s QJornpU Slam ^rl|nol Hibraty Cornell University Library KF 570.W29 Principles of the law of ^al property • 3 1924 018 825 137 P ^ Cornell University WMI 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/cu31924018825137 PKINCIPLES OF THE LA¥ OF SEAL PROPEETT FOR THE USE OF STUDENTS. BY GEO. W. WARVELLE, LL. D., Deak of the Chicago Llw School; Ai-rsoa of a Tkeatise on Abstbacts OF Title; The Law of Vskoos. ahd Fubchases, ETa CHICAGO: CALLAaHAIf AJSTD COMPAlSrY. 1896. BY GEORGE W. WARVELLE. STATE JOTIRNAL PBINTING COMPANY, Pbintbhs ahd Stbreotypeks, madison, "wis. TO HOIf, MIJEEAY F. TULET, ONE OF THE JUDGES OF THE CIECUIT COTJET OF COOK COTTNTT, ILLINOIS, THIS VOLUME IS INSOEIBBD, AS A TEIBUTE OF EESPECT, BT THE AUTHOE. PREFACE. The present volume is tlie outgrowth of the writer's own wants in practical educational work, and is offered as a course text-book on the subject of Eeal Property, as same is now included and grouped in the curricula of the stand- ard American law schools. While there are many excellent treatises upon the law of Keal Property, yet, in the main, they are too comprehensive in scope and diffuse in detail for effective work in the class room. In this unpretentious compilation the writer has en- deavored to condense and simplify the elementary rules and principles, and by a system of logical development to afford a clear perception of those abstruse phases of the subject that are usually found so perplexing to beginners. No at- tempt has been made to show the historical evolution of the subject or to note the changes which same has undergone, other than incidental allusions, nor has the writer ventured, save in rare instances, to enter into any discussion of the matters involved or to present his own views with respect thereto. In all cases the principles, rules and definitions have been stated as tersely and concisely as circumstances would permit, the intention being that the text should serve only as the foundation or groundwork of lectures and ex- position by the instructor. Much that is undoubtedly germane to the subject has been intentionally omitted, for the reason that same can be more Yl PEEFAOE. advantageously studied in connection with other branches of the course. Thus, many of the questions growing out of the relation of Vendor and Purchaser are a part of the ele- mentary law of contracts, and should be covered in that course ; and in like manner the course in Equity will include a number of the special topics that usually find a place in the ordinary treatise on Eeal Property. Continuity of de- sign has in some places rendered necessary a passing allusion to these subjects, but as a rule they have been avoided. "While this book is primarily intended for the use of stu- dents pursuing a prescribed course under an instructor and to be employed in connection with other works of a like ele- mentary character, it is yet believed that it will be found equally serviceable in private study. In its preparation free use has been made of the author's other legal writings, but the plan of the work and development of the subject are entirely new. The writer is fully conscious of the failings and imper- fections of his work, yet ventures to hope that upon trial it may not be found without merit; and emboldened by the favorable reception that has been accorded to all his former efforts, he now presents this primer for the inspection, and, it is hoped, approval, of the legal educators of the United States. G. W. W. Chicago Law School, Oct. 12, 1896. ANALYSIS OF THE CONTENTS OF THIS VOLUME. CHAPTER I. THE NATURE OF REAL PROPERTY. Generally considered and classified 1 I. Corporeal hereditaments 3 Generally considered 3 Land 4 Minerals 4 Oils and gases 5 Growing crops 6 Trees and herbage 6 Manure 7 Houses and buildings 7 Fixtures 8 Water 10 Ice 11 Church pews 13 Corporation stock 13 II. Incorporeal hereditaments 14 Generally considered 14 Appurtenances 15 Easements 16 Profits a prendre 19 Licenses 20 Franchises 31 Burial lots 33 CHAPTER n. ESTATES IN REAL PEOPERTT. Defined and classified 23 I. Considered with respect to the quantity of interest possessed by the tenant 34 1. Estates of freehold 25 In fee-simple 35 In fee-tail 26 Vm ANALYSIS OF CONTENTS. L Considered with respect to the quantity of interest possessed by the tenant — continued. 1. Estates of freehold — continued. For life 27 Dower 29 Curtesy 31 Homestead 32 2. Estates less than freehold 33 For years 34 At will 35 By sufferance 35 IX. Considered with respect to the time of their enjoyment . . 36 In possession 36 In remainder 37 In reversion 38 III. Considered with respect to the number and connection of the tenants 39 In severalty 39 In joint tenancy 39 By entirety 40 In common 42 IV. Considered with respect to the manner of their enjoyment . 44 Absolutely 44 On condition 46 Defined 47 Effect of 50 Conditional limitation 51 Equitable estates 52 Uses • . . . 53 Trusts 54 Powers 56 Merger of estates 57 CHAPTER III. TITLE TO REAL PBOPEETT. Defined and classified 59 I. Original title 60 Generally considered 60 Sources of 63 Occupancy 64 Discovery 65 Conquest 66 Cession 66 ANALYSIS OF CONTENTS. IX II. Derivative title 67 Generally considered and classified 67 1. By descent . . ' 68 Nature and incidents 68 (1) Through consanguinity 71 Definition and nature 71 Right of succession 73 Right of representation 74 Preferences 75 Aliens 75 Coparceners 76 (2) Through affinity 76 Defined and distinguished 76 (3) Through adoption 77 Defined and distinguished 77 Right of succession 79 2. By purchase 80 1. Through act of the parties 80 (1) By way of grant 80 (a) Public grant 81 Patent 81 Legislative act 83 (b) Private grant 85 Deed 85 Dedication 86 (c) Confirmation 88 Nature and operation 88 (2) By way of devise 89 Nature, operation and effect 90 3. Through operation of law 93 (1) Resulting from natural causes 93 Accretion 93 Reliction 94 Avulsion 94 (3) Resulting from political and civil relations ... 95 Eminent domain v 95 Escheat 97 Confiscation . 98 Forfeiture 99 Tax titles 100 (3) Resulting from public policy 103 Estoppel 103 By record 103 By deed 103 Prescription 105 Limitation 106 Relation 110 X ANALYSIS OF CONTENTS. CHAPTER IV. THE PARCELING OP LANDS. Generally considered 112 Divisions of the public domain 113 Subdivision of sections 115 System of rectangular surveying 117 Meander lines US Plats and subdivision 119 Formal requisites of plats 120 Registration of plats 120 Vacation and cancellation of plats 131 Dedication by plat 121 CHAPTER V. THE CONVEYANCE OF REAL PROPERTY. Generally considered 124 Forms of conveyance 124 Incidents of deeds 123 1. Writing and arrangement 126 General rules 126 a The parties • 128 Generally considered 128 (a) Persons sui juris 130 Generally 130 Partners 130 Corporations 131 (b) Persons under disability 133 Aliens 135 Infants 136 Married vcomen 138 (o) Persons incompetent 138 Lunatics 138 Imbeciles 188 (d) Fiduciaries 141 Generally 141 Trustees 143 Executors and administrators 143 Guardians 144 Legal oflBoials 144 8. The consideration 145 Operation and effect of 145 4 The subject-matter 147 Generally 147 urtenance may be described in general terms as some- thing belonging to another thing as principal, and which passes as an incident to such principal thing.^ Thus, in a grant of lands everything passes which is necessary to the full enjoyment thereof, and which is in use as an incident or appurtenant thereto. The term is made to cover a wide diversity of subjects, and is often a source of contention for this reason. But under appurtenances nothing passes except such incorporeal easements, rights or privileges as are strictly necessary and essential to the proper use of the estate to which they are annexed.' It is an invariable rule, however, that a thing corporeal cannot be made appurtenant to a thing corporeal, and hence land is never appurtenant to land ; * nor will the term carry with it any rights or interests in the property of the grantor on other lands which he owns ; ^ neither can it be made to 1 Incorporeal hereditaments at sions and remainders, but this is common law comprised advowson, confounding a right with a thing. tithes, common, ways, oflSces, dig- 2 1 Bouv. Law Diet. 136. nities, franchises, rents. It would ' Ogden v. Jennings, 63 N. Y. 536; seem also that the elementary Cave v. Crafts, 53 Cal. 135. writers were wont to include as * Grant v. Chase, 17 Mass. 443; incorporeal hereditaments certain Barrett v. Bell, 83 Mo. 110. classes of estates, notably rever- * Frey v. Drahos, 6 Neb. 1 ; Ogden V. Jennings, 60 N. Y. 536. 16 LAW OF EBAL PEOPEETT. include anything not situate on the land described in the ■conveyance, although used in connection therewith.' There are apparent exceptions to these rules in some of the earlier cases in the construction of wills, Avhere the word " appur- tenances " has been construed in such a manner as to take it out of the strict legal and technical definition above given,^ but this enlarged sense has never been applied to grants by deed. Under the heads of appurtenances are classed rights of way, rights of fiowage, race-ways, water-powers, and gen- erally any other incident in the nature of an easement that is requisite to a fair enjoyment of the grant, or which has been necessarily and incidentally used in connection with the subject of the grant, and which is of a different but con- gruous nature. JEasemen ts. — An incorporeal right existing in favor of and imposed upon corporeal property is called an easement. The converse of an easement is denominated a servitude. The land to which the privilege is attached is called the dominant estate, and that against which it exists, the servient estate. As these rights are not usually personal, and do not change Avith the persons who may own the respective estates, it is very common to personify the estates themselves as owning or enjoying the easements.^ Easements are classed as appurtenant or in gross. "When in gross they are purely personal to the holder and cannot be assigned, nor will they pass by descent. "When appur- tenant, they are attached to land as an incident and pass Avith it, whether the land be conveyed for 3"ears, for life or in fee. In either case they cannot be separated from or transferred independent of the land to which they inhere.* An appurtenant easement attaches to every part of the land 1 Frey v. Drahos, 6 Neb. 1. This species of right is very ancient 2 See Jackson v. White, 8 Johns, and was known under the civil law (N. Y.) 59. as a predial servitude. See San- 3 Consult 3 Kent, Com. 435 ; Wash, ders' Justinian. Easements, 5; Walk. Am. Law, 265. * Koelle v. Knecht, 99 111. 486. NATUEB OF EEAI, PKOPEKTY. 17 to ■which it is incident, no matter into how many parts it may be subdivided or however small, and is to be enjoyed by all of the owners, no matter how many they may be.' With respect to the servient estate easements are further divided into affirmative, or such as permit something to be done on such estate, and negative, or such as restrict the owner of the servient estate from doing that which he other- wise might. These may be illustrated in the former case by rights of- way or flowage, in the latter by inhibiting the erection of buildings which would tend to impair the enjoy- ment of light and air by the dominant estate.^ While easements may be created for an infinite variety of purposes they are usually such as relate to rights or privi- leges of ingress or egress. The most common form of ease- ment is a right of way. This, in every case, is but a mere right to use the surface of the soil for the purpose of pass- ing and repassing and the incidental right of properly fitting the surface for that use, but the owner of the soil has all the rights and benefits of ownership consistent with such easement.' The right to overflow the lands of the servient estate to the extent necessary to the profitable enjoyment of the dominant estate is another familiar form of ease- ment in connection with water-mills or hydraulic works of any kind. The right of lateral support of buildings; of receiving air, light or heat from or over other land ; of re- ceiving and discharging water, etc., are all instances of ease- ments. There is a certain class of privileges which is sometimes confounded with easements, but which, as a matter of law and fact, has nothing in common with them except the ap- pearance of benefits on the one hand and burdens on the other. This is illustrated in the right which every owner of land, through which a natural stream of water flows, has to have such stream flow from his land unobstructed in its 1 Garrison v. Rudd, 19 111. 558. 3 Perley v. Chandler, 6 Mass. 454 nVash. Real Prop. 301; Tud. Lead. Cas. 107. 2 18 LAW OF EEAL PEOPEETT. natural channel, unless such right has been curtailed in some legal manner. This is said to be a natural right. It is true such rights have some resemblance to easements, but they are not in fact real easements ; for, as every easement is sup- posed to have its origin in grant, or prescription which pre- supposes a grant, it would be absurd to suppose that the owner of land at the head of a stream has an easement so acquired for its flow over aU the lands of lower riparian owners for many miles to its mouth. The term " natural easement " is indeed often made use of by courts, especially in the case of flowing water, but the preponderating opinion seems to maintain the principle that a right of this char- acter is a natural right — an incident of property in the land, not an appurtenance to it.^ An easement is technically created only by grant or con- firmation ; but such grant may be implied when the exist- ence of the easement is necessary to the enjoyment of that which is expressly granted or reserved, upon the principle that when one grants anything to another he thereby grants to him the means of. enjoying it, whether expressed or not ; ^ and in pursuance of this principle the general rule is, that in every deed of a part of the grantor's land, without ex- press provision on the subject, there is an implied grant or reservation of all easements of necessity for the enjoyment of the part conveyed or the part retained.' An easement may also be established by prescriptive user from which a grant is inferred. Where an easement is es- tablished by prescription or grant presumed from user, it is limited to the actual user.* And so in like manner an ease- ment of necessity arising by implication cannot be extended 1 Johnson v. Johnson, 2 Met. Kuhlman v. Hecht, 77 III. 570; (Mass.) 234; Scriver v. Smith, 100 Collins v. Prentice, 15 Conn. 39. N. Y. 471. Consult Wash. Ease- SDillman v. Hoffman, 38 Wis. ments, 276'; Ang. Water-courses, 559; Marvin v. Brewster, etc. Co., § 90. 55 N. Y. 553. 2 Lanier v. Booth, 50 Miss. 410; * Bradley's Fish Ca v. Dudley, 37 Conn. 136. NATURE OF EEAL PEOPEETT. 19 beyond what the existing necessities of the case require,' and continues only so long as the necessity itself exists.^ Easements may be extinguished by release, by merger or by abandonment. Where the owner of the dominant es- tate acquires the fee of the servient estate, the easement becomes merged in the unity of possession and title thus occasioned,' although it may be revived in the event of the severance of the tenements where the use is apparent and continuous and necessary to the reasonable enjoyment of the severed part.* Mere non-user, of itself, will not materially affect the right to an easement, but if continued for a long period of time, say twenty years, under such circumstances as show an intention of abandonment, it may be sufficient to ex- tinguish such easement; and even an abandonment for a shorter period, showing an intention to release or surrender the right, and which is acted upon by the owner of the servient tenement so that it would work harm to him if the easement were thereafter asserted, would operate to ex- tinguish same.' It would seem, however, that the question of abandonment is always one of intention, depending largely upon the facts of each particular case ; and while time is one of the elements from which intention may be inferred, yet the question seems to depend less upon the duration of time than the acts which accompany the fact of disuse.* Profits a prendre. — Eights exercised by one person in the soil of another, accompanied with a participation in the iLide V. Hadley, 36 Ala. 627; Brakely v. Sharp, 10 N. J. Eq. 206j Pierce v. Selleok, 18 Conn. 321. Thompson v. Miner, 30 Iowa, 386. 2 Ogden V. Jennings, 62 N. Y. = gee Keates v. Hugo, 115 Mass. 583; "Warren v. Blake, 54 Me. 276. 204; Muller v. Strickler, 19 Ohio STyler v. Hammond, 11 Pick. St. 185; Pierre v. Fernald, 26 Me. (Mass.) 193; At water v. Bodfish, 11 436. Compare Powell v. Sims, 5 Gray (Mass.), 150. W. Va. 1; Eoyce v. Guggenheim, 1 Morrison v. King, 62 III. 30; 106 Mass. 201. Lampman v. Milks, 21 N. Y. 505; ^Dyer v. Sanford, 9 Met. (Mass.) 395. 20 LAW OF EEAL PEOPEETT. profits of the land, are ierm.edL profits a prendre. The strict and technical definition of an easement excludes a right to the products or proceeds of land, it being a mere right of convenience without profit ; yet it is generally admitted that a right of profits is in the nature of an easement, and, al- though capable of being transferred in gross, may also be attached to land as an appurtenance, and pass as such.^ The question does not seem to be altogether well settled, how- ever, as a right of this nature is, on general principles, an interest in the land itself, and hence not properly an ease- ment. It is true it is a privilege, as is also an easement, but the latter is a privilege without profit, and is merely acces- sorial to rights of property in land, Avhile the former is the reverse. A profit a prendre always contemplates a participation of some kind in the profits of the land. It includes many things that ordinarily pass under the head of license, and, as we have seen, the distinction between it and an easement is not always palpable. Thus, a right of pasture ; of mining ; a privilege to fish, hunt, etc., are all profits a prendre, and when not granted in favor of some dominant tenement can- not be said to constitute an easement in the proper accepta- tion of that term, but rather an incorporeal right of property in the land itself.^ Licenses. — An authority to do some act or series of acts on the land of another, without passing any estate in the land, is called a license, and imparts to the licensee rights resembling, though not identical with, an easement. A license may be created by parol, but if it constitutes a per- manent right or confers any interest in the land it must be by grant ; and when a license is coupled with an interest, by reason of the payment of price or other act, it has been held that the authority conferred is not a mere permission, but amounts to a grant which obliges the grantor and vests 1 Huntington v. Asher, 98 N. Y. 2 Post v. Pearsall, 22 Wend. (N. 601 Y.) 425; Waters v. Lilley, 4 Pick. (Mass.) 145. NATUEE OF EEAL PEOPEETT. 21 legal property in the grantee.^ It may be said, however, that licenses which, in their nature, amount to a grant of an estate, though for ever so short a time, are properly con- sidered as leases.^ A license, being a mere privilege founded in personal con- fidence, ceases with the death of either party, or with a sale or conveyance of the land, and cannot be transferred by the licensee, while, if executory, it is revocable at any time at the pleasure of the licensor.' When executed, in whole or in part, the question of revocation becomes one of great difficulty to properly determine; but usually a court of equity will not permit the revocation of a license where it has been given to influence the conduct of another and has caused him to make large expenditures or valuable improve- ments.* A license operates as a protection for everj^' act done under it while in force, but after revocation the licensee will become a trespasser and as such may be evicted by the land- owner.^ The main difference between an easement and a license lies in the fact that the former must arise in grant, while the latter, conveying no estate or interest in the land, may rest in parol ; yet the distinction is very subtle, and it be- comes difficult in many cases to discern a substantial differ- ence between them. Franchises. — In its original form a, franchise was a royal privilege or prerogative of the king, subsisting in the sub- ject by a grant from the crown; and except that the grant comes from the people in their sovereign capacity, the gen- eral features have not been changed in this country. The 1 Reriok v. Kern, 14 S. & R. (Pa.) < Pliokenger v. Shaw, 87 Cal. 267; Metcalf v. Hart, 3 Wyo. 513. 126; Thomas v. Irrigation Co., 80 2 Cook V. Stearns, 11 Mass. 536. Tex. 550. 'De Haro v. United States, 5 'Kremer v. Railway Co., 51 Wall. (U. S.) 599 ; Mumford v. Whit- Minn. 15. ney, 15 Wend. (N. Y.) 880. 22 LAW OF EEAL PEOPEETT. term is ordinarily applied to grants for the maintenance of bridges, ways, ferries,^ etc. The grant of a franchise creates a vested property right, and, unless expressly restricted to the person of the grantee as an individual privilege, is alienable and descendible in the same manner as other real estate.^ The creation, duration and extent of franchises are mat- ters of statutory regulation in all the states. In late years they have usually been confined to corporations. Burial lots. — As a rule the purchaser of a cemetery lot takes no title to the soil. The grant is in the nature of a license or privilege to make interments in the described plot, exclusive of others, so long as the ground shall remain in such use.' Such right is, however, real property. It may itself be sold and transferred to others, if nothing in the grant prevents, and is to be treated generally as an in- corporeal hereditament. 1 Under the English law the title Chad wick v. Haverhill Bridge, 2 included a large number of sub- Dane, Abr. 686; Lippenoot v. Al- jects wholly unknown in the lendar, 27 Iowa, 460. United States, as forrest, chase, ^Kincaid's Appeal, 66Pa. St. 411; free-warren, fishery, etc. Eaynor v. Nugent, 60 Md. 515. 2Dufour V. Stacey, 90 Ky. 288; CHAPTEE II. ESTATES IN REAL PROPERTY. Defined and classified. — The specific degree of interest which a person has in real property is called an estate. The owner, or, more properly, the holder, of such interest is technically termed a tenant. The two main ingredients of estates are quantity and qual- ity, the former having reference to their duration and extent, the latter to the tenure by which they are held and the manner of their enjoyment. Estates are classed as legal and equitable, the former being those which have their origin and derive their qualities and incidents from the common law, and the latter those which are derived from the rules and principles which prevail in courts of equity. Formerly every estate was legal, in the proper acceptation of that term, and in contemplation of law there is and can be but one estate, which may properly be denominated the legal estate. But the introduction of what were known as uses, and the subsequent origination of trusts, where one party held the title, but upon some trust or confidence for another, early led the court of chan- cery to take cognizance of the rights of the beneficiary, and thus grew up a double ownership of lands so situated. As a rule, any legal conveyance wiU have the same effect upon an equitable estate that it would have on a like estate at law. Estates have further been classified by elementary writers as absolute and conditional, but these terms must be regarded only as convenient expressions. Conditions may be annexed to any kind of an estate, but do not in themselves consti- tute estates, nor do they partake of the essential character- istics of same. 24 LAW OF EEAL PEOPERTT. At common law estates were highly artificial in their creation and complex in character, but in the United States the nature and quality of estates in land have been form- ally defined and fixed by statute, and while the common-law nomenclature has been generally retained, the common-law incidents have, as a rule, been greatly modified or abolished. For the purposes of clearness and accuracy in the ascer- tainment of proprietary rights in land, elementary writers, from a very early period, have considered estates under the following heads: I. With respect to the quantity of interest possessed by the tenant. II. With respect to the time of the enjoyment of such in- terest. III. With respect to the number and connection of the ten- ants. lY. With respect to the terms and manner of enjoyment. The classification applies to either legal or equitable in- terests, and is, perhaps, the most convenient that has yet been devised. In the following paragraphs an effort will be made to examine briefly the general characteristics of es- tates under these heads, treating first of estates at law and following with estates regarded by courts of equity. I. Estates Consideeed with Respect to the Qtjaktitt of Interest Possessed by the Tenant. Classified and distinguished. — The quantity of interest a tenant may have in land is measured by its duration and extent; and this occasions the primary division of estates into (1) such as are freehold, and (2) such as are less than freehold. These terms, though still retained in the nomen- clature of the law, have lost their original significance. A freehold estate is described in the old books as an interest in lands held by a free tenure,^ for the life of the tenant, or 1 Upon the introduction of the base tenure. The tenant who held feudal law all lands in England by a free tenure had always a right became holden either by a free or to the enjoyment of the land for ESTATES IN EEAL PEOPEETY. 25 that of some other person, or for some uncertain period. The test seems to lie in its indeterminate duration ; for if the utmost period of time to which an estate can last is fixed and determined, it is not, under the common-law rules, an estate of freehold. This early division of estates seems to have met the con- currence of later writers on real property, and in many states has received an official recognition hy legislative enactment. 1. Estates of Freehold. Freeholds, or estates of indeterminate diaration, are in turn divided into estates of inheritance or in fee, and estates not of inheritance, or for life. At common law the former was subject to a futther division into absolute and liimited estates of inheritance, but this distinction has been abolished in the United States, although a faint resemblance yet exists, as will hereafter be shown. Fee-simple. — Freehold estates of inheritance are usually denominated estates in fee, a name borrowed from the an- cient land system of England, but of far greater import here than there. It signifies an absolute estate of inherit- ance, free from any restrictions to particular heirs, and is the largest estate and most general interest that can be en- joyed in, land, being the entire property therein, and confers an unlimited power of alienation.^ The estate is wholly comprised in the word " fee," although it is customary to describe it as a " fee-simple " or even a " fee-simple absolute." It has been said that the term " simple " was added for the purpose of showing that the estate is descendible to the his life at least, and could not be called a freeholder, because he dispossessed, even for the non-pay- might maintain his position ment of his rent or the non-per- against his lord. See Cruise, Dig., f ormanoe of his services ; whereas tit. I, § 16. the tenant vfho held in villenage ' Haynes v. Bourn, 43 Vt. 686; might be turned out at the pleas- Currier v. Gale, 9 Allen (Mass.), ure of his lord; the person holding 535. by a free tenure, therefore, was 26 LAW OF EEAL PEOPEETY. heirs generally, without restraint to the heirs of the body, etc.," and possibh^, if the American estate were identical with its English prototype, this explanation would have sig- nificance ; but, as a matter of fact as well as law, the addi- tion of the word "simple" adds nothing to the force or comprehensiveness of the term.^ The creation of the estate was formerly very technical, and was raised only by a grant to a man and his heirs. For many years this was the rule in the United States ; but more recently the statute has abrogated the common-law rule, and every estate in lands which may be granted, conveyed or devised is deemed a fee-simple or estate of inheritance, if a less estate is not limited by express words or created by construction or operation of law ; ^ and generally the question of the estate transferred is determined rather by the end sought to be attained by the grantor than by the language employed.* Fee-tail. — As previously stated, estates of inheritance were formerly divided into absolute and limited estates ; the for- mer called a.fee-simj)le, the latter a fee-tail. It would seem that originally donations of land were simple and pure, without any condition being annexed to them. In time it became customary to make grants of a more limited nature by which the estate was restrained to some particular heirs of the grantee, exclusive of others, as, to the heirs of a man's body, by which only his lineal descendants were admitted, in exclusion of collateral heirs. These were known as es- tates in fee-tail, being estates of inheritance, but descendible only to some particular heirs of the person to whom they were granted and not to his heirs-general.^ The object was to preserve great landed properties intact to particular f am- 1 Wright, Ten. 146; 3 Black. Com. 4 Hawkins v. Champion, 36 Md. 106; 1 Prest. Est. 420. 83; Kirk v. Burkholtz, 3 Tenn. Ch. 2 Jecks V. Toussing, 45 Mo. 167; 435; Brislain v. Wilson, 63 III. 173. 2 Wash. Eeal Prop. 77. 6 Consult 1 Spence, Eq. Jur. 140; SLeiter v. Sheppard, 85 111. 343; 2 Black. Com. 113. Merritt v. Disney, 48 Md. 344. ESTATES IN EEAL PEOPEETT. 27 ilies by restricting the power of alienation ; and the estate continued so long as there was posterity in the regular order of descent, but determined as soon as it reached an owner who died without issue. One of the marked characteristics of American law is its abhorrence of perpetuities and all devices calculated to place restraints upon free alienation. This early became manifest in respect to estates-tail; and while the estate cannot be said to be altogether abolished, it has been so modified that when land is given to one and the heirs of his body begotten, the entail extends only for one degree. Thus the immediate grantee would take a life estate, while the second taker would have the remainder in fee.^ It will be seen, therefore, that a freehold estate of inher- itance is practically comprised in the one estate of the fee. "We come now to consider freehold estates not of inherit- ance, of which there is strictly but one kind though assum- ing a variety of forms. Estates for life. — An estate for life, the duration of which is confined to the life or lives of some particular person or persons, or to the happening or not happening of some un- certain event, is a freehold interest in lands, both at common law and under the statute. It confers upon the tenant the possession and enjoyment of the land during the continuance of his estate, while the absolute property and inheritance of the land itself is vested in some other person. Such estates are created in two ways : either expressly, as by deed or other legal assurance, or by the operation of some principle of law ; but the incidents are much the same in either case. "Whenever lands are conveyed to a man for the term of his own life he is called tenant for life; but when he holds for the life of another he is, in technical par- lance, tenant pour auter vie? 1 This is a matter of statutory 23 Black. Com, 120; Clark v. Ow- regulation, but the text states the ens, 18 N. Y. 434. 5;eneral statutory rule. 28 LAW OF EEAL PKOPEETY. Estates for life will generally endure as long as the life or lives for which they are granted ; but there are estates for life which may determine upon future contingencies be- fore the death of the person to whom they are given. Thus, if an estate be given to a woman so long as she remains single, or during her coverture, or so long as a grantee may dwell in a particular place, etc., — in all these cases the grant- ees have estates for life, determinable on the happening of uncertain events.' Every tenant for life has a right to the full use and enjoy- ment of the land, and of all its annual profits, during the continuance of the estate.^ He also has the power of alien- ating his whole interest,^ or of creating out of it any less estate than his own,^ unless restrained by positive condition ; and while any attempt to create a greater estate than his own must necessarily be void, upon the principle that a man cannot convey that which he does not possess, yet his deed will be effective to pass whatever interest he has.^ Incident to estates for lives, and to a large extent also to estates for years, is the right of the tenant to what are tech- nically known as estovers, or the right to cut wood from the premises for fuel or for use upon the grounds ; ^ also to em- hlements, or those crops which are the growth of annual planting and culture.' On the other hand, the tenant is re- stricted from committing waste, or doing that which tends to injure or impair the value of the inheritance. Waste is described as voluntary, as where some act is performed which 1 Jackson v. Meyers, 3 Johns. 5 Stevens v. Winship, 1 Pick. (N. Y.) 388; Hurd v. Gushing, 7 (Mass.) 318; Rogers v. Moore, 11 Pick. (Mass.) 169. Conn. 553; Dennett v. Dennett, 40 2Coke, Litt. 55a; 3 Black. Com. N. H. 505. This is a statutory rule 123; McCorinick v. McCormick, 40 in a majority of the states. Miss. 763; Stewart v. Doughty, 9 « Hubbard v. Shaw, 13 Allen Johns. (N. Y.) 108. (Mass.), 133; Smith v. Jewett, 40 3 Roseboom v. Van Vechten, 5 N. H. 533. benio (N. Y.), 414. ' Stewart v. Doughty, 9 Johns. * Jackson v. "Van Hoesen, 4 Cow. (N. Y.) 108; Penhallow v. Dwight, 7 (N. Y.) 325. Mass. 84 ESTATES IN EEAL PKOPEKTY. 29 impairs the value of the fee ; or permissive, as "where, by the omission of some duty, an injury results to the inheritance.^ It is not an uncommon practice to grant estates to per- sons for their natural lives, and this term is frequently em- ployed in creating life estates by will. The expression grew out of conditions which formerly prevailed in England when it was customary to limit estates for life in this manner lest the civil death of the donee might terminate the estate.^ At present, and in the United States, the expression is prac- tically without meaning, as we have no civil death. Dower. — Among the life estates derived from the com- mon law is that which a widow acquires in a certain portion of her deceased husband's lands, for her support and main- tenance. This estate is known as dower, and is said to have been derived from the Germans, among whom it was a rule that a virgin should have no marriage portion, but that the husband should allot a part of his property for her use in case she survived him.' From an early day this seems to have been a part of the common law of England, receiving frequent mention in the royal charters and concessions, and at Littleton's time had assumed much the same condition that it retains to-day.* But the common-law right of dower no longer exists in the United States, the rights of the surviving wife in the real estate of her deceased husband being those created by statute alone, and whatever incidents may have attached to the ancient estate have either been swept away or incorpo- rated in the rights derived under the statute. No uniform measure, either as to quantity or quality, has been adopted ; but in the main the estate conferred upon the widow con- forms to that of the common law, and consists of the use, iSaokett v. Sackett, 8 Pick. 2 Wms. Real Prop. 103; 3 Wash. {Mass.) 313; Proffitt v. Henderson, Real Prop. 117. 29 Mo. 337; McGregor v. Brown, 3 Cruise, Dig., title VI. 30 N. Y. 117. 4 Coke, Litt, 11a; 3 Black. Com. 135. 30 LAW OF SEAL PEOPEETT. during her natural life, of one-third part of all the lands whereof her husband was seized of an estate of inheritance at any time during the marriage. During the life-time of the husband the wife has only an. inchoate right, which is not an estate in the land, but a mere contingent interest that attaches to the land as soon as there is the concurrence of marriage and seizin.' This interest becomes fixed and certain upon the death of the husband, and after it has been admeasured and assigned it develops into a freehold estate.^ During coverture the wife's inchoate right of dower is incapable of being transferred or released, except to one who has already had, or by the same instru- ment acquires, an independent interest in the land.' Nor is this right such an interest as can be leased or mortgaged ; * neither can a married woman bind herself personally by a covenant or contract affecting her right of dower during the marriage. ISTo act of the husband alone, during the mar- riage, can bar or extinguish this interest ; but a woman may be barred of her dower by jointure, settled upon her before marriage, or by joining with her husband in a deed of con- veyance, properly acknowledged. The release of dower which a woman makes by joining with her husband in a conveyance of his land operates against her only by estop- pel, however, and can be taken advantage of only by those who claim under that conveyance ; ^ and if the conveyance is void, or ceases to operate, she is again clothed with the right which she has released. But in all cases where the wife unites with her husband in a conveyance properly exe- cuted by her, which is effectual and operative against him, and which is not superseded or set aside as against him or 1 Witthaus V. Schack, 105 N. Y. 40; Tompkins v. Fonda, 4 Paige 333. (N. Y.), 448. 2 Elmdorf v. Lookwood, 57 N. Y. ^ Croa'de v. Ingraham, 13 Pick. 333; Johnson v. Montgomery, 51 (Mass.) 88. 111. 185; Sutherland v. Sutherland, » Mallony v. Hoi-an, 49 N. Y. Ill; 69 111. 481. French v. Crosby, 61 Me. 502; ' Eobinson v. Bates, 3 Met. (Mass.) Locket v. James, 8 Bush (Ky.), 28. ESTATES IN EBAL PEOPEKTT. 31 his grantee, her right of dower is forever barred and extin- guished for all purposes and as to all persons.' Upon the death of the husband the inchoate right of the wife, acquired by the marriage, becomes absolute; yet she has no estate in the lands of her deceased husband until her dower has been admeasured and assigned,- and her rights therein can only be released to the owner of the fee or to some one in privity with the title by his covenants of war- ranty. After assignment the widow acquires an estate of freehold in the land allotted in severalty, and her life estate therein possesses all the attributes of other estates for life,, including the right of alienation,' Curtesy. — Another life estate derived from the common law is that which a husband acquires in his wife's lands by reason of the marital relation, called an estate by the ourtesy. Notwithstanding that this estate is derived from the com- mon law it is not peculiar to England, but may be found, more or less modified, in the ancient laws of the other parts of the British islands, and the northern continental nations. The full title of this ancient estate was " estate by the cur- tesy of England," and was so called for the reason that, unlike dower, it was not regarded as resting upon any moral foundation, and was therefore granted as a simple curtesy or favor of the law of England.* Originally this estate was raised only when the husband had issue by the wife; for before that event he had only an estate during their joint lives. But from a very early period the rule seems to have prevailed that a husband who had issue should retain the lands of his deceased wife during his own life, and when the customs of the Normans were re- duced to writing this law was inserted among them.^ lElmdorf v. Lock wood, 57 N. Y. <3 Black. Com. 126; Coke, Litt. 333; Welch v. Button, 79 111. 465. 30a. 2 Johnson v. Montgomery, 51 111. 5 Probably during the reign of 185. Henry L » Hoots v. Graham, 33 III 81. 32 LAW OF EBAL PKOPEETY. "While the right of the husband as tenant by the curtesy has been expressly given by statute in some of the states, and incidentally recognized as an existing legal estate in others, yet in a majority of them tenancy by the curtesy has been abolished, the husband being given a statutory allow- ance from the deceased wife's estate, the quantity and qual- ity varying in diiJerent jurisdictions. In many states the husband and wife are made statutory heirs to each other; and in such cases the husband takes the same share in the deceased wife's estate which she would, on surviving, take in his. In others the estate has been reduced to extremely meager proportions, and accrues only in such lands as the wife owned at the time of her death, and of which she had made no valid disposition by last will and testament.^ Nor is it longer necessary that there should be birth of issue to raise the estate, and marriage, without respect to issue, is sufficient to confer the right if recognized at all. Homestead. — To the estates derived from the common law the statute has added another, which, in its essential characteristics, has no analogy in the law. It is called a hoinestead, and is a constitutionally guarantied right an- nexed to land, whereby the same is exempted from forced sale under execution for debt. In many — perhaps a ma- jority — of the states the homestead right is but a mere privilege of occupancy against creditors, the continuance of which depends upon the continuance of prescribed condi- tions ; ^ but in others it has been raised into an estate, limited only as to its value, and not by any specific degree of in- terest or character of title in the particular property to which it attaches.' In such cases, where the worth of the property does not exceed the statutory valuation, the estate practically embraces the entire title and interest of the 1 Consult local statutes. There 308; Drake v. Kinsell, SSMich. 232; is no uniformity of rule in regard Barker v. Dayton, 28 Wis. 368. to this estate even where recog- ^ See Kerley v. Kerley, 13 Allen nized. (Mass.), 287 ; Burns v. Keas, 21 Iowa, ^Casebolt v. Donaldson, 67 Mo. 260; Barney v. Leeds, 51 N. H. 272. ESTATES IN REAL PKOPEETY. 33 householder therein, leaving no separate interest in him to which liens can attach or which he can alien distinct from the estate of homestead.' So far as the estate bears resemblance to the common-law estates, its general features are more nearly allied to estates for life ; and modern writers, whenever an attempt has been made to definitely locate it, have usually classed it in that category.^ The estate of homestead, having been raised by law in furtherance of public policy ^ as a protection to the family, is personal in its character, and exists only in favor of one who already possesses some other recognized estate in the land. It is therefore incapable of alienation except in con- nection with other interests, but when so joined may be a proper subject of sale, mortgage, or release. The interest of the householder, if a married man, is always shared by the wife, and her consent, as manifested by conveyance, is always necessary to complete the devolution of title.* The estate or right may be lost or waived by abandon- ment,' but a mere temporary absence will not, as a rule, en- tail a forfeiture; * nor will a removal ordinarily be suihcient to terminate the right until a new homestead has been ac- quired elsewhere.' 2. Estates less than freehold. Defined. — "Where the quantity of interest possessed by the tenant is of a determinate character, either by express limitation or through the volition of some other person, it iMerritt v. Merritt, 97 111. 243. 5 Green v. Marks, 25 111. 221; And see Allen v. Cook, 26 Barb. Dunton v. Woodbury, 24 Iowa, 76; he heirs of; such child will take the portion which would have descended to it if it had survived the ancestor,* and the same rules apply in determining who are the heirs of such child as in any other case of descent. In a few states, where an intestate leaves grandchildren only, they all take fer capita, or in their own right ; ^ but as a rule of more general observance, the lineal descendants represent only their ancestor.' '^, Preferences. — By the common-law canons of descent males were preferred before females, the eldest male taking in preference to others of equal degree, and females equally, while in collateral inheritances the male stocks were always preferred to the female, except where, in fact, the lands had descended from a female. This has all been abolished by the statutes of descent, which proWde in all cases for equal participation among the members of a class ; and the right of primogeniture, if it ever existed in this country, is now unknown. Aliens. — There is a mass of curious and obsolete learning in the books relative to persons capable of succeeding to an inheritance, for the law formerly guarded the landed esjtates of the country witl| jealous care, and ruthlessly excluded from a succession thereto all persons who owed fealty to an- other sovereign. Inheritance Avas long confined to citizens of the United States, and aliens were expressly declared in- capable of taking lands by descent or other mere operation of law: and because an alien could have no inheritable blood through which title could be deduced, a citizen was precluded ' Dodge V. BeeleT, 12 Kan. 524; application of that rule de^scend- Crump V. Faucett, 70 N. C. 345, ■' ants of a person deceased in inflni- ' Cox V. Ooi, 44 Ind. 368 : Eshje- twin represented their ancestor, man's Appeal, 74 Pa. St.. 43.- Coiifl- and only when the representation pare Harris' Estate, 74 Pa. St. 453. failed were the lineal descendants *This is somewhat in accordance of the iiitestate next of kin per- with the fourth canop of inherit- naibted to come iii, ance at common law, only by the 76 LAW OF KEAL PROPERTY. "from asserting a title so derived. In case of the death of an alien owning lands, or of a citizen without other than alien heirs, the lands of such persons escheated' to the state. In some localities the common-law disabilities of alienage are still retained in a modified form,i but in a majority of the states where the doctrine formerly prevailed it has been swept away by the liberal policj^ of later years, and in many of the newer states it never had a recognition. In such states, for all practical purposes, so far as respects the acquisi- tion and dascent of land, the alien and the citizen stand upon an equal footing.- In all cases treaties of the United States with foreign nations, regarding aliens, supersede or suspend the operation of restrictive statutes, as to the citizens or sub- jects of such nations, so far as the two may conflict.' Coparceners. — Persons to whom an estate of inheritance descends jointly, and by whom' it is held as an entire estate, are called coparcenei's. Formerly in England the term in- cluded all persons, and such is its legal signilication in America, but its present use in England is confined to fe- males. The distinction between coparcenary and tenancy in common is virtually abolished in the United States, and the general rules relative to tenants in common have the same application whether the common property be derived by descent or by purchase. (2) Title hy Descent' through Affinity. Defined and distinguished. — The relationship or connec- tion arising in consequence of marriage, which exists between each of the married persons and their kindred, is termed affinity, and is distinguished from consanguinity^ which is 1 See Wunderle v. Wunderle, 144 s Schultze v. Schultze, 144 111. 390 ; 111. 40; Beavan v. Went, 155 111. 593. Hauenstein v. Lynham, 100 U. S. This matter is wholly statutory. 483; Jele v. Lemberger, 111. Sup. -'See McConville v. Howell, 17 . Ct, Oct., 1896. Fed. feep. 104; Parish v. Ward, 38 Barb. (N. Y.) 338. TITLE TO REAL PEOPEETY. 77 used to denote the ties of blood. At common law the rela- tionship of affinity is not sufficient to obtain legal succession or inheritance, but by statute, in most of the states, the sur- viving husband or wife has been endowed with inheritable qualities, and may take as heirs of each other according to the prescribed rules of descent. It is true that husbands and wives are in no sense of the word "next of kin" to the other; but, inasmuch as heirship is peculiarly a creation of the statute, it is fully within the sovereign power of the state to make a surviving husband or wife, as well as a child, an heir, and this has been directly or indirectly accomplished in a number of localities.' In the sense that an heir at law is simply one who succeeds to the estate of a deceased person, the wife "is an heir of her de- ceased husband.^ In default of lineal kindred in the descending line, a widow is now generally permitted to participate in the inheritance, and when so permitted she is strictly an heir. The right of dower has also been radically changed in a few states, so that instead of the use, during life, of a portion of the hus- band's estate, the fee to a specific quantity vests absolutely in the widow upon his death ; and though it will require no small amount of astute reasoning to discover Avherein such procedure does not constitute a descent, yet the courts of such states, in view of the fact that the statute declares that she shall be " entitled," etc., have decided that the widow does not take by descent, as an heir, but by virtue, of her marriage relation, as a widow.' (3) Title ly Descent through Adoption. Defined and distinguished. — Adoption is a juridical act cre- ating between two persons certain relations, purely civil, of paternity and filiation. The legal adoption by one person iMay V. Fletcher, 40 Ind. 577; ^MoKinney v. Stewart, 5 Kan. Dodge V. Beeler, 12 Kan. 524; Ring- 384; Steel v. Kurtz, 28 Ohio St. 193. house V. Keever, 49 III. 470. ' Brannon v. May, 43 Ind. 93. 78 LAW OF EEAL PEOPEETT. of the offspring of another, giving him the status of a child and heir of the parent by adoption, was unknown to the common law, although long recognized by the civil, and is of comparatively recent date in the United States. The act of adoption is the creation of an artificial relation, made in conformity with and regulated by positive statute, and in the light of which the new rights and obligations thus derived are to be solely construed.' There is a lack of uniformity in the statutes enacted by the states, but in the main they agree in conferring on the person so adopted the rights of inheritance and succession, and other legal consequences and incidents of the natural relation of parent and child, the same as if such child had been born in lawful wedlock of such parents by adoption, but, as a rule, restrict such child from taking property expressly limited to the body or bodies of the parents by adoption, and in some instances from tak- ing from the lineal or collateral kindred of the parents by right of representation. The right of inheritance thus se- cured is generally restricted to the adopted parent, and pre- cludes an inheritance from the actual children of such adopted parent ; ^ while the right of inheritance by the adop- tive parents from the child is confined to such property as he had received through them, and, as a rule, they are ex- pressly prohibited from inheriting any property which the child received from his own kindred by blood.' As against the adopted child, the statute should be strictly construed, being in derogation of the general law of inheritance, which is founded on blood relationship, and is a rule of succession according to nature, which has prevailed from time immemo- rial. The rights of inheritance acquired by an adopted child under the laws of a particular state are recognized and up- 1 Keegan v. Geraghty, 101 111. 26; ' Keegan v. Geraghty, 101 111. 26. Long V. Hewitt, 44 Iowa, 363 ; Tyler See, also, Reinders v. Kappelmann, V. Reynolds, 53 Iowa, 146. 68 Mo. 483. 2 Barnhizel v. Ferrell, 47 Ind. 335; Keegan v. Geraghty, 101 111. 26. TITLE TO EEAL PEOPEKTT. 79 held in every other state, so far as they are not inconsistent with its own laws and policy ; ^ but in the absence of statutory directions, the general rules of descent must govern as in other cases.^ Where the rights of an adoptive heir acquired in one state are recognized in another, his inheritable capacity must be measured by the laws of the state where the land is situate, and not by those of his late ancestor's domicile, or the state conferring inheritable blood. The right of succession. — Where land is claimed by de- scent and the heir is such by adoption and not by blood, before such title can be asserted over other claimants the right of succession must be established in some legal man- ner. This would be accomplished by the decree of adoption. The right of adoption, as pre'^dously stated, is not of common- law origin, but seems to have been borrowed from the civil law, and in every instance is purely statutory. It is neces- sary, therefore, that the facts essential to the exercise of this special jurisdiction should be shown by the record ; and to give a decree of adoption any force or effect the court pro- nouncing same must, as a rule, have acquired jurisdiction (1) over the persons seeking to adopt the child ; (2) over the child, and (3) over the parents of such child.' In other words, the statute must in all cases be complied with ; * its terms and conditions must be fulfilled ; and if the specified requi- sites ' are not performed, then the act is incomplete and the child cannot inherit from the parent by adoption.' Where the statute provides specifically the means whereby one sus- taining no blood relation to an intestate may inherit his property, the rights of inheritance must be acquired in that manner, and can be acquired in no other way.' 1 Ross Y. Ross, 139 Mass. 243. child is required, and if the child 2 Reinders v. Kappelmann, 68 Mo. is over the age of consent, its own 482. consent as well. Where these req- ' Furgeson v. Jones, 17 Oreg. 204. uisites are specified they are vital. * Tyler v. Reynolds, 53 Iowa, 146; ^Luppie v. Winans, 37 N. J. Eq. Keegan v. Geraghty, 101 111. 26. 245 ; Foster v. Waterman, 124 Mass. * Usually the consent of the par- 592. ents or surviving parent of the '' Shearer v. Weaver, 56 Iowa, 578. 80 law of eeal peoreety. Sec. 2. Title bt Puechase. Defined and classified. — As previously remarked, purchase is a generic term which includes every legal method of ac- quiring an estate except by inheritance. Neither law-writers nor courts ever seem to have ventured upon a more extended definition, if indeed one can be framed, and that just given has come down unchanged from Blaokstone, who in turn borrowed it from earlier writers.^ Two general methods of acquiring title by purchase are recognized, and these are known respectively as: 1. Title by act of the parties. 2. Title by operation of law. This primary division or classification is susceptible of a number of divisions and subdivisions, defining particularly the channels through which title flows, and which will be fully illustrated in the succeeding paragraphs. 1. Title through Act of the Parties. "Where title accrues through the act or agreement of the parties, the operative instrument of conveyance becomes ef- fective either (1) in the life-time of the grantor, when the title is said to be by grant or deed, or (2) after his death, in which event the title is said to be by devise. It is through this general division that ownership of the great bulk of all of the lands in the country is derived ; and all deeds or instru- ments of conveyance of whatever kind or nature, whether made by persons sui juris, that is, in their own right, or by agents, or fiduciaries, are known as muniments of title, the legal features of which will be considered when we shall come to treat of conveyances. (1) Title through Act of the Parties "by way of Grant. Generally considered. — According to the old law a grant applied only to those things which, by reason of their in- tangible nature, were incapable of actual delivery or livery 1 Coke, Litt. 18b; 2 Black. Com. 341; 3 Wash. Real Prop. 4. TITLE TO EBAIi PKOPEETY. 81 of seizin. Hence it was in respect to incorporeal property only, that title was deduced in this manner. But deeds hav- ing long superseded the ancient livery, all property is now the subject of grant.* Title by grant is deduced either through (a) ptiblio grant or (b) private grant, the former being the act or deed of the sovereign power, the latter the exer- cise of individual volition. Partaking of the general nature of grant is a further form of title known as (c) confirmation, applicable either to public or private acts of divesture. (a) Public Qrant. Patent. — The original divesture of title by the govern- ment, either state or national, may be effected in a variety of ways, either of which will be sufficient for the purpose intended. The usual method is what is known as a, patent, or a deed issued in conformity to prescribed legal formali- ties. A patent is a complete appropriation of the land it describes,^ and passes to the patentee all the interest of the United States, whatever it may be, in everything connected with the soil, or forming any portion of its bed, or fixed to its surface; in short, in everything embraced within the term " land." ' It is conclusive evidence of the right of the patentee to the land described therein, not only as between himself and the government, but as between himself and a 1 4 Kent, Com. 494; Wms. Real pertained to the king at common Prop. 147; Wash. Eeal Prop. 181. law comprehended not only those 2 Stringer's Lessee v. Young, 3 rights which relate to the political Pet. 320. character and authority of the sov- 3 Fremont v. Flower, 17 Cal. 199. ereign, but also those which are According to the common law of incidental to his regal dignity, and England, mines of gold and silver may be severed at pleasure from were the exclusive property of the the crown and vested in the sub- crown, and did not pass in a grant ject. It is only to the rights of the of the king under a general desig- first class that the states by virtue nation of lands or mines. It has of their sovereignty are entitled, •sometimes been asserted that this and mines of the precious metal3 prerogative right passed to or was belong to the second class. Moore inherent in the states, but this is v. Snow, 17 Cal. 199. :an error. The jura regaha which 6 82 LAW OF EEAL PEOPEETT. third person who has not a superior title from a source of paramount proprietorship.' When issued to a confirmee of a foreign grant, it operates like the deed of any other grantor,, and passes only such interest as the government possessed, the deed taking effect by relation from the initiation of the series of proceedings for confirmation, and of which it forms the last act.^ The government of the United States has a perfect title to the public lands and an absolute and unqualified right of primary disposal. Neither state nor territorial legislation can in any manner modify or affect this right ; nor can such legislation deprive the grantees of the United States of the possession and enjoyment of the property granted, by rea- son of any delay in the transfer of the title after the initia- tion of proceedings for its acquisition.' Whether the title- to a portion of the public lands has passed from the United States depends exclusively upon the laws of the United States; when it has passed, it then becomes subject to state laws.* These statements acquire additional importance from the fact that in a majority of the western states the entry has been recognized as the basis of a legal title, and in ac- tions of ejectment has frequently been received as such ; but in the federal courts the patent is held to be the foundation of title at law, and neither party can bring his entry before the court.' A purchaser from one holding under a patent is not bound to look behind the patent to learn if it was. properly issued to the one entitled to it,' for the instrument is in itself presumptive evidence that all prior proceedings are legal;' but every purchaser is presumed to have notice of any defect of title apparent upon its face,^ and is charge- 1 Waterman v. Smith, 13 CaL 373. 5 McArthur v. Browder, 4 Wheat. -'Yount V. Howell, 14 Cal. 465. 488; Fenn v. Holmes, 21 How. 481. 3 Union Blill, etc. Co. v. Ferriss, « Sohnee v. Schnee, 23 Wis. 377. 3 Sawyer, 176; Gibson v. Chouteau, ' Barry v. Gamble, 8 Mo. 88; Win- 13 Wall. 93. ter v. Crommelin, 18 How. 87; 4 Wilcox V. Jackson, 18 Pet. 498. Stringer v. Young, 3 Pet. 320. 8 Bell V. Duncan, 11 Ohio, 192. TITLE TO BEAL PEOPEETT. 83 able with notice of whatever the patent recites.^ A patent issued to a fictitious person is a nullity,^ but the heirs of a deceased person will take a valid title to the land so con- veyed to a deceased ancestor.' In the colonial states and the territory claimed by them, as well as in the state of Texas, the original and paramount source of title is the state. In all the states formed from national territory, except as the sovereign prerogative over submerged land has been asserted, the patent from the state is only a mesne conveyance of an older and pre-existent title, depending for its validity upon the preliminary steps by which the state acquired ownership to the soil. In tide- water states, notably Alabama, California and Oregon, where the doctrine of original title in marsh and submerged lands, by virtue of sovereignty, has been strongly asserted, a state patent or grant may in some cases form the founda- tion of an unassailable title ; but in the interior, as well as in states bordering on the Great Lakes, where no perceptible tide is found, the state, while exercising dominion over its water-ways, has usually conceded the ownership in the soil covered thereby to the adjacent riparian proprietor, who would hold, whatever might be the mesne conveyances, from the United States in virtue of the original divesture by patent, grant, or otherwise. Legislative act. — The United States or a state may make a grant of land by a law as effectually as by a patent issued in pursuance of a law. In the former case it is the direct act of the government through the legislature, in the latter it is a ministerial act under the direction of the legislature. A confirmation by law of a claim of title in public lands is to all intents and purposes a grant of such lands,^ and, 1 United States v. Land Grant 554; Dean v. Bittner, 77 Mo. 101; Co., 21 Fed. Eep. 19. Hall v. Jarvis, 65 111. 303; Langdeau 2 Thomas v. Wyatt, 35 Mo. 34 v. Hanes, 21 Wall. 531; Strother v. 3 Galloway v. Finley, 13 Pet. (TJ. Lucas, 13 Pet 411; Field v. Sea- S.) 36. bury, 19 How. 323. 4 Challefoux v. Ducharme, 4 Wis. 84 LAW OF EEAL PEOPEHTT. where one is in possession of land, a resolve of the legisla- ture, releasing them to him, passes a title without any further act, except performance of the conditions, if any.^ An act of congress, containing provisions clearly indicating an in- tention to pass the fee unconditionally and absolutely, op- erates ipso facto to vest the title in the grantee ; ^ but if the grant be coupled with a condition, it will not operate to vest the title until such condition has been complied with.' An act of congress granting land to one person is higher evi- dence of title than a patent of the same land subsequently issued by the olncers of government to another person, and cannot be defeated by such subsequent patent.* Thus, titles derived from the state to lands selected under the " swamp grant " will take precedence over patents from the United States issued subsequent to the date of the granting act.' Legislative grants and confirmations are usually followed by patent, the issuance of which is specially provided for in the granting act ; yet the patent in most cases adds nothing to the force of the grant, but is merely confirmatory of what has preceded. If a claim be made to land with defined boundaries, the legislative confirmation perfects the title to the particular tract, and a subsequent patent is only doc- umentary evidence of that title. If the claim be to quan- tity, and not to a specific tract capable of identification, a segregation by survey will be required, and the confirmation will then immediately attach the title to the land segregated.' Analogous to the rule which obtains in case of patents, where there are two confirmations or grants of the same land the elder must prevail and will give the better title. The gov- ernment, like an individual, has no power to withdraw or SRuigo V. Eotau, 29 Ark. 56; Keller v. Brickley,78 111. 133; Rail- road Co. V. Brown, 40 Iowa, 333; Daniel v. Purvis, 50 Miss. 261. ^Langdeau v. Hanes, 21 Wall. (U. S.) 521; Swann v. Lindsey, 70 iMayo V. Libby, 13 Mass. 339 Eyan v. Carter, 93 U. S. 7S. 2Ballanoe v. Tesson, 12 111. 337 Grignon's Lessee v. Astor, 3 How. 819. 3 Thompson v. Prince, 67 111. 281 Railroad Co. v. Ragsdale, 54 2Sinapson v. Pearson, 31 Ind. 1; Miss. 200; Kelly v. Hendricks, 57 TITLE TO KEAL PEOPEETY. 105 The doctrine of estoppel does not ordinarily apply to the state as it does to individuals. The sovereign powder is but a trustee for the people. It acts by its agents, and the peo- ple should not be bound by any statement of facts made by those agents. For their benefit the truth may always be shown, notwithstanding any former statement to the con- trary .^ This principle rests, in part at least, upon the gen- eral doctrine that the state cannot part with its title to land except by grant or other record evidence. An apparent ex- ception has been said to arise in those cases in which the act sought to be made binding was done in its sovereign capac- ity by legislative enactment or resolution; but this is not so much an exception to the general doctrine of estoppel by acquiescence in an authorized act of a mere subordinate agent, as it is an original binding affirmative act on the part of the state itself, made in the most solemn manner in which it can give expression to the sovereign will. Prescription. — By the law of nature, observes an old writer,^ occupancy not only gave a right to the temporary use of the soil, but also a permanent property in the sub- stance of the earth itself, and to everything annexed to or issuing out of it. Hence, possession was the first act from Avhich the right of property was derived ; it has therefore be- come an established rule of law, in every civilized country, that a long and continued possession will confer title to real property. This mode of acquisition is known as prescrip- tion. Yet, like the subject considered in the preceding para- graph, prescription is not, in the proper sense of the term, an acquisition, but rather a recognition of title, and is founded upon the presumption that the party in possession of lands would not have been permitted by other claimants to hold and enjoy same without a just and paramount right. Ala. 193; Hayes v. Livingston, 34 Johnson v. United States, 5 Mason Mich. 384. (Cir. Ct.), 425. 1 Fannin Co. v. Riddle, 51 Tex. 2 Cruise, Dig., tit. XXXI, § 1. 360; Farish v. Coon, 40 Cal. 50; 106 LAW OF EEAL PBOPEKTT. Presumptions of this nature are adopted from the general infirmity of human nature, the difficulty of preserving muni- ments of title, and the public policy of supporting long and uninterrupted possessions. They are founded upon the con- sideration that the facts are such as could not occur, accord- ing to the ordinary course of human affairs, unless there was a transmutation of title to, or an admission of an exist- ing adverse title in, the party in possession.^ Prescription, in the original and ancient meaning of the word, rests upon the supposition of a grant, and the use or possession on which such title is founded must be of such a nature as to indicate that it is claimed as of right, and not the effect of indulgence, or of any compact short of a grant. Such use and possession must further have continued for a time "whereof the memory of man runneth not to the con- trary." "^ The period of legal memory or prescription does not, at common law, extend farther back than sixty years, while forty years is usually a sufficient length of time to establish a prescriptive title ; but in the United States it is the pohcy of courts to limit the presumption of grants to periods analo- gous to those of the statute of limitations, in cases where the statute itself does not apply.' In its early and technical signification, prescription applied only to incorporeal hereditaments, or such property as lies in grant ; but as all kinds of property now lie in grant, the distinction, under the land system of the United States, is practically of little or no force or effect. Nor is the rule of immemorial usage now much resorted to, except in connec- tion with statutes limiting the time for entry upon land. Limitation. — Closely resembling the general features and partaking of the same nature as prescription is that form iGayettyy.Betihune,14Mas3.49; 'Hunt v. Hunt, 3 Met. (Mass.) Ingraham v. Hutchinson, 2 Conn. 175; Watkins v. Peck, 13 N. H. 360; 584; Emans v. TurnbuU, 2 Johns. Shum way v. Simons, lVt53; Oke- (N. Y.) 332. son v. Patterson, 29 Pa. St 22. 2 See Coolidge v. Learned, 8 Pick. Corp., § 141 ; 3 Black. Com. 109. for a discussion of this subject. 2 Agricultural Society v. Pad- 'Doe v. Robertson, 11 Wheat. .4ock, 80 111. 363. (IT. S.) 333; Montgomery v. Dorion, 3 Ang. & Ames on Corp., § 193. 7 N. H. 475; Smith v. Zaner, 4 Ala. 4 Brooke v. Filer, 53 Ind. 403; 99. Ksher V. Kurtz, 9 Kan. 501. 8 Fox v. Southack, 12 Mass. 143; 5 Dillon V. United States, 5 Ct. of Guyer v. Smith, 22 Md. 239. ' Young V. Stevens, 48 N. H. 133; 147. Cain V. Warford, 38 Md. 23. * English v. Porter, 109 111. 385. 2 Burgess v. Pollock, 53 Iowa, ^Wray y_ Wray, 33 Ind. 126; 273. Cadwallader v. West, 48 Mo. 483. 3Lindsey V. Lindsey, 50 111. 79; 6 Oliver v. Berry, 53 Me. 206; OONVBTANCE OF EEAL PHOPEETT. 141 Drunkards. — Intoxication does not of itself render a con- tract void or relieve the contracting parties from its conse- -quences.^ "Were it otherwise, drunkenness, it is said, would ^be the cloak of fraud. Yet, under certain circumstances, a transaction may be avoided for this reason. To avoid responsibility, however, on the ground of intoxi- •cation, the proof of mental incapacity must be very clear .and convincing ; ^ for a drunkard is not incompetent in the same sense as an idiot or one generally insane ; ' and the proof must show that at the time of the act in question his under- rstanding was clouded or his reason dethroned by actual in- toxication.* When a man has been found an habitual drunkard by a legal inquisition, and his property placed in the hands of a conservator or committee, ail business relating to the drunk- ard's estate must be transacted with such conservator or committee until the proceeding has been annulled or set -aside.^ The fact that the drunkard has sober intervals in no way alters the case, and during such intervals he has no more .authority to deal with or dispose of his property than while he is in a state of intoxication ; nor will the further fact that the other contracting party acted in good faith and with no ^actual notice of the inquisition confer upon him any addi- tional rights or furnish ground for equitable relief.^ (d) Fiduciaries. Generally considered. — A very large proportion of the -sales of real estate in the United States are made through the media of fiduciaries and trustees. Such fiduciaries in- •clude not only trustees proper, but all who act under a Brower v. Fisher, 4 Johns. Ch. < Gardner v. Gardner, 33 Wend. (N. Y.) 441. (N. Y.) 536; Johns v. Fritchey, 39 1 Bates V. Ball, 73 IlL 108; Joest Md. 358. V. Williams, 43 Ind. 565; Broad- « Redden v. Baker, 86 Ind. 195. -water v. Dame, 10 Mo. 377. « Wadsworth v. Sharpsteen, 8 N. 2 Bates V. Ball, 78 111. 108. Y. 388. 3 Van Wyck v. Brasher, 81 N. Y. ^60. 142 LAW OF EEAL PEOPEETT. power, as mortgagees, executors, guardians, etc.; and the- same general principles are equally applicable to all of the different classes and relations. Fiduciaries and trustees, if they exceed and violate their authority, are responsible, though no bad faith prompted their acts; and those who deal with them on the faith of the trust estate must be aware that they exercise only limited and delegated powers, and are bound, at their peril, to tak& notice of such powers and see to it that they confine them- selves within their scope.^ Trustees. — A trustee is one in whom some estate, interest or power in or affecting property of any description is vested for the benefit of another. Though the name is technically applied to a particular class, it also, to a certain extent, com- prises executors, administrators, guardians, assignees, etc. A trustee cannot profit by his trust estate, nor become a purchaser at any sale thereof by him,^ while the power under which he acts must in all oases be strictly pursued to render his act valid.' A joint power of sale must be executed by all, provided all are living and in condition to act,* unless- the instrument creating the trust provides otherwise;^ for the interest held by several trustees is an entirety, and can only pass as a whole ; hence, all the trustees living, having an interest in the property, must join in the conveyance, otherwise it wiU be wholly inoperative.' But in case of the death of one or more of the trustees, the survivor or surviv- ors will hold the trusts and may execute the powers.' A deed by the survivors, representing the entire title, will be lOwen V. Eeed, 27 Ark. 123; SHuntt v. Townshend, 31 Md. Ventres v. Cobb, 105 111. 33. 336. ^Terwelliger v. Brown, 44 N. Y. ^Learned v. "Welton, 40 Cal. 349. 237. This is the universally ac- 5 Gould v. Mather, 104 Mass. 383. oepted doctrine, but is subject to "Golder v. Brewster, 105 111. 419^ some qualifications, the law not ex- Brennan v. "Wilson, 71 N. Y. 503. acting the same rigid degree of ' Lane v. Debenham, 11 Hare, 188. strictness in all the states. Clark v. Clark, 65 N. C. 655. CONVEYANCE OF BBAL PEOPEETT. 14S good, even though they are authorized to fill the vacancy^ as it is only where the terms of the power ci-eating the trust imperatively require the vacancy to be filled that the acts of the survivors will be invalid.' "Where the legal title of a trustee is created by the owner of the property, the right of the trustee to enforce it will be recognized everywhere ; but where such title is derived solely from some act of the law, the effect of that act is confined to the territorial jurisdiction over which the law extends.^ Upon the death of a sole trustee, the legal estate devolves upon his heir at law ; and the heir takes the same estate, and is subject to exactly the same duties and responsibilities, as his ancestor.' Being founded on personal confidence, it necessarily re- sults that a trustee cannot delegate his trust to others,* and is himself responsible for the acts of all his subordinates in whatever character they may act." JExecutors and administrators. — The real estate of de- ceased persons is frequently conveyed through the media of what are known as "personal representatives," consisting of executors, or persons specifically designated for that pur- pose by the decedent, and administrators, who act by virtue of an appointment under the law.^ In both cases they stand 1 Golder v. Brewster, 105 111. 419. < Grover v. Hale, 107 111. 638. But 2 Curtis V. Smith, 6 Blackf. (Ind.) where the trustee conveys the legal 537. title to one having knowledge of ' Watkins v. Specht, 7 Coldw. the trust, or where such other per- (Tenn.) 585; McMuUen v. Lank, 4 son in any manner acquires the Houst. (Del.) 648. By force of the legal estate with such knowledge, statute the trust sometimes vests he holds the property subject to in some tribunal in the county in the trust, and may be compelled, which the real estate is situated, in equity, to execute it. Ryan v, which, upon the application of Doyle,31Iowa, 53; Smithv.Walser, some person interested in the trust, 49 Mo. 350. forthwith appoints a successor to sjioorecroft v. Dowding, 3 P. the deceased trustee, whereupon Wms. (Eng. Ch.) 314. the trust vests in the ne wly-ap- ^ " Legal " or " personal " repre^ pointed trustee. Collier v. Blake, 14 sentative, in the commonly ac- Kan. 250. cepted sense, means administrator IM LAW OF EEAL PEOPEETY. itt the position of trustees of tliose interested in the estates upon which they administer. An executor may sell and •convey lands held in special trust without the intervention of a court, but not such lands as are sold in due course of .administration to pay decedent's debts; while an adminis- trator can do no act affecting lands without special orders -of a court. In case of sales by either oiEcer, no title passes until the execution and delivery of a deed,' and without such title as the deed conveys the purchaser cannot maintain or •defend ejectment against or by the heir.^ Guardians. — The law permits conveyances by guardians, conservators, committees, etc., of the real estate of their wards whenever the sale of such property may be necessary or expedient for the payment of debts, the support of the ward, an investment of the proceeds, or other similar con- -ditions. Such property can only be sold, however, under the order of a court of competent jurisdiction, and a confir- mation after sale is necessary to give it validity.' A convey- ance by the guardian in any other manner is unauthorized; and where one purchases the real estate of a ward from a guardian, directed by order of court to sell it, notwithstand- ing he takes a deed from such guardian, if the sale is never reported to or confirmed by the court he cannot maintain his title against a subsequent conveyance by the ward after the termination of his wardship.* Legal officials. — The conveyances of sheriffs, commission- ers, masters in chancery, etc., are executed in a ministerial capacity, but for practical purposes they may be regarded as one class of fiduciaries, and to them the same general rules apply as govern other fiduciary relations. or executor. But this Is not the 2 Doe v. Hardy, 53 Ala. 391; Grid- only definition. It may mean heirs, ley v. Phillips, 5 Kan. 349. next of kin, or descendants. War- 3 People v. Circuit Judge, 19 Mich, necke v. Lembea, 71 IlL 91. ' 396; White v. Clawson, 79 Mich. 1 A properly conducted sale, after 188 ; Chapin v. Curtenius, 15 HL ^7. ■confirmation vests the equitable ^Titman v. Riker, 10 Atl. Bep. title in the purchaser. 397, CONYETANOE OF REAL PEOPEETY. 145 3. The Consideration. Generally considered. — The motive or inducement for a conveyance is termed a consideration. This may be either good or valuable; the former may consist of anything of merit, as the love and affection which a man bears to his kindred ; ^ the latter consists of money or its equivalent — something that possesses a known value ^ or is capable of pecuniary measurement.' The consideration may be express, as where the motive or inducement of the parties to the deed is distinctly declared, or implied, as in cases where the law presumes an adequate compensation.* "Where the deed is made without consideration it is said to be voluntary. Effect of consideration. — No consideration was required in conveyances under the common law, the homage and fealty incident to the same being deemed suificient, but became nec- essary under the statute of uses.' As a general proposition, any valuable consideration, acknowledged or proved, is suf- ficient to sustain a conveyance of lands ; " and the acknowl- 1 Story, Eq. Jur., § 354; Cruise, v. Fuller, 46 Me. 141; Graves v. Dig., title 33, ch. II. Graves, 29 N. H. 129. Thus in ^Cruise, Dig., title 32, ch. II; Kit- Plowden it is said, arguendo, that tridge v. Chapman, 36 la. 348; by the law of England there were Haughwout V. Murphy, 21 N. J. two ways of making contracts for Eq. 118; Savage v. Hazard, 11 Neb. lands or chattels; the one by words, 337; Wood v. Beach, 7 Vt. 523. the other by writing; and because 3 Brown v. Welch, 18 111. 343; words were often spoken unadvis- Palmer v. Williams, 34 Mich. 828; edly and without deliberation, the Busey v. Reese, 38 Md. 264. law had provided that a contract 1 Cruise, Dig., title 33, ch. 11. by words should not bind without 'At the present time the only consideration. But when the agree- practical operation of the expres- ment was by deed, there was more sion of a consideration, or the time for deliberation; for which introduction of a clause recit- reason deeds were received as a ing a consideration, is to prevent lien final to the party, and were a resulting trust to the grantor adjudged to bind him, without ex- and estop him from denying the amining upon what cause or con- making and effect of it for the sideration they were made. Plowd. uses therein declared. Meeker v. 308. Meeker, 16 Conn. 383; Goodspeed « Jackson v. Leek, 19 Wend. 339. 10 14:6 LAW OF EEAL PKOPEETT. edgment in the deed of payment of same is so far conclu- sive of the fact as to give effect to the conveyance.^ A deed executed by the party in whom title is vested, and express- ing a valuable consideration, never needs, as against him or those claiming under him, or as against a stranger, to be supported by showing what other reason, in addition to the will of the party, led to its execution.^ ISTor is it essential to the validity of a conveyance that the consideration should be expressed,' and a deed, if properly drawn, wiU pass the title, whatever it may be, without reference to the consider- ation paid.* Ordinarily, where parties contract by deed a consider- ation will be implied from the seal,^ which as a rule imports consideration ; ^ and it has. been held that an instrument in form a conveyance and duly signed, whether under seal or not, imports a consideration; ^ while a voluntary conveyance, without any consideration, either good or valuable, is valid and binding between the parties and their privies.^ As against the grantor and those in privity with him, the acknowledgment in the deed of payment is his receipt or ad- mission, which on proof of the deed will be considered as proved.' Such acknowledgment, however, is not conclusive, being merely by way of recital ; ^^ and though it SbWords prima facie evidence of the fact, yet for the purpose of recovering lOohUtree v. MoClurg, 7 W. Va. ^Hunt v. Johnson, 19 N, Y. 279; 233. Croft V. Bunster, 9 Wis. 503; Bush ^ RookweU V. Brown, 54 N. Y. 310; v. Stevens, 34 Wend. (K Y.) 256. Merrill v. Burbank, 33 Me. 538. ^ Ruth v. King, 9 Kan. 17. This 3 Jackson v. Dillon, 3 Overt, in the absence of statutory require- (Tenn.) 261 ; Wood v. Beach, 7 Vt. ments to the contrary. 533; Boynton v. Rees, 8 Pick. SFouby v. Fouby, 34 Ind. 433; (Mass.) 339. Wallace v. Harris, 32 Mich. 380; ^Fetrow V. Merri weather. 58 IlL Laberee v. Carleton, 53 Me. 311. 378; Laberee v. Carleton, 53 Me. 'Bayliss v. Williams, 6 Coldw. 311. (Tenn.) 440. SRoss V. Sadgbeer, 31 Wend. 166; "Huebsch v. Scheel, 81 111.281; Evans v. Edwards, 36 111. 279; Parker v. Foy, 43 Miss. 260; Webb Croker v. Gilbert, 9 Cush. (Mass.) v. Peele, 7 Pick. 247. 130. OONVETANCE OF EEAL PEOPEETT. 147 the consideration, the grantor may still show that it was never, in fact, paid,' but not to invalidate or defeat the operation of the deed.^ As against the creditors of the grantor such recital is but hearsay, and no evidence of the fact of payment ; ' but no one except a creditor can avail himself of the objection that the deed was given without consideration.'' Whenever a deed is assailed by one who claims a right or interest in the property conveyed, adverse to the grantee, it must, to insure validity, be supported by an adequate con- sideration. "Good" considerations, although meritorious, are not usually permitted to be effective in such cases ; and, as a rule, to maintain a deed against the attack of creditors, owners of prior equities, etc., it must be founded upon some consideration which the laws deems valuable, and which is in some fair measure commensurate with the value of the land.* 4. The Subject-matter. Generally considered. — By the ancient rules of convey- ancing the first "circumstance"* to a valid deed is that there be persons able to contract and be contracted with, for the purposes of the deed, and a thing or subject-matter to be contracted for ; in modern times this rule is paraphrased to read : that to every valid grant there must be a grantor, a grantee, and a thing granted. The parties to a conveyance have already been noticed, and it remains now to briefly consider the subject-matter or the main ingredient of every deed. 1 Barter v. Greenleaf, 65 Me. 405; Mass. 99; Houston v. Blackman, 66 Paige V. Sherman, 6 Gray (Mass.), Ala. 559. 511; Grout v. Townsend, 3 Hill ^ Hatch v. Bates, 54 Me. 136. (N. Y.), 554. 6 See Smith v. Allen, 5 Allen 2Bassett v. Bassett, 55 Me. 137; (Mass.), 454; Hutchinson v. Hutoh- Newell V. Newell, 14 Can. 206; inson, 46 Me. 154; Doe v. Horn, 1 Richardson v. Clow, 8 111. App. 91. Ind. 393; Ruth v. Ford, 9 Kan. 17. 3 Redfield Mfg. Co. v. Dysart, 63 6 See Cruise, Dig., tit. 33, ch. 11 Pa. St. 63; Rose v. Taunton, 119 i*i8 LAW OF EEAL PEOPEKTY. While it is customary, and not altogether improper, to speak of the land as the subject of the conveyance, yet in strict legal contemplation it is the grantor's rights and in- terests therein, as comprehended in the generic term " estate," that is actually transferred. But as such rights and inter- ests carry with them a dominion over the soil to which they relate, we may properly regard the subject-matter of a con- veyance in a twofold aspect, and in this article the same will be considered (a) with respect to the land conveyed, and (b) with respect to the estate conveyed. (a) The Land Conveyed. General principles. — Reference has been made in a former chapter to the parceling or dividing of lands, whereby the definite bounds of ownership may be fixed and established. The parcel, as previously explained, is determined by run- ning lines in conformity with legal rules, and the contents of the area bounded by these lines forms the subject of the conveyance. The enumeration of the courses and distances used in the measurement of the tract is called the descrip- tion. The object of a description, in a deed, is to define what the parties respectively intend, the one to convey and the other to receive, by such deed ; and tBis intention is to be deduced from the instrument, as in the case of any other contract.^ Every deed of conveyance, in order to transfer title, must, either in tei-ms or by reference or other designation, give such description of the subject-matter intended to be con- veyed as will be sufficient to identify the same with reason- able certainty.^ It is not essential, however, that the deed should on its face ascertain the limits or quantity of the es- tate granted or the particular property conveyed ; but it will be sufficient if it refers to certain known objects or things, and provides definite means by which the same may iLong V.Wagoner, 47 Mo. 178; Berry v. Derwart, 11 Reporter, 195; Kimball v. Semple, 25 Cal. 440. Long v. Wagoner, 47 Mo. 178. 2 Whitaker v. Miller, 83 111. 381; CONVEYANCE OF REAL PROPERTY. 149 be readily ascertained and known ; ^ and where words of gen- eral description only are used, oral evidence may be resorted to for the purpose of ascertaining the particular subject- matter to which they apply.^ Any description adopted by which the identity of the premises intended to be conveyed is established will be suffi- cient,' and a description not sufficiently certain in itself may be made so by reference to other deeds in which it is suffi- cient.* In the absence of references or other identifying circumstances, if the land be so inaccurately described as to render its identity wholly uncertain, the grant is void ; ^ and the same rule applies with equal force to exceptions or res- ervations from the grant, which, though the grant may pre- vail, the exceptions may be void for uncertainty.^ Bules of construction. — The location of land, as gathered from the description, is governed (1) by natural objects or boundaries, such as rivers, lakes, mountains, etc. ; (2) by ar- tificial devices, such as marked trees, stakes, stones, etc., and (3) by course and distance. It is a general rule of construction that, in the description of land, the least'certain and material parts must give way to the more certain and material. Quantity is never allowed to control courses and distances,' and courses and distances must yield to fixed monuments and natural objects also re^ ferred to therein.' But where the monuments, if once ex- isting, are gone, and the place where they originally stood cannot be ascertained, the courses and distances when ex- 1 Coats V. Taft, 13 Wis. 388; Campbell v. Johnson, 44 Mo. 247; Dwight V. Packard, 49 Mioh. 614. Dickins v. Barnes, 79 N. C. 490. 2 Coleman v. Improvement Co., « Thayer v. Torry, 37 N. J. L. 839. 94N. Y. 229. 'Bishop v. Morgan, 83 III. 352; 'Smith V. Crawford, 81 IlL 296; Saunders v. Schmaelzle, 49 Cal. 59. Allen V. Bates, 6 Pick. (Mass.) 460. 'Dupont v. Davis, 30 Wis. 170; < Russell V. Brown, 41 111. 184; Sanders v. Eldridge, 46 Iowa, 34; Credle v. Hays, 88 N. 0. 331. Cunningham v. Curtis, 57 N. H. 157. s Calcord v. Alexander, 67 111. 581 ; 150 LAW OF BEAL PEOPEKTY. ' plicit must govern ;> and where the boundaries are doubtful, quantity often becomes a controlling consideration.^ Nor will the rule that monuments, natural or artificial, rather than courses and distances, control in the construction of a conveyance be enforced when the instrument would therebj^ be defeated, and when the rejection of a call for a monument would reconcile other parts of the description and leave enough to identify the land.' "Where a deed calls for a nat- ural object and the line gives out before reaching it, the line must be extended to the natural object, and the distance dis- regarded;^ but where no monuments are referred to, and none are intended to be afterward designated, the distance stated in the grant must govern the location.' An erroneous description of land by numbers will not control other de- scriptive particulars which indicate the land with certainty.* "Where, as is often the case, the conveyancer, from an over- anxiety to identify the property, makes two descriptions, the one, as it were, superadded to the other, one description being complete and sufficient in itself, the other incorrect, the incorrect description, or feature, or circumstance, may be rejected as surplusage, and the complete and correct de- scription allowed to stand alone.'' It must be remembered, however, that, notwithstanding the utmost liberality is allowed in the construction of de- scriptions, so as, if possible, to effectuate the intention of the parties, nothing passes by a deed except what is described in it, whatever the intention of the parties may have been, and extrinsic evidence is inadmissible to make the deed op- erate upon land not embraced in the descriptive words.' 1 Drew T. Smith, 46 N. Y. 204; 6 Bradshaw v. Bradbury, 64 Mo. Clark V. Wethy, 19 Wend. 320. 334; Montgomery v. Johnson, 31 2 Winans v. Cheny, 55 Cal. 567. Ark. 62. 'White V. Luning, 93 U. S. (3 'Kruse v. Wilson, 79 111. 233; Otto), 515. Meyrs v. Ladd, 26 111. 415; Wade v. ■•Strickland v. Draughan, 88 N. Deray, 50 Cal. 376; Credle v. Hays, C. 315. 88 N. C. 321. SNegbauer v. Smith, 44 N. J. L. 8 Coleman v. Improvement Co., 73. 94 N. Y. 239. CONVEYANCE OF EEAL PKOPEETY. 151 Boundary lines — Highways. — It is a general rule that a grant of land bounded by a street or highway, whether the same b6 public or private, carries the rights of ownership to the middle of the way; and such is the established pre- sumption governing the construction of deeds, in the absence of controlling words.^ Nor does it seem essential, in order to carry a grant to the center of a highway, that the land should even be described as abutting or bounding thereon ; and whenever land is sold bordering on a highway, the mere fact that it is not so described in the deed will not vary the construction. The grantee will still take the fee to the middle of the highway on the line of which the land is situated.^ It has been stated, as a reason for the rule, that the ad- joining proprietors are presumed to have originally furnished the land in equal proportions for the sole purpose of a high- way ; ' and hence in a grant of the adjacent land the soil to the center of the highway passes as a part of the land and not as an appurtenant.'' Ordinarily the ownership of the soil of the street or road is of no practical use to the grant- ors of the adjacent property ; and usually there is no pur- pose to be served in the retention by them of narrow strips or gores of land between the land conveyed and that of other proprietors, while for many purposes such ownership is of special importance to the purchaser.^ It is presumed, therefore, that the grantor's land in a street passes under the general description in his deed of the adjoining land with which it is connected or to which it belongs as a part of the same tract, subject to the public easement.* iNewhall v. Ireson, 8 Cush. N. Y. 251; Taylor v. Armstrong, 24 Chapin v. Harris, 8 AUeck 256. (Mass.), 594. CONVEYANCE OF EEAL PEOPEETT. 173 if a condition is plainly manifest it must prevail, yet, if it be doubtful whether a clause imports a covenant or a con- dition, or if the language employed is not in form either a covenant or condition, the effect accorded will be that of a covenant and not a condition.' Operation and effect. — A covenant, condition or stipula- tion inserted in a deed delivered to and accepted by the grantee will bind him to a due observance of the covenant or performance of the condition whenever same directly re- lates to the land embraced in the conveyance,^ or is con- nected with such lands and those immediately adjoining.' The grantor may impose a restriction, in the nature of a servitude, upon the land which he sells for the benefit of the land, which he retains ; and, if that servitude is imposed on the heirs and assigns of the grantee and in favor of the heirs ' and assigns of the grantor, it will be binding upon and may be enforced against any subsequent purchaser of the prop- erty with notice.* So, also, the grantor may impose a servitude or condition upon the land which he retains and in favor of the laud he sells, but the principle is the same; and when an owner sub- jects his lands to any servitude and transmits them to others ■charged with the same, any one taking title to such lands, with notice of the conditions or restrictions affecting their use or the method of their enjoyment, takes subject to the burdens thus imposed, and, as standing in the place of his grantor, is bound to do or forbear from doing whatever his grantor should do or should not do.^ 1 See Gallagher v. Herbert, 117 ^ Burbank v. Pillsbury, 48 N. H. 111. 160; Hoyt v. Kimball, 49 N. H, 322; Thornton v. Trammell, 39 Ga. 202. 2 Kimpton v. Walker, 9 Vt. 191 Clark V. Martin, 49 Pa. St. 289 Stines v. Dorman, 35 Ohio St. 580, 475; Bronson y. Coffin, 108 Mass. 175; Hazlett v. Sinclair, 76 Ind. 488. ^Whitney v. Eaitroad Co., 11 Gray (Mass.), 359; Clark v. Martin, 49 Pa. St. 289. s Trustees v. Lynch, 70 N. Y. 440. 174 LAW OF REAL PEOPEETT. Conditions in restraint of alienation. — By the iron rule of the feudal laAv the graatee of a feud possessed no power of alienation, and upon his death the land reverted to his superior lord. This rigorous rule in time became modified so as to permit an inheritance by the grantee's heirs, but with the right of reversion on the extinction of his blood ; and as there always remained in the grantor a possibility of a reverter, this was considered such an interest in the land as entitled him to restrict the power of alienation. And so the law remained until the enactment of what is known as the statute quia enipiores} This cut off the possibility of reverter by giving to every freeman the right to sell his lands at his own pleasure, so that his feoffee should hold them of the chief lord by the same service and customs as the feoffor held them before. The possibility of reverter having thus been destroyed, the grantor's interest in the land ceased aad he was no longer able to prohibit the right of alienation. Since the enactment of the statute quia empiores, there- fore, no conditions or restrictions in a conveyance of the fee which prohibit the alienation of land have been allowed to have any effect, and, being repugnant to the estate granted,, are considered void upon that ground alone.^ This principle is well established iu the jurisprudence of every American state, and has on several occasions been re-affirmed by the supreme court of the United States. It has frequently been held, particularly where the deed is one of gift, that a partial restraint — that is, a restraint against alienation for a limited time, or to certain persons — may be permitted,^ though upon this point the authorities 1 Enacted in 1390, 18 Edw. I., ch. 1. Pa. St. 370 ; Bank v. Davis, 21 Pick. 2 For a very elaborate and ex- (Mass.) 43; McCleary v. Ellis, 54 la. haustive discussion of this ques- 311. tion, see Mandlebaum v. McDon- ' Crowell v. Springs Co., 100 U. S. nell, 29 Mich. 78. The same subject 55: Hunt v. Wright, 47 N. H. 396; is very fully considered in De Pcys- Langdon v. Ingram's Guardian, 28 ter V. Michael, 6 N. Y. 4G7. See, Ind. 840. also, McCuUough v. Gilmore, 11 CONYEYANCB OF EEAL PEOPEETT. 175- are not agreed, some cases strenuously insisting that th& power of disposal cannot be arrested for a single day.' Y. Signing. Generally considered. — While all of the different acts of execution are to a greater or less extent necessary to the validity of a deed, yet it derives its main efficacy from the signature ; for an unsigned instrument, though duly attested,, acknowledged and delivered, is a nullity.- By the old rules of the common law a signature was not considered necessary to the validity of a deed, the seal being- sufficient to show assent and prove execution. This Avas doubtless occasioned by reason of the very general inability of the mass of the people to read and write,^ and the impor- tance which wa.s formerly attached to seals as the signets of their owner. It would seem, however, that under the Saxon rule signing was in general use provided the parties wer& able to write, and whether they could write or not it Avas customary to affix the sign of the cross ; but on the ISTorman conquest waxen seals, usually with some specific device, werer introduced and took the place of the Saxon method of writ- ing the name and making the sign of the cross. By the statute of 29 Charles II., for the prevention of frauds and perjuries, all transfers of land were required to- be put in -writing and signed by the parties making same, and this statute is the foundation of the American laws upon the same topic* Method of signing. — While the law is strenuous in its de- mand that the deed of a grantor must be attested by his- 1 Mandlebaum v. McDonnell, 29 * In Blackstone's time, signing Mich. 78; Oxley v. Lane, 35 N. Y. does not appear to have been es- 347; Anderson v. Gary, 36 Ohio St. sential to validity, although he 506. says (1 Com. 305), " It is said to be- 2 Goodman v. Randall, 44 Conn, requisite that the party whose 835; Jones v. Gurlie, 61 Miss. 423. deed it is should seal, and now in ' See 1 Reeves' Hist. Eng. Law, most cases, I apprehend, should 184 sign it also." 1T6 LAW OF EEAL PEOPEETY. signature, it is equally lenient as to the method by which such signature shall be appended. Thus, the deed may be signed by the grantor himself or by some other person act- ing for him. In the latter event, the person assuming to act must, of course, have a proper authorization so to do; and this authority, usually called a power of attorney, must be of a character equal in dignity to the instrument to which the principal's name is appended. In case of a deed, being an instrument under seal, the authorization must itself be under seal.^ To the rule last stated an important exception has been made in many states, by which, if the name of the grantor is affixed by some other person, at his request and in his presence, such sigaing is made as effectual for all intents and purposes as though it had been the grantor's personal act.^ A still further exception has been made in some states, where a signature, though subscribed by another hand and in the absence of the grantor, is nevertheless subsequently recog- nized by him and adopted as his own.' As the true meaning of a signature is to evidence the dis- posing purpose of the grantor, it follows that any act of his plainly evincing intention will be binding upon him ; and while his name, appended by his own hand, is the highest and best evidence of such intention, yet any other unequivo- cal act done or directed by him may be equally effective. Hence it is that a person physically unable, or too illiterate, to write his name may sign by any ai'bitrary symbol — a cross, a crooked line, or any other device intended by him as a sign-manual; and the adoption of such mark or device, if the deed is in other respects regular, will be as effective to transfer the estate as if his name had been written thereon in full by himself.* IFire Ins. Co. v. Doll, 35 Md. 89; 65; Jansen v. Cahill, 23 Cal. 568; Watson V. Sherman, 84 111. 263; Conlan v. Grace, 86 Minn. 376. Videau v. Griffin, 31 Cal. 889. s Greenfield Bank v. Crafts, 4 2 Gardner v. Gardner, 5 Cush. Allen (Mass.), 447. 218. Davis, 69 Ind. 589. 3 Johnson v. Stagg, 2 Johns. 510 ; * Simmons v. Fuller, 17 Minn. 485 ; Rice V. Dewey, 54 Barb. (N.Y.) 455; Gal way v. Malchou, 5 Neb. 285; Hickman v.Perrin, 6 Cold w.(Tenn.) White v. McGarry, 2 Flip. (C. Ct.) 135; Shannon v. Hall, 72 111. 354; 573. Van Aken v. Gleason, 34 Mich. 477. ODigque v. Wright, 49 Iowa, 538; ■• Beekman V. Frost, 18 Johns. 544; Gal way v. Malchou, 5 Neb. 285; North V. Belden, 13 Conn. 376. Even Herman v. Deming, 44 Conn. 124. though there has been a mistake 'Soheld where the record merely- in recording. Bullock v. Batten- stated that the grantor had on the- F0EM8 OF CONVBTANOE. 255- As between two mortgages, the first recorded is the prior lien ; ^ and where a mortgage and conveyance of the same property are made at the same time, the mortgage, if re- corded first, will take precedence of the deed.^ The rights of the mortgagee are fixed when he places his mortgage on record, and the subsequent destruction of the record will not, it seems, extinguish or destroy the notice afforded by registration, nor injuriously affect the rights of the mortgar gee;' while as between the original parties,* and their heirs,^ the mortgage wiU still be valid and effective although un- recorded. Power of sale. — The policy of recent years has been to- restrain the execution of powers of sale and to compel the mortgagee to foreclose his lien in chancery. Where this rule now prevails, the following paragraph will have no ap- plication. The power of sale contained in a deed of trust or mort- gage must be strictly pursued,' and the utmost fairness must be observed in its execution; but such strictness and literal compliance should not be exacted as would destroy the power.' When permitted by statute, the sale of a mortgaged es- tate, being made in pursuance of a valid power given by the- owner, vests in the purchaser an estate in fee, free from the same date as the mortgage made * Cavanaugh v. Peterson, 47 Tex. his promissory note, payable, etc., 197. without giving the amount. Bui- * McLaughlin v. Ihmsen, 85 Pa. look V. Battenhousen, 108 111. 28; St. 364. Hart V. Chalker, 14 Conn. 77. But « Cranston v. Crane, 97 Mass. 459, see North v.Knowlton, 23 Fed. Rep. 'Waller v. Arnold, 71 111. 350. 163, where ere semb^e a contrary doc- Parties to mortgage may, by stip- trine is indicated. ulation, rfegulate the terms of a 1 Ripley v. Harris, 3 Biss. 199; power of sale of the premises by Odd Fellows Sav. Bank v. Banton, the mortgagee ; and the courts will 46 Cal. 603; Van Aken v. Gleason, not interfere to control the right, 34 Mich. 477. in the absence of fraud, or of some 2 0gden V. Walkers, 12 Kan. 282. statutory regulations on the sub- 3 Shannon v. Hall, 72111. 354. ject. Elliott v. Wood, 45 N. Y. 71, 356 LAW OF EEAL PEOPSETT. original condition and from any right of redemption ; ^ and the power, being coupled with an interest, is irrevocable, and hence may be exercised even after the death of the mortgagee.- Though one who undertakes to execute a power is bound to a strict compliance, as well as the observance of good faith,' and a suitable regard for his principal, yet a derelic- tion in this respect will not usually affect a purchaser in good faith, who being a stranger to the proceedings, and finding them all correct in form, takes the property ; * yet as the payment of the debt secured by the trust deed or mort- gage defeats the power of sale, a purchaser at a sale made under such power must see to it that the grantor in the deed or mortgage is in default, and that some part of the and the administrator from the law only,^ he yet possesses all necessary power to sell property, negotiate securities, and to settle and pay debts,' but under the order and direction of the court. He takes neither an estate, title or interest in the lands of his intestate,* but a mere naked power to sell for specific purposes.^ He takes the land as he finds it,^ and, having no interest therein, can maintain no action to perfect the title or relieve it of any burden,' and must sell it as he finds it.* An administrator's deed derives its primary validity from the order of the court directing the sale of the land in ques- tion. The power to sell is a personal trust which cannot be delegated,' and, the sale being a fiduciary act based upon statute, must show affirmatively a strict compliance with the law." iWingate v. Pool, 25 III 118; sgmith v. McConnel, 17 HI. 135; State V. Meagher, 44 Mo. 356. Floyd v. Herring, 64 N. C. 409. 2Gilkey v. Hamilton, 23 Mich. « Grid) ey v. Watson, 53 IlL 186. 283. 1 Le Moyne v. Quimby, 70 IlL 399 ; 'Walker v. Craig, 18 111. 116. Eyan v. Duncan, 88 111. 146. Real estate cannot be sold by an ^ Martin v. Beasley, 49 Ind. 280. administrator unless the personal " Chambers v. Jones, 72 111. 375; estate is insufiScient to pay the lia- Gridley v. Philips, 5 Kan. 349. bilities; and ordinarily, only so "Fell v. Young, 63 111. 106; Lock- much should be sold as is neces- wood v. Sturdevant, 6 Conn. 386; sary for that purpose. Newcomer Corwin v. Merritt, 3 Barb. 341. An V. Wallace, 30 Ind. 216; Foley v. administrator's deed for land is McDonald, 46 Miss. 238. not admissible as evidence without *Ilyan v. Duncan, 88 IlL 144; proof that the maker was admin- Stuart V. Allen, 16 CaL 473. istrator. Ury v. Houston, 36 Tex. 260. FOEMS OF CONVEYANCE. 287 The doctrine of caveat emptor applies to all sales by the administrator,^ and the purchaser, who is presumed to have made all necessary inquiries, takes the title at his peril,^ and subject to all liens, except those for the payment of which the land is sold.' The purchaser has no right to the land until the sale has been confirmed;* but where the sale has been made under a proper order of the court, and reported to and confirmed by it, it conveys title even though the pro- ceedings be irregular.* Guardians^ deeds. — G-uardians^ and conservators' fre- quently make conveyances of the real estate of their wards, either to pay debts, or for the support and education of the ward, or for the purpose of investing the proceeds; and such conveyances, if attended by all the statutory requisites, are effectual to convey all the title which the ward may have possessed at the time of the sale.^ Such sales are made by the authority and under the direction of the probate court upon petition by the guardian stating the necessary juris- dictional facts,' and after notice of such application in the manner provided by law.'" Such sales must be further re- iMcConnell v. Smith, 39 111. 379. 'The estate, and frequently the 2 Bishop V. O'Connor, 69 111. 431. person as well, of persons non 3 Henderson v. Whitinger, 56 Ind. compos mentis is often confided to 181. the care of a statutory guardian, < Mason v. Osgood, 64 N. C. 467; generally called a conservator or Rawlings v. Bailey, 15 111.178; Ury committee. V. Houston, 36 Tex. 360. ^wisenor v. Lindsay, 33 La, An. 5 Thorn v. Ingram, 25 Ark. 53; 1211; Mulford v. Beveridge, 78 111. Myerv.McDougal,47IlL378. Com- 445; Fitzgibbon v. Lake, 29 111. 165. pare Chase v. Eoss, 36 Wis. 267. ' The petition is of paramount ^ The common law recognized necessity, and it seems that with- four kinds of guardians, to wit: in out such a petition the court gets chivalry, by nature, in socage, and no jurisdiction to grant a license by nurture. The distinctions do to sell. Ryder v. Flanders, 30 Mich, not and never have existed in the 386. United States. The statutory w The notice is, iurisdictional, and guardianship is the only kind a sale without giving the statutory which figures in land titles. notice has been held absolutely 288 LAW OF KEAL PEOPEETT. ported to and confirmed by the court granting the license/ but the title of the ward will not be divested until a deed has been ordered and actually executed.^ void. Rankin v. Miller, 43 Iowa, 11; Kennedy v. Gaines, 51 Miss. 625. If, however, the notice is defective merely, the jurisdiction is saved. Lyon v. Vannatta, 35 Iowa, 521. 1 Confirmation is essential to the validity of the sale. People v. Cir- cuit Judge, 19 Mich. 296; "White v. Clawson, 79 Ind. 188; Chapin v. Curtenius, 15 IlL 427. 2 Doe V. Jackson, 51 Ala. 514, CHAPTER YII. TESTAMENTARY CONVEYANCES. Generally considered. — The last, mode of conveyance of real property is by devise, or disposition by last will and testament.* The word " devise " seems to be derived from di- vide, and originally meant any kind of division or distribu- tion of property.^ It would seem that the power of devising lands existed in the time of the Saxons, but upon the establishment of the Iformans it was suppressed as inconsistent with the prin- •ciples of the feudal law, and the privilege of testamentary disposition was not restored until many years after the re- moval of restraints on alienation by deed.' The power was indirectly acquired by means of the invention of uses, and the practice of devising the use of land eventually became quite common, but the enactment of the statute of uses ef- fectually destroyed this power. The inconveniences which attended this restraint resulted, a few years afterward, in a partial liberty of disposition by will, and subsequently all restraints were removed. The idea of a devise is thought to have been taken from the testament of the Koman law, which was at all times allowed in England with respect to personal property.* But while the two methods are founded on different principles, and originally were governed by different rules, no distinc- tion is now made between them, and aU. Avritings intended ' See p. 89, ante. law was applied only to disposi- 2 Cruise, Dig., tit. 88, ch. I. tions which contained an appoint- 'Spence, Eq. Jur. 20; 4 Kent, ment or institution of an heir, who "Com., lect. 68. was to take all the property of the * Cruise, Dig., tit. 38, ch. L The testator. See Sandars' Justinian, ■word "testament" in the Roman 235; Morey's Roman Law, 313. 19 290 LAW OF EEAL PEOPEETT. for postrmortem operation are called wills and testamientSy whether relating to real or personal property, or both. The limits of this work preclude more than a casual glance at this Tery comprehensive subject, Avhich will be accom- plished by a brief consideration (1) of the making and revo- cation of wills; (2), their construction, operation and effect, and (3) the method and effect of their formal proof. The power to make wills, the manner of their execution, the method of their proof, and the effect that shall be given to them, depend largely upon the specific provisions of the stat- ute, but these provisions are substantially the same in aU of the states. 1. Making and Revocation of Wills. Formal requisites. — Unlike deeds, which are drawn in conformity with legal or conventional precedents, wills may assume almost any shape. Modern wills, in many instances,, and ancient wills uniformly, commence with a pious ejacula- tion, followed by a preamble dedicating the testator's soul to God, expressing the soundness of his mind, the health or debility of his body, and other particulars of no special im- portance which may, in all cases, be safely omitted. Immedi- ately following is usually a direction of payments of debts- and funeral expenses. This, too, is merely formal and im- material, except that it may sometimes aid in the construc- tion of a will by showing that the subject of his debts was brought distinctly to the testator's mind at the time of the execution of same.' Then come the bequests and devises,, and finally the appointment of the executor. With respect to the strictly formal parts a very simple and informal document will be sustained as a will, where the writing relied on has been executed in conformity to the statute, and shows upon its face a declaration by the testator that same is his will.^ The essence of a will is, that 1 1 Eedf. Wills, *674. University v. Barrett, 33 Iowa, 60;: 2 3 Wash. Real Prop. *681 ; Turner Wall v. Wall, 30 Miss. 91. Although T. Scott, 51 Pa. St. 126; Burlington an instrument be in the form of at TESTAMENTARY CONVEYANCES. 291 it is a disposition to take effect after death, and the form of the instrument, therefore, is immaterial if its substance is testamentary.^ The statute usually requires the paper to be signed by the testator, but the signature may be original or by adoption,^ and, as a rule, it must be attested by two or more subscrib- ing witnesses, who, at the testator's request, affix their sig- natures in his presence.' The residuary clause. — In a majority of wills there is in- serted at the close a general devise of everything that the testator has not succeeded in disposing of in former parts of the will, which is called the residuary clause. "Where the language of a residuary clause has sufficient scope and ex- tent,,evincing the intent of the testator to take up and carry into the residuary estate all of his estate remaining at his death undisposed of for any reason, the residuary clause will receive and pass a lapsed legacy and devise,* as well as such as may fail for want of use of proper language to create the same, or to designate the devisee.' But when the residuary clause does not by its own terms; take in a lapsed legacy or devise, so as to disclose the intent of the testator to pass the lapsed estate into the residue, the rule is different.* Yoid and illegal legacies or devises come under the rule deed, and called such, still if its ' Consult Hopper's Will, 1 Tuck, purpose be testamentary, and it is (N. Y. Sur.) 378; Lawrence's Will; only to be consummated by the id. 343; Holloway v. Galloway, 51 death of the maker, effect will be IlL 159. given to it as a will and not as a * Youngs v. Youngs, 45 N. Y. 254; deed. Gillham v. Mustin, 43 Ala. Patterson v. Swallow, 8 Wr. (Pa.) 865. 490; Hillis v. Hillis, 16 Hun (N. Y.), 1 Wilson's Ex'rs v. Van Leer, 103 76. Local statutes will sometimes Pa. St. 600. materially affect the doctrine 2 A mark has been held a good stated in the text. signature even when the statute * Levering v. Allen, 129 Mass. 97. uses the word subscribed. Van 6 Yard v. Murry, 86 Pa. St. 113. Honswyok v. Wiese, 44 Barb. 494; Jackson v. Jackson, 39 N. Y. 153. 292 LAW 01" EEAL PEOPEETT. first above stated,' and generally, unless a contrary intention is manifested, the residuum will take and pass everything of the nature above indicated.^ A different rule, however, applies to the residue itself ; for if a gift of the residue, or any part of it, fails, whether by lapse, illegality or revocation, to the extent that it fails the win is inoperative, and the subject of the gift passes to the next of kin according to the statute of descents.' Codicils. — A codicil is defined as some addition to, or qualification of, a last will and testament.* Where it is in irreconcilable conflict with the will, it must prevail as a rev- ocation, since it is the last expression of the testator's in- tent in the disposition of his property.^ Ordinarily, how- ever, a codicil imports not a revocation, but an addition to, or explanation or alteration of, the will, in reference to some particular, and assumes that in all other particulars it is to be in full force and effect. The authorities fully establish the proposition that a cod- icil which does not in terms revoke a clause in the will, but modifies it in some of its features entirely consistent with the retention of its other provisions, will be allowed to have that partial effect, and the clause thus changed will remain as the embodiment and expression of the testator's intent ; while if duly executed with all the formalities required by law, it will operate to confirm and republish the rest of the will,^ unless the testator declares that he does not intend 1 Burnet v. Burnet, 30 N. J. Eq. voked by striking it out of his will. 595. A distinction is made in some Biglow v. Grillott, 123 Mass. 103. states between legacies and de- 3 Burnet v. Burnet, 30 N. J. Eq. vises: the legacy falling into the 595. residuum; the lapsed devise de- * 1 Bouv. Law Diet. 385. scending to the heirs. See Orrick ^ Hallyburton v. Carson, 15 Ee- V. Boehm, 49 Md. 3. porter, 154. 2Thayer v. Wellington, 9 Allen ^ o'Hara on Wills, 6; Brown v. (Mass.), 283. The residuary clause Clark, 77 N". Y. 369; Van Cortlandt will carry the estate devised in a v. Kip, 1 Hill, 590; Mooers v. White, clause which the testator has re- 6Johns.Ch.875; lJarm.onWills,78. TESTAMENTARY CONTETANCES. 293 that it shall have that effect.' It will thus he seen that the codicil plays a most important part both in the disposition of the property and in the matter of validating that which has preceded it, and which, by reason of defective execu- tion or other circumstances, has become inoperative.^ It is an established rule not to disturb the dispositions of the will further than is absolutely necessary to give effect to the codicil,' and the intent of the testator is always sought to give effect to both instruments when they can operate in perfect harmony.* But where the absolute and unqualified gift in the codicil is incompatible with the disposition of the land made in the will, and must have a revoking eiB- cacy or be itself nugatory, the will must yield to the cocicil.^ A codicil depending upon the body of the will for inter- pretation or execution cannot be established as an inde- pendent will, when the will itself has been revoked.* Revocation. — As a will takes effect, or becomes operative, only after the death of the maker, it follows that it may be altered or abrogated by him at any time during his life. This latter act is called revocation. At one time it would seem that wills might be revoked by spoken words only, but this was prevented by the statute of frauds, the substantial feat- ures of which have been re-enacted in all of the United States, and the rule now is that a will cannot be invalidated by the parol declarations of the maker, made either before or after its execution.^ As a general rule a will can only be revoked (1) by a sub- sequent will; (2) by a codicil; (3) by destroying, canceling or obliterating, or (4) by a change in the domestic condition of testator.' 1 Van Cortlandt V. Kip, 1 Hill, 590. Mass. 232; Vaughan v. Bunch, 53 ^ See Wms. on Executors, 97; 1 Miss. 513. Jarra. on Wills, 78. " Youse v. Forman, 5 Bush (Ky.), 3 Jarm. on Wills, 343, note. 337. ^Hallyburton v. Carson, 15 Re- 'See Dickie v. Carter, 42 111. 376. porter, 154. 8 This matter is statutory, but the 5 Wainwright v. Tuckerman, 120 text states the statutory rule. See Stat. 29 Car. II, ch. 3, § 6. -294 LAW OF EEAL PEOPEETT. It was formerly held that a subsequent will only operated as a revocation where it contained an express clause revok- ing all former wills or made a different and incompatible disposition of the lands devised by a former one.^ This rule, while it has, in the main, been followed by American courts, is subject to some modification dependent upon dis- closed intent, and usually a subsequent instrument, duly -executed as a last will, and which is complete in itself and adequate for the disposition of testator's entire estate, will be construed as revoking all former wills, although no words to that effect are used.^ Prudence would suggest, however, that in the draughting of wills a revocation of all former wills be expressly declared. A codicil may have effect as a revocation either in whole or in part of the will to which it is annexed. See remarks under that head. A will may be revoked by " burning, canceling, tearing or obliterating the same," ' if done with intent to revoke* — cmimo revocandi; but this effect will not be given to such acts when they result from accident or mistake.' Marriage and birth of issue is by statute generally suffi- cient to work a revocation of a prior will, and apart from the statute subsequent marriage has been held to revoke a will where it contained no provisions showing a contemplation of the relations growing out of marriage.* 2. Operation and Effect of Wills. Rules of construction. — Upon the ground that wills are often made in haste, and by inexperienced persons, a devise is not construed strictly and technically, like a deed, but >See Cruise, Dig., tit. 38, ch. VL sWolf v. Bollinger, 62 111. 368; '■'Clarke v. Ransom, 50 Cal. 595; Dawson v. Smith, 3 Houst (Del.) Ke Fisher, 4 Wis. 254; Simmons v. 335. Simmons. 26 Barb. (N. Y.) 68. And ^ See Board of Missions v. Nelson, see Redf. Wills, ch. VII. 73 111. 564; Brush v. Wilkins, 4 3 Stat, of Frauds, 29 Car. II. Johns. Ch. (N. Y.) 506; Warner v. * Avery v. Pixley, 4 Mass. 460; Beach, 4 Gray (Mass.), 163. Dan V. Brown, 4 Cow. (N. Y.) 490. TE8TAMENTAET OONTETANOES. 295 liberally, and according to the intent of the testator, and «uch intent may be gathered, in case of doubt, not from de- tached clauses, but from the whole will, so that every word ^jnay have its effect, if possible.^ It is a cardinal rule, how- ever, in the construction of wills, that a testator is always presumed to use the words in which he expresses himself -according to their strict and primary acceptation, unless irom the context it appears that he has used them in a dif- ferent sense ; in which case the sense in which he thus ap- pears to have used them will be the sense in which they are 'to be construed,^ and technical words are presumed to be used in their legal sense, unless there is a plain intent to the 'Contrary.' The general intent will prevail over expressions indicating a different particular intent,Hhough every expressed par- ticular intent must be carried out when it can be ; ^ and when s. will is susceptible of a twofold construction, one of which ^avoids and the other upholds it, the latter must be adopted.^ The general rule, however, that wills are to be construed according to the intention of the testator must be under- stood as the intention of the testator as expressed in the will; and this must be judged of exclusively by the words •of the instrument as applied to the subject-matter and the surrounding circumstances,' and not from extrinsic matter •or evidence aliunde? 1 Welch V. Huse, 49 Cal. 507; 'Butler v. Huestis, 68 111. 594; Butler V. Huestis, 68 111. 594; Lytle France's Estate, 75 Pa. St. 330; De- V. Beveridge, 58 N. Y. 593; Moran Kay v. Irving, 5 Den. 646. V. Dillehay, 8 Bush, 434; Bergan v. 4 Bell v. Humphrey, 8 W. Va. 1; •Cahill, 55 111. 160. Parks v. Parks, 9 Paige, 107; 2 Luce V. Dunham, 69 N. Y. 36; Schott's Estate, 78 Pa. St. 40; Wat- Edwards V. Bibb, 48 Ala. 666; Mead gon v. Blackwood, 50 Miss. 15. v. Jennings, 46 Mo. 91; Feltman v. SBell v. Humphrey, 8 W. Va. 1. Butts, 8 Bush (Ky.), 115. Words « Mason v. Jones, 3 Barb. 339. may be considered in an order ' Bell v. Humphrey, 8 W. Va. 1 ; ■other than that in which they are Wheeler v. Hartshorn, 40 Wis. 83; jplaced, if the intent of the testator Blanchard v. Maynard, 103 111. 60. is better served thus. Ferry's Ap- * McAlister v. Butterfleld, 81 Ind. ^eal, 103 Pa. St. 307. 35; Brownfield v. Wilson, 78 IlL 296 LAW OF REAL PEOPEETY. These are the basic principles that govern the construction of wills, and to them little can be added that is of general application. The donor of property by testamentary dis- position has an almost unlimited scope within which to ex- ercise his judgment or to gratify his caprice, and while- multitudes of wills are daily presented for construction, it, is seldom that we find any two of them exactly similar. Unlike deeds of conveyance in this respect, they are as mul- tiform and distinct in their structure, phraseology and pur- poses as are the mental operations, motives and feelings of" the different testators. The intention must, in all cases, be sought for, and if possible ascertained; and this intention,, when it is not in conflict with the settled policy of law, will' always be respected and allowed to operate.^ Any construc- tion which will result in partial intestacy is to be avoided^ unless the language of the will compels it.^ Repugnancy. — It is a well-established rule that where two- or more provisions in a will are clearly repugnant or irrec- oncilable the latest should prevail,' as being indicative of 467; Caldwell v. Caldwell, 7 Bush 2 Vernon v. Vernon, 53 N. Y. 351; (Ky.), 515; Sherwood v. Sherwood, Gate v. Cranor, 30 Ind. 292. The 45 Wis. 357. It is true that the state of the law at the time of the condition of the testator at the execution of a will often affords, time of execution, the state of his material assistance in arriving at property, his family, and the like, the intention of the testator, when: may be shown in order to throw it would otherwise be doubtful; light upon his intention; yet as the but the rights of parties taking writing is the only outward and under the will are always to be visible expression of his meaning, determined by the law as it existed no other words, as a rule, can be at the time the will took effect- added to or substituted for those Carpenter v. Browning, 98 111. 282- used. Hunt v. White, 24 Tex. 643; 3 Hamlin v. Express Co., 107 111. Mackie v. Story, 93 U. S. 589; 443; Fulton v. Hill, 41 Ga. 554; Abercrombie v. Abercrombie, 27 Bradstreet v. Clarke, 12 Wend., Ala. 489; Herriok v. Stover, 5 (N. Y.) 602; VanNostrand v.Moore,. Wend. (N. Y.) 580. See, however, 52 N. Y. 12; Evans v. Hudson, 6- the succeeding section on " repug- Ind. 293; Miller v. Flournoy, 26- nancy." Ala. 724; Pickering v. Langdon,22: 1 Douglass V. Blackford, 7 Md. 22. Me. 430. TESTAMBNTAKY CONVEYANCKS. 29T the testator's latest wish ; ^ yet it is a rule that is only ap- plied in cases of absolute necessity, as where the provisions are totally inconsistent with each other, and the real inten- tion of the testator is incapable of determination.^ A prior provision, however, will ne%'er be disturbed, further than is absolutely necessary to give effect to a subsequent one;*^ nor will the expression of a particular intent be sufficient to overcome the manifest general intent.* Thus, where the first clause absolutely disposes of all testator's property, a. subsequent clause providing for the distribution of a fund which would or might at some future time accrue to his estate would not affect the antecedent general disposition, for in such case, no residuum being contemplated, there could be no residuary legatees.* Similarly, where there is a, devise of an unlimited power of disposition of an estate in such manner as the devisee may think proper, a limitation over is inoperative and void, by reason of its repugnancy to the principal devise.* Under the application of the rule that a will should be so- construed as to effectuate the intention of the testator as far as possible, express words must sometimes yield to the otherwise manifest intention, and words will even be added where it is absolutely necessary to avoid absurdity or give effect to such manifest intention.' Devises to heirs — Effect of. — It is a rule of the common law that where devisees under a will would take the same estate in quantity and quality which they would take from 1 Eountree v. Talbot, 89 111. 346. * Hamlin v. Express Co., 107 IIU ^Covenhoven v. Shuler, 3 Paige 443; Bell v. Humphrey, 8W. Va. 1; (N.Y.), 133; Oxley V.Lane, 35 N.Y. Cook v. Holmes, 11 Mass. 528; 340; Newbold v. Boone, 53 Pa. St. Pickering v, Langdon, 22 Me. 413: 167; Bartell v. King, 13 Mass. 543; Sohott's Estate, 78 Pa. St. 40; Wat- Thrasher V. Ingram, 33 Ala. 645; son v. Blackwood, 50 Miss. 15 j SiceloflE V. Redman, 26 Ind. 251. Miller v. Flournoy, 36 Ala. 724. 3 Taggart \. Murray, 53 N. Y. 233 Kenzie v. Roleson, 28 Ark. 103 Parker v. Parker, 13 Ohio St. 95 6 Henning v. Varner, 34 Md. 103. 6 Hamlin v. Express Co., 107 111. 443. Stickle's Appeal, 29 Pa. St. 234. 7 Welsch v. Savings Bank, 94 lU. ■298 LAW OF EEAI, PEOPEETT. -an intestate ancestor by operation of law, the title so de- rived is held by descent and not by purchase, and this rule may still obtain in some of the states.' But when one de- vises property to his heirs it is but fair to presume he in- tended they should take the property under the will, and in furtherance of this principle the rule first stated has been set aside in a majority of the American states, and the dev- isees in such cases held to take by purchase and not by descent.^ "Where, however, the gifts to the heirs at law are made to them sim.pliciter, the persons to take and the pro- portions must be determined by the statutes of descents and ■distribution.' Words of grant. — As in deeds so in wills, there must be apt words of grant or conveyance or words indicative of testamentary intent, but any form of expression wiU be suffi- cient to pass the title, provided the intent is manifest. " Give," " devise " or " bequeath " are the words commonly in use, and all or either will be sufficient to pass real estate, though the technical word for this purpose in a properly drawn will is " devise." * Words of advice, desire, recom- mendation, etc., are not ordinarily sufficient.* 191 ; Wright v. Dunn, 10 Wheat. 190. When heirs take by purchase 804; Bartlett v. King, 13 Mass. 537; they do not take as heirs, but as a Ruston V. Ruston, 2 Ball. 344. class of persons to whom by that 1 Donnelly v. Turner, 15 Reporter, means the testator has selected to 717. This seems to have been the devise his property; and as they "view which formerly obtained in take in their own right, the distri- this country. Mr. Hilliard says: bution is to be made per capita and "" A devise is void if . made to the not per stirpes. Campbell v. Wig- heir at law, and if it gives him the gins, 1 Rice's Ch. (S. C.) 10. And see same estate which he would have Robinson v. Le Grand, 65 Ala. 111. inherited. In such case the heir ^ Richards v. Miller, 63 111. 417. ■takes by descent, which is a better * Acceptance of a devise, where it title than that of a devisee; be- is beneficial to the devisee andat- "Cause an adverse claimant may tended with no charge or risk, «nter upon the latter, but not is always presumed. Brown v. upon an heir." 3 Hill. Abridg. 514. Thorndike, 15 Pick. 388. But this doctrine is not now rec- * Gilbert v. Chapln, 19 Conn. 343; ognized. Bohn v. Barret's Ex'r, 11 Reporter, 2 Gilpin V. Hollingswortli, 3 Md. 839. TESTAMENTAEY CONVEYANCES. 299 Words of purdliase and limitation. — The words used in •connection with gifts to specific persons to show, as in case •of deeds, the nature or quality of the estate conveyed, are usually " heirs," " heirs of the body," " issue," etc., and ac- •cordingly as the words are used may be either words of pur- chase or of limitation. The word " issue " presents the largest number of questions and has been productive of an almost innumerable number of decisions. As a word of lim- itation it is collective, and signifies all the descendants in all generations; but as a word of purchase it denotes the par- ticular person or class of persons to take under the devise. The term may be employed in either manner, as will best effectuate the testator's intention, and is the most flexible word that can be used.' Courts moi-e readily interpret the word " issue " as the synonym for " children," and as a mere ■description of the person or persons to take, than they do the words " heirs " or " heirs of the body." ^ The usual and ordinary words for conveying a fee-simple, in wills as well as in deeds, are " heirs," or " heirs and as- signs forever ; " but a devise to a man " forever," or to one ■" and his assigns forever," or to one in " fee-simple," will pass an estate of inheritance to the devisee, notwithstanding the omission of the legal words of inheritance,' while the statute in a majority of the states will cover the deficiency and give to the devisee an estate in fee, none other being mentioned.^ iTimanus v. Dugan, 46 Md. 403; cleary appears. 3 Jarin. on Wills, ODaniel v. Whartenby, 17 Wall 639. 338. "Words in the introductory or other 3 Coke, Lit. 9 b; 3 Black. Com. j)arts of a will indicating an inten- 108; Meyers v. Anderson, 1 Strobh. tion of the testator to dispose of Eq. (S. C.) 344; Timanus v. Dugan, Shis whole estate, although not con- 46 Md. 403; Tatum v. McClellan, olusive that he intends to pass a 50 Miss. 1; Wetter v. Walker, 63 ifee, always favor such construe- Ga. 142; Edwards v. Barnard, 84 tion. Geyer v. Wentzel, 68 Pa. St. Pa. St. 184 84; Fearing v. Swift, 97 Mass. 418. ^Leiter v. Sheppard, 85 IlL 343; sin England the word "issue" McConnell v. Smith, 38 111. 617; is a word of limitation and not Mirfitt v. Jessop, 94 111. 158. The ■of purchase, unless the contrary statute very generally enacted- 300 LAW OF EEAL PEOPEETT. Questions as to whether a devisee takes the fee or a lesser estate occur most frequently where the testator, in his anxi- ety to make his gift effective, makes several bequests in the alternative, or limits one estate upon another, and are usu- ally to be decided by the application of the rule in Shelly's- case as modified by local law. l^o rule of general applica- tion can be formulated, and from a review of the reported cases on this subject one can well appreciate the remark of a learned writer, that " the liberality of the law in constru- ing wills has opened the flood-gates of legal chaos." * It would seem, however, that whenever the intention of the testator can be ascertained it will overcome all technical rules;- and this intention turns, not upon the quantity of interest given to the first taker or person specified, but upon the nature of the estate intended to be given to the "heirs." ^ The rule in Shelly^ s case.-^ Though entailed estates are no longer permitted in any of these United States, the rule in Shelly's case still has a modified force in all, and is often invoked in the construction of devises to determine the op- eration of the will and settle conflicting claims. This rule throughout the Union provides, cisions of the local courts will fur- substantially, that every estate in nish the best guide for construing: lands which shall be granted, con- estates under wills, as, between the veyed or devised, although other states, diametrically opposed view& words heretofore necessary to will frequently be met with on the transfer an estate of inheritance same admitted facts, be not added, shall be deemed a ^Bakerv. Scott, 62111. 90; 4 Kent, fee-simple estate of inheritance, if Com. 231. The rule in Shelly's case,, a less estate be not limited by ex- that is, the technical application of press words, or do not appear to the words "heir" and "heirs," is have been granted, conveyed or de- not now received in all its original vised by construction or operation vigor, from the fact that it often of law. operates to defeat the testator's in- 1 0'Hara on Wills, 27. And see tention, and in the United States Clark V. Boorman's Ex'rs, 18 Wall, it is regarded of no especial force 493. except as an aid to construction 2 Goodrich v. Lambert, 10 Conn, and intention. Blake v. Stone, Zl 448; Baker v. Scott, 62 111. 90; But- Vt. 475. ler V. Huestis, 68 111. 601. The de- TESTAMENTAEY CONVEYANCES. 301 provides that, where the ancestor takes an estate of free- hold, and in the same gift or conveyance an estate is lim- ited, either mediately or immediately, to his heirs, either in fee or in tail, the term "heirs" is a word of limitation and not of purchase : ^ and when applied to wills is ordinarily confined to cases in which the remainder is limited in terms to the " heirs " ^ and not to " children " or " issue." ' When invoked, as a rule it is not a real exception to the funda- mental doctrine that the intention of the testator must guide in interpreting a will; it sacrifices a particular intent to a general intent. It does not interpret a will, but takes effect when the interpretation has been ascertained.* Interpretation of particular words and phrases. — Though the testator is presumed to use technical words according to 1 Baker v. Scott, 63 111. 90; Estate of Utz, 43 Cal. 200. 2 A devise of an estate to a daughter, to be so secured to her that she shall enjoy it during her life, and after her decease to go to her heirs forever, will, under the rule in Shelly's case, give her an estate in fee-simple. Wicker v. Ray, 118 111. 473. 3 Akers v. Akers, 33 N. J. Eq. 26; Estate of Utz, 43 Cal. 300. But see Haley v. Boston, 108 Mass. 576. The word " children " in its usual sense is a word of purchase and not of limitation, and is always to be so regarded unless the testator has unmistakably used it other- wise (Stump V. Jordan, 54 Md. 631 ; 3 V^'ash. Heal Prop. (4th ed.) 603); while not infrequently the word ^' heirs," or even the words "heirs and assigns forever," are held not to operate as words of limitation because corrected or explained by words which follow and which are irreconcilable with the notion of descent. Shreve's Case, 43 Md. 399. 1 Yarnall's Appeal, 70 Pa. St. 335. Greater latitude, however, is given in the construction of wills than in that of deeds, and courts will look to the whole will. Thus, the rule as stated in the text, while of general controlling efficacy in deeds, where it may usually be safely applied, is subject to a wide latitude in wills; and while in some states it may be rigidly enforced, in the majority, when explanatory words are found in the will show- ing the intention of the testator that the words " heirs " or " heirs of the body " are employed to show that such persons shall take under the devise as a description of per- sons, they will be treated as words of purchase and not of limitation. Bntler v. Huestis, 68 111. 594. When such appears to be the testator's intention, "heirs" has been con- strued to mean " children." 302 LAW OF EEAL PKOPEETT. their technical nieaning,i this can hardly be asserted as a rule ; or, should it be so asserted, it must be taken subject to that other all-powerful rule that the intention of the testa- tor must prevail.^ The construction of words in a wiU is much less technical than that of the same words in a deed;, for though in deeds effect will always be given to the true intention of the parties,' yet the words employed govern such intention, while in a will they are in all respects alike.- Where the same precise form of expression occurs as may have been the subject of some former adjudication, unaf- fected by any indication of a different intention in other parts of the instrument, the courts, with a view to certainty and stability of titles, will follow the precedent; yet the cardinal canon still holds good, that the intention of the testator of each will separately is to be gathered from its own four corners,^ and where the intention satisfactorily appears it should prevail over any artificial rule of construc- tion.* Words wMcJi pass real estate. — Sometimes wills contain no specific allusions to land, or particular bequests may be made in general terms, and in such cases grave questions of construction arise when real estate is claimed under them. The liberality of courts is nowhere more manifest than in the solution of these questions. The words " property " and " estate," when used in a general sense, are always held suf- ficient to embrace all the testator's property, real as weU as. personal;* but when coupled with directions applicable only 1 France's Estate, 75 Pa. St. 220. «Fogg v. Clark, 1 N. H. 163; 2 Smyth V. Taylor, 21 III. 396; Jackson v. Housel, 17 Johns. 881; Heuser V.Harris, 43 111. 435; Meade Wheaton v. Andress, 23 Wend. V. Jennings, 46 Mo. 91. 452; Hunt v. Hunt, 4 Gray (Mass.), sPeokhamv. Haddock, 30 111. 38; 190; Kora v. Cutler, 36 Conn. 4; Churchill v. Reamer, 8 Bush (Ky.), Monroe v. Jones, 8 R. I. 526. This- 256. is directly contrary to the earlier < Provenchere's Appeal, 67 Pa. and more technical rule, which St. 463. confined these words entirely to. 6 Kennedy v. Kennedy, 105 111. personalty unless there was some- 350. thing in the context to show that TESTAMENTAET OONVEYAl^OES. BOS' to personalty they will not have this effect, nor where sub- sequent particulars clearly indicate that the testator had only personalty in contemplation.^ The word "effects," though savoring strongly of personalty,^ m^'J? when the con- text clearly shows the intention, as when used in connection with the word " real," ' be sufficient to pass land.* " G-oods," according to its natural grammatical and ordinary meaning, does not include lands. General usage has given it a mean- ing as consisting of personalty only, and this is its primary legal signification.* The context may sometimes enlarge- this meaning ; and where it satisfactorily appears that the testator intended to use the word in a different and more- comprehensive sense, so as to embrace real estate, courts will give effect to that intent. The phrase, " all my worldly goods," if used without specific enumeration, may reason- ably be supposed to embrace lands, and in some instances has been so construed ; but if attempt is made at designation,, the restricted meaning implied from such designation will prevail.* The question will occur most frequently in constructions- of the bequest of the residuum, and courts seem inclined to favor any construction which will avoid even a partial in- testacy.'' Yet while no particular words are necessary to pass real' estate, enough must appear to evidence the intention to con- vey, and words cannot be supplied to meet the deficiency,. even though they may have been omitted by what might. the testator intended a more en- * Paige v. Foust, 89 N. C. 447. larged meaning. 5 Farisli v. Cook, 78 Mo. 212. 1 Smith V. Hutchinson, 51 Mo. 83. ^Aa where testator bequeaths- 2 Indeed, this term when used in "all my worldly goods, consisting a will is generally construed to of," etc., the enumeration describ- refer to personalty only, unless ing only personalty, real estate not there is something in the context specifically mentioned or other- to require a more extended appli- wise referred to will not pass. cation. ' Vernon v. Vernon, 53 N. Y. 351 ; "As, "all my effects, real and Gate v. Cranor, 30 Ind. 893; Damom personal." v. Bibben, 135 Mass. 458. 30i LAW OF EEAL PEOPEETY. seem to be palpable error;' aud where specific mention is made of certain property, other property not alluded to or covered by general terms will not pass.^ Limitations and remainders. — Mne-tenths of all the liti- gation concerning testamentary conTeyances is occasioned by questions relative to the construction of limitations and remainders. The subject has been incidentally discussed in several of the preceding paragraphs, and in addition to what has been there said little can be stated without entering into the matter at greater length than the exigencies of this work will permit. Local statutes are very effective in the settle- ment of such questions, so far as the validity of the remain- der limited is concerned, as well as the persons who take, when particular words are accorded a statutory definition. All words of purchase, as " children," ' " issue," etc., create remainders according to their import, while " heirs," when construed as a word of purchase, designates not only the per- sons who are to take, but also the manner and proportions in which they take.* The utmost liberality is displayed in the reported decisions construing remainders, and the cir- cumstance that the first taker has it in his power to dispose of the whole estate, and thus defeat a limitation over, is not of itself conclusive that the expectant estate is void, when a contrary intention appears from the will.* The intention of the testator must, in all cases, be carried lAs where testator, after mak- clause specifically devised. Gra- ing certain bequests and devises, ham v. Graham, 23 W. Va. 36. gave " all the rest of my estate — 2 Farish v. Cook, 78 Mo. 313. personal " to his four sons, and in ^ Beacroft v. Strawn, 67 IlL 38. a codicil stated that he had dis- Holmes v. Mead, 52 N. Y. 333; 'Morice v. Bishop of Durham, 10 Powell on Devises, 418; Darling v. Ves. (Eng.) 533. Rogers, 33 Wend. 494; 3 Story, Eq. *Norris v. Thompson's Ex'rs, 19 Jur., § 979; Wheeler v. Smith, 9 N. J. Eq. 307. How. (U. S.) 55. 5Stubbs v. Sargon, 3 Myl. & Cr. 2 Power V. Cassidy, 79 N. Y. 603; (Eng. Ch.) 507. Bull V. Bull, 8 Conn. 48; Norris v. e Ommanny v. Butcher, 1 T. & E. Thompson's Ex'rs, 19 N. J. Eq. 307; (Eng. Ch.) 360. McLoughlin v. McLoughlin, 30 Barb. 458. 314 LAW OF REAL PROPERTY. might choose ; ' but when the beneficiaries are capable of identification, although not named, the trust will be valid ; and a testator may commit to competent persons the power to designate who of certain persons shall participate in a specified portion of his estate, and in what proportions the property shall be divided.^ Bequest to devisee iy description. — The observations of the last section are in a measure applicable to direct be- quests, for a devisee, whether a corporation or a natural person, may be designated by description as well as bj' name.' It is only necessary that the description of the dev- isee be by words that are sufficient to denote the person meant by the testator, and to distinguish him from all other persons.* In such cases, however, a judicial construction is necessary in order to fully perfect the title of the imper- fectly designated devisee, and the decree rendered upon such construction, together with the will, forms the basis of the devisee's claim of title. Devises to corporations are particularly subject to the rule above stated, as the testator frequently fails to insert the strictly legal name of the cor- poration through inadvertence, ignorance or mistake. Parol evidence is always admissible to remove latent ambiguities ; and where there is no person or corporation in existence precisely answering to the name or description in the will, parol evidence may be given to ascertain who were intended by the testator.* Precatory trusts. — Precatory trusts grow out of words of entreaty, wish, expectation, request or recommendation fre- 1 Wetmore v. Parker, 52 N. Y. Vt. 336: McAllister v. McAllister, 450. 46 Vt. 273; Minot v. Curtis, 7 2 Williams v. Williams, 4 Seld. Mass. 441 ; Holmes v. Mead, 53 548; Owens v. Miss. Soc, 14 N. Y. N. Y. 333; Gardner v. Heyer, 3 386; 3 Redf. on Wills, 779; White Paige, 11. V. Fisk, 23 Conn. 31; Lefevre v. ^Lefevre v. Lefevre, 59 N. Y. Lefevre, 59 N. Y. 434. 434; St Luke's Home v. Ass'n for 3 Lefevre v. Lefevre, 59 N. Y. 484. Indigent Females, 53 N. Y. 191. * Button V. Am. Tract Soc'y, 33 TKSTAMENTAET CONVEYANCES. 315 quently employed in wills, and the authorities, both English and American, are conclusive, and in the main harmonious, that a trust will be created by such words as "hope," " wish," " request," etc., if they be not so modified by the context as to amount to no more than mere suggestions, to be acted on or not according to the caprice of the immediate devisee, or negatived by other expressions indicating a con- trary intention, and the subject and object be sufficiently certain.^ An absolute gift to one person, accompanied with a request to appropriate a particular sum to another person, creates in the immediate devisee a trusteeship to the extent of such sum ; nor does the absolute gift contravene either an express or implied trust annexed to the gift, as it is a com- mon thing to invest the legal title and trusteeship in the same person, who is to receive the benefit in the event of the failure of the trust. It is equally well settled, however, that a mere direction by a testator that a devisee shall pay a legacy does not thereby create a charge on the land, and, to accomplish this, there must be express words or neces- sary implication from the whole will that such was the in- tention.^ There has been a tendency manifested by some courts to restrict the application of this rule or to qualify it, and, in some instances, to reject it altogether, and to adopt, as more reasonable, the presumption that words precatory in form are meant to imply a discretion in the donee, and should be so construed unless clearly shown to be used in an impera- tive sense from other parts of the will ; ' but the weight of authority sustains the principles first stated, and precatory words are generally held to be creative of trusts, when the 1 Bohon V. Barret's Ex'r, 79 Ky. 614; Chapin v. Gilbert, 19 Conn. 378; Hill on Trustees, 93; Perry 343; Pennock's Estate, 30 Pa. St. on Trusts, 4; Gilbert v. Chapin, 19 368; Walter's Appeal, 95 Pa. St. Conn. 343. 305; Taylor v. Dodd. 58 N. Y. 335; 2 Cable's Appeal, 9 Reporter, 57; Bead v. Gather, 18 W. Va. 363. Lupton V. Lupton, 3 Johns. Ch. 3 Pennock's Case, 30 Pa. St. 373. 816 LAW OF EEAL PEOPEETT. contrary does not appear from the context or by necessary implication.^ Perpetuities. — Attempts are frequently made in wills (though seldom in deeds) to create what the law regards as perpetuities, and this occurs whenever there is a suspension of the power of alienation for a longer period than a life or lives in being at the creation of the estate,^ or of such lives in being and twenty-one years and nine months at the far- thest/ the rule varying somewhat in different states. In construing dispositions of property with reference to the statute against perpetuities, the rule is settled that any lim- itation is void as in violation of that statute by which the suspension of the power of alienation will not necessarily, under all possible circumstances, terminate within the pre- scribed period. It is not enough that it may terminate; it must, and if by any possibility the vesting of the estate may be postponed beyond the statutory period, the limitation will be void.* In all cases where the limitation is void as being too remote, the will should be construed as if no such clause were in it, and the first taker will hold his estate dis- charged from the limitation over.^ 'e>^ Lapsed devise. — When a devisee named in a will dies dur- ing the life-time of the testator, the devise is said to lapse, and does not go to the heirs of such deceased devisee, but falls back into the estate of the testator. The rule, though frequently acknowledged to be productive of great hardship, and to be often contrary to the intention of the testator, is too firmly established to be questioned. It is regarded as a rule of necessity, and merely amounts to this : That if there be no devisee, there is in effect no devise.* 1 Reed's Adm'r v. Reed, 30 Ind. Stephens v. Evans, 30 Ind. 39; Lor- 313; Warner v. Bates, 88 Mass. 374. riUard v. Coster, 5 Paige, 172; Haw- 2 Schettler v. Smith, 41 N. Y. 338; ley v. Northampton, 8 Mass. a Knox V. Jones, 47 N. Y. 389. 5 Wood v. Griffin, 46 N. H. 334; 3 Stephens v. Evans, 30 Ind. 39. Anderson v. Grable, 1 Ark. 136. See 1 Jarm. on Wills, 336. « Davis' Heirs v. Taul, 6 Dana, 53. 4 Schettler v. Smith, 41 N. Y. 338; TESTAMENTARY CONVEYANCES. 317 Devises for the payment of debts. — Land devised to trustees for the payment of debts and legacies is usually regarded in equity as money,' but the heir at law has a resulting trust in such land after the debts and legacies are paid, and ma^^ restrain the trustee from selling more than is necessary to pay such debts and legacies ; or may pay them himself and have conveyance of that portion of the land not sold in the first case, and the whole in the latter, which property will, in either case, be land and not money .^ Equity will extend the same privilege to the residuary legatee.' A mere charge upon land stands upon a different footing, and the executor possesses no power to sell or dispose of the land in such case except by license or direction of the probate court.* The land in the hands of the devisee is burdened by the charge,' and should he renounce the devise such land will descend to the heir at law subject to the charge ; * but the executor, having no status as a trustee, takes no interest in same, and no power can be implied from the mere charge of the debts and legacies upon the lands devised.' Charges on lands devised. — Real estate is not as of course charged with the payment of legacies. It is never so charged unless the testator intended it should be, and that intention must be either expressly declared, or fairly and satisfactorily inferred from the language and dispositions of the will.' Mere directions to pay debts and legacies are not sufficient to create a charge ; ' but where the testator devises his real estate after payment of debts and legacies, or with a direction that debts and legacies be first paid, then the real estate is charged with the payment of them and they become a lien upon the 1 Craig V. Leslie, 3 Wheat. 463; Un re Fox, 53 N. Y. 530. Story, Eq., g 552.; Dill v. Wisner, 88 sQkeson's Appeal, 59 Pa. St. 9D; N. Y. 153. Kirkpatrick v. Chestnut, 5 S. C. 2 Craig V. Leslie, 8 "Wheat. 463. 316; Lupton v. Lupton, 3 Johns. 3 Craig V. Leslie, 3 Wheat. 463. Ch. 614; Cable's Appeal, 9 Reporter, ^ Dill V. Wisner, 88 N. Y. 153. 57. Legacies are primarily pay- 5 Gridley v. Gridley, 34 N. Y. 130; able out of the personal estate. Harris V. Fly, 7 Paige, 431. » Taylor v. Dodd, 58 N. Y. 335; « Birdsall v. Hewlett, 1 Paige, 33. Walter's Appeal, 95 Pa. St. 305. 318 LAW OF EEAL PEOPEETT. land.^ If the devisee accepts the devise, he becomes person- ally liable for the legacies,^ which still remain, however, a charge upon the land.' When the same sentence or clause by which land is devised imposes on the devisee the duty of paying an annuity, and no other fund is provided out of which the payment is to be made, the annuity is a charge upon the land ; * and in like manner, where a testator, with- out creating an express trust to pay legacies, makes a gen- eral residuary disposition of his whole estate, blending the realty and personalty together in one fund, the real estate is constructively charged with the legacies.* In every in- stance, therefore, where legacies are directly or construct- ively charges or liens upon the realty, satisfactory assurance must be given that the legacies have been paid or the lien released before the title is accepted by a purchaser from the devisee. In this connection an important distinction should be noted, with regard to the estate possessed by the devise, between such legacies as constitute a personal charge upon the devisee, and such as are expressly charged upon the estate. Where an estate is devised subject to the pay- ment of legacies, if the legacies are made a personal charge upon the devisee, an acceptance of the devise operates to make such legacies a personal liability of the devisee, while he will take the estate devised as a purchaser in fee ; but if the legacies are charged upon the estate devised, the devisee does not take as a purchaser, but as a beneficial devisee.' 1 Lupton V. Lupton, 2 Johns. Ch. of such charge, and equity will en- 614; Wood v. Sampson, 35 Gratt. force it upon the land in their (Va.) 845. hands." 2 Redt on Wills, *210, 2Birdsall v. Hewlett, 1 Paige, 33; citing Harris v. Fly, 7 Paige, 421; Burch V. Burch, 53 Ind. 136. Wallington v. Taylor, Saxton, 314. 3 "It seems to be well settled," And see Aston v. Galloway, 3 Ired. says Mr. Redfield, " that where Eq. (N. C.) 126. lands are held by subsequent bona * Merrill v. Bickford, 65 Me. 118. fide purchasers for value, but who ' Lewis v. Darling, 16 How. 1 ; are obliged to trace title through a Nichols v. Postlethwaite, 3 Dall. devise, whereby a charge is created 131; Hill on Trustees, 860; Gal- upon the land for the payment of lagher's Appeal, 48 Pa. St. 131. legacies, such purchasers will be ^ Funk v. Eggleston, 92 III 515. constructively affected with notice TESTAMENTAET CONTETANOES. 319 Equitable conversion, — It is a fundamental principle in equity, long established and universally recognized, that where the testator directs that his real property be converted into money on or before a given time, it becomes, at law, money, and will be treated as personalty from the moment of his death. In such case, therefore, the heir takes no in- terest in the land, which is held by the executor as other personal property, and can make no conveyance of same that will defeat or impair the rights of a purchaser from the executor. Yet, to effect this change the intention of the testator must appear by unequivocal declaration. There must be an imperative and unmistakable direction to sell ; and if the power to sell, or the sale itself is coupled with terms or dependent upon a contingency, there is no conver- sion until the terms have been complied with or the con- tingency has happened ; and, as courts are always averse to sanctioning a change in the quality of an estate, if there be any doubt as to the intention of the testator the original character of the property will be retained.' 3. Proof of Wills. Generally. — Before a will can take effect or become op- erative as a conveyance it must, in some manner, be estab- lished as the act and deed of the testator. Formerly much laxity prevailed with respect to the proof of wills. No special means of legal authentication were provided ; and though it became a common practice, where title depended upon a devise, to prove the execution of the will in chancery, yet this was not considered necessary to perfect title any more than it would be to prove the execution of a deed.^ For many years, however, courts have been provided with special jurisdiction in the matter of wills and decedents' estates, and to them must be referred all testamentary writings, such reference being technically known as a pro- hate. lOrrick v. Boehm, 49 Md. 104: 2 Cruise, Dig., tit. 38, ch. V. Peter v. Beverly, 10 Pet. (U. S.) 533. 320 LAW OF EEAL PEOPEKTT. Probate of wills.— Probate of a will has been defined as the proof, before an officer authorized by law, that an in- strument offered to be proved or recorded is the last will and testament of the deceased person whose testamentary act it is alleged to be.' It is the authentication of the in- strument, and that which gives to it its legal effect and validity as a conveyance.^ A will, therefore, which has not been admitted to probate, though admissible, perhaps, in connection with proof of adverse possession, is not evidence of title in a court of law,' nor would it afford constructive notice if recorded. JEffect of probate.— The probate of a will, if decreed by a court of competent jurisdiction, establishes the facts : (1) that the testator at the time of executing the instrument was of sound and disposing mind and memory, capable of under- standing the act he was doing, and the relation in which he stood to the object of his bounty, and to the persons to whom the law would have given his property if he had died intes- tate; (2) that the instrument was executed without fear, fraud or undue influence by which his own intentions were controlled and supplanted by those of another; (3) that he executed the instrument animo testandi, with an understand- ing and purpose that it should be his last will and testament ; * and (4) it is presumptive evidence of the death of the person whose will it purports to establish.^ Such decree is gen- erally regarded as in the nature of a judgment in rem,^ and in the absence of statutory provisions is conclusive as against all the Avorld as to the validity of the will,' and affirms the 1 8 Bouv. Law Diet 378; Pettit v. * Barker v. Comins, 110 Mass. 477. Black, 15 Eeporter, 90. * Carroll v. Carroll, 6 Thomp. & 2 Armstrong v. Lear, 13 Wheat C. (N. Y.) 294; Belden v. Meeker, 175. 47 N. Y. 307. a Willamette, etc. Co. v. Gordon, «HaU v. Hall, 47 Ala. 290; Crip- 6 Oreg. 175; Wood v. Matthews, 53 pen v. Dexter, 18 Gray (Mass.), 330; Ala. 1; Pitts v. Melser, 72 Ind. 469; State v. McGlynn, 20 CaL 233. Shumway v. Holbrook, 1 Pick. 114; ' Brock v. Frank, 5 Ala. 85; Janes Ochoa V.Miller, 59 Tex. 460; Pettit v. Williams, 31 Ark. 175; Tucker V. Black, 13 Neb. 143. v. Whitehead, 58 Miss. 762; In re TESTAMBNTAEY CONrETANOKS. 321 title of the beneficiary under it from the time of the testa- tor's death, relating back so as to make valid whatever has been previously clone, vrhich, under the will, after probate, the beneficiary could lawfully have done.' But though probate establishes the suflEiciency of the will, and confirms the claims of those holding under it, so far as to make it evidence of title, it does not determine the title to the property, nor establish the validity of any devise given by it, the will having no greater effect after probate than any other legal conveyance.^ Foreign "probate. — In order to entitle a devisee of lands under a will probated in a foreign jurisdiction to deduce legal title to same in the courts of the state where the land is located, it is necessary that the will be also probated in the local courts. This matter is governed by statute, which generally provides that the copy of the will presented must be accompanied by the foreign probate and due authentica- tion thereof, these together constituting the one instrument or subject-matter to be acted upon under the statute ; and all are, as a rule, essential to authorize the probate court to exercise jurisdiction.' Whenever this ancillary probate is resorted to it is generally allowed as a matter of course and without inquiring into the validity of the will or the suffi- ciency of proofs upon which the court granting the original probate acted, provided such original probate was granted by a court of competent jurisdiction and is properly authen- ticated.* Williams, 1 Lea (Tenn.), 529; Orr 8 Pope v. Cutler, 34 Mich. 150; V. O'Brien, 55 Tex. 149. Ward v. Dates, 43 Ala. 515. iStuphen v. Ellis, 35 Mich. 446; < Brock v. Frank, 51 Ala. 89; Ap- AUaire v. Allaire, 37 N. J. L. 312; person v. Bolton, 29 Ark. 418; New- Dublin V. Chadbourn, 16 Mass. 433. man v. Willetts, 53 111. 98; Eussell 2 Fallon V. Chidester, 46 Iowa, v. Hart, 87 N. Y. 19; Markwell v. 588; Greenwood v. Murray, 26 Thome, 28 Wis. 548, Minn. 259; Ware v. Wisner, 4 Mc- Crary (C. Ct"), 66. 21 17 INDEX. The references are to the pages. ACCRETION — definition, nature and operation, 93. ACKNOWLEDGMENT — of deeds, when required, 180. formal requisites of, 181, not required for ancient deeds, 183, of sheriffs deed, necessity for, 280. ADMINISTRATOR — with will annexed, deeds of, 375. ADOPTION — defined and considered, 77. ADVERSE POSSESSION — nature of title acquired by, 107. essentials of, 108i ADVERSE SEIZIN — will not prevent valid conveyance of land, 153. AFFINITY — defined and distinguished, 76. ALIENS— right of to inherit, 75. right of to take by deed, 135. ALLEGIANCE — does not relate to title or imply feudal obligations, 45. ANCESTOR — covenants of bind heir, when, 69. debts of, aflfect heir, how, 70. ANCESTRAL ESTATES — by what rule distributed, 74. ANCIENT DEEDS — rules as to proof of, 183. APPURTENANCES — defined and considered, 13. 324 INDEX. ARRANGEMENT— of the orderly parts of a deed, 136. ASSIGNMENT — deed of, nature and operation, 225. for benefit of creditors, 226. of mortgage, how made, 257. formal requisites of, 258. of lease — subtenancy, 268. ATTESTATION — of deeds, nature and effect, 179. of wills, what required, 291. ATTORNEY IN FACT — appointment and powers of, 230. execution of power by, 232. substitution of, 232. revocation of power of, 231. AUTRE VIE — estates per, what are, 27. AVULSION — defined, nature and operation, 94. BURIAL LOTS — nature of a grant of, 23. CESSION — title by, described, 66. CHATTELS REAL — what are, 263. requisites of conveyances of, 263. CHILDREN — is a word of purchase and not limitation, 299, 301. CHURCH PEWS — as subjects of property, how regarded, 12. CLASS — effect of a devise to, 305. CODICIL — to will, defined and described, 292. COLOR OF TITLE — defined and distinguished, 108. CONDITIONAL ESTATES — origin and nature, 46. defined and classified, 47. INDEX. 325 CONDITIONAL LIMITATIONS — distinguished from conditions, 51, in wills, effect of, 310. CONDITIONS — annexed to land, effect of, 46. in deeds, construction of, 170. how created, 171. operation and effect of, 173. in restraint of alienation, 174. devise upon, effect of, 310. CONFIRMATION- nature and operation as a form of grant, 88. deeds of, nature and operation, 324. of judicial sales, effect of, 284. CONFISCATION — nature and effect of, 98. CONQUEST — title by, described, 66. CONSANGUINITY — definition and nature of, 71. CONSIDERATION — in deeds, nature and effect of, 145. CONSTRUCTION — of deeds, rules for, 149. of covenants in deeds, 165. of patents and public grants, 304. of wills, rules for, 394. CONVEYANCE — by deed, generally considered, 134 forms of, 198. CONVEYANCES — by the government, 199. by individuals, 313. derived from the statutes of uses, 214 derived from the common law, 223. by delegated authority, 338. in trust, 234 by way of pledge, 339. of chattels real, 368. of a testamentary nature, 289. COPARCENERS— relation of, how created, 76. 326 INDEX. CORPORATIONS — considered as parties to deeds, 13L devise to, how construed, 314. CORPORATION STOCK — not regarded as real property, 13. CORPOREAL HEREDITAMENTS — defined and classified, 3. COVENANTS — in deeds, rules with respect to, 163. how created, 163. construction of, 165. defined and classified, 166. run with the land, when, 168. in mortgages, effect of, 352. in leases, when improved, 367, CURTESY — estate of, what is, 31. DATE — of deed, immaterial to its operation, 191. DECLARATION — of trust, form of, 236. of revocation of will not sufficient, 293. DEDICATION — defined and classified, 86. by plat, requisites of, 131. DEED — as a form of private grant, 85. DEEDS — form and incidents of, 124 writing and arrangement of, 126. parties to, generally considered, 138. of general warranty, 216. of quitclaim, 317. of special warranty, 330. statutory forms, effect of, 331. of release, 323. of confirmation, 224. of surrender, 235. of assignment, 335. DEGREES — of consanguinity, as per common law, 7& INDEX. 327 DELIVERY — of deeds, necessity for, 183. theory of, 184. manner of, presumptions, 184 evidence of by registration, 185. how aflfeoted by revocation and redelivery, 186. in escrow, effect of, 187. of patents, not required, 203. DESCENT — title by, defined, 68. through consanguinity, 71. through affinity, 76. through adoption, 77. rules of, defined by statute, 71, DESCRIPTION — in deeds, how construed, 149, 151. of exceptions and reservations, 153. DEVISE — considered as a form of title, 89. to heirs, efiEect of, 397. to a class, how construed, 305. with power of disposition, 306. in indeterminate words, construction of, 309. on condition, effect of, 310. to married women, 313. to executors in trust, 313. will lapse, when, 316. for payment of debts, 317. DISCOVERY — title by, described, 65. DOWER — nature and incidents of, 39. EASEMENTS — nature and characteristics of, 16. how created and extinguished, 1& EJIINENT DOMAIN— nature and exercise of the power, 95, ENTIRETY — estates by, nature of, 40. EQUITABLE CONVERSION — general doctrine of, 319. ESCHEAT — nature and incidents of, 97, 328 INDEX. ESCROW — delivery of deeds in, effect of, 187 ESTATES — defined and classified, 23. of freehold, what are, 25. in fee-simple, 25. in fee-tail, 26. for life, forms of, 27. less than freehold, 33. for years, 34. at will, 35. by sufferance, 35. in remainder, nature of, 37. in reversion, nature of, 38. in joint-tenancy, how created, 89. by entirety, 40. in common, 42. absolute and on condition, 44, 47. i-aised in equity, what are, 52. merger of, how effected, 57. in fee-simple, what words raise, 299. how affected by rule in Shelly's Case, 300. ESTOPPEL — defined and classified, 102. by record, what is, 103. by deed, what is, 103. equitable doctrine of, 104. ESTOVERS — definition of, 28. EXCEPTIONS AND RESERVATIONS — from grants of land, how made, 153. EXECUTION — sheriff's deed under, 279. nature of title derived by, 278. EXECUTOR — deeds and conveyances by, 274. EXECUTORS AND ADMINISTRATORS — as parties to conveyances, 143. FEE-SIMPLE — estates in, nature and qualities of, 25. how created by deed, 155. by will, 300. INDEX. 329 FEE-TAIL — estates io, defined, 26. FIXTURES— defined and described, 8. rule for determination of, 9. FORFEITURE — as a method of acquiring title, 99. FRANCHISES — of what consisting, 21. FREEHOLD ESTATES — defined and classified, 25. FUTURE ESTATES — rules with respect to, 160. GRANT — title by, defined, 80. operative words of, in deeds, 193. in wills, 298. GROWING CROPS — pass under a deed of land, when, 6. GUARDIANS — as parties to conveyances, 144 deeds and conveyances by, 287. GUARDIANS AD LITEM — excepted from the disabilities of trustees, 277. HABENDUM — in deeds, office of, 194. HEIRS — considered as a word of purchase in deeds, 155. in wills, 299. HOMESTEAD — nature and characteristics of, 32. HOUSES AND BUILDINGS — in place, regarded as land, 7. ICE — may be considered as land, when, 11. IMBECILES — may be parties to deeds, when, 140. IMPLIED COVENANTS — in leases, when are, 267. 330 INDEX. INCORPOREAL HEREDITAMENTS — of what consisting, 14 INDIAN TITLE — to lands in United States, nature of, 64 INFANTS — as parties to deeds, 136. ISSUE — construction of as a word of purchase and limitation, 299. JOINT-TENANCY — nature of estates in, 39. JUDICIAL SALES — validity and effect, 282. title derived under, 283. necessity of confirmation of, 384 LAND — legal signification of, 4 LANDLORD AND TENANT — relation of defined, 264 LEASE — defined, 264 property subject to, 266. covenants and conditions in, 266. LEGAL MEMORY— period of, what is, 106. LEGISLATIVE ACTS — effect of as forms of public grant, 83, LEGISLATIVE GRANTS — construction and effect of, 205. LICENSES — nature and effect of, 20. LIFE ESTATES — defined and classified, 27. how created by deed, 156. LIMITATION — defined and distinguished, 106. words of, in deeds, in wills, 299. LUNATICS — effect of deeds of, 138. mDEX. 331 MANURE — may be considered as land, when, 7. MAP — of township subdivision, 114. of sectional subdivision, 115. MARRIED WOMEN — considered as parties to deeds, 138. devise to, effect of, 313. MEANDER LINES — how run and for what purpose, 118. MERGER — of estates, doctrine of, 57, MINERALS- when regarded as land, 4. MINISTERIAL OFFICERS — conveyances by, form and effect of, 279. MORTGAGEE — deeds by, effect of, 273. MORTGAGES — origin and history, 889. operation and effect of, 241. distinguished from trust deeds, 244. equitable, what are, 245. vendor's lien amounts to, when, 248. statutory forms, effect of, 348. for purchase-money, effect of, 249. of homestead, how executed, 249. of after-acquired property, 250. effect of informality in, 251. effect of covenants in, 253. conditions and stipulations in, effect of, 353. record of, effect of, 254. assignment of, how made, 257. release and satisfaction of, 360. marginal discharge of, 368. foreclosure of, how made, 363. MORTMAIN — statutes of, described, 133. NON-CLAIM — deed of, what is, 220. 332 INDEX. OCCUPANCY — title by, what is, 64. OFFICIAL CONVEYANCES — defined and classified, 369. OILS AND GASES — nature and legal characteristics of, 5. PARCELING — of land, generally considered, 113. PARTIES — to deeds of conveyance, 128. persons sui Juris, 130. persons under disability, 135. persons incompetent, 138. fiduciaries, 141. PARTNERS — deeds and conveyances by, 130. PATENT — as a form of public grant, 81. PATENTS — defined, 200. from the United States, 201. from the state, 205. PERPETUITIES — rule with respect to, in deeds, 174 in wills, 316. PLATS AND SUBDIVISIONS — how made, 119. requisites and registration of, 120. vacation and cancellation of, 121. PLEDGE — conveyances by way of, 239. POWERS — defined and classified, 56. deeds executed under, 228. of attorney, 230. of appointment, 234. revocation of, 231. execution of, by attorney, 233. POWER OF SALE — in mortgages, how exercised, 255. INDEX. 333 POWERS OF ATTORNEY — nature and exercise of, 230. revocation of, 231. execution of, 232. PRESCRIPTION — defined and distinguished, 105. PROBATE — of wills, how made, 319. effect of, 320. PROFITS A PRENDRE — defined and illustrated, 19. PROOF OF WILLS — how made and effect of, 819. PUBLIC CONVEYANCES — general forms of, 199. of proprietary lands, 200. of forfeited lands, 207. PUBLIC DOMAIN — how surveyed and divided, 113. PURCHASE — considered as a form of title, 80. words of, in deeds, 155. in wills, 299. PURCHASER — must see to application of purchase-money, when, S78. trustee cannot be, when, 276. QUITCLAIM DEEDS — form and operation of, 217. effect of covenants in, 219. REAL PROPERTY — nature and characteristics of, 1. estates in, defined, 23. title to, defined and classified, 59. RECORDS — of deeds, afford notice, when, 189. loss of, affects title how, 191. of the general land office, 203. of mortgages, efifect of, 254. RECTANGULAR SURVEYING — exposition of the system of, 117. 334 INDEX. REDEMPTION — equity of, in mortgages, 243. REGISTRATION — of plats and subdivisions, 120. of deeds, nature and effect, 188. of patents, effect of, 203. RELATION— doctrine of, of what consisting, 110. RELEASE — deed of, form and operation, 223. and satisfaction of mortgage, 260. form and requisites of, 260. of lien by trustees, 261. RELICTION — considered as a form of title, 94 REMAINDER — estates in, defined, 37. how created in wills, 304. REPUGNANCY — in deeds, how construed, 195. in wills, effect of, 296. RESTRICTION — on the use of property, effect of, 49. REVERSION — estates in, defined, 38. REVOCATION — of deed, effect of, 186. of power of attorney, 231. of wills, how effected, 293. RULES — of descent as fixed by statute, 71. SATISFACTION— of mortgage, defined and distinguished, 260. SEALING — of deeds, effect of, 177. method of, 178. SECTIONS — of public lands, how divided, 115. SHELLEY'S CASE — the rule in, stated, 158. applied to wills, 300. INDEX. 335 SHERIFF'S DEED — on execution — form and effect of, 279. SIGNATURE — to deeds, effect of, 175. method of affixing, 176. STIPULATIONS — in mortgages, effect of, 253. SUB-TENANT — how constituted, 268. SUCCESSION — right of, by heir, 73. by adoptive heir, 79. SURRENDER- deed of, form and operation, 225. SURVEYING — American system of, described, 117. TAX DEEDS — form and requisites of, 209. TAX TITLES — nature and characteristics of, 100, TECHNICAL PHRASES — general rules for construing, 196, in wills, how construed, 301. TERMS — of years, how created, 265. TESTAMENTARY CONVEYANCES — nature and operation of, 389. TITLE — defined and classified, 59. original, what is, 60. sources and classes of, 63, 66. derivative, defined and classified, 67. by descent, 68. by purchase, 80. TOWNSHIP — how surveyed and subdivided, 114. TREES AND HERBAGE — annexed to the soil, are land, 6. 336 INDEX. TRUST — conveyances in, 234. creation of, 335. declaration of, how made, 286. TRUSTS — origin and history of, 54. how created, 234 resulting, what are, 337. TRUSTEES — definition, powers and duties, 143. appointment of, 234 removal or substitution of, 238. resignation of, 289. conveyances by, nature and operation, 371. cannot become purchasers of trust property, 276. TRUST DEEDS — nature and operation of, 344. release of by trustee, 261. USES — history and nature of, 58. VACATION — of plats and subdivisions, 121. VALIDITY — of deeds, questions of dLsoussed, 194 VOLUNTARY ASSIGNMENTS — nature, effect, and requisites of, 236. WARRANTY — covenant of, extends to what, 167. of title, in quitclaim deeds, effect of, 219. how construed in statutory deeds, 331. implied from words of grant, 216. WARRANTY DEED — form and operation of, 316. WASTE — defined and classified, 38. WATER — rights of property in, 10. INDEX. 337 WILLS — making and revocation of, 390. operation and effect, of, 294 proof of, how made, 319. WITNESSES — to deeds, effect of, 179. to wills, when required, 291. WORDS — of grant, in deeds, 193. in wills, 298. of purchase and limitation, 299. and phrases in wills, interpretation of, 301. which raise estates in deeds, 155. which pass real estate in wills, 803. 23 Kf' 570 W29 Author Vol. Waarvelle, George Win Title Copy Prinftiples of hhe law of real pr St jperty lor xne use oi idents Date Borrower's Name 5aaeKaiWJ»B*-.A-- --- - m i