291. In Texas, escheat is regulated by articles 1770-1788 of the Revised Stat- utes. The proceeding is against those in possession as well as against un- known heirs, and takes the place of an inquest; but there is no jury, unless an issue is made. See law applied in Newman v. Crowles, 8 C. C. A. 577, CO Fed. 220. In Hanna v. State, 84 Tex. 604, 19 S. W. 1008, it was held that the comptroller, by having the land sold for taxes, does not estop the state from taking it by escheat. The history of the New York law of escheat is given in Johnston v. Spicer, 107 N. Y. 185, 13 N. E. 753; Rev. St. pt. 2, c. 1, tit. 1, art 1, § 1, makes lands of one dying without heirs "revert and escheat" to the people. Section 2 says, subject to all trusts and charges. Section 1977 of the Code of Civil Procedure takes the place of the inquest As to what facts must be found at the Inquest on common-law principles, see Ramsey's Appeal, 2 Watts, 228. The nature of the proceedings in Oregon is discussed in Fenstermacher v. State, 19 Or. 504, 25 Pac. 142. In California the statutory proceeding by the attorney general cannot be begun where there is a nonresident alien heir before the five years given him to claim have ex- pired. State V. Smith, 70 Cal. 153, 12 Pac. 121. Such proceeding against estate of alien intestate premature within the five years. People v. Roach, 76 Cal. 294, 18 Pac. 407. For a modern quite elaborate law of escheat, see Pennsylvania act of May 2, 1880. (5GS) Ch. 6] TITLE OUT OF THE SOVEREIGN. § 74 Forfeitures of land for riolation of the revenue laws of the United States can now be inflicted only for fraud on the revenue in the manufacture of tobacco or cigars.^'' The most frequent instance, in modern times, of an inquest of office, by which the sovereign gains the title to land, is the condemnation of a site or a right of way under the power of eminent domain, — a power which the sov- ereign shares very largely with corporations pursuing public ends.^'® This proceeding does not always involve a triaj by jury; for the party in interest may waive it, or, at least, not demand it; •and very often there is not even the judgment of any court. Thus, under the revenue laws of almost every state, when laud delin- quent for taxes is put up for sale, and no one else will bid the amount of taxes due, with interest or penalties and the costs of advertising and selling, an officer is authorized to bid the land off at that amount for the state. In some states, such land was en^" said to be forfeited to the state. The boolis of the officials who assess the tax, and who conduct the sale, and the written returns made by them, are a sufficient public record to vest title in the state."'" Forfeitures have sometimes been imposed for a failure to list the land for taxation. It is apprehended that a law threatening such a forfeiture after a public proclamation, at a stated time and place, might be constitutionally valid, though nort pronounced by a court 178 Rev. St. U. S. § 3400. i7» In modem times, land, or the right of way over land, Is more frequently condemned for railroad purposes than for any other. The great question which confronts the lawyer who examines a title which has come by condem- iiation, is to see whether the fee In the land was talien and paid for, or only a right of way. If the latter, the abandonment of the right of way would re- jrtore the unincumbered ownership to the former owner; and the length of time during which the right of way was enjoyed could not prejudice him, as it was compatible with his title. Strictly speaking, no greater estate than necessary ought to be taken for the public use; but laws generally provide for taking the fee where a right of way would have sutaced. Sweet v. Buf- falo, etc., R. Co., 79 N. Y. 294. The award for the right of way could be no less than for the fee, and to leave the latter in the owner might lead to much inconvenience. Compare Tennessee, Code, § 2659. See the Alabama statute, sections 19 and 20 of the Civil Code being lately so amended as to permit the United States to acquire land by condemnation. ISO Blackw. Tax Titles, § 1031; Wild's Lessee v. Serpell, 10 Grat. 405. (569) § 74 LAND TITLES IN THE UNITED STATES. [Ch. & of justice. But the forfeiture should not be self executing, such that a failure to list, or to pay by a given time, should ipso facto divest the title and vest it in the commonwealth. It has 'been held that a legislative act directing such a result is unconstitutional^ as taking the citizen's property without due course of law. There must be some act traceable in the public records from which the forfeiture dates.^^^ We have seen, treating of estates on condition, that a condition subsequent annexed to a freehold estate does not, when broken, put an end to the estate by its own force; but the grantor or his- heirs must re-enter, or do some act equivalent to a re-entry. When the grant is by the sovereign, he must on condition broken re-enter by some act of record. This would naturally be an action resulting in a judgment for the land. Rut can such action be brought be- fore the right of re-entry appears of record? The difficulty arises especially where the sovereign is the United States, having no "common law" as a guide, and gave great trouble in the matter of forfeited railroad land grants. Could the law officers of the United States enforce the forfeiture by suit, without an act or resolution of congress ordering such actions? ^** 181 Marsliall v. McDaniel, 12 Bush (Ky.) 378, 383. (See, for the contrary doc- trine in Virginia and West Virginia, Wiant v. Hays, 38 W. Va. 681, 18 S. E. 807.) "But wlien such laws are enacted, the forfeitures prescribed must be regarded as penalties, and they cannot be inflicted until inquiry has first been made, and the commission of the offense ascertained by "due course of law." (We presume that other states would not go so far; but would, if the for- feiture had been proclaimed and put on record, allow it to be established afterwards, in case of dispute, by proof of a cause of forfeiture.) The clause of an act of 1825, passed on herein, and a similar and still more arbitrary clause, passed on in Buford v. Gaines, 1 Dana, 481, were parts of a childish attempt to cut off outstanding titles under Virginia patents by compelling men out of possession, and probably Ignorant of their rights, to list and to improve land, in the adverse possession of others. 182 Schulenberg v. Harriman, 21 Wall. 44, with other cases which follow it (some of these cited in a former section), only holds that third parties cannot take advantage of the breach of condition. But it also affirms the principle that the United States can regain the land by "office found," without indi- cating what it should be. Completion after the time limited, but before any attempt to enforce the forfeiture, is a good defense to a suit by the United States for repossession. U. S. v. Willamette Val. & C. M. Wagon Road Co., 54 Fed. 807. Congress has passed acts under which the executive can resume (570) Ch. 6] TITLE O0T OF THE SOVEREIGN. § 74 Wherever an estate is forfeited to the sovereign, a legislative act, if not forbidden by a written constitution, is suflScient to con- stitute "office found," ^'^ and even executive action by powers other than the United States, from whom the sovereignty is derived, may be sufficient.^** The executive officers who, during the war, or during the provisional reconstruction of 1865 and 1866, wielded the powers of government in the eleven states "lately in rebellion," must in all their acts not in aid of the rebellion against the United States, or in support of the "Confederate States of America," be recognized as the legitimate authority, and as filling those offices to which the laws of those states assigned duties and powers over property. Hence a resumption of land by either "rebellious" or "provisional" officers is valid, just as the judgments which state courts within the Confederate lines pronounced in civil cases between man and man were valid.^*° An example on a large scale of the forfeiture of lands belonging to a corporation, for violation of a mortmain law, was recently given in the judgment condemning the "endowment" of the Mormon Church in Utah, under a law of the United States applicable to all the territories, under which no religious corporation is permitted to own lands to a greater value than $50,000. The cause is, how- ever, still subject to appeal to the supreme court of the United States."" forfeited land grants by action; for instance, tlie act of Marcli 2, 1889, to for- feit the lands given to Oregon for a wagon road. 183 City of Brownsville v. Basse, 36 Tex. 461 (legislative act of Texas, giv- ing the ejidos or suburbs of Matamoras to the city of Brownsville). 18*11. S. V. Repentigny, 5 Wall. 211 (the action of the British crown in seizing the four leagues granted to De Repentigny in Canada, as abandoned by his departure, under the treaty of Paris of 17G3). 186 Johnson v. Atlantic, G. & W. I. Transit Co., 156 U. S. 618, 645, 15 Sup. Ct. 520, referring to Horn v. Lockhart, 17 Wall. 570 (as to judicial acts). 188 u S. V. Tithing Yard, 9 Utah, 273, 34 Pac. 55. (571) 5 75 LAND TITLES UJ THE UNITED STATES. [Ch. 7 CHAPTER VII. TITLE BY DEVISE. I 75. The Devise— Capacity to Make and to Take. 76. Requisites of a Will. 77. Signature or Subscription. 78. Attestation. 79. Competency of Witnesses. 80. Holograpbic Wills. 81. Nuncupative Wills. 82. Revocation. 83. Alteration of Will. S4. Implied Revocation. 83. Pretermitted Children. 86. Alteration of Estate. 87. Effect of Probate. S8. Lapse and Failure of Devises. 89. Construction of Wills. 90. When the Will Speaks— The Residuary. 91. Debts and Legacies. Note on the Admission of Extrinsic Evidence In the Interpretation of Wills., (NOTE. In dealing with the requisites and effect of a will, and the capacity to make a will, we shall aim to omit everything in statutes and decisions which bears only on wills of personalty. For instance, where a state re- quires a higher age for capacity to devise lands, than to bequeath personalty, only such higher age will be stated, not the lower enabling the owner to make a will of goods and effects). § 75. The Devise — Capacity to Make and to Take. At common law, every person not under disability, including boys over the age of 14 and girls over 12 years of age could make a will of personalty; but wills of land could be made only in a few places in England, under local customs.^ 1 This definition of a will is given by Jarman at the opening of chapter 2 of his treatise: "A will is an instrument by which a person makes a disposi- ioT2) ^'ll- ^} TITLE BY DEVISE. § 7& The statute 34 & 35 Hen. VIH. c. 5, conferred the power of devising lands; those held in socage, without restriction, and two- thirds of those held by knight's service. When feudal tenures were abolished, during the commonwealth, and the parliament, in 1660, ratified the change, the power to devise lands away from the heir became unlimited in England, — in broad contrast to the jurispru- dence of all other European countries, which to this day secure to- the "necessary heirs" (children or descendants) a much larger share than the quarta Falcidia (one-fourth of the estate) of the Roman law. Only in very modern times some of the American states have restricted this full power of the testator in two directions. (1) By securing the homestead to wife and children ; (2) by the introduction of the community property of husband and wife.^ The statute of wills of Henry the Eighth, by its fourteenth section, restrained all persons under the age of 21 years from disposing of their real estate. It went without saying that married women, who- could not convey their lands, could not devise them. In fact, for almost 300 years a will was, as to lands, considered as only a species of conveyance, operating only on what the devisor had at the time of "publication." I'ersons of unsound mind, also, could not devise their lands any more than bequeath their personalty; and the silly conceit, that no man should stultify himself, could not be set up, as the contest of the will made by the non compos would always come from his heir or next of kin. Under the statute of uses, and the equitable doctrine of trusts, a system grew up afterwards under tion of his property, to take effect after his decease, and which is in its own nature ambulatory and revocable during his life." Hence the popular name of "last will." The American editor of Jarman on Wills heads the book with the following definition from the opinion of Judge Johnson in Tompkins v. Tompkins, 1 Bailey (S. C.) 96: "The declaration of a man's mind as to the manner in which he would have his property or estate disposed of after his death." The Georgia Code (section 2394) say^: "A will is the legal expression of a man's wishes as to the disposition of his property after his death,"— a rather odd statement for a code which allows boys and girls of 14 to make their wills. The appointment of executors in Itself makes a will, but the mere exclusion of one of the heirs, without giving the estate to any one, does not. Coffman v. CofCman, 85 Va. 459, 8 S. E. 072; Boisseau v. Aldridges, 5 Leigh, 222; Wootton v. Redd's Ex'r, 12 Grat. 196,— all following Lord Mansfield's- decision in Denn v. Gaskin, Cowp. 657. 2 Stimson's Am. St. Law, p. 437. (573) § 75 LAND TITLES IN THE UNITED STATES. [Ch. 7 which married women might devise and bequeath their separate estate in lands and goods." In modern times the law as to wills of realty and personalty has been, to a great extent, unified, — in England, wholly so, by the act of 1 Vict. c. 26; the same forms being prescribed for making and for revoking wills of each kind, and the same test of capacity, the age being 21 years in all cases. The incapacity of coverture has been since removed in England, and in nearly all states of America. In tliis country the usual qualifications for making a will of either personal or real estate are two: Full age, which is always 21 years for males, and generally also for females, but in some states 18 years for the latter; and sound mind, or, as it is called in some states, "sound mind and memory." A few states still exclude mar- ried women, except as to their separate estates; but in some of these states the words "separate estate" mean practically all their prop- erty, or everything except community property. In a few states the capacity of married women is expressly affirmed. The laws of succession in some of our states — notably, those of Georgia — have been derived from those which in England governed the distribution or testamentary disposition of personalty. Hence we find that a lower age than 21, or full maturity, is deemed sufficient, in them, not only for the bequest of goods, but also for the devise of lands. Confining ourselves only to the capacity of devising real estate, •'! The English-American law takes a wholly different view of a will from that of the testamentum in the Roman law. In the latter it is supposed that all the rights and duties of the deceased at his death fall upon his heir (liaeres), or, if there are more than one, upon his heirs in aliquot proportions. By making a will, the testator changes the order of succession; and one who, under the will, takes either the whole succession or an aliquot part of it, is an haeres factus, a "made heir,"— that Is, an artificial heir; in German, "uni- versal erbe." A legatum, under the Roman Law, is the gift by will, not of an aliquot share of the estate, but of some definite thing (be it land, mox-ablcs. or effects), or of a sum of money. The distinction between a gift of lands and of personalty, like that between the devise and the legacy or bequest of the English-American law was unknown. The Roman testamentum always dealt with the estate (universitas) as it stood at the testator's death. The admin- istrator and executor,' in those states of the Union in which the control of the decedent's lands is left in their hands (such as New Hampshire and Georgia), are the nearest approach in American law to the haeres of the Roman law; especially when the latter is a mere trustee or fidei commissarius. (574) €h. 7] TITLE BY DEVISE. § 75 we find, aside from the qualification of sound mind, or "sound mind and memory," that the following states insist on the age of 21 years : Massachusetts, New Hampshire, Rhode Island, New York, Pennsylvania, New Jersey, Delaware, Virginia, West Virginia, North Carolina, South Carolina, Florida, Indiana, Michigan, Kentucky, Ten- nessee, Alabama, Mississippi, Arkansas, Texas, Wyoming, Oregon (though women are of age at 18), — and Wisconsin (where, how- ever, married women have full capacity at the age of 18). In Maine 21 years is full age for men and women, but the "married women's act," in its first section, allows married women of any age to devise their lands without the joinder or assent of the husband. In Ten- nessee the statute is silent, but the general understanding requires of a testator full age. In the following states, males have capacity at 21; females at 18: Vermont, Maryland, Ohio, Illinois, Missouri, Minnesota, Kansas, Nebraska, Colorado; also in Iowa, where, how- ever, all married women, and in Washington, where all women married to a man of full age, are deemed themselves of full age. In the following states every person can make a will of lands, as well as of goods, at or over 18: Connecticut, California, the Dakotas, Idaho, Montana, Nevada, and Utah. In Georgia, infants under 14 are excluded. The statute then proceeds to define, veiy much in de- tail, those who lack the proper powers of mind for making a will.* As stated above, there are now but very few states in which the testamentary power is withheld from married women; and they have it even in most of those states in which they cannot convey their lands held as general estate otherwise than with the consent of the husband, and by means of a privy examination, as under the Public Laws of Maryland, and under the Kentucky married woman's act of 1893, even before the more sweeping act of 1894. In Virginia, and a few other states, the "married women's acts" are prospective only, (that is, they apply only to women marrying thereafter, and to property acquired thereafter), and the laws are passed so recently * In the last note to section 76 references are given to the clauses in tlio statutes on the execution of wills. The measure of capacity to maie a will Is generally given in the same or in a preceding clause or section. In a few states it is "full age," and this may be modified by another statute on "major- ity," fixing full age otherwise than at common law. So it is, for instance, in Ohio, Iowa, and Wisconsin, each of which lowers the majority for females in a different way. ("«T5) § 75 LAND TITLES IN THE UNITED STATES. [CIl. 7 that much property may still be outside of their operation, and not "separate," in the statutory sense; and in Georgia a married woman could, until lately, devise even the estate limited to her separate use in the old manner only when made a sole trader according to statule, by decree of court, or when she had been abandoned by her husband.^ Where the husband has curtesy, the wife cannot, by her will, deprive him of it, any more than the husband can devise away the wife's right of dower, except in Wisconsin, where curtesy, as regulated by statute, is given only in case of intestacy; and where the wife may dispose only of separate, in contrast to community, property, the restriction stands on the same ground as that a hus- band holding land by entireties with his wife cannot dispose thereof by will. These restrictions must be considered in connection with marital rights. The requirement of a "sound mind," "disposing mind," "sound mhirl and memory," opens up the whole question of the mental condition of the testator at the time of making his will, which must arise very often, considering how many wills are made during the last sickness of the testator, or when his mind is enfeebled by extreme old age, and the weight of bodily infirmities. Closely bound up therewith is the question of undue influence, of fraud and duress, on the part of interested parties, in obtaining the will. Only a few states have legislated as to these, ^ but on. the general principle of the common law that fraud taints and avoids even the most solemn acts, a will obtained by any such practices is deemed "not to be the will" of the testator. The reader must be referred to special treatises on wills, for the law on the lack of the needful mental capacity, and on undue influence, fraud, and duress, by any of which a will good in form may be rendered invalid.' 6 Georgia, Code, § 2410; Virginia, Code, §§ 2284, 2286; Kentucky, St. 1894, §§ 2147, 4827. As to Virginia and other states, see section on "Statutory Separate Property" in chapter on "Title by Marriage," hereafter. « The states which have attempted to some extent to codify the common law; that is, Georgia, California, the Dakotas, Idaho, and Montana, and with them Utah. Illinois also (chapter 148, § 2) directs that a will must not be pro- cured by fraud; Ohio (section 5914) that it be not made under restraint. f It is one of the disputed questions whether the propounder of a will must affirmatively show the sound mind of the testator, as the statute generally enumerates it among the qualifications for making a will. That this burden (57G) Ch. 7] TITLE BY DEVISE. § 75 Men and women, children and adults, the married or unmarried, those of sound or of unsound mind, may alike take by devise. Aliens were not disqualified at common law; only, after the estate had vested in them, it might be divested, going, upon office found, to the crown or state. But in New York the Revised Statutes, in 1830, made aliens incapable of taking by devise.* This has been greatly modified as to resident aliens, especially by acts of 1845 and 1857, ■which do, however, only exempt those who reside in the state, and seem to require a "deposition" to be filed both by those who wish to transmit by devise and by those who wish to hold land under it. But two decisions of the supreme court have rendered this requirement harmless. The last of these, moreover, points »ut that the act of 18-15 leaves only the transmission or devise of descend- ed land, but not that of purchased land, under the former restriction of the common law and the Revised Statutes. In Iowa an act of 1860 also rendered aliens incapable of taking land by devise, and it led to some harsh results, but it was wholly repealed by the revision of 1884. In Illinois, however, as late as 1887, a law was passed (referred to heretofore in the chapter on "Descent") which deprives nonresident aliens of the right to take by devise. The treaties enumerated in that chapter go far to counteract these illiberal state laws. Corporations, however, were excepted out of the first English statute of wills, and the Revised Statutes of New York declare that no devise to a corporation shall be valid unless that body be expressly authorized to take by devise." In most other states the statute is silent, but the result is nearly the same; for unless the corporation has, by the law of its creation, authority to receive land in this; manner the devise would be as unavailing as if made to a being that never existed. In short, in this country a devise toi a body politic, capable of taking, is valid, unless forbidden on special grounds, rests on him was held In the very recent case of Prentls v. Bates, 93 Mich. 235, 53 N. W. 153. 8 Wadsworth v. Wadsworth, 12 N. Y. 376; 2 Kent, Comm. 61. » Rev. St. N. Y. pt. 2, c. 6, tit. 1, § 4; Acts 1845, c. 115 (especially sections 4, 5, 6); Acts 1857, c. 576; Dusenbeny v. Dawson, 9 Hun, 511; Callahan v. O'Brien (Sup.) 25 N. Y. Supp. 410. In Iowa "charitable devises" are limited (if there is widow, child, or parent) to one-fourth of the net estate. Section 1101. LAND TITLES V. 1—37 (577) § 75 LAND TITLES IN THE UNITED STATES. [Ch. 7 and when there is no mortmain law to prevent." Such acts, drawn upon the lines of the mortmain act of 9 Geo. 11., have been enacted in New York, Pennsylvania, Ohio, Georgia, California, and Mon- tana. The New York act of 1848, which provides for the incorpora-_ tion of benevolent, charitable, educational, literary, and missionary societies, in one of its sections lays down three restrictions: (1) The clear income from the devised estate shall not exceed $10,000; (2) no person, having a wife, child, or issue of a child, or parent living, can devise or bequeath to such an association more than one-fourth of his estate remaining after the payment of debts; (3) no devise to such an association can be made unless the will be executed more than two months before the testator's death. A number of acts have been passed since, bringing almost all eleemosynary corpora- tions of New York which had been or were afterwards created by private charters within these provisions of the act of 1848. In 18G0 another act was passed, enlarging the one-fourth limit to one- half.^^ It has been held that the latter act does not repeal the two-months clause of the former ; that this clause applies when there are neither wife, husband, child, or parent; and that it reaches those corporations which, not being formed under the act of 1848, were subjected to its provisions by later statutes, and applies to "religious" societies, though these are not \n terms mentioned in it, but not to charitable or other societies formed in other states; and that a disposition of too large a share of the estate may be declared void, at the instance of parties in interest other than the relatives for the protection of whom the law has forbidden it.^^ The Pennsyl- vania statute of April, 1855, requires any gift to "a body politic or a trustee" in trust for a religious or charitable use to be made by deed or will, attested by two witnesses, at least one month before 10 4 Kent, Comm. 507; Rev. St. N. Y. pt. 2, c. 6, tit 1, § 3; Sliipman v. Rollins, 98 N. Y. 311 (must be incorporated before devise vests). 11 New York, Acts 1848, c. 319, § 6; Rev. St. p. 1923; Acts 1860, c. 360, § 1. Some of the acts extending the operation of the act of 1848 will be found in the cases infra. The object of the mortmain acts is well set forth by Lord Hardwicke in Attorney General v. Day. 1 Ves. Sr.' 218. 12 Lefevre v. Lefevre, 59 N. Y. 434; Kerr v. Dougherty, 79 N. Y. 327 (as to Union Theological Seminary); Blarx v. McGlynn, 88 N. Y. 357; Stephenson v. Short, 92 N. Y. 433; HoUis v. Drew Theological Sec, 95 N. Y. 166 (a New Jersey institution). (578) Gh. 7] TITLE BY DEVISE. . § ,75 the grantor's or testator's death; and "charitable" is taken in its widest sense, as embracing all gifts for the public good.^* In Ohio a person having children (natural or adopted) or their issue cannot make a devise or bequest for a "charitable, religious, or educational use" within one year of his death; while in California he cannot make such a devise within 30 days of his death, whether he leave issue or not, and if he leaves any legal heirs the devise must not exceed one-third of the estate, though made sooner. A devise of a greater share is declai-ed void.^* The Georgia statute forbidding the devise has not been fairly enforced by the supreme court of that state.^° Most radical of all is the mortmain law of Mississippi. The Code forbids all devises, and, in another section, all bequests of personalty, to any religious or charitable institution, or to any person for any religious or charitable purpose, directly or indirectly, openly or by way of secret trust. The language is so sweeping that charitably inclined Mississippians are most likely to lay out their means intended for charity during their own lifetime." In Maryland a devise to a charitable society not incorporated at the time is deemed wholly void, and the land thus given goes to the heir, as undisposed of." With the exception above stated, a devise of land for a charitable purpose is valid, though it is to be administered by a corporation which is not in existence at the time of the testator's death. This doctrine was established at an early day by the supreme court of the United States, in a case arising in New York, where the statute of charitable uses (43 Eliz.) was not in force, and was fully conceded in the Case of the Tilden Trust.^' But there has been, until lately, 13 Pennsylvania, Dig. "Wills," 22; Price v. Maxwell, 28 Pa. St. 23; McLean -V. Wade, 41 Pa. St. 266. 14 Ohio. St. § 5915; California, Civ. Code, § 1313; Montana, Prob. Code, § 473, 15 Georgia, Code, § 2384; Reynolds v. Bristow, 37 Ga. 283. The Western and Southern states generally have not yet felt the necessity for mortmain acts. I 16 Mississippi, Code, § 4500. Should cases arise in which It is attempted to circumvent this law by secret trusts, the English precedents under their law of superstitious uses might again be drawn from their obscurity. 17 Rizer v. Perry, 58 Md. 127, and cases there quoted; the rule being fully conceded as the law of that state. isinglis y. Trustees of Sailors' Snug Harbor, 3 Pet. 99; Vidal v. Girard's t579) § 75 LAND TITLES IN THE UNITED STATES. [Gh. 7 a wide discrepancy between 'i^ew York, on the one side, and almost all the other states on the other, as to charitable"* devises for objects not otherwise determined than by being subjected to the discretion of the executors, or of trustees appointed for that purpose.'"' In other states than New York, especially such as Massachusetts and Kentucky, where the statute of 43 Eliz. was either recognized as in force, or re-enacted, such devises were deemed valid ; and on the great principle of equity, that a trust cannot fail for the want of a trustee^ the charitable trust which becomes vested by the testator's death cannot be defeated by the death of the executors or trustees, nor by their refusal to qualify or to make any choice of a scheme at all, but in such case the power of executors will either pass, under the local law, to an administrator with the will annexed, or that of executor and trustee passes to a new trustee appointed by the court having general equity powers, or to such court itself.^" The state Ex'i-s, 2 How. 127. In Tilden v. Green, 130 N. Y. 29, 28 N. E. 880, It is admitted that the "Tilden Trust," a corporation formed after the testator's death, in response to his wish, expressed in the will, was capable of taking; but the devise to the trustees was held void, because It gave them the power to divert the lands and funds to other educational or charitable purposes. 19 For the distinction between "charitable" and "benevolent," see chapter on "Uses and Trusts." 20 The Tilden Case, supra, was in line with Levy v. I^evy, 33 N. Y. 97; In re O'Hara, 95 N. Y. 403; Read v. Williams, 125 N. Y. 560, 26 N. E. 730; and other cases In that state. 21 Loring v. Marsh, 6 Wall. 337; Attorney General v. Wallace's Devisees, 7 B. Mon. (Ky.) 611; Curling's Adm'r v. Curling's Heirs, 8 Dana, 38 (where the cy pres doctrine was denounced, but carried into effect); Jackson v. Phil- lips, 14 Allen, 539 (a charity must not fail for want of trustee; cy pres docti'ine applied, when needful); Bliss v. American Bible Soc, 2 Allen, 334 (St. 43 Bllz., in force in Massachusetts). Hunt v. Fowler, 121 111. 269, 12 N. E. 331, and 17 N. E. 491, decided in 1887, dealt with a residuary devise or bequest (It doe& not appear whether land was Included), the income to be distributed annually among the worthy poor of the city of La Salle, in such manner as "court of chancery may direct," and sustained It. The court says that there Is much diversity among the states; that in some the equitable system of charitable trusts is unknown, and the courts apply only the rules governing private trusts;, in some the statute 43 Eliz. c 4, is adopted, in some It Is repealed. The bequest In hand is not to charity generally, nor to the poor generally, but the class i» definite, the individuals are uncertain; and, quoting 2 Eedfleld on Wills, 544, the court shows that such uncertainty distinguishes public charities. Further, It says that In charitable bequests it Is immaterial how vague the objects are, (580) €h. 7] TITLE BY DEVISE. § 75 of New York has lately, through its lawmaking department, come over to this doctrine, in its. most advanced form." The validity of a devise of land to a charity must generally depend on the lex rei sitae; but it may happen that a state in which the provided there is a discretionary power in some one to apply the fund to these objects (Domestic & Foreign Missionary Society's Appeal, 30 Pa. St. 425); and insists that White v. Fisk, 22 Conn. 31 (where a direction to expend was held void because the power to select was not expressly given), though approved In Grimes v. Harmon, 35 Ind. 198, stands, on the whole, disapproved, espe- cially by Hesketh v. Murphy, 36 N. J. Eq. 304 (trustees to employ annual income for the relief of the most deserving poor of -he city of Paterson, but none known as intemperate, lazy, etc., to receive any benefit). Here the court held that the power to select was implied in that to distribute. So it is said in Pickering v. Shotwell, 10 Pa. St. 23, the trustee's discretion may be implied from the nature of the trust; and Erskine v. Whitehead, 84 Ind. 357, does not quite follow the former Indiana decision. The court further quotes Pom. Eq. Jur. §§ 1025, 1026; also Brown v. Kelsey, 2 Cush. 243, and Washburn v. Sewall, 9 Mete. (Mass.) 280, to the effect that, if the devise be made to no certain trustee, a court of equity will carry the trust into effect, either by appointing a trustee or by acting itself in place of a trustee. For cases where a glaring indefiniteness of the object fell in with the lack of a trustee, and the devise or bequest was sustained nevertheless, the Illinois supreme court quotes McCord V. Ochilti-ee, 8 Blackf. (Ind.) 15; Bull v. Bull, 8 Conn. 47; Williams v. Pearson, 38 Ala, 299; Howard v. American Peace Soc, 49 Me. 288. However, a devise to those of the Society of Most Precious Blood "who are under my control" was held void for want of certainty. Society of Most Precious Blood v. Moll, 51 Minn. 277, 53 N. W. G4S. In Gilmer v. Stone, 120 U. S. 586, 7 Sup. Ct. 689, the supreme court of the United States says that a legacy, and intimates that a devise, should be divided between two charities, if it cannot be ascertained which of the two was meant. 2 2 May 13, 1893, an act to regulate gifts for charitable purposes was approved, which directs: "No gift, grant, bequest or devise to religious, educa- tional, charitable, or benevolent uses, which shall in other respects be valid under the laws of this state, shall be deemed invalid by reason of the indef- initeness or uncertainty of the persons designated as the beneficiaries thereun- der in the instrument creating the same. If in the instrument, etc., there is a ti-us- tee named to execute the same, the legal title to the lauds, etc., devised, etc., for such purposes shall bevested in such trustee. If no person be named as trustee, then the title to such land or property shall vest in the supreme court.'' The next section makes it the duty of the attorney general to represent the bene- ficiaries. The insertion of the word "benevolent" is remarkable; for such were heretofore everywhere distinguished from "charitable," and uncertainty as to them could not be helped out by the discretion of a trustee. Quaere, would this act give effect to a devise made to persons, with this clause added: (581) § 76 LAND TITLES IN THE UNITED STATES. [Ch. 7 land lies has enacted a mortmain law applicable to the corporations chartered by itself, in which case a foreign charitable corporation might fare better than a home institutions* § 76. Eequisites of a Will. While, in England before 1838, and in many American states until law reforms werelntroduced after the Eevolution, the probate spoke only as to the personalty, as to which it was conclusive, but had no effect whatever on the lands, the rule is now different in all our states; only in New York and New Jersey the probate or rejection is not always conclusive as to land.^* When probated the will be- comes merged in the judgment or order of the probate court, at least in the great majority of cases; hence the knowledge of the older laws as to the execution of wills is not so important as the law at each period on the subject of deeds of conveyance. Yet, as a long number of years often intervenes between the execution of a will and the death of the testator, we may have to look up the law as to execution in force at the former date; for by that law the validity of the will is tested. If good then, a statute calling for ad- ditional formalities does not annul it. If bad then for lack of some formality, a subsequent statute dispensing with that formality, un- less it contains retrospective words, will not cure it.-^ A will in which land is devised must, as a rule, be executed ac- cording to the laws of the country in which the land is situate, — "I have entire confidence that they will make such disposition of the residue as I would make myself," etc.? Such words were actually used before the act, and were in Forster v. Winfleld, 142 N. Y. 327, 37 N. E. Ill, held to render the devise void. 2 3 Jones V. Habersham, 107 TJ. S. 174, 2 Sup. Ct. 336. Here a devise to a hospital was sustained, though no time for building it, or for obtaining a char- ter was limited. The Illinois statute of mortmain must le.ad to the opposite result. American & Foreign Christian Union v. Yount, 101 U. S. 352. 24 See hereafter in section on "Effect of Probate." 2 5 Powell V. Powell, 30 Ala. 697, and vice versa; Lane's Appeal, 57 Conn. 182, 17 Atl. 926. The statute dispensing with formalities is sometimes cura- tive, as the Pennsylvania act of 1848, which allows a will to be signed with a mark, and was applied to a will already executed in Long v. Zook, 13 Pa. St. 400. See, also, against the rule, Grimes v. Norris, 6 Gal. 621. (582) ^"1J- 7] TITLE BY DEVISE. § 76 according to the lex rei sit^; but several states have carried comity so far as to give effect, upon land within their limits, to any will which is executed according to the law of the country in which it is made. Such, under various limitations, is the case in Massa- chusetts, Maine, Connecticut, New Hampshire, New York, Michigan, Maryland, Arkansas, California, and the Dakotas.^* It is no objection to a will that two persons, e. g. husband and wife, or two brothers, join in what may be called a "mutual will," each devising his or her property to the longest liver, or in a double will, disposing of the estates of both; provided, that the paper is 28 Massachusetts, Pub. St. c. 127, § 5; Connecticut, Gen. St. § 538; New Hampshire, c. 18C, § 5; Maine, c. G4, § 12,-all speak of wills "e-\ecuted ac- cording to the law of the country (or state or country) where executed," etc., having full force in the state, and being admitted to probate. Michigan, by amendment of 1883 to section 5805 of her statutes (see supplement); Mary- land, Pub. Gen. Laws, art. 93, § 319 ("will or testamentary instrument made out of the state" and valid "by the law of place where made or where sucli person was residing"); Arkansas, Dig. § 6531 (limited to citizen of the United States devising property in the state by will executed according to the law of this state or of any state or territory where it is made). In New York the Code of Civil Procedure (section 2611) grants probate to any will executed anywhere in the United States, in the United Kingdom, or in Canada, accord- ing to the law of the place. Another section of the Arkansas Revision (sec- tion 6513), gives force to the probate of any will made in the United States by recording it in the proper county of the state, and, if it passes laud in the state where executed or the testator was domiciled, it will pass land in Arkansas. In this way also the California Code of Procedure (section 1324) gives force to wills executed in any other state or country, and they are ad- mitted to probate. In Dakota, under sections 28-30, any will executed in any state, territory, or District of Columbia, or in any other state or country, either according to the law of Dakota or the law of the place, must be ad- mitted to probate. The Wisconsin statutes (section 2283) give effect to foreign wills made according to the local law or the law of Wisconsin, excepting nun- cupative wills; but it Seems that the other statutes, which generally speak of "wills executed" elsewhere, would tacitly exclude thorn. The Minnesota stat- ute (chapter 47, §§ 18-21) also recognize foreign wills, and provide for their being admitted to record in any county in Jlinnesota in which the decedent left property. See Doe v. Pickett, 5 Ala. 584. where a will made in Georgia did not, on the face of its home probate, pass land in Alabama; but additional proof was admitted there to show that the execution filled the requirements of the Alabama law. For the general principle, see, also, Story, Confl. Laws, §§ 474, 491; Lucas v. Tucker, 17 Ind. 41; Key v. Harlan, 52 Ga. 470 (Tennes- see will, with only two witnesses, not provable in Georgia). (583) § 76 LAND TITLES IN THE UNITED STATES. fOh. 7 properly executed by the party as whose will it is to be established.^'' Nor is a paper which in its effect and purpose is a will defeated as such bj^ having the outward form and language of a deed, — a seal, certificate of acknowledgment, words implying delivery, or even an apparent consideration, — as long as it is clear that the writing was intended to operate, and could operate, only as a will ; that is, that the apparent grantor would retain possession and control during his life, and that, until the grantor's death, the grantee should have no estate, not even an estate in remainder, in the property granted.''' In fact, a part of a written instrument may be provable as a will while another part operates as a binding contract or immediate con- veyance.^" And while the nondelivery of the apparent deed — the 21 In re Diez's Will, 50 N. Y. 88; Scliumaker v. Selimidt, 44 Ala. 454; Betts V. Harper, 39 Ohio St. 641; Evans v. Smith, 28 Ga. 98. The statutes of Geor- gia, California, the Dakotas, Idaho, Montana, and Utah expressly authorize these joint or mutual wills. See, contra, Kivers v. Rivers, 3 Desaus. Eq. (S. C.) 192; and Darlington v. Pulteney, Cowp. 260. After death of all testators, it may be proved as the will of all. Walker v. Walker, 14 Ohio St. 157. 28 In re Diez's Will, supra; Reed v. Hazleton, 37 Kan. 321, 15 Pae. 177 (title "shall vest in said grantee" after the gr.intor) held to be a will merely, and Invalid as a deed; Turner v. Scott, 51 Pa. St. 126 ("excepting the use and possession to J. S. and his assigns for life, and this conveyance not to take effect until after decease"); Sperber v. Balster, 66 Ga. 317 ("should have full effect at his death" held revocable) ; Leaver v. Gauss, 62 Iowa, 314, 17 N. W; 522 (grantee "is to talce no estate during the life of" grantors). A very late English case— Re Slinn's Goods, 15 Prob. Div. 156— belongs here, where a deed of gift of stocks, signed by two witnesses (attesting "in presence of the grantor and of each other") to take effect after grantor's death, was proved as a will. So a sealed paper, beginning, "Know all men by these presents," in which the decedent orders his administrators to pay $75,000 to R. C., was probated in Pennsylvania (Frew v. Clarke, 80 Pa. SL 170); deed to a son in considera- tion of $200, witnessed and acknowledged before a justice, of all stock, wear- ing apparel, etc., which grantor may have at his death, held to be testament- ary. Gage V. Gage, 12 N. H. 371. See, also, Morrell v. Dickey, 1 Johns. Ch. 153; Mosser v. Mosser's Ex'r, 32 Ala. 551; Symmes v. Arnold, 10 Ga. 500 ("thenceforth to be her property"). In Sharp v. Hall, 86 Ala. 110, 5 South. 497, all the circumstances are stated which the jury on trying the questions of will or no will may consider. See, also, the very late cases of Robinson v. Brew- ster, 140 111. 649, 30 N. E. 683; Crocker v. Smith, 94 Ala. 295, 10 South. 258. For cases in which the doubtful instrument was by the circumstances stamped as a deed which it was in form, see Hart v. Rust, 46 Tex. 556; Goldlng v. Golding's Adm'r, 24 Ala. 122. 29 Kinnebrew v. Kinuebrew, 35 Ala. 028; Taylor v. Kelly, 31 Ala. 59, ap- (584) Ch. 7] TITLE BY DKVISK. § 76 avowed purpose of the grantor to keep it in his possession until his death — has been one of the strongest marks of the testamentary character of a writing, a paper actually delivered to the nominal grantee has sometimes been treated as a mere will, where the intent not to raise an estate until the grantor's death clearly appeared on the face and no consideration was actually given at the time of de- livery.'" Though the principle "ut res magis valeat" has in some cases determined a court to admit the ambiguous paper as a will, yet in other cases a paper has been declared testamentary, though for want of proper attestation it could not be admitted to probate.'^ In these cases, not only the words of the instrument, but the sur- rounding circumstances, the relation of the parties, such as parent and child, the nature of the property conveyed, — that it comprised all the grantor's earthly possessions, — have been taken into consid- eration; and it has been said that "the form of the instrument is of little consequence, whether it is a will or a deed. If it is executed with the formalities required by the statute, and is to operate only after the grantor's death, it is a will." Perhaps an unhappy defini- tion; for the very question to be decided is, do the words of the Instrument raise an estate in remainder, to vest at once, but to come into operation only after the grantor's death?'" The question proved In Reed v. Hazleton, supra; 1 Jarm. Wills, 18, note 7; liife's Appeal, 110 Pa. St 232, 1 Atl. 226; Robinson v. Schly, 6 Ga. 515. 30 Bigley v. Souvey, 45 Mich. 370, 8 N. W. 98 (held void as a deed, and its revocation not a good consideration for a promise). In the later, case of Lau- tenshlager v. Lautenshlager, 80 Mich. 285, 45 N. W. 147, warranty deeds to sons held to be testamentary had been kept in the father's possession. In Nichols v. Chandler, 55 Ga. 369, the writings, though deeds in form, were neither recorded nor delivered. Rawlings v. McRoberts, 95 Ky. 346, 25 S. W. 601 (where the instrument says that it is to be recorded, it implies a convey- ance). SI McKinnon v. McKinnon, 46 Fed. 713; Comer v. Comer, 120 111. 420, 11 N. E. 848; Cover v. Stem, 67 Md. 449, 10 Atl. 231. "Ut magis valeat" was ap- plied in Gage v. Gage, supra, and in Attorney General v. Jones, 3 Price, 379, and, in efCect, in. Re Slinn's Goods, supra. However, if the apparent deed is not executed with the forms of a will, it gains no force by the grantor's failure to revoke it McCarty v. Waterman, 84 Ind. 552. A deed or declaration of trust does not become a will by reserving in it a power of revocation. Van Cott v. Prentice, 104 N. Y. 45, 10 N. E. 257. 32 See Georgia Code, § 2395, passed on in Bright v. Adams, 51 Ga. 239. It is difficult to account for or to classify the case of Lungren v. Swartzwelder, (5Sr)) § 76 LAND TITLES IN THE UNITED STATES. [Ch. 7 whether a writing is intended for a will, or is not intended to have any operation on the writer's estate, is most fitly treated under the head of holographic wills. A will may be written in any language. German, French, and Spanish wills have often been admitted to probate; and on account of the usage of continental Europe, where a court official or notary retains a will which lias been reduced to writing before him, some states have made provision for establishing such wills Virithout ob- taining the original, while other states 'have provided for recording, along with the instrument in the foreign tongue, an English trans- lation.^' And, as thus the writing may be in a foreign character, it may also be in pencil, instead of ink; a position which was estab- lished at an early day under the statute of frauds, and, after some struggle, also in the United States; the only objection to pencil writing or to the use of some unusual writing material being the suspicion that the instrument was intended only for a rough draft.'* Wills of land may be made in one of three forms. The most usual is that of a writing signed or subscribed by the testator, and at- tested and subscribed by witnesses. The laws regulating such wills are derived from the English statute of frauds;'^ and, with some 44 Md. 482; an inventory and a number of memoranda naming persons and sums of money, written by the testator with pencil in a memorandum book, followed by the appointment of administrators, the writer's signature, and those of two witnesses. The writing was held not to be a will, and was re- fused probate. S3 In re Diez's Will, 50 N. Y. 88; Younger v. Duffle, 94 N. Y. .535. 8 4 Knox's Estate, 131 Pa. St. 220, IS Atl. 1021 (arguendo); Patterson v. EngUsh, 71 Pa. St. 454. The cases go back to Merritt v. Clason, 12 Johns. 102 (case of pencil memorandum of contract for sale of goods), and to the English will case, In re Dyer, 1 Hagg. Ecc. 219. 8 5 29 Car. II. c. 3, § 5: "All devises," etc., "of any lands," etc., "shaU be in writing and signed by the devisor, or by some other person in his presence, and by his express direction, and shaU be attested and subscribed in his presence by three or four credible witnesses, or shall be utterly void." The act of 1 Vict. c. 26, § 9, in force since January 1, 1888, requires all wills to be "in writing and executed in the manner hereafter mentioned; that is to say, it shall be signed at the foot or end thereof by the testator, or by some other person in his presence, and by his direction; and such signature shall be made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and such witnesses shall attest and shall subscribe the will, in the presence of the testator; but no form of attestation shall be (586) Ch. 71 TITLE BY DEVISE. § 76 variation as to the mode of signing and the number and qualifica- tion of witnesses, are to be met with in all the states." The "holo- graphic" or "olographic" (wholly written) will is borrowed from the French law/^ and has been adopted into the jurisprudence of about one-fourth of the states and territories. The "nuncupative" will was borrowed from the testamentum in prsBcinctu of the Roman law, but more directly from England, where they were in vogue as to personalty until 1838, though under heavy restrictions. Only four American states, as will be shown, allow lands to be thus devised. The same rules which govern the validity of an entire will also govern a codicil, that is, an instrument which, like a will, is change- able and revocable until death, and which limits, enlarges, or modi- fies a preceding will, without revoking or supplanting it altogether. These rules apply to some extent also to a "writing declaring the revocation of a will" ; but such writings, though authorized in most states, are unknown in practice.'* Bur a paper which does not give any part of the maker's estate to anybody, and does not appoint an executor or testamentary guardian, but only excludes the heir, or some of the heirs, from his or their shares, is not a will, and can- not be admitted to probate.'" And what is true as to the whole necessary." This act seems to have heen prompted by the New York Revi- sion, but has in its turn been followed by Virginia. An act of 15 Vict relaxes somewhat the requirement of signing at the foot, which had defeated a num- ber of wills. 3 « As to following the construction of the English statute, see Armstrong v. Ai-mstrong, 29 Ala. 538; Bailey v. Bailey, 35 Ala. 687. In Virginia it was fol- lowed quite reluctantly. 37 Code Civil, art 970: "Le testament olographe ne sera pas valable e'il n'est ecrit entier, datS et sign6 de la main du testateur; il n'est assujettS a aucune autre formalite." The same provision is found in the Revised Civil Code of Louisiana, art. 1588. 38 1 Jarm. Wills, 89, 90; section 19 of statute of frauds. 3 9 The more elaborate chapters on "Wills" set out with some such statement as section 1 of chapter 113 of the General Statutes of Kentucky: "Except where it would be contrary to the manifest intention, the word 'will,' as used in this chapter, shall signify a last will or testament, codicil, appointment by will or writing in the nature of a will in exercise of a power, and also any other testamentary disposition." Thus a request that a former will be destroyed, that the estate may go by the law of descent was proved as a will. Bayley v. Bailey, 5 Cush. (Mass.) 245. As to codicil, see, also, Garcia Perea v. Barela (N. M.) 23 Tac. TOlj. (587) § 76 LAND TITLES IN THE UNITED STATES. [Ch. 7 will is also true as to each part or devise. The only effect of the ■devise is to disinherit the heir to some extent; either taJiing from him the whole or a part of the lands which would otherwise descend to him, or clogging his title to the land with ^ome condition, or charge, or limitation. But this can be done only in one way; that is, by giving such lands, or some interest therein, to others, or imposing the condition, charge, or limitation in some one's favor. The fullest and clearest declaration that the heir shall have nothing, or shall have only a named share, smaller than that due him by the laws of descent, unless what is taken from him is given to another, is wholly ineffectual. And a void devise does not disinherit the heir, for it amounts to no devise. The cases referred to in the preceding sec- tion, under the mortmain laws, are the readiest examples of this ■doctrine.*" How far other instruments can be included in a will, so as not to require a separate execution, and especially how far the execution of a codicil will give life to a defectively executed will, to which it refers, is a delicate and important question. In a late case a will was defectively executed, in this, that one of the attesting witnesses, being a devisee, was not "competent"; but a codicil written on the same sheet, reciting and modifying the will, was properly executed. The whole will was admitted; and if the codicil clearly referred to a, will written on a separate sheet of paper, and ratified it, the result would, according to the weight of authority, have been the same.**^ io Chamberlain v. Taylor, 105 N. Y. 185, 11 N. B. 625, where the principle is announced; also, Haxtun v. Corse, 2 Barb. Ch. 506, 521; Bowles v. Winchester, 13 Bush, 1. But courts have sometimes construed out of the exclusion of one heir, and other words not really giving anything, a devise to his coheirs. Clarkson y. Clarkson, 8 Bush, 655, limited in Phillips v. Phillips, 93 Ky. 500, 20 S. W. 541. Mr. Jarman says (1 Jarm. Wills, 294): "Negative words do not amount to a gift, and the only mode of excluding the title of whomsoever the law, in the absence of disposition, constitutes the ■successor of the property, is to give it to some one else." See, also, Cole v. Wade, 16 Ves. 27. When a lim- itation over of land Is made on the occurrence of events which do not come to pass fully, the land goes to the heir ab intestate. So in McGuiTy v. Wall, 122 Mo. 614, 27 S. W. 327, where the widow took, as heir of the only son and heir of the testator, at her remarriage. The result often runs counter to the presuma- ble wishes of the testator. *i In re Will of Murfield, 74 Iowa, 479, 38 N. W. 170; Loring v. Sumner, 23 Pick. 102; Thayer v. Wellington, 9 Allen (Mass.) 292; Jackson v. Babcock, 12 (588) (-'Il- 7] TITLE BY DEVISE. § '& Thus, a conveyance actually made, but invalid, may be ratified by a will ; and descriptions of property may be furnished or devisees may be identiiied by reference to maps or written documents, public or private, just as it may be done in a deed.*^ But a reference to a conveyance said to have been made by the testator, but actually not made, does not amount to a devise of the subject of such supposed conveyance, when it has in fact not been executed ; as such nonexe- cution may have resulted from the testator's change of mind.*^ On* the other hand, the recital of a former part of the will as devising a certain estate to a named person amounts to such a devise, if it is not found in the will before.** "NVhen a devise is made subject to further directions of the testator theretofore given or yet to be given, and the persons or purposes of the devise cannot be understood or carried out without looking into these directions, the devise is void, and the land or estate embraced in it is undisposed of, and goes to the heirs, unless, indeed, these directions are in writing, which i» identified according to the rules given above; for otherwise an im- portant part of the will would be unwritten, or, at any rate, not executed according to law. And, where property is devised to a named person* in trust to apply it according to directions that have been or may thereafter be given to him by the testator, the trust is void, and the devisee takes nothing; for, if nothing else is expressed, the intent that he shall not take beneficially is plainly expressed; and the thing devised goes to the heirs.* ° Where, on the face of the Johns. 394; Chambers v. McDaniel, 6 Ired. (N. C.) 226; Harvy v. Chouteau, 14 Mo. 587, 592; Stover v. Kendall, 1 Cold. (Tenn.) 557; Smith v. Puryear, 3 Heisk. 708. See Jarm. Wills, 79; De Bathe v. Lord Fingal, 16 Ves. 167; Storms' Will, 3 Redf. (N. Y.) 327. But the witnesses of will and codicil can- not be added together to make one good attestation. Dunlap v. Dunlap, 4 Desaus. Eq. (S. C.) 305. 42 Tonnele v. Hall, 4 N. Y. 140, relying on Habergham v. Vincent, 2 Ves. Jr. 204, 228 ("paper already written" may be made part of will by reference), and' on Bond v. Seawell, 3 Burrows, 1775. Compare recital of deeds in deeds, Crane v. Morris' Lessee, 6 Pet. 611. *3 Benson v. Hall, 150 111. 60, 36 N. E. 947; Hunt v. Evans, 134 111. 490, 25' N. B. 579, relying on Harris v. Harris, 3 Ir. Eq. 610; Stover v. Kendall, supra; and see Bamfield v. Popham, 1 P. Wms. 54; Right v. Hamond, 1 Strange, 427. «4 Harris v. Harris, and Hunt v. Evans, supra. 4B Heidenheimer v. Bauman, 84 Tex. 174, 19 S. W. 382; Nichols v. Allen, 130 Mass. 211 (and the heirs have also a resulting trust, If the purpose b& (589) § 77 LAND TITLES IN THE UNITED STATES. [Ch. 7 will, the trusts are not expressed, land being devised absolutely, but the devisee has obtained such absolute devise by holding out to the testator that he would give the proceeds to another beneficiary, he is guilty of a fraud. And some courts have gone so far as to allow such fraud to be proved by parol, and to declare the devisee a trustee for those to whom he had promised to turn over the benefit; a rather dangerous encroachment on the statute of frauds and per- juries.*" Sometimes a date later than the testator's death has been found in a will. If the date was set down correctly, the will must be forged; but the propounders may show that the will was pub- lished by the testator in his lifetime, and that the wrong date was put in by mistake.*'' We refer below to the Codes or compilations of the several states and territories for the sections in which the formal requisites in the execution of wills are prescribed.*' § 77. Signature or Subscription. ' The first requisite of the written will, whether attested or holo- graphic, is the signature or subscription of the testator; and as to this the laws of the several states and territories differ greatly. certain enough, but illegal,— OlUffe v. Wells, Id. 224) ; Sears v. Hardy, 120 Mass. 524, 542. *6 Sticliland v. Aldridge, 9 Ves. 519. Compare Graham v. Burch, 53 Minn. 17, 55 N. W. 64. *7 Doran v. Mullen, 78 111. 342. See next section for further illustration. ■»s The following statutes are referred to in the sections as to the formal execution of wills: Alabama, Civ. Code, §§ 1966, 1967; ArJiansas, §§ 6492; G403; California, Civ. Code, §§ 1278, 1288, 1289; Colorado, Gen. St. § 3482; Con- necticut, § 538; Daliota Territory, Civ. Code, §§ 688, 691, 693; Delaware, c. 84, § 3; Florida, § 1795; Georgia, §§ 2414^-2418, 2479, 2482; Idaho, §§ 5727-5729; Illinois, c. 148, § 2; Indiana, Uev. St. § 2576; Iowa, §§ 2325, 2326; Kansas, § 7206; Kentucljy, c. 113, § 5 (not touched by the Statutes of 1893); Maine, c. 74, § 1; Maryland. Pub. Gen. Laws, art 93, § 310; Massachusetts, c. 127, §§ 1-7; IVfichigan, § 5789; Minnesota, c. 47, §§ 5, 6; Mississippi, §§ 4488, 4492; Missouri, § 8870; Montana, Probate Code, §§ 438-440; Nebraslsa, §§ 1186, 1187; Nevada. .§§ 3002, 3004, 3005; New Jersey, "Wills," § 6; New Hampshire, c. 186, § 2; New Yorli, Rev. St. pt. 2, c. 6, §§ 40, 41; North Carolina, § 2136; Ohio, § 5916; Oregon, §§ 3069, 3070; Pennsylvania, Dig. "WiUs," § 6; Rhode Island, e. 182, § 4; South Carolina, § 1854 (copied from 29 Car. II.); Tennessee, §§ 3003, .3004; (590) ■Ch. 7] TITLE BY DEVISE. § "^Y It were well if the law everywhere demanded that the will should be "subscribed," or, what is the same, "signed, at the end." Just as in the execution of deeds, so for the "publication" of a will, a number of states require only that the writing shall be "signed" by the tes- tator; and the name of the testator in any part of a paper may, under circumstances, count as a signature. In the following states the will need only be "signed": Alabama, Illinois, Iowa, Maine, Maryland, Michigan, Mississippi, South Carolina, Rhode Island, North Carolina, Tennessee, Washington, New Hampshire, Missouri, ■Oregon, Vermont, Indiana, Nebraska, Wisconsin, Florida, Georgia, Massachusetts, Colorado, New Jersey, Texas, Arizona; and so in Nevada. But in that state alone the will must be sealed, a rule abolished in New Hampshire only in 1891. In Virginia and West Virginia the instrument must be signed in such a manner as to make it manifest that it was intended as a signature. The statutes of New York, California, the Dakotas, Montana, Idaho, Arkansas, and Utah provide that the will must be "subscribed at the end thereof"; the lawmaker not being satisfied with the first word, which in itself denotes a signature at the end. The Pennsylvania -act demands signing the will at the end, "unless the person making the same shall be prevented by the extremity of his last sickness." Ohio demands signing at the end in all cases. So do Kansas and Minnesota. Kentucky and Connecticut direct that the will must be ^'subscribed"; and the Delaware statute ("signed by the testator or by some person subscribing the testator's name") either implies that the word "signed" is meant as the equivalent of "subscribed," or that the testator himself may write his name in the body, but an- other. must put that name at the end of the instrument. In most of the statutes, after the requirement that the will should be signed or subscribed by the testator, words are added to this effect: "Or by some other person in his presence and by his express direction." The word "express" is left out in some states, and seems to be imma- terial ; and a few states have the word "request," instead of "direc- tion," which is an equivalent." But the Indiana statute says "in his Texas, arts. 4859, 4860; Vermont, §§ 2042, 2045; Virginia, § 2514; Washington, §§ 1459. 1460; West Virginia, c. 77, el. 6; Wisconsin, § 2282; Arizona, §§ 3234, 3235. *9 Mere acquiescence by the testator in the signing of his name by another is not enough. Waite. v.Frisbie, 45 Minn. 301, 47 N. W. 1069. (591), § "^7 LAND TITLES IN THE UNITED STATES. [Ch. i presence and with his consent," which is certainly broader than "by his direction"; and the Arkansas law says nothing about the tes- tator's presence. In New York, the clause above given had been in the act of 1787, and in the Revised Laws of 1813, but was omitted in the Revised Statutes; but the section next following recognizes that the signature may have been made by another person in the old- way.^" The statutes of New Jersey and of Connecticut also demand the signature or subscription of the testator, and say nothing about any "other person." In Oregon and Washington, the "other person" who writes the testator's name for him must state this fact in writing, and sign his own name as a witness to the will. This seems to be mandatory, while the corresponding provision in New York is only a regulation, enforced by the threat of a small fine. The provision found in many of the statutes that the testator may acknowledge his signature before the attesting witnesses, who thus need not see him, nor any one for him, sign the will, withdraws the facts as to the signature from the court or jury trying the question of "will or no will" ; but, when the facts are brought out, they con- trol. °^ In accordance with the English decisions under the statute of frauds, it has been held that, where the statute does not direct the contrary, the testator, or another person for him, may sign his name in any part of the will. Thus, where the testator has a will drawn up in his presence, with his name in the opening clause, and asks the subscribing witnesses to attest it, he thereby adopts his name, as it stands written at the top, as his signature; and the will is complete.^^ A mark is a sufficient signature, if it appears to be intended as such; and it is immaterial that the testator knew how •0 Robins v. Coryell, 27 Barb. 558, though not in the court of appeals, has ever since been acquiesced in. 61 Chaffee v. Baptist Missionary Convention, 10 Paige (N. Y.) 85. The will was acknowledged before two witnesses, but rejected, as it seemed probable that it was not signed either by the testatrix or in her presence, and she did not acknowledge that it was so signed. 62 Lemayne v. Stanley, 3 Lev. 1; Morison v. Turncur, IS Ves. 176; Miles' Will, 4 Dana, 1 (not law in Kentucky now); Armstrong v. Armstrong, 29 Ala. 538. This course of decision Is in Robins v. Coryell, 27 Barb. 558, called a "preposterous misconstruction"; and the statute of 1 Vict., as well as the. statutes of New York, Pennsylvania, Kentucky, Virginia, etc., which require "subscribing" or signing at the foot or end, or signing so as to show the intent (592) Cll. 7] TITLE BY DEVISE. § 77 to write, and was even at the time of executing the will capable of writing." But where he starts out to write his name, and from weakness or other cause stops before he has written enough to be read for his name, the strokes made cannot be considered as "his mark"; for they were not intended as such. The will is incom- plete."* Where the testator, being feeble, allows some one to guide his hand in tracing his signature, this is sufflcient, either as made by him or "by some other person in his presence and by his express direction." °° The testator may request a bystander to steady or to guide his hand while he is signing his name; and this, where the law does not allow him to direct another person to sign for him."' As a will may be written in a foreign language, it may, of course, be signed in its characters; and just as it may be written, so it may also be signed, in pencil. ^^ The testator need not sign the full name. The given name alone, or initials, if he were in the habit of using of signing, were enacted to remedy the mischief of these decisions. We have shown the same divei-sity of views under the head of "Deeds, Signature or Subscription." 03 Adams v. Chaplin, 1 Hill, Eq. (S. C.) 2G5; Flannery's Will, 24 Pa. St. 502; Chaffee v. Baptist Missionary Convention, 10 Paige (N. 1.) 85; Pridgen v. Pridgen, 13 Ired. (N. C.) 259; Den v. Mitton, 12 N. J. Law, 70; Den v. Mat- lack, 17 N. J. Law, 86; Eosser v. Franklin, 6 Grat. (Va.) 1. Pennsylvania Acts of 1848 (section 7 of chapter on "Wills") and 1887 (as to married women) expressly authorize the use of a mark or cross. See, also, Bailey v. Bailey, 35 Ala. 687. The testator may direct another to sign his name, though he could sign it himself. Taylor v. Dening, 3 Nev. & P. (Q. B.) 228. In re Guilfoyle, 96 Gal. 508, 31 Pac. 553; Herbert v. Berrier, 81 Ind. 3. Where the testator's name is written by one of the attesting witnesses,— as it may be,— he still counts as a witness. Herbert v. Berrier, 81 Ind. 1; In re Stevens' Will, 6 Dem. Sur. (N. Y.) 202. 64 In re Plate's Estate, .148 Pa. St. 55, 23 Atl. 1038; In re O'Neill's Will, 3 Dem. Sur. (N. Y.) 427. BsTrezevant v. Rains (Tex. Sup.) 19 S. W. 567. 6 8 Fritz V. Turner, 46 N. J. Eq. 515, 22 Atl. 125, following Stevens v. Van- cleve, 4 Wash. C. O. 202, Fe± Gas. No. 13,412, where Mr. Justice Washington says that otherwise a person of sound mind, but feeble body, might be unable to make a will in New Jersey. The clause allowing another pei-son to sign was stricken out intentionally. In re McElwain's Will, 18 N. J. Eq. 499; Mc- Mechen v. McMechen, 17 W. Va. 683; Watson v. Pipes, 32 Miss. 451. 67 In re Knox's Estate, 131 Pa. St. 220, 18 Atl. 102. See note 34 to preceding section. L.4.ND TITLES V. 1 38 {523) § 77 LAND TITLES IN THE UNITED STATES. [Ch. 7 the one or the other, would at least be a good mark; and the full name need not even occur in the will, if the testator be therein other- wise fully identified.^* Where the testator uses a mark, and some one else puts his name at the side of it, without his direction, or. not in his presence, such improper conduct cannot defeat the act of the testator, which was suificient in itself.^" The statutes of Cali- fornia, the Dakotas, Idaho, Montana, and Utah define a signature as embracing a mark when the party "cannot write," and require the signer's name to be near it. It has been held that a person know- ing how to write, but physically too weak, may use a mark, and that the testator's name at the top of a short will is near enough ; for it clearly shows what the mark was intended for.^" The requirement of the Virginia and West Virginia law that the signature must be- so placed as to show an intent to sign has been construed to mean in effect the same as if the statute required it to be put at the end of the will; for, in truth, this in ordinary language is meant by "signing." °^ Under the Pennsylvania statute which requires that the will be signed at the end, the question has arisen, where independent clauses followed the signature, whether so much of the instrument as is above it can be proved as a valid will, rejecting what follows it as surplusage; and it has both times been decided in the negative, and the wills were rejected in toto."^ In New York, on the other hand, "8 Id re Knox's Estate, supra, where tbe testatrix signed only "Harriet," but was identified by the names of her father and mother, which she wished to have put on her tombstone. The given name is at least a mark. 69 Pool V. BufCum, 3 Or. 438. St. Louis Hospital Ass'n v. Williams, 19 Mo. 609, does not decide the contrary. And an error in the name put by the scriv- ener against the testator's mark is immaterial (Long v. Zook, 13 Pa. St. 400), at least under the Pennsylvania statute. See, also, Hartwell v. McMaster, 4 Redf. Sur. (N. Y.) 390; Bailey v. Bailey, 35 Ala. 687 (Incorrect name). 80 California, Civ. Code, § 14; Montana, § 539; Idaho, § 16; In re Guilfoyle, 96 Cal. 598, 31 Pac. 553. 61 Warwick v. Warwick, 86 Va. 596, 10 S. E. 843, following Koy v. Roy, IB Grat. 418. Older Virginia cases point out how ill the old English notion of signature at the top fits a holographic will, which takes the attestation of wit- nesses to mark its end. A label signed by the testator, and mentioning hia will on the back of the paper or on an envelope, does not help out a will signed at the top. 2 Appeal of Wineland, 118 Pa. St 37, 12 Atl. 301, foUowing Hays v. Har- den, 6 Pa. St. 409. (504) <^'ll- 7] TITLE BY DEVISE. § 77 the question came up three times before the court of appeals, whether clauses written on another page of the sheet — the will be- ing subscribed, by testator and witnesses at the bottom of the first page (under a printed testimonium clause) — could be considered as belonging to the first page, either by a reference forward and back- ward on the two pages, or because the matter on the second page was obviously the close of a paragraph begun on the first page. Here, also, both wills were rejected; although a will had been sus- tained in which maps and descriptions referred to in the will were stitched and sealed to it at the end.°^ But the testator's name is "subscribed" or signed at the end, though it be followed by the date, which is not in fact a part of the will/* The clause in the Pennsyl- vania statute which dispenses with the testator's signature when he is prevented by the extremity of his last sickness is strictly pur- sued. If he dies before he has given even an oral assent to the will in its final shape, the instrument is not completed, and without force.'"' The statutes do not demand of the testator any other act flr mode of making his wishes known, except by signing his will. He need not have read it. Nor is it necessary that it should have been read to him, nor that it should have been written in a lan- guage which he understands. That he has not read the will, that it has not been read to him, that he does not understand the lan- guage in which it is written, may all be proof of want of capacity, of fraud, or of undue infiuence, but not of defective execution."' 83 In re O'Neil, 91 N. Y. 516; In re Hewitt, Id. 261; In re Conway, 124 N. Y. 455, 26 N. E. 1028, reversing same case in 58 Hun, 16, 11 N. Y. Supp. 606. In Sisters of Charity v. Kelly, 67 N. Y. 409, the testator's name thrown at random in a clause near the end of the will was held Inelt'ectual. Contra, Ton- nele v. Hall, 4 N. Y. 140. 64 Flood V. PragofC, 79 Ky. 607. However, by reference in the body of the will, such as "all acquisitions up to this date," or "land held at this date," the date might become a very important part of the instrument. Date and -testimonium clause no part of the will. Younger v. Duffie, 94 N. X. 535. 6 5 Wall V. Wall, 123 Pa. St. 545, 16 Ati. 598. 66 Worthington v. Kleram, 144 Mass. 167, 10 N. E. 522; Pettes v. Bingham, 10 N. H. 514; Doran v. Mullen, 78 III. 342. Tlie signature is presumed to be made understandingly (Parker v. Felgate, 8 Prob. Div. 171, will made accord- ing to instructions good, though testatrix too far gone to listen to it; even in the case of a testator who signs by mark,— Robinson v. Brewster, 140 111. 649, 30 N. B. 683; In re Smith's Will [Sup.] 15 N. Y. Supp. 425, just and simple (595) § ,78 LAND TITLES IN THE UNITED STATES. [Ch. 7 Yet, where a will is written directly against the testator's instruc- tions, and not read to or by him, the signature is so thoroughly obtained by fraud that it may be deemed null." It is not necessary that each separate sheet of a will be signed by the testator. Where a subscription or signing at the end is required, he must sign the last sheet, and the witnesses will subscribe it with him. Even where the different sheets are not stitched together, or otherwise in bodily connection, one signature is enough; perhaps an unfortunate rule, as it may give rise to much uncertainty and fraud, but fully estab- lished."' § 78. Attestation. The will in the ordinary form, having been signed, is "attested and subscribed" by witnesses. "Attested" means that the witnesses see the testator sign, or hear him acknowledge the signature; °° "sub- scribed," that these same witnesses put their own names at the end of the will, with or without an attestation clause. In only one state (Pennsylvania) no such form is required. The statute of 1833, still in force, demands that a will shall "in all cases be proved by the oath or affirmation of two or more competent witnesses." These wit- nesses need not even be present at the execution. They need not have heard an acknowledgment by the testator. If two or more witnesses prove the handwriting of the deceased, the law is complied with. will; Keithley v. Stafford, 126 111. 507, 18 N. E 740, presumption that testator understood the will to be signed) ; but it yields to proof to the contrary. Jury trying a will must believe that the testator knew the contents, but may infer this from circumstances. Cheatham v. Hatcher, 30 Grat. G5; Montague v. Allen, 78 Va. 592. 7 Waite V. Frisbie, 45 Minn. 361, 47 N. W. 1069, and Id., 48 Minn. 420, 51 N. W. 217; Day v. Day, 3 N. J. Eq. 549; In re Hoover's Will, 19 D. C. 4S5, where testator is unable to speak; RoUwayen v. Roll way en, 63 N. Y. 504. For the details and further authority on this question, involving the questions of fraud, imdue influence, and testamentary capacity, we must refer the reader to works on WiUs. 6 8 Wikoff's Appeal, 15 Pa. St. 281. In Tonnelle v. Hall, 4 N. Y. 140, the sheets were bound by a ribbon. 1 Jarm. Wills, p. 70; Wmsor v. Pratt, 2 Brod. & B. 650, there quoted. The parts of the will ought to be together when they are attested. See Gass v. Gass, 3 Humph. (Tenn.) 278. 89 The distinction between attestation and subscription is well etated Id Swift V. Wiley, 1 B. Mon. (Ky.) 117. (59G) Ch. 7] TITLE BY DEVISK. § 78 But two must agree. If each of two testifies to a different manner in wliich the will was executed, it cannot be said to be proved by the oath of two witnesses.'" The following states adhere to the old rule that three witnesses have to attest a will of real estate: Maine, New Hampshire, Mas- sachusetts, Vermont, Connecticut, South Carolina, and Georgia. In the other states and territories the law requires "two or more," or "at least two," or simply "two," witnesses. In all the states the stat- ute, like the English statute of frauds, requires these witnesses to "at- test and subscribe" the will in the testator's presence, except in Texas and Iowa, where the statute speaks of attesting only, and leaves the rest to inference, and in Georgia and Arkansas where they are to sub- scribe, but are not required to do so in the testator's presence. Again, while in most of the states the statute does not define what knowledge about the execution of the will the witnesses shall gain, it is more definite in not a few of them. In New York,'^ Arkansas, the Dakotas, Idaho, Montana, California, and Utah, it is plainly said that the subscription must be made before, or acknowledged to, the witnesses, an acknowledgment of the will generally not being enough. In these states, and in New Jersey, the testator must declare to the witnesses that the instrument is his will, which is known as the "publication" of the will. In Ohio and Kansas the witnesses must see the testator subscribe, or hear him acknowledge the will. In Virginia, West Virginia, and Kentucky, the signature or subscription must be made, or the subscription acknowledged, before them. In New Jersey the signature is made, or the making thereof is 7 In re Knox's Estate, 131 Pa. St. 220, 18 Atl. 1021; Jones v. Murphy, 8 Watts & S. 295; Carson's Appeal, 59 Pa. St. 493. Before 1887, the will of a married woman had to be subscribed by two witnesses, neither of them her husband. As to disagreement of witnesses, see Derr v. Greenawalt, 76 Pa. St. 2.39, 254. Ti The part of the New York law relating to the attesting witnesses reads as follows: "(2) The subscription must be made in the presence of the attest- ing witnesses, or be acknowledged by the testator to them to have been made by him or by his authority. (3) The testator must, at the time of subscribing or acknowledging the same, declare to the attestii g witnesses that the instru- ment is his will; and (4) there must be two attesting witnesses, each of whom must sign his name as a witness at the end of the will, at the testator's re- quest and in his presence." The same language is used in the other states named with New York, except as to the changes in Arkansas noted in the text. (597) § 78 LAND TITLES IN THE UNITED STATES. [Ch. 7 acknowledged, before them. In Illinois, as it is rather awkwardly said, they must have been present and "seen" the testator sign the will or "acknowledge" it. Where the word "attest" or "witness" is left undefined, the witnesses must either have seen the act of signing or subscription, or must have heard him acknowledge the signature, implying that it was made by him, or in his presence and by his authority. After gaining the proper knowledge of the will, the witnesses are to subscribe it. While, with the exceptions already stated, this is required to be done in the testator's presence, only Vermont and South Carolina require them to do it in the presence of each other, in accordance with the time-honored phrase of the scriveners, which would also be the safer course in New Jersey, Virginia, and West Virginia, where they are to be present at the same time. In New York, Arkansas, the Dakotas, Montana, Idaho, California, and Utah, each of them must sign his name at the end of the will, at the testa- tor's request. In Iowa and Texas the inference has been drawn that the attesting witnesses must subscribe the will in the accustomed manner;^^ but in Arkansas and Georgia the witnesses need only sign the will within a reasonable time, as part of the same occasion, and while the testator is alive.' ^ Where an acknowledgment is permitted, it has generally been held insufficient when the testator showed the will, ready written, to the witnesses, without declaring that he had signed it.'* An acknowledgment can be made by a nod of assent as well as by words."* In like manner, the declaration to the witnesses that the '2 In re Boyeus, 23 Iowa, 354. 7 3 Huff V. Huff, 41 Ga. 696. 7-1 In re Mackay, 110 N. Y. 611, 18 N. E. 433 (In New York, the witnesses must see the signature which is acknowledged); Mitchell v. Mitchell, 16 Hun, 97, affirmed 77 N. Y. 596 (note the pointed language of the New York stat- utes); Ludlow V. Ludlow, 36 N. J. Eq. 597. The decisions in other states are under statutes more loosely worded. A general acknowledgment of the will, not mentioning the signature, is deemed good in Rhode Island (Sprague v. Luther, S R. I. 252), and in Massachusetts (Dewey v. Dewey, 1 Mete. 349; Hogan v. Grosvenor, 10 Mete. 54; Ela v. Edwards, 16 Gi-ay, 91); in Illinois (Yoe v. McOord, 74 111. 33); in Delaware (Rash v. Purnel, 2 Har. 44S),— all relying on White v. British Museum, 6 Bing. 310. 7 5 Denton v. Franklin, 9 B. Mon. (Ky.) 2S, overruling Griffith v. Griffith, 5 T. B. Mon. 511. A request to attest has been held an acknowledgment Tu- (5t)S) ^h. 7] TITLE BY DEVISE. § 78 instrument before them is the testator's will may be indicated by an almost silent assent; the scfivener, or some other party making the statement in the testator's presence.''* But, when he is so feeble as to speak with difficulty only, such a presumption cannot be indulged, and mere acquiescence on his part to the words of another would not prove a voluntary publication.'' The request to^ the wit- nesses, where required, is often made by the testator's handing the instrument to the witnesses, or the pen with which they are to sign it, and may always be given as well by acts as by words.''* It may also take place before the will is completed ; that is, when the testator sends for a friend to witness his will, while it is being prepared.''" Where the statute says nothing about request, none need be shown, though it would be fatal to the will, if the subscription had been made without the testator's consent.*" In the states in which the dor V. Tudor, 17 B. Mon. .'jS3 (handing pen to the witness); Allison v. Allison, 46 111. 61. Any implication is enough. Nickerson v. Buck, 12 Gush. (Mass.) 342; Moale v. Cutting, 59 Md. 510 (where a premature acknowledgment was in a way ratified). But there must be some word or sign by the testator. Ludlow V. Ludlow, 36 N. J. Eq. 597. '6 In re Austin's Will, 45 Hun, 1; In re Hunt's Will, 110 N. Y. 278, 18 N. E. 106; Denny v. Pinney's Heirs, GO Vt. 524, 12 Atl. 108 (under Vermont ruling, infra, that there must be a publication); Lane v. liane, 95 N. Y. 494 (a mere "Yes" in presence of the witnesses) ; In re Johnson's Estate, 57 Cal. 529. Con- tra, in Baker v. Woodbridge, 66 Barb. 201, the declaration was not full enough; in Re Dale, 56 Hun, 169, 9 N. Y. Supp. 396, the knowledge that the instru- ment was a will, being withheld from the witnesses, defeated it. The declara- tion need not be made at the very moment of witnessing, yet during the same meeting. In re Collins, 5 Redf. Sur. (N. Y.) 20. "Is this your work? Yes,"— held no publication in Larabee v. Ballard, 1 Dem. Sur. (N. Y.) 496. The declaration that the paper is a will may be made before its execution (Errick- son V. Fields, 30 N. J. Eq. 634), or while it is being prepared (Turnure v. Turnure, 37 N. J. Eq. 629). Tlie knowledge of the witnesses as to the nature of instrument does not dispense with publication. Gilbert v. Knox, 52 N. Y. 125. 7 7 Heath v. Cole, 15 Hun, 100. 7 8 Cheatham v. Hatcher, 30 Grat. (Va.) 50 (request by third party). See, for sufficient request, Ehle v. Trustees of Village of Canajoharie, 62 N. Y. 654. 7 8 Peck V. Gary, 27 N. Y. 9; Brady v. McCrosson, 5 Redf. Sur. (N. Y.) 431. 80 Dyer v. Dyer, 87 Ind. 17; Mulligan v. Leonard, 46 Iowa, 692. The "con- scious presence" of the testator is enough. In re Allen's Will, 25 Jtinn. 39. The doubt was suggested by the old form used by scriveners, "in his pres- ence, and at his request." HufC v. Huff, 41 Ga. 696 (io1 N. E. 743. 188 In re Kirkpatrick's Will, 22 N. J. Eq. 463. The canceled clauses were legible. (624) Ch. 7] TITLE BY DEVISE. § 83 etc., to the "will or any part," or to "the devise or any clause thereof." Such are the statutes of Ehode Island, New Hampshire, New Jersey, Delaware, Maryland, Virginia, "West Virginia, South Carolina, Mis- sissippi, Kentucky, Indiana, Michigan, Wisconsin, Iowa ("in whole or in part"), Minnesota, Missouri, Texas, Nebraska, and Washington. The New York chapter on wills is copied substantially in Arkansas, California, the Dakotas, Idaho, Montana, and Utah ; and the statutes in the following states do not use the word "part" or "clause" at all, when directing how a will maybe revoked by burning, tearing, etc., viz. : Maine, Massachusetts, Vermont, Connecticut, Pennsylvania, Ohio, Il- linois, Kansas, Colorado, and Nevada. The Revisions of North Car- olina, Tennessee, and Oregon contain nothing which corresponds to section 6 of the statute of frauds. But, unfortunately, the decisions of the courts do not fall in with this classification. In Massachu- etts, a will was admitted to record without the devises that were stricken out by the testator, though the word "part" or "clause" is not in the statute, on the somewhat fanciful reasoning that the same section allows a will to be revoked by a codicil, which is necessarily only a partial revocation; ^°^ while the language of the courts in some states of the other class, though the point did not fairly arise, seemed rather hostile to any mode of dealing with a will which would let its contenis depend on parol evidence.^"' In an early South Car- olina case it was held that a clause can only be separately revoked if thereby a devise is defeated, but not an exception to a devise, so that by expunging it a devise would be increased, — ^though such would always be the case as to the residuary devise, — and, rather than let the excepting clause be stricken out, the court disregarded the canceling of both, as there was certainly no intent to revoke the one without the other.^"" And in Maryland, where the English doc- trine was recognized as in force, the court would not give effect to the act of the testator in drawing black lines through two names, when the effect would have been to turn the life estates given to other devisees into a fee simple; as the statute speaks only of "any clause," and not of single words, the omission of which would alter 107 Bigelow v. Gillott, 123 Mass. 102. The cancel.^ devises fell into the residuary. i6'8 See infra cases of erasure and interlineation. 160 Pringle v. McPherson, 2 Brev. (S. C.) 270. LAND TITLES V. 1 40 (G25) § So LAND TITLES IN THE UiNITED STATES. [Gh. 7 the estates bestowed."" In Kentucky, in 1840, a partial revocation was sustained, where the testator cut from his will everything but a clause freeing his slaves, adding a written memorandum that he would, when he found time, make a further will.^''^ There are cases in Pennsylvania where the testator changed his will after execution; but, as no attestation by witnesses is needed iu that state, a mere reacknowledgment of the altered paper by the testator, in any manner, is sufficient to give it new life. It was said in that state that a careful erasure of a clause or a name, or of amounts and interlineation of other amounts, in a will, does not oper- ate as a revocation, as it is manifestly not made animo revocandi. If the paper is after such erasure and interlineation reacknowledged by the testator, to the knowledge of two witnesses, or referred to in a codicil, it must go to record in the new shape; otherwise, it seems, in its original form.^'° In New York, New Hampshire, Illi- nois, Minnesota, Tennessee, Massachusetts (alteration, not cancella- tion). North Carolina, Indiana, and Iowa, interlineations and erasures, made after execution, which leave the old text legible, neither defeat the will nor change its effect as it stood at the time when it was executed ; and these changes so made can become parts of the instru- ment only by a formal re-execution, either of the will as changed, or by way of a codicil setting forth the changes. A mere attestation by witnesses, without the testator's own signature, is insufficient.^'^ I'O Esehbach v. Collins, 61 ild. 478. In the Englisb court of appeals and the house of lords, In Swinton v. Bailey, 1 Exch. Div. 110. 4 App. Cas. 70, the cancellation of the words "and her heirs and assigns," turning a fee into a life estate, was sustained as a "partial revocation," reserving, however, the point whether they could have allowed a devise to be thus increased instead of diminished. ifi Brown's Will, 1 B. Men. 50. A rejection of the remaining clause was the only alternative, as the revoked clauses were lost. 172 Dixon's Appeal, 55 Pa. St. 424; In re Tomllnson's Estate, 133 Pa. St. 245, 19 Atl. 482. Here a will written in ink was partially canceled in pencil. Evans' Appeal, 58 Pa. St. 238; Linnard's Appeal, 93 Pa. St. 313. Though a clause may be canceled, a single word cannot be changed by the testatrix after execution. Id. It will, however, be seen hereafter that a will revoked by operation of law cannot be revived in Pennsylvania by anything less than a new signature. 173 Jackson v. HoUoway, 7 Johns. 394; Stevens v. Stevens, 6 Dem. Sur. 202, 3 N. Y. Supp. 131 (where a clause on another paper was pasted over the will) ; (626) t!l'- 7] TITLE BY DEVISE. § 84 Where interlineations or erasures are found in a will, with no indi- cations that they were made after its execution, with a view to change it, or to revoke it in part, the presumption in modern times is that they were made before execution; though it is still the safer prac- tice to make a note of them before the will is signed and attested."* § 84. Implied Revocation. The ecclesiastical courts of England, at an early day, in accord- ance with the teachings of the civil law, held that the will of an unmarried man, as to personalty (and they could not decide as to anything else), is revoked by his subsequent marriage and the birth of children, the two circumstances concurring. The statute of frauds deals only with devises of lands, tenements, and hereditaments, and does not hamper the action of these courts."" But section 6 of that Gardiner v. Gardiner, 65 N. H. 230, 19 Atl. 651 (a devise giving one-fourteenth part was changed by drawing a line through "11" and interlining "12") ; Esch- bach V. Collins, 61 Md. 478; Wolf v. Bollinger, 62 111. 3GS; In re Penniman, 20 Minn. 216 (Gil. 220) (two witnesses insufficient); Stover v. Kendall. 1 Cold. (Tenn.) .j57; AVheeler v. Bent, 7 Pick. (Mass.) 61 (alteration not properly exe- cuted does not defeat the will); Bethell v. Moore: 2 Dev. & B. (N. C.) 3ir,: Wright V. Wright, 5 Ind. 389; In re Prescotfs Will, 4 Redf. Sur. (N. Y.) 178. In Iowa the statute requires changes to be attested like ;in original will. Chief Justice Kent, in the first-quoted case, says: "The obliterations of the will were made, not with an intent to destroy the devise already made, but to enlarge it, by extending it to lands subsequently acquired. The testator, however, failed in making interlineations and corrections which could operate, from not having the amendments attested according to law. The obliterations cannot, therefore, destroy the previous devise, for that was not the testator's intention. The mere act of canceling is nothing, unless it be done animo revocandi. It is therefore very clear, from all the authorities, that the first devise must stand good. The case of Onions v. Tyrer, 1 P. Wms. 344, note 1, and the case of Short V. Smith, 4 East, 419, are decisive." 174 Dyer v. Erving, 2 Dem. Sur. (N. Y.) 160, 182, referring to Wetmore v. Carr3'l, 5 Redf. Sur. (N. Y.) 544; Martin v. King, 72 Ala. 354. 175 Kent in his Commentaries (volume 4, p. .521), quotes the two passa,^■es from Cicero de Oratore to which the law Is traced back,— liber 1, c. 38, as to setting aside a will made under the mistaken belief of a child's death; the other, liber 1, c. 57, on the very point in question, which is expressed, "Testa- menta nimpuntiir agnatione." He refers for it also to 2 Inst. tit. 13, Prooem. He also shows the line of the ecclesiastical decisions, as they came before the common-law courts under writs of prohibition or otherwise, in Overbury v. (627) § 84 LAND TITLES IN THE UNITED STATES. [Ch. 7 Statute clearly forbids the revocation of a written devise of lands, except by a new will or codicil, or by a "writing" executed very nearly like a will, or by burning, canceling, etc.; and, literally construed, it forbids the revocation which is implied from the new ties of marriage and paternity as much as one expressed in spoken words, or in words written and signed, but not lawfully attested. But the reason of a statute for the prevention of frauds and perjuries could not be al- leged against a revocation which rests on facts that are seldom dis- puted, and which, when in dispute, are easily and unmistakably proved. And thus, after a long struggle, first the court of chancery, and at last, in 1771, the court of king's bench, adopted the rule of the civil law and of the ecclesiastical courts, and it became a maxim of the "common law" (so it is denominated in some of our American statutes) that the marriage of the testator and the birth of a child (it may be a posthumous child) are together an implied revocation of a will of real estate.^'"' The other implied revocation takes place when an unmarried woman, whether spinster or widow, who has, as such, made a will, marries. While with a man who, after the execu- tion of the will, becomes both husband and father, the revocation is implied from his new duties, and his presumed new wishes, to provide for those who stand nearest to him, the will of a woman fails, upon her marriage, on the technical ground that she has lost her testa- mentary capacity. She can no longer modify or revoke the will. It is no longer ambulatory, and therefore no longer a "last will." And such an instrument is not revived by the death of the husband, or the dissolution of the marriage.''" The law of implied revocation, as belonging to these two changes in the circumstances of the testa- Overbury, 2 Show. 253, Lugg v. Lugg, 1 Ld. Raym. 441, and Sbeplierd v. Shep- lierd, 5 Term R. 51, note. 176 The first cases are Brown v. Thompson, 1 Eq. Cas. Abr. 413, pt. 15; same case in note to 1 P. Wms. (Cox's Ed.) 304; Parsons v. Lanoe, 1 Ves. Sr. 189; Spraage v. Stone, Amb. 721; Jackson v. Hurloek, 2 Eden, 268; "Welling- ton V. Wellington, 4 Burrows, 21G5 (Lord ilauKtield); finally culminating in Christopher v. Christopher, 4 Burrows, 2182, cited in 1 Dick. 35, which settled the matter. See, also. Doe v. Lancashire, 5 Term R. 49. i'7 4 Kent, Comm. 527. He quotes, for the modern doctrine that the death of the husband does not revive the will, Hodsden v. Lloyd, 2 Brown, Ch. 53J, and Doe v. Staple, 2 Term R. 684. See, also, 1 Jarm. Wills, p. 106, quotina Forse v. Hembling, 4 Coke, Gl, and Cutter v. Layer, 2 P. ^^^ms. 624, (628) Ch. 7] TITLE BY DEVISE. § 84 tor and testatrix, and to no other changes, is recognized in a number of American cases as being tlie common law on the subject.^'* As the revocation of a man's will was based on his presumed intent, it seemed to follow that facts might be shown to rebut the presump- tion. If the will contained a provision for the future wife and chil- dren (as it well might, if made on the eve of marriage), the intention to revoke it could not well be presumed."" The words "provision" and "provided for" became themselves subjects for construction both in England and in this country, where they have been used in statutes. A reversionary interest, whether vested or contingent, which would fall to after-born children after the death of their mother or of any other person, is not a provision; ^^^ and such it certainly is not, in the ordinary sense, though it might show that the prospect of after- born children was not overlooked in the will. It was held in Penn- sylvania, at one time, that appointing a testamentary guardian for after-born children was a provision, but this view was afterwards abandoned.^ ^^ ^Tiether other evidence than the contents of the will can be ad- duced to show that the future wife and her children were in the testator's mind when he published the instrument, and whether this 17 8 Goodsell's Appeal from Probate, 55 Conn. 171, 10 Atl. 557; Brush v. Wil- kins, 4 Johns. Ch. 506; Card v. Alexander, 48 Conn. 504 (marriage alone not enough). Long lapse of time (over 40 years) and changes in family and estate do not bring about a revocation, Warner v. Beach, 4 Gray (Mass.) 162. The adoption of a child is not equivalent to a birth, Davis v. Fogle, 124 Ind. 41, 23 N. E. 860. 179 Kenebel v. Scrafton, 2 East, 530. Revocation, when the wife and chil- dren are unprovided for, and the will disposes of the whole estate. 180 The old case of Lamplugh v. Lamplugh, 1 P. Wms. Ill, in which a re- mainder interest given to a child was said not to be a provision, and which is relied on In the American cases, has no bearing on the revocation of wills. Such cases are: Coudert v. Coudert, 43 N. J. Eq. 407, 5 Atl. 722; Edwards' Appeal, 47 Pa. St. 144; Willard's Estate, 68 Pa. St. 327; Rhodes v. Weldyi 46 Ohio St. 234, 20 N. E. 461. Find a sufficient provision in Stevens v. Ship- pen, 28 N. J. Eq. 487. 181 HoUingsworth's Appeal, 51 Pa. St. 518; Walker v. Hall, 34 Pa. St. 483 (an expression of "utmost confidence" in tlie mother), overruling Jackson v. Jackson, 2 Pa. St. 212. In McKnight v. Read, 1 Whart. (Pa.) 218, there was a provision for the children "that may live at the time of my death." It was held not to reach a posthumous child, and the testator was held to be in- testate as to his share. (G29) § 84 LAND TITLES IN THE UNITED STATES. [Ch. 7 fact, when established, would save the will from revocation, was a vexed question in England,^ ^=' and was only finally settled in the negative by a judgment of the exchequer chamber ^^^ after a section of the ^^ill act (1 Vict. c. 26) had changed the law, and had made marriage alone, under all circumstances, an -act of revocation of any will made by either man or woman."* In recent times this matter has, in most of the states, been regulated by statute, and on very divergent lines; and, even where the courts proceeded without the aid of statute, they diif ered widely from each other. Thus, in Pennsyl- vania and in Michigan the rule has been enlarged, and the birth of children, even to a married man, or to a married woman who had reserved to herself the testamentary power by a deed of trust, was held a revocation "at common law," while in Delaware it is so by statute."^ In the treatment of the American statutes and decisions, it is not easy to keep the case of the man marrying and having chil- dren, and that of the woman simply marrying, apart from each other; and the two subjects have, moreover, been complicated with that of "pretermitted children," born either before or after the execution of a will, but not named in it. Of these we shall speak in another sec- tion.i^^ A number of states have not enacted any statutory law on implied 182 Brady v. Cubitt, 1 Doug. 31 (in favor of outside facts and declarations), doubted in Gibbons v. Gaunt, 4 Ves. 848; Ex parte Earl of Ilehester, 7 Ves. 348. No revocation, if wife and children are provided for by family settle- ment. All now obsolete except in some American states, where the latter rule is established by statute. 183 Marston v. Roe, 8 Adol & E. 14, where Chief Justice Tindal says the ex- clusion of all other facts Is the only course compatible with the statute of frauds. 184 "That every will made by a man or woman shall be revoked by his or her marriage, except a will made in the exercise of a power of appointment, when the real estate thereby appointed would not, in default of such appoint- ment, pass to his or her heir," which is section 18, followed by section 19: "No will shall be revoked by any presumption of an intention on the ground of an alteration in circumstances." Section 18 is substantially copied in the statutes of Virginia (section 2517) and West Virginia (chapter 77, § 6). 18 5 The birth of a posthumous child revokes the devise of a reversion, though the child dies before the reversion falls in. Wilson v. Ott, luO Pa. St. 433, 28 Atl. 848; Laws of Delaware, c. 84, § 11. 186 See section 85 of this chapter. (630) Ch. 7] TITLE BY DEVISE. § §4 revocation, but add to their re-enactment of the sixth section of the statute of frauds words like these: "Nothing herein contained shall prevent the revocation implied by law from subsequent changes in the condition or circumstances of the testator." This has been done in Massachusetts, Maine, Vermont, Michigan, Wisconsin, Minnesota, and Wyoming, while Iowa, New Jersey- (which legislates on preter- mitted children), and Maryland have no statute on the subject.^*' The Iowa courts have worked out their own doctrine, that the birth of a child (including an illegitimate child which is recognized so as to make it an heir) revokes the prior will, though the testator may have had children before, not pro tanto, so as to give to the newly- born child its share, but in toto.^'* The laws which confer the power of devising or conveying land on married women have removed the main ground for letting marriage revoke a woman's will; but the courts differ in working out the re- sult. In Maine, Michigan, New Jersey, and in Illinois (the marriage taking place while that state had no statute on the subject), it was held that with the cause for the law the law itself ceased, and the will was upheld, while in Ehode Island the revocation would depend upon the intention of the testatrix.^^" In Massachusetts and Penn- sylvania, however, the old rule was held to have received the force of a statute, and in the former state a precedent was taken from New York, where a statute expressly enacting the same rule was followed by that which gave to married women testamentary capacity, and the woman's will was held revoked.^°° In Delaware the question is 187 In most of these states the section of the law which disallows revocation otherwise than by "burning, tearing," etc., winds up: "Nothing contained in this section shall prevent the revocation implied by law from subsequent changes in the condition or circumstances of the testator." Vermont simply says, "Except by implication of law." 18 8 Ware v. Wisner, 50 Fed. 310 (the probate does not affect the rights of the afterborn heir); Fallon v. Chidester, 46 Iowa, 588; Carey v. Baughn, iJij Iowa, 540 (the will thus revoked can only be revived by fresh execution) ; Ne- gus V. Negus, 46 Iowa, 487; as to illegitimate child, Milburn v. Milburn (Dec. 8, 1882) 60 Iowa, 411, 14 N. W. 204. 189 In re Hunt's Will, 81 Me. 275, 17 Atl. 68; In re Tuller's Will, 79 111. 99; Noyes v. Southworth, 55 Mich. 173, 20 N. W. 891; Webb v. Jones, 36 N. J. Eq. 163; Miller v. Phillips, 9 R. I. 141. 180 Swan V. Hammond, 138 Mass. 45; Blodgett v. Moore, 141 Mass. 75, 5 N. E. 470; In re Fransen's Will, 26 Pa. St. 202. So, also, in New York, (631) § 84 LAND TITLES IN THE UNITED STATES. [Ch. 7 still open. The only thing decided is that a marriage before the married women's act of 1875 was a revocation, and remained such notwithstanding that act.^°^ In Mississippi it arose when the pow- ers of married women had been but slightly enlarged by statute. The marriage of the testatrix was then held a revocation, but might not be so considered now.^"^ In Connecticut marriage alone annuls a will of either man or woman; also the birth of a child, if no pro- vision is made in the will for such contingency, and this though the testator had children before. In New Jersey a woman's will is re- voked by marriage. The will of a childless testator "becomes void" by the birth of a child.^"' The statutes of Virginia, West Virginia, and Kentucky follow the modern English rule. Marriage avoids a man's as well as a woman's will, unless it be made under a power of ajjpointment, and unless, for want of appointment, the estate would not go to the heirs. In Illinois and in North Carolina, also, marriage alone is a revocation by itself.^"* These statutes, at least in Virginia and Kentucky, are rigidly enforced; and though a will be made on the eve of marriage, with the full consent of the other spouse, it falls to the ground.^"^ But where the will is made in con- nection with a mai-riage settlement, and in part for the benefit of the other spouse, it stands on different ground. In Massachusetts, as well as in Kentucky, such a will has been held to remain unre- voked.^^° There are also cases reported under the statutes of Illi- nois and North Carolina, which, however, present no special points. The will is not revoked pro tanto, so as to satisfy the rights, of the spouse, but in toto.^" Connecticut has enlarged the old rule by re- Brown V. Clark, 77 N. Y. 369 (spinster); In re Kaufman's Will, 131 N. Y. 620, 30 N. E. 242 (widow remanying). 101 Smitti V. Clemson, G Houst. (Del.) 171. 132 Garrett v. Dabney, 27 iliss. 335. 3 93 New Jersey, c. "Wills," 18. 10 4, Kentucky, Gen. St. c. 113, § 9. lasriiaup V. Wooldridge, 14 Grat. (Va.) 332; Ransom v. Connelly (Ky.) 18 S. W. 1020. The reason here assigned for the revocation is the danger of fraud upon marital rights. 196 Osgood v. Bliss, 141 Mass. 474, 6 N. E. 527 (decided under an Indiana statute which makes the marriage of a woman an act of revocation) ; Stewart V. MulhoUand, 88 Ky. 38, 10 S. W. 125. 197 American Board Com'rs v. Nelson, 72 111. 564; Byrd v. Surles, 77 N. C. 435; Me Annuity y. Mc Annuity, 120 IIL 26, 11 N. E. 397 (in accordance with ((;32) Ch. 7] TITLE BY DEVISE. § 84 yoking the will of either man or woman as well upon marriage alone as upon the birth of a child. In South Carolina, if a person making a will shall afterwards marry, and dies, leaving his widow, or leaving issue, unless the will be made in contemplation of marriage, and pro- vide for wife and issue on its face, it stands revoked in toto.^°* This limitation, that wife or issue must survive, is also found in the Ke- vised Statutes of New York, and has, in the main, been copied into the laws of Missouri and Arkansas. In these states it is provided that if, after making a will disposing of the whole estate of the tes- tator, he shall marry, and have issue of his marriage, born either in his lifetime or after his death, and the wife or issue shall survive him, unless such issue be provided for by some settlement or in the will, or an intent be shown therein not to make any provision, ao other evidence against the presumption shall be received, these limitations being in accord with the law as previously held by the courts. The marriage, also, of an unmarried woman revokes her will at once.^"' The "Field Code states" (i. e. California, the Dakotas, Idaho, Montana, and Utah) have adopted these provisions, and en- larged them — First, by leaving out the limitation that the will must dispose of the whole estate; second, by adding a clause that when the wife alone survives the will is revoked, unless she is provided for by marriage contract, or in the will, or an intent be shown to the contrary. This is also the statutory rule in Alabama.^"" In Nevada the will of a man is revoked by marriage, if the wife survives, unless the contrary intention appears on the face of the will (other evidence being excluded), by a provision for her, or otherwise. An unmarried woman's will is revoked by marriage, at all events. After-born chil- dren are otherwise taken care of. That is, unless provided for or mentioned in the will, they get the same share as they would have the English decisions under 1 Vict. c. 26, § 16); Missouri, Rev. St. §§ 88T2, 8873; Arkansas, Dig. §§ 6495, 6496. The Arkansas and Missouri acts leave out the proviso, "or unless an intention be shown not to make any provision." 198 Connecticut, Gen. St. § 542; South Carolina, § 1860, re-enacted from a la'w of 1789. 199 New York, Rev. St. pt 2, c. 6, tit. 1, §§ 47, 48; Missouri, §§ 8871, 8872; Arkansas, §§ 6494, 6495. 200 California, Civ. Code, §§ 1298, 1299; Dakota Territory, Civ. Code, §§708, 709; Alabama, Civ. Code, §§ 1953, 1954 ("unless provided for by gift or settle- ment," etc.). (C33) § 85 LAND TITLES IN THE UNITED STATES. [Ch. 7 gotten in case of intestacy.^"^ In Ohio the rule as to the revocation of a woman's will by marriage has been expressly repealed/"^ while in Indiana it has been made into statute law.^"^ Whether a divorce a vinculo should revoke a will in which the testator's wife is pro- vided for is not so clear, unless it be followed by a remarriage, for it is easy for the testator to change his disposition. It was, however, lately so held in Michigan, in a case where the divorce was preceded by a conveyance of a tract of land to the wife ; such conveyance did not revoke a will made in the wife's favor, but the divorce did.^"* The statutes which give to after-born children simply their shares as in case of intestacy must be treated with those on pretermitted children. They do not address themselves to the probate court. And the Pennsylvania courts, forgetful that this whole doctrine of implied revocation came in originally from the Roman law, through the spiritual courts, in the rejection of wills offered for probate^ in- sist that the will is, by marriage and the birth of children, revoked only as to the property devised or bequeathed, but that the appoint- ment of executors or testamentary guardians, and the power of sale conferred on executors, stand unaffected.^ "^ § 85. Pretermitted Children. Closely connected with revocation by marriage or birth of child is another topic, the total or partial intestacy which, under the laws of many of the states, is worked out for a pretermitted child or grand- child, whether such child be born before or after the execution of the will, whether in the lifetime of the father or after his death. "Chil- dren," says Kent, "are deemed to have sufQcient security in the nat- ural affection of parents that the unlimited power of disposition will not be abused. If, however, the testator has not given the es- tate to a competent devisee, the heir takes, notwithstanding the tes- 201 Nevada, §§ 3009, 3010, 3014. 202 Ohio, Rev. St. § 595S. 203 Vail v. Lindsay, 67 Ind. 528; Indiana, Rev. St. § 25G2. 204 Lansing v. Haynes, 95 Mich. 16, 54 N. W. 699. 206 Ooates v. Hughes, 3 Bin. (Pa.) 498, an old case, but apparently not yet overruled. See, for the contrary effect on powers of sale, section on "Preter- mitted Children." (634) Ch. 7] TITLK BY DEVISE. § 8-") tator may have clearly declared his intention to disinherit him." "" This remark, however, applies as well to collateral heirs as to chil- dren. The estate must descend, when there is no devise. But the doctrine of pretermitted children rests on the supposition that a parent would have left something to each of his children, if he had only thought of him at the time of making his will. Hence the old English custom and phrase of "cutting a child off with a shilling," — that is, showing by a small bequest that he was not for- gotten, — though the law on the subject is mainly of American growth.^"' The narrowest rule on this head, agreeing with that of the English courts in matters of personalty, and handed down in the Eoman law, may be expressed thus : Tf the testator has a child or grandchild living at the time of his death, whom, then and at the time of making his v.'ill, he believes to be dead, or if a child dies out of the state to the testator's knowledge, but leaves issue unknown to the testator, and such child or issue is neither provided for nor excluded, such child or issue will take its intestate share as a "pretermitted child," unless the presumption that the omission arose from mistake is rebutted by parol or other proof. Such is the statute in Kentucky; ^"^ and such would probably be considered the law as to land as well as to personalty, not only in the states which thus provide by statute, but in all others as well, provided the will shows on its face that the testator entertained the mistaken belief as to the death of the child or the failure of issue, but not otherwise.^"' But in many states the rule is much wider, and is expressed thus: "When any testator omits to provide in his will for any of his chil- dren, or for the issue of any deceased child, unless it appears that such omission was intentional, such child, or the issue of such child, must have the same share of the estate of the testator as if he had died intestate." ^^° It is such in Massachusetts, Maine, New Hamp- 206 4 Kent, Comm. p. 525. 207 See section 76 of this chapter, note 40, as to "cutting off." Case v. Young, 3 Minn. 209 (Gil. 140). 208 Kentucliy, Gen. St. c. 113, § 19; St. 1894, § 4842. 209 4 Kent, Comm. p. 521; Gifford v. Dyer, 2 R. I. 99, referring to Campbell v. French, 3 Ves. 321. 210 Massachusetts, c. 127, § 21; Maine, c. 74, § 9; New Hampshire, c. 186, § 10; Montana, Prob. Code, § 4G7; Vermont, § 2242; Califomia, Civ. Code, § 1307; (G35) § 85 LAND TITLES IN THE UNITED STATES. [Ch. 7 shire, Rhode Island, South Carolina, Michigan, Wisconsin, Minnesota, the Dakotas, Idaho, Montana, Missouri, Wyoming, California, Oregon, Washington, and Utah. Nothing is said, in the statutes of these states, how it is to be made to appear that the omission was inten- tional, and the natural import is that it must so appear from the very words of the will.^^^ Where a codicil following the will, or another instrument referred to in the latter, gives a devise or bequest to the child, it cannot be considered as pretermitted.^'^ But in the absence of all reference the statute is imperative, and not only where one child has a devise and another remains unnamed, but where the whole estate is given to the testator's wife, or to a perfect stranger, and where actually there is no ground to assume forgetfulness as the cause, the preter- mitted child comes in; so that when the whole estate is given to strangers, without words excluding the children, the former get noth- ing, the latter everything."^ It seems the better opinion, that the rights of the pretermitted children cannot be set up in opposition to the probate, the will be- ing good at any rate as to the appointment of executors; perhaps, also, as to their powers to sell real estate for the payment of debts."* One Wisconsin decision stands out alone, — a case of a single child Oregon, § 3075; Michigan, § 5810; Wisconsin, § 2287; Minnesota, c. 47, § 23; Dakota Territory, Civ. Code, § 715; Missouri, § 8877. In some of tlie states these provisions are found under the "Laws of Descent"; in others, in the chapter on "Wills." It has, under such a law, been decided, in Rhoton v. Blevin, 99 Cal. 645, 34 Pac. 513, that a will devising everything to the tes- tator's wife, as she would do best for the children, when there were grand- children by deceased children, cut them ofC too. 211 And so held in. all the Western stales having such statutes; perhaps, in all states other than Massachusetts. See below; also, Rhoton v. Blevin, supra; Bums V. Allan, 93 Tenn. 149, 23 S. W. 111. In Prentiss v. Prentiss, 11 Allen, 47, it was held that limiting a life estate to a child who died before the tes- tator was suflicient proof of an intention to give nothing to that child's chil- dren. 212 Gerrish v. Gerrish, 8 Or. 351; Payne v. Payne, 18 Cal. 291. 213 Bradley v. Bradley, 24 Mo. 311; Buroh v. Brown, 46 Mo. 441; Pounds V. Dale, 48 Mo. 270 (where other children were provided for); In re Stevens' Estate, 83 Cal. 322, 23 Pac. 379; Wilson v. Fritts. 32 N. J. Eq. 59. 21-4 Mclntire v. Mclntire, 64 N. H. 609, 15 Atl. 218; Doane v. Lake, 32 Sle. 268; In re Barker's Estate, 5 Wash. 300, 31 Pac. 976. (G3C) Ch. 7] TITLE BY DEVISE. § 85 who had allowed a will in favor of a stranger to go to probato.^^" The pretermitted child should make his claim good against the dev- isees by partition suit or ejectment.^'" In California, in Missouri, and probably in most other states in which the statute reads substantially as above stated, forgetfulness is con- clusively presumed, when a child is not named, no evidence outside of the will being permitted.^ ^^ It has been held in Michigan that some trifling beqtiest, like the family Bible or a choice of books left to a child, is not conclusive as to the intention to exclude, but that the question of intention or forgetfulness may in such case be left to the jury as one of fact.^^* And in Massachusetts outside evi- dence is allowed in all cases, including the intelligence and state of mind of the testator or testatrix, and as well where a living child as where an after-born child has been omitted.-" Where it was al- lowable to aid or to repel the presumption, and the testator, through mistake of law (or, perhaps, of fact), thought the child was provided for, for that reason intentionally omitting him from the will, such child cannot claim as heir under the statute.-^" The mention of a dead child seems to indicate that its children have not been forgotten, but speaking of a grandchild does not amount to a mention of his parent, the testator's child.-^^ After-born children, including those born after the father's death, cannot well be described as forgotten or omitted by mistake. Where a statute does not make the birth of a child the revocation of the previous will, but gives to the child his share as in intestacy, apart from pretermitted children living at the time of the will, it imposes 215 Newman v. Waterman, 63 Wis. 632, 23 N. W. 696. 216 Thomas v. Black, 113 Mo. 66, 20 S. W. 657 (referring to a summary rem- edy given by statute); Gage v. Gage, 29 N. H. 538; Sclineider v. Koester, 54 Mo. 500 (will not to be set aside). 217 In re Garraud's Estate, 35 Cal. 336; Wetherall v. Harris, 51 Mo. 65; Pounds V. Dale, supra. 218 In re Stebbins' Estate, 94 Micb. 304, 54 N. W. 1.59. 219 Wilson V. Fosket, 6 Mete. (Mass.) 400; Converse v. Wales, 4 Allen, 512; Ramsdill v. Wentworth, 101 Mass. 125; Peters v. Siders, 126 Mass. 135 (where the testatrix made her will in favor of the husband shortly before her con- finement); Buckley v. Gerard, 123 Mass. 8. An interest contingent upon the death of another is not a provision. Potter v. Brown, 11 R. I. 232. 220 Hurley v. O'Sullivan, 137 Mass. 86. 221 Guitar v. Gordon, 17 Mo. 408; Gage v. Gage, 29 N. H. 533. (f)37) § 85 LAND TITLES IN THE UNITED STATES. [Ch. 7 the condition which we have already met with, that such child has no provision in the will ; and this is, as in the case of "implied revoca- tion," construed to mean only a present gift, not a future or contin- gent interest, arising after the death of the mother or of another child.^" Many statutes direct that the share of the pretermitted child is to be taken first out of such property as is undisposed of by will, and that the residue is to be made up by the devisees and legatees pro rata; but this would probably be the law, without such a statute, unless the will itself should indicate another rule for making up deficiencies.^^^ The pretermitted child. takes his share in land as heir, under the law of the situs, though the will have been made elsewhere by the resident of a state or country in which the rights of pretermitted children are unknown.^^* The pretermitted children may, it seems, waive their right by written petition to the probate court in which the will is established, and are thereby estopped from setting up their rights as heirs."^ In several states the statute limits the effect of the birth of a child after the publication of the will, or of a pretermission of a living child, in two ways: First, the appointment of executors and all the provisions as to the payment of debts, which would include a power of sale given to the executors for such purpose, remain good at all events; secondly, even as to the share of the pretermitted child the will is only suspended, and should such child die under the age of 21, and without issue, the will revives as to this share also."" 222 Potter V. Brown, 11 R. I. 237; Talbird v. Verdier, 1 Desaus. Eq. (S. C.) 592; Waterman v. Hawkius, 63 Me. 156; Holloman t. Copeland, 10 Ga. 79 (under an act of 1834 declaring intestacy as to share of unprovided after-born child); Bowen v. Hoxie, 137 Mass. 527. And see section on "Implied Revoca- tion,'' note 180; also, Haskins v. Spiller, 1 Dana (Ky.) 170. It has been held in Kentucky, that a testator, having one child, and leaving his whole estate to his wife, indicates an intent to disinherit all his children, and a posthumous child cannot claim its share as pretermitted. Leonard v. Enochs, 92 Ky. 186, 17 S. W. 437. 2 23 The section generally follows that which gives to the pretermitted child its intestate share. 2 24 Byre v. Storer, 37 N. H. 114. 2 25Farnum v. Biyant, 34 N. H. 9. 2 26 Kentucky, Gen. St. c. 113, § 25; St. 1894, § 4848. "But If such after-born child * * * dies under the age of 21 years, unmarried and without issue, (638J ^h- 7] TITLE BY DEVISE. § 86 In Mississippi we find no statute reserving their shares to preter- mitted children, but there is an enactment for the benefit of a pre- termitted wife or husband and raising the same presumption in their favor, a provision wliich would be wholly useless in those states in which the share coming to such consort by descent, dower, or curtesy cannot be diminished by will.'^' § 86. Alteration of Estate. As a devise is never binding on the testator, he may at any mo- ment, by conveyance or incumbrance, lessen or destroy the estate devised, and thus, in effect, revoke the devise, in whole or in part. The same course in case of a legacy of goods or effects is called "ademption," — a word which may conveniently be used as to the conveyance of lands devised. Where a father, or other person standing in loco parentis, after he has published a will containing a bequest to a child, gives to it the thing bequeathed, or things of equal or greater value, this may amount to a "satisfaction" of the legacy, or, if the thing given was of lesser value, a satisfaction pro tanto. There may also be a satisfaction of a devise, either under a statute regarding advancements among children, or, in a few cases, by judicial decision, though the use of this word "satisfaction" in such cases is not quite correct.^^* Under the old law, by which a will carried only such lands as the testator owned at its date, the effect of a conveyance was much broader than merely to take from the devisee that which must needs go to the grantee. If the seisin in fee was broken but for a moment, the land would come back to the testator as after-acquired land, and, as such, could not pass by the will. Thus, where a freehold lease was devised, and thereafter the testator accepted a renewal, the devise was gone. And, as his portion of the estate, or so much thereof as may remain unexpended in his support and education, shall revert to the" devisees. 227 Section 4497. The effect is the same as if an unsatisfactory provision had been made and renounced. 22 8 In Thomas V. Capps, 5 Bush (Ky.) 273, the principle is conceded, under a statute concerning "provisions or advancements," though the case was de- cided otherwise on proof of intent. The present statute (Gen. St. c. 31, § 15; St. 1894, § 1407) speaks of "real or personal property given," etc. (639) § 86 LAND TITLES IN THE UNITED STATES. [Ch. 7 Jarman says, "where the conveyance of a freehold estate has no limited or definite object, or is made for a mistaken or unnecessary purpose, and though its whole effect is instantly to revest the prop- erty in the testator himself, yet the momentary interruption pro- duces a complete and total extinction of the previous devise." ^^° An estate granted by the testator subject to a subsequent event, on the happening of which it would revert, could not go by the previous devise, for the reason given. -^" And some written conveyances would have this effect, though ineffectual to pass the estate; and equity helped to extend this doctrine by treating a contract to sell as an equitable conveyance, thus giving to the heir the right to the purchase money, or in some cases to the residuary devisee, against the devisee of the very land thus contracted for sale.^^^ Both in England, by the statute of 1 Vict. c. 26, and by the statutes of most of the United States, this law has been changed; and, generally speaking, a conveyance revokes a devise only so far as it is effective at the time of the testator's death. But even under the old system there were two exceptions, — partition and mortgage.^ ^^ If the testa- tor was a parcener or tenant in common, and devised his share, and afterwards made partition, either in pais or by judgment of a court, so as to become the owner of a smaller tract in severalty, the devise 229 1 Jarm. Wills, 130; Marwood v. Turner. 3 P. Wms. 163 (renewal of freebold lease). But a lease of fee-simple lands only subverts the devise pro tauto. Hodgkinson v. Wood, Cro. Car. 23; Parker v. Lamb, 3 Brown, Pari. Cas. 12. Limitation in fee to testator. Goodtitle v. Otway, 2 H. Bl. 510; Cave V. Holford, 3 Ves. 650, 7 Brown, Pari. Cas. 593. 230 The American leading case on the old doctrine Is Walton v. Walton, 7 .Johns. Ch. 258. See, also, Bosley v. Wyatt, 14 How. 390; Adams v. Winne, 7 I'aige, 97. 231 "Not only contracts to convey, but inoperative conveyances, will amount to a revocation of a devise, to the extent of the property intended to be af- fected, if there be evidence of an intention to convey, and thereby to revoke will. A bargain and sale without enrollment, feoffment without livery of seisin, a conveyance upon a consideration which happened to fail, or a disabil- ity in the grantee to take, have all been admitted to amount to a revocation, because so intended." 4 Kent, Comm. 528, 529. It is evident that to allow a deed which does not operate as a conveyance, and is not attested by three witnesses, to revoke a written devise, is in open defiance of the statute of wills. 232.1 Kent, Comm. p. 430, notices only the more important exception of mortgages. (G40) Ch. 7] TITLE BY DEVISE. § 86 would attach to that tract; "' and if the testator mortgaged devised lands the devisee might nevertheless claim them, and might even insist on the discharge of the incumbrance out of the personal es- tate.2=* Pennsylvania, Tennessee, Mississippi, and a few other states have not adopted any statute to lessen the force of conveyance or execu- tory contract. In the former state it has been held that the con- version of a fee in lands into a ground rent, or of realty into person- alty, is a complete revocation of a specific devise; and it was rec- ognized that, for want of a reforming statute, the law of the state differs from that of England under the act of 1 Vict., and from that of most American states.^'" In" Tennessee a written contract of sale, enforceable in equity, though possession has not been taken, and nothing has been paid thereon, is sulficient to let the heir into the place of the devisee; '''° but when the title bond is void on its face, for want of a description, or otherwise, and cannot be enforced, it does not adeem the devise.^'^ But neither in these nor in other states can the alteration of estate arising from a conveyance be set up against the probate of the will which contains the revoked de- vises, even though such conveyance should cover the whole es- tate.-" The will takes effect, at any rate, in the appointment of 233 1 Jarm. Wills, p. 135, quoting Luther v. liidby, quoted 3 P. Wms. 170; Brydges v. Duchess of Chandos, 2 Ves. Jr. 417; Barton v. Croxall, Tarn. 164. aa-i 1 Jarm. Wills, 135 et seq., quoting Hall v. Dench, 2 Ch. R. 154; Warner V. Hawes, 3 Brown, Pari. Cas. 21; Tucker v. Thurstan, 17 Ves. 131; Rider v. Wager, 2 P. Wms. 334; including mortgage to devisee, Peach v. Phillips, Dickens, 538; Baxter v. Dyer, 5 Yes. G56; deed of trust for creditors gen- erally, Vernon v. Jones, Freem. Ch. 117; or assignment in bankruptcy. Char- man V. Charman, 14 Ves. 580. 23 5 si;. E. 64. S32 Byrnes v. Baer, 86 N. Y. 210; Chandler's Appeal, 84 Wis. 505. 333 Warner's Appeal, 39 Conn. 253; Talcott v. Talcott, Id. 186; Stedman v. Priest, 103 Mass. 293; Springer v. Congleton, 30 Ga. 976. 334 "The rest of my estate not herein disposed of" was held a specific, not a general, residuary, in Greene v. Dennis, 6 Conn. 293 (quoted 4 Kent, Comm. 542), such as would not absorb land given by a void disposition. Kerr v. 4>oughorty, 79 X. Y. 327 (specific); Riker v. Cornwell, 113 N. Y. 115, 124, 20 N. (f.72j Ch. 7] TITLE BY DEVISE. § 91 § 91. Debts and Legacies. The testator's personal property is the primary — that is, the first — fund out of which his debts must be paid; and this though the debts have been secured by mortgage or other lien in his lifetime.'""' Only where the testator has, by either purchase or descent, become the owner of incumbered land, without rendering himself personal- ly bound for the sum secured, must the land bear its burden in the first instance.''® What is said of debts may, in general, be also said of pecuniary legacies. But, in either case, the rule must yield when the testator by his will directs that either a debt or a legacy shall be paid out of the lands in general, or out of some particular tract, or by the person to whom such land is devised.''' But it is sometimes not so easy to determine whether the will does or does not throw the burden of debts or of legacies on the lands or on any particular part thereof. The well-known rule on the order in which the deficit in an estate is to be met is this: First, personalty not bequeathed must be taken; next, personalty included in a general or residuary be- quest; third, lands not devised; fourth, lands which are devised by way of residuary; fifth, specific legacies; last, lands specifically de- vised. A pecuniary legacy (unless it is made demonstrative, i. e. charged on a certain fund) can never come into conflict with either a specific bequest or specific devise; "* but only descended land can E. 602 (general). The differences are explained in Springett v. Jenings, 6 Ch. App. 333. 836 Duke of Ancaster v. Mayer, 1 Brawn, Ch. 454, 1 White & T. Lead. Cas. Bq. p. 505. The syllabus reads: "Personal estate, not specifically bequeathed, is primarily liable to the payment of debts of a testator, unless it be exempted by express words or necessary implication." 336 A fortiori, judgments, though they are a lien on land, must be paid out of the personalty. Hoover v. Hoover, 5 Pa. St. 351; Mason's Appeal, 89 Pa. St. 402. 33 7 Taylor v. Dodd, 58 N. Y. 385; Kelsey v. Western, 2 N. Y. 500. The charging of legacies on land is made a question of intent. Hogan v. Kava- naugh, 138 N. Y. 417, 34 N. B. 292. In Johnson v. Poulson, 32 N. J. Eq. 390, the intent was found not to charge the land. 338 In re Bennett's Estate, 148 Pa. St 139, 23 Atl. 1108 flands devised spe- cifically cannot be taken, though personalty deficient); In re Duvall's Estate, 146 Pa. St. 176, 23 Atl. 231 (by investing the personalty after will made, or spending it, the testator adeems the legacies), LAND TITLES V. 1 — 43 (673) § 91 LAND TITLES IN THE UNITED STATES. [Ch. 7 be affected, or such land as is included in the residuary, and this only upon the ground that the very words which denote the gift of the land as residuary charge it with the legacy. The testator says: Whatever' is left of my estate, real or personal, after debts and legacies are paid, I give to the residuary devisee.' ^° The inference is much stronger when the lands not specifically devised and the personalty not specifically bequeathed are thrown together into one mass, as it then becomes clear that every part of that mass shall be liable to those charges to which any other part is subject.'*" Hence, a general devise of "all my lands" stands upon \eix different grounds. Such a devise is, for this purpose, specific. If I have three houses, Nos. 1, 2, and 3, a devise of "all my lands" is the same as a devise of the three houses by number, and would be defeated if one of the three houses had to be sold in order to raise the money with which to pay a pecuniary bequest.'*^ In some cases, legacies have been thrown upon the residuary lands, not because the personalty was ta- sufficient, but because its totality had been given in such precise words as to show that the payment of legacies or even of debts out of the same would be contrary to the testator's intention.'*^ Where the executor is given a power of sale over the lands, it is, unless a necessity for such a course otherwise appears on the face @f the will, a strong indication that the land is at least a secondary, if not a primary, fund for the payment of legacies.'*' On the other land, where land is ordered by the will to be sold, it does not there- fey become the first fund to pay debts, or more liable for the satis- 339 Reid V. CoiTigan, 143 lU. 402, 32 N. E. 387 (residue of real estate applied); Mirehouse v. Scaife, 2 Mylne & C. 695 (assets marslialed in favor of pecuniai'y fegacy against residuary devise); Funk v. Eggleston, 92 111. 515 ("after pay- ment of debts and legacies" is considered both charge and lien); American eannel Coal Co. v. Clemens, 132 Ind. 163, 31 N. E. 786 (legacies given first, residue is what is left after paying them); In re Blake's Estate, 134 Pa. St. 240, 19 Atl. 850; same point, Lewis v. Darling, 16 How. 1. 340 Corwine v. Corwine, 24 N. J. Eq. 579 (all m one mass, the general rule stated as above); Bench v. Biles, 4 iladd. 187; First Baptist Church v. Syms, 51 N. J. Eq. 363, 28 Atl. 461; Scott v. Stebbins, 91 N. Y. 608. 311 In re Jamieson (R. I.) 28 Atl. 333. 342 Keid v. Corrigan, 143 111. 402, 32 N. E. 387 ("all my personal property" was given to a legatee, clearly showing that it was to be undiminished). 4'ompare In re Jamieson (R. I.) 28 Atl. 333. i-13 Hoyt V. Hoyt, 85 N. Y. 142; Le Fevre v. Toole, 84 N. Y. 95. 074) Ch. 7] TITLE BY DEVISE. § 91 faction of legacies, unless an intent appears to convert it into per- sonalty for all purposes, or for that purpose. Wlien the testator di- rects his land (or some one tract) to be sold, and the proceeds to be paid over to one or more devisees, he does not thereby lower the priv- ileged position of such land.^^* A provision that the lands in the residuary are to be divided after the death of the testator, or other- wise dealt with, does not exclude such legacies as would fall upon it otherwise, unless the language should clearly indicate that a divi- sion in kind alone was meant.^*" The residuary, iirst of personalty, then of lands, is a primary fund for the payment of debts, even for those which are secured by mort- gage upon other lands.^*" Upon the principle that the whole will must be constrned together, a general or even a specific devise of land has sometimes been charged with a legacy, when the will upon its face absolutely exhausts the personal estate which the testator has or may have, and the bequest, unless it can be so charged, would be nugatory.^*' When the residuary devise of land goes to several, including a lega- tee whose bequest is chargeable upon it, it is taken out first, so as to throw a proper share thereof on that part of the devise which goes to such legatee.^** Note on the Use of Extrinsic Evidence in the Interpretation of Wills. A devisee takes his title under a written instrument, the purport of which can- not be changed by oral evidence, or, in fact, by any evidence, oral or written. There are, however, many cases in which such evidence must be admitted to show what the thing is which the testator meant to give, e. g. what the bound- aries of a tract are wliich he denotes by general words, such as "my home place"; and who the person is whom he denotes otherwise than by a full name. And there are many cases of ambiguity which may be cleared up by 314 In re Pyott's Estate, 160 Pa. St. 4il, 28 Atl. 921. And a direction to invest proceeds of lands protects it from legacies. Bevan v. Cooper, 72 N. Y. 317. 345 Lapham v. Clapp, 10 R. I. 543. 346 Gould V. Winthrop, 5 R. I. 319. 347 Goddard v. Pomeroy, 36 Barb. 546 (a case often afterwards doubted and distinguished); Kalbfleisch v. Kalbfleisch, 67 N. Y. 354 (context of whole will may show the precedence of legacies) ; Carper v. Crowl, 149 HI. 465, 36 N. E. 1040. 348 Klnkele v. Wilson (Com. PI.) 29 N. Y. Supp 27. (075) § 91 LAND TITLES IN THE UNITED STATES. [Cll. 7 Showing the circumstances which surrounded the testator when he made his will. Like doubts, requiring like outside proof, may arise in construing deeds, to which reference has been made in the chapter on "Boundary and Descrip- tion," sections on Certainty and on Ambiguity, and in the chapter on "THle by Private Grant," section 50; but, for obvious reasons, the difficulty arises much oftener in the interpretation of wills' than of deeds. Having transcribed in notes 89 and 90, chapter 2, § 7, the fifth and seventh of Vice Chancellor Wigram's propositions, we here subjoin the other five. I. A testator is always presumed to use the words In which he expresses himself according to their strict and primary acceptation, unless from the con- text of the will it appears that he has used them in a diflferent sense; in which ease the sense in which he appears to have used them will be the sense in which they are to be construed. II. Where there is nothing in the context of a will from which it Is apparent that a testator has used the words in which he has expressed himself in any other than their strict and primary sense,* and where his words, so interpreted, are sensible with reference to extrinsic circumstances, it is an in- flexible rule of construction that the words of the will shall be interpreted in their strict and primary sense, and in no other, although they may be capable of some other and secondary interpretation, and although the most conclusive evidence of intention to use them in such popular or secondary sense be ten- dered. III. (like II. to *) but his words so interpreted are insensible with refer- ence to extrinsic circumstances, a court of law may look into the extrinsic circumstances of the case, to see whether the meaning of the words be sen- sible in any popular or secondary sense, of which, with reference to these cir- cumstances, they are capable. IV. Where the characters in which a will is written are difficult to be de- ciphered, or the language of the will is not understood by the court, the evi- dence of persons skilled in deciphering writing, or who understand the lan- guage in which the will is written, is admissible to declare what the characters are, or to inform the court of the proper meaning of the words. VI. Where the words of a will, aided by evidence of the material facts of the case, are insufficient to determine the testator's meaning, no evidence will be admissible to prove what the testator intended, and the will (except in certain special cases; see proposition VII.) will be void for uncertainty.' Mr. Wigram proceeds to illustrate his prepositions. We shall give an ab- stract of the cases as far as they can bear on devises of real estate. On the first proposition. First part, Hicks v. Sallitt, 3 De Gex, M. & G. 782; Grey v. Pearson, 6 H. L. Cas. 106. On the second part, Mostyn v. Mostyn, 5 H. L. Cas. 155; Doe v. Earles, 15 ilees. & W. 450. Meaning of "relations, " Green v. Howard, 1 Brown, Ch. 31; "cousins," Stoddart v. Ndson, 6 De Gex, II. & G. OS; "family," In re Terry's Will, 19 Beav. 580; "and her family," as including husband, McLeroth v. Bacon, 5 Ves. inO; "representa- tives" to mean •'descendants," Stytli v. Monro, 6 Sim. 49; or "next of kin," (G76) Ch. 7] TITLE BY DEVISE. § 91 Walter v. Makin, Id. 149; "all" to mean "any," Doe v. Gallini, 5 Barn. & Adol. 621; legacy and bequest extended to lands, Whicker v. Hume, 14 Beav. 518. In Dent v. Pepys, 6 Madd. 350, in obedience to context, one set of devises was substituted for another. On the second proposition. Cartwright v. Vawdry, 5 Ves. 530, and many other cases down to Pratt v. Mathew, 22 Beav. 328, "child" means legitimate child, unless there is absolute necessity for including an illegitimate child; but it includes a child en ventre sa mere. Clarke v. Clarke, 2 H. Bl. 390; Royle Y. Hamilton, 4 Yes. 437; Crook v. Whitley, 7 De Gex, M. & G. 490. The words "son," "child," "grandchild," to be taken literally, unless the will would thereby become insensible. Beaumont v. Fell, 2 P. Wms. 140, where Gertrude Yardley was given a legacy made to "Catherine Earnley," no person of the latter name being known. Contra, Delmare v. Robello, 1 Ves. Jr. 412, 3 Brown, Ch. 446 (where a bequest to the children of "my two sisters Reyne and Esti-ella" was not changed to Rebecca and Estrella, though Reyne had no children, being a nun, and Rebecca had); Hampshire v. Peirce, 2 Ves. Sr. 210 (legacy to four children of A., and a "further" legacy to the children of A.; evidence to restrict the latter to the four children by second husband disal- lowed) ; Strode v. Russel, 2 Vern. 621, 2 Atk. 374 (evidence not admitted that "my lands," etc., "out of settlement," were not meant to embrace a reversion of a settled estate); Doe v. Oxenden, 3 Taunt. 147 ("my estate of Ashton," evidence that testator had an estate, of which part only was at Ashton, which he called his "Ashton Estate," and of which he kept an account by that name, held insuflBcient to carry the part not at Ashton), affirmed in house of lords (4 Dow, 65), followed in an equally strong case (Stone v. Greening, 13 Sim. 390), where "my freehold messuage, farm, &c.," was held to exclude rigidly all parcels held on long terms intermixed with it. Contra, Anstee v. Nelms, 1 Hurl. & N. 225; Doe v. Westlake, 4 Barn. & Aid. 57, where, under a devise to "Matthew W., my brother, and to Simon W., my brother's son," evidence in favor of Simon, son of another brother, was rejected; Mounsey v. Blamire, 4 Russ. 384, stranger cannot claim a legacy "to my heir" by proving that the testatrix called him so. In Eraser v. Pigott, 1 Younge, 354, where bequests were made to "children of William and John," whether born in wedlock or not, and "a residue to their children equally," the illegitimate children of the son, who had also legitimate children, should take no part with the latter. Doe V. Bower. 3 Barn. & Adol. 453, devise of "messuages at, in, or near street called 'Sing Hill,' which I lately purchased from N.'s ti'ustees,"— there being four houses on a closely-adjoining street, and two at a distance of 370 yards from Sing Hill, but bought from N.'s trustees,— the two were excluded. In AVilson V. Squire. 1 Younge & C. Ch. 654, bequests to an orphan society "in the City Road," in a name not borne by any, given to the society, among two claimants of different names, having its place of working In the City Road. In Richardson v. Watson, 4 Barn. & Adol. 799, evidence was rejected by which two closes or inclosui'es were to pass under the devise of a close. lu lUingworth v. Cooke, 9 Hare, 37, a gift to "all my grandchildren, with the (677) § 91 LAND TITI.ES IN THE UNITED STATES. [Oh. 7 exception of one," was sustained, though tlie one was not named. Attorney General v. Grote, 2 Russ. & M. 699, is quoted for its strong language on the proposition. The words of Vice Chancellor Knight Bruce in Bird v. Lucliie, 8 Hare, 30G, are also quoted for it: "No man is bound to make a will in such a manner as to deserve approbation from the prudent, the wise, or the good. A testator is permitted to be capricious, and to conceal the circumstances and the motives by which he has been actuated." Contra,— i. e. for allowing words to be deflected from their natural sense,— he quotes Druce v. Denison, 6 Ves. 385, aijproved in 2 Sugd. Powers, p. 349. The cases quoted as to the facts which will refer the words "in default of issue," or "in the event of dying without issue," to the first talier's death, beginning with Wellington v. Wellington, 4 Burrows, 21G5 ("Item. In default of issue of my own body, I give," etc.; the will being that of an unmarried man), — are now in most of our states of little importance, as their laws, like the English will act of 1837, regularly give this meaning to these words. On his third proposition, Mr. Wigram, after noting that the word "insen- sible," used by him, is a technical word, used in many of the reported oases, refers to Wilkinson v. Adam, 1 Ves. & B. 422 (which is rather the other way); Tytler v. Dalrymple, 2 Mer. 419; and other cases down to Pratt v. Mathew, 22 Beav. 328 ("child" was applied to illegitimate offspring, there being no other); Steede v. Berrier, 1 Freem. 292, 477 (where "son" had to mean a more distant descendant); Napier v. Napier, 1 Sim. 28 ("my estate," when there was only estate subject to the testator's power); Gill v. Shelley, 2 Russ. & M. 336 (the defendant was the wife of the poet Shelley), (where "the chil- dren of M. G." were made to include a child born before marriage, as M. G. was known to have only one child born in wedlock). The following American cases may be quoted under this head: Dannelli v. Dannelli's Adm'r, 4 Bush, .'">2 (under a devise to "my brother G.'s daughter," his only daughter will take, though her legitimacy is not established); Warner v. Miltenberger's Lessee, 21 Md. 269 (it appeared by facts outside that "lot" meant a large tract, not a town lot). A charitable corporation can take by a designation which identi- fies It, though not its corporate name, on proof that it alone answers the de- scription. Cromie's Heirs v. Louisville Orphans' Home Soc, 3 Bush, 365; 1 Greenl. Bv. § 289; Minot v. Boston Asylum & Farm School, 7 Mete. (Mass.) 416; in fact, there is httle, if any, dispute on this point. On his fourth proposition, he quotes, as to "deciphering," Masters v. Mas- ters, 1 P. Wms. 421; Norman v. Morrell, 4 Ves. 769; Goblet v. Beechey, 2 Russ. & M. 624 (which finally went against the extrinsic evidence). And in Remon v. Hayward, 2 Adol. & El. 606, note a, the court decided the correct reading, and refused to let it go to the jury. In Langston v. Langston, 2 Clark & F. 240, Lord Brougham, in the house of lords, said that he had looked at the rough draft of a will, to get at the sense of an obscure passage. He ad- mitted that he had no right as a judge to do so; but he might from the en- grossed and executed will infer what mistake had been made in copying. For the right to. have foreign or technical words explained bj- experts, he (078) Ch. 7] TITLE BY DEVISE. § 91 ciuotGs Attorney General v. Cast-Plate Glass Co., 1 Anstr. 39; Goblet v. Beechey, supra; Richardson v. Watson, 4 Barn. & Adol. 787; and cases on royal charters, mining, and other business contracts. Doe v. Hiscocks, 5 Mees. & W. 363, allows proof that certain persons were called by the testa- tor by nicknames. Kell v. Charmer, 23 Beav. 195, that he used a certain cipher for sums of money. In Goblet v. Beechey, which is reported in full in the appendix, the word or part of word "mod," with a dot or small mark behind it, in the will of a sculptor, was unintelligible; and, while the lower judge (Vice Chancellor Shad well) gave weight to the testimony of experts as to a sculptor's tools and models, even he wholly rejected the testimony of an attesting witness who deposed that she read the will out to the testator, and, asking him for the meaning of "mod," was told he meant "models." To admit such testimony, said the vice chancellor, would be to repeal the statute of frauds. Of the fifth proposition (which is involved in the second and third) he puts as example 1, m here the person or thing intended is the point of contention, the court is simply to declare what person or thing is described in the will. It applies to all cases where the person or thing is correctly denoted, but evi- dence is needed to identify it. Example 2 is more difficult. The description in the will is incorrect; then "evidence that a subject having such marks upon it exists" is admitted, that the court may determine (which it cannot do with- out evidence) whether such subject, though incorrectly described, was intended. Thus, a nickname is a sufficient description of the legatee or devisee (Baylis v. Attorney General, 2 Atk. 239; Doe v. Earl of Jersey, 3 Bam. & C. 870); or a name gained by reputation (Queen's College v. Sutton, 12 Sim- 521); or a partially false description, as "my freehold houses," when he has only leasehold houses (Doe v. Lord Cranstoun, 7 Mees. & W. 1); but not where the devisee has knowingly assumed a false character (Keimell v. Abbott, 4 Ves. 802). Example 3. "A knowledge of the circumstances by which a tes- tator was surrounded at the time of making his will, the situation in which he stood with respect to the objects to which his will refers, and, generally, a knowledge of the circumstances of the testator, his family and affairs, may be necessary for the same purpose." Thus, he says a testator having none but an illegitimate child must mean such when he says "my child"; being acquainted with only one of two persons of like name, must mean him in a devise by that name,— and quotes Doe v. Langton, 2 Bam. & Adol. 680, where the history of the family of a manor and of a new purchase of lands was admitted to show whether the latter were meant by the "lands, etc., thereunto belonging," an often unmeaning phrase. The court in such cases must place itself in the situation of the testator who made it. Example 4, not so clear as the preceding, is where the quantity of interest is in dispute. Lowe v. Lord Huntingtower, 4 Kuss. 532 (opinion of king's bench judges on submission by chancellor), facts as to age, number of children, etc., were admitted to determine whether the testator meant to devise a fee simple. In Gall v. Esdaile, 8 Bing. 323, testator's having no lands beyond those spec'ifically (679) § 91 LAND TITLES IN THE U.NITED STATES. [Ch. 7 devised was admitted for tbe same purpose. The proposition may be applied to all written instruments. Goodinge v. Goodinge, 1 "Ves. Sr. 231; Jeacock v. ralkener, 1 Brown, Ch. 295; Mackell v. Winter, 3 Ves. 540; Blundell v. (Jlad- stone, 11 Sim. 486; Lane v. Earl Stanhope, 6 Term R. 345; Doe v. Huthwaite, 3 Barn. & Aid. 632; Goodright v. Marquis of Downshire, 2 Bos. & P. 608; Wild's Case, 6 Coke, 16; Smith v. Doe, 2 Brod. & B. 553 (under a deed of settlement). In the will ease of Doe v. Martin, 1 Nev. & M. 524, it is said: "Facts and cir- cumstances relating to the subject of the devise are admissible; such as posses- sion by the testator, the mode of acquiring, etc., and the state of the testator's property." Such evidence can never be received to alter or to control the sense. Guy v. Shai-p, 1 Jlylne & K. 602. Of the American cases for this proposition, the most interesting is perhaps that of Hinckley v. Thatcher, 139 Mass. 4TT, 1 N. E. 840, where the testator left the bulk of his estate in equal parts to the agents of home and foreign missions to aid in propagating the religion of Jesus Christ. There being many missionary bodies answering the description, the court heard proof as to the religious conduct (not as to the opinions) of the testator, and found him "confirmed" in the Episcopal Church, while usually attending the Congregational Avorship. (And see cases quoted on the admissibility of such proof from Massachusetts, Maine, New Hampshire, "Vermont, and Connecticut.) Proof was also considered that he was only acquainted with the Congregational mission societies, and the residue was given to the A. B. C. F. M. and the Massachvisett.s Home Missionary Society. In Gilmer v. Stone, 120 U. S. 586, 7 Sup. Ct. 689, a devise of the estate, one-half to the home, one-half to the foreign missions, was given the societies for these purposes of the Presbyterian Church in the United States, to which church the testator belonged; the court quoting from Wigram that the reader of an instrument ought to have the same light as the writer had. In House of Mercy v. Institution of Mercy, 3 Bush, 365, the court also went into the tes- tator's religious views and feelings. See, to the contrary. Shore v. Wilson (House of Lords) 9 Clark & F. 355, on a deed founding a charity. In Tilton v. American Bible Soc, 60 N. H. 377, a legacy to the "Bible Society" was given to the one to which contributions were taken up at the church to which the testator belonged. As to conditions and quantity of the estate being illus- trated by outside facts, — the age of testator and devisee, etc., — see Washbon V. Cope, 67 Hun, 272, 22 N. Y. Supp. 241. In Re Miner, 72 Hun, 568, 23 N. Y. Supp. 537, in order to construe a devise with such liberality as befits a devise to children, proof was admitted that the beneficiaries, though not of the tes- tator's blood, had been raised by him as his children. In SuUivan v. Parker, 113 N. C. 301, 18 S. E. 347, extrinsic evidence was let in to show that the children spoken of by the will embraced illegitimates. On his sixth proposition, Mr. Wigram quotes Lord Brougham's remarks In Doe V. Perratt (House of Lords) 6 Man. & G. 359, that a devise should not, without absolute necessity, be held void for uncertainty: "The books are full of cases where every shift, if I may so speak, has been resorted to, rather than hold the gift void for uncertainty." Lord Cowper in Strode v. Russel, 2 Vern. (680) Ch. 7] TITLE BY DEVISE. § 91 620, on the supposed authoi-ity of Cheyney's Case, 5 Coke, 68, said tbat, where the words of the will stood in equilibrio, evidence should in all cases be read to explain them. To like effect, Hampshire v. Peirce, 2 Ves. Sr. 216; but this Is disapproved by Lord Hardwicke in Ulrich v. Litchfield, 2 Atk. 374. If the testator's words, aided by the light of surrounding circumstances, do not express an intention ascribed to him, evidence to make out that intention is inadmissible to fill a blank. Castledon v. Turner, 3 Atk. 257; to insert a devise omitted by mistake. Lady Newburgh's Case, 5 Madd. 364; to prove what was intended by an unintelligible word, Goblet v. Beechey, supra; to prove a thing different from that named was intended, Selwood v. Mildmay, 3 Ves. 306; to change the person described, Delmare v. Robello and Beau- mont v. Fell, supra; to reconcile conflicting clauses, Ulrich v. Litchfield, 2 Atk. 374; to show to which of two antecedents a pronoun refers. Lord Walpole v. Earl of Cholmondeley, 7 Term R. 138; to explain or alter the estate, Cheyney's Case, supra; to construe the will from the instructions given, Bemasconi v. At- kinson, 10 Hare, 348; to show what is meant by "relations," Green v. Howard, 1 Brown, Ch. 31; to turn words of limitation into words of purchase, Brett v. Rigden, Plow. 340; and generally to prove intention. Doe v. Kett, 4 Term R. 601 (devisee dead); Kirk v. Eddowes, 3 Hare, 509. Where a will, after devising his estate in one way, disposed of it otherwise "if certain contingent property and effects in expectancy should fall in and become vested in my children," and there were no such contingent interests, the court in King v. Badeley, 3 Mylne & K. 417, would not admit evidence to show that the tes- tator expected some incidents to happen which did happen. So, also, Preedy V. Holtom, 4 Adol. & El. 76. Mr. Wigram concludes that extrinsic evidence to prove intention cannot be admitted in the case supposed by Lord Cowper, and quotes Lords Alvanley and Eldon to the position that, to act upon extrinsic facts, their effect must be "irresistible to the judge's mind,"— "indi- vidual belief" must not govern, but "judicial persuasion." The seventh proposition brings up the broad subject of latent and patent ambiguities. He quotes first a case of Reynolds v. Whelan, 16 Law J. Ch. 434, where a testator had in his employ on a farm two men of the name Wil- liam Reynolds, and the question arose for which of two a legacy "to William Reynolds, another of my farming men," was intended. Declarations in favor of "Old Will," made to a witness, were admitted. In Selwood v. Mildmay, 3 Ves. 301".. the testator having, in a will dated in 1796, left to his wife a sum in the 4 per cents., when he owned none,— having sold them out in 1792, and bought long annuities with the proceeds,— the mistake was corrected on the testimony of the draftsman that he had copied the bequest from an old will, and had not been informed by testator of the conversion. This decision is justly drawn in question by Vice Chancellor Wigram. In Doe v. Huthwaite, 3 Barn. & Aid. 632, land was devised in remainder to "S. H., second son of I. H., for life, with remainder to his sons and daughters in tail, and, in default, etc., to I. H., third son," etc. In fact, I. H. was the second son, S. H. the third son, of I. H., the elder. Neither claimant being rightly described, the jury (681) § 91 LAND TITLES IN THE UNITED STATES. [Ch. 7 was allowed to hear evidence on the state of the family and other circum- stances, and to decide thereon whether S. H. or the second son was meant to take first In Cheyney's Case, 5 Coke, 68, the testator, having two sons, both haptized John, the elder having been long absent, and thought to be dead, devised his land generally to his son John. The younger was allowed to prove the father's intent by witnesses. No harm, it was said, can arise, as a purchaser should "inquire which John the testator intended." Followed by dictum in Counden v. Gierke, Hob. 32; and in Jones v. Newman, 1 AVm. Bl. 60, on a devise to John Oluer, there being two of that name, father and son, evidence was held admissible to show that the son was meant. In Thomas v. Thomas, 6 Term R. 671, a devise was made "to my granddaughter, M. T., at L., in M."; there was a granddaughter named E. E. at that place, and one M. T., a great granddaughter, lived elsewhere. Evidence on behalf of the for- mer was admitted, with the approval of Lord Kenyon and Lawrence J. (as neither M. T. nor E. E. answered the description) that the will was read lo the testator, and that he noticed the mistake, but thought the statement of the residence would set it right; but the juiy, wiser than the judges, disbe- lieved the parol evidence. In Price v. Page, 4 Ves. 680, a legacy was given to Price, son of — Price. The only claimant was allowed to prove, not only his relation to the testator, but also the remark of the latter that he would leave a legacy to this party. In Doe v. Westlake, supra, declarations of the testator as to which of two men of the same name was meant were ruled out only because the will itself seemed to identify one. In StiU v. Hoste, 3 Madd. 192, the draftsman was allowed to testify that a bequest to "Sophia S., daughter of Peter S.," whose only two daughters were Selma and Mary, was intended for Selma. In Miller v. Travers, before the vice chancellor fl830), the devise was of all freehold estates, etc., in the county of Limerick and in the city of Limerick. The testator owned some real estate in the city, but none in the county of Limerick; but a good deal in the county of Clare, in issue was directed to try whether the latter was intended. Vice Chancellor Wigiam remarks that the cases decided down to 1831, the date of his first edition (we have omitted some), which discuss direct proof of intention, are Qot easily reconciled; and he is right. He properly disapproves some of these decisions as upsetting the statute of frauds, which clearly means that the writing which it requires shall of itself express the intention of the testator (pi. 158), and he says (pi. 168) that in these decisions "a general principle has been sacrificed to meet the hardship of particular cases." Miller v. Travers was, however, reversed on appeal (8 Bing. 244) by a strong court (chancellor, chief justice of C. B., and chief baron). The opinion shows that only a latent ambiguity can be helped out, and that the words "in the county of Limerick" have nothing ambiguous in them. Even the extrinsic evidence that there was no property in that county produces no ambiguity. Most of the older cases are reviewed, including some not mentioned above. A blank for the devisee, according to one of Lord Bacon's rules, referred to in the next following case, makes a patent ambiguity, and cannot be "holpen out." It indicates that the (682) ^'h. 7] TITLE BY DEVISE. § 91 testator had not made up his mind when the will was written. In Doe v. Needs, 2 Mees. & W. 129, there was a devise to George Gord, son of George Gord; one to George Gord, son of John Gord; a third to George Gord, son of Gord. The court of exchequer held that tlie mention of the two Georges did not raise a patent ambiguity, and allowed the testator's declarations to be proved, that the third devise should go to George, son of George. The descrip- tion fitted either of them equally. Doe v. Morgan, 1 Cromp. & M. i:35, was said to be fully in point Doe v. Hiscocks, 5 Mees. & W. 303, arose from a devise to "John H., eldest son of said John H.," where the eldest son's name was Simon, and John was a younger son, uut eldest by a second wife. The iudge at nisi prius having admitted evidence of the testator's instructions, the ?ourt of exchequer granted a new ti'ial, holding that only the surrounding cir- cumstances could be proved, and if these were insufficient to solve the doubts the heir at law must prevail, the devise being void for uncertainty. In Ben- nett V. Marshall, 2 Kay & J. 740, the devise was to "my second cousin, "Wil- liam Marshall." The testator had two first cousins once removed,— one, Wil- liam Marshall, simpliciter; the other, William J. R. B. Marshall. The court (Vice Chancellor Wood), upon parol evidence of intention, decided for the latter. Mr. Wigram dislikes the decision. Bradshaw v. Bradshaw, 2 Younge & C. 72, is a very similar case. Wigram's little book, from its first appearance in 1831, became a classic, and his own views are quoted as of the highest authority. On his last and most important proposition, long after his death, a case came before the house of lords (Charter v. Charter, L. R. 7 H. L. 3G4) where the testator had a son, William Forster Charter, always called William, who lived away from home, and a son named Charles, living in the family. A devise and the execution of the estate were given to Forster, and he was to pay a yearly sum to the widow "as long as he should live in the house." Evidence of intention was given in favor of the latter. Was it admissible? Unfortunately, on this ques- tion, the law lords present were divided, two against two; and the question in England is still open. Proof of the testator's expressions of intent has been more consistently ruled out in the United States; e. g. Wright v. Hicks, 12 Ga. 155, 15 Ga. 160; Magee v. McNiel, 90 Am. Dec. 354; Couch v. East- ham, 27 W. Va. 796. And the meaning of ambiguous words cannot be shown by the draftsman (McAllister v. Tate, 11 Rich. 509); nor by conversations of the testator (Jones v. McKee, 3 Pa. St. 496). It is hardly necessary to refer to cases like McCampbell v. McCampbell, 5 Litt. (Ky.) 92, or Stoner & BaiT's Appeal, 2 Pa. St. 428, where the conversations offered in proof plainly contra- dicted the will. The American courts have also been slower, as between two objects defectively named in a devise, to hold that the description applies equally to both. House of Mercy v. Institution of Mercy, 3 Bush, 365. But where it did so apply, e. g. where a father in his will (Brownfield v. Brown- Qeld, 12 Pa. St. 136) ran the share of one son "easterly to a post corner,"* and it appeared that there were two such corners, evidence of his affection to- wards the son was admitted with a view of running the line to the further (CS3) § 91 LAND TITLES IN THE UNITED STATES. [Ch. 7 comer. In Hill v. Felton, 47 Ga, 455, the instructions to the scrivener were not admitted, upon the ground that the extrinsic circumstances shown had not raised a latent ambiguity. To like effect is Barnes v. Simms, 5 Ired. Bq. 392. That the testator did not own all of the ground covered by a lawful, though mformal, description, as in Bradley v. Eees, 113 111. 327, is no ground for rejecting it, and introduces no ambiguity. In a very old American case (Shermer v. Shermer's Ex'rs, 1 Wash. Va. 266), declarations of the testator were admitted that he intended his wife's family to have half his estate, to make her nonexecution of a power of disposal given to her over such moiety inure to her heirs; but the case would hardly be followed now, as there was no ambiguity, either latent or patent. In modern times the courts have admitted the evidence of outside facts to elucidate the testator's intent on one question more freely than on others, namely, whether money legacies are or are not to be paid out of devised land. These facts are the amount of realty and of personalty owned at the time when the will was published, and the conversion of land into personalty, or personalty into land, after publication, showing the state of the property at the testator's death. Perhaps the earliest of these cases Is Canfield v. Bost- wick, 21 Conn. 550. In Scott v. Stebbins, 91 N. Y. 608, the legacy being to a son, and a conversion made after the will into land rendering the personalty insufficient, an intent not to redeem the legacy was inferred; and it had to be charged on land, which, of course, could not have been specifically devised. The will being made on the day of testator's death, in McCorn v. McCorn, 100 N. y. 511, 3 N. B. 480, the legacies to wife and son were charged on the land; there being no personalty. Secus, where personalty sufficient. Wiltsie v. Shaw, 100 N. Y. 191, 3 N. B. 331. The burden of proof in such cases Is on the legatee. Brill v. Wright, 112 N. Y. 129, 19 N. E. 628. And in Briggs v. CarroU, 117 N. Y. 2SS. 22 N. E. 1054 (on grounds rather opposed to above cases), the legacies were not to be charged on the land unless the personalty was insuffi- cient at the time of publication. Again, In Mon'is v. Sickly, 133 N. Y. 450, il N. E. 332, it was held that the legacies were not chargeable on land which the testatrix had bought after making her will. These legacies were not to her children. Such evidence was admitted at a somewhat earlier date in the New Jersey case of Leigh v. Savidge, 14 N. J. Eq. 124, and agam in Johnson V. Poulson, 32 N. J. Eq. 390. We can find nothing common to these cases but the admission of the outside facts, while the inferences drawn seem to be the most contradictory. (684) Ch. 8] INCUMBRANCES. §^ 92 CHAPTER VIII. INCUMBRANCES. NOTE. When incumbrances are created by deed, the principles, rules, and distinctions set forth In the chapter on "Title by Grant," as to the execution, form, and delivery of deeds, and the capacity of the grantor, apply in nearly all cases, as much as to deeds made in the way of sale and conveyance. In- deed, many of the illustrations given in that chapter were taken from mort- gages. § 92. The Mortgage. 93. Equitable Mortgages. 94. Power of Sale. 95. Future Advances. 96. Absolute Deed as Mortgage. 97. The Vendor's Lien. 98. Liens Akin to the A'endor's Lien. 99. Rights of Assignees. 100. Extinction or Subrogation. 101. Enforcement of Mortgages. 102. Sundry Statutory Liens. 103. Apportionment. § 92. The Mortgage. The ordinary way, both, in England and America, in which land is pledged for the payment of a loan, or for the satisfaction of any other debt, is the mortgage; that is, the owner of land executes a deed of conveyance in the same form by which he would sell it, but he adds before the testimonium clause, what is known as the defea- sance, — a clause in which the debt to be secured is recited, and a proviso is added that, if this debt is paid at maturity, "this deed is (685) § 92 LAND TITLES IN THE UNITED STATES. [Ch. 8 to be void, otherwise it is to remain in full force." Taken literally, the land described in the mortgage would at once become the prop- erty of the mortgagee, who might take possession at once, and might also retain it forever if the debt should not be paid ad diem, and this without lenard to the value and the comparative amount of the loan or debt.^ The mortgage may be contained in two documents: an absolute deed, made by the mortgagor and delivered to the mort- gagee; and a defeasance (which would have to recite the convey- ance), signed and sealed by the mortgagee, and delivered to the grantor. Such an arrangement may lead to inconvenience, mistake, or fraud ; but the effect, at law, is the same as if both parts were written in one deed.- Before courts of equity interfered in the matter, the deed of mort- gage was enforced according to its letter. But at an early day these courts introduced two measures of relief to the mortgagor: First, 1 Why Englishmen should have adopted the clumsy contrivance of a deed with defeasance, instead of the hypotheca of the Roman laws, known both in France and in Scotland, by which, in form as well as in effect, the land is given as a security for the debt, seems to have two reasons: First, the pro- hibition of interest upon loans made the hope of forfeiture the main Induce- ment to lenders; secondly, there was no machinery among the ancient writs, nor in the feudal conception of the time, for a judicial sale, which now seems the natural way to enforce a mortgage. When the extent of lands was given by act of parliament uiion statute staple or statute merchant, landholders were enabled to borrow on the security of their lands without parting with the title and title deeds; and when these securities fell into disuse it was not uncommon to mortgage only a term of years created for that purpose, or to confess judgments as securities for loans, taking a stay of execution. An interesting history of the progress of the mortgage from the strictness of the common law to the "equitable view" prevalent in his time is given by Chan- cellor Kent in 4 Comm. p. 130 et seq. Many states have since his day, either by judge-made law or by statute, divested the mortgage of its old features altogether, and turned it into nothing but a lien to secure a debt. 2 "If the defeasance be executed subsequently, it will relate back to the date of the principal deed." 4 Kent, Comm. 141. See hereafter as to the neces- sity, as against purchasers, of recording both. Between the parties, deed and defeasance make a mortgage, though the latter is not recorded. Moors v. Albro, 129 Mass. 9. By canceling an unrecorded defeasance the deed becomes absolute. Trull v. Skinner, IT Pick. 213. Old defeasance given up, and new one given for new ajid larger debt, though, according to Kent's view, above, this would only enlarge the mortgage; yet held otherwise in Falls v. Conway Mut. Fire Ins. Co., 7 Allen, 46. (G8(i) Ch- 8] INCUMBRA.KCES. § 92 the mortgagee in possession was held to an account of the rents and profits, which he had to apply to the reduction of the debt; secondly, and what is most important, the mortgagor was allowed, though the day for payment had passed, to redeem his land on or before some day, to be set for that purpose by the chancellor. When such day was named, either at the instance of the mortgagee or of the mortgagor, and the debt was not then paid, the mortgage would thenceforward, by the decree of the chancellor, stand fore- closed; that is, the mortgagee would then, in equity as well as at law, become the owner of the mortgaged land.'' Some of the American colonies had, during the whole of their colonial life, no courts of equity. It was so in Pennsylvania, in, Massachusetts, and in Rhode Island. They dealt with mortgages in a fashion of their own, but they followed the English court of chan- cery in the two great points: First, that a mortgagee in possession must account for profits ; secondly, that the mortgagor cannot finally lose his lands without first having his "day in court.'' And any covenant or agreement by the mortgagor, waiving this right before- hand, is deemed in equity to be null and void.* 3 The word "foreclosure" is in modern speecli, even in statutes and opin- ions, often applied to decretal sales of mortgaged lands; but tbe true old meaning of the word is the loss by the mortgagor of the right of redemption, and the consequent completion of the mortgagee's title, without any sale. In the old chancery practice there was always, in the first instance, a decree nisi; that is, when the default in payment and the amount due had been ascertained, the court would state its findings in an interlocutory decree, and proceed "that unless the amount so found should be paid within" a named time, generally six months, the equity of redemption would be foreclosed. This time having expired, the court might, and often did, extend the time further; but, when no more indulgence could be given, a final decree would follow "that the equity of redemption be and it is forever barred and fore- closed." A decree of this sort is in our days, to distinguish it from a decretal sale, called a "strict foreclosure." It is pointed out by Kent (4 Gomm. 1S6), quoting Ferine v. Dunn, 4 Johns. Oh. 140, and English precedents, that the dismissal of a bill to redeem, for failure to pay the debt within the time lim- ited by the nisi decree, is absolute, and works a foreclosure. See, on the old practice of foreclosure, 3 Daniel, Ch. Prac. (3d Am. Ed.) pp. 2222, 2224. It is regulated by statute in the New England states. As to accounting for rents, no matter how the possession is obtamed, see Anderson v. Lauterman, 27 Ohio St. 104. i Story, Eq. Jur. § 1019; 4 Kent, Comm. 159. In 2 White & T. Lead. Gas. (087) § 92 LAND TITLES IN THE UNITED STATES. [Ch. 8 But these two great concessions, which equity both in England and America made to the mortgagor, left the mortgagee in all other respects the owner of the land. The former owner, while in pos- session, was looked upon in a court of law- as a mere tenant at suf- ferance. The mortgagee might, at any moment before the debt fell due, or, as it was called in legal phrase, "before condition broken," turn him out of possession. He might treat any dealings with the land by the mortgagor, such as a lease given after delivery of the mortgage, as mere nullities, and eject his lessee as if he was a tres- passer, without even a notice to quit." Upon the death of the mort- Eq. 1069, Howard v. Harris, from 1 Vem. 193, is given on this point. See Englisli and American notes on this and two kindred cases. Also, Newcomb V. Bonham, Id. 7, 232 (Lord Nottingham, 1681), where redemption was al- lowed to the heir, though the mortgagor had covenanted that, if the lands were not redeemed in his lifetime, they should never be redeemed. Here occurs the phrase "once a mortgage, always a mortgage." Seton v. Slade, 7 Ves. 273 (no agreement of the parties can alter the right of redemption); s. p., Holridge V. Gillespie, 2 Johns. Ch. 30; Skinner v. Miller, 5 Litt. (Ky.) 84; Rogan v. Walker, 1 Wis. 527; Wilcox v. Morris, 1 Murph. (N. O.) 117. For the prin- ciple that the mortgagee in possession must account, see 4 Kent, Comm. 1*56; Story, Eq. Jur. § 1016a; and very old cases are quoted, such as Bonithon v. Hockmore, 1 Vem. 316; French v. Baron, 2 Atk. 120, etc. As the tendency has been all along in favor of the mortgagor, it is hardly worth while to pur- sue this line of cases into more modern times. The details of the account, the mortgagee's liability for waste or neglect, his right to commission or compen- sation, the credits, if any, which he may claim for improvements, etc., belong in a treatise on mortgages, but are foreign to a work confining itself to Land Titles. On the sacredness of the right to redeem, one case stands out in con- tradiction to all others. It is Conway v. Alexander, 7 Cranch, 218, where, in view of great delay and but little, if any, inadequacy of price, a deed directed a trustee, to whom it made title, to convey land at once to him who had ad- vanced the price, if the grantor should not repay it by a given day; and tSe conveyance accordingly made by the trustee was sustained. 5 Keech v. Hall, Doug. 21 ; Moss v. Gallimore, Id. 279,— both in 2 Smith, Lead. Cas. 1, 883. In the former, the lease being given by the mortgagor after the mortgage, the lessee was treated as a trespasser; in the latter case, the lease having been given before, the mortgagee, by the deed to him, became assignee of the reversion. It was an extreme consequence of the "old view" that, even as against third persons, the mortgagee was held to be the legal owner, so that in an ejectment a mortgage made by "the common source" might be shown as an outstanding title. Lawyers who have read Samuel Warren's great novel may recollect how at the ejectment trial the defendants produce a deed from the common ancestor, mortgaging the manor for a small (688) CI). 8] INCUMBRANCER. § 92 gagee his fee iu the land descended to his heir at law, whom a court of equity would treat as a trustee for the executor or administra- tor, at least to the extent of the mortgage debt. The mortgage could only be transferred by a conveyance sufficient in law to pass the title to the land; but a court of equity would treat the mort- gagee's estate as a mere incident to the debt, and compel the mort- gagee or his heirs to convey the land so as to subserve the collec- tion of the note or bond by whosoever had become its owner." The mortgagor's estate being, under tlie old view, a more equity, as well before as after default, it was not subject to the widow's dower. A conveyance by the mortgagor, such as a second mort- gage, was by some judges thought not to come within the registry laws; and, amonu- other consequences, resulted that most unright- eous doctrine of "tacking," That is, if the legal title gained by the first mortgagee met in the same hand with a third incumbrance that had been taken originally without notice of the intervening or sec- ond incumbrance, the owner of the first and third could "tack" one to the other, and thus "squeeze out" the second. It seems that the third incumbrance had to be a mortgage, so as to constitute him who took it a "purchaser" in good faith; and he would buy up the first charge, to unite both in his hands, so as to have "both law and equity" for him. The second, or the first and the second, incum- brance might be a judgment. This whole doctrine was at an early day exploded in the United States as unjust, and as being moreover at war with the spirit of the registry laws.'' There was also an sum to Aaron Moses, which deed would have defeated the suit had it not been ruled out for an erasure. Such was still the law when Mr. Warrea wrote. Another extreme result happened In the actual case of Williams v, Bosanquet, 1 Brod. & B. 238, where the mortgagee of a leasehold who had not taken possession, was held, as "assignee of the teiiii," to be personally bound by the covenants of the lease. 6 An example is furnished in the well-known case of Zouch v. Parsons, 3 Burrows, 1794, quoted in section on "Deeds by Infants," where a conveyance by the Infant son of the mortgagee had to be obtained to perfect the title. But in equity the mortgage money was held to go to the executor as early as 28 Car. II. See Thornbrough v. Baker, 1 Ch. Cas. 28.3, 2 White & T. Lead. Cas. Eq. 1030. 1 The leading case on tacking is Marsh v. Lee, 2 Vent. 337, best -known, through the Leading Cases in Equity. The American case putting an end to LAND TITLES V.l 44 (689) § 92 LAND TITLES IN THE UNITED STATES. [Ch. 8 English doctrine, derived from the Roman law of pledges, that the mortgagor, if in debt to the mortgagee otherwise than for the sum stated in the mortgage, cannot redeem without paying such other debt; nor can his heirs or his devisees, other than such as take the land under the will in trust for the payment of debts. This doc- trine had some merit, while simple contract creditors had no means for reaching the lands of their deceased debtor, but is at present useless, and in America it is almost forgotten.^ We shall see hereafter how a mortgage can be made "continuing," so as to cover what are called "future advances." What debts a mortgage is meant to secure, where its language is not plain and un- ambiguous, is a question rather of the law of contracts than of land titles. The pledge of the land will be understood, just as a per- sonal undertaking would be construed." Whether the mortgage be given to secure a past debt, a debt contracted at the time of its execution, or future advances and re- sponsibilities, it remains in force till the indebtedness is actually paid off, notwithstanding a renewal, or merger in a higher security, as will be shown hereafter.^" There may, however, be such a com- plete "novation" that the enforcement of the old lien would be un- the doctrine is Grant v. United States Bank, 1 Gaines, Gas. 112. See 4 Kent, Comm. 17G-179. 8 Kent, at 4 Comm. 17.5, quotes for th'S mode of tacking several English cases, coming down to 2 Yes. .Ir. 37G, but no American authorities. The Amer- ican doctrine limits the mortgage narrowly to "what is written in the bond.'' In Williams v. Hill, 19 How. 246, it is held that a trustee in a "deed of trust" cannot set off his own debt, not secured by the deed, from the proceeds of sale. 9 Thus, if the mortgage is given by a business man to a bank to secure his bills and notes, it will be construed like a personal guaranty for a merchant's bills and notes to a bank, so as not to include the debts of a firm of which he may become a partner. Bank of Buffalo v. Thompson, 121 N. Y. 280, 24 N. E. 473; Blood v. White, 100 Mass. 357 (mortgage to secure contract to give notes secures the payment of such notes). "Present indebtedness" is certain enough; it may be ascertained aliunde. Youngs v. Wilson, 27 N. Y. 351. But in Morris v. Murray, 82 Ky. 361, it is held that mortgage for a named sum, "less what the mortgagee owes to D.," is too uncertain to give a lien against subsequent mortgagees. 10 See hereafter, under head of "Extinction." An agreed change in the terms of the note or bond carries a change in the defeasance. Union Cent. Life Ins. Co. v. Bonnell, 35 Ohio St. 305. (690) ^'fa- ^] INCUMBRANCES. § 92 just to third parties; each case depending very much on its own circumstances.^^ At common law a deed of release or other conveyance was resorted to, to reinvest the mortgagor with the title to his land; and in equity, either upon his own bill, or under the mortgagee's bill to foreclose, a reconveyance of this nature would be ordered. At the present day, in this country, payment of the debt after the day extinguishes all title, at law as well as in equity, which the mortgagee ever had in him; ^^ and in order that the fact may be made known to the world the statutes of nearly all the states have contrived a short entry on the margin of the record, to which we will refer under the head of "Registry Laws." Generally speaking, whatever is subject to absolute grant is also subject to being mortgaged.^^ And the description of land in a mortgage is construed as it would be in a deed, as to appurtenances, easements going with the land, accretions, and all other incidents.^^ Indeed, some interests, of which the policy of the law forbids a sale, may be thus conveyed as a security for debt, as land which has been pre-empted by a settler, and for which a patent has not been issued. When it is issued the mortgage will attach, in preference to later incumbrances.^ ° And somewhat greater latitude has been given in n See hereafter, under head of "Extmction." 12 Bush V. Maklin, 87 Ky. 482, 9 S. W. 420. Yet the mortgagor is, under the general policy of the registry laws, entitled to have some record evidence of satisfaction. 13 California Civ. Code, § 2926; Dakota Terr. Civ. Code, § 1731. So as to after-acquired title and the operation of the warranty and lands held ad- versely. California Civ. Code, § 2930; Dakota TeiT. Civ. Code, § 1728. An option can bo mortgaged (Bank of Louisville v. Baumeister, 87 Ky. 6, 7 S. W. 170); but not in Iowa (Conn v. Tonner, 86 Iowa, 577, 53 N. W. 320; compai-e Sweezy v. Jones, G5 Iowa, 273, 21 N. W. 603). A pre-emption under United States law may be mortgaged. 1* Chandler v. Jamaica Pond Aqueduct Coi-p., 125 Mass. 544 (passway going with the land) ; Cruikshanks v. Wilmer, 93 Ky. 19, 18 S. W. 1018 (accretions). 10 Stewart v. Powers, 08 Cal. 514, 33 Pac. 489, construing Rev. St. U. S. § 2262 (relying on Myers v. Croft, 13 Wall. 291); Kline v. Raglana, 47 Ark. Ill, 14 S. W. 474; Gray v. Franks, 86 Mich. 382, 49 N. W. 130 (quitclaim deed, with something like a warranty in the habendum, inured to the mort- gagee). A warranty or other covenants of title are nearly always put in a mortgage; and the words "mortgage and warrant" are in most of the statu- (691) § 92 LAND TITLES IN THE UNITED STATES. [Ch. 8 allowing an after-acquired estate to inure to a mortgagee than to a purchaser; for, while one may be willing to pay his price for the chances of a good or bad title, a mortgage can have no purpose un- less the title is good.^° What has been said as to parties in a common deed applies with equal force to a mortgage. We have seen how the states differ on the power of an agent intrusted with an otherwise executed deed to fill blanks before delivery. It is the same Avith mortgages. And where the grantee's name is left blank after delivery, or where a fictitious name is inserted for the grantee (in either case with the view of making the mortgage pass as a security to bearer), it is not a good mortgage; certainly, not at law.^' A deed may carry the legal title to a grantee, as a security for the payment of debts, but may not set a time Avhen it is to become ab- solute by breach of condition, or when it will be defeated by com- pliance with the condition. It may thus be unfit for strict fore- closure, but it is, in effect, a mortgage as long as it shows that the payment of the debt is the main object; and, if so, such payment will work a redemption, while a court of equity will enforce such informal mortgage by its order of sale.^^ The assignment for the tory forms. As a mortgage is given to guard against insolvLUcy in the debtor, ttie pledge of the after-acquired estate is the only rational purpose of such covenants. See Edwards v. Davenport, 20 Fed. 756 (warranty by married woman unavailing when it does not bind her personally). 16 The inclusion of land or fixtures not owned at all at the time of the mort- gage, especially under the laws governing railroad mortgages, must be treated separately. The ordinary "after-acquired title," as treated in a former chap- ter, refers to land already claimed and possessed under a defective right. 17 Chauncey v. Arnold, 24 N. Y. 330 (deed of land cannot be treated like bill of exchange). 18 Catlett V. Starr, 7u Tex. -185, 7 S. W. 844; In re Helfenstein's Estate, 13."v Pa. St. 193, 20 Atl. 151 ; Calder v. Ramsey, 06 Tex. 218, IS S. W. 502. So, a mortgage in the common form, in which the day of payment set in the de- feasance had passed before the date of the deed, was treated as a mortgage payable on demand. Hughes v. Edwards, 9 Wheat. 489. Anything a mort- gage which leaves a right to redeem. Shillaber v. Robinson, 97 U. S. 68 r Steel V. Steel, 4 Allen, 417 (words "then to be void" omitted). In Indiana (§ 2930), Illinois (c. 30. § 11), and Michigan (§ 5731) the statutory form is: "A. B. uiurtgascs to C. D. [description], to secure the repayment of ." witliout any other words of conveyance. In Wisconsin (§ 2209), "A. B., mort- gagor," etc., "mortgages to C. D., mortgagee," etc., "for the sum of , thcr (692) Ch. S] INCUMBRANCES. § 92 benefit of creditors has, by some courts, been called a mortgage. It carries the legal title to secure the grantor's creditors. It differs from the ordinary mortgage, with power of sale, mainly in this: that its enforcement is to take place at all events, without awaiting a future default; but it often happens that the grantor, by way of composition or otherwise, satisfies all the creditors before all the lands or goods assigned have been disposed of, and in such a case the title reverts to him.^" It difilers, however, in this, from other mortgages: that the equity of redemption is presumably worthless; and the assignee is therefore expected to take possession, and to hold the legal title. The provisions by which many states guard the assignment for the benefit of creditors in order to prevent frauds, cannot be evaded by putting what is intended as a general assign- ment in the shape of a mortgage. If void in one form of words, it will be void in the other.^" Jlodern law writers and judges distinguish between the "old view" and the ''modern view" of the mortgage.^^ The former is the com- following tract: * • • This mortgage is given to secure," etc. Similar are the forms given by statute in California (Civ. Code, § 2948), and in Dakota <§ 1736), and in Missouri. Tlie forms given in Iowa, Maryland, and Tennessee, though short, retain the common-law idea of a grant and defeasance. Mellon V. Lemmon, 111 Pa. St. 56, 2 Atl. 56 (a deed subject to redemption is a mort- gage). 19 Lyons V. Field, 17 B. Men. (Ky.) 548. See, contra, Hargdine v. Hender- son, 97 Mo. 375, 11 S. W. 218. 2 Johnson's Appeal, 103 Pa. St. 373 (mortgage to many creditors not as- signment within local statute). In Arkansas a number of such mortgages erty held adversely." California Civ. Code, § 2930; Dakota, § 1728. An absolute deed and defeasance together make a mortgage. Massachusetts Pub. St. c. 181, § 44; Maine, c. 90, § 1. In Kentucky, a clause in the Code of Practice of 1851, "foreclosure of a mortgage is forbidden" (now section 375), has upset the old view. Thomas v. Harkness, 13 Bush, 23: the mortgagee is not en- titled to possession, is not a necessary party to an ejectment; an outstanding mortgage is no defense. Trustees Union College v. Wheeler, 61 N. Y. 88; Stewart v. Allegheny Nat. Bank, 101 Pa. St. 342, mortgagee not entitled to be made party to partition suit; contra, should be made party to a proceeding to condemn land for public use, the mortgage being "property": Aggs v. Shackelford Co., 85 Tex. 145, 19 S. W. 1085, not entitled to rents and profits against mortgagor or terre-tenant: Cheltan v. Green, 65 Md. 272, 4 Atl. 271; and many other cases in many other states, — lay it down plainly, "the mort- gage is not an estate, but a lien." The very able opinion of Christiancy, J., in Ladue v. Detroit & M. R. Co. (lS6.j) 13 Mich. 390, lays down Ihe four fol- lowing maxims as constituting the modern view: (1) Tlie debt, etc., secured is the principal, and the mortgage but an incident or accessory; (2) anything which transfers the debt (though by parol or mere delivery) transfers the mortgage with it; (3) that an assignment of the mortgage without the deHt is a mere nullity; (4) payment, release, or anything which extinguishes the debt Ipso facto extinguishes the mortgage. Cases are quoted in support of each point, going back as far as Green v. Hart, 1 .Johns. 580, and Clearwater V. Rose, 1 Blackf. 157. A mortgage, though the mortgagee is let into posses- sion, does not change the title. Sexton v. Breese, 135 N. Y. 387, 32 N. E. 133. 2 2 The "old view" is fully explained in the second edition of Kent's Com- (694) Ch. 8] XNCUMBI{ANCES. § 92 modern view, the mortgagee is not entitled to possession at all, either before or after breach, nor to rents and profits. He may, at the most, better his security by having a receiver appointed to col- lect the rents or take the profits.^" Hence he is not a necessary inentaries, at places hereinbefore cited, together with the changes wrought by the Revised Statutes coming into force in 1830. In the New England states, as it is well put in the Michigan case above quoted, the old view "still rankles." Thus, a mortgagee not in possession may maintain trespass against a stranger, Leavitt v. Eastman, 77 Me. 117; is entitled to possession before default, Gatchell v. Morse, 81 Me. 205, 16 Atl. 662; the assignee of the mortgage is purchaser for value, Pierce v. Faunce, 47 Me. 513 (of course the mortgagee Is, Jones V. Light, 8G Me. 437, 30 Atl. 71), and may set aside a fraudulent con- veyance; Murdock v. Chapman, 9 Gray, 15G (mortgage of the land by tlie mortgagee is a pledge of his mortgage) ; Monroe v. Stephens, 80 Ky. 155 (un- der old chancery practice, mortgagee buying at foreclosure sale needs no deed;. In North Carolina, the mortgagor's deed conveys only an equitj', Parker v. Banks, 79 N. C. 480; after default the mortgagee is entitled to possession, Kiser v. Combs, 114 N. C. 640, 19 S. E. 664 (ejectment); even before default the mortgagor is considered a mere tenant, Parker v. Banks. He has the right of possession even before default, Crinkley v. Egerton, 113 N. C. 144, 18 S. E. 341. The forfeiture of a (mortgaged) lease under a clause forbidding assignment in Becker v. Werner, 98 Pa. St. 555, may be explained on the ground that the mortgage leads to a sale. Even in Massachusetts, under the old view, the legal title of the mortgagee can be transferred with the debt, without words of inheritance. Barnes v. Boardman, 149 Mass. 106, 21 N. E. 308. In Woody V. Jones, 113 N. C. 253, 18 S. E. 205, it is said (with a view to limita- tion) that a registered mortgage carries the legal title. Even in Connecticut it is said the mortgagor is owner for all purposes except the security of the mortgagee. Downing v. SuUivan, 64 Conn. 1, 29 Atl. 130. 2 3 Woolley V. Holt, 14 Bush (Ky.) 788, where a mortgage made after a 10- years lease, the rents not being specially named, was held not entitled to the rents against a subsequent grantee of those rents. This seems illogical, for a mortgage must put in pledge exactly the same interest which an absolute deed would convey. But the celebrated ease of Douglass v. Cline, 12 Bush, 60S, under a railroad mortgage, which denied to the mortgage bondholders even the profits taken by the receiver after suit brought, and applied them to arrears of wages, went as far or further; and it has been generally followed in most of the state and federal courts on the winding up of railroad mortgages ; but, in analogy to maritime law, the president's back salary is not preferred to the mortgage bonds. National Bank v. Carolina, K. & W. R. Co., 63 Fed. 25; Frank v. Railroad Co., 122 N. Y. 197, 25 N. B. 332 (mortgagee out of possession not entitled to profits); Angler v. Agnew, 98 Pa. St. 587 (mortgagor may cut tim- ber); Branswick-Balke-Collender Co. v. Herrick, 63 Vt. 286, 21 Atl. 918 (or (095) § 92 LA.ND TITLES IN THE UNITED STATES. fCll. 8 party to a suit for establishing a highway over the land, or condemn- ing a strip for a railroad right of way; and though the mortgagee might be entitled to the condemnation money, which represents the value of the land, he is not entitled to damages paid for a mere mjury, which does not amount to a "taking." -^ His estate, at his death, passes to tlie executor or administrator; it passes along with the note or bond which the mortgage is made to secure; -' and finally there is no strict foreclosure, but only a decretal sale, conducted by a master in chancery, or by the sheriff, at which the mortgagee may bid against others, like an execution creditor at an execution sale.-" One favor, however, is shown to the mortgagee which would not be extended to a mere lien holder, and this even in states which have carried the modern view very far ; that is, ^A'hen the mortgagee has taken possession lawfully, by the consent of the owner (not, however, when he has obtained it stealthily, or by force and fraud), he is allowed to hold it until he is paid in full; or until, at the in- stance of the mortgagor or of a junior incumbrancer, the land is sold by decree of court. This has been so held repeatedly in New York, and such seems to be the effect of the statute in Wisconsin.^' quarrj' slate, at least, where the laud is described as a quaiTy). As to removal of buildings from mortgaged premises (which in Kansas is made criminal by statute), it is held in Harris v. Bannon, 78 Ky. 568, that the mortgagee may stop it by injunction, but cannot pursue the houses upon the lot of another party; in Partridge v. Hemenway, 80 Mich. 454, 50 N. W. 1084, and in Tiu'- ner v. Mebane, 110 N. C. 416, 14 S. E. 974. that he can pursue them. 2* Knoll V. New Yorl;:, 0. & St. L. Ry. Co., 121 Pa. St. 467 (damages for injury) ; Livermon v. Railroad Co., 109 N. C. 52, 13 S. E. 734; Goodrich v. Commission- ks, 47 Kan. 355, 27 Pac. 1006 (higliway); Rand v. Ft. Scott, W. & W. Ky. Co., 50 Kan. 114, 31 Pac. 683 (railroad condemnation); Chicago, K. & W. R. Co. V. Sheldon, 53 Kan. 169, 35 Pac. 405 (mortgagee not a necessary party). 2 s See cases under this head in section, infra, on "Rights of Assignees." 26 In many cases it is said the mortgage is "merged" in the decree of sale; hat it will be shown that foreclosure, or possession and lapse of time, and not a decree of sale, is still the ordinary remedy in the New England states. 27 Russell V. Ely, 2 Black, 575; Madison Ave. Baptist Church v. Oliver St. Baptist Church, 73 N. Y. 82. Secus, when possession obtained by force or fraud. Howell v. Leavitt, 95 N. Y. 617; Beading v. Waterman, 46 Mich. 107, 8 N. W. 691 (a veiy poor showing for the mortgagor). See, contra, Newton T. McKay, 30 Mich. 380; Bodriquez v. Haynes, 76 Tex. 225, 13 S. W. 290. As to right to asli sale, Stewart v. Johnson, 30 Ohio St. 24; distinction be- tween lawful and unlawful possession, Booth v. Baltimore S. P. Co., 63 Md. 39. (696) Ch. 8] INCUMBRANCES. § 92 Under the old view, the mortgage was a conveyance, — an exe- cuted contract; and, as such, it needed no consideration. It might operate lilce a deed of gift. And it seems that even at this day a mortgage from a father to his son, made as a gift or advancement, could be enforced, where no interest of creditors interferes.^* But where a gift is not intended, or is not supported by the duty of a husband or father, a mortgage should, under the modern view, being nothing but a debt secured on land, have, like a contract, a valid consideration, though forbearance to third persons would be good enough to sustain a mortgage, as it would to support a suretyship or guaranty.^" A first mortgagee is still deemed a purchaser for value, for the purpose of overriding secret equities, while in California and some other states, in -nhich the equitable doctrine as to purchasers is codified, they are coupled in the statute with incumbrancers.^" Un- der the modern view of the mortgage, under which the fee remains 28 Bucklln V. Bucklin, 1 Abb. Dec. 242. 2 9 Pennsylvania Coal Co. v. Blake, 85 N. Y. 226 (mortgage by wife of one of debtors), and many other cases of mortgages by debtors' wives (though the married women's acts in many states forbid and annul such securities. Though in Texas a woman cannot pledge her land for her husband's debt, a mortgage given by a Texas wife on Illinois lands is enforced in that state, Post v. First Nat. Bank, 138 111. 5.59, 28 N. E. 978); Cotton v. Graham, 84 Ky. 672, 2 S. W. 047 (mortgage to sister-in-law without consideration void); .Tones v. Jen- kins, 83 Ky. 391 (mortgage to defraud creditors, being executory, void be- tween the parties); Dickson's Adm'r v. Luman, 03 Ky. 014, 20 S. W. 1038 (690) % 92 LAND TITLES IN THE UNITED STATES. [Ch. S In Georgia alone the mortgage in the usual form does not yield even an absolute priority to its holder, in case of the mortgagor's death. In order to obtain this the lender or creditor must resort to a form of "conditional sale" provided by the statute. For the mortgage in common form does not precede costs of administration, nor the "year's support," nor the widow's dower, nor trust debts.'' NOTE. A deed with warranty, express or implied, thougli by defeasance re- duced to a mortgage, carries an after-acquired estate in tlie lands which are therein described, for the purpose of securing the debt, just as an absolute deed would transfer such estate to a purchaser. But it will be found that some acts, •either general or special, which incorporate railroad or canal companies, go somewhat further. They authorize the corporation, in borrowing money on mortgage, to deal with the plant as a whole, so as to include lands which may thereafter be acquired for right of way, or depots, and other necessary build- ings, without which the purposes of the incorporation could not be fulfilled, and the franchise would be of little or no value; without which, therefore, a foreclosure sale would be ineffectual. The Maryland cases of State v. Brown, 73 Md. 484, 21 Atl. 37-t, and Brady v. Johnson, 76 JSId. 445, 26 Atl. 49, both growing out of the charter of a canal company, illustrate the nature and extent of such mortgages. The inclusion of after-acquired rolling stock In railroad mortgages lies without the scope of this worli, as not affecting in any way the title to real estate. The following cases may also be cited: Barnard v. Nor- wich & W. R. Co., 14 N. B. R. 469, Fed. Gas. No. 1,007 (the whole of an after- acquired connecting raUroad); Branch v. Jesup, lOG U. S. 468, 1 Sup. Ct. 495 (to same effect). To the contraiy, after-acquired lands which are not essential to the working of the railroad, Calhoun v. Memphis & P. R. Co., 2 Flip. 442, Fed. Cas. No. 2,.3(i'.i. The subject of mortgaging after-acquired property of all kinds Is discussed in Story, Eq. Jur. § 1040; and, as to railroad companies, in Parker v. New Orleans, B. R. & V. R. Co., 33 Fed. 693. "Wiggin, 35 N. H. 421 (forfeiture personal, but lien may be purged); Lyon v. Welsh, 29 Iowa, 278 (wife joining in mortgage of homestead may plead); De Wolf V. Johnson, 10 Wheat. 367 (and, having been pm-ged, forfeiture cannot be asked); Huston v. Stringham, 21 Iowa, 36 (applying payments); Fenno v. Sayre, 3 Ala. 458 (not avoided at instance of incumbrancer); generally, Ohio & JI. R. Co. V. Kasson, 37 N. Y. 218 (defense personal). Contra, McAlister v. Jerman, 32 Miss. 142 (assumption means of debt really owing); Fisher v. Kahlman, 3 Phila. (Pa.) 213 (terre-tenant may plead usury); Cleveland v. Stone, 51 Minn. 274, 53 N. W. 047 (can have older lien purged); Gaither v. ■Clarke, 67 Md. 18, 8 Atl. 740 (same). 3 7 Georgia Code, §§ 1969-1971; Lathrop v. Brown, 65 Ga. 315; Berlin Build- ing & Loan Ass'n v. Clifford, 30 N. J. Eq. 482 (costs of suit on second mort- gage cannot come out of first excci.t the cost of sale itself). (700) Ch. 8] INCUMBRANCES. § 93 § 93. Equitable Mortgages. Every instrument in writing by which the owner of land pledges it as security for the payment of a debt, or the performance of any contract or obligation, without in fact or in form conveying the legal title, is an equitable mortgage. By the English law the deposit of the title papers was also considered an equitable mortgage, but under our registry laws no value is placed on the original deeds; hence this mode of pledging lands is wholly unknown in our prac- tice."* It seems that an equitable mortgage can be enforced only by a suit in equity looking to a decree of sale.''^ Where the owner of the land has himself only an equitable title, he can of course give only an equitable mortgage; hence, while the old doctrine as to the first mortgage prevailed, every second or later mortgage was in its own nature only equitable. An agree- ment to give a mortgage upon named land for a named debt, or any writing indicating that land or an interest therein is pledged or in lien to secure the payment of money, or the performance of any act, is in equity a mortgage. Where the instrument is in the usual form, a grant or conveyance of the land, with defeasance, making the deed void upon payment of a sum or sums at given dates, it may still amount only to an equitable mortgage, because it lacks some of the formalities, which, under the laws of the state in which the land lies, are indispensable for carrying the legal title; such as a seal, or attestation by witnesses, or acknowledgment before a public officer.*" 38 4 Kent, Comm. 150. See an enumeration of such mortgages in Black- burn V. Tweedie, 60 Mo. 505. The learned commentator takes it for granted that there can be no such act performed in the United States as a deposit of title deeds. 39 Bryce v. Massey, 35 S. 0. 127, 14 S. B. 768 (neither seal nor attestation). See, on this subject, the sections on "Seal" and "Other Requisites" in chapter on "Title by Grant." Any informal execution of a deed in general will make an equitable mortgage; but see Arthur v. Screven, 39 S. C. 78, 17 S. E. 040, where an unsealed deed was held to be not even a "writing in the nature of a mortgage" within the recording laws. Definition of "equitable mortgage" is given in New Vienna Bank v. Johnson, 47 Ohio St. 306, 24 N. E. 503. *o A covenant to hold land in lien is a good security, and, not being a con- veyance, is not within the New York statute avoiding, as against third parties, (701) § 93 LAND TITLES IX THE UNITED STATES. [Ch. 8 Lastly, the frame of the instrument may be such, as not to carry the legal title. Such are the "lien notes," in common use in Texas, which will be mentioned hereafter; in fact, any writing, sealed or unsealed, in which the owner of land, or of any interest therein, "pledges" it by words not apt to convey land.*^ There are, however, a number of states which have prescribed a form for mortgage deed which at common law would have hardly been deemed sufficient to carry the legal title.*- The main advantage at the present day of a legal over an equitable mortgage is that he who takes the former for a consideration passing at the time, and without notice of equities, can override these, while the latter cannot. As among equities, that which is prior in time, prevails. But this distinction is not observed everywhere, as it comes into conflict with the policy of the registry laws in those states which allow equitable charges, bonds for title, declarations of trust, etc., to be recorded.^^ Where a charge upon land is recited in a conveyance, all persons deriving their right under that convey- ance must take notice of it, as will be shown hereafter, as to express vendor's liens; but it seems that the reference to a charge may be so misleading that subsequent purchasers being unable to trace it to its source, will not be affected with notice.** At any rate an equitable mortgage has in nearly all the states priority over judg- deeds not attested or acknowledged. Watkins v. Vrooman, 51 Hun, 175, 5 N. Y. Supp. 172; Gest v. Packwood, 39 Fed. 525 (agreement for security on certain property). *i Wilson v. Russ, 17 Fla. 601 (cestui que trust, entitled to rents and profits, can mortgage them); Blackbrnn v. Tweedie, 60 Mo. 505; and, again, Martin V. Nixon, 92 Mo. 26, 4 S. W. 503,— enumerate the kinds of equitable mort- gage. See, also, infra (in section on "Vendor's Lien"), lien notes. White Water Valley Canal Co. v. Vallette, 21 How. 414 (bonds pledging the work). 42 Such is the form in Indiana (Rev. St. § 2930) : "A. B. mortgages and war- rants to 0. D.,"— without any words of conveyance such as are used i'n an absolute deed. 4 3 See the notes to Basset v. Nosworthy, in 2 White & T. Lead. Cas. Eq. 1. The matter will be further referred to in chapter on "Registry Laws," section on "Purchaser." ■ti For the general positions, see section on "Uses and Trusts" in chaister on "Estates," supra; also, section on "Notice" hereafter, in chapter on "Regis- try Laws." Contra, Brownback v. Ozias, 117 Pa. St. 87, 11 Atl. 301 (a ref- erence to a mortgage which had been kept up for 40 years was legally dis- (702) th. 8] INCUMBRANCES. § 93 ments, executions, or attaclimeiits ; in short, over all persons other than "purchasers in good faith and for value." *^ Any form of words which distinctly shows the intention of the parties that certain lanti shall be pledged for a certain debt, or the performance of any ob- ligation, when signed by the owner of the land, or interest meant to be pledged, is an equitable mortgage. The words may be exec- utory, such as "I agree to put in lien," just as an executory contract to sell and convey gives an equitable title in the fee.^° In the states which require a seal to make a deed for the convey- ance of land, the omission of the seal leaves an equitable mortgage, to be enforced only by a suit in equity for the sale of the land; though in Ohio, under the very peculiar statute for the recording of mortgages, to be explained hereafter, another rule seems to pre- vail." Where the interest in land to be pledged is itself equitable, such as the interest which is acquired by a title bond or executory con- tract, an informal agreement to pledge this interest for the payment of a debt is, generally speaking, as effective as a formal mortgage thereof, unless the registry laws should maice a distinction.*^ On the other hand, there have been interests in land raised by the most informal executory contracts, pledged for debt by a mortgage in good form; and such pledge must be sustained, as long as the con- tract itself does not come within the statute of frauds.*" Courts of equity will even interfere, by injunction or other proper remedy, to protect the holder of such a security upon an equitable or exec- utory estate against the loss which would ensue from the transfer of the legal title to a purchaser in good faith. =*<" charged, and stood in another name; sed quaere). But a purchaser need not look into deeds, though accessible to him through the public records, which are not in the chain of title. Penn's Ex'r v. Penn, 88 Va. 361, 13 S. E. 707. 46 Ex parte Howe, 1 Paige, 125; Robinson v. Williams, 22 N. Y. 380. *6 Hoffman v. Kyan, 21 W. Va. 415. 47 Atkinson v. Miller, 34 W. Va. 115, 11 S. E. 1007, solemnly overruling Pratt V. Clemens, 4 W. Va. 443, and Shattuck v. Knight, 25 W. Va. 590, 601; Alex- ander V. Newton, 2 Grat. (Va.) 266. See, contra, White v. Denman, 16 Ohio, 59, and Arthur v. Screven, 40 S. C. 78, 17 S. E. 640. 4 8 Gamble v. Ross, 88 Mich. 315, 50 N. W. 379. 49 Gordon v. Collett, 102 N. C. 532, 9 S. E. 486 (a description of land and under it a receipt of so many dollars on account). 60 Northrup v. Cross, Seld. Notes (N. Y.) 115, where the holdei- of the title at law was enjoined before the debt was due. (703) § 93 LAND TITLES IN THE UNITED STATES. [Ch.. 8 On the principle that a trust must never be defeated for the want of a trustee, if in a deed of trust, i. e. in a conveyance made nom- inally to A., to secure a debt owing to B., the name of the trustee is left blank, whether purposely or by oversight, there remains a good equitable mortgage in favor of B. for such a debt as the deed purports to secure.^^ Again, where a deed is made by A. to B., in trust that B. shall execute a mortgage on the land conveyed to C, this is in equity a mortgage to C, upon the principle that equity will consider that to be done which ought to have been done." An executory contract to mortgage will be enforced, though a like contract to convey could not be enforced for want of certainty. Thus an agreement by which one party advances money and the other agrees to mortgage to him some part of a tract can be enforced in equity, at least against another equitable lien which rests alike on the whole tract. ^^ The discussion of equitable mortgages runs naturally into that of the vendor's lien. Where, in the same deed by which the grantee receives an estate in land, he agrees to pay money or to gj^e other things of value to the grantor, or to another person at his re- quest, very slight words will sufflce to raise an equitable pledge of the land described. Thus, where the father conveys land to a child, who in the same deed agrees to support him, a court may, even with- out any words of pledge, from the necessities of the case, raise an equitable mortgage, and may, when the fulfillment of the agreement becomes impossible, even restore the land to the grantor.'^* An equitable mortgage is a very different thing from a convey- ance, which a court of equity will reduce to a mortgage, but which 51 McQuie V. Peay, 58 Mo. 56. But a mortgage without a gi'antee, or with a fictitious grantee,— a sort of mortgage to bearer,— is void. Sliirley v. Burch, 16 Or. 83, 18 Pac. 351. 52 Story, Bq. J Cow. 316, and on Sir Simon Stewart's Case, quoted 2 Schoales & L. 381. 6* Chase v. Peck, 21 N. Y. 581. (704) Cll. 8] INCUMBRANCES. § 94 upon its face is absolute, and of which much will be said hereafter. The former gives to the creditor not even the appearance of the legal estate, which the ordinary mortgage carries; the latter gives him a stronger appearance of such an estate, with the power to create an unimpeachable fee by a conveyance to a purchaser in good faith and for value/" § 94. Power of Sale. The great and repeated extensions of time for redemption which the English chancery used to grant to the mortgagor after a decree nisi, settling the amount due upon the mortgage, led, towards the end of the eighteenth century, to the introduction of a clause which confers upon the mortgagee, in case of default in the payment of principal or interest, the power of selling the land outright, upon terms, after notice, and in the manner agreed upon in the deed, and out of the proceeds of sale to pay himself, while the surplus, if any, would go to the mortgagor, or the deficiency arising after, and meas- ured by the result of, the sale would remain owing upon his bond. Such a power was held to be valid,^" though Lord li^ldon spoke of it as dangerous, and suggested that it would be safer to introduce a third person as trustee for both parties. Though Cliancellor Kent thought the introduction of this third party (generally the clerk or attorney of the lender) needless and cumbersome, it soon became very common in Virginia and some other states, and mortgages made in this form became generally known under the name of "Deeds of l^ust." " 5 5 This remark is made because in many digests the two kinds of securities are thrown together, tending to mislead the unwary reader; and the Incorrect use of the words "equitable mortgage" sometimes occurs, as in Dodd v. Neil- son, 90 N. Y. 243. 56 Corder v. Morgan, 18 Ves. 344; Croft v. Powel, Comyn, 603, where the power was held allowable, but it had not been well exercised. The trustee by dint of his legal title is a "purchaser for value." Custard v. Bowles, 24 W. Va. 730. But the deed of trust like the mortgage is always redeemable, be- fore sale actually made. Webster v. Peet, 97 Mich. 326, 56 N. W. 558; Belt Silver & Copper Min. Co. v. First Nat. Bank, 156 U. S. 470, 15 Sup. Ct 440. 67 4' Kent, Comm. 146, where Lord Eldon is gently chidden for discounte- nancing the power of sale, as he does in Anon. 6 Madd. 9. The secured cred- itor is a real mortgagee, though the deed be made to a trustee. The former LAND TITLES V.l — 45 (705) § 94 LAND TITLES ]N THE UNITED STATES. [Ch. 8 In the absence of legislation to the contrary, such as we find only in Kentucky (a remnant of the relief legislation of 1820)/' the power of sale, whether conferred on the mortgagee or on a stranger, is recognized by the courts of the sereral states according to the Eng- lish precedents; but in many of them the statute recognizes this power and regulates the conduct of the sale, which must be by pub- lic auction, and more especially the giving of the notice, fixing the number of days or weeks, for which a notice must be published, the place of printing or publishing the newspaper containing such notice, and the contents, as to name of parties, description of the land, and place of sale.^' can sue In chanceiy for a sale, in his own name. Hutchinson v. Myers, 52 Kan. 290, 34 Pac. 742. 5 8 In a Kentuclcy act of 1820, part of the relief laws of the time, land con- veyed by "deed of trust" was not to be sold by the trustee, except with the written assent of the grantor or by decree of a competent court. See Stat. 1894, § 23."i0, somewhat modified from the old law. Though not intended for insolvent assignments, the law was for a long time applied to them in daily practice; though it was held already in Ogden v. Grant, 6 Dana, 476, that it does not apply where the trustee is bound, by covenant to the grantor, to make sale. See, also, Prather v. McDowell, 8 Bush. 46. Since June, 1894, as- signments in Kentucky may be wound up in the county court, and the old law is only of interest as to sales already made. A power of attorney to sell for payment of debts, not conferring an estate, was never within the law. Reed V. Welsh, 11 Bush, 450. "Deeds of trust," in the sense of the text, were about ISSO authorized for a short time by a special law for Jefferson county; but, lenders not believing that the courts would respect titles made under it, it fell at once into disuse, and was soon repealed. The latest decision defeating a sale under power in a mortgage is Wilson v. Aultman & Taylor Co., 91 Ky. 299, 15 S. W. 783. In Kentucky Trust Co. v. Lewis, 82 Ky. 579 (and in an earlier case), a clause in a legislative trust company charter, enabling some one company to take deeds of trust with powers of sale, was held unconsti- tutional as granting an unearned privilege. 59 So in Missouri (Rev. St. §§ 7091-7093, and though the statute is as to the validity of the power only declaratory), a county court lending out the county funds may have a power of sale inserted. Walters v. Senf, 115 Mo. 524, 22 S. W. 511. In Arkansas, by sections 4759-4762, unless waived by mortgage for a loan (section 4763), the sale of land by mortgagee or trustee must be for two-thirds of sworn appraisement; if no such bid the second time, within a year at any price; and the mortgagor has one year to redeem by paying the bid with 10 per cent, interest per annum. In South Carolina the power to the mortgagee himself is sustained in Mitchell v. Began, 11 Rich. Law, 686; Wcb- (706) Cll- 8] INCUMBRANCES. § ^4 The power of sale to the mortgagee or trustee is, as to the person who may execute it, construed lilie a "power" given by will or deed of settlement, of which we shall speak in another chapter. Among several executors those who have qualified may act alone. ■ It is different with men acting in their own right or as trustees. When some of several trustees die, those remaining can generally act alone, either as survivors of the trust estate or under local statutes. Often the deed indicates that the trustees may act severally ; if so, a sale and conveyance by one of them will pass a good title."" The deed of trust, according to some authorities, especially those from Missouri, differs from the mortgage, properly so called, in this, that the grantor is supposed to part with the legal title; the result whereof is, that a sale by the trustee, made after default, transfers a like title upon the purchas^er, though the sale had not been con- ster v. Brown, 2 S. 0. 428; Robinson v. Amateur Ass'n, 14 S. O. 148. In Mas- sacliusetts a sale under power is deemed as good as one under decree. Hall v. Bliss, 118 Mass. 560; recognized in Texas bj' iiev. St. 1803, article 2369; regulated in Virginia by Code, §§ 2441-2443. West Virginia, Code, c. 72, §§ 5-8; while section 9 gives form of deed by sheriff, when he acts for the trustee. The fonns given in Virginia and West Virginia do not contain the power of sale and conveyance at large; it being implied and regulated by law. The so-called statutory foreclosure or foreclosure by advertisement under Mich. St. §§ 84&9-8503, only regulates sales under power, when such power is contained in the mortgage. See infra, statutes of Alabama on devolution of the power, and on redemption; in Arkansas as to the latter. In Georgia, deeds with power of sale as regulated by Code, §§ 1969-1971, have even a better standing in the distribution of a decedent's estate than a common mortgage. Roland v. Coleman, 76 Ga. 652; Brice v. Lane, 90 Ga. 294, 15 S. E. 823. See, in JIaryland, Code, art. 66, § 6, regulating these powers. In Massachusetts the power is regulated by statute. See chapter 181, §§ 14-17. In New i'ork powers of sale in mortgages other than to the state have gone out of use since the sections of the Revised Statutes regulating "foreclosure by ad- vertisement" were repealed. In Pennsylvania and Delaware the judgment for sale (see hereafter under "Enforcement") is obtained so readily that deeds of trust have hardly been in use except for corporation mortgages at long date, and are held to be valid (Bradley v. Chester Valley R. Co., 36 Pa. St. 151), and the trustee, if the deed empowers him, may on default take possession and manage the property for the bondholders. 6 Loveland v. Clark, 11 Col. 265, 18 Pac. 544. See the distinction between executors and trustees, infra, in chapter on "Powers." If some of several trustees die, there is no difficulty, as survivorship among joint trustees has been retained almost everywhere. See chapter 3, § 27. (707) § 94 LAND TITLES IN THE UNITED STATES. [Ch. 8 ducted in the prescribed manner. Hence, the owner is reduced to his right to redeem, and must bring his suit for that purpose against the holder of the trustee's deed." But in most of the other states, as will be shown, a trustee's deed, if the sale is not carried on as di- rected by law or by the terms of the empowering clause, is void in toto, and confers upon the purchaser no rights, either in equity or at law.o^ The sale under the "deed of trust" leaves no room for either fore- closure or redemption. When the sale is made, and the deed is delivered, whether to the mortgagee (which for this purpose would include the assignee of the mortgagee), or to an outside bidder, the title passes at once.**^ And it seems, that when such a power is given, the creditor cannot (in the states which still allow it) demand a strict foreclosure, such course being contrary to the expressed in- tent of both parties, but might, upon the death of the trustee or his refusal to act, ask a court of equity to appoint a new trustee to make 61 Sanders v. Souttei-, 130 N. Y. 97, 32 N. E. 038 (but an assignment of "my interest" does not give title). Springfield Knglne & Thresher Co. v. Donovan, 120 Mo. 423, 25 S. W. 53G (in this case the sheriff of the county was made trustee uiDon the death or removal of the named trustee, and acted in the sale and conveyance). Shanewerk v. Hoberecht, 117 Mo. 22, 22 S. "W. 949 (power coupled with interest,— legal title which may be set up as outstanding title in an ejectment); citing 2 Perry, Trusts, § 602h; Jones, Mortg. § 1792; Kennedy V. Siemers, 120 Mo. 7;',, 2.5 S. W. 512. Sale by unlicensed auctioneer not void. Learned v. Geer, 139 Mass. 31, 29 N. E. 215. 62 See cases below as to particular defects; also Littell v. Jones, 56 Ark. 139, 19 S. W. 497 (sale by person claiming to be trustee's delegate); Smith t. Lowther, 35 W. Ya. 300. 13 S. E. 999 (delegate cannot sell). Thus in Massa- chusetts the statute on the mode of publishing the notice, chapter 181, § 17, speaks of the sale as invalid, if not carried on according to its requiremants: and see hereafter cases from that state. 6 3 Koch V. Briggs, 14 Cal. 256 (a strong exposition of the effect of a trus- tee's sale by Chief Justice Field, now of the United States supreme court). Nor can a^. junior incumbrancer redeem, ilarshall v. Blass, 82 Mich. 518. 46 N. W. 947, and 47 N. W. 516. Vary v. Chatterton, 50 Mich. 541, 15 N. W. 896 (if the sale under the power miscarries, an equity suit looking to a sale may be brought). Mo. Rev. St. 1879, §§ 3298, 3299, allowed a years' redemp- tion, when the mortgagee or his assignee was the highest bidder, on giving bond for a year's interest. See Lapsley v. Howard, 119 Mo. 489, 24 S. W. 1020; Van ileter v. Darrah, 115 Mo, 153, 22 S. W. 30; Dawson v. Eggers, OT Mo. 36, 11 S. W. 61; Updike v. Elevator Co., 9(i Mo. 160, 8 S. W. 779. (708) Ch. 8] INCUMBRANCES. § ^4 sale or conveyance, or to conduct the sale through its own master, or through the shei'iff or like officer.** Before default the trustee holds the legal title if at all, in trust to allow the grantor to remain in possession, and to receive the rents and profits."^ The delays and cost of a chancery suit looking to a sale, to which suit all persons having an interest must be made parties, and in which all rights ascertained before a sale can be guarded, recommend- ed the "power of sale," and especially the "deed of trust," as much as the delays in foreclosure did in England. By its means, land or houses become as available for raising money as stock or bonds, or breadstuffs and meats represented by warehouse receipts. But in the notice and conduct of the sale, little or no care is taken of the interest of later incumbrancers. Hence, what the owner of land gains in the facility of borrowing on first mortgage, he loses when he seeks to contract a second loan from others on the same se- curity. "^ The power of sale given to the mortgagee or to a trustee is a power coupled with an interest, and is therefore irrevocable."' When the mortgagor dies before a sale actually takes place (for it is immaterial that the default and preparations for the sale have happened and gone on during his lifetime), there are two views as to the effect on the power of sale. Where the mortgage is still considered, as in the iS'ew England states and in North Carolina, « 4 Springfield Engine & Thresher Co. v. Donovan, supra; Castleman v. Berry, 86 Va. 604, 10 S. E. 884. 5 In re Life Association of America, 96 Mo. G32, 10 S. W. 69 (though the deed of trust embraced the "net income realized from the property as the rents"). The deed of trust is here i)v.t upon exactly the same footing as an ordinaiy mortgage. The only remedy of the trustee to get at the rents is points working together); Conway's Ex'rs v. Alexander, 7 Cranch, 218 (irre- deemable mortgage). 12 2 Babcock v. Wyman, 19 How. 289 (grantee resold for fourfold price); Wright v. Mahaffey, 76 Iowa, 96, 40 N. W. 112; Hartley's Appeal, 103 Pa. St. 23 (great stress laid on inequality of price); Morris v. Nixon, 1 How. 118; Gray v. Shelby, 83 Tex. 405, 18 S. W. 809 (this and other tests). 123 Kraemer v. Adelsberger, 122 N. Y. 467, 25 N. E. 859 (possession with the grantee); all three badges of mortgage found in Wilson v. Glddings, 28 Ohio St. 554; Smith v. Smith, 81 Tex. 45, 16 S. W. 637 (not estopped by taking lease). 12 4 Miller v. Green, 138 111. 565, 28 N. E. 837 (other grounds besides great de- lay concurred); Fisher v. Witham, 132 Pa. St. 488, 19 Atl. 276. 12 5 Worley v. Dryden, 57 Mo. 226 (previous agreement to waive right to re- deem); Odell V. Montross, 68 N. Y. 499 (equity divested only by a writing (730) ^h- 8] INCHMBRANCKS. § 96 wielded a very free and ample discretion; taking into consideration also the power which the grantee had over the grantor, either through confidential relations, or through the latter's necessities.^^^ At all events, he who seeks to turn a deed absolute in form into a mortgage undertakes, not only the burden of proof, but, as his proof is to overcome his own solemn deed, it ought to be clear and con- vincing. When it is weak or contradictory, or when the facts are almost as compatible with an absolute sale as with a security for the grantor's debt, the words of the deed must prevail.^^^ good under statute of fraud) ; Hart v. Eppstein, 71 Tex. 752, 10 S. W. 85 (deed made under circumstances making it clearly a mortgage); Smith v. Brand, &i Ind. 427 (not to be strictly foreclosed, but by sale like common mort- gage). In Slmbert v. Stanley, 52 Ind. 40, the mortgage of this kind is after- wards by new arrangement turned into a sale. Smith v. Smith, SO Cal. 323, 21 Pac. 4, 22 Pac. 186, 549 (such deed gives no right to possession) ; McClure V. Smith, 14 Colo. 297, 23 Pac. 786 (good as a mortgage as to other creditor.^; not fraudulent); Brighton v. Doyle, 64 Vt. 616, 25 Atl. 604 (meant for present debt of husband, does not cover future advances). But such a deed passes the legal title, Gallagher v. Giddings, 33 Neb. 222, 49 N. W. 1126. 126 Tower v. Fetz, 26 Neb. 706, 42 N. W. S84 (deed of one tract obtained by threatening foreclosure on another); Conant v. Riseborough, 139 111. 383, 28 X. E. 789 (agent and confidential friend) ; purchase of equity suspicious, same case, and Russell v. Southard, 12 How. 139, supra; Nicolls v. McDonald, l(il Pa. St. 514; Davis v. Brewster, 59 Tex. 93 (question of intention); Villa v. Rodriguez, 12 Wall. 323 (difference in knowledge of business, relationship; specious reason given for sale); Jameson v. Emerson. 82 Me. 359, 19 Atl. 831 (question of fact for the trial judge); Locke v. Moulton, 96 Cal. 21, 30 Pac. 957 (where evidence on both sides shows there was a mortgage, the supreme court should reverse a judgment for absolute deed); Mahoney v. Bostvick, 98 Cal. 53, 30 Pac. 1020 (on conflict the trial judge should be affirmed). Gumpel v. Castagnette, 97 Cal. 15, 31 Pac. 898 (deed may be declared mortgage on the ground of mistake); Crowell v. Keene, 159 JIass. 353, 34 X. E. 405 (previous debt raises no presumption either way); Johnson v. Quarles, 46 Mo. 423 (must be no room for reasonable doubt) ; Ringo v. Richardson, 53 Mo. 385 (s. p. ; au- thorities collected); Forrester v. Moore, 77 Mo. (>j1; Rogers v. Jones, 02 Cal. 80, 28 Pac. 97 (a contemporaneous written memorandum is always enough). 127 Ensminger v. Ensminger, 75 Iowa, 89, 39 N. W. 208; Lauger v. Meservey, 80 Iowa, 158, 45 N. W. 732; Bentley v. O'Bryan, 111 111. 62 (evidence vague and contradictory); Bailey v. Bailey, 115 111. 553, 4 N. E. 394; Hanks v. Rhoads, 128 111. 404, 21 N. E. 774; Corliss v. Conable, 74 Iowa, 58, 30 N. W. S91; Andrews v. Hyde, 3 ClifC. 516, Fed. Cas. No. 377 (uncorroborated testi- mony of. complainant, grantee dead); Penney v. Simmons, 99 Cal. 380, 33 Pac. 1121; Lewis v. Bayliss, 90 Tenn. 280, 16 S. W. 376 (proof must be clear and (731) § 96 LAND TITLES IN THE UNITED STATES. [Ch. 8 The sale of the equity of redemption by the mortgagor to the mort- gagee is looked upon with particular suspicion. The latter should be "frank and fair," and should not hold out false hopes, inducing the former to believe that a sale will save the property, enabling him the better to redeem it at a future day.^''* According to the weight of authorities, equity will work out this right of redemption for one party, and turn the fee of the other party into a mortgage, though the land was not conveyed by the former to the latter, but by a third person, with whom the former bargained for it, while the latter advanced the money either in whole or in part, taking the title for his security. Whether he will be held to hold such title in trust, subject to a mortgage in his own favor, or will be allowed to retain it, depends mainly on the same tests, given above, between grantor and grantee.^^" There is a line of cases, mainly from Kentucky and Indiana, turning buyers at jiidi- agreemeiit contemporary); Winston v. Burnett, 44 Kan. 367. 24 Pac. 477 44 (deed, lease back at 10 per cent, of price, bond to convey within two years); 'i'iiomas v. Holmes Co., 07 Miss. 7.54, 7 South. 552 (badges of mort- gage found). i34A'oss V. EUer, 109 Ind. 2(i0, 10 N. E. 74 (old debt not canceled); Han- Ion V. Doherty, 109 Ind. 37, 9 N. E. 782. 13 5 Thomas v. Holmes Co., 67 Miss. 754, 7 South. 552 (conditional sale sus- tained, being at the time more favorable to the old owner than the mortgage of which it took the place); John's Appeal, 102 Pa. St. 59 (a peculiar trade between husband and wife); Slowey v. McMurray, 27 Mo. 113 (conditional sale means strict compliance). In Vincent v. Walkei, SO Ala. 333, 5 South. 465, a conditional sale by a married woman was sustained as such because, by the law at that time, her mortgage would have been void. In Peagler V. Stabler, 91 Ala. 308, 9 South. 157, also, a conditional sale was enforced as such. Chandler v. Chandler, 76 Iowa, 574, 41 N. W. 319; the line of deci- sions in this state is altogether less favorable to the mortgage side. The sale had been for $2,000; the agreement to reconvey, at $2,500, if tendered with- in 15 months. Though this looks like a loan at a pretty high interest, es- pecially if the grantee had the profits, the court failed to see a debt. Slutz V. Desenberg, 28 Ohio St. 371 (no debtor and creditor found); Calhoun v. Lumpkin, 60 Tex. 185 (old debt released, no new obligation); Northern Bank V. Deckebach, 83 Ky. 154 (where the agreement was to sell pai'tly on long credits). (734) <3h. 8] INCUMBRANCES. § 96 other indebtedness, and the vendee makes his bond for conveying the title back to the vendor upon the payment of such debt, the title passes to the ^•endee (provided the consent of the wife has been ob- tained), until the debt is fully paid; and it is held not a mortgage, but an absolute conveyance, with the right reserved by the vendor to have the land reconveyed upon payment of the debt agreeably to the terms of the contract. The vendee may convey the land back to his vendor, and levy his execution at law upon the land, which will take precedence over all intervening judgments. The construction of the law has, however, been such that the conveyance and bond really make a mortgage, for even after eviction the old vendor can re- deem.^'" If he has no wife, of jcourse none has to consent. If there is a wife, her consent can be given in writing without the formalities of a privy examination. If the debt is tainted with usury, the title does not pass by the deed. A judgment creditor may redeem the land to subject it to his execution.^^^ (By Code Amendment of October 16, 1885, the wife's consent is dispensed with.) Though subsequent declarations and conduct of the grantee are admissible, they are so only to show the intention of the parties at the time when the dead passed between them. If it was absolute, then, both in form and intention, it cannot be turned into a mortgage by an oral agreement made afterwards, nor by any writing not sufS- cient to divest the grantee's estate.'^^ The equity of turning an absolute deed into a mortgage can, of course, not be enforced against a purchaser in good faith for value ; but it is good against all volunteers, and against purchasers with notice.^'" One holding an executory title, such as a lessee with an 136 Georgia Code, §§ 1969, 1970; Kieth v. Catchings, 64 Ga. 77.3 (sale to cor- poration); transfer of the title bond to third party immaterial, New Eng- land Mortg. Security Co. v. Tarver, 9 C. C. A. 190, 60 Fed. 660; Broach v. Barfield, 57 Ga. 601 (with interest, at any time). 137 Broach v. Barfield, supra; Wynn v. Picklen, 54 Ga. 529; Jarvis v. Burke, 59 Ga. 232 (judgment creditor); Carswell v. Hartidge, 55 Ga. 412; Johnson v. Griffin Banking & Trust Co., Id. 691 (usuiy). lasHassam v. Barrett, 115 Mass. 256; Caverly v. Simpson, 132 Mass. 462; and passim in other cases cited. 139 Wagner v. Winter, 122 Ind. 57, 23 N. E. 754 (what is notice); Graham v. Graham, 55 Ind. 23; Amory v. Lawrence, 3 Cliff. 523, Fed. Cas. No. 336; (735) § 97 LAND TITLES IN THE UNITED STATES. [Ch. 8 option to buy at a stated price, is not a purchaser for value; and here, also, the question comes up whether the grantee in a quitclaim deed under the grantee in the disputed convejance can claim such a character."" The right to treat an absolute deed as a mortgage passes, like an ordinary equity of redemption, to heirs and to assigns (unless prevented by a champerty law, when the grantee is in adverse pos- session), and may be made available by the administrator for the payment of the owner's debts.^*^ As stated above, it should be, in all respects, treated like the estate of a mortgagor. Yet, as the grantee is generally in possession, which he has lawfully obtained, and the owner is put to his suit, courts have often insisted on his offer to redeem, being unwilling to put the person in possession to the expense of a sale, and thus giving to a mortgagee who holds a deed absolute in form, or claims under a "conditional sale," the benefit of a strict foreclosure.^*^ § 97. The Vendor's Lien. When deeds of bargain and sale for a short time, and deeds of lease and release more permanently, had in England, and the former Pancake v. Cauffman. 114 Pa. St. 113, 7 Atl. 67. Mortgagee without notice is preferred to tlie extent of his debt only, Turman v. Bell. TA Ark. 273, 15 S. W. 886. 140 Villa v. Rodriguez, supra (although the lessee had made vahiable im- provements on the strength of the option). The insufiiciency of a quitclaim deed is also affirmed here by the supreme court, as well as in Oliver v. Piatt, 3 How. 363; Jlay v. LeClaire, 11 Wall. 217. See decisions in courts of the states on one and the other side of this question, where "purchasers for value" are discussed under the registry laws. Forrester v. Moore, 77 Mo. 651 (pos- session of farm lands in working season is notice). A fortiori where the alienee takes with express notice, Lindsay v. Matthews, supra. 141 In Villa V. Rodriguez, supra, the right was assigned. Reed v. Reed, 75 Me. 264 (suit by administrator). In several of the other cases above, suit was brought by the heirs. The guardian of a non compos may sue to redeem, Warfleld v. Fisk, 136 Mass. 219. In Brooks v. Kelly, 63 Miss. 616, a junior mortgagee was allowed to open the purchase of the equity of redemption. 142 Calhoun v. Lumpkin, 60 Tex. 185. This is a great hardship, as it may be wholly impossible for the equitable owner to raise the cash for redemption until he has a decree in his favor, and not even then while that decree is sub- ject to reversal. (73(;) Ch. 8] INCUMBRANCES. § 97 species of deeds had in America, become the ordinary instruments for passing the title in lands from seller to buyer, the forms of these deeds soon became fixed and unchangeable. The purchase price was ahvays recited thus (with a little more or less verbiage): "For and in consideration of pounds, good and lawful money O'f England, well and truly paid by (the bargainee) to (the bargainor or releasor) before the ensealing and delivery of these pi-esents, the receipt whereof is hereby acknowledged, and whereof the said (bar- gainor) releases and acquits, &c., fully by these presents." This clause having sunk into an unmeaning form, it became usual in England, if not in America, to indorse on the deed a separate receipt for the purchase money. But soon this also was considered so far as a mere form that if the whole or any part of the purchase money was not paid in fact, courts of equity would not deem this, any more than the receipt in the body of the deed, an estoppel on the grantor ; but they would allow him to show what part of the purchase money was unpaid, and give him a lien on the land sold; which, however, like all secret equities, could not be upheld against a purchaser for valuable consideration without notice.^ *^ The lien is a remnant of the vendor's original estate, and is com- plete without the vendee's promise or covenant. Hence, where land has been sold to a married woman, to an infant, or to a person of unsound mind, the vendor's lien is more convenient than a mort- gage for the purchase money, and may be useful in cases where such a mortgage is actually given, but is void for want of power, or for noncompliance with prescribed forms."* 143 4 Kent, Comm. 151: "The vendee becomes a trustee to the vendor for the purchase money, or so much as remains unpaid. This equitable mortgage will bind the vendee and his heirs and volunteers, and all purchasers * * * with notice." Mackreth v. Symmons, 15 Ves. 329, 1 White & T. Le.nd. Cas. Eq. 289, decided by Lord Eldon after the doctrine had been recognized for more than a century, is considered the leading case. 2 Sugd. Vend. Is high authority. The lien is sometimes called a "trust" by which the vendee holds the title for the vendor (in Texas, a resulting trust, not within the registry laws, Briscoe v. Bronaugh, 1 Tex. 330), sometimes a "natural equity." Analogies have been found for it also in the Roman law. Messrs. Hare & Wal- lace, in closing their note to Mackreth v. Symmorrs, point out that the liin arose in England at a time when a sale of land for an unsecured debt could not be obtained, and that the whole doctrine is therefore in America needlesn and unsuitable. 144 Chilton V. Braiden, 2 Black, 458; Kent v. Gerhard, 12 R. I. 92 (void LA.XD TITLES V.l — 47 ("37 j § 97 LAND TITLES IN THE UNITED STATES. [Ch. 8 The doctrine of the implied vendor's lien has much about it that is uncertain and inconvenient, and after more or less of a struggle it has been wholly rejected in Maine, Massachusetts, Pennsylvania, North and South Carolina, Nebraska, and Kansas. In Vermont and Georgia, where the coui'ts recognized the implied lien, it was abol- ished by statute; and in Connecticut, New Hampshire, and Dela- ware there has been an unwillingness to recognize its existence, the courts preferring to let cases involving it go off on their special de- merits.^ ^'^ Other states have restricted the lien, as will be seen here- after. In states, in which the implied lien is fully recognized, its retention in any particular sale is denied when the seller has mortgage); Armstrong v. Ross, 20 N. J. Eq. 109 (same); Davis v. Wheeler (Tex. Civ. App.) 23 S. W. 43.->. 1*5 Oilman v. Brown, 1 Mason, 192,' Fed. Cas. No. 5,441. See statement as to law of Massachusetts on page 220. 1 Mason, and Fed. Cas. No. 5,441; Phil- brook V. Delano, 29 Me. 410; Ahrend v. Odiorne, 118 Mass. 261: Kauffelt v. Bower, 7 Serg. & R. 64; Hepburn v. Snyder, 3 Pa. St. 72; Womble v. Battle, ;S Ired. Eq. 182; Wragg v. Comptroller-General, 2 Dessaus. Eq. 509; Edminster V. Higgius, 6 Neb. 265; Simpson v. Mundee, 3 Kan. 172; Vermont, St. § 1937 (no lien unless created by deed); Georgia, Code, § 1997. Even in these states a lien expressly reserved would bind the grantee and those holding him by estoppel, Bear v. Whisler, 7 Watts, 144; Smith v. Rowland, 13 Kan. 245. See, for Connecticut, Chapman v. Beardsby, 31 Conn. 115; At wood v. Vincent, 17 Conn. 576; for New Hampshire, Arlin v. Brown, 44 N. H. 102; and for Dela- ware, Budd V. Busti, 1 Har. (Del.) 69. The existence of the doctrine was regretted by the supreme court of the United States in Bayley v. Greenleaf, 7 "Wheat. 40, but has since been approved (see note 147). It is recognized doubt- iugly in Florida, ilarks v. Baker, 20 Fla. 920. California, Civ. Code, §§ 3046- 3048, and Dakota, Civ. Code, §§ 1801-1803, declaring the lien, are eonstrue:l as simply recognizing the English-American law in all its details. Claiborne V. Castle, 98 Cal. 30, 32 Pae. 807. The lien is law in Colorado. Francis v. Wells, 2 Colo. 060. In Slide & Spur Gold Mines v. Seymour, 153 U. S. 509. 14 Sup. Ct. 842, from Colorado, the supreme court says that this lien appeals strongly to the consideration of equity. In Texas the lien is usually named in the deed or in the purchase notes; but an omission to do so, and acknowl- edging the receipt of the price, does not defeat the lien. Clark v. Collins, 76 Tex. 33, 13 S. W. 44. References in notes following will show the states in which the doctrine is recognized. Its central point is stated in Ogdeu v. Thornton, 30 N. J. Eq. 569, that the acknowledgment of receipt in or upon the deed does not exclude the lien. In Indiana the lien is only enforced after ex- haustion of personalty. Lord v. Wilcox, 99 Ind. 491; Bottorl v. Conner, 1 Blackf. 287. (738) <^'ll- 8] INCUMBRANCES. § 97 trusted to other security, — either to the obligation of a third person, along with, or in place of the buyer, or the pledge of other land or of goods or effects.'*" But the presumption of waiver arising from the taking of a security is open to rebuttal. Such at least has been the opinion of the highest authorities; and "if, under all the circum- stances, the waiver remains in doubt, then the lien attaches." '*•' The intention not to rely on the lien is shown most clearlj', when the seller insists upon and obtains a mortgage upon a part of the land sold, or on the whole land sold, for only a part of the debt.'*' The single obligation of the buyer, whether by note, bill of exchange, check not covered by funds, or by bond, whether at short or long maturity, is not regarded as a waiver of the lien. English cases 148 Baum V. Grigsby, 21 Cal. 172; Wells v. Haiter, .56 Cal. 342; Dudley v. Dickson, 14 N. J. Eq. 252; Wilson v. Sawyer, 74 111. 473 (personal security); Haskell v. Scott, 56 Ind. 344 (stranger giving note for married wuman); Mc- Learn v. McLellan, 10 Pet. G28, G40 (mortgage on otlier land); Wisconsin Ji. & F. Ins. Co. Bank v. Filer, S:i Midi. 496, 47 X. W. 321 (note of third person pro tanto); Sears v. Smith. 2 Mich. 244; Hammett v. Stricklin, 99 Ala. 616, 13 South. 573; Richards v. McPherson, 74 Ind. 158; Dietrich v. Folk, 40 Ohio St. 635; Brown v. Christie, 35 Tex. 691; Chicago G. W. R. Laud Co. v. Peck, 112 111. 408; Conover v. Warren, 1 Gilm. 498; Cowl v. Varnum, 37 111. 181; Boynton v. Champlin, 42 111. .57 (acceptance of billj; Ilett v. Collins, 103 111. 74 (pro tanto). Secus, where husband gives notes on purchase by wife, Strohm v. Good, 113 Ind. 93, 14 N. E. 901; Petry v. Ambrosher, 100 Ind. SID; or the real buyer gives the note and has deed made in another's name, Corlies v. Rowland, 2G X. J. 311; Bcal v. Harrington, 116 111. 113, 4 N. E. 664; Crampton v. Prince, ^3 Ala. 246, 3 South. 519; Burrus v. Roulhae's Adm'x, 2 Bush (Ky.) 39 (where subpurchaser's note is received on resale); similar, Whetsel v. Roberts, 31 Ohio St. 503; Boyd v. Jackson, 82 Ind. 52.5 (see, con- tra, Scott V. Maun, 36 Tex. 157). But the parties may agree that outside se- curity shall not waive the lien. Lord v. Wilcox, 99 Ind. 491. In Knkham v. Boston, 67 111. 599, the husband's mortgage note defeated the lien on land sold to wife. 147 Story, Eq. .lur. § 1224; Cordova v. Hood, 17 Wall. 1; Slide & Spur Gold Mines v. Seymour, 1-53 U. S. 509. 517, 14 Sup. Ct. 842, where a clause in the contract of sale to convey "free from charge and incumbrance" was made to mean any incumbrance paramount to vendor's deed. 148 Brown v. Gilman, 4 Wheat. 255; Fish v. Howlaud, 1 Paige, 20; Meigs V. Dimock, 6 Conn. 458 (life lease back as part consideration). But Dusenbury V. Hulbert, 59 N. Y. 541 (lien good till mortgage made for purchase money). And taking such mortgage a few days after the sale does not let in a judg- ment rendered meanwhile. Koos v. Ewing, 17 Ohio, 500. (739) § 97 LAND TITLES IN THE UNITED STATES. [Ch. 8 have even upheld the vendor's lien in favor of his executors, where the bond was made payable after his death.^*" The American cases generally have not attached the lien to a consideration which cannot be expressed in a sum of money; for instance, to a covenant to sup- port the vendor during his life time; though there is perhaps no form of purchase price of which the payment ought to be more care- fully guarded and enforced.^ ^'' When the consideration is to be paid by exchanging other lands for those sold, or in merchandise of any kind, opinions are divided; but it seems that when the amount is expressed in units of money, a choice given to the buyer to pay in goods or effects or in some irregular currency, or to payoff an incum- brance, does not defeat the lien.^^^ The security taken, either in the 14!) Evans v. Goodlet, 1 Blackf. (Ind.) 246; Gaison v. Green, 1 Johns. Ch. 308; White v. Williams, 1 Paige, 502; Aldridge v. Dunn, 7 Blackf. (Ind.) 24!> (and extending time on such note does not extinguish the lien); Vandoren v. Todd, 3 N. J. Eq. 397 (note payable after third person's death); Johnson v. Scott, 34 Mo. 129 (renewal no waiver). Giving time indefinitely, Walter v. Hanson, 33 Minn. 174, 24 N. W. 186. Money left with vendee as indemnity against inchoate dower, lien attaches. Eedford v. Gibson, 12 Leigh (Va.) 332 (a bond with yearly interest during the vendor's life, the principal to be paid there- after; liens given by Lord Lyndhurst, reversing the master of the rolls in Winter v. Lord Anson, 3 Russ. 488). But an agreement to wait for payment out of the sale of shares of stock, or of lots in a subdivision, excludes the lien. In re Brentwood Brick & Coal Co., 4 Ch. Div. 562; Kettlewell v. Wat- son, 26 Ch. Div. 501. 150 jxclvillip V. McKillip, 8 Barb. 552 (one objection was, that a thii-d per- son was also to be supported); Himes v. Langley, 85 Ind. 77 (no price agreed on, no lien). Contra, Patterson v. Edwards (s. p.), 29 Miss. 67; Beal v. Hai- rington, 116 111. 113, 4 N. E. 664, where the failure to convey lots, estimated at a fixed sum, was enforced by vendor's lien; Koch v. Roth, 150 111. 212, 37 N. E. 317 (unliquidated, no lien, nor where prices of land and of chattels are intermingled). 151 For assuming claims to othera, no lien was allowed in Chapman v. Beardsley, 31 Conn. 115 (but Connecticut does, perhaps, never allow it); His- cock v. Norton, 42 Mich. 32.5, 3 N. W. 8C8 (building houses on land, etc., no lien); nor for agreement to put up fences, Parrish v. Hastings (Ala.) 14 South. 783; Kelly v. Karsner, 81 Ala. 500, 2 South. 104 (exchange of lands un- der the circumstances); Meyer v. Smith, 3 Tex. Civ. App. 37, 21 S. W. 99.'i (though price payable in good.s); Deason v. Taylor, 53 Miss. 697 (payable in certificates); Plowman v. Riddle, 14 Ala. 109 (in leather'!; Acton v. Wad- dington, 46 N. J. Eq. 16, 18 Atl. 356 (agreeing to pay vendor's husband); Strohm v. Good, 113 Ind. 93, 14 N. E. 'JOl (to pay off mortgage); Elliott v. (740) Ch. 8] INCUMBRANCES. § 97 obligation of third persons or in the pledge of other land or chattels, may be worthless at the time, or turn out so upon an attempt to realize upon it, and may yet work a waiver; but if it is a void ob- ligation, as that of a married woman, ha\ing no power to malce con- tracts, or a void conveyance or mortgage, e. g. one by a mar- ried woman, without the lawful forms or consent of the husband, it will not have that effect.^" And where securities, valid but worthless, have been palmed off on the vendor by fraud or misrepre- sentation, equity will relieve him, and restore the lien."^ However, the courts exercising this jurisdiction have wielded a vei'v wide discretion in either allowing or disallowing the lien, ac- cording to the circumstances of each case, as governing the sup- posed intention of grantor and grantee. Thus a lien can hardly be intended in a conveyance between wife and husband, where the seeming object of the deed was to give him a basis for credit; or in a deed of land to one who enters a partnership, and needs it as his share of the assets; and so in any case, where in conscience the seller ought not to set up a lien against third persons who might, whether with or without knowledge of the lack of payment, deal with the vendee.^ °* This equity is good against the vendee himself, his heirs Plattor, 43 Ohio St. 198, 1 N. E. 222 (mortgage on land given in exchange). Contra, Richards v. Lumber Co., 74 Mich. 57, 41 N. W. 860 (sale of timber for paying taxes on land no lien). 152 Otis v. Gregory, 111 Ind. 504, 13 N. E. 39; Gilbert v. Bakes, 106 Ind. 558, 7 N. E. 257; Bakes v. Gilbert, 93 Ind. 70; Felton v. Smith, 84 Ind. 485; Martin v. Cauble, 72 Ind. 67. 1=3 Fouch v. Wilson, 60 Ind. 64; AIcDole v. Purdy, 23 Iowa, 277; Tcbey v. McAllister, 9 Wis. 463; JIaddern v. Barnes, 45 Wis. 135; Yeomans v. Bell, 79 Hun, 215, 29 N. Y. Supp. 502; Seymour v. McKinsti-y, 106 N. Y. 230, 12 N. B. 348, and 14 N. B. 94; Himes v. Langley, 85 Ind. 77; Nysewander v. Low- man, 124 Ind. 584, 24 N. E. 355. 1B4 Dunton v. Outhouse, 64 Mich. 419, 31 N. W. 411 (the intent to retain the lien need not appear affirmatively, but want of certainty in terms of pay- ment points against it); s. p., Waterfield v. Wilber, 64 Mich. 642, 31 N. W. 553. In Huston v. Waldron, 96 Mich. 49, 55 N. W. 610, it is a question of in- tention; so in Lehndorf v. Cope, 122 111. 317. 13 N. E. 505; Hubbard v. Buck, 98 Ala. 440, 13 South. 364 (to partner); Donovan v. Donovan, 85 Mich. 03, 46 N. W. 163 (wife to husband) ; Reynolds v. City Nat. Bank, 71 Hun, 386, 24 N. Y. Supp. 1134 (same); Fox v. Eraser, 92 Ind. 265 (understanding that vendee will apply to pay debts); Mitchell v. Shaneberg, 149 111. 420, 37 N. E. 576 (in- tent to waive shown); Wasson v. Davis, 34 Tex. 167. In Manning v. Frazier, (741) § 97 LAND TITLES IN THE UNITED STATES. [Cll. 8) and devisees, and against all volunteers, i. e. all those taking by gift.^^" It is also good against judgment or attaching creditors, un- less the local registry laws positively forbid the setting up of an un^ recorded lien.^^° Where the deed of sale recites the nonpayment of the purchase money, and, a fortiori, where it reserves a lien for it; every purchaser is affected with notice ; for every man is supposed to have knowledge of every instrument under which he derives title.^'^' The lien is not good against "purchasers for value without notice," which embraces also those incumbrancers who take a legal security, that is, a mortgage; and in some states "purchasers and incumbran- cers" are named together in the statutes as being secure against secret equities.^ ^* But it has been held that one who takes a mortgage for an old debt is not a "purchaser for value," and certainly a trustee in an assignment for the benefit of creditors is not.^'*" 96 111. 279 (sale of mine on quarterly payments, as coal is sold), the leave to sell was deemed only a waiver pro tanto. iBBUpshaw V. Hargrove, 6 Smedes & M. (Miss.) 286 (donee); Garson v; Green, 1 Johns. Ch. 308 (heii-s); Warner v. Van Alstyne, 3 Paige, 513 (where ancestor had made improvements). As to dower, see under "Dower." But- terfield v. Okie, 36 N. J. Eq. 482 (against all subsequent equities); Porter v. Woodruff, Id. 174 (against donees). » 56 Hunter v. Hunter, 1 Civ. Law B. 101 (good against attachment); Rees V. Ludington, 13 Wis. 276 (superior to mechanic's lien). See other cases here- after, in section on "Lien of Judgment." 157 See cases below, under statutes of West Virginia, Iowa, and Kentucl^y, and cases, infra, from Texas. Also, Croskey v. Chapman, 26 Ind. 333; Lincoln v. Purcell, 2 Head (Tenn.) 143; Lucas v. Hendrix, 92 Ind. 54 (such a clause in the conveyance is called an "equitable mortgage," but is really an express lien). 168 lij. g. California Civ. Code, § 3048, Dakota Ter. Civ. Code, § 1803. For purchaser with notice, see Gault v. Trumbo, 17 B. Mon. (Ky.) 682 (arose before statute on the subject); Eedford v. Gibson, 12 Leigh (Va.) 332 (knowledge of debt for land is enough without notice that a lien is claimed); Ledos v. Ivup- frian, 28 N. J. Eq. 161. In Armstrong v. Ross, 20 N. J. Eq. 109, It was inti- mated that a mortgage valid as to vendee's husband was notice to purchasers. Koch V. Roth, 1.50 111. 212, 37 N. E. 317; Clift v. Nay, 105 Ind. 355, 5 N. E. 1 (notice before payment of price); Higgins v. Kendall, 73 Ind. 522 (s. p.|; Durette v. Briggs, 47 Mo. 356; McKnight v. Blight, 2 Mo. 110. Possession by vendor is notice, Seymour v. McKinstry, supra; Pell v. McElroy, 36 Cal. 268. 15 9 Burlingame v. Robbins, 21 Barb. (N. Y.) 327; High v. Batte, 10 Yerg. (Tenn.) 186, 335 (value given must be set forth and proved); Perkins y. Swank, 43 Miss. 349 (settlement of old debt not "value," quaere); Chance y. (742). ^h- 8] INCUMBEANCES. § .97 The vendor's lien is always held superior to any homestead right of the purchaser; not only as it antedates the latter, and is a rem- nant of the vendor's fee in the land, but also in many states by the very words of the statutes which regulate the homestead exemp- tion.^"" Often the vendor retains the legal title as a security, agreeing to convey on some later day, or when the purchase money is paid. He then has a lien at law, which equity will not disturb. He cannot be compelled to part with the title, until he is paid; and if the agree- ment is such that he shall convey before payment in full it would be held to mean that he shall have the usual security of a mortgage or express lien for the unpaid part of the price. The lien of such a vendor is of the same dignity with a mortgage, and stands good even against all purchasers.^ ''^ In a country in which purchases of land in either town or country are, in the great majority of cases, made partially on credit, and where sales are very frequent, the doctrine of the vendoi-'s lien is highly inconvenient Too much land is subject to a secret lien. The; conservatism of scriveners and conveyancers would not let them introduce in deeds of land the truth as to the payment of the con- sideration. In a few states, however, namely, the Virginias, Ken- tucky, and Texas, common sense bore off the victory; and deferred payments are often, in Kentucky always, secured by a lien expressly reserved in the deed.^"'' In the Virginias, in Kentucky, and in ilcWhorter, 26 Ga. 315 (mortgage for old debt is not); Seymour v. McKinstry, supra (want of notice must be alleged); Warren v. Fenn, 28 Barb. 333 (deed for benefit of creditors not); Blankensbip v. Douglas, 26 Tex. 225; and Orme V. Roberts, 33 Tex. 773 (creditor buying at bis own execution sale). See, also, Adams V. Buchanan, 49 Mo. 64. For purchasers overcoming lien, see Wenzel V. Schultz, 100 Cal. 2.50, 34 Pac. 696; First Nat. Bank of Sheffield v. Tomp- kins, 6 C. C. A. 237, 57 Fed. 20; McCarty v. Pmett, 4 Ind. 220; White v. Fisher, 77 Ind. Go (knew of sale on credit, but notes were overdue); Bartlett V. Glasscock, 4 Mo. C2 (stranger buying at execution sale) ; Selby v. Stanley, 4 Minn. 65 (Gil. 34). ISO Chapman v. Abrahams, 61 Ala. 108; McHendry v. Reilly, 13 Cal. 75; Phelps V. Conover, 25 111. 272. 161 Lewis V. Caperton, 8 Grat. 148; Yancey v. Maucli, 15 Grat. 300; Sluart V. Abbott, 9 Grat. 252 (see difference between this and the equitable lien in Rogers v. James, 33 Ark. 77); Bridge v. Young, 9 Tex. 401 (payment is condi- tion precedent of conveyance); Robinson v. Appleton, 124 111. 276, 15 N. E. 761. 162 The usual form is: "In consideration of $ . paid or to be paid as (743) § 97 LAND TITLES IN THE UNITED STATES. [Ch. 8 Iowa the statute has wisely stepped in to regulate this lien. The object of these statutes is not to protect purchasers for value with- out notice, for they were never affected by tjje lien; but judgment creditors, purchasers who are not quite free from notice, even vol- unteers. The Iowa statute disallows the lien unless it is reserved by the conveyance, or unless a suit is brought for its enforcement before a conveyance by the vendee. Between the original parties, therefore, the old equity subsists; but volunteers and purchasers with notice, other than the notice of a pending suit, are free from it.^°^ In the Virginias there is, under the statute, no lien unless it "be expressly reserved on the face of the conveyance," which seems to let in the lien of a judgment, when that of the vendor is not thus expressed.^"* In Kentucky, where the reserved lien has wholly taken the place of mortgages for the price of lands, the grantor has no lien for the unpaid part "against bona fide creditors and pur- chasers, unless it is stated in the deed what part of the consideration remains unpaid." Thus the old equity still stands good between the vendor on the one hand and the vendee and volunteers under him.^"^ When the lien is (as usual) expresslj^ reserved, the amount follows: $ . part thereof, in cash, $ . the residue thereof, in notes at months, each for ? ," etc., — "for the securing of which notes a lien is hereby retained, and the receipt of which money and notes is hereby ac- knowledged." Such reservations are recognized in other states as mortgages in effect. Park v. Snyder, 78 Ga. 571, 3 S. E. 557. 103 Iowa, § 1940. Doubt had been expressed before the Code first containing the section whether the lien was in force in the state, Porter v. City of Dubuque, 20 Iowa, 440; it could not affect the right of third parties, Allen v. Loring, 34 Iowa, 499; but was good between vendor and vendee, Johnson v. ^IcGrew, 42 Iowa, 555. For elfect of the statute, see Rotch v. Hussey, 52 Iowa, 694, 3 N. W. 727, recognized in Fisher v. Shropshire, 147 U. S. 133, 13 Sup. Ct. 201. As to effect on judgment creditors, see hereafter, under head of "Lien of the Judgment." 164 Virginia Code, § 2474; West Virginia, c. 75, § 1; Stoner v. Harris, 81 Va. 451; Smith v. Henkel, Id. 524 (the lien is not a matter of discretion, but of right); Stoner v. Harris, Id. 451 (statute does not affect vendor holding on to title). 105 Gen. St. Ky. c. G3, art. 1, § 24, now St. 1894, § 2358. The Revised Stat- utes of 1852 did not contain the words "against creditors and purchasers," disallowing the implied lien altogether; otherwise now. Ross v. Adams, 13 Bush (Ky.) 370. The Revised Statutes also wanted it "expressly" stated how much was due. Ledford v. Smith, 6 Bush (Ky.) 129; Long v. Burke, 2 Bush (Ky.) 90. (lU) ^i^- *] INCUMBRANCES. § 97 remaining unpaid need not be exactly stated, and the note of a third person will be secured as well as that of the buyer; but when it is not the lien does not extend beyond the latter's own liability.^"" In the absence of the proper words in the deed the Kentucky courts have allowed a lien on the ground that they were omitted by mistake or fraud.^®' The sales of land under decrees of a court, including those known as an "administrator's licenses," are generally made upon credit, with a provision in the law, or in the judgment ordering the sale, that the deferred payments are to be secured by mortgage or an express lien. If this requirement should not be followed, the lien would attach nevertheless, as equity considers that to be done which ought to be done.^°* Upon the sale of land, held by equitable title, such as a title bond or a certificate of purchase at a sheriff's sale, the lien attaches as much as upon the sale of the legal estate. The sale is made by transfer of the title bond. As such transfer carries the legal title to the bond, perhaps the next transferee might set up the rights of a purchaser for value.^"" It is an American, not an English, refinement upon the implied vendor's lien law, that the right or equity is personal to the seller of the land, and it is the rule (except in Indiana, Missouri, and Texas) 166 Keith V. Wolf, 5 Bush (Ky.) 646; Beyland v. Sewell, 4 Bush (Ky.) 637; Pack V. Carder, Id. 121, where both sides Introduced parol proof to show whether a lien was intended or waived. 167 Worley v. Tuggle, 4 Bush (Ky.) 108 (one judge dissenting, and disap- proved by the bar of the state) ; Phillips v. Skinner, 6 Bush (Ky.) 602. 168 Thus the Kentucky Code of Practice (section 699) says: "A lien shall exist on real estate sold by order of court." Jolly v. Stallings, 78 Tex. 605. 14 S. W. 1002; Woods v. Ellis, 85 Va. 471, 7 S. E. 852; Martin v. Neblett. 80 Tenn. 388, 7 S. W. 123 (must take notice of decree, though lien not reserved in the deed), quoting Mertins v. JollifCe, 1 Amb. 311, and Moore v. Bennett, 2 Ch. Cas. 246, for principle that every man has notice of every link In his title. 169 Calvin v. Duncan, 12 Bush, 102; Bybee v. Smith, 88 Ky. 648, 11 S. W. 722; Amory v. Reilly, 9 Ind. 490 (the lien better than on s.ile of legal estate, because there can be no "purchaser"); Johns v. Sewell, 33 Ind. 1; Barrett v. Lewis, 106 Ind. 120, 5 N. E. 910; Palmer v. Bennett, 81 Tex. 451, 19 S. W. 304 (pre-emption land, no patent issued, lien applies); Bledsoe v. Games, 30 Mo. 448; Gee v. McMillan, 14 Or. 268, 12 Pac. 417 (trust estate; refers to Pease v. Kelly, 3 Or. 417, for the recognition of this lien in Oregon, and to the name "grantor's lien," which some writers give it in the case of the sale of an equity). (Tir,) § 97 LAND TITLES IN THE UNITED STATES. [Ch. 8 that the transfer of the demand, or of the note and bond represent- ing the demand, for the purchase money, does not carry with it the lien to the assignee. As the lien cannot live separately from the demand which it subserves, an outright assignment thereof would therefore destroy it."° But there is a very broad exception: The vendor may assign his demand to a creditor as a collateral, or pledge it to one or more creditors, or perhaps he may sell and indorse it even for ready money, undergoing the obligation of an indorser; for in any of these cases he retains an interest in having the note or bond paid; but he must on no account sell without recourse.^" At any rate, when the assigned note or bond is dishonored, and the vendor has to take it up, and does so, the lien revives in his hands.^" But where the lien is expressly reserved, or set forth in the deed in the manner pointed out by statute, or where the vendor holds the legal title for his security, such lien or security follows the demand without question.^'" And in such a case, if the surety for the 170 Morshier v. Meek, SO 111. 79 ("an established rule In equity"); Grubn v. Richardson, 128 111. 178, 21 N. E. 18; Law v. Butler, 41 Minn. 482. 47 N. W. 53; Hammond v. Peyton, 34 Minn. 474, 27 N. W. 72; Shall v. Biscoe, 18 Ark. 142, reviewing the English eases; Williams v. Young, 21 Cal. 227 (in its nature is assignable); Iglehart v. Armiger, 1 Bland (Md.) 519 (same phrase); Law v. Butler, 44 Minn. 482, 47 N. W. 53 (not generally); in Tennessee a number of cases, from Green v. Demoss, 10 Humph. (Tenn.) 371, to Pillow v. Helm, 7 Baxt. (Tenn.) 545. Contra, Johns v. Sewell, 33 Ind. 1 (quoting older Indiana cases as settling the rule) ; Sloan v. Campbell, 71 Mo. 387 (as positive for Mis^ souri); Hodges v. Roberts, 74 Te.\;. 517, 12 S. "\V. 222. In Alabama, section 1764 of the Code makes this lien assignable. The decree to be obtained on the lien can be assigned. Woolley v. Wickerd, 97 Cal. 70, 31 Pac. 733. I'l Tanner v. Hicks, 4 Smedes & M. (Miss.) 300; Carlton v. Buckner. 28' Ark. 66; Crawley v. Riggs, 24 Ark. 563; Hallock v. Smith, 3 Barb. (N. Y.) 267; Gate V. Gate, 87 Tenn. 41, 9 S. W. 231. In Schnebly v. Kagan, 7 Gill & J. (Md.) 120, the court of appeals of Maryland puts its decision against the lien mainly on the ground that the demand had been sold without recourse. A' fortiori, the remedy passes to executors, etc. Conover v. Warren, 1 Gilman, 498; Burger v. Potter, 32 111. 66. 172 Gotten V. McGehee, 54 Miss. 510; Lindsey v. Bates, 42 Miss. 397. 173 Blair v. Marsh, 8 Iowa, 144; Dingley v. Bank of Ventura, 57 Cal. 467; Elmendorf v. Beime, 4 Tex. Civ. App. 188, 23 S. W. 315; Adams v. Cowherd, 30 Mo. 458; Carpenter v. Mitchell, 54 111. 126; Stevens v. Ghadwick, 10 Kan. . 406. But the assignee is liable to all set-offs and equities, Gordon v. Rixey, 76 Va. G94. (74G) *^h. 8] INCUMBRANCES. § 97 buyer, is compelled to pay the price (as happens frequently upon bonds with surety given at judicial sales), he is subrogated to the lien; and this has been done for the surety, even as to the secret and implied lien, and by courts which held this to be unassignable.''* But a person who has simply advanced the money to pay for the land cannot claim to be subrogated, though an equity has been worked out for one who has not only advanced the money but managed the purchase, on the ground that he stands in the light of a seller to the person to whom the land is conveyed."' Purchase notes are in some states (especially in Texas) often given for the price, expressing on their face that they are secured by lien on the land, conveyed on the same day by the payee to the maker. If the reference to the deed is sufficiently clear to satisfy the statute of frauds, or if the land is identified in the body of the note itself, then that note is simply an equitable and generally an unrecorded mortgage, deriving its force from the signature of, and delivery by, the maker, the owner of the purchased lands; and it is enforced against all, except purchasers for value without notice."" 174 Burk V. Chrisman, 3 B. Mon. (Ky.') 50 (express lien for bonds at decretal sale); Roberts v. Burce, 91 Ky. 379, 15 S. W. 872 (though several renewals of note); Ballew v. Roler, 124 Ind. 557, 24 N. E. 976 (implied lien); Brick v. Bual, 73 Tex. 511, 11 S. W. 1044 (joint buyer overpaying his share); Tomp- kins V. Mitchell, 2 Rand. (Va.) 428; Meluy v. Cooper, 2 Bland. (Md.) 199, note; see disallowed as to implied lien in Henley v. Stemmons, 4 B. Mon. (Ky.) 131. And one paying off mortgages or other incumbrances might stand in the same light, Lockwood v. Bassett, 49 Mich. 547, 14 N. W. 492. 175 Jiarquat v. Marquat, 7 How. Prac. 417; Kelly v. Kelly, 54 Mich. 30, 19 N. W. 580 (none for paying mortgages); Wood v. Wood, 124 Ind. 545, 24 N. E. 751 (stranger paying price not subrogated); Truesdell v. Callaway, 6 JIo. 609; Demeter v. Wilcox, 115 JIo. 034, 22 S. W. 613. Contra, Williams v. Rice, 60 Mich. 102, 26 N. W. 846; Price v. Courtney, 87 Mo. 387, 395; Wool- dridge v. Scott, 69 Mo. 669; Coe v. New Jersey M. Ry. Co., 31 N. J. Eq. 105, 135 (inclines to extend subrogation); Dwenger v. Branigan, 95 Ind. 221 (virtual seller); Carey v. Boyle, 53 Wis. 574, 11 N. W. 47 (s. p.); Jones v. Parker, 51 Wis. 218, 8 N. W. 124 (s. p.). See, also, Jones v. I^ckard, 89 Ala. 575, 8 South. 103. 176 Cundiff V. Corley (Tex. Civ. App.) 27 S. AV. 167; Bergman v. Blackwell (Tex. Civ. App.) 23 S. W. 243 (where notes were given for share of an heir in whole estate, and the lien was apportioned by the court between lands and chattels); Moran v. Wheeler (Tex. Civ. App.) 26 S. W. 297; Case v. Bum- stead, 24 Ind. 429; Shanefelter v. Kenwortby, 42 Ind. 501. As to description (747) § 97 LAND TITLES IN THE UNITED STATES. [Ch. 8 The lien, whether implied or reserved, is not barred by taking a judgment at law for the debt,^" nor by the bankruptcy of the ven- dee. Indeed, the law gives the lien because the judgment at law might prove unavailable, and because the purchaser may become a bankrupt."' But, by selling the land under an attachment or gen- eral execution In proceedings in personam, the vendor loses his lien, and the purchaser at the sheriff's or master's sale does not obtain the benefit thereof.^' ° The vendor's lien must be confined on the one hand to the estate sold, on the other hand to the price agreed upon; that is, none but the vendor of the estate, or one representing him, can enforce the lien, and he can enforce it only for its value, as agreed between him and the buyer, but not for other charges, such as advances or serv- ices rendered.^*" A mortgage given for the purchase money is, whenever equity requires that it should be, regarded like the ven- dor's lien, as a remnant of the estate sold, and therefore superior to any lien, whether by judgment, or by mortgage of after-acquired property, against the estate of the vendee.^*^ or identification of the land, see Slade v. Young, 32 Tex. 668; Harris v. Crit- tenden, 25 Tex. 325; Davenport v. Chilton, 25 Tex. 518; McConkey v. Hen- derson, 24 Tex. 212; Daugherty v. Eastburn, 74 Tex. 68, 11 S. W. 1053; lien note to party who advances purchase money good, Johnson v. Townsend, 77 Tex. 039, 14 S. W. 233; good between parties, though not for price, Wright V. Campbell, S2 Tex. 388, 18 S. W. 700; but not against maker's wife, Mc- Camly v. Waterhouse, SO Tex. 340, 10 S. W. 439; s. p., Claes v. Dallas Home- stead & Loan Ass'n, S3 Tex. 50, IS S. W. 421. 177 Coe V. New Jersey il. Ry. Co., 31 N. J. Eq. 105; Graves v. Coutant, 81 N. J. Eq. 763; previous judgment at law not necessary, Scott v. Crawford, 12 Ind. 410; Clark v. Hunt, 3 J. J. Marsh. 553 (judgment and stay bond no bar). Proving against estate no waiver, Delassus v. Poston, 19 Mo. 425. 178 Graves v. Coutant, supra. 170 Nutter v. P^ouch, 86 Ind. 451; Meyer v. Paxton, 4 Tex. Civ. App. 29, 23 S. W. 284; but not when the bid is set aside, Adams v. Buchanan, 49 Mo. 64. See Craus v. Board, 67 Ind. 102, as to levy on other lands. Watt v. White, 33 Tex. 421 (attachment to be exhausted), is not quite clear. 180 Hardinger v. Ziegler, 6 Cin. Law B. 326 (unassigned dower, not estate, no lien); Fordice v. Hardesty, 36 Ind. 23 (part owner for his share); but see Oglesby v. Bingham, 69 Jliss. 795, 13 South. 852, where widow was allowed by the heirs to take a note for a child's share; Bedford v. Gibson, 12 Leigh, 332 (not price, not enforceable); O'Connor v. Smith, 40 Ohio St. 214. See, also, Wynn v. Flannegan, 25 Tex. 778. 181 u. S. V. New Orleans & O. R. Co., 12 Wall. 362; a married woman's mort- (748) Ch. 8] INCUMBRANCES. § 9S § 98. Liens Akin to the Vendor's Lien. We class those liens as being akin to the vendor's lien which at- tach to the land, or estate therein, at the very moment when it comes to the hands of the owner, and which arise because the ownership is acquired on the terms of paying a sum of money, or of doing some act, the performance of which can be valued in money. The fore- most instances are these: A devise of land, out of which or for which the devisee is to pay a legacy, a named debt, or a charge on the testator's estate; a share in the parent's land falling to a child or grandchild, against which advancements are charged in favor of the other children or grandchildren; owelty of partition, whether in pais, by deed, or by the judgment of a court; a sale of land, on which the buyer has paid the purchase money, either in whole or in part, and which sale, upon any ground, is set aside, becomes inoperative or is rescinded when a lien arises for the return of the money paid ; in the same class of cases, also, a lien for the value of improvements which the purchaser has in the meanwhile put upon the land, and for taxes and assessments paid by him.^*^ gage for purcliase money binds the land, Schnyder v. Noble, 94 Pa. St. 2SGr Chase v. Hubbard, 99 Pa. St. 22G. Such a mortgage need not show on its face what it is for, Appeal of City Nat. Bank, 91 Pa, St. 167. But where the mortgage is made to a third person, who advances the price, its character cannot be shown against a bona fide purchaser, Albright v. Lafayette Bklg. & Sav. Ass'n, 102 Pa. St. 411. In several states the statute takes special care of these mortgages, if given at the time of purchase, giving them preference over previous judgments or attachments against the mortgagor: New York, Code Civ. Proc. § 1254; New Jersey, "Conveyances," § 77; Indiana, Rev. St. § 1089; and so in Kansas, Maryland, and Jlississippi; still broader are the provisions of the California laws (Civ. Code, § 2898), and in the Dakotas (Civ. Code, § 1712). As to the conflict of the purchase money with dower, see here- after, under "Dower" and "Lien of Judgment." A person buying land ex- pressly in trust for another can bind it by purchase-money mortgage, Strong v. Ehle, SG Mich. 42, 48 N. W. 868; Aultman & Co. v. Silha, 85 \Ms. 359, 55 N. W. 711 (after-acquired property bound by purchase-money mortgage in preference to grantee's mortgage on future acquisitions); Sawyer v. Northan, 112 N. C. 261, 16 S. E. 1023 (father buying in his son's name, and deceptively giving mortgage for purchase money in his own, holds good). 182 In the notes to Mackreth v. Symmons, 1 White & T. Lead. Cas. Eq. 447. the lien of the purchaser for money advanced on the sale is discussed, and cases are quoted. (74!)) § 98 LAND TITLES IN THE UNITED STATES. [Ch. 8 Among these. liens, that for owelty of partition stands nearest to that of the vendor; for the cotenant to whom a purpart larger than his true share is assigned is made to buy this excess with the money. His fellow, or the one to whom this money is to go, is truly the vendor of this excess. The lien is therefore superior to any which the cotenant who receives the land has created, even before the partition. ^^^ And, where several of the part owners are awarded an owelty of partition against one purpart, their liens are of equal rank, and none of them can enforce that in his own favor to the prejudice of the others.^^* The simplest way to secure the owelty of partition would be an order making the payment thereof a condi- tion precedent for the vesting of the larger purpart; but probably courts or commissioners in partition have not the power to impose such terms, under laws governing partition. The lien of the purchaser who is, by the vendor's fault, defeated in his purchase, carries with it the right to retain the possession lawfully obtained under the ineffectual sale until the money paid on the purchase is repaid, or until it is recouped out of the rents and profits, the lienor having the same rights as a mortgagee lawfully in possession.^ ^^ A fair instance of such a lien arises when the land on which only a part has been paid is sold or levied upon under execution. The purchaser may be unwilling to enforce his execu- tory contract against the creditor; the vendor, being in the wrong, cannot insist on the purchase being carried out; hence a lien for M'hat has been paid is the readiest and most equitable solution.^'* But no lien arises where the purchase is unlawful, and can, for that reason, not be carried out. For instance, if a sheriff or his deputy 183 McCandless' Appeal, 98 Pa. St. 489. 184 Meyers v. Rice, 107 N. C. 24, 12 S. E. 66. In states in whicli one part owner may, under some circumstances, talie tbe whole tract, upon paying off tlie others, the lilie lien would attach to the undivided part thus gained. Freeman v. Allen, 17 Ohio St. 527. 185 Payne v. Wallace, 6 T. B. Mon. 3S0 (decided, however, at a time when the mortgagee's right to possession had a stronger hold than now); Anderson v. McCormick, 18 Or. 300, 22 Pac. 10G2. 186 Geoghegan v. Ditto, 2 iletc. (Ky.) 437, where the vendor by title bond had "given a levy" on the land. In Mille"- v. Hall, 1 Bush, 238, on the other hand, land sold under decree of court had to be returned after a reversal, and a lien was allowed for some payments made. (750j ^h. 8] INCUMBRANCES. § 98 bids at his own sale, and pays for land which he cannot lawfully ac- quire, and must therefore abandon, he has no lien for his protection ; for to allow it would assist him in a violation of the law, and equity will not assist him.^^^ Where the vendee under a parol sale has taken possession, paid a part or the whole of the purchase money, and has erected lasting improvements, and the vendor taking advantage of the statute of frauds, turns him out (as he may do wherever the doctrine of "part performance" is not received), the former not only can recover back all his outlays, but he has a lien for them, and for the value of his lasting improvements, after deducting therefrom rents or profits, proceeds of limber or minerals, and waste. For the details of each of these items the reader is referred to works on Equity.^*' The outlays which one of several cotenants makes, beyond his own share, in buying up outstanding titles, discharging incumbran- ces, and paying taxes, are, either on the ground of subrogation (of which hereafter), or by reason of an equity somewhat akin to that of the vendor, a lien on the shares of the other cotenants. This is a matter of common agreement. As to the lien of a coteuant for repairs and improvements, the authorities are divided.^^' A lien closely allied to that of the vendor is that which the will devising land to A., and ordering him to pay a sum of money to B., lays upon the land; for this legacy may be said to be a part of the consideration by which A. acquires the devised land. We assume the question to be settled, by a proper construction of the will, that B.'s legacy is to come out of A.'s devise, and consider here only whether A. becomes only personally liable by accepting the devise, or if the legatee has a lien. The views entertained in the several 187 Etlinger v. Tansey, 17 B. Mon. 369. 188 McCampbell v. McCampbell, 5 Litt. (Ky.) 92, 98; McCracken v. Sanders, 4 Bibb (Ky.) 511, where the chancellor enjoined the judgment in ejectment un- til the compensation was paid, and thus gave an effectual lien, which in mod- ern practice in most of the state courts, but not in the federal courts, could be reached by an eauitable defense to the action at law for the land. In Dean v. Cassiday, 88 Ky. 572, 11 S. W. 601, the court sold the land involved in the rescission, and out of the proceeds paid the vendee for his improvements. 189 Tucker v. Tucker (1803) Print. Dec. (Ky.) 302 (lien enforced by enjoining partition until it is paid); Venable v. Beauchamp, 3 Dana, 330 (for removing incumbrances and adverse titles;. (751) § 98 LAND TITLES IN THE UNITED STATES. [Ch. 8 states are by no means in harmony. In Kentucky the statute de- clares every legacy which a devisee is directed to pay a lien upon the thing devised. In North Carolina the same rule has been set- tled by repeated decisions of the courts; also by a late case in lowa.^"" In New York and in New Jersey, also, the devise of land to one on condition that he pay the legacies by the will makes them a charge on the devised lands, unless there is something in the will to show a different intention.^ "^ But in Pennsylvania, Maryland, and Rhode Island, a direction to the devisee to pay legacies does not raise a lien. It was objected that a lien for a small annuity (a shape which such legacies often take) is oppressive, but it may be answered that denial of the lien will often be the denial of justice.^"^ In Indiana, Illinois, and other states, the question seems not to have come up in this clear-cut form of a direction given to, or con- dition laid upon, the devisee, and it is doubtful how it will be an- swered.^ "= 100 Kentucky St. 1894, § 20GG; Aston v. Galloway, 3 Ired. Eq. 126 (devise to A., "bo paying to C. and D. $ at their coming of age," lien enforced against purchaser). Devereux v. Devereux, 78 N. 0. 380, follows this. But a re(iuest that B. may live with A., the devisee, does not put a lien for B.'s board on the devisee's land. Martin v. Goode, 111 N. C. 288, 16 S. E. 232; Henry v. Griffis (Iowa) 56 N. W. 670 ("the boys is to pay" legacy to daughter, gives lien); * ii'i Birdsall v. Hewlett, 1 Paige, 32; Harris v. Fly, 7 Paige, 421; Loder v- Hatfield, 71 N. Y. 9^.. Bevan v. Cooper, 72 N. Y. 317. has been cited to th(> contrary; but th.nt deals with the incidence of the bequest, not with the lien. In Maine, the inclination is the same, Merrill v. Bickford, 65 Me. 118. Wyck- off V. Wyckoff, 48 N. J. Eq. 113, 21 Atl. 287 (tract of land devised to three sons, they to pay annuity to widow, held a charge). The court says there is a charge in two cases: First, when the devisee is directed to pay; second, when the legacy is followed by a residuary devise, — and cites Schanck v. Arrow- smith, 9 N. J. Eq. 314, 330; Cox v. Corkendall, 18 N. J. Eq. 138; also, English precedents. Cross v. Kennington, 9 Beav. 150; Gallemore v. Gill, 8 De Gex, M. & G. 567; and others, going back through the Veseys. 182 Larkin v. Larkin, 17 R. I. 461, 23 Atl. 19; Cable's Appeal, 91 Pa. St. 327: Sauer v. Mollinger, 138 Pa. St. 338, 22 Atl. 89: Owens v. Claytor. 56 Md. 129 (says, of giving the lien in all cases, "such a position cannot be main- tained on principle or authority"). 10 3 Haskett v. Alexander, 134 Ind. 543, 34 N. E. 325 (legacy to be paid after sale of land); Da:vidson v. Coon, 125 Ind. 407, 25 N. E. 601 (equitable lien raised, but there was more than a direction). (752) Ch. 8] INCUMBRANCES. § 99 Where the legacy is taken out of a residuary devise of land, or out of the whole residuary mass of both land and personalty, the lien, in the former case for the whole amount, in the latter for the deficit after exhausting the personalty, follows as a matter of course. The only way to deduct money from the land, is to raise a lien there- on for its payment.^"* A direction that the residuary devisee shall pay the debts of the testator, more especially if the residue of lands and personalty is thrown together, is no more than what the statute law, which sub- jects lands generally to the payment of all debts alike, would require; hence such a direction would not authorize any proceeding to sub- ject the land to sale, other than that which, under the statute, could be instituted without any such clause in the will.^^'^ It is, however, competent for the testator to charge his debts upon his lands, or upon some part of them, in such definite words that the lien could not be cleared away except by the payment of the debts, or through a sale of the lands in an administration suit.^°° § 99. Rights of Assignees. The assignee of a regular mortgage is not considered as a pur- chaser of the land described therein. Even where a conveyance of the land by the mortgagee carries the debt, still his grantee is only the assignee of the debt, and cannot claim the rights of a pur- chaser of the land in good faith. The mortgagee, by selling the note or bond, divests himself of all interest, so far that in most states he is no longer even a proper party to a suit to enforce or to assail 101 Lewis y. Darling, IG How. 1; Bencli v. Biles, 4 Madd. 188; In re Camp- bell (1893) 3 Cb. Div. 468. In modern American practice under this head, when the Incidence of the legacy is admitted, there is no difficulty about the right to subject the land. 195 Turner v. Gibb, 48 N. J. Eq. 526, 22 Atl. 580, where the real and per- sonal property were blended into one mass. 196 If, however, the devisees are allowed to sell the land so charged, the lien is gone; for, as shown hereafter, under the head of "Powers," the pur- chaser is not bound to see to the application of the purchase money. Groten- kemper v. Bryson, 79 Ky. 353. But the lien can, at any r.ite. be enforced by suit. Drake v. EUman, 80 Ky. 434 ("all of which are to be paid out of my estate" was the language of the will). LAND TITLES V.l 48 (753) § 99 LAND TITLES IN THE UNITED STATES. [Ch. 8 the mortgage."' The assignee of the note or bond must meet all defenses to it, and if it is not negotiable, and taken by him before maturity in due course of trade, he stands no better than his as- signor; if he cannot collect the debt by process in personam, he can- not enforce the security on the land.^°* But when the demand is negotiable, and the party whose land is pledged is the maker of the negotiable paper, and is liable as such, there is no strong reason why a holder of the paper "for value and in course of business," as the law merchant has it, should not be allowed to recover by fore- closure or decree of sale in chancery, if he could recover at law, and, waiving the mortgage, take the land under execution; though, in- deed, intervening liens or the homestead exemption would often de- feat the levy. The supreme court of the United States has taken 19T Stephens v. Weldon, 151 Pa. St. 520, 25 Atl. 28 (assignee not purcbaser). Even in Nortli Carolina, any delivery of the note, with or without an indorse- ment, carries the mortgage. Jenkins v. Wilkinson, 113 N. C. 532, 18 S. E. G96; Lambertville Nat. Bank v. McCready Bag & Paper Co. (N. J. Ch.) 15 Atl. 388 (executor of trustee holding mortgage for creditors); Matheson v. Thomp- son, 20 Fla. 790 (mortgagee, having assigned the debt, not necessary party); Keister v. Myers, 115 Ind. 312, 17 N. E. 161 (mortgagee who has sold note not a necessary party to suit on mortgage); Moreland v. Houghton, 94 Mich. o-tS, 54 N. W. 285 (assignment signed by agent not appointed in writing); a mortgage is avoided by alteration, while a conveyance is not, Mclntyre v. Velte, 153 Pa. St. 350, 2.j Atl. 739 (quoting from Wilson v. Slioeuberger, 31 Pa. St. 299, in strong words, the modern view) ; Jordan v. Sayre, 29 Fla. 100, 10 South. 823 (conveyance of the land by the mortgagee, without more, is inoperative); s. p., Watson v. Hawkins, 60 Mo. 550. Even in the New England states, the mortgage is assets in the hands of the executor, if not foreclosed in the mortgagee's lifetime; e. g. A'ermont, St. § 2150. The interest in a "deed of trust" (see for its definition hereafter) goes in like manner with the trans- fer of the debt by law. Tingle v. Fisher, 20 W. Va. 497. The arrangement in use in Georgia under the law cited above (section 96, note 136) would make the grantee from the so-called "vendee" by deed of the land a bona fide pur- chaser, who could hold the land till the debt named in the bond Is paid. One holding the note for the debt by delivery only cannot take this position. Plant- ers' Bank v. Prater, 64 Ga. 609. The gift of a secured note, by delivery of the mortgage without the note, was held void in McHugh v. O'Connor, 91 Ala. 243, 9 South. 165. 198 Chauneey v. Arnold, 24 N. Y. 330; Cooley v. Harris, 92 Mich. 126, 52 N. W. 997; Wood v. Ludlow, 110 N. Y. 154, 17 N. E. 726; Reineman v. Robb, 98 Pa. St. 474; Briggs v. Langford, 107 N. Y. 680, 14 N. E. 502; Miller v. Zeimer, 111 X. Y. 4-11, 18 X. E. 716; Kapps v. Gottlieb, 142 X. Y. 164, 36 X. E 1052. (754) ^h- 8] INCUMBRANCES. § 99 this view,"* wliile tlie opposite view is held in Ohio, Illinois, and Minnesota."" When the mortgage is given by a third party, not bound on the commercial paper, such as a married woman, author- ized to convey or mortgage land, but not capable of binding herself personally, it seems right that the defense of the mortgage should not be cut off by the negotiation of the paper, whicli it secures.'" But even when the instrument, or its transfer, does not fall within the law merchant, an assignee without notice will not be affected by such equities of the mortgagor as do not bear upon the debt; but this is really a question of how far the doctrine of recoupment, or of equitable set-off will be carried, and affects the laud only as an incident to the debt."^ A distinction has been drawn between a contest in which the mortgagor opposes what are known as "equities" to an assignee in good faith, and rights which third persons may have, either in the 199 Carpenter v. Longan, 16 Wall. 271. The note and mortgage were given in Colorado in 1S(>T by husband and wife, evidently on land belonging in whole or in part to tlie latter. The report does not show whether in 1867 the wife's note, by the local law, was binding. If it was thus, the decision is plainly right, as it would be absurd to admeasure the rights of the parties otherwise in the equity suit on the mortgage than in an action of law by which the same land might be sold under execution; but it would be very different if Jirs. Longan's note was void, and her land was taken for an obli- gation which she did not justly owe, when she did not and could not subject herself to the law merchant. In Laster v. Stewart, 89 Ga. 181, 15 S. E. 42, a mortgage unlawfully given by a married woman as surety for her husband was sustained in the hands of a purchaser for value, etc., though such a course might defeat the law against such suretyships entirely. In Watson v. Wy- man, 161 Mass. 96, 36 N. E. 692, assignee of negotiable note with mortgage, though it is equitably discharged, is preferred to second mortgagee. A mis- representation of the debts by the mortgagor works a privity between him and the assignee, entitling him to recover. Houseman v. Bodine, 122 N. Y. 158, 2.J N. E. 2.J.J. 200 Bailey v. Smith, 14 Ohio St. 396; .lohnson v. Carpenter, 7 Minn. 176 (Gil. 120); Hostetter v. Alexander. 22 Minn. 559 (not shaken by Blunienthal v. Jassoy, 29 Minn. 177, 12 N. W. 517) ; Olds v. Cummings, 31 111. 188 (statute of Anne does not apply to mortgages); Haskell v. Brown, 65 111. 21) (agreement by railroad company to pay interest out of the dividends was allowed as de- fense against mortgage); Shippen v. Whittier, 117 111. 282, 7 N. E. 642 (it is not commercial paper). 201 There seems to be no direct decision on the point. 202 McMasters v. Wilhelm, 85 Pa. St. 218. (755) § 99 LAND TITLES IN THE UNITED STATES. [Ch. 8 assigned bond and mortgage or in tli'e land on which It rests. When the demand is not negotiable, it is agreed that the assignee, of ne- cessity, takes it subject to all the equities of the former kind; but the courts in the greater number of states hold that he does not take the mortgage subject to the equities of third persons, either in the demand, or in the land.^"* In New York, however, in New Jer- sey, and, it seems, also in Illinois, this distinction is not recognized, and the assignee stands against "equities" — that is, a latent owner- ship in the assigned demand, or a latent ownership in or lien upon the mortgaged land — in no better plight than his assignor. If the latter by reason of haying notice, or on any other grounds, is affected, so is the assignee.^"* But, where a real-estate note is made up, be- tween the ostensible owner of land, against which a latent equity or unrecorded title is outstanding, and a confederate, who transfers it to a bona fide purchaser, the latter ought to occupy as good a position as if the mortgage had been made directly to uiin in form, as it was in effect; especially in a case in which the owner of the outstanding title was at fault in not spreading it on record. Yet here the decisions in Illinois and in New York differ.-"^ 203 Crosby v. Tamifir, 40 Iowa, 136; Newton v. Newton, 46 Minn. 33, 48 N. W. 450; Murray v. Lylburn, 2 Johns. Ch. 441 (Chancellor Kent),, and Liv- ingston V. Dean, Id. 479 (same judge), overruled in his own state. He says: "The assignee of a chose in action takes it subject only to the equities of the obligor, but not to the equities residing in third persons against the assignor,"— remarking on the ease of finding the truth as to the former, and the impossi- bility of finding the others. So, also, Redfearn v. Ferrier, 1 Dow. 50 (Lord Eldon); Dulin v. Hunter, 98 Ala. 539, 13 South. 301; Tison v. People's Saving & Loan Ass'n, 57 Ala. 323; Mott v. Clark, 9 Pa. St. 399; Pryor v. Wood. 31 Pa. St. 142. 204 Bebee v. Bank of New York, 1 Johns. 52'J (Kent, C. J., 'dissenting; a dis- pute about the ownership of the mortgage); .Bush v. Lathrop, 22 N. Y. 535 (the former assignment was collateral only, and had been redeemed); Decker V. Bolca, 83 N. Y. 218 (assignor had notice of unrecorded mortgage); Conover v. Van Mater, 18 N. J. Bq. 481; Hoagland v. Shampanore, 37 N. J. Eq. 588 (unrecorded mortgage); Shippen v. Whittier, 117 111. 282, 7 N. E. 042 (rather a defense by the obligor, but put upon similar grounds). And such seems to be the latest tendency in Pennsylvania. Stephens v. Weldon, supra, note 197. 205 Silverman v. Bullock, 98 111. 11 (the case must probably be put on that ground, as Illinois Inclines in this matter to Chancellor Kent's opinion). To the contrary is Viele v. Judson, 82 N. Y. 32, where the court refused to look upon the buyer of a kite mortgage note as being himself the mortgagee, and thus a purchaser for value. (750) Oh. 8] INCUMBRANCES. § 99 But the most troublesome questions are those arising between the assignee and the mortgagor, who has paid the original payee of the mortgage debt; and it must be said that the law on this subject is rather confused, and the decisions hard to reconcile. As most of the states have provided as well for the entry of satisfaction as for noting assignments on the record books, the matter often depends on the wording or on the construction of the registry laws, and it will again be referred to under that head. Aside of the registry laws, and of the laws on commercial paper it seems that the debtor may, until he is notified of a change in the ownership of the de- mand, pay the money to his original creditor, and that a deed of re- lease given, or satisfaction entered by the mortgagee, cancels both debt and lien.^°* Where the demand is evidenced by a negotiable bill or note, which the mortgagee has sold before maturity, in due course of business, the indorsee could recover on the note or bill at law; and under the ruling of the supreme court, he could shut out a defense of payment to the mortgagee, before or after the as- signment, just as he might shut out an equity in the creation of the note, not only in the suit at law, but also in the enforcement of the mortgage; and in Massachusetts, it has been held that, even whore the law merchant does not come in, the mortgagor is at fault in pay- ing the mortgagee, especially before the maturity of the debt, without demanding to see the note or bond, which represents the debt.=""^ 206 Sellers v. Benner, 94 Pa. St. 207 (here the assignee was at fault, seeing a deed from the mortgagor to a purchaser on record, in which nothing was said about the mortgage). A fortiori, where the mortgage is assigned after having been paid, though no satisfaction entered, Redin v. Branhan, 43 Minn. 283, 45 N. W. 445; mortgagor may pay mortgagee till notified of ass:gnment, Foster v. Carson, 159 Pa. St. 477, 2S Atl. 356. See, for a case where the as- signee was bound by the mortgagee's release, Goodale v. Patterson, 51 Mich. 532, 16 N. W. 890. 207 BiggerstafC v. Marston, 101 Mass. 101, 36 N. E. 785 (especially if note paid before maturity, the assignee need not notify him). See, also, Massa- chusetts, St. 1882, c. 237; In re Tarbeil, 100 Mass. 407, 36 N. E. 55; Peaks v. Dexter, 82 Me. 85, 19 Atl. 100; Williams v. Keyes, 90 Mich. 290, 51 N. W. 520 (payment to administratrix without aslimg for the note invalid against as- signee holding it). There may be fraud between one assignee and the next one from him, as in Wiscomb v. Cubberly, 51 Kan. 580, 33 Pac. 320, where the mortgagor, having paid an assignee whose transfer was put on record with- out acknowledgment, after he had passed the note and mortgage to another, (757) § 99 LAND TITLES IN THE UNITED STATES. [Ch. 8 The assignment is itself often in the nature of a pledge, the mort- gage being assigned only by way of collateral security, to return to the mortgagee or former holder upon payment of the debt for which it is pledged.^"' We have so far dealt only with an assignment of the whole de- mand which a mortgage secures. It often happens that when sev- eral notes secured by the same mortgage or vendor's lien mature at several times the owner of these notes sells or pledges some of them to a third person, retaining others, or that he assigns the several notes to different persons, either at the same time or more usually at different times. "In the states in which a mortgage is deemed only an incident to the debt, the assignment of one of the notes by itself, without a transfer of the mortgage, is an assignment pro tanto of the mortgage. Each assignee is, through the mortgage, charged with notice of the equitable interests of all the other as- signees. The holder of a part of the notes with a formal assignment of the mortgage has no advantage from holding the mortgage." ^'"* The prevailing rule is that in case the jiroperty under lien turns out insufficient to pay off the whole demand each note will be satisfied pi-o rata, without regard to the time when the notes mature, or to the order of time in which they were sold by the original holder.^"* In Indiana and Iowa, and few, if any, other states, however, the parts of the mortgage belonging to each note are considered as suc- cessive incumbrances; and, upon an insufficiency of proceeds from was held not justified in paying, because he who exacted it showed no author- ity. The mortgagor cannot well be deceived, for both the rules of equity practice and the modern Codes require the production of the note in a suit for foreclosure or sale. Schumpert v. Dillard, 55 Miss. 348. 208 Coffin V. Loring, 9 Allen, 154. 209 Pattison v. Hull, 9 Cow. (N. Y.) 747; Studebaker Bros. Manuf'g Co. v. McCargur, 20 Neb. 500, 30 N. W. G86; Anderson v. Baumgartner, 27 Mo. SO (rights of partial assignee purely equitable) ; Henderson v. Herrod, 10 Smedes & M. (Miss.) 631. 210 Jennings v. Moore, 83 Mich. 231, 47 N. W. 127; Bartlett v. Wade, 66 Vt. 629, 30 Atl. 4 (no regard to maturities) ; Shields v. Dyer, 86 Tenn. 41, 5 S. W. 439; Andrews v. Hobgood, 1 Lea (Tenn.) 693 (no regard to either maturity or time of assignment); Whitehead v. Morrill, 108 N. C. 05, 12 S. E. 894; Keyes V. Wood, 21 Vt. 339; Phelan v. Ohiey, 6 Cal. 478; Todd v. Cremer, 36 Neb. 430, 54 N. W. 674. See an arrangement of priorities by contract, McLean's Appeal, 103 Pa. St. 255. (758) ^^^- ^] INCUMBRANCES. § 100 the sale of the land, those who hold the first maturing notes are first satisfied.211 Where the original holder retains any of the orig- inal notes, there is no reason why he should not share equally with his assignees, unless he has (as is indeed usually the case) indorsed them in such a way as to render himself liable upon the dishonor of the paper, in which case he will be postponed, upon the well- known principle that equity seeks to prevent the multiplicity of suits.^^^ § 100. Extinction or Subrogation. As every mortgage or lien is only an incident to a debt, or to the performance of the condition, to secure which it is given, it comes to an end whenever the debt is paid or the condition (such as the payment of sums of money for which no one is personally bound) has been fulfilled, as has been explained at the outset of this chap- ter. The mortgage also falls to the ground when the debt is re- leased by the creditor, or when it is blotted out by his wrongful act. Whether the mortgage or lien comes to an end by the running of lim- itation will be discussed in the chapter on "Title by Prescription." But there may be an extinguishment of the debt by operation of law. Thus, where there is a debt due to a man from a woman a marriage between them puts an end at once to the lien of a mort- gage given for such debt.-^' And when the liability is once paid off the writing which has thus become dead cannot be quickened into new life by a redelivery as security for another demand.^^^ 211 Rankin v. Major, 9 Iowa, 297; Walker v. Schreiber, 47 Iowa, 529 (like successive mortgages); Hough v. Osborne, 7 Ind. 140; Stevenson v. Black, 1 N. J. Eq. 338. 212 Donley v. Hays, 17 Serg. & R. (Pa.) 404; Burrus v. Roulhae, 2 Busli (Ky.) 39. 213 Farley v. Farley, 91 Ky. 491, 16 S. W. 129. Contra, satisfaction of mort- gage releases debt, Fleming v. Pany, 24 Pa. St. 47; whatever releases the debt, such as neglect In presenting a check, releases the mortgage, Home Bldg. & Loan Ass'n v. Kilpatriek, 140 Pa. St. 405, 21 Atl. 397; Id., 119 Pa. St. 30, 12 Atl. 754; the mortgage is at an end by payment alone, without any re- lease or entry of satisfaction, Blake v. Broughton. 107 N. C. 220, 12 S. E. 220; when the note secured becomes void by an alteration, the mortgage is gone, Walton Plow Co. v. Campbell, 35 Neb. 174, 52 N. W. 883. 214 Thompson v. George, 86 Ky. 811, 5 S. W. 760; Loverin v. Humboldt De- posit & Trust Co., 113 Pa. St. 6, 4 Atl. 191. The Pennsylvania courts have (759) § 100 LAND TITLES IN THE UNITED STATES. [Ch. 8 A tender, also, good as to time, place, and amount, made by the mortgagor, or any one who derives title to the equity of redemption from him, at the very moment when it is made, destroys the lien of the mortgage; and the lien does not come to life thereafter, though the tender is not kept up; but keeping it up, by payment into court, is necessary, in order to obtain affirmative relief against the mort- gagee.^ ^^ A payment to either one of two mortgagees, holding the demand in their own right, and therefore a tender to either of the two, is sufficient, and releases the lien.^^" And generally whether the debt is barred must depend on the authority of him who has received, or has given his receipt for, the money.^^^ One of several executors or administrators can always give a valid receipt, while, as a rule, several trustees must join. Where executors are empowered to invest the funds of an estate, any they put it out on mortgage, they retain their character so far that any one of them can receipt for gone, however, pretty far in allowing a mortgage to stand as security in pur- suance of the intent of the parties at the time when it was really paid. Kuhn V. North, 10 Serg. & E. (Pa.) 399; Moore v. Hairisburg Bank, 8 Watts (Pa.) 138; Wilson v. Murphy, 1 Phila. (Pa.) 203, cited supra. See below as to sub- rogation. See, also, Millard v. Truax, 50 Mich. 343, 15 N. W. 501. But where a note was "raised," and thus made void, the mortgage, still describing ilie debt truly in the defeasance, was held valid. Cheek v. Nail, 112 N. C. 370. 17 S. B. 80. 215 Jackson v. Crafts, 18 Johns. 110; Merritt v. Lambert, 7 Paige, 344; Tuthill V. Morris, 81 N. Y. 94 (must be kept good, for affirmative relief) ; Nel- son v. Loder, 132 N. Y. 288, 30 N. E. 369; Kortright v. Cady, 21 N. Y. 343. See effect of tender accepted in Fisher v. Holden, 84 Mich. 494, 47 N. W. 10G3; but the tender must be followed up, to get any affirmative relief against the mortgagee, Haynes v. Thom, 28 N. H. 386, 400; Werner v. Tuch, 127 N. Y. 217, 27 N. E. 845; Post v. Springsted, 49 Mich. 90, 13 N. W. 370 (tender to destroy lien must be open and fair); Renard v. Clink, 91 Mich. 1, 51 N. W. 692 (if fair, it does). 216 Oatman v. Walker, 33 Me. 67; Flanigan v. Seelye, 53 Minn. 23, 55 N. W. 115. 217 Shane v. Palmer, 43 Kan. 481, 23 Pac. 594 (general loan agent presumed to have authority); McPherson v. Rollins, 107 N. Y. 316, 14 N. E. 411; Halpin V. Phenix Ins. Co., 118 N. Y. 165, 23 N. E. 482 (only authorized to collect in- terest); Brewster v. Carnes, 103 N. Y. 556, 9 N. E. 323; Doolittle v. Lewis, 7 Johns. Ch. 45 (foreign administrator may collect; but this matter is now to a great extent regulated by statute). A mortgage being assigned to "A. B., (760) Ch- 8] INCUMBRANCES. § 100 the mortgd'ge, and give a release, or "satisfaction piece." "' When a mortgage is made to a trustee for bondholders, a satisfaction entered or release given by him, when the bonds have not been paid, is void, as against the parties in interest, though, if the deed au- thorizes him to collect the debt or to enter satisfaction, a purchaser in good faith, acting upon such an entry, would be protected. ^^" Whatever discharges the debt, also takes the lien off the land. Hence when a surety is discharged by giving, without his consent, time to the principal, or by abandoning the creditor's hold on the principal's property, a mortgage on the surety's land is released; and this will happen though the surety has only pledged his or her land, being perhaps, as a married woman, incapable of incurring a personal liability. ^^" To take a new note for an old one, or for the balance due on the old note, or a bond for the simple contract debt, is not payment within the meaning of the defeasance. Nor is the right to proceed on the mortgage affected by the recovery at law for the debt, except in this: that as a matter of good pleading the bill for enforcing the mortgage should refer to the judgment as the debt to be col- lected. Taking personal security on the new notes, or a mortgage on other property, or even including an additional demand in the new note, does not release the mortgage, though the last-named circumstance may indicate such an intent. In short, a mortgage given to secure a demand will remain in force for all renewals.^ ^^ But trustee," A. B.'s release is good. Carter v. Van Bokkelen, 73 Md. 175, 20 Atl. 781- 2isFesmire v. Shannon. 143 Pa. St. 201, 22 Atl. 898 (one executor). See Townley v. Sherborne, 2 White & T. Lead. Cas. Bq. 1738, and notes, for dis- tinction between executors and trustees. Also, infra, in chapter on "Powers." 219 Hollister v. Stewart, 111 N. Y. 644, 19 N. E. 782 (trustee cannot post- pone the mortgage) ; Lincoln v. PurceU, 2 Head (Tenn.) 142 (release by naked trustee void). 220 Earl of Huntingdon v. Countess of Huntingdon, 2 Bro. Pari. Cas. 1, 3 White & T. Lead. Cas. Eq. 1922; Niemcewiez v. Gahn. 3 Paige, G14; Hinton V. Greenleaf, 113 N. O. 6, 18 S. E. 56; Loomer v. Wheelwright, 3 Sandf. Ch. (N. Y.) 135. For what will release a surety, see Rees v. Berrington, 2 White & T. Lead. Cas. Eq. 1867, and notes. So, where the mortgagee arranged for the mortgagor's debtor to pay the secured debt, and indulged him so long, without the mortgagor's consent, that the debt was lost, the mortgage was held released. Dedrick v. Den Bleyker, 85 Jlich. 475, 48 N. W. 633. 221 Heard v. Evans, 1 Treem. Ch. (Miss.) 79; Bank of Utica v. Finch, 3 (761) § 100 LAND TITLES IN THE UNITED STATES. [Ch. 8 there may be such a change in all the relations between mortgagor and mortgagee, as to amount to a "novation," and thus to an ex- tinction of the debt and mortgage; and when new rights of third parties have arisen under the fairly grounded belief that such a novation has taken place it will not lie in the power of the mort- gagor or mortgagee, or of both combined, to reinstate the old se- curity.^" When the party ultimately bound for the mortgage debt has repaid it, the security cannot be kept alive; but when some other person, who is under an obligation to do so, or under a ne- cessity by reason of his interest in the land, pays the debt under such obligation, or for the protection of his interest, he may be subrogated to the mortgagee's remedies. This right belongs thus to any surety or guarantor for the mortgagor, in the widest sense of the word."' There is, however, this important limit to the right of a surety to be subrogated to the liens belonging to the creditor: He cannot share the lien with him so as to diminish the benefit which the latter would draw from the security; otherwise the object of having the personal suretyship, namely to supply the deficiencies in the mort- Barb. Ch. 293; Cissna v. Haines, 18 Ind. 496 (new note with mortgage on other lands held no ahandonmeiit, but, judgment having been obtained on the new note, suit should have been bi-ought on the latter); Dunshee v. Parmelee, 19 Vt. 172 {part paid, and new note for residue). See, also. State v. Heming- way, 69 Miss. 491, 10 South. 575. For contested cases over further advances, see notes to section 95. The lien for renewals is always admitted. The posi- tion is elementary. 222 Savings & Loan Soc. v. Burnett (Cal.) 37 Pac. 180; California Bean & Trust Co. v. Hammell, 101 Cal. 252, 35 Pac. 765; Joyner v. Stancill. 108 N. C. 158, 12 S. E. 912 (novation may take place, but not favored); AVilhelmi v. Leonard, 13 Iowa, 330; Billingsley v. Harrell, 11 Ala. 775 (another trustee, time granted, other creditors included, old mortgage gone). Taking an abso- lute deed for the debt extinguishes the mortgage, Patterson v. Evans, 91 Ga. 799, 18 S. E. 31; where one mortgage to two creditors was changed into two separate mortgages to each, held a novation, Dubuque Nat. Bank v. Weed, 57 Fed. 513. 223 The leading American case is Hayes v. Ward, 4 Johns. Ch. 123, which traces the rule back both in the civil law and in English precedents. See the English and American note on subrogation of sureties under Dering v. Earl of Winchelsea, 1 White & T. Lead. Cas. Eq. 100. Compare cases above, under "Vendor's Lien." See, however, in chapter on "Prescription," as to the limita- tion of time on the subrogated security. (7G2) ^^- ^] . INCUMBRANCES. § 100 gage or lien, would be defeated. Hence, if A.'s land is mortgaged to B. for a sum jiayable in installments, or on which interest is pay- able from year to year, and C. is surety for A. on all or any of the installments, or for the payment of interest, C. does not, by paying an installment or a gale of interest, acquire any interest in the mort- gaged lands, except such as is subordinate to the lien which B., the creditor, has for the unpaid residue of his debt."* So, also, any junior incumbrancer, who must discharge the superior lien to pre- vent a sale or foreclosure with loss to himself, has the right to be subrogated.^" We have already referred, under another head, to the most frequent case of such subrogation,^ — the payment of taxes, or lifting of inchoate tax titles, by incumbrancers, for the protection of the estate ; but these differ therein, that generally speaking a full and exact subrogation may not here take place, as the tax lien is sui generis.^^" Where a cotenant or joint owner of land pays the whole of a mortgage debt, it is, as to his own share, the satisfaction of his own debt. As to the residue of the debt, he pays under com- pulsion, for the benefit of the other joint owners, and is subrogated to the lien upon their shares of the land.^^' It is possible, however, even for the original mortgagor to become subrogated upon pay- ment; namely, when he has sold the land to another, who has, as part of the purchase price, undertaken to discharge the incum- 221 Columbia Finance & Trust Co. v. Kentucky Union Ry, Co., 9 C. C. A. 264, 60 Fed. 794; Hollings worth v. Floyd, 2 Har. & G. (ild.) 91; Kyner v. Kyner, 6 Watts, 222; Stamford Bank v. Benedict, 15 Conn. 437; Harlan v. Sweeny, 1 Lea (Tenn.) 682; Magee v. Leggett. 48 iliss. 139. 225Emmert v. Thompson, 49 Minn. 386, 52 N. W. 31; Clark v. Mackin, 95 N. Y. 346; Warner v. Hall, 53 Mich. 371, 19 N. W. 40 (holder of equitable estate); State v. Brown, 73 Md. 484, 21 Atl. 374 (bondholders in old mortgage). In fact, the old system of strict foreclosure, where there were successive mortgages, rested wholly on the subrogation of the junior when he redeemed the older mortgage. Where the mortgagee pays to his assignee the amount of an interest coupon, an intent to reacquire, not to extinguish it, is presumed. Champion v. Investment Co.. 45 Kan. 108. 2.j Pac. 590. 22 6 See section 05, note 105, where the tax paid off appears rather as a fur- ther advance, and thus as an addition to the mortgage. 227 Damm v. Damm, 91 Mich. 424, 51 N. W. 1069. On the other hand, a mortgagee on an undivided half, who has paid the cotenant's lien for ad- vances, can add It to his own. Darling v. Harmon, 47 Minn. 166, 49 N. W. 686. The position of cotenant compels him to lift the mortgage. (7G3) § 100 LAND TITLES IN THE UNITED STATES. [Ch. 8 brance. In such a case the first debtor has in effect become a surety, and the new purchaser is now the principal debtor and the purchased lot the primary fund for payment.^^^ But, when the true debtor pays off a mortgage given for his own debt by another, he not only cannot be subrogated, but even an assign- ment to him of the note and mortgage would be held void in a court of equity.^^" And when one who is neither personally bound for the debt nor possessed of an interest in the land which he must shield from loss pays a mortgage off, witliout taking an assignment thereof at the time (which happens sometimes, through inadver- tence or through a misunderstanding of the legal relations), the mortgage lien is gone.^^" Subrogation has been allowed to an underwriter who has insured the mortgagee's interest alone against loss by fire, on grounds which we cannot here stop to discuss.^^^ Whenever the party making payment is entitled to subrogation, he will be given it by a court of equity, though a formal deed of re- lease have been given or satisfaction have been entered of record.^ ''^ Where a party has, on the faith of a new mortgage, furnished the money to take up an old one, overlooking an intermediate lien, and has allowed the old lien to be discharged, relief has been given in some cases, but has been refused in others; that is, he has been given subrogation to the old mortgage, its satisfaction and cancella- tion being set aside, in some cases, but not in others; and it is not easy to place the differing result on the ground of differing states 228 See this equity hereafter, under the head of "Apportionment." 229 Earl of Huntingdon v. Countess of Huntingdon, supra, where an assign- ment was disregarded; Loomer v. Wheelwright, 3 Sandf. Oh. (N. Y.) 135. 230 Grady v. O'Reilly, IIC Mo. 346, 355, 22 S. W. 798 (where there was subro- gation as to some installments, and not as to others; there can be none as to a mortgage that has not yet taken effect); Kleimann v. Gieselmann, 114 Mo. 437, 21 S. W. 796. An expected descent is not ground enough. Kelly v. Kelly, 54 Mich. 30, 19 N. W. 580. A very harsh case, decided late in 1894, is Campbell v. Foster Home Ass'n, 163 Pa. St. 609, 30 Atl. 222, where one be- lieving that he got a valid mortgage, but who did not, paid off the old mort- gage, and was denied subrogation. 231 Sterling Fire Ins. Co. v. Beffrey, 48 Minn. 9, 50 N. W. 922; AUen v. Watertown Fire Ins. Co., 132 Mass. 480. 232 It was held in Dircks v. Logsdon, 59 Md. 176, that a receipt on the mortgage given upon payment by a third party is not In its nature a release, and may be changed into an assignment by consent. (7C4) Ch- iS] INCUMBEANCES. § 100 of fact."' At any rate, when the old mortgage has not been can- celed, so that no new rights have accrued, and no one can have been misled or prejudiced, the old mortgagee, or he who has paid him, will be allowed to retain the security, though a new one has also been executed, or other property which turns out worthless or unavailable has been set over for security.^" As between the original parties, a first mortgagee and a junior in- cumbrancer who induces him to give up his lien without payment of the debt, a release or satisfaction can of course be set aside on the ground of fraud or mistake; and still more so between the mort- gagor and mortgagee.'' '' But it is just as plain that the satisfac- tion cannot be set aside, so as to prejudice third persons, who have, on the strength of it, dealt with the land in good faith; and any one who has bought, or advanced money on, the land, relying upon the "satisfaction," may object to its recall.^" When a mortgage is given to indemnify a surety or indorser, we must distinguish between that which the debtor gives on his own land and a mortgage given by a third person (generally the debtor's wife) upon his or her land. The former, unless written with es- pecial care to avoid such a result, inures at once to the benefit of the creditor, to whom the surety or indorser is bound, whereof he cannot complain, as paying the creditor does to that extent re- lieve the surety.^"' But it is otherwise when a third person in- 235 Ft Dodge Building & Loan Ass'n v. Scott, 86 Iowa, 431, 53 N. W. 283; Barnes v. Mott, 64 N. Y. 397. In Eyer v. Gass, 130 Mass. 227, the purchaser of land subject to two mortgages, but knowing only of the first, paid part of it, and was allowed to take an assignment of the whole. Including the part paid, in the name of a third party, and hold it against the second mortgagee. Contra, Clark v. Moore, 76 Va. 262; Norris v. Woods, 89 Va. 873, 17 S. E. 552 (trustee refused, as against his e. q. t. under disability); Price v. Courtney, 87 Mo. 387 (loan to lift mortgage gives no right to subrogation). 23* Drury v. Briscoe, 42 Md. 154. 2 3 5 Shaffer v. McCloskey, 101 Cal. 576, 36 Pac. 196, relying mainly upon Rumpp V. Gerkens, 59 Cal. 496, where a first mortgagee liad allowed his mort- gage to be merged in a subsequent deed, in ignorance of a later recorded deed. Pearce v. Buell, 22 Or. 29, 29 Pac. 78, going back, for the general principle that equity treats an incumbrance either as extinguished or alive, according as it will answer the ends of justice, to Barnes v. Camack, 1 Barb. 392. 236 So Impliedly In Guy. v. Du Uprey, 16 Cal. 199, and Burnap v. Cook, 16 Iowa, 154. 237 story, Eq. Jur. §§ 502, 638; 4 Kent, Comm. 307; Sheld. Subr. § 154; Lake (705) § 100 LAND TITLES IN THE UNITED STATES. [Ch. 8 cumbers his or her estate, who is under no obligation to the creditor, and against whom no equity can be worked out. The surety may release the mortgage of such third person, or if he is discharged in bankruptcy, or dies insolvent, the need for indemnifying him can no longer arise, and the mortgage is extinct.^^* A mortgage can also be extinguished by merger. Just as a life estate is merged in the fee when it meets with it in the same person, so a mortgage or other lien on land is merged when it meets in the same person with the absolute ownership; for a man cannot hold a lien on his own land.^^' This happens regularly, when the first incumbrancer buys at a sale for enforcing the second mortgage, sub- ject to his own, or acquires in any other way the equity of redemp- tion; and, according to what seems the better opinion, also when one who holds a mortgage falling due in installments buys at his own sale on default of the first installment; for he buys subject to those not yet due.^*° But the doctrine of merger, if carried out in all cases, might lead to much injustice. A judgment lien or other incumbrance may have sprung up and be outstanding against V. Craddock, 1 White & T. Lead. Cas. Eq. 183; also, Moses v. Murgatroyd, 1 Jolins. Ch. 119; Bank of United States v. Stewart, 4 Dana (Ky.) 27; Saffold v. Wade, 51 Ala. 214 (surety to several creditors, they take pro rata); Morrow v. Wells, 33 Ala. 125; Kinsey v. McDearmon, 5 Cold. (Tenn.) 392 (was equitable mortgage) ; Sayloi^s v. Sailors, 3 Heisk. 525 ("this deed to be void when I pay the debt"), (a much plainer case, than when the deed is conditioned on holding the surety harmless); Rice's Appeal, 79 Pa. St. 108 (though the creditor did not give credit to the mortgage); Seibert v. True. 8 Kan. 52 (creditors knew nothing of mortgage when given); (here and in Brown v. Ray, 18 N. H. 102, it inured also to cosureties); Keene Five Cents Sav. Bank v. Herrick, 62 N. H. 174 (reviewing these and other authorities); Bank of United States v. Stewart, 4 Dana (Ky.) 27; Smith v. Gillam, 80 Ala. 297. 238 Taylor v. Farmers' Bank, 87 Ky. 398, 9 S. W. 240 (debtor's wife); s. p. Macklin v. Northern Bank, 83 Ky. 314. And see, about state guaranty, Cun- ningham V. JIacon & B. R. Co., 156 U. S. 400, 15 Sup. Ct. 361. 239 When the mortgagee bids in the equity for another debt, the mortgage is gone, Seaman v. Hax, 14 Colo. 536, 24 Pac. 401 ; Cock v. Bailey, 146 Pa. St. 528, 23 Atl. 370 (bondholders bought equity of redemption, old mortgage gone); Belleville Sav. Bank. v. Reis, 156 111. 242, 26 N. E. 646 (second mort- gagee bidding in land subject to first mortgage). See, contra, Millerd v. Truax, 50 Mich. 343, 15 N. W. 501. 240 In re Dull's Estate, 137 Pa. St. 116, 20 Atl. 419 (mortgage by remainder- man for sum in gross, to secure interest to life tenanO. (766) ^b. 8] INCUMBRANCES. § 101 the fee subordinate to the mortgage or lien that unites with it, but before the union of the two interests. In such a case, if the older mortgage or lien were merged in the fee, and no longer considered alive, the junior lien would obtain an unjust priority over it. In all such cases, neither equity nor indeed the law recognizes a merger of the lesser interest with the full estate,-" and for greater cer- tainty the principle has been laid down that equity always looks to the intent, and that there can be no merger of a mortgage in the fee when, at the time of the meeting of the two, the party in whom they meet expressly or impliedly indicates the opposite intent.^*'' § 101. Enforcement of Mortgages. In the older elementary works we find that the mortgagee has three remedies to enforce his demand: First, an action at law for the debt; second, an action of ejectment, by which to obtain pos- session of the land; third, a bill for the foreclosure of the mortgage, by which the conditional fee might, upon a failure to redeem, be turned into an absolute fee.^*^ But a decree of sale — the most 2»i Caipentler v. Brenham, 40 Gal. 221 (intervening mortgage); Brooks v. Rice, 56 Cal. 428; attacliment or otlier lien, Kunipp v. Gerl^ens, 50 Cal. 496; so as to dower, ^yllen mortgagee, where wife has joined in the deed, buys the equity of redemption, Bryar's Appeal, 111 Pa. St. 81, 2 Atl. 344; Wilson v. Vanstone, 112 Mo. 315, 20 S. W. 612. ^*2 Carrow v. Headley, 155 Pa. St. 96, 2.j Atl. 8S9 (one retaining a one- third remainder interest in mortgage given on his land, and selling the land subject to mortgage for the whole sum; no merger); Jackson v. Relf, 26 Fla. 465, 8 South. 84; Belknap v. Dennison, 61 Vt. 520, 17 Atl. 738 (when intention is not expressed, such presumed as is most for the party's interest) ; Browne v. Ferris, 56 Hun, 601, 11 N. Y. Supp. 97 (mortgage assigned as "muniment of title"); Spencer v. Ayrault, 10 N. Y. 202 (agreement to the contrary) ; In re Gilbert's Estate, 104 N. Y. 200, 10 N. E. 148 (assignee holding the mortgage as collateral bids land in; no merger); Burt v. Gamble, 98 Mich. 402, 57 N. W. 261 (sale of equity of redemption by sheriff); Ann Arbor Sav- ings Bank v. Webb, 56 Mich. 877. 23 N. W. 51 (question of intent; to be set aside, when acceptance of the fee brought about by fraud) ; In re Gilbert, 104 N. Y. 200, 10 N. E. 148. 243 In modern practice, a judgment in personam can always be obtained in the same suit in which a decree of sale is obtained, either at the same time or by way of "deficiency judgment"; and separate suits, at law on the debt, and in equity for foreclosure and sale, are forbidden or discouraged in most of the (7C7) § 101 LAND TITLES IN THE UNITED STATES. [Ch. 8 natural remedy — was not applied by the English court of chancery (though it had always been used in Ireland), in simple cases be- tween the mortgagor and one mortgagee, till near the middle of the nineteenth century, to the great injury of infant heirs, who, being un- able to sell for themselves during the time given them to redeem, might lose a great estate for a disproportionately smr.ll sum, and also to the great annoyance of the mortgagee, who used to be put off from six months to six months, in order to prevent a sacrifice.^** In most of the United States a suit in equity, or civil action in the nature of a suit in equity, looking to a decree of sale, is the ordinary rem- edy of the mortgagee, where no power of sale is contained in the deed; and in this suit all parties interested in the land are brought before the court. The purchaser at the sale expects a good title, and need not comply with his bid when the title turns out to be defective, either inherently, or when, for the lack of service of pro- cess on any necessary party, the judgment against such party is void. Where the sale is absolute (i. e. free from redemption), but upon credits, the general public bids freely, and as good prices are obtained as at other auction sales. The rights of all parties hav- ing been ascertained in the decree of sale, a mortgagee can use the decree rendered in his favor in making good his bid, but other- wise he occupies no better position than any other bidder. The mortgage is merged in the decree of sale. The idea of a real fore- closure (though the word is often used) is wholly lost sight of."^ states. To levy an execution for the mortgage debt on the equity of redemp- tion is wrong in principle, and a court of equity will enjoin such a step. A sale of the land under a general execution waives the rank of the mortgage, and lets in all incumbrances preceding the writ. Home v. Seisel, 92 Ga. 683, 19 S. E. 709. 244 4 Kent, Comm. 146. It was formerly the habit of American courts of equity, in suits to enforce a mortgage by sale, to enter a decree nisi, ascer- taining the mortgage debt, In the first instance, and fixing therein a time within which payment must be made, in default whereof a sale would be or- dered, — in analogy to the older practice of a decree nisi setting a time of fore- closure. Such a nisi decree, of either kind, is conclusive as to the amount due. 24= No sale ordered till all rights settled, Hortcn v. Bond, 28 Grat. 815. A power in the deed to the mortgagee to take possession does not exclude the right to sue for a sale, Stewart v. Bardin, 113 N. C. 277, 18 S. E. 320. In Wis- consin, in analogy to the nisi decrees under the old practice, one year must elapse between judgment and sale. Rev. St. § 3102. (708) Ch. 8] INCUMBRANCES. § 101 This system is eminently fair to all parties, especially to judgment creditors and other junior incumbrancers. The only objection is the expense, in costs of court and lawyer's fees, and the delay often caused by the great number of parties to be brought before the court.^" In some of these states, however, this whole proceeding is ren- dered almost worthless by laws which make the purchase at the decretal sale subject to redemption; thus repelling outside bidders, and preventing a sale at a fair price.^*'' If the time of redemption, as usually, is fixed at 12 months, it amounts simply to an old-fash- ioned foreclosure, with all the costs of the public sale heaped upon the mortgage debt, and with the same secriflce of infant heirs, and of junior incumbrancers who cannot lift, or cannot afford to lift, the senior incumbrance.^*^ The details of these proceedings which lead to a decree of sale, and thence to the sale, — either, under a copy of the decree, by a master, or, under a mortgage execution, by the sheriff, — thence to 2*6 This is best proved by the prevalence of "deeds of trust" and power of sale mortgages in the states pursuing this system, except in Kentucky, where they are forbidden. 247 The United States courts pursue the state practice as to selling subject tO' redemption. Brine v. Insurance Co., 96 U. S. 027; Connecticut Mut. Life Ins. Co. V. Cushman, lOS U. S. 51, 2 Sup. Ct. 230. Railroads are, however, usually sold without redemption, at least in the circuit which stretches from Michigan to Tennessee. The ijurchaser is, while the time to redeem is unexpired, only a lien creditor. Meeker County Bank v. Young, 51 Minn. 254, 53 N. W. CoU; Kuchanan v. Reid, 43 Minn. 172, 45 N. W. 11. See section 94 above, for the Alabama system. 248 The statutes on redemption will be referred to in another chapter. In several states the lawmakers might have taken a useful hint from the twenty- fifth chapter of Leviticus by distinguishing between rural lands and town lots. To the farmer or grazer the land is the tool by which he earns or literally makes his daily bread. He generally has only one considerable creditor, and it may be a wise mercy to stave off the evil day when he must part with his homestead. But the townsman's house or lot is not his tool. Millions better off than he live or do business in rented premises. His creditors are many; and mercy to him, as well as justice to creditors other than the first mort- gagee, demand that, when he is unable to pay, his real estate should be sold as quickly as possible, at the best price which free competition among bidders and moderately long credits will bring. Let famis be sold on redemption, but town and city lots absolutely. LAND TITLES V.I — 49 (769) § 101 LAND TITLES IN THE UNITED STATES. [Ch. 8 a report of sale, or return of execution, confirmation of sale, order for a deed, master's or sheriff's deed, and approval thereof, are mat- ters of practice, and do not belong here; for they are wholly inde- pendent of the nature of the claim against the land for which suit is brought. However, it should be stated that, in all the states in which suits leading to a sale are brought upon a mortgage, the courts, either under a statute, or under their inherent powers, as a partial substitute for the old right of the mortgagee to take pos- session, grant him an injunction against waste, or the appointment of a receiver to collect the rents, when waste is threatened, or when it appears that without the collection of these rents the security would turn out insufficient.^*" The ordinary remedy in Pennsylvania and in Delaware for the enforcement of a mortgage — one which, to those used to the slow and careful ways of a suit in equity, seems almost barbarous — is the writ of scire facias, which treats the registered mortgage as a sort of a record, on which, unless cause be shown to the contrary, an execution of levari facias is awarded, under which the land is sold, the lien of the execution relating back to the date of the mort- gage. "Terre-tenants" (that is^ all those having subordinate inter- ests in the land) need only be notified that the judgment may be binding on them as to its merits (about which there is generally very little question); but it is not necessary to give them personal notice of the approaching sale, or an opportunity of setting up their claims to the surplus.^^" 249 Hart V. Eespess, 89 Ga. 87, 14 S. E. 910 (in Georgia, injunction and re- ceiver may be had when the corpus alone is insufficient). In South Carolina, a receiver is given only on a showing of waste, Hardin v. Hardin, 34 S. C. 77, 12 S. E. 936; in Kentucliy, on either ground by tlie provisions of the Code of Procedure, Hounshell v. Clay Fire Ins. Co., 81 Ky. 304. See, also, supra, section 92. note 20. 2 50 Brightly's Purd. Dig. "Deeds and Mortgages," pi. 122, from an act of 1705. A scire facias lies on an unrecorded mortgage, McLaughlin v. Ihmsen, 85 Pa. St. 364; but not on an unsealed and therefore equitable mortgage, Spencer v. Haynes, 4 Wkly. Notes Cas. 152; nor untU all Installments are due, Fickes v. Ersick, 2 Rawle, 166. It is, by the act, not to issue after a jear from default; but by express words, and by such only, either in the mort- gage itself or by sealed instrument, while the mortgagor holds the equity of redemption, this privilege may be waived. Huling v. Drexell, 7 Watts, 126. Clause in bond making the whole demand due upon default in one installment (770) Ch. 8] INCUMBRANCES. § 101 In the states of Massachusetts, Maine, Rhode Island, and New Hampshire, the ancient mode of enforcing mortgages still exists; nay, it has been modified so as to make it more favorable to the mortgagee. Where the mortgage does not contain a power of sale, the ordinary procedure on default is a writ of entry or ejectment (according to the forms in vogue in each state), by which the mort- gagor gains possession. If he obtains it either thus, or peaceably, in a solemn manner prescribed by the statute, and holds possession, — in New Hampshire, for one year ; in the other states, for three years (and this though the possession be held through the old owner, as tenant under rent) — the mortgagor stands foreclosed; and it thus becomes the latter's business to tender the amount due, and, upon refusal of his tender, to bring his bill to redeem before this time expires. A suit to foreclose according to the old English method is not excluded, for the courts of these states now possess pretty full equity powers, and when the remedy at law is inadequate a bill is necessary. For instance, is not such a waiver. Whitecar v. Worrell, 1 Phila. 44. Even a married woman can thus waive. Black v. Galway, 24 Pa. St. 18. The act requires the sci. fa. to issue against the mortgagor, his heirs, executors, and adminis- trators; but terre-tenants need not be made parties. Mather v. Clark, 1 Watts, 491. And an act of February 24, 1834, § 34, dispenses with service on the heirs and devisees. Chambers v. Carson, 2 Whart. 365. These and other terre- tenants can defend an ejectment by the purchaser at the sale on the same grounds on which the mortgagor could have defended. Mather v. Clark, supra. The proceeding is in no sense a foreclosure, for the mortgage is merged in the judgment. Fidelity Insurance, Trust & Safe-Deposit Co. v. Dietz, 132 Pa. St. 3G, 38, 18 Atl. 1090. The courts have no power to "foreclose" a mortgage. Winton's Appeal, 87 Pa. St. 77. A sale under the execution awarded on the sci. fa. sur mortgage divests all subsequent liens (Rauch v. Dech, 116 Pa. St. 157, 9 Atl. 180), and the lien does not attach again, if the mortgagor gets tlie title from the purchaser at the sale. The position of terre-tenants (those hold- ing the mortgaged land, or incumbrances on it. derived from the mortgagor) is tvdly explained in Hulett v. JIutual Life Ins. Co., 114 Pa. St. 142, 6 Atl. 554. The judgment is conclusive of all defenses arising from coverture. Michaelis v. Brawley, 109 Pa. St. 7. The free and easy way of "serving" a sci. fa. by posting, or even by two nihils, often leaves the mortgagor himself, let alone third parties interested in the mortgaged lands, in the dark about the pendency of the proceedings. Reybold v. Herdman, 2 Del. Ch. 34. The sum raised on the levari facias cannot be used to pay higher liens, as only the mortgagor's interest is sold. (771) § 101 LAND TITLES IN THE UNITED STATES. [Ch. 8 on behalf of a second mortgiigee, who is not entitled to possession, or when a surety is equitably entitled to the mortgage by subroga- tion, or where, by reason of equities with the mortgagor, the short remedy at law would be oppressive.^"^ In Connecticut the ordinary method, and the only one recognized by the statute, is a suit in equity for strict foreclosure. The method is not prescribed, the old chancery practice being left in force. The land is, however, ap- praised for the purpose of enabling the mortgagee to sue for the deficiency after foreclosure. It is also made the duty of the mort- gagee, or his assignee, when the land has become fully vested in him, to file a written statement with the town clerk, showing the state of title. When the mortgage has fallen on an executor, adminis- trator, or trustee, and the chose in action has, by foreclosure, been turned into land, it seems that he may sell it; but unless he does, the interests of distributees, legatees, etc., in the land remain the same as they were in the fund.^^^ In Vermont the mortgagee may recover possession in an ejectment, and put the mortgagor to his application to redeem, or he may himself file his "petition" in chan- cery, of which a short form is given in the statute, or his "bill," — in either case, for a "foreclosure," in the old sense of the word. Only the mortgagee and mortgagor are named as parties in the statutory form of petition, but subsequent attaching creditors of the premises may be joined.-^' In Xorth Carolina the mortgagee still has his three concurrent remedies: An action for the debt; another for the possession of the land; a third in the nature of a suit in equity. This last, however, is not directed to strict foreclosure, but to a judicial sale. The right to the remedy by ejectment is not lost hy 251 In Gilson v. Gilson, 2 Alien, 115. a mortgage equitable in form was held well foreclosed bj' possession and lapse of time. But where the mortgage con- tains a power of sale, or a deed of trust a power of management, and these cannot be carried out for any reason, a suit in equitj' would be proper. Shep- ard V. Richardson, 14.5 Mass. 32, 11 N. E. 7:!8. And see JIassacliusetts, Pub. St. c. ISl, § 14. In "S'crmunt it is said a suit in equity lies in all cases. Rof^s V. Shmtleff, 38 Yt. 177. See, for foi'eclosure by possession. Riddle v. George, .58 N. H. 25; Howard v. Handy, 35 N. H. 315. Attempts to throw out bills in equity as unnecessary seem not to have succeeded. 252 Connecticut, Gen. St. §§ 3010-3015. 2 = 3 Vermont, St. §§ 700-702; Id. § 1253. (772) t-'ll. S] INCUMBRANCES. § 101 a preceding attempt to get a judicial sale, which turns out ineffec- tual.=" Wherever the distinction between law and equity is kept well in hand, a court enforcing a mortgage by sale or foreclosure has no power to adjudge the rights of third parties claiming the legal es- tate by title paramount to the mortgagor and mortgagee. One who claims the fee under a tax title cannot be dislodged incidentally. Nor can a junior mortgagee defeat the priority of the elder by simply making him a party to his bill, as a person "having a claim or inter- est in the property." -°^ Under the old equity rule the junior incumbrancers could not com- pel the first mortgagee to foreclose or to ask a sale, their only rem- edy being to obtain the equity of redemption by foreclosing or sell- ing on their own incumbrance, subject to the first, and then to re- deem from it; and this rule is still observed in some states, while in others the courts of equity are unwilling to sell any other but a full and unincumbered title, and will, therefore, when the first mortgage is overdue, sell the land out and out, and refer the first mortgagee to the proceeds of sale for his satisfaction.^ '>' Where chancery powers of sale over mortgages are most highly devel- oped, sales will be ordered free of taxes, and the purchaser be al- lowed to pay all taxes and assessments out of his bid. It is to be regretted that this course of conducting foreclosure sales, which tends to bring the best attainable price, and places it in the registry of the court for the benefit of all concerned, does not obtain more widely.°°^ Along with the enforcement by sale or foreclosure, we must con- sider the agreement usual in long-time mortgages, payable in in- 2 5* Kiser v. Combs. 114 N. O. 640, 19 S. B. 6G4; Brunei- v. Threadgill, 88 N. C. 364. See also, section 92, note 19. 255 Hayward v. Kinney, 84 Mich. 591, 48 N. W. 170; Buzzell v. Still, 63 Vt. 490, 22 Atl. 619 (elder mortgagee). But it has been held, to the contrary, in Nebraska, that in a suit looking to sale or foreclosure every defendant who fails to answer admits that his interest is subordinate to that of plaintiff. Lincoln Nnt. Bank v. Virgin, 36 Neb. 735, 55 N. W. 218. And the Codes of Procedure generally provide that a sale under decree carries the title of all parties to the suit. 2 56 Seibert v. Minneapolis & St. L. Ry. Co.. 52 Minn. 246, 53 N. W, 1151. 857 B. g. Kentucky, Civ. Code, § 773 (for Jefferson county only). (773) § 101 LAND TITLES IN THE UNITED STATES. [Ch. 8 stallments, or running with interest in yearly or half-yearly gales, that, upon a failure to pay any installment of the principal or inter- est for a certain number of days after its maturity, the mortgagee may, at his option, treat the whole sum secured as due (or simply that the whole sum shall become due). When the clause is in the note or bond, and such instrument, by reason thereof, falls due, the mortgage, which is conditioned upon failure to pay the note or bond, is forfeited, and becomes enforceable; but such an agreeement is just as valid when inserted in the mortgage only, and not in the notes or bond.^°^ The insertion of the words, "at the election of the mortgagee," is construed in most of the states to require no separate act on his part, other than putting the mortgage in suit for the whole amount, which at his option has become due. Such suit is election enough, just as there need be no demand, other than an action, of a note payable on demand.^ ^® Courts of equity have often treated such clauses as a "penalty" to be relieved against; that is, if the mortgagor, after suit brought, brings the overdue installment into court, with interest and with costs up to the time, before the court can render a decree against him, the default is forgiven, and he is relieved from the forfeiture."" 2 58 Maddox v. Wyman, 92 Cal. 674, 28 Pac. 838; Brown v. McKay, 151 lU. 315, 37 N. E. 1037. No previous demand necessary, and the right to treat the whole as due not lost by delay. Atkinson v. Walton, 162 Pa. St. 219, 29 Atl. 898. Nay, the clause in a mortgage, or deed with express vendor's lien, has- tens the personal obligation on the notes. Park's Ex'r v. Cooke, 3 Bush (Ky.) 168. When the terms of the note and those of the mortgage disagree, those of the note prevail. Indiana & I. Cent. R. Co. v. Sprague, 103 U. S. 756; Hutchinson v. Benedict, 49 Kan. 54.j, 31 Pac. 147. 2S9 Buchanan v. Berkshire Life Ins. Co., 96 Ind. 510 (unless notice of elec- tion is stipulated); Hewitt v. Dean, 91 Cal. 5, 27 Pac. 423; Clemens v. Luce, 101 Cal. 432, 35 Pac. 1032. It is otherwise where a trustee in a mortgage is to declare it all due at the request of a majority of the bondholders. Batch- elder V. Council Grove Water Co., 131 N. Y. 42, 29 N. E. 801. 2C0 See notes to Peachy v. Duke of Somerset, 2 White & T. Lead. Cas. Eq. 2014, for a discussion of this doctrine. Messrs. Hare and Wallace say of it that it prevailed formerly, and quote Mayo v. Judah, 5 Munf. (Va.) 495; Bona- fous V. Rybot, 3 Burrows, 1370; and point to a distinction, which they call rather thin, that if the whole debt be made payable at the time of the first in- stallment, with leave to the debtor to postpone on paying this and subsequent (774) Ch- 8] INCUMBRANCES. § 101 But the courts in New Jersey and Pennsylvania have reprobated the great liberality shown in this behalf, and maintain that relief against the forfeiture should not be given, except upon a good ex- cuse shown, without, however, explaining whether a man's inability to pay, when he has no money to pay with, is an excuse, or not.^°^ It is quite usual to make the mortgage debt fall due if the mort- gagor should fail to pay the accruing taxes, or to keep the premises insured, and such an agreement is enforced.''^^ The clause making the whole mortgage enforceable by sale when any one installment of principal or interest has lain over unpaid, for such a number of days as to render its voluntary payment there- after unlikely, is of great importance to the mortgagee, because a decree to sell for one or more installments that have become due is highly inconvenient, especially when the notes for later install- ments have fallen into other hands. To sell subject to these would give to the holder of later maturing notes an undeserved advantage. To divide the land is often impracticable, and nearly always likely to cause injustice. In some states (without the above clause), when the installments are all in one hand, and the land is indivisible, it installments promptly, there would be no forfeiture. See, also, Benedict v. Lynch, 1 Johns. Ch. 370. 201 Warwick Iron Co. v. Morton, 148 Pa. St. 72, 23 Atl. 1065; Baldwin v. Van Vorst, 10 N. J. Eq. 577 (though in equity time is not of the essence of the contract, the parties can make it so; in a loan of $40,000 for 10 years, the non- payment of the first interest installment for 30 days should not be relieved against, as the same relief might be asked each time, which would thoroughly change the nature of the loan). In Sloat v. Bean, 47 Iowa, 60, where an un- authorized agent had accepted payment of overdue sums, it was strongly inti- mated that acceptance by the mortgagee himself does not waive the forfeiture; s. p., Malcolm V. Allen, 49 N. Y. 448. As to the effect when part of the un- matured notes have been assigned, see Sargent v. Howe, 21 111. 148. The American edition (1859) of the Leading Cases in Equity speaks of relief in equity against such clauses as rather obsolete (though given In Mayo v. Judah, 5 Munf . [Va.] 495) ; that such relief could be evaded by making the principal due with the first installment of interest, with further time given should the interest be paid. Some courts of original jurisdiction do yet indulge the mortgagor upon terms of paying up all an-ears with interest and costs; but there are few, if any, recent reported cases sustaining the practice. 282 In Clouston v. Gray, 48 Kan. 31, 28 Pac. 083, such a clause was not en- forced, as being "too vague," when it was plain enough to understand; but the general position was conceded. (775) § 102 LAND TITLES IN THE UNITED STATES. [Ch. 8 may be sold for the whole debt; in others (e. g. in Kentucky), such a course is forbidden by statute. To sell for one installment, sub- ject to the later ones in the same hands (the creditor being pur- chaser), would extinguish both lien and debt, by merger, and thus compel the mortgagee to forego all hope of further recovery, when the land is insufificient in value.^°^ Sometimes, a penalty is inserted in a mortgage, or in the notes which it is made to secure, that upon failure to pay the debt at its maturity, or to pay any of the installments of interest, the debtor shall thereafter pay a higher rate of interest than that originally agreed upon, but still a rate within the limits of the usury laws. The only objection to such an arrangement is the technical one that a court of equity should not be called upon to enforce a pen- alty. But as this objection can be easily evaded by putting the higher rate into the contract, with a proviso for reducing it in case of prompt payment, the better opinion is that such a clause, though it sounds like a penalty, should be enforced.^ °* It often happens, in the enforcement of a mortgage, deed of trust, or lien, whether by strict foreclosure, judicial sale, or by sale under a power, that an administrator or executor upon whom it has de- \olved by the death of the former lien holder becomes the owner of the land that was in lien. In such a case the fee vests in him, in trust for the decedent's estate; and he can, by his deed, dispose of the fee, the power to do so being incident to his office.^ °^ § 102. Sundry Statutory Liens. There are several other liens which may rest on land besides the mortgage, legal or equitable, and besides the vendor's lien, and those 263 California Code Civ. Proc. § 728; Yoakam v. Wlaite, 97 Gal. 286, 32 Pac. 238; Phillips v. Taylor, 9G Ala. 426, 11 South. 323 (the creditor cannot bring his suit after first installment, and collect the rents through a receiver till the last falls due). In Tennessee the sale must be subject to the notes not due, Shields v. Dyer, 80 Tenu. 41, 5 S. W. 439; but see Cleveland v. Booth, 43 ilinn. 16, 44 N. W. G70 (holder of coupon may sue, though principal not yet due in other hands). 264 Pass V. Shine, 113 N. C. 284, 18 S. E. 251; Dean v. Applegarth, Go Cal. 391, 4 Pac. 375. 2 06 Watson v. Railroad Co., 91 Mich. 199, 51 N, W. 990. (776) Ch. 8] INCUMBRANCES. § 102 whicli have been named as in some way akin to it; some of which liens are not generally discussed in books on real estate, but on which the lawyer examining a title must have an eye before declar- ing it "clear, free, and unincumbered." The lien of the judgment, of the execution or attachment, and of the lis pendens will be treated in other chapters at some length. There is, next in importance, the mechanic's lien, the result of comparatively late legislation, the leading principle whereof is this : that he who, for the owner of the soil or of any interest therein, puts up, improves, or repairs any buildings thereon, or who furnishes to such owner any building material towards such erection, improve- ment, or repairs, has a lien as "a mechanic or material man," without any express contract for that purpose, written or oral, other than the contract which binds the employer for the price. The laws of the different states run very far apart on all the details, but they nearly all agree on the following points: (1) The lien is waived by accepting a mortgage or collateral security, but not by taking the unsecured note of the employer for the debt; (2) the lien is barred by a comparatively short delay, generally one year from the comple- tion of the work, the furnishing of the material, or after the much sliorter time within which a written notice must be put on record; {?>) for a limited time, generally during the progress of the work, the lien rests on the doing of the work, or on the delivery and use of the materials alone, while thereafter the claimant must lodge his claim in the office of the register, recorder, or county clerk; (4) such lodging for record, whenever required, makes this lien superior to the rights of subsequent purchasers or incumbrancers. Under these laws, he who buys land, or lends money on it, must sometimes take a view, to see whether erections or buildings are going up; but he must always search the record for mechanic's lien notices.'' ""^ Other 266 In New York, a uniform mechanics' lien law, superseding all those for several cities and counties, was passed only in 1885 (since amended); in Kentucky, a uniform law came into force for the first time June 12, 1894. In the New York law a notice of the lien must be filed and suit be brought within one year, or an order of court must be obtained to continue the lien. In Ken- tucky, notice must be filed within 60 days from the time the work is finished